Trial Court Must Re-Examine Mother’s Ineffective Assistance Of Counsel Claim

The Michigan Supreme Court has vacated part of a lower court’s decision that had rejected a mother’s ineffective assistance of counsel claim in her termination of parental rights case.

Rather than granting the mother’s request for leave to appeal, the Supreme Court issued an order in In re Baird/White, Minors (Docket No. 164519).

In that order, the justices returned the case to the Michigan Court of Appeals with instructions to remand it to the trial court, while retaining jurisdiction, so the mother can discover one of her children’s medical records and to conduct an evidentiary hearing pursuant to People v Ginther, 390 Mich 436 (1973) (known as a “Ginther hearing”).

Case Background

In 2020, the Department of Health and Human Services (DHHS) petitioned for the removal of AW from the home of the respondent-mother and AW’s father. AW was almost 4 months old at the time. The petition alleged that a Child Protective Services (CPS) investigation revealed that AW had sustained bruising to her lower left jaw and above her left ear, and had numerous rib fractures.

Shortly after, the DHHS filed an amended petition seeking termination of parental rights to AW pursuant to MCL 712A.19b(3)(b)(i) or (b)(ii) because of physical abuse and failure to prevent the abuse. The DHHS alleged that a pediatrician and internal medicine doctor of the Center for Child Protection of the Helen DeVos Children’s Hospital examined AW and found the infant suffered 16 rib fractures in different stages of healing and that genetic testing determined that AW had no bone-fragility disorders and found no concerns for such disorders. Because no credible explanation was given for the injuries, the doctor concluded the injuries were caused by physical abuse.

The DHHS’s amended petition also alleged there were serious concerns about the safety of 10-year-old KB, the respondent-mother’s older daughter, because if the respondent-mother could not keep AW safe she likely could not keep KB safe either. The amended petition did not allege that KB had suffered any abuse or neglect.

Dr. Yvonne Rekeny, an expert in child abuse and neglect, was consulted on AW’s case. She testified during the termination of parental rights hearing that AW’s injuries were highly indicative of child abuse. Dr. Rekeny also testified that her team considered and ruled out various disorders and genetic defects as a contributing factor to AW’s injuries. Dr. Rekeny indicated that the explanation for AW’s injuries that was presented did not hold water.

The Roscommon County Circuit Court found that clear and convincing evidence supported the termination of the father’s parental rights and the respondent-mother’s parental rights to AW under MCL 712A.19b(3)(b)(i) or (b)(ii). The trial court also held these grounds further supported termination of the respondent-mother’s parental rights to KB. The trial court found that termination of parental rights was in AW’s best interests and that termination of the respondent-mother’s parental rights to KB was in that child’s best interests.

The respondent-mother appealed.

COA Decision 

The Court of Appeals issued its decision in In re Baird/White, Minors (Docket No. 358115 and 358180) in May 2022. Judges Michael F. Gadola, Deborah A. Servitto  and James Robert Redford were on the panel that issued the unpublished opinion.

Among other things, the respondent-mother had argued to the Court of Appeals that her trial counsel had provided ineffective assistance by not properly investigating and obtaining a more favorable expert witness.

The Court of Appeals rejected this assertion.

“Respondent-mother … argues that her counsel provided ineffective assistance by stipulating to the introduction of her psychological evaluation report,” the Court of Appeals said. “We disagree. Preliminarily, respondent-mother has not presented any affidavit or other offer of proof to support a finding that the psychological examiner’s in-person testimony or cross-examination would have been favorable or had a reasonable likelihood of affecting the outcome. In any event, it is apparent from the record that trial counsel made a strategic decision not to call the examiner as a witness. Accordingly, respondent-mother has not overcome the presumption of sound strategy.”

When discussing respondent-mother’s psychological report, caseworker Kristi Root affirmed that the psychological evaluation report suggested there were concerns the respondent-mother would not follow through with the DHHS’s recommendations or requirements. “However, Root conceded that such had not occurred and that respondent-mother had done everything asked of her,” the Court of Appeals said. “Counsel established through cross-examination of other witnesses that some of the concerns or predictions identified in respondent-mother’s psychological evaluation lacked accuracy or had not materialized. Accordingly, it was not objectively unreasonable for respondent-mother’s trial counsel to not call the report’s author as a witness.”

In addition, the respondent-mother asserted that trial counsel did not prepare or develop “proofs more favorable.” However, “she presents no offer of proof to support her contention,” the Court of Appeals said. “Thus, she has failed to establish the factual predicate for her claim of ineffective assistance of counsel.”

The respondent-mother appealed to the Michigan Supreme Court.

MSC Order

The order recently issued by the Supreme Court stated:

“On order of the Court, the application for leave to appeal the May 19, 2022 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE Part III.B of the judgment of the Court of Appeals addressing the respondent-mother’s claim of ineffective assistance of trial counsel. We REMAND this case to the Court of Appeals which, while retaining jurisdiction, shall remand this case to the Roscommon Circuit Court to allow the respondent-mother to discover AW’s medical records and to conduct an evidentiary hearing pursuant to People v Ginther, 390 Mich 436 (1973). At the conclusion of the hearing, the circuit court shall forward the record and its findings to the Court of Appeals, which shall address the issues presented by the respondent-mother. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should now be reviewed by this Court.”

Chief Justice Bridget M. McCormack and Justices Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh and Elizabeth M. Welch joined the order. Justices Brian K. Zahra and David F. Viviano said they would have denied the appeal.