in Re Day Minors
338976
| Mich. Ct. App. | Dec 28, 2017Background
- Three-month-old KED was treated at hospitals after episodes of unresponsiveness and later found to have subdural hematoma, extensive bilateral retinal hemorrhages, multiple bruises, and at least two right-leg fractures; petitioner sought termination of parental rights to KED and sibling NSD.
- Mother (Levault) admitted multiple factual paragraphs of the petition (largely medical-record facts) but did not admit she inflicted abuse or failed to protect KED; father (Day) proceeded to a bench trial on adjudication.
- The trial court held a dual-purpose hearing (adjudication as to Day; disposition/termination for both parents) and terminated both parents’ rights under MCL 712A.19b statutory grounds.
- Respondents were granted funds to retain pediatric neurology/orthopedics experts but did not present expert testimony at the termination hearing despite additional time offered to depose and submit expert depositions.
- Both parents appealed, arguing ineffective assistance of counsel and, as to Day, evidentiary errors (including admissibility of LEIN/criminal-record testimony and hearsay statements to medical staff).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondents were denied effective assistance of counsel | Petitioner: counsel’s performance was reasonable; admissions and strategy did not prejudice respondents | Respondents: counsel mishandled plea/admissions, failed to develop defenses, failed to secure experts, failed to request services | No ineffective-assistance shown; defendants failed to show counsel performance below objective standard or prejudice; many decisions were reasonable trial strategy and objections would be futile |
| Effect of Levault’s plea-admission on adjudication and disposition | Petitioner: admissions concerned objective records and did not concede culpability; dual-purpose hearing proper | Levault: plea admissions conceded case and deprived her of defense; trial improperly re-adjudicated her | Court: admissions were to facts/records not culpability; dual-purpose hearing lawful after plea; no prejudice and objections would be futile |
| Failure to secure/present expert testimony | Petitioner: respondents had opportunity and funding but did not produce experts | Respondents: counsel ineffective for not obtaining expert testimony that would explain injuries non-abusively | Court: no offer of proof or affidavits showing favorable expert testimony existed; absence of proof defeats claim of prejudice |
| Day’s evidentiary challenges (LEIN/criminal record; hearsay to doctors) | Petitioner: testimony admissible (public records/business-records exceptions); statements to show what explanation was offered, not proof of truth | Day: LEIN and certain testimony were hearsay or improperly used under MRE 609 | Court: testimony admissible or not plainly erroneous; LEIN fits business/public-record exceptions and evidence was probative of risk; Dr. statements were not hearsay when used to show offered explanations |
Key Cases Cited
- In re CR, 250 Mich. App. 185 (application of criminal ineffective-assistance principles to child-protective proceedings)
- In re Sanders, 495 Mich. 394 (due process requires specific adjudication of each parent; abolished one-parent doctrine)
- People v. Davis, 250 Mich. App. 357 (standard for ineffective assistance review on the record)
- In re Trejo, 462 Mich. 341 (clear-and-convincing proof requirement in termination proceedings)
- People v. Ericksen, 288 Mich. App. 192 (futile objections and meritless arguments do not establish ineffective assistance)
- People v. Solloway, 316 Mich. App. 174 (hearsay rule and exceptions overview)