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STATE OF MICHIGAN 

COURT OF APPEALS 

 

UNPUBLISHED 

In re K. J. RHINES, Minor. August 4, 2015 

No. 323115 

Shiawassee Circuit Court 

 Family Division 

LC No. 12-013282-NA 

 

Before: BORRELLO, P.J., and RONAYNE KRAUSE and RIORDAN, JJ. 

PER CURIAM. 

 Respondent appeals as of right a July 14, 2014, trial court order terminating his parental 

rights to the minor child, KJ, pursuant to MCL 712A.19b(3)(h) (parent imprisoned for more than 

two years with accompanying failure to provide proper care and custody). For the reasons set 

forth in this opinion, we affirm. 

I. FACTUAL BACKGROUND 

 On October 5, 2012, petitioner, Department of Health and Human Services (DHS), filed 

the initial petition in this case involving KJ, the minor daughter of respondent (father) and Jamie 

Dixon (mother). The petition alleged that Dixon had a lengthy Child Protective Services (CPS) 

history consisting of 12 assigned complaints involving sexual abuse, physical abuse, physical 

neglect, medical neglect, and improper supervision. The petition also alleged that Dixon was 

unable to maintain her finances, that utilities at the home where KJ resided with her mother had 

been turned off, that the home conditions were deplorable, and that Dixon did not attend to KJ’s 

special needs as a child with cerebral palsy. Regarding respondent, the petition alleged that he 

was incarcerated as a result of a manslaughter conviction and that his earliest release date from 

prison was July 11, 2025. Following a preliminary hearing on October 5, 2012, the court entered 

an order that same day taking KJ into protective custody. 

 At an October 5, 2012, preliminary hearing, KJ’s guardian ad litem inquired about an 

attorney for respondent, who was incarcerated and did not appear at the hearing. The circuit 

court indicated that it would appoint an attorney for respondent because he was “less available” 

due to his incarceration. The court then adjourned the hearing to allow for appointment of 

counsel. 

 On October 11, 2012, the court signed an order appointing Jana L. Kurrle as attorney for 

respondent. However, the order referred to the appointment of Kurrle for respondent with the 
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notation “No C/A Atty Denied” written in ink across the body of the order. The circuit court 

register of actions includes an October 11, 2012 entry that states, “Father Denied C/A Attorney.” 

 At an October 18, 2012, haring, a referee stated to respondent on the record that, “I know 

at some point at the last hearing, you requested Court appointed counsel or an attorney was going 

to be appointed for you. That request was denied . . . in that you are a non-custodial parent.”1 

The referee asked respondent if he understood that the court did not appoint an attorney for him, 

and respondent replied, “Yeah, I guess so.” The referee assured respondent that he would be 

permitted to participate in future proceedings. On the same day, the referee signed an “Order 

Requesting Prisoner be Allowed to Participate in Court Proceedings.” Similar orders were also 

signed with regard to each subsequent dispositional review and/or permanency planning hearing. 

The October 23, 2012 “Order after Preliminary Hearing” stated that “all parties waived the 

Preliminary Hearing requesting the matter be scheduled for Formal Trial with PreTrial scheduled 

prior.” 

 On December 11, 2012, the circuit court took jurisdiction over KJ after Dixon pleaded 

no-contest to the allegations in the petition. The court ultimately terminated Dixon’s parental 

rights on March 17, 2014, following a termination hearing. 

 Thereafter, the court held a dispositional review hearing on February 11, 2013, and 

dispositional review/permanency planning hearings on April 29, 2013, July 22, 2013, September 

30, 2013, and December 9, 2013. Respondent participated in all of these hearings via telephone 

from prison. 

 On April 3, 2014, at another dispositional review/permanency planning hearing, 

respondent requested the appointment of counsel. Following this hearing, petitioner filed a 

petition to terminate respondent’s parental rights to KJ under MCL 712A.19b(3)(c)(i), (ii) and 

(h), and on April 7, 2014, the circuit court appointed attorney Charles E. Quick to represent 

respondent. 

 A termination hearing regarding respondent was held on July 8, 2014. Heather Murphy, 

a Catholic Charities caseworker, testified that KJ was diagnosed with cerebral palsy and required 

special education and neurological services. She explained that KJ was non-verbal and was not 

toilet trained. Murphy testified that respondent was incarcerated for the voluntary manslaughter 

of his estranged wife’s (Dixon’s) boyfriend and that his earliest release date was July 11, 2025, 

when KJ would be 21 years old. 

 Alan Witte of the Shiawassee County Office of Probation and Parole testified that 

respondent broke into the home of the boyfriend and stabbed him 14 times. A broken knife 

blade was lodged into the boyfriend’s spine. Murphy explained that KJ was 5 years old when 

 

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 The reason for the circuit court’s decision to first appoint an attorney for respondent, and to 

then change his mind and deny a court-appointed attorney for respondent, is unclear from the 

record, with the exception of the referee’s comment. 
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respondent was arrested, and was 10 years old at the time of the hearing. Respondent testified 

that he was arrested on November 2, 2008, and had last seen KJ on Halloween 2008. 

 Murphy testified that placement with relatives was investigated but was not possible. 

Murphy stated that respondent should not have custody of KJ even if released from prison, and 

opined that it was in the best interests of KJ to terminate respondent’s parental rights. Murphy 

informed the court that KJ bonded with her foster family, who were committed to her needs and 

wanted to adopt her. According to Murphy, the family fosters a relationship with KJ’s older 

sister. Murphy confirmed that no services were available to respondent in prison because 

services are limited to those prisoners whose release date is 18 months or less. 

 Respondent introduced family photographs from 2005 to 2008 of himself with KJ to 

show that there was a loving relationship and that the condition of the family home was 

acceptable before his incarceration. Respondent testified that he had no objections to KJ’s 

foster-care placement. He agreed that permanency planning was in KJ’s best interests. 

 Following the close of proofs, the circuit court terminated respondent’s parental rights 

pursuant to MCL 712A.19b(3)(h) (parent imprisoned for more than two years with 

accompanying failure to provide proper care and custody). The court found that KJ would be 21 

before respondent was released from prison and that during the interim respondent would not be 

able to provide care or support for KJ, a special-needs child. The court entered a written order 

reflecting its ruling on July 8, 2014. This appeal ensued. 

II. ANALYSIS 

 Respondent’s sole argument on appeal is that the circuit court violated his constitutional 

rights when it denied him the right to counsel until the termination hearing. Whether an 

individual was deprived of his constitutional rights involves a question of law that we review de 

novo. People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011). 

 The constitutional guarantees of due process and equal protection extend the right to 

counsel to respondents in child protective proceedings. In re Powers Minors, 244 Mich App 

111, 121; 624 NW2d 472 (2000). MCL 712A.17c(4), provides that, in a child protective 

proceeding, the circuit court “shall advise the respondent at the respondent’s first court 

appearance” of the right to an attorney at each stage of the proceeding and the right to a courtappointed attorney in the event that the respondent cannot afford to retain counsel. In addition, 

MCL 712A.17c(5) provides that “[i]f it appears to the court . . . that the respondent wants an 

attorney and is financially unable to retain an attorney, the court shall appoint an attorney to 

represent the respondent.” MCR 3.915(B)(1) contains similar provisions regarding appointment 

of counsel in child protective proceedings. 

 In this case, respondent’s initially appeared in court via telephone at the October 18, 

2012, hearing. At that hearing, the circuit court failed to inform respondent he had the right to an 

attorney at every stage of the proceeding and had the right to an appointed attorney in the event 

that he could not afford to retain an attorney. The circuit court appears to have denied the 

guardian ad litem’s request to appoint counsel for respondent because respondent was not a 

custodial parent. However, irrespective of whether respondent had custody over KJ, he had a 
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right to counsel. In re Powers, 244 Mich App at 121. The circuit court therefore clearly erred in 

failing to inform respondent of his right to counsel at respondent’s initial court appearance and in 

declining to appoint counsel for respondent on grounds that respondent was a non-custodial 

parent. 

 Although the circuit court erred when it initially declined to appoint counsel because 

respondent was not a custodial parent, in similar circumstances, this Court has applied a 

harmless-error analysis. In re Hall, 188 Mich App 217, 222-223; 469 NW2d 56 (1991). In In re 

Hall, the circuit court terminated the respondent’s parental rights, and on appeal, the respondent 

argued that the circuit court erred when it conducted a statutory review hearing without her 

counsel present. Id. at 218. On appeal, this Court concluded, in part, that, any error with respect 

to the respondent’s deprivation of counsel amounted to harmless error. Id. at 222. In particular, 

this Court noted that counsel was reappointed for the respondent and the respondent was 

represented by counsel at the termination hearing. Id. Furthermore, testimony offered at the 

statutory review hearing on behalf of petitioner was repeated at the termination hearing with 

counsel for the respondent present. Id. at 223. 

 Similar to In re Hall, importantly in this case, respondent was not denied counsel during 

the termination hearing. Although the court declined to appoint counsel at the outset, four days 

after petitioner moved to terminate respondent’s parental rights, the circuit court appointed 

counsel on or about April 7, 2014. Thereafter, respondent was represented by counsel during the 

approximately three months before the July 8, 2014, termination hearing, and at the termination 

hearing where counsel introduced evidence and argued on behalf of respondent. Like in In re 

Hall, here, the evidence that was crucial to the court’s finding grounds for termination was 

introduced at the termination hearing, where respondent was represented by counsel. 

Respondent does not identify any evidence that was introduced at any of the statutory review 

hearings that was not introduced during the termination hearing, and a review of the record does 

not reveal any such evidence. Furthermore, respondent was permitted to participate in all of the 

statutory review hearings via telephone from prison and once termination was authorized, 

respondent requested, and was granted appointed counsel. 

 In sum, although the circuit court erred denying respondent counsel at the outset of the 

proceeding, the error does not warrant vacating the court’s termination order where the court 

appointed an attorney after petitioner moved to terminate respondent’s parental rights and where 

counsel represented respondent during the termination phase of the proceeding. 

 Affirmed. 

/s/ Stephen L. Borrello 

/s/ Amy Ronayne Krause 

/s/ Michael J. Riordan