In Re N R Tiernan Minor ( 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UNPUBLISHED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 N. R. TIERNAN, Minor. March 31, 2022
No. 357076
Oakland Circuit Court
Family Division
LC No. 20-881881-NA
Before: GADOLA, P.J., and BORRELLO and M. J. KELLY, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to her
minor child under MCL 712A.19b(3)(b)(i), (g), (i), and (k)(iii). We reverse and remand for further
proceedings.
I. FACTS
The minor child in this case, NRT, is respondent’s second child. Respondent’s parental
rights to her first child were terminated in 2012, when respondent was 21 years old, as a result of
respondent’s substance abuse, lack of housing, and lifestyle instability. Thereafter, respondent
was involved in substance-related criminal incidents, mainly for possession of illegal substances
and for operating a vehicle while under the influence of alcohol. Respondent was sentenced to
terms of probation for these offenses. Respondent completed substance abuse treatment programs
and attended Alcoholics Anonymous and Narcotics Anonymous (AA/NA) in relation to the
probation orders.
NRT was born in 2019. After the child’s birth, respondent and NRT’s father, Tiernan,
lived together with the child. Petitioner, Department of Health and Human Services, contacted the
couple because respondent’s parental rights to her first child had been terminated. Respondent
and Tiernan signed a safety plan with petitioner in which they agreed to abstain from alcohol and
substance use. Respondent left her job after the COVID-19 pandemic began in March 2020 and
began again using marijuana and alcohol during the pandemic lockdown.
On June 10, 2020, police responded to a report of a domestic disturbance at respondent’s
home. When police arrived, Tiernan had left the home. After the police knocked and called for
several minutes, respondent answered the door. Officers entered the home and found shattered
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glass from a broken window on the floor and debris scattered throughout the home. NRT was
lying face down on a couch, unsupervised. When officers entered the home, respondent picked up
NRT and the officers saw that the child had human bite marks on her face and shoulder, and
bruising around her eyes. After speaking with respondent and ascertaining that she was
intoxicated, the officers took the child to a hospital where her injuries were treated.
Respondent pleaded no contest to third-degree child abuse, MCL 750.136b(5), and was
sentenced to probation. Thereafter, respondent complied with the terms of her probation including
participating in individual counseling and substance abuse counseling. Respondent complied with
drug and alcohol screening, and successfully completed parenting classes. Respondent’s early
drug tests indicated low levels of THC, but thereafter respondent’s tests were negative for
substances.
Meanwhile, petitioner sought termination of respondent’s parental rights at the initial
dispositional hearing under MCL 712A.19b(3)(b)(i), (g), (i), and (k)(iii), rather than seeking to
reunify respondent with the child. Because petitioner was not seeking to reunify respondent with
the child, petitioner did not provide respondent reunification services or allow respondent
parenting time with the child.
Respondent retained an attorney who represented her in the criminal matter, and also in the
proceedings to terminate her parental rights. Regarding the termination proceedings, counsel
advised respondent to admit the allegations of the petition that asserted the trial court’s jurisdiction
and the statutory grounds for termination in light of the events of June 10, 2020, and respondent’s
prior history. After respondent admitted the allegations of the petition, the trial court assumed
jurisdiction of the child and found that statutory bases existed to terminate respondent’s parental
rights under MCL 712A.19b(3)(b)(i), (g), (i), and (k)(iii).
The trial court thereafter conducted a hearing to determine whether termination of
respondent’s parental rights was in the child’s best interests. Petitioner called as a witness one of
the officers who responded to the June 10, 2020 domestic dispute. The officer testified regarding
respondent’s intoxication, the condition of the home, and NRT’s injuries. To corroborate the
officer’s testimony, petitioner introduced into evidence the officer’s bodycam video, as well as
photographs depicting NRT’s injuries and the condition of the home.
Petitioner also called as a witness Dr. Melissa Sulfaro, a psychologist employed by the
Oakland County Court Psychological Clinic, who testified that she conducted a psychological
evaluation of respondent on December 7, 2020. Sulfaro testified that before evaluating respondent
she reviewed documentary materials, including the petition, the police report, letters from Easter
Seals regarding respondent’s therapy, court reports from petitioner’s case worker, court records
regarding the termination of respondent’s rights to her first child, and hospital medical records.
Sulfaro testified that based upon respondent’s history and the documentary evidence she reviewed,
she believed that respondent had not developed adequate skills to cope without using substances.
Sulfaro testified that respondent’s test results indicated no personality or behavioral disorders.
Nonetheless, Sulfaro determined based upon respondent’s history of substance use that she might
relapse into substance use and that there was a possibility of harm to the child if respondent
relapsed. Sulfaro also testified that because respondent had not been permitted parenting time with
the child after the child was removed from her care, there was no longer a bond between parent
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and child. Sulfaro therefore advised that termination of respondent’s parental rights was in the
child’s best interests.
Respondent testified that from 2016 through 2019, she resolved her prior abuse of narcotics
and maintained sobriety. She explained that she started using alcohol and marijuana again in 2020
during the pandemic. She testified that the June 10, 2020 incident made her realize that she should
not use any substances, and that she had not used alcohol or drugs since that date. Since then, she
had fully engaged in and completed substance abuse therapy, was participating in individual
therapy, had resumed attending AA/NA, and had devoted herself to studying the AA/NA literature
and working on the 12 steps of recovery. Respondent also testified that she had returned to her
previous job and thereafter was promoted to the position of administrative assistant. She was
leasing an apartment that she paid for with her earnings.
Respondent’s counsel did not call any other witnesses or introduce respondent’s therapy
progress reports into evidence. Counsel did not introduce documentation of respondent’s
compliance with her probation or call her probation officer as a witness. Respondent provided her
counsel with a certificate of her completion of parenting classes, but counsel did not move for
admission of the certificate. Although respondent had been consistently attending AA/NA while
maintaining sobriety, counsel did not call respondent’s sponsor as a witness. Respondent’s counsel
did not introduce corroborating evidence of her employment, income, or housing.
At the conclusion of the hearing, the trial court terminated respondent’s parental rights to
NRT, finding that termination was in the child’s best interests. Respondent claimed an appeal to
this Court, asserting in part that her attorney was ineffective for failing to present evidence
corroborating her testimony that she had made progress in resolving her addiction. This Court
granted respondent’s motion1 to remand to the trial court for a Ginther2 hearing on her claim that
her attorney was ineffective.
At the Ginther hearing, respondent called as a witness her probation officer, who testified
that respondent had complied with the requirements of probation; she had refrained from
consuming drugs or alcohol, complied with drug and alcohol testing, completed substance abuse
treatment, completed cognitive behavior therapy, participated in mental health treatment,
completed parenting classes, and was continuing individual therapy with Easter Seals. Respondent
also called as witnesses her AA/NA sponsor and an AA/NA participant, who testified regarding
respondent’s continuing and frequent attendance and participation in AA/NA, and her success in
staying sober. Respondent also introduced as exhibits a certificate of respondent’s attendance at a
parenting class, respondent’s apartment lease, the respondent’s drug screen results, and
respondent’s psychological evaluation. In addition, the guardian ad litem for the child informed
the trial court that if the information introduced at the Ginther hearing had been provided to her
1
In re N R Tiernan, unpublished order of the Court of Appeals, entered September 16, 2021
(Docket No. 357076).
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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before the best interests hearing, it would have altered her recommendation and she instead would
have urged the trial court to find that termination was not in the child’s best interests.
Respondent’s trial counsel testified that he represented respondent in the criminal matter
arising from the same incident that led to the child protective proceedings. He testified that
respondent was sentenced to probation, and that she completely complied with the terms of her
probation, including abstaining from using drugs or alcohol and complying with drug and alcohol
testing. Respondent also participated in therapy through Easter Seals and provided trial counsel
with the progress notes from her therapist, the results of her drug tests, and the certificate of
completion of parenting classes.
Respondent’s trial counsel testified that despite having documentation of her progress, his
strategy at the best interests hearing was to present respondent’s own testimony describing her
efforts and commitment toward resolving her substance abuse. Counsel testified that he relied
solely on respondent’s testimony because he believed that the exhibits and corroborating testimony
would not convince the court of respondent’s commitment if her testimony alone did not do so.
He further testified that he believed that the introduction of evidence to corroborate respondent’s
testimony might suggest that her testimony alone was untrustworthy.
After hearing the evidence presented at the Ginther hearing, the trial court found that
respondent’s trial counsel was not ineffective for failing to call witnesses or introduce documentary
evidence to support respondent’s assertion that she was maintaining sobriety. The trial court
reasoned that respondent had testified that she was maintaining sobriety, and the trial court found
her testimony credible. Nonetheless, the trial court was unconvinced that respondent would
maintain sobriety in the future despite her recent success. The trial court explained that the
corroborating documentation and testimony introduced at the Ginther hearing did not dissuade the
trial court from its earlier conclusion that termination was in the child’s best interests.
Respondent’s appeal now returns to this Court.
II. DISCUSSION
A. INEFFECTIVE ASSISTANCE
Respondent contends that she was denied the effective assistance of counsel at trial. We
agree.
Whether respondent was denied the effective assistance of counsel presents a mixed
question of fact and constitutional law; we review questions of fact for clear error and questions
of law de novo. In re Mota, 334 Mich App 300, 318; 964 NW2d 881 (2020). Whether child
protective proceedings complied with a parent’s due-process rights is a question of constitutional
law that we review de novo. In re Ferranti, 504 Mich 1, 14; 934 NW2d 610 (2019). De novo
review is independent review of an issue by this Court with no required deference to the trial
court’s resolution of that issue. Id.In child protective proceedings, parents have the right to counsel. In re Williams, 286 Mich
App 253, 275; 779 NW2d 286 (2009). The right to counsel includes the right to the effective
assistance of counsel. See In re Londowski, ___ Mich App ___, ___; ___ NW2d ___ (2022)
(Docket No. 355635); slip op at 4 (due process indirectly guarantees the right to the effective
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assistance of counsel in child protective proceedings). “Included in the Fourteenth Amendment’s
promise of due process is a substantive component that ‘provides heightened protection against
government interference with certain fundamental rights and liberty interests,’ ” which includes
the fundamental right of parents to care for their children and the significant interest of parents in
the “companionship, care, custody, and management of their children,” which is “an element of
liberty protected by due process.” Id., quoting In re Sanders, 495 Mich 394, 409; 852 NW2d 524
(2014).
When analyzing a claim of ineffective assistance of counsel in the context of a child
protective proceeding, we apply by analogy the principles applicable to claims of ineffective
assistance of counsel developed in the criminal law context. In re Martin, 316 Mich App 73, 85;
896 NW2d 452 (2016). To establish ineffective assistance of counsel, a respondent must show
that (1) counsel’s performance fell below an objective standard of reasonableness, and that (2) the
deficient performance prejudiced the respondent, meaning that there is a reasonable probability
that, but for counsel’s deficient performance, there would have been a different outcome. People
v Jurewicz, 506 Mich 914, 915 (2020), citing People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d
136 (2012); see also In re Mota, 334 Mich App at 318-319. A reasonable probability is one that
is sufficient to undermine confidence in the outcome. Id. at 319.
A respondent is entitled to have his or her counsel prepare, investigate, and present all
substantial defenses, which are defenses that might make a difference in the outcome of the trial.
See People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). However, decisions about
which defenses and arguments to present are matters of trial strategy regarding which counsel is
afforded broad discretion. People v Pickens, 446 Mich 298, 325; 521 NW2d 797 (1994).
Specifically, the decision whether to call witnesses is a matter of trial strategy. People v Payne,
285 Mich App 181, 190; 774 NW2d 714 (2009). There is a strong presumption that trial counsel’s
decision-making is the result of sound trial strategy, People v White, 331 Mich App 144, 149; 951
NW2d 106 (2020), and the respondent must overcome that strong presumption to demonstrate that
counsel was ineffective. See Trakhtenberg, 493 Mich at 52. We do not substitute our judgment
for counsel’s on matters of trial strategy, nor do we use the benefit of hindsight to assess counsel’s
competence. People v Unger, 278 Mich App 210, 243; 749 NW2d 272 (2008). However, “a court
cannot insulate the review of counsel’s performance by calling it trial strategy;” counsel’s strategy
must be sound, and counsel’s decisions regarding strategy must be objectively reasonable.
Trakhtenberg, 493 Mich at 52.
In this case, respondent contends that her trial counsel was ineffective because he failed to
call witnesses and introduce documentary evidence to corroborate her testimony that she had made
progress in resolving her addiction. Respondent’s counsel testified on remand that his strategy
during the best interests hearing was to rely on respondent’s own testimony to convince the trial
court that she was truly committed to her sobriety. He explained that he believed her presentation
could stand on its own merits, uncorroborated by documentary evidence or other witnesses’
testimony, which he thought would be superfluous. He further testified that introducing evidence
corroborating respondent’s testimony would have suggested that her testimony required
corroboration.
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We are not persuaded that counsel’s strategy was objectively reasonable.3 Corroborating
evidence is neither superfluous nor a suggestion that a witness is less than credible. For example,
the prosecutor in this case called as a witness the police officer who responded to the June 10,
2020 call to respondent’s home. The officer testified regarding respondent’s intoxication, the
condition of the home, and NRT’s injuries. There was no suggestion that the officer’s testimony
was not credible; in fact, the trial court found all the witnesses to be credible. Nonetheless, to
corroborate the officer’s testimony, petitioner introduced into evidence the officer’s bodycam
video of the incident, as well as photographs taken at the scene by police depicting NRT’s injuries
and the condition of the home. There is no indication that the exhibits were considered
superfluous, nor was their introduction a suggestion that the officer’s testimony needed bolstering.
Rather, the exhibits were introduced as objective corroboration of the officer’s subjective
description of what he observed and to provide the trial court with the most complete information
available.
We agree with counsel that it was critical to respondent’s case that the trial court find her
testimony credible; however, the testimony of a mother at risk of losing her child that she is
maintaining sobriety requires corroboration. If this were not true, trial courts would not require
parents in child protective proceedings to submit to drug testing, prove that they participated in
therapy and parenting classes, verify their employment and income, prove that their housing is
appropriate, and demonstrate to the court through numerous parent-child visits supervised by foster
care case workers that they are ready to resume custody of their children. Rarely, if ever, would a
child be returned to a parent’s custody based solely on the unsubstantiated assertion of the parent
that she had conquered addiction.
In this case, respondent testified that she urged her attorney to call as witnesses her
probation officer to testify that she had successfully completed probation by complying with all
services, her AA/NA sponsor and another AA/NA participant who could testify regarding her
regular and sincere participation, and her therapists through Easter Seals who could report her
progress and her sincere efforts to remain sober. Counsel also could have sought to call as a
witness respondent’s employer to testify regarding respondent’s promotion and income, and to
verify that she was maintaining sobriety during working hours. Counsel could have sought to
introduce documentation and photographs to demonstrate that respondent was maintaining
3
The trial court erred in its statement of the law in its opinion after the Ginther hearing that “a trial
court commits reversible error in granting a new trial after a Ginther hearing predicated upon
ineffective assistance of counsel if the defendant fails to show that the asserted failure to call
witnesses ‘deprive[d] the defendant of a substantial defense.’ ” Respondent was not required to
show that trial counsel’s failure to call witnesses deprived her of a substantial defense in order to
obtain relief for ineffective assistance of counsel. Jurewicz, 506 Mich at 915. Rather, a claim of
ineffective assistance based upon trial counsel’s failure to call witnesses is assessed under the same
standard applicable to all other claims of ineffective assistance, namely, whether counsel’s
performance fell below an objective standard of reasonableness and whether the deficient
performance prejudiced the respondent. Id.
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adequate housing. Counsel’s failure to seek to introduce such corroborative evidence was
objectively unreasonable.
We also are unpersuaded that counsel’s deficient performance did not prejudice
respondent. As discussed, a respondent has been prejudiced if there is a reasonable probability
that, but for counsel’s deficient performance, there would have been a different outcome.
Jurewicz, 506 Mich 914 (2020). A reasonable probability is one that is “sufficient to undermine
confidence in the outcome.” In re Mota, 334 Mich App at 319.
At the time of the best interests hearing, the statutory bases for termination of respondent’s
parental rights had been established by respondent admitting the allegations of the petition. Once
a statutory basis for termination was demonstrated, the trial court was required to terminate
respondent’s rights if a preponderance of the evidence established that termination was in the best
interests of the child. See MCL 712A.19b(5); see also In re Mota, 334 Mich App at 320. A
“preponderance of the evidence” means evidence that, when weighed against the opposing
evidence, has more convincing force and the greater probability of the truth. People v Cross, 281
Mich App 737, 740; 760 NW2d 314 (2008).
The trial court was thus tasked with weighing the evidence of the child’s best interests to
determine whether the evidence favoring termination or the evidence opposing termination had
more convincing force and the greater probability of the truth. After the Ginther hearing, the trial
court concluded that even if respondent had introduced the additional evidence at the best interests
hearing, it nonetheless would have determined that termination was in the child’s best interests.
The trial court therefore found that counsel’s failure to present the evidence did not prejudice
respondent, and that trial counsel’s representation of respondent had not been ineffective.
Despite the trial court’s faith in the inevitability of that outcome, we cannot agree when
contrasting the dearth of evidence presented on behalf of respondent at the best interests hearing
with the ample evidence available. Our de novo review of this constitutional issue suggests a
reasonable probability of a different outcome, being a probability sufficient to undermine our
confidence in that preordained outcome. See In re Mota, 334 Mich App at 319. We therefore hold
that respondent’s trial counsel’s deficient representation resulted in prejudice to respondent, and
thus was ineffective.
B. BEST INTERESTS
Respondent also contends that the trial court erred in determining that termination of her
parental rights was in the best interests of the child. We agree.
We review the trial court’s determination regarding the best interests of the child for clear
error. In re Keillor, 325 Mich App 80, 93; 923 NW2d 617 (2018). The trial court’s decision is
clearly erroneous if, although there is evidence to support the decision, reviewing the entire record
we have a firm and definite conviction that a mistake has been made. Id.When determining whether the termination of parental rights is in a child’s best interests,
the trial court should weigh all evidence available to it. Id. at 93-94. In doing so, the trial court
should consider a wide variety of factors that may include the child’s bond to the parent, the
parent’s parenting ability, the child’s need for permanency, stability, and finality, the advantages
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of the foster home over the parent’s home, the length of time the child was in care, the likelihood
that the child could be returned to the parent’s home in the foreseeable future, and the parent’s
compliance with the case service plan. See In re Payne/Pumphrey/Fortson, 311 Mich App 49, 63-
64; 874 NW2d 205 (2015). The trial court also should consider the child’s safety and well-being,
including the risk of harm a child might face if returned to the parent’s care. See In re VanDalen,
293 Mich App 120, 141-142; 809 NW2d 412 (2011).
In this case, the trial court initially determined that termination of respondent’s parental
rights was in the child’s best interests because the child would be at risk of harm if returned to
respondent’s care in light of respondent’s past substance abuse. At the Ginther hearing, evidence
was introduced to corroborate respondent’s earlier testimony that she had been sober for several
months and was taking all possible steps to remain sober. The trial court concluded that despite
the corroborating evidence, termination of respondent’s parental rights was still in the child’s best
interests; the trial court reasoned that it had found respondent’s earlier testimony of sobriety
credible but nonetheless found that termination was appropriate because respondent might relapse
in the future despite her efforts toward sobriety. In reaching this conclusion, the trial court appears
to have focused upon the single factor of the evaluating psychologist’s prediction that respondent
is likely to relapse.
Typically, when a child is removed from a parent’s custody the petitioner attempts to
reunify the child with the parent. In those instances, to aid the parent in rectifying whatever
circumstance caused the child to be removed, the parent is offered numerous services, such as
substance abuse testing and treatment, counseling, parenting classes, and assistance obtaining
employment and housing. Unfortunately, it is often the case that the parent is unwilling or unable
to benefit from the offered services, and in those cases, the petitioner ultimately seeks termination
of the parent’s parental rights. In those cases, the petitioner presents evidence of the parent’s lack
of progress, i.e., evidence that the parent did not participate in drug testing or tested positive for
substances, did not complete parenting classes, did not attend AA/NA, did not participate in
therapy, did not establish a stable source of income, and did not establish adequate housing. These
are the proofs that typically defeat the parent’s argument that the child should be returned to his or
her care.
Antithetical to the typical case, here the record supports respondent’s report of substantial
progress. At the best interests hearing in this case, respondent testified that she was maintaining
sobriety, housing, and employment, as demonstrated by her compliance with services provided as
a requirement of her probation, despite not being provided services by petitioner. The evidence
introduced at the Ginther hearing corroborated her testimony. Two of the witnesses at the Ginther
hearing, respondent’s AA/NA sponsor and another participant in the program, testified that
respondent’s participation in and commitment to the program was remarkable, and that they had
never previously testified on behalf of a respondent in a child protection proceeding. Such was
their belief in respondent’s commitment to sobriety. The trial court found respondent’s testimony
credible, and no evidence was introduced to refute her sobriety. The trial court found, however,
that termination was in the best interests of the child because the trial court remained unconvinced
that respondent’s sobriety would continue into the future because her newly-found sobriety had
not been demonstrated for more than several months.
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We agree that the safety of the child is paramount and appreciate the trial court’s caution
in this regard. However, the barrier to reunification identified in this case is the prediction that
respondent will not remain sober for long, presenting an opportunity to provide the willing
respondent in this case with the time and services to demonstrate that she can remain sober, and
thus overcome the barrier to reunification. This is the course the trial court should have taken.
We reverse the order of the trial court terminating respondent’s parental rights to NRT, and
remand the matter to the trial court for further proceedings. We direct the trial court to establish a
temporary wardship for NRT and direct petitioner to commence appropriate efforts toward
reunification of respondent and NRT, including parenting time. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
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