                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re D. D. O. ANDERSON, Minor.                                      August 11, 2016

                                                                     No. 331369
                                                                     Kalamazoo Circuit Court
                                                                     Family Division
                                                                     LC No. 2012-000516-NA


Before: SERVITTO, P.J., and MARKEY and GLEICHER, JJ.

PER CURIAM.

        Respondent father appeals by right the January 12, 2016 order terminating his parental
rights to the minor child under MCL 712A.19b(3)(b)(i), (c)(i), (c)(ii), (g), and (j). We affirm.

        After the minor child was born in 2011, several incidences of domestic violence between
respondent and the child’s mother were reported to the police. Child Protective Services (CPS)
filed a petition, alleging that this pattern of domestic violence posed a substantial risk of harm to
the child’s well-being. The child remained in the mother’s care after the petition was filed, and
respondent and the mother were ordered by the trial court to have no contact. The child’s mother
also obtained a personal protection order (PPO) against respondent. Respondent was arrested for
violating that PPO on multiple occasions.

        Eventually, a supplemental petition was filed requesting removal of the child from the
mother’s home. The petition alleged that another domestic violence incident occurred between
the two parents, and the child received bruising to his right eye. Following the filing of this
petition, the child was removed from his mother’s care. Throughout the remainder of the multi-
year proceeding, respondent, and the child’s mother continued to engage in domestic violence.
They lived together for periods of time and then separated. Respondent and the child’s mother
participated in, but never completed, couples’ counseling, and, at the time of termination,
respondent had not yet rectified the domestic violence barrier. Furthermore, at the termination
hearing, the caseworker expressed concern with respondent’s emotional stability and possible
substance abuse. The trial court terminated respondent’s parental rights to the minor child after a
two-day termination hearing held on December 15, 2015, and January 12, 2016. The trial court
found that statutory grounds had been proven by clear and convincing evidence to terminate
respondent’s parental rights and that termination was in the best interests of the child.
Respondent now appeals by right.

       Respondent first argues that his due process rights were violated when the trial court
allowed an attorney who represented the child’s mother in a criminal matter to represent
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respondent at a hearing in the child protective proceeding. We review this claim for plain error
affecting respondent’s substantial rights because he raises it for the first time on appeal. In re
Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).

        When a conflict of interest of counsel is alleged, a respondent must prove “actual
prejudice” to be entitled to reversal. In re Osborne (On Remand, After Remand), 237 Mich App
597, 603; 603 NW2d 824 (1999). Respondent has not done so here. The attorney with the
alleged conflict of interest only represented respondent as substitute counsel at one hearing in the
multi-year proceeding. She admitted on the record that she previously represented the child’s
mother in a criminal matter involving domestic assault charges, presumably with respondent as
the victim.1 No party objected to her representation of respondent at that time.

        There is nothing in the record supporting a conclusion that the alleged conflict of interest
prejudiced respondent. The attorney argued for the permanency goal to remain reunification,
requested couples counseling for father and the child’s mother, and asked for respondent’s
parenting time to be increased or moved to unsupervised visits. The outcome of the hearing did
not negatively impact respondent, as the trial court maintained the goal of reunification and
allowed the agency to have discretion in giving respondent unsupervised parenting time. We
find no support that the attorney’s representation of father actually prejudiced him, and, thus, no
plain error affecting his substantial rights. See Osborne (On Remand, After Remand), 237 Mich
App at 603; Utrera, 281 Mich at 8.

       Next, respondent argues that his due process rights were violated because he was denied
the opportunity to have the child returned to his sole care and custody. Because this issue was
also not preserved, our review is limited to plain error affecting respondent’s substantial rights.
Utrera, 281 Mich at 8.

       In Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982), the
United States Supreme Court stated that “[t]he fundamental liberty interest of natural parents in
the care, custody, and management of their child does not evaporate simply because they have
not been model parents or have lost temporary custody of their child to the State.” The Santosky
Court recognized all parents are entitled to “fundamentally fair procedures” in a termination
proceeding. Id. But “[a] parent’s right to control the custody and care of [his] children is not
absolute” because the “state has a legitimate interest in protecting ‘the moral, emotional, mental,
and physical welfare of the minor[.]’ ” In re Sanders, 495 Mich 394, 409-410; 852 NW2d 524
(2014), quoting Stanley v Illinois, 405 US 645, 652; 92 S Ct 1208; 31 L Ed 2d 551 (1972).

       While it is true that respondent was consistently denied the opportunity to have the child
returned to his care throughout this proceeding, respondent cannot establish that this was plain
error. At no point in the case did respondent rectify his barriers to reunification such that the
child could be safely returned to his care. Even though there were periods of time when the
agency had no concerns with respondent’s parenting skills, housing, or employment, the primary


1
  It was never explicitly stated on the record that respondent was the victim of the charged
domestic assault.


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concerns regarding domestic violence and respondent’s relationship with the child’s mother still
existed. They lived together for much of the proceeding, and multiple domestic violence
incidents were reported. Even when they were not in a relationship, there remained a concern
that they were still interacting with one another. Respondent never demonstrated that he could
stay away from the child’s mother and keep the child safe from harm. In addition, issues with
respondent’s emotional stability and substance abuse surfaced in the latter part of the proceeding.
Accordingly, because the state had a legitimate interest in protecting the child’s welfare,
Sanders, 495 Mich at 409-410, it was not plain error for the trial court to order that the child
could not be returned to respondent’s care.

       To the extent that respondent places blame on the child’s mother for his own failure to
have the child returned to his care, we find his claim to be without merit. Both parents had their
own issues throughout the proceeding although the domestic violence remained the overarching
concern. It is evident from the record that the relationship between respondent and the child’s
mother was unhealthy in many aspects, but they continued to interact with one another
regardless. Because respondent has not established his right to due process was violated, he has
not demonstrated plain error warranting relief from the termination order.

       We affirm.

                                                            /s/ Deborah A. Servitto
                                                            /s/ Jane E. Markey
                                                            /s/ Elizabeth L. Gleicher




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