Opinion
358457 358458
04-13-2023
In re EE, Minor. v. EE, Respondent-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellee, In re AE, Minor. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellee, v. AE, Respondent-Appellant.
Eaton Circuit Court Family Division LC Nos. 21-020559-DL, 21-020558-DL
Before: GLEICHER, C.J., and BOONSTRA and CAMERON, JJ.
GLEICHER, C.J.
Children prosecuted for truancy have a right to counsel conferred by statute and court rule. They may also waive their right to counsel. But before accepting a waiver of counsel, a judge must find that the child unequivocally selected self-representation. The judge must also determine that the child's unequivocal decision to proceed pro se was made knowingly, intelligently, and voluntarily.
Here, the trial court ruled that the minor respondents waived their right to counsel despite that they never requested self-representation. The court exacerbated this error by neglecting to inquire regarding the children's understanding of their right to counsel, the ramifications of its waiver, or the risks of self-representation. The court's improper waiver finding and its failure to determine the children's capacity and capability to represent themselves deprived AE and EE of their right to counsel. We vacate the trial court's orders of disposition following its adjudication of guilt of school truancy, MCL 712A.2(a)(4), and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
EE and AE are brother and sister. Timothy Elmoore is their father. EE was 15 at the time of the truancy hearing, and AE was 13. Both were in the eighth grade. Even before the Covid-19 pandemic, EE and AE attended a "virtual" school with online attendance. In a 2021 petition for truancy brought under MCL 712A.2(a)(4), the prosecution alleged that between December 9, 2020 and March 11, 2021, EE and AE missed 28 and 25 days of school, respectively. The statute provides that a trial court may exercise jurisdiction over a juvenile if:
The juvenile willfully and repeatedly absents himself or herself from school or other learning program intended to meet the juvenile's educational needs, or repeatedly violates rules and regulations of the school or other learning program, and the court finds on the record that the juvenile, the juvenile's parent, guardian, or custodian, and school officials or learning program personnel have met on the juvenile's educational problems and educational counseling and alternative agency help have been sought. As used in this sub-subdivision only, "learning program" means an organized educational program that is appropriate, given the age, intelligence, ability, and psychological limitations of a juvenile, in the subject areas of reading, spelling, mathematics, science, history, civics, writing, and English grammar. [MCL 712A.2(a)(4).]
The trial court appointed attorney Kristen Hoel as counsel for both children. At the Zoom preliminary hearing, Hoel advised that Elmoore had refused to allow her to communicate confidentially with the children. The prosecuting attorney suggested that "Mr. Elmoore can either hire an attorney to represent them in this matter . . . or . . . he can decline to have them represented." As discussed below, the prosecuting attorney's statement is only partially accurate. A parent can hire counsel for his or her children, but he cannot unilaterally foreclose his or her child's right to counsel. Rather, MCR 3.915(A)(2)(d) provides that "[t]he court shall appoint an attorney to represent the juvenile in a delinquency proceeding if . . . those responsible for the support of the juvenile refuse or neglect to retain an attorney for the juvenile, and the juvenile does not waive an attorney[.]" (Emphasis added.) Similarly, MCL 712A.17c(1) states that "in a proceeding brought under section 2(a) . . . of this chapter . . . the court shall advise the child that he or she has a right to an attorney at each stage of the proceeding."
MCR 3.903(A)(5) explains that the term "delinquency proceeding" refers to "a proceeding concerning an offense by a juvenile, as defined in MCR 3.903(B)(3)." MCR 3.903(B)(3) states that an" 'offense by a juvenile' means an act that violates a criminal statute, a criminal ordinance, a traffic law, or a provision of MCL 712A.2(a) or (d)." This truancy proceeding was brought under MCL 712A.2(a)(4), and falls within the definition of a "delinquency proceeding."
Parents possess a fundamental interest in the companionship, custody, care and management of their children, an element of liberty protected by the due process provisions in the Fourteenth Amendment of the United States Constitution and article 1, § 17, of the Michigan Constitution. In re Rood, 483 Mich. 73, 91-92, 763 N.W.2d 587 (2009) (opinion by CORRIGAN, J.). However, this right coexists with a child's right to counsel. In most situations, a parent's interest in effective representation for a child aligns with the child's right to effective and independent counsel. Usually, a parent's participation will inform and enhance the child's attorney-client relationship. At other times the parent's interest may diverge from the child's.
Here, the attorneys and the court inaccurately assumed that Elmoore could control his children's access to counsel. Elmoore's failure to cooperate with his children's right to counsel was a recurring theme and contributed to the error that ensued.
After learning that Hoel had never spoken to her clients, the court nevertheless took testimony from the Eaton Regional Education truancy court coordinator. And Hoel conducted cross-examinations regarding both children. When the prosecutor requested that the petition be authorized, Hoel advised that Elmoore had informed her that "he will represent his children." Hoel argued that "the petitions against the children should be dismissed, and set a petition against or a complaint against Mr. Elmoore would be more appropriate."
The court found probable cause to charge both children with truancy, continuing, "I am also obviously very concerned about the reason for that and . . . the reluctance of the father to participate in the court proceedings here." Turning to Elmoore, the court inquired, "And, Mr. Elmoore, are you wishing to have Ms. Hoel continue to represent your children?" Elmoore replied that he was not. The court excused Hoel, ruling, "[T]he children then will not retain or not have court appointed attorneys for them at their father's insistence."
During the preliminary hearing the court also determined to show cause Elmoore for preventing his children from attending the Zoom hearing. Elmoore insisted that they were "present" with him, although they apparently never appeared on the screen. The ground for the court's show cause as stated in its signed order was "failing to present children for court hearings."
Ten days after the preliminary hearing, the court conducted a pretrial hearing and the promised show cause hearing. The court inquired of Elmoore whether the children were "going to be represented by counsel that you're hiring, or are they going to be unrepresented?" Elmoore responded, "I'll make that decision at a later date." The court scheduled a trial of the children's cases and turned to the show cause hearing for Elmoore, offering him the option of a court-appointed attorney or self-representation. Elmoore chose to be represented by court-appointed counsel.
Elmoore and the children later appeared in-person for hearings regarding the truancy petitions and the show cause order with a retained attorney, Gidget James. Before the prosecutor could even call a witness, James moved to withdraw, declaring:
I have not even had an opportunity to speak with these children.... Dad won't allow me to speak with them.... [H]e did say I could speak with them if he is present, and I tried that, but he is dictating every answer. So . . . I'm unable to even present a defense for them 'cause I don't even know their position on what has taken place.
James added that her firm had been retained to represent Elmoore, and she only belatedly learned that she was expected to represent the children in the truancy cases while her colleague represented Elmoore regarding the contempt charge.
The prosecuting attorney expressed that the children "should be given another opportunity at an attorney, given that they are juveniles." She added "that it should be made very clear to their parents that they cannot come up here and represent them as their parents. They - - the children would be up here representing themselves, and I think that's something that should be taken into account." The court indicated that it would appoint counsel for the children "because they shouldn't have to represent themselves." At the prosecuting attorney's suggestion, however, the court announced that it would also consider appointing only "stand-by" counsel for the children:
[The Prosecutor]. Just given the fact that the attorney has been an issue multiple times with this case, I would just ask that any attorney that be appointed, um, if they do not wish to have the attorney represent them as the attorney, that the attorney remains as stand-by counsel.
* * *
The Court. Yes, I will do that. And if, you know, if the . . . father does what he's done in the past and says he won't deal with them, we'll have them by stand-by, and then that won't necessitate that the children will have to represent themselves, but they'll have an attorney sitting by them if they have any questions.
The prosecutor then made a plea offer directly to the unrepresented children. The court asked the children if they understood the offer, and AE replied that she did. At that point the prosecutor apparently had second thoughts and put on the brakes, proposing that further questioning await the appointment of counsel. The court turned to Elmoore, reminding him that he was charged with contempt for "failing to make your children available for court hearings; . . . [and] for . . . not sending your children to school, as the law provides[.]" Because neither Elmoore nor the children had counsel, the court adjourned both the truancy and the show cause proceedings.
The court then appointed Raymond Nicol to represent the children. Two days before the scheduled truancy hearing, Nicol moved to withdraw. During a Zoom hearing, Nicol advised that he had been "blocked" by Elmoore from communicating with the children. Citing a federal case, Nicol asserted that "where there is a conflict between a party and their counsel [that] is so great it results in a lack of communication preventing an adequate defense," the attorney should be allowed to withdraw. The prosecutor urged that Nicol "be asked to stay on as standby counsel."
Elmoore was not Nicol's client, the children were.
The court then engaged EE and AE in the following colloquy regarding their representation by counsel:
The Court. And, [AE], I see you there on the picture; what would you like to say as far as your representation at trial?
AE. (Inaudible).
The Court. Let me ask you the question. You do understand you have a trial on this coming Monday; do you understand that?
AE. Yes.
The Court. Okay. And you've heard your appointed attorney's motion to withdraw: is that what you want?
AE. Yes.
The Court. You want him to withdraw? No, don't look to your dad; look to me.
AE. I'm looking to you.
The Court. Okay. Do you want him to withdraw? I mean, let me tell you this, trial is going to go on Monday. You have basically three choices, either you use your court appointed attorney or you hire your own attorney or you represent yourself; those are your three choices. What is the choice?
AE. I'll say yes. The Court. Say yes to what; you have three choices.
AE. I'll say yes to withdraw the attorney.
The Court. Okay. But then what are you going to do in place. Are you going to represent yourself or are you going to hire another attorney?
AE. We'll decide later. I'll decide on that later.
The Court. You understand trial's on Monday.
AE. I understand.
The Court. Okay. Thank you. And [EE], are you there?
EE. Here. The Court. Mr. Elmoore, you need to be quiet right now. I need to talk to your son. Mr. Elmoore. Well, I'm just telling him to come around the camera. I can still speak.
The Court. Okay. Thank you. Can you see me okay, [EE]?
EE. Yes. The Court. And you understand you have a trial on Monday, do you understand that?
EE. Yes.
The Court. And so again, you have the same three choices, either you can use the court appointed attorney or you can hire your own attorney or you can represent yourself; which of those three options do you want to do?
EE. Tell ya later.
The Court. Okay. You understand I'm not going to adjourn the trial? It's going to happen. Do you understand that?
EE. Yes.
The Court. Okay. Thank you. [Emphasis added.]
The court then denied Nicol's motion to withdraw:
Mr. Nicol, because of the unique circumstances in this case, . . . normally I would let you withdraw. What I'm going to let you do, however, is not participate unless you're asked to. So, I just would like to have you in the courtroom during the trial. Okay. And if your [clients] come to you and ask you to represent them, you'll do the best that you can understanding that there will be no other adjournment. And that will not be held against you, . . . but if you could just be in the courtroom if they wish to consult with you.
At the joint truancy hearing held two days later, the court did not revisit the subject of selfrepresentation with the children. The children represented themselves. They asked the prosecution's witnesses a handful of questions and offered no evidence. They did not consult Nicol during the hearing. The trial court found beyond reasonable doubt that AE and EE had committed the offense of truancy.
II. ANALYSIS
Represented in this Court by the Juvenile Justice Clinic at the University of Michigan Law School, the children make several arguments centering on the trial court's ruling that they would represent themselves. The children also challenge the sufficiency of the evidence supporting their truancy adjudications. We find the arguments related to counsel dispositive.
Although the trial court failed to make the necessary findings regarding truancy on the record contrary to MCL 712A.2(a)(4), the evidence sufficiently supports that the children were truant. We note, however, that the prosecution's evidence was unchallenged by respondents. On remand, the prosecution will be required to prove truancy beyond a reasonable doubt. In particular, the prosecution must prove and the court must find on the record that "the juvenile, the juvenile's parent, guardian, or custodian, and school officials or learning program personnel have met on the juvenile's educational problems[.]" Id. The record supports that "learning program personnel" repeatedly attempted to meet with Elmoore and the children, but were thwarted by Elmoore's refusal to engage with them. The trial court should address the evidence presented in light of this statutory mandate.
In re Gault, 387 U.S. 1, 36; 87 S.Ct. 1428; 18 L.Ed.2d 527 (1967), arose from a delinquency proceeding in which a 15-year-old boy was committed "as a juvenile delinquent" to a state "industrial school" until his 21st birthday. His offense involved his alleged use of "vulgar, abusive or obscene language," a misdemeanor. Gault did not have counsel at any point, and was never advised that he had a right to counsel. The United States Supreme Court reversed the lower court's judgment, holding that in a delinquency proceeding, a juvenile needs counsel "to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it." The Court summarized, "The child requires the guiding hand of counsel at every step in the proceedings against him." Id. (quotation marks and citation omitted). The right to counsel in Gault rested on the Due Process Clause of the Fourteenth Amendment, which
requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. [Id. at 41.]
This prosecution is premised on alleged truancy, not "delinquency" as that term was used in Gault. Truancy is sometimes referred to as a "status offense," and has been described as a "noncriminal behavior that would not, under the law of the jurisdiction in which the offense was committed, be a crime if committed by an adult." Juvenile Status Offenses Fact Sheet, Center for Children and the Law, American Bar Association, available at <http://act4jj.org/sites/default/files/ckfinder/files/factsheet_17.pdf> (accessed February 15, 2023). The United States Supreme Court has never clearly held that due process requires that child status offenders must be afforded counsel. Gault suggests that when a child's liberty is at stake, however, the appointment of counsel may be required for those whose parents cannot afford to retain counsel.
The child in Gault was prosecuted under an Arizona statute specifying that a "delinquent child" included one who "who has violated a law of the state or an ordinance or regulation of a political subdivision thereof." In re Gault, 387 U.S. 1, 8; 87 S.Ct. 1428; 18 L.Ed.2d 527 (1967) (quotation marks and citation omitted).
Michigan children adjudicated guilty of truancy are potentially subject to a loss of their liberty, but only when a court is convinced that either the child or society would face a risk of harm with home placement. Under MCL 712A.2(a)(4), a family court may take jurisdiction of a juvenile if it finds that the juvenile meets the criteria for truancy spelled out in the statute. If the court finds that the juvenile is truant, it "shall order the juvenile returned to this or her parent if the return of the juvenile to his or her parent would not cause a substantial risk of harm to the juvenile or society." MCL 712A.18(1) (emphasis added). If a court determines that a return to home would "cause a substantial risk of harm to the juvenile or society," the court may "place the juvenile in a suitable foster care home subject to the court's supervision," MCL 712A.18(1)(c), or "place the juvenile in or commit the juvenile to a private institution or agency . . ." MCL 712A.18(1)(d), or "commit the juvenile to a public institution . . ." MCL 712A(1)(e). And if a court finds that "the juvenile has violated a court order under section 2(a)(2) to (4)," the court may "order the juvenile to be placed in a secure facility." MCL 712A.18(1)(k).
We need not decide today whether the children in this case had a right to counsel under the Due Process Clauses of either the United States or Michigan Constitutions, particularly since that issue was not raised or briefed by the parties. Rather, we hold that the children had a right to counsel in the truancy proceedings under MCL 712A.17c and MCR 3.915(a). This case hinges on a related issue: whether the trial court correctly determined that the children were properly required to represent themselves without the assistance of counsel.
Although the right to counsel involved here arises from a statute and a court rule rather than the Constitution, a court must "indulge every reasonable presumption against waiver" of the right to counsel, and should not allow a defendant to proceed pro se if any doubt casts a shadow on the waiver's validity. People v Williams, 470 Mich. 634, 641-642; 683 N.W.2d 597 (2004) (quotation marks and citations omitted). Self-representation presents "dangers and disadvantages," and "[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts." Faretta v California, 422 U.S. 806, 834-835; 95 S.Ct. 2525; 45 L.Ed.2d 562 (1975). Although this case does not implicate the Sixth Amendment, the jurisprudence surrounding self-representation in criminal cases informs our analysis.
Whether made by a child or an adult, a request for self-representation must be clear and unequivocal. This prerequisite protects an accused from the consequences of a poorly considered or inadvertent waiver of a right to counsel, and aids the court in discerning the accused's intent and protecting the right.
The presence of counsel helps to maintain the integrity of the judicial process. For those unwilling participants in the process known for their "immaturity, irresponsibility, impetuousness, and recklessness," Miller v Alabama, 567 U.S. 460, 476; 132 S.Ct. 2455; 183 L.Ed.2d 407 (2012) (cleaned up), an unequivocal waiver of counsel is equally or more essential. MCL 712A.17c(1) encapsulates this principle by mandating that in a proceeding such as this one, the court must "advise the child that he or she has a right to an attorney at each stage of the proceeding," MCL 712A.17c(1), and must appoint an attorney if, among other reasons, "the child does not waive his or her right to an attorney." MCL 712.17c(2)(c). The statute permits a juvenile to waive his or her right to counsel, but the waiver "shall be made in open court, on the record, and shall not be made unless the court finds on the record that the waiver was voluntarily and understandingly made." MCL 712A.17c(3).
MCR 3.915(A)(3) similarly provides that a
juvenile may waive the right to the assistance of an attorney except where a parent, guardian, legal custodian, or guardian ad litem objects or when the appointment is based on subrule (A)(2)(e). The waiver by a juvenile must be made in open court to the judge or referee, who must find and place on the record that the waiver was voluntarily and understandingly made.
MCR 3.915(A)(2)(e) states that "[t]he court shall appoint an attorney to represent the juvenile in a delinquency proceeding if . . . the court determines that the best interests of the juvenile or the public require appointment."
In People v Anderson, 398 Mich. 361, 367-368; 247 N.W.2d 857 (1976), our Supreme Court established three "requirements" that must be met before a court grants a criminal defendant's request for self-representation. These requirements dovetail with MCR 3.915 and MCL 712A.17c. "First," the Court declared, "the request must be unequivocal." Anderson, 398 Mich. at 367. Here, the children never "requested" self-representation. Rather, the trial court asked AE whether she wanted Nicol to "withdraw," and proceeded to tell her: "You have basically three choices, either you use your court appointed attorney or you hire your own attorney or you represent yourself; those are your three choices. What is the choice?" AE eventually replied that she would "say yes to withdraw the attorney." AE never requested self-representation even equivocally, and never agreed to it on the record. When given the same three choices, EE responded that he would "tell ya later." Like AE, EE never requested self-representation and his answers to the court's inquisition fall far short of an unequivocal request to proceed pro se.
Anderson's second requirement is that "once the defendant has unequivocally declared his desire to proceed Pro se the trial court must determine whether defendant is asserting his right knowingly, intelligently and voluntarily." Id. at 368. Even were we to hypothetically assume that AE and EE unequivocally requested self-representation, the trial court never inquired regarding whether they understood this choice, or were forced into it by their father. This inquiry was particularly critical under the circumstances presented, as the record supports that Elmoore, not the children, created a conflict with appointed counsel and that Elmoore, not the children, was the force driving the trial court's decision to deprive the children of counsel. And in violation of MCL 712A.17c(1), the court failed to "advise the child that he or she has a right to an attorney at each stage of the proceeding." The court began the truancy trial by announcing that it had appointed Nicol as standby counsel and that "at the last hearing" the "two minors . . . decided they did not" want Nicol to represent them. But the court never re-engaged the children regarding their right to counsel, or whether they had reconsidered the wishy-washy answers they had given at the previous hearing.
Michigan's Rules of Professional Conduct apply with equal force to attorneys for parents and for children. A child's right to counsel, like an adult's, encompasses the right to zealous representation by an independent advocate, as MCR 3.915(A)(1) and (2) reflect. A parent may not foreclose his or her child's access to counsel. MCR 3.915(A)(2)(d). Counsel for a juvenile must also be competent. MRPC 1.1. In the juvenile law context, a competent attorney understands that a parent may not impede a child's right to counsel, and that an attorney representing a child does not simultaneously represent the child's parent. On remand, we encourage the court to take steps to ensure that the children be afforded a meaningful opportunity to consult with counsel and to knowingly, understandingly, and voluntarily relinquish their right to counsel, if they unequivocally decide to do so.
Anderson's "third and final requirement is that the trial judge determine that the defendant's acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court's business." Anderson, 398 Mich. at 368. There is no evidence that the children behaved inappropriately while conducting their own defense. Relatedly, however, MCR 3.915(2)(e) requires that a court appoint an attorney for a juvenile in a delinquency proceeding if "the court determines that the best interests of the juvenile or the public require appointment." The court's failure to consider the children's best interests compounded its other errors. Given the pitfalls of self-representation even for adults, the circumstances under which self-representation will serve a child's best interests are likely to be extremely rare.
Finally, we note that the trial court's errors were not remedied by appointed counsel's continued presence in the courtroom; "the presence of standby counsel does not legitimize a waiver-of-counsel inquiry that does not comport with legal standards." People v Dennany, 445 Mich. 412, 446; 519 N.W.2d 128 (1994). This is not a criminal proceeding and the right to counsel we have considered is rooted in non-constitutional sources. Applying plain error review, we hold that the trial court's error in depriving the children of counsel seriously affected the fairness and integrity of the proceedings, necessitating reversal. See People v Carines, 460 Mich. 750, 763764; 597 N.W.2d 130 (1999).
We vacate the orders of disposition, and reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction.
GLEICHER, C.J. (concurring).
The lead opinion holds that children prosecuted for truancy have a right to counsel under MCL 712A.17c(2) and MCR 3.915(a). In my view, children at risk of losing their liberty also have a constitutional right to counsel under the Due Process Clauses of the United States and Michigan Constitutions. I write separately to explain my reasoning, and to make a couple of additional points.
In re Gault, 387 U.S. 1, 36; 87 S.Ct. 1428; 18 L.Ed.2d 527 (1967), explained that a child accused of "delinquency"
needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step in the proceedings against him.... [T]he assistance of counsel is essential for purposes of waiver proceedings, so we hold now that it is equally essential for the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21. [Quotation marks and citation omitted.]
A "delinquency" proceeding as described in Gault potentially "subject[s] [a child] to the loss of his liberty for years," and "is comparable in seriousness to a felony prosecution." Id. Under Michigan law, truancy and other status offenses permit a court to deprive a child of his or her liberty by ordering placement outside the home. Gault teaches that when a child's liberty is at stake, a court must appoint counsel when a child's parent cannot afford to hire a lawyer. For this reason, Gault supports that children such as AE and EE had a right to counsel grounded in the Due Process Clauses of the United States and Michigan Constitutions, which also means that the denial of this right should be considered structural error.
"Although our Due Process Clause is interpreted coextensively with the Due Process Clause of the United States Constitution," Michigan Courts may independently determine whether our state Constitution provides due process protections beyond those identified by the federal courts. Mays v Snyder, 323 Mich.App. 1, 66; 916 N.W.2d 227 (2018).
Even when a child is not at risk of losing her liberty, there may be serious and long-lasting collateral consequences of an adjudication for a status offense. As stated in Rivkin, Truancy Prosecutions of Students and the Right [To] Education, 3 Duke Forum for Law &Social Change 139, 141 (2011), available at <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1020&context=dflsc> (accessed February 27, 2023):
Prosecuting students for truancy often generates harmful direct and collateral consequences: incarceration, fines, involuntary community service, recursive court involvement, loss of driving privileges, imposition of curfews, specification of conditions of probation that require students to meet unrealistic school performance standards, unwarranted disclosures of personal information, investigations of family dependency and neglect, mental health consequences, monitoring students through radio frequency identification technology (RFID), grade reductions, and others.
Many of these consequences strongly resemble the penalties exacted for the commission of serious crimes. "[T]hese conditions often tether a juvenile to the court system indefinitely, a harsh consequence for children who are not committing 'crime.'" Rivkin and McGee, Truancy Lawyering in Status Offense Cases: An Access to Justice Challenge, American Bar Association (October 28, 2014), available at <https://www.americanbar.org/groups/litigation/committees/ childrens-rights/articles/2014/truancy-lawyering-status-offense-cases-access-to-justice-challenge/> (accessed February 27, 2023). A lawyer's guidance may help a child and his or her family avoid a spiral of escalating punishments, instead directing them toward more holistic solutions to truancy.
MCL 712A.17c goes part of the way toward fully protecting a child's right to counsel, providing for the appointment of counsel in proceedings brought under MCL 712A.2(a) or (d):
(1) In a proceeding under section 2(a) or (d) of this chapter or a proceeding regarding a supplemental petition alleging a violation of a personal protection order under section 2(h) of this chapter, the court shall advise the child that he or she has a right to an attorney at each stage of the proceeding.
(2) In a proceeding under section 2(a) or (d) of this chapter, the court shall appoint an attorney to represent the child if 1 or more of the following apply:
(a) The child's parent refuses or fails to appear and participate in the proceedings. (b) The child's parent is the complainant or victim.
(c) The child and those responsible for his or her support are financially unable to employ an attorney and the child does not waive his or her right to an attorney.
(d) Those responsible for the child's support refuse or neglect to employ an attorney for the child and the child does not waive his or her right to an attorney.
(e) The court determines that the best interests of the child or the public require appointment.MCL 712A.2(a) and (d), however, set forth a hodge-podge of statutory violations requiring the appointment of counsel, including murder and arson offenses and "lesser included offense[s]" of those listed, but not the possession of certain weapons or the possession or delivery of many controlled substances. This case illustrates the difficulties in parsing whether a child has been charged with a form of "delinquency" or a "status offense" not included within the reach of MCL 712A.17c(2), such as being a minor in possession of alcohol. Because most of the offenses for which children may be adjudicated place them at risk of out-of-home confinement, I believe that due process requires the appointment of counsel whenever a child's liberty may be threatened as a consequence of the offense charged and the family lacks the resources to retain counsel.
Regardless of the source of the right to counsel, lawyers representing children owe their clients the same ethical obligations as those appointed to represent adults. Here, throughout the proceedings that followed the preliminary hearing, the attorneys and the court failed to effectively address Elmoore's control of his children's access to counsel. Attorney after attorney withdrew from representation of the children rather than seeking the court's aid in meaningfully dealing with Elmoore's interference. And the court never instructed Elmoore to desist.
We do not know why the Elmoore children failed to attend school for so many days. The evidence suggests that their absences were not due to Internet issues. Were the children precluded from attending school by a parent who was using the family computer or in some other way? It is possible and unknown. Only by confidentially exploring a child's potential conflicts with a parent can a lawyer do her job. The court and the attorneys who represented the children apparently believed that Elmoore had a right to prevent his children from meeting confidentially with their lawyers. A court order compelling Elmoore to allow his children to meet privately and confidentially with their counsel was one solution to Elmoore's interference, but apparently was never considered.
More relevant to the contested issues presented in this case, I urge our Supreme Court to consider the adoption of a court rule requiring judges to make specific inquiries and record findings before accepting a child's waiver of counsel. A Colorado statute offers good starting point:
(c) The court may accept a waiver of counsel by a juvenile only after finding on the record, based on a dialogue conducted with the juvenile, that the juvenile:
(I) Is of a sufficient maturity level to make a voluntary, knowing, and intelligent waiver of the right to counsel;
(II) Understands the sentencing options that are available to the court in the event of an adjudication or conviction of the offense with which the juvenile is charged;
(III) Has not been coerced by any other party, including but not limited to the juvenile's parent, guardian, or legal custodian, into making the waiver;
(IV) Understands that the court will provide counsel for the juvenile if the juvenile's parent, guardian, or legal custodian is unable or unwilling to obtain counsel for the juvenile; and
(V) Understands the possible consequences that may result from an adjudication or conviction of the offense with which the juvenile is charged, which consequences may occur in addition to the actual adjudication or conviction itself.
(d) The appointment of counsel pursuant to this subsection (2) continues until:
(I) The court's jurisdiction is terminated;
(II) The juvenile or the juvenile's parent, guardian, or legal custodian retains counsel for the juvenile;
(III) The court finds that the juvenile or the juvenile's parents, guardian, or other legal custodian has sufficient financial means to retain counsel or that the juvenile's parents, guardian, or other legal custodian no longer refuses to retain counsel for the juvenile; or
(IV) The court finds the juvenile has made a knowing, intelligent, and voluntary waiver of the juvenile's right to counsel, as described in subsection (2)(c) of this section. [Colo Rev Stat Ann 19-2.5-605(2).]
This case demonstrates the need for clear-cut rules governing the process of evaluating a child's purported waiver of counsel.
One final point. This case also illustrates that an adversarial intervention for truancy resembling prosecution for a crime does not help children or their parents. The Elmoore children are now being home-schooled. An approach focused on engaging them in education rather than exerting the power of the state, thereby alienating the children and their parents, likely would have produced a far more positive outcome.
CAMERON, J. (concurring).
I agree with the majority's conclusion that children prosecuted for truancy have a statutory right to counsel under MCL 712A.17c(2) and MCR 3.915(A). I also agree with my colleague's concurring opinion to the extent it notes that United States Supreme Court precedent has recognized a constitutional right to counsel for children facing the prospect of incarceration. But in my view, the concurring opinion takes Supreme Court precedent one step further, asserting that the United States and Michigan constitutions guarantee all children prosecuted for truancy (and presumably most other status offenses) the right to a court-appointed attorney regardless of the risk of incarceration to the child. I write separately to explain why I consider this to be a significant and unwarranted departure from Supreme Court precedent.
In general, it is inappropriate to consider constitutional questions that are unnecessary to the resolution of a case. I do so here to provide an alternative analysis of the constitutional issue.
The Fifth Amendment to the United States Constitution provides, in part: "No person shall be . . . deprived of life, liberty, or property, without due process of law ...." U.S. Const, Am V.
Similarly, the Fourteenth Amendment states: "No State shall . . . deprive any person of life, liberty, or property, without due process of law ...." U.S. Const, Am XIV. The protections afforded under the Fifth Amendment apply to the states under the due process clause of the Fourteenth Amendment. In re Gault, 387 U.S. 1, 47; 87 S.Ct. 1428; 18 L.Ed.2d 527 (1967). Gault recognized that these authorities guarantee children a constitutional right to counsel for certain juvenile proceedings, stating:
[T]hat [in a] delinquency proceeding which may result in commitment to an institution in which a juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. [Id. at 41.]
In other words, Gault establishes an unqualified constitutional right to counsel, provided that the juvenile faces incarceration.
The Michigan Legislature expanded this right, requiring a trial court to advise a child of their right to counsel regardless of whether the trial court considered imposing incarceration. MCL 712A.17c; see also MCR 3.915(A). But unlike Gault, this statutory right to counsel is qualified because it applies to only certain violations of the juvenile code. The concurrence proposes a new rule that would offer a constitutional right to counsel regardless of the charges or whether the juvenile is facing incarceration.
In my view, there are several factors that militate against finding a constitutional right in this case. Among them is that not even criminal defendants have an unfettered constitutional right to counsel. Criminal defendants enjoy the full panoply of constitutional protections. Yet, this Court has consistently held that a defendant charged with misdemeanor conduct has no constitutional right to counsel where no incarceration is ultimately imposed. See People v Richert, 216 Mich.App. 186, 194; 548 N.W.2d 924 (1996). Why then would juveniles prosecuted with status offenses be constitutionally entitled to a court-appointed attorney, while defendants charged with misdemeanors not involving incarceration are not? The concurrence proposes a new rule that extends well beyond the protections afforded to criminal defendants and those already afforded to juveniles under the Fourteenth Amendment and the Bill of Rights. Gault, 387 U.S. at 13-14.
I also disagree with the assertion that counsel is necessary to protect against the "serious and long-lasting collateral consequences of an adjudication for a status offense." I suppose some status offenders might agree with this statement. But a status offender's opinion is not the basis for the attachment of a constitutional right. Indeed, the purpose of the juvenile court is rehabilitation, not retribution. See id. at 16 (discussing the original purpose of the juvenile court was to "treat[]" and "rehabilitate[]."). Moreover, the idea that a child might suffer "long-lasting" consequences is mitigated by Michigan's newly-enacted "Clean Slate for Kids" law which restricts from public view juvenile-delinquency records, except for individuals with a "legitimate interest." MCL 712A.28(3). Thus, I disagree that children need protection from the very services intended to rehabilitate them. Moreover, in cases where a juvenile faces a "spiral of escalating punishments," the right to counsel under Gault and our statutory scheme already offer the juvenile the right to counsel. All this is to say that I believe the concurrence's proposed rule goes too far.
It is also necessary to address the issues involving parental interference and whether that impacts the waiver of the right to counsel. Criminal defendants in Michigan are entitled to waive their right to counsel. In those circumstances, the trial court is required to make a record whether the defendant's waiver was knowing, intelligent, and voluntary. People v Anderson (Donny), 398 Mich. 361, 368 (1976); see also MCR 6.005(D). Here, the children never affirmatively waived their right to counsel. Instead, the various court-appointed attorneys were permitted to withdraw after they complained that their clients' father insisted that he be allowed to participate in attorneyclient discussions with his children. But the record is unclear whether the children wanted their father to participate in the attorney-client meetings or, as the attorneys asserted, that the father was improperly interjecting himself into confidential discussions. The record is unclear because the trial court never asked the children if they wanted their father to participate in discussions. In my view, the trial court should have taken an approach common in criminal proceedings before allowing an attorney to withdraw. This approach would have included questioning the children directly about the circumstances concerning their legal representation and whether their father was interfering in their relationships with their attorneys. If the children indicated they desired to waive their right to counsel, then the trial court should have then determined whether their waiver was knowing, intelligent, and voluntary.
This case also highlights the challenges a trial court faces when balancing parental rights and a child's legal representation. At one end are the parents' constitutionally-protected interests in the upbringing of their children. See, e.g., Meyer v Nebraska, 262 U.S. 390, 400; 43 S.Ct. 625; 67 L.Ed. 1042 (1923). At the other end is the attorney's duty to provide competent representation to their client. MRPC 1.1 ("A lawyer shall provide competent representation to a client."). These two interests diverge when a parent's goals for their child conflict with the attorney's role in advocating for their client. The record suggests that this may have been an issue because the attorneys represented that the father was interfering with their representation of the children. But, again, the record remains unclear because the trial court failed to make a complete record of the apparent conflict.
In sum, I agree with the majority that juveniles adjudicated for truancy in Michigan have a statutory right to counsel. I also acknowledge that under Gault, children facing incarceration have a constitutional right to counsel. But, I disagree with the concurrence's proposed rule that, in all circumstances, children have a constitutional right to counsel. In my view, this case could have been resolved had the trial court made a more complete record concerning the issues related to the children's legal representation.