IN RE EMINGER/HERNANDEZ MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
August 31, 2010
No. 295941
Wayne Circuit Court
Family Division
LC No. 09-487456-NA
In the Matter of BME and KMH, Minors.
In the Matter of BME and KMH, Minors.
No. 295942
Wayne Circuit Court
Family Division
LC No. 09-487456-NA
Before: M.J. KELLY, P.J., and MARKEY and OWENS, JJ.
PER CURIAM.
In these consolidated appeals, respondent mother appeals by right the trial court’s order
terminating her parental rights to her minor children, BME and KMH, pursuant to MCL
712A.19b(3)(b)(i), (g), and (j). Respondent father appeals by right from the same order
terminating his parental rights to KMH on the same statutory grounds. We affirm.
The petition seeking to terminate respondents’ parental rights alleged that the Department
of Human Services received a complaint that three-month-old KMH had bruising under her eyes.
At the time, respondents indicated that Blaine had thrown a sippy cup at KMH’s face. However,
when KMH was re-examined two weeks later, she had additional bruises on her face and back.
KMH was transported to Children’s Hospital in Detroit, where it was discovered that she had
multiple healing fractures of different ages, as well as hemorrhaging behind both eyes. The
petition alleged that the examining physician determined the injuries to be non-accidental.
Respondents denied knowing what may have happened to KMH or how she may have sustained
her injuries.
Because the mother was only 17 years old, the court appointed her a lawyer-guardian ad
litem (LGAL).1 Both respondents pleaded no contest to the allegations in the petition for
1
Even though appointed counsel already represented the respondent mother, an LGAL was
appointed for her without objection at the request of the assistant attorney general representing
(continued…)
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purposes of jurisdiction, statutory basis for termination, and best interests. The parties stipulated
that an eight-page excerpt from Children’s Hospital Medical Records would serve as the court’s
basis to accept the pleas. The reporting physician wrote:
ASSESSMENT AND RECOMMENDATION: [KMH] is a 3-month-old baby
who was admitted to Children’s Hospital of Michigan due to concerns of child
abuse, for further workup and management. Upon interviewing Ms. Hernandez,
[KMH]’s mother, over the phone, there was no history of trauma given to explain
any of the findings. My diagnosis is child physical abuse and abusive head
trauma.
[KMH] has 23 fractures, including 1 skull fracture, and she also has 18 rib
fractures as well as a humerus fracture, bilateral femur fractures and a right tibia
fracture. These fractures are not explained by normal play or normal care of the
baby and are consistent with physical abuse.
The fractured ribs are consistent with forceful shaking of the baby and forceful
squeezing of the rib cage, and the lateral and anterior rib fractures are also
consistent with either squeezing of the rib cage or with direct force or blow to the
ribs.
The fractures that she has of her upper extremities and her bilateral lower
extremities, specifically the metaphyseal corner fractures, are consistent with
flailing of the arms and legs as what happens when infants are shaken forcefully.
Thus, she has evidence of rib fractures as well as extremity fractures as well as an
abusive head injury in the form of a skull fracture and bilateral subdural
hematomas.
*
*
*
Due to [KMH] having multiple rib fractures, all in different stages of healing, this
implies that more than 1 episode of abuse contributes to that.
The trial court terminated respondents’ parental rights based on their pleas and based on the
medical records.
Respondent mother claims that the trial court clearly erred in accepting her no contest
plea, but provides no case law or authority to support her position that the court could not
lawfully accept a no contest plea from a minor parent. A party may not simply state her position
and leave it to the Court to search for support of that position. Badiee v Brighton Area Schools,
(…continued)
the petitioner Department of Human Services. We note that the appointment of an LGAL is
required for the child that is the subject of a neglect petition invoking the jurisdiction of the court
under MCL 712A.2(b). See MCL 712A.13a(g); MCL 712A.17c(7). The seventeen-year-old
respondent mother, however, was not the child that was the subject of the court’s jurisdiction.
Consequently, the appointment of an LGAL was not required.
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265 Mich App 343, 357; 695 NW2d 521 (2005). Respondent mother appears to argue that her
youth prevented her from making a knowing and voluntary plea. The adequacy of the advice of
rights required for acceptance of a plea of admission in a proceeding in circuit court to terminate
parental rights is reviewed on appeal under the same standard of review used to determine the
adequacy of advice of right in proceedings involving a criminal guilty plea. In re Waite, 188
Mich App 189, 192; 468 NW2d 912 (1991). Respondent mother was represented by her courtappointed attorney as well as a court-appointed LGAL. She may have been a minor at the time
of the plea, but that did not preclude a finding that her plea was knowingly and voluntarily made.
The trial court complied with every aspect of MCR 3.971 and there was simply no evidence in
the record to indicate that respondent mother did not have the legal capacity to enter the plea.
For his part, respondent father argues that he was denied the right to effective assistance
of counsel where his counsel made no effort to defend the case or require the prosecution to
present its proofs. The right to counsel guaranteed by the United States Constitution, US Const,
Am VI, applies to child protective proceedings, and the principles of effective assistance of
counsel developed in the context of criminal law apply by analogy in termination of parental
rights proceedings. In re CR, 250 Mich App 185, 197-198; 646 NW2d 506 (2002). Where a
party claims that counsel was ineffective during a plea process, the focus is on whether the plea
was knowingly and voluntarily entered into. People v Watkins, 247 Mich App 14, 31; 634
NW2d 370 (2001), modified on other grounds 468 Mich 233 (2003). The question is not
whether counsel was right or wrong in rendering advice, but whether the advice was within the
range of competent advice. People v Thew, 201 Mich App 78, 89-90; 506 NW2d 547 (1993).
Both respondents faced criminal charges. While a voluntary release was supposed to be
entered into at the scheduled bench trial, it was not because the worker failed to provide the
proper paperwork for the court. After a brief discussion off the record, the court indicated its
understanding that the parents would enter no contest pleas. Because there was no Ginther2
hearing in the lower court, there is simply no record of what respondent father was advised. It
was very likely, however, that the parties intended to voluntarily relinquish their parental rights
and only failed to do so because of the improper paperwork. A no contest plea had the same
result as a voluntary release and would not be admissible in future criminal proceedings. See
MRE 410. The medical records detailing the numerous injuries the child suffered served as an
adequate basis to accept respondents’ pleas.
We affirm.
/s/ Michael J. Kelly
/s/ Jane E. Markey
/s/ Donald S. Owens
2
People v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973).
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