IN RE SCHULTZ MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
January 13, 2011
In the Matter of SCHULTZ, Minors.
No. 297887
Wayne Circuit Court
Family Division
LC No. 09-488669
Before: K. F. KELLY, P.J., and GLEICHER and STEPHENS, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating his parental rights to the
minor children pursuant to MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii). We affirm.
I. TERMINATION OF PARENTAL RIGHTS
Respondent’s first issue on appeal is that the trial court clearly erred in terminating his
parental rights for both his children. We disagree. In order to terminate parental rights, the trial
court must find that at least one of the statutory grounds for termination has been established by
clear and convincing evidence. MCR 3.977(E)(3); In re Trejo, 462 Mich 341, 356-357; 612
NW2d 407 (2000). We review that finding under the clearly erroneous standard. MCR
3.977(K); In re Sours, 459 Mich 624, 633; 593 NW2d 520 (1999). A finding is clearly
erroneous if, although there is evidence to support it, we are left with a definite and firm
conviction that a mistake has been made. In re Miller, 433 Mich 331, 337; 445 NW2d 161
(1989).
The trial court did not clearly err in finding that the statutory grounds for termination
were established by clear and convincing evidence. The trial court terminated respondent’s
parental rights to his children pursuant to MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii), which
provide:
(3) The court may terminate a parent’s parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
***
(b) The child or a sibling of the child has suffered physical injury or physical
or sexual abuse under 1 or more of the following circumstances:
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(i) The parent’s act caused the physical injury or physical or sexual abuse and
the court finds that there is reasonable likelihood that the child will suffer from
injury or abuse in the foreseeable future if placed in the parent’s home.
***
(g) The parent, without regard to intent, fails to provide proper care or custody
for the child and there is no reasonable expectation that the parent will be able to
provide proper care and custody within a reasonable time considering the child’s
age.
***
(j) There is a reasonable likelihood, based on the conduct or capacity of the
child’s parent, that the child will be harmed if he or she is returned to the home of
the parent.
(k) The parent abused the child or a sibling of the child and the abuse included
1 or more of the following:
***
(ii) Criminal sexual conduct involving penetration, attempted penetration, or
assault with intent to penetrate.
Whether respondent sexually abused his older son was a factual finding integral to all
four statutory grounds relied upon by the court. In this case, respondent’s son testified in great
detail regarding the nature of the abuse suffered at the hands of his father. He was able to
describe the very first event with significant detail and place it along a believable timeline.
Respondent’s son specifically described two occasions where respondent forced him to engage in
anal sex. In addition, respondent’s wife provided corroborating evidence when she testified that
respondent admitted to her that he had fondled their son and engaged in oral sex with the
teenager. There was also testimony that respondent failed to acknowledge his abuse and there
was no evidence that respondent engaged in any treatment. In fact, respondent characterized his
son as a liar and manipulator. Based upon the foregoing, there was clear and convincing
evidence to support termination of respondent’s parental rights pursuant to MCL
712A.19b(3)(b)(i), (g), (j), and (k)(ii).
Similar to his hearing strategy, on appeal respondent attacks his son’s credibility.
Respondent argues that his son’s testimony was inconsistent and contradictory and that the
teenager fabricated the allegations of abuse in an attempt to harm his parents. However, we
conclude, as did the trial court, that respondent’s son was a credible witness. Respondent’s son
relayed his account of the events several times. When it came to the details of the abuse, the
teenager was extremely consistent. While there may have been minor discrepancies in his
account of the events, these were easily explained by the nature of the trauma, the age of the
victim, and the length of time during which the abuse occurred. In addition, respondent’s son
never recanted his allegations.
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With respect to respondent’s theory that his son lied about the abuse to harm his parents,
the evidence would actually contradict this assertion. Until he was pressed by a friend,
respondent’s son never revealed the abuse. When he did ultimately confide in this friend, he
asked that the friend not tell anyone. In fact, respondent’s son was not the individual that
ultimately reported the abuse to authorities. The teenager’s actions were not those of an
individual bent on destroying his parents. There is no doubt that this case was a credibility
contest between the alleged perpetrator and his victim. Ultimately, regard must be given “to the
trial court’s special opportunity of the trial court to judge the credibility of the witnesses who
appeared before it.” In re Miller, 433 Mich at 337.
Respondent also argues that the trial court erred when it concluded that termination of
respondent’s parental rights was in the children’s best interests. We disagree. As discussed
above, before terminating parental rights, the trial court must find that at least one of the
statutory grounds for termination set forth in MCL 712A.19b(3) has been met by clear and
convincing evidence. MCR 3.977(E)(3). Additionally, the trial court must make an affirmative
finding that termination of parental rights is in the child’s best interests. MCR 3.977(E)(4). If a
statutory ground for termination is established and termination of parental rights is in the child’s
best interests, the court must terminate parental rights. MCL 712A.19b(5).
There was evidence from which the trial court concluded that neither respondent nor his
oldest son was interested in maintaining the parent-child relationship. Indeed, respondent called
his son a liar and a manipulator and claimed to be in fear of the teenager. With respect to the
younger son, however, respondent professed his desire to maintain his parental rights to this
child. However, considering respondent’s abuse of his older son, and testimony that respondent
had also attempted to touch the younger son inappropriately, there was clear and convincing
evidence for the court to conclude that termination of parental rights to both children was in the
children’s best interest as the only way to insure their safety.
II. ADJOURNMENT
Next, respondent argues that the trial court erred when it denied respondent’s motion to
adjourn the trial because of his counsel’s personal issues. Whether to grant a request to adjourn
a termination hearing is within the court’s discretion. In re Jackson, 199 Mich App 22, 28; 501
NW2d 182 (1993.) A trial court abuses its discretion when its decision falls outside a range of
principled outcomes. Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007).
Adjournments in child protective proceedings are granted only for good cause after taking into
consideration the best interests of the child. MCR 3.923(G)(1) and (2).
In the present case, respondent’s counsel failed to establish good cause. While the court
did not doubt counsel’s family medical issues, it was clear that it believed that counsel was
attempting to manipulate the trial date because of the adjournment of respondent’s criminal
matter. Moreover, it was in the best interest of the children to commence the hearing
immediately as there had been one previous adjournment. A second adjournment, due to
scheduling restraints, would cause the matter to be delayed until March of 2010.
In any event, respondent has not established that he was prejudiced by the court’s denial
of the motion to adjourn. MCR 2.613(A); In re Utrera, 281 Mich App 1, 14; 761 NW2d 253
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(2008). After the direct examination of the first witness, respondent’s son, the court essentially
reversed its decision and adjourned the matter for nearly a month to give respondent’s counsel an
opportunity to prepare to cross-examine the teenager. In light of these circumstances, we are not
persuaded that the trial court abused its discretion.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, respondent argues that he was denied the effective assistance of counsel. We
disagree. “[T]he principles of effective assistance of counsel developed in the context of
criminal law apply by analogy in child protective proceedings.” MCL 712A.17c(7); In re CR,
250 Mich App 185, 197-198; 646 NW2d 506 (2002). In order to preserve a claim of ineffective
assistance of counsel, respondent was required to file a motion for new trial or request a hearing
in the trial court, as required by People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922
(1973). Because respondent did not filed a motion for new trial or request a Ginther hearing, his
claims of ineffective assistance of counsel have not been preserved for appellate review. As a
result, our review is limited to mistakes apparent on the record. People v Davis, 250 Mich App
357, 368; 649 NW2d 94 (2002).
In reviewing a claim of ineffective assistance of counsel in a termination of parental
rights case, we must determine (1) that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms; (2) that there is a reasonable probability
that, but for counsel’s error, the result of the proceedings would have been different; and (3) that
the resultant proceedings were fundamentally unfair or unreliable. People v Odom, 276 Mich
App 407, 415; 740 NW2d 557 (2007). Effective assistance of counsel is presumed, and a
respondent bears a heavy burden of proving otherwise. People v LeBlanc, 465 Mich 575, 578;
640 NW2d 246 (2002). Further, the Court will not substitute its judgment for that of trial
counsel on matters of trial strategy, including the questioning of witnesses. People v Rockey,
237 Mich App 74, 76; 601 NW2d 887 (1999).
Respondent first claims that his trial counsel’s representation was deficient because
counsel failed to request a separate best interest hearing. Respondent has suggested that certain
issues could have been addressed during a best interest hearing, like the needs of the children and
the possibility of terminating parental rights to one child only. However, respondent was not
denied the opportunity to present best interest evidence. Respondent testified that he loved his
children and that he did not want his parental rights terminated. He explained that he wanted his
younger son to be moved away from the influences of his older brother. Respondent further
testified about the manner in which it might be possible to terminate his parental rights to the
older son but maintain them for the younger one. Respondent explained that he was willing to
live in a separate home and not have any contact with his older son. Then, in her closing
argument, respondent’s counsel conceded that it was in respondent’s older son’s best interest to
terminate parental rights, but argued that this was not true regarding the parental rights to the
younger son. Counsel noted, among other things, that the younger son did not want his father’s
parental rights terminated. Based upon the foregoing, respondent has failed to establish that he
was denied the opportunity to present best interest evidence. Further, respondent’s appellate
brief failed to articulate any evidence that would have been proffered at a best interest hearing
that might have led to a different result.
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Next, respondent argues that counsel’s representation was deficient because trial counsel
failed to present an expert witness that might testify that psychological issues prompted
respondent’s older son to fabricate the allegations of abuse. However, respondent is merely
speculating that a witness would testify in support of this theory. Respondent has not
specifically identified the nature of the expert testimony or the identity of such a witness, nor has
respondent articulated how the witness’s testimony, if given, would have affected the outcome of
the case. Respondent has failed to establish that there existed a reasonable probability that the
result of the proceedings would have been different but for counsel’s error.
Next, respondent argues that his counsel failed to adequately cross-examine respondent’s
son in an effort to attack his credibility. Despite respondent’s representations on appeal,
respondent’s counsel did cross-examine respondent’s older son regarding the inconsistencies in
his various statements. Respondent has not explained what other inconsistencies existed or how
these discrepancies would have undermined the teenager’s credibility or affected the outcome of
the case. In any event, the trial court acknowledged that some discrepancies were to be expected
considering the nature of the trauma and the length of time over which the sexual abuse
occurred. Because respondent’s son was able to provide great detail in his account of the abuse,
and he was consistent with respect to important details, it is unlikely that drawing out some
minor discrepancies in other statements would have affected the outcome of the case.
Finally, respondent contends that his counsel failed to prepare for the child protective
proceedings and, instead, sought information for the criminal trial. Respondent contends that his
counsel missed important information and evidence. However, again, respondent has not
identified the missing important information and evidence or how its introduction into the
hearing would have affected the outcome of the proceedings. Respondent has failed to
demonstrate that he was denied the effective assistance of counsel.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
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