In Re casper/washington Minors ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re CASPER/WASHINGTON, Minors. June 9, 2022
No. 359270
Kent Circuit Court
Family Division
LC Nos. 21-050540-NA
21-050541-NA
21-050544-NA
Before: BORRELLO, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
Respondent-father appeals by right the trial court’s orders terminating his parental rights
to three of his children: GC, GTC, and INW, under MCL 712A.19b(3)(b)(i) and
MCL 712A.19b(j). The trial court took jurisdiction over the children and terminated respondent’s
parental rights after it found that he had committed acts of sexual abuse against INW. On appeal,
respondent argues that the trial court clearly erred when it found that the Department of Health
and Human Services established by clear and convincing evidence grounds to terminate his
parental rights to all three children. More specifically, he argues that the trial court could not
properly proceed to termination without making the requisite findings that he subjected INW to
aggravated circumstances. He also argues that the trial court erred when it found that termination
of his parental rights was in the best interests of the children. Finally, he argues that the trial court
erred when it denied his motion for reconsideration or a new trial premised on the claim that he
did not receive effective assistance of counsel. Because respondent has not established any
grounds for relief, we affirm.
I. TERMINATION AT INITIAL DISPOSITION
A. PRESERVATION AND STANDARD OF REVIEW
Respondent first argues that the trial court erred when it ordered the termination of his
parental rights at the initial disposition without making the required finding of aggravated
circumstances. He also maintains that the trial court clearly erred when it found that the
Department established grounds for termination.
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To preserve an issue for appellate review, the issue must have been raised in the trial court.
In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). Respondent did not argue in the trial
court that the trial court had to make a specific finding that a particular aggravating circumstance
existed and that the specific circumstance excepted the Department from having to make
reasonable efforts to reunify respondent with the children. He also did not argue before the trial
court that it had to find that he engaged in sexual penetration or attempted to engage in sexual
penetration with INW to justify termination at the initial disposition. Finally, he did not argue that
the trial court’s failure to follow the statutory procedures governing the duty to make reasonable
efforts amounted to a constitutional violation. Therefore, these claims of error are unpreserved.
See id. Respondent, however, did not have to take any special steps to preserve a claim that the
trial court clearly erred when it found that the Department established one or more grounds for
terminating his parental rights. See In re Beers, 325 Mich App 653, 677; 926 NW2d 832 (2018).
This Court reviews de novo whether the trial court properly interpreted and applied relevant
statutes. See In re Gonzales/Martinez, 310 Mich App 426, 431; 871 NW2d 868 (2015). This
Court, however, reviews the trial court’s factual findings underlying its application of the law for
clear error. Id. at 430; see also MCR 3.977(K). A finding is clearly erroneous when this Court is
left with the definite and firm conviction that a mistake has been made. In re Gonzales/Martinez,
310 Mich App at 430-431. To the extent that respondent failed to properly preserve an issue for
appellate review, this Court reviews that claim for plain error affecting substantial rights. In re
Utrera, 281 Mich App at 8. To establish a plan error that warrants relief, respondent must show
that the trial court made a plain error that affected the outcome of the proceedings. Id. at 9. He
must also establish that he was actually innocent or that the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings independent of his innocence. Id.
B. ANALYSIS
Respondent argues that the trial court had to order the Department to make reasonable
efforts to reunify him with the children unless it specifically found that a particular aggravating
circumstance existed that excepted the Department from that requirement. The Legislature
provided that, under certain circumstances, the Department must petition to terminate a parent’s
parental rights and must request termination at the initial disposition. See MCL 722.638(1) and
(2). In relevant part, the Department must file a petition if the Department “determines that a
parent, guardian, or custodian, or a person who is 18 years of age or older who resides for any
length of time in the child’s home, has abused the child or a sibling of the child,” and the abuse
included, in relevant part, “[c]riminal sexual conduct involving penetration, attempted penetration,
or assault with intent to penetrate.” MCL 722.638(1)(a)(ii). The Department must also file a
petition if the Department determines that there is a risk of harm, child abuse, or child neglect; the
parent’s rights to another child were terminated; and the parent has failed to rectify the conditions
that led to the termination. See MCL 722.638(1)(b)(i). If the Department is required to file a
petition under MCL 722.638(1), and the Department suspects that the parent is the perpetrator or
is suspected of placing the child at unreasonable risk of harm due to the failure to take reasonable
steps to intervene to eliminate the risk of harm, the Department must request termination at the
initial disposition. See MCL 722.638(2).
The requirements stated under MCL 722.638 involve duties imposed on the Department,
not the trial court. Consistent with the requirements of MCL 722.638(1) and (2), the Department
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petitioned the trial court to take jurisdiction over all three children and asked the trial court to
terminate respondent’s rights at the initial disposition. The Department specifically alleged that
respondent sexually abused INW on multiple occasions, and, at the conclusion of its petition, it
requested that the trial court immediately terminate respondent’s rights to INW. The Department
also alleged that respondent’s rights to a different child—IH—had previously been terminated and
identified the concerns that led to that termination. The Department similarly requested that the
trial court terminate respondent’s parental rights to GC and GTC at the initial disposition.
It is evident from the allegations and the request for relief that the Department determined
that it was required to petition the court to take jurisdiction over the children and was required to
seek termination at the initial disposition. Stated another way, it is plain on the face of the petition
that the Department felt that MCL 722.638 applied to the facts of this case. It is also clear from
the litigation that the parties understood that the Department proceeded on the belief that
termination was warranted at the initial disposition—for the most part—on the ground of sexual
abuse. At the adjudication trial, the parties primarily contested whether the evidence showed that
respondent had in fact sexually assaulted INW. The trial court found INW credible and specifically
stated that the Department proved the allegations of sexual abuse stated in the petitions. The trial
court held the dispositional hearing the following week. At the conclusion of that hearing, the trial
court found that the Department had established grounds for terminating respondent’s parental
rights to all three children and ordered his rights terminated at the initial disposition. On this
record, the trial court had the authority to order termination at the initial disposition.
Once a trial court takes jurisdiction over a child, the trial court must conduct a permanency
planning hearing within 30 days after a “judicial determination that reasonable efforts to reunite
the child and family are not required.” MCL 712A.19a(2). The Legislature further required that
reasonable efforts to reunite the child be made in “all cases” unless an exception applies. See
MCL 712A.19a(2); see also In re Rippy, 330 Mich App 350, 355; 948 NW2d 131 (2019). The
exceptions are:
(a) There is a judicial determination that the parent has subjected the child
to aggravated circumstances as provided [under MCL 722.638(1) or (2)].
(b) The parent has been convicted of 1 or more of the following:
(i) Murder of another child of the parent.
(ii) Voluntary manslaughter of another child of the parent.
(iii) Aiding or abetting in the murder of another child of the parent or
voluntary manslaughter of another child of the parent, the attempted murder of the
child or another child of the parent, or the conspiracy or solicitation to commit the
murder of the child or another child of the parent.
(iv) A felony assault that results in serious bodily injury to the child or
another child of the parent.
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(c) The parent has had rights to the child’s siblings involuntarily terminated
and the parent has failed to rectify the conditions that led to that termination of
parental rights.
(d) The parent is required by court order to register under the sex offenders
registration act. [MCL 712A.19a(2)(a) to (d).]
Courts have imprecisely referred to these exceptions as involving aggravated
circumstances, see In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010), even though that
phrase only appears in the first exception. Compare MCL 712A.19a(2)(a), with
MCL 712A.19a(2)(b) to (d). Nevertheless, the Legislature identified the circumstances under
which the Department has no obligation to make reasonable efforts to reunify the child; and this
Court has held that a trial court must order the Department to make reasonable efforts to reunify
the child with his or her family at the initial disposition unless one of the exceptions applies. See
In re Simonetta, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 357909); slip op
at 3-6.
The Department’s allegations implicated two exceptions. The Department alleged that
respondent sexually assaulted INW on multiple occasions, which implicated the exception for
aggravated circumstances stated under MCL 712A.19a(2)(a). The Department also alleged that
he had his parental rights to another child terminated and stated the concerns that led to that
termination. Those allegations implicated the exception stated under MCL 712A.19a(2)(c).
The evidence submitted at the adjudication trial and dispositional hearing demonstrated
that the exception stated under MCL 712A.19a(2)(c) did not apply. Testimony and evidence
established that the termination of respondent’s parental rights to IH involved problems with
employment, domestic violence, and housing. The evidence showed that respondent had adequate
housing, did not have domestic violence concerns with his most recent partner, and had
employment. Moreover, the trial court did not make findings about the previous termination that
suggested that it had considered that exception and determined that it did not apply.
By contrast, the trial court made findings that demonstrated beyond reasonable dispute that
it determined that the exception stated under MCL 712A.19a(2)(a) applied. After hearing the
evidence at the adjudication trial, but before the start of the dispositional hearing, the trial court
specifically found that the Department proved by a preponderance of the evidence the allegations
in all three petitions. The court clarified that it was referring to the allegations that respondent
touched INW inappropriately on more than one occasion. It further explained that it was asserting
jurisdiction over GC and GTC, as INW’s siblings, for the same reason. The trial court went into
more detail in its oral opinion. The court first noted that the Department asked for termination at
the initial disposition. The court summarized INW’s testimony from the adjudication trial and
found that her testimony was compelling, convincing, and credible. Moreover, it specifically
characterized its findings as findings that respondent sexually abused INW, which implicated GC
and GTC as INW’s siblings.
The trial court was presumed to know the law, see Charles A Murray Trust v Futrell, 303
Mich App 28, 44; 840 NW2d 775 (2013), so it understood that it could not terminate respondent’s
parental rights to the children at the initial disposition unless it determined that one of the
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exceptions stated under MCL 712A.19a(2) applied. Examined in context, the trial court’s
statements that it found that the Department proved its allegations that respondent sexually abused
INW, coupled with its decision to terminate respondent’s parental rights to all three children at the
initial disposition, shows that the trial court understood that it had the authority to order termination
at the initial disposition under the exception for sexual assault. See MCL 712A.19a(2)(a). For
that exception, the Legislature stated that the Department must make reasonable efforts to reunify
the child and family unless there is a “judicial determination” that reasonable efforts need not be
made. MCL 712A.19a(2). The Legislature further stated that reasonable efforts are not required
when there has been a “judicial determination that the parent subjected the child to aggravated
circumstances” within the meaning of MCL 722.638(1) or (2). See MCL 712A.19a(2)(a).
Under MCL 722.638(1)(a)(ii), the Legislature provided—in relevant part—that an
aggravated circumstance included when a parent has abused the child, or the sibling of a child, and
the abuse included “[c]riminal sexual conduct involving penetration, attempted penetration, or
assault with intent to penetrate.” In this case, the trial court stated that the Department proved the
allegations of sexual abuse stated in its petitions by a preponderance of the evidence and
specifically found that it amounted to sexual abuse. The trial court’s statements and findings were
sufficient to establish that respondent engaged in conduct that fell within the conduct described
under MCL 722.638(1), and that the children were either the child subjected to the abuse, or
siblings of a child subjected to the abuse. Therefore, the trial court made findings that established
that the exception stated under MCL 712A.19a(2)(a) applied to each of the children.
Respondent maintains that the trial court erred because the trial court failed to specifically
find that there were “aggravated circumstances,” or find that the Department had no obligation to
make reasonable efforts. In the absence of such specific findings, he argues, the trial court had no
authority to order termination at the initial disposition.
The Legislature did not specify detailed procedures for applying MCL 712A.19a(2).
Rather, the Legislature referred broadly to a “judicial determination” that an exception applied
and—for purposes of applying the exception stated under MCL 712A.19a(2)(a)—it also referred
to a “judicial determination” that there were aggravated circumstances. See MCL 712A.19a(2)
and MCL 712A.19a(2)(a). Broadly speaking, when one refers to a judicial determination, one is
referring to a decision on a disputed matter that was made by a court. See, e.g., People v Solloway,
316 Mich App 174, 185; 891 NW2d 255 (2016) (noting that a statute is not vague if its meaning
has been clarified by judicial determinations). Moreover, although the better practice might be for
the trial court to identify the relevant statutory exception by name or to frame its “judicial
determination” by mirroring the statutory language, our Supreme Court has not in the past required
trial courts to use “magic words” or formulaic pronouncements when making a determination
required by statute. See, e.g., People v Babcock, 469 Mich 247, 259 n 13; 666 NW2d 231 (2003).
Instead, trial courts are required to make brief, definite, and pertinent findings and conclusions on
contested matters. See MCR 3.977(I)(1).
As this Court has explained, a trial court adequately justifies its determination when the
record shows that the court was aware of the issues, correctly applied the law, and when a more
detailed explanation would not further appellate review:
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The Department argues that the Court of Claims did not make sufficient
factual findings to justify its determination that the Department’s defense was
frivolous. Court rules require trial courts to place findings of fact and conclusions
of law on the record. Findings of fact are sufficient if they are brief, definite, and
pertinent, and it appears that the trial court was aware of the issues in the case and
correctly applied the law, and where appellate review would not be facilitated by
requiring further explanation. [Ford Motor Co v Dep’t of Treasury, 313 Mich App
572, 589; 884 NW2d 587 (2015) (quotation marks, citations, and alterations
omitted).]
It was evident from the lower court proceedings that the Department sought termination at
the initial disposition, and did so in relevant part on the basis of its allegations that respondent
sexually abused INW and her siblings were in danger of similar abuse. The trial court’s findings
demonstrate that it resolved the dispute over the allegations of sexual abuse in the Department’s
favor. When the findings are coupled with the trial court’s determination that the Department
established grounds for terminating respondent’s parental rights at the initial disposition, it is
apparent that the trial court made a judicial determination that the exception stated under MCL
712A.19a(2)(a) applied to the terminations at issue.
Respondent in part relies on two orders by our Supreme Court for the proposition that the
trial court must specifically identify the relevant exception or it will be precluded from ordering
termination at the initial disposition.
In In re Simonetta, 507 Mich 943, 943; 959 NW2d 170 (2021), our Supreme Court ordered
a remand to the trial court to order the Department to make reasonable efforts or “articulate a
factual finding based on clear and convincing evidence that aggravated circumstances exist such
that services are not required.” Notably, the Supreme Court’s order suggested that the trial court
had not adequately identified the facts that supported its determination, which was consistent with
ordering the trial court to “articulate” its factual finding. Id. There is no indication that the
Supreme Court intended to impose a bright-line rule that all trial courts must specifically state on
the record that it finds that the Department proved that a particular exception applied.
In re Smith-Taylor, ___ Mich ___, ___; 969 NW2d 61 (Mich, 2022), is even less helpful.
In that order, the Supreme Court ordered the Department to answer an application for leave to
appeal and address, in relevant part, whether “the record supports a finding that, as to the
respondent, ‘[t]here is a judicial determination that the parent has subjected the child to aggravated
circumstances,’ MCL 712A.19a(2)(a)” and “whether, absent such a finding, the Department
satisfied its obligation to make ‘[r]easonable efforts to reunify the child and family’ under MCL
712A.19a(2) despite its failure to provide the respondent with a case plan.” Id. The Court’s
decision to compel the Department to answer those questions does not establish a requirement that
trial courts make the judicial determinations required under MCL 712A.19a(2) in any particular
way. Moreover, after the Department complied with the order, the Supreme Court reversed. In re
Smith-Taylor, ___ Mich ___; 971 NW2d 657 (2022) (Docket No. 163725) (entered April 8, 2022).
In doing so, the Supreme Court noted that this Court misconstrued the trial court’s findings of fact.
Id. at ___. More specifically, the Supreme Court noted that the trial court determined that there
were no aggravating circumstances. Id. at ___. The Supreme Court did not reverse because the
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trial court failed to articulate its determination in a particular manner or using a specified formula.
Id. at ___.
Respondent has not demonstrated that the trial court had to make its determinations through
formulaic pronouncements or specific citations to the exceptions stated under MCL 712A.19a(2).
Rather, the trial court’s determinations were sufficient if the record showed that the trial court was
aware of the issue concerning the exceptions stated under MCL 712A.19a(2), resolved the dispute,
and supported its resolution with adequate factual findings to permit appellate review. See
MCR 3.977(I)(1) and (3); Ford Motor Co, 313 Mich App at 589. The record adequately
established these criteria. The trial court was aware that the Department sought termination at the
initial disposition and that the Department justified that request in part on the basis of its allegations
that respondent sexually abused INW, which implicated the potential that he might abuse the other
children. The trial court plainly understood that the parties disputed the facts underlying the
allegations of sexual abuse and resolved the factual dispute in the Department’s favor. It then
determined that termination at the initial disposition was proper. Taken together, the only logical
conclusion is that the trial court determined that respondent subjected INW to the aggravated
circumstances identified under MCL 722.638(1) within the meaning of the exception provided by
MCL 712A.19a(2), and concluded that the Department had no obligation to make reasonable
efforts given the resolution of the factual dispute. Consequently, respondent has not shown that
the trial court plainly erred in its application of the law governing the authority to terminate
parental rights at the initial determination, and, because the record showed that the trial court
followed the statutory criteria, respondent has similarly failed to establish that the trial court’s
failure to follow the criteria amounted to plain constitutional error. See In re Utrera, 281 Mich
App at 8-9.
Respondent also asserts that, if this Court concludes that the trial court adequately
determined that the exception stated under MCL 712A.19a(2)(a) applied, it nevertheless clearly
erred when it made that determination because there was no evidence that respondent sexually
penetrated INW, attempted to sexually penetrate her, or assaulted her with the intent to sexually
penetrate her. See MCL 722.638(1)(a)(ii). The record does not support respondent’s assertion.
The Legislature identified the types of abuse that will constitute aggravated circumstances
within the meaning of MCL 712A.19a(2)(a). In relevant part, such abuse involves abuse of a child
or a sibling of a child that includes “[c]riminal sexual conduct involving penetration, attempted
penetration, or assault with intent to penetrate.” MCL 722.638(1)(a)(ii). By referring to criminal
sexual conduct, the Legislature stated its intent to incorporate the statutes that criminalize sexual
conduct. The statutes criminalizing sexual conduct define sexual penetration as any “intrusion,
however slight, of any part of a person’s body or of any object into the genital or anal openings of
another person’s body[.]” MCL 750.520a(r). This Court has held that evidence that permits an
inference that the defendant intruded between the victim’s labia satisfies the element of
penetration. See People v Lockett, 295 Mich App 165, 188; 814 NW2d 295 (2012).
INW testified about the first incident in which respondent sexually assaulted her. She
stated that she had just gotten out of the shower and was nude. She stated that respondent began
rubbing lotion on her, and at first, it seemed normal. Then he began rubbing her butt. Eventually,
he moved his hand to her front privates—the private part from which she urinated. He began
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rubbing her there too. His hand, she said, no longer had lotion on it. She stated that the rubbing
with his hand happened for a while, and he seemed to be enjoying it.
Although INW did not directly state that respondent’s hand or fingers penetrated her labia
majora, the way that she described the incident permitted an inference that his hand or fingers
separated her labia majora. She stated that he rubbed her front genitals for a while and that he
smiled and seemed to enjoy it. She also stated that his hand no longer had lotion on it when he
rubbed her where she pees. She described the earlier rubbing as normal, but she stated that this
rubbing was not like that and she froze. The statement that respondent’s hand no longer had lotion,
that he rubbed her for some time, that she froze, and that it was no longer normal strongly suggested
that he separated the labia. This evidence was sufficient for the trial court to infer that INW was
describing sexual penetration. See id.; see also MCL 722.638(1)(a)(ii).
Even if that were insufficient, INW’s testimony about the other incidents permitted an
inference that respondent assaulted INW with the intent to penetrate her. INW testified that
respondent grabbed her on several occasions and held her while she resisted. He then forcibly
rubbed her butt and, on another occasion, her front private part. The evidence that he forcibly
restrained a small child while he rubbed her butt and front private part on more than one occasion
permitted an inference that he had the intent to penetrate her sexually at some point in the assaults
even though he did not carry out his intentions. INW’s testimony was sufficient to support a
determination that there were aggravated circumstances within the meaning of MCL
722.638(1)(a). We are not left with the definite and firm conviction that the trial court erred to the
extent that it found that respondent either did penetrate INW’s labia or intended to do so at some
point when he assaulted her. See In re Gonzales/Martinez, 310 Mich App at 430-431.
The trial court also did not clearly err to the extent that it found that the Department did
provide some services to respondent and that he did not benefit from them. The Department
presented evidence that it referred respondent to a class on sexual abuse, but he refused to
participate in it. It also referred him to a parenting class and a class on domestic violence.
Respondent did not participate in those classes because he stated that he had recently completed
similar classes. A Department caseworker testified, however, that she felt respondent would have
benefited from retaking that class. She also testified that she referred respondent to counseling,
which he was doing, but she felt he was not benefiting from it. She explained that respondent had
focused the counseling on his feelings about what was happening and was not addressing the
problem of sexual abuse.
This testimony established that the Department provided respondent with relevant services
and that he chose not to participate in some services and did not benefit from others in a way that
would rectify the conditions that led to the adjudication. A parent’s failure to benefit from a service
is evidence that the parent will again endanger children left in his or her care. In re Trejo, 462
Mich 341, 346 n 3; 612 NW2d 407 (2000). The trial court did not clearly err when it found that
the Department provided respondent with some services, which were reasonable, that he did not
benefit from them, and that his failure to benefit from them was evidence that he would endanger
the children by engaging in behaviors that the services were intended to correct. See In re
Gonzales/Martinez, 310 Mich App at 430-431.
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Respondent also argues that the trial court clearly erred when it found that the Department
had established grounds for terminating his parental rights under MCL 712A.19b(3)(i) because the
undisputed evidence showed that he rectified the conditions that led to the termination of his
parental rights to Holt. The trial court did not, however, find that the Department proved that
ground for termination. The trial court stated that it found that the Department had proved by clear
and convincing evidence grounds for terminating respondent’s parental rights to the children under
MCL 712A.19b(3)(b)(i) and (j). Because the trial court did not terminate respondent’s parental
rights under MCL 712A.19b(3)(i), there is no error involving that ground to review.
Respondent has not identified any errors with the trial court’s findings or determination
that the Department established grounds to terminate his parental rights to the children under
MCL 712A.19b(3)(b)(i). Therefore, we need not address whether the trial court erred in any
respect when it terminated respondent’s parental rights on that ground. Additionally, because the
Department only had to establish one ground for termination, we need not address his claims of
error involving the trial court’s determination that the Department established grounds for
terminating his parental rights under MCL 712A.19b(j). See In re Trejo, 462 Mich at 360.
Respondent has not shown that the trial court plainly erred when it applied the law and
determined that the Department could properly seek termination at the initial disposition. He has
also not shown that the trial court clearly erred when it determined that the Department had
established at least one statutory ground for terminating his parental rights to each of the children.
II. BEST INTERESTS
A. STANDARD OF REVIEW
Respondent also argues that the trial court clearly erred when it found that termination was
in the best interests of each child. This Court reviews the trial court’s factual findings underlying
its application of the law for clear error. See In re Gonzales/Martinez, 310 Mich App at 430. A
finding is clearly erroneous when this Court is left with the definite and firm conviction that a
mistake has been made. Id. at 430-431.
B. ANALYSIS
Once the trial court found that the Department had established one or more grounds for
termination, the trial court had to terminate respondent’s parental rights to the children if it found
that termination was in each child’s best interests. See MCL 712A.19b(5). The focus is on the
children at the best-interest stage of the proceedings—not the parent. See In re Moss, 301 Mich
App 76, 87; 836 NW2d 182 (2013). When considering the children’s best interests, the trial court
had to weigh all the evidence and consider a variety of factors:
To determine whether termination of parental rights is in a child’s best interests,
the court should consider a wide variety of factors that may include the child’s bond
to the parent, the parent’s parenting ability, the child’s need for permanency,
stability, and finality, and the advantages of a foster home over the parent's home.
The trial court may also consider a parent’s history of domestic violence, the
parent’s compliance with his or her case service plan, the parent’s visitation history
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with the child, the children’s well-being while in care, and the possibility of
adoption. [In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014)
(quotation marks and footnotes omitted).]
The trial court also had to independently consider the best interests of each child. See In
re Olive/Metts, 297 Mich App 35, 42; 823 NW2d 144 (2012). It was not, however, required to
make redundant factual findings. In re White, 303 Mich App at 716. It only had to address
separately significant differences between the children’s best interests, if there were any. Id.
at 715.
The trial court identified various factors that were important to the best-interest
determinations and identified whether the evidence concerning each factor demonstrated that
termination was in the best interests of the child. The trial court found that INW had no bond with
respondent—or, if she did have a bond, it was a trauma bond that had to be broken. The court also
noted that respondent did not have parenting time with INW since 2018, and had not consistently
paid support. The court stated that the evidence showed that INW needed a stable home; she
needed to know that respondent was not going to be constantly filing motions to change parenting
time or custody, and would not be subjected to sexual abuse. The trial court further found that
respondent had refused to take a class on sexual abuse and had not participated in counseling that
was child-centered. As a result, he had not made any progress on the problem that led to the
adjudication. On this record, the trial court did not clearly err when it found that termination was
in INW’s best interests. See In re Gonzales/Martinez, 310 Mich App at 430-431.
The same evidence also tended to support a finding that it was in the best interests of GC
or GTC to terminate respondent’s parental rights to them. The evidence that respondent had not
made any progress with the problem of sexual abuse tended to favor termination because it
suggested that respondent might harm the younger children as well. That danger was particularly
strong for GC, who was about the same age as INW when respondent began abusing her. Although
GTC was younger and male, the evidence that respondent refused to take responsibility for his
actions or participate in services designed to address those behaviors implicated his ability to safely
parent even GTC. The trial court did not clearly err when it found that those factors favored
termination. See id.
The trial court also stated that respondent had not had parenting time with any of the
children since the Department filed its petitions because the Department had sought termination at
the initial disposition, which weighed in favor of termination under the best-interest determination.
And it found that GC had a weak bond with respondent. The court acknowledged that it was
unknown whether respondent had a bond with GTC. The court thought it telling, however, that
respondent tried to entice GC’s mother into testifying on his behalf by offering to stop fighting her
attempts to regain custody of GC. The court felt that that evidence gave it “serious concerns
regarding general parenting ability” because respondent was willing to “barter with the child’s
custody situation.” The trial court also cited the evidence that respondent used the courts to pull
GC from her school and away from her friends midyear as part of his custody battle with GC’s
mother. The court opined that respondent did that to assert control rather than out of concern for
GC’s best interests. This evidence, the court explained, showed that the children needed stability
that respondent was not willing to let them have. The court further recognized that GC and GTC
were young and needed stability sooner rather than later. The court stated that they should not “be
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required to wait for the parent to rectify [the] conditions” that caused them to come into the court’s
jurisdiction. Because respondent refused to accept responsibility, the court felt that the need for
permanence and stability favored a finding that termination was in the best interests of GC and
GTC as well. On this record, we are not left with the definite and firm conviction that the trial
court erred when it made that finding. See id.
Respondent has not shown that the trial court clearly erred when it found that termination
was in the best interests of all three children.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEW
Finally, respondent argues that the trial court abused its discretion when it denied his
motion for reconsideration or a new trial premised on his assertion that he did not receive effective
assistance of counsel. This Court reviews a trial court’s decision on a motion for reconsideration
for an abuse of discretion. See Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903
(2009). This Court also reviews for an abuse of discretion a trial court’s decision on a motion for
a new trial. See Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001). A trial
court abuses its discretion when its decision falls outside the range of principled outcomes.
Corporan, 282 Mich App at 605-606. However, this Court reviews de novo any questions of law
underlying its decision. See Kelly, 465 Mich at 34.
B. ANALYSIS
Respondent had a statutory right to the effective assistance of counsel during the
adjudication trial and termination hearing. See MCL 712A.17c(4); MCR 3.915(B)(1)(b). When
examining a claim of ineffective assistance of counsel in a termination proceeding, this Court
applies by analogy the principles of ineffective assistance of counsel developed under the criminal
law. See In re Martin, 316 Mich App 73, 85; 896 NW2d 452 (2016). Accordingly, to establish
the right to a new trial premised on ineffective assistance of counsel, respondent had to show that
“(1) counsel’s performance was deficient, falling below an objective standard of reasonableness,
and that (2) the deficient performance prejudiced the respondent.” Id.Respondent argued in the trial court—and continues to argue on appeal—that trial
counsel’s failure to investigate and call various witnesses for his defense fell below an objective
standard of reasonableness. Respondent’s trial counsel had an obligation to conduct a reasonable
investigation to support respondent’s defense; counsel had to “make reasonable investigations or
to make a reasonable decision that makes particular investigations unnecessary.” People v
Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012) (quotation marks and citation omitted).
The failure to conduct an adequate investigation is an omission that falls below an objective
standard of reasonableness under prevailing professional norms. Id. at 52-53.
In the affidavit that he submitted to the trial court in support of his motion, respondent
asserted that trial counsel did not call witnesses that he would have liked to have called. He did
not, however, name those witnesses or present evidence that the witnesses were ready and willing
to testify on his behalf. He also did not present any evidence to establish the content of their
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proposed testimony beyond stating that the unnamed witnesses would have testified in his favor.
On appeal, he states that he could have called his sister and his mother to testify that he was never
alone with INW. However, he has not presented an affidavit from either proposed witness that
established that she would in fact have testified favorably about him.
Respondent had the burden to establish the factual predicate of his claim that he did not
receive the effective assistance of counsel. See People v Odom, 327 Mich App 297, 314; 933
NW2d 719 (2019). In the absence of any support for the contention that the witnesses would have
testified and would have testified favorably to the defense, this Court cannot conclude that trial
counsel’s failure to investigate or call the witnesses amounted to ineffective assistance. See People
v Pickens, 446 Mich 298, 327; 521 NW2d 797 (1994). Without such evidence, respondent cannot
establish that the failure to call the witnesses prejudiced his trial. See People v Carll, 322 Mich
App 690, 703; 915 NW2d 387 (2018).
Respondent has not shown that the trial court’s decision to deny his motion fell outside the
range of principled outcomes. See Corporan, 282 Mich App at 605-606.
IV. CONCLUSION
Respondent has not identified any errors in the adjudication or termination hearing that
warrant relief.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Christopher M. Murray
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