Preliminary hearing; Emergency removal; MCR 3.963(B); Probable cause; Substantial risk of harm; Ineffective assistance of counsel; Right of autonomy; McCoy v Louisiana; People v Klungle; Traditional ineffective-assistance analysis; In re Lovitt; Futile objection; People v Isrow

The court held that respondent-mother was not denied the effective assistance of counsel or an asserted right of autonomy when counsel did not oppose the child’s continued removal, and that she could not show prejudice because emergency removal was supported under MCR 3.963(B). DHHS petitioned for removal after meth was found in the mother’s home, she continued testing positive for meth, she did not engage in offered services, and she could not be located when DHHS attempted to meet with her. At the initial preliminary hearing, the mother lacked notice and was absent, so counsel took no position, and the trial court ordered emergency removal. At the continued hearing, the mother appeared, stipulated to probable cause, and counsel agreed that DHHS’s recommendations were appropriate. On appeal, the court noted there was no published authority extending the criminal “right of autonomy to maintain innocence” to child-protective proceedings, and it declined to decide the issue because the mother did not address whether its extension was warranted. Applying traditional ineffective-assistance principles, the court held that there was no record support that counsel overrode any defense objective respondent expressed. It also held that counsel was not deficient where the child had already been removed and placed with his maternal grandmother, the mother stipulated to probable cause, and counsel sought alternative placements. In any event, the mother failed to show prejudice because the caseworker testified that the child faced a “substantial risk of harm” from the mother’s continued meth use, lack of a reported sober caregiver, unknown adults in the home, and the mother’s statement to her probation officer that she would “catch[] a charge” if DHHS tried to remove the child. Affirmed.