Michigan court remands order to terminate parental rights

DETROIT, MI — Where a respondent’s parental rights were terminated, a remand must be ordered because the respondent was not served in accordance with the requirements of MCL 712A.12.

“Respondent argues that the termination of her parental rights violated her due-process rights because she was not properly served with the summons and notice of the combined adjudication and termination hearing. We agree. …

“In this case, there is no evidence that respondent was personally served with notice of the petition and the time and place for hearing. The proof of service reflects that the summons was delivered to and signed for by respondent’s grandmother at the address that respondent last reported to the trial court as her residence. The trial court accepted the DHHS’s argument that service was proper because the documents were signed by an adult residing at the same address as respondent. But service of a summons and notice of a termination proceeding on a parent is governed by MCL 712A.12, which requires that the parent be personally served. There is also no evidence that the DHHS moved for alternate service or that the trial court determined that personal service on respondent would be impracticable. Moreover, respondent never executed a written waiver of service of process or notice of hearing.

“The DHHS argues that respondent’s appearance at the adjudication trial and termination hearing and failure to raise objections regarding a specific defect in service constitutes a waiver under MCR 3.920(H). Subsection (H) states, ‘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.’ At the adjudication trial, respondent’s counsel inquired about whether service was proper, but she took no particular position on the issue, noting only that she wanted to verify that respondent was provided adequate notice. The trial was later halted when it was learned that respondent was being held in the Muskegon County jail. Respondent was brought to the courtroom from the jail, and the trial was restarted after the trial court denied her counsel’s request for an adjournment. Thereafter, respondent participated in the hearing and testified. But respondent was not afforded a reasonable time to prepare a defense. …

“We question whether respondent’s appearance and participation in the hearing could be considered voluntary under the circumstances. But it is not necessary for us to resolve that issue because ‘a probate court’s jurisdiction over children is derived solely from the state constitution and statutes.’ … MCL 712A.12 plainly states that a parent must be personally served with notice of a termination proceeding hearing. Although the statute states that personal service may be waived in writing, it does not state that a person’s appearance and participation in a hearing constitutes a waiver of any defects in service unless objections regarding the specific defect are made. Thus, there is a conflict between MCL 712A.12 and MCR 3.920. Our Supreme Court has the exclusive authority to determine rules of practice and procedure, but it ‘is not authorized to enact court rules that establish, abrogate, or modify the substantive law.’ … Because the issue of service is a jurisdictional one, MCL 712A.12 prevails. …

“Respondent was not personally served with the summons and amended petition. There is no evidence that alternate service was requested or granted or that respondent executed a written waiver of service. Because respondent was not served in accordance with the statutory mandates, the trial court lacked jurisdiction and thus plainly erred by proceeding with the adjudication trial and termination hearing. … The lack of jurisdiction renders all trial court proceedings void. … On this basis, we must vacate the trial court’s order of adjudication and order terminating respondent’s parental rights to WRW and remand for further proceedings.

“Vacated and remanded for further proceedings.”

In re W.P.D. Richards-Welch; MiLW No. 08-110635, 7 pages; Michigan Court of Appeals unpublished per curiam; Riordan, J., Redford, J., Patel, J.; on appeal from Muskegon Circuit Court; Dawn M. Goodwin for appellant; Heather Bloomquist for appellee.