In re FERRANTI, Minor

Docket No. 157907. Argued on application for leave to appeal October 10, 2018. Decided 

June 12, 2019. 

 The Department of Health and Human Services (the Department) petitioned the Otsego 

Circuit Court, Family Division, to remove JF, a minor, from the care of respondents, her parents. 

JF had spina bifida, a birth defect that affects the development of the spinal cord and that caused 

JF to require medical care and supervision for her entire life. In particular, JF had trouble 

ambulating without the aid of a mobility device and had to use a catheter to urinate. In 2015, the 

Department petitioned the court for JF’s removal, alleging that respondents had failed to 

adequately attend to JF’s medical needs by missing several medical appointments and by failing 

to regularly refill her prescription medications. The Department also alleged that the living 

conditions in respondents’ home posed a health risk to JF because it was cluttered, dirty, and had 

a strong odor of animals and urine. The court held an emergency hearing and placed JF in foster 

care, but the court permitted her to have unsupervised visits at respondents’ home. After several 

more hearings, the trial court found probable cause to authorize the petition and set an adjudication 

trial. At a preadjudication status conference, respondents admitted that they had not refilled several 

of JF’s prescriptions, and the court exercised jurisdiction over JF. In taking respondents’ pleas, 

the court did not advise them that they were waiving any rights nor did the court advise them of 

the consequences of their pleas, as required by MCR 3.971. In January 2016, the court adopted 

the Department’s proposed family treatment plan, which, among other things, required that 

respondents maintain a clean home. The court concluded the final dispositional hearing in October 

2016 by authorizing the Department to file a termination petition, but the court noted that its 

decision was limited to that procedural step. The parties disputed the home’s suitability for JF, 

and the court stated that it wanted to see the home for itself. The court visited the home in February 

2017 but did not document its observations and factual findings. Additionally, during the 

termination hearing, the court conducted an in camera interview with JF but made no record of 

the conversation. The court, Michael K. Cooper, J., ultimately terminated respondents’ parental 

rights. Respondents appealed. The Court of Appeals, SHAPIRO, P.J., and M. J. KELLY and 

O’BRIEN, JJ., affirmed the trial court’s termination decision in an unpublished per curiam opinion 

issued on May 10, 2018 (Docket Nos. 340117 and 340118), concluding that In re Hatcher, 443 

Mich 426 (1993), prohibited it from considering respondents’ claim that the trial court violated 

their due-process rights by failing to advise them of the consequences of their pleas. The panel 

also held that any error from the court’s visit to the family home did not violate respondents’ dueprocess rights and that respondents waived the claim that the court’s in camera interview was 

Michigan Supreme Court 

Lansing, Michigan

Syllabus Chief Justice: 

Bridget M. McCormack 

Chief Justice Pro Tem: 

David F. Viviano 

Justices: 

Stephen J. Markman 

Brian K. Zahra 

Richard H. Bernstein 

Elizabeth T. Clement 

Megan K. Cavanagh 

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

Reporter of Decisions: 

Kathryn L. Loomis 
erroneous. Respondents applied for leave to appeal in the Supreme Court, which ordered and 

heard oral argument on whether to grant the application or take other action. 502 Mich 906 (2018). 

 In an opinion by Chief Justice MCCORMACK, joined by Justices VIVIANO, BERNSTEIN, and 

CLEMENT, the Supreme Court, in lieu of granting leave to appeal, held: 

In re Hatcher, 443 Mich 426 (1993), which generally barred a parent from raising errors 

from the adjudicative phase of a child protective proceeding in the parent’s appeal from an order 

terminating his or her parental rights, was overruled. An appeal of an adjudication error in an 

appeal from an order terminating parental rights is not a collateral attack because although a child 

protective proceeding has two distinct phases—the adjudication and the disposition—the 

proceeding itself is one action, not two separate actions. Therefore, the collateral-bar rule does 

not apply within one child protective case. Also, the use of unrecorded, in camera interviews of 

children in termination-of-parental-rights proceedings violates parents’ due-process rights. 

 1. Under MCR 3.961(A), a proceeding to terminate parental rights begins when the 

Department petitions the family division of a circuit court to take jurisdiction over a child. The 

trial court then holds a preliminary hearing to determine whether the court may exercise 

jurisdiction over the child. If the court authorizes the petition, the adjudicative phase begins, in 

which the court determines whether it may exercise jurisdiction over the child and the respondentsparents under MCL 712A.2(b) so that it can enter dispositional orders. Once the court’s 

jurisdiction is established, the case moves to the dispositional phase, in which the court holds 

review hearings to determine whether the petition should be dismissed or whether the parents’ 

parental rights should be terminated. Hatcher, 443 Mich 426, generally barred a parent from 

raising errors from the adjudicative phase of a child protective proceeding in the parent’s appeal 

from an order terminating his or her parental rights. Hatcher made a foundational mistake by 

erroneously applying the rule from Jackson City Bank & Trust Co v Fredrick, 271 Mich 538 

(1935)—that a court’s exercise of jurisdiction cannot be collaterally attacked in a second 

proceeding—to what is a single, continual proceeding. The “collateral bar” rule generally 

prohibits a litigant from indirectly attacking a prior judgment in a later, separate action, unless the 

court that issued the prior judgment lacked jurisdiction over the person or subject matter in the 

first instance. Hatcher applied that rule to conclude that a respondent who appeals a defect in the 

adjudicative phase at the end of the child protective proceeding (in an appeal from an order 

terminating parental rights) is “collaterally” attacking that very same child protective proceeding. 

But that holding failed to recognize that a child protective proceeding is a single, continual 

proceeding that begins with a petition, proceeds to an adjudication, and—unless the family has 

been reunified—ends with a determination of whether a respondent’s parental rights will be 

terminated. Therefore, Hatcher was wrongly decided. 

 2. That a case was wrongly decided, by itself, does not necessarily mean that overruling it 

is appropriate. Courts should review whether the decision defies practical workability, whether 

reliance interests would work an undue hardship were the decision to be overruled, and whether 

changes in the law or facts no longer justify the decision. In this case, the Supreme Court’s 

growing list of exceptions to Hatcher showed that its rule defied simple application, especially 

when a respondent’s due-process rights were violated in the adjudication. Hatcher disrupted the 

careful balancing of interests in the juvenile code by preventing judicial review of meritorious 

claims of defects in the adjudication; a parent’s only remedy under Hatcher was by way of an 
interlocutory appeal, which disincentivized a parent from timely cooperating with the Department 

and further delayed a final determination. With regard to reliance interests, Hatcher had scant 

application; it merely imposed procedural limitations on a respondent’s ability to challenge errors 

in the adjudication. Therefore, overruling Hatcher simply causes readjustments in litigation as 

opposed to practical, real-world dislocations. Finally, when considering whether changes in the 

law or facts no longer justify the decision, the erosion of Hatcher’s rule through the many 

exceptions to it created uncertainty and thus justified overruling it. Accordingly, Hatcher was 

overruled. 

 3. Parents have a fundamental right to direct the care, custody, and control of their children. 

Under the Due Process Clause of the Fourteenth Amendment, for a plea to constitute an effective 

waiver of a fundamental right, the plea must be voluntary and knowing. MCR 3.971(B)(3) and 

(4) require the trial court to advise a respondent on the record or in a writing that is made a part of 

the file of the allegations in the petition, the right to an attorney, the rights the respondent will be 

waiving by entering a plea, the consequences of that plea (including the possibility that the plea 

will be used as evidence in a proceeding to terminate parental rights), and to provide advice about 

the respondent’s posttermination support obligations. Respondents argued that adjudication errors 

raised after the trial court has terminated parental rights should be reviewed for plain error. Under 

that standard, respondents must establish that (1) error occurred; (2) the error was “plain,” i.e., 

clear or obvious; and (3) the plain error affected their substantial rights. Additionally, the error 

must have seriously affected the fairness, integrity, or public reputation of judicial proceedings. 

The Department agreed that plain-error review applied to respondents’ claim of adjudication error, 

and the Department acknowledged that the first and second prongs were satisfied in this case 

because the court erred by failing to advise respondents of the consequences of their pleas and the 

rights they were giving up; those errors were plain. The third prong was satisfied because the 

constitutional deprivations of respondents’ fundamental right to direct the care, custody, and 

control of JF affected the very framework within which respondents’ case proceeded; therefore, 

the error affected respondents’ substantial rights. Finally, the error seriously affected the fairness, 

integrity, or public reputation of judicial proceedings because the trial court did not advise 

respondents that they were waiving any of the rights identified in MCR 3.971(B)(3) and failed to 

advise the respondents of the consequences of entering their pleas as required by MCR 

3.971(B)(4). The trial court’s order of adjudication therefore had to be vacated. 

 4. The propriety of a trial court conducting an in camera interview of the subject child in 

the context of child protective proceedings was an issue of first impression in Michigan. In this 

case, respondents’ agreement to the general idea of the court speaking to JF did not waive their 

right to have that interview comport with due process. Respondents endorsed only the court’s 

initial proposal that the court wished to speak with JF, but the court never sought—and respondents 

never gave—their agreement about how that conversation would take place. There was nothing 

in the juvenile code, caselaw, court rules, or otherwise that permitted a trial court presiding over a 

termination proceeding to conduct in camera interviews of children for purposes of determining 

their best interests. Therefore, the Court of Appeals correctly held that the use of unrecorded, in 

camera interviews in termination proceedings violates parents’ due-process rights. On remand, a 

different judge must preside. 
 Trial court order terminating respondents’ parental rights vacated; trial court order of 

adjudication vacated; case remanded to the trial court for further proceedings with a different judge 

presiding on remand. 

 Justice MARKMAN, joined by Justice ZAHRA, dissenting, would not have overruled Hatcher

because it was correctly decided and no sound reason to alter its common-law rule was presented. 

Justice MARKMAN would have affirmed the judgment of the Court of Appeals because the Court 

of Appeals correctly held that respondents cannot collaterally attack the instant adjudication after 

their parental rights have been terminated, that respondents waived the issue pertaining to the 

interview of the child, and that any error on the trial court’s part in visiting respondents’ home was 

harmless. In this case, although the trial court breached MCR 3.971 by failing to advise 

respondents of their rights, respondents failed to timely raise this issue. Respondents did not 

appeal the adjudication until after the trial court had terminated their parental rights, nearly two 

years after the adjudication. An adjudication cannot be collaterally attacked following an order 

terminating parental rights unless the termination occurred at the initial disposition; however, in 

this case, the adjudication and the termination were separated by a lengthy period of attempts at 

reunification and, therefore, respondents were barred from collaterally attacking the adjudication. 

The majority was incorrect in failing to recognize that although there is only one final order in a 

child protective case, there are at least two orders that are appealable by right, i.e., the initial 

dispositional order and the order terminating parental rights. The time to directly attack the 

adjudication is following the order of disposition placing a minor under supervision of the court. 

Black’s Law Dictionary (6th ed) defines “collateral attack” as “[a]n attack on a judgment in any 

manner other than by action or proceeding, whose very purpose is to impeach or overturn the 

judgment; or, stated affirmatively, a collateral attack on a judgment is an attack made by or in an 

action or proceeding that has an independent purpose other than impeaching or overturning the 

judgment.” An order terminating parental rights has an independent purpose other than 

overturning the adjudication—to attack the termination. Therefore, attacking the adjudication in 

the appeal of the termination order constitutes a collateral—rather than a direct—attack. The 

collateral-attack rule is a common-law rule, and when it comes to alteration of the common law, 

the traditional rule must prevail absent compelling reasons for change. The majority failed to set 

forth a reason, let alone a compelling reason, to justify its alteration of Hatcher’s common-law 

rule. Contrary to the majority’s assertion, numerous “exceptions” to the Hatcher rule have not 

been carved out. 

 Furthermore, the court rules were recently amended to essentially incorporate Hatcher; 

specifically, the court rules now require the trial court to advise parents that they have an appeal 

of right from the initial dispositional order and that if they do not challenge the adjudication at that 

point, they will not be able to challenge it after their parental rights have been terminated, with 

two exceptions. Given that this Court just incorporated Hatcher into its court rules, Justice 

MARKMAN was not sure why the majority felt compelled to overrule it in its opinion. In addition, 

Justice MARKMAN would not overrule Hatcher because finality is critical with regard to child 

protective proceedings. Allowing a “do-over” is not fair to the children who will be required to 

endure this process again—or to prospective adoptive parents—and it further results in wasted 

time, money, and resources as well as disrupts whatever progress and rehabilitation the children 

might have made during that time. Just as the new court rules reasonably balance the rights of 

parents and children, and afford a clear opportunity for a fresh start for the abused or neglected 

child, so too did the prior court rules. It is not right that JF alone should be made subject to a third
court rule regime, which does not reasonably balance the interests of parent and child and requires 

a lengthy re-do of an already lengthy and fair legal process only because of the failure of 

respondents—already deemed by a court of law to have acted neglectfully—to have abided by the 

law in pursuing a timely appeal. Thus, in a realm of the law in which reasonable expedition of 

decision-making has always been thought by the judiciary to be paramount, the majority imposes 

in this single case a process that is reflective of our legal system at its most unnecessarily drawn 

out and dilatory. 

 Justice CAVANAGH did not participate in the disposition of this case because the Court 

considered it before she assumed office. 

©2019 State of Michigan 
 FILED June 12, 2019 

S T A T E O F M I C H I G A N 

SUPREME COURT 

In re FERRANTI, Minor. 

 

 No. 157907 

 

BEFORE THE ENTIRE BENCH (except CAVANAGH, J.) 

MCCORMACK, C.J. 

This Court’s decision in In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993), 

generally bars a parent from raising errors from the adjudicative phase of a child protective 

proceeding in the parent’s appeal from an order terminating his or her parental rights. The 

Hatcher rule rests on the legal fiction that a child protective proceeding is two separate 

actions: the adjudication and the disposition. With that procedural (mis)understanding, we 

held that a posttermination appeal of a defect in the adjudicative phase is prohibited 

because it is a collateral attack. This foundational assumption was wrong; Hatcher was 

wrongly decided, and we overrule it. 

Michigan Supreme Court 

Lansing, Michigan

OPINION Chief Justice: 

Bridget M. McCormack 

Chief Justice Pro Tem: 

David F. Viviano 

Justices: 

Stephen J. Markman 

Brian K. Zahra 

Richard H. Bernstein 

Elizabeth T. Clement 

Megan K. Cavanagh
 

 2 

The Hatcher rule prevented these respondents-parents from challenging the 

undisputed defects in their pleas—the pleas that supported the trial court’s exercise of 

dispositional authority and the termination of the respondents’ parental rights. We reverse 

the Court of Appeals, vacate the trial court’s order of adjudication and order terminating 

the respondents’ parental rights, and remand this case to the trial court for further 

proceedings. And because the trial court violated the respondents’ due-process rights by 

conducting an unrecorded, in camera interview of the subject child before the court’s 

resolution of the termination petition, a different judge must preside on remand. 

I. FACTUAL AND PROCEDURAL HISTORY 

The respondents have several children together. Their youngest, a daughter, JF, was 

born in 2003. JF has spina bifida, a birth defect relating to the gestational development of 

the spinal cord. As a result of her spina bifida, JF has trouble ambulating without the aid 

of a mobility device. Also related to spina bifida, JF has neurogenic bladder, and she must 

use a catheter to urinate. JF has required medical care and supervision for her entire life. 

In October 2015, the petitioner, the Department of Health and Human Services (the 

Department), petitioned to remove JF from the respondents’ care. The Department alleged 

that the respondents had failed to adequately attend to JF’s medical needs by missing 

several medical appointments and failing to regularly refill her prescription medications. 

The Department also alleged that the living conditions in the respondents’ home posed a 

health risk to JF. The petition described the respondents’ home as having “clutter 

throughout,” making it difficult to maneuver in a wheelchair. The petition also described 

JF’s bathroom as “filthy” and the home as having “a strong odor of animals and urine.” 
 

 3 

The court held an emergency hearing on the petition and placed JF in foster care, 

but the court permitted her to have unsupervised visits at the respondents’ home. After 

several more hearings, the trial court found probable cause to authorize the petition and set 

an adjudication trial. 

At a preadjudication status conference in December 2015, the respondents admitted 

that JF had been prescribed medications for her health condition, that they had not refilled 

several of JF’s prescriptions since January 2015, and that some of those prescriptions could 

have been refilled at no cost. These admissions allowed the trial court to exercise 

jurisdiction over JF. The respondents made no other admissions. 

In taking the respondents’ pleas, the court did not advise them that they were 

waiving any rights. Nor did the court advise them of the consequences of their pleas, as 

required by our court rules. See MCR 3.971.1

 And although it was not required to do so 

 

1

 MCR 3.971 is to be amended on the date this opinion is issued. MCR 3.971 previously 

provided, in part: 

(B) Advice of Rights and Possible Disposition. Before accepting a 

plea of admission or plea of no contest, the court must advise the respondent 

on the record or in a writing that is made a part of the file: 

(1) of the allegations in the petition; 

(2) of the right to an attorney, if respondent is without an attorney; 

(3) that, if the court accepts the plea, the respondent will give up the 

rights to 

(a) trial by a judge or trial by a jury, 

(b) have the petitioner prove the allegations in the petition by a 

preponderance of the evidence, 
 

 4 

by our court rules, the court did not advise the respondents that they could appeal its 

decision to take jurisdiction over JF. 

 

(c) have witnesses against the respondent appear and testify under 

oath at the trial, 

(d) cross-examine witnesses, and 

(e) have the court subpoena any witnesses the respondent believes 

could give testimony in the respondent’s favor; 

(4) of the consequences of the plea, including that the plea can later 

be used as evidence in a proceeding to terminate parental rights if the 

respondent is a parent. 

(5) if parental rights are subsequently terminated, the obligation to 

support the child will continue until a court of competent jurisdiction 

modifies or terminates the obligation, an order of adoption is entered, or the 

child is emancipated by operation of law. Failure to provide required notice 

under this subsection does not affect the obligation imposed by law or 

otherwise establish a remedy or cause of action on behalf of the parent. 

(C) Voluntary, Accurate Plea. 

(1) Voluntary Plea. The court shall not accept a plea of admission or 

of no contest without satisfying itself that the plea is knowingly, 

understandingly, and voluntarily made. 

(2) Accurate Plea. The court shall not accept a plea of admission or 

of no contest without establishing support for a finding that one or more of 

the statutory grounds alleged in the petition are true, preferably by 

questioning the respondent unless the offer is to plead no contest. If the plea 

is no contest, the court shall not question the respondent, but, by some other 

means, shall obtain support for a finding that one or more of the statutory 

grounds alleged in the petition are true. The court shall state why a plea of 

no contest is appropriate. 

The amended rule does not alter this language. But the language that had appeared in MCR 

3.971(C) will now appear in MCR 3.971(D), the revised rule contains new language at 

MCR 3.971(C), and MCR 3.971(B) will contain additional subparts. Further references in 

this opinion to MCR 3.971(C) are to the language quoted in this footnote. 
 

 5 

At the initial dispositional hearing held on January 12, 2016, the trial court adopted 

the family treatment plan proposed by the Department. That plan required the respondents 

to complete psychological examinations, maintain a clean home, and attend all of JF’s 

scheduled medical appointments. The court’s initial dispositional order maintained JF’s 

placement in foster care and continued to allow JF to have unsupervised visits with the 

respondents at the family home. 

As discussed, the Department’s initial assessment of the home (as alleged in the 

petition) was that it posed a health risk unique to JF because her bladder catheterization 

was susceptible to infection. But at a preadjudication hearing held shortly after the 

Department filed its petition, JF’s lawyer-guardian ad litem (LGAL) described the 

respondents’ home as “habitable” and “suitable” for JF.2

 And although the respondents’ 

treatment plan required them to maintain a clean home, neither the parties nor the court 

focused on this issue at the first two dispositional review hearings in April and July 2016.3

 

But at the third and final dispositional hearing in October 2016, the parties disputed the 

home’s suitability for JF. 

The trial court concluded the October hearing by authorizing the Department to file 

a termination petition, but the court noted that its decision was limited to that procedural 

 

2

 The trial court had instructed the LGAL to inspect the respondents’ home at the initial 

emergency hearing on the petition. 

3

 The respondents successfully completed other aspects of the treatment plan. The 

respondents underwent court-ordered psychological evaluations. Those evaluations 

determined that neither respondent posed a significant risk of physical or emotional abuse 

to JF. The psychologist reported that many of the alleged parenting failures were 

attributable to a lack of scheduling and organization. And the Department acknowledged 

at the permanency planning hearing that the respondents had attended all of JF’s medical 

appointments, in accordance with the treatment plan. 
 

 6 

step. The court was troubled by the conflicting testimony about the condition of the home 

and stated that it wanted to see the home for itself. And the court did that in February 2017. 

While the record shows that the respondents’ attorneys and the LGAL were present when 

the court visited the family home, the court did not document its observations and factual 

findings. The respondents’ attorneys were prohibited from addressing the court during the 

visit. 

The court conducted the termination hearing over three days in May, June, and July 

2017. After the June hearing date, the court stated that it was “inclined to speak with [JF]” 

and invited objections from counsel. When the hearing resumed in July, the court 

announced that it had conducted an in camera interview with JF. The court made no record 

of its conversation with JF. 

The court terminated the respondents’ parental rights, citing two statutory grounds 

for termination: MCL 712A.19b(3)(c)(i)

4

 and MCL 712A.19(3)(g).5 The court determined 

that both grounds were satisfied by clear and convincing evidence because of the “very 

unhygienic household circumstance, and a lack of or inability to create hygienic 

conditions . . . .” In its analysis of the child’s best interests, the court explained that the 

 

4

 MCL 712A.19b(3)(c)(i) allows the court to terminate a parent’s parental rights if “182 or 

more days have elapsed since the issuance of an initial dispositional order, and the 

court . . . finds [that] [t]he conditions that led to the adjudication continue to exist and there 

is no reasonable likelihood that the conditions will be rectified within a reasonable time 

considering the child’s age.” 

5

 MCL 712A.19b(3)(g) allows the court to terminate a parent’s parental rights if “[t]he 

parent . . . fails to provide proper care or custody for the child and there is no reasonable 

expectation that the parent will be able to provide proper care and custody within a 

reasonable time considering the child’s age.” 
 

 7 

home environment “is not as atrociously bad as it was, but even when the Court viewed 

the situation, it is not where a person with Spinal [sic] Bifida will thrive.” 

The respondents appealed. They challenged the trial court’s jurisdiction to 

terminate their parental rights because of the defects in their pleas, and they challenged the 

trial court’s ability to fairly decide the termination decision (and the respondents’ ability to 

challenge that decision on appeal) as a result of the court’s unrecorded visit to the family 

home and the in camera interview with JF. The Court of Appeals affirmed the trial court’s 

termination decision in an unpublished opinion. In re Ferranti, unpublished per curiam 

opinion of the Court of Appeals, issued May 10, 2018 (Docket Nos. 340117 and 340118). 

The panel concluded that our holding in Hatcher prohibited it from considering the 

respondents’ claim that the trial court violated their due-process rights by failing to advise 

them of the consequences of their pleas. Ferranti, unpub op at 6. The panel also held that 

any error from the visit to the family home did not violate the respondents’ due-process 

rights, id. at 8, and that the respondents waived the claim that the court’s in camera 

interview was error, id. at 9. 

The respondents sought leave to appeal in this Court. We granted oral argument on 

the application and directed the parties to address these issues: 

(1) whether this Court’s opinion in In re Hatcher, 443 Mich 426 (1993), 

correctly held that the collateral attack rule applied to bar the respondentparents from challenging the court’s initial exercise of jurisdiction over the 

respondents on appeal from an order terminating parental rights in that same 

proceeding; (2) if not, (a) by what standard should courts review the 

respondents’ challenge to the initial adjudication, in light of the respondents’ 

failure to appeal the first dispositional order appealable of right, see MCR 

3.993(A)(1), and (b) what must a respondent do to preserve for appeal any 

alleged errors in the adjudication, see e.g., In re Hudson, 483 Mich 928 

(2009); (3) if Hatcher was correctly decided, whether due process concerns 

may override the collateral bar rule, see, In re Sanders, 495 Mich 394 (2014), 
 

 8 

and In re Wangler, 498 Mich 911 (2015); (4) whether a trial court is 

permitted to visit a respondent’s home to observe its condition, and, if so, 

what parameters should apply to doing so; and (5) whether a trial court may 

interview a child who is the subject of child protective proceedings in 

chambers, and, if so, what parameters should apply to doing so. [In re 

Ferranti, 502 Mich 906, 906 (2018).] 

II. LEGAL BACKGROUND 

We review the interpretation and application of statutes and court rules de novo. In 

re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). Whether child protective 

proceedings complied with a parent’s right to due process presents a question of 

constitutional law, which we also review de novo. Id. at 403-404. De novo review means 

we review this issue independently, with no required deference to the courts below. 

A. CHILD PROTECTIVE PROCEEDINGS IN MICHIGAN 

Child protective proceedings are governed by the juvenile code, MCL 712A.1 et 

seq., and Subchapter 3.900 of the Michigan Court Rules. Any person who suspects child 

abuse or neglect may report their concerns to the Department. MCL 712A.11(1). The 

Department, after conducting a preliminary investigation, may then petition the Family 

Division of the circuit court to take jurisdiction over the child. MCR 3.961(A). That 

petition must contain, among other things, “[t]he essential facts” that, if proven, would 

allow the trial court to assume jurisdiction over the child. MCR 3.961(B)(3); see also MCL 

712A.2(b). After receiving the petition, the trial court must hold a preliminary hearing and 

may authorize the filing of the petition upon a finding of probable cause that one or more 
 

 9 

of the allegations are true and could support the trial court’s exercise of jurisdiction under 

MCL 712A.2(b). See MCR 3.965(B).6

If the court authorizes the petition, the adjudication phase follows. The question at 

adjudication is whether the trial court can exercise jurisdiction over the child (and the 

respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, 

including an order terminating parental rights. See Sanders, 495 Mich at 405-406. The 

court can exercise jurisdiction if a respondent-parent enters a plea of admission or no 

contest to allegations in the petition, see MCR 3.971, or if the Department proves the 

allegations at a trial, see MCR 3.972. “If a trial is held, the respondent is entitled to a jury, 

the rules of evidence generally apply, and the petitioner has the burden of proving by a 

preponderance of the evidence one or more of the statutory grounds for jurisdiction alleged 

in the petition.” Sanders, 495 Mich at 405 (citations omitted). And “[w]hile the 

adjudicative phase is only the first step in child protective proceedings, it is of critical 

importance because the procedures used in adjudicative hearings protect the parents from 

the risk of erroneous deprivation of their parental rights.” Id. at 405-406 (quotation marks, 

citation, and brackets omitted). The adjudication divests the parent of her constitutional 

right to parent her child and gives the state that authority instead. 

Once the trial court’s jurisdiction is established, the case moves to the dispositional 

phase. In this phase, the trial court has “broad authority” to enter orders that are 

“ ‘appropriate for the welfare of the juvenile and society in view of the facts proven and 

 

6

 If the child is not in protective custody and the petition does not request placement outside 

the family home, then a preliminary hearing is not required. Instead, the probable-cause 

determination (and the appropriate course of action) is made through a preliminary inquiry, 

a comparatively less formal process. See MCR 3.962. 
 

 10 

ascertained.’ ” Id. at 406, quoting MCL 712A.18(1). During the dispositional phase the 

court must hold review hearings “to permit court review of the progress made to comply 

with any order of disposition and with the case service plan [i.e., the family treatment 

plan] . . . and court evaluation of the continued need and appropriateness for the child to 

be in foster care.” MCR 3.975(A). If the child is removed from the family home, the court 

must conduct a permanency planning hearing within 12 months from the date of removal. 

MCL 712A.19a(1); MCR 3.976(B)(2). This hearing results in either the dismissal of the 

petition and family reunification, or the court ordering the Department to petition for the 

termination of parental rights. MCL 712A.19a(4); MCR 3.976(A).

If the Department files a termination petition, the court holds a termination hearing. 

See MCR 3.977. The court acts as fact-finder, MCR 3.977(I), and the rules of evidence 

generally do not apply, MCR 3.977(H)(2). If the court determines by clear and convincing 

evidence that one or more statutory grounds for termination exist, see MCL 712A.19b(3), 

the court must enter an order terminating the respondents’ parental rights unless the court 

determines that termination is clearly not in the child’s best interests. In re Trejo, 462 Mich 

341, 344; 612 NW2d 407 (2000). 

B. IN RE HATCHER 

In Hatcher, 443 Mich at 428, we considered whether a respondent-parent may 

challenge the trial court’s “assumption of subject matter jurisdiction over a minor 

child . . . after a termination decision and, if so, whether the entire termination proceedings 

should be declared void ab initio.” Or more simply: whether a parent could challenge 

errors in the adjudication when appealing the termination of his or her parental rights. 
 

 11 

The Hatcher trial court authorized the filing of a petition and placement of the child 

with the grandmother after conducting a preliminary hearing that neither parent attended. 

Id. at 429. At the adjudication, both parents stipulated to the court’s jurisdiction over their 

child, but they did not testify to or admit any facts that would support that jurisdiction. Id. 

at 430; see MCL 712A.2(b). The court held three dispositional hearings before the 

permanency planning hearing; neither parent challenged the court’s jurisdiction at those 

hearings. Id. at 430-431. Following the permanency planning hearing, the trial court 

terminated both parents’ rights. The father appealed, challenging the court’s adjudication. 

He argued, and the Court of Appeals agreed, that “the termination proceedings were void 

ab initio, [and] that the [trial] court never assumed valid subject matter jurisdiction over 

the child,” because neither parent ever admitted to facts supporting a statutory basis for 

jurisdiction. Id. at 432; see In re Waite, 188 Mich App 189, 208; 468 NW2d 912 (1991); 

In re Nelson; 190 Mich App 237, 241-242; 475 NW2d 448 (1991). 

We reversed. We held that the father’s claim of error (the adjudication-bystipulation) did not deprive the court of subject matter jurisdiction but “address[ed] the 

procedure by which the probate court proceeded after it had established subject matter 

jurisdiction on the basis of a validly filed petition.” Hatcher, 443 Mich at 438 (emphasis 

added). We explained: 

[T]he probate court’s subject matter jurisdiction is established when the 

action is of a class that the court is authorized to adjudicate, and the claim 

stated in the complaint is not clearly frivolous. The valid exercise of the 

probate court’s statutory jurisdiction is established by the contents of the 

petition after the probate judge or referee has found probable cause to believe 

that the allegations contained within the petitions are true. . . . When the 

referee considered the facts alleged in the petition and the testimony 

presented, he found probable cause that the allegations were true. 

Consequently, it was proper for the court to invoke its jurisdiction, assuming 
 

 12 

the court also had jurisdiction of the parties, a fact not here in dispute. 

Procedural errors that may have occurred did not affect the probate court’s 

subject matter jurisdiction. 

 Although neither the mother nor the father stipulated facts that 

supported the court’s jurisdiction, this jurisdiction is initially established by 

pleadings, such as the petition, rather than by later trial proceedings that may 

establish by a preponderance of the evidence that a child is within the 

continued exercise of the probate court’s subject matter jurisdiction. [Id. at 

437-438.] 

Again, more simply: Hatcher held that the trial court’s error did not deprive it of 

subject matter jurisdiction—it was simply an adjudicative error. And the father could not 

appeal that error; he should have either appealed the order authorizing the filing of the 

petition7

 or challenged the issue at a dispositional hearing. Id. at 438 (“The respondent 

could have appealed the court’s exercise of its statutory jurisdiction by challenging the 

sufficiency of the petition . . . . Alternatively, he could have pursued a number of statutory 

proceedings designed to redress an erroneous exercise of jurisdiction.”), citing MCL 

712A.19; MCL 712A.21. Because he did neither, we prohibited his termination challenge, 

calling it a “collateral attack.” Id. at 444 (“Our ruling today severs a party’s ability to 

challenge a probate court decision years later in a collateral attack where a direct appeal 

was available.”). That characterization was novel and inconsistent with our collateralattack jurisprudence.8 

 

7

 It is unclear why the Hatcher Court viewed a challenge to the sufficiency of the petition 

as a suitable means for redressing the father’s claim of error in the adjudication—the trial 

court’s failure to establish by plea or trial any of the statutory bases for jurisdiction set forth 

at MCL 712A.2(b). The error in the adjudication occurred after the preliminary hearing, 

when the probable-cause determination was made; the father could not have appealed an 

error that had yet to occur. 

8 Hatcher overturned this Court’s decision in Fritts v Krugh, 354 Mich 97; 92 NW2d 604 

(1958). Fritts, id. at 115, had permitted a challenge to a termination order in a writ of 
 

 13 

Later decisions summarized the rule from Hatcher as barring a respondent-parent 

from challenging errors in the adjudicative phase in an appeal from an order terminating 

the respondent’s parental rights, unless the termination of rights occurs at the initial 

dispositional hearing. See In re SLH, 277 Mich App 662, 668-669; 747 NW2d 547 (2008).9

 

habeas corpus, a separate and collateral action from the child protective proceeding that 

resulted in termination. A brief detour about Fritts is in order, because it gives some 

context to Hatcher. While the Fritts Court found that the initial petition sufficiently alleged 

jurisdictional facts, and the trial court therefore “had jurisdiction . . . for purposes of 

hearing the neglect complaint,” id. at 111, the Court still concluded that the trial court 

lacked (or had been divested of) jurisdiction to terminate the petitioners’ parental rights 

because of insufficient factual support for the allegations in the complaint (petition), id. at 

115; see MCL 712A.2(b)(1). And while Fritts was a collateral attack on the trial court’s 

termination order, the Court acknowledged that the petitioners’ challenge was not based 

on a lack of personal or subject matter jurisdiction, id. at 120-121, but some other (and it 

seems, broader) concept of jurisdiction, id. at 122 (“We hold that the orders entered upon 

the record of this hearing . . . represented an erroneous concept of the power conveyed by 

statute upon the probate court sitting in juvenile division, and that, being based upon no 

evidence of permanent neglect, they represented a fundamental miscarriage of justice as to 

these petitioners and exceeded the statutory powers of the probate judge who entered 

them.”). Fritts was a true collateral attack; the dissent recognized this and criticized the 

Fritts majority for allowing “the use of the writ of habeas corpus as a substitute for statutory 

appeal . . . .” Id. at 145 (BLACK, J., dissenting) (quotation marks and citation omitted). 

 Here, as in Hatcher, there is no collateral proceeding—the respondents’ arguments 

are on direct appeal from the order of termination. So while the Hatcher Court’s desire to 

overrule Fritts’s procedurally anomalous holding—that a termination order can be (truly) 

collaterally attacked—is understandable, see Hatcher, 443 Mich at 444 (“Our ruling today 

severs a party’s ability to challenge a probate court decision years later in a collateral attack 

where a direct appeal was available.”), and its criticism of Fritts’ssubstantive jurisdictional 

holding is also sound, see id. at 440-443, Hatcher was not a collateral attack. It was a 

direct appeal of an (unpreserved) adjudicative error. 

9

 In SLH, 277 Mich App at 668, the Court of Appeals explained that Hatcher has no 

application when termination is sought in a petition filed before the adjudication, because 

“an adjudication cannot be collaterally attacked . . . [unless] a termination occurs following 

the filing of a supplemental petition for termination after the issuance of the initial 

dispositional order.” (Cleaned up.) 
 

 14 

III. ANALYSIS 

A. RESPONDENTS’ ADJUDICATORY PLEAS AND IN RE HATCHER 

The respondents believe that their due-process rights were violated because their 

pleas were not knowingly and voluntarily made. They object to the trial court’s failure to 

inform them that they had a right to a jury trial on the allegations in the petition, at which 

the Department would have to prove those allegations by a preponderance of the evidence 

and the respondents would be permitted to call their own witnesses and cross-examine 

those produced by the Department. The respondents also fault the trial court for its failure 

to advise them that their pleas could later be used as evidence to terminate their parental 

rights. And about Hatcher, the respondents argue that it was wrongly decided because it 

misunderstood child protective proceedings. We agree. 

The respondents have a fundamental right to direct the care, custody, and control of 

JF. See Sanders, 495 Mich at 415. And the Due Process Clause of the Fourteenth 

Amendment requires that, for a plea to constitute an effective waiver of a fundamental 

right, the plea must be voluntary and knowing. See In re Wangler, 498 Mich 911, 911 

(2015) (stating that “the manner in which the trial court assumed jurisdiction violated the 

respondent-mother’s due process rights” because the trial court failed to follow MCR 

3.971(C)(1) and (2) before accepting the respondent’s adjudicatory plea); see also People 

v Cole, 491 Mich 325, 332-333; 817 NW2d 497 (2012) (“For a plea to constitute an 

effective waiver of . . . rights, the Due Process Clause of the Fourteenth Amendment 

requires that the plea be voluntary and knowing.”). 

Our court rules reflect this due-process guarantee. MCR 3.971(C)(1) demands that 

the trial court ensure that a respondent’s plea be knowingly, understandingly, and 
 

 15 

voluntarily made before the court can accept it. And MCR 3.971(B) requires the trial court 

to advise the respondent, “on the record or in a writing that is made a part of the file,” of 

the allegations in the petition, the right to an attorney, the rights the respondent will be 

waiving by entering a plea, the consequences of that plea (including the possibility that the 

plea will “be used as evidence in a proceeding to terminate parental rights,” MCR 

3.971(B)(4)), and to provide advice about the respondent’s posttermination support 

obligations. 

The Department concedes that the trial court did not comply with these rules, 

violating the respondents’ due-process rights. Wangler, 498 Mich at 911. Recognizing 

that Hatcher would bar them from appealing this claim of error, the respondents ask us to 

revisit our decision in Hatcher and either overrule it or carve out (yet another) exception 

to its collateral-bar rule when application would prevent a respondent from vindicating a 

due-process violation. 

Hatcher made a foundational mistake; it erroneously applied the rule from Jackson 

City Bank & Trust Co v Fredrick, 271 Mich 538; 260 NW 908 (1935)—that a court’s 

exercise of jurisdiction cannot be collaterally attacked in a second proceeding—to what is 

a single, continual proceeding. 

In Jackson City Bank, 271 Mich at 544-545, we explained that 

[w]hen there is a want of jurisdiction over the parties, or the subject-matter, 

no matter what formalities may have been taken by the trial court, the action 

thereof is void because of its want of jurisdiction, and consequently its 

proceedings may be questioned collaterally as well as directly. They are of 

no more value than as though they did not exist. But in cases where the court 

has undoubted jurisdiction of the subject matter, and of the parties, the action 

of the trial court, though involving an erroneous exercise of jurisdiction, 

which might be taken advantage of by direct appeal, or by direct attack, yet 

the judgment or decree is not void though it might be set aside for the 
 

 16 

irregular or erroneous exercise of jurisdiction if appealed from. It may not 

be called in question collaterally. 

Put differently, the “collateral bar” rule generally prohibits a litigant from indirectly 

attacking a prior judgment in a later, separate action, unless the court that issued the prior 

judgment lacked jurisdiction over the person or subject matter in the first instance. See In 

re Ives, 314 Mich 690, 696; 23 NW2d 131 (1946). Instead, the litigant must seek relief by 

reconsideration of the judgment from the issuing court or by direct appeal.10

Hatcher applied the collateral-bar rule to conclude that a respondent who appeals a 

defect in the adjudicative phase at the end of the child protective proceeding (in an appeal 

from an order terminating parental rights) is “collaterally” attacking that very same child 

protective proceeding. But that holding failed to recognize that “[a] child protective 

proceeding is ‘a single continuous proceeding’ ” that begins with a petition, proceeds to an 

adjudication, and—unless the family has been reunified—ends with a determination of 

whether a respondent’s parental rights will be terminated. In re Hudson, 483 Mich 928, 

935 (2009) (CORRIGAN,J., concurring), quoting In re LaFlure, 48 Mich App 377, 391; 210 

NW2d 482 (1973). 

Collateral-bar jurisprudence makes the Hatcher Court’s mistake obvious. The rule 

bars a litigant from challenging a ruling or judgment in a later and separate case. Thus, in 

 

10 Jackson City Bank’s general rule prohibiting collateral attacks on a court’s final 

judgment is well settled and common across jurisdictions. See Hazel-Atlas Glass Co v 

Hartford-Empire Co, 322 US 238, 244; 64 S Ct 997; 88 L Ed 1250 (1944) (“Federal courts, 

both trial and appellate, long ago established the general rule that they would not alter or 

set aside their judgments after the expiration of the term at which the judgments were 

finally entered. . . . This salutary general rule springs from the belief that in most instances 

society is best served by putting an end to litigation after a case has been tried and judgment 

entered.”). 
 

 17 

Jackson City Bank, 271 Mich at 546, we held that the plaintiffs, heirs of the defendant’s 

deceased second husband, were barred from asserting claims that challenged the validity 

of the defendant’s divorce from her first. The other cases Hatcher cited agree. See Life 

Ins Co of Detroit v Burton, 306 Mich 81, 84-85; 10 NW2d 315 (1943) (defendant-surety 

barred from seeking reformation of a surety bond in a later collection action brought by the 

plaintiff-creditor); Edwards v Meinberg, 334 Mich 355; 54 NW2d 684 (1952) (error in 

venue did not divest the issuing court of subject matter jurisdiction, so the plaintiff was 

barred from asserting that the earlier judgment against him was invalid). In all these cases, 

the party seeking to challenge the earlier ruling or judgment did so in a separate, later 

proceeding (and even in a different forum). 

Nor did Hatcher explain its novel application of the rule. The Hatcher Court held 

that the trial court’s error in the adjudication did not deprive the court of subject matter 

jurisdiction, as the Court of Appeals thought, but merely affected “the procedure by which 

the probate court proceeded after it had established subject matter jurisdiction on the basis 

of a validly filed petition.” Hatcher, 443 Mich at 438. So far, so good. But Hatcher’s 

next step is unexplained; it went on to apply the collateral-bar rule from Jackson City Bank 

to bar appellate review of the error with no reasoning to make understandable why 

appealing the claim of error in the adjudication amounted to a collateral attack. 

More confusing still, the Court’s prescription for what the respondent-father should 

have done contradicts its conclusion. The Court reasoned that the father could have raised 

the adjudication error at one of the dispositional review hearings or even in a motion for 
 

 18 

rehearing from the order terminating parental rights. Id. at 436.11 But this rationale 

conflicts with the Court’s conclusion that his appeal raising that same claim amounted to a 

collateral attack. True, a party’s failure to timely assert a right in the trial court generally 

means that any resulting error will be treated as “unpreserved” if challenged on appeal. 

See People v Carines, 460 Mich 750; 597 NW2d 130 (1999); People v Grant, 445 Mich 

535; 520 NW2d 123 (1994). But issue preservation dictates the appellate standard of 

review; it does not transform direct review into collateral attack. See Carines, 460 Mich 

at 761-764 (discussing the plain-error doctrine). 

Hatcher was wrongly decided. 

But we don’t disrupt precedent whenever that’s the case. We have to consider 

whether Hatcher’s precedential value compels us to retain its rule of decision under the 

principles of stare decisis. Coldwater v Consumers Energy Co, 500 Mich 158, 172; 895 

NW2d 154 (2017) (stating that the mere fact that “a case was wrongly decided, by itself, 

does not necessarily mean that overruling it is appropriate”). The stare decisis analysis 

should not be “ ‘applied mechanically,’ ” id. at 173 (citation omitted), but generally we 

consider these principles: “whether the decision defies practical workability, whether 

reliance interests would work an undue hardship were the decision to be overruled, and 

whether changes in the law or facts no longer justify the decision,” id. 

This Court’s growing list of “exceptions” to Hatcher deserves emphasis at the front 

end of this analysis. See, e.g., Sanders, 495 Mich 394 (reversing a termination in which 

 

11 The Court also reasoned that the father could have challenged the sufficiency of the 

petition or the probable-cause determination. Hatcher, 443 Mich at 438. But as discussed 

above at note 7, those procedural steps occurred well before the trial court’s error. 
 

 19 

one parent was improperly adjudicated as unfit and holding that the one-parent doctrine is 

unconstitutional); In re Mays, 490 Mich 993 (2012) (reversing a termination after the trial 

court made an erroneous factual finding during the adjudication phase); In re Mason, 486 

Mich 142; 782 NW2d 747 (2010) (reversing a termination based on the failure to facilitate 

the respondent’s involvement and participation during the adjudication and dispositional 

phases); In re Hudson, 483 Mich 928 (remanding when the trial court failed to advise the 

respondent that her plea could be used to terminate her parental rights); In re Mitchell, 485 

Mich 922 (2009) (same); In re Jones, 499 Mich 862 (2016) (reversing a parental 

termination order after the Court of Appeals held that the respondent’s claims were barred 

by Hatcher); Wangler, 498 Mich at 911 (same). While we overrule Hatcher only now, if 

these exceptions haven’t fully swallowed the rule, it is surely most of the way through the 

chewing process. The resulting disruption affects our analysis of each of the stare decisis 

principles. To those now. 

First, a rule of decision defies practical workability if it has proved difficult to apply 

or implement. See, e.g., Montejo v Louisiana, 556 US 778, 792; 129 S Ct 2079; 173 L Ed 

2d 955 (2009). On first blush, Hatcher might appear easy to apply—an appellate court 

reviewing a termination decision should simply reject any claims relating to the 

adjudication. But that has not been our experience. Instead, the number of exceptions to 

Hatcher is good evidence that its rule defies simple application, especially when a 

respondent’s due-process rights are violated in the adjudication. And if history is our 

guide, trying to craft yet another exception to Hatcher here will not end the matter. This 

factor does not favor keeping Hatcher.
 

 20 

We also consider reliance interests, including “whether reliance interests would 

work an undue hardship were the decision to be overruled . . . .” Coldwater, 500 Mich at 

173. The question is “whether the previous decision has become so embedded, so accepted, 

so fundamental, to everyone’s expectations that to change it would produce not just 

readjustments, but practical real-world dislocations.” Id. (quotation marks and citation 

omitted). Hatcher has scant application; it just imposes procedural limitations on a 

respondent’s ability to challenge errors in the adjudication. Given this, overruling Hatcher 

would not cause “practical, real-world dislocations” but simply “readjustments” in 

litigation. 

The litigants and practitioners who had to decide whether to raise a claim of error 

within the procedural restrictions of Hatcher had little stability, given our growing 

exceptions to it. And lawyers and litigants are not similarly situated. Lawyers know both 

about trial court error and Hatcher’s rule (and its exceptions), but litigants are likely aware 

of neither. Take this case: the trial court’s error meant that the respondents were never told 

what rights they were giving up, nor were they advised that they couldn’t appeal the dueprocess violation that resulted from their defective plea unless they did so immediately. 

Finally, we consider whether changes in the law or facts no longer justify the 

decision. See Coldwater, 500 Mich at 174. Our growing list of Hatcher cutouts favors 

overruling it. Continuing Hatcher’s death by a thousand cuts would leave litigants and 

courts unsure of whether they can appeal an adjudicative error in an appeal from an order 

terminating parental rights. The erosion of the rule by its exceptions has created 

uncertainty; we should be providing clarity. 
 

 21 

Rather than create yet another exception to Hatcher, we overrule it. We are mindful 

of the finality concerns that motivated the Court’s decision to adopt the rule. See Hatcher, 

443 Mich at 444 (explaining that the Court’s holding would “provide repose to [those] who 

rely upon the finality of probate court decisions”).12 But we must balance the interest in 

finality against the Legislature’s intent as expressed in the juvenile code to support children 

in their own homes, see MCL 712A.1(3) (“This chapter shall be liberally construed so that 

each juvenile coming within the court’s jurisdiction receives the care, guidance, and 

control, preferably in his or her own home, conducive to the juvenile’s welfare and the best 

interest of the state.”), and the protection of the constitutional rights of families. “The right 

to parent one’s children is essential to the orderly pursuit of happiness by free men and is 

perhaps the oldest of the fundamental liberty interests[.]” Sanders, 495 Mich at 409, 

quoting Meyer v Nebraska, 262 US 390, 399-400; 43 S Ct 625; 67 L Ed 1042 (1923), and 

Troxel v Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (opinion by 

O’Connor, J.) (cleaned up). 

And “there will normally be no reason for the State to inject itself into the private 

realm of the family” because “there is a presumption that fit parents act in the best interests 

of their children.” Troxel, 530 US at 68. Thus, “[w]hen a child is parented by a fit parent, 

the state’s interest in the child’s welfare is perfectly aligned with the parent’s liberty 

interest.” Sanders, 495 Mich at 416. For that reason, it is the “[a]djudication [that] protects 

 

12 Although we overrule Hatcher, we agree with its criticism of Fritts. An error in the 

adjudication (the error in Fritts, Hatcher, and here) will not, as a general matter, provide a 

parent with grounds to collaterally attack the order of termination in a later, separate 

proceeding, as the Court permitted in Fritts. But Hatcher’s prescription of prohibiting 

direct appellate review was a misfire. 
 

 22 

the parents’ fundamental right to direct the care, custody, and control of their children, 

while also ensuring that the state can protect the health and safety of the children.” Id. at 

422. 

But Hatcher disrupts the careful balancing of interests in our juvenile code by 

preventing judicial review of meritorious claims of defects in the adjudication. That is, it 

prevents review of mistakes in the government process that permanently separates a parent 

from a child. A parent’s only remedy under Hatcher is by way of an interlocutory appeal, 

disincentivizing him or her from timely cooperating with the Department and further 

delaying a final determination. Hatcher disserves parents, their children, and the state. It’s 

time to disavow it. 

On to the merits. The parties agree that adjudication errors raised after the trial court 

has terminated parental rights are reviewed for plain error. See Mitchell, 485 Mich at 922 

(reviewing for plain error the trial court’s failure to timely appoint counsel for the 

respondent and failure to advise the respondent that his plea could later be used in a 

proceeding to terminate his parental rights); Hudson, 483 Mich at 928 (same). The 

respondents must establish that (1) error occurred; (2) the error was “plain,” i.e., clear or 

obvious; and (3) the plain error affected their substantial rights. Carines, 460 Mich at 763. 

And the error must have “seriously affect[ed] the fairness, integrity or public reputation of 

judicial proceedings[] . . . .” Id. (citation and quotation marks omitted; alteration in 

original).13 

 

13 The final requirement of plain-error review is also satisfied “when the plain, forfeited 

error resulted in the conviction of an actually innocent defendant,” Carines 460 Mich at 

763, which reflects plain error’s origin as a rule of federal criminal procedure, see United 

States v Olano, 507 US 725; 113 S Ct 1770; 123 L Ed 2d 508 (1993); FR Crim P 52. We 
 

 23 

The Department acknowledges that the first and second prongs are satisfied. Due 

process and our court rules require a trial court to advise respondents-parents of the rights 

that they will waive by their plea and the consequences that may flow from it. The court 

erred by failing to advise these respondents of the consequences of their pleas and the rights 

they were giving up; those errors were plain. 

But the Department believes that the errors did not affect the respondents’ 

substantial rights because it would have been able to prove the allegations had the case 

proceeded to an adjudication trial. This misses the point; the constitutional deficiencies 

here are not forgiven by what might have transpired at trial. The respondents’ pleas were 

not knowingly, understandingly, and voluntarily made. Wangler, 498 Mich at 911 (“[W]e 

conclude that the trial court violated MCR 3.971(C)(1) by failing to satisfy itself that the 

respondent-mother’s plea was knowingly, understandingly, and voluntarily made, and 

violated MCR 3.971(C)(2) by failing to establish support for a finding that one or more of 

the statutory grounds alleged in the petition were true. Therefore, the manner in which the 

trial court assumed jurisdiction violated the respondent-mother’s due process rights.”). 

The respondents were deprived of their fundamental right to direct the care, custody, 

and control over JF based on those invalid pleas. And the invalid pleas relieved the 

Department of its burden to prove that the respondents were unfit at a jury trial, with all of 

its due-process protections. See Sanders, 495 Mich at 405 (explaining that in an 

 

have applied Carines’s plain-error test in appeals from juvenile proceedings. See, e.g., 

Mitchell, 485 Mich at 922. The Court of Appeals has as well. See In re VanDalen, 293 

Mich App 120, 135; 809 NW2d 412 (2011). But we did so without explanation. We apply 

the test here because neither party has argued for a different standard for juvenile 

proceedings despite the differences between these cases and criminal cases. 
 

 24 

adjudication trial the respondent “is entitled to a jury, . . . the rules of evidence generally 

apply, . . . and the petitioner has the burden of [proof]”). These constitutional deprivations 

affected the very framework within which respondents’ case proceeded. There was error, 

it was plain, and it affected the respondents’ substantial rights. See Mitchell, 485 Mich at 

922; Hudson, 483 Mich at 928. 

Finally, we conclude that the error here seriously affected the fairness, integrity, or 

public reputation of judicial proceedings. The trial court did not advise the respondents 

that they were waiving any of the important rights identified in MCR 3.971(B)(3). And it 

failed to advise the respondents of the consequences of entering their pleas. MCR 

3.971(B)(4). This failure resulted in the respondents’ constitutionally defective pleas and 

undermined the foundation of the rest of the proceedings. The defective pleas allowed the 

state to interfere with and then terminate the respondents’ fundamental right to parent their 

child. Due process requires more: either a plea hearing that comports with due process and 

the court rule or, if respondents choose, a trial. MCR 3.971; MCR 3.972. We thus vacate 

the trial court’s order of adjudication. 

B. THE TRIAL COURT’S IN CAMERA INTERVIEW 

The respondents also believe that their due-process rights were violated by the trial 

court’s in camera interview of JF. See In re HRC, 286 Mich App 444, 455-456; 781 NW2d 

105 (2009). They have asked us to vacate the court’s order terminating parental rights and 

remand the case to a different trial judge—the Court of Appeals’ remedy in HRC, which 

held that “the use of unrecorded, in camera interviews in termination proceedings violates 

parents’ due process rights.” Id. at 455. 
 

 25 

This Court has never addressed the propriety of a trial court conducting an in camera

interview of the subject child in the context of a child protective proceeding. The HRC

panel’s holding reflected its concern that in camera interviews might unduly influence the 

trial court’s factual findings and termination decision, and because the process provides no 

opportunity for cross-examination by respondents or their counsel, the practice also 

prejudices a respondent’s ability to impeach the witness and forecloses meaningful 

appellate review. Id. at 455-456. The inability to un-ring the bell required a different judge 

on remand. Id. at 457 (“[B]ecause we do not know what information the trial court learned 

during those interviews, we cannot ascertain whether the trial court would be able to set 

aside any information obtained in making a new determination . . . .”). 

The Department does not argue that HRC was wrongly decided. It argues that the 

respondents waived this due-process claim when their counsel supported the trial court’s 

suggestion. 

On the second day of the termination hearing, the respondents’ attorneys indicated 

that they had no further witnesses to call. This prompted the following exchange: 

The Court: I have a question for counsel. I’m inclined to speak with 

[JF]. I mean, I’ve heard a lot of description about it and the counsel who 

represent her parents may need to talk to the parents. It’s not specifically 

provided for. In the statute where it is in the domestic relations when there 

is a divorce or custody matter, and I’ve done dozens, if not hundreds of those, 

and when I do it I have somebody in there with me, just because I think that’s 

a better policy. Anyone has a right to object, so I’m just contemplating is 

that all right or is there an opposition to it? 

Ms. Breuker [counsel for the Department]: In this particular case, I 

don’t necessarily have a problem with it. 

The Court: All right. I wouldn’t do it in most, but—Mr. Leonardson? 
 

 26 

Mr. Leonardson [counsel for respondent-father]: Your Honor, I would 

actually request it. I think it’s important in this particular case because there 

is such a strong bond with the family, and that bond, part of it is because of 

[JF’s] needs through her entire life. 

The Court: Sure. But you don’t object to that? 

Mr. Leonardson: No, I certainly don’t. 

The Court: Mr. Gelow? 

Mr. Gelow [counsel for respondent-mother]: We don’t object. We 

encourage the Court to talk with [JF]. 

The court then discussed the logistics of arranging to speak to JF. After reviewing 

its docket, the court indicated to its clerk that it would speak to JF immediately before one 

of the respondents’ upcoming parenting-time visits14 and that it might conduct the 

interview in chambers if there were “a lot of people” in the courtroom. This logistical 

discussion involved only the court, its clerk, and the Department; the respondents and their 

lawyers were not included. On the basis of this record, the Court of Appeals agreed with 

the Department that the respondents had waived any challenge relating to the interview. 

Ferranti, unpub op at 7. 

We disagree. Waiver is “the intentional relinquishment or abandonment of a known 

right,” as distinct from a litigant’s failure to timely assert that right (forfeiture). Carines, 

460 Mich at 762 n 7 (quotation marks and citation omitted). Here, the respondents’ 

agreement to the general idea of the court speaking to JF did not waive their right to have 

 

14 Although the respondents and JF enjoyed unsupervised visits without incident 

throughout the adjudication and dispositional phase, the court modified its initial visitation 

order in January 2017, shortly after it allowed the Department to file the supplemental 

petition seeking termination of the respondents’ parental rights. By the time of the 

termination hearing, the respondents’ parenting time was limited to Department-supervised 

visits. 
 

 27 

that interview comport with due process. The respondents endorsed only the court’s initial 

proposal that the court was “inclined to speak to [JF].” But the court never sought—and 

the respondents never gave—their agreement about how that conversation would take 

place. 

Those details matter. It is not apparent from the record whether the respondents 

thought they were agreeing to an on-the-record interview with counsel and with the 

opportunity for their own examination of JF, or if the respondents knew that the court’s 

process would entail none of that.15 The record supports only that the respondents were 

consenting to a conversation between the judge and JF, with the specifics yet to be 

determined. Because the court could have conducted that interview in a way that would 

not have triggered due-process concerns,16 we cannot conclude that the respondents’ 

support of the court’s general suggestion amounted to the “intentional relinquishment or 

abandonment of a known right.” Carines, 460 Mich at 762 n 7 (quotation marks and 

citation omitted). 

We agree with the Court of Appeals that “the use of unrecorded, in camera 

interviews in termination proceedings violates parents’ due process rights.” HRC, 286 

Mich App at 455. 

 

15 While the Department suggests in its briefing that the respondents were aware of the 

procedure the court intended to use, it cites no record support. And the record seems to 

contradict this claim. The court discussed its plans only after soliciting the respondents’ 

support, and then only in vague terms. And at the final day of the termination hearing, 

counsel for the respondent-father, while presenting his closing argument, referred to the 

prospect of the court speaking with JF. The trial court promptly interjected to inform 

counsel that, much to his surprise, the trial court had already interviewed her. 

16 Most obviously, the court might have examined JF on the record, in the presence of the 

parties and counsel, and with the opportunity for examination of the witness. 
 

 28 

As the HRC panel explained, there is “nothing in the juvenile code, the caselaw, the 

court rules, or otherwise [that] permits a trial court presiding over a termination of parental 

rights case to conduct in camera interviews of the children for purposes of determining 

their best interests.” Id. at 454. And while we sympathize with the court’s apparent 

concern that testifying on the record and in the presence of parties and counsel would have 

caused discomfort to JF, that interest does not outweigh the respondents’ interest in having 

any testimony on the record, given “the fundamental parental rights involved in termination 

proceedings, the risk of an erroneous deprivation of those rights given the in camera 

procedure, and the fact that the information is otherwise easily obtained . . . .” Id. at 456; 

see also Sanders, 495 Mich at 410-411 (discussing the three-part balancing test used to 

determine the constitutional sufficiency of procedures when the state seeks to interfere with 

a parent’s rights). On remand a different judge must preside.17

IV. CONCLUSION 

We hold that an appeal of an adjudication error in an appeal from an order 

terminating parental rights is not a collateral attack. The collateral-bar rule does not apply 

within one child protective case, barring some issues from review. Hatcher was wrongly 

decided, and we overrule it. 

The trial court violated the respondents’ due-process rights when it accepted the 

respondents’ pleas without advising them of their rights or ensuring that the respondents’ 

 

17 The Department argues that the respondents waived this claim; it makes no argument 

about what standard should apply if the error wasn’t waived. The Court of Appeals in HRC 

reviewed for plain error; the panel’s analysis did not depend on the respondent-parent 

showing outcome-determinative error, presumably because the nature of the trial court’s 

error makes that impossible. See HRC, 286 Mich App at 456-457. 
 

 29 

pleas were knowingly, understandingly, and voluntarily made. Wangler, 498 Mich at 911; 

MCR 3.971. Because it was these legally erroneous pleas that gave the trial court the 

dispositional authority to terminate the respondents’ parental rights, we vacate that order, 

and the court’s order of adjudication, and remand this case to the trial court for further 

proceedings consistent with this opinion. And the trial court’s improper in camera

interview of JF requires that a different judge preside on remand. 

 Bridget M. McCormack 

 David F. Viviano 

 Richard H. Bernstein 

 Elizabeth T. Clement 
S T A T E O F M I C H I G A N 

SUPREME COURT 

In re FERRANTI, Minor. 

 No. 157907 

 

MARKMAN, J. (dissenting). 

I respectfully dissent from the majority’s reversal of the judgment of the Court of 

Appeals. The majority in the process overrules In re Hatcher, 443 Mich 426; 505 NW2d 

834 (1993), which held that an adjudication cannot be collaterally attacked following an 

order terminating parental rights. I would not overrule Hatcher because I believe that it 

was correctly decided and that no sound reason to alter its common-law rule has been 

presented. Indeed, both parties and the amici agree that it makes sense to require a timely 

appeal of the adjudication, which is all that Hatcher does, and this Court has just recently 

adopted court rule amendments that essentially incorporate Hatcher into our court rules.1

 

The majority nevertheless chooses in this case to overrule Hatcher, which would allow 

adjudication challenges to be brought years after the adjudication but for these same 

amendments. Because I believe the Court of Appeals correctly held that: (a) respondents 

 

1

 The Court entered an order amending MCR 3.965, MCR 3.971, MCR 3.972, MCR 3.973, 

and MCR 3.993 immediately before the release of this opinion. Therefore, citations of 

court rules in this opinion refer to the court rules as amended on June 12, 2019. References 

to the court rules as they existed before adoption of these amendments will be indicated 

using the term “former” preceding the court rule number. Given that the “former” court 

rules were the ones in existence at the time of the adjudication in this case, they are the 

ones applicable to this case. 
2 

cannot collaterally attack the instant adjudication after their parental rights have been 

terminated, (b) respondents waived the issue pertaining to the interview of the child, and 

(c) any error on the trial court’s part in visiting respondents’ home was harmless, I would 

affirm the judgment of the Court of Appeals. 

I. BACKGROUND 

The child whose future is at issue here, JF, was born in 2003 and has several serious 

medical issues, including spina bifida, stage three chronic kidney disease, and a neurogenic 

bladder (a dysfunction caused by neurological damage). As a result of a lack of innervation 

to the lower half of her body, she has a stoma in her umbilicus to catheterize her bladder 

and another stoma in the lower quadrant to flush her bowel. She is unable to walk 

independently and therefore is mobile exclusively by using a wheelchair or walker or by 

crawling. Respondents-parents live in a small mobile home with JF and three other 

children, and they have a dog and cats. Their home is cluttered, and the presence of animal 

fecal matter and urine on the floor is particularly problematic for JF because she is forced 

to crawl around the home given the small size of the home and the clutter. This exposes 

her to organisms that lead to frequent urinary tract infections, which, in turn, affects her 

kidneys and is likely to hasten the time at which she will require a kidney transplant.2

According to the 2015 petition to remove JF from her home and place her in foster 

care under the supervision of petitioner, the Department of Health and Human Services 

(the Department), as far back as 2013, there was substantiated medical neglect on the part 

 

2

 When JF was removed from respondents’ home, she had medical laboratory work 

performed that revealed that she had a urinary tract infection caused by two organisms that 

are typically found inside the mouths of cats and dogs. 
3 

of respondents, including missed medical appointments and the failure to appropriately 

care for JF’s medical needs. Later in 2013, physical neglect due to filthy home conditions 

was substantiated. All the children were placed in foster care, but the case was terminated 

in late 2014 following respondents’ eventual compliance with the trial court’s 

requirements. In 2015, JF’s school contacted Child Protective Services (CPS), reporting 

that JF often appeared at school with a foul smell of body odor and urine and that she often 

ran out of catheters. JF was therefore prevented from catheterizing herself on a consistent 

schedule, which is required to avoid urinary tract infections. A CPS caseworker went to 

the home, where she saw animal feces on the hallway carpet, dirty dishes on the kitchen 

counter and filling the sink, and random clutter throughout the home. There were pathways 

through the clutter to allow the family to move about, but the paths were insufficiently 

wide to allow navigation by a wheelchair or walker. The condition of the home required 

JF to crawl in order to get from room to room. The bathroom toilet had fecal matter both 

inside and outside of the toilet bowl, and the entire home reeked of human and animal 

urine. There was no way for JF to avoid dragging her legs and feet through dirt and animal 

feces. Respondents had missed JF’s nephrology appointments for the prior three months, 

and medications for her kidneys had not been refilled for six months. She had not seen her 

orthopedic specialist for almost a year, even though she was supposed to participate in 

twice-weekly physical therapy sessions. Recommended six-month visits with a urologist 

had also been missed. 

The petition to remove JF from her home in this case was filed on October 29, 2015. 

A probable-cause hearing was held on the same day, and the trial court authorized JF’s 

removal. Preliminary hearings were then held on November 3, 2015, and November 17, 
4 

2015, and the trial court found probable cause to authorize the petition. On December 21, 

2015, respondents admitted to failing to timely fill JF’s prescriptions, and the trial court 

relied on these admissions to exercise jurisdiction. A dispositional hearing was held on 

January 12, 2016, at which time a treatment plan was adopted and support services were 

arranged. Review hearings were subsequently held on April 12, 2016, and on July 12, 

2016. 

At a hearing on October 18, 2016, it was reported that support services were 

terminated because respondents had not made progress and the condition of their home had 

not changed. The participating social services worker recommended termination of 

parental rights because the conditions in the home had not significantly improved. JF’s 

guardian ad litem also recommended terminating respondents’ parental rights. The trial 

judge visited the home himself, although he did not make a record of his findings. He 

authorized a petition for termination of parental rights, and hearings were held on May 10, 

2017, June 20, 2017, and July 5, 2017. The trial judge indicated that he would like to speak 

with JF. When asked if the parties had any objections, respondent-father’s attorney said 

that he would “actually request it” and respondent-mother’s attorney said that he would 

“encourage the court to talk with [JF].” The trial court spoke with JF off the record and 

terminated respondents’ parental rights on August 7, 2017. 

Respondents appealed in the Court of Appeals, contending that the trial court lacked 

jurisdiction to terminate their parental rights because it had failed to follow court rules at 

the adjudication stage of the proceedings, i.e., the trial court failed to inform respondents 

of the rights they would be waiving if their pleas admitting to the jurisdiction of the court 

were accepted, MCR 3.971(B)(3), and failed to inform them of the consequences of their 
5 

plea, MCR 3.971(B)(4). They also argued that the trial court erred by personally visiting 

their home and interviewing the child. 

The Court of Appeals affirmed the termination. In re Ferranti, unpublished per 

curiam opinion of the Court of Appeals, issued May 10, 2018 (Docket Nos. 340117 and 

340118). It held that, even assuming that the trial court failed to follow the proper 

procedures under former MCR 3.971(B)3

 when taking respondents’ pleas, respondents 

failed to timely appeal and could not collaterally attack the adjudication after the trial court 

had terminated their parental rights. Id. at 6. The Court of Appeals also held that although 

the trial court erred by personally visiting and viewing respondents’ home, reversal was 

not warranted because respondents did not demonstrate that the error in any way affected 

their substantial rights. Id. at 8-9. Finally, it held that respondents waived their challenge 

to the court’s in camera interview of JF. Id. at 9. This Court subsequently ordered and 

heard oral argument on whether to grant respondents’ application for leave to appeal. In 

re Ferranti, 502 Mich 906 (2018). 

II. STANDARDS OF REVIEW 

The collateral-attack rule is a common-law rule. Note, Collateral Bar and 

Contempt: Challenging a Court Order After Disobeying It, 88 Cornell L Rev 215, 219 n 15 

(2002). The interpretation and applicability of a common-law rule is a question of law that 

is reviewed de novo. Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich 304, 310; 901 

NW2d 577 (2017). “[W]hen it comes to alteration of the common law, the traditional rule 

 

3

 See MCR 3.971(B), as amended March 28, 2018, 501 Mich ___ (2018), effective May 1, 

2018. 
6 

must prevail absent compelling reasons for change.” Price v High Pointe Oil Co, Inc, 493 

Mich 238, 260; 828 NW2d 660 (2013). In addition, whether due-process concerns may 

override the collateral-attack rule poses a question of constitutional law that is reviewed de 

novo. Winkler v Marist Fathers of Detroit, Inc, 500 Mich 327, 333; 901 NW2d 566 (2017). 

Finally, the interpretation of statutes and court rules is also a question of law that is 

reviewed de novo. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017). 

III. ANALYSIS 

A. HATCHER

The trial court clearly erred in failing to abide by MCR 3.971(B)(3) and (4) at the 

adjudication proceeding, i.e., it failed to apprise respondents of their rights that they would 

be waiving if their pleas admitting to the jurisdiction of the court were accepted and failed 

to apprise them of the consequences of their pleas.4

 However, respondents did not appeal 

 

4

 MCR 3.971 provides, in pertinent part: 

(B) Advice of Rights and Possible Disposition. Before accepting a 

plea of admission or plea of no contest, the court must advise the respondent 

on the record or in a writing that is made a part of the file: 

* * * 

(3) that, if the court accepts the plea, the respondent will give up the 

rights to 

(a) trial by a judge or trial by a jury, 

(b) have the petitioner prove the allegations in the petition by a 

preponderance of the evidence, 

(c) have witnesses against the respondent appear and testify under 

oath at the trial, 
7 

the adjudication until after the trial court had terminated their parental rights, nearly two 

years after the adjudication. This Court has held that such collateral attacks are 

impermissible. Hatcher, 443 Mich at 437. That is, Hatcher held that a parent cannot wait 

to challenge the adjudication until after the parent’s parental rights have been terminated. 

As we recognized, “If such a delayed attack were always possible, decisions of the probate 

court would forever remain open to attack, and no finality would be possible.” Id. at 440 

(quotation marks and citation omitted). Accordingly, Hatcher held: 

Our ruling today severs a party’s ability to challenge a probate court decision 

years later in a collateral attack where a direct appeal was available. It should 

provide repose to adoptive parents and others who rely upon the finality of 

probate court decisions. [Id. at 444.] 

As this Court recently explained in In re Sanders, 495 Mich 394, 404; 852 NW2d 

524 (2014): 

In Michigan, child protective proceedings comprise two phases: the 

adjudicative phase and the dispositional phase. Generally, a court determines 

whether it can take jurisdiction over the child in the first place during the 

adjudicative phase. Once the court has jurisdiction, it determines during the 

dispositional phase what course of action will ensure the child’s safety and 

well-being. [Citations omitted.] 

Child protective proceedings begin with the filing of a petition. MCR 3.961. The trial 

court must decide at that juncture whether to authorize the petition, which is done “upon a 

 

(d) cross-examine witnesses, and 

(e) have the court subpoena any witnesses the respondent believes 

could give testimony in the respondent’s favor; 

(4) of the consequences of the plea, including that the plea can later 

be used as evidence in a proceeding to terminate parental rights if the 

respondent is a parent. 
8 

showing of probable cause, unless waived, that one or more of the allegations in the petition 

are true and fall within MCL 712A.2(b).” MCR 3.965(B)(12). If the court authorizes the 

petition, the case then proceeds to the adjudicative phase, in which the court must 

determine, by plea or trial, whether one or more of the statutory grounds alleged in the 

petition have been proved by a preponderance of the evidence. MCR 3.971; MCR 

3.972(E). Once the trial court determines that one or more of the statutory grounds alleged 

in the petition have been proved by a preponderance of the evidence, the respondent has 

been adjudicated and the court proceeds to the dispositional phase. 

The dispositional phase consists of review hearings and orders imposing courses of 

action that will ensure the child’s safety and well-being. “A dispositional hearing is 

conducted to determine what measures the court will take with respect to a child properly 

within its jurisdiction and, when applicable, against any adult, once the court has 

determined following trial, plea of admission, or plea of no contest that one or more of the 

statutory grounds alleged in the petition are true.” MCR 3.973(A). “[A]n order of 

disposition placing a minor under the supervision of the court or removing the minor from 

the home” is “appealable to the Court of Appeals by right[.]” Former MCR 3.993(A)(1).5

 

“[T]he dispositional phase ends with a permanency planning hearing, which results in 

either the dismissal of the original petition and family reunification or the court’s ordering 

[the Department] to file a petition for the termination of parental rights.” Sanders, 495 

Mich at 407. 

 

5

 See MCR 3.993(A)(1), as adopted February 4, 2003, 467 Mich cccxxxiii (2003), effective 

May 1, 2003. 
9 

As this Court has explained, “[T]he probate court’s subject matter jurisdiction is 

established when the action is of a class that the court is authorized to adjudicate, and the 

claim stated in the complaint is not clearly frivolous.” Hatcher, 443 Mich at 437. That is, 

formal jurisdiction is “established by pleadings, such as the petition,” not by the evidence. 

Id. at 438; see also id. at 443 (“That the evidence failed to support the petition did not affect 

the jurisdiction of the court, in the proper sense of the term, to hear the cause and to make 

the order.”) (quotation marks and citation omitted). 

What the court does in response to the petition represents the exercise of the court’s 

jurisdiction. If the trial court errs while exercising its jurisdiction, this does not affect the 

court’s subject matter jurisdiction itself. Id. at 437 (“Procedural errors that may have 

occurred did not affect the probate court’s subject matter jurisdiction.”). As we explained 

in Hatcher, 443 Mich at 438-439: 

Want of jurisdiction must be distinguished from error in the exercise 

of jurisdiction. Where jurisdiction has once attached, mere errors or 

irregularities in the proceedings, however grave, although they may render 

the judgment erroneous and subject to be set aside in a proper proceeding for 

that purpose, will not render the judgment void, and until set aside it is valid 

and binding for all purposes and cannot be collaterally attacked. Error in the 

determination of questions of law or fact upon which the court’s jurisdiction 

in the particular case depends, the court having general jurisdiction of the 

cause and the person, is error in the exercise of jurisdiction. Jurisdiction to 

make a determination is not dependent upon the correctness of the 

determination made. [Quotation marks and citations omitted.] 

While “lack of subject matter jurisdiction can be collaterally attacked[,] . . . the exercise of 

that jurisdiction can be challenged only on direct appeal.” Id. at 439. To be precise, the 

exercise of jurisdiction “cannot . . . be challenged years later in a collateral attack.” Id. at 

439-440 (quotation marks and citation omitted); see also In re Gazella, 264 Mich App 668, 
10 

679-680; 692 NW2d 708 (2005) (“Matters affecting the court’s exercise of its jurisdiction 

may be challenged only on direct appeal of the jurisdictional decision, not by collateral 

attack in a subsequent appeal of an order terminating parental rights.”);6 In re SLH, 277 

Mich App 662, 668; 747 NW2d 547 (2008) (“Ordinarily, an adjudication cannot be 

collaterally attacked following an order terminating parental rights.”). 

In SLH, 277 Mich App at 668-669, 669 n 13, the Court of Appeals explained that 

an adjudication challenge following an order terminating parental rights is not a collateral 

attack when termination occurred at the initial disposition: 

Ordinarily, an adjudication cannot be collaterally attacked following 

an order terminating parental rights. That is true, however, only when a 

termination occurs following the filing of a supplemental petition for 

termination after the issuance of the initial dispositional order. If termination 

occurs at the initial disposition as a result of a request for termination 

contained in the original, or amended, petition for jurisdiction, then an attack 

on the adjudication is direct and not collateral, as long as the appeal is from 

an initial order of disposition containing both a finding that an adjudication 

was held and a finding that the children came within the jurisdiction of the 

court.13 

13 . . . [B]ecause an initial order of disposition is the first order appealable as 

of right, an appeal of the adjudication following the issuance of an initial 

dispositional order is not a collateral attack on the initial adjudication, but a 

direct appeal, notwithstanding that a termination of parental rights may have 

occurred at the initial dispositional hearing. 

 

6

 In Gazella, 264 Mich App at 680, the Court of Appeals asserted: 

As noted earlier, the original order of disposition entered June 2, 2003, and 

filed June 5, 2003, stated that an adjudication was held, that the children were 

found to come within the jurisdiction of the court, and that they were placed 

in out-of-home care. That is the order that was appealable as of right to 

challenge the adjudication. By not appealing that order, respondent lost her 

right to challenge the court’s exercise of jurisdiction. 
11 

Essentially, what SLH explained is that if a respondent-parent appeals the adjudication at 

the first opportunity that he or she can, this does not constitute a collateral attack. 

In SLH, the trial court had orally determined that the children came within its 

jurisdiction and then set the matter for a dispositional hearing without first entering an 

adjudication order. Following the dispositional hearing, the trial court entered an order of 

disposition and an order terminating parental rights on the same day, and both orders stated 

that an adjudication was held and that the children were found to fall within the jurisdiction 

of the court. The respondent-parent appealed, arguing that the trial court erred by taking 

jurisdiction over the children. The Court of Appeals held that this did not constitute a 

collateral attack because the contemporaneous order of disposition and order terminating 

parental rights “contain the first appealable finding of adjudication that the children came 

within the jurisdiction of the court.” Id. at 668. 

In summation, an adjudication cannot be collaterally attacked following an order 

terminating parental rights unless the termination occurred at the initial disposition. In the 

instant case, however, the adjudication and the termination were separated by a lengthy 

period of attempts at reunification. Therefore, respondents are barred from collaterally 

attacking the adjudication. 

At an adjudication hearing on December 21, 2015, respondents admitted to some of 

the allegations in the petition, and on January 12, 2016, the court entered a dispositional 

order. Additional dispositional hearings occurred, additional dispositional orders were 

entered, and services were provided to respondents. On August 7, 2017, the trial court 

granted the petition to terminate respondents’ parental rights. On September 8, 2017, 

respondents appealed in the Court of Appeals, arguing, among other things, that the trial 
12 

court erred during the adjudication hearing by failing to advise respondents of their rights 

as required by MCR 3.971. 

Although the trial court certainly breached MCR 3.971 by not advising respondents 

of their rights, respondents failed to timely raise this issue.7

 Respondents should have 

raised this issue after the adjudication and the first dispositional order entered on January 

12, 2016. See former MCR 3.993(A)(1) (“[A]n order of disposition placing a minor under 

the supervision of the court or removing the minor from the home” is “appealable to the 

Court of Appeals by right[.]”).8

 But, instead, respondents waited nearly two years to raise 

 

7

 Although the Department acknowledges that the trial court did not comply with MCR 

3.971, contrary to the majority’s contention, the Department has not conceded that this 

violated respondents’ due-process rights. 

8

 The majority takes issue with Hatcher’s statement that “[t]he respondent could have 

appealed the court’s exercise of its statutory jurisdiction by challenging the sufficiency of 

the petition,” Hatcher, 443 Mich at 438, because, according to the majority, “[t]he error in 

the adjudication occurred after the preliminary hearing, when the probable-cause 

determination was made [and] the father could not have appealed an error that had yet to 

occur.” However, given that Hatcher cited MCR 5.993, which was the predecessor of our 

current MCR 3.993, immediately after the statement with which the majority takes issue, 

it is more than reasonably clear that Hatcher was stating, in fact, that the respondent could 

have filed an appeal of right after the adjudication, i.e., after the court entered an “order of 

disposition placing a minor under the supervision of the court,” former MCR 3.993(A)(1). 

The “sufficiency of the petition” remained at issue at that point because the probate court 

presumably had relied on the allegations in the petition as well as the parents’ stipulation 

that the child should become a temporary ward at the adjudication hearing. For these 

reasons, I do not believe Hatcher was nonsensically suggesting that the father should have 

appealed an error that had yet to occur. 

 In addition, and again contrary to the majority’s contention, I do not believe that 

Hatcher suggested that “the father could have raised the adjudication error . . . in a motion 

for rehearing from the order terminating parental rights,” which, as the majority itself 

recognizes, would have been inconsistent with Hatcher’s ultimate conclusion. Rather, 

Hatcher simply noted that “[a] parent is . . . entitled to request a rehearing not later than 

twenty days after an order terminating parental rights and removing the child from parental 
13 

this issue.9

 They waited until after several dispositional hearings had been held, after 

several dispositional orders had been entered, after several months of services had been 

provided, after JF had been living in foster care for almost two years, and after their 

parental rights had been terminated nearly two years after adjudication. 

Hatcher bars respondents’ collateral attack, as it should. Unlike the majority, I 

would not overrule Hatcher because if there is any realm of law in which finality is critical, 

it is with regard to child protective proceedings. The Department spent several years 

attempting (tragically without success) to reunite respondents with their child. Parents who 

have been given several years to rehabilitate themselves and who have continually failed 

to do so should not be permitted to reinitiate the entire process by challenging aspects of 

the adjudication that occurred at its very outset. It is simply not fair to children to require 

them to endure this process again. It is also not fair to prospective adoptive parents. Given 

that the dispositional phase of a child protective proceeding may proceed for several 

 

custody” and that this statutory safeguard ensures the parent time to “challenge a court’s 

exercise of its jurisdiction.” Hatcher, 443 Mich at 436. Terminating parental rights 

constitutes an exercise of the court’s jurisdiction and, as recognized by Hatcher, such an 

exercise can be challenged by requesting a rehearing not later than 20 days after an order 

terminating parental rights has been entered. Entering an order of adjudication also 

constitutes an exercise of jurisdiction and, as also recognized by Hatcher, such an exercise 

can be challenged by filing an appeal of right after the trial court enters its initial 

dispositional order; it, however, cannot be challenged “years later in a collateral attack 

where a direct appeal was available.” Id. at 444. 

9

 Although our court rules at that time did not require the trial court to inform-- much less 

repeatedly inform-- respondents that they possessed an appeal of right from the initial 

dispositional order, these rules did clearly provide for such an appeal of right, see former 

MCR 3.993(A)(1), they did not provide for the additional and much-delayed appeal of right 

sought in this case, and respondents were represented by counsel who was certainly aware 

of all this. 
14 

months, or even several years, it is important to ensure, as Hatcher does, that errors made 

during the adjudicative phase cannot result in all that was accomplished during the ensuing 

dispositional phase to be undone. Not only would this result in wasted time, money, 

resources, and public and private effort, but most importantly it would risk disrupting 

whatever progress and rehabilitation the children might have made during that time. 

Such a “do-over” would require the entire process to begin all over-- there would 

have to be another adjudication hearing, another service plan would have to be created, 

more dispositional hearings would have to be held, respondents would have to be given 

further opportunities to comply with the service plan, and ultimately, more likely than not, 

there would have to be another termination hearing. Yet, the end result would almost 

inevitably be the same-- respondents’ parental rights would be terminated. The only 

difference would be that the process would have taken twice as long. Instead of the 

children having to go through this process, perhaps bouncing around from foster-care home 

to foster-care home for two to three years, they would then have to endure this process for 

four to six years. That, in my judgment, would be untenable and unacceptable. 

The majority holds that Hatcher was wrongly decided because all of the cases on 

which it relied were, in the majority’s view, finely distinguishable in the sense that they 

were all civil cases in which a second action was started to undo a prior final order,10

 

10 For example, in Jackson City Bank & Trust Co v Fredrick, 271 Mich 538; 260 NW 908 

(1935), this Court held that a divorce judgment could not be collaterally attacked in a 

subsequent action to set aside a conveyance of real estate. In addition, in Life Ins Co of 

Detroit v Burton, 306 Mich 81; 10 NW2d 315 (1943), this Court held that an order 

reforming a surety bond could not be collaterally attacked in a subsequent action to set 

aside a sheriff’s sale. Finally, in Edwards v Meinberg, 334 Mich 355; 54 NW2d 684 

(1952), this Court held that a judgment in an action in assumpsit on a promissory note could 
15 

whereas Hatcher and the present case are child protection cases in which the parents are 

simply challenging a nonfinal order (the adjudication) after the first final order (the 

termination order) has been entered. The majority is correct that generally a party 

appealing a final order in a case can raise issues relating to prior nonfinal orders in that 

same case. See Green v Ziegelman, 282 Mich App 292, 301 n 6; 767 NW2d 660 (2009) 

(“[A] party claiming an appeal of right from a final order is free to raise issues on appeal 

related to prior orders.”) (quotation marks and citation omitted). The majority is also 

correct that an adjudication/initial dispositional order is not a final order and that the first 

final order is the order terminating parental rights. See MCR 7.202(6)(a)(i) (defining “final 

order” as “the first judgment or order that disposes of all the claims and adjudicates the 

rights and liabilities of all the parties”). Nonetheless, the majority is seriously incorrect in 

failing to recognize that although there is only one final order in a child protection case, 

there are at least two orders that are appealable by right, i.e., the initial dispositional order 

and the order terminating parental rights. Presumably, the initial dispositional order is 

appealable by right at least in significant respect so that errors that have occurred during 

the adjudication can be remedied in a timely fashion. This, once again, is the appropriate 

time at which the parents should raise challenges they have regarding the adjudication. 

A “collateral attack” is defined as “[a]n attack on a judgment in any manner other 

than by action or proceeding, whose very purpose is to impeach or overturn the judgment; 

or, stated affirmatively, a collateral attack on a judgment is an attack made by or in an 

 

not be collaterally attacked in a subsequent action for damages for abuse of process in 

obtaining a writ of garnishment against the plaintiff’s wages to satisfy the original 

judgment. 
16 

action or proceeding that has an independent purpose other than impeaching or overturning 

the judgment.” Black’s Law Dictionary (6th ed). Former MCR 3.993(A)(1) provided that 

“an order of disposition placing a minor under the supervision of the court” was appealable 

by right. This appeal by right of the order of disposition placing a minor under the 

supervision of the court is the proceeding whose “very purpose” is to overturn the decision 

to place a minor under the supervision of the court, i.e., the adjudication. In other words, 

this moment is the time to directly attack the adjudication. An order terminating parental 

rights is also appealable by right. Former MCR 3.993(A)(2).11 However, this appeal by 

right has an “independent purpose” other than overturning the adjudication, which is to 

overturn the trial court’s actual decision to terminate parental rights. In other words, the 

“very purpose” of this appeal is to attack the termination, not the adjudication. Therefore, 

attacking the adjudication in the appeal of the termination order clearly constitutes a 

“collateral”-- rather than a direct-- attack.12 

The majority rationalizes its conclusion on the grounds that this Court has putatively 

adopted numerous “exceptions” to Hatcher’s collateral-attack rule and, as a result, this 

Court should now simply overrule the decision. Once again, I disagree. Indeed, I do not 

 

11 The new court rules renumber this provision as MCR 3.993(A)(4), but the language is 

unchanged. 

12 Moreover, regardless of whether a posttermination challenge to the adjudication is 

labeled a collateral attack or a direct attack, the critical point is that Hatcher simply requires 

a timely appeal of the adjudication, which both parties and the amici agree benefits all 

involved, including parents, children, and prospective adoptive parents, as well as the 

public interests served by this process. Thus, even if one takes issue with characterizing a 

posttermination challenge as a “collateral” challenge, as the majority does, that still does 

not mean that we should abolish the Hatcher rule, which again simply requires a timely 

appeal of the adjudication. 
17 

believe that any of the cases cited by the majority actually adopted any “exception” to the 

Hatcher rule. In Sanders, 495 Mich at 401, for example, Hatcher did not apply because 

there had never been any adjudication of the respondent-father; the trial court had simply 

applied the “one-parent” doctrine-- that is, the court entered dispositional orders affecting 

the rights of both parents based on an adjudication solely of the mother. Given that the 

respondent-father obviously could not have appealed that adjudication because he was not 

a party, his challenge of that adjudication in his appeal after the termination of his parental 

rights was not a collateral attack. See In re Kanjia, 308 Mich App 660, 670; 866 NW2d 

862 (2014) (“Because respondent was never adjudicated, and in fact was not named as a 

respondent in the trial court’s order of adjudication, it is difficult to see how he could have 

appealed that order of adjudication.”). Because Sanders did not involve a collateral attack, 

Sanders could not have given rise to an “exception” to Hatcher’s collateral-attack rule. 

And, unlike the respondent in Sanders (as well as in Kanjia), respondents here were fully 

adjudicated by the trial court; nothing precluded them from directly attacking the resultant 

adjudication order.13 

 

13 Similarly, In re Wangler, 498 Mich 911, 911 (2015), also could not have created an 

“exception” to Hatcher; it simply held that because “the court purported to issue 

dispositional orders without first adjudicating the respondent-mother, the respondentmother’s appeal should not be regarded as an impermissible collateral attack on 

jurisdiction.” In other words, Wangler held that because the respondent had never been 

formally adjudicated, given that her adjudication had been held in abeyance, her challenge 

of the adjudication proceeding following the termination of her parental rights was not a 

collateral challenge. Again, unlike the respondent in Wangler, respondents in the instant 

case were formally adjudicated; thus, their challenge of the adjudication following the 

termination of their parental rights was a collateral challenge. 
18 

In addition, in In re Hudson, 483 Mich 928 (2009), and In re Mitchell, 485 Mich 

922 (2009), this Court simply pointed out errors that were made during the adjudications; 

these errors were not dispositive though because the trial court had also made errors during 

the disposition stage, e.g., “the trial court committed clear error in finding that the 

Department of Human Services presented clear and convincing evidence in support of the 

statutory grounds for terminating the respondent-mother’s parental rights.” Hudson, 483 

Mich at 928. Therefore, I would hardly characterize these cases as having created 

“exceptions” to Hatcher.

14 Accordingly, contrary to the majority’s assertion, this Court

has not already carved out numerous “exceptions” to the Hatcher rule, and for the reasons 

articulated throughout this dissent, I would not begin to do so today. 

As noted earlier, the collateral-attack rule is a common-law rule, and “when it comes 

to alteration of the common law, the traditional rule must prevail absent compelling reasons 

for change.” Price, 493 Mich at 260. Respondents’ predominant concern regarding 

Hatcher’s collateral-attack rule is that it is unfair because trial courts are not advising 

parents of their appellate rights following adjudication and that despite not knowing their 

 

14 In re Mays, 490 Mich 993, 994 (2012), also did not create an “exception” to Hatcher

because it merely held that “the trial court clearly erred in concluding that a statutory basis 

existed for termination of respondent’s parental rights.” Indeed, Mays expressly stated that 

it was not addressing the validity of the adjudication because that issue had not been timely 

raised and expressly cited Hatcher in support of that position. Id. at 994 n 1. Similarly, In 

re Mason, 486 Mich 142; 782 NW2d 747 (2010), cannot be characterized as creating an 

“exception” to Hatcher because it merely held that the Department did not sufficiently 

involve the respondent in the reunification process; it did not even address the adjudication 

process. Finally, In re Jones, 499 Mich 862 (2016), also cannot be characterized as creating

an “exception” to Hatcher because all this Court did there was to enter an order consistent 

with the parties’ joint motions requesting that we vacate the trial court’s order terminating 

the respondent’s parental rights. 
19 

appellate rights, the collateral-attack rule punishes respondents for not appealing. 

However, this Court just recently (and correctly, in my judgment) amended the court rules 

to address that problem. Specifically, we just amended the court rules to require the trial 

court to advise parents that they have an appeal of right from the initial dispositional order 

and that if they do not challenge the adjudication at that point, they will not be able to 

challenge it after their parental rights have been terminated, with two exceptions.15 At oral 

argument, respondents’ counsel supported this idea: “I wholeheartedly agree with the court 

rule and the world you want, which is early decisions, appeal them right away, and it 

benefits everybody.” The Department and the Attorney General also indicated support for 

this idea. Given our recent court rule amendments, the majority has set forth no reason, let 

alone a “compelling reason,” to justify its present alteration of the common-law rule. 

The majority asserts that overruling Hatcher will not cause “ ‘practical, real-world 

dislocations.’ ” However, this is only true because of this Court’s recent court rule 

amendments. In other words, if this Court had not amended the court rules to essentially 

incorporate Hatcher into the court rules, the majority’s overruling of Hatcher would have 

caused “ ‘practical, real-world dislocations,’ ” because, as discussed earlier, it would have 

allowed parents to bring untimely challenges regarding the adjudication that, if successful, 

would have required the process to begin all over again no matter how much time had 

already elapsed attempting (unsuccessfully) to reunite the parents with their children. 

 

15 Parents will still be able to challenge the adjudication in an appeal from the order 

terminating their parental rights if their rights were terminated at the initial dispositional 

hearing, which, as discussed earlier, is already allowed under SLH, 277 Mich App at 668-

669, and also if the court failed to inform them of their right to appeal, MCR 3.971(C); 

MCR 3.972(G); MCR 3.973(H). I also support these exceptions. 
20 

I am not sure why the majority feels compelled to overrule Hatcher given that the 

Court has now essentially incorporated it into our court rules. The majority says the 

following about Hatcher: 

Hatcher disrupts the careful balancing of interests in our juvenile code by 

preventing judicial review of meritorious claims of defects in the 

adjudication. That is, it prevents review of mistakes in the government 

process that permanently separates a parent from a child. A parent’s only 

remedy under Hatcher is by way of an interlocutory appeal, disincentivizing 

him or her from timely cooperating with the Department and further delaying 

a final determination. Hatcher disserves parents, their children, and the state. 

It’s time to disavow it. 

Yet we have just incorporated Hatcher into our court rules by adopting a new rule that 

requires that parents timely raise challenges regarding the adjudication in their appeal of 

right from the initial dispositional order. MCR 3.971(B)(8); MCR 3.972(F)(3); MCR 

3.973(G)(4). I am not sure why the majority has these concerns regarding Hatcher but not 

regarding the amended court rules. Regardless, I believe that the majority’s concerns 

regarding Hatcher are unfounded. 

To begin with, Hatcher does not “prevent[] judicial review of meritorious claims”; 

rather, it merely requires that such claims be pursued in a timely manner, which is 

consistent with the interests of all affected parties, including the children themselves. In 

other words, there is an appropriate time to challenge the adjudication and an inappropriate 

time, and waiting until years after the adjudication, and until after parental rights have been 

terminated, fits squarely within the latter category. 

Next, the majority contends that “[a] parent’s only remedy under Hatcher is by way 

of an interlocutory appeal, disincentivizing him or her from timely cooperating with the 

Department and further delaying a final determination.” But nothing about Hatcher 
21 

prevents a parent from both challenging an adjudication and at the same time abiding by 

the court’s orders. There will be no disincentive, just as there is no particular or obvious 

disincentive in the many cases in which an interlocutory appeal is filed. Furthermore, it is 

certainly better to delay a final determination than it is to wait until after that determination 

has been made and then require a complete “do-over.” Indeed, both parties at oral 

argument agreed that immediately appealing the adjudication benefits everyone. As 

respondents’ counsel explained: “[W]e don’t want adjudication appeals-- it’s not good for 

the parents I represent to have an adjudicatory error two years later. And then, we have to 

go back in time.” And as the Department further explained, witnesses may be difficult to 

find, unavailable, or simply may not remember as well given the passage of time. For all 

these reasons, I would not overrule Hatcher. 

B. DUE PROCESS 

This Court asked the parties to address “if Hatcher was correctly decided, whether 

due process concerns may override the collateral bar rule . . . .” In re Ferranti, 502 Mich 

at 906. I would answer this inquiry in the negative. Hatcher expressly overruled Fritts v 

Krugh, 354 Mich 97; 92 NW2d 604 (1958), which “attempted to correct what it perceived 

to be a gross lack of procedural due process” by “permitt[ing] [a] collateral attack on the 

exercise of jurisdiction.” Hatcher, 443 Mich at 440. By overruling Fritts, despite 

recognizing that it involved a due-process challenge, Hatcher made it altogether clear that 

it intended the collateral-attack rule to apply to due-process challenges. 
22 

Almost any violation of court rules can be couched in terms of a constitutional dueprocess violation.16 For example, in this case, the majority holds that the trial court’s failure 

to inform respondents of (a) the rights they would be waiving if their plea admitting to the 

jurisdiction of the court was accepted, as is required by MCR 3.971(B)(3); and (b) the 

consequences of their plea, as is required by MCR 3.971(B)(4), violated due process. See 

also, e.g., Hudson, 483 Mich at 929 (CORRIGAN, J., concurring) (concluding that the trial 

court’s failure to advise the respondent of the consequences of her plea of admission, 

contrary to MCR 3.971(B), and failure to appoint counsel at the respondent’s first 

appearance, contrary to MCL 712A.17c, violated the respondent’s due-process rights). 

Accordingly, if this Court were to adopt a due-process exception to the rule of Hatcher, 

that exception would effectively swallow the entire rule. In other words, adopting a dueprocess exception would be tantamount to overruling Hatcher. 

Furthermore, not allowing parents to challenge the adjudication after parental rights 

have been terminated can hardly be said to violate their due-process rights because they 

have enjoyed a full opportunity to challenge the adjudication, from which determination 

 

16 See In re Sanders, 495 Mich at 458 (MARKMAN, J., dissenting): 

Concerning due process, it is always possible to extend additional 

procedural rights and entitlements to persons who come into contact with the 

government, as criminal defendants, public employees, consumers of public 

services, regulated parties, recipients of social-services benefits, or parents 

of abused and neglected children. Additional hearings and additional appeals 

can always be convened, more protective rules of evidence can always be 

prescribed, and broader compliance with ever finer details of process can 

always be required. There is simply no end to the argument that “fairness” 

requires something more, and there is little specificity in the Due Process 

Clause that either sustains or refutes most such arguments. 
23 

they possess an appeal of right. That they do not also enjoy the right to challenge the 

adjudication after termination is simply a function of the fact that the state also possesses 

an undeniable interest in seeking relief for the abused and neglected child in a timely and 

reasonable manner.17 

C. PRESERVATION AND PLAIN ERROR 

This Court also asked the parties to address “what must a respondent do to preserve 

for appeal any alleged errors in the adjudication” and “by what standard should courts 

review the respondents’ challenge to the initial adjudication . . . .” In re Ferranti, 502 Mich 

at 906. I agree with the majority that “a party’s failure to timely assert a right in the trial 

court generally means that any resulting error will be treated as ‘unpreserved’ if challenged 

on appeal,” and it is undisputed that respondents did not challenge the adjudication at the 

trial court level. To preserve for appeal an alleged error in the adjudication, the respondent 

would have had to have raised the error at the adjudication hearing. People v Pipes, 475 

 

17 See Mathews v Eldridge, 424 US 319, 333, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976), 

which provides that the following factors should generally be considered when determining 

“what process is due”: 

First, the private interest that will be affected by the official action; second, 

the risk of an erroneous deprivation of such interest through the procedures 

used, and the probable value, if any, of additional or substitute procedural 

safeguards; and finally, the Government’s interest, including the function 

involved and the fiscal and administrative burdens that the additional or 

substitute procedural requirement would entail. 

While respondents’ “private interest” in their parenthood is undeniably of the highest order, 

there is no obvious “risk of an erroneous deprivation” of this interest by the requirement 

that an appeal taken to rectify errors occurring during the adjudication be undertaken in a 

timely manner. Furthermore, the “Government’s interest” in the circumstances of the 

abused and neglected child is also of the highest order. 
24 

Mich 267, 277; 715 NW2d 290 (2006) (“In order to properly preserve an issue for appeal, 

a defendant must raise objections at a time when the trial court has an opportunity to correct 

the error . . . .”) (quotation marks and citation omitted). As this Court explained: 

Any other conclusion would be contrary to the rule that defendants 

cannot “harbor error as an appellate parachute.” “The rule that issues for 

appeal must be preserved in the record by notation of objection is a sound 

one,” and that rule is totally eviscerated in situations, such as this, where 

defendants never address appealable issues with the trial court. [Id. at 278 

n 39 (citations omitted).] 

If the respondent does not properly preserve the issue, this Court should review the 

respondent’s challenge to the initial adjudication for plain error. See Hudson, 483 Mich at 

928 (“The trial court also committed plain error, People v Carines, 460 Mich 750, 763 

(1999), in failing to . . . timely appoint counsel in violation of MCL 712A.17c(4) and (5), 

MCR 3.915(B)(1), MCR 3.965(B)(5), and MCR 3.974(B)(3)(a)(i), and in failing to advise 

the respondent that her plea could later be used in a proceeding to terminate parental rights 

in violation of MCR 3.917(B)(4).”); Mitchell, 485 Mich at 922 (“[T]he trial court 

committed plain error, People v Carines, 460 Mich 750, 763 (1999), in failing to timely 

appoint counsel in violation of MCL 712A.17c(4) and (5), MCR 3.915(B)(1), MCR 

3.965(B)(5), and MCR 3.974(B)(3)(a)(i), and in failing to advise the respondent that his 

plea could later be used in a proceeding to terminate his parental rights in violation of MCR 

3.971(B)(4).”). 

In Carines, 460 Mich at 763, this Court held: 

To avoid forfeiture under the plain error rule, three requirements must be 

met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 

3) and the plain error affected substantial rights. The third requirement 

generally requires a showing of prejudice, i.e., that the error affected the 

outcome of the lower court proceedings. “It is the defendant rather than the 
25 

Government who bears the burden of persuasion with respect to prejudice.” 

Finally, once a defendant satisfies these three requirements, an appellate 

court must exercise its discretion in deciding whether to reverse. Reversal is 

warranted only when the plain, forfeited error resulted in the conviction of 

an actually innocent defendant or when an error “ ‘seriously affect[ed] the 

fairness, integrity or public reputation of judicial proceedings’ independent 

of the defendant’s innocence.” [Citations omitted; alteration in original.] 

In this context, it would be difficult for a respondent to prove that an error affected the 

outcome of the lower court proceedings. For example, in the instant case, the errors were 

that the trial court failed to inform respondents of (a) the rights that they would be waiving 

if their plea admitting to the jurisdiction of the court was accepted, as is required by MCR 

3.971(B)(3); and (b) the consequences of their plea, as is required by MCR 3.971(B)(4). 

Although these were certainly errors and were plain errors, I do not understand how these 

errors conceivably affected the outcome of the proceedings. Respondents have nowhere 

alleged that they would not have pleaded to the allegations in the petition if the trial court 

had properly advised them of the rights that they were waiving and/or of the consequences 

of their plea.18 And even if they had so alleged, I do not understand how the outcome of 

the proceedings would have been altered because, at most, an adjudication trial would have 

been conducted and the trial court likely would have found again that one or more of the 

statutory grounds alleged in the petition had been proved by a preponderance of the 

evidence, i.e., that respondents were unfit.19 There is simply no serious question that even 

 

18 Furthermore, respondents were actually advised of many of their rights at the preliminary 

hearing on October 29, 2015, and were both represented by counsel at every phase of the 

proceedings. 

19 The majority asserts that “[t]his misses the point” because “the constitutional 

deficiencies here are not forgiven by what might have transpired at trial.” Respectfully, I 

believe it is the majority that errs because it is well established that parties are not entitled 
26 

absent respondents’ plea, the trial court would have adjudicated respondents, the 

dispositional phase would have proceeded in the same way, and respondents’ parental 

rights would have been terminated. Indeed, respondents do not even dispute the sufficiency 

of the evidence in support of the adjudication or of the termination of their parental rights. 

Therefore, in my view, although the majority overrules Hatcher, respondents are still not 

entitled to relief. 

D. HOME VISIT 

This case also involves two non-Hatcher issues. The first such issue we asked the 

parties to address is “whether a trial court is permitted to visit a respondent’s home to 

observe its condition, and, if so, what parameters should apply to doing so[.]” In re 

Ferranti, 502 Mich at 906. The parties agree that a trial court is not permitted to visit a 

respondent’s home to observe its condition. MCR 2.507(D), the rule allowing under 

certain circumstances the court’s view of “property or a place where a material event 

occurred,” is not among the rules applicable to child protective proceedings. MCR 

3.923(A), which does apply, provides: 

If at any time the court believes that the evidence has not been fully 

developed, it may: 

(1) examine a witness, 

(2) call a witness, or 

 

to relief for unpreserved constitutional errors unless they can establish that “the error 

affected the outcome of the lower court proceedings,” Carines, 460 Mich at 763, and the 

latter determination is necessarily made by comparing the flawed proceeding with a 

hypothetical unflawed proceeding, i.e., by inquiring as to “what might have transpired at 

trial.” 
27 

(3) adjourn the matter before the court, and 

(a) cause service of process on additional witnesses, or 

(b) order production of other evidence. 

Note that the court rule does not allow the court to view a home. For these reasons, I agree 

with the parties and the Court of Appeals that the trial court erred by visiting respondent’s 

home. 

However, I further agree with the Court of Appeals that this error was harmless. 

Respondents did not object to the error, and therefore the plain-error test applies. See 

Carines, 460 Mich at 763-764. Even assuming that there was error and that the error was 

plain, respondents are not entitled to relief because they were not prejudiced as a result of 

the error. As the Court of Appeals explained: 

[G]iven the trial court’s reliance on the testimony of witnesses who described 

both the historical condition of the home, the services provided, and the 

current condition of the home, as well as the effect of the condition of the 

home on JF’s medical condition, it does not appear that the trial court’s visit 

to the home affected the outcome of the proceedings. The court found that 

“the many professionals unanimously agreed that the house was unhygienic 

and was probably not going to improve” even though the condition of the 

home was “not as atrociously bad as it was.” The trial court’s lone reference 

to the court’s viewing of the home was that 

it is not where a person with [spina bifida] will thrive. [JF]

chooses to crawl for locomotion when she is in the home and 

the home will never be clean enough for her to avoid infections. 

This finding is amply supported by the testimony of the witnesses with 

respect to the condition of the home and its effect on JF’s medical condition, 

and the trial court’s statement regarding its view of the home reflects that the 

court’s viewing of the home confirmed the witnesses’ testimony. Under 

these circumstances, respondents have failed to demonstrate that the trial 
28 

court’s error in visiting the home affected their substantial rights. [Ferranti, 

unpub op at 8-9.] 

I agree with the Court of Appeals. 

E. INTERVIEW OF THE CHILD 

The other non-Hatcher issue we asked the parties to address concerns “whether a 

trial court may interview a child who is the subject of child protective proceedings in 

chambers, and, if so, what parameters should apply to doing so.” In re Ferranti, 502 Mich 

at 906. Again, the parties agree that a trial court may not interview in chambers a child 

who is the subject of child protective proceedings. See In re HRC, 286 Mich App 444; 781 

NW2d 105 (2009). While the court rules permit the use of in camera interviews for the 

limited purpose of determining a child’s parental preference in child custody cases, see 

MCR 3.210(C)(5), they do not permit the use of in camera interviews in child protective 

cases.20 Accordingly, the trial court erred by conducting an in camera interview of the 

child. 

However, I agree with the Court of Appeals that respondents waived this issue. At 

one point, respondent-father’s counsel asked respondent-father, “Are you asking the Court 

to interview [JF] prior to making a decision on termination?” and respondent-father 

answered, “I would ask that, yes.” Subsequently, after both parties indicated that they had 

 

20 Perhaps this is because while the Child Custody Act, MCL 722.21 et seq., requires the 

trial court in custody cases to take a child’s preference into consideration as long as the 

court considers the child to be of sufficient age to express a preference, MCL 722.23(i), 

the juvenile code does not require a trial court to consider a child’s preference in a 

termination-of-parental-rights case. This may have something to do with the nature of 

these proceedings. A termination of parental rights is permanent, whereas a custody order 

can be modified. 
29 

no further proofs, the trial judge indicated that he was considering speaking with JF but 

admitted that there was no statute that provides for such an interview, and he asked the 

parties if they had any objections. In response, respondent-father’s counsel stated, “I would 

actually request it,” and respondent-mother’s counsel stated, “We encourage the court to 

talk with [JF].” 

I also believe the parties were well aware that the judge was planning on speaking 

with JF in chambers. There was never any mention of her testifying in court; rather, the 

matter was always stated in terms of the judge “interviewing,” “speaking with,” and 

“talking with” JF. Furthermore, the guardian ad litem asked the judge if he would be 

interviewing JF “here at the court or at the Lutheran [family services office]?” And the 

judge responded, “[L]et’s go to the back chambers.” In light of these statements, I believe 

it was reasonably clear that the judge planned to interview JF off the record in his chambers, 

and the parties not only did not object, but they affirmatively encouraged the judge to talk 

with JF. Therefore, the issue was waived, and “[o]ne who waives his rights under a rule 

may not then seek appellate review of a claimed deprivation of those rights, for his waiver 

has extinguished any error.” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) 

(quotation marks and citation omitted). 

IV. CONCLUSION 

Because I believe the Court of Appeals correctly held that: (a) respondents cannot 

collaterally attack the instant adjudication after their parental rights have been terminated, 

(b) respondents waived the issue pertaining to the interview of the child, and (c) any error 

in visiting respondents’ home was harmless, I would affirm the judgment of the Court of 
30 

Appeals. In addition, and unlike the majority, I would not overrule Hatcher, even if in 

light of our new court rules, the impact of so doing would only be upon this single case, 

this single child, JF alone. Just as the new court rules reasonably balance the rights of 

parents and children, and afford a clear opportunity for a fresh start for the abused or 

neglected child, so too did the prior court rules; it is not right that JF alone should be made 

subject to a third court rule regime, an altogether singular regime, a regime that does not, 

in my judgment, reasonably balance the interests of parent and child, a regime in which, 

before JF’s fresh start can begin, a lengthy re-do of an already lengthy and fair legal process 

must first proceed because of the failure of respondents-- already deemed by a court of law 

to have acted neglectfully-- to have abided by the law in pursuing a timely appeal, much 

less to have corrected their maltreatment of JF. Thus, in a realm of the law in which 

reasonable expedition of decision-making has always been thought by the judiciary to be 

paramount, the majority imposes in this single case a process that is reflective of our legal 

system at its most unnecessarily drawn out and dilatory. For all the reasons set forth in this 

opinion, I respectfully dissent.21 

 Stephen J. Markman 

 Brian K. Zahra 

CAVANAGH, J., did not participate in the disposition of this case because the Court 

considered it before she assumed office. 

 

21 Notably, the majority overrules Hatcher, reverses the judgment of the Court of Appeals, 

and remands to the trial court for further proceedings without providing any guidance 

concerning what number of years of further proceedings are required. The majority fails 

even to make clear whether JF can remain in foster care or whether she, a child suffering 

from spina bifida and chronic kidney disease, must now be returned to respondents’ home, 

one in which she has already suffered considerably from medical and physical neglect.