                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re MORGAN, Minors.                                                July 19, 2018

                                                                     No. 341059
                                                                     Wayne Circuit Court
                                                                     Family Division
                                                                     LC No. 17-000385-NA


Before: BORRELLO, P.J., and M. J. KELLY and BOONSTRA, JJ.

PER CURIAM.

       Respondent appeals as of right an order terminating his parental rights to his daughter,
AM, pursuant to MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii).1 For the reasons stated in this
opinion, we affirm.

                                        I. BASIC FACTS

        Petitioner, the Department of Health and Human Services, filed a petition seeking
termination of respondent’s parental rights after AM disclosed to her mother that respondent had
sexually abused her. At the termination hearing, AM testified that respondent had sexually
abused her on multiple occasions when she was 13 and 14 years old. Respondent’s wife testified
that the abuse could not have happened because there was a “two-minute rule” in the household;
under the rule, AM could not be alone with any male for more than two minutes. The trial court
found AM’s testimony to be credible, but did not credit the testimony from respondent’s wife.
Thus, the court found that there was clear and convincing evidence to terminate respondent’s
parental rights under MCL 712A.19b(3)(b), (g), (j), and (k). It also found that termination of
respondent’s parental rights was in AM’s best interests.




1
  This appeal only involves the termination of respondent’s parental rights to AM. In its order,
the court also terminated the parental rights of AM’s sister’s putative father, but that decision has
not been challenged on appeal.


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                                      II. ADJOURNMENT

                                 A. STANDARD OF REVIEW

       Respondent first contends that the trial court erred by denying his motion for an
adjournment. We review for an abuse of discretion a court’s ruling whether to grant an
adjournment. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).

                                         B. ANALYSIS

        AM was living with her mother, so under MCR 3972(A), the trial had to be “held within
6 months after the filing of the petition unless adjourned for good cause under MCR 3.923(G).”
Pursuant to MCR 3.923(G), a court should adjourn a hearing or trial “in child protective
proceedings . . . (1) for good cause, (2) after taking into consideration the best interests of the
child; and (3) for as short a period of time as necessary.” “Good cause” means “a legally
sufficient reason and a substantial reason amounting in law to a legal excuse for failing to
perform an act required by law.” In re Utrera, 281 Mich App at 10-11 (citations and quotation
marks omitted).

        Respondent’s lawyer sought an adjournment, explaining that respondent had planned to
voluntarily release his parental rights before petitioner told him that he could not. Because the
planned action was no longer possible, respondent’s lawyer did not believe he was ready for
trial. In denying the adjournment request, the trial court explained that whenever a trial was
scheduled a lawyer should be prepared to proceed to trial, even if he or she believed that the trial
would not occur. The court also noted that respondent’s lawyer was appointed in June 2017, and
so had months to prepare for the October 2017 trial. Ultimately, the court determined that
respondent’s lawyer was just attempting to waste time.

       Given the record, we discern no abuse of discretion. Three adjournments were
previously granted, including one in September 2017 so that respondent’s lawyer could confer
with respondent. In addition, when requesting the adjournment, part of the stated reason was to
bring additional witnesses, but the additional witnesses were never identified nor was the
substance of their potential testimonies discussed. The trial court rightly noted that almost four
months had elapsed between the appointment of respondent’s lawyer and the trial date, and given
that no good cause for an adjournment was presented, properly denied the request for an
adjournment.

                                 III. STATUTORY GROUNDS

                                 A. STANDARD OF REVIEW

        Respondent next argues that there was insufficient evidence to terminate his parental
rights because AM’s testimony lacked credibility. We review for clear error a circuit court’s
decision that a statutory ground for termination has been proven by clear and convincing
evidence. MCR 3.977(K).




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                                         B. ANALYSIS

        Termination is proper under MCL 712A.19b(3)(k)(ii) if there is clear and convincing
evidence that “[t]he parent abused the child or a sibling of the child and the abuse included . . .
[c]riminal sexual conduct involving penetration, attempted penetration, or assault with intent to
penetrate.” AM testified that respondent sexually abused her by digitally penetrating her vagina
and by penetrating her vagina with his penis. At trial, respondent’s lawyer sought to impeach
AM’s credibility by drawing attention to weaknesses in her testimony, such as an inability to
recall whether the abuse occurred in the summer, winter, fall, or spring, and what time of day it
was when she was abused. Respondent’s lawyer also impeached AM’s credibility with
testimony from respondent’s wife, who explained that the abuse could not have happened
because of the “two-minute rule,” whereby AM was never left alone with a male, including
respondent, for more than two minutes. The trial court credited AM’s testimony and found that
respondent’s wife’s testimony was incredible. “We give deference to the trial court’s special
opportunity to judge the credibility of the witnesses.” In re HRC, 286 Mich App 444, 459; 781
NW2d 105 (2009). Here, giving deference to the court’s credibility findings, there is sufficient
evidence to establish that respondent sexually abused AM and that the abuse included criminal
sexual conduct involving penetration.2

                                     IV. BEST INTERESTS

                                 A. STANDARD OF REVIEW

       Respondent next challenges the court’s finding that it was in AM’s best interests to
terminate his parental rights. A circuit court’s decision regarding a child’s best interests is
reviewed for clear error. MCR 3.977(K).

                                         B. ANALYSIS

        Here, the testimony established that AM got along with her father, who gave her advice
about life. Nevertheless, the court found credible AM’s testimony that respondent had sexually
assaulted her on multiple occasions. In light of respondent’s sexual abuse, the trial court did not
clearly err by finding that termination of respondent’s parental rights served AM’s best interests.
See In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014) (noting that when determining a
child’s best interests, a court should weigh all the evidence and may consider a parent’s history
with the child and the parent’s parenting ability).




2
 Because only one statutory ground for termination need be established, In re HRC, 286 Mich
App at 461, we decline to address whether termination was also proper under MCL
712A.19b(3)(b), (g), and (j).


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                               V. INEFFECTIVE ASSISTANCE

                                 A. STANDARD OF REVIEW

       Lastly, respondent challenges the effectiveness of his lawyer. Because respondent failed
to develop a testimonial record regarding the ineffective assistance claim, our review is limited
to any mistakes apparent on the record. People v Wilson, 242 Mich App 350, 352; 619 NW2d
413 (2000).

                                         B. ANALYSIS

        “The principles of effective assistance of counsel developed in the context of the criminal
law apply by analogy in child protective proceedings.” In re CR, 250 Mich App 185, 197-198;
646 NW2d 506 (2002), overruled in part on other grounds in In re Sanders, 495 Mich 394; 852
NW2d 524 (2014). To establish that his lawyer provided ineffective assistance, a defendant must
show: (1) that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms; (2) that there is a reasonable probability that, but for counsel’s
error, the result of the proceedings would have been different. People v Frazier, 478 Mich 231,
243; 733 NW2d 713 (2007).

        Respondent asserts that his lawyer failed to adequately prepare for trial. “Failure “to
make a reasonable investigation can constitute ineffective assistance of counsel.” People v
Marshall, 298 Mich App 607, 612; 830 NW2d 414 (2012), rev’d in part on other grounds 493
Mich 1020 (2013). Assuming arguendo that respondent’s lawyer was ineffective for failing to
fully prepare for trial, we nevertheless cannot conclude that respondent was prejudiced by the
failure. At the termination hearing, respondent’s lawyer thoroughly cross-examined AM.
Additionally, he called respondent’s wife as a witness for respondent and elicited her testimony
that contradicted many details in AM’s testimony. Respondent identifies no specific witness that
his lawyer should have called or evidence that he should have introduced that might have made a
difference in the outcome of the proceedings. People v Hoag, 460 Mich 1, 6; 594 NW2d 57
(1999) (observing that the defendant bears “the burden of establishing the factual predicate for
his claim of ineffective assistance of counsel”). Although respondent also contends that his
lawyer should have presented “an expert to testify to [AM’s] . . . story and whether she was in
need of psychological treatment and whether the family was in need of treatment,” he fails to
identify a specific expert that should have been called. See People v Caballero, 184 Mich App
636, 642; 459 NW2d 80 (1990) (noting that “the failure to interview witnesses” only amounts to
inadequate preparation if the lawyer failed to discover “valuable evidence which would have
substantially benefited the accused”). On this record, respondent has not met his burden of
proving that he was prejudiced by his lawyer’s alleged lack of preparation.

       Affirmed.

                                                            /s/ Stephen L. Borrello
                                                            /s/ Michael J. Kelly
                                                            /s/ Mark T. Boonstra




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