Ineffective assistance of counsel in a child protective proceeding; Prejudice; Removal & placement of the children; MCR 3.963(A)(3), (B)(1), & (B)(4); In re McCarrick/Lamoreaux; Emergency removal; MCR 3.965(A)(1); Service; MCR 3.965(B)(4); Notice

The court held that respondent-mother failed to show that trial counsel provided ineffective assistance of counsel during the removal proceedings involving her children, PV, BLL, and BRL. The children were removed primarily on the basis of abuse allegations related to BRL. On appeal, the court rejected her argument that trial counsel provided ineffective assistance of counsel by failing to ensure she was properly served with the petition. “Because respondent has the burden of establishing the factual predicate for her ineffective assistance claim, and because [her] ineffective assistance claim with respect to service is predicated upon her assertion that she was not served with the petition, [she] has failed to establish the factual predicate for this claim of ineffective assistance.” Further, notwithstanding the “lack of clarity in the record regarding whether respondent was served with the petition before the preliminary hearing, [she] has failed to establish that trial counsel was ineffective for failing to ensure [she] was served with the petition because [she] has not established that she was prejudiced by the alleged lack of service.” As such, “the trial court was permitted to infer from the allegations of abuse as to BRL that (1) PV and BLL were at a substantial risk of harm or were in surroundings that presented an imminent risk to their safety and their removal was necessary to protect their health and safety, (2) the circumstances warranted issuing an order pending a hearing in accordance with MCR 3.965, (3) no other remedy except removal was reasonably available to protect PV and BLL, and (4) it was contrary to the welfare of PV and BLL to remain in respondent’s home.” The court also rejected her claim that trial counsel provided ineffective assistance by failing to challenge the trial court’s finding that it was contrary to the welfare of PV and BLL to remain in her care. “The trial court found that it was contrary to the welfare of the children to remain in respondent’s care after all the alleged abuse of BRL. [It] also noted that the reasonable efforts made to prevent or eliminate the need for removal included [the DHHS’s] review of respondent’s CPS history, parental and family interviews, hospital and medical staff interviews, review of medical documents, and a team meeting.” As such, it “made all necessary findings to order the removal of respondent’s children from her care under MCR 3.963(B)(1).”