IN RE J L THURMOND MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
September 23, 2010
In the Matter of J. L. THURMOND, Minor.
No. 296972
Wayne Circuit Court
Family Division
LC No. 07-471125-NA
In the Matter of J. L. THURMOND, Minor.
No. 296973
Wayne Circuit Court
Family Division
LC No. 07-471125-NA
Before: WILDER, P.J., and CAVANAGH and M. J. KELLY, JJ.
PER CURIAM.
In these consolidated appeals, respondents DV Johnson and LL Thurmond each appeal as
of right the trial court’s order terminating their parental rights to the minor child. The court
terminated respondent Johnson’s parental rights under MCL 712A.19b(3)(b)(ii), (c)(i), (g), and
(j), and terminated respondent Thurmond’s parental rights under MCL 712A.19b(3)(b)(i), (c)(i),
(g), and (j). Because we conclude there were no errors warranting relief, we affirm.
I. STATUTORY GROUNDS FOR TERMINATION AND THE BEST INTERESTS
DETERMINATION
Both respondents argue that the trial court erred in finding that there was sufficient
evidence to establish the statutory grounds for termination, and in finding that termination of
their parental rights was in the child’s best interests. A statutory ground for termination must be
proven by clear and convincing evidence. In re Trejo, 462 Mich 341, 355; 612 NW2d 407
(2000). In reviewing a trial court’s decision to terminate parental rights, this Court reviews “for
clear error a trial court’s factual findings as well as its ultimate determination that a statutory
ground for termination of parental rights has been proved by clear and convincing evidence.” In
re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010); see also MCR 3.977(K). A finding is
clearly erroneous if, despite there being some evidence to support it, the reviewing court is left
with the definite and firm conviction that a mistake has been made. In re Mason, 486 Mich at
152. Once a statutory ground for termination is established, the trial court shall order
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termination of parental rights if it finds that termination is in the child’s best interests. MCL
712A.19b(5). This Court also reviews for clear error the trial court’s best interests finding. In re
Trejo, 462 Mich at 356-357.
The evidence showed that respondent Thurmond physically abused respondent Johnson’s
two older children. Although Thurmond admitted committing the abusive acts, he never
acknowledged that his conduct constituted physical abuse, or that it was inappropriate and
excessive discipline. His therapist, whose testimony was generally favorable to Thurmond,
acknowledged that Thurmond might be minimizing the physical abuse. Thurmond’s abusive
treatment of Johnson’s older children was probative of his potential abuse of JL. In re AH, 245
Mich App 77, 84; 627 NW2d 33 (2001). Further, considering Thurmond’s failure to recognize
that his treatment of the children was abusive, the trial court did not clearly err in finding that
there was a reasonable likelihood that JL would suffer from similar abuse in the foreseeable
future if placed in his home. Thus, the trial court did not clearly err in finding that termination of
Thurmond’s parental rights was justified under § 19b(3)(b)(i).
KM testified that respondent Johnson was present when she and BJ were abused by
Thurmond. Thus, the trial court did not clearly err in finding that Johnson had the opportunity to
protect the children from Thurmond’s physical abuse and failed to do so. The evidence also
showed that respondent Johnson continued to associate with Thurmond and allowed him to have
unsupervised contact with JL, in violation of the trial court’s orders. In addition, Johnson would
not discuss Thurmond’s abusive behavior in therapy. Accordingly, the trial court did not clearly
err in finding that there was a reasonable likelihood that JL would suffer injury or abuse in the
foreseeable future if placed in Johnson’s home. Accordingly, the trial court did not clearly err in
finding that termination of Johnson’s parental rights was justified under § 19b(3)(b)(ii).
The evidence of the abusive environment in respondents’ home and each respondent’s
failure to benefit from services designed to resolve that issue also supports the trial court’s
decision to terminate their parental rights under §§ 19b(3)(c)(i), (g), and (j).
The trial court also did not clearly err in its consideration of JL’s best interests. Although
there was evidence of a bond between JL and both respondents, and evidence that JL showed
signs of stress after his separation from Johnson, it was in his best interests to be removed from
an environment in which he would be subject to a risk of harm or abuse. See MCL 712A.19b(5).
II. MODIFICATION OF THE COURTROOM
Both respondents argue that the trial court improperly modified the courtroom at the 2007
adjudicative trial to accommodate KM’s testimony. They contend that the modification was
improper because no prior notice was given and because the court failed to make any findings on
the record that the modification was necessary to avoid psychological harm to the witness. See
MCR 3.922(E) and MCL 712A.17b(12). Because neither respondent objected to the trial court’s
modification of the courtroom, this issue is not preserved. This Court reviews unpreserved
issues for plain error affecting substantial rights. In re HRC, 286 Mich App 444, 450; 781
NW2d 105 (2009).
This issue is not properly before this Court. The issue addresses a procedure that was
used at the adjudicative trial to determine whether the trial court had jurisdiction over the child.
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It is well established that a respondent in a child protection proceeding cannot collaterally attack
the trial court’s exercise of jurisdiction in an appeal from a subsequent order terminating the
respondent’s parental rights. In re Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993).
Respondents had an opportunity to raise this issue in a direct appeal from the initial dispositional
order after the trial court’s exercise of jurisdiction. MCR 3.993(A)(1); In re Bechard, 211 Mich
App 155, 159-160; 535 NW2d 220 (1995). They did not do so, and may not now collaterally
challenge the trial court’s exercise of jurisdiction in this appeal.
III. FAILURE TO MODIFY THE TREATMENT PLAN
Respondent Johnson argues that the trial court erred by failing to modify her treatment
plan to specifically address her relationship with Thurmond. There is no indication in the record
that Johnson ever requested that her treatment plan be modified in the manner argued on appeal.
Accordingly, this issue is unpreserved and our review is limited to plain error affecting
Johnson’s substantial rights. In re HRC, 286 Mich App at 450.
MCL 712A.19(7)(a) provides that a trial court may modify any part of a case service
plan, including the prescription of additional services, to alleviate or mitigate the conditions that
caused a child to be placed in foster care. Johnson appears to argue that the trial court should
have ordered petitioner to provide services directly targeting her continued relationship with
Thurmond. However, she does not specify what additional services should have been provided,
other than to generally suggest that the trial court could have modified the goals of her therapy or
required additional parenting classes. However, petitioner’s treatment plan was already tailored
to address Johnson’s relationship with Thurmond. The original goal of therapy was to address
allegations of sexual abuse by Thurmond, but Johnson’s continued disbelief in the allegations
thwarted this goal. Johnson’s caseworker and therapist attempted to resolve the problem by
establishing the more neutral goal of helping Johnson learn to identify healthy and unhealthy
relationships, but Johnson’s unwillingness to acknowledge the problems with Thurmond still
prevented her from engaging in productive therapy. In sum, the record discloses that it was
Johnson’s failure to benefit from therapy, not any deficiency in the treatment plan, that thwarted
the reunification efforts. Accordingly, there was no plain error.
IV. RIGHT AGAINST SELF-INCRIMINATION
Respondent Thurmond argues that his constitutional right against self-incrimination was
violated when the trial court required him, as a condition of the court-ordered treatment plan, to
admit that he sexually abused his stepdaughter. Thurmond did not object to this condition when
it was imposed. Further, although he later challenged the fairness of this condition in his closing
argument at the termination hearing, he did not argue that it was constitutionally prohibited.
Therefore, Thurmond’s constitutional claim is unpreserved and our review is limited to plain
error affecting his substantial rights. In re HRC, 286 Mich App at 450.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” Child protective proceedings are not criminal in nature
and, therefore, the constitutional right against self-incrimination does not directly apply. In re
Brock, 442 Mich 101, 108; 499 NW2d 752 (1993). In Baxter v Palmigiano, 425 US 308, 318;
96 S Ct 1551; 47 L Ed 2d 810 (1976), the United States Supreme Court held that the Fifth
Amendment does not preclude an adverse inference where the privilege against self-3-
incrimination is claimed by a party to a civil case. Nevertheless, “[t]he privilege against selfincrimination applies to a civil proceeding at which evidence is sought which might subject the
witness to criminal prosecution.” In re Stricklin, 148 Mich App 659, 664; 384 NW2d 833
(1986). “The privilege against self-incrimination not only permits a person to refuse to testify
against himself at a criminal trial in which he is a defendant, but also permits him not to answer
official questions put to him in any other proceeding, civil or criminal, formal or informal, where
the answers might incriminate him in future criminal proceedings.” Phillips v Deihm, 213 Mich
App 389, 399-400; 541 NW2d 566 (1995). Any testimony “having even a possible tendency to
incriminate is protected against compelled disclosure.” People v Lawton, 196 Mich App 341,
346; 492 NW2d 810 (1992). The privilege may be invoked even when criminal proceedings
have not been instituted or even planned. People v Guy, 121 Mich App 592, 609-610; 329
NW2d 435 (1982).
The specific circumstances here do not directly involve either an adverse inference from
Thurmond’s refusal to testify or a compulsion to answer official questions in an informal or
formal proceeding. The trial court essentially ordered Thurmond to admit sexual abuse in
therapy, and concluded that his failure to do so would reflect a failure to benefit from therapy.
These circumstances are problematic. Thurmond’s therapist was subject to the mandatory
reporting statute, MCL 722.623(a), and Thurmond could not assert a patient-counselor privilege
because his statement would have been made pursuant to court-ordered treatment. MCR
3.972(E). It is possible that the trial court could have provided immunity to prevent the use of
any admissions in therapy in a subsequent criminal proceeding. See People v Seals, 285 Mich
App 1, 6; 776 NW2d 314 (2009). However, it is not clear that the trial court has the authority to
provide immunity with respect to statements made in a therapy session rather than in the course
of compelled testimony. As the trial court below, observed, had Thurmond timely raised this
issue in the trial court, the court could have determined whether a modification of the condition
in the treatment plan would have been appropriate.
Notwithstanding our concerns about the challenged condition, we conclude that it did not
affect Thurmond’s substantial rights. The condition related solely to the subject of sexual abuse.
As discussed previously, termination of Thurmond’s parental rights was independently justified
because of his physical abuse of JL’s half-siblings and his failure to address and resolve his
propensity for engaging in physical abuse as a perceived form of discipline. Therefore, because
the challenged condition did not affect the outcome of the proceedings, even if we were to
conclude that the trial court erred, any error would not warrant relief.
V. EFFECTIVE ASSISTANCE OF COUNSEL
Both respondents argue that they were denied the effective assistance of counsel.
Because neither respondent raised this claim in an appropriate motion in the trial court, our
review is limited to mistakes apparent from the record. In re Schmeltzer, 175 Mich App 666,
673; 438 NW2d 866 (1989). In analyzing claims of ineffective assistance of counsel at
termination proceedings, this Court applies by analogy principles of ineffective assistance of
counsel in criminal cases. In re Simon, 171 Mich App 443, 447; 431 NW2d 71 (1988). Thus,
each respondent must show that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that there is a reasonable probability
that, but for counsel’s alleged errors, the result of the proceeding would have been different.
People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007).
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Respondent Johnson argues that her attorney was ineffective for failing to call her
treating psychologist, Dr. Larry Berkhaur, and other unspecified witnesses. Here, Johnson has
not submitted an offer of proof indicating what testimony Dr. Berkhaur would have provided,
nor is the substance of his testimony apparent from the record. Further, she does not identify any
other witnesses or explain what testimony they could have provided. Accordingly, she has not
satisfied her burden of establishing the factual predicate for her claim. People v Carbin, 463
Mich 590, 600-601; 623 NW2d 884 (2001).
Respondents Johnson and Thurmond also both argue that their attorneys were ineffective
for failing to object to the trial court’s modification of the courtroom at the adjudicative trial. As
previously explained in section II, supra, the trial court’s exercise of jurisdiction is not subject to
collateral attack in this appeal. Thus, this claim of error relating to the trial court’s exercise of
jurisdiction at the adjudicative trial may not be considered in this appeal.
Lastly, respondent Thurmond argues that his successive attorneys were ineffective for
failing to object to the court-ordered therapy requirement discussed in section IV, supra. Even if
Thurmond’s attorneys performed deficiently by failing to timely challenge that requirement, in
light of our conclusion that this condition did not affect Thurmond’s substantial rights,
Thurmond cannot establish that he was prejudiced by the failure to raise the Fifth Amendment
issue. Accordingly, Thurmond’s ineffective assistance of counsel claim cannot succeed.
There were no errors warranting relief.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly
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