IN RE DEMARCO/WADDELL/SMITH MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of In the Matter of ADDISON LYNNMARIE WADDELL and HARLAND THOMASLOGAN SMITH, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
August 4, 2009
Petitioner-Appellee,
v
No. 288681
Ingham Circuit Court
Family Division
LC Nos. 08-000765-NA
08-000818-NA
WILLIAM WADDELL,
Respondent-Appellant,
and
KATHRYN DEMARCO,
Respondent.
In the Matter of ARIANA LEIGH DEMARCO,
JOSEPH VICTOR DEMARCO, ADDISON
LYNN-MARIE WADDELL, and HARLAND
THOMAS-LOGAN SMITH, Minors.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 288682
Ingham Circuit Court
Family Division
LC Nos. 08-000763-NA
08-000764-NA
08-000765-NA
08-000818-NA
KATHRYN DEMARCO,
-1-
Respondent-Appellant,
and
WILLIAM WADDELL,
Respondent.
Before: Meter, P.J., and Murray and Beckering, JJ.
PER CURIAM.
In these consolidated appeals, respondent father appeals as of right the termination of his
parental rights to the minor children Addison and Harland under MCL 712A.19b(3)(b)(iii), (g),
(j), and (k)(ii), and respondent mother appeals as of right the termination of her parental rights to
all four minor children under MCL 712A.19b(3)(g) and (j). We affirm.
The trial court did not clearly err in finding that the statutory grounds for termination of
respondents’ parental rights were established by clear and convincing evidence. MCR 3.977(J);
In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). Respondents argue that the evidence
was not sufficient to terminate their parental rights at the initial disposition, particularly in light
of the progress respondent mother was making in counseling and petitioner’s failure to offer
respondent father services.
Testimony by respondent mother’s therapist showed her judgment and ability to protect
her children was significantly impaired by the abuse she had suffered as a child and during her
prior relationships, and that she had a desperate psychological need to create the ideal, stable,
two-parent family she had not enjoyed as a child. She allowed respondent father to move into
her home with her two young children from a prior relationship on his first visit to Michigan in
May 2006, despite a background check that revealed he had a criminal record. She subsequently
had two more children during their relationship, the second after this proceeding commenced.
On two occasions in 2007, respondent mother’s daughter disclosed inappropriate
touching by respondent father, but respondent mother did not take action because she felt the
touching may have been accidental and that the child may have possessed histrionic tendencies
like her biological father. On March 21, 2008, the child disclosed to respondent mother that
respondent father partially penetrated her. Although respondent mother believed the child, she
took no action to put respondent father out of her home or report the abuse because she did not
want to confront respondent father, and she left the child with the responsibility of reporting the
abuse to a third party. Respondent mother stated to an investigator that she continued to allow
respondent father to care for the children after the disclosure, but she later testified at the
termination hearing that she did not do so.
Respondent father was arrested for a probation violation by federal marshals on April 1,
2008, extradited to Pennsylvania, and incarcerated. Even then, respondent mother did not report
the abuse to authorities, but the child disclosed it to a police officer at school on April 4, 2008,
the children were removed, and these proceedings commenced. During the approximately ten
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days respondent father was lodged in the Ingham County Jail awaiting extradition, respondent
mother maintained telephone contact with him and visited him instead of accompanying the
child to her forensic interview, and she placed money in his jail account. She maintained
communication partly in cooperation with the investigator to convince respondent father to
submit to a polygraph but also testified she did so because he would not quit badgering her. The
maternal grandmother finally took steps to cut off respondent father’s telephone contact.
The child in question testified at the termination hearing. The trial court found her
allegations of abuse credible and found that respondent father had sexually abused her and that
respondent mother had failed to protect her. In addition, evidence was adduced that respondent
father was domestically violent toward respondent mother, as well as physically abusive to two
of the children, and that the children were afraid of him. Under the doctrine of anticipatory
neglect, how respondents treated one child is indicative of how they might treat the other
children. In re Powers, 208 Mich App 582, 588-589; 528 NW2d 799 (1995). Therefore, the trial
court had clear and convincing evidence that respondents failed to provide proper care or custody
for all of the children. Respondent father admitted no wrongdoing and did not show he engaged
in rehabilitative services in prison. Therefore, the trial court correctly found no reasonable
likelihood he would be able to provide proper care or custody within a reasonable time.
Respondent mother’s challenge was to become able to consistently place the children’s
needs before her own within a reasonable time. The trial court could not know with certainty
whether respondent mother would expose the children to future unhealthy relationships and
danger, but the evidence clearly showed respondent mother had done so for nearly the children’s
entire lifetimes by: (1) returning to her unstable and alcoholic ex-husband in 2004 after divorcing
him, despite engaging in counseling with the same therapist; (2) making the poor decision to
allow respondent father, who was a virtual stranger with a criminal record, entry into her home
and access to her children; (3) leaving one of her children to fend for herself during a year of
sexual abuse and even after disclosure of penetration; (4) failing to report the abuse even after
respondent father was arrested; (5) visiting respondent father in jail and giving him money
instead of accompanying the child in question to her forensic interview; and (6) allowing the
father who had emotionally harmed her as a child to move into her home during these
proceedings to assist her with expenses. The evidence showed that respondent mother had deepseated personality characteristics that caused her to place her wants before the needs of the
children, and that even with domestic violence, individual, and family counseling, her prognosis
would be guarded. Whether respondent father would be convicted for the abuse and how long he
would remain incarcerated was uncertain, but the evidence showed even though respondent
mother ceased contact with him, he did not cease contact with her. Respondent mother would
struggle to maintain her own psychological health, and the record does not create a firm and
definite conviction that the trial court erred in finding that respondent mother would not be able
to significantly change her personality and provide the care the children needed within a
reasonable time.1
1
We note that only one statutory ground need be proven to justify the termination of parental
rights. In re Trejo, 462 Mich 341, 352; 612 NW2d 407 (2000).
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Respondent father asserts on appeal that, in the absence of reunification services, the
evidence was insufficient to terminate his parental rights. The Michigan Legislature mandated in
MCL 722.638(1)(a)(ii) and (2) that petitioner request termination of parental rights at the initial
disposition when a parent is the suspected perpetrator of sexual abuse on a child or her sibling or
when a parent fails to take reasonable steps to intervene to eliminate that risk. Therefore,
petitioner did not provide respondents reunification services other than to refer respondent
mother for a psychological evaluation and parenting classes and to supervise her visits with the
children. This limited provision of services to respondent mother and absence of provision of
services to respondent father was appropriate, given that petitioner is not required to provide any
services when termination of parental rights is the agency goal, In re Terry, 240 Mich App 14, 26
n 4; 610 NW2d 563 (2000), and the legislative mandate justified that decision. In addition,
provision of services presumes some participation by a respondent. Respondent father was
incarcerated in Pennsylvania. Respondent father provided no evidence indicating he voluntarily
engaged in prison services such as counseling, parenting classes, or sexual offender therapy.
Respondents next argue that the trial court did not make adequate best interests findings,
and that the evidence did not show that termination of their parental rights was clearly in the best
interests of the children. MCL 712A.19b(5); In re Trejo, 462 Mich 341, 356-357; 612 NW2d
407 (2000). Findings of fact are sufficient if it appears that the trial court was aware of the issues
in the case and correctly applied the law. See People v Armstrong, 175 Mich App 181, 184; 437
NW2d 343 (1989). In its oral opinion, the trial court stated facts supporting its decision to
terminate respondents’ parental rights under their respective statutory grounds. It recited the
proper best interests standard, and without making additional findings of fact found termination
in the children’s best interests. The trial court’s best interests determination should be based on
evidence derived from the entire record, Trejo, supra at 353-356, and in this case it was evident
that the trial court was aware of the issue and the proper standard and made one recitation of
facts outlining sufficient evidence to support its decision concerning both the statutory grounds
for termination and the children’s best interests. The trial court made adequate best interests
findings.
The evidence was sufficient to show termination was in the children’s best interests. One
child was removed at birth and not bonded to either respondent. Respondent father sexually
abused another child and was physically violent toward respondent mother and the children.
Given the legal presumption of anticipatory neglect, the trial court did not clearly err in finding
termination of his parental rights in the children’s best interests.
In light of respondent mother’s long history of placing her needs before the children’s,
her alignment with respondent father for a period of time even after the children were removed,
the significant change respondent mother was required to make in her very personality in order
to parent the children safely and in a manner protecting their emotional well-being, and the
length of time required before even a guarded reunification could be attempted, the trial court did
not clearly err in finding termination of respondent mother’s parental rights in the children’s best
interests.
Next, respondent father argues that an error requiring reversal occurred because he was
not physically present at the termination hearing. Respondent has waived this issue through
inadequate briefing. See People v Martin, 271 Mich App 289, 315; 721 NW2d 815 (2006). At
any rate, we note that while a respondent has the right to be present at a dispositional hearing,
-4-
either in person or through counsel, the trial court may proceed in his absence if he was provided
proper notice of the proceeding. MCR 3.973(D)(2) and (3). Respondent does not assert lack of
proper notice. The trial court is not required to secure a respondent’s presence. In re Vasquez,
199 Mich App 44, 48-49; 501 NW2d 231 (1993). In this case, respondent father’s choice to
violate probation caused his incarceration in Pennsylvania and inability to be physically present.
In a child protective proceeding, the trial court should grant an adjournment only for good cause
and after considering the children’s best interests. MCR 3.923(G). Given that respondent
requested a five-month adjournment until he was extradited back to Michigan, his physical
presence was impracticable because he was incarcerated in Pennsylvania, and he was represented
by counsel and present by speakerphone on all three dates of the termination hearing, we
conclude that the trial court did not violate respondent father’s procedural due process right by
denying his request to adjourn the termination hearing until he could be physically present. The
evidence also did not show that respondent father was deprived of the opportunity to confer with
counsel or to adequately prepare for the hearing. The trial court record showed counsel was able
to communicate with respondent father by telephone and very ably represented him. Respondent
father does not specify what additional preparation or participation would have been effected had
he been present in person or how it would have resulted in a different outcome in his case.
Extensive discussion of the fact that the Sixth Amendment right to confrontation and
cross-examination does not always apply in child protective proceedings, In re Brock, 442 Mich
101, 109-110; 499 NW2d 752 (1993), is not required because respondent father was provided his
right. In fact, respondent father initially stipulated to the abuse allegations against him being
presented through a detective in order to spare the child the trauma of testifying, and he may not
assert a contrary position on appeal. In re Gazella, 264 Mich App 668, 679; 692 NW2d 708
(2005) (“[a] litigant may not harbor error, to which he or she consented, as an appellate
parachute”). The child did testify and respondent father, present by speakerphone and
represented in person by counsel, fully exercised the opportunity to confront her through crossexamination on the allegations she made against him.
Lastly, respondent mother asserts that her counsel’s act of waiving a jury trial and
advising her to make admissions without bargaining for petitioner’s withdrawal of its request for
immediate termination severely limited her options, placed petitioner in a position of strength,
and was so clearly detrimental on its face that it constituted ineffective assistance of counsel.
Respondent mother raises the issue of ineffective assistance of counsel for the first time on
appeal. A claim of ineffective assistance of counsel should be raised by moving for a new trial
or an evidentiary hearing, but it may be raised for the first time on appeal if the details relating to
the alleged ineffective assistance of counsel are sufficiently contained in the record to permit this
Court to decide the issue. People v Cicotte, 133 Mich App 630, 636; 349 NW2d 167 (1984). In
the absence of an evidentiary hearing in the trial court, review on appeal is limited to mistakes
apparent on the trial court record. People v Rodriquez, 251 Mich App 10, 38; 650 NW2d 96
(2002). A claim of ineffective assistance of counsel usually presents mixed questions of fact and
constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court
reviews the trial court’s findings of fact for clear error and questions of constitutional law de
novo. Id.
-5-
The right to effective assistance of counsel is explicitly guaranteed in criminal cases, and
the principles surrounding it developed in the context of criminal law apply by analogy in child
protective proceedings. In re CR, 250 Mich App 185, 197-198; 646 NW2d 506 (2002).
To establish a claim of ineffective assistance of counsel, respondent is required to show:
(1) that her attorney’s performance was prejudicially deficient and (2) that under an objective
standard of reasonableness, the attorney made an error so serious that counsel was not
functioning as an attorney as guaranteed under the Sixth Amendment. See People v Pickens, 446
Mich 298, 303; 521 NW2d 797 (1994). In showing that counsel’s representation was deficient,
respondent must overcome a strong presumption that counsel’s performance constituted sound
trial strategy. Strickland v Washington, 466 US 668, 690; 104 S Ct 2052; 80 L Ed 2d 674
(1984). It is a general rule that this Court is reluctant to substitute its judgment for that of trial
counsel in matters of trial strategy. Cicotte, supra at 636-637. To demonstrate prejudice, the
defendant must show the existence of a reasonable probability that, but for counsel's error, the
result of the proceedings would have been different. Strickland, supra at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
The decision to waive a jury trial was a matter of trial strategy. The standard of proof
required for assumption of jurisdiction is the relatively low standard of a preponderance of
evidence. MCR 3.972(C)(1). By the time of the adjudication trial, the abused child had already
made statements alleging abuse to a police officer, a detective, and in her forensic interview, and
respondent mother had admitted to a detective and a protective services investigator that the
child told her about the abuse three times but that she did not believe it, and she continued to
allow respondent father to care for the children after the March 2008 incident. Clearly, this
evidence constituted a preponderance of evidence sufficient to assume jurisdiction over the
children whether presented to a judge or jury. Waiving a jury trial was not error and did not
undermine a different outcome.
The decision to make admissions was also a matter of trial strategy. Respondent mother
argues that counsel’s advice to admit allegations he drafted into the petition without bargaining
for petitioner’s removal of its request for immediate termination was clearly detrimental.
However, the trial court record showed that there was no possibility of such a bargain with
petitioner. Petitioner steadfastly refused to withdraw its request for termination. The trial court
record showed that respondent mother’s admission to the fewer and less damaging allegations
her counsel had drafted instead of the facts alleged by petitioner constituted the best plea bargain
agreement available to her. Counsel’s advice to make admissions granting the trial court
jurisdiction was not error and did not prejudice respondent mother. With or without respondent
mother’s admissions, sufficient evidence existed to establish jurisdiction by a preponderance of
evidence.
Affirmed.
/s/ Patrick M. Meter
/s/ Christopher M. Murray
/s/ Jane M. Beckering
-6-
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