-1-

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UNPUBLISHED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 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.
-2-

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).
-3-

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).
-4-

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