Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  April 6, 2018                                                                       Stephen J. Markman,
                                                                                                 Chief Justice

  155152                                                                                    Brian K. Zahra
                                                                                    Bridget M. McCormack
                                                                                          David F. Viviano
                                                                                      Richard H. Bernstein
                                                                                           Kurtis T. Wilder
  In re HILL, Minors.                                                                Elizabeth T. Clement,
                                                           SC: 155152                                 Justices
                                                           COA: 332923
                                                           Alger CC Family Division:
                                                           2013-004455-NA

  _____________________________________/

         On November 8, 2017, the Court heard oral argument on the application for leave
  to appeal the December 27, 2016 judgment of the Court of Appeals. On order of the
  Court, the application is again considered, and it is DENIED, there being no majority in
  favor of granting leave to appeal or taking other action.

         MCCORMACK, J., (dissenting).

          I respectfully dissent from this Court’s order denying leave to appeal. I would
  grant leave and overrule In re Hatcher, 443 Mich 426 (1993), or in the alternative, hold
  that the collateral bar rule must give way to due process.

          The respondent-mother’s children were removed in May 2013 by the Department
  of Health and Human Services (DHHS) and an initial disposition hearing was held in
  August, at which the respondent admitted several allegations and pleaded no contest to
  several others. The parties do not dispute that her plea was defective, as the trial court
  did not inform her of her rights as required by MCR 3.971(B): the respondent was not
  told she was giving up the right to conduct a trial, force the DHHS to prove its
  allegations, confront witnesses against her, and compel attendance of favorable
  witnesses. Nor—importantly here—was she told that her plea could be used against her
  in a later proceeding to terminate her parental rights. As a result of the defective plea, the
  court took jurisdiction over her children and adopted the DHHS’s recommended service
  plan. Over the next two and a half years, the court held a series of review hearings to
  assess the respondent’s progress. In 2016, DHHS sought to terminate the respondent’s
  rights and the court did so.
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        The respondent appealed. She argued that because her plea was defective, the
court lacked jurisdiction to terminate her parental rights. The Court of Appeals affirmed,
holding that she was precluded from complaining about her plea by the collateral bar
rule, citing Hatcher. In re Hill, Minors, unpublished per curiam opinion of the Court of
Appeals, issued December 27, 2016 (Docket No. 332923). We ordered arguments on the
application and asked the parties to address whether Hatcher correctly held that the
collateral bar rule could prevent a parent from challenging the court’s initial exercise of
jurisdiction after the court terminated her parental rights, if not what standard courts
should apply in this context, and whether Hatcher was correctly decided. I would answer
those questions now.

         A child protective action is started by a petition alleging parental abuse or neglect,
and then proceeds in two phases: adjudication and disposition. In re Sanders, 495 Mich
394, 404 (2014), citing In re Brock, 442 Mich 101, 108 (1993). At the adjudicative
phase, a parent can either enter a plea to the allegations in the petition, MCR 3.971, or
demand a trial, MCR 3.972. If the court finds the allegations proven, whether by plea or
trial, it assumes jurisdiction over the child. Sanders, 495 Mich at 405. “Once the court
has jurisdiction, it determines during the dispositional phase what course of action will
ensure the child’s safety and well-being.” Id. at 404; see also MCR 3.973.

       During the dispositional phase the court monitors and assesses a parent’s progress
under the DHHS case service plan in review hearings. MCR 3.975. If the parent cannot
make progress under the plan, DHHS may seek to terminate his or her parental rights. At
the end of the process, the court may decide to reunify the family or terminate the
parent’s rights. MCR 3.976; MCR 3.977(H). It is then that the proceeding is completed.

        The collateral bar rule requires a litigant to challenge a trial court’s erroneous
decision in a direct appeal of that decision and forbids an attack in a different (collateral)
proceeding.1 Hatcher first applied the collateral bar rule to child-protective proceedings
but its application was novel. Hatcher effectively held that a child-protective action is
really multiple actions with multiple final orders, each of which must be appealed
immediately and separately. This view of a child-protective action misunderstands the
processes and rules that govern it, and disserves children and families by that
misunderstanding.
1
  This rule is longstanding and common across legal disciplines. See e.g. People v
Ingram, 439 Mich 288, 291 n 1 (1992) (“Collateral attacks encompass those challenges
raised other than by initial appeal of the conviction in question.”); People v Howard, 212
Mich App 366, 369 (1995) (“[A] challenge brought in any subsequent proceeding or
action is a collateral attack.”); Workers’ Compensation Agency Dir v MacDonald’s Indus
Prod, Inc (On Reconsideration), 305 Mich App 460, 474 (2014) (describing a collateral
attack as using “a second proceeding to attack a tribunal’s decision in a previous
proceeding”).
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       Hatcher’s rule is that a parent who appeals a defect in the adjudicative phase at the
end of the proceeding is “collaterally” attacking that very same proceeding. But as then
Justice CORRIGAN has explained, “[a] child protective action is ‘a single continuous
proceeding.’ ” In re Hudson, 483 Mich 928, 935 (2009) (CORRIGAN, J., concurring),
quoting In re LaFlure, 48 Mich App 377, 391 (1973). Each proceeding starts with the
filing of a petition, and ends with a determination of whether a parent’s rights will be
terminated.

       This understanding is reinforced by our Court Rules. To the extent that
MCR 3.993 can be read as permitting a parent to appeal a nonfinal order at the
adjudication phase, there is no rule requiring that a parent be advised of that fact, much
less any rule advising that if the parent does not appeal they will be barred from doing so
at the end of the proceeding. Nor is there a rule requiring appointment of counsel to
pursue such an appeal, as there is when a parent’s rights are terminated. MCR 3.977(J).
As a result, Hatcher’s requirement that a parent appeal immediately after a court issues a
nonfinal order in the adjudication phase is not made plain to a parent until it is too late.

       These important differences set Hatcher apart from the precedent on which it
relied. The Hatcher opinion cited Jackson City Bank & Trust Co v Fredrick, 271 Mich
538 (1935), to justify applying the collateral bar rule within a child protective action. But
Jackson City Bank presented a typical collateral bar question—a party challenging a final
judgment from a previous case in a subsequent and separate case. In that case, the parties
were granted a judgment of divorce and did not contest or appeal it. Id. at 545. In a new
lawsuit, the plaintiffs—who were not parties to the divorce proceeding but the heirs of
the wife’s second husband—sought to challenge the validity of the divorce, and the Court
barred their claims. Id. at 546. The same setup—a party using a subsequent lawsuit to
attack a prior judgment—underlies the other cases cited in Hatcher. See Life Ins Co of
Detroit v Burton, 306 Mich 81, 84-85 (1943) (defendant filed to set aside a sheriff’s levy
and sale several months after it occurred, claiming the court lacked jurisdiction);
Edwards v Meinberg, 334 Mich 355 (1952) (defendant lost a jury trial and then attacked
the court’s jurisdiction in a separate and subsequent proceeding).

        Given the inapt application of the collateral bar rule to the direct appeal of a single
child-protective proceeding, not surprisingly, we have already carved out many
exceptions to the Hatcher rule. See, e.g., Sanders, 495 Mich 394 (reversing a termination
in which one parent was improperly adjudicated as unfit and holding the one-parent
doctrine 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 (2010) (reversing a termination for failure to facilitate the
parent’s involvement during the adjudication and dispositional phases); In re Hudson,
483 Mich 928 (2009) (remanding where the trial court failed to advise the respondent that
her plea could be used in a proceeding to terminate her parental rights); In re Mitchell,
                                                                                            4

485 Mich 922 (2009) (same). Cf. In re Rood, 483 Mich 73, 111 (2009) (opinion by
CORRIGAN, J.) (reversing a termination order because the trial court did not provide
parent with proper notice of dispositional hearings). In each of these cases we did not
view Hatcher as an impediment to each parent’s challenge to an error from the
adjudication phase after termination. And we have recently summarily reversed parental
termination orders on due process grounds despite Hatcher. See, e.g., In re Jones, 499
Mich 862 (2016) (reversing a parental termination order after the Court of Appeals held
the respondent’s claims were barred by Hatcher); In re Wangler, 498 Mich 911 (2015)
(same). With all of these carve-outs, it is hard to say what is left of the Hatcher rule.

       Which makes sense, given the Hatcher rule’s flimsy foundation; an
intraproceeding collateral bar rule will be no match for the constitutional concerns at
issue when a court terminates a parent’s rights. The rule also undermines the first
principle of the juvenile code, MCL 712A.1 et seq. to support children in their own
homes. See MCL 712A.1(3) (“This chapter shall be literally 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.”). Achieving finality for children in child-protective proceedings as
soon as possible is a critical goal too. But the Hatcher rule disserves even that goal.
Incentivizing parents to file interlocutory appeals for fear of waiving an issue instead of
promoting a parent’s timely cooperation with DHHS will only make coming to a final
determination in a proceeding a longer process.

       A parent’s right to raise his or her children is ancient, profound, and firmly
established in our jurisprudence. “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 (1923) and Troxel v Granville, 530 US 57, 65 (2000) (cleaned up). And the
right “does not evaporate simply because” one has not been a model parent. Santosky v
Kramer, 455 US 745, 753 (1982). As a result, the termination of the right is “unique in
the kind, the degree, and the severity of the deprivation [it] inflict[s].” In re Sanchez, 422
Mich 758, 765 (1985) (quotation marks and citation omitted). And robust protection of
parental rights furthers the best interests of children, because “[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. A court-fashioned rule that prevents
a parent from having a court consider a meritorious claim of a defect in the governmental
process that permanently separates a parent from a child is one we should disavow
affirmatively, rather than whittle away one case at a time.

       For all of these reasons, I believe Hatcher was wrongly decided and I would say
so here. But short of that, I would hold that the Hatcher rule must yield to due process
here, as we have held that it does in so many similar contexts. See Sanders, 495 Mich
394; Hudson, 483 Mich 928; Mitchell, 485 Mich 922.
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      VIVIANO and BERNSTEIN, JJ., join the statement of MCCORMACK, J.

      CLEMENT, J., did not participate in the disposition of this matter because the Court
considered it before she assumed office.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         April 6, 2018
       p0404
                                                                             Clerk
