Opinion
No. 343135
09-18-2018
In re E. L. D., Minor.
UNPUBLISHED Lenawee Circuit Court Family Division
LC No. 14-000085-NA Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ. PER CURIAM.
Respondent-father appeals as of right the February 20, 2018 order terminating his parental rights to the minor child, ELD, under MCL 712A.19b(3)(b)(i) (parent's act caused physical injury or abuse to child or sibling), (j) (reasonable likelihood that child will be harmed if returned to the parent), (k)(ix) (parent abused child or sibling and abuse included sexual abuse), and (n) (parent convicted of an enumerated offense and continuing parent-child relationship would be harmful to child). We affirm.
Following these termination proceedings, effective June 12, 2018, MCL 712A.19b(3)(n) was redesignated as MCL 712A.19b(3)(m). 2018 PA 58. --------
On October 17, 2017, the Department of Health and Human Services (DHHS) filed a petition requesting the termination of respondent-father's parental rights. The petition alleged that on January 12, 2017, ELD's mother reported to Adrian Police that she observed respondent on top of ELD and covered under a blanket. She believed respondent was having sexual intercourse with ELD. She observed that respondent and ELD did not have pants on and that ELD's shirt was pushed up above her waist. The petition further indicated that on January 13, 2017, ELD underwent a Sexual Assault Nurse Examination (SANE), which confirmed sexual abuse, and that on September 9, 2017, respondent was convicted of a felony criminal sexual conduct (CSC) offense. The petition alleged that ELD remained at risk when in respondent's care. At the preliminary hearing, respondent admitted to the allegations that he sexually abused ELD and that the sexual abuse was verified through a SANE. He also confirmed that he entered a no-contest plea to the charge of CSC. However, he denied that ELD remained at risk when in his care. The trial court authorized the petition and took jurisdiction over the child, who remained placed with her mother. Following a trial, the trial court determined that termination of respondent's parental rights was in ELD's best interests.
Respondent's sole argument on appeal is that counsel was ineffective where she did not subpoena and present witnesses to testify on his behalf. We disagree.
Respondents in a termination proceeding have the right to appointed counsel, and that right includes the right to have competent representation. In re Simon, 171 Mich App 443, 447; 431 NW2d 71 (1988). When a parent argues that he or she did not receive competent representation, "this Court applies by analogy the principles of ineffective assistance of counsel as they have developed in the criminal law context." Id. For a claim of ineffective assistance of counsel, the respondent must make a testimonial record in the trial court in connection with a motion for a new trial or an evidentiary hearing, People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999), and must establish the "factual predicate" for his or her claim, People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). Absent an evidentiary hearing, "this Court's review is limited to mistakes apparent from the record." People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). "Effective assistance of counsel is presumed, and the defendant bears a heavy burden to prove otherwise." People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). A respondent claiming ineffective assistance of counsel must demonstrate "that counsel's performance was below an objective standard of reasonableness . . . and there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." People v Scott, 275 Mich App 521, 526; 739 NW2d 702 (2007).
We note as an initial matter that respondent fails to cite any authority in support of his argument that he was deprived of the effective assistance of counsel. This Court is not required to unravel and elaborate on respondent's arguments and may deem the argument abandoned. People v Cameron, 319 Mich App 215, 232; 900 NW2d 658 (2017). In any event, respondent cannot establish that he was denied the effective assistance of counsel. As a general matter, choosing what witnesses to call is a matter of trial strategy, constituting ineffective assistance of counsel only when failure to do so "deprives the defendant of a substantial defense." People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (opinion by COOPER, J.). In this case, the record reflects that while counsel initially planned to call additional witnesses and sought an adjournment to do so, after testifying respondent personally declined the opportunity to present additional witnesses. Moreover, respondent has failed to establish that counsel's decision not to present additional witnesses deprived him of a substantial defense, particularly where respondent himself testified. Specifically, respondent testified about his bond with the child, his involvement in her life, and his desire to maintain a relationship with her. Respondent also informed the trial court about the services he was receiving while incarcerated.
The record reflects that respondent's counsel requested an adjournment of the termination proceedings because some witnesses, including respondent's mother, were not present to testify concerning some of the best-interest factors. Counsel conceded that she did not subpoena the witnesses because she believed that they would be amenable to attending court on respondent's behalf without the necessity of a subpoena. Although she had attempted to do so before the February 9, 2018 hearing, counsel was ultimately unsuccessful in contacting respondent's mother. After conferring with respondent, counsel indicated that the adjournment would be needed specifically due to the absence of respondent's mother. No further witnesses were discussed or requested. After conferring with counsel for all parties, the trial court indicated that it would allow a brief recess to allow counsel to contact respondent's mother again and to allow her to testify by telephone. The trial court further indicated that if contact could not be made, it would leave the proofs open to allow respondent's mother to testify at a subsequent hearing and have her evidence still be considered by the court.
Unable to make contact with respondent's mother, counsel subsequently requested that the proofs remain open to allow her to be subpoenaed, and a later date was scheduled for this purpose. However, at the completion of respondent's testimony, the trial court once again inquired of respondent's counsel whether she intended to call additional witnesses and counsel consulted with respondent, who clearly stated on the record that he did not want any other witnesses called. Thereafter, counsel informed the trial court that no other witnesses would be called to testify. Generally, a party may not intentionally relinquish his or her rights at the trial court level and then argue on appeal that the resultant action was error. People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). However, even setting aside any issue of waiver, respondent has not overcome the presumption that counsel's actions resulted from trial strategy. For example, after respondent (1) admitted during his testimony to sexually assaulting his young daughter while he was under the influence of alcohol and crack cocaine, and (2) testified that he and ELD did not begin a relationship until she was five years old, counsel may have reasonably concluded that it would not be particularly beneficial for respondent's case to call additional witnesses. Accordingly, we are not persuaded that counsel's conduct fell below an objective standard of reasonableness. Scott, 275 Mich App at 526.
Moreover, respondent has not established that counsel's inaction resulted in any prejudice to him. Id. Notably, there is no indication regarding what respondent's mother or any of the other unidentified witnesses would have testified about. "Without some indication that a witness would have testified favorably, a defendant cannot establish that counsel's failure to call the witness would have affected the outcome of his or her trial." People v Carll, 322 Mich App 690, 703; 915 NW2d 387 (2018). Accordingly, there is nothing to suggest that the result of the proceedings would have been different but for counsel's alleged error. Scott, 275 Mich App at 526. Respondent's claim of ineffective assistance of counsel is without merit.
Affirmed.
/s/ Michael J. Kelly
/s/ Jane E. Markey
/s/ Karen M. Fort Hood