in Re K Baughman Minor ( 2021 )

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UNPUBLISHED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 K BAUGHMAN, Minor. July 15, 2021
No. 355875
Berrien Circuit Court
Family Division
LC No. 2019-000006-NA
Before: RONAYNE KRAUSE, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
Respondent1 appeals by right the trial court’s order terminating his parental rights to his
minor child, KB. On appeal, respondent does not challenge whether statutory grounds for
termination existed or whether termination was in the child’s best interests. Rather, respondent
only argues that KB’s lawyer-guardian ad litem (LGAL) provided ineffective assistance of
counsel. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
KB was born prematurely in September of 2018. In January 2019, petitioner, the Michigan
Department of Health and Human Services (DHHS), filed a petition alleging unfit living
conditions and substantial risk of harm to KB, and seeking the removal of KB from the home.
Respondent pleaded no-contest to the allegations in the petition regarding his domestic violence,
substance abuse, and unsafe home conditions. The trial court exercised jurisdiction over KB, who
was placed in non-relative foster care. Several dispositional and review hearings were held
between February 2019 and October, 2020. Respondent was incarcerated during that time and
generally declined to participate in the hearings. In August 2020, DHHS filed a supplemental
petition against respondent seeking termination of his parental rights. On October 22, 2020, the
trial court held a termination hearing, after which it terminated father’s parental rights under
MCL 712A.19b(3)(c)(i) and (3)(j). This appeal followed.
1
Respondent is KB’s father. KB’s mother was a respondent in the proceedings below, and her
parental rights to KB were also terminated. However, she is not a party to this appeal.
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II. STANDARD OF REVIEW
We determine de novo as an issue of law whether a party has standing to appeal. Mich Ed
Ass’n v Superintendent of Pub Instruction, 272 Mich App 1, 4; 724 NW2d 478 (2006).
III. ANALYSIS
Respondent lacks standing to raise on appeal the issue of the LGAL’s effectiveness.
The right to effective assistance of counsel is a constitutional right, guaranteed by both the
United States and Michigan Constitutions. See US Const Am VI; Const 1963, art 1, § 20; People
v Pubrat, 451 Mich 589, 594: 548 NW2d 595 (1996). “[T]he principles of effective assistance of
counsel developed in the context of criminal law apply by analogy to child protective
proceedings.” In re EP, 234 Mich App 582, 598; 595 NW2d 167 (1999), overruled on other
grounds by In re Trejo, 462 Mich 341; 612 NW2d 407 (2000).
Michigan law requires that a LGAL be appointed for the child or children in child-
protective proceedings. See MCL 712A.17c(7) (“In a proceeding under section 2(b) or (c) of this
chapter, the court shall appoint a lawyer-guardian ad litem to represent the child. The child shall
not waive the assistance of the lawyer-guardian ad litem.”). The LGAL’s duty to provide effective
assistance of counsel is a duty to the child, not the parents; in other words, the child possesses a
constitutional right to the effective assistance of a LGAL during child protective proceedings. See
EP, 234 Mich App at 598; In re HRC, 286 Mich App 444, 458; 781 NW2d 105 (2009).
“[C]onstitutional protections are generally personal. They cannot be asserted vicariously, but
rather only at the instance of one whose own protection was infringed . . . .” People v Smith, 420
Mich 1, 17; 360 NW2d 841 (1984) (quotation marks and citation omitted). This Court has
specifically held that the right to the effective assistance of a LGAL “is personal to the child and
respondent may not assert it on behalf of the child.” EP, 234 Mich App at 598; see also HRC, 286
Mich App at 458 (noting that “this Court has held that a respondent in a child protective proceeding
lacks standing to challenge the effectiveness of the child’s attorney”).
In this case, respondent acknowledges that, under our existing caselaw, he lacks standing
to assert an ineffective assistance of counsel claim on behalf of KB, but nonetheless asks this Court
to disregard our previous opinions. We decline to do so. A published opinion of this Court has
precedential effect under the rule of stare decisis and binds lower courts and tribunals.
MCR 7.215(C)(2); see People v Smith, 496 Mich 133, 140 n 17; 852 NW2d 127 (2014). Similarly,
published opinions issued on or after November 1, 1990, bind subsequent panels of this Court.
See MCR 7.215(J)(1). Accordingly, because respondent does not have standing, we need not
address the merits of his claim. See EP, 234 Mich App at 598.2
2
Respondent has not specifically requested that we declare a conflict with EP and HRC under
MCR 7.215(J)(2), but to the extent that his argument can be read as requesting that we declare
such a conflict, we decline to do so. Respondent’s brief on appeal makes conclusory statements
about the alleged failures of the LGAL without any citation to the record, in violation of
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Affirmed.
/s/ Amy Ronayne Krause
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
MCR 7.212(C)(7). Further, respondent makes no substantial argument concerning why this Court
should declare a conflict with long-standing precedent, other than stating that our precedent
“essentially precludes the claim [of ineffective assistance of a LGAL] from being raised at all.”
Respondent’s conclusory statements, combined with the absence or near-absence of factual
support, legal support, or meaningful argument, see Ewald v Ewald, 292 Mich App 706, 726; 810
NW2d 396 (2011), do not persuade us to declare a conflict with EP and HRC.
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