IN RE JOSHIA GOODIN MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of J. G., a/k/a J. W., Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
June 16, 2009
Petitioner-Appellee,
v
No. 288254
Wayne Circuit Court
Family Division
LC No. 00-389721-NA
SHAMEKA DENEVA WALKER,
Respondent-Appellant,
and
JOHN ERIC GOODIN,
Respondent.
Before: Murphy, P.J., and Sawyer and Murray, JJ.
PER CURIAM.
Respondent Shameka Walker appeals as of right from the trial court’s order terminating
her parental rights to the minor child pursuant to MCL 712A.19b(3)(g), (i), (j), and (l). We
affirm.
The trial court previously terminated respondent’s parental rights to six other children in
December 2007, and this Court affirmed that decision in In re Walker, unpublished opinion per
curiam of the Court of Appeals, issued August 21, 2008 (Docket No. 283020). While the prior
appeal was pending, respondent gave birth on June 30, 2008, to the child at issue in this case.
Respondent did not receive prenatal care during her pregnancy with the child. After the child
was born, petitioner filed a petition requesting permanent custody of the child. Following a
preliminary hearing on July 3, 2008, the court authorized the petition and the child was placed in
foster care. The adjudicative hearing was held on September 12, 2008. In the meantime,
respondent did not attempt to contact the caseworker to inquire about the child’s status or to
request visitation. At the adjudicative hearing, respondent’s attorney moved for a continuance,
explaining that his attempts to contact respondent, who was present at the hearing, had been
unsuccessful. The trial court denied the request. Later, during the testimony of one of
petitioner’s witnesses, respondent left the courtroom without explanation. Consequently,
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respondent was not called to testify. The trial court thereafter issued an opinion and order
terminating respondent’s parental rights under MCL 712A.19b(3)(g), (i), (j), and (l).
Respondent argues that the trial court abused its discretion in denying her motion for a
continuance, and that doing so deprived her of her right to due process. The grant or denial of a
motion to adjourn a proceeding is within the discretion of the trial court and, therefore, is
reviewed for an abuse of discretion. In re Krueger Estate, 176 Mich App 241, 247-248; 438
NW2d 898 (1989). But because respondent did not raise a due process argument below, her
constitutional issue is not preserved and our review of that issue is limited to plain error affecting
respondent’s parental rights. In re Complaint of McLeodUSA Telecom Services, Inc, 277 Mich
App 602, 619; 751 NW2d 508 (2008); In re Hildebrant, 216 Mich App 384, 389; 548 NW2d 715
(1996).
Under MCR 3.972(A), the trial court was required to hold the adjudicative trial within 63
days after the child’s placement in foster care, which occurred on July 3, 2008, unless trial was
postponed:
(1) on stipulation of the parties for good cause;
(2) because process cannot be completed; or
(3) because the court finds that the testimony of a presently unavailable
witness is needed.
The trial court observed that the trial was already untimely under the court rule and found
no reason to further delay the proceeding. Respondent argues that an adjournment was
warranted under MCR 3.972(A)(3) because her attorney had not been able to contact her and he
indicated that additional time was needed to contact potential witnesses to prepare a defense.
However, subsection (3) only applies when the testimony of a presently unavailable witness is
needed. In this case, counsel never identified any specific witness whose testimony was needed,
nor indicated that any alleged witness was presently unavailable.
Furthermore, MCL 712A.17(1) provides:
The court shall adjourn a hearing or grant a continuance regarding a case
under section 2(b) of this chapter only for good cause with factual findings on the
record and not solely upon stipulation of counsel or for the convenience of a
party. In addition to a factual finding of good cause, the court shall not adjourn
the hearing or grant a continuance unless 1 of the following is also true:
(a) The motion for the adjournment or continuance is made in writing not
less than 14 days before the hearing.
(b) The court grants the adjournment or continuance upon its own motion
after taking into consideration the child’s best interests. An adjournment or
continuance granted under this subdivision shall not last more than 28 days unless
the court states on the record the specific reasons why a longer adjournment or
continuance is necessary.
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Here, respondent failed to establish good cause for a continuance. The basis for the
request was that counsel had not been able to contact respondent and, therefore, did not have an
opportunity to review the case with her. However, more than two months had elapsed since the
child’s removal, it was undisputed that respondent had timely received a copy of the petition and
notice of the hearing, and there was no indication that respondent made any effort to contact
either counsel or the court to inquire about the scheduled trial. Also, a written motion for a
continuance was never filed and there was no suggestion that a continuance was necessary for
the child’s best interests. Under the circumstances, the trial court did not abuse its discretion in
denying respondent’s request for an adjournment.
We also reject respondent’s argument that the trial court’s denial of her request for an
adjournment deprived her of her constitutional right to due process. US Const, Am XIV; Const
1963, art 1, § 17. The basic requirements of procedural due process are an opportunity to be
heard and notice of that opportunity. Dow v Michigan, 396 Mich 192, 205-206; 240 NW2d 450
(1976). Here, it is undisputed that respondent timely received notice of the hearing and was
permitted to participate in the hearing. Respondent has not established a due process violation.
Respondent also argues that the denial of her request for an adjournment violated her
right to the effective assistance of counsel because counsel did not have an opportunity to review
the case with her before the trial or to contact any potential witnesses.
To establish ineffective assistance of counsel, respondent must show that (1) counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms, and (2) there is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. People v Pickens, 446 Mich 298, 309; 521 NW2d 797
(1994); People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007).
Here, respondent does not claim that her attorney’s alleged lack of preparation was
attributable to any deficiency on his part. Furthermore, respondent has not shown that she was
prejudiced by her attorney’s alleged lack of preparation. Although she claims that her attorney
could have more effectively presented a defense if he had been afforded additional time to
prepare, she does not explain how additional preparation time could have affected the case, nor
does she identify any additional evidence that could have been presented, or any additional
witnesses who could have been called or the substance of their proposed testimony. Thus, her
assertion that she received the ineffective assistance of counsel must fail.
Respondent next argues that the trial court clearly erred in finding that there was clear
and convincing evidence to terminate her parental rights under MCL 712A.19b(3)(g) and (j).
We review the trial court’s findings of fact under the clearly erroneous standard. MCR 3.977(J);
In re Sours, 459 Mich 624, 633; 593 NW2d 520 (1999); In re Fried, 266 Mich App 535, 541;
702 NW2d 192 (2005).
The trial court found that termination was warranted under four separate statutory
grounds, MCL 712A.19b(3)(g), (i), (j), and (l). Respondent does not challenge the trial court’s
decision with respect to §§ 19b(3)(i) and (l). Because it is only necessary to establish one
statutory ground for termination by clear and convincing evidence, In re Trejo, 462 Mich 341,
355; 612 NW2d 407 (2000), respondent’s failure to challenge the termination of her parental
rights under §§ 19b(3)(i) and (l) alone precludes any argument that a statutory ground for
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termination was not established by clear and convincing evidence. In any event, considering
respondent’s prior history of neglect, and the previous termination of her rights to six of her
children, the trial court did not clearly err in finding that §§ 19b(3)(i) and (l) were both
established by clear and convincing evidence. See In re Powers, 208 Mich App 582, 588; 528
NW2d 799 (1995) (a parent’s treatment of one child is probative of how that parent will treat
another child).
Finally, in light of respondent’s prior history and the absence of any bond between
respondent and the child involved here, the trial court did not clearly err in finding that
termination of respondent’s parental rights was in the child’s best interests. MCL 712A.19b(5);
In re Trejo, supra at 356-357.
Affirmed.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Christopher M. Murray
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