Opinion
No. 337353
09-14-2017
In re TOWN-RUTHERFORD/EVANS/IRELAND, Minors.
UNPUBLISHED Osceola Circuit Court Family Division
LC No. 15-005201-NA Before: TALBOT, C.J., and O'CONNELL and CAMERON, JJ. PER CURIAM.
Respondent-mother appeals as of right from an order terminating her parental rights to her children, AR, ME, and SI, under MCL 712A.19b(3)(b)(ii) (failure to protect), (c)(i) (conditions of adjudication continue to exist), (c)(ii) (failure to rectify other conditions), and (j) (likelihood of harm if returned). We affirm.
The children were initially removed from respondent's care and custody following allegations that AR's stepfather—the father to ME and SI—had sexually assaulted her multiple times. According to the petition, respondent failed to protect AR from the sexual abuse. Respondent entered a no-contest plea to the allegations contained in the petition, and the trial court took jurisdiction over the children. Approximately one year later, respondent was reunited with the children. However, within two months, the children were again removed and a supplemental petition was filed for respondent's failure to properly care for the children. The supplemental petition was filed after an investigation revealed that all three children and respondent were passengers in a vehicle operated by respondent's drunk boyfriend. When he was arrested, his blood alcohol content (BAC) was determined to be .21. Based on respondent's failure to protect AR from sexual abuse and then subsequently placing the children in danger, the trial court terminated respondent's parental rights to her three children pursuant to MCL 712A.19b(3)(b)(ii), (c)(i), (c)(ii), and (j).
He is now imprisoned for sexually abusing AR, and his parental rights to ME and SI were terminated.
The trial court took judicial notice of testimony from Child Protective Services investigator Christopher Parham and Reed City Police officer Karen Lindstrom at the March 30, 2015 pretrial hearing to establish the factual basis for respondent's no-contest plea.
Respondent now argues that the trial court relied on inadmissible evidence in terminating her parental rights. Specifically, respondent argues that the trial court used inadmissible hearsay statements from (1) the March 16, 2015 preliminary hearing, (2) the March 30, 2015 pretrial hearing, (3) the supplemental petition, and (4) from testimony and psychological reports admitted at the December 13, 2016 termination hearing to terminate her parental rights. We disagree.
Generally, "[e]videntiary rulings are reviewed for an abuse of discretion." In re Martin, 316 Mich App 73, 80; 896 NW2d 452 (2016) (citation omitted). However, respondent did not object to any of the evidence at the termination hearing. Therefore, our review is "limited to plain error affecting substantial rights." In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). This Court also "review[s] de novo preliminary questions of law affecting the admission of evidence, e.g., whether a statute or rule of evidence bars admissibility." In re Martin, 316 Mich App at 80.
Child protective proceedings include two phases: an adjudicative phase and a dispositional phase. In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). The rules of evidence apply during the adjudicative phase, but ordinarily not during the dispositional phase. Id. at 406. During the dispositional phase, "[a]ll relevant and material evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value," even if that evidence is not legally admissible. MCR 3.977(H)(2); see also In re Gilliam, 241 Mich App 133, 137; 613 NW2d 748 (2000). However, if "the termination is sought on the basis of grounds new or different from those that led the court to assert jurisdiction over the children, the grounds for termination must be established by legally admissible evidence." In re Jenks, 281 Mich App 514, 516; 760 NW2d 297 (2008), citing MCR 3.977(F)(1)(b).
To begin, respondent's no-contest plea at the adjudication could not be used as evidence at a later termination hearing, and therefore, the trial court was required to rely on legally admissible evidence to terminate respondent's parental rights. While a respondent's plea may be used as evidence at a later termination hearing, MCR 3.971(B)(4), respondent did not admit to any of the factual allegations in the petition. Instead, the trial court took judicial notice of testimony from the earlier pretrial hearing to establish a factual basis. The trial court also specifically informed respondent:
Typically, when a -- a plea is entered, any statements that are made in taking the plea could be used as evidence in those proceedings; however, because you're entering a no contest plea today not making any admissions, there will be nothing that could be used against you in that regard.Therefore, respondent did not admit to any factual allegations in the petition, and petitioner was required to provide legally admissible evidence at the termination hearing to support the statutory grounds for termination. MCR 3.977(F)(1)(b); In re CR, 250 Mich App 185, 205-206; 646 NW2d 506 (2002), overruled on other grounds by In re Sanders, 495 Mich at 422.
Respondent also correctly asserts that the trial court was required to rely on legally admissible evidence because the supplemental petition sought termination under "new or different" circumstances. MCR 3.977(F). Termination was premised partly on MCL 712A.19b(3)(c)(ii), where "[o]ther conditions exist that would cause the child to come within the trial court's jurisdiction," and MCL 712A.19b(3)(j), where there was a reasonable likelihood that the children will be harmed if returned to the home of the parent. These two grounds were based on new circumstances that arose after the trial court exercised jurisdiction. Specifically, the original petition alleged that respondent failed to protect AR from her stepfather's sexual abuse, but the supplemental petition alleged that respondent allowed her children to ride in a vehicle with her boyfriend while he was heavily intoxicated. Because of respondent's no-contest plea and due to new or different circumstances in the supplemental petition, the trial court was bound by the rules of evidence when terminating respondent's parental rights.
In its written opinion and order, the trial court cited MCR 3.977(F)(1)(b) and stated, "In order to terminate an individual's parental rights, there must be clear and convincing evidence that at least one of the statutory criteria for doing so have been met."
Petitioner also sought termination under MCL 712A.19b(3)(c)(i), which is predicated on a finding that the circumstances that caused the trial court to initially take jurisdiction still exist. Additionally, petitioner sought termination under MCL 712A.19b(3)(b)(ii), which was premised on respondent's failure to protect AR from her stepfather's sexual abuse. These two statutory grounds were necessarily based on the circumstances that initially led to jurisdiction, and the trial court would have been allowed to rely on hearsay statements to prove those statutory grounds if not for respondent's no-contest plea.
Next, respondent argues that the trial court erred because it relied on inadmissible hearsay statements to terminate her parental rights. This argument fails.
Respondent first directs this Court to testimony at the preliminary and pretrial hearings, as well as statements in the supplemental petition seeking termination, and claims that they constituted inadmissible hearsay. The trial court, however, did not rely on any of the statements at those hearings or in the petition to terminate respondent's parental rights. Instead, it relied on testimony and reports from the termination hearing to order termination of respondent's parental rights. Accordingly, to the extent respondent claims that the trial court impermissibly relied on hearsay at the preliminary and pretrial hearings or the supplemental petition, this argument fails.
Respondent's attorney objected to alleged hearsay statements at the preliminary and pretrial hearings, but the trial court informed counsel that hearsay was permissible during those proceedings. See MCR 3.965(B)(12) (stating that the rules of evidence do not apply to preliminary hearings); see also MCR 3.965(C)(3) (stating that hearsay evidence is admissible at a pretrial hearing as to findings regarding placement). The trial court relied on the testimony at the pretrial hearing as a factual basis for the no-contest plea. However, respondent does not challenge the sufficiency of her no-contest plea, and we decline to address the issue. See Ewald v Ewald, 292 Mich App 706, 726; 810 NW2d 396 (2011) (holding that the defendant's claim failed because he did not provide any meaningful argument, citation to the record, or authority).
Respondent also claims that the trial court erred when it relied on hearsay statements admitted at the termination hearing. First, she argues that Child Protective Services (CPS) investigator Christopher Parham's testimony regarding sexual abuse against AR was inadmissible hearsay. Parham testified that AR told him about her stepfather's sexual abuse during a forensic interview Parham conducted. However, even before the adjudication, petitioner filed a notice of intent to admit AR's statements through Parham pursuant to MCR 3.972(C)(2). Respondent never objected to the use of those statements either before or during the termination hearing; therefore, she has waived any argument on this basis. See Mich AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich App 143, 148; 809 NW2d 444 (2011) ("A party may not take one position in the trial court and then seek redress in an appeal on a contrary ground."). Even if we were to address the issue, a child's statement regarding sexual abuse may be admitted into evidence through the testimony of a person who heard the child make the statement if "the court has found, in a hearing held before trial, that the circumstances surrounding the giving of the statement provide adequate indicia of trustworthiness." MCR 3.972(C)(2)(a). The fact that the statement was made by the child during a properly conducted forensic interview indicates trustworthiness. In re Archer, 277 Mich App 71, 82; 744 NW2d 1 (2007). Additionally, when the trial court accepted respondent's no-contest plea, it took judicial notice of Parham's testimony at the earlier hearing. Even if the trial court did not hold an evidentiary hearing regarding the statements, this failure did not violate respondent's substantial rights because she was given notice that Parham would testify regarding AR's statements, and the trial court took judicial notice of that testimony, indicating its satisfaction as to the statements' trustworthiness. Accordingly, the trial court's reliance on Parham's testimony was not reversible error.
This Court has concluded that statements at a forensic interview were deemed admissible, despite the lack of an evidentiary hearing, when notice was given to the respondents. See In re Cope, unpublished opinion per curiam of the Court of Appeals, issued March 15, 2016 (Docket Nos. 328536, 328537), pp 7-8.
Allegations that respondent failed to protect AR from sexual abuse is further supported by her own statements. Contrary to respondent's assertions, these admissions are not hearsay. Parham testified that respondent refused to disclose to him the location of AR's stepfather, told him she did not believe AR, and continued to deny that any sexual abuse occurred. In addition to Parham, foster care worker Kim Gager also testified that respondent, in relation to the men she allowed around her children, asked, "[W]hy is it [my] responsibility to make sure that they're not sex offenders or that they don't have criminal backgrounds." An admission from a party-opponent offered against the party does not qualify as hearsay. MRE 801(d)(2). The testimony from Parham and Gager involved respondent's own admissions and were, therefore, admissible.
She next argues that the trial court relied on hearsay statements from foster care worker Amy Lilienthal as to the CPS complaint that eventually led to a second removal of the children. Lilienthal testified that she received a complaint alleging respondent was not feeding or bathing the children, she was allowing another man to live in the home without petitioner's approval, and there was a domestic violence dispute at the home. Lilienthal's testimony was not offered for the truth of the matter asserted, e.g., to prove that respondent really was not feeding or bathing the children. MRE 801(d). Instead, Lilienthal testified that because of those allegations, an investigation was conducted, which resulted in re-removal of the children. The trial court's termination order did not rely on these allegations as substantive evidence, referring to them only as "allegations being investigated." Rather, it relied on the investigation's findings, i.e., that the children were allowed to ride in the vehicle with respondent's boyfriend, to terminate respondent's parental rights.
Finally, respondent argues that there was no legally admissible evidence to prove that she allowed her children to ride with her boyfriend while he was heavily intoxicated. However, Brandon Dowell, an outpatient therapist who worked with respondent and AR, testified that respondent admitted to him that she and her children were in the vehicle when her boyfriend was arrested for driving under the influence. As previously stated, an admission from a party-opponent offered against the party does not qualify as hearsay, MRE 801(d)(2), and the trial court could consider Dowell's statements regarding respondent's own admissions. Additionally, respondent's psychological evaluation report, where she admitted to the drunk driving incident, was admitted without objection. In the report, she admitted to the psychologist that the children were in the vehicle when her boyfriend was arrested. She further asserted that his BAC was .21 at the time of the arrest. Respondent's attorney did not object to the admission of the report, and she cannot now harbor error, to which she consented below, as an appellate parachute. Marshall Lasser, PC v George, 252 Mich App 104, 109; 651 NW2d 158 (2002); see also Hodge v Parks, 303 Mich App 552, 556; 844 NW2d 189 (2014) ("A party cannot stipulate with regard to a matter and then argue on appeal that the resulting action was erroneous."). Finally, even if Lilienthal's testimony about the drunk driving incident, wherein she discussed the contents of a police report, constituted inadmissible hearsay, it was cumulative of admissible evidence admitted at the termination hearing. Respondent has not shown plain error affecting her substantial rights, and the trial court did not err in relying on the evidence presented at the termination hearing to terminate respondent's parental rights.
Even if respondent had shown plain error, respondent has not demonstrated how any error affected her substantial rights. In re Utrera, 281 Mich App at 8. Respondent provided no evidence disputing the fact that AR was sexually abused or that the children rode in the vehicle with her boyfriend when he was intoxicated. Respondent simply claims that petitioner should have called other witnesses who could have testified directly about those incidents. Thus, she has failed to demonstrate prejudice from the admission of any alleged hearsay statements.
Affirmed.
/s/ Michael J. Talbot
/s/ Peter D. O'Connell
/s/ Thomas C. Cameron