In Re Decker 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UNPUBLISHED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 DECKER, Minors. December 22, 2022
Nos. 360793; 360794
St. Joseph Circuit Court
Family Division
LC No. 2020-000824-NA
Before: JANSEN, P.J., and SERVITTO and GADOLA, JJ.
PER CURIAM.
These consolidated appeals1 concern the termination of respondents’ parental rights to their
minor children, MD, LD, AHD, ADD, DD, and JD, pursuant to MCL 712A.19b(3)(c)(i) (failure
to rectify conditions that led to removal), (3)(c)(ii) (additional conditions prohibit return of the
children), (3)(g) (failure to provide proper care and custody), and (3)(j) (likelihood of injury if
returned to the parents). In Docket No. 360793, respondent-mother appeals as of right the trial
court’s order terminating her parental rights. In Docket No. 360794, respondent-father appeals as
of right the same order, which also terminated his parental rights to the children.
On appeal, mother argues that the trial court erred by concluding that statutory grounds
existed to terminate her parental rights and that termination was in the children’s best interests.
Father asserts that the trial court relied on inadmissible evidence in its decision to terminate his
parental rights, that the Department of Health and Human Services (DHHS) failed to make
reasonable efforts to reunify him with the children in light of the recommendations in his
psychological evaluation, and that he was denied the effective assistance of counsel because his
attorney failed to present an expert witness to challenge the veracity of the children’s statements
in their trauma assessments and the claim that they were acting adversely to father during parenting
time. For the reasons explained in this opinion, we affirm.
1
In re Decker Minors, unpublished order of the Court of Appeals, entered April 5, 2022 (Docket
Nos. 360793 and 360794).
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I. FACTUAL AND PROCEDURAL HISTORY
The DHHS sought removal of the children on the basis of allegations that the family was
homeless and living in a hotel and that domestic violence occurred in the presence of the children.
Mother admitted the allegations that the family was living in a hotel and that domestic violence
had been ongoing for at least a year. Father also admitted that there was domestic violence that
remained unresolved. The trial court accepted jurisdiction and ordered the parents to participate
in services. The DHHS later filed a petition seeking to terminate the parental rights of both mother
and father because the children had been removed for almost a year and they could not be safely
returned to either mother or father. After holding a hearing, the trial court issued an order
terminating mother’s and father’s parental rights. This appeal followed.
II. MOTHER’S APPEAL
A. STATUTORY GROUNDS
Mother first asserts that the trial court erred by concluding that statutory grounds existed
to terminate her parental rights. We disagree.
This Court reviews the trial court’s decision concerning statutory grounds for clear error.
In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). “A finding of fact is clearly
erroneous if the reviewing court has a definite and firm conviction that a mistake has been
committed, giving 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). Moreover, “[a]ppellate courts are
obliged to defer to a trial court’s factual findings at termination proceedings if those findings do
not constitute clear error.” In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009).
“In order to terminate parental rights, the trial court must find by clear and convincing
evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been
met.” In re VanDalen, 293 Mich App at 139. In this case, the trial court terminated mother’s and
father’s parental rights on the basis of MCL 712A.19b(3)(c)(i), (c)(ii), (3)(g), and (3)(j). In
pertinent part, those provisions provide the following:
(c) The parent was a respondent in a proceeding brought under this chapter,
182 or more days have elapsed since the issuance of an initial dispositional order,
and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is
no reasonable likelihood that the conditions will be rectified within a reasonable
time considering the child’s age.
(ii) Other conditions exist that cause the child to come within the court’s
jurisdiction, the parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the child’s age.
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* * *
(g) The parent, although, in the court’s discretion, financially able to do so,
fails to provide proper care or custody for the child and there is no reasonable
expectation that the parent will be able to provide proper care and custody within a
reasonable time considering the child’s age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of the
child’s parent, that the child will be harmed if he or she is returned to the home of
the parent.
In this case, the children were removed on the basis of allegations of domestic violence
and that the family of eight was homeless and living in a hotel room. At mother’s adjudication,
she admitted that the family was living in a hotel and that there was ongoing domestic violence for
over a year. At mother’s disposition hearing, which was held in March 2021, the caseworker
testified that mother needed to obtain housing, transportation, and employment. The trial court
issued a dispositional order on the same day that required mother to obtain housing, transportation,
and employment. Mother also was ordered to attend domestic-violence counseling and refrain
from contacting father. The termination hearing occurred in February 2022. As a result, more
than 182 days elapsed since the issuance of the dispositional order. See MCL 712A.19b(3)(c).
At the time of the termination hearing, mother had obtained transportation. However, she
remained homeless, only worked six hours a week, and continued her relationship with father. She
participated in the Keeping Families Together and Parent Management Training Oregon model
(PMTO) programs with an infant mental health specialist. Even with these services, mother
struggled to provide structure during her parenting-time visits and the visits became chaotic. In
addition, mother participated in domestic-violence counseling and individual counseling.
Throughout the case, mother admitted only one incident of domestic violence and declined to
address the trauma suffered by the children. Instead, she asserted that the children were mistaken
about what they had witnessed.
At the time of the termination hearing, MD was nine years old, LD was eight years old,
AHD was six years old, ADD was five years old, DD was four years old, and JD was two years
old. The children had been placed with their maternal grandparents for over a year. None of the
service providers believed that the children could be safely returned to mother at the termination
hearing, and there was no indication that the children could be returned within a reasonable time.
Considering mother’s failure to end her relationship with father and acknowledge the
trauma that her children experienced while living with her, combined with her failure to obtain
appropriate housing, employment, and parenting skills to care for six children, the trial court did
not clearly err by finding that MCL 712A.19b(3)(c)(i) and (3)(c)(ii) had been established by clear
and convincing evidence. See In re Williams, 286 Mich App 253, 272-273; 799 NW2d 286 (2009)
(holding that termination was appropriate under MCL 712A.19b(3)(c)(i) because the respondent-
mother failed to make any meaningful change in the conditions that existed at the time of
adjudication). Because we conclude that termination was proper under MCL 712A.19b(3)(c)(i)
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and (3)(c)(ii), we decline to consider any additional statutory grounds. See In re VanDalen, 293
Mich App at 139.
On appeal, mother asserts that she should have been given more time to participate in
intensive services for domestic violence. However, mother did participate in such services. At
the beginning of the case, the caseworker testified that mother engaged in domestic-violence
counseling. The infant mental health specialist who worked with mother testified that she spent a
lot of time talking about the characteristics of domestic violence and how children are affected by
fighting in the home. In fact, at the termination hearing, the therapist explained that the Keeping
Families Together program usually takes six months to complete; however, she spent so much
time discussing mother’s relationship with father and how it affected the children that it would
take at least another month for mother to complete the program. Mother also worked with a
domestic-violence advocate. At the time of the termination hearing, mother was working through
the group-therapy curriculum with her advocate. In addition, this was not mother’s first case
involving Child Protective Services. She previously participated in services that focused on
domestic violence. The caseworker expressed her belief that additional time would not make a
difference because mother received intensive, hands-on services throughout the case.
Further, a major concern throughout the case was that mother failed to acknowledge the
domestic violence that occurred between her and father. In fact, at the termination hearing, mother
stated that the only domestic-violence incident occurred in 2019. She stated that her relationship
with father was “fine.” As a result, mother has not shown that she would participate in any further
domestic-violence services in any meaningful way or that more time would have made a
difference.
Mother presents a similar argument in regard to housing assistance. The caseworker
testified that she spoke to mother about housing resources many times. She stated that mother
failed to follow up with those resources. In addition, because mother only worked a few hours a
week, she was unable to save up any money in the event that housing became available.
Accordingly, the trial court did not clearly err by finding that clear and convincing evidence
established grounds to terminate mother’s parental rights because she “failed to demonstrate
sufficient compliance with or benefit from those services specifically targeted to address the
primary basis for adjudication in this matter . . . .” In re Frey, 297 Mich App 242, 248; 824 NW2d
569 (2012).
B. BEST INTERESTS
Mother next argues that the trial court erred by concluding that termination was in the
children’s best interests. We disagree.
This Court reviews the trial court’s determination that termination was in the children’s
best interests for clear error. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144(2012). “Even if the trial court finds that the [DHHS] has established a ground for termination by
clear and convincing evidence, it cannot terminate the parent’s parental rights unless it also finds
by a preponderance of the evidence that termination is in the best interests of the children.” In re
Sanborn, 337 Mich App 252, 276; 976 NW2d 44 (2021) (quotation marks and citation omitted).
“In making its best-interest determination, the trial court may consider the whole record, including
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evidence introduced by any party.” Id. (quotation marks and citation omitted). While determining
the child’s best interests, the court may consider a variety of factors, including 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.” Id. (quotation marks and citation
omitted). “The trial court may also consider the child’s age, inappropriate parenting techniques,
and continued involvement in domestic violence.” Id. at 277. “It may further consider visitation
history, the parent’s engaging in questionable relationships, the parent’s compliance with treatment
plans, the child’s well-being in care, and the possibility of adoption.” Id.
In this case, that trial court considered a variety of factors while considering whether
termination of mother’s and father’s parental rights was in the children’s best interests. The court
noted the children’s young ages, which ranged from two years old to nine years old, that the
children were placed together in a preadoptive home with their maternal grandparents, and the
opinions of the caseworker and lawyer-guardian ad litem supporting termination. The court
believed that there was a bond between the children and their parents, and that the children loved
their parents. However, the court opined that such young children needed stability, permanence,
safety, security, love, and affection. The court did not believe that either parent could provide any
of these necessities even after participating in services.
The trial court’s conclusion that termination was in the children’s best interests was not
clearly erroneous. As observed by the trial court, the children were young and had experienced
significant trauma. The testimony provided at the termination hearing showed that the children
were doing well in their placement with their maternal grandparents who agreed to adopt them.
Although both parents participated in services, neither parent rectified the issues that caused the
children’s removal—lack of appropriate housing and domestic violence. At the time of the
termination hearing, the children had been in care for over a year, and there was no indication if
and when the children could be safely returned to their parents. Therefore, there was a
preponderance of evidence to establish that termination of mother’s and father’s parental rights
was in the children’s best interests. See id. at 278-279.
III. FATHER’S APPEAL
A. STATUTORY GROUNDS
Father’s first claim on appeal is that the trial court relied on inadmissible evidence to
terminate his parental rights. We disagree.
“Child protective proceedings consist of two distinct phases: the trial, also known as the
adjudicative phase, and the dispositional phase.” In re Utrera, 281 Mich App 1, 15; 761 NW2d
253 (2008). “The question at adjudication is whether the trial court can exercise jurisdiction over
the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional
orders, including an order terminating parental rights.” In re Ferranti, 504 Mich 1, 15; 934 NW2d
610 (2019). “The court can exercise jurisdiction if a respondent-parent enters a plea of admission
or no contest to allegations in the petition . . . or if the Department proves the allegations at a
trial . . . .” Id. “If a trial is held, the respondent is entitled to a jury, the rules of evidence generally
apply, and the petitioner has the burden of proving by a preponderance of the evidence one or more
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of the statutory grounds for jurisdiction alleged in the petition.” Id. (quotation marks and citation
omitted).
“Once the trial court’s jurisdiction is established, the case moves to the dispositional
phase.” Id. at 16. During this phase, the court must hold review hearings to review the
respondent’s progress with the case service plan and evaluate whether it is appropriate for the
children to remain in foster care. Id. “If the child is removed from the family home, the court
must conduct a permanency planning hearing within 12 months from the date of removal.” Id.
“This hearing results in either the dismissal of the petition and family reunification, or the court
ordering the [DHHS] to petition for the termination of parental rights.” Id.
If the DHHS files a termination petition, the trial court holds a termination hearing in which
the court acts as fact-finder, and the rules of evidence generally do not apply. Id.; see also
MCR 3.977(H)(2); MCR 3.977(I). “If the court determines that one or more statutory ground for
termination exists and that termination is in the child’s best interests, the court must enter an order
terminating the respondent’s parental rights and order that additional efforts for reunification not
be made.” In re Ferranti, 504 Mich at 16.
In this case, father admitted the allegation in the petition that there was a history of
domestic violence and that it was unresolved. The trial court accepted that admission and assumed
jurisdiction of father and the children. At disposition, the court ordered father to obtain suitable
housing, employment, and transportation, submit to drug testing, and participate in counseling and
parenting education provided by the DHHS. The DHHS later filed a petition to terminate father’s
parental rights. At the termination hearing, the trial court explained that it did not find the
testimony provided by mother and father credible as it related to previous instances of domestic
violence. The court stated that it believed the children’s statements in the trauma assessments that
were admitted as exhibits at the hearing.
First, the trial court did not err by considering the children’s trauma assessments during the
termination hearing. The rules of evidence generally do not apply at a termination hearing. Id.
MCR 3.977(H)(2) provides, in pertinent part:
At the hearing all relevant and material evidence, including oral and written reports,
may be received by the court and may be relied upon to the extent of its probative
value. The parties must be afforded an opportunity to examine and controvert
written reports received by the court and shall be allowed to cross-examine
individuals who made the reports when those individuals are reasonably available.
The infant mental health specialist testified that she participated in the trauma assessments, and
reviewed the assessments with mother and father. The specialist testified at the termination
hearing and was available for cross-examination. Accordingly, the trial court did not err by
considering the children’s trauma assessments during the termination hearing.
Second, the trial court did not clearly err by finding that termination of father’s parental
rights was proper under MCL 712A.19b(3)(c)(i). The court issued the dispositional order
involving father in March 2021. The termination hearing was held in February 2022. As a result,
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more than 182 days elapsed between the issuance of the initial dispositional order and the
termination hearing. See MCL 712A.19b(3)(c).
The testimony at the termination hearing established that father had inconsistent
employment throughout the case and that he failed to provide any proof of income. He also failed
to obtain appropriate housing as he lived with friends and there was no room for the children.
Moreover, although father initially admitted that there was a history of domestic violence that was
unresolved, he later failed to acknowledge the domestic violence that occurred in his relationship
with mother and the effect that the violence had on the children. Four of the children were
diagnosed with post-traumatic stress disorder, and father declined to accept that the children were
afraid of him. Father participated in services for anger management and domestic violence, but
continued to exhibit anger issues, such as yelling at the visitation aide to the extent that the children
were afraid that he was going to hit her. Finally, father maintained a relationship with mother in
violation of a court order. Ultimately, as with mother, father failed to show any meaningful change
in the conditions that existed at the adjudication and disposition. See In re Williams, 286 Mich
App at 272-273.
B. REASONABLE EFFORTS
Next, father contends that the DHHS failed to make reasonable efforts to reunify him with
the children. We disagree.
This Court reviews a trial court’s decision concerning reasonable efforts for clear error.
See In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005). However, father failed to
raise a claim concerning the adequacy of services at any point during the lower court proceedings.
As a result, this claim is unpreserved. See In re Terry, 240 Mich App 14, 27; 610 NW2d 563(2000). This Court reviews unpreserved claims for plain error affecting substantial rights. In re
Utrera, 281 Mich App at 8. “Generally, an error affects substantial rights if it caused prejudice,
i.e., it affected the outcome of the proceedings.” Id. at 9. “When plain error has occurred,
[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually
innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings independent of the defendant’s innocence.” Id. (quotation marks and
citation omitted; alterations and emphasis in original).
“In general, when a child is removed from the parents’ custody, the petitioner is required
to make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a
service plan.” In re Fried, 266 Mich App at 542, citing MCL 712A.18f(1), (2), and (4). “As part
of these reasonable efforts, the Department must create a service plan outlining the steps that both
it and the parent will take to rectify the issues that led to court involvement and to achieve
reunification.” In re Hicks/Brown, 500 Mich 79, 85-86; 893 NW2d 637 (2017).
In this case, father participated in a variety of services through the DHHS and his probation,
including weekly parenting time, the Keeping Families Together program with an infant mental
health specialist, individual counseling, anger management, and batterer intervention. His
psychological evaluation recommended that he attend an intensive batterer-intervention program.
However, the caseworker testified that the program was not contracted with the DHHS, and she
was exploring different options. Father was never offered this recommended program. In any
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event, father continued to deny that any domestic violence occurred outside the 2019 incident that
led to his arrest. The caseworker did not believe that the additional program would be helpful
considering his denial. In addition, father still had anger issues after completing anger
management and batterer intervention.
He denied that he was dependent on alcohol and failed to present proof that he was
attending alcoholics anonymous. Father was also provided with drug screening, but those screens
did not test for alcohol. Although father’s possible alcohol use was discussed during the case, the
trial court did not refer to substance abuse in its ruling. Father reported that he suffered from
anxiety and depression, and his psychological evaluation recommended that father submit to a
medical review, but he refused to do so. As a result, father declined to participate in all the services
recommended to him. Although father now complains that he should have been offered the
intensive batterer program and alcohol-specific screening, he does not explain how these additional
services would have altered the outcome in the case. “When challenging the services offered, a
respondent must establish that he or she would have fared better if other services had been offered.”
In re Sanborn, 337 Mich App at 264. Given that father was offered multiple services and failed
to show benefit from those services, the trial court did not err by concluding that the DHHS made
reasonable efforts to reunify father with the children. See In re Frey, 297 Mich App at 248
(explaining that the respondent parents have a responsibility to participate in and benefit from the
services offered).
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Father finally asserts that he was denied the effective assistance of counsel at the
termination hearing. We disagree.
“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 Martin, 316 Mich App 73, 85; 896 NW2d 452 (2016). “In order to
preserve the issue of effective assistance of counsel,” defendant “should make a motion in the trial
court for a new trial or for an evidentiary hearing.” People v Sabin (On Second Remand), 242
Mich App 656, 658; 620 NW2d 19 (2000). In this case, father failed to raise a claim involving the
ineffective assistance of counsel at any point during the proceedings. Therefore, this claim is
unpreserved.
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The
trial court’s “factual findings are reviewed for clear error, while its constitutional determinations
are reviewed de novo.” People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
However, because father failed to move for a new hearing or an evidentiary hearing, this Court’s
review of his ineffective assistance of counsel claim is limited to errors apparent on the record.
Sabin (On Second Remand), 242 Mich App at 659.
To prevail on a claim of ineffective assistance of counsel, a defendant must establish that
“(1) the performance of his counsel was below an objective standard of reasonableness under
prevailing professional norms and (2) a reasonable probability exists that, in the absence of
counsel’s unprofessional errors, the outcome of the proceedings would have been different.” Id.-8-
“A defendant must overcome a strong presumption that the assistance of his counsel was sound
trial strategy, and he must show that, but for counsel’s error, the outcome of the trial would have
been different.” Id. “[C]ounsel’s decision regarding which witnesses to call is presumed to be
sound trial strategy.” People v Meissner, 294 Mich App 438, 460; 812 NW2d 37 (2011).
Father argues that his counsel was ineffective for failing to object to the alleged expert
opinions provided by the infant mental health specialist and the caseworker. However, the
testimony provided by these witnesses concerning their belief that the children were afraid of father
during parenting time was based on their observations during visits. The infant mental health
specialist provided support for her opinion, testifying that the children were hypervigilant during
visits with father and that they avoided making him angry. The children also expressed their fear
that father was only being nice because he was being watched. On cross-examination by father’s
counsel, the specialist acknowledged that the children would run up and greet father when he
arrived, and that the children cried when one visit had to be conducted virtually due to illness. The
trial court, as the finder of fact, was tasked with determining the credibility and weight of this
testimony. See MCR 3.977(H)(2); MCR 3.977(I). Similarly, father received and reviewed the
children’s trauma assessments before the termination hearing and expressed his disagreement with
the children’s statements, of which the court was aware. The infant mental health specialist who
participated in the assessments was available for cross-examination at the termination hearing.
Accordingly, father’s counsel’s performance was not deficient in this regard. See Sabin (On
Second Remand), 242 Mich App at 659; see also People v Riley, 468 Mich 135, 142; 659 NW2d
611 (2003) (explaining that “[i]neffective assistance of counsel cannot be predicated on the failure
to make a frivolous or meritless motion”).
Father further asserts that his counsel was ineffective for failing to obtain an expert to
challenge the opinions of the caseworker and infant mental health specialist, as well as the
children’s statements in the trauma assessments. However, father merely asserts that counsel
should have obtained the services of an expert. He does not identify a possible expert or specify
the testimony that such an expert would provide that would have been helpful to his case. As a
result, there is no basis to conclude that father’s counsel was ineffective for failing to consult an
expert or that an expert’s testimony would have altered the outcome in the case. See People v
Posey, 334 Mich App 338, 369; 964 NW2d 862 (2020) (holding that the defendant has the burden
of establishing the factual predicate for a claim of ineffective assistance of counsel and that an
expert witness would have been helpful). Accordingly, father failed to establish that he was denied
the effective assistance of counsel at the termination hearing. See Sabin (On Second Remand),
242 Mich App at 659.
Affirmed.
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
/s/ Michael F. Gadola
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