Order Michigan Supreme Court
Lansing, Michigan
February 2, 2007 Clifford W. Taylor,
Chief Justice
132448 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
_________________________________________ Stephen J. Markman,
Justices
IN RE CAMERON MAURICE CHESTER, Minor.
_________________________________________
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v SC: 132448
COA: 272775
Oakland CC
Family Division: 06-718341-NA
EVELYN CHESTER,
Respondent-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 15, 2006
order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we REMAND this case to the Court of Appeals for
consideration as on leave granted, and DIRECT that court to decide the case on an
expedited basis.
KELLY, J., concurs and states as follows:
I agree with this Court’s decision to remand this case to the Court of Appeals for
consideration as on leave granted. I write separately to highlight the unusual facts of this
case.
The Oakland Circuit Court, Family Division, entered an order terminating
respondent’s parental rights to her minor son. Respondent filed a request for the
appointment of appellate counsel. Notwithstanding the fact that respondent filed her
request more than 14 days after the court terminated her parental rights,1 the trial court
granted her request and appointed appellate counsel. Appellate counsel filed a claim of
1
MCR 7.204(A)(1).
2
appeal on respondent’s behalf on September 5, 2006, which the Court of Appeals denied.
Respondent filed a motion for reconsideration.
The Court of Appeals denied the motion, reasoning that it could not accept a
delayed application for leave to appeal because more than 63 days had elapsed since the
trial court terminated respondent’s parental rights. See MCR 3.993(C)(2). It appears, on
the basis of the Court of Appeals reference to MCR 3.993(C)(2),2 that it would have
treated the claim of appeal as an application for leave to appeal, had it been filed within
63 days. I believe that this would have been the proper course to take. On remand, it
should be noted that the 63rd day following the entry of the order terminating
respondent’s parental rights was Labor Day. MCR 1.108(1) provides that, if the last day
of the period is a holiday, the period runs until the end of the next day.
Therefore, respondent’s September 5, 2006, claim of appeal, which the Court of
Appeals properly treated as an application for leave to appeal, was filed within 63 days
following the order terminating respondent’s parental rights. Accordingly, because the
appeal was timely filed, the case has been remanded for consideration as on leave
granted.
CORRIGAN, J., dissents and states as follows:
I respectfully dissent from the majority’s decision to remand this case to the Court
of Appeals for consideration as on leave granted. The Court of Appeals did not err in
dismissing respondent’s claim of appeal for lack of jurisdiction.
In this case, the trial court entered an order terminating respondent’s parental
rights to her son. In order to perfect an appeal of right, respondent was required to either
file a claim of appeal or seek the appointment of appellate counsel within 14 days of the
entry of the order terminating her parental rights. MCR 3.977(I)(1)(c), 7.204(A)(1)(c).
Here, respondent waited until 48 days after entry of the order terminating parental rights
to request the appointment of counsel. The trial court nonetheless appointed counsel, and
a claim of appeal was filed on respondent’s behalf 64 days after entry of the order
terminating parental rights.
The Court of Appeals dismissed the claim of appeal for lack of jurisdiction
because respondent “failed to request the appointment of appellate counsel within 14
days of the entry of the July 3, 2006 order terminating her parental rights. MCR
3.977(I)(2), 3.993(A)(2), 7.203(A)(2), and 7.204(A)(1)(c).” Unpublished order of the
Court of Appeals, entered September 15, 2006 (Docket No. 272775). Respondent moved
for reconsideration of the dismissal of the claim of appeal. The Court of Appeals denied
2
The Court of Appeals order transposed the numbers of the court rule and mistakenly
referenced MCR 3.933(C)(2).
3
reconsideration, and then stated: “Furthermore, this Court cannot accept a delayed
application for leave to appeal as more than 63 days have elapsed since the Oakland
Circuit Court, Family Division entered the July 3, 2006 order terminating appellant’s
parental rights. MCR 3.933(C)(2) [sic, 3.993(C)(2)] and 7.203(B)(4).” Unpublished
order of the Court of Appeals, entered October 25, 2006 (Docket No. 272775).
The court rules cited by the Court of Appeals fully support its dismissal of the
claim of appeal. The time limit for an appeal of right is jurisdictional. MCR 7.204(A).
An appeal of right from an order terminating parental rights must be taken within 14 days
after entry of the order. MCR 7.204(A)(1)(c). If a request for the appointment of
appellate counsel is made within 14 days, the claim of appeal must be filed within 14
days of the request for counsel. MCR 3.977(I)(1) and (2). In short, to perfect a claim of
appeal, respondent was required to file either a claim of appeal or a request for the
appointment of appellate counsel within 14 days after the entry of the order terminating
her parental rights.
Here, it is undisputed that respondent failed to file either a claim of appeal or a
request for counsel within the time required by the rules. Thus, the Court of Appeals
correctly determined that it lacked jurisdiction and dismissed the claim of appeal.
This Court’s order does not explain why it is upsetting the Court of Appeals
application of the jurisdictional rules. In her concurring statement, Justice Kelly purports
to divine an unstated intent by the Court of Appeals to treat “the claim of appeal as an
application for leave to appeal, had it been filed within 63 days.” Ante at 1. She further
opines “that this would have been the proper course to take.” Id. She indicates that
because of the Labor Day holiday, respondent’s claim of appeal, if treated as an
application for leave to appeal, would have been timely because the last day of the period
was a holiday, and the period thus ran until the end of the next day under MCR 1.108(1).
I do not dispute Justice Kelly’s calculation that, because of the Labor Day holiday,
the 63 days for filing a delayed application for leave to appeal did not expire until the end
of the day after the holiday. But her calculation is entirely irrelevant to the issue before
us. That is because respondent did not file a delayed application for leave to appeal. Nor
did the Court of Appeals treat the claim of appeal as a delayed application. On the
contrary, the Court of Appeals dismissed the claim of appeal because respondent did not
satisfy the jurisdictional requirements for filing a claim of appeal—the order explained
that respondent did not request counsel within 14 days of the order terminating her
parental rights.
Justice Kelly has misconstrued the Court of Appeals order denying reconsideration
as reflecting some sort of hidden intent to treat the claim of appeal as a delayed
application. But the order expresses no such intent. The Court of Appeals merely
observed, after denying reconsideration, that, “[f]urthermore, this Court cannot accept a
4
delayed application for leave to appeal as more than 63 days have elapsed since the”
entry of the order terminating parental rights. (Emphasis added.) This language reflects
that the Court of Appeals was simply observing, after denying reconsideration, that, as of
that date, it was by then too late for respondent to file a delayed application. That is why
the Court of Appeals stated that more than 63 days “have” elapsed. It did not remotely
purport to say that the 63-day period had expired on the day after Labor Day, and that if
the period had not expired on that day, it would have treated the claim of appeal as a
delayed application. Thus, the record does not support Justice Kelly’s view that the
Court of Appeals harbored an unexpressed desire to treat the claim of appeal as a delayed
application.
Accordingly, I would deny leave to appeal because the Court of Appeals did not
err in its application of the jurisdictional court rule provisions.
YOUNG, J., joins the statement of CORRIGAN, J.
I, Corbin R. Davis, 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.
February 2, 2007 _________________________________________
s0130 Clerk