IN RE GARRISON/ALI MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of K.G., N.A., and A.A., Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
February 23, 2010
Petitioner-Appellee,
v
No. 293844
Genesee Circuit Court
Family Division
LC No. 04-117966-NA
ALBASEER GARRISON,
Respondent-Appellant,
and
BASSAM ABAYAA and ANTON ALI,
Respondents.
In the Matter of K.G., N.A., and A.A., Minors.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 293864
Genesee Circuit Court
Family Division
LC No. 04-117966-NA
ANTON ALI,
Respondent-Appellant,
and
ALBASEER GARRISON and BASSAM
ABAYAA,
Respondents.
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Before: Fitzgerald, P.J., and Cavanagh and Davis, JJ.
PER CURIAM.
In these consolidated appeals, respondents Albaseer Garrison and Anton Ali appeal as of
right from a circuit court order terminating Garrison’s parental rights to all three children, and
Ali’s parental rights to the Ali children pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), (c)(ii), (g),
and (j). We affirm.
I. Docket No. 293844
Respondent Garrison argues that trial counsel was ineffective because he failed to request
an adjournment when she did not return for the second day of the termination hearing until after
the proceedings ended. Because respondent Garrison did not raise an ineffective assistance of
counsel issue in a motion for a new trial or request for an evidentiary hearing, our review is
limited to errors apparent on the existing record. People v Rodriguez, 251 Mich App 10, 38; 650
NW2d 96 (2002); People v Hedelsky, 162 Mich App 382, 387; 412 NW2d 746 (1987). Further,
we may not consider the affidavit submitted with respondent Garrison’s brief on appeal. People
v Seals, 285 Mich App 1, 20-21; 776 NW2d 314 (2009); People v Horn, 279 Mich App 31, 38;
755 NW2d 212 (2008).
“[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, 462 Mich 341, 353 n 10;
612 NW2d 407 (2000). Thus, to establish a claim of ineffective assistance of counsel,
respondent Garrison must show that (1) trial 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 error, the result of the proceedings would have been different.
Horn, supra at 37-38 n 2. Counsel is presumed to have provided effective assistance, and
respondent Garrison must overcome a strong presumption that counsel’s assistance was sound
trial strategy. Id. She must also establish the factual predicate for her claim of ineffective
assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
The hearing on the supplemental petition for termination was conducted over two days.
Respondent Garrison appeared and testified the first day, but the proceeding ended before her
attorney could examine her. Respondent Garrison did not appear on the second day until after
the proceedings ended. Although respondent Garrison contends that her attorney should have
requested an adjournment due to her absence, an adjournment in a child protective proceeding
may be granted only “(1) for good cause, (2) after taking into consideration the best interests of
the child, and (3) for as short a period of time as necessary.” MCR 3.923(G). In the general civil
context, the absence of a witness constitutes good cause for an adjournment, but “only if the
court finds that the evidence is material and that diligent efforts have been made to produce the
witness or evidence.” MCR 2.503(C)(2). The decision whether to move for an adjournment is a
matter of trial strategy. Cf. People v Traylor, 245 Mich App 460, 463; 628 NW2d 120 (2001).
“This Court will not substitute its judgment for that of counsel regarding matters of trial strategy,
nor will it assess counsel’s competence with the benefit of hindsight.” People v Rockey, 237
Mich App 74, 76-77; 601 NW2d 887 (1999).
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The record indicates that respondent Garrison was absent from the second day of the
hearing and that her attorney did not know why she had not appeared and could not offer an
opinion with respect to if and when she might be expected to appear. A motion to adjourn due to
the absence of a witness is properly denied where the movant fails to provide an adequate
explanation for the witness’ absence. Tisbury v Armstrong, 194 Mich App 19, 20-21; 486 NW2d
51 (1991). Because the record does not contain any information indicating that there was good
cause for an adjournment, respondent Garrison has failed to establish that her attorney’s failure
to request an adjournment fell below an objective standard of reasonableness. Therefore,
respondent Garrison’s ineffective assistance of counsel claim cannot succeed.
II. Docket No. 293864
Respondent Ali argues that the trial court erred in terminating his parental rights because
the evidence did not clearly prove each element of the statutory grounds for termination or show
that termination was in the children’s best interests. We review the trial court’s findings
regarding the statutory grounds for termination and the children’s best interests for clear error.
MCR 3.977(J); In re Trejo, supra at 356-357.
Even if we agreed with respondent Ali’s arguments that §§ 19b(3)(a)(ii) and (c)(ii) were
not sufficiently established, any error in relying on those statutory grounds was harmless because
the trial court did not clearly err in finding that §§ 19b(3)(c)(i), (g), and (j) were each established
by clear and convincing evidence. See In re Powers, 244 Mich App 111, 118; 624 NW2d 472
(2000). The crux of the allegations against respondent Ali were that he had been an absentee
father who made no significant effort to obtain custody of his children after they entered foster
care, a situation that was clearly and convincingly supported by the evidence. He had no contact
with the children during the pendency of the case and did not even appear for the termination
hearing to request an opportunity to be a father to his children. In light of this history, there was
no reasonable expectation that this situation would be rectified, or that respondent Ali would be
able to provide proper care and custody within a reasonable time given the ages of the children.
In addition, it was reasonably likely that the children would be harmed if placed in the custody of
respondent Ali, a virtual stranger who had shown no interest in being a custodial parent.
Further, considering that respondent Ali had shown no interest in obtaining custody of the
children, and the children’s need for permanence and stability, the trial court did not clearly err
in finding that termination of respondent Ali’s parental rights was in the children’s best interests.
MCL 712A.19b(5); In re Trejo, supra at 356-357.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Mark J. Cavanagh
/s/ Alton T. Davis
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