Opinion
No. 318649 No. 318653
08-07-2014
In the Matter of MULL/SMITH/GREENE, Minors.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 10-494446-NA
Before: JANSEN, P.J., and SAAD and DONOFRIO, JJ. PER CURIAM.
In these consolidated appeals, respondent-mother S. Greene and respondent-father J. Mull each appeal the trial court's order that terminated their parental rights. The court terminated respondent-mother's parental rights to all four children under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(iii), and terminated respondent-father's parental rights to his three children under MCL 712A.19b(3)(b)(ii), (g), and (j). Because the trial court did not follow the precise notice requirements of the Indian Child Welfare Act (ICWA), we conditionally reverse the termination order with respect to both respondents only as to this issue, and remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
In May 2010, the Department of Human Services (DHS) petitioned the trial court to take jurisdiction over some of respondent-mother's children because of her abusive and neglectful behavior. After an adjudicative trial, the trial court determined that the evidence failed to establish a statutory ground for jurisdiction. Accordingly, the court dismissed the petition and returned the children to respondent-mother's custody.
In November 2012, DHS again petitioned the trial court to take jurisdiction over respondent-mother's five children, which included a recently born child. The petition alleged that respondent-mother left the children at home without supervision and assaulted the oldest child, TG. It also identified respondent-father as the legal father of the three youngest children. The children were allowed to stay with respondent-mother pending the adjudication.
DHS had previously terminated respondent-father's rights to three of his other, unrelated, children.
In December 2012, respondent-mother murdered TG by stabbing her with a knife. She was subsequently charged and pled guilty to second-degree murder, MCL 750.317, and first-degree child abuse, MCL 750.136b(2). The DHS filed an amended petition thereafter, and requested that the court terminate the parental rights of both respondents at the initial dispositional hearing.
On April 7, 2014, the Wayne Circuit Court sentenced her to a prison term of 23 to 50 years for each conviction, to be served concurrently.
After an adjudicative trial, the trial court found that respondent-mother stabbed and killed TG after a conflict with respondent-father. That conflict ended when respondent-father drove off in respondent-mother's van as she pounded on the van with a knife. The court also found that respondents created a chaotic and dangerous environment for all the children, even prior to TG's murder. After it found it had jurisdiction over the children and statutory grounds to terminate the parental rights of both respondents, the court received additional evidence on the children's best interests, and held that termination was in the best interests of all the children involved.
On appeal, respondent-mother argues that the trial court erred when it: (1) admitted certain evidence at the initial dispositional hearing; (2) found statutory grounds for termination of her parental rights under MCL 712A.19b; and (3) found that termination of her parental rights was in the children's best interests. She also claims that it violated the notice provisions of the Indian Child Welfare Act (ICWA). Respondent father argues that the trial court erred when it found: (1) statutory grounds for termination of his parental rights under MCL 712A.19b; and (2) that termination of his parental rights was in the children's best interests. We address each issue in turn.
II. ANALYSIS
A. INITIAL DISPOSITIONAL HEARING
1. LEGAL STANDARDS
Child protection proceedings generally consist of an adjudicative phase and a dispositional phase. In re COH, 495 Mich 184, 192; 848 NW2d 107 (2014). The adjudicative phase determines whether the trial court may exercise jurisdiction over a child. Id. The dispositional phase determines the measures, if any, that the trial court should take on behalf of a child within its jurisdiction. Id. MCR 3.977(E) provides that where termination of parental rights is requested at the initial dispositional hearing:
The court shall order termination of the parental rights of a respondent at the initial dispositional hearing held pursuant to MCR 3.973, and shall order that additional efforts for reunification of the child with the respondent shall not be made, if
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child under MCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is introduced at the dispositional hearing, that one or more facts alleged in the petition:
(a) are true, and.(b) establish grounds for termination of parental rights under MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), or (n);
(4) termination of parental rights is in the child's best interests.
The court rules define "trial" as "the fact-finding adjudication of an authorized petition to determine if the minor comes within the jurisdiction of the court." MCR 3.903(A)(27). The rules of evidence for a civil proceeding apply at the trial, except as otherwise provided by the court rules. MCR 3.972(C)(1). One exception is contained in MCR 3.972(C)(2), which allows the court to admit a statement of a child under 10 years of age regarding an act of child abuse, child neglect, sexual abuse, or sexual exploitation. "The Michigan Rules of Evidence do not apply at the initial dispositional hearing, other than those with respect to privileges[.]" MCR 3.973(E)(1).
Here, respondent-mother raises several challenges to the evidence and testimony introduced by petitioner at the initial dispositional hearing, and argues that the trial court: (1) erred when it admitted certain witness testimony at the tender years hearing; and (2) violated her right to due process when it allowed testimony from a CPS worker.
We review a preserved evidentiary claim for an abuse of discretion. In re Utrera, 281 Mich App 1, 15; 761 NW2d 253 (2008). A trial court abuses its discretion by choosing an outcome outside the range of principled outcomes. Id. Questions of law are reviewed de novo. Id. Where a respondent fails to preserve an evidentiary issue with an appropriate objection in the trial court, our review is limited to plain error affecting substantial rights. Id. at 8-9. This Court will not reverse a trial court's decision if the right result is reached. In re Powers, 208 Mich App 582, 591; 528 NW2d 799 (1995), superseded by statute on other grounds in MCL 712A.19b(3)(b)(i). Even if a trial court abuses its discretion in admitting evidence, the respondent must establish that substantial justice warrants appellate relief. In re Utrera, 281 Mich App at 21. The weight and credibility of testimony are matters for the trial court to resolve in its role as the trier of fact. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
Respondent-mother also makes the unsupported assertion that the trial court allowed DHS to introduce inadmissible hearsay during the adjudicative and dispositional phases, and fails to identify any specific testimony that she believes is inadmissible hearsay. This claim is thus abandoned and we need not address it. See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959) ("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 him his arguments, and then search for authority either to sustain or reject his position.").
2. TENDER YEARS HEARING
2A. MCR 3.972(C)(2)(A)
Again, MCR 3.972(C)(2) provides that a statement describing an act of child abuse, child neglect, or other specified conduct "may be admitted . . . 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." As our Court explained in In re Archer, 277 Mich App 71, 82; 744 NW2d 1 (2007) (citations omitted):
The reliability of statements depends on the totality of the circumstances surrounding the making of the statement. 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.
Here, respondent-mother wrongly asserts that the trial court did not properly apply MCR 3.972(C)(2) when it admitted her children's testimony on her abuse and neglect at the tender years hearing. Although it did not explicitly state that it had found the necessary "indicia of trustworthiness" to admit the statements, it considered the statements' context to determine whether they were admissible and to address respondent-mother's specific arguments on this evidence. See In re Archer, 277 Mich App at 82.
Indeed, the trial court thoroughly reviewed the children's statements to determine whether they were admissible, and also accommodated respondent-mother's numerous attempts to bar the testimony. It heard no evidence that the testifying children had reason to fabricate their statements. It acknowledged that one child provided different explanations to school officials with respect to the injuries she sustained in October 2012, but found nothing to indicate that the school officials induced any particular explanation. The trial court also recognized that another child's statement on TG's stabbing death was spontaneous, and considered the statement's spontaneity when it determined that the statement was admissible. And the court agreed to re-review one child's Kids Talk interview to address concerns raised by respondent-mother's counsel on the reliability of the child's statement on TG's murder.
The trial court also correctly noted that it could evaluate this evidence in context and determine its significance after hearing the "whole trial." See In re Miller, 433 Mich at 337.
Accordingly, the trial court properly admitted the children's testimony at the tender years hearing and respondent-mother's claim is without merit.
Even if the trial court had erred when it admitted the children's testimony on TG's death, the error would have been harmless. The trial court found that respondent-mother's own statements and the autopsy findings proved that respondent-mother intentionally stabbed (and killed) TG.
2B. MRE 803(24)
MRE 803(24), the "catchall" hearsay exception, states that the following is "not excluded by the hearsay rule, even though the declarant is available as a witness":
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. [MRE 803(24).]
It should hardly need to be said that MRE 803(24) only applies to testimony that the trial court admits under the auspices of MRE 803(24). A trial court has discretion to allow an undisclosed witness to testify. MCR 3.923(A); In re Alton, 203 Mich App 405, 407; 513 NW2d 162 (1994). A respondent's due process rights are not violated by unlisted witness testimony when the respondent fails to object to the testimony, despite having an opportunity to do so. In re VanDalen, 293 Mich App 120, 137-138; 809 NW2d 412 (2011).
Here, respondent-mother claims that the trial court violated MRE 803(24) when it allowed the testimony of three witnesses who were not named in petitioner's witness list. But the trial court did not rely on MRE 803(24) to admit any of this witness testimony, which makes respondent-mother's argument completely irrelevant. Furthermore, respondent-mother's sudden interest in the testimony of these three witnesses rings rather hollow, as she failed to object to their testimony at trial. And her appeal is unable to show that she was deprived of a fair opportunity to prepare for their testimony, meaning that she has shown no plain procedural error that affected her substantial rights. In re Utrera, 281 Mich App at 8-9.
Respondent-mother's argument on petitioner's second amended motion is equally without merit. DHS filed the motion in part to address the admissibility of a neighbor's statement on remarks made to the neighbor by TG prior to her death. (The trial court sustained respondent-mother's earlier hearsay objection to this testimony, and required the petitioner to submit the second amended motion to determine the admissibility of TG's statements to the neighbor.) The neighbor did not testify until after the amended motion was filed, and respondent-mother did not object to the testimony at that time. Again, respondent-mother fails to show how she was prejudiced by the neighbor's testimony and thus has not show plain error that affects her substantial rights. In re Utrera, 281 Mich App at 8-9.
3. DUE PROCESS
A parent has a liberty interest in the care and custody of a child that is protected by due process. In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003). To satisfy substantive due process, the state must establish parental unfitness by clear and convincing evidence. In re B & J, 279 Mich App 12, 23; 756 NW2d 234 (2008). In Michigan, this standard is satisfied by requiring clear and convincing evidence of a statutory ground for termination in MCL 712A.19b(3). Id. Legally admissible evidence is required to establish a statutory ground for termination at the initial dispositional hearing. MCR 3.977(E)(3).
Testimony introduced at a best interest hearing is subject to its own, less demanding standard of due process. Once the petitioner presents clear and convincing evidence of a statutory ground for termination under MCL 712A.19b(3), a parent no longer has a liberty interest in the care and custody of her child that is protected by due process. In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). Under MCL 712A.19b(5), "[i]f the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights[.]" The focus of the best interest determination is on the child. In re Moss, 301 Mich App 76, 87; 836 NW2d 182 (2013). "[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." Id. at 90. Although evidence must be relevant and material, hearsay is permissible. See MCR 3.977(E)(4); MCR 3.973(E)(1) and (2); In re CR, 250 Mich App 185, 206; 646 NW2d 506 (2001), overruled on other grounds by In re Sanders, 495 Mich 394; ___ NW2d ___ (2014), slip op at 7.
Once again, respondent-mother claims the trial court's admission of hearsay evidence at the adjudicative and dispositional proceedings deprived her of due process. Specifically, she points to the testimony of a Child Protective Services (CPS) worker on statements made by TG on the cause of injuries she sustained in October 2012, and on testimony of two other witnesses at the best interests hearing.
Neither assertion has any merit. The CPS worker's testimony was cumulative of the CPS worker's earlier testimony at the tender years hearing, which the trial court found admissible. It was accordingly incorporated into the record at the parties' stipulation. And, again, respondent-mother fails to explain how the admission of the CPS worker's testimony constitutes plain error or affects her substantial rights. In re Utrera, 281 Mich App at 8-9. As for the witness testimony at the best interest hearing, respondent-mother claims this testimony is inadmissible merely because it is hearsay. Hearsay is admissible at a best interest hearing. See MCR 3.977(E)(4); MCR 3.973(E)(1) and (2); In re CR, 250 Mich App at 206. Respondent-mother has accordingly established no plain error as to this testimony either, and relief is not warranted. Id.
Of course, hearsay is also admissible in any proceeding if it meets an exception detailed in MRE 803.
B. STATUTORY GROUNDS FOR TERMINATION
We review the trial court's "decision that a ground for termination has been proven by clear and convincing evidence" for clear error." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). The trial court's findings are only set aside if we are "left with the definite and firm conviction that a mistake has been made." Id. at 41. The trial court is only required to find one statutory ground for termination. In re JK, 468 Mich at 210.
1. RESPONDENT-MOTHER
MCL 712A.19b(3)(k)(iii) reads:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(k) The parent abused the child or a sibling of the child and the abuse included 1 or more of the following:
* * *
(iii) Battering, torture, or other severe physical abuse.
The doctrine of anticipatory neglect or abuse permits a trial court to evaluate the danger of leaving one child with a respondent through consideration of the respondent's abuse of another child. See In re Powers, 208 Mich App 582, 592-593.
Here, the court heard ample testimony—from respondent-father, no less—on how respondent-mother was aggravated and in possession of a knife shortly before TG's fatal stabbing. Moreover, respondent-mother herself admitted to her culpability in TG's death. The trial court thus properly terminated respondent-mother's parental rights under 712A.19b(3)(k)(iii).
Respondent mother bases her argument on her earlier assertion that her children's testimony cannot be admitted. As noted, the trial court properly admitted the children's testimony under MCR 3.972(C)(2). And even if it the children's testimony is omitted, the trial court heard ample additional evidence to terminate her parental rights under MCL 712A.19b, as discussed above.
In addition, the trial court correctly held that respondent mother's murder of TG indicated how she would treat her other children. See In re Powers, 208 Mich App 582, 592-593. Her home was plainly a chaotic and extremely dangerous place, and her conduct resulted in the death of one of her children. Accordingly, the trial court correctly terminated her parental rights under MCL 712A.19b(3)(b)(i), (j), and (g) as well.
2. RESPONDENT-FATHER
MCL 712a.19b(3)(b)(ii) and (j) state:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
* * *
(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.
Here, the trial court heard evidence that respondent father physically abused TG on repeated occasions, making it "reasonably likely" that TG and his other children would be harmed if they were returned to his home. See In re Powers, 208 Mich App at 592-593. This evidence alone serves as sufficient grounds to terminate respondent-father's parental rights under MCL 712a.19b(3)(j). Respondent father's claim that he participated in some DHS-provided services is irrelevant, because he has plainly not benefited from such services—his home is a place where children will still be at risk of harm. See In re Gazella, 264 Mich App 668, 677; 692 NW2d 708 (2005).
More importantly, respondent-father's own out-of-court statements to the police and his testimony indicate that he had long-term knowledge of respondent-mother's violent disposition, and that she was particularly agitated on the night when she murdered TG. Instead of staying to protect the children, he drove away from the scene as respondent-mother attempted to attack him with a knife. He also reported that respondent-mother engaged in numerous abusive activities in his police statement after TG's murder. Accordingly, the trial court also had grounds to terminate his parental rights under MCL 712a.19b(3)(b)(ii).
Respondent-father's claim that the trial court subjected him to an inappropriate foreseeability standard under MCL 712a.19b(3)(b)(ii) is completely unavailing. He was the only individual aware of respondent-mother's agitated state and possession of a knife before she stabbed TG. Further, respondent-father's own testimony indicates that he made no effort to protect the children or contact the police. Instead, he drove off in respondent-mother's van, made cab runs, and then went to a motel to sleep.
Because the trial court is only required to find one statutory ground for termination, it is unnecessary for us to consider respondent father's additional statutory-grounds-related arguments. In re JK, 468 Mich at 210.
C. BEST INTERESTS
Respondent-mother does not independently address the best interests determination, but merely argues that the trial court could not consider the children's best interests because there were no statutory grounds for termination. As the trial court properly found statutory grounds for termination, her argument fails.
"[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." In re Moss, 301 Mich App at 87. The trial court must decide each child's best interests separately. In re Olive/Metts, 297 Mich App at 42. The trial court may consider any relevant factor, including the advantages of a foster home over a parent's home, the bond between the child and parent, the parent's parenting ability, and the child's needs for permanency, stability, and finality. Id. at 41-42.
Here, the trial court erred and applied a "clear and convincing" evidence standard instead of the required "preponderance of the evidence" standard—a mistake that benefited, not harmed, respondent-father. In re Moss, 301 Mich App at 87. The trial court found that respondent-father loved his children, but lacked an ability and commitment to raise the children and provide for their safety. The court gave weight to the testimony of petitioner's expert on child trauma, child abuse, and child development, but also considered the needs of each child and the fact that the older child had witnessed respondent-mother stab TG. The trial court determined that it would remain committed to having the children placed with relatives, but found that termination of respondent-father's parental rights was supported by clear and convincing evidence.
Accordingly, the trial court properly found that termination of respondent-father's parental rights was in the children's best interests.
D. INDIAN CHILD WELFARE ACT
The Indian Child Welfare Act (ICWA), 25 USC § 1901 et seq., establishes various substantive and procedural protections where an Indian child is involved in a child protection proceeding. In re Morris, 491 Mich 81, 99; 815 NW2d 62 (2012). The act requires that the relevant Indian tribe be notified of a proceeding where there is reason to know that an Indian child may be involved. 25 USC § 1912(a). The "'reason to know' standard for purposes of the notice requirement in 25 USCA § 1912(a) should set a rather low bar." In re Morris, 491 Mich at 105. This "rather low bar" for the ICWA's notice requirement truly is rather low—the Michigan Supreme Court quoted approvingly from a California case that states: "the minimal showing required to trigger notice under the ICWA is merely evidence suggesting the minor may be an Indian child. . ." In re Morris, 491 Mich at 106, quoting In re Antoinette S, 104 Cal App 4th 1401, 1407; 129 Cal Rptr 2d 15 (2002) (emphasis in original; quotation marks and citations omitted). This would presumably include mere testimony from witnesses that the child involved might be considered an "Indian child" under the ICWA. See In re Morris, 491 Mich at 109 (holding that ICWA notice provisions triggered when respondents merely "informed the court" that they had Indian heritage).
An "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 USC 1903(4).
In re Morris involved parents who affirmatively stated that they had Indian heritage or belonged to an Indian tribe. See In re Morris, 491 Mich at 109. This case is slightly different— respondent-mother and her sister made pretrial statements that their family might have Cherokee or Blackfoot heritage. To us, it seems a dangerous proposition to allow mere respondent speculation on possible Indian heritage to trigger the ICWA's substantial notice provisions. We do not address this issue for two reasons: (1) the Michigan Supreme Court indicated that it considered such testimony a valid basis to trigger the ICWA's provisions; and (2) petitioner does not contest the issue, and explicitly asks us to conditionally remand the case per In re Morris so that the trial court may address the ICWA notice issue. See also In re Morris, 491 Mich at 106 (balancing the procedural "burden on the trial court" for ICWA notice compliance with the "potential costs of erroneously failing to send notice").
"Once sufficient indicia of Indian heritage are presented to give the court a reason to believe the child is or may be an Indian child, resolution of the child's and parent's tribal status requires notice to the tribe or, when the appropriate tribe cannot be determined, to the Secretary of the Interior." In re Morris, 491 Mich at 108. Trial courts must ensure that the record includes documentation on the notice, which includes, at a minimum, "(1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a), and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice." Id. at 114. "[T]he proper remedy for ICWA-notice violations is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue." Id. at 122. A parent cannot waive a child's status as an Indian child or any right of the tribe afford by the ICWA. Id. at 111.
Although "Secretary" is defined in 25 USC 1903(11) as the Secretary of Interior, our Supreme Court noted in In re Morris, 491 Mich at 103 n 14, that notice is actually sent to the Minneapolis Area Director, Bureau of Indian Affairs, pursuant to 25 CFR 23.11(b) and (c)(2).
Although the trial court directed that the Cherokee and Blackfoot tribes and the Bureau of Indian Affairs be given notice of these proceedings, as petitioner concedes, the record does not disclose whether the requisite notices were provided or whether the Indian tribes responded to the notices. We therefore conditionally reverse the trial court's termination order and remand only for resolution of the ICWA-notice issue. Because a parent cannot waive a child's status as an Indian child or any right of the tribe afford by the ICWA, we conditionally reverse the order with respect to respondent-father's parental rights as well. Id. at 111.
III. CONCLUSION
Because the trial court made no other error, if it determines on remand that the ICWA does not apply, then its order terminating respondents' parental rights shall be reinstated. If the trial court determines that the ICWA does apply, the order terminating respondents' parental rights must be vacated and all proceedings must begin anew in accordance with the ICWA. In re Morris, 491 Mich at 123.
To make this determination, the trial court must ensure that proper notice is delivered to the appropriate entities per 25 USC § 1912(a). In re Morris, 491 Mich at 122.
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Conditionally reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Henry William Saad
/s/ Pat M. Donofrio