IN RE BRIYANA & SCHAUNTAE KIBBY MINORS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of BK and SK, Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
June 12, 2001
Petitioner-Appellee,
v
No. 227073
Emmet Circuit Court
Family Division
LC No. 97-004131-NA
LISA KIBBY,
Respondent-Appellant,
and
HAROLD GREEN and DANI R. MALM,
Appellees.
Before: Wilder, P.J., and Hood and Cavanagh, JJ.
PER CURIAM.
Respondent appeals as of right the termination of her parental rights to her minor
children, SK (DOB 10/20/87) and BK (DOB 12/11/96), pursuant to MCL 712A.19b(3)(g)
[parent, without regard to intent, fails to provide proper care or custody for the child], and (j)
[reasonable likelihood of harm if child is returned to parent’s home]; MSA
27.3178(598.19b)(3)(g) and (j).1 We affirm.
On appeal, respondent first argues that she was denied effective assistance of counsel at
the termination hearing. The right to due process indirectly guarantees effective assistance of
counsel in child protective proceedings. In re EP, 234 Mich App 582, 597-598; 595 NW2d 167
1
The petition for termination also sought termination under MCL 712A.19b(3)(a)(ii); MSA
27.3178(598.19b)(3)(a)(ii) [parent has deserted the child for 91 or more days and has not sought
custody of the child during that period]; however, the family court did not make a finding
regarding this subsection and this decision has not been appealed by either party.
-1-
(1999). In child protective proceedings, the principles of effective assistance of counsel
developed in the criminal law context apply by analogy. Id. at 598. To establish a claim of
ineffective assistance of counsel, a respondent must show that counsel’s performance fell below
an objective standard of reasonableness and, but for counsel’s error, there is a reasonable
probability that the result of the proceedings would have been different, thus depriving
respondent of a fair trial. People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994).
Respondent’s ineffective assistance of counsel allegation is threefold; first, respondent
argues that she received ineffective assistance as a consequence of her counsel’s evidentiary and
witness presentation decisions. We disagree. After a thorough review of the record, we find that
respondent’s counsel’s performance with regard to evidentiary and witness presentation decisions
cannot be deemed objectively unreasonable. See People v Rockey, 237 Mich App 74, 78; 601
NW2d 887 (1999). This Court will not substitute its judgment for that of counsel regarding
matters of trial strategy and decisions as to what evidence to present and whether to call or
question witnesses are presumed to be matters of trial strategy. Id. at 76; People v Rice (On
Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
Respondent also claims that she was denied the effective assistance of counsel because
respondent was absent from both review hearings and, although her counsel moved for a
continuance prior to the hearing, he failed to move for a continuance at the conclusion of proofs.
Respondent has failed to cite any supporting authority for her claim. Respondent may not merely
announce her position and leave it to this Court to discover and rationalize the basis for her
claims. People v Leonard, 224 Mich App 569, 588; 569 NW2d 663 (1997). Therefore, this
issue is not properly presented for appellate review. People v Kelly, 231 Mich App 627, 640;
588 NW2d 480 (1998).
Next, respondent argues that she received ineffective assistance as a consequence of her
counsel’s failure to raise, investigate, and/or pursue the application of the Indian Child Welfare
Act of 1978 (ICWA), 25 USC 1901 et seq. to the proceeding. See also MCR 5.980. To
overcome the presumption of effective assistance, respondent must show that her counsel failed
to perform an essential duty and that the failure was prejudicial to respondent. See People v
Laidlaw, 169 Mich App 84, 96; 425 NW2d 738 (1988). In addition, counsel has a duty to
advocate their client’s cause and to reasonably investigate the law and facts of the case. See
Strickland v Washington, 466 US 668, 688, 690; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Further,
since respondent failed to preserve this issue below by way of a motion for a new trial or
Ginther2 hearing, our review of this issue is limited to errors apparent on the record. In re Ayres,
239 Mich App 8, 23; 608 NW2d 132 (1999). On the record, we find no error to support
respondent’s claim of ineffective assistance of counsel. We further find that even if counsel
failed to investigate the applicability of the ICWA, respondent’s ineffective assistance claim still
must fail because she has not shown that she was prejudiced by her counsel’s errors. Laidlaw,
2
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
-2-
supra; Stanaway, supra.
The ICWA requires that specific federal procedures and standards be applied to child
custody proceedings involving termination of parental rights to an Indian child. Most relevant
with regard to this matter are the following provisions of 25 USC 1912, in pertinent part:
(a) In any involuntary proceeding in a State court, where the court knows or has
reason to know that an Indian child[3] is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child shall notify the
parent or Indian custodian and the Indian child’s tribe, by registered mail with
return receipt requested, of the pending proceedings and of their right of
intervention. If the identity or location of the parent or Indian custodian and the
tribe cannot be determined, such notice shall be given to the Secretary [of the
Interior4] in like manner, who shall have fifteen days after receipt to provide the
requisite notice to the parent or Indian custodian and the tribe. [25 USC 1912(a).]
See also MCR 5.980(A)(2). At the preliminary hearing held on April 22, 1999, the referee had
the following colloquy with respondent:
The Referee: Are either of your children eligible for membership in an American
Indian Tribe or Band?
***
Ms. Kibby: I know I have a lot of Indian in me. I don’t know.
The Referee: Ok. I am going to go ahead and put that down to be researched.
As a result of this discussion, the referee, in an order dated April 22, 1999, directed the FIA to
investigate and pursue this claim. Here, the record clearly establishes that the FIA complied with
this order. In a June 16, 1999 letter5 to respondent’s counsel, Phil Dickinson6 indicated to
3
An “Indian child” is defined as “any unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.” 25 USC 1903(4).
4
See 25 USC 1903(11).
5
This letter, filed with the trial court on June 17, 1999 and attached as an exhibit to respondent’s
brief on appeal, does not appear in the lower court record provided to this Court on appeal.
Nevertheless, it is apparent from the “Received and Filed” stamp affixed to the document that it
is part of the record. Because the document is not in the record provided to us, it is likely
contained in the “social” file historically utilized by the juvenile court to maintain confidential
information separate from the “legal” file that contains all pleadings and other filings in a
particular case. MCR 7. 210(A)(1) states that “the record consists of the original papers filed in
[the lower] court.” Accordingly, the letter is properly considered by this Court on appeal. See
also Michigan Court of Appeals IOP 7.210(A).
-3-
respondent’s counsel, and the court, that the FIA immediately began to investigate this claim on
April 23, 1999, but that respondent did not respond to its inquiries until June 2, 1999. In
addition, after forwarding the information provided by respondent to the Bureau of Indian Affairs
(BIA), the BIA informed the FIA that more information was required. The letter went on to state
that respondent’s cooperation was needed in order to continue to research the issue and requested
counsel’s help in obtaining the necessary information from respondent.
While respondent’s affidavit in support of her ineffective assistance claim maintains that
counsel never contacted her regarding the information the FIA was seeking, her affidavit does not
establish that Dickinson did not further inquire about this needed information directly from
respondent at the June 29, 1999 plea hearing at which respondent, counsel, and Dickinson were
all present. Further, the record indicates that respondent left town in July, 1999, was not
available to be reached by FIA in connection with implementing the parent-agency agreement,
and did not return until two weeks prior to the February 24, 2000 termination hearing. Therefore,
respondent’s extended absence from the area indicates not only her failure to cooperate with FIA,
but also the difficulty counsel would have in obtaining this additional information regarding the
children’s possible membership in an Indian Tribe from respondent.7
Under the facts presented, we find that because petitioner complied with the notice
requirements of the ICWA, § 1912(a); MCR 5.980(A)(2);8 and because the record shows
respondent failed to maintain contact with the FIA, left town, missed two review hearings, and
did not return until just prior to the termination hearing, it is not apparent from the record that
respondent’s counsel failed to perform an essential duty in representing respondent. Further,
even if counsel was ineffective, respondent’s lack of cooperation with the FIA and counsel
precludes a finding that counsel’s alleged failure to perform his duty caused her prejudice.
Therefore, respondent has failed to establish her ineffective assistance claim. Strickland, supra;
Laidlaw, supra; Stanaway, supra.
Respondent next argues that the family court erred in terminating her parental rights
pursuant to MCL 712A.19b; MSA 27.3178(598.19b) because petitioner failed to establish by
(…continued)
6
Dickinson was the Children’s Protective Service Worker initially assigned by the FIA to handle
respondent’s case.
7
The dissent is correct that we cannot conclusively determine that Dickinson requested this
information from respondent at the plea hearing, or that counsel was not able to contact
respondent during her absence from the geographical area. However, we note again that because
respondent has not preserved her claim of ineffective assistance of counsel, effective assistance
of counsel is presumed and respondent has the burden of persuading us from evidence on the
record that her counsel was ineffective. Laidlaw, supra.
8
See also In re TM, ___ Mich App ___; ___ NW2d ___ (Docket No. 220650, issued March 31,
2001) slip op p 4. We note that even though respondent indicated on the certification request
form that her children may be members of either the Blackfoot or Apache tribe, respondent also
placed a question mark next to this answer. Thus, the FIA had no way of determining if the
children were members of either tribe and therefore correctly notified the BIA, as required by the
ICWA.
-4-
clear and convincing evidence one of the statutory grounds for termination and, alternatively, that
termination of respondent’s rights, was clearly not in the best interest of the children. We
disagree.
Upon review of the entire record, we find that the family court did not clearly err in
finding that statutory grounds for termination were established by clear and convincing evidence.
MCL 5.974(I); In re Trejo Minors, 462 Mich 341, 350; 612 NW2d 407 (2000); In re Sours, 459
Mich 624, 633; 593 NW2d 520 (1999); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (199).
This Court’s review of a trial court’s factual findings in an order terminating parental rights is for
clear error. MCR 5.974(I); In re Miller, supra at 337; In re Vasquez, 199 Mich App 44, 51; 501
NW2d 231 (1993). A finding of fact is clearly erroneous if, although there is evidence to support
it, the reviewing court is left with a definite and firm conviction that a mistake has been made. In
re Miller, supra. Deference must be accorded to the trial court’s assessment of the credibility of
the witnesses before it. MCR 2.613(C); In re Newman, 189 Mich App 61, 65; 472 NW2d 38
(1991). Once the trial court finds a statutory ground for termination by clear and convincing
evidence, the court must terminate parental rights unless it finds, based on the whole record, that
termination is clearly not in the best interests of the children. MCL 712A.19b(5); MSA
27.3178(598.19b)(5); In re Trejo Minors, supra at 350; In re Maynard, 233 Mich App 438, 450451; 592 NW2d 751 (1999).
The record in this case clearly establishes that respondent failed to provide proper care or
custody for her children and that, considering the age of the children, there is no reasonable
expectation that she will be able to provide proper care or custody within a reasonable time.
Since the late 1990s, respondent has been unable to provide for her children, on a consistent
basis, for any meaningful period of time. In addition, the record reflects a serious inability of
respondent to maintain a sober lifestyle, even though she has had significant outpatient treatment
and two inpatient rehabilitation opportunities. Further, the evidence established that respondent
failed to maintain employment or visits with her children, did not complete parenting classes or
therapy, and lost contact with the FIA from July 1999 to February 2000, thus missing both
review hearings. Based on this evidence, we agree with the family court that there was clear and
convincing evidence that respondent, without regard to intent, has failed to provide proper care
or custody to her children. Accordingly, termination of her parental rights under subsection
19b(3)(g) was proper.9
Further, the family court’s assessment of the best interests of the children was not clearly
erroneous. MCL 712A.19b(5); MSA 27.3178(598.19b)(5); In re Trejo Minors, supra. The
record clearly indicates that respondent has a difficult time remaining sober, that she visited with
the children only a handful of times, and that the children have been, and would continue to be,
emotionally damaged from contact with respondent. Accordingly, we are not left with a definite
and firm conviction that the family court erred when it determined that termination was clearly
9
Because the family court properly terminated appellant’s parental rights under subsection
19b(3)(g) and only one statutory ground for termination must be established in order to terminate
parental rights, we need not decide whether termination was also proper under subsection
19b(3)(j). In re Trejo Minors, supra at 350.
-5-
not in the best interest of respondent’s children. MCL 712A.19b(5); MSA 27.3178(598.19b)(5);
In re Miller, supra; In re Trejo Minors, supra; In re Maynard, supra.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Harold Hood
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
