IN RE UTTENWEILER MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of A.M.U. and V.J.U., Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
October 11, 2002
Petitioner-Appellee,
v
No. 237622
Muskegon Circuit Court
Family Division
LC No. 99-027926-NA
SUE BIGELOW,
Respondent-Appellant,
and
VINCENT JOSEPH UTTENWEILER,
Respondent-Not Participating.
Before: Fitzgerald, P.J., and Holbrook, Jr. and Cavanagh, JJ.
PER CURIAM.
Respondent-appellant Sue Bigelow (hereafter “respondent”) appeals as of right from an
order terminating her parental rights to the minor children pursuant to MCL 712A.19b(3)(g). We
affirm.
The trial court did not clearly err in finding that the statutory ground for termination was
established by clear and convincing evidence. See MCR 5.974(I); In re Miller, 433 Mich 331,
337; 445 NW2d 161 (1989). Further, the evidence did not show that termination of respondent’s
parental rights was clearly not in the children’s best interests. See MCL 712A.19b(5); In re
Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000).
We reject respondent’s claim that reversal is required because the trial court violated
MCR 5.915(B)(1)(b), by failing to appoint an attorney to represent her at the later proceedings
involving respondent Uttenweiler. The trial court appointed counsel for respondent at the outset
of the case and there is no indication in the record that counsel was ever discharged. Absent a
discharge by the court, the attorney of record continued to represent respondent-appellant. MCR
5.915(E). In any event, regardless of whether respondent’s attorney was discharged or merely
absent at the subsequent proceedings involving respondent Uttenweiler, respondent is not
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entitled to relief. MCR 5.915(B)(1)(b) does not require the court to appoint counsel on the
court’s own motion. In re Hall, 188 Mich App 217, 222; 469 NW2d 56 (1991). Rather, the
court rule requires “affirmative action” on the part of a respondent to have counsel appointed.
Id. Respondent failed to take affirmative action to request the appointment of counsel at the
proceedings involving Uttenweiler.
Moreover, respondent does not suggest how she was prejudiced by the absence of
counsel at those proceedings, nor do we discern any prejudice. The proceedings in question
were focused on a new allegation concerning respondent Uttenweiler. It is apparent from the
court’s decision terminating respondent’s parental rights that the decision was not based on
evidence presented at the later proceedings. Rather, the court relied on the evidence presented at
the earlier proceedings, at which respondent was represented by counsel, as the basis for its
decision. Also, although respondent was not given an opportunity for closing argument at the
close of the proceedings involving Uttenweiler, her attorney had previously submitted a written
closing argument that addressed the evidence against her, on which the trial court’s decision was
based. Under the circumstances, any error was harmless. Id. at 222-223.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
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