Sixth Amendment right to counsel; Finding of aggravated circumstances; MCL 722.638(1); “Torture”

In these consolidated appeals, the court held that regardless “whether the finding of aggravated circumstances is a critical stage of termination proceedings for purposes of the Sixth Amendment right to counsel, the record reflects that respondent-father was not deprived of his right to counsel.” Also, it concluded “that the trial court did not clearly err by finding clear and convincing evidence that” respondents-parents subjected the child, EP, “to aggravated circumstances pursuant to MCL 722.638(1)(a)(iii) (torture), (iv) (serious impairment of an organ), and (v) (life-threatening injury).” The father first argued “that the trial court violated his Sixth Amendment right to counsel because there was a complete denial of counsel at a critical stage of the proceeding.” He claimed that he was denied counsel at a critical stage “because his counsel left the permanency planning hearing.” But the court noted that “the proceeding at which the pivotal issues of aggravated circumstances and the DHHS’s obligations were addressed occurred one month before this hearing, at which [the father] was represented by counsel. The trial court merely noted no objections to that proceeding at the permanency planning hearing.” The court was “cognizant that MCR 3.915(B) states that a respondent is entitled to an appointed attorney at any hearing conducted under the court rules in a termination proceeding. But, even if the trial court erred by failing to adjourn the permanency planning hearing so that [his] counsel could attend, [the father] has not shown that he was prejudiced.” The court noted that “at the permanency planning hearing, the trial court merely confirmed what was already entered in a written order on the issue of aggravated circumstances and the provision of services.” The record also reflected that the father “was offered services and declined them.” Thus, he did not show “that counsel’s absence from the permanency planning hearing affected the outcome of the proceedings.” Next, both respondents argued that the DHHS “failed to present clear and convincing evidence that they subjected EP to aggravated circumstances; therefore, they were wrongfully deprived of reunification services by the DHHS.” Again, the court disagreed. It concluded that they did not show “that the trial court clearly erred by finding aggravated circumstances.” It held that “the trial court correctly ruled that the presence of aggravated circumstances relieved the DHHS of its duty to make reasonable efforts to reunify the family.” Affirmed.