In Re Perry

Danhof, C.J.

In these consolidated cases, respondents appeal as of right from an order of the probate court terminating their parental rights to DeShawn Perry.

DeShawn was born on June 13, 1982, more than three months premature. He remained hospitalized for almost five months thereafter for treatment of respiratory, neurological, and ophthalmological problems. He was not expected to live and was considered a special needs child. Respondent Perry was 14 years old when she gave birth to *607DeShawn. She resided with her mother, Roberta Perry. Respondent Taylor, the putative father, was 15 years old at DeShawn’s birth. Respondent Taylor has not acknowledged paternity of the child.

On September 1, 1982, a hospital social worker referred DeShawn’s case to petitioner, Department of Social Services. On October 19, 1982, petitioner initiated these proceedings by filing a petition seeking temporary custody of DeShawn. The petition alleged that DeShawn came within the provisions of the Probate Code because Roberta Perry refused to permit respondent Perry and DeShawn to reside with her, DeShawn required special medical care, and neither respondent had an adequate residence or plan for the care and support of DeShawn.

The following facts related to the adjudicative and statutory review hearings are gleaned from the parties’ briefs and from the incomplete record which was filed here. On October 27, 1982, an adjudicative hearing was held before a probate court referee. After advising respondents of their right to counsel, the referee concluded that the probate court had jurisdiction and placed DeShawn temporarily in its custody. The referee ordered that DeShawn be placed in foster care upon his discharge from the hospital.

From October 27, 1982, until December 15, 1983, three DSS foster care workers and two administrators of a child care training-counseling-paid employment program attempted without success to assist respondent Perry in preparing herself to regain custody of DeShawn. An initial report reflects a strategy which considered termination of parental rights as an appropriate plan assuming no changes in respondents’ circumstances. (See, Petitioner’s Exhibit 3, Closing and Transfer Report, by Children’s Protective Services worker, *608dated October 29, 1982, p 2: "In my assessment termination of parental rights is an appropriate plan, assuming no changes”.) A subsequent report described the strategy of petitioner as one working with the family in outreach therapy in order "to strengthen the family to make their [sic] own decisions for permanency placement” rather than having a social worker impose those decisions. (Petitioner’s Exhibit 4, Initial Social Summary, submitted by Helen Dansby, Social Work Intern, undated, p 3). Later reports, entitled "Hearing Summaries”, reflected petitioner’s desire to continue working with respondents. However, after a visit with DeShawn on August 19, 1983, respondent Perry did not respond to petitioner’s phone calls, letters and other efforts which sought to continue her visits with DeShawn.

On December 15, 1983, a petition seeking permanent custody and termination of respondents’ parental rights was filed. The petition alleged abandonment and neglect by respondents. The petition was authorized at a hearing held in January, 1984. Respondents were present and the probate court appointed counsel for respondents. At a preliminary hearing held February 7, 1984, respondents’ counsel contested the allegations of the petition. Counsel for respondent Perry made a motion to dismiss based on the following grounds: (1) respondents were entitled to counsel prior to the filing of the petition seeking permanent custody and the termination of respondents’ parental rights, (2) respondents did not knowingly and voluntarily waive their right to counsel at the adjudicative hearing held October 27, 1982, and (3) failure to appoint counsel tainted the review hearings and the termination proceedings. The probate court denied the motion. A final dispositional hearing was held April 25, 1984.

*609On appeal respondents claim the existence of a due process right to court-appointed counsel at an adjudicative or a statutory review hearing, founded upon existing case law and the juvenile court rules.

For the source of their constitutional claim, respondents turn to the broad language contained in part II of Justice Levin’s lead opinion in Reist v Bay Circuit Judge, 396 Mich 326, 339-346; 241 NW2d 55 (1976).1 The doctrine of stare decisis2 renders that broad language without precedential value because a majority of the justices sitting in Reist did not concur in Justice Levin’s discussion of a constitutional right to court-appointed counsel at termination proceedings. Justice Coleman, writing separately, described part II as dicta "concerning an unauthorized issue”. Id., p 357. She stated that it presents "a broad and indistinct vista of 'liberties’ to be protected and financial equalizing to be supplied”. Id., p 358. She noted that Michigan has long provided for appointment of counsel for indigents in every termination hearing and that the plaintiff in that case had counsel. Id., p 357. The issue actually decided by the Reist Court concerned an indigent parent’s right to appellate counsel and to a transcript of proceedings fur*610nished at public expense in an appeal from an order terminating parental rights.3

Respondents also rely upon In the Matter of Cobb, 130 Mich App 598; 344 NW2d 12 (1983), and In the Matter of Kenneth Jackson, Jr, 115 Mich App 40; 320 NW2d 285 (1982) to support their constitutional claim. These two cases rely upon the dicta of Reist v Bay Circuit Judge, supra,4 and are factually and legally distinguishable from the case at bar. In Cobb, supra, the issue was whether the probate court erred by its refusal to allow the respondent to revoke her initial waiver of counsel and to appoint counsel to represent her at the last dispositional hearing in which a final order terminating her parental rights was entered. By analogizing to the waiver of counsel principles established in criminal cases, the Court concluded that error occurred and reversed the final order. Id., pp 600-601.

In contrast, the issue presented in Jackson, Jr, supra, pp 48-50, was whether a lack of counsel at two statutory hearings, held pursuant to the Michigan juvenile code, prejudiced the voluntary release for adoption executed by the appellant mother, a minor, under the Adoption Code. Noting the lack of a statutory right to counsel under the Adoption Code and distinguishing between the voluntary nature of adoption proceedings and the involuntary nature of juvenile code termination proceedings, the Court found no error and affirmed the probate court’s order. Id., pp 51-52. The Court *611did not hold that a due process right to appointed counsel attached at a statutory review hearing, but merely observed that by following the Reist rationale one "should attach”. Id, p 50. Neither case addressed the issue of an indigent parent’s right to counsel at the outset of a juvenile code proceeding where only temporary, and not permanent, custody is sought. Thus, respondents’ reliance upon these cases is misplaced.

Respondents next turn to the Juvenile Court Rules, specifically JCR 1969, 8.2(C)5 and 6.3(A)(2)(b),6 to support their claimed right to counsel.

At the outset of the adjudicative phase, the probate court is required to advise the child and his parent, parents, guardian, custodian or guardian ad litem of their respective rights to counsel as provided by JCR 1969, 6. JCR 1969, 8.2(C). The probate court is obligated to advise the child and his parents, guardian or custodian at the first hearing before the court that they may be represented by counsel and that counsel may be appointed under subrule 6.3. JCR 1969, 6.1(A),7 In *612this case, all parties agree that both respondents were present and advised of their right to counsel at the outset of the adjudicative hearing held before the probate court referee.8 Notwithstanding the fulfillment of the probate court’s duty to advise respondents of their right to counsel, respondents claim that the probate court was required to appoint counsel for them on its own motion at the adjudicative and statutory review hearings.

The rule governing appointment of counsel, JCR 1969, 6.3(A)(2),9 provides:

".3 Court-Appointed Counsel (Formal Calendar). When proceeding on the formal calendar the court shall appoint counsel to represent the child, his parents, guardian, or custodian as follows:
"(A) When the Court Shall Appoint Counsel.
“(2) Offense Against Child.
"(a) For the Child: Counsel shall be appointed for the child on the court’s own motion, or upon request of the child or the parent, guardian, custodian, or guardian ad litem appearing in his behalf when it shall appear to the court the child’s interests may be adverse to those *613of a parent, guardian or custodian, or are not otherwise adequately represented.
"(b) For Other Parties: Unless waived as provided by Rule 6.2, counsel shall be appointed on the court’s own motion to represent the parents, guardian, or custodian of the child charged with offense against the child at hearings which may involve termination of their rights when legal aid or public defender counsel is not available, and they are financially unable to employ counsel to represent themselves. The court may, upon request therefor, when legal aid or public defender counsel is not available and they are financially unable to employ counsel to represent themselves, appoint counsel to represent such persons at other hearings conducted under provisions of the Juvenile Code or these rules.” (Emphasis added.)[10]

Respondents would give a broad construction to the language "hearings which may involve termination”. They would interpret it to include an adjudicative hearing and subsequent statutory review hearings which are held upon a petition for temporary custody and which precede the filing of a petition seeking permanent custody and termination of parental rights.11 Respondent Perry reasons *614that, since the adjudicative hearing is the firát and a necessary step in termination proceedings, counsel is required because the hearing may lead to the temporary termination of the parents’ custody and placement of the child outside of the home.

Rules of procedure are governed by principles of statutory construction in order to ascertain the intent of the Supreme Court in promulgating the rules. Issa v Garlinghouse, 133 Mich App 579, 581; 349 NW2d 527 (1984). Because the Supreme Court is "truly cognizant” of the doctrine of statutory construction, we are especially guided by them here. People v Lange, 105 Mich App 263, 266-267; 306 NW2d 514 (1981). The rules are to be interpreted in light of, and consistent with, the general purpose sought to be served. Issa v Garlinghouse, supra, p 582.

In my view, the language of JCR 1969, 6.3(A)(2)(b), "hearings which may involve termination of [parental] rights”, contemplates a proceeding in which a petition seeking permanent custody and termination has been filed or a proceeding in which the probate court has indicated that termination, an alternative which was not actually previously considered, has become a possibility.

Several reasons support this view. First, if the Supreme Court had intended to require court-appointed counsel at an adjudicative hearing in a neglect proceeding, it could have expressly said so. It did not. I believe that the interpretation advanced by respondents is one more appropriately left for the consideration of the Supreme Court, which may amend the rule to require court-appointed counsel at the earliest hearing.

Second, the fact that an adjudicative hearing is the first and a necessary step in a juvenile court *615neglect proceeding is of little moment. Not every adjudicative hearing precedes or results in a decision to terminate parental rights. While it is true that a juvenile court may terminate parental rights in every case,12 that result is not a foregone conclusion.

Further, this Court has stated that "[a] hearing to terminate parental rights is within the dispositional phase of the proceedings”. In the Matter of Kantola, 139 Mich App 23, 25; 361 NW2d 20 (1984), citing In the Matter of Rebecca Oakes, 53 Mich App 629; 220 NW2d 188 (1974), and In the Matter of Taurus F, 415 Mich 512; 330 NW2d 33 (1982), reh den 417 Mich 1104 (1983), app dis 464 US 923; 104 S Ct 323; 78 L Ed 2d 296 (1983), reh den 464 US 1064; 104 S Ct 747; 79 L Ed 2d 204 (1984).

Having determined that in this case no right to court-appointed counsel existed under present case law and the Juvenile Court Rules, there is no need to consider the validity of respondents’ waiver of counsel.

The process that is due under the Fourteenth Amendment is not susceptible to precise definition and, therefore, must be determined on a case-by-case basis with reference to a particular situation by first considering relevant precedents and then by assessing the several interests at stake. Lassiter v Dep’t of Social Services of Durham County, North Carolina, 452 US 18, 24-25; 101 S Ct 2153; 68 L Ed 2d 640 (1981), reh den 453 US 927; 102 S Ct 889; 69 L Ed 2d 1023 (1981). The Fourteenth Amendment does not require court-appointed counsel for a respondent in every neglect or parental rights termination proceedings. Id., 452 US 32.

*616In deciding respondents’ motion to dismiss for lack of court-appointed counsel at the adjudicative and statutory review hearings, the probate court considered the circumstances that existed at the time of the adjudicative phase. The probate court noted that both respondents were present, were both advised of their right to counsel, and neither requested an attorney. Further, respondents did not contest the initial neglect petition.13 The probate court noted, in effect, that the presence of counsel at that stage of the proceedings could not have made a determinative difference. Moreover, the probate court appointed counsel as soon as respondents wanted counsel or as soon as the probate court felt it was necessary. Finally, the probate court noted that the initial petition did not seek termination. I would conclude that the absence of court-appointed counsel at this phase did not render the proceedings fundamentally unfair.

With respect to the absence of court-appointed counsel at the statutory review hearings, the record indicates that respondent Taylor did not attend any of the five statutory review hearings, and respondent Perry attended only one. Further, respondent Perry showed little interest and made minimal efforts to work with three DSS foster care workers and others over a 14-month period to prepare herself to regain custody of her son. I conclude that the failure to appoint counsel at the statutory review hearings did not deprive respondents of fundamental fairness.

In this case difficult circumstances presented legal and practical problems to petitioner, respondents and the probate court. Nonetheless, I would hold that no error occurred when the probate *617court did not appoint counsel for respondents at the adjudicative or statutory review hearings.

Affirmed.

M. J. Kelly, J., concurred.

Chief Justice Kavanagh and Justice Williams concurred with Justice Levin. Justice Ryan did not participate in the decision. Justice Coleman, with Justice Fitzgerald concurring, agreed in the result reached in that case, but expressly disagreed with the necessity of a constitutional analysis to support the result. Id., p 352. Justice Lindemer concluded that no constitutionally protected right existed. Id., pp 360-361.

Under the doctrine of stare decisis, a plurality decision in which a majority of the justices sitting concur in the reasoning binds this Court and the trial courts. Negri v Slotkin, 397 Mich 105, 110; 244 NW2d 98 (1976); Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). Stated another way, if a majority of justices sitting agree on the result, but not the reasoning, the lead opinion is not binding authority. People v Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973); People v Thomas, 387 Mich 368; 197 NW2d 51 (1972).

Despite a right to a transcript of proceedings furnished at public expense, Reist v Bay Circuit Judge, supra, respondents have failed to provide a complete court file and transcripts of the adjudicative and statutory review hearings contrary to GCR 1963, 812.2, now MCR 7.210(B). Respondents provide no explanation for the missing portions of the record. None is gleaned from the existing record.

See In the Matter of Cobb, supra, p 600, and In the Matter of Kenneth Jackson, Jr, supra, pp 49-50.

MCR 5.908(B)(3) contains language that is substantially similar to JCR 1969, 8.2(C).

MCR 5.906(C)(2)(a) contains language almost identical to JCR 1969, 6.3(A)(2)(b).

The Notes regarding JCR 1969, 6 which were published with the Juvenile Court Rules, but whose authorship is unidentified, provide in part:

"The purpose of the rule is to ascertain that notice of the right to counsel is given at the time of the hearing as provided by the Standards for Juvenile and Family Courts, approved by the National Council of Juvenile Court Judges, and as appears in In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967). The provision with regard to waiver of the right to counsel is in relatively broad terms, leaving the matter to court discretion, provided the waiver by a child [in a court matter on the formal calendar] is concurred in by a parent, guardian, custodian, or guardian ad litem and is voluntarily and understanding^ made. Appointment of guardians ad litem provided by Rule 5, again, is complementary to this rule.” 381 Mich cxxiiicxxiv.

Although no transcript of the adjudicative hearing accompanies the record on appeal, the following exchange is quoted in the guardian ad litem’s brief, filed in opposition to respondent’s motion to dismiss in the probate court:

"Mr. Barrie [Probate Court Referee]: First, as to your rights. The parents have a right to be represented by an attorney, an if you want an attorney and can’t afford to employ one, the court will employ an attorney for you. Do you want an attorney?
"Ms. Perry: No.
"Mr. Barrie: How 'bout you Mr. Taylor?
Mr. Taylor: No.”

At a later hearing, the probate judge noted that the referee had completed a form which indicated by a check in Box 15 that the referee had advised respondents of their right to counsel. The referee had further made a handwritten notation: "No attorney requested by either”.

MCR 5.906(C).

10 The right to court-appointed counsel is described by the Notes, supra, 381 Mich cxxiv as follows:

"The right to court-appointed counsel is limited to proceedings on the formal calendar, following the recent New Jersey rules, and is spelled out as to matters in which the right obtains. While Gault and others delineate the right to counsel in delinquency matters, see, also,Fritts v Krugh, 354 Mich 97; 92 NW2d 604 (1958), as to scope of the right in neglect proceedings.”

In Crist v New Jersey Division of Youth & Family Services, 128 NJ Super 402, 416; 320 A2d 203 (1974), modified 135 NJ Super 573; 343 A2d 815 (1975), the court held that federal due process and equal protection guarantees encompassed a right to court-appointed counsel for indigent parents at a proceeding for temporary custody. No provision for court-appointed counsel for indigent parents existed in the New Jersey statutes concerned with dependent and neglected children. 128 NJ Super 405.

Compare, MCL 712A.17(3); MSA 27.3178(598.17X3) which provides: "If the child or his or her parents desire counsel and are unable to *614procure counsel, the court in its discretion may appoint counsel to represent the child.”

Notice of the possibility of termination of parental rights is required to appear on every summons. JCR 1969, 7.2(B)(4), now MCR 5.907(B)(1)(d).

On appeal respondents do not challenge the allegations contained in the initial petition.