IN RE DEVAN DEAN CHAMBERS MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DEVAN DEAN CHAMBERS,
Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
August 23, 2005
Petitioner-Appellee,
v
No. 260699
Monroe Circuit Court
Family Division
LC No. 03-017738-NA
DONNA CHAMBERS,
Respondent-Appellant.
Before: Zahra, P.J., and Cavanagh and Owens, JJ.
PER CURIAM.
Respondent appeals as of right from an order terminating her parental rights to the minor
child pursuant to MCL 712A.19b(3)(i) (parental rights to sibling terminated and prior attempts to
rehabilitate have been unsuccessful) and (l) (parent’s right to another child involuntarily
terminated), which was entered by the Monroe Circuit Court. We affirm.
Respondent argues that although her parental rights to the minor child’s sibling were
previously terminated, there were no prior attempts to rehabilitate respondent. Respondent
further argues that the trial court erroneously found that respondent repeatedly refused to submit
to substance abuse treatment. Respondent also claims that she attempted to obtain inpatient
treatment but was “shuffled around by different agencies” and petitioner did not make adequate
attempts to rehabilitate her.
In order to terminate parental rights, the trial court must find that at least one of the
statutory grounds for termination in MCL 712A.19b(3) has been met by clear and convincing
evidence. In re McIntyre, 192 Mich App 47, 50; 480 NW2d 293 (1993). The trial court’s
decision is reviewed for clear error. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000).
A finding of fact is clearly erroneous if the reviewing court is left with a definite and firm
conviction that a mistake was made. In re Terry, 240 Mich App 14, 22; 610 NW2d 563 (2000).
To be clearly erroneous, a decision must be more than maybe or probably wrong. In re Sours
Minors, 459 Mich 624, 633; 592 NW2d 520 (1999). In applying the clearly erroneous standard,
the Court should recognize the special opportunity the trial court has to assess the credibility of
the witness. MCR 2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
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The trial court did not clearly err in finding that MCL 712A.19b(3)(i) and (l) were met by
clear and convincing evidence. MCR 3.977(J); In re Sours, 459 Mich 624, 633; 593 NW2d 520
(1999). The evidence showed that respondent had her parental rights to her other child, Brianna,
terminated in July 2004 because respondent failed to comply with the terms of her parent agency
agreement, which included obtaining a substance abuse assessment, providing negative drug
screens, and completing substance abuse treatment. Respondent continued to use cocaine and
tested positive for cocaine on September 11, 2004, the day that the minor child Devan was born
two months prematurely and testing positive for cocaine as well. It was clear from the record
that respondent’s parental rights to Brianna had been terminated because of respondent’s
continued cocaine use resulting in serious neglect of Brianna. The record also showed that
respondent was provided the opportunity to obtain substance abuse treatment when Brianna was
temporarily taken from her care, but respondent did not follow through. She did not contact the
agencies to which she was referred for substance abuse assessments and treatment on a timely
basis and did not obtain the required medical authorization number from Medicaid on a timely
basis. Even after the trial court adjourned the termination trial so she could obtain treatment,
respondent did not comply. Over an eight-month period that the trial court had temporary
custody over Brianna, respondent did not even begin treatment on either an inpatient or
outpatient basis. The evidence was clear and convincing that prior attempts to rehabilitate
respondent were not successful and MCL 712A.19b(3)(i) was clearly met. With respect to MCL
712A.19b(3)(l), it was undisputed that respondent had her parental rights to another child,
Brianna, involuntarily terminated in July 2004 and therefore this statutory ground was clearly
met as well.
Respondent next argues that termination of her parental rights is not in the best interests
of the minor child. She claims that had she been given an opportunity and received the needed
treatment, termination would not have been necessary. Respondent’s argument is not supported
by the facts. Respondent’s parental rights to Brianna were terminated as the result of
respondent’s substance abuse problem. Both the minor child Devan and respondent tested
positive for cocaine when Devan was born and respondent admitted to using cocaine when she
was pregnant with Devan. Respondent was given an opportunity to obtain treatment for her
substance abuse problem pursuant to a parent agency agreement throughout the case involving
Brianna. The trial court correctly found that respondent repeatedly chose the option of abusing
illegal substances over the option of providing for her children and that termination of
respondent’s parental rights was in the best interests of the minor child. MCL 712A.19b(5).
Respondent also argues that she should have been provided more significant and
appropriate services to assist her with her substance abuse problem. The law is clear that if
petitioner requests termination in the initial petition, the need to develop and consider a case plan
to reunite the family is eliminated and the trial court can terminate parental rights at the initial
disposition hearing. MCL 712A.19b(4) and MCR 3.977(E). Respondent’s parental rights to
Brianna were terminated just a few months before Devan’s birth. Respondent was provided a
case service plan in the prior case and failed to comply with the terms of it. The FIA provided
referrals and did what it could to get respondent into appropriate treatment and respondent did
not follow through. Respondent did not even appear for the termination trial in Brianna’s case.
Considering this, as well as the Devan’s need for permanency, the trial court did not clearly err
when it terminated respondent’s parental rights to Devan without giving respondent additional
services and the opportunity to comply with the terms of a parent agency agreement. It is clear
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from the record that the goal of the petition was termination and that MCL 712A.18f(3)(d) is not
applicable because the plan was never reunification of respondent with Devan.
Finally, respondent argues that she was denied the effective assistance of counsel. The
principles of ineffective assistance of counsel as they have developed in the criminal law context
have been applied by analogy to claims of ineffective assistance of counsel at a termination of
parental rights hearing. In re Simon, 171 Mich App 443, 447; 431 NW2d 71 (1988). A criminal
defendant claiming ineffective assistance of counsel must satisfy the two-part test articulated in
Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 674(1984). People v Carbin, 463
Mich 590, 600; 623 NW2d 884 (2001). The defendant must show that (1) counsel made errors
so serious that counsel was not performing as the “counsel” guaranteed by the Sixth
Amendment, and (2) the deficient performance prejudiced the defense, which requires a showing
of a reasonable probability that, but for counsel’s error, the result of the proceeding would have
been different. Id.
Respondent argues that her counsel did not provide case law to the court that would
support the position that the FIA must provide services before it can seek termination of
respondent’s parental rights. However, the law is clear that the FIA is not required to provide
services if the goal of the petition is termination. Respondent also argues that her counsel did not
provide the trial court with an argument or testimony that termination of her parental rights was
not in the best interests of the minor child. Again, the record is clear that respondent chose the
option of abusing cocaine over the option of caring for her children and that termination of
respondent’s parental rights is in the best interests of the minor child. Thus, respondent has not
shown that her counsel made errors so serious that she was not performing as the “counsel”
guaranteed by the Sixth Amendment or that her counsel’s deficient performance prejudiced her
and that there was a reasonable probability that, but for her counsel’s error, her parental rights
would not have been terminated.
Affirmed.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Donald S. Owens
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