Opinion
No. 350714
06-11-2020
In re N. A. ZORDELL, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Berrien Circuit Court Family Division
LC No. 2017-000027-NA Before: GADOLA, P.J., and CAVANAGH and M. J. KELLY, JJ. PER CURIAM.
Respondent-mother appeals as of right an order terminating her parental rights to the minor child, NAZ, under MCL 712A.19b(3)(c)(i) (failure to rectify conditions of adjudication) and (j) (reasonable likelihood that child will be harmed if returned to parent). We affirm.
On March 17, 2017, the Department of Health and Human Services (DHHS) filed a petition alleging that mother's home was inappropriate for NAZ, she was not able to provide for him, and he was without proper care and custody. According to the petition, mother admitted that NAZ was placed with his father because she did not have an appropriate home for him. But father's home was found unfit for a child. Further, NAZ was interviewed at his school, where he appeared ill and disheveled. Mother acknowledged that she had a history of domestic violence with her current, live-in boyfriend, and there was a no-contact order between her boyfriend and NAZ. Nevertheless, mother continued to allow her boyfriend to live in her home, despite his criminal history that included multiple convictions for various substance abuse offenses. The DHHS further alleged that mother had an active arrest warrant out for assault and battery charges, and she was under a court order because of mental health issues. Further, the Wexford Family Court confirmed that the custody order in place regarding NAZ allowed mother parenting time for two weekends each month; however, mother had not seen NAZ since the fall of 2016.
On March 17, 2017, the trial court removed NAZ from his parents' care and placed him in foster care. Thereafter, NAZ was appointed a lawyer-guardian ad litem (L-GAL), who requested a trauma assessment for the child. Father died on April 4, 2017, shortly after these proceedings were initiated. Mother pleaded no-contest to the allegations in the petition and was ordered to comply with and benefit from a case service plan designed to address her substance abuse, lack of parenting skills, inappropriate housing, improper supervision, domestic violence, and unemployment. Subsequently, NAZ was diagnosed with post-traumatic stress disorder, attention deficit hyperactivity disorder (ADHD), as well as fetal alcohol syndrome, and was provided services. The trauma assessment recommended that NAZ receive permanency as soon as possible and his therapist recommended that parenting time be suspended with mother—whom the child rarely referred to and then only by her first and last name—to give NAZ a chance to heal from the trauma of the past. Despite being provided extensive services, including parenting time, transportation assistance, family-team meetings, drug screens, and psychological evaluation, assessments, and counseling, mother showed little to no progress throughout the 19 months that NAZ was in foster care. Additionally, mother's interactions with the child were "sporadic."
The DHHS filed a termination petition on August 15, 2018, alleging that mother failed to benefit from services, failed to rectify the barriers to reunification, and failed to substantially comply with her case service plan. At the subsequent termination hearings, the L-GAL cross-examined witnesses and argued that the DHHS established statutory grounds to terminate mother's parental rights and that termination was in NAZ's best interests. The L-GAL highlighted the facts that mother had not completed a single service in the 19 months since NAZ came into care and had not addressed her psychiatric, domestic violence, homelessness, unemployment, and other serious issues; thus, she was not even able to begin to address the child's special needs, which were "severe." The L-GAL noted that NAZ's permanent caregiver would need "extraordinary resources of physical, emotional, mental health, and support systems and—consistency in his appointments. [Mother] hasn't been able to demonstrate that she can do that for herself and her own needs." The L-GAL also noted NAZ's trauma therapist's testimony that NAZ was "not a child who can wait for permanency" and that he needed permanency "[l]ast month." The L-GAL believed that NAZ should not be "dragged along" mother's path of poor choices.
In reaching its decision to terminate mother's parental rights, the trial court referred to the testimony of mother's domestic violence therapist which included that mother was inconsistently attending sessions. And, the court noted, there "was no evidence presented to the Court at the termination hearing from [mother's therapist] that [mother] benefited in any way from the services that she was offered." In fact, the court noted, there was "no question" that mother was in an "unstable relationship because of domestic violence" and that mother "went to jail for assaultive behavior." The court also held that there was "no proof presented at the termination hearing that [mother] benefited from any of the [mental health] services that were offered to her. The evidence showed . . . that she participated in—or showed up, kept less than 50 percent of her appointments." Further, mother's parenting skills had not improved, she still struggled with "emotional impulsivity," attended less than 50% of her parenting time, remained unemployed and unable to financially provide for NAZ, and continued to have housing and homelessness issues. In conclusion, the trial court found the proofs presented at the termination hearings, including the testimony of mother's therapists and the caseworkers, proved grounds for termination under MCL 712A.19b3(c)(i) and (j) by "extraordinarily clear" and convincing evidence.
The trial court also found by a preponderance of the evidence that termination of mother's parental rights was in NAZ's best interests. The trial court noted that the child had "very special needs because of a lot of reasons: fetal alcohol syndrome, ADHD, [and] the trauma that he's experienced in his life." The court noted that mother did not have custody of the child when the case began in March 2017, had not had contact with him for a number of months before the case began, and had "very limited contact" with NAZ throughout these proceedings. The trial court found the amount of time that it might take mother to rectify the conditions that brought the child into care was unreasonable considering her lack of any progress despite the "extraordinary" lengths DHHS went to in an effort to help her. The court referred to NAZ's "very well-respected trauma expert" therapist's testimony that—considering the child's special needs and the trauma he had experienced—NAZ had "an increased need for a permanent, safe, caregiving relationship," which mother could not provide because she was "unfit" to raise the child. The therapists noted that NAZ's caregiver would "be required to be fully in control of their own emotions" and be "able to commit to NAZ's well-being as a priority." Both the trauma therapist and NAZ's counselor—who had met with the child 58 times—testified that termination was in NAZ's best interests. The court also found that there was no evidence of a bond between mother and NAZ; mother's parenting skills were lacking; the child's need for permanency, stability, and finality were "extraordinarily high"; NAZ was placed in a safe, loving home; mother had a history of domestic violence and convictions of assault; mother failed to comply with her case service plan; NAZ had the possibility of being adopted; and "there was never a time where progress was made in this case." Accordingly, the court entered an order terminating mother's parental rights.
Mother now appeals and argues that NAZ was denied the effective assistance of counsel because the L-GAL failed to represent NAZ's best interests. This claim is without merit.
The right to counsel guaranteed by the United States and Michigan Constitutions, US Const, Am VI; Const 1963, art 1, § 20, is the right to effective assistance. People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). An attorney must be appointed for the child in child protective proceedings. MCL 712A.17c(7). While only the right to counsel in criminal proceedings is explicitly guaranteed by constitutional provisions, the right to due process also indirectly guarantees assistance of counsel in child protective proceedings. In re EP, 234 Mich App 582, 597-598; 595 NW2d 167 (1999), overruled in part on other grounds by In re Trejo, 462 Mich 341, 353 n 10; 612 NW2d 407 (2000). Therefore, the principles of effective assistance of counsel that apply in the context of criminal law also apply by analogy in child protective proceedings. In re EP, 234 Mich App at 598. However, as this Court also stated in EP, 234 Mich App at 598:
[C]onstitutional protections are generally personal and cannot be asserted vicariously, but rather only " 'at the instance of one whose own protection was infringed.' " A plaintiff must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties. Because the right to effective assistance of counsel is a constitutional one, it is personal to the child and respondent may not assert it on behalf of the child. [Citations omitted.]Accordingly, as she admits in her appellate brief, mother lacks standing to challenge the effectiveness of the minor child's attorney. Consequently, because mother does not have standing, we decline to address the merits of this argument. Nevertheless, we note and reject mother's unsupported claim that the L-GAL did not comply with the requirements of MCL 712A.17d. The record clearly refutes this claim. And, further, no prejudice was shown.
Affirmed.
/s/ Michael F. Gadola
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly