Opinion
No. 346893
07-23-2019
In re B. R. BAHAM, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Van Buren Circuit Court Family Division
LC No. 17-018872-NA Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ. PER CURIAM.
Respondent-father appeals as of right the order terminating his parental rights to the minor child, BRB, under MCL 712A.19b(3)(c)(i) (failure to rectify conditions of adjudication); MCL 712A.19b(3)(h) (children would be deprived of normal home for more than two years because of parent's incarceration); and MCL 712A.19b(3)(j) (reasonable likelihood that child will be harmed if returned to parent). For the reasons set forth in this opinion, we affirm.
This matter originated when the minor child at issue in these proceedings was BRB was taken into custody in October 2017 and placed with a relative-caregiver, with whom the minor child was already living. The minor child was eight months old when initially taken into custody. Shortly thereafter, respondent-father signed an affidavit of parentage in February 2018, and then pleaded guilty to three separate felonies, including felony controlled substances operating/maintaining a lab involving methamphetamine, unlawful driving away, and assaulting/resisting/obstructing a police officer. While incarcerated, father did not request any information regarding the minor child or attempt to make contact or create a bond with the minor child. Although father was in a relationship with mother when she became pregnant, he was in jail for most of her pregnancy. Father was initially released from jail when the minor child was three months old, and he lived with mother and the minor child for approximately one month. At that time, mother and father "got in a fight," which resulted in mother moving out. Father saw the minor child again one time after that incident until he was incarcerated again on new criminal charges. Father has remained incarcerated since that time and has not seen the minor child. At the termination proceedings, father testified that he only sent three letters to the minor child during the entirety of the proceedings. He did not contribute to the care of the minor child during that time. Father was incarcerated at the time of the termination trial, with the earliest possible release date of April 2021.
Pertinent to this appeal, at each stage of the proceedings, the trial court found that the lawyer-guardian ad litem (L-GAL) had complied with the requirements of MCL 712A.17d. As previously stated, the minor child was eight months old when initially taken into custody and was 21 months old at the time father's rights were terminated. The record reflected that the L-GAL spoke with the child's relative-caregiver, with whom the minor child was placed, on several occasions. The L-GAL's notes reflected that the minor child was doing well and all the minor child's needs were being met.
The trial court determined that petitioner proved the statutory bases for termination pursuant to MCL 712A.19b(3)(c)(i), (h), and (j) by clear and convincing evidence. Additionally, the trial court determined that termination of father's parental rights was in the minor child's best interests on the basis of the minor child's need for permanency, his lack of bond with father, and the advantages of his preadoptive, foster-home placement. The court entered an order terminating father's parental rights to the minor child. This appeal then ensued.
On appeal, father argues that the minor child was denied the effective assistance of counsel. The right to counsel guaranteed by the United States and Michigan Constitutions, US Const, Am VI; Const 1963, art 1, § 20, is the right to effective assistance. People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). The juvenile court is required to appoint an attorney for the child in child protective proceedings. MCL 712A.17c(7). The constitution only explicitly guarantees the right to counsel in criminal proceedings, but the right to due process also indirectly guarantees assistance of counsel in child protective proceedings. Therefore, the doctrines of effective assistance of counsel developed in the context of criminal law apply by analogy in child protective proceedings. In re EP, 234 Mich App 582, 598; 595 NW2d 167 (1999), overruled on other grounds In re Trejo Minors, 462 Mich 341, 353 n 10; 612 NW2d 407 (2000). As this Court stated in EP, 234 Mich App at 598:
[C]onstitutional protections are generally personal and cannot be asserted vicariously, but rather only " 'at the instance of one whose own protection was infringed.' " A plaintiff must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties. Because the right to effective assistance of counsel is a constitutional one, it is personal to the child and respondent may not assert it on behalf of the child. [Citations omitted.]
As an initial matter, we find that, as father admits in his appellant brief, father lacks standing to challenge the effectiveness of the minor child's attorney. Consequently, because father does not have standing, we decline to address the merits of his argument. However, even if we were to decide father's claims on their merits, we would find them baseless. Father faults the L-GAL for not meeting with the minor child, though we do not know what type of conversation father expected the L-GAL to have with a twenty month old infant. Additionally defendant asserts, without citations to the record, that the L-GAL failed to meet their statutory requirements, and accordingly, "there is a reasonable probability that the result of the proceedings would have been different." Here, the record is contrary to father's assertions. As previously stated, the trial court found that the L-GAL complied with their statutory requirements. Father does not specifically state how these findings were erroneous. Hence, even presuming father has standing to assert this claim, we cannot find that evidence counsel's representation fell below an objective standard of reasonableness. Pubrat, 451 Mich at 594. Accordingly, father is not entitled to relief. Affirmed.
/s/ David H. Sawyer
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro