Respondent-mother and respondent-father appeal as of right the order terminating their parental rights to the minor child, a boy born in 2007, at the initial disposition (adjudication trial in combination with termination hearing) pursuant to MCL 712A.19b(3)(b)(i) (parent sexually abused child), (b)(¿¿) (parent failed to prevent sexual abuse), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm if child returned to parent). We affirm the order terminating respondent-mother’s parental rights, reverse the order terminating respondent-father’s parental rights, and remand for further proceedings with respect to respondent-father.
Petitioner alleged that respondent-father perpetrated an act of penile-anal penetration against the child. A medical record was entered into evidence containing this accusation as made by the child to the
Respondent-mother was alleged to have performed a sexual act with a male stranger for money in front of the child in the stranger’s van after having exchanged text messages with the stranger to arrange the encounter. An FBI agent testified that respondent-mother came to his attention when he was investigating the stranger. The FBI had arrested the stranger for attempting to have sex with an unrelated minor, and the execution of a search warrant attendant to the arrest resulted in the discovery of the text messages between the stranger and respondent-mother. A second FBI agent testified that he took respondent-mother in for questioning and that respondent-mother admitted to the sexual act in the van in her son’s presence. Respondent-mother told the agent that the stranger had initially responded by phone to a used-bike advertisement that she had posted on Craigslist and that the discussion quickly became sexual, eventually leading to the text messages and the sex act in the van. Petitioner also asserted that respondent-mother subsequently was prepared to commit a sexual act on the child in the presence of that same stranger for remuneration. The second FBI agent testified that after the first encounter in the stranger’s van, the stranger and respondent-mother exchanged further text messages and spoke together on the phone. The FBI agent stated that respondent-mother informed him that one of the phone calls was on speakerphone with the child present, and the stranger had asked whether she would be willing to touch her son’s penis in the man’s presence. Respondent-mother told the FBI agent that at the end of the phone call, she asked the child if he would be willing to participate in the requested sex act, but the child declined. The FBI agent further testified that respondent-mother conceded that a follow-up phone call occurred, that the stranger offered her $300 to engage in the sex act with her son, and that the child now agreed to participate because he knew that the family needed money. The agent was unaware of whether the planned act ever transpired; respondent-mother did not tell him that it occurred. We note that there is nothing in the record indicating that the planned act took place.
The trial court found by a preponderance of the evidence that it had jurisdiction over the child under MCL 712A.2(b) given the sexual abuse by respondent-father as established by the child’s claim of anal penetration made in the child’s forensic interview captured on the DVD and given the sexual abuse by respondent-mother as established by the FBI testimony of her admitted engagement in a sex act in the presence of the child and her plan to participate in a sex act with the child himself in the presence of the aforementioned stranger. Having established jurisdiction relative to adjudication, the trial court next
On appeal, both respondents contend that the trial court erred by admitting the DVD into evidence. Evi-dentiary rulings are reviewed for an abuse of discretion; however, we review de novo preliminary questions of law affecting the admission of evidence, e.g., whether a statute or rule of evidence bars admissibility. People v Lukity,
MCL 712A.17b addresses, in part, videorecorded statements made by a witness under the age of 16 in a forensic interview undertaken by the state in connection with proceedings concerning the alleged abuse and neglect of the witness. MCL 712A.17b(5) provides that such “videorecorded statement [s] shall be admitted at all proceedings except the adjudication stage instead of the live testimony of the witness.” (Emphasis added.)
It is plain to us that MCR 3.972(C)(2)(a), which expressly applies to adjudication trials, and MCL 712A.17b, which expressly does not apply to the adjudication stage, work in tandem. MCR 3.972(C)(2)(a) forces petitioner to produce at trial any witness claiming that a child victim made statements of abuse heard by the witness if petitioner wishes to rely on such statements in its case, subject to the existence of circumstances indicating trustworthiness. This allows the accused parent the opportunity to at least cross-examine that witness. MCL 712A.17b(5) not only permits but mandates admission of a videorecorded statement (“shall be admitted”) in regard to any proceeding other than one at the adjudication stage, which would necessarily include a termination hearing, as long as the prerequisites set forth in MCL 712A.17b(5) and (6) are satisfied, e.g., the questioning must be in accordance with forensic interview protocol.
To be clear, “MCL 712A.17b(5) requires a trial court to admit videorecordings of a child’s forensic interview during a nonadjudicatory stage,” such as “a tender-years hearing” conducted before trial. In re Brown Minors,
In sum, the trial court erred by relying on the videorecorded statements contained in the DVD for purposes of adjudication. In In re Sanders,
However, with respect to respondent-mother, the child’s videorecorded statements contained in the DVD were essentially irrelevant to the allegations against her, which were established through the testimony of the FBI agents. Accordingly, in connection with either adjudication or termination, assuming for the sake of argument that the DVD was inadmissible for purposes of the termination stage of the proceedings, respondent-mother cannot establish prejudice because any presumed error was harmless, and she is therefore not entitled to reversal.
Respondent-mother next alleges multiple instances of ineffective assistance of counsel. The principles applicable to claims of ineffective assistance of counsel in the arena of criminal law also apply by analogy in child protective proceedings; therefore, it must be shown that (1) counsel’s performance was deficient, falling below an objective standard of reasonableness, and that (2) the deficient performance prejudiced the respondent. In re CR,
Respondent-mother next argues that counsel was ineffective for failing to object to hearsay statements attributed to the stranger as testified to by the FBI agents and for failing to object on hearsay and foundational grounds with respect to the agents’ testimony concerning the text messages. The record reflects that the testimony by the two FBI agents that briefly touched on statements made by the stranger and on the substance of the text messages was not offered to prove the truth of the matters asserted, but rather to explain how the FBI came to be involved in the matter and to explain the course of the investigation. See MRE 801(c) (“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). “Counsel is not ineffective for failing to make a futile objection.” In re Archer, 211 Mich App at 84. Respondent-mother’s foundational argument under MRE 901 is wholly undeveloped and thus waived. Mudge v Macomb Co,
Respondent-mother also maintains that counsel was ineffective for failing to elicit and introduce favorable evidence regarding the child’s best interests, relying in part on an affidavit by respondent-mother that is not part of the lower court record. Even accepting consideration of that affidavit, respondent-mother has failed to overcome the strong presumption that counsel’s performance constituted sound trial strategy. People v Carbin,
Finally, respondent-mother argues that counsel was ineffective for failing to insist that the child receive a trauma assessment that had been ordered by the trial court but apparently never conducted. Given the nature of respondent-mother’s conduct and the testimony by the foster-care worker regarding the child’s traumatized state, respondent-mother fails to convince us that counsel’s performance was deficient in failing to seek enforcement of the court’s decision, nor has she established the requisite prejudice. The result of a trauma assessment, under the circumstances and existing record, could potentially have been more favorable to petitioner than respondent-mother. Therefore, we are not prepared to fault counsel for shying away from pushing the trial court to enforce its decision. Counsel’s performance was not deficient, nor, once again, can we find the necessary prejudice.
Lastly, respondent-mother contends that the trial court clearly erred by finding that the statutory grounds for termination were proved by clear and convincing evidence and by finding that termination was in the child’s best interests.
In regard to MCL 712A.19b(3)(b)(ii), which addresses a failure by a parent to prevent sexual abuse, the record, while a bit unclear, appears to indicate that respondent-mother was alleged to have failed to protect the child from respondent-father’s alleged sexual abuse and that respondent-father was alleged to have failed to protect the child from respondent-mother’s sexual abuse. Assuming that the DVD of the forensic interview was admissible relative to the termination stage of the proceedings, there is inadequate evidence of respondent-mother’s failure to prevent the act of anal penetration allegedly perpetrated by respondent-father. Respondents, who were divorced, were not living together, and the alleged sexual act by respondent-father against the child supposedly occurred out of state while respondent-mother was in Michigan. The trial court clearly erred by relying on MCL 712A.19b(3)(b)(¿¿) as to respondent-mother.
The evidence of respondent-mother’s conduct with respect to her interactions with the stranger as testi-fled to by the FBI agents easily supported termination under MCL 712A.19b(3)(g) (failure to provide proper care or custody) and (j) (likelihood of harm to the child if returned to parent’s care), and the trial court did not clearly err by relying on those grounds to support termination. In sum, we hold that the trial court did not clearly err by finding that the statutory grounds for termination in MCL 712A.19b(3)(b)(i), (g), and (j) were proved by clear and convincing evidence. Because only a single statutory ground need be established in support of termination, MCL 712A.19b(3); In re Ellis,
Finally, for the reasons stated by the trial court and those set forth in our earlier discussion of the child’s best interests, there was no clear error in the trial court’s finding that termination of respondent-mother’s parental rights was in the child’s best interests. See In re Olive/Metts Minors,
We affirm the order terminating respondent-mother’s parental rights, reverse the order terminating respondent-father’s parental rights, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
SAAD and BORRELLO, JJ., concurred with MURPHY, P. J.
Notes
Respondent-mother did testify that a child protective services (CPS) worker had informed her of the alleged sexual abuse by respondent-father and that the child thereafter told respondent-mother “what happened and why he didn’t tell me .. . The CPS worker testified at the trial/hearing, but she did not discuss the nature of any statements that the child made to her, and the full extent of respondent-mother’s testimony on the subject of statements made by the child to her is reflected in the preceding sentence.
MCR 3.972(C)(2)(a) also provides that the “statement may be received by the court in lieu of or in addition to the child’s testimony.”
MCL 712A.17b(6) mandates the following:
In a videorecorded statement, the questioning of the witness should be full and complete; shall be in accordance with the forensic interview protocol implemented as required by section 8 of the child protection law,1975 PA 238 , MCL 722.628; and, if appropriate for the witness’s developmental level, shall include, but need not be limited to, all of the following areas:
(a) The time and date of the alleged offense or offenses.
(b) The location and area of the alleged offense or offenses.
(c) The relationship, if any, between the witness and the respondent.
(d) The details of the offense or offenses.
(e) The names of other persons known to the witness who may have personal knowledge of the offense or offenses.
The hearing did not pertain to any evidence other than the child’s videorecorded statements. There was no effort to seek admission under MCR 3.972(C)(2)(a) of any statements made by the child to the CPS worker, to respondent-mother, or to medical personnel who had examined the child.
When termination is sought at the initial disposition, “clear and convincing legally admissible evidence” must be presented to establish the grounds for termination. MCR 3.977(E)(3).
On appeal, counsel for the child agrees that there was error and that respondent-father is entitled to a remand for proper adjudication. Given our ruling, which effectively results in the deprivation of the trial court’s jurisdiction, it becomes unnecessary to address respondent-father’s arguments challenging the trial court’s findings in regard to the statutory grounds for termination and the child’s best interests.
Respondent-mother concedes that the forensic interview of the child benefitted her for the most part, considering that the child indicated that he was not aware of the circumstances surrounding respondent-mother’s alleged interactions with the stranger and given that the child denied knowing the man when shown his picture. Nevertheless, respondent-mother argues that she was prejudiced because some of the child’s statements during the interview regarded a male friend who was living with the child and respondent-mother, and the child indicated that the male friend used marijuana, had a gun, and beat respondent-mother. Contrary to respondent-mother’s argument on appeal, the trial court, while reciting the child’s statements concerning the male friend, never relied on that evidence when ruling on the statutory grounds or the child’s best interests.
We note that in In re T Minors,
We have found no cases, and the parties do not cite to any, in which any other jurisdiction has applied the exclusionary rule in the context of abuse and neglect proceedings. Other jurisdictions that have addressed the issue have held that the exclusionary rule should not apply in civil abuse and neglect proceedings because it may thwart the State’s interest in the protection of children.
We note that respondent-mother invoked her Fifth Amendment right against self-incrimination when asked whether she participated in the sexual conduct at issue, and her invocation was indisputably permissible. In re MU,
If a trial court finds that a single statutory ground for termination has been established by clear and convincing evidence and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is mandated to terminate a respondent’s parental rights to that child. MCL 712A.19b(3) and (5); In re Moss,