IN RE D G HARMON-DARNELL MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
February 17, 2011
In the Matter of D. G. HARMON-DARNELL,
Minor.
No. 297503
Wayne Circuit Court
Family Division
LC No. 08-475662
Before: CAVANAGH, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent appeals as of right an order terminating her parental rights to the minor child
pursuant to MCL 712A.19b(3)(c)(i) and (j). We affirm.
This Court reviews the trial court’s finding that statutory grounds for termination of
parental rights have been established and its best interests determination for clear error. MCR
3.977(K); In re Rood, 483 Mich 73, 90-91; 763 NW2d 587 (2009); In re Sours, 459 Mich 624,
633; 593 NW2d 520 (1999). “If the court finds that there are grounds for termination of parental
rights and that termination of parental rights is in the child’s best interests, the court shall order
termination of parental rights and order that additional efforts for reunification of the child with
the parent not be made.” MCL 712A.19b(5).
The trial court did not clearly err when it found the evidence clear and convincing to
terminate respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i) and (j). The issues
that led to adjudication included mental health and parenting issues. Respondent was in a mental
health crisis and called the police to report injury to her daughter and claimed that she wanted to
hurt her daughter. She had pushed the minor child to the floor and slammed a door hitting the
one-year-old child in the head. It had subsequently been determined that respondent had issues
with marijuana use.
The termination hearing was held two years later. At that time, respondent had made
some progress on her treatment plan. She had a home and was receiving SSI, with mental illness
as her disability. She had completed two parenting classes and a substance abuse treatment
program.
Respondent, however, failed to follow through on some important issues.
Respondent’s visits with the minor child were not without incident. Her visitation was
suspended after respondent squeezed the minor child’s hand so hard that the minor child started
screaming and respondent took quite some time to release the minor child’s hand. Respondent
did not follow the rules during visitation, refusing to stay in the visitation room and arguing with
the workers. She testified at the hearing that she said she was going to hurt the minor child when
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she called the police two years earlier because she was in a mental health crisis and could not get
the help she needed unless it was a life and death situation. She characterized her statements of
wanting to hurt the minor child and having thoughts of snapping her neck as “senseless.”
Respondent did not provide any evidence that she was compliant with her medication or
consistent with mental health treatment through therapy although she claimed to have therapy
twice a week until approximately a month before the termination hearing. She was not
consistent with the required substance abuse drops and had not complied for the five-month
period before the hearing. Respondent’s reason for not complying with drops was that she lost
her state ID and did not have enough money to obtain another. Respondent argues on appeal that
her missed screens should not be counted as positives, yet it was made clear to respondent what
was expected and how missed screens were treated. The trial court made sure that respondent
was aware of the process necessary for her to drug test on several occasions during the court
proceedings. During the time the minor child was in temporary care, respondent had tested
positive for THC on two occasions, tested positive for propoxyphene on two occasions, tested
positive for opiates on one occasion, and provided a watered-down sample on one occasion.
Respondent testified that she had provided her caseworker with a prescription or letter from her
dentist that explained her use of Darvon for tooth pain, yet her caseworker had no recollection of
that. Respondent also testified that she kept the pill bottles in the event she would need to prove
that she had a prescription but did not bring them with her to court.
The trial court also did not clearly err in its best interests determination. Respondent was
unable to provide the minor child with a stable, safe, consistent, and permanent environment
because of her failure to address her substance abuse and mental health issues.
Respondent also argues that she was denied the effective assistance of counsel because
her attorney did not object to inadmissible hearsay evidence regarding respondent’s drug screens
and failed to produce evidence regarding respondent’s mental health status. The issue was not
preserved because respondent did not move for a new termination hearing or an evidentiary
hearing on the issue of ineffective trial counsel. See People v Sabin (On Second Remand), 242
Mich App 656, 658-659; 620 NW2d 19 (2000). Our review is therefore limited to the record.
People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). To establish a claim of
ineffective assistance of counsel, respondent must show that counsel’s performance fell below an
objective standard of reasonableness and that she was prejudiced by counsel’s deficient
performance. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Even if
respondent’s trial counsel’s assistance fell below an objective standard of reasonableness,
respondent must show that there was a reasonable probability that, if not for the alleged error, the
result of the proceedings would have been different. In re CR, 250 Mich App 185, 198; 646
NW2d 506 (2002).
Respondent argues that she was denied the effective assistance of counsel because her
attorney failed to call expert witnesses to confirm her mental health treatment. Respondent
claimed to be attending therapy twice a week but did not provide any evidence of this. On
appeal, she does not provide affidavits from therapists regarding her attendance at therapy or that
they would have testified in her favor. Even if her attorney had presented evidence regarding
respondent’s participation in therapy, we find that there was no reasonable probability that the
result of the proceedings would have been different. There was testimony regarding the events
that led to the child coming into care, problems that arose during visitation, respondent’s anger
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issues, her failure to provide weekly drug screens ordered by the trial court, and her positive drug
screens. Further, respondent’s argument regarding her trial attorney’s failure to object to the
hearsay testimony of the caseworker about respondent’s drug screens is without merit. The trial
court may consider all relevant and material evidence, including hearsay, at the dispositional
phase of a termination proceeding. See MCR 3.973(E) and 3.977(H)(2). Thus, it would have
been futile for respondent’s counsel to object to hearsay testimony in this instance.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
/s/ Amy Ronayne Krause
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