                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                    FOR PUBLICATION
In re S. KANJIA, Minor.                                             October 21, 2014
                                                                    9:00 a.m.

                                                                    No. 320055
                                                                    Kent Circuit Court
                                                                    Family Division
                                                                    LC No. 11-053881-NA


Before: BORRELLO, P.J., and SERVITTO and SHAPIRO, JJ.

SHAPIRO, J.

        Respondent father appeals as of right the trial court order terminating his parental rights
to the minor child under MCL 712A.19b(3)(c)(ii) (failure to rectify other conditions causing the
child to come within the court’s jurisdiction) and (3)(g) (failure to provide proper care and
custody). For the reasons set forth below, we affirm.

       Following the entry of the termination order, respondent filed an appeal by right. On
April 23, 2014, respondent’s appointed appellate counsel moved this Court to allow him to
withdraw his representation pursuant to MCR 7.211(C)(5), asserting that he could not identify
any appellate issues of legal merit, thereby rendering the appeal wholly frivolous.1 This Court
denied the motion and ordered counsel to address two issues: (1) whether the termination must
be vacated in light of our Supreme Court’s opinion in In re Sanders, 495 Mich 394; 852 NW2d
524 (2014), and (2) whether respondent’s appointed trial counsel was ineffective where counsel
had no contact with respondent for ten months after her appointment and only met with
respondent after the trial court had authorized the filing of a supplemental petition to terminate
respondent’s parental rights.2




1
    See Anders v California, 386 US 738; 87 S Ct 1396; 18 L Ed 2d 493 (1967).
2
  In re S Kanjia Minor, unpublished order of the Court of Appeals, entered June 18, 2014
(Docket No. 320055).



                                                -1-
                             I. APPLICATION OF IN RE SANDERS

       Respondent argues that, in light of Sanders, his adjudication in these child protective
proceedings violated his procedural due process rights.3

    A. ADJUDICATION IN CHILD PROTECTIVE PROCEEDINGS AND THE ONE-PARENT
                                 DOCTRINE

        “In Michigan, child protective proceedings comprise two phases: the adjudicative phase
and the dispositional phase.” In re Sanders, 495 Mich at 404. “Generally, a court determines
whether it can take jurisdiction over the child in the first place during the adjudicative phase.”
Id. Jurisdiction is established pursuant to MCL 712A.2(b). Id. “When the petition contains
allegations of abuse and neglect against a parent, MCL 712A.2(b)(1), and those allegations are
proved by a plea or [by a preponderance of the evidence] at the [adjudication] trial, the
adjudicated parent is unfit.” Id. at 405. “While the adjudicative phase is only the first step in
child protective proceedings, it is of critical importance because the procedures used in the
adjudicative hearings protect the parents from risk of erroneous deprivation of their parental
rights.” Id. at 405-406 (quotations and citation omitted).

        Child protective proceedings are initiated by the state filing a petition in the family
division of the circuit court requesting the court take jurisdiction over a child. Id. at 405. A
respondent-parent may admit to allegations in the petition, plead no contest to the allegations, or
demand a trial. Id. In any event, to take jurisdiction over a child, the trial court must find that
the petitioner has proven by a preponderance of the evidence one or more of the statutory
grounds for the taking of jurisdiction alleged in the petition. Id. If the court takes jurisdiction
over the child, the proceedings enter the dispositional phase, wherein the trial court has broad
authority to effectuate orders aimed at protecting the welfare of the child, including ordering the
respondent-parent to comply with the Department of Human Services (DHS) case service plan
and ordering the DHS to file a petition for the termination of parental rights if progress is not
made. Id. at 406-407.

        Before Sanders was decided, it was well-settled, pursuant to the one-parent doctrine, that
a trial court was not required to adjudicate more than one parent; instead, a trial court could
establish jurisdiction over a child by virtue of the adjudication of only one parent, after which it
had authority to subject the other, unadjudicated parent to its dispositional authority. Id. at 407;
In re CR, 250 Mich App at 202-203.

        In simpler terms, the one-parent doctrine permits courts to obtain jurisdiction over
        a child on the basis of the adjudication of either parent and then proceed to the
        dispositional phase with respect to both parents. The doctrine thus eliminates the
        petitioner’s obligation to prove that the unadjudicated parent is unfit before that


3
 “Whether child protective proceedings complied with a parent’s right to procedural due process
presents a question of constitutional law, which we review de novo.” In re Sanders, 495 Mich at
403-404.



                                                -2-
          parent is subject to the dispositional authority of the court. [In re Sanders, 495
          Mich at 408.]

        However, in Sanders, our Supreme Court held that the one-parent doctrine violated
procedural due process. Id. at 422. Recognizing that the right of a parent to make decisions
concerning the care, custody, and control of his or her children is fundamental, id. at 409, and
that due process “demands minimal procedural protections be afforded an individual before the
state can burden a fundamental right,” id. at 410, our Supreme Court held that a parent must be
individually adjudicated as unfit before the state can interfere with his or her parental rights, id.
at 415, 422. Because the one-parent doctrine allowed a trial court to interfere with the
constitutionally protected parent-child relationship without any finding that the parent was unfit,
it violated the Due Process Clause of the Fourteenth Amendment. Id. at 422. To comply with
due process requirements, the state is required to do the following:

          When the state is concerned that neither parent should be entrusted with the care
          and custody of their children, the state has the authority—and the responsibility—
          to protect the children’s safety and well-being by seeking an adjudication against
          both parents. In contract, when the state seeks only to deprive one parent of the
          right to care, custody and control, the state is only required to adjudicate that
          parent. [Id. at 421-422.]

                                      B. RESPONDENT’S CASE

       The child protective proceedings in respondent’s case began on November 29, 2011,
when the DHS filed a petition requesting the removal of the child from the home of his mother,4
who was not living with respondent at the time. The petition alleged, as statutory grounds for the
taking of jurisdiction, that a parent of the child had neglected or refused to provide proper care
and support, MCL 712A.2(b)(1), and that the home environment, by reason of neglect, cruelty,
drunkenness, criminality or depravity on the part of a parent, had become unfit for the child,
MCL 712A.2(b)(2).5 At the December 1, 2011 preliminary hearing, at which respondent was not
present, the trial court found probable cause that one or more of the allegations in the petition
was true and authorized the filing of the petition. The court then placed the child with the DHS,
which subsequently placed the child in a licensed foster home.

       An adjudication hearing was held on January 20, 2012. Respondent was present at the
hearing. The child’s mother pleaded no contest to the allegations in the petition. The trial court
found that grounds for jurisdiction over the child pursuant to MCL 712A.2(b) existed based on
mother’s plea and independent evidence substantiating the allegations in the petition.

       The trial court in this case clearly applied the one-parent doctrine when subjecting
respondent to its dispositional authority, and consequently, under Sanders, respondent’s due


4
    The child’s mother is not party to this appeal.
5
    The particular facts of the petition are irrelevant to this issue on appeal.



                                                      -3-
process rights were violated when his parental rights were terminated. The original petition
focused on mother, and contained only two allegations concerning respondent—that he was the
putative father of the child and that mother had previously been involved with the DHS because
of domestic violence with respondent. Mother entered a no-contest plea to the allegations
against her, thereby allowing the trial court to assume jurisdiction over the child. However,
petitioner did not pursue any allegations against respondent at the adjudication trial and
respondent did not enter a plea. Consequently, he was never adjudicated as unfit by the trial
court. In fact, the trial court’s February 13, 2012 order of adjudication did not even name
respondent himself as a respondent. Nonetheless, respondent was subjected to the trial court’s
dispositional authority; he was ordered to comply with a parent-agency treatment plan and
ultimately his parental rights were terminated. Thus, under Sanders, respondent’s due process
rights were violated.

       Despite the merit of respondent’s claim, whether he is entitled to relief depends on two
questions: first, whether he may now raise the issue for the first time on direct appeal from the
order of termination, and second, whether Sanders applies retroactively to his case, which was
pending on appeal at the time Sanders was decided. We hold that, while the former question
must be answered in the affirmative, the latter question must be answered in the negative
because, while Sanders has limited retroactive effect, respondent failed to preserve the issue.

                                  C. COLLATERAL ATTACK

         It is a well-settled rule that “[o]rdinarily, an adjudication cannot be collaterally attacked
following an order terminating parental rights” unless “termination occur[ed] at the initial
disposition as a result of a request for termination contained in the original, or amended,
petition[.]” In re SLH, 277 Mich App 662, 668-669; 747 NW2d 547 (2008). Instead, “[m]atters
affecting the court’s exercise of its jurisdiction may be challenged only on direct appeal of the
jurisdictional decision[.]” In re Gazella, 264 Mich App 668, 679-680; 692 NW2d 708 (2005),
superseded by statute in part on other grounds, MCL 712A.19b(5); In re Hatcher, 443 Mich 426,
437; 505 NW2d 834 (1993) (whether a trial court properly exercised jurisdiction over a child can
only be challenged on direct appeal). We have continually invoked this rule to preclude
collateral challenges to a trial court’s exercise of jurisdiction, including in cases—before Sanders
was decided—where the challenge related to the trial court’s use of the one-parent doctrine. See,
e.g., In re Wangler, 305 Mich App 438, 447-448; ___ NW2d ___ (2014), held in abeyance ___
Mich ___ (September 9, 2014; Docket No. 149537) (holding that the respondent’s challenge to
the trial court’s exercise of jurisdiction—based on the fact that a written plea was allegedly
invalid and the fact that the respondent was not present at the adjudication trial—was collateral,
and therefore precluded); In re Curran, unpublished opinion per curiam of the Court of Appeals,
issued May 15, 2014 (Docket No. 317470), p 8 (finding that the respondent mother had waived
any challenge to the trial court’s adjudication, “ostensibly based on the one-parent doctrine,” by
failing to directly appeal the jurisdictional decision); In re Coleman, unpublished opinion per
curiam of the Court of Appeals, issued June 18, 2013 (Docket No. 313610), p 4 (declining to
examine the substance of the respondent’s argument that the trial court “misapplied the one-




                                                 -4-
parent doctrine to obtain jurisdiction” because the argument “constitute[d] a collateral attack
regarding adjudication-jurisdiction matters”).6

         Assuming a Sanders challenge constitutes an attack on jurisdiction, respondent is
generally precluded from now raising the issue since it would constitute a collateral attack; his
rights were terminated following a supplemental petition and he did not appeal the initial order
of adjudication. However, no case has yet decided whether the rule prohibiting collateral attack
of a trial court’s exercise of jurisdiction applies to cases in which the rule announced in Sanders
applies. In the only case decided since Sanders to acknowledge this issue, a panel of this Court
expressly declined to address “whether a Sanders-related challenge may be raised as a collateral
attack on appeal.” In re Cochran, unpublished opinion per curiam of the Court of Appeals,
issued July 22, 2014 (Docket No. 319813), p 4 n 5.7 Notably, this Court in Cochran, id.,
implicitly concluded that a Sanders challenge to a trial court’s order of termination constitutes a
collateral attack on the trial court’s exercise of jurisdiction, and other opinions from this Court
have expressly declared that a challenge to the trial court’s use of the one-parent doctrine
constitutes a collateral attack on jurisdiction. See In re Curran, unpub op at 8; In re Coleman,
unpub op at 4.

        Nonetheless, we conclude that a Sanders challenge, raised for the first time on direct
appeal from an order of termination, does not constitute a collateral attack on jurisdiction, but
rather a direct attack on the trial court’s exercise of its dispositional authority. In Sanders, our
Supreme Court distinguished between adjudicated and unadjudicated parents; it held that “due
process requires a specific adjudication of a parent’s unfitness before the state can infringe the
constitutionally protected parent-child relationship.” In re Sanders, 495 Mich at 422. In other
words, the Court in Sanders held that due process prevents a trial court from entering
dispositional orders—including orders of termination—against an unadjudicated respondent.
Based on this reasoning, a respondent who raises a Sanders challenge on direct appeal from a
trial court’s order of termination does not collaterally attack the trial court’s exercise of
jurisdiction, but rather directly challenges the trial court’s decision to terminate the respondent’s
parental rights without first having afforded the respondent sufficient due process, i.e., an
adjudication hearing at which the respondent’s fitness as a parent was determined.




6
 “Although unpublished opinions of this Court are not binding precedent, they may, however, be
considered instructive or persuasive.” Paris Meadows, LLC, v Kentwood, 287 Mich App 136,
145 n 3; 783 NW2d 133 (2010) (citations omitted).
7
  In Cochran, this Court first noted the general rule prohibiting collateral attacks on a trial court’s
exercise of jurisdiction, after which it concluded that the respondent was “barred from attacking
the trial court’s adjudication.” In re Cochran, unpub op at 4 n 5. However, this Court
nevertheless addressed the issue because the respondent’s appeal was pending at the time
Sanders was decided. Id. It did so, however, without deciding whether, in other cases, a
Sanders challenge could be raised on collateral attack from an order of termination. Id. This
Court ultimately found the respondent’s argument to be without merit. Id. at 4.



                                                 -5-
        It also noteworthy that in finding the one-parent doctrine unconstitutional, the Court in
Sanders recognized the inherent problem in requiring an unadjudicated parent to directly appeal
an order of adjudication: “as a nonparty to those proceedings, it is difficult to see how an
unadjudicated parent could have standing to appeal any unfavorable ruling.” In re Sanders, 495
Mich at 419. Such is the case here. Because respondent was never adjudicated, and in fact was
not named as a respondent in the trial court’s order of adjudication, it is difficult to see how he
could have appealed that order of adjudication. The hurdles to a direct appeal from the order of
adjudication are further demonstrated by the fact that, in the instant case, respondent did not have
an attorney at the time the trial court entered its order of adjudication. Thus, it would have been
exceedingly difficult, if not effectively impossible, for respondent to have challenged the trial
court’s exercise of jurisdiction in a direct appeal from the order of adjudication.

        Accordingly, we find that the general rule prohibiting a respondent from collaterally
attacking a trial court adjudication on direct appeal from a termination order does not apply to
cases where a respondent raises a Sanders challenge to the adjudication. Therefore, we hold that
respondent is entitled to raise his Sanders challenge on direct appeal from the trial court’s order
of termination, notwithstanding the fact that he never appealed the initial order of adjudication.

                                     C. RETROACTIVITY

       Because we conclude that respondent is entitled to raise his Sanders challenge on direct
appeal from the trial court’s order of termination, we must next decide whether the holding in
Sanders applies to his case.8 Sanders was not decided until June 2, 2014, approximately six
months after the trial court terminated respondent’s parental rights. However, respondent’s
appeal was pending before this Court at the time Sanders was decided.

        “‘The general rule in Michigan is that appellate court decisions are to be given full
retroactivity unless limited retroactivity is justified.’” Jahner v Dep’t of Corrections, 197 Mich
App 111, 113; 495 NW2d 168 (1992), quoting Fetz Engineering Co v Ecco Systems, Inc, 188
Mich App 362, 371; 471 NW2d 85 (1991). “‘[L]imited retroactivity’ is the favored approach
‘when overruling prior law.’” Jahner, 197 Mich App at 114, quoting Tebo v Havlik, 418 Mich
350, 360; 343 NW2d 181 (1994). Moreover, “[p]rospective application is warranted when
overruling settled precedent or deciding cases of first impression whose result was not clearly
foreshadowed.” Jahner, 197 Mich App at 114 (quotation marks and citation omitted); Lindsey v
Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997) (“[W]here injustice might result from full
retroactivity, this Court has adopted a more flexible approach, giving holdings limited
retroactivity or prospective effect.”). Decisions that are given limited retroactivity apply to
pending cases where the issue was raised and preserved. McNeel v Farm Bureau Gen Ins Co of
Mich, 289 Mich App 76, 95 n 7; 795 NW2d 205 (2010); Jahner, 197 Mich App at 115-116. To
the contrary, decisions that are applied only prospectively “do not apply to cases still open on
direct review” or to “the parties in the cases in which the rules are declared.” McNeel, 289 Mich
App at 94. “In deciding whether to give retroactive application, ‘[t]here are three key factors’ to


8
 The retroactivity of a court’s ruling presents of a question of law reviewed de novo. People v
Maxson, 482 Mich 385, 387; 759 NW2d 817 (2008).



                                                -6-
be considered: ‘(1) the purpose of the new rule; (2) the general reliance on the old rule; and (3)
the effect on the administration of justice.’” Jahner, 197 Mich App at 114, quoting People v
Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971).

        As a threshold matter, we find that full retroactivity of the rule in Sanders is not justified.
In holding that the one-parent doctrine is unconstitutional, the Sanders Court overruled CR, a
decision of this Court which had earlier adopted the doctrine based on its interpretation of
Subchapter 3.900 of the Michigan Court Rules, because this Court’s interpretation “fail[ed] to
recognize the unique constitutional protections that must be afforded to unadjudicated parents[.]”
In re Sanders, 495 Mich at 407-408, 414. CR was decided in 2001 and had been relied upon in
numerous cases to assert jurisdiction over unadjudicated parents. See, e.g., In re LE, 278 Mich
App 1, 17-18; 747 NW2d 883 (2008). It is apparent that because the one-parent doctrine
established in CR was clear and uncontradicted until Sanders, full retroactivity is not justified.
McNeel, 289 Mich App at 94-95. Because Sanders overruled clear prior caselaw, there is a
colorable argument that its holding could be limited to prospective application only. Id.; Jahner,
197 Mich App at 114.

        Nonetheless, we hold that Sanders should be given limited retroactivity. At the outset,
the Sanders Court itself applied its holding to the respondent in that case, thus indicating that it
did not intend for its holding to apply only prospectively. McNeel, 289 Mich App at 95 (“[I]t is
clear that this Court has already concluded that [a previous Court of Appeals decision] did not
apply prospectively only because it applied its holding to the three cases consolidated in [that
opinion] and ruled that the plaintiffs in all three cases were entitled to [relief].”). Further, as
noted above, this Court has already applied Sanders retroactively to a case pending on appeal
when Sanders was decided. In re K Smith Minor, unpub order. Finally, the application of the
factors discussed in Jahner weighs, on the whole, in favor of limited retroactivity to those cases
pending on appeal when Sanders was decided. McNeel, 289 Mich App at 95.

       With respect to the first factor, the purpose of the new rule, Jahner, 197 Mich App at
114, there can be no doubt that the purpose was to ensure that parents are afforded sufficient
procedural due process before a trial court interferes with their fundamental right to the care,
custody, and control of their child. See In re Sanders, 495 Mich at 409-410, 421-422. The
importance of such a purpose “cannot be overstated,” id. at 415, since the adjudication trial “is
the only fact-finding phase regarding parental fitness” and no other phase of the proceedings
adequately prevents the possible erroneous deprivation of this fundamental right, id. at 417-418.
The purpose would be served by giving the rule in Sanders limited retroactive effect.

        With respect to the second factor, reliance on the old rule, Jahner, 197 Mich App at 114,
the one-parent doctrine has been relied upon in numerous cases since CR was decided, including
the instant case. See, e.g., In re Sanders, 498 Mich at 413; In re LE, 278 Mich App at 17-18.
Until Sanders was decided, the DHS and the trial court would have been justified in relying on
CR and the one-parent doctrine. This factor therefore weighs against retroactivity of any kind, as
it would burden the state with additional procedures in cases where it had justifiably relied upon
the one-parent doctrine.

      Finally, with respect to the third factor, the effect on the administration of justice, Jahner,
197 Mich App at 114, applying Sanders retroactively would undoubtedly burden the state. In re


                                                 -7-
Sanders, 495 Mich at 417 (“There is no doubt that requiring adjudication of each parent will
increase the burden on the state in many cases.”). However, requiring adjudication of each
parent before subjecting that parent to the trial court’s dispositional authority also “significantly
reduce[s] any risk of a parent’s erroneous deprivation of the parent’s right to parent his or her
children[,]” id., a risk which outweighs any burden imposed upon the state, id. at 418-419. We
conclude that requiring full retroactivity of the rule in Sanders “could create chaos,” Jahner, 197
Mich App at 115, inasmuch as it could result in a flood of new appeals that could disrupt the
finality of many decisions, but that limited retroactivity would lessen the disruptive effect while
still serving the purpose espoused in Sanders.

        In sum, because Sanders overruled settled caselaw and created a new rule of law, it
should not be given full retroactive effect. However, limited retroactivity is justified since (1)
the Sanders Court itself applied the rule it announced to the parties in that case; (2) the three
factors discussed in Jahner, weigh, on the whole, in favor of limited retroactivity; and (3) this
Court has already seen fit to apply Sanders to a case pending on appeal when Sanders was
decided.

         Notwithstanding the above conclusion, where a decision is given limited retroactive
effect, it applies only to cases then pending where the issue was raised and preserved. McNeel,
289 Mich App at 95 n 7; Jahner, 197 Mich App 115-116. In this case, it is clear that the validity
of the one-parent doctrine was not raised in the trial court; rather, it was raised for the first time
on appeal, and only after this Court specifically directed respondent’s appellate attorney to brief
the issue.9 Accordingly, our holding that Sanders must be given limited retroactive effect does
not entitle respondent to relief. Id.

                                        D. CONCLUSION

        We hold that a respondent may raise a Sanders challenge to a trial court’s adjudication in
a child protective proceeding on direct appeal from the trial court’s order terminating that
respondent’s parental rights. That is, such an appeal does not constitute an impermissible
collateral attack on the trial court’s adjudication. We further hold that Sanders is to be given
limited retroactivity; its holding applies only to cases then pending when Sanders was decided,
where the issue was raised and preserved. Accordingly, because respondent failed to raise and
preserve the Sanders issue in the trial court, he is not entitled to relief on his Sanders challenge.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

       We now address whether respondent was deprived of the effective assistance of his trial
counsel.10



9
  Indeed, during the nearly three years since respondent’s adjudication, neither he nor his
appointed attorneys raised a due process argument until ordered to do so by this Court.
10
  In his brief on appeal, respondent’s appellate counsel concedes that respondent’s trial counsel
was not constitutionally ineffective, writing that he “cannot provide adequate legal or factual



                                                 -8-
       Although the constitutional provisions explicitly guaranteeing the right to counsel
       apply only in criminal proceedings, the right to due process also indirectly
       guarantees assistance of counsel in child protective proceedings. Thus, the
       principles of effective assistance of counsel developed in the context of criminal
       law apply by analogy in child protective proceedings. [In re EP, 234 Mich App
       582, 597-598; 595 NW2d 167 (1999), overruled on other grounds by In re Trejo,
       462 Mich 341; 612 NW2d 407 (2000).]11

        The right to the effective assistance of counsel is guaranteed by the United States and
Michigan constitutions. US Const Am VI; Const 1963, art 1, § 20; United States v Cronic, 466
US 648, 654; 104 S Ct 2039, 80 L Ed 2d 657 (1984); People v Swain, 288 Mich App 609, 643;
794 NW2d 92 (2010). “Effective assistance of counsel is presumed, and a defendant bears a
heavy burden to prove otherwise.” Swain, 288 Mich App at 643. “To prove a claim of
ineffective assistance of counsel, a defendant must establish that counsel’s performance fell
below objective standards of reasonableness and that, but for counsel’s error, there is a
reasonable probability that the result of the proceedings would have been different.” Id.; see In
re CR, 250 Mich App at 198.

       The basis for respondent’s claim that his trial counsel’s performance was objectively
unreasonable is the fact that trial counsel failed to have any contact with respondent until
approximately ten months after she was appointed. Specifically, the record indicates that
counsel was appointed to represent respondent at the August 28, 2012 dispositional review
hearing. Nonetheless, there is no indication in the record that counsel had any contact with
respondent for approximately ten months, after the trial court had authorized the DHS to file a
supplemental petition seeking the termination of respondent’s parental rights. We conclude that
counsel’s failure to make contact with respondent until approximately ten months after she was
appointed fell below an objective standard of reasonableness. Swain, 288 Mich App at 643.

        However, we conclude that respondent is not entitled to relief because he cannot
demonstrate that, but for trial counsel’s objectively unreasonable conduct, there is a reasonable
probability that the outcome of the proceedings would have been different. Id. Respondent and
his girlfriend testified that respondent’s initial failure to engage in services resulted from his
apparent misunderstanding about his role in the child protection proceedings; in particular, his
apparent misunderstanding that his parental rights could be terminated if he refused to comply
with the parent-agency treatment plan. However, these assertions are contradicted by other
record evidence. There was testimony that respondent was aware from the outset of the
support for the ineffective assistance of counsel claim,” that “trial counsel’s performance . . . did
not fall below and objective standard or reasonableness,” and that “[t]he presumption that
assistance of counsel is effective cannot be overcome in this case.” Despite this concession, we
will address the issue.
11
  “Whether a person has been denied effective assistance of counsel is a mixed question of fact
and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
“Findings on questions of fact are reviewed for clear error, while rulings on questions of
constitutional law are reviewed de novo.” People v Jordan, 275 Mich App 659, 667; 739 NW2d
706 (2007).



                                                -9-
proceedings that he needed to engage in services. DHS caseworkers explained to respondent the
consequences of failing to comply with the parent-agency plan, but month after month,
respondent continued to refuse to engage in services and repeatedly asserted that he did not need
the services. Likewise, respondent failed to maintain consistent contact with either the DHS or
the child during these initial months. It was not until Child Protective Services investigated
respondent’s living situation with his girlfriend and other children in July 2013 that respondent
decided to comply with the parent-agency treatment plan, approximately one and a half years
after the beginning of proceedings regarding the child at issue on appeal. The fact that
respondent was aware of his obligations, but simply neglected to meet them, is supported by
respondent’s own testimony at the termination hearing; in the same breath that he claimed that
his confusion stemmed from his belief that the child was to be reunited with their mother, he also
claimed that he had not done anything wrong. In other words, while there is some evidence that
respondent initially failed to comply with services because he was genuinely confused about his
role in the proceedings, there is ample contradictory evidence to support the conclusion that
respondent failed to comply with services because he felt he had not done anything wrong and
did not need the services.

         One of respondent’s biggest barriers to reunification throughout the proceedings was his
inadequate parenting skills. Yet, for the first 18 months of these proceedings, respondent failed
to participate in any of the ordered services designed to strengthen those skills because he felt he
did not need them and, for the first year, did not visit the child at all. When parenting time visits
finally did occur, respondent was inconsistent in his attendance, which greatly affected the child.
When visits did occur, respondent demonstrated an inability to effectively parent the child by
failing to control his behavioral outbursts. He began participating in parenting classes around
July 2013; however, he sat in the back of the room talking with another father and was
“disengaged.” Even in the midst of the termination proceedings, respondent continued to show
an inability to adequately parent the child during visits. Moreover, during a meeting after the
first termination hearing, when respondent was asked about parenting skills, he responded that
there were “zero” ways he could improve. He then made concerning statements about beating
the child. In sum, despite having finally begun to participate in services, it was apparent at the
time of termination that respondent lacked adequate parenting skills and failed to adequately
participate in services and visitation. There was also no indication that he would rectify these
issues within a reasonable time. Respondent cannot place blame on his trial counsel for his
inadequate parenting skills nor his lack of participation services and visitation.

        Accordingly, even though respondent’s trial counsel’s conduct was objectively
unreasonable for failing to have contact with him for approximately ten months, the record
supports that he was not prejudiced thereby. There was sufficient evidence that respondent was
made fully aware of the consequences of failing to engage in services but nevertheless failed to
participate. Moreover, he failed to demonstrate sufficient benefit when he finally did engage in
services and concerns about his parenting skills persisted at the time of termination. Given the




                                                -10-
totality of circumstances, there is no reasonable probability that, but for trial counsel’s deficient
performance, the result of the termination proceeding would have been different and,
accordingly, respondent is not entitled to relief.

       Affirmed.12



                                                              /s/ Douglas B. Shapiro
                                                              /s/ Stephen L. Borrello
                                                              /s/ William C. Whitbeck




12
   Although not challenged by respondent on appeal, our review of the record reveals that the
trial court did not clearly err by finding statutory grounds to terminate respondent’s parental
rights under MCL 712A.19b(3)(c)(ii) and (3)(g) nor that termination was in the child’s best
interests. See MCR 3.977(F); In re CR, 250 Mich App at 194-195.



                                                -11-
