                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                      UNPUBLISHED
In re A S MANNINA, Minor.                                             April 23, 2015

                                                                      No. 323140
                                                                      Macomb Circuit Court
                                                                      Family Division
                                                                      LC No. 2012-000276-NA


Before: BECKERING, P.J., and CAVANAGH and SAAD, JJ.

PER CURIAM.

        Respondent father appeals as of right an order terminating his parental rights to the minor
child pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.

        In July 2012 the court authorized the initial petition involving this child, which stated that
the child’s mother had recently died under circumstances suggesting a heroin overdose. The
petition further alleged that respondent had a history of heroin abuse, was on probation for a drug
offense, and had recently tested positive for opiates. The petition also alleged that respondent
admitted a mental health issue, past psychiatric hospitalizations, and being currently unable to
care for the child on his own. Respondent entered a no contest plea to an amended petition and
the court assumed jurisdiction over the minor child.

        At disposition, the court adopted a Parent-Agency Agreement requiring respondent father
to participate in various services and visit his child. During the next several months, respondent
had several psychiatric hospital admissions. He was then incarcerated in the county jail for 10
months on an assault charge, after which he was again admitted to a psychiatric hospital. Upon
his release, respondent began counseling services. In February 2014, the court authorized a
supplemental petition seeking termination of respondent’s parental rights to the minor child.
After a hearing, the court entered an order terminating respondent’s parental rights.

        Respondent first argues that he was denied the effective assistance of counsel at the
preliminary hearing and the pretrial. We disagree. This Court’s review of unpreserved claims of
ineffective assistance of counsel is limited to errors apparent on the record. People v Johnson,
293 Mich App 79, 90; 808 NW2d 815 (2011). To prevail on his claim of ineffective assistance
of counsel, respondent father must show that counsel’s performance was objectively
unreasonable in light of prevailing professional norms, and he was prejudiced by this deficient
performance. People v Walker, 497 Mich 894, 895; 855 NW2d 744 (2014). To establish
prejudice, respondent must show that there is a reasonable probability that, but for counsel’s


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unprofessional errors, the result would have been different. People v Carbin, 463 Mich 590,
600; 623 NW2d 884 (2001).

        Respondent first contends that counsel was ineffective at the preliminary hearing because
he failed to adequately question the Children’s Protective Services (CPS) worker, or otherwise
raise any other challenges, regarding whether the legal requirements for removing a child
contained in MCR 3.963(B) were satisfied. However, counsel’s questioning and arguments did
address the issue of harm to the child. Counsel asked the CPS worker why respondent’s home
was dangerous and whether respondent had anything to do with the situation involving the
mother. Counsel elicited the fact that respondent submitted a negative drug screen shortly after
the mother’s death. He argued that respondent did not have a drug problem and had a support
network. Counsel also emphasized that the child had not ever suffered any harm in his care.
Although counsel did not address reasonable efforts or alternative remedies, the record does not
show there was any basis to challenge the worker’s testimony on these points.

       Moreover, respondent has not established there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceedings would have been different. The court
authorized the petition and continued the child’s placement out of the home. The court may
authorize the petition upon a showing of probable cause that the allegations of the petition are
true and fall with MCL 712A.2(b).1 Once the petition is authorized, the court must decide
whether the child should remain in the home, return home, or be placed in foster care pending
adjudication. MCR 3.965(B)(11).

       Here, the testimony established that the mother died in the home under circumstances that
suggested heroin use and that respondent had a history of heroin abuse, was currently on
probation for a drug offense, violated his probation recently by testing positive for drugs, had
mental health issues, and admitted he could not care for his child on his own. All of this
provided probable cause that the allegations were true and fell within MCL 712A.2(b). The
same evidence also justified the court’s decision to continue the child’s placement out of the
home.

        Respondent also claims that counsel was ineffective at the August 2012 pretrial because
respondent entered a plea despite the court’s lack of compliance with MCR 3.971. Contrary to
his claim, the court adequately satisfied itself that respondent’s plea was voluntary, as required
by MCR 3.971(C)(1). Moreover, the court made adequate findings of fact in support of its
decision because it relied on the petition allegations, which clearly justified exercising
jurisdiction under MCL 712A.2(b)(1) and (2). Although the court failed to advise respondent
that his plea could be later used as evidence in a proceeding to terminate his parental rights, as
required by MCR 3.971(B)(4), respondent has not established any prejudice from that.
Respondent claims he was prejudiced because he would not have entered a plea had this advice
been given, and he would have prevailed at a trial. However, respondent makes no claim that the


1
  MCL 712A.2(b) is the statutory provision governing jurisdiction. Pursuant to that provision,
the court has jurisdiction where a parent fails to provide proper care for the child or whose home
was unfit for the child to live in.


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various allegations in the amended petition were untrue, and the record does not indicate there
were any viable challenges to the petition allegations, which clearly justified the court’s
jurisdiction over the child. Given these circumstances, respondent has not established a
reasonable probability of a different outcome had he gone to trial. Respondent also suggests that
counsel erred in failing to offer a reason for the plea, but there is no such requirement in the court
rule and, in any event, this situation did not prejudice respondent. Respondent also has not
established how he was prejudiced from counsel’s failure to object when the DHS worker
requested a change in visitation terms, given that the court denied that request.

        For all the foregoing reasons, respondent has not established his claim of ineffective
assistance of counsel. For similar reasons, we reject respondent’s claim that reversal is required
because of the court’s alleged violation of MCR 3.971. As noted, the court complied with MCR
3.971(C)(1) and also indicated it was relying on the petition allegations, and those allegations
fully justified the exercise of jurisdiction under MCL 712A.2(b)(1) and (2). Although the court
failed to inform respondent that his plea could be later used as evidence in a proceeding to
terminate his parental rights, as required by MCR 3.971(B)(4), respondent has not shown he was
prejudiced by this failure. Even had he opted for a trial, the same end result was likely given the
evidence. While the court failed to state why a plea of no contest was appropriate, as required by
MCR 3.971(C)(2), respondent again suffered no prejudice. As such, respondent has not
established any plain error affecting his substantial rights. See People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999).

        Respondent also challenges the trial court’s finding of statutory grounds to terminate his
parental rights. To terminate parental rights, the trial court must find that at least one of the
statutory grounds for termination in MCL 712A.19b(3) has been met by clear and convincing
evidence. In re McIntyre, 192 Mich App 47, 50; 480 NW2d 293 (1991). Only one statutory
ground need be established to support termination of respondent’s parental rights. In re Foster,
285 Mich App 630, 633; 776 NW2d 415 (2009). Once the petitioner has established a statutory
ground for termination by clear and convincing evidence, the trial court shall order termination
of parental rights if the court also finds that termination of parental rights is in the best interests
of the child. MCL 712A.19b(5). Whether termination of parental rights is in the best interests of
the child must be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90;
836 NW2d 182 (2013). The trial court’s decision is reviewed for clear error. In re Trejo, 462
Mich 341, 356-357; 612 NW2d 407 (2000).

        Respondent’s parental rights were terminated pursuant to MCL 712A.19b(3)(c)(i), (g),
and (j), which permit termination under the following circumstances:

               (c) The parent was a respondent in a proceeding brought under this
       chapter, 182 or more days have elapsed since the issuance of an initial
       dispositional order, and the court, by clear and convincing evidence, finds either
       of the following:

              (i) The conditions that led to the adjudication continue to exist and there is
       no reasonable likelihood that the conditions will be rectified within a reasonable
       time considering the child’s age.


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                                              * * *

               (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.

        Respondent’s mental health was a concern at the adjudication and continued to be at the
termination hearing. Respondent had been diagnosed with various disorders (antisocial
personality disorder, anxiety disorder, bipolar disorder, and mood disorder) and had several
psychiatric hospitalizations while this case was pending, the last one as recently as December
2013. Respondent was noted to be “clinically psychotic” at his latest admission. Respondent
displayed odd behavior throughout the case, such as exposing himself to a case worker, making
strange comments to workers, eliciting fear in others with his conduct, and playing in a sadistic
fashion during visits with his child. The foster care worker and anger management counselor
both opined that respondent had not fully addressed his mental health issues. This evidence
supports the trial court’s finding that respondent had not resolved his mental health concerns.
Moreover, the evidence also established that respondent lacked the skills necessary to parent his
child and did not recognize his deficiencies in this area. Workers believed that there was a risk
of harm to the child if returned to respondent’s care. Given these circumstances, the trial court
did not clearly err in terminating respondent’s parental rights.

        The court also did not clearly err in its best-interest determination. In deciding a child’s
best interests, a court may consider the child’s bond to his parent, the parent’s parenting ability,
the child’s need for permanency, stability, and finality, and the suitability of alternative homes.
In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014); In re Olive/Metts, 297 Mich App 35,
41-42; 823 NW2d 144 (2012). The court should weigh all the evidence available to determine
the child’s best interests. White, 303 Mich App at 713. Here, the evidence established that
respondent was not bonded with his child, had mental health concerns, and lacked parenting
skills. The child was doing well in placement, was thriving, and was bonded with her foster
parent. A preponderance of the evidence established that termination of respondent’s parental
rights was in the child’s best interests. See Moss, 301 Mich App at 90. Therefore, the trial court
did not clearly err in terminating respondent’s parental rights.

       Affirmed.

                                                             /s/ Jane M. Beckering
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Henry William Saad




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