# In Re AMB

> Michigan Court of Appeals · January 25, 2002 · 248 Mich. App. 144

URL: https://www.frixlaw.com/law-library/cases/1712181

## Case

- **Full name:** In Re AMB
- **Court:** Michigan Court of Appeals
- **Decided:** January 25, 2002
- **Citations:** 248 Mich. App. 144; 640 N.W.2d 262
- **Precedential status:** Published
- **Opinion:** Opinion by Whitbeck
- **Judges:** Whitbeck, Whttbeck, McDonald, Collins
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1712181

## How later opinions describe it (automated extraction)

- observing that courts have an independent obligation consider jurisdiction, even when the parties do not raise the issue
- acknowledging that 1998 PA 480 “changed the relationship between the child and the child’s lawyer”

## Opinion text

Whitbeck, P.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.
I. introduction
This case is, at its core, a human tragedy. AMB, whom we call baby Allison, is the central figure. She was bom 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.
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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 muse took pictures. I again
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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 proportions.
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.
1
Perhaps, had baby Allison been bom just a few weeks later, these proceedings would have been conducted differently.
E. 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
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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, Oak-wood 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 Mat-lock filed an original petition alleging that baby Allison came within the family court’s jurisdiction pursuant to MCL 712A.2(b)(l) 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 regarding the petition that same day. Neither KB nor JB attended this first hearing, and neither was represented by counsel. No one,
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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, stating, “[T]he 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 . . . nonroutine medical care, they’re going to have to ask for consent of the Court.” Ladd gave several examples of what he considered nonroutine care, including brain surgery or a heart transplant. The assistant attorney general representing the HA 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
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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 replied:
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 proper.
# * *
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 “[njotice 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 her life.”
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:
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7. On or about 2/11/99 the MA petitioner conferred with Dr. Virginia Delaney-Black and social worker Marie WilmetDully 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 support.
9. The mother is not capable of comprehending the implications of the medical facts related to the baby and, therefore, cannot make an informed decision.
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 regarding 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 attor
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neys 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 concerning 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 the ventilator.
Dr. Delaney-Black said that baby Allison’s right lung was “relatively normal,” but “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 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
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is . . . not likely at all ... . [E]ven if she had no other problems, there is no easy solution to any of her heart problems.
* !f. :!■.
My recommendation is that we stop the prostaglandins 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 heart problems.”
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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
2
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
[bjecause we have no medical treatment to offer this . . . child in the long rim 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 l.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
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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 judgement [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:
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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]
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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 recommendation. In pertinent part, the petition stated that review was critical because Mahinske had represented baby Allison at the second hearing and “[c]ounsel was not given an opportunity to observe the child, consult
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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 or served.” 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.
E. APPEAL
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
3
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.”
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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 on the merits of the issues raised in appellant’s issues IV through IX and XI. Attorney William Ladd is to 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.[
4
]
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 the attorney representing baby Allison’s interests.
m. OVERVIEW
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 a group of scholars
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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,
post
at 243, identifies the issues presented in the application for leave to appeal to the Supreme Court and specifically locates where we address the respective issues 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 an individual who is the subject of a protective proceeding and who was never competent to make a decision concerning medical care. We next examine the many interrelated questions concerning Mahinske’s repre
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sentation, 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,
post
at 238-242, which might serve as a useful reference in the future.
IV. STANDARD OP REVIEW
Virtually all the issues raised in this appeal present legal questions, subject to review de novo.
5
Only the question whether withdrawing life support was in baby Allison’s best interests requires a factual determination, therefore meriting review for clear error.
6
V. SUBJECT-MATTER JURISDICTION
A. AUTHORITY TO HEAR A CASE
The allegations of neglect in the original petition gave the family court subject-matter jurisdiction over baby Allison under MCL 712A.2(b)(l) 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
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her life. Ladd argues that the family court lacks the broad authority given to the 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.
7
“Jurisdiction is the power of a court to act and the authority of a court to hear and determine a case.”
8
As its name implies, subject-matter jurisdiction describes the types of cases and claims that a court has authority to address.
9
In other words:
“ ‘Jurisdiction 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.’ ”[
10
]
“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.”
11
Subject-matter jurisdiction is so critical to a court’s authority that a court has an independent
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obligation to take notice when it lacks such jurisdiction, even when the parties do not raise the issue.
12
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.
13
The Juvenile Code, MCL 712A.2(b), specifically grants the family courts in this state subject-matter jurisdiction of 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.
14
Family courts thus have subject-matter jurisdiction in a large sphere of cases involving children.
In
In re Hatcher,
15
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
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frivolous.”
16
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.
17
Whether the allegations are later proved true is irrelevant to whether the family court has subject-matter jurisdiction.
18
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 within 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.
19
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
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court to
exercise
its jurisdiction by “rendering] 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.
20
As this Court explained in
Altman v Nelson:
21
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.”
22
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
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subject-matter jurisdiction as the “determination of questions of law or fact
upon which the court’s jurisdiction in the particular case depends.”
23
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.
24
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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,
25
this Court held that courts can permit the 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.
26
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. The staff of Children’s Hospital 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
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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,
27
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.
28
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
*173
surely is — of categorizing withdrawing life support as medical “treatment” to demonstrate the family court’s subject-matter jurisdiction in this case.
29
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,
30
respondents in child protective proceedings have a statutory right to notice.
31
The absence of this notice to a respondent in a protective proceeding constitutes a jurisdictional defect.
32
Therefore, failure to give adequate notice to a respondent
33
in a protective proceeding makes “all proceedings in the [family] court void,”
34
at least with respect to the respondent denied notice.
*174
Determining exactly who was a respondent in a 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 eta 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.
35
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,
36
both were entitled to notice of other hearings held in the case.
37
*175
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.
38
It was error to allow this action to proceed without ever ensuring
39
that KB, regardless of her alleged intellectual limitations, received notice.
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 or that there were legitimate reasons to deny him notice.
40
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,
*176
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.
41
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.
VH. 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.18L In practice, MCL 712A.18f(4) describes the process by 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.
42
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
43
on the merits of the allegations in the petition.
44
Following the adjudicative hearing,
45
the family court must find that a pre
*177
ponderarme of legally admissible evidence
46
demonstrates that there is factual support for one of the grounds permitting judicial involvement under MCL 712A.2(b).
47
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.
48
The form used for the “order” allowing the staff of Children’s Hospital 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.
49
The formal proceedings in this case never progressed past the preliminary hearing at which referee Smart authorized the petition.
50
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.18Í.
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VOL MCL 722.124a(1)
A. MEDICAL AND SURGICAL TREATMENT
Ladd also contends that MCL 722.124a(l) did not allow the family court to withdraw baby Allison’s life support. MCL 722.124a(l) provides:
A probate court, a child placing agency, or the department may
consent to routine, nonsurgical 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, nonsurgical 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, nonsurgical medical care of the child.[
51
]
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(l) is not specifically related to any particular phase in any of the varied child welfare proceedings to which it
*179
applies. Ordering treatment under MCL 722.124a(l) 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, nonsurgical treatment even when there is no emergency.
52
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(l) makes no attempt to authorize any emergency activity other than “medical or surgical treatment.” The key word here is “treatment,” which as a norm means “the application of medicines, surgery, therapy, etc., in treating a disease or disorder.”
53
In turn, the verb “treat” means “to act or behave toward in some specified way.”
54
However, it is also defined as “to deal with (a disease, patient, etc.) in order
to relieve or
cure.”
55
Whether the medical technologies and techniques at issue fall outside the definition of treatment depends on the particular
*180
circumstances of each case.
56
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 entered following the first hearing 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(l). 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”
57
in which
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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(l).
Nevertheless, we must resolve this issue even without a satisfactory record. Generally, the statute makes it possible for a family court or one of the other designated agencies to make health care decisions for a child when forma! 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 emergency.
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
*182
court jurisdiction in protective proceedings.
58
Consequently, the confusing custody arrangements in this case did not eliminate the family court’s authority to act under MCL 722.124a(l) once referee Smart ordered the fta to place baby Allison in foster care or with a relative.
As we have suggested, whether MCL 722.124a(l) 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.
C. LIMITATIONS
Though MCL 722.124a(l) enabled the family court to act in this case even before holding an adjudication, we must stress that parties and family courts involved 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 a family court will intervene in a private family decision when no
*183
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 a family court can decide whether it has cause to become involved in a case. Just as importantly, MCL 722.124a(l) does not exist in a legal vacuum. As we will explain in greater detail, there are other procedural and substantive requirements that a family court
must
fulfill before it can order withdrawal of life support for an incompetent patient.
rx. CAPTA
Ladd argues that even if state law allowed the family court to order the staff of Children’s Hospital to withdraw the life-sustaining medical care baby Allison was receiving, the federal Child Abuse Prevention and Treatment and Adoption Reform Act (CAPTA)
59
prevented the ElA from seeking such an order.
60
Thus, he in essence contends that the family court lacked the authority to act on the fia’s illegal request.
In order to be eligible to receive capta funds to prevent child abuse and neglect,
61
Congress requires, among other conditions,
*184
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.[
62
]
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 neglect:
[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
*185
the treating physician’s or physicians’ reasonable medical judgment—
(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.[
63
]
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
64
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 fta to ask the family court to permit the staff of Children’s Hospital to withdraw life support from baby Allison.
*186
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 fta 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.
X. EMTALA
A. STABILIZATION
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).
65
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.
*187
Emtala requires hospitals with emergency departments that receive Medicare funds to screen patients for emergency conditions within the medical capabilities of the facility.
66
If the patient has an emergency medical condition, the hospital must provide “[n]ecessary stabilizing treatment.”
67
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.
68
Otherwise, the hospital must stabilize the patient’s emergency medical condition before transferring the patient to another facility.
69
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,
70
the first of these Fourth Circuit cases. When Baby K was bom, 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.”
71
Baby K did have a brain stem, which allowed her autonomic system to continue to function
*188
even though she was permanently unconscious.
72
Physicians placed Baby K on a ventilator because she began experiencing difficulty breathing.
73
Because anencephalic babies typically die soon after birth, the physicians believed that any treatment would be futile.
74
The physicians asked the mother to approve a medical order not to resuscitate Baby K in the future, but the mother refused.
75
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.
76
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.
77
While at the nursing home, Baby K had to be readmitted to the hospital three times because of respiratory distress.
78
After Baby K’s second emergency hospital admission, the hospital brought a declaratory action in the federal district court seeking judicial approval to abstain from providing any aggressive treatment for Baby K in the future.
79
Baby K’s guardian ad litem and her biological father joined with the hospital in opposing the mother’s efforts to use any medical
*189
intervention available to keep Baby K alive.
80
The district court, however, denied the requested relief.
81
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.
82
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.
83
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.
84
Finally, the court concluded that there was no statutory support for the argument that stabilization is necessary only if the hospital is transferring the patient to another facility.
85
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.
86
Thus, the court held
87
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
*190
Hospital in respiratory distress and treatment is requested for her.”
88
The second relevant emtala case from the Fourth Circuit, which Ladd does not cite, is
Bryan v Rectors & Visitors of Univ of
Virginia.
89
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.
90
Robertson’s family asked uvmc staff to make all efforts to keep her alive.
91
Against their wishes, twelve days after Robertson was admitted to uvmc, the hospital’s staff gave a “do not resuscitate” order for her.
92
Eight days later, uvmc staff allegedly failed to stabilize Robertson,
93
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.
94
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.
95
On appeal, the court reviewed the legislative history of emtala, observing that “Congress’s sole purpose in enacting emtala was to deal with the problem of
*191
patients being turned away from emergency rooms for non-medical reasons.”
96
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 reasons.
. . . [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 context.[
97
]
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
*192
issue of the temporal duration of that obligation, and certainly did not hold that it was of indefinite duration.”[
98
] 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.
99
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 bom 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 support.
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
*193
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
*194
were denied their substantive rights to a familial relationship. Ladd claims that because of the way the fia and the family court perceived baby Allison’s disabilities, the fia and the 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 antidiscrimination laws.
These are serious allegations. Not only is discrimination by the courts and state agencies typically contrary to these statutes,
100
discrimination is incompatible with the evenhanded 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 is inadequate to allow this Court to decide whether the fia or the family court violated the ada or the pwdcra.
101
Second, this Court has implicitly held that a party must raise
*195
ada claims in the family court before they can be asserted as a defense on appeal.
102
This requirement is consonant with our ordinary issue preservation standard.
103
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 the 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 North Arundel Hosp Ass’n, Inc,
104
persuades us that parties cannot use the ADA or the 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.
105
The defendants moved to bar the child from the courtroom during the liability phase of trial.
106
After observing the child’s disabilities in a videotape, the judge granted the motion.
107
*196
The plaintiffs in
Green
did not succeed in the malpractice suit.
108
On appeal, they claimed that excluding the child from the trial violated the ADA.
109
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.[
110
]
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 the pwdcra would permit baby Allison and her mother to sue for the way they were treated by the fia and in the family court,
111
whether we affirm or reverse depends solely on the independent
*197
legal validity of the decisions and procedures used in this protective proceeding.
112
Discriminatory conduct in judicial proceedings may give rise to a due process or equal protection claim,
113
which are legally cognizable means to invalidate the outcome or a particular aspect of a judicial proceeding.
114
However, the PWDCRA and the ADA do not provide the same relief in cases not originally involving those antidiscrimination acts.
Xn. LEGAL AND EVIDENTIARY STANDARDS FOR WITHDRAWING UFE 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. A patient who is competent 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.
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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 court 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 the staff of Children’s Hospital 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.
115
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.
116
According to
Rosebush,
“The right to refuse
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lifesaving medical treatment is not lost because of the incompetence or the youth of the patient.”
117
Though legally still minors and considered otherwise incompetent, some young patients may be sufficiently “mature” to exercise this right on their own.
118
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,
119
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 concerning competency by means of an evidentiary hearing.
120
When the patient is incompetent, a court considering whether to continue life support must determine whether the “substituted judgment” or the “best interests” legal standard applies.
121
The substituted judgment standard seeks to fulfill the expressed wishes of a previously competent patient, including a “minor of mature judgment.”
122
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
*200
satisfied that it is clear that the burdens outweigh the benefits of that life for’ ” the patient.
123
The best interests standard applies when the patient has never been competent or has not expressed her wishes concerning medical treatment.
124
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.”[
125
]
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.
126
However, the Michigan Supreme Court has not wholly rejected the best interests standard.
127
Consequently, as the law exists today, there is no absolute bar to applying the best interests standard to
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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 standard as the relevant decisional standard in this case.
128
Further, the fia and Ladd agree that the best interests standard was appropriate.
129
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.
130
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.”
131
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
*202
support.
132
Rosebush,
by approving the reasoning in
In re Guardianship of
Barry,
133
also rejected the proposition that parents must qualify as guardians before being allowed to decide to withdraw their minor child’s life support,
134
which suggests that appointing a guardian ad litem is not always necessary. Further,
In re
Shaffer
135
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.
136
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 urgency of the situation.
137
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
*203
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.
138
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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.
139
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
*205
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.
140
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 situations.
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, a child may still choose to seek out biological family members after reaching adulthood. 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
141
and cases in which the factors bringing the case to the family court’s attention are unrelated
*206
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.
142
The fia attempts to minimize the lack of evidence 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.
143
We
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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.
144
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
145
and
In re
LHR,
146
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.
147
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
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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 a variety of factors relevant to the patient’s prognosis and treatment options,
148
and thus does not require a separate analysis.
149
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:
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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, or property.[
150
]
At issue here is the right to procedural due process.
151
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.”
152
There is no question that parents have a due process liberty interest in caring for their children
153
and that child protective proceedings affect that liberty interest.
154
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.”
155
Whether procedures are adequate depends on the factors enunciated in
Mathews v Eldridge:
156
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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.’ ”
157
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.
158
We are confident that the law is sufficiently well developed to guide courts addressing many different situations, including this end-of-life issue.
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Due process protected baby Allison’s parents’ liberty interest in raising their child.
159
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.
160
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
161
and criminals ultimately convicted of the most heinous crimes.
162
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 proceeding.
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
*212
two hearings. The order entered following the first hearing instructed the 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,
163
it was also constitutionally sound.
164
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.
165
The state did nothing to violate this seven-day period; Children’s Hospital staff, apparently in consultation with some members of baby Allison’s family, 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.
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Critically, the ha 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.
166
The denial of this notice and opportunity to be heard was a constitutional violation.
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.
167
In other words, “the proofs in sum must meet the exacting standard of clear and convincing evidence”
168
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 . . . .”
169
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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.
170
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.
171
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.
172
On the whole, it appears that referee Schummer recommended withdrawing baby
*215
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 life support.
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.
173
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 submitted to the family court only 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 any
*216
one 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 court 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 following:
*217
(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 permits 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.
174
To paraphrase the Michigan Supreme Court in
Campbell v Evans,
175
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.
176
“They are a helpful time-saving 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.
177
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 re
*218
verse.
178
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 argu
*219
ment 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 staff of Children’s Hospital 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.
179
Even if MCR 5.991 effectively permitted the family court to hold review hearings to make an order valid by approving it retroactively,
180
the family court did
*220
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, that it had personally signed and entered the “order,” or that it was somehow taking responsibility for the “order” one month after its supposed entry. 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. . . .”
181
However, there was no valid decision to
re
hear.
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.
XIII. COUNSEL
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
*221
obligations on her attorneys. Second, he claims that his participation in the 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 the 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 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 the child in a protective proceeding. Narrowly, the question we must address is whether baby Allison was afforded the representation to which she was entitled.
B. EIGHT 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.
182
Although certain elements
*222
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.
183
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).
184
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)
185
stated, in pertinent part:
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
*223
viewed as the child’s needs, and (4) what services 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 to MCL 712A.17c, as it appeared in February 1999.
The Child Protection Law, MCL 722.621
et seq.,
which requires legal representation for children who are involved in court proceedings because of abuse or neglect, is also instructive. When this case was pending in February 1999, MCL 722.630
186
enumerated more specific duties for an attorney appointed under the Child Protection Law. At that time MCL 722.630 stated:
The 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 dis-positional hearings, make recommendations to the court, and participate in the proceedings to competently represent the child.
MCL 722.630 went beyond MCL 712A.17c(7) and the analogous court rule by prescribing the standard that
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must guide the attorney’s representation and the need to investigate, 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.
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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.
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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 of that rule prohibits a lawyer from
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“handl[ing] a legal matter without preparation adequate in the circumstances.” As the comment following MRPC 1.1 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, attorneys have specific ethical obligations. The comments following MRPC 1.1 further explain:
In 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,[
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]
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.
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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
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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,
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court rules, rules of professional conduct, and any logically relevant case law.
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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:
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acting in the child’s best interests.
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If there is proof that a child was denied her right to effective assistance of counsel, the critical issue then becomes determining the appropriate remedy. 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.
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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 the 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 fla’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:
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(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 MCE 2.107(A).
According to MCR 5.915(E), an attorney who is appointed by the court to represent a party remains the client’s attorney “until discharged by the court.”
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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.
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This entitled Ladd to notice of other proceedings.
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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
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neither defines promptness nor penalizes a failure to file a written appearance “promptly.”
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.
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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.
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In short, there were ways to determine who was representing baby Allison in this case, but no one involved in the 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.
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This was error.
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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 the child 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(E), 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) provides:
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1712181. Public record. Not legal advice.