In Re Jazwinski Minors ( 2024 )

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UNPUBLISHED
August 15, 2024
In re AJ and SJ, Minors.
No. 369820
Newaygo Circuit Court
Family Division
LC No. 23-009885-NA
Before: SWARTZLE, P.J., and K. F. KELLY and YOUNG, JJ.
PER CURIAM.
Respondent-mother appeals by right the trial court’s order terminating her parental rights
to her minor children, AJ and SJ. Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
In early 2023, Jason Thompson, a Children’s Protective Services (“CPS”) investigator from
petitioner Department of Health and Human Services (“DHHS”), was assigned to investigate
respondent after complaints were received that she was allowing her boyfriend, a man named
Morgan John Auw, to have contact with AJ and SJ. Auw had previously been adjudicated on three
instances of sexually abusing other minor children. Respondent was notified of DHHS’s concerns
and affirmed that she was aware of Auw’s past. In February 2023, Thompson created a “verbal
safety plan” with respondent and notified her that she would be held responsible if something were
to happen to the children. In late March 2023, Thompson met with respondent again, and they
created a new, written safety plan that stated that Auw was not to be left alone with the children.
In October 2023, AJ disclosed to a friend that Auw was sexually abusing her. Detective
Kevin Kolk of the Fremont Police Department testified that respondent went to the police
department “right away” to report the sexual abuse, and AJ told him that Auw had sexually
assaulted her five separate times and that the assaults usually occurred at night when respondent
would allow Auw to get into bed with the children to help them fall asleep while she went outside
to smoke and use her phone. Shortly after the disclosure, DHHS petitioned the trial court to take
jurisdiction over the children and issue an order suspending respondent’s parenting time. At a
preliminary hearing, the trial court heard testimony that DHHS made reasonable efforts to prevent
removal of the children by implementing a safety plan in March 2023. DHHS explained that
-1-
respondent did not follow the safety plan concerning Auw and, therefore, it was contrary to the
welfare of the children to allow them to remain in the home. The trial court authorized the petition,
denied respondent’s request for parenting time, and placed the children with their paternal aunt
and uncle.
In December 2023, the trial court began trial to determine whether to terminate
respondent’s parental rights. DHHS stated that termination was in the best interests of the children
because respondent had received “sufficient warning” and still failed to protect AJ. The trial court
subsequently issued an opinion and order terminating respondent’s parental rights under MCL
712A.19b(3)(b)(ii) (parent failed to protect) and (j) (reasonable likelihood that child will be
harmed if returned to parent). In the opinion, the trial court found that respondent had the
opportunity to prevent the sexual abuse but failed to do so. The trial court noted that respondent
knew about Auw’s history of sexual abuse and that DHHS was concerned about her children’s
safety. The trial court concluded, therefore, that “there is a reasonable likelihood that the [children]
would likely be reinjured or abused in the foreseeable future if returned to the parent.” The trial
court noted that “[t]he court recognizes that the actual abuse was perpetrated on [AJ], not [SJ],”
but the court stated that “[t]reatment of one child is probative of how a parent may treat other
children.” For those same reasons, the trial court found that termination was in the children’s best
interests, and this appeal followed.
II. STANDARDS OF REVIEW
We review for clear error both the trial court’s decision that at least one statutory ground
for termination has been proven as well as the court’s decision regarding the minor child’s best
interests. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). “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). “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 120, 139; 809 NW2d 412 (2011). “Best interests are determined on the basis of the
preponderance of the evidence.” In re LaFrance, 306 Mich App 713, 733; 858 NW2d 143 (2014).
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law. A judge first must find the facts, and then must decide whether those
facts constitute a violation of the defendant’s constitutional right to effective assistance of
counsel.” In re Casto, 344 Mich App 590, 610; 2 NW3d 102 (2022) (quotation marks and citation
omitted).
III. STATUTORY GROUNDS
Respondent first argues that the trial court clearly erred when it found that termination was
proper under MCL 712A.19b(3)(b)(ii) because she was unaware of Auw’s likelihood to sexually
abuse her children. When she was made aware that Auw had sexually assaulted AJ, she reported
it to the police immediately. Thus, respondent asserts that there was not clear and convincing
evidence presented at trial to demonstrate that she actually failed to protect her children. We
disagree.
-2-
Termination of parental rights is proper under MCL 712A.19b(3)(b)(ii) when “the parent
who, while not the abuser, failed to protect the child from the other parent or nonparent adult who
is an abuser.” In re LaFrance, 306 Mich App at 725. The statute does not require “that there be
clear and convincing evidence that the children were at risk of harm from the same abuser,” but
rather, “addresses the harm occasioned by a parent who is unwilling or unable to protect his or her
children from abuse.” In re Gonzales/Martinez, 310 Mich App 426, 432; 871 NW2d 868 (2015).
Contrary to respondent’s argument, there was clear and convincing evidence to support the
trial court’s findings. The court heard testimony that after CPS received a complaint that
respondent was allowing Auw to have contact with the children, Thompson notified respondent of
the concerns that DHHS had with Auw’s history of sexual abuse. In contradiction to respondent’s
assertion on appeal, Thompson testified that respondent affirmed that she was aware of Auw’s past
and that respondent was notified that she would be held responsible if Auw were to harm the
children. Despite these early warnings, respondent continued to allow Auw to be alone with the
children. A month later, Thompson and respondent created a written safety plan together that
stated that Auw was not allowed to be alone with the children. However, a few months after the
safety plan was created, respondent allowed Auw to get into bed with the children while she was
not present. Although respondent purportedly reported AJ’s disclosure of sexual abuse
immediately to law enforcement, the fact that she left her children alone with Auw in the first place
in direct violation of the written safety plan demonstrated that respondent was either unable or
unwilling to protect either of her children from potential abuse. See In re Gonzales/Martinez, 310
Mich App at 432; see also In re Archer, 277 Mich App 71, 75; 744 NW2d 1 (2007) (stating that
termination of the respondent’s parental rights under MCL 712A.19b(3)(b)(ii) was justified
because she “associated with known sex offenders, allowed them to have contact with the children,
and even allowed a known sex offender to reside in her home”).
Therefore, the trial court did not clearly err when it found that termination of respondent’s
parental rights was proper under MCL 712A.19b(3)(b)(ii) and, because at least one ground for
termination existed, we do not need to consider the additional grounds upon which the trial court
based its decision.1 See In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
IV. BEST INTERESTS
Respondent next argues that the trial court clearly erred when it concluded that termination
was in the children’s best interests because the trial court did not consider the children’s bond to
respondent or her parenting abilities. We disagree.
“If the court finds that there are grounds for termination of parental rights and that
termination of parental rights is in the child’s best interests, the court shall order termination of
1
In addition, respondent contends on appeal that the trial court clearly erred when it terminated
her parental rights under MCL 712A.19b(3)(b)(i). Our review of the record, however, shows that
the trial court did not base its decision under that subsection. Accordingly, the argument is moot
and we will not entertain it. See TM v MZ, 501 Mich 312, 317; 916 NW2d 473 (2018) (“A moot
case presents nothing but abstract questions of law which do not rest upon existing facts or
rights.”).
-3-
parental rights and order that additional efforts for reunification of the child with the parent not be
made.” MCL 712A.19b(5); see also In re Olive/Metts, 297 Mich App at 40. When considering
best interests, the focus is on the children’s interests rather than the parent’s interests. In re Moss,
301 Mich App 76, 87; 836 NW2d 182 (2013). “To determine whether termination of parental
rights is in a child’s best interests, the 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, and the advantages of a foster home over the parent’s home.”
In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014) (quotation marks and citation omitted).
“The trial court may also consider a parent’s history of domestic violence, the parent’s compliance
with his or her case service plan, the parent’s visitation history with the child, the children’s well-
being while in care, and the possibility of adoption.” Id. at 714. “The trial court should weigh all
the evidence available to determine the child’s best interests.” Id. at 713.
In In re VanDalen, 293 Mich App at 122-123, DHHS filed a petition requesting the
removal of the minor child from the home after the child was admitted to the hospital with injuries
indicative of physical abuse. The mother told DHHS that the father was responsible for the abuse
and that she never trusted the father alone with the child. Id. at 123-124. The parents later
separated, and the mother expressed her desire that the father not be left alone with the minor child.
Id. at 124. However, the parents later reunited and had a second child, who also displayed injuries
indicative of physical and sexual abuse. Id. at 126. Both parents’ parental rights were
subsequently terminated. Id. at 131. Affirming the trial court’s order, this Court stated:
Given that the children’s safety and well-being could not reasonably be
assured in light of the past severe abuse of the children while in respondents’ care,
which remain unresolved, and that the children were thriving in the care of their
foster parents, the court did not clearly err by finding that termination of the
respondents’ parental rights was in the children’s best interests. [Id. at 142.]
Similarly here, the evidence clearly demonstrated that the children’s future safety and well-
being could no longer be reasonably assured in light of the fact that despite full knowledge of the
danger posed to the children, respondent left them alone in their beds with Auw. See id. We agree,
therefore, with the trial court’s conclusion that “[b]oth children are at risk and if returned to their
mother’s home there would be substantial risk of harm found.” At the interview with the sexual
assault nurse examiner, which took place shortly after AJ’s disclosure, the nurse asked AJ “if she
felt safe with mom,” and AJ responded “[Y]es, she will keep me safe.” Respondent contends that
this statement was indicative of a “bond” that the trial court did not consider in determining the
children’s best interests. This argument is not persuasive because although there may have been
a bond demonstrated between AJ and respondent, the trial court was required to weigh all the
evidence available to determine the children’s best interests. See In re White, 303 Mich App
at 713. The trial court found that the majority of the evidence demonstrated that respondent failed
to protect the children from Auw and that the children were at a substantial risk of harm if returned
to respondent’s care and custody. Therefore, the trial court did not err by finding that termination
was in the minor children’s best interests. See In re VanDalen, 293 Mich App at 142.
-4-
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Lastly, respondent argues that her trial counsel was ineffective by failing to present
testimony at trial to show that she was generally a competent parent to her children despite
allowing Auw into their lives, and that this ineffective assistance prejudiced her defense. We
disagree.
The “principles applicable to claims of ineffective assistance of counsel in the arena of
criminal law also apply by analogy in child protective proceedings.” In re Martin, 316 Mich App
73, 85; 896 NW2d 452 (2016). Therefore, “it must be shown that (1) counsel’s performance was
deficient, falling below an objective standard of reasonableness, and that (2) the deficient
performance prejudiced the respondent.” Id.“[D]ecisions regarding what evidence to present and which witnesses to call are presumed
to be matters of trial strategy, and we will not second-guess strategic decisions with the benefit of
hindsight.” People v Dunigan, 299 Mich App 579, 589-590; 831 NW2d 243 (2013). But even
assuming that trial counsel’s decision not to present any testimony or other evidence was
objectively unreasonable, the record does not support respondent’s contention that trial counsel’s
error prejudiced her defense. It was evident from Thompson’s testimony that respondent knew
about Auw’s history of sexual abuse, was sufficiently warned of the consequences, and yet still
allowed Auw to be alone with her children, including in their beds. Therefore, even if trial counsel
had presented testimony about respondent’s parenting abilities or her relationship with her
children, a different result was not reasonably probable. See People v Armstrong, 490 Mich
281, 290; 806 NW2d 676 (2011). Therefore, respondent was not denied her right to the effective
assistance of counsel.
Affirmed.
/s/ Brock A. Swartzle
/s/ Kirsten Frank Kelly
/s/ Adrienne N. Young
-5-