|||STATE OF MICHIGAN COURT OF APPEALS
|||November 6, 2001
|||IN THE MATTER OF AMB, MINOR.
FAMILY INDEPENDENCE AGENCY, PETITIONER-APPELLEE
|||Wayne Circuit Court Family Division LC No. 99-375617
|||Before: Whitbeck, P.J., and McDonald and Collins, JJ.
|||The opinion of the court was delivered by: Whitbeck, J.
|||Apparently relying on an "order" entered by a family court referee,
medical personnel at Children's Hospital of Michigan withdrew life sustaining
medical treatment that AMB, an infant, was receiving. She died soon thereafter.
William Ladd, the attorney appointed to represent her in the protective
proceeding that originally brought her situation before the family court,
appeals on her behalf. We reverse.
|||This case is, at its core, a human tragedy. AMB, whom we call baby Allison,
is the central figure. She was born severely ill, with a poor prognosis
for long-term survival, and required extensive medical care. This care included
immediate ventilator support and intravenous drug therapy in the neonatal
intensive care unit at Children's Hospital of Michigan, in Detroit. Baby
Allison died at Children's Hospital just ten days later.
|||Baby Allison's short life, while heartbreaking in itself, does not hint
at the truly appalling circumstances relating to her conception and death.
At age seventeen, baby Allison's mother, KB, became pregnant. Baby Allison's
putative father, JB, was also KB's father. When this situation came to light,
local authorities pressed criminal charges against JB and instituted a protective
proceeding against JB and his wife to terminate their parental rights to
KB and KB's younger brother. To complicate this situation further, the record
includes explicit, though unproven, allegations that KB is mentally retarded
or has some form of developmental delay. The resolutions of the criminal
case against JB and the separate child protective proceeding against JB
and his wife are not evident from the available record. However, it is possible
to infer that JB raped his mentally disabled daughter, KB, leading to baby
Allison's incestuous conception.
|||If the facts surrounding baby Allison's conception are tragic, the circumstances
leading to her death are doubly so. Through unredeemably flawed family court
proceedings, the Family Independence Agency (FIA) acquired what appeared
to be an order that authorized Children's Hospital staff "to take the
child off life support equipment and medication provided that 'Comfort Care'
is provided." Despite an explicit warning that the order did not take
effect for seven days, the very next day Children's Hospital staff contacted
a chaplain who baptized baby Allison while her mother and her three aunts
were present. According to the chaplain's notes, at approximately 7:30 p.m.
"[a]fter the baptism the aunts decided to have the child removed from
life support. Both I [the chaplain] and Michelle the charge nurse took pictures.
I again prayed for the baby and the family. The infant was pronounced dead
at 9:25 p.m." Thus, Children's Hospital staff removed baby Allison
from life support without any legal authority, even under the terms of an
order that we ultimately conclude had no legal basis whatsoever. Nonetheless,
baby Allison's life ended, the final act of this tragedy of almost mythical
|||The series of individual legal errors and missteps that led to baby Allison's
death are our only focus in this appeal. The hasty family court proceedings
were so unseemly precisely because those involved in this decision knew
that a life hung in the balance. The unforeseen consequence of this rush
to make a decision is that the record consists mostly of allegations, unsworn
statements, and hearsay. More often than not, this has forced us to assume
that the record is both adequate and accurate simply to reach the legal
issues. We emphasize, however, that there is no way to determine the truth
about this case with any assurance. Further, these proceedings occurred
less than one month before significant changes to the juvenile code went
into effect on March 1, 1999. *fn1 Perhaps,
had baby Allison been born just a few weeks later, these proceedings would
have been conducted differently.
|||II. Alleged Facts And Procedural History
|||A. Baby Allison's Birth
|||KB gave birth to baby Allison five weeks prematurely, on February 9, 1999,
at Oakwood Hospital. Physicians then discovered that baby Allison's heart
was missing a septum, two of her heart valves were deformed, her aorta was
very small, and the size of her heart had forced her left lung to collapse
partially. Baby Allison had hydrocephaly and other brain abnormalities suggesting
corpus callosum agenesis, as well as malformed hip joints and a possible
problem with her intestines. Physicians used the drug prostaglandin to open
baby Allison's ductus arteriosis to help circulate oxygenated blood through
her body and placed her on a ventilator. Within hours of her birth, Oakwood
Hospital staff transferred baby Allison to the neonatal intensive care unit
at the Children's Hospital of Michigan in Detroit.
|||B. The First Hearing
|||On February 11, 1999, FIA caseworker Judith Matlock filed an original
petition alleging that baby Allison came within the family court's jurisdiction
pursuant to MCL 712A.2(b)(1) or (2). The factual allegations in the petition
focused on three circumstances: the sexual abuse in the home JB and his
wife shared and the pending petition to terminate their parental rights;
KB's alleged mental limitations and her alleged inability to make decisions
for critically ill baby Allison; and KB's informal living arrangements with
her uncle and aunt. The petition asked the family court to take temporary
custody of baby Allison, noting that KB had not made any plans to care for
her baby because KB neither knew how to care for an infant nor had any money.
|||Richard Smart, a referee in the family court, held a preliminary hearing
on the petition that same day. Neither KB nor JB attended this first hearing,
and neither was represented by counsel. No one, including Matlock, testified
under oath. However, Matlock informed Referee Smart that she told KB, but
not JB, about the hearing. Referee Smart went off the record briefly before
finding "that reasonable efforts have been made to notify the respondent,
all parties." The attorney for the FIA asked Referee Smart to authorize
the petition and a placement order and to "authorize all necessary
medical treatment for this child, who is hydrocephalic and has heart defects."
Without hearing any additional argument, Referee Smart found probable cause
to authorize the petition.
|||After a second discussion off the record, baby Allison's attorney, Ladd,
objected to an order authorizing anything other than routine medical care.
|||the statute [does not allow] anything more than routine medical care and
anything that's not along those lines . . . . I believe the mother is also
subject to a petition in this court. [B]ut she is eighteen. If she's capable
of . . . consenting, she can consent -
|||Referee Smart then suggested that KB was incapable of consenting to medical
treatment for baby Allison to which Ladd replied, "Well, then I think
that the agency, if there's any . . . non-routine medical care, they're
going to have to ask for consent of the Court." Ladd gave several examples
of what he considered non-routine care, including brain surgery or a heart
transplant. The assistant attorney general representing the FIA interjected
that he believed that it was within the family court's authority to authorize
all necessary care without specification. Referee Smart stated that his
decision would be to "enter an order allowing for the child to have
all necessary medical treatment." Ladd responded:
|||The [FIA] worker tells me that there's a serious question about the nature
or extent of efforts . . . the hospital will use to maintain this child
alive. And I don't think that you should enter a blanket order [for medical
care] under those circumstances.
|||When Referee Smart said that he was not sure what Ladd was saying, Ladd
|||Well, if you enter a blanket order, you're essentially giving the FIA
and/or the hospital the discretion to determine what's necessary medical
care. And while they may do things that are unusual and . . . that would
normally require some consent, that order could also authorize them to interpret
that as meaning that they could not give that care. And I think that's not
|||I think that a fully informed decision about medical care, specific medical
care for this child is necessary.
|||Referee Smart signed and dated a form order authorizing the petition,
indicating on the face of the order that he was a hearing referee. The order
stated that "[n]notice of hearing was given as required by law,"
denied JB visitation rights, and directed the FIA to place baby Allison
in foster care or with a suitable relative. The order also noted, "The
Court orders the child to receive all necessary medical treatment. Any and
all necessary medical treatment is to be given to this child to sustain
|||C. The Second Hearing
|||Matlock filed an amended petition on the following Monday, February 15,
1999. The amended petition was largely identical to the original petition,
but also alleged:
|||7. On or about 2/11/99 the FIA petitioner conferred with Dr. Virginia
Delaney- Black and social worker Marie Wilmet-Dully about the condition
of this newborn. Dr. Delaney-Black advised that the baby is intubated, on
a ventilator because her heart is so enlarged it has collapsed her right
[sic] lung, that the heart has measurable and serious defects, including
an anomaly of the arch of the aorta, a lack of a partition between the right
and left chambers ascites [accumulation of fluid in the peritoneal cavity,
causing abdominal sweeling [sic] due to advanced heart failure. The infant
is also hydrocephalic. She is being kept alive on life support systems and
is experiencing [unreadable] physical distress with no hope of surviving
independent of the life support.
|||8. On or about 2/11/99 Dr. Delaney-Black advised that it was her opinion
that it is not in this infant's best interest to [be] maintained on life
|||9. The mother is not capable of comprehending the implications of the
medical facts related to the baby and, therefore, cannot make an informed
|||10. Because [baby Allison] is a pending ward of the court and because
she is not under the jurisdiction or pending jurisdiction of another court,
FIA petitioner requests that the court render a decision about what is in
the best interest of this infant.
|||Referee Peter Schummer conducted a hearing on the amended petition on
Wednesday, February 17, 1999. Neither KB nor JB appeared at this second
hearing and neither was represented by counsel. Ladd did not appear at the
second hearing because he had not been notified that it was scheduled. In
his stead, "emergency house counsel" Paula Mahinske appeared to
represent baby Allison. Mahinske did not indicate on the record what, if
any, steps she had taken to prepare to represent baby Allison. Referee Schummer
did not ask whether KB or JB received notice of the second hearing. Neither
of the two attorneys present indicated whether KB or JB were aware that
the second hearing was scheduled. Referee Schummer did not inquire whether
baby Allison or KB had a guardian or a guardian ad litem.
|||At the second hearing, baby Allison's neonatologist, Dr. Delaney-Black,
testified under oath by telephone to the circumstances surrounding baby
Allison's birth. Dr. Delaney-Black explained that physicians were administering
prostaglandin to baby Allison to
|||keep the ductus arteriosis open, which gives oxygenated blood to the baby.
In the event of withdrawing this, it is likely that the baby would not oxygenate
well and might not be able to sustain life without this medication. In addition,
the baby's left lung is also been found to be relatively collapsed because
of the exceedingly large cardiac silhouette, which is preventing the lung
from expanding, and that's another reason for the baby needing to be on
|||Dr. Delaney-Black said that baby Allison's right lung was "relatively
|||for long-term survival, we do not feel that the [heart] lesions that this
baby has are compatible with long-term survival. It is possible that taken
off the ventilator and taken off the prostaglandins [sic] that the baby
could live for hours, to days, to months.
|||Dr. Delaney-Black also noted that blood reflux on the right side of baby
Allison's heart would ultimately lead to heart failure. When asked whether
baby Allison's chances for survival were better if she remained on the ventilator,
Dr. Delaney-Black said:
|||No. No. The . . . heart problem is really incompatible with life in a
long-term survival situation. Now, as I said, I can't tell you how long
she could survive, but long-term survival is . . . not likely at all . .
. . [E]ven if she had no other problems, there is no easy solution to any
of her heart problems.
|||My recommendation is that we stop the prostaglandins [sic] and we remove
her from the ventilator and provide comfort care. There are other abnormalities
as well, which I have not described, but it's really the heart, which is
the life threatening abnormality at this point. There is also the potential
for [a] life threatening abnormality of the bowel, because the bowel may
not be normally developed. . . .
|||According to Dr. Delaney-Black, medical staff had not been able to determine
the extent of baby Allison's intestinal problem because she was on a ventilator,
but knew that her "very severe" brain "abnormalities"
were not life threatening. Dr. Delaney-Black stated that if baby Allison
lived long enough and developed the capacity to walk, she would require
extensive orthopedic surgery to correct her hip problems.
|||Dr. Delaney-Black recommended that baby Allison be given "fluids,
heat, warmth, monitoring of her heart rate and vital signs," possibly
a feeding tube, and anything else that might be necessary to keep her comfortable.
If baby Allison lived for weeks to months after being removed from the ventilator,
Dr. Delaney-Black believed that the doctors would have to assess whether
she would need gastrointestinal surgery. Though Dr. Delaney-Black had not
spoken with KB, she believed that another physician had spoken with her
and determined that she had an "extremely limited understanding of
what was going on, although she did understand that the baby had significant
|||During the brief cross-examination by Mahinske, Dr. Delaney-Black again
emphasized that she did not know how long baby Allison could live, irrespective
of whether she remained on a ventilator. Dr. Delaney-Black added that baby
Allison could only receive prostaglandin intravenously. According to Dr.
Delaney-Black, even if the physicians could maintain an intravenous line,
it would expose baby Allison to potentially fatal blood infections *fn2
and pneumonia and, all the while, her heart would continue to fail. Dr.
Delaney-Black believed that baby Allison, who was conscious and not sedated,
would suffer less if the life support measures ended and
|||[b]ecause we have no medical treatment to offer this . . . child in the
long run and I think what [sic: that] care is futile [and] to ask an infant
to suffer on a ventilator with a tube in their throat, unable to be fed
with I.V.s and not being to easily be held or provided with the kinds of
life that one would want, that it is not a humane decision.
|||In all, it was Dr. Delaney-Black's opinion that sustaining baby Allison
with medical technology would intensify her suffering while failing to offer
any solution for her dire health problems.
|||When Matlock testified, this time under oath but by telephone, she explained
that she had not had direct contact with KB, despite her representation
at the first hearing that she "had the opportunity to inform the mother"
of the proceedings. Rather, according to Matlock, she had been speaking
with KB's paternal aunt. Matlock explained that she had filed the amended
petition, which she called a "medical authorization petition,"
because she had learned that KB was a "trainable mentally impaired
student" and unable to make complex decisions. Matlock said that KB's
teacher, who neither testified nor furnished any documentary evidence concerning
KB, had estimated KB's IQ at forty-five to fifty points. From Matlock's
perspective, "[i]t would be virtually impossible for her [KB] to make
an informed judgment [sic] about her daughter because she's not able to
comprehend the medical information given to her by the physicians who are
treating her daughter." Further, even though [KB] appeared, to all
parties involved, to understand that she was to have a baby and did in fact
have a baby, she had no ability to prepare for the baby, to anticipate the
needs of a baby in terms of equipment, of clothing, of having a home, that
kind of thing. [KB] will probably remain in the education system until she's
twenty-six years old to maximize her opportunities for training. She will
be - but she will probably always need a competent care giver.
|||Matlock wanted the family court to enter an order permitting Children's
Hospital to do what was in baby Allison's "best interests." Mahinske
did not question Matlock at all.
|||Following a discussion off the record on an unknown topic, the assistant
attorney general representing the FIA summarized the testimony at the hearing.
He then stated that "we are asking the Court to authorize the medical
authorization petition, which would allow the hospital, Children's Hospital,
to make the appropriate decision based on the best interest for [baby Allison]
at this point in time." Mahinske responded:
|||We'd concur in that recommendation. Clearly it's been shown through Ms.
Matlock's testimony that this mother lacks any intellectual capacity to
make this decision. And so, therefore, the Court must make the decision
for her. [B]ased on the medical testimony, I believe it would be in the
best interest to let the doctors decide the course of treatment. Unfortunately,
this little baby's heart is just not going to sustain her life and it didn't
seem clear from the - in fact, it seemed contrary from the testimony that
to keep her on life support would not necessarily make her death less painful
or any easier. In fact, it would draw out that process and make it more
painful because complications would arise, such as septicemia. The growth
of the heart would not be normal. And there is no treatment for this heart
defect. The only treatment is a heart transplant, but [baby Allison] is
not a candidate. So I would ask the Court to enter the order allowing the
hospital to make the necessary decisions.
|||Referee Schummer then commented:
|||I will authorize Children's Hospital to remove the child from life support
as well as from medication, provided that the child is provided with comfort
care as outlined by the doctor. It is clear that the child does not have
an opportunity to live and prolonging the child's life would only prolong
the child's suffering and the mother is certainly not capable of making
any informed decisions as to the procedure and the father is unavailable
due to his incarceration. Uh, the fact that he is the father of the mother,
as well as the father of the child would lead the Court to believe that
he is not qualified to make that kind of decision anyway. So I will authorize
the medical . . . procedures as requested and the Court does not retain
jurisdiction. That's my decision. Anybody dissatisfied with that has a right
to appeal it to a judge of this court within seven days, Court of Appeals
within twenty-one days after the order is final. . . .
|||Referee Schummer's report summarized the evidence and concluded that "[t]he
court will authorized [sic] the hospital to take the child off life support
equipment and medication provided that 'Comfort Care' is provided."
The front page of the report had a stamp of a family court judge's signature
and a stamped date indicating that the recommendations and findings had
been "[e]xamined and approved" on February 18, 1999.
|||A "dispositional order" on a preprinted form was entered in
the record the same day. The "order" declared, "NOTE: THIS
ORDER IS EFFECTIVE 7 DAYS AFTER THE HEARING DATE UNLESS A PETITION FOR REVIEW
IS FILED IN ACCORDANCE WITH MCR 5.991." The family court judge's stamped
signature appeared on the form order along with a February 18, 1999, date
stamp. Substantively, the "order" only stated, "Children's
Hospital is authorized to remove the child from life support equipment and
medication provided that 'Comfort Care' is provided."
|||D. Baby Allison's Death And The Immediate Aftermath
|||For reasons that are unclear from the record, Children's Hospital staff
did not wait the seven days for the "order" to become effective
or for a party to request judicial review. Rather, on February 19, 1999,
Children's Hospital staff removed the life support and baby Allison died.
|||On February 25, 1999, six days after baby Allison's death, Ladd filed
a petition for judicial review of Referee Schummer's findings and recommendations.
In pertinent part, the petition stated that review was critical because
Mahinske had represented baby Allison at the second hearing and
|||[c]counsel was not given an opportunity to observe the child, consult
with caretakers and expert witnesses. The appointed attorney was not apprised
of the early hearing date, nor was any attorney from LADA [the Legal Aid
and Defender Association] asked to be present. Neither parent was notified
|||The family court held a review hearing on March 18, 1999. The family court,
ruling in part from the bench, approved Referee Schummer's findings and
recommendation. Nevertheless, at the conclusion of the review hearing, the
family court indicated that court personnel would review the procedures
in place in order to determine whether there was a better way to handle
similar cases in the future. The family court later issued an order that
recapitulated its findings and dismissed the review petition as moot.
|||Attorney Kathleen Gonzales filed a claim of appeal on behalf of baby Allison
in April 1999, after which Ladd also filed an appearance. The FIA contested
their authority to claim an appeal. The Chief Judge of this Court, in an
unpublished order dated October 1, 1999, dismissed the case on an administrative
motion docket on the grounds that Gonzales lacked authority to file the
appeal on behalf of baby Allison. In response to a motion for rehearing,
on November 24, 1999, a panel of three judges *fn3
dismissed the appeal for the same reason. On January 18, 2000, the same
panel vacated the November 24, 1999, order, but again dismissed the appeal
"as there is no indication that either attorney is authorized to act
on behalf of the child's estate."
|||Having failed to obtain substantive review in this Court, Ladd then applied
for leave to appeal to the Michigan Supreme Court. In lieu of granting leave,
the Supreme Court reversed this Court's October 1, 1999, order dismissing
the appeal and remanded the case to this Court for consideration of the
merits of the issues raised in appellant's issues IV through IX and XI.
Attorney William Ladd shall be entitled to proceed as lawyer guardian ad
litem to represent the interests of the deceased minor. The issues in this
case are of substantial importance, have been fully briefed, and are capable
of arising again in future situations, but evading appellate review.
|||The Supreme Court also allowed Gonzales to withdraw from the appeal. Thus,
this case was assigned to this panel for a full hearing and decision with
Ladd acting as baby Allison's attorney.
|||We commence with the obvious: baby Allison's life has ended and we can
do nothing to change that. Fundamentally, then, our task is to provide guidance
to the courts that will deal with similar questions in the future. To that
end, the attorneys representing the FIA and baby Allison have cooperated
with our efforts to clarify the record and examine the issues. Additionally,
the American Civil Liberties Union and Legal Services of Southern Michigan,
the Children's Section of the State Bar of Michigan, the Michigan Protection
and Advocacy Service, Inc., and the Scholars in Medical Ethics have each
provided us with a thoughtful amicus curiae brief.
|||Unfortunately, there is a mismatch between the way issues are numbered
in this Court and the Supreme Court. There is also a mismatch between the
way Ladd has presented issues for appeal to both courts and his substantive
arguments concerning each issue. Consequently, it is difficult to determine
from the Supreme Court remand order which legal questions this Court has
an absolute duty to address. In any event, the Supreme Court's remand order
does not prevent this Court from considering questions and issues not specified.
Thus, we have addressed the widest range of issues necessary to assure that
we have satisfied the Supreme Court's remand order and to create a framework
for making decisions in similar end of life cases. Appendix B to this opinion
identifies the issues presented in the application for leave to appeal to
the Supreme Court and specifically where we address them in this opinion.
|||In order to organize the widely varying legal questions in this case,
we first consider the issues that involve the broadest legal principles:
the family court's jurisdiction; whether any of the three state statutes
or the three federal statutes that Ladd cites prohibited the family court
from entering an order permitting baby Allison's life support to be withdrawn;
and the legal and evidentiary standards that apply to a decision to withdraw
life support from a never-competent individual who is the subject of a protective
proceeding. We next examine the many interrelated questions concerning Mahinske's
representation, including a child's right to effective assistance of counsel
in a protective proceeding and the procedural requirements affecting substitution
of counsel in that context. In the final sections of the opinion we consider
narrower questions, including whether the family court was operating under
an improper local court rule and whether any errors in this case were harmless.
After the conclusion, we summarize our individual legal holdings in Appendix
A, which might serve as a useful reference in the future.
|||IV. Standard Of Review
|||Virtually all the issues raised in this appeal present legal questions,
subject to review de novo. *fn4 Only the
question of whether withdrawing life support was in baby Allison's best
interests requires a factual determination, therefore meriting review for
clear error. *fn5
|||V. Subject-Matter Jurisdiction
|||A. Authority To Hear A Case
|||The neglect allegations in the original petition gave the family court
subject-matter jurisdiction over baby Allison under MCL 712A.2(b)(1) or
(2). Ladd, nevertheless, contends that the family court was divested of
its existing subject-matter jurisdiction when the FIA filed the amended
petition seeking to withdraw life support, which changed the focus of the
proceedings from protecting baby Allison to ending her life. Ladd argues
that the family court lacks the broad authority given to circuit courts
under Const 1963, art 6, § 13. Rather, according to Ladd, the family court's
authority is limited to the acts enumerated in the juvenile code. *fn6
|||"Jurisdiction is the power of a court to act and the authority of
a court to hear and determine a case." *fn7
As its name implies, subject-matter jurisdiction describes the types of
cases and claims that a court has authority to address. *fn8
In other words,
|||"'[j]urisdiction over the subject matter is the right of the court
to exercise judicial power over that class of cases; not the particular
case before it, but rather the abstract power to try a case of the kind
or character of the one pending; and not whether the particular case is
one that presents a cause of action, or under the particular facts is triable
before the court in which it is pending, because of some inherent facts
which exist and may be developed during the trial.'" *fn9
|||"Jurisdiction of the subject matter of a judicial proceeding is an
absolute requirement. It cannot be conferred by consent, by conduct or by
waiver" or "by estoppel." *fn10
Subject-matter jurisdiction is so critical to a court's authority that a
court has an independent obligation to take notice when it lacks such jurisdiction,
even when the parties do not raise the issue. *fn11
|||Const 1963, art 6, § 15, grants probate courts "original jurisdiction
in all cases of juvenile delinquents and dependents, except as otherwise
provided by law." The family division of each circuit court has replaced
the probate court in proceedings concerning custody of juveniles. *fn12
The juvenile code, MCL 712A.2(b), specifically grants the family courts
in this state subject- matter jurisdiction over cases concerning children
under eighteen years of age if, among other factors, the child's parents
or guardians are neglectful as defined in subsection 1 or have failed to
provide a fit home as defined in subsection 2. This and other statutes comprising
the juvenile code are intended to give the family courts extensive authority
to protect children. *fn13 Family courts
thus have subject-matter jurisdiction in a large sphere of cases involving
|||In In re Hatcher, *fn14 the Michigan
Supreme Court interpreted a family court's subject- matter jurisdiction,
holding that it "is established when the action is of a class that
the court is authorized to adjudicate, and the claim stated in the complaint
is not clearly frivolous." *fn15
Accordingly, a family court has subject-matter jurisdiction when the allegations
in the petition provide probable cause to believe that it has statutory
authority to act because the child's parent or guardian neglected the child,
failed to provide a fit home, or committed any of the other conduct described
in the statute. *fn16 Whether the allegations
are later proven true is irrelevant to whether the family court has subject-matter
|||B. Exercising Authority
|||As Ladd concedes, the allegations in the original petition unambiguously
gave the family court subject-matter jurisdiction. At the first hearing,
Referee Smart had probable cause to believe that baby Allison's mother,
KB, was incapable of providing baby Allison with "proper custody"
or a fit home because she lacked the mental capacity and financial resources
to care for her daughter. These allegations were serious, not frivolous.
The requisite probable cause to believe that this case fit among the class
of cases that a family court may hear under MCL 712A.2(b) clearly existed,
thereby justifying the decision to authorize the original petition. *fn18
|||The amended petition did not allege new or different grounds for the family
court's subject-matter jurisdiction. Rather, the amended petition alleged
the same factual foundation for the family court's continuing subject-matter
jurisdiction and asked the family court to exercise its jurisdiction by
"render[ing] a decision about what is in the best interest of this
infant." Whether the family court erroneously determined the scope
of its authority to act, erred in deciding what was in baby Allison's best
interests, or failed to follow proper procedures in this case is irrelevant
to whether it had subject-matter jurisdiction. *fn19
As this Court explained in Altman v Nelson: *fn20
|||Once jurisdiction of the subject matter and the parties is established,
any error in the determination of questions of law or fact upon which the
court's jurisdiction in the particular case depends is error in the exercise
of jurisdiction. Jurisdiction to make a determination is not dependent upon
the correctness of the determination made.
|||Stated another way, "If the court has jurisdiction of the parties
and of the subject matter, it also has jurisdiction to make an error."
|||Ladd, however, presses the relationship between the general purpose of
the proceeding over which a court originally has subject-matter jurisdiction
and how it is asked to exercise its authority. Essentially, he contends
that a family court may be asked to take some actions that are so far removed
from the allegations supporting its original jurisdiction over the case
that the court would lack basic authority to act on such a request. Altman
does make a fine-line distinction between acquiring subject-matter jurisdiction
and the potentially erroneous exercise of that jurisdiction. However, Altman
describes the sort of erroneous exercise of authority that deprives the
court of subject-matter jurisdiction as the "determination of questions
of law or fact upon which the court's jurisdiction in the particular case
depends." *fn22 Theoretically,
then, some cases may develop in a direction so unrelated to the grounds
for assuming subject-matter jurisdiction under MCL 712A.2(b) that a family
court may not proceed.
|||Nevertheless, this case does not present such a dramatic change in direction.
In the original petition, the FIA asked the family court to take temporary
custody of baby Allison because someone needed to care for her, which included
making medical decisions for her. KB, baby Allison's mother, would naturally
make this sort of decision. However, KB was, at least allegedly, unable
to fulfill this role and no one else had legal authority to make decisions
for baby Allison. In the amended petition, the FIA requested the family
court to make an explicit decision regarding baby Allison's interests because,
again allegedly, KB could not do so and no one else had legal authority
to make that decision. The amended petition raised questions of fact and
law that depended entirely on the statutory bases for subject-matter jurisdiction
in this case. While baby Allison's health status may have been changing,
her underlying need to have someone make decisions for her and to care for
her remained the same throughout the proceedings. Thus, this request for
a best interests ruling still was within the "class" of cases
or issues concerning which the family court may make a decision. *fn23
|||Though Ladd attempts to distinguish between the family court's responsibility
to protect children and the effect of removing life support, the request
for relief in the amended petition, at least arguably, did not ask the family
court to abandon its duty to protect baby Allison. Rather, the amended petition
asked for a ruling on what course of conduct would be in baby Allison's
best interests. In In re Rosebush, *fn24
this Court held that courts can permit parents or other surrogates for an
incompetent patient to make serious medical decisions, including whether
to withdraw life support, as long as the decision conforms to the substituted
judgment or best interest criteria, as relevant. The Rosebush Court determined
that judicial intervention in the decision to withdraw life support is warranted
if "the parties directly concerned disagree about treatment, or other
appropriate reasons" exist. *fn25
|||Baby Allison's father was never legally determined. Her putative father's
legal situation called into question his ability to make decisions on her
behalf. Baby Allison's mother was, allegedly, incompetent. The possible
absence of an appropriate surrogate to make decisions for baby Allison did
not lessen the urgency of her situation. Hospital staff needed immediate
direction concerning baby Allison's care, regardless of whether it was a
decision to continue all medical measures or to withdraw the life sustaining
medical technology in place. These, we conclude, were "other appropriate
reasons" for the family court to become involved with the decision
concerning baby Allison's care.
|||C. Treatment As Protection
|||Ladd cites an unpublished Virginia case, In re Infant C, *fn26
for the proposition that withdrawing life support is outside the scope of
a family court's subject-matter jurisdiction because it is not medical "treatment."
He argues that only therapeutic medical treatment is a protective measure
within the family court's subject-matter jurisdiction.
|||Yet, the FIA never contended that withdrawing life support was equivalent
to medical treatment in the sense that it had therapeutic or curative value.
Dr. Delaney-Black did not propose removing baby Allison from the ventilator
and stopping the prostaglandin as a way to cure or improve her ailments,
or prolong her life. From Dr. Delaney-Black's perspective, no medical intervention
would cure baby Allison's many health problems or prolong her life. Rather,
Dr. Delaney-Black asserted that her purpose in recommending these actions
was to allow baby Allison to live in as little pain as possible because
her death was unavoidably imminent. In this respect, it is at least arguable
that Dr. Delaney-Black was acknowledging baby Allison's common law right
to refuse medical care, a corollary to her right to give informed consent.
*fn27 Dr. Delaney-Black also might have
been acknowledging her own interest as a physician in making her patient
as comfortable as possible. Thus, we conclude that it is unnecessary to
use the fiction - and a fiction it surely is - of categorizing withdrawing
life support as medical "treatment" to demonstrate the family
court's subject-matter jurisdiction in this case. *fn28
|||VI. Personal Jurisdiction
|||Ladd claims that the family court lacked the legal authority to enter
an order to withdraw baby Allison's life support because it lacked personal
jurisdiction over baby Allison's mother, KB, and her putative father, JB.
At issue here is whether KB and JB received notice of the protective proceeding.
Aside from the constitutional right to notice inherent in due process, *fn29
respondents in child protective proceedings have a statutory right to notice.
*fn30 The absence of this notice to
a respondent in a protective proceeding constitutes a jurisdictional defect.
*fn31 Therefore, failure to give adequate
notice to a respondent *fn32 in a protective
proceeding makes "all proceedings in the [family] court void,"
*fn33 at least with respect to the respondent
|||Determining exactly who was a respondent in this protective proceeding,
and therefore entitled to notice, is often a mundane question answered simply
by looking at the caption in a case or other pleadings. In this case, rather
than using a caption listing the respondents, Matlock drafted the original
and amended petitions so that only baby Allison's name appeared in the caption.
Matlock named KB as baby Allison's "mother" and JB as baby Allison's
"father," listing the addresses of their respective residences
in the same section of each petition. It would be wholly illogical to conclude
that, even though the FIA as petitioner knew where KB and JB each were living
and denominated them as baby Allison's parents, there were no respondents
in this proceeding. In fact, no one challenges the notion that KB, as baby
Allison's mother, was a respondent.
|||Nevertheless, a putative father ordinarily has no rights regarding his
biological child, including the right to notice of child protective proceedings,
until he legally establishes that he is the child's father. *fn34
JB never took this step. Still, in this unusual case, because Matlock identified
JB and KB in exactly the same way in the petitions, it appears that JB was
a respondent, despite his status as a putative father. Thus, though Referee
Smart may have had authority to conduct the preliminary hearing and place
baby Allison before JB and KB received notice of the proceeding, *fn35
both were entitled to notice of other hearings held in the case. *fn36
|||There is no way to determine from the record that KB actually received
notice of the second hearing in this case because Matlock gave contradictory
statements on the record regarding her contact with KB. Even assuming that
Matlock told KB's aunt about the hearings, there is no evidence that Matlock
asked the aunt to inform KB of any of the hearings. Nor is there any evidence
that KB's aunt told KB about the second hearing. Further, to our knowledge,
KB's aunt was not her legal guardian. Thus, there is no legitimate argument
that notice to the aunt, alone, would be sufficient. *fn37
Allowing this action to proceed without ever ensuring *fn38
that KB, regardless of her alleged intellectual limitations, ever received
notice was error.
|||The situation surrounding JB is even more complicated. As Referee Schummer
put it, JB was unavailable to make decisions because he was incarcerated
and "the fact that he is the father of the mother, as well as the father
of the child would lead the Court to believe that he is not qualified to
make that kind of decision anyway." Though apparently also a respondent,
the record does not give us a basis to conclude that JB received notice
of the second hearing, nor that there were legitimate reasons to deny him
notice. *fn39 Even if accurate, moral
judgments cannot take the place of mandated procedures. As a result, though
we also have serious doubts about JB's fitness to make any decision for
baby Allison, because the circumstances of this case suggest that he was
a respondent, the failure to notify him of the proceedings was also error.
|||Nevertheless, it is well-settled that the right to notice is personal
and cannot be challenged by anyone other than the person entitled to notice.
*fn40 Even if KB and JB would have been
able to challenge any of the orders in this case successfully on the basis
of their lack of notice, Ladd, representing baby Allison's interests, cannot
now raise those issues.
|||VII. Juvenile Code
|||Ladd argues that the family court exceeded its statutory authority to
order emergency medical care under the juvenile code, MCL 712A.1 et seq.
He questions the family court's authority to withdraw life support pursuant
to MCL 712A.18f. In practice, MCL 712A.18f(4) describes the process through
which a family court can enter a dispositional order that provides a child
with appropriate care after the family court has determined that the child
comes within its jurisdiction. *fn41
In this context, jurisdiction has a very specific meaning. In order for
a child to come within a family court's jurisdiction, the family court must
hold an adjudication, which is a trial *fn42
on the merits of the allegations in the petition. *fn43
Following the adjudicative hearing, *fn44
the family court must find that a preponderance of legally admissible evidence
*fn45 demonstrates that there is factual
support for one of the grounds permitting judicial involvement under MCL
712A.2(b). *fn46 Once the family court
determines that the child comes within its jurisdiction, it can enter dispositional
orders that govern all matters of care for the child. *fn47
|||The form used for the "order" allowing Children's Hospital staff
to withdraw baby Allison's life support states that it is a "dispositional
order." This "order" did resemble a dispositional order because
it directed others in how to care for baby Allison. However, it was not
actually a dispositional order because it was entered before, not after,
a dispositional hearing. A dispositional hearing can occur only after the
family court holds an adjudication. *fn48
The formal proceedings in this case never progressed past the preliminary
hearing at which Referee Smart authorized the petition. *fn49
Thus, even if MCL 712A.18f(4) would allow a family court to order withdrawal
of life support for an incompetent minor child already within its jurisdiction,
the family court had not yet acquired jurisdiction over baby Allison. We
conclude that the family court lacked authority to act under MCL 712A.18f.
|||VIII. MCL 722.124a(1)
|||A. Medical And Surgical Treatment
|||Ladd also contends that MCL 722.124a(1) did not allow the family court
to withdraw baby Allison's life support. MCL 722.124a(1) provides:
|||A probate court, a child placing agency, or the department may consent
to routine, non-surgical medical care, or emergency medical and surgical
treatment of a minor child placed in out-of-home care pursuant to [MCL 400.1
to MCL 400.121, MCL 710.21 to MCL 712A.28], or this act. If the minor child
is placed in a child care organization, then the probate court, the child
placing agency, or the department making the placement shall execute a written
instrument investing that organization with authority to consent to emergency
medical and surgical treatment of the child. The department may also execute
a written instrument investing a child care organization with authority
to consent to routine, non-surgical medical care of the child. If the minor
child is placed in a child care institution, the probate court, the child
placing agency, or the department making the placement shall in addition
execute a written instrument investing that institution with authority to
consent to the routine, non-surgical medical care of the child.*fn50
|||By its language, this statute applies to children "placed in out-of-home
care" pursuant to a variety of statutes concerning child welfare, adoption,
and protection, including protective proceedings under the juvenile code,
MCL 712A.1 et seq. Unlike MCL 712A.18f, which is tied to the dispositional
phase of a child protective proceeding, MCL 722.124a(1) is not specifically
related to any particular phase in any of the varied child welfare proceedings
to which it applies. Ordering treatment under MCL 722.124a(1) primarily
depends on whether the child has been "placed in out-of-home care."
As a result, once a family court places a child in foster care or other
"out-of-home" living arrangement, it has statutory authority to
order medical or surgical treatment in an emergency, or routine, non-surgical
treatment even when there is no emergency. *fn51
|||Notably, other than distinguishing between routine and emergency treatment,
the statute does not spell out what treatment the family court may or may
not order. Nor does the statute attempt to differentiate between the authority
to order medical personnel to give treatment and the family court's authority
to order them to withdraw treatment. More critically, the language in MCL
722.124a(1) makes no attempt to authorize any emergency activity other than
"medical or surgical treatment." The key word here is "treatment,"
which as a noun means "the application of medicines, surgery, therapy,
etc., in treating a disease or disorder." *fn52
In turn, the verb to treat means "to act or behave toward in some specified
way." *fn53 However, it is also
defined as "to deal with (a disease, patient, etc.) in order to relieve
or cure." *fn54 Whether the medical
technologies and techniques at issue fall outside the definition of treatment
depend on the particular circumstances of each case. *fn55
However, once interventions, whether medical or surgical, cease to be "treatment,"
the question is what legal authority would permit those measures to continue,
not what authority would permit the family court to stop them.
|||B. Application Of MCR 722.124a(1)
|||Whether the family court ever "placed" baby Allison in "out-of-home
care" is difficult to determine on the basis of the record before us.
The order following the first hearing that authorized the petition ordered
the FIA to place baby Allison in foster care or suitable relative care.
Yet, baby Allison never lived with a foster family. Nor does the record
reflect that the FIA ever arranged for a foster family to be involved with
baby Allison's care while she was in Children's Hospital. Our impression
from the medical record and Matlock's comments is that members of baby Allison's
extended family, especially her mother's aunts, were involved with baby
Allison's care and medical decisions during her short life. However, we
know so little about the kind and extent of their involvement with baby
Allison that we cannot say that she was actually "placed" in their
care, triggering the family court's authority under MCL 722.124a(1). For
the most part, the record suggests that the staff at Children's Hospital
cared for baby Allison. However, a hospital is excluded from the definition
of a "child caring institution" *fn56
in which the family court may place a child for "out-of-home care."
Thus, even this informal, though medically necessary, arrangement for baby
Allison's care certainly does not clearly fall within the parameters for
authorizing emergency medical or surgical treatment under MCL 722.124a(1).
|||Nevertheless, we must resolve this issue even without a satisfactory record.
Generally, the statute makes it possible for a family court or other designated
agencies to make health care decisions for a child when formal custody arrangements
make it impossible for a parent to make a medical decision. In this case,
KB was not in a position to make a medical decision for baby Allison, at
least in part because the family court had temporarily removed baby Allison
from her custody. Because JB had not been legally established as baby Allison's
father and the order entered following the preliminary hearing prevented
him from having contact with her, JB was not in a position to make medical
decisions for her. Thus, we conclude that the family court had authority
to order medical or surgical treatment for baby Allison pursuant to MCL
722.124a(1) because the order following the first hearing "placed"
baby Allison in "out-of-home care" and because she had a medical
|||This, we think, is the only sensible interpretation and application of
MCL 722.124a(1). In our view, to deprive a family court of the ability to
make medical or surgical treatment decisions for a vulnerable and critically
ill child who lacks a parent or guardian to make those decisions for her
contravenes the Legislature's intent to protect children by granting the
family court jurisdiction in protective proceedings. *fn57
Consequently, the confusing custody arrangements in this case did not eliminate
the family court's authority to act under MCL 722.124a(1) once Referee Smart
ordered the FIA to place baby Allison in foster care or with a relative.
|||As we have suggested, whether MCL 722.124a(1) gave the family court authority
to order treatment also included the authority to withdraw life support
depends on the circumstances of each case. Dr. Delaney-Black directly testified
that the ventilator and prostaglandin had ceased to be "medical treatment"
for baby Allison and that these measures posed serious risks to her health.
We have significant reservations about the adequacy of this testimony and
the family court procedures surrounding it. However, in the abstract, this
testimony provided the family court with statutory grounds to authorize
the Children's Hospital medical staff to remove baby Allison's life support.
|||Though MCL 722.124a(1) enabled the family court to act in this case even
before holding an adjudication, we must stress that the parties and the
family courts in protective proceedings must make every possible effort
to hold an adjudication before authorizing withdrawal of life support. We
emphasize that making this decision without first conducting an adjudication
creates the very real risk that family courts will intervene in private
family decisions when no grounds under MCL 712A.2(b) actually exist to give
the family court jurisdiction to act. In many cases, the allegations in
a petition do not always fully represent the situation. The adjudication
is the time to test those allegations so the family court can decide whether
it has cause to become involved in a case. Just as importantly, MCL 722.124a(1)
does not exist in a legal vacuum. As we explain in greater detail below,
there are other procedural and substantive requirements that a family court
must fulfill before it can order withdrawal of life support for an incompetent
|||Ladd argues that even if state law allowed the family court to order Children's
Hospital staff to withdraw the life sustaining medical care baby Allison
was receiving, the federal Child Abuse Prevention and Treatment and Adoption
Reform Act (CAPTA) *fn58 prevented the
FIA from seeking such an order. *fn59
Thus, he in essence contends that the family court lacked the authority
act on the FIA's illegal request.
|||In order to be eligible to receive CAPTA funds to prevent child abuse
and neglect, *fn60 Congress requires,
among other conditions,
|||an assurance that the State has in place procedures for responding to
the reporting of medical neglect (including instances of withholding of
medically indicated treatment from disabled infants with life - threatening
conditions), procedures or programs, or both (within the State child protective
services system), to provide for -
|||(iii) authority, under State law, for the State child protective services
system to pursue any legal remedies, including the authority to initiate
legal proceedings in a court of competent jurisdiction, as may be necessary
to prevent the withholding of medically indicated treatment from disabled
infants with life threatening conditions[. *fn61
|||In Michigan, the FIA functions as the chief agency in the state child
protective services system. Consequently, if CAPTA applies, the FIA has
a duty to prevent neglect, which includes "withholding . . . medically
indicated treatment from disabled infants with life threatening conditions."
At a theoretical level, this duty to prevent neglect might be viewed as
contrary to a petition seeking to withdraw life support. However, 42 USC
5106g(6) specifically defines when withholding treatment constitutes medical
|||[T]he term "withholding of medically indicated treatment" means
the failure to respond to the infant's life-threatening conditions by providing
treatment (including appropriate nutrition, hydration, and medication) which,
in the treating physician's or physicians' reasonable medical judgment,
will be most likely to be effective in ameliorating or correcting all such
conditions, except that the term does not include the failure to provide
treatment (other than appropriate nutrition, hydration, or medication) to
an infant when, in the treating physician's or physicians' reasonable medical
|||(A) the infant is chronically and irreversibly comatose;
|||(B) the provision of such treatment would -
|||(i) merely prolong dying;
|||(ii) not be effective in ameliorating or correcting all of the infant's
life- threatening conditions; or
|||(iii) otherwise be futile in terms of the survival of the infant; or
|||(C) the provision of such treatment would be virtually futile in terms
of the survival of the infant and the treatment itself under such circumstances
would be inhumane.
|||We can assume for the sake of analysis that Michigan is subject to CAPTA
and that baby Allison was a "disabled infant" within the meaning
of the act. Nevertheless, 42 USC 5106g(6) indicates that Congress did not
prohibit withdrawing life support in all circumstances. Rather, if one *fn62
of the individual circumstances enumerated in 42 USC 5106g(6) exists, withdrawing
life support from a critically ill infant does not constitute medical neglect.
|||According to Dr. Delaney-Black's testimony, baby Allison was conscious,
not sedated. This suggested that baby Allison was not "chronically
and irreversibly comatose." As a result, the exception in 42 USC 5106g(6)(A)
did not allow the FIA to ask the family court to permit Children's Hospital
staff to withdraw life support from baby Allison.
|||However, Dr. Delaney-Black's testimony provided evidence that each of
the conditions for exclusion under 42 USC 5106g(6)(B) and (C) applied in
this case. In Dr. Delaney-Black's medical opinion, no available treatment
would cure or alleviate baby Allison's life threatening heart (and possibly
intestinal) problems, while maintaining her on a ventilator and providing
her with prostaglandin would do nothing more than temporarily delay her
imminent death. In Dr. Delaney-Black's own words, continuing these "futile"
treatments was "not a humane decision." Thus, even if CAPTA does
require the FIA to prevent medical neglect, the FIA did not violate that
duty by asking the family court to determine what would be in baby Allison's
best interests because that request was not medical neglect as Congress
defined that term.
|||Ladd contends that the order to withdraw baby Allison's life support violated
her right to have her emergency medical condition stabilized under the Emergency
Medical Treatment and Active Labor Act (EMTALA). *fn63
Because baby Allison's life depended on a ventilator and prostaglandin,
Ladd claims that EMTALA required the medical staff at Children's Hospital
to provide these medical interventions indefinitely in order to stabilize
her condition. Essentially, Ladd argues that a family court may not enter
an order that violates a patient's EMTALA rights.
|||EMTALA requires hospitals with emergency departments that receive Medicare
funds to screen patients for emergency conditions within the medical capabilities
of the facility. *fn64 If the patient
has an emergency medical condition, the hospital must provide "[n]ecessary
stabilizing treatment." *fn65 If
the hospital is unable to treat the patient's emergency medical condition,
it may transfer the patient to a facility that can render the necessary
care after providing the care that is within the transferring hospital's
capabilities. *fn66 Otherwise, the hospital
must stabilize the patient's emergency medical condition before transferring
the patient to another facility. *fn67
|||B. Baby K And Bryan
|||There is very little case law interpreting EMTALA in the context of withdrawing
life support, and none from Michigan. The most relevant and well-known cases
both come from the Fourth Circuit of the United States Court of Appeals.
|||Ladd relies entirely on In re Baby K, *fn68
the first of these Fourth Circuit cases. When Baby K was born, doctors determined
that she was anencephalic, meaning that she had "a congenital malformation
in which a major portion of the brain, skull, and scalp are missing."
*fn69 Baby K did have a brain stem,
which allowed her autonomic system to continue to function even though she
was permanently unconscious. *fn70 Physicians
placed Baby K on a ventilator because she began experiencing difficulty
breathing. *fn71 Because anencephalic
babies typically die soon after birth, the physicians believed that any
treatment would be futile. *fn72 The
physicians asked the mother to approve a medical order not to resuscitate
Baby K in the future, but the mother refused. *fn73
|||When the mother and hospital staff could not agree on Baby K's care, the
hospital contacted other local hospitals to determine if any of them would
be willing to provide Baby K with the care her mother wanted. *fn74
No other hospitals with pediatric intensive care units were willing to undertake
this care, but Baby K's mother was able to transfer her to a nursing home
during a period when she did not need a ventilator to aid her breathing.
*fn75 While at the nursing home, Baby
K had to be readmitted to the hospital three times because of respiratory
|||After Baby K's second emergency hospital admission, the hospital brought
a declaratory action in federal district court seeking judicial approval
to abstain from providing any aggressive treatment for Baby K in the future.
*fn77 Baby K's guardian ad litem and
her biological father joined with the hospital in opposing the mother's
efforts to use any medical intervention available to keep Baby K alive.
*fn78 The district court, however, denied
the requested relief. *fn79
|||On appeal, the Court found the hospital's arguments unpersuasive, especially
in light of the hospital's concession that ventilator support or other aggressive
treatment would be necessary to stabilize Baby K in the emergency room if
she were in respiratory distress. *fn80
The Court rejected the proposition that anencephaly, not respiratory distress,
was the emergency medical condition Baby K exhibited and for which she needed
treatment in the hospital's emergency room. *fn81
The Court found no statutory language or Congressional intent to excuse
the hospital from providing stabilizing medical care for emergency conditions
even if treatment would be futile in the long term and therefore above the
standard of care. *fn82 Finally, the
Court concluded that there was no statutory support for the argument that
stabilization is only necessary if the hospital is transferring the patient
to another facility. *fn83 As the Court
noted, hospitals would be able to evade their duty to treat emergency medical
conditions simply by refusing to transfer a patient if this interpretation
of EMTALA were correct. *fn84 Thus,
the Court held *fn85 that "EMTALA
gives rise to a duty on the part of the Hospital to provide respiratory
support to Baby K when she is presented at the Hospital in respiratory distress
and treatment is requested for her[.]" *fn86
|||The second relevant EMTALA case from the Fourth Circuit, which Ladd does
not cite, is Bryan v Rectors and Visitors of University of Virginia. *fn87
According to the complaint in Bryan, the decedent, Shirley Robertson, was
transferred to the University of Virginia Medical Center (UVMC) when she
suffered respiratory distress. *fn88
Robertson's family asked UVMC staff to make all efforts to keep her alive.
*fn89 Against their wishes, twelve days
after Robertson was admitted to UVMC, hospital staff gave a "do not
resuscitate" order for her. *fn90
Eight days later, UVMC staff allegedly failed to stabilize Robertson *fn91
and she died.
|||Cindy Bryan sued on behalf of Robertson's estate, alleging that UVMC's
failure to stabilize Robertson violated EMTALA and caused her death. *fn92
The federal district court dismissed the suit after it concluded that state
tort law, not EMTALA, governed how a hospital must treat a patient once
the patient leaves the emergency room and is admitted to the hospital. *fn93
On appeal, the Court reviewed EMTALA's legislative history, observing that
"Congress's sole purpose in enacting EMTALA was to deal with the problem
of patients being turned away from emergency rooms for non-medical reasons."
|||Once EMTALA has met that purpose of ensuring that a hospital undertakes
stabilizing treatment for a patient who arrives with an emergency condition,
the patient's care becomes the legal responsibility of the hospital and
the treating physicians. And, the legal adequacy of that care is then governed
not by EMTALA but by the state malpractice law that everyone agrees EMTALA
was not intended to preempt. . . . Such reprehensible disregard for one's
patient as Bryan hypothesizes would not constitute the "dumping"
at which EMTALA aims but the well established tort of abandonment, which
the states may expand or constrict as they deem just but which Congress
evidenced no desire to federalize. Presumptively aware of this feature of
state tort law, Congress did not address a hypothetical problem that was
not before it but addressed a national scandal that was: emergency rooms'
turning away patients at the door for inability to pay or other similar
|||[T]he stabilization requirement [in EMTALA] was intended to regulate the
hospital's care of the patient only in the immediate aftermath of the act
of admitting her for emergency treatment and while it considered whether
it would undertake longer-term full treatment or instead transfer the patient
to a hospital that could and would undertake that treatment. It cannot plausibly
be interpreted to regulate medical and ethical decisions outside that narrow
|||The Court also rejected Bryan's argument that Baby K extended EMTALA's
protections beyond the emergency room, stating:
|||The holding in Baby K . . . turned entirely on the substantive nature
of the stabilizing treatment that EMTALA required for a particular emergency
medical condition. The case did not present the issue of the temporal duration
of that obligation, and certainly did not hold that it was of indefinite
|||Thus, the Court affirmed the district court's order dismissing the case
because Bryan could not show that UVMC staff failed to stabilize Robertson
when she arrived in the emergency room, even if the hospital's subsequent
conduct may have violated other legal duties. *fn97
|||C. EMTALA Applied
|||We assume for the sake of analysis that Children's Hospital does receive
Medicare funds and has an emergency room. However, there is no evidence
of an EMTALA violation in this case. Unlike in Baby K, there is no evidence
that baby Allison, who was born in Oakwood Hospital, was ever sent to Children's
Hospital's emergency room for treatment. Also unlike the situation in Baby
K, in this case Children's Hospital did not attempt to create a policy that
would have its emergency room staff treat babies with baby Allison's conditions
differently than other patients who required prostaglandin and ventilator
|||This case is much closer to Bryan because baby Allison had been admitted
to Children's Hospital for more than a week when the staff made the decision
to discontinue the medical interventions. Children's Hospital staff might
be liable for withdrawing baby Allison's life support, especially because
they did not wait for the seven-day judicial-review-request period to end.
However, applying Bryan's holding to this case, the actions of the Children's
Hospital staff were not an EMTALA violation because baby Allison had been
admitted as a patient at the time the staff withdrew life support. The only
hospital conduct in this case involving EMTALA was Oakwood Hospital's decision
to transfer baby Allison to Children's Hospital. However, Oakwood Hospital
staff fulfilled EMTALA's mandate by stabilizing baby Allison before transferring
her to a hospital with the facilities necessary to care for her.
|||Even if Bryan did not fit this case as well as it does, the language Congress
used in EMTALA would still require this result. The standards EMTALA puts
in place affecting treatment specifically control hospital conduct, not
patient autonomy or decisions by appropriate surrogates. There simply is
no evidence that EMTALA abrogates the common law right to informed consent
and the corollary right to refuse treatment, much less any other applicable
statutory rights. In sum, putting aside the other serious questions this
case poses, the "order" permitting Children's Hospital staff to
withdraw baby Allison's life support outside the context of emergency room
treatment did not implicate EMTALA, much less violate it.
|||XI. ADA And PWDCRA
|||Ladd contends that the family court and the FIA violated the Americans
with Disabilities Act (ADA), 42 USC 12101 et seq., by presuming that baby
Allison's mother was incompetent to make decisions for her. Ladd argues
that baby Allison's mother and baby Allison were denied their mutual rights
to have baby Allison or a "legally designated surrogate" make
medical decisions for baby Allison, that both their rights to have access
to the courts were violated, and that they were denied their substantive
rights to a familial relationship. Ladd claims that because of the way the
FIA and family court perceived baby Allison's disabilities, the FIA and
family court acted prematurely in seeking and approving discontinuation
of her life support. Ladd also asserts that these same actions violated
KB's rights and baby Allison's rights under the Persons With Disabilities
Civil Rights Act (PWDCRA), MCL 37.1101 et seq. Thus, Ladd argues that the
"order" permitting Children's Hospital staff to withdraw baby
Allison's life support was legally invalid because it was a product of proceedings
that violated these anti-discrimination laws.
|||These are serious allegations. Not only is discrimination by the courts
and state agencies typically contrary to these statutes, *fn98
discrimination is incompatible with the even-handed treatment we expect
state agencies and courts to give to individuals. Nevertheless, three considerations
convince us not to address the merits of these arguments.
|||First, the briefing on these issues are inadequate to decide whether the
FIA or the family court violated the ADA or PWDCRA. *fn99
Second, this Court has implicitly held that a party must raise ADA claims
in the family court before they can be asserted as a defense on appeal.
*fn100 This requirement is consonant
with our ordinary issue preservation standard. *fn101
As a result, we conclude that a party must also raise PWDCRA claims in the
family court before being allowed to make arguments concerning the PWDCRA
on appeal. Yet, neither Ladd nor Mahinske raised the ADA or PWDCRA issues
in the family court. Third, addressing Ladd's arguments regarding the ADA
and PWDCRA as grounds for reversal in this case would be imprudent because
it would require making original factual findings without the benefit of
an adequate record, which is especially problematic because appellate courts
do not sit as triers of fact.
|||Even if these considerations did not dissuade us from addressing the substance
of Ladd's arguments, Green v Arundel Hosp Ass'n, Inc, *fn102
persuades us that parties cannot use the ADA or PWDCRA to challenge the
result of proceedings in a case that did not originally allege an ADA or
PWDCRA violation. Green was a medical malpractice action parents brought
on behalf of their minor child against the physicians who treated the child
for hydrocephaly. *fn103 The defendants
moved to bar the child from the courtroom during the liability phase of
trial. *fn104 After observing the
child's disabilities in a videotape, the judge granted the motion. *fn105
|||The plaintiffs in Green did not succeed in the malpractice suit. *fn106
On appeal, they claimed that excluding the child from the trial violated
the ADA. *fn107 After examining the
text of the ADA, the Maryland appellate court, however, concluded:
|||[T]he ADA allows for action only against the public entity for prospective
injunctive relief - there is nothing in the ADA that provides a basis for
reversing the judgment of a lower court in a civil dispute between private
parties. Therefore, assuming, arguendo, that [the trial judge's] ruling
constituted a violation of the ADA, this would only give [the child plaintiff]
a separate cause of action for injunctive relief against the trial judge
in his official capacity as a judicial officer of the State -it would not
constitute reversible error in the case sub judice. Thus, whether [the trial
judge's] exclusion of [the child plaintiff] from trial violates the ADA
is irrelevant to the outcome of this case. *fn108
|||Green's reasoning, that the ADA cannot be used as a procedural challenge
to the outcome of a case when the ADA is not a claim tried in that case,
applies here. Further, like the appellate court in Maryland, we find no
support in the PWDCRA's language for allowing a discrimination claim to
alter the outcome of a proceeding involving unrelated grounds. In short,
even if the ADA and PWDCRA would permit baby Allison and her mother to sue
for the way they were treated by the FIA and in the family court, *fn109
whether we affirm or reverse depends solely on the independent legal validity
of the decisions and procedures used in this protective proceeding. *fn110
|||Discriminatory conduct in judicial proceedings may give rise to a due
process or equal protection claim, *fn111
which are legally cognizable means to invalidate the outcome or a particular
aspect of a judicial proceeding. *fn112
However, the PWDCRA and ADA do not provide the same relief in cases not
originally involving those anti-discrimination acts.
|||XII. Legal And Evidentiary Standards For Withdrawing Life Support
|||A. Ladd's Argument
|||Ladd contends that a family court must comply with the following requirements
before it can enter an order permitting medical professionals to withdraw
life sustaining medical care. First, he asserts that the family court must
determine whether the patient is competent to make decisions regarding medical
treatment. If the patient is competent, he or she must be allowed to make
the medical decision. Second, he argues that if the patient is incompetent,
the family court must designate a surrogate to become involved in the decision.
Third, he claims that a physician other than the physician treating the
patient must confirm the patient's diagnosis and prognosis. Fourth, he argues
that in order to justify withdrawing life support, the judge making the
decision must have evidence that meets the clear and convincing standard.
Fifth, he avers that any hearing on the matter must comply with due process,
which excludes ex parte hearings. Finally, he contends that a judge, not
a hearing referee, must make the ultimate decision regarding whether to
withdraw life support.
|||The proceedings in this case, Ladd insists, failed to comply with these
standards other than with respect to the issue whether baby Allison was
incompetent to make decisions for herself, which was undisputed. Thus, he
claims, the "order" purporting to allow Children's Hospital staff
to remove life support from baby Allison is subject to reversal on each
of the other grounds. As the following analysis indicates, we not only agree,
we find an additional flaw in the proceedings in this case involving allegations
that the incompetent patient's parent or other surrogate is also incompetent.
|||B. Patient Competency And The Decisional Standards
|||Competent patients have the right to make medical decisions, including
the decision to cease any medical intervention, under the doctrine of informed
consent. *fn114 According to Rosebush,
"The right to refuse lifesaving medical treatment is not lost because
of the incompetence or the youth of the patient." *fn115
Though legally still minors and considered otherwise incompetent, some young
patients may be sufficiently "mature" to exercise this right on
their own. *fn116 Thus, the mere fact
that the medical decision involves a child subject to a protective proceeding
does not conclusively resolve whether the patient is competent to make the
necessary decision. In short, because a competent patient's right to make
any medical decision is absolute, *fn117
if the facts of a case do not reveal conclusively whether a patient is competent
to make a decision, the family court should make a direct inquiry on competency
in the context of an evidentiary hearing. *fn118
|||When the patient is incompetent, the court considering the life support
issue must determine whether the "substituted judgment" or the
"best interests" legal standard applies. *fn119
The substituted judgment standard seeks to fulfill the expressed wishes
of a previously competent patient, including a "minor of mature judgment."
*fn120 The "limited-objective"
substituted judgment standard used in Michigan requires "'some trustworthy
evidence that the patient would have refused the treatment, and the decision-maker
is satisfied that it is clear that the burdens outweigh the benefits of
that life for'" the patient. *fn121
|||The best interests standard applies when the patient has never been competent
or has not expressed her wishes concerning medical treatment. *fn122
The best interests standard includes, but is not limited to examining:
|||"[E]vidence about the patient's present level of physical, sensory,
emotional, and cognitive functioning; the degree of physical pain resulting
from the medical condition, treatment, and termination of the treatment,
respectively; the degree of humiliation, dependence, and loss of dignity
probably resulting from the condition and treatment; the life expectancy
and prognosis for recovery with and without treatment; the various treatment
options; and the risks, side effects, and benefits of each of those options."*fn123
|||There are a number of theoretical problems with applying the best interests
standard when presuming that the common law right to refuse medical treatment
provides the authority to withdraw life support. *fn124
However, the Michigan Supreme Court has not wholly rejected the best interests
standard. *fn125 Consequently, as
the law exists today, there is no absolute bar to applying the best interests
standard to a decision to withdraw life support in a protective proceeding.
|||In this case, there is no question that baby Allison was incompetent to
make any decision concerning her own medical care, which directly points
to the best interests standards as the relevant decisional standard in this
case. *fn126 Further, the FIA and
Ladd agree that the best interests standard was appropriate. *fn127
Referee Schummer, therefore, did not err in deciding to apply the best interests
standard to his factual findings and recommendation.
|||C. Surrogate Decisionmakers
|||Ladd claims that once a family court determines that a patient is incompetent,
it must appoint a guardian ad litem to protect the patient. *fn128
As support for this proposition, he points to Rosebush, which states:
|||[W]here the parents of a minor child for some reason are themselves incompetent
to act as surrogate decision makers, and other family members are unavailable
or unwilling to act as surrogates, a guardian should be appointed to exercise
the minor's rights on behalf of the minor.*fn129
|||The Rosebush Court never had to address whether a family court should
appoint a guardian ad litem because both parents of the minor patient in
that case were (presumably) competent and involved in the decision to withdraw
the child's life support. *fn130 Rosebush,
by approving the reasoning in In re Guardianship of Barry, *fn131
also rejected the proposition that parents must qualify as guardians before
being allowed to decide to withdraw their minor child's life support, *fn132
which suggests that appointing a guardian ad litem is not always necessary.
Further, In re Shaffer *fn133 holds
that a family court need not routinely appoint different individuals to
serve as guardian ad litem and attorney for a child in a protective proceeding.
Of course, Shaffer was decided before the lawyer-guardian ad litem provisions
in MCL 712A.17d were effective. Shaffer thus applies in this case and suggests
that appointing only an attorney for baby Allison was legally adequate.
|||Nevertheless, other case law indicates that appointing a guardian ad litem
for a legally incompetent patient who does not have a natural guardian,
such as a parent, or a legal guardian to make a serious medical decision
is often a prudent step to take. *fn134
As a practical matter, protective proceedings in which end-of-life medical
care becomes an issue may require a guardian ad litem and an attorney for
the child so that they may work with each other to respond to the situation's
urgency. *fn135 We do not hold that
a family court must appoint a guardian ad litem in every protective proceeding
concerning important medical decisions, especially if it decides to appoint
a guardian or is acting while the new lawyer-guardian ad litem provisions
are effective. However, generally, the need to appoint a guardian ad litem
tends to increase as the seriousness of the medical decision increases and
as the time in which to make a decision decreases.
|||Here, the medical decision was the gravest possible. No one individual
seemed a likely candidate to act on baby Allison's behalf, at least from
the perspective of the information available. Referee Smart presided at
the first hearing, Referee Schummer at the second. Other than Matlock, not
one person who was at the first hearing participated in the second hearing.
Even if Ladd was expected to function as both an attorney representing baby
Allison and her guardian ad litem, he was excluded from the second hearing.
This made his appointment wholly ineffective as a measure to protect or
represent baby Allison. The scope and nature of Mahinske's duties to baby
Allison are unclear. In any event, she was a latecomer to the proceedings.
This threw into question whether she could actually function as a guardian
ad litem or attorney for baby Allison. This lack of continuity made it difficult,
if not impossible, to ensure that baby Allison's interests were adequately
and consistently represented. Taken together, these factors persuade us
that the hearing referees erred in failing to appoint a guardian ad litem
for baby Allison, whether that guardian ad litem was a relative or another
person. Though MCL 712A.17d may make a separate guardian ad litem unnecessary
in the future, under the circumstances of this case, a guardian ad litem
was necessary to ensure baby Allison's welfare. *fn136
|||D. Surrogate Incompetence
|||Ladd's guardian ad litem argument raises one of the central issues in
this case: the proper procedure that a court must follow when there is an
allegation that the parent or surrogate who would otherwise make a medical
decision for the incompetent patient is also incompetent. This issue presents
a truly thorny dilemma. On the one hand, to ignore allegations that the
parent or other surrogate is incompetent might allow a person fundamentally
unsuited to the task to make a critical life and death decision. On the
other hand, to accept at face value the allegations that the parent or other
surrogate is incompetent risks depriving the correct decisionmaker of the
opportunity to make a decision.
|||Case law provides no direct guidance on the issue of surrogate incompetency.
However, after examining competency issues in other contexts, we conclude
that determining the competence of a parent or surrogate by engaging in
a formal process, such as when a criminal court must determine whether a
defendant is competent to stand trial, makes little sense in practice. *fn137
Instead, this issue must be resolved as any other factual dispute is resolved:
with evidence appropriate to the circumstances. This evidence must demonstrate
on the record that the person who would otherwise act as the surrogate decisionmaker
for the incompetent patient is also incompetent to make the critical medical
decision at issue. Further, the evidence must be clear and convincing. Any
lower evidentiary standard brings with it a potential for abuse leading
to irreparable harm because there typically is no adequate remedy for an
erroneous order withdrawing life support. This clear and convincing evidence
standard comports with the fundamental liberty interest, protected by the
Fourteenth Amendment, that parents have in caring for their children. *fn138
While doing nothing to lessen the quality or quantity of evidence necessary
to justify judicial intervention in a private decision, the clear and convincing
evidence standard is sufficiently flexible to address a wide variety of
|||Further, making a decision to withdraw life support is so serious that
it is unlike any other decision a family court has to make. This decision
goes far beyond severing the legal relationship between a parent and child,
as family courts must do in some protective proceedings. When a family court
terminates parental rights, the child may still choose to seek out her biological
family after she becomes an adult. Even if the family never reunites, a
parent has the reassurance that the child will have an opportunity to live
to be an adult. By contrast, traditional happy endings are impossible when
removing life support.
|||We think it important to draw a distinction between cases in which the
parent cannot make a decision for the child because of incompetency or another
legitimate reason *fn139 and cases
in which the factors bringing the case to the family court's attention are
unrelated to the parent's competency or other factors that would disqualify
the parent as a decisionmaker. Simply put, jurisdiction over the child alone
is not reason enough for a court to make a decision to withdraw life support.
Rather, the record must provide clear and convincing evidence to support
the court's determination that it, not a parent or other surrogate, must
make the decision to withdraw life support. Thus, when the allegation is
that the parent or other surrogate is incapable of making a decision concerning
the patient's care because of incompetency, there must be clear and convincing
evidence that this incompetency actually exists.
|||It almost goes without saying that no such clear and convincing evidence
of KB's alleged incompetence existed on the record in this case. Not a single
person who participated at a hearing in this case or who had any role in
the legal decision to withdraw baby Allison's life support had ever personally
met KB. KB did not appear at any of the hearings. Even without a presumption
of competency, there is absolutely no reliable evidence that KB was incompetent
to make decisions for baby Allison. *fn140
|||The FIA attempts to minimize the lack of evidence of that KB was incompetent
by submitting affidavits from Matlock and KB's aunt in which both refer
to KB's alleged mental limitations. However, this Court may not consider
these affidavits, which were prepared sixteen months after baby Allison
died, because they are not part of the lower court record. *fn141
We have no reason to believe that Matlock, KB's aunt, or anyone else misrepresented
what they perceived to be KB's limitations. Indeed, we suspect that these
allegations may be true. However, a mere suspicion is not enough. Without
any direct, or even legally admissible, evidence of KB's incompetence, there
is no way to exclude the possibility that she was competent to make a decision
that Rosebush determined was ordinarily a parent's right to make. *fn142
Even if there were no other grounds for reversal, our resolution of this
issue would warrant that outcome.
|||E. Independent Physician Confirmation
|||Ladd argues that a family court may not depend on a single treating physician's
assessment of an incompetent patient's health and prognosis when deciding
to remove life support. He relies on Rosebush and the authority cited in
the Rosebush opinion to support this argument. Although Rosebush approved
of the procedures outlined in Barry *fn143
and In re LHR, *fn144 both of which
had two physicians to confirm the medical diagnosis, Rosebush does not explicitly
require independent physician confirmation. Indeed, while an ethics panel
reviewed Joelle Rosebush's case, the Rosebush opinion does not suggest that
an independent physician confirmed her diagnosis or prognosis. *fn145
Moreover, the passages from Barry and LHR cited in Rosebush do not indicate
that at least one physician who had not been involved in treating a patient
render an opinion before a family court can decide to withdraw life support.
|||There are a number of competing interests for and against having an independent
physician confirm a patient's diagnosis and prognosis. However, we conclude
that it is incumbent on the petitioner to provide a second opinion from
an independent physician or establish why this second opinion is not necessary.
This fits in the context of the best interests analysis articulated in Rosebush,
which already directs courts to consider variety of factors relevant to
the patient's prognosis and treatment options, *fn146
and thus does not require a separate analysis. *fn147
The family court may weigh the presence or absence of medical consensus,
the factors that contributed to medical disagreement or agreement, and the
factors that make any independent physician opinion more or less relevant
to the ultimate decision to withdraw life support. Plainly, the family court
did not engage in any such weighing here.
|||F. Procedural Due Process
|||Ladd contends that due process requires that parents be given notice and
an opportunity to be heard at any hearing related to a request to withdraw
life support from their child. This Court has observed:
|||The federal and Michigan constitutions guarantee that the state cannot
deny people "life, liberty, or property without due process of law."
Due process, which is similarly defined under both constitutions, specifically
enforces the rights enumerated in the Bill of Rights, and it also provides
for substantive and procedural due process. Procedural due process limits
actions by the government and requires it to institute safeguards in proceedings
that affect those rights protected by due process, such as life, liberty,
|||At issue here is the right to procedural due process. *fn149
A procedural due process analysis requires a court to consider "(1)
whether a liberty or property interest exists which the state has interfered
with, and (2) whether the procedures attendant upon the deprivation were
constitutionally sufficient." *fn150
|||There is no question that parents have a due process liberty interest
in caring for their children *fn151
and that child protective proceedings affect that liberty interest. *fn152
As a result, a court considering withdrawing life support from a child who
is the subject of a protective proceeding must determine whether its procedures
are "constitutionally sufficient." *fn153
Whether procedures are adequate depends on the factors enunciated in Mathews
v Eldridge: *fn154
|||First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest, including
the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
|||The fundamental principle underlying these factors, which constitute a
balancing test, is that due process "'is flexible and calls for such
procedural protections as the particular situation demands.'" *fn155
|||In light of the private interests that can be affected with an order permitting
life support to be withdrawn and the risk of erroneous deprivation of that
right in an ex parte hearing, we agree that ex parte hearings are undesirable
when making this sort of decision. However, to the extent that Ladd asks
us to create an absolute bar to ex parte hearings, we decline the invitation.
There may be a case in which the state's interest in providing care for
children might outweigh a respondent's right to notice and an opportunity
to be heard when the state provides additional safeguards. Such a case certainly
would be an exception, not the rule, but nevertheless might be constitutionally
sound under due process principles. *fn156
We are confident that the law is sufficiently well-developed to guide courts
addressing many different situations, including this end-of-life issue.
|||Due process protected baby Allison's parents' liberty interest in raising
their child. *fn157 Baby Allison's
parents also had a virtually exclusive interest in making a decision to
withdraw life support, rendering judicial involvement in the decision not
only rare, but of significant consequence for their rights as parents. *fn158
Though this case presents some of the most disturbing facts imaginable,
it was not constitutionally acceptable to deny baby Allison's mother due
process because of her alleged incompetence or to deny her putative father
due process because of the crimes he may have committed. The right to due
process protects individuals who are allegedly incompetent *fn159
and criminals ultimately convicted of the most heinous crimes. *fn160
As a result, we conclude that baby Allison's mother, KB, and her putative
father, JB, were entitled to procedural safeguards in this child protective
|||As the discussion of the personal jurisdiction issue indicates, we have
strong suspicions that neither parent had actual notice of the two hearings.
This also suggests that they were deprived of their due process right to
notice and an opportunity to be heard. Assuming that KB and JB were denied
notice and an opportunity to be heard, the risk of erroneous deprivation
of their due process rights was different at the two hearings. The order
entered following the first hearing instructed medical staff to do all that
was necessary to sustain baby Allison's life. This order addressed the crisis
immediately at hand but still allowed KB and JB to have notice and an opportunity
to be heard at a subsequent hearing, which Referee Smart actually scheduled.
Because baby Allison's precarious medical condition constituted an emergency
and the state had a legitimate interest in doing what it could to protect
her life, holding an initial hearing and then providing for notice and an
opportunity to be heard later was not just permissible under the court rules,
*fn161 it was also constitutionally
|||The second hearing presents a vastly different picture. The record again
strongly suggests that neither KB nor JB had notice of or an opportunity
to be heard at the second hearing. The "order" permitting the
Children's Hospital staff to remove baby Allison's life support was not
intended to be effective for seven days, which would have allowed KB or
JB to petition for rehearing. *fn163
The state did nothing to violate this seven-day period; Children's Hospital
staff, apparently in consultation with baby Allison's other family members,
took the action that directly caused baby Allison's death. Yet, baby Allison's
death was the predictable result of the "order" entered following
the second hearing. This foreseeable risk of erroneously depriving her parents'
interests was undeniably quite high.
|||Critically, the FIA has never placed any substantial evidence on the record
that would justify withdrawing life support without parental notice and
participation in this case. While giving parents notice and an opportunity
to be heard may cause some burden for the state, the burden is not only
minimal, the state shoulders it regularly. In fact, the petitions included
JB's and KB's names and addresses. Given the irreversible nature of an order
permitting a hospital to withdraw life support, we conclude that KB and
JB were entitled to notice of the second hearing and an opportunity to participate
in it as the most "rudimentary" of due process protections. *fn164
The denial of this notice and opportunity to be heard was a constitutional
|||G. Clear And Convincing Evidence
|||Ladd argues that "clear and convincing" is the proper evidentiary
standard to apply to a decision to withdraw life support. We agree. According
to In re Martin, when courts apply the substituted judgment decisional standard,
the proper evidentiary standard is clear and convincing. *fn165
In other words, "the proofs in sum must meet the exacting standard
of clear and convincing evidence" *fn166
by demonstrating that "the patient's prior statements clearly illustrate
a serious, well thought out, consistent decision to refuse treatment under
these exact circumstances, or circumstances highly similar to the current
situation . . . ." *fn167
|||Because of its limited focus on a formerly-competent patient, Martin does
not resolve the evidentiary standard for a best interests determination,
which applies to a patient who was never competent or had never expressed
her wishes concerning medical care. However, the reasoning in Martin supporting
the clear and convincing standard is overwhelmingly persuasive. *fn168
The Martin Court noted that the clear and convincing standard is the highest
level of proof required in civil proceedings and determined that it is appropriate
because it places the risk of error on the party petitioning to withdraw
life support. *fn169 By favoring the
status quo, this relatively high evidentiary standard provides an opportunity
for meaningful appeal because the patient may still be alive. Therefore,
we adopt the clear and convincing evidentiary standard for best interests
determinations concerning withdrawing life support.
|||Ladd, however, claims that Referee Schummer was unaware that the clear
and convincing evidentiary standard applied to this best interests determination
and, therefore, recommended withdrawing baby Allison's life support on the
basis of inadequate evidence. Referee Schummer's comments at the second
hearing and his written findings and recommendations closely match each
other. In the space of one page, those written findings and recommendations
briefly summarized the evidence before considering a number of factors that
the Rosebush Court indicated were appropriate. *fn170
On the whole, it appears that Referee Schummer recommended withdrawing baby
Allison's life support because, in his view, the risks associated with continuing
this type of medical care significantly outweighed the benefits implicitly
concluding that it was in baby Allison's best interests to withdraw her
|||However, it is apparent to us that Referee Schummer simply did not seek
out sufficient information to recommend the decision to withdraw baby Allison's
life support. *fn171 For example,
Dr. Delaney-Black's testimony suggested that there was at least one other
physician treating baby Allison and that she and this other physician (or
physicians) agreed that baby Allison was going to die regardless of whether
she remained on the ventilator and received prostaglandin. Yet, when none
of the lawyers presented Referee Schummer with a second medical opinion,
he did not ask if one was available or why one was unnecessary. Referee
Schummer did not even have a copy of baby Allison's medical record, which
was only submitted to the family court in response to the motion for the
review hearing in March 1999, after baby Allison died.
|||Referee Schummer clearly considered Dr. Delaney-Black's opinion incontrovertible.
In reality, Dr. Delaney-Black's opinion may have been uncontroverted simply
because no other physician was called to testify. Though every other physician
may have agreed completely with Dr. Delaney-Black, Referee Schummer apparently
did not even consider the possibility that baby Allison's diagnosis and
prognosis might be debatable. Nor did he ask to hear testimony from anyone
else who had seen baby Allison or was concerned about her.
|||Certainly, the evidence on the record was clear. Dr. Delaney-Black's testimony
directly supported Referee Schummer's findings and recommendation and the
ultimate "order." However, this evidence was not convincing. If
baby Allison were still alive, we would remand this case to the family court
for an evidentiary hearing so the family court could develop a minimally
acceptable record describing baby Allison's diagnosis and prognosis as viewed
by others. If that were impossible or unnecessary, the family would have
an opportunity to explain its conclusion. On the basis of this inadequate
record, we simply cannot find convincing evidence to support a decision
to authorize Children's Hospital to withdraw baby Allison's life support.
Therefore, we conclude that this decision was clear error.
|||H. Judicial Decisionmaker
|||Ladd maintains that a judge, not a hearing referee, must make the decision
to withdraw life support in every case. Again, we agree. MCL 712A.10 defines
the scope of a hearing referee's authority, providing in relevant part:
|||(1) Except as otherwise provided in subsection (2), the judge of probate
may designate a probation officer or county agent to act as referee in taking
the testimony of witnesses and hearing the statements of parties upon the
hearing of petitions alleging that a child is within the provisions of this
chapter, if there is no objection by parties in interest. The probation
officer or county agent designated to act as referee shall do all of the
|||(a) Take and subscribe the oath of office provided by the constitution.
|||(b) Administer oaths and examine witnesses.
|||(c) If a case requires a hearing and the taking of testimony, make a written
signed report to the judge of probate containing a summary of the testimony
taken and a recommendation for the court's findings and disposition.
|||Neither the court rules nor any statute permit a hearing referee to enter
an order for any purpose. In fact, that a hearing referee must make and
sign a report summarizing testimony and recommending action for a judge
reveals that the Legislature specifically denied referees the authority
to enter orders, no matter their substance. *fn172
|||To paraphrase the Michigan Supreme Court in Campbell v Evans, *fn173
we do not doubt that hearing referees play an extremely valuable role in
the operation of the family courts, especially when attempting to handle
emergency cases. However, a hearing referee's recommendations and proposed
order cannot be accepted without judicial examination. *fn174
"They are a helpful timesaving crutch and no more. The responsibility
for the ultimate decision and the exercise of judicial discretion in reaching
it still rests squarely upon the trial judge" and may not be delegated.
*fn175 Consequently, when it is apparent
that someone other than a judge made the substantive legal decision in a
case, the only appropriate appellate response is to reverse. *fn176
This holds true regardless of whether the case concerns end-of-life issues.
|||There is no way to demonstrate, solely on the basis of the record, that
Referee Schummer actually stamped the name of the family court judge on
this "order" permitting Children's Hospital to withdraw life support.
However, it is reasonable to assume that he did so. Referee Schummer's statements
at the close of the second hearing are redolent with an assumed judicial
authority. Referee Schummer not only referred to himself as the "Court,"
he spoke on the record of his "decision" to "authorize the
medical procedures . . . as requested," and the right to "appeal"
that decision to a family court judge and this Court. The signature on the
order is plainly from a rubber stamp, not handwritten. The signature stamp
was likely affixed on the same day as the date stamp, which indicates that
the order had been examined by a judge on February 18, 1999. Although the
family court stated at the review hearing that it had reviewed the record,
it did not state that it had reviewed Referee Schummer's findings and recommendations
on February 18, 1999. In fact, read closely, the family court's approval
of those findings and recommendations permits us to infer that it had not
reviewed Referee Schummer's findings and recommendations until it was preparing
to address the petition for review. This was after the "order"
was "entered" in the sense that it was placed in the lower court
record, representing that it was legally binding. On the whole, the scant
evidence in the record supports Ladd's argument that Referee Schummer acted
outside his authority by "entering" the "order" permitting
withdrawal of baby Allison's life support.
|||The FIA attempts to place the blame for baby Allison's premature death
on the shoulders of the Children's Hospital staff who withdrew her life
support before the seven-day period specified in the "order" elapsed.
Had the medical staff not acted so precipitously, the FIA contends, baby
Allison would have been able to obtain judicial review of that "order."
However, if anything, this is an additional error in this case, not an excuse
for other errors. The point is not just that baby Allison was deprived of
a full judicial review hearing or a rehearing before her death rendered
those proceedings meaningless. Rather, she was also deprived of her right
to have a family court judge make the most serious decision in this case
- a decision that ended her life - in the first instance.
|||Nor did the review hearing make the "order" withdrawing baby
Allison's life support legally valid. A review hearing under MCR 5.991 presupposes
that an order has not been entered dealing with the subject of the hearing
over which a referee presided. Rather, as MCR 5.991(A) and (E) suggest,
the review hearing is intended to allow a judge to determine whether to
"affirm, modify, or deny the recommendation of the referee in whole
or in part" in a resulting order. *fn177
Even if MCR 5.991 effectively permitted the family court to hold review
hearings to make an order valid by approving it retroactively, *fn178
the family court did not attempt to do so in this case. The family court
did not endorse the "order" at the review hearing in the sense
that it made any representation that it had reviewed Referee Schummer's
findings and recommendations, or had personally signed and entered the "order,"
or was somehow taking responsibility for it one month later. In reality,
the review hearing in this case was more like a rehearing under MCR 5.992,
in which a "judge may affirm, modify, or vacate the decision previously
made in whole or in part . . . ." *fn179
However, there was no valid decision to rehear.
|||The court rules and statutes prescribing procedures for protective proceedings
are not just technical obstacles that may be discarded in the name of expediency
or even in the understandable rush to protect a child. Rather, taken together,
the statutes and court rules reflect standards that are essential to the
administration of justice. The statutes and court rules make the proper
procedures in a protective proceeding clear. It should be equally clear
that they must be followed. Thus, we conclude, the way the "order"
was entered following the second hearing constituted independent error requiring
reversal because of this significant deviation from MCL 712A.10.
|||A. Ladd's Argument
|||Ladd raises several arguments concerning baby Allison's right to counsel.
First, he maintains that baby Allison's right to counsel imposed substantive
obligations on her attorneys. Second, he claims that his participation in
first hearing constituted a formal appearance as baby Allison's attorney
under the court rules. Third, he contends that his failure to file a written
appearance did not excuse the FIA and family court from giving him notice
of the second hearing. Fourth, he argues that substituting Mahinske was
improper without a determination on the record that there was good cause
to substitute counsel. Fifth, he asserts that Mahinske failed to act effectively
on behalf of AMB as she was required to do.
|||Some of the Ladd's individual counsel issues do not relate directly to
whether Mahinske rendered effective assistance of counsel, his centerpiece
argument. Nevertheless, examining the procedures that apply to counsel for
a minor child in a protective proceeding illustrates the nature of an attorney's
obligation to a minor child. Viewed broadly, the question we must consider
is what, or how much, a minor child can expect of the attorney appointed
to represent her in a protective proceeding. Narrowly, the question we must
address is whether baby Allison was afforded the representation to which
she was entitled.
|||B. Right To Effective Counsel
|||The Sixth Amendment right to counsel and the analogous state right to
counsel articulated in Const 1963, art 1, § 20, do not apply directly to
child protective proceedings because these proceedings are civil, not criminal,
in nature. *fn180 Although certain
elements of a criminal defendant's rights to an effective attorney apply
in child protective proceedings, the right to counsel in a protective proceeding
is statutory, not constitutional. *fn181
|||Published case law pays little attention to a child's right to counsel
in a protective proceeding. However, this Court has held that a child's
right to counsel is the right to "zealous advocacy" under MCL
712A.17c(7), as well as the analogous court rule, MCR 5.915(B)(2). *fn182
In fact, both MCL 712A.17c(7) and MCR 5.915(B)(2) provide basic information
about the obligations an attorney has to a minor child who is her client.
|||In February 1999, MCL 712A.17c(7) stated: *fn183
|||The appointed attorney shall observe and, dependent upon the child's age
and capability, interview the child. If the child is placed in foster care,
the attorney shall, before representing the child in each subsequent proceeding
or hearing, review the agency case file and consult with the foster parents
and the caseworker. The child's attorney shall be present at all hearings
concerning the child and shall not substitute counsel unless the court approves.
|||The plain language of this provision imposed duties on an attorney to
investigate and consult. Even performing these duties in a minimal manner
would have allowed an attorney to learn (1) the circumstances that led to
the protective proceeding, (2) what a child who was capable of communicating
viewed as her needs, (3) what the adults involved in the case viewed as
the child's needs, and (4) the services that were being provided for the
child to address those needs. Implicit in this legislative directive was
a requirement that an attorney act on this information so that the family
court orders the care a child needs. Had the Legislature not intended to
impose on attorneys the obligation to act on behalf of a minor client, the
Legislature would not have required the attorney to appear at the hearings.
MCR 5.915(B)(2) also reflects a child's right to a competent attorney and
is substantively similar MCL 712A.17c, as it appeared in February 1999.
|||The child protection law, MCL 722.621 et seq., also requires legal representation
for children who are involved in court proceedings because of abuse or neglect
that is instructive. When this case was pending in February 1999, MCL 722.630
*fn184 enumerated more specific duties
for an attorney appointed under the child protection law. At that time MCL
|||[t]he court, in every case filed under this act in which judicial proceedings
are necessary, shall appoint legal counsel to represent the child. The legal
counsel, in general, shall be charged with the representation of the child's
best interests. To that end, the attorney shall make further investigation
as he deems necessary to ascertain the facts, interview witnesses, examine
witnesses in both the adjudicatory and dispositional hearings, make recommendations
to the court, and participate in the proceedings to competently represent
|||This statute went beyond MCL 712A.17c(7) and the analogous court rule
by prescribing the standard that must guide the attorney's representation,
the need to investigate and use professional judgment, and participate in
proceedings in both an active and competent manner. Yet, this version of
MCL 722.630 clearly referred to the protective proceeding that can be instituted
following a report under the child protection law. Plainly, then, the duties
of a lawyer in a case stemming from a report of child abuse or neglect are
the duties of all lawyers representing children in protective proceedings.
In fact, the child protection law, MCL 722.622(a), defines an "attorney"
by referring to the obligations of an attorney as described in the juvenile
code, MCL 712A.13a. *fn185 Thus, though
MCL 712A.17c(7) as in effect in February 1999 did not describe an attorney's
duties in great detail, MCL 722.630 illustrated those duties.
|||In both the child protection law and the juvenile code, the Legislature
made clear that a child's attorney has the same duties that any other client's
attorney would fulfill when necessary. *fn186
Those duties, such as the duty to investigate, examine witnesses, and appear
at hearings on behalf of the client, are inherent in each attorney's ethical
obligations. For instance, MRPC 1.1 mandates that "[a] lawyer shall
provide competent representation to a client." Subsection (b) prohibits
a lawyer from "handl[ing] a legal matter without preparation adequate
in the circumstances." As the comment following MRPC relates:
|||Competent handling of a particular matter includes inquiry into and analysis
of the factual and legal elements of the problem, and use of methods and
procedures meeting the standards of competent practitioners. It also includes
adequate preparation. The required attention and preparation are determined
in part by what is at stake; major litigation and complex transactions ordinarily
require more elaborate treatment than matters of lesser consequence.
|||Even in high stakes cases with a great deal of urgency, attorney have
specific ethical obligations. The comments following MRPC 1.1 explain that
|||[i]n an emergency, a lawyer may give advice or assistance in a matter
in which the lawyer does not have the skill ordinarily required where referral
to or consultation or association with another lawyer would be impractical.
Even in an emergency, however, assistance should be limited to that reasonably
necessary in the circumstances, for ill-considered action under emergency
conditions can jeopardize the client's interest. *fn187
|||Thus, lawyers have duties to their clients that may transcend the minimum
standards of conduct that the Legislature imposes in a statute. Clients,
whether children or adults, have the right to expect their attorney will
perform these duties. Indeed, the right to an attorney would be meaningless
if a minor child who is the subject of a proceeding that can change - or
end - her life could not expect that the attorney representing her will
do so effectively.
|||Case law does not prescribe standards to determine whether a child was
denied the effective assistance of counsel. There is a conceptual misfit
between the defective performance and prejudice test *fn188
for ineffective assistance of counsel claims in criminal cases and the question
of effective assistance to a child in a protective proceeding. Unlike the
defendant and prosecutor in a criminal proceeding, a child and the petitioner
in a protective proceeding do not always have adverse interests. When a
child's attorney performs inadequately, the petitioner may still protect
the child's interests, eliminating any prejudice to the child.
|||In our view, the best analysis of a child's right to effective assistance
under the system of representation in place before March 1, 1999, requires
determining whether the attorney's conduct complied with the applicable
statutes, *fn189 court rules, rules
of professional conduct, and any logically relevant case law. *fn190
To merit relief, there must be evidence that the defective representation
led to an outcome that was not clearly in the child's best interests. This
adaptation of the traditional test for ineffective assistance of counsel
is fitted to the special purpose of a protective proceeding: *fn191
acting in the child's best interests.
|||If there is proof that a child was denied her right to effective assistance
of counsel, the critical issue then becomes remedies. In Shaffer, having
determined that the children were denied the effective assistance of counsel,
this Court remanded the case for further proceedings, essentially reinstituting
the protective proceeding despite the probate court's decision to return
the children to their mother. *fn192
Though we have no relief to offer baby Allison, Shaffer implies that the
full panoply of necessary remedies are available to a child denied the effective
assistance of counsel in a protective proceeding.
|||C. Appearance And Notice
|||Ladd's contention that his appearance in family court at the first hearing
constituted a formal appearance is part of an indirect challenge to the
way Referee Schummer ensured - or failed to ensure - that baby Allison was
represented by competent counsel at the second hearing.
|||Ladd apparently contends that failing to give him notice of the hearing,
to which he was entitled under MCR 5.921(B)(1)(c), functionally deprived
baby Allison of adequate representation. This claim that he formally appeared
is calculated to contradict the FIA's argument that he was not baby Allison's
lawyer at the second hearing.
|||MCR 5.915(C) states that "[t]he appearance of an attorney is governed
by MCR 2.117(B)." MCR 2.117(B), in turn, prescribes in relevant part:
|||(1) In General. An attorney may appear by an act indicating that the attorney
represents a party in the action. An appearance by an attorney for a party
is deemed an appearance by the party. Unless a particular rule indicates
otherwise, any act required to be performed by a party may be performed
by the attorney representing the party.
|||(2) Notice of Appearance.
|||(a) If an appearance is made in a manner not involving the filing of a
paper with the court, the attorney must promptly file a written appearance
and serve it on the parties entitled to service. The attorney's address
and telephone number must be included in the appearance.
|||(b) If an attorney files an appearance, but takes no other action toward
prosecution or defense of the action, the appearance entitles the attorney
to service of pleadings and papers as provided by MCR 2.107(A).
|||According to MCR 5.915(E), an attorney who enters an appearance under
this court rule remains the client's attorney "until discharged by
the court." *fn193 Having not
been "discharged" by the family court at any time in these proceedings,
Ladd was baby Allison's attorney at all times in this case. *fn194
This entitled Ladd to notice of other proceedings. *fn195
|||Ladd does not contend that he actually filed a written appearance before
the second hearing, which occurred on February 17, 1999. Yet, it is not
clear whether this was a failure to comply with the filing requirement in
MCR 2.117(B)(2)(a). Though MCR 2.117(B)(2)(a) required Ladd to file a written
appearance with the family court "promptly," the court rule neither
defines promptness nor penalizes a failure to file a written appearance
|||The FIA attempts to justify its failure to give notice to Ladd by noting
that Referee Schummer had not presided at the first hearing and did not
know that Ladd represented baby Allison. However, when Referee Schummer
commenced the second hearing, Mahinske stated that she was appearing for
baby Allison as "emergency house counsel." This was sufficient
to inform Referee Schummer that Mahinske was not the attorney originally
appointed to represent baby Allison and to prompt him to inquire into Ladd's
whereabouts. *fn196 If that information
did not appear in the record or if Mahinske did not know that Ladd was baby
Allison's attorney, Matlock, who was at the first hearing, could have revealed
that Ladd had already appeared. If Matlock did not know Ladd's name, the
assistant attorney general representing the FIA at the second hearing, should
have had that information. *fn197
In short, there were ways to determine who was representing baby Allison
in this case, but no one involved in second hearing attempted to do so.
Consequently, Referee Schummer did not "ensure" that Ladd, who
was entitled to notice, actually received notice of the hearing or that
there were any circumstances that would have excused notice to him. *fn198
This was error.
|||D. Mahinske's Substitution
|||We know of no absolute requirement that the same attorney represent a
child throughout a protective proceeding. In fact, there may be good reasons
not to require that an attorney appointed on the spot to represent a child
at a preliminary hearing continue to represent her in the rest of the protective
proceeding. However, when read together, MCR 5.915(B)(2)(a), the attorney
appearance rule, and MCR 5.915(D), the attorney discharge rule, demonstrate
a policy that favors consistent legal representation when possible, thereby
disfavoring attorney substitutions. Not surprisingly, then, MCR 5.915(B)(2)(d)
|||The court may permit another attorney to temporarily substitute for the
child's attorney at a hearing, if that would prevent the hearing from being
adjourned, or for other good cause. An attorney who temporarily substitutes
for the child's attorney must be familiarized with the case and, for hearings
other than a preliminary hearing or emergency removal hearing, must review
the agency case file and consult with the foster parents and caseworker
prior to the hearing unless the child's attorney has done so and communicated
that information to the substitute attorney. The court shall inquire on
the record whether the attorneys have complied with the requirements of
|||The word "shall" makes the court's inquiry into the temporary
substitute's readiness mandatory. *fn199
There is no basis to presume that the Supreme Court intended for this to
be an empty inquiry. If the substitute attorney is not prepared to proceed,
there would be good cause for an adjournment under MCR 5.923(G)(2).
|||Referee Schummer knew, or should have known, that Mahinske was not baby
Allison's appointed counsel but he did not ask Mahinske on the record about
her preparation. He did not even ask a pro forma, "Ready?" of
the attorneys. Referee Schummer plainly failed to comply with MCR 5.915(B)(2)(d).
Whether Mahinske was prepared to represent baby Allison or whether she failed
to bring to Referee Schummer's attention the fact that she was not prepared
does not, under the language of this court rule, excuse Referee Schummer's
failure to make this inquiry. This inquiry is designed to ensure that the
court, in this case Referee Schummer, is aware of whether the attorney representing
the child is prepared to proceed. As protection for the child, MCR 5.915(B)(2)(d)
acknowledges that many children do not attend protective proceedings, nor
do they have the capacity, maturity, experience, or schooling to understand
when an attorney is failing to represent their interests adequately. It
is therefore incumbent on the court to make this inquiry.
|||While a failure to conduct this inquiry would be rendered harmless if
the child nevertheless received effective representation, our analysis,
below, indicates that Mahinske did not act effectively under the circumstances.
Thus, under the specific facts of this case, Referee Schummer's failure
to conduct this inquiry constituted error requiring reversal.
|||E. Mahinske's Preparation And Performance
|||The criminal case law on effective assistance of counsel indicates that,
absent an evidentiary hearing, only errors that plainly exist on the record
can demonstrate ineffectiveness that violates the right to counsel. *fn200
Although we might remand this case for an evidentiary hearing to clarify
a number of issues related to Mahinske's representation, remand would only
waste scarce judicial resources because there is no remedy for baby Allison.
Thus, we examine the record to determine whether Mahinske performed defectively
and whether any such ineffectiveness prejudiced baby Allison by leading
to a result that was not in her best interests.
|||Ladd recites a litany of acts that he claims demonstrates Mahinske's performance
was ineffective. In fact, an attorney can be ineffective for failing to
investigate a case, prepare for a proceeding, call and examine witnesses,
present a legal argument, object to improper testimony, or a myriad other
actions if they are sufficiently prejudicial. *fn201
In this case, we agree that Mahinske's failure to ask for a continuance
or otherwise demonstrate on the record that she was prepared to represent
baby Allison was deficient performance. The record does not reveal whether
Mahinske was "familiarized with the case," had "review[ed]
the agency case file and consult[ed] with the . . . caseworker prior to
the hearing," determined that "the child's attorney ha[d already]
done so," or whether Ladd conveyed that information to her. *fn202
We can assume that Ladd had not communicated any necessary information to
Mahinske in time for the second hearing because he did not learn about that
hearing until after it occurred. Though courts traditionally presume an
attorney acted effectively absent compelling evidence to the contrary, *fn203
the tone of Mahinske's capitulation to the FIA's request to withdraw baby
Allison's life support and her failure to question Matlock suggest that
whatever preparation she undertook was not adequate. Minimally, Mahinske
should have asked for a continuance to prepare.
|||Even, however, if Mahinske technically complied with MCR 5.915(B)(2)(d)
by doing some preparation for the second hearing, she had no meaningful
knowledge of what her obligations to baby Allison meant in practice. For
instance, Mahinske did not have an absolute duty to arrange for Dr. Delaney-Black
to testify in person. *fn204 However,
Mahinske had an obligation to investigate whether she could rely on Dr.
Delaney-Black's testimony as wholly authoritative. In other words, even
if Mahinske did not or could not secure a second opinion from an independent
physician, she should have developed the record so that it reflected why
the family court could trust Dr. Delaney-Black's testimony completely.
|||The FIA claims that Ladd is not entitled to raise this effective assistance
of counsel issue because he was also ineffective during the family court
proceedings. This is nonsense. In essence, the FIA argues that two incompetent
attorneys somehow negate each other's allegedly harmful effects on their
client. The FIA has not provided any authority to support this argument
and, not surprisingly, we have found none. Baby Allison was entitled to
an attorney who would represent her competently. In light of her inadequate
preparation and her acquiescence in the decision to withdraw life support
without convincing evidence, we conclude that Mahinske's representation
|||XIV. Local Court Rule
|||Ladd claims that the order permitting Children's Hospital staff to end
baby Allison's life support was invalid because Referee Schummer relied
on an unapproved local court rule permitting "medical authorization"
petitions. As Ladd points out, in Schlender v Schlender, *fn205
this Court reversed a trial court's order denying a motion for change in
child custody after concluding that the trial court had improperly denied
the movant an evidentiary hearing pursuant to a local court rule that the
Supreme Court had not approved.
|||The problem with applying Schlender to this case is there is absolutely
no evidence of a local court rule or administrative policy guiding the proceedings.
Though the record includes a number of references to a petition for "medical
authorization," Ladd has not provided the Court with a copy of any
local court rule or policy in effect in February 1999, much less one that
purports to allow or control petitions seeking permission to medical treatment.
Though the FIA has submitted a copy of the Third Judicial Circuit's case
management rule C.9 dated June 13, 2000, entitled "Protective Proceedings:
Hospitalizations and Medical Authorizations," there is no evidence
that the procedures outlined in it were in effect in February 1999. In fact,
the family court's comments at the end of the review hearing that "a
review of the procedure will take place and an administrative order will
be issued by this Court for future cases" suggests that there were
no specific procedures in place for dealing with this sort of case. Accordingly,
we cannot conclude that a local court rule guided the proceedings in this
case, irrespective of whether the Supreme Court approved it.
|||XV. "Harmless" Error
|||There can be little question that the string of errors in this case affected
baby Allison's substantial rights and cast doubt on the fundamental fairness
of the proceedings. In another case, some of the procedural errors, such
as Referee Schummer's failure to inquire whether Mahinske was prepared to
represent baby Allison, might not require reversal. However, given that
each of these errors contributed to the decision to withdraw baby Allison's
life support without convincing evidence that doing so was in her best interests,
the accumulation of errors in this case cannot, by definition, be considered
|||General Charles de Gaulle's daughter, Anne, was born retarded. *fn206
She was unable to feed or clothe herself, or speak well. *fn207
De Gaulle was a notoriously aristocratic and aloof man, but for all his
daughter's life he spent hours "playing simple games with her and at
night he would hold her hand until she fell asleep." *fn208
In 1948, Anne died after she contracted a lung ailment. *fn209
At his daughter's funeral, de Gaulle turned to his wife and said, "Now
at last our child is just like all children." *fn210
|||It almost certainly did not occur to Charles de Gaulle that his daughter
should be put to death for her disabilities. We again observe that we can
fashion no remedy that will unmake the decisions that led to baby Allison's
death; now she is, in the true meaning of de Gaulle's heartbreaking phrase,
just like all children. Moreover, we do not hold that life support can never
be withheld or removed from a desperately ill and suffering child, although
we acknowledge that linking the removal of life support to the child's best
interests is, on the surface, enormously jarring.
|||We emphasize, instead, that the judicial branch is almost entirely reactive.
Courts respond only to matters that are brought before them, taking cases
as they exist, troubling facts, imperfect records, and all. This is but
one of many reasons why the decision to withdraw life sustaining medical
care from a desperately ill child is one that should rarely involve the
|||As Rosebush, still a seminal case on the subject of end-of-life decisions
in Michigan jurisprudence, aptly put it, "[T]he decision-making process
should generally occur in the clinical setting without resort to the courts,
but . . . courts should be available to assist in decision making when an
impasse is reached." *fn211
|||Here, the family court did not become involved because an impasse existed.
Rather, in the final analysis, the family court became involved because
the state, through the FIA, apparently took it upon itself to assume the
mantle of responsibility to act as baby Allison's surrogate. While asking
the family court simply to decide what was in baby Allison's best interests,
the FIA directly pressed for an order authorizing Children's Hospital to
remove her life support. This ran exactly contrary to the warning in Rosebush
that judicial involvement in such a decision is unwarranted other than as
a last resort. Notably, this warning extends not merely to the courts who
must, in the most extreme cases, assist in resolving impasses, but also
to those, like the FIA, who bring these cases to the courts' attention.
|||Moreover, in the accelerating rush to judgment that occurred here, the
series of legal errors and missteps following the preliminary hearing compounded
what was already an excruciatingly difficult and complex situation. The
record strongly suggests that no one involved in the protective proceeding
had ever communicated directly with baby Allison's parents and that only
Dr. Delaney-Black had ever seen baby Allison. Thus, a duly enacted statutory
process designed to protect individual rights, to allow the intelligent
exercise of these rights, and to assure balanced and considered decision
making became, instead, the opposite This speaks of such a relentless disregard
for basic principles that in this opinion we have attempted to assure that
this tragedy - and a tragedy it was, in every sense of the word - is never
repeated in our state.
|||William C. Whitbeck
|||Jeffrey G. Collins
|||McDonald, J., did not participate.
|||A Summary of Holdings
|||In a protective proceeding, a family court's subject-matter jurisdiction
depends solely on whether the petition alleges facts that fit within MCL
712A.2(b) and are not merely frivolous. A family court does not lose subject-matter
jurisdiction in a protective proceeding solely because a serious medical
decision must be made, including whether to withdraw life support. Neither
CAPTA nor EMTALA specifically prohibit a family court from considering whether
to withdraw life support. Though discrimination in judicial proceedings
may give rise to a due process or equal protection argument that may be
asserted on appeal, the ADA and PWDCRA may not be used to challenge a family
court decision when neither act was at issue in the family court.
|||The family court must comply with the notice requirements in MCR 5.920
and MCR 5.921 to establish personal jurisdiction over respondents. As critical
as personal jurisdiction is, the right to notice is personal and cannot
be challenged on appeal by anyone other than the person deprived of notice.
Aside from the statutory right to notice, ordinary procedural due process
principles determine whether the family court can hold a hearing without
offering notice and an opportunity to be heard to individuals whose interests
|||MCL 712A.18f(4) does not permit the family court to enter a dispositional
order of any sort before it properly finds that the child comes within its
jurisdiction pursuant to MCL 712A.2(b). However, if the family court places
the child in out-of-home care, MCL 722.124a(1) permits a family court to
order routine, non-surgical medical care or emergency medical or surgical
treatment even before holding an adjudication on the petition. This statute
grants a family court the authority to enter an order allowing medical personnel
to withdraw life support from a minor child if the medical or surgical care
ceases to be treatment. However, the family court must make every possible
effort to respect the policy disfavoring judicial intervention in a life
support decision by holding an adjudication before making that decision.
|||When considering whether to withdraw life support, the family court must
first determine whether the minor child is of age and maturity to make her
own decision concerning her treatment. If the child is old enough and mature
enough, even though still a minor, she has the right to refuse treatment
as the corollary to the right to give informed consent. If the child is
not competent to make a decision for herself, the court must consider whether
the child was once competent to make this decision. If the child was once
competent and there is clear and convincing evidence that she had expressed
an intent to refuse the treatment at issue under the circumstances, then
the family court must enforce her choice under the substituted judgment
decisional standard. If the child was never competent or had not expressed
her wishes concerning treatment under the circumstances, the family court
must examine what is in the child's best interests. The family court must
have clear and convincing evidence under either the substituted judgment
or best interests standard in order to withdraw life support.
|||As the family court is considering the child's competence, it should also
determine whether to appoint a guardian ad litem for the child unless the
current statutory scheme provides otherwise. Though a lawyer appointed to
represent the child in proceedings before March 1, 1999, may have also served
as a guardian ad litem, the family court should have considered whether
the circumstances warranted appointing a different individual as the guardian
|||In cases before and after March 1, 1999, if the parent or other surrogate
who would ordinarily make a medical decision for the child is allegedly
incompetent, the family court must have clear and convincing evidence of
incompetence before depriving that person of the opportunity to make the
life support decision. There is no presumption of incompetency in this context.
Other good reasons may also exist to justify depriving the parent or other
surrogate of the opportunity to make the life support decision.
|||If a case calls for a best interests determination, the family court must
consider all relevant factors as outlined in Rosebush. Additionally, the
family court may weigh the presence or absence of medical consensus, the
factors that contributed to medical disagreement or agreement, and the factors
that make any independent physician opinion more or less relevant to the
ultimate decision to withdraw life support.
|||No matter the value of informal practice in family courts, strict adherence
to the statute and court rules is the only acceptable choice in cases involving
withdrawal of life support. MCL 712A.10 permits a referee to conduct a hearing
relevant to a request to withdraw life support. However, the referee must
make written findings and recommendations to submit to a judge. MCR 5.991
then grants the parties seven days in which to request full judicial review.
If the circumstances in a case require immediate action, then the parties
and the family court may agree to have a judge hear the case immediately,
stipulate to facts, or take other steps to expedite the proceedings. After
the review process, or if there is no request for judicial review, the judge
must make the decision, in reality and not in form, and must then personally
sign any order.
|||Throughout the proceeding, the child has the right to an attorney who
is her zealous advocate. MCR 5.915 and MCL 712A.17c(7), as well as MCL 712A.17d
and MCL 712A.13a(1)(b) for cases after March 1, 1999, impose substantive
obligations on the child's attorney. MCL 722.630, relevant case law, and
the rules of professional conduct are also helpful in defining an attorney's
obligations. The court rules disfavor substituting attorneys for a child
when at all possible. However, when it is necessary to provide a temporary
substitute for the child's attorney, the family court plays an important
role in ensuring that this attorney is prepared to render zealous advocacy
by engaging in the inquiry prescribed in MCR 5.915(B)(2)(d). Courts test
whether a child was denied the effective assistance of counsel in a case
under the system in place before March 1, 1999, by examining whether the
child's attorney's conduct departed from these substantive obligations and
whether that deficient performance led to an outcome that was not in the
child's best interests. If the attorney was ineffective, the reviewing court
may order appropriate relief, including reinstituting protective proceedings
|||ISSUES IN THE APPLICATION FOR LEAVE TO APPEAL TO THE MICHIGAN SUPREME
COURT ADDRESSED IN THIS OPINION
|||Issue IV: Where the child was never adjudicated a temporary ward of the
court, she had the standing to raise all the issues before the court, including
those which specifically effected [sic] the parent(s).
|||__ Mich App __, at __.
|||Issue V: The family division of the circuit court did not have subject
matter or personal jurisdiction to authorize the withdrawal of life support
in a case brought under the juvenile code.
|||__ Mich App __, at __.
|||Sections VII and VIII
|||__ Mich App __, at __.
|||Issue VI: Assuming arguendo that the court did have proper jurisdiction
over the parties and the subject matter, the court did not have the statutory
authority to enter a dispositional order authorizing the withdrawal of life
|||Issue VII: Regardless of whether the circuit court's family division had
the authority to act in this case, that authority could not have been exercised
solely by a referee of the court.
|||__ Mich App __, at __.
|||__ Mich App __, at __.
|||__ Mich App __, at __.
|||Issue VIII: Regardless of any jurisdictional infirmities the parties and
the court ignored remedies and procedures which were available under statutes
and case law.
|||Issue IX: The child was denied her statutorily mandated right to counsel
where the referee held a hearing without her court appointed attorney and
instead held a hearing on the withdrawal of life support with an "emergency
house counsel" who did not fulfill her statutory or legal duties.
|||Issue X: The referee violated a number of federal and state statutes directed
at the protection of children, seriously ill individuals and the disabled
where he precipitously ordered the withdrawal of life support and medication
from the child.
|||Sections IX, X, and XI
|||__ Mich App __, at __.
|||Issue XI: Where the primary issues before the court were whether or not
to withdraw life sustaining medical treatment and whether the mother was
capable of consenting to medical treatment or its withdrawal, the lack of
legally admissible evidence was clear error.
|||__ Mich App __, at __.
|||*fn1 See 1998 PA 480.
|||*fn2 There is a dispute in the record
concerning whether baby Allison had DiGeorge's Syndrome, which would make
her particularly suceptible to infection.
|||*fn3 Judge Whitbeck was a member of
|||*fn4 See US Fidelity & Guarantee
Co v Citizens Ins Co, 241 Mich App 83, 85; 613 NW2d 740 (2000).
|||*fn5 See MCR 2.613(C).
|||*fn6 See MCL 712A.1 et seq.
|||*fn7 Grubb Creek Action Committee v
Shiawassee Co Drain Com'r, 218 Mich App 665, 668; 554 NW2d 612 (1996).
|||*fn8 See DAIIE v Maurizio, 129 Mich
App 166, 172; 341 NW2d 262 (1983); see also Black's Law Dictionary (6th
ed), p 1425 (Subject-matter jurisdiction is a "court's power to hear
and determine cases of the general class or category to which proceedings
in question belong; the power to deal with the general subject involved
in the action.").
|||*fn9 Joy v Two-Bit Corp, 287 Mich 244,
253-254; 283 NW 45 (1938), quoting Richardson v Ruddy, 15 Idaho 488, 494,
495; 98 P 842, 844 (1908), quoting Brown on Jurisdiction, § 1a.
|||*fn10 Bandfield v Wood, 104 Mich App
279, 282; 304 NW2d 551 (1981).
|||*fn11 See In re Estate of Fraser,
288 Mich 392, 394; 285 NW 1 (1939).
|||*fn12 See MCL 600.1021(1)(e); see
also MCL 600.1009.
|||*fn13 See MCL 712A.1(3) ("This
chapter shall be liberally construed so that each juvenile coming within
the court's jurisdiction receives the care, guidance, and control . . .
conducive to the juvenile's welfare . . . ."); In re Brock, 442 Mich
101, 107-108; 499 NW2d 752 (1993) ("The purpose of child protective
proceedings is the protection of the child" and "[t]he juvenile
code is intended to protect children from unfit homes . . . .") (citations
omitted); see also In re Macomber, 436 Mich 386, 389; 461 NW2d 671 (1990)
("The Legislature has given a broad grant of authority to the probate
court to protect children who come within its jurisdiction.").
|||*fn14 In re Hatcher, 443 Mich 426,
437-438; 505 NW2d 834 (1993).
|||*fn16 Id. at 433-435.
|||*fn17 Id. at 437-438.
|||*fn18 See MCR 5.965(B)(9).
|||*fn19 See Joy, supra.
|||*fn20 Altman v Nelson, 197 Mich App
467, 473; 495 NW2d 826 (1992).
|||*fn21 Id.; see also Hatcher, supra
|||*fn22 Altman, supra at 473 (emphasis
|||*fn23 Hatcher, supra at 444.
|||*fn24 See In re Rosebush, 195 Mich
App 675, 683, 688-690; 491 NW2d 633 (1992); see also In re Martin, 450 Mich
204; 538 NW2d 399 (1995).
|||*fn25 Rosebush, supra at 687.
|||*fn26 In re Infant C, 1995 WL 1058596
(Va Cir Ct, 1995).
|||*fn27 See Rosebush, supra at 680-682;
see also In re Martin, supra at 216.
|||*fn28 See, generally, Causey v St
Francis Medical Ctr, 719 So 2d 1072, 1074 (La App, 2d Cir, 1998) (family
claimed that removing life support was unauthorized "treatment"
|||*fn29 See In re Juvenile Commitment
Costs, 240 Mich App 420, 440; 613 NW2d 348 (2000).
|||*fn30 MCL 712A.12; see also MCR 5.920.
|||*fn31 See In re Mayfield, 198 Mich
App 226, 231; 497 NW2d 578 (1993).
|||*fn32 The case law holding that failure
to give notice is a jurisdictional defect arises in the context of the hearing
to terminate parental rights because of the notice requirement in MCL 712A.12.
However, MCR 5.921(B) uses equally clear mandatory language requiring the
family court to "ensure" notice to certain individuals in other
types of hearings. Thus, there is no obvious rationale for concluding that
notice was not necessary in this case because there was no termination hearing.
|||*fn33 See In re Atkins, 237 Mich App
249, 251; 602 NW2d 594 (1999).
|||*fn34 See In re NEGP, 245 Mich App
126, 134; 626 NW2d 921 (2001).
|||*fn35 See MCR 5.965(B)(1), (2).
|||*fn36 See MCR 5.921(B)(1)(a).
|||*fn37 But see id. (notice to respondent
|||*fn38 MCR 5.921(B)(1) (the family
"court shall ensure" notice) (emphasis added).
|||*fn39 See, e.g., MCR 5.920(E); MCR
|||*fn40 See In re Terry, 240 Mich App
14, 21; 610 NW2d 563 (2000).
|||*fn41 See Macomber, supra at 400 ("There
is no general statutory authorization for referees or judges to make dispositional
orders prior to trial.").
|||*fn42 Alternatively, the respondent
may enter a plea of admission or no contest plea to the allegations in the
petition, making a full trial unnecessary. See MCR 5.971.
|||*fn43 In re Bechard, 211 Mich App
155, 158; 535 NW2d 220 (1995).
|||*fn44 See n 41, supra.
|||*fn45 See MCR 5.972(C)(1); In re Snyder,
223 Mich App 85, 88-89; 566 NW2d 18 (1997).
|||*fn46 See Brock, supra at 108-109.
|||*fn47 See MCR 5.973(A).
|||*fn48 Id. ("A dispositional hearing
is conducted to determine measures to be taken by the court with respect
to the child properly within its jurisdiction . . . once the court has determined
following trial, plea of admission, or plea of no contest that the child
comes within its jurisdiction.").
|||*fn49 See In re Albring, 160 Mich
App 750, 756; 408 NW2d 545 (1987); see also Bechard, supra at 157, citing
MCR 5.962(B)(3); MCR 5.965.
|||*fn50 Emphasis added.
|||*fn51 See MCR 5.963; MCR 5.965; MCR
|||*fn52 Random House Webster's College
Dictionary (1997), p 1371; see also Hoover Corners, Inc v Conklin, 230 Mich
App 567, 572; 584 NW2d 385 (1998) (presume Legislature intended to give
words in a statute their plain meaning and courts may use dictionary to
ascertain that meaning).
|||*fn53 Random House Webster's College
Dictionary (1997), p 1370.
|||*fn54 Id. (emphasis added).
|||*fn55 Note, however, that palliative
care, such as pain management, nutrition, and even counseling, may still
be effective at "relieving" a patient for whom no cure of an underlying
illness is possible. The facts of this case do not require us to consider
whether this statute provides any basis for ceasing palliative care.
|||*fn56 MCL 722.111(1)(b).
|||*fn57 See Macomber, supra at 389.
|||*fn58 42 USC 5101 et seq. Although
truncated, CAPTA is the common acronym used for this act.
|||*fn59 The parties and some of the
organizations serving as amici curiae have hotly debated whether the state
has any legitimate interest in petitioning the family court to withdraw
life support. However, we restrict our analysis to whether CAPTA prevents
the FIA from seeking a court order that permits withdrawal of life support.
|||*fn60 Jeanine B by Blondis v Thompson,
877 F Supp 1268, 1285-1286 (ED Wis, 1995).
|||*fn61 42 USC 5106a(b)(2)(B) (emphasis
|||*fn62 Congress drafted 42 USC 5106g(6)
in the disjunctive, indicating that a health condition need not meet every
circumstance listed to be excluded from the definition of medical neglect.
See, generally, Caldwell v Chapman, 240 Mich App 124, 131; 610 NW2d 264
|||*fn63 42 USC 1395dd.
|||*fn64 42 USC 1395dd(a).
|||*fn65 42 USC 1395dd(b).
|||*fn66 42 USC 1395dd(b)(1)(B); see
also 42 USC 1395dd(c)(2).
|||*fn67 42 USC 1395dd(b)(1)(A).
|||*fn68 In re Baby K, 16 F3d 590 (CA
|||*fn69 Id. at 592.
|||*fn73 Id. at 592-593.
|||*fn74 Id. at 593.
|||*fn80 Id. at 594-595.
|||*fn81 Id. at 595-596.
|||*fn82 Id. at 596.
|||*fn83 Id. at 597.
|||*fn84 Id. at 597-598.
|||*fn85 Id. at 592; see id. at 598.
|||*fn86 When the Sixth Circuit partially
rejected Baby K and interpreted EMTALA to require evidence of "improper
motive" in a hospital's transfer decision, the United States Supreme
Court reversed. Roberts v Galen of Virginia, Inc, 525 US 119 S Ct 685; 142
L Ed 2d 648 (1999).
|||*fn87 Bryan v Rectors and Visitors
of University of Virginia, 95 F3d 349,
|||*fn88 Id. at 350.
|||*fn92 Id. at 349-350.
|||*fn93 Id. at 350.
|||*fn95 Id. at 351-352 (emphasis added).
|||*fn96 Id. at 352.
|||*fn97 Id. at 353.
|||*fn98 See Terry, supra at 25-26 (FIA
is subject to the ADA); see also Soto v City of Newark, 72 F Supp 2d 489,
494-495 (NJ, 1999) (court violated ADA by refusing three requests by profoundly
deaf plaintiffs to provide a qualified sign language interpreter at their
wedding ceremony in courthouse, which plaintiffs could not understand);
Matthews v Jefferson, 29 F Supp 2d 525, 534 (WD Ark, 1998) (county court
violated ADA by scheduling three hearings in a second-floor courtroom that
the wheelchair-bound litigant could not access); State v PE, 284 NJ Super
309, 316-317; 664 A2d 1301 (1994) (ADA and state anti-discrimination law
required court to appoint an attorney to represent a mentally ill defendant
in order to ensure the defendant's court access).
|||*fn99 See Mitcham v Detroit, 355 Mich
182, 203; 94 NW2d 388 (1959).
|||*fn100 Terry, supra at 27.
|||*fn101 See In re Hildebrandt, 216
Mich App 384, 388; 548 NW2d 715 (1996).
|||*fn102 Green v Arundel Hosp Ass'n,
Inc, 126 Md App 394; 730 A2d 221, cert gtd 356 Md 17; 736 A2d 1064 (1999).
|||*fn103 Id. at 398.
|||*fn104 Id. at 400.
|||*fn106 Id. at 401.
|||*fn107 Id. at 416.
|||*fn108 Id. at 416-417 (footnotes
|||*fn109 But see Bd of Trustees of
the Univ of Alabama v Garrett, 531 US 356; 121 S Ct 955, 968; 148 L Ed 2d
866 (2001) (eliminating right to money damages in ADA Title I suits against
states, but not the right to sue for injunctive relief).
|||*fn110 See id. at 417-423 (considering
whether child's exclusion from the courtroom violated his rights to due
process or access to the courts as a member of the public).
|||*fn111 See People v Brown, 173 Mich
App 202, 213-214; 433 NW2d 404 (1988), rev'd on other grounds sub nom People
v Juillet, 439 Mich 34; 475 NW2d 786 (1991) (unavailing due process and
equal protection claims for discrimination on the basis of his status as
a former state senator).
|||*fn112 See, generally, People v
Bearss, 463 Mich 623, 630; 625 NW2d 10 (2001) (reversed and remanded because
Court of Appeals violated defendant's right to due process by directing
a guilty verdict on a cognate lesser offense); Green, supra at 417-423;
People v Collins, 239 Mich App 125, 133-138; 607 NW2d 760 (1999) (defendant
entitled to resentencing because the trial court's restitution order violated
his right to equal protection).
|||*fn113 Although not addressed in
the briefs originally filed in this appeal, we have given Ladd, the FIA,
and the amici curiae an opportunity to address this issue.
|||*fn114 See Werth v Taylor, 190 Mich
App 141, 145; 475 NW2d 426 (1991), citing Cruzan v Director, Missouri Dep't
of Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224 (1990) and In re Quinlan,
70 NJ 10; 355 A2d 647 (1976).
|||*fn115 See Rosebush, supra at 681-682.
|||*fn116 Id. at 682, n 4.
|||*fn117 See Werth, supra.
|||*fn118 See, generally, Martin, supra
at 209-210 (hearing to determine whether to withdraw life support also included
evidence establishing that patient could not make his own decision).
|||*fn119 See Rosebush, supra at 683.
|||*fn120 Id. at 688-689.
|||*fn121 Id. at 689, quoting In re
Conroy, 98 NJ 321, 365; 486 A2d 1209 (1985) (Handler, J., concurring in
part and dissenting in part).
|||*fn122 See Rosebush, supra at 689-690.
|||*fn123 Id. at 690, quoting In re
Guardianship of Grant, 109 Wash2d 545, 568; 747 P2d 445 (1987), amended
757 P2d 534 (1988), quoting Conroy, supra at 397.
|||*fn124 See Martin, supra at 222.
Note that this case revolves around MCL 722.124a(1) and does not completely
rely on the common right to refuse care.
|||*fn125 See id. at 223, 224-225 (only
declining to apply the best interests standard because the patient had been
competent and had expressed his wishes).
|||*fn126 Rosebush, supra at 682.
|||*fn127 Cf. In re KI, 735 A2d 448
(DC Cir, 1999).
|||*fn128 Ladd's arguments as a whole
lead us to believe that in this argument he is referring to a guardian ad
litem, not a guardian. In no way do we intend to change the family court's
ability to appoint a guardian for a child in a protective proceeding.
|||*fn129 Id. at 682, n 5.
|||*fn130 Id. at 679.
|||*fn131 In re Guardianship of Barry,
445 So 2d 365, 372 (Fla App, 1984).
|||*fn132 Rosebush, supra at 685, 687.
|||*fn133 In re Shaffer, 213 Mich App
429, 432-433; 540 NW2d 706 (1995).
|||*fn134 See Rosebush, supra at 686-687,
quoting In re LHR, 253 Ga 439, 446-447; 321 SE2d 716 (1984).
|||*fn135 See Shaffer, supra at 434-436.
|||*fn136 MCR 5.916(A).
|||*fn137 See MCL 330.2020 et seq.
|||*fn138 See Troxell v Granville,
530 US 57; 120 S Ct 2054, 2059-2060; 147 L Ed 2d 49 (2000).
|||*fn139 For instance, we doubt that
a parent who physically abuses the child-patient is capable of weighing
the competing interests and best interests of the child in an end-of-life
decision. However, we decline to determine conclusively what these other
reasons might be.
|||*fn140 Ladd does not argue that
JB should have been allowed to decide whether to withdraw baby Allison's
|||*fn141 Reeves v Kmart Corp, 229
Mich App 466, 481, n 7; 582 NW2d 841 (1998).
|||*fn142 Rosebush, supra at 683, 687.
|||*fn143 Barry, supra at 372.
|||*fn144 LHR, supra at 446-447.
|||*fn145 Rosebush, supra at 679.
|||*fn146 Id. at 690.
|||*fn147 A physician confirmation
rule is inappropriate in cases in which the patient is competent and refuses
treatment or cases in which a previously competent patient clearly expressed
a treatment preference, no matter the degree of medical consensus. To hold
otherwise would eviscerate the patient's right to give or withhold consent
to treatment. See Martin, supra at 221-222.
|||*fn148 Kampf v Kampf, 237 Mich App
377, 381-382; 603 NW2d 295 (1999) (citations omitted).
|||*fn149 See Bundo v Walled Lake,
395 Mich 679, 696; 238 NW2d 154 (1976).
|||*fn150 Jordan v Jarvis, 200 Mich
App 445, 448; 505 NW2d 279 (1993), citing Kentucky Dep't of Corrections
v Thompson, 490 US 454, 460; 109 S Ct 1904; 104 L Ed 2d 506 (1989).
|||*fn151 See Troxell, supra.
|||*fn152 See In re Kirkwood, 187 Mich
App 542, 546; 468 NW2d 280 (1991).
|||*fn153 Jordan, supra.
|||*fn154 Mathews v Eldridge, 424 US
319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976).
|||*fn155 Id. at 334, quoting Morrissey
v Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484 (1972).
|||*fn156 See, generally, Hodgson v
Minnesota, 497 US 417, 447, n 32; 110 S Ct 2926; 111 L Ed 2d 344 (1990)
(Stevens, J.) (common law permits one parent to act as an agent for the
|||*fn157 See Troxell, supra; Kirkwood,
|||*fn158 Rosebush, supra at 687.
|||*fn159 See, generally, In re KB,
221 Mich App 414, 418-422; 562 NW2d 208 (1997) (individual subject to civil
commitment is entitled to due process, though procedures at issue were adequate).
|||*fn160 See, generally, People v
Duncan, 462 Mich 47, 55-57; 610 NW2d 551 (2000), quoting and adopting Harmon
v Marshall, 69 F3d 963 (CA 9, 1995) (complete failure to define an offense
for the jury violated the criminal defendant's right to due process).
|||*fn161 See MCR 5.965(B)(1), (2).
|||*fn162 Kampf, supra at 383-384.
|||*fn163 See MCR 5.992.
|||*fn164 See Bundo, supra at 696.
|||*fn165 Martin, supra at 225-229.
|||*fn166 Id. at 229.
|||*fn167 Id. at 228-229.
|||*fn168 See id. at 225-227.
|||*fn170 See Rosebush, supra at 690.
|||*fn171 See MCR 5.923(A).
|||*fn172 MCL 712A.10(1)(c).
|||*fn173 Campbell v Evans, 358 Mich
128, 131; 99 NW2d 341 (1959).
|||*fn174 See id.
|||*fn175 Id.; see also Mann v Mann,
190 Mich App 526, 538-539; 476 NW2d 439 (1991) ("The trial court also
committed clear legal error in delegating to the Friend of the Court the
child support determination.").
|||*fn176 The Campbell Court also remanded
for a new hearing. Campbell, supra at 131. However, when no relief is available,
a remand to supplement the record would be purposeless.
|||*fn177 Emphasis added.
|||*fn178 See Mann, supra at 529-530.
|||*fn179 MCR 5.992(D) (emphasis added).
|||*fn180 See In re EP, 234 Mich App
582, 597; 595 NW2d 167 (1999), overruled on other grounds by In re Trejo,
426 Mich 341, 353, n 10; 612 NW2d 407 (2000).
|||*fn181 EP, supra at 598.
|||*fn182 Shaffer, supra at 433; see
id. at 434, 436.
|||*fn183 See 1997 PA 169.
|||*fn184 See 1975 PA 238, § 10.
|||*fn185 That MCL 722.630 and MCL
712A.17c(7) were amended to incorporate the new lawyer- guardian ad litem
standards under MCL 712A.17d at the same time and that both amendments became
effective March 1, 1999, indicates that the attorneys appointed under either
of these statutes had identical, substantive duties. See 1998 PA 480; 1998
|||*fn186 Again, MCL 712A.17d changed
the relationship between a child and her lawyer for cases after March 1,
1999. However, though this discussion of an attorney's duties might be of
limited benefit in future cases, it is necessary to set a foundation for
analyzing Ladd's claim that Mahinske was ineffective.
|||*fn187 Emphasis added.
|||*fn188 See People v Pickens, 446
Mich 298, 303; 521 NW2d 797 (1994).
|||*fn189 The new statutory standards
that apply to a lawyer-guardian ad litem articulate many basic requirements
that, though not germane in this case, will be relevant to determining whether
an attorney is performing adequately in future cases. 1998 PA 480, MCL 712A.17d.
|||*fn190 EP, supra at 598.
|||*fn191 We are not, in any way, attempting
to define the scope of or test for a respondent's right to effective assistance
of counsel in a protective proceeding.
|||*fn192 See Shaffer, supra at 430,
|||*fn193 Though an order appointing
an attorney for a child may constitute an appearance, no such order exists
in the record in this case.
|||*fn194 MCR 5.915(D).
|||*fn195 MCR 5.920(F).
|||*fn196 See MCR 5.915(B)(2)(a).
|||*fn197 See, generally, People v
Fountain, 407 Mich 96, 99; 282 NW2d 168 (1979) (courts presume that attorneys
from the same office have the same information).
|||*fn198 MCR 5.921(B)(1).
|||*fn199 See Scarsella v Pollak, 232
Mich App 61, 63-64; 591 NW2d 257 (1998), affirmed and adopted 461 Mich 547,
|||*fn200 See People v Stewart (On
Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
|||*fn201 See, generally, People v
Snider, 239 Mich App 393, 424; 608 NW2d 502 (2000); In re Ayres, 239 Mich
App 8, 21-22; 608 NW2d 132 (1999); People v Rocky, 237 Mich App 74, 76-77;
601 NW2d 887 (1999); People v Truong, 218 Mich App 325, 338-339; 553 NW2d
692 (1996); People v Julian, 171 Mich App 153, 158-159; 429 NW2d 615 (1988).
|||*fn202 MCR 5.915(B)(2)(d).
|||*fn203 See People v Williams, 240
Mich App 316, 331; 614 NW2d 647 (2000).
|||*fn204 MCR 5.923(E).
|||*fn205 Schlender v Schlender, 235
Mich App 230, 232-234; 596 NW2d 643 (1999); see also MCR 8.112.
|||*fn206 Fadiman and Bernard, general
eds, Barlett's Book of Anecdotes (Boston: Little, Brown, & Co, 2000),
|||*fn211 Rosebush, supra at 683.
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