            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                                                                     UNPUBLISHED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 K. A. DAVIDSON, Minor.                                         August 8, 2019

                                                                     No. 346153
                                                                     Oakland Circuit Court
                                                                     Family Division
                                                                     LC No. 2016-845230-NA


Before: K. F. KELLY, P.J., and TUKEL and REDFORD, JJ.

PER CURIAM.

        Respondent-mother, V. Morgan, appeals as of right the trial court’s order terminating her
parental rights to the minor child pursuant to MCL 712A.19b(3)(b)(i), (g), and (j). Because there
are no errors warranting relief, we affirm.

                      I. BASIC FACTS AND PROCEDURAL HISTORY

        On the evening of May 8, 2016, respondent’s adult daughter, TM, noticed respondent
exhibiting bizarre behavior. Respondent appeared “disoriented” and “out of it.” TM suspected
that respondent was using heroin again because her behavior was similar to past behaviors when
she was under the influence of drugs. The following morning, TM learned that the child had
missed her school bus and that respondent had taken TM’s car without permission. While
attempting to chase the school bus down the road, respondent was involved in a one-car accident
that resulted in severe and life-threatening injuries to both herself and the child. After a lengthy
hospitalization, the child was admitted to a rehabilitation center. In January 2017, after nearly
nine months of inpatient treatment, the child was discharged and then placed with her maternal
uncle and aunt. The child remained in this placement throughout these proceedings.
Respondent, diagnosed with a traumatic brain injury, believed that she was in a coma for
approximately four months. After she emerged from her coma, respondent was similarly
admitted to a rehabilitation facility. From there, she resided in a group home until she
transitioned to a semi-independent living center.

        Approximately three months after the accident, petitioner, the Department of Health and
Human Services (“DHHS”), filed a petition seeking termination of respondent’s parental rights
at the initial disposition. The petition alleged that respondent had an ongoing heroin addiction
and that she was under the influence of heroin, opiates, and benzodiazepines at the time of the


                                                -1-
accident.1 At a preliminary hearing on August 15, 2016, the trial court authorized the petition. 2
A combined adjudication, statutory grounds, and best-interest hearing began in March 2018 and,
after three days of hearings, concluded in August 2018. Initially, the court found that it could
exercise jurisdiction over the child. It then found that statutory grounds for termination of
respondent’s parental rights had been established by clear and convincing evidence, and that
termination of respondent’s parental rights was in the child’s best interests. Thereafter, this
appeal ensued.

                         II. EFFECTIVE ASSISTANCE OF COUNSEL

        Respondent contends that during the preliminary stages of this case, specifically, the
preliminary hearing, she was denied the effective assistance of counsel. This Court applies
criminal law principles to claims of ineffective assistance of counsel in child protective
proceedings. In re Martin, 316 Mich App 73, 85; 896 NW2d 452 (2016). Because respondent
did not move for a new trial or evidentiary hearing below, our review of this issue is limited to
mistakes apparent on the record. People v Payne, 285 Mich App 181, 188; 774 NW2d 714
(2009). “To establish a claim of ineffective assistance of counsel, a [respondent] must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense. In order to demonstrate that counsel’s performance was deficient, the [respondent]
must show that it fell below an objective standard of reasonableness under prevailing
professional norms.” People v Riley, 468 Mich 135, 140; 659 NW2d 611 (2003), citing
Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); see also
People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). Establishing prejudice
necessarily requires demonstrating a reasonable probability that the result of the proceedings
would have been different but for counsel’s error. People v Nix, 301 Mich App 195, 207; 836
NW2d 224 (2013).




1
  G. Davidson, the child’s biological father, was also named as a respondent in the petition.
Regarding Davidson, the petition alleged a lack of suitable income and housing, and simply
requested that the court take temporary custody of the child. Davidson pleaded no contest to the
allegations in the petition, and the court exercised jurisdiction over the child on the basis of her
father’s conduct. In the two years that followed, Davidson participated in and substantially
complied with a treatment plan. He made sufficient progress that it appeared likely that the child
could be placed in his care. In approximately July 2018, however, Davidson suffered a severe
and debilitating stroke and was apparently institutionalized. Consequently, the goal with respect
to Davidson changed from reunification to guardianship, and Davidson was thereafter dismissed
from the petition.
2
  Although respondent believed that she was in a coma for four months following the May 9,
2016 accident, the caseworker testified at the preliminary hearing on August 15, 2016, that
respondent was placed in a rehabilitation facility, and rehabilitation employees opined that
respondent could not be placed on the telephone for the hearing because mentally she was “slow
to process.”


                                                -2-
       Respondent’s claims of deficient representation begin with the premise that the trial court
lacked personal jurisdiction because she was not properly served with the petition before the
preliminary hearing. Respondent then indirectly addresses her jurisdictional challenge by simply
arguing that her counsel was ineffective for failing to object to the lack of personal jurisdiction at
the preliminary hearing.3 Respondent apparently contends that had her counsel objected to a
lack of service, the petition would not have been authorized and the outcome of the entire
proceedings would have been different. For the reasons discussed below, we find no merit to
respondent’s arguments.

        In child protective proceedings, the Legislature has required that a parent named in a
termination petition receive personal service of a summons before the court may conduct a
hearing. MCL 712A.12; In re Dearmon, 303 Mich App 684, 693; 847 NW2d 514 (2014). The
court rules, again, emphasize the necessity of personal service: “In a child protective
proceeding, a summons must be served on any respondent.” MCR 3.902(B)(2)(b). Indeed,
MCR 3.920(B)(4)(a) and (b) demand that service be made by “delivering the summons to the
party personally,” unless the petitioner proves that it “is impracticable or cannot be achieved.”
With respect to the preliminary hearing in particular, MCR 3.920(D)(2)(b) allows for notice of
the hearing to be given either “in person, in writing, on the record, or by telephone.” Moreover,
MCR 3.965(B)(1) permits the preliminary hearing to be conducted in the absence of a parent
who has been given notice. After reviewing the record, we conclude that respondent has failed
to establish that service of process did not comply with the foregoing provisions.

        The petition in this case was filed on August 12, 2016. Respondent was not present at the
August 15, 2016 preliminary hearing that followed. However, she was represented by appointed
counsel that day. A caseworker from Child Protective Services informed the court that she had
given respondent notice of the hearing in person. The caseworker then explained that respondent
was not at the hearing because she was in a rehabilitation facility and “she could not mentally
even be on the phone because she is slow to process.” When the court asked respondent’s
counsel if he was requesting an adjournment, counsel explained that he was not because,
considering respondent’s traumatic brain injury and continued rehabilitation efforts, “it could be
several months” before respondent would be able to attend. Counsel also acknowledged receipt
of the petition. Thereafter, respondent’s counsel waived the reading of the petition and the


3
  It is clear that had respondent simply argued that the lower court lacked personal jurisdiction to
terminate her parental rights, this argument would have failed. After the preliminary hearing, a
guardian was appointed. The guardian was served with a copy of the petition in December 2016.
The guardian and respondent were present at several hearings, including the combined
adjudication, statutory grounds, and best-interest hearings held between March and August of
2018. Indeed, respondent appeared and testified during the combined hearing. Under these
circumstances, respondent clearly waived any challenge to personal jurisdiction. “[T]he general
rules governing waiver of objections regarding service of process should apply to termination
proceedings where a parent or parents appear at the termination hearing, challenge the petition
for termination, and fail to challenge or raise the issue of lack of service of process arising out of
prior proceedings.” In re Gillespie, 197 Mich App 440, 447; 496 NW2d 309 (1992).


                                                 -3-
presentation of probable cause testimony. At the conclusion of the hearing, the court authorized
the filing of the petition after finding probable cause to believe that one or more of the
allegations in the petition were true and fell within MCL 712A.2(b). The court then granted
petitioner’s request to have the child placed with DHHS.

        On October 6, 2016, a guardian was appointed for respondent and letters of authority
were issued. At a pretrial hearing on November 4, 2016, the court noted that there was no proof
of service on respondent. When asked if respondent was capable of participating in the hearings,
respondent’s counsel replied that he did not know. He also informed the court that respondent
had a guardian. In light of these events, the court adjourned the hearing “to get personal service
on mother” and ensure that respondent’s guardian was present and participating in the
proceedings.

       When the pretrial hearing resumed on December 15, 2016, respondent’s guardian was
present. The guardian indicated his belief that because respondent was incapacitated and had
been appointed a guardian, prior service on respondent was not valid. However, the guardian
informed the court that he had received a copy of the petition that afternoon. Respondent’s
attorney also indicated that he had spoken to respondent by phone, that she was able to
communicate with him, and that during their telephone conversation, respondent indicated that
she wanted a trial on jurisdiction.

        Considering the foregoing record, respondent has failed to establish that she was denied
the effective assistance of counsel. Under the circumstances that existed at the time of the
preliminary hearing, it is not clear that service on respondent was improper. Respondent appears
to argue that service was invalid because she was recovering from injuries attributable to the car
accident. At the time respondent was served, however, she had yet to be declared legally
incapacitated or incompetent. There was no legal guardian to accept service on respondent’s
behalf. Indeed, respondent has not provided any authority for the proposition that a party who
has not been declared incapacitated is incapable of accepting service. Because the record does
not support that service on respondent, when made, was legally insufficient, respondent has not
established that counsel was ineffective for failing to object to service at the preliminary hearing.

        Respondent also asserts that her counsel was ineffective for waiving probable cause and
failing to request an adjournment of the preliminary hearing to allow for the appointment of a
guardian at that time. However, she has failed to establish that counsel’s conduct fell below an
objective standard of reasonableness in this regard or that she was prejudiced by these decisions.

         Respondent’s counsel declined to request an adjournment because, given the extent of
respondent’s injuries, it would be at least several months before respondent could attend a
hearing, let alone care for her child. Counsel clearly recognized that it would not be in anyone’s
best interests, particularly the child’s, to unnecessarily delay the proceedings any further.
Furthermore, it was reasonable for counsel to allow the hearing to go forward rather than delay
the matter when the ultimate outcome of a preliminary hearing appeared to be inevitable. That
is, it was readily apparent that the court would find probable cause and, thereafter, authorize the
petition. The decision to waive probable cause appears to be one of trial strategy. Trial strategy
is entitled to great deference, and this Court will not substitute its judgment for that of trial


                                                -4-
counsel regarding matters of trial strategy. People v Garza, 246 Mich App 251, 255; 631 NW2d
764 (2001).

        Finally, respondent has failed to establish that she was prejudiced by counsel’s allegedly
deficient performance. Specifically, respondent has not demonstrated that the result of the
proceedings would have been different had counsel objected to service of process, requested an
adjournment to permit the appointment of a guardian, and then later contested probable cause.

        During the preliminary hearing, the court must decide, among other things, whether to
authorize the petition. MCR 3.965(B)(12). A trial court may authorize the filing of a petition if
there is probable cause to believe that one of more of the allegations in the petition are true and
fall within MCL 712A.2(b). MCR 3.965(B)(12). The petition alleged, in part, that respondent,
under the influence of heroin, opiates, and benzodiazepines, was involved in a single car accident
while driving the child to school and that the child sustained severe injuries. The record at the
preliminary hearing established that respondent was not able to care for her daughter and would
not be able to within a reasonable time. Moreover, evidence presented during later hearings
established that respondent had a long history of heroin abuse. Indeed, she candidly admitted to
routinely using heroin virtually every night. TM testified that on the night before the car
accident, respondent was under the influence of some substance that caused her to behave in a
bizarre manner, and that early the following morning, respondent was involved in a one-car
accident that caused serious injury to herself and the child. Considering the foregoing, even if
counsel had performed in the manner suggested by respondent, there is no reasonable probability
that the trial court would not have found probable cause to authorize the petition. Indeed,
respondent does not even contest the existence of probable cause to authorize the petition.
Consequently, respondent’s claims that she was deprived of the effective assistance of counsel
and prejudiced by allegedly deficient representation are without merit.

                         III. AMERICANS WITH DISABILITIES ACT

        Next, respondent argues that the trial court and petitioner failed to comply with the
requirements of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. Her
arguments in this regard appear to be two-fold. First, respondent seems to claim that reasonable
efforts were not made to reunite the family. She then argues that, throughout the proceedings,
the court and DHHS failed to accommodate her disabilities. Neither position is supported by the
record.

        In general, before a court may contemplate termination of a parent’s parental rights, the
DHHS must make reasonable efforts to reunite the family. MCL 712A.19a(2). The purpose of
the treatment plan is to facilitate the return of the children to their parents. In re Mason, 486
Mich 142, 156; 782 NW2d 747 (2010). DHHS’s statutory duties to update a parent’s treatment
plan and provide the parent with necessary and relevant reunification services continue
throughout the case. Id. “The adequacy of the [DHHS]’s efforts to provide services may bear on
whether there is sufficient evidence to terminate a parent’s rights.” In re Rood, 483 Mich 73, 89;
763 NW2d 587 (2009).

       In In re Hicks/Brown, 500 Mich 79; 893 NW2d 637 (2017), our Supreme Court
considered whether the DHHS made reasonable efforts to reunify an intellectually disabled

                                                -5-
parent with her children. The Court considered obligations that arise under both the ADA and
the Michigan Probate Code, MCL 712A.18f(3)(d). Under the Probate Code, “the Department
has an affirmative duty to make reasonable efforts to reunify a family before seeking termination
of parental rights.” Id. at 85. Our Supreme Court also noted that the ADA requires that “no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.” Id. at 86 (citation omitted.) The Court
then held that the DHHS neglects its duty under the ADA to reasonably accommodate a
disability when it fails to implement reasonable modifications to services or programs offered to
a disabled parent. Id. Similarly, the Court stated that “efforts at reunification cannot be
reasonable under the Probate Code if the Department has failed to modify its standard procedures
in ways that are reasonably necessary to accommodate a disability under the ADA.” Id.

        To the extent that respondent argues that reasonable efforts and accommodations were
not made to reunify the family, this argument must fail because reasonable efforts toward
reunification were not required in this case. Despite the oft-quoted proposition that reasonable
efforts must be made to reunite a family, petitioner is not required to provide reunification
services when termination of parental rights is the agency’s goal. In re Moss, 301 Mich App 76,
91; 836 NW2d 182 (2013). In this case, petitioner sought termination of respondent’s parental
rights at the initial disposition, and the court subsequently found clear and convincing evidence
to terminate parental rights under MCL 712A.19b(3)(b)(i), (g), and (j), and that termination
would be in the child’s best interests. Accordingly, petitioner was not required to provide
reunification services in this case. In re Moss, 301 Mich App at 91-92; see also MCR 3.977(E).
Because DHHS was not required to provide any services, respondent cannot prevail on a claim
that DHHS failed to make reasonable accommodations for services it was not obligated to
provide. The factual predicate necessary to lend validity to respondent’s argument is absent.

         Respondent also vaguely argues that the trial court and petitioner, in general, failed to
accommodate her disabilities during the proceedings. Apparently in an effort to offer some
specificity, respondent asserts that no requests for adjournments were made and no
accommodations were offered when she underwent her psychological evaluation and when she
testified at trial. Regarding adjournments, respondent’s representations are simply inaccurate.
The court adjourned several hearings to ensure that respondent was properly served, that her
guardian was similarly served and present at the hearings, that parties received and had ample
time to review voluminous medical records, and to enable respondent to participate in an updated
psychological evaluation. As a result of these adjournments, more than 18 months elapsed
between the filing of the petition and the start of the combined adjudication, statutory grounds,
and best-interest hearing. Respondent was the unintended beneficiary of these adjournments in
that she was given additional time to work on her recovery and become stronger and more self-
sufficient. Respondent was also appointed a guardian to assist her, and she was offered a
multitude of services and treatment in her rehabilitation facilities.

        With regard to accommodations during the psychological evaluation and while she was
testifying, respondent has failed to identify what actions should have been taken to accommodate
her specific needs. Moreover, it is difficult to discern from the record what accommodations
respondent may have required that she was not provided. Indeed, the court psychologist noted
that during his evaluation, respondent was allowed time to formulate her responses to questions
                                                 -6-
asked. Her thoughts were logical and well-organized. Respondent exhibited no indication of
intellectual limitations. The psychologist also found that respondent had no difficulty reading
the questionnaires.      Cognitive screening revealed no significant cognitive or memory
impairment. The record does not support respondent’s position that she was denied necessary
accommodations so that she could meaningfully participate in the psychological evaluation or
testify at the combined hearing. Accordingly, respondent has failed to demonstrate that there
was a lack of compliance with the requirements of the ADA.

                         IV. TERMINATION OF PARENTAL RIGHTS

        Finally, respondent challenges the trial court’s finding that termination of her parental
rights was in the child’s best interests. We find no merit to her argument. Once a statutory
ground for termination has been established, the trial court must find that termination of parental
rights is in the child’s best interests before it can terminate parental rights. MCL 712A.19b(5);
In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). Whether termination of
parental rights is in a child’s best interests must be proven by a preponderance of the evidence.
In re Moss, 301 Mich App at 90. We review for clear error a trial court’s finding that
termination of parental rights is in a child’s best interests. In re Jones, 286 Mich App 126, 129;
777 NW2d 728 (2009).

         A trial court may consider several factors when deciding if termination of parental rights
is in a child’s best interests, including the child’s bond to the parent, the parent’s parenting
ability, the child’s need for permanency, stability and finality, and the advantages of a foster
home over the parent’s home. In re Olive/Metts, 297 Mich App at 41-42. The court may also
consider psychological evaluations, the child’s age, continued involvement in domestic violence,
and a parent’s history. In re Jones, 286 Mich App at 131.

         The trial court did not clearly err when it found that termination of respondent’s parental
rights was in the child’s best interests. There existed overwhelming evidence that the child
would be at risk of harm in respondent’s care. At the time of the termination hearing, the child
had been in care for two years, and respondent was still residing in an assisted living facility.
While respondent was able to attend to many of her own activities of daily living, she continued
to require supervision, including assistance with her medication regime. Respondent was unable
to live independently. Because she was unable to care for herself, it was readily apparent that
she could not provide for and attend to the needs of a child. Furthermore, the psychologist
testified that there was no way to predict when respondent might be able to independently care
for herself or her child.

         There were also unresolved issues related to respondent’s drug addiction. Respondent’s
substance abuse dated back to 2011. While in respondent’s care, the child witnessed respondent
inject heroin into her arm. The child was also present in 2014, when respondent was found on
the floor after overdosing on heroin. The child then endured respondent’s eight-week absence
while she attended an inpatient drug treatment program. Only a few short weeks after her
discharge, respondent relapsed and, thereafter, her drug use escalated. Respondent admitted that
she used heroin virtually every single evening in the two years that preceded the 2016 accident.
Before the accident, the child was so frequently exposed to respondent’s drug use and inebriation
that it had become normalized in the child’s mind.

                                                -7-
        Moreover, the fact that the child was severely injured because of respondent’s heroin
addiction cannot be ignored. TM was concerned about respondent operating a vehicle while the
child was in the car. She expressed these concerns to respondent, yet respondent was undeterred.
Mere hours after being observed in an extremely altered state, respondent attempted to drive a
vehicle with her daughter as a passenger. The ensuing one-car accident resulted in serious injury
to the child. The child described her recovery as painful and while she is, for the most part,
physically healed, she continues to suffer the emotional ramifications of the accident. The child
experiences nightmares, and she has undergone a personality change. Before the accident, the
child was a fairly adventurous and independent preteen. She now was more timid and inhibited
by the fear that she might be injured again.

        Although respondent had apparently been drug free since the accident, the fact that she
has been supervised is relevant. Respondent has not demonstrated that she can live drug free
outside of a controlled environment. Moreover, respondent’s ability to continue a sober lifestyle
after she is eventually discharged from her treatment is questionable. This is evident by the
psychologist’s observations that respondent remains defensive regarding her past drug use, and
she continues to minimize the impact her drug abuse has had on her child and others.

        At the time of the termination hearing, the court considered the fact that the child had
been living with her maternal uncle and aunt for more than 18 months. The child testified that
she was happy in this home, that she had made friends, and that she did not want to change
schools. Although placement with a relative weighs against termination, and the fact that a child
is living with relatives must be considered, a trial court may terminate parental rights in lieu of
placement with relatives if it finds that termination is in the child’s best interests. In re
Olive/Metts, 297 Mich App at 43. In this case, the trial court acknowledged the relative
placement, but still found that termination of respondent’s parental rights was in the child’s best
interests. It noted that this was the best avenue by which the child would be afforded the greatest
opportunity to achieve closure, stability, and permanence. Considering this, the trial court did
not clearly err when it determined that termination of respondent’s parental rights was in the
child’s best interests despite the fact that she was in relative placement with her maternal uncle
and aunt.

         The evidence supported a finding that a strong bond existed between the child and
respondent. The child testified that respondent was her best friend, and she missed respondent.
However, the child also recognized that respondent was unable to care for her and that, because
of this, she did not want to return to respondent’s care. Indeed, the child testified that she wanted
to live with either her uncle or her biological father. Although there existed a bond between
respondent and her daughter, other factors clearly outweighed the import of that bond. In re LE,
278 Mich App 1, 29-30; 747 NW2d 883 (2008). As the trial court correctly found, the child
required closure, permanence, and finality.

        Respondent further contends that the trial court should have considered a guardianship
with the maternal aunt and uncle in lieu of terminating her parental rights. The court did
consider the possibility of a guardianship, but it found that a guardianship would not afford the
child closure, and the permanency and finality she required. The court also found compelling
respondent’s substance abuse history, concluding that respondent’s substance abuse issues would
present a continuing risk to the child if the child were ever returned to respondent’s care. A trial

                                                -8-
court is not required to establish a guardianship if it is not in the child’s best interests to do so. In
re Mason, 486 Mich at 168-169. The trial court articulated valid concerns that warranted a
finding that a guardianship would not be in the child’s best interests.

        Considering the foregoing evidence, the trial court did not clearly err when it found that a
preponderance of the evidence demonstrated that termination of respondent’s parental rights was
in the child’s best interests.

        Affirmed.



                                                                /s/ Kirsten Frank Kelly
                                                                /s/ Jonathan Tukel
                                                                /s/ James Robert Redford




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