If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNPUBLISHED

In re L. A. MARTIN, Minor. May 30, 2024

No. 366730

Kalamazoo Circuit Court

Family Division

LC No. 2020-000082-NA

Before: YATES, P.J., and CAVANAGH and BOONSTRA, JJ.

PER CURIAM.

Respondent-father appeals of right a trial-court order terminating his parental rights to his

minor son, LM, under MCL 712A.19b(3)(a)(ii) (desertion), (3)(c)(i) (no reasonable likelihood that 

parent will rectify conditions that led to adjudication), and (3)(j) (reasonable likelihood that child 

will be harmed if returned to the parent). On appeal, respondent-father contends that he was not 

afforded a meaningful opportunity to participate in reunification services because the Department 

of Health and Human Services (DHHS) failed to continue providing services to respondent-father 

after he was reunited with LM. Additionally, respondent-father asserts that he was denied effective 

assistance of counsel at the termination hearing, where the trial court allowed a substitute attorney 

to represent him. We affirm.

I. FACTUAL BACKGROUND

In 2020, the DHHS filed a petition asking the trial court to exercise jurisdiction and remove 

then-four-year-old LM from the care of his mother.1 Respondent-mother and respondent-father 

are married, but in 2020 respondent-father was incarcerated on charges of operating or maintaining

a methamphetamine lab and possessing methamphetamine, with an earliest release date in April 

2021. The trial court noted that it did not require minor children to attend visits with their parents 

in prison, but the trial court asked the caseworker to investigate whether Facetime visits could be 

provided.

 

1

 During the course of these proceedings, LM’s mother made substantial progress and the DHHS 

changed the permanency goal to reunification. Therefore, LM’s mother is not party to this appeal.
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At a permanency planning hearing on February 2, 2021, a DHHS caseworker testified that 

respondent-father had taken classes while incarcerated, successfully engaged in parenting visits by 

telephone, and sent letters to LM. After respondent-father’s release from prison on April 27, 2021, 

respondent-father began having extended unsupervised visits with LM. In addition, respondentfather obtained employment, participated in substance-abuse treatment, and consistently reported 

for drug screening. The trial court noted that LM’s mother was minimally involved and, if not for 

respondent-father, the case would be going in a very different direction. The trial court found that 

reasonable efforts to reunify respondent-father and LM had been made during the reporting period 

and ordered that reunification remain the permanency planning goal.

Respondent-father eventually began having overnight visits with LM. There was no formal 

order placing LM with respondent-father, but testimony and comments on the record in subsequent 

hearings reveal that LM was placed with respondent-father in January 2022 but then removed from 

his care in February 2022. A caseworker thereafter testified that LM was in a licensed foster home, 

was up to date on his medical and dental appointments, was engaged in counseling, and was doing 

well in school. The caseworker explained that, on January 20, 2022, respondent-father had tested 

positive for methamphetamine. Respondent-father at first denied using methamphetamine, but he 

later admitted that he had relapsed. Furthermore, while LM was in respondent-father’s care, there 

was a breach of the safety plan because respondent-father allowed respondent-mother to be around 

LM. As a result, respondent-father was told that all visits with LM would take place at the foster 

family’s home and would have to be set up through the DHHS. The situation deteriorated, and the 

trial court ordered the DHHS to initiate termination proceedings at the conclusion of a permanency 

planning hearing on May 31, 2022.

On June 29, 2022, the DHHS filed a supplemental petition for termination of the parental 

rights of respondent-father, who had taken part in only one recent parenting-time visit and was no 

longer engaging in services. Also, respondent-father had missed 20 drug screens. The DHHS was 

investigating a relative placement with LM’s maternal grandmother and maternal aunt based on a 

request from respondent-mother, who had begun making progress and exhibiting a close bond with 

LM that prompted the DHHS to change the permanency goal from adoption to reunification with 

respondent-mother. But the DHHS sought termination of respondent-father’s parental rights.

The one-day termination hearing took place on May 16, 2023, nearly a year after the DHHS 

filed the supplemental petition. By that time, respondent-father had lost his sobriety, his housing, 

and his job. Although respondent-father did not even show up for the termination hearing, counsel

for respondent-father noted that the permanency goal for respondent-mother had been changed to 

reunification, so he asserted that termination of respondent-father’s parental rights was not needed 

to keep LM safe. Counsel reasoned that respondent-mother could obtain a divorce and custody of 

LM, which would result in an award of sole custody of LM through a domestic order. Respondentmother expressed her desire for a divorce, but she could not afford one. The trial court explained

that LM was doing very well in respondent-mother’s care, so it was not a good idea to leave open 

the possibility that respondent-father, who was putting forth no effort to reunify with LM, could 

make his way back into the picture. The trial court found that the statutory grounds for termination 

were proved by clear and convincing evidence and that termination of respondent-father’s parental 

rights was in LM’s best interests. The trial court also found that reasonable efforts were made to 

preserve and reunify the family, but those efforts were unsuccessful because of respondent-father’s 

behavior. In response to the termination of his parental rights, respondent-father appealed.
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II. LEGAL ANALYSIS

On appeal, respondent-father contests the adequacy of the efforts exerted by the DHHS to 

reunite him with LM and the effectiveness of the attorney who represented him at the termination 

hearing on May 16, 2023. We shall address each of those arguments in turn.

A. REASONABLE EFFORTS

Respondent-father insists that he was denied an opportunity to meaningfully participate in 

reunification efforts because the DHHS failed to provide him with reasonable efforts after LM was 

placed with him. We review a “trial court’s factual finding that petitioner made reasonable efforts 

to reunify” the respondent-parent with the child for clear error. In re Atchley, 341 Mich App 332, 

338; 990 NW2d 685 (2022). But respondent-father did not object to the services provided by the 

DHHS at any time during the proceedings in the trial court. As a result, the issue was not preserved 

for appellate review, and our review is “limited to plain error affecting substantial rights.” In re 

Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). “Generally, an error affects substantial rights 

if it caused prejudice, i.e., it affected the outcome of the proceedings.” Id. at 9.

“In general, when a child is removed from the parents’ custody, the petitioner is required 

to make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a 

service plan.” In re Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005). A trial court need not

order initiation of “proceedings to terminate parental rights if . . . [t]he state has not provided the 

child’s family . . . with the services the state considers necessary for the child’s safe return to his 

or her home, if reasonable efforts are required.” MCL 712A.19a(8)(c). But just as the DHHS “has 

a responsibility to expend reasonable efforts to provide services to secure reunification, there exists 

a commensurate responsibility on the part of respondents to participate in the services that are 

offered.” In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012). A respondent-parent must 

not only cooperate and participate in the services, but also benefit from them. In re TK, 306 Mich 

App 698, 711; 859 NW2d 208 (2014).

The record shows that LM was placed with respondent-father in January 2022, but LM was 

subsequently removed from respondent-father’s care in February 2022. Respondent-father argues 

that the DHHS failed to explain why he was not offered additional services when LM was placed 

with him, and he suggests that he could have benefited from services like random drug screening, 

substance-abuse counseling, and support groups. But during the termination hearing, a caseworker 

testified that, beginning in January 2022, respondent-father began to relapse, missed random drug 

screening, and began testing positive for methamphetamine. The caseworker further testified that 

respondent-father indicated that he was unsure why he had to comply with services when LM was 

already placed with him. Even after the caseworker discussed the importance of compliance with 

respondent-father, he still could not grasp that he needed to comply with services, which resulted 

in LM being removed from his care. The caseworker also testified that, after respondent-father 

relapsed, additional services were offered to him, including random drug screens, substance-abuse 

counseling, support groups, and a referral to the Family Reunification Program (FRP), which was 

an intensive program that could have aided him in dealing with relapse, but he was unsuccessfully 

discharged from the program.
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The record establishes that the DHHS did provide respondent-father with services beyond 

the FRP while LM was placed with him. Despite the DHHS’s efforts, however, once respondentfather relapsed, he stopped participating in all services and exhibited a disinterest in participating 

in services that continued through the termination hearing. The DHHS should not be blamed for 

respondent-father’s failure to participate in the services offered to him. Indeed, the DHHS made

reasonable efforts, but respondent-father failed to participate in, or benefit from, them. Therefore, 

respondent-father is not entitled to relief based on the alleged lack of reasonable efforts to reunify 

him with LM.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Respondent-father next insists that he was denied effective representation because the trial 

court allowed a substitute attorney to represent him at the termination hearing in place of his courtappointed attorney. This Court has ruled that, “[a]lthough 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.” In re CR, 250 Mich 

App 185, 197; 646 NW2d 506 (2002), overruled in part on other grounds by In re Sanders, 495 

Mich 394; 852 NW2d 524 (2014). Accordingly, “the principles of effective assistance of counsel 

developed in the context of criminal law apply by analogy in child protective proceedings.” Id.

at 197-198. To obtain relief on that basis, respondent-father must demonstrate “that (1) counsel’s 

performance was deficient, falling below an objective standard of reasonableness, and that (2) the 

deficient performance prejudiced the respondent.” In re Martin, 316 Mich App 73, 85; 896 NW2d 

452 (2016). Effective assistance “is presumed, and a party claiming ineffective assistance bears a 

heavy burden of proving otherwise.” In re Casto, 344 Mich App 590, 612; 2 NW3d 102 (2022).

Although respondent-father did not attend the termination hearing, he now asserts that his

substitute attorney was ineffective during that hearing because he was unfamiliar with the case and 

unprepared for the hearing. To support that claim, respondent-father cites four specific issues that 

arose during the termination hearing that he characterizes as proof of ineffective assistance. We 

find that those four issues, whether considered in isolation or in concert, cannot satisfy respondentfather’s burden to establish that he received inadequate representation at the termination hearing.

First, respondent-father contends that his attorney was unaware if respondent-father knew 

the trial court was changing the permanency planning goal for respondent-mother from adoption 

to reunification. The portion of the termination hearing that respondent-father cites to support this 

claim includes his attorney’s question to caseworker Joi Winborne about whether the caseworker

knew whether respondent-father was aware of the goal change. Therefore, the question does not 

establish that the attorney himself did not know if respondent-father was aware of the goal change. 

Instead, it simply appears that the attorney was questioning the caseworker about the goal change 

and respondent-father’s knowledge of it in order to thoroughly develop the record.2 That question 

was necessary because respondent-father did not attend the termination hearing, where he plainly 

would have learned about the goal change if he had not heard of it before that date.

 

2 As respondent-father’s attorney explained, “without a client I’m going to try to protect his rights 

the best I can.”
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Second, respondent-father contends that his attorney was not aware that, at the termination 

hearing, respondent-mother was claiming that respondent-father was not LM’s biological father. 

The portion of the termination hearing that respondent-father cites to support his argument consists 

of respondent-mother’s answer when she was asked to identify LM’s father. She stated: “Legally 

it’s [respondent-father].” Nowhere in the cited portion of the termination hearing (or in any other 

place in the termination hearing) did respondent-mother state that respondent-father was not LM’s 

biological father. Respondent-mother was upset about respondent-father’s lack of compliance and 

participation in the proceedings. Her statement that respondent-father was “[l]egally” LM’s father 

appeared to capture that frustration. But respondent-mother never claimed that respondent-father 

was not LM’s biological father, so respondent-father’s attorney had no reason to know of any such 

claim.

Third, respondent-father contends that his attorney had limited knowledge of respondentfather’s efforts early in the case to obtain custody of LM. The portion of the termination hearing 

that respondent-father identifies to support that contention includes his attorney’s questions to the 

caseworker about the timeline for LM’s placement with respondent-father. The questions do not 

establish that the attorney was unfamiliar with the timeline or facts of the case. Instead, it appears 

that the attorney was thoroughly examining the caseworker in order to develop a complete record.

Finally, respondent-father asserts that his attorney did not know when LM was placed with 

respondent-father and when LM was removed from respondent-father’s care. The sections of the 

termination hearing respondent-father cites to support that claim include the attorney’s questions 

to the caseworker about (1) respondent-father’s compliance with services after first being released 

from prison, (2) the child’s placement with respondent-father by the trial court, and (3) respondentfather’s relapse and the services provided to him. Those questions do not establish that the attorney

was unaware of the underlying facts of the case. Rather, it seems that the attorney was well-versed 

in the history of the matter and thoroughly asked questions in order to develop a complete record. 

The attorney’s thoughtful questioning of witnesses at the termination hearing does not prove that 

he was unfamiliar with the case or unprepared for the hearing. Indeed, it appears that the attorney

thought carefully about the questions necessary to develop a comprehensive timeline of events on 

the record, which cannot be characterized as unreasonable or deficient performance.

Beyond that, respondent-father has not explained how the purported deficient performance 

by his attorney resulted in any prejudice. At the time of the termination hearing on May 16, 2023, 

respondent-father had attended only one court hearing between March 2022 and May 2023, he had 

stopped communicating with his caseworker and his attorney, and no one knew where he was. In 

addition, respondent-mother testified that respondent-father continued to use methamphetamine. 

The caseworkers testified that respondent-father: (1) had made no progress on his parent-agency 

treatment plan; (2) was no longer submitting to drug testing; (3) had continued to show no interest 

in taking part in services and confusion about why he needed to participate in services; and (4) had 

not had any contact with LM since May 2022. When the termination hearing occurred, the case 

was more than three years old and respondent-father did not show any interest in working toward 

reunification with LM. Therefore, his attorney argued that, because the trial court and the DHHS 

changed the permanency goal for respondent-mother from adoption to reunification, termination 

of respondent-father’s parental rights was unnecessary because respondent-mother could seek sole 

custody of LM through a domestic order and could keep LM safe. Because of respondent-father’s 

poor performance, that was his attorney’s only viable argument against termination. The fact that 
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that argument failed to convince the trial court does not support a finding of ineffective assistance 

of counsel. Instead, that fact establishes that nothing respondent-father’s attorney did (or failed to 

do) at the termination hearing resulted in prejudice sufficient to justify overturning the trial court’s 

order terminating respondent-father’s parental rights.

Affirmed.

/s/ Christopher P. Yates

/s/ Mark J. Cavanagh

/s/ Mark T. Boonstra