Opinion
No. 345365
04-18-2019
In re DICKIE, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 17-001299-NA Before: LETICA, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ. PER CURIAM.
Respondent appeals as of right from the circuit court's order terminating his parental rights to the minor children pursuant to MCL 712A.19b(3)(b)(i) (children's sibling suffered injury or abuse from respondent), (g) (failure to provide proper care and custody), (j) (reasonable likelihood of harm if returned to respondent's care), and (k) (parent abused the child or a sibling of the child under aggravating circumstances). We affirm.
I. UNDERLYING FACTS
Respondent is the legal father of the two children at issue in this case (the Dickie children) and the putative father of their half-brother, JS. The Dickie children did not reside with respondent, but saw him almost every day while their mother worked.
The instant proceedings arose out of severe injuries JS suffered when he was three months old. JS was hospitalized, and his injuries included a subdural hematoma and retinal hemorrhaging in both eyes. Due to his injures, JS experienced seizures and was placed on a ventilator. During the investigation, respondent admitted to vigorously shaking JS, throwing him on a bed, and hitting him with a pillow several times, after which JS was unresponsive and respondent called 911. The Dickie children were present when JS sustained his injuries. Respondent was arrested, and he was ultimately criminally convicted, by a plea of no contest, of child abuse stemming from the incident. The petition in this matter alleged that, due to his severe abuse of JS, respondent presented a substantial risk of harm to the children. The petition also cited respondent's additional criminal history, including a recent domestic violence conviction for which respondent was on probation when he injured JS. Respondent admitted that statutory grounds existed for the trial court to assume jurisdiction over the Dickie children.
While respondent was incarcerated for his abuse of JS, he underwent a court-ordered Clinic for Child Study psychological evaluation. Due to respondent's pattern of impulsive and aggressive behavior, his poor operational judgment, and his "minimal insight and an absence of empathy" for his actions against JS, the evaluating psychologist recommended against reunification of the children with respondent. At the best-interests hearing, respondent testified that he was willing to participate in any services available to enable him to be a better father, that he felt badly that JS was injured, and that he was bonded with the children. Respondent did not believe termination of his parental rights was in the children's best interests. In contrast, the DHHS caseworker and the children's lawyer guardian ad litem stated that the children did not have "any real knowledge of their father." The trial court partially relied on the psychological evaluation's recommendation against reunification. As a result, the court found statutory grounds for terminating respondent's parental rights and that termination was in the best interests of the children. The trial court entered an order terminating respondent's parental rights, and this appeal followed.
II. DUE PROCESS
Respondent first argues that the trial court violated his "fundamental liberty interest in the care, custody, and management of his child[ren]," In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009) (quotation marks and citation omitted), on the theory that because the children's' mother was safe and competent, termination of his parental rights was not the "least restrictive option available." For a multitude of reasons, we disagree.
The state is precluded from depriving a parent of his or her liberty interest in the care and custody of a child without due process of law. In re Sanders, 495 Mich 394, 409; 852 NW2d 524 (2014); In re TK, 306 Mich App 698, 706; 859 NW2d 208 (2014). Because respondent did not raise this constitutional objection below, this issue is unpreserved and we review for plain error affecting respondent's substantial rights. In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011). Whether the trial court violated a parent's substantive due process rights presents an issue of law that we review de novo. In re TK, 306 Mich App at 703.
It has been conclusively determined in Michigan that each parent must be adjudicated separately, on his or her own individual merits or demerits, irrespective of the qualities or lack thereof displayed by another parent. See In re Sanders, 495 Mich at 413-420. In rejecting "the one-parent doctrine," our Supreme Court justly held that no parent may have his or her parental rights terminated on the basis of another parent's unfitness, no matter how egregious. The same logic and reasoning applies here: respondent is not entitled to a scintilla of credit or deference on the basis of another parent's fitness, either. It is true that a child's safe placement with a relative is a relevant consideration that weighs against termination. In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010); In re Olive/Metts Minors, 297 Mich App 35, 43; 823 NW2d 144 (2012). However, placement with a fit parent absolutely does not preclude termination of the parental rights of a parent who has been determined to be unfit. See In re SR, 229 Mich App 310, 316-317; 581 NW2d 291 (1998); In re Medina, 317 Mich App 219, 228-230; 894 NW2d 653 (2016). A parent whose parental rights have not been terminated may, after all, continue to have a harmful influence on a child irrespective of that placement; as, in fact, exemplified by the facts of this very case.
Respondent cites no Michigan law in support of his theory that a "least restrictive option" is a due process mandate, nor does he articulate how the parties or a court might go about determining and identifying any such "least restrictive option." In Michigan, a parent's due process rights are not protected by vague philosophical aphorisms, but rather by the concrete requirement that at least one of the statutory grounds for termination set forth in MCL 712A.19b(3) must be proved by clear and convincing evidence. In re B & J, 279 Mich App 12, 18, 22-23; 756 NW2d 234 (2008). If at least one of the grounds is properly established, "the liberty interest of the parent no longer includes the right to custody and control of the children[]" "and gives way to the state's interest in the child's protection." In re Trejo, 462 Mich 341, 355-356; 612 NW2d 407 (2000), abrogated in part on other grounds by statute, see In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). A child protective proceeding then proceeds to a best-interests analysis under MCL 712A.19b(5), under which termination may be avoided despite the establishment of grounds for termination. Id. at 354-356. The primary beneficiary of the best-interest determination is to be the child, not the parent. Id. at 356; In re Moss, 301 Mich App at 87; see also In re Brock, 442 Mich 101, 114-115; 499 NW2d 752 (1993) (although parents "have an important liberty interest in the management of their children that is protected by due process . . . the child's welfare is primary in child protective proceedings").
Significantly, respondent admitted below that several statutory grounds for termination were established, and nothing in respondent's brief on appeal suggests that he challenges any of those grounds. Although we therefore need not consider whether the trial court properly found any statutory grounds established by clear and convincing evidence, we briefly note that on this record, the trial court clearly did so. Accordingly, it follows that, because respondent's plea of admission, particularly in combination with the evidence, clearly and convincingly established statutory grounds for termination, the state did not arbitrarily terminate his parental rights in violation of his substantive due process right to the care and custody of his children. In re TK, 306 Mich App at 706; In re B & J, 279 Mich App at 23. Irrespective of whether the children were, in fact, in a suitable and safe home with their mother, termination did not violate respondent's constitutionally protected right to their care and custody because the state proved a statutory ground to terminate his parental rights by clear and convincing evidence. In re B & J, 279 Mich App at 23. The state is simply not required to search for a hypothetical "least restrictive option" or find excuses to perpetuate the harmful influence of an unfit parent in a child's life merely because the child is fortunate enough to have another parent or relative who is fit.
In sum, the state's action in terminating respondent's parental rights, which was supported by his own admissions clearly and convincingly establishing statutory grounds for termination under MCL 712A.19b(3), was not an arbitrary deprivation of his liberty interest in the custody and control of his children in violation of his substantive due process rights. In re TK, 306 Mich App at 706 ("The essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests."); In re B & J, 279 Mich App at 23. Termination of respondent's parental rights did not amount to plain error that affected his substantial rights. In re VanDalen, 293 Mich App at 135.
III. BEST-INTEREST DETERMINATION
Respondent next argues that the trial court erred in finding that termination of his parental rights is in the children's best interests. We disagree.
"[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App at 90. We review for clear error a trial court's determination that termination is in a child's best interests under MCL 712A.19b(5). In re Olive/Metts, 297 Mich App at 40-41; MCR 3.977(K). The reviewing court must give "due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004); MCR 2.613(C); MCR 3.902(A). "A trial court's decision is clearly erroneous '[i]f, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.' " In re Olive/Metts, 297 Mich App at 41, quoting In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
Respondent argues that the single incident of abuse was insufficient to establish that he posed a future risk of harm to the children. However, the severity of that abuse suggests otherwise. Additionally, the abuse occurred in the presence of the Dickie children and while respondent was on probation for a recent domestic violence conviction involving JS's mother, lending additional credence to the psychological evaluation noting respondent's history of anger and domestic violence, and his lack of insight and empathy. "It is 'appropriate for a trial court to evaluate a respondent's potential risk to the other siblings by analyzing how the respondent treated another one of his or her children[.]' " In re Hudson/Sword, 294 Mich App 261, 266; 817 NW2d 115 (2011); see also In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001). We are not persuaded that it was clearly erroneous for the trial court to conclude that respondent posed a very real threat to the children. Furthermore, because respondent would not be released from prison until at least late 2023, he would be unable to meaningfully parent the young children for a significant part of their childhoods, and he clearly could not provide permanency or stability for the children in the foreseeable future.
We are unimpressed with respondent's argument that his incarceration somehow weighs against termination because he will be physically incapable of harming the children during that time. Physical abuse is not the only possible way for respondent to harm the children, a parent's past conduct may be a reasonable predictor of future conduct, and the children need permanence and stability. We further think that an argument essentially amounting to, "the children will be safe because armed guards and a barbed-wire fence will prevent me from hurting them" is a poor commendation. --------
Respondent contends that he shared a "strong bond" with the children. There was some evidence of a bond between respondent and the children. Respondent testified that they saw him almost every day before he was incarcerated, they know him as their father, they call him "Daddy," and that the children's mother says they have a "decent relationship" with him. However, the children's GAL questioned the extent of the bond with respondent, noting their "very young" ages and that she did not observe that they had "any real knowledge of their father" and that "[t]hey just really don't know him." The caseworker also questioned the extent of the children's bond to respondent in light of their very young ages. Respondent also failed to visit the children when offered supervised visits, even prior to his incarceration. We are unpersuaded that any bond respondent had with the children could be described as "strong."
Respondent argues that termination would not benefit the children because they are in their mother's custody in a safe, suitable, and stable home. As noted, respondent correctly asserts that a child's placement with relatives weighs against termination. MCL 712A.1a(8)(a); In re Mason, 486 Mich at 164; In re Olive/Metts, 297 Mich App at 43. However, the children's biological mother is not a "relative" within the meaning of that term for purposes of MCL 712A.19a, and thus, the trial court was not required to consider the children's placement with their mother. In re Schadler, 315 Mich App 406, 413; 890 NW2d 676 (2016). Nevertheless, placement with their mother in a suitable and safe home did not overcome the evidence favoring termination. Termination would not only give the young children safety with respect to respondent, but would provide finality and permanency to the children, instead of waiting a minimum of more than five years for a possible reintroduction of respondent into their lives, at which point the children would be approximately eight and seven years old.
Respondent argues that the psychological examination was unreliable because the psychologist, who spent only twenty minutes with respondent, was "a minimally informed source" and there was "very little" evidentiary support for her conclusions. However, in addition to her discussion with respondent, the psychologist relied on information gathered from the case file pertaining to the petition and a case conference with the assigned caseworker in making a professional assessment. We do not find her to have been "minimally informed." Additionally, notwithstanding respondent's statements that he felt badly about what happened to JS and he had not intended to hurt him badly, the psychologist also noted that respondent "clearly omit[ted] details he considered disturbing in attempts to place himself [in] the most favorable light." We do not find the psychologist's conclusions unsupported. In any event, we must give due regard to the trial court's credibility determinations. In re BZ, 264 Mich App at 296-297. It is apparent that the trial court found the psychologist's opinion to be credible. We find no clear error in the trial court relying on the clinic evaluation in its best-interest determination.
In sum, considering the apparent lack of a significant bond between respondent and the children, the serious nature of the physical abuse perpetrated on their young half-brother while in their presence, for which respondent would remain in prison for a substantial part of their young childhood, and his lack of ability to safely parent the children as indicated by the clinic evaluation, the trial court did not clearly err in determining that termination was in the children's best interests. On this entire record, we conclude that termination of his parental rights to the children was appropriate.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Lastly, respondent argues that his trial counsel rendered ineffective assistance of counsel in his representation during the child protective proceedings. We disagree.
Respondent failed to preserve his claim of ineffective assistance for review because he did not move for an evidentiary hearing on, or otherwise raise, it before the trial court, and thus, review of his claim is limited to the existing record. In re AMB, 248 Mich App 144, 231-232; 640 NW2d 262 (2001); People v Thew, 201 Mich App 78, 90; 506 NW2d 547 (1993). "Whether a person has been denied effective assistance of counsel is a mixed question of law and fact." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2000). "Effective assistance of counsel is presumed, and a [respondent] bears a heavy burden to prove otherwise." People v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010). "The principles applicable to claims of ineffective assistance of counsel in the arena of criminal law also apply by analogy in child protective proceedings; therefore, it must be shown that (1) counsel's performance was deficient, falling below an objective standard of reasonableness, and that (2) the deficient performance prejudiced the respondent." In re Martin, 316 Mich App 73, 85; 896 NW2d 452 (2016).
Respondent first argues that his trial counsel rendered ineffective assistance by failing to present any defense to the statutory grounds for termination under MCL 712A.19b(3). Respondent personally testified to factual bases for admitting to the statutory grounds. Consequently, respondent's only possible claim of ineffective assistance would focus on whether his plea was voluntarily and understandingly made. Thew, 201 Mich App at 89. The record reflects that it was. Respondent made the admissions after consulting with his counsel; after being fully advised by the court of his rights, the nature of the proceedings, and the consequences of his plea admissions by the court; and after the court confirmed, through questioning respondent, that his plea was voluntary, knowing, and understanding. See MCR 3.971; Thew, 201 Mich App at 89-90. We find no basis for concluding that respondent's counsel failed to advise him of "the range and consequences of available choices" with respect to the permanent custody petition to enable him to make an intelligent and informed decision regarding his plea. See People v Jackson, 203 Mich App 607, 614; 513 NW2d 206 (1994).
In any event, even if respondent had chosen to defend against the allegations, his admissions could have been easily established by other admissible evidence, MCR 3.977(E)(3), such as his prior statements to shaking the children's sibling, his conviction and sentence for second-degree child abuse and child abuse in the presence of a child stemming from the incident of abuse, his recent conviction for domestic violence for which he was on probation at the time of the incident, and medical testimony establishing the nature and severity of JS's injuries. Considering the severe and life-threatening abuse respondent perpetrated on JS, it was clear that the children, who were also young and vulnerable, would be at a risk of harm or abuse, and be without proper custody, in respondent's care or presence. Respondent's serious abuse of his young son is "certainly probative" of how he will treat his other young children. In re Hudson/Sword, 294 Mich App at 266; In re AH, 245 Mich App at 84. We therefore find that it was objectively reasonable for respondent's trial counsel to decide not to contest the statutory grounds and focus instead on the best interests of the children. Furthermore, the significant evidence against respondent precludes any reasonable probability that the outcome of the termination proceedings would have been different if counsel had chosen to challenge the statutory grounds.
Respondent next argues that his trial counsel was ineffective because he failed to present a vigorous defense at the best-interest hearing. First, respondent asserts that his counsel should have offered evidence, such as testimony by the evaluating psychologist or "anyone else," to challenge the conclusion of the clinic evaluation, which he asserts was "flawed." However, counsel made the trial court fully aware of how much time the evaluating psychologist spent with respondent and highlighted the alleged inconsistencies in the report. The report itself, and its evidentiary support or lack thereof, speaks for itself. Respondent does not explain how he might have benefitted from any additional testimony from the psychologist or other witnesses. "Decisions regarding whether to call or question witnesses are presumed to be matters of trial strategy," People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012), and respondent has the "burden of establishing the factual predicate for his claim." People v Hoag, 460 Mich 1, 6; 594 NW2d 57, 59 (1999). Respondent has not overcome the presumption, and in the absence of an offer of proof, respondent has not demonstrated how his counsel's failure to secure testimony challenging the clinic evaluation prejudiced his case. In re Martin, 316 Mich App at 85.
Respondent next claims that his counsel was ineffective by failing to call any witnesses that could attest to the children's bond to him. For the same reasons described above, we disagree. Respondent testified to the strength of his bond with the children, and the children's mother testified at the preliminary hearing that respondent had a "decent" relationship with them. That testimony was before the trial court, which weighs all of the evidence within the entire record during the best-interest phase. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). Consequently, respondent was not deprived of his defense that termination was not in the children's best interests because of their bond to him. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) ("In general, the failure to call a witness can constitute ineffective assistance of counsel only when it deprives the defendant of a substantial defense."). Otherwise, respondent again fails to explain what testimony would have been provided by additional witnesses. Therefore, he has not established that he was prejudiced by counsel's failure to call those witnesses, or that counsel made an objectively incompetent strategic decision not to call them.
Affirmed.
/s/ Anica Letica
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra