IN RE DALTON BUKOWSKI DEWYER MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DALTON BUKOWSKI
DEWYER, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
September 3, 2009
Petitioner-Appellee,
v
No. 290484
Arenac Circuit Court
Family Division
LC No. 07-010068-NA
KATHERINE BUKOWSKI,
Respondent-Appellant.
Before: Saad, C.J., and Whitbeck and Zahra, JJ.
PER CURIAM.
Respondent appeals from a circuit court order that terminated her parental rights to the
minor child pursuant to MCL 712A.19b(3)(c)(i). We affirm. This appeal has been decided
without oral argument pursuant to MCR 7.214(E).
Contrary to respondent’s contention, the trial court did not terminate her parental rights
under MCL 712A.19b(3)(b)(i), (b)(ii), or (j). Rather, the court terminated her parental rights
under § 19b(3)(c)(i). Respondent’s failure to address § 19b(3)(c)(i) precludes appellate relief
with respect to her claim that a statutory ground for termination was not established. In re JS &
SM, 231 Mich App 92, 98-99; 585 NW2d 326 (1999), overruled in part on other grounds In re
Trejo, 462 Mich 341; 612 NW2d 407 (2000). Regardless, the trial court did not clearly err in
finding that this statutory ground for termination was established by clear and convincing
evidence. MCR 3.977(J); In re Trejo, supra at 355. The child came into care because of
respondent’s drug abuse problem. The initial dispositional order was entered in May 2007.
Respondent denied the extent of her problem, failed to take drug treatment seriously, and
continued to test positive for illegal drugs through March 5, 2008. After that, respondent
completed a second inpatient treatment program, but she was found to be in possession of drug
paraphernalia in April 2008. Respondent did not follow through with outpatient treatment as
recommended. While respondent asserted that she was told that she could obtain outpatient
treatment elsewhere and that she began treating with a counselor at CMH, she had only been
treating there a couple of months before she was incarcerated. At the time of the termination
hearing, she was still incarcerated and was not due to be released until October 2008. Further,
there was evidence that it would take approximately two years of sobriety for respondent to be
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deemed to have recovered. Under the circumstances, the trial court did not clearly err in finding
that respondent had a continuing substance abuse problem that was not likely to be rectified
within a reasonable time given the child’s age.
Respondent also argues that she was denied the effective assistance of counsel because
her attorney failed to offer her attendance records for AA meetings into evidence. “[T]he
principles of effective assistance of counsel developed in the context of criminal law apply by
analogy in child protective proceedings.” In re EP, 234 Mich App 582, 598; 595 NW2d 167
(1999), overruled in part on other grounds by In re Trejo, supra at 353 n 10. Because respondent
failed to raise this claim below, our review is limited to the existing record. People v Snider, 239
Mich App 393, 423; 608 NW2d 502 (2000).
To establish ineffective assistance of counsel, a criminal defendant must “show that (1)
his trial counsel’s performance fell below an objective standard of reasonableness under the
prevailing professional norms; and (2) there is a reasonable probability that, but for counsel’s
error, the result of the proceedings would have been different. Counsel is presumed to have
provided effective assistance, and the defendant must overcome a strong presumption that
counsel’s assistance was sound trial strategy.” People v Horn, 279 Mich App 31, 37-38 n 2; 755
NW2d 212 (2008) (citations omitted). A defendant must also establish the factual predicate of
her claim of ineffective assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57
(1999).
Respondent testified that she had attended AA meetings since January 2008. Regarding
the attendance sheets, respondent testified, “My PO had them, and my lawyer had them, we had
them here in April at the last court hearing.” She further testified that she had the attendance
sheets “in a different folder at my mom’s house, they wasn’t in this folder. I meant to get it. But
he has seen them before.” The record does not show that the attendance sheets were in counsel’s
control such that he could have produced them at the hearing. Rather, they were in respondent’s
control and she failed to bring them to court. Accordingly, respondent has not established the
factual predicate for her claim or shown an error by defense counsel. Further, despite the fact
that respondent claimed to have been attending AA meetings since January 2008, it is clear that
she continued to use drugs as indicated by the positive drug tests in January, February, and
March 2008. Therefore, it is not reasonably likely that the outcome would have been different
had the attendance sheets been obtained and admitted into evidence.
Affirmed.
/s/ Henry William Saad
/s/ William C. Whibeck
/s/ Brian K. Zahra
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