Opinion
No. 341807
07-19-2018
In re CRAFARD, Minors.
UNPUBLISHED Roscommon Circuit Court Family Division
LC No. 16-723195-NA Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ. PER CURIAM.
The circuit court terminated respondent-father's parental rights to his two young sons under various statutory factors based on his sexual abuse of the children. The court failed to advise respondent of his right to be adjudicated by a jury and his attorney waited until two weeks before the trial to make his demand. The court did err, but through his inaction, counsel waived respondent's statutory right to a jury trial. Respondent further claims that he was denied the effective assistance of counsel in these proceedings, but his claims lack merit. We affirm.
I. BACKGROUND
Respondent's two sons live with their mother, her fiancé, and his two children. On August 26, 2015, Leanna Richards, a home-based family specialist, visited the family to work with the fiancé's children, who had been abused by their mother. While reviewing a "good touch bad touch" coloring book with the children, respondent's elder son spontaneously disclosed oral and anal sexual abuse by respondent. The following day, the child repeated the allegations during a child forensic examination conducted by Rebecca Yuncker.
The Department of Health and Human Services (DHHS) waited until August 2016 to file a petition to take jurisdiction over the children and to terminate respondent's parental rights. Respondent's parenting time was suspended and the Clare County prosecutor filed criminal charges against him. Following the initiation of the child protective proceedings, the police discovered that the offenses actually occurred in Midland County. The Clare County charges were dropped after the preliminary examination based on the lack of jurisdiction. The Midland County prosecutor subsequently declined to charge respondent. Because of the prosecutorial delays, the parties agreed to a series of adjournments in these proceedings and the combined adjudication/termination trial was postponed until December 14, 2017.
At an October 26, 2017 pretrial hearing, the court inquired, "And we are scheduling this for a bench trial one day, correct?" The DHHS replied, "I think one day's sufficient, your Honor." The children's GAL simply stated, "Yes." Respondent's attorney, Charles Moses, made no comment, and neither did respondent. The written order issued following the hearing gave a timeline leading up to the trial. The order indicated that the deadline to provide jury instructions was "[n]ot applicable in this case."
On November 30, 15 days before trial, the final pretrial was conducted before a Friend of the Court referee. The referee noted that no one had requested a trial before the judge so she would conduct the proceeding. The prosecutor and GAL agreed. Respondent's substitute counsel, Michael Edwards, interjected:
Judge, well [respondent] has informed me that he would like to petition the Court for a jury trial. . . . [D]ad has questions that need to be answered by his attorney who's not here. I don't know if it would be prudent to continue with a tr[ia]l scheduled in about fourteen days.The referee expressed confusion as the "jury issue was addressed, and a time limit was given and I believe we are past that time limit." Edwards agreed that a respondent must request a jury within 21 days of the trial and the time limit had passed. Accordingly, he asked the court to again adjourn the trial. The prosecutor objected, noting that Moses had ample time to file a jury demand and his failure to do so amounted to a waiver.
The referee indicated that a pretrial order designating the matter for a bench trial had issued October 26 and that respondent had not objected or filed any motion to demand a jury trial. She ruled that Edwards' request at the November 30 pretrial hearing was untimely and therefore was denied.
Respondent then requested substitute counsel. He informed the court that he had not spoken to Moses since the last hearing. Respondent claimed that he provided his attorney with a list of potential witnesses but counsel had spoken to none of them and failed to file a proposed trial witness list with the court. The court denied this motion as well, concluding that the proceedings should be delayed no further.
The matter proceeded to a bifurcated bench trial before the referee on December 14, 2017, after which the court took jurisdiction over the children and terminated respondent's parental rights.
II. PROCEDURAL DUE PROCESS
Respondent now contends that he was denied his right to due process because he was not advised of his right to a jury trial. We review de novo a parent's due process challenge in a child protective proceeding. In re Sanders, 495 Mich 394, 403-404; 852 NW2d 524 (2014).
The right to a jury trial in child protective proceedings exists only at the adjudicative stage, id. at 405-406, and is governed by MCR 3.911. The court rule provides, in relevant part:
(A) Right. The right to a jury in a juvenile proceeding exists only at the trial.
(B) Jury Demand. A party who is entitled to a trial by jury may demand a jury by filing a written demand with the court within:
(1) 14 days after the court gives notice of the right to jury trial, or
(2) 14 days after an appearance by an attorney or lawyer-guardian ad litem, whichever is later, but no later than 21 days before trial.
The court may excuse a late filing in the interest of justice.
While in the criminal context the right to a jury trial is constitutional, it is a statutory right in child protection proceedings, which are civil in nature. Sanders, 495 Mich at 418 n 15, citing MCL 712A.17(2). In civil cases, the right to a jury trial "shall be waived . . . unless demanded by one of the parties in the manner prescribed by law." Const 1963, art 1, § 14.
Respondent implies that he could not have demanded a jury trial or waived that right by failure to raise it because the court did not advise him of his right. MCR 3.965(B)(7) provides that at the preliminary hearing, "[t]he court must advise the respondent of the right to trial on the allegations in the petition and that the trial may be before a referee unless a demand for a jury or a judge is filed pursuant to MCR 3.911 or 3.912." The court clearly failed to advise respondent of his right to a jury trial at the preliminary hearing. This was error on the court's part.
But, as noted, this error could be waived. And respondent did so here by failing to request a jury at least 21 days before the trial date. The referee noted at the October 26, 2017 hearing, at which respondent was present, that no jury trial had been requested. Accordingly, respondent had enough information, and certainly enough time, to assert his right. The failure to do so until 15 days before trial amounted to waiver. See In re Hubel, 148 Mich App 696, 699-700; 384 NW2d 849 (1986) (holding that "the respondent parents waived their rights to a jury trial for the adjudicative phase of the [termination] proceedings . . . because [they] failed to file a timely written jury demand through their attorneys or on their own after the issuance of three summonses, notifying them of their right to a jury trial").
Additionally, the summons served on respondent contained an "advice of rights" stating: "If you want a jury to decide the facts at the trial, you must file a written request with the court within 14 days after the court gives notice of the right to jury trial or 14 days after an appearance by an attorney, whichever is later, but no later than 21 days before trial." --------
Even if a respondent fails to make a timely jury demand, the court may excuse the late demand "in the interest of justice." MCR 3.911(B). This is a discretionary decision, and the court did not abuse its discretion in this case. Although the court should have advised respondent of his right to a jury trial at the September 15, 2016 preliminary hearing, respondent was on notice through the summons and yet did not express any desire for a jury trial until November 30, 2017. Respondent was present and represented by counsel at all court proceedings and could have asserted his right at any time. This case was delayed for more than a year, with respondent's agreement, while the prosecutor pursued criminal charges against respondent. The need to move this case forward was sufficient reason to deny respondent's belated request for yet another adjournment.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, respondent contends that his trial counsel was ineffective in failing to demand a jury trial, to produce any witnesses on his behalf at the combined adjudication/termination trial, or to present any substantial defense. "In analyzing claims of ineffective assistance of counsel at termination hearings, this Court applies by analogy the principles of ineffective assistance of counsel as they have developed in the criminal law context." In re Simon, 171 Mich App 443, 447; 431 NW2d 71 (1988). At the November 30, 2017 hearing, respondent requested substitute counsel, noting Moses's failure to demand a jury trial and to follow up on his proposed witnesses. The issue went no further, however. Respondent did not actually claim ineffective assistance of counsel until this appeal. Accordingly, our review is limited to mistakes apparent on the existing record. In re Ayres, 239 Mich App 8, 23; 608 NW2d 132 (1999), superseded in part on other grounds as stated in People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009).
A respondent's claim of ineffective assistance includes two components: "First, the [respondent] must show that counsel's performance was deficient. . . . Second, the [respondent] must show that the deficient performance prejudiced the defense." Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To establish the deficiency prong, a respondent must show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms." People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). With respect to the prejudice aspect, the respondent must demonstrate a reasonable probability that but for counsel's errors, the result of the proceedings would have differed. Id. at 663-664. "Effective assistance of counsel is presumed, and the [respondent] bears a heavy burden of proving otherwise." Id. "This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel's competence with the benefit of hindsight." People v Petri, 279 Mich App 407, 411; 760 NW2d 882 (2008) (quotations omitted).
Respondent first argues that trial counsel was ineffective because he failed to make a jury demand. In the criminal context, an attorney's advice to waive a jury trial is a matter of trial strategy. People v Davenport (After Remand), 286 Mich App 191, 197-198; 779 NW2d 257 (2009). In this regard, respondent contends that his attorney should have protected his due process rights by requesting a jury trial in the first instance. Respondent's right would have then been preserved and respondent could have withdrawn the right later if he chose. However, respondent makes no argument to establish that he was prejudiced by his attorney's failure to preserve his right to a jury. He does not contend that he actually would have proceeded before a jury or that a jury would have decided the matter differently. Accordingly, respondent has not established his right to relief.
Respondent next contends that his trial counsel failed to present any substantive defense, specifically noting that he did not call any witnesses. Respondent emphasizes that he gave his attorney a list of potential witnesses before trial and yet his counsel did not present a proposed trial witness list within the deadline provided by the court. At the trial, respondent's counsel indicated that he had no witnesses to call because "for whatever reason, they couldn't be here."
A respondent "necessarily bears the burden of establishing the factual predicate for his claim" of ineffective assistance of counsel. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Respondent did not present in the trial court the list of witnesses he allegedly gave to his attorney, and he has not presented the list on appeal. Respondent does not identify any potential witnesses or describe what their testimony would have been. He has provided no affidavits from the subject witnesses to counter his attorney's declaration that those witnesses "couldn't be" at the trial. Absent any evidence or even argument in this regard, respondent cannot establish that his attorney was ineffective.
Respondent raises additional challenges to his attorney's performance for the first time on appeal. He contends that his attorney should have objected to the DHHS's presentation of hearsay evidence against him, specifically Richards' and Yuncker's testimony regarding the older child's statements to them. Respondent's counsel made no meaningful response to the DHHS's pretrial motion to admit these statements.
MCR 3.971(C)(2)(a) permits the admission of a child's statements through other witnesses:
Child's Statement. Any statement made by a child under 10 years of age . . . regarding an act of child abuse, child neglect, sexual abuse, or sexual exploitation, as defined in MCL 722.622(f),(j),(w), or,(x), performed with or on the child by another person may be admitted into evidence through the testimony of a person who heard the child make the statement as provided in this subrule.
(a) A statement describing such conduct may be admitted regardless of whether the child is available to testify or not, and is substantive evidence of the act or omission if the court has found, in a hearing held before trial, that the circumstances surrounding the giving of the statement provide adequate indicia of trustworthiness. This statement may be received by the court in lieu of or in addition to the child's testimony.
Respondent does not contend that the subject evidence was somehow inadmissible under the court rule. Indeed, he asserts, "There does not seem to be any error in how this was done," referring to the motion hearing at which the court declared the statements admissible. Counsel cannot be deemed ineffective for "[f]ailing to advance a meritless argument or raise a futile objection." People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Respondent argues that the court rule also permitted his attorney to present exculpatory statements made by one child to impeach the inculpatory statements presented at trial. In this regard, respondent asserts that his counsel should have presented statements made by the child at respondent's Clare County criminal preliminary examination that contradicted the statements he made to Richards and Yuncker. However, the failure to present evidence is deemed ineffective only if it deprives a respondent of a substantial defense. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). It is clear from the record that counsel's strategy was to suggest that the child's statements were the product of coaching or were fabricated, especially in light of the physical examination, which showed no physical trauma. Although the preliminary examination testimony may have been helpful because it contained contradictory statements, it also contained answers that supported the allegations in the termination petition. Accordingly, respondent cannot establish that counsel performed deficiently or that he sustained the prejudice necessary to warrant relief.
Finally, respondent contends that counsel should have made some argument or presented some evidence to explain why the criminal charges were dismissed against him in Clare County after the preliminary examination and why Midland County decided not to pursue charges as evidence that he did not sexually abuse his sons. However, the court was on notice that the charges were dismissed in Clare County and the reason was not a mystery; the DHHS stated on the record that the charges were dropped for lack of jurisdiction. The court was also aware that the Midland County prosecutor declined to charge respondent.
In any event, "[t]he purpose of child protective proceedings is the protection of the child, while criminal cases focus on the determination of the guilt or innocence of the defendant." In re Brock, 442 Mich 101, 107-108; 499 NW2d 752 (1993). The relevant statutory grounds do not require that respondent be criminally convicted of a crime and the burden of proof is lower in child protective proceedings than in a criminal trial. MCL 712A.19b. Accordingly, the introduction of a piece of paper confirming that the charges had been dropped would have been unnecessary and irrelevant. Trial counsel is not ineffective for failing to take such action.
We affirm.
/s/ Amy Ronayne Krause
/s/ Elizabeth L. Gleicher
/s/ Anica Letica