If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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

C O U R T O F A P P E A L S

UNPUBLISHED

In re K. R. FISHER, Minor. July 9, 2020

No. 351947

Genesee Circuit Court

Family Division

LC No. 07-122616-NA

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

PER CURIAM.

Respondent-mother appeals as of right the trial court’s order to remove her minor child, 

KF, from respondent’s care and take KF into protective custody that was entered following the 

preliminary hearing at which mother was not present. For the reasons set forth in this opinion, we 

vacate the order removing KF from mother’s care.

I. BACKGROUND

Respondent and KF came to the attention of the Department of Health and Human Services 

(DHHS) and Child Protective Services (CPS) when respondent sought assistance with preventing 

a pending eviction where she owed over $2,000 in rent to her landlord. An investigation ensued 

during which mother tested positive for controlled substances.

On November 4, 2019, CPS investigator Benjamin Nichols filed a petition requesting that 

the court take jurisdiction over KF and remove the minor child from respondent’s care to be 

temporarily placed with the DHHS. On the same day, a preliminary hearing was scheduled for 

2:00 p.m. on November 13, 2019, and a notice of hearing for the November 13 preliminary hearing 

was issued. Also, on November 4, 2019, according to the proof of service contained within the 

lower court file, this notice of the November 13 hearing was served only on the prosecuting 

attorney and the DHHS.

The preliminary hearing was held on November 13, 2019. For reasons not evident from 

the record, the hearing did not commence until 4:08 p.m. Respondent was not present, although 

an attorney was present who had been appointed to represent respondent. The referee inquired of 

Nichols about whether respondent had received notice:
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The Referee: All right. Mr. Nichols what was—what notice was given to 

mother to try and get her to appear today?

Mr. Nichols: I was speaking with her yesterday. I was wanting—I was 

trying to have—schedule an FTM (Family Time Meeting) with her so I could go 

over what would be happening at court and try and see if she could identify any 

possible relatives since we were seeking to—for removal for [KF] there. And she 

was not willing to cooperate, tell me where she was, what the address was, you 

know, name, phone number, any kind of identifying information—

* * *

Mr. Nichols: —in court. And today, I called her, texted her, and she was 

aware. About noon I got ahold of her, and she was aware that court was today and 

she said she didn’t want to come. She wanted to reschedule. She said she didn’t

have time to come today.

The Referee: Okay. The Court will indicate she’s also contacted the—my

assistant and said she didn’t understand why her appointment couldn’t be 

rescheduled, but today is the date and time given for notice, so.

The referee proceeded with the preliminary hearing. An order authorizing the petition and 

removing KF from respondent’s care was entered. This order further provided that the referee had 

found that notice of the hearing had been given as required by law. Additionally, an order was 

entered authorizing the DHHS or any peace officer to take KF into protective custody.

II. DUE PROCESS

On appeal, respondent argues that she was denied her right to procedural due process when 

the preliminary hearing, which resulted in KF being removed from respondent’s care, was held in 

respondent’s absence without providing her with adequate notice of the hearing.

A. STANDARD OF REVIEW

We review de novo, as a question of constitutional law, whether child protective 

proceedings complied with a parent’s right to procedural due process. In re Sanders, 495 Mich 

394, 403-404; 852 NW2d 524 (2014). “The interpretation and application of statutes and court 

rules are also reviewed de novo.” Id.

B. ANALYSIS

Natural parents possess a fundamental liberty interest, protected by the Fourteenth 

Amendment, in the “care, custody, and management of their child.” Santosky v Kramer, 455 US 

745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982); see also In re Sanders, 495 Mich at 409 (stating 

that among the fundamental rights protected by the Fourteenth Amendment “is the right of parents 

to make decisions concerning the care, custody, and control of their children”). It is true of course 

that a “parent’s right to control the custody and care of her children is not absolute, as the state has 

a legitimate interest in protecting the moral, emotional, mental, and physical welfare of the minor 
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and in some circumstances neglectful parents may be separated from their children.” In re 

Sanders, 495 Mich at 409-410, quoting Stanley v Illinois, 405 US 645, 652; 92 S Ct 1208; 31 L 

Ed 2d 551 (1972) (quotation marks omitted). However, a parent must be provided with adequate 

due process before the state may interfere with the parent’s fundamental right in the care, custody, 

and control of the child. Santosky, 455 US at 753 (“[S]tate intervention to terminate the 

relationship between [a parent] and [the] child must be accomplished by procedures meeting the 

requisites of the Due Process Clause.”) (quotation marks and citations omitted; alterations in 

original); In re Sanders, 495 Mich at 410 (“[D]ue process demands that minimal procedural 

protections be afforded an individual before the state can burden a fundamental right.”).

Although the concept of due process is somewhat difficult to define with precision, see 

Lassiter v Dep’t of Social Servs, 452 US 18, 24; 101 S Ct 2153; 68 L Ed 2d 640 (1981), it is 

axiomatic that due process requires “at a minimum . . . that deprivation of life, liberty or property 

by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the 

case,” Mullane v Central Hanover Bank & Trust Co, 339 US 306, 313; 70 S Ct 652; 94 L Ed 865 

(1950); see also Bonner v City of Brighton, 495 Mich 209, 235; 848 NW2d 380 (2014) (citing 

Mullane); In re Rood, 483 Mich 73, 92; 763 NW2d 587 (2009) (opinion by CORRIGAN, J) (citing 

Mullane regarding the due-process requirement of notice in the context of child-protective 

proceedings). It is “plain beyond the need for multiple citation that a natural parent’s desire for 

and right to the companionship, care, custody, and management of his or her children is an interest 

far more precious than any property right.” Santosky, 455 US at 758-759 (quotation marks and 

citation omitted). When the state seeks to interfere with these important familial relationships, the

procedures employed must be “fundamentally fair.” Id. at 753-754; see also In re Brock, 442 Mich 

101, 111; 499 NW2d 752 (1993).

“An elementary and fundamental requirement of due process in any proceeding which is 

to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise 

interested parties of the pendency of the action and afford them an opportunity to present their 

objections.” Mullane, 339 US at 314. The “right to be heard has little reality or worth unless one 

is informed that the matter is pending and can choose for himself whether to appear or default, 

acquiesce or contest.” Id. Furthermore, “[t]he notice must be of such nature as reasonably to 

convey the required information, and it must afford a reasonable time for those interested to make 

their appearance. But if with due regard for the practicalities and peculiarities of the case these 

conditions are reasonably met the constitutional requirements are satisfied. Id. at 314-315 

(citations omitted; emphasis added).

At issue in this case is the lack of notice respondent received prior to the date of the 

preliminary hearing. MCR 3.965(B)(1) addresses issues of notice and attendance of respondent 

parents regarding the preliminary hearing, stating as follows:

The court must determine if the parent, guardian, or legal custodian has been 

notified, and if the lawyer-guardian ad litem for the child is present. The 

preliminary hearing may be adjourned for the purpose of securing the appearance 

of an attorney, parent, guardian, or legal custodian or may be conducted in the 

absence of the parent, guardian, or legal custodian if notice has been given or if the 

court finds that a reasonable attempt to give notice was made.
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Furthermore, “the court shall ensure” that a respondent in a child protective proceeding is 

“notified of each hearing.” MCR 3.921(B)(1)(a). MCR 3.920(B)(2)(b) provides in relevant part 

that “[i]n a child protective proceeding, a summons must be served on any respondent and any 

nonrespondent parent.” MCR 3.920(B) further provides:

(3) Content. The summons must direct the person to whom it is addressed 

to appear at a time and place specified by the court and must:

(a) identify the nature of hearing;

(b) explain the right to an attorney and the right to trial by judge or jury, 

including, where appropriate, that there is no right to a jury at a termination hearing;

(c) if the summons is for a child protective proceeding, include a notice that 

the hearings could result in termination of parental rights; and

(d) have a copy of the petition attached.

(4) Manner of Serving Summons.

(a) Except as provided in subrule (B)(4)(b), a summons required under 

subrule (B)(2) must be served by delivering the summons to the party personally.

(b) If the court finds, on the basis of testimony or a motion and affidavit, 

that personal service of the summons is impracticable or cannot be achieved, the 

court may by ex parte order direct that it be served in any manner reasonably 

calculated to give notice of the proceedings and an opportunity to be heard, 

including publication.

(c) If personal service of a summons is not required, the court may direct 

that it be served in a manner reasonably calculated to provide notice.

(5) Time of Service.

(a) A summons shall be personally served at least:

(i) 14 days before hearing on a petition that seeks to terminate parental rights 

or a permanency planning hearing,

(ii) 7 days before trial or a child protective dispositional review hearing, or

(iii) 3 days before any other hearing.

(b) If the summons is served by registered mail, it must be sent at least 7 

days earlier than subrule (a) requires for personal service of a summons if the party 

to be served resides in Michigan, or 14 days earlier than required by subrule (a) if 

the party to be served resides outside Michigan.
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(c) If service is by publication, the published notice must appear in a 

newspaper in the county where the party resides, if known, and, if not, in the county 

where the action is pending. The published notice need not include the petition 

itself. The notice must be published at least once 21 days before a hearing specified 

in subrule (a)(i), 14 days before trial or a hearing specified in subrule (a)(ii), or 7 

days before any other hearing.

Additionally, MCR 3.920(D) involves notice of hearings and provides as follows:

(D) Notice of Hearing.

(1) General. Notice of a hearing must be given in writing or on the record 

at least 7 days before the hearing except as provided in subrules (D)(2) and (D)(3),

or as otherwise provided in the rules.

(2) Preliminary Hearing; Emergency Removal Hearing.

(a) When a juvenile is detained, notice of the preliminary hearing must be 

given to the juvenile and to the parent of the juvenile as soon as the hearing is 

scheduled. The notice may be in person, in writing, on the record, or by telephone.

(b) When a child is placed outside the home, notice of the preliminary 

hearing or an emergency removal hearing under MCR 3.974(C)(3) must be given 

to the parent of the child as soon as the hearing is scheduled. The notice may be in 

person, in writing, on the record, or by telephone.

(3) Permanency Planning Hearing; Termination Proceedings.

(a) Notice of a permanency planning hearing must be given in writing at 

least 14 days before the hearing.

(b) Notice of a hearing on a petition requesting termination of parental rights 

in a child protective proceeding must be given in writing at least 14 days before the 

hearing.

(4) Failure to Appear. When a party fails to appear in response to a notice 

of hearing, the court may order the party’s appearance by summons or subpoena.

In this case, the record makes clear that respondent was never served prior to the 

preliminary hearing with written notice of the preliminary hearing or a summons. Notice of the 

hearing was sent to the DHHS and the prosecutor, and from what we can glean from Nichols’ 

testimony, respondent only received actual notice of the preliminary hearing via telephone at 

approximately noon on the day of the hearing. This unexplained lack of notice to respondent 

occurred even though the preliminary hearing had been scheduled on the court’s calendar nine 

days before it occurred. The record also reflects that respondent contacted the referee directly and 

that the referee denied her request to adjourn the hearing to a later date.
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Contrary to petitioner’s characterization on appeal of Nichols’ description of his telephone 

conversation with respondent that occurred on the day before the hearing, there is nothing in the 

record to indicated that Nichols actually informed respondent during that conversation of the court 

proceeding that was scheduled to occur on November 13 without resorting to speculation and 

conjecture. Nichols specifically told the referee at the preliminary hearing that on the previous 

day, he had spoken to respondent in an attempt to set up a family team meeting so he “could go 

over what would be happening at court.” In other words, Nichols explained to the referee that his 

reason for trying to schedule a family team meeting was to discuss what would occur in court but 

there is nothing in the record before us from which we can glean that Nichols made this reason 

apparent to respondent. Instead, he texted and called her on the day of the hearing to inform her 

of the hearing that was scheduled, and he eventually succeeded in giving her notice that day, 

approximately two hours before the hearing was scheduled to begin.

Turning first to the relevant court rules, MCR 3.920(D)(2)(b) permits notice of a 

preliminary hearing to be given by telephone but also requires notice of the preliminary hearing to 

be given as soon as the hearing is scheduled. The referee determined that notice had been given 

to respondent and that the hearing could therefore proceed in respondent’s absence. MCR 

3.965(B)(1); MCR 3.921(B)(1)(a).

However, the question becomes whether two hours oral notice of the hearing was 

fundamentally fair and provided respondent with constitutionally sufficient due process under the 

circumstances present here, see Santosky, 455 US at 753-754; Mullane, 339 US at 313-315, where 

the hearing had been scheduled nine days earlier and Nichols had spoken with respondent by 

telephone the previous day without specifically notifying her of the hearing that was scheduled to 

occur the next day, instead waiting until essentially the last minute to ensure that respondent 

received some degree of notice.

To determine what constitutes sufficient due process before a parent’s fundamental liberty 

interest in the care, custody, and control of the parent’s child is burdened by the state, we apply 

the three factors enunciated by the United States Supreme Court in Mathews v Eldridge, 424 US 

319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976). See In re Sanders, 495 Mich at 410-411.

“[I]dentification of the specific dictates of due process generally requires 

consideration of three distinct factors: 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.” [In re Sanders, 495 Mich at 

410-411, quoting Mathews, 424 US at 335 (alteration in original).]

With respect to the first factor, a parent’s interest in the care, custody, and control of the 

parent’s child is, as we have already noted, one of the fundamental liberty interests protected by 

the Fourteenth Amendment and an interest that is obviously more important than any mere 

property interest. Santosky, 455 US at 753, 758-759; In re Sanders, 495 Mich at 409. The 

importance of a parent’s private interest in maintaining the fundamental right to direct the care, 

custody, and control of his or her child without governmental interference, as well as the parent’s 
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interest in the accuracy and justice of a decision affecting that fundamental right is “commanding,”

see Santosky, 455 US at 758-759, and “cannot be overstated,” In re Sanders, 495 Mich at 415. 

With respect to the second factor, the “essence of due process is the requirement that a 

person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet 

it.” Bonner, 495 Mich at 238 (quotation marks and citation omitted; alteration in original). Here, 

the preliminary hearing at issue was directed at deciding both whether the petition would be 

authorized and whether KF should be removed from respondent’s care at that juncture, clearly 

presenting the potential of a serious loss for respondent in the form of separation from her child 

for at least some period of time. See Stanley, 405 US at 647 (“This Court has not, however, 

embraced the general proposition that a wrong may be done if it can be undone. Surely, in the 

case before us, if there is delay between the doing and the undoing petitioner suffers from the 

deprivation of his children, and the children suffer from uncertainty and dislocation.”) (citation 

omitted).

The “right to be heard has little reality or worth unless one is informed that the matter is 

pending,” and adequate notice “must afford a reasonable time for those interested to make their 

appearance.” Mullane, 339 US at 314 (emphasis added). We question whether such short notice

as occurred in the instant case would be considered even remotely reasonable had it occurred in 

any context other than a child-protective proceeding, proceedings in which trial courts, 

prosecutors, and the DHHS are notorious for holding parents to unrealistic—and often unfair—

expectations of conscientiousness while excusing without question the lack of diligence or 

conscientiousness by DHHS workers. See, e.g., In re Rood, 483 Mich at 107-109, 111 (opinion 

by CORRIGAN, J.) (noting that the trial court’s and DHHS’s “compliance with the relevant laws 

and regulations was sorely lacking,” describing the DHHS’s lackluster efforts to involve the 

respondent, and noting that the trial court “excused” the DHHS’s “failures of notice and 

communication” even though the trial court held the respondent accountable for his own 

communication shortcomings). This case provides another perfect example. Nichols failed to give 

respondent notice of the hearing when he was able to speak with her the day before the hearing 

and instead waited until the day of the hearing to try again.1 Yet, petitioner on appeal faults 

respondent for not immediately arranging to attend the hearing on mere hours’ notice and failing 

to provide a “good reason” for being unable to do so. This argument runs counter to the reality 

that petitioner had a responsibility to “make reasonable attempts to provide adequate notice” of 

the preliminary hearing. See id. at 113-114; see also In re Adair, 191 Mich App 710, 715; 478 

NW2d 667 (1991) (“The DSS, as the petitioning party, is charged with providing that service of 

process is accomplished in accordance with the court rules.”); MCR 3.921(B)(1)(a); MCR 

3.965(B)(1).

 

1 Additionally, the referee made no inquiry into why DHHS and the prosecutor were served but 

not respondent. Further, the referee did not make a meaningful record as to its basis for concluding 

that respondent’s due process rights were not violated by the complete lack of written notice to 

respondent.
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Furthermore, although respondent was represented by an attorney at the preliminary 

hearing, there is no indication in the record that the attorney had met with respondent beforehand.

2

 

In the absence of any discussions, we conclude that representation under such circumstances was, 

at best, constitutionally insufficient. See In re Adair, 191 Mich App at 711-715 (reversing the trial 

court’s order placing the respondent-mother’s minor children in temporary foster care based on 

the lack of proper notice to the respondent, and the trial court’s failure to find that reasonable 

efforts had been made to locate respondent-mother before alternative service by publication was 

permitted, despite the fact that the respondent was represented by an attorney at the various 

proceedings from which she was absent); cf. also Geders v United States, 425 US 80, 88; 96 S Ct 

1330; 47 L Ed 2d 592 (1976) (discussing the importance of the discussions and consultations 

between client and attorney during the course of the proceedings for strategizing and sharing 

information).

Providing respondent with two hours’ notice of the hearing, when the record reflects that 

notice could have been provided the previous day during Nichols’ telephone conversation with 

respondent, does not appear to be notice that provided respondent with a reasonable time in which 

to respond to the petition, Mullane, 339 US at 314, or a meaningful opportunity to participate in 

the preliminary hearing that was conducted in respondent’s absence and that ended with an order 

to remove KF from the care of respondent and thereby infringed on respondent’s right to the 

companionship, care, custody, and management of KF for at least some period of time, Santosky, 

455 US at 758-759; Armstrong v Manzo, 380 US 545, 551, 552; 85 S Ct 1187; 14 L Ed 2d 62 

(1965) (stating that the Constitution requires “timely notice” and that the “ ‘opportunity to be 

heard’ ” that is a fundamental requirement of due process “must be granted at a meaningful time 

and in a meaningful manner”) (citation omitted).

Under the circumstances present here, the risk of an erroneous deprivation of respondent’s 

right to the care, custody, and control of KF—even if the removal does not end in the permanent 

termination of her parental rights—and the high value of taking the simple additional step of 

informing respondent of the hearing while talking to her on the telephone the previous day, weigh 

heavily in favor of providing this additional reasonable effort toward giving adequate notice and 

concluding that respondent was not provided with constitutionally sufficient due process.

Next, we consider the third factor involving the governmental interest. When the parent 

has not yet been adjudicated unfit, which was the case here with respondent, the state’s interest is 

also in preserving the familial relationship and is perfectly aligned with the parent’s interest; at 

this stage, there is no conflict between this interest of the state and its parallel interest in protecting 

the child. In re Sanders, 495 Mich at 415-417; see also 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.”) (emphasis added). Moreover, no additional cost or financial burden 

would have been incurred by the government had Nichols made the slight additional effort that 

 

2 Again, the referee did not make a record as to whether counsel had met with or discussed the 

matter with respondent prior to the hearing. On this paltry record, we are forced to presume that 

counsel and respondent never engaged in any manner of discussion prior to the hearing.
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would have been necessary to have provided respondent with notice on the day before the hearing 

in this case. Had Nichols been trying diligently to contact respondent without success, reaching 

her only for the first time on the day of the hearing, our analysis would be different. But that is 

not what happened here. According to the record, Nichols spoke with respondent the day before 

the hearing but did not inform her of the scheduled hearing, instead waiting until the day of the 

hearing to try to inform her. Further, there is no evidence in the record that additional steps were 

taken to give respondent notice.

In light of the important private interest at stake, which coincides with the government’s 

important interests of protecting children and preferring to keep family relationships intact, the 

importance and value of ensuring that adequate notice is given to respondent-parents in childprotective proceedings, and the relatively minimal effort that it would have taken to give 

respondent in this case more than a mere two hours’ notice, we conclude that respondent was not 

provided with constitutionally sufficient due process under these circumstances. The process 

given to respondent in this case before removing her child was not “fundamentally fair.” Santosky, 

455 US at 753-754; In re Brock, 442 Mich at 111. “[W]hen notice is a person’s due, process which 

is a mere gesture is not due process.” Mullane, 339 US at 315. Here, the DHHS’s attempt at 

notice barely qualifies as a “mere gesture.” As is unfortunately all too common, the DHHS allowed 

its legitimate concern for protecting children to cause it to neglect its concomitant responsibility 

to also treat parents with fundamental fairness.

We therefore vacate the trial court’s order to remove KF from respondent’s care following 

the preliminary hearing. See In re Sanders, 495 Mich at 401, 422-423 (vacating the trial court’s 

order limiting a father’s contact with his children and requiring him to comply with services where

the father had not been specifically adjudicated as unfit, reasoning that the order should be vacated 

because due process required a specific adjudication of a parent’s unfitness before interfering with 

the parent-child relationship and an impermissible infringement on a parent’s fundamental right to 

direct the care, custody, and control of the parent’s child without providing adequate process is 

unconstitutional under the Due Process Clause of the Fourteenth Amendment); Mullane, 339 US 

at 307-309, 313, 319-320 (reversing a judgment because the beneficiaries of a common trust fund

had received constitutionally insufficient notice of the proceedings affecting their property 

interests).3

 

3 We conclude that respondent preserved her lack-of-notice argument. Respondent called the court 

and sought to adjourn the matter to a later date. The referee denied this request and addressed this 

decision on the record. “In general, issues that are raised, addressed, and decided by the trial court 

are preserved for appeal.” In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014).

Petitioner argues on appeal that respondent waived any defects in notice because her 

appointed attorney represented her at the preliminary hearing and did not object to the notice 

received by respondent. Petitioner relies on MCR 3.920(H), which provides as follows:

(H) Notice Defects. The appearance and participation of a party at a hearing 

is a waiver by that party of defects in service with respect to that hearing unless 

objections regarding the specific defect are placed on the record. If a party appears 
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Vacated and remanded for further proceedings not inconsistent with this opinion. We do 

not retain jurisdiction.

/s/ Stephen L. Borrello 

/s/ Amy Ronayne Krause 

/s/ Michael J. Riordan 

 

or participates without an attorney, the court shall advise the party that the 

appearance and participation waives notice defects and of the party’s right to seek 

an attorney.

However, respondent did not appear and participate in the hearing. Petitioner has not cited 

any authority for the proposition that appointing an attorney for an absent parent at a preliminary 

hearing constitutes a de facto waiver of defects in notice where the absent parent explicitly claims 

that notice was constitutionally deficient in violation of the parent’s right to due process. A trial 

court cannot cure constitutionally deficient notice to the parent simply by appointing counsel in 

the parent’s absence.

Finally, in light of our determination regarding respondent’s due-process issue, 

respondent’s remaining appellate issue is moot and we decline to address it. B P 7 v Bureau of 

State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998).