In Re Trowbridge

401 N.W.2d 65, 155 Mich. App. 785

• Court: Michigan Court of Appeals
• Decided: November 3, 1986
• Docket: Docket 90250
• Status: Published

Opinion

Per Curiam.

On December 16, 1985, the Wexford Probate Court entered an order terminating the parental rights of Connie and Bruce Trow-bridge in two of their minor children. Only the mother (hereinafter respondent) appeals.

On appeal, respondent argues that she was denied effective assistance of counsel because her attorney failed to object to the admission of certain psychological examinations.

MCR 5.906(C)(2)(b) provides that counsel must be appointed to represent indigent parents at hearings to terminate parental rights. The right to appointed counsel at such proceedings is also a fundamental constitutional right guaranteed by the equal protection clauses of the United States and Michigan Constitutions. 1 Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976). It is axiomatic that the right to counsel includes the right to competent counsel. We apply by analogy the principles of ineffective assistance of counsel as they have developed in the context of criminal law.

At trial, the reports of two psychological examinations of respondent were introduced without objection by respondent’s counsel. The probate court relied heavily upon these reports in arriving at the decision to terminate respondent’s parental rights. Respondent now contends her trial counsel seriously erred by failing to object to the introduction of these reports on the grounds of privilege. We do not reach the issue of whether or not these reports were shielded by respondent’s claim of privilege. Instead, we conclude that their admission was a matter of trial strategy.

It was defendant’s attorney who subpoenaed and called Jo Ann Eastway, the author of one of the reports. It appears that, through her testimony, respondent’s attorney intended to show that respondent possessed the ability to learn adequate parenting skills. In closing argument, respondent’s trial counsel relied upon both reports and pointed out that both experts recommended that respondent be given time to complete psychotherapy and to prove her ability to be a successful parent. Accordingly, respondent’s attorney argued that such time had not been afforded. This Court will not substitute its judgment for that of a respondent’s counsel in matters of trial strategy. See People v Carr, 141 Mich App 442, 452; 367 NW2d 407 (1985).

Respondent also argues that her attorney seriously erred by failing to object to the admission of psychological evaluations of the two children on the grounds that the Department of Social Services arranged for the examinations without court authorization. At the time that the examinations were performed, the children were under the supervision of the dss as temporary wards of the court. The dss had authority "to secure routine, non-surgical, medical care and emergency medical or surgical treatment for the children.” Given the fact that the children were emotionally disturbed at the time of their placement with the dss, we decline to find that the dss was unreasonable in seeking immediate psychological evaluation. Such evaluation fell within the dss’s authority to provide routine medical care. In so holding, we do not reach the issue whether lack of such authority would have required the exclusion of the reports.

Affirmed.

1 US Const, Am XIV; Const 1963, art 1, § 17.