in Re H C Powell Minor
335335
| Mich. Ct. App. | May 9, 2017Background
- DHHS petitioned to terminate respondent’s parental rights after an unrelated minor (the LTP’s daughter) disclosed sexual abuse by respondent during a forensic “Kids Talk” interview.
- The forensic interviewer, Christine Brohl, testified at a tender-years evidentiary hearing; the referee admitted Brohl’s testimony in lieu of the child’s live testimony under MCR 3.972(C)(2).
- The child’s interview contained descriptive allegations of digital penetration and a contemporaneous gesture reenacting the conduct; the child also gave inconsistent statements (suggesting it might have been a dream) and exhibited acting-out behavior.
- At a combined adjudication/termination hearing, the parties stipulated to incorporate Brohl’s prior testimony; CPS testified and recommended termination as a superior plan.
- The referee and trial court found by clear and convincing evidence that statutory grounds for termination existed (MCL 712A.19b(3)(g) and (j)) and that termination was in the child’s best interests, noting risk of future harm and that the child was placed with the mother who would protect her.
- Respondent appealed, arguing (1) the tender-years admission was improper and (2) termination was not supported by clear and convincing evidence or in the child’s best interests.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Admissibility of Brohl’s testimony under MCR 3.972(C)(2) | Brohl’s recorded forensic interview and testimony supplied adequate indicia of trustworthiness to admit the child’s statements in lieu of live testimony. | The child’s conduct, initial denials (saying it might be a dream), and disruptive behavior undermined trustworthiness. | Admission affirmed: totality of circumstances (protocol, interviewer’s experience, detail, spontaneity, fear of disclosure) provided adequate indicia of trustworthiness. |
| Sufficiency of evidence to find statutory ground MCL 712A.19b(3)(g) (failure to provide proper care/custody) | The child’s detailed disclosures and reenactment established that respondent sexually abused another minor; anticipatory neglect doctrine permits using that conduct as basis to terminate. | Respondent disputed reliability and challenged weight of evidence. | Court held clear and convincing evidence supported finding respondent sexually abused the unrelated minor and thus established (3)(g). |
| Requirement to provide reunification services under MCR 3.977(E) | Petitioner argued termination could proceed without reunification services when statutory grounds and best interests are established at dispositional hearing. | Respondent argued services were not provided and should have been. | Court held MCR 3.977(E) permitted declining reunification efforts under the circumstances; no error. |
| Best-interests determination | Petitioner: respondent’s sexual abuse of another child posed a foreseeable risk to the subject child; placement with mother reduced risk, so termination serves child’s best interests. | Respondent argued termination was not shown to be in child’s best interests given placement with mother. | Court affirmed that, on the whole record, termination was in the child’s best interests (risk of future harm and mother’s protective placement). |
Key Cases Cited
- In re Archer, 277 Mich. App. 71 (Mich. Ct. App. 2007) (forensic interview trustworthiness factors and tender-years admission)
- People v. Lane, 308 Mich. App. 38 (Mich. Ct. App. 2014) (standard of review for admissibility questions)
- In re White, 303 Mich. App. 701 (Mich. Ct. App. 2014) (review of best-interest determinations)
- In re Gonzales/Martinez, 310 Mich. App. 426 (Mich. Ct. App. 2015) (clear-error review and burden to establish statutory ground by clear and convincing evidence)
- In re Moss, 301 Mich. App. 76 (Mich. Ct. App. 2013) (requirement that at least one statutory ground be proven to terminate rights)
- In re VanDalen, 293 Mich. App. 120 (Mich. Ct. App. 2011) (termination permissible for intentional injury or failure to safeguard)
- In re AH, 245 Mich. App. 77 (Mich. Ct. App. 2001) (anticipatory neglect: treatment of one child probative of treatment of others)
- In re HRC, 286 Mich. App. 444 (Mich. Ct. App. 2009) (if one statutory ground is established, court need not reach others)