            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re BURKHART, Minors.                                              November 14, 2019

                                                                     No. 347612
                                                                     Emmet Circuit Court
                                                                     Family Division
                                                                     LC No. 17-006527-NA


Before: MURRAY, C.J., and MARKEY and BECKERING, JJ.

PER CURIAM.

        Respondent-father appeals by right the family court’s order terminating his parental
rights to the minor children, KB, MB, and GB, under MCL 712A.19b(3)(c)(i) (conditions
leading to adjudication continue to exist), (g) (failure to provide proper care or custody), and (j)
(reasonable likelihood of harm to child if returned to parent).1 We affirm.

                                     I. PERTINENT FACTS

        On November 3, 2017, the Department of Health and Human Services (DHHS) filed a
petition requesting the children’s removal from the home because both parents were
incarcerated. The petition alleged that on November 2, 2017, respondent was found “passed out”
in his vehicle while one-year-old GB was buckled in his car seat, also unresponsive. Drug
paraphernalia, $1,000 in cash, and white powder were observed inside the vehicle. GB tested
positive for cocaine and Xanax. Meanwhile, KB and MB were home alone. Respondent was
arrested and admitted to using cocaine. Before this incident, Children’s Protective Services
(CPS) had been involved with the family and had unsuccessfully attempted to address
respondent’s issues with substance abuse.




1
  During the course of these proceedings, the children’s mother voluntarily relinquished her
parental rights to the children. She is not a party to this appeal. Accordingly, the term
“respondent” as used in this opinion refers only to respondent-father.



                                                -1-
       In December 2017, respondent entered a no-contest plea to the allegations in the petition.
He subsequently received a 30-day criminal sentence for operating a vehicle while intoxicated
and fourth-degree child abuse. Once released, respondent was ordered to comply with random
drug screens, attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA), maintain a
substance-free environment, and work with housing services. He participated in a parent-child
observational session with a psychologist, who suggested that respondent’s substance abuse and
criminality could be the result of other conditions and recommended that respondent receive a
psychological evaluation.

        Throughout the case, respondent was in and out of jail for various probation violations
and other criminal activities. At one point, he was ordered to complete 90 days in jail or attend a
rehabilitation program; he selected the latter. When confronted with his continued drug use
while at the rehabilitation facility, respondent absconded, which resulted in a nine-month jail
sentence. At the time of his scheduled psychological evaluation, respondent was incarcerated.
Given respondent’s failure to participate in services, in August 2018, DHHS sought termination
of respondent’s parental rights.

        The family court declined to authorize the petition, noted that respondent’s incarceration
had provided respondent with an opportunity to “detox” and get sober, and asked DHHS to
continue providing respondent services, including the psychological evaluation. Respondent
participated in the psychological evaluation in October 2018. He also attended AA meetings
available at the jail. The psychological evaluation revealed that he had a poor prognosis and that
treatment of his antisocial personality disorder would require respondent’s continued sobriety
and could last up to two years. Meanwhile, the children were exhibiting some concerning
behavior that their counselor attributed to the lack of stability in their lives. Thereafter, the
family court cautioned that respondent would need to show benefit from the services to avoid
termination of his parental rights.

        Nonetheless, upon his release from jail, respondent did not engage in services right away.
He failed to communicate on a timely basis with his caseworker. A short time later, despite
attending AA meetings and counseling at Harbor House, respondent tested positive for illegal
substances and admitted to drinking alcohol. DHHS filed a second supplemental petition for the
termination of respondent’s parental rights. Following a termination hearing, the family court
concluded that respondent’s lack of housing, substance-abuse problem, and failure to comply
with the parent-agency treatment plan supported the termination of his parental rights.

                                 II. REASONABLE EFFORTS

        Respondent argues that DHHS did not make reasonable efforts at reunification where it
failed to provide adequate housing assistance tailored to respondent’s felon status, failed to offer
services while he was incarcerated, and failed to give him a sufficient opportunity to participate
in services following the results of his psychological evaluation. We disagree.

        Absent aggravating circumstances, “[b]efore a court may enter an order terminating
parental rights, Michigan’s Probate Code, MCL 710.21 et seq., requires a finding that the
Department . . . has made reasonable efforts at family reunification.” In re Hicks/Brown, 500
Mich 79, 83; 893 NW2d 637 (2017). “As part of these reasonable efforts, the Department must

                                                -2-
create a service plan outlining the steps that both it and the parent will take to rectify the issues
that led to court involvement and to achieve reunification.” Id. at 85-86. At each review
hearing, the family court is required to consider compliance with the case service plan regarding
services provided and whether the parent has benefited from those services. In re Mason, 486
Mich 142, 156; 782 NW2d 747 (2010). Not only must a respondent cooperate and participate in
the services, the respondent must benefit from them. In re TK, 306 Mich App 698, 711; 859
NW2d 208 (2014). A respondent must establish that he or she would have fared better if other
services had been offered. See In re Fried, 266 Mich App 535, 543; 702 NW2d 192 (2005).

        Respondent raises a conclusory argument that petitioner failed to make reasonable efforts
toward reunification because, despite respondent’s testimony that it was difficult to obtain
housing given his status as a felon, petitioner did not provide “tailored services” necessary to
address his barrier to housing. But we note that respondent failed to raise any objections to the
services provided throughout the pendency of this case.2 Further, respondent does not cite any
authority for the proposition that DHHS was required to provide “tailored services” above and
beyond those that were provided, and we find no support for this proposition. Additionally,
respondent fails to identify what services should have been provided. This Court is not required
to unravel and elaborate on a respondent’s arguments and may instead deem an issue abandoned.
People v Cameron, 319 Mich App, 215, 232; 900 NW2d 658 (2017).

        Moreover, the record indicated that throughout the pendency of this case, the caseworker
provided respondent with information on different income-based apartments, the number for the
Community Action Agency, and numbers for homeless shelters. The caseworker also offered to
transport respondent to obtain housing applications, but he did not accept the offer, and she did
not believe that he contacted those resources. Further, respondent was incarcerated often during
the proceedings, which in itself would have hampered his ability to seek and maintain housing.
Respondent has failed to establish that he would have fared better if other services had been
offered.

        Respondent also argues that DHHS failed to provide reasonable services because he was
not offered services while in jail. More specifically, respondent argues that DHHS failed to
provide respondent with a psychological evaluation within a reasonable timeframe, and without
this evaluation, the appropriate services necessary to resolve respondent’s issues could not be
identified. Respondent posits that DHHS was unreasonable for failing to investigate whether the
evaluation could be performed at the jail, thereby causing the evaluation to be delayed for seven
months after it was recommended and six months after respondent was incarcerated.

       We conclude that there is no merit to respondent’s arguments. First, we note that
respondent was scheduled to participate in a psychological evaluation in April 2018. But the
appointment was cancelled because of respondent’s incarceration. Accordingly, any delay in
obtaining the psychological evaluation was attributable to respondent’s actions and not the fault


2
  To preserve an issue regarding reasonable efforts at reunification, a respondent must object or
indicate that the services provided to him or her were inadequate in some fashion. In re Frey,
297 Mich App 242, 247; 824 NW2d 569 (2012).


                                                -3-
of DHHS. Further, respondent never asked for the evaluation to be rescheduled after his
incarceration. Nonetheless, the psychologist indicated that although he did not recall ever
performing a psychological evaluation at the county jail, he believed it was possible to do so
with the appropriate clearance. Finally, the record suggested that respondent’s psychological
evaluation was performed while respondent was still incarcerated. Accordingly, respondent was
not denied any services, and, as stated above, any delay in obtaining the psychological evaluation
was caused by respondent’s own actions.

        Lastly, respondent argues that he was not provided with reasonable services because he
was not given a copy of the results of his psychological evaluation until December 28, 2018.
Respondent maintains that because he had not received the report and the services recommended
therein, it should come as no surprise that he relapsed once released from jail. This argument is
unavailing. During the termination hearing, the caseworker indicated that the psychological
evaluation report was received by her office on November 2, 2018, although she was uncertain if
she saw it that day. She stated that she remitted copies to all attorneys shortly after she received
the evaluation and provided a copy to respondent at the very next visit that she had with him
after he requested a copy. Aside from this, the caseworker testified that on November 27, 2018,
the psychologist recommended that respondent participate in an ADHD evaluation, attend AA or
NA three times weekly, obtain a sponsor as quickly as possible, participate in individual therapy,
engage in visitation once weekly, and attend parenting classes if there were any struggles noted.
Accordingly, at the time of his release from jail, respondent was aware of the services that he
needed to engage in on the basis of his psychological evaluation. Further, respondent was also
made aware that DHHS was seeking termination of his parental rights and that he needed to
show a benefit from services. Nonetheless, the caseworker’s testimony supported a conclusion
that respondent did not seek out the services he needed immediately upon his release, and shortly
thereafter, he again began testing positive for controlled substances. Thus, there is no indication
that respondent would have fared differently if he had been provided a copy of the evaluation
report at an earlier date.

        Further, we note that tailored services to address housing, an earlier psychological
evaluation, or even earlier receipt of the psychological evaluation would not have addressed all
of respondent’s remaining barriers. The testimony at the termination hearing demonstrated that
respondent showed minimal progress despite being provided, and even being engaged in, several
services. Indeed, given that respondent returned to substance use shortly after he was finally
able to detoxify in jail, we are not persuaded that respondent would have fared better even if
petitioner offered other services. In re Fried, 266 Mich App at 543. Accordingly, the family
court did not clearly err by concluding that petitioner made reasonable efforts to preserve and
reunify the family.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Respondent next argues that he received ineffective assistance of counsel because trial
counsel did not question the psychologist about how the steps respondent was taking toward
sobriety impacted his prognosis, failed to question the children’s therapist about the effects of
trauma treatment itself and respondent’s absence on the trauma experienced by the children, and
failed to call one of his substance-abuse counselors to testify concerning the benefits he was
receiving from services. Again, we disagree.

                                                -4-
        When a parent argues that he or she did not receive competent representation, “this Court
applies by analogy the principles of ineffective assistance of counsel as they have developed in
the criminal law context.” In re Simon, 171 Mich App 443, 447; 431 NW2d 71 (1988). Because
respondent did not file a motion for an evidentiary hearing in the family court on the issue of
ineffective assistance, this Court’s review is limited to mistakes apparent on the record. People v
Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). “If review of
the record does not support the [respondent’s] claims, he has effectively waived the issue of
effective assistance of counsel.” Id. at 659.

       In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), our Supreme Court
addressed the basic principles governing a claim of ineffective assistance of counsel, stating:

               To justify reversal under either the federal or state constitutions, a
       convicted defendant must satisfy [a] two-part test . . . . First, the defendant must
       show that counsel’s performance was deficient. This requires showing that
       counsel made errors so serious that counsel was not performing as the counsel
       guaranteed by the Sixth Amendment. In so doing, the defendant must overcome a
       strong presumption that counsel’s performance constituted sound trial strategy.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. To demonstrate prejudice, the defendant must show the existence of a
       reasonable probability that, but for counsel’s error, the result of the proceeding
       would have been different. A reasonable probability is a probability sufficient to
       undermine confidence in the outcome. Because the defendant bears the burden of
       demonstrating both deficient performance and prejudice, the defendant
       necessarily bears the burden of establishing the factual predicate for his claim.
       [Citations and quotation marks omitted.]

An attorney’s performance is deficient if the representation falls below an objective standard of
reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).

        Respondent argues that his counsel was ineffective because he failed to properly question
the psychologist about how respondent’s existing efforts at sobriety would improve his
prognosis. We are not persuaded that the psychologist’s opinion concerning respondent’s
prognosis would have been impacted by respondent’s limited progress, particularly given
respondent’s continued use of substances. More importantly, even if the psychologist had
acknowledged the steps that respondent had taken, respondent cannot establish that the result of
the proceeding would have been different. Indeed, the family court recognized that respondent
had made some progress and engaged in some services, but ultimately concluded that any benefit
from the services was outweighed by respondent’s continued substance use. Accordingly, given
his continued substance abuse, lack of housing, and minimal compliance with the case service
plan, respondent cannot establish that the result of the proceeding would have been different but
for counsel’s alleged error.

        Respondent also argues that counsel was ineffective by failing to question the children’s
therapist about the traumatic effects on the children resulting from their trauma therapy and
respondent’s absence. Respondent offers an entirely speculative argument that the children’s
behavior could have been impacted by the traumatic effects of trauma therapy itself and his

                                                -5-
absence. Respondent contends that the causal connection between these items should have been
further explored.

        The testimony of both the psychologist and the therapist supported a conclusion that the
children were in need of permanence and stability and that without those the children’s behavior
would continue to deteriorate. The record supports a conclusion that no matter what the cause of
the children’s trauma, respondent was not in a position to provide permanence and stability for
the children as necessary to minimize the trauma. Given his continued substance abuse, lack of
housing, and minimal compliance with the case service plan, respondent cannot establish that the
result of the proceeding would have been different but for counsel’s alleged error.

         Respondent further contends that counsel was ineffective by failing to call an
independent witness from Harbor Hall to testify on his behalf. “Decisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy, and this Court will not substitute its judgment for that of counsel regarding matters of
trial strategy.” People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). We cannot,
however, insulate the review of counsel’s performance by simply calling it trial strategy. People
v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Initially, this Court must determine
whether strategic choices were made after less than complete investigation, with any choice
being reasonable only to the extent that reasonable professional judgment supported the
limitations on investigation. Id.; see also People v Ackley, 497 Mich 381, 389; 870 NW2d 858
(2015).

        Although respondent posits that having someone testify that he was benefiting from
services could have impacted the family court’s decision, he provides no evidence that anyone
could or would have provided such positive testimony, particularly in light of the fact that he
continued to use substances. Thus, respondent fails to establish the factual predicate of his claim
and deficient performance. Moreover, as noted above, despite recognizing that respondent was
attending services, the family court indicated that respondent’s continued substance use negated
any positive benefits that he may have received from those services. In whole, respondent
cannot establish that the result of the proceeding would have been different but for counsel’s
alleged error.

       We affirm.



                                                            /s/ Christopher M. Murray
                                                            /s/ Jane E. Markey
                                                            /s/ Jane M. Beckering




                                                -6-
