Opinion
No. 347097
09-19-2019
In re J. L. WALTER, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2018-867099-NA Before: O'BRIEN, P.J., and BECKERING and LETICA, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to the minor child at the initial dispositional hearing under MCL 712A.19b(3)(g) (failure to provide proper care and custody) and (j) (reasonable likelihood that the child will be harmed if returned to the parent's home). Respondent's sole claim on appeal is that the trial court abused its discretion in admitting statements made by respondent's then eight-year-old child to a Children's Protective Services (CPS) investigator during a forensic interview as evidence to exercise jurisdiction under MCL 712A.2(b). We find no abuse of discretion in the trial court's admission of the child's statements and affirm both the trial court's exercise of jurisdiction and the termination of respondent's parental rights to the child.
I. BACKGROUND
Petitioner initiated these proceedings in September 2018 when respondent's eight-year-old child was left without proper care or custody following her arrest and incarceration for prostitution. At the time of her arrest, respondent, the child, and respondent's live-together partner resided in a motel. She admitted to a CPS worker that she was addicted to crack cocaine and used the Supplemental Security Income benefits she received for herself and her child, along with the money she made from engaging in prostitution, to support her addiction. The motel room where respondent and the child were living was very unkempt, dirty, messy and cluttered, there were clothes strewn throughout, and it smelled of urine. In the motel room, police officers found crack pipes on an end table near the child's bicycle, the child's prescription medications next to the crack pipe, several lighters, and a "sex toy" on the night stand that was accessible to the child. Officers also recovered a crack pipe from respondent's purse. The officer who photographed the motel room opined that it was in no condition for an eight-year-old child to be living in. During the two to three months before her arrest, respondent failed to take advantage of wraparound services offered to her to address her mental health, substance abuse, and housing issues.
Kandra Speight, a trained and experienced child forensic interviewer, interviewed the child at the police station following respondent's arrest. According to Speight, the child stated that he did not know what school he went to or what grade he was in. The child indicated that he slept on the floor of the motel room at times because he "pees in the bed sometimes." When Speight asked the child how respondent made money, the child was hesitant and seemed unwilling to discuss the matter initially. However, the child "stated that he would whisper it in [Speight's] ear," and then told her that respondent "has dates" and that he goes to another motel room with his "new dad" or a babysitter during those times. With respect to drug use by respondent and the child's "new dad," Speight testified:
[The child] described it as there's a—a long thing with a circle on the end and it looks like a stick. And they put it inside of a bottle with a hole in it and then he demonstrated sucking in a deep breath of air. He said that they take white stuff and break it apart so that each of them could have a piece of it. And he said that the white stuff looks like white rocks.
Petitioner filed a petition asking the trial court to assume jurisdiction over the child under MCL 712A.2b(1) and (2) and to terminate respondent's parental rights at the initial disposition. The petition alleged that the child had been temporarily removed from respondent's care in 2012 because of her substance abuse and improper supervision, after which she was provided with and participated in numerous services. But since July 2018, she had been engaging in prostitution and was using crack cocaine in the child's presence. In September 2018, she was charged with child neglect, prostitution, and possession of drug paraphernalia; she lacked suitable housing; and she was unable to provide appropriate care or a suitable plan for the child, placing him at a significant risk of harm. Thereafter, respondent pleaded guilty to prostitution and child neglect.
Before the trial on the petition, petitioner filed a motion to admit the statements the child made to Speight under MCR 3.972(C)(2) and MRE 803(24). At the hearing on the motion, Speight testified about her forensic interview of the child and the statements he made. The trial court found that the circumstances concerning the giving of the statements provided adequate indicia of trustworthiness and admitted the child's statements through Speight's testimony under MCR 3.972(C)(2)(a).
The trial court proceeded to hold a combined adjudicatory and termination trial, wherein the police officers testified about their investigation of respondent's prostitution activity and the conditions of the motel room where respondent resided with the child, Speight testified about her CPS investigation, and respondent's wraparound facilitator testified about respondent's failure to engage in offered services before her arrest. The court found that a preponderance of the evidence established statutory grounds to assume jurisdiction over the child under MCL 712A.2(b)(1) and (2). It also found that clear and convincing evidence supported termination of respondent's parental rights under MCL 712A.19b(3)(g) and (j). Following a best-interest hearing, the trial court found that termination of respondent's parental rights was in the child's best interests. Accordingly, the trial court entered an order terminating respondent's parental rights. This appeal ensued.
II. STANDARD OF REVIEW
We review the trial court's evidentiary rulings for an abuse of discretion. In re Archer, 277 Mich App 71, 77; 744 NW2d 1 (2007). "An abuse of discretion occurs when the trial court chooses an outcome that falls 'outside the range of principled outcomes.' " In re Utrera, 281 Mich App 1, 15; 761 NW2d 253 (2008), quoting Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007). "This Court, however, will not reverse on the basis of an evidentiary error unless the court's ruling affected a party's substantial rights." In re Caldwell, 228 Mich App 116, 123; 576 NW2d 724 (1998). See also MCR 2.613(A); MCR 3.902(A).
III. ANALYSIS
Respondent's sole claim on appeal is that the trial court abused its discretion in admitting statements made by the child to Speight during the forensic interview, without which respondent claims the evidence was not sufficient to establish statutory grounds to exercise jurisdiction over the child under MCL 712A.2(b). More specifically, respondent argues that the circumstances surrounding the giving of the child's statements did not provide adequate indicia of trustworthiness to warrant their admission under MCR 3.972(C)(2)(a). We disagree.
The adjudicative phase of child protective proceedings "involves a determination whether the trial court may exercise jurisdiction over the child, i.e., whether the child comes within the statutory requirements of MCL 712A.2(b)." In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006). "During the adjudicative phase, a trial may be held to determine whether any of the statutory grounds alleged in the petition have been proven." Id. The rules of evidence for a civil proceeding apply during the trial. Id.; see also MCR 3.972(C)(1). However, hearsay statements of a child pertaining to child abuse or neglect are admissible if petitioner satisfies the criteria for reliability set forth under MCR 3.972(C)(2). In re Archer, 277 Mich App at 80.
Specifically, MCR 3.972(C)(2) provides, in pertinent part:
Any statement made by a child under 10 years of age . . . regarding an act of child abuse, child neglect, sexual abuse, or sexual exploitation, as defined in MCL 722.622(f), (j), (w), or (x), performed with or on the child by another person may be admitted into evidence through the testimony of a person who heard the child make the statement as provided in this subrule.
(a) A statement describing such conduct may be admitted regardless of whether the child is available to testify or not, and is substantive evidence of the act or omission 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. This statement may be received by the court in lieu of or in addition to the child's testimony.
MCR 3.972(C)(2) governs statements regarding child abuse and child neglect, among other acts, as defined in MCL 722.622. The child's statements regarding respondent's drug use in his presence, her engaging in prostitution at the motel, and the fact that the child did not know what grade he was in or what school he attended evidence neglectful treatment placing the child at an unreasonable risk to his welfare. See MCL 722.622(j), as amended by 2014 PA 30 (formerly defining "child neglect"); MCL 722.622(k) (now defining "child neglect"). --------
Accordingly, "[u]nder MCR 3.972(C)(2)(a), the trial court must determine, 'in a hearing held before trial,' whether the statement possesses adequate indicia of trustworthiness." In re Archer, 277 Mich App at 81. In addressing this requirement, this Court has held that "[t]he reliability of a statement depends on the totality of the circumstances surrounding the making of the statement." Id. at 82. "Circumstances indicating the reliability of a hearsay statement may include spontaneity, consistent repetition, the mental state of the declarant, use of terminology unexpected of a child of a similar age, and lack of motive to fabricate." Id. In Archer, this Court also considered the questioner's compliance with forensic interviewing protocol in determining the reliability of the child's statement. Id.
We find that the circumstances surrounding the child's statements provided adequate indicia of trustworthiness, and thus the trial court did not abuse its discretion in admitting the statements at the trial. Id. at 77, 82. The child, then eight years old, made the statements to Speight during an interview conducted at the police station following respondent's arrest for prostitution. Speight is a CPS investigator trained in Michigan's forensic interviewing protocol for interviewing children and has conducted hundreds of interviews with children over the past two years. Speight testified that she followed Michigan's forensic interviewing protocol when she interviewed the child in this case. As part of that protocol, Speight confirmed that the child was able to distinguish between telling the truth and telling a lie. Also consistent with the interviewing protocol, Speight asked the child, and he agreed, to tell the truth, not to guess, and to correct her if she said something wrong. She confirmed that he understood the process with examples and tried to ask open-ended questions during the interview. Speight's use of this forensic interviewing protocol supports the trustworthiness of his statements.
It is also evident from our review of the record that the child's mental state during the interview supports the trustworthiness of his statements. Speight testified that she was able to build rapport with the child, he appeared "very comfortable" throughout the interview, he was "relaxed and playing with toys," it did not appear that he was "nervous or attempting to lie." The child was generally forthcoming and only became "very hesitant" when Speight asked him how his mother makes money. Despite his initial hesitance, the child ultimately disclosed, albeit in a whisper, that respondent "has dates." Speight indicated that the child was reluctant to talk about respondent's activities because he "was scared that he was going to get a spanking like he did the last time that he talked about something." Thus, it does not appear that the child's hesitation signified a lack of truthfulness. The child's mental state in this regard shows a natural reluctance out of fear that he would be physically disciplined. Contrary to respondent's argument, the fact that the child told Speight that his mother "has dates," even though he expressed fear of retaliation, supports the credibility of his statement as he seemingly felt it would be against his interest to make that disclosure. The child's mental state indicates that his statements were trustworthy.
Further, there is also no evidence that the child was influenced, coached, or intimidated, or had any other reason to fabricate his story. It appears that the child used terminology that would be expected of an eight-year-old child to describe his experiences. For instance, in describing respondent's drug use, he described the substance as "white stuff" that "looks like white rocks," but did not identify the substance by name. The child described respondent's means of making money as having "dates" in the motel room, as opposed to using the term "prostitution." He also described how he slept on the floor because he "pees in the bed sometimes," which, as the trial court found, makes perfect sense and appears truthful. The child referred to respondent's live-together partner as his "new dad." Speight also testified that, in forensically interviewing children, she uses open-ended questioning and she followed the protocol in this case. This testimony, as well as the child's narrative descriptions as reported by Speight, supports the conclusion that the child's statements were not a product of suggestion or influence.
Further, the specific details with which the child described the drug use by his mother and his "new dad" in his presence support the truthfulness of his statements. It would not be expected that an eight-year-old child would know this information unless he had personally observed it, which indicates that his statements were based on his personal knowledge and were truthful. See In re Archer, 277 Mich App at 82-83 (relying on a four-year-old child's description of sexual assault, which would typically be outside the knowledge of a young child absent personal experience, as evidence of reliability).
Finally, Speight, who was a trained and experienced child forensic interviewer, testified that it did not appear that the child had any reason to fabricate. Id. at 82 (a lack of motive to fabricate suggests that a statement is reliable). Speight testified that in her experience working with children she has "come to develop a sense of when they're being honest and when they're not." She testified that she believed the child was being honest during the interview. Respondent asserts that Speight did not adequately pursue the possibility that the child had a motive to give a false explanation through "alternative hypothesis testing." Defense counsel pursued this during cross-examination of Speight, and Speight explained that alternative hypothesis testing entails formulating another "hypothesis other than what was alleged in the complaint to determine if that is a possibility as well" in an effort rule out other possible explanations for the child's allegations and test the veracity and accuracy of a young child's statements. She testified that she employed the strategy in that, before speaking with the child, she formulated other options or possibilities for the allegations, but none of those possibilities "came up" during the interview for Speight to pursue with questioning. While respondent appears to assert that Speight should have pursued other explanations for the child's statements, she does not suggest any alternate explanations that Speight should have pursued, and the child's statements were largely corroborated by the circumstances of respondent's arrest for prostitution and her own admissions regarding her crack cocaine use.
We conclude that the totality of these circumstances provided adequate indicia of trustworthiness to warrant admission of the child's statements under MCR 3.972(C)(2)(a). Id. at 82-83. The trial court's decision clearly fell well within the range of principled outcomes, and thus the court did not abuse its discretion in admitting the child's statements through Speight's testimony at the adjudicatory trial. In re Utrera, 281 Mich App at 15; In re Archer, 277 Mich App at 77.
We also reject respondent's challenge to the trustworthiness of the child's statements on the basis that Speight failed to comply with Michigan's forensic interviewing protocol when she interviewed the child. Specifically, respondent asserts that the interview was not video recorded and there is no evidence that the interview was "child[-]centered," conducted in a "dedicated room," or that Speight employed a "phased interview" process. Although following forensic interviewing protocol may be relevant to the admissibility of statements under MCR 3.972(C)(2)(a), see In re Archer, 277 Mich App at 82-83, the record does not indicate that Speight failed to follow Michigan's forensic interviewing protocol in any substantial manner. To the contrary, Speight, who is a trained and experienced forensic interviewer, testified that she did, in fact, follow the protocol when she interviewed the child. And as discussed earlier, the circumstances surrounding the child's statements provide adequate indicia of trustworthiness. While respondent takes issue with the fact that the interview was not recorded, Michigan's forensic interviewing protocol suggests video recording as a best practice, but does not mandate such recording. Moreover, there is no evidence that Speight, who took notes during the interview, failed to accurately document the child's statements.
Further, we disagree with respondent's assertion that the interview was not child-centered. Speight's adoption of the child's age-appropriate terminology in describing the child's statements suggests she permitted the child to control the vocabulary of the conversation. She also permitted the child to whisper things in her ear when he felt uncomfortable speaking aloud, again suggesting that Speight was focused on ensuring the child was comfortable and able to communicate freely throughout the interview. While there was no specific testimony regarding this issue, there is no indication that Speight suggested events not mentioned by the child or projected adult interpretations onto situations. And despite the alleged lack of a dedicated room specifically equipped for child interviews (Speight spoke with the child in an interview room at a police station), Speight's testimony indicates that the child was "very comfortable" and "relaxed and playing with toys," did not seem nervous, and generally was not hesitant to speak during the interview, except when he feared he would get in trouble for talking about respondent's "dates."
Finally, respondent lists the various phases of Michigan's forensic interviewing protocol, concluding that "it is difficult to see how" Speight's technique complied with the phased interview process. But apart from her assertion that there was no alternative hypothesis testing, respondent fails to elaborate how Speight's technique was deficient. " 'It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for his arguments, and then search for authority either to sustain or reject his position.' " Yee v Shiawassee Co Bd of Comm'rs, 251 Mich App 379, 406-407; 651 NW2d 756 (2002), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). " '[W]here a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by this Court.' " Yee, 251 Mich App at 406, quoting Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). Moreover, there is no indication in the record that Speight failed to follow the various phases of Michigan's forensic interviewing protocol.
In any event, even if we determined that the child's statements were inadmissible under MCR 3.972(C)(2)(a), any error arising from their admission was harmless because the balance of the evidence was sufficient to establish statutory grounds for taking jurisdiction under MCL 712A.2(b). A trial court must exercise its jurisdiction over a child if the petitioner proves by a preponderance of the evidence one or more statutory grounds for jurisdiction under MCL 712A.2(b) alleged in the petition. MCR 3.972(C) and (E); In re Sanders, 495 Mich 394, 404-405; 852 NW2d 524 (2014). In pertinent part, MCL 712A.2(b) provides the court with
[j]urisdiction in proceedings concerning a juvenile under 18 years of age found within the county:In this case, respondent's eight-year-old child was without proper care and custody following respondent's arrest and incarceration for prostitution. It was apparent that respondent was not adequately caring for the child's personal hygiene at that time, as it was reported that the child smelled of urine. Speight and an investigating police officer both testified regarding the condition of the motel room in which respondent and the child were residing. The motel room was apparently in a cluttered and unsanitary condition, with drug paraphernalia and a "sex toy" easily accessible to the child. Respondent admitted she used crack cocaine multiple times every day and she used her income to support her drug addiction. And, according to Speight, respondent had no suitable housing at the time of the adjudication. Thus, even without evidence of the child's statements, petitioner demonstrated by a preponderance of the evidence that respondent subjected the child to a substantial risk of harm to his well-being and, by reason of her criminality and neglect, created an environment that was unfit for the child. The trial court did not err by exercising its jurisdiction over the child under MCL 712A.2b(1) and (2).
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. . . .
* * *
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in. As used in this sub-subdivision, "neglect" means that term as defined in section 2 of the child abuse and neglect prevention act, 1982 PA 250, MCL 722.602. [MCL 712A.2(b)(1) and (2).]
Affirmed.
/s/ Colleen A. O'Brien
/s/ Jane M. Beckering
/s/ Anica Letica