In re Mota
| Decision Date | 22 October 2020 |
| Docket Number | No. 351830,351830 |
| Citation | 334 Mich.App. 300,964 N.W.2d 881 |
| Parties | IN RE MOTA, Minors. |
| Court | Court of Appeal of Michigan — District of US |
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, R. Burke Castleberry, Jr., Prosecuting Attorney, and Jennifer L. Bruggeman, Chief Appellate Prosecuting Attorney, for the petitioner.
Michael H. Dzialowski, Kalamazoo, for the respondent.
Before: Boonstra, P.J., and Markey and Fort Hood, JJ.
Markey, J. Respondent father appeals by right the trial court's order terminating his parental rights to his three minor children pursuant to MCL 712A.19b(3)(b)(i ) (), (j) (reasonable likelihood that children will be harmed if returned to parent's home), and (k)(ix ) (parent sexually abused a sibling of the children and there is a reasonable likelihood of harm to the children if returned to parent's care). On appeal, respondent presents three arguments. First, he contends that the trial court erred by combining the adjudication trial with the initial disposition hearing, resulting in one indistinguishable court proceeding. Second, respondent argues that his attorney was ineffective for failing to object to the trial court's merging the adjudicative and dispositional phases of the case. Third, respondent maintains that the trial court erred by finding that it was in the children's best interests to terminate respondent's parental rights. We affirm.
In February 2019, the petitioner, the Department of Health and Human Services (DHHS) filed a petition to remove the minor children from respondent's care and to terminate his parental rights. Although the minor children's mother was listed as a respondent in the petition, she was subsequently dismissed from the case absent any adjudication relative to her parental rights. In the petition, the DHHS alleged that respondent had sexually abused the minor children's half-sister, LP, by taking photographs of her anal and vaginal areas while LP pretended to be asleep. The petition asserted that jurisdiction was proper under MCL 712A.2(b)(1) and (2), that grounds for termination existed under MCL 712A.19b(3)(b)(i ), (j), and (k)(ix ), and that termination of respondent's parental rights was in the children's best interests. The trial court authorized the petition and placed the children with their mother.
In June 2019, the DHHS moved under MCR 3.972(C)(2) to admit statements LP had made to her maternal grandmother, Cynthia Johnson, regarding the sexual abuse. The DHHS argued that the statements LP made to Johnson satisfied the criteria for admissibility set forth in MCR 3.972(C)(2).1 On October 24, 2019, the trial court conducted a tender-years hearing under MCR 3.972(C)(2)(a). At the hearing, Johnson testified that LP was seven years old when she made statements to Johnson concerning the acts respondent allegedly committed. When Johnson was playfully tickling LP, LP told Johnson that respondent had entered LP's bedroom the night before while LP was in bed. According to LP, respondent pulled down LP's pants and underwear and touched her buttocks. LP also told Johnson that respondent spread LP's buttocks apart, that he had a flashlight or a phone light that was turned on at the time, and that she believed that respondent took photographs of her. Johnson testified that LP indicated that she was scared and did not know what to do, so she pretended to be asleep even when respondent turned her over. LP appeared nervous to Johnson, but Johnson believed that this was because LP did not know how Johnson would react to LP's assertions. Johnson noted that respondent had helped raise LP since before she was age one and that LP referred to respondent as "dada."
Kevin Sellers, who was employed by the DHHS, testified that he conducted a forensic interview of LP regarding her allegations of sexual abuse by respondent. LP informed Sellers that she was sleeping on her back when a light woke her up. LP told Sellers that she knew that it was respondent in her room with a light and that she pretended to be sleeping. According to LP, respondent pulled LP's pants and underwear down with the light still on. LP explained to Sellers that respondent turned LP over onto her stomach and moved the light down to her buttocks area. As she had told Johnson, LP indicated to Sellers her belief that respondent was taking photographs of her. Sellers testified that LP informed him that respondent spread her buttocks apart and "toward her ... vaginal area."
At the conclusion of the testimony by Johnson and Sellers and following arguments by the parties on the DHHS's tender-years motion, the trial court granted the motion, allowing for the admission of LP's statements into evidence at trial. The court found that LP was under 10 years of age when the statements were made, that the statements were sufficiently trustworthy, that LP made the statements spontaneously, and that LP had behaved appropriately under the circumstances. Accordingly, the criteria in MCR 3.972(C)(2) were satisfied. The trial court further concluded that LP's statements were made to someone she trusted, that subsequent assertions LP made to Sellers were consistent with those made to Johnson, that there was nothing to suggest LP had a motive to lie about the incident, and that the terminology used by LP to describe the events was consistent with the language one would expect of a child her age.
After the trial court granted the DHHS's motion and a half-hour recess, the court commenced a combined adjudication trial and dispositional hearing. Rachelle VanAken, a Sexual Assault Nurse Examiner (SANE), testified that she physically examined LP around the time of the disclosure of sexual abuse. VanAken prepared a report concerning her examination, which included various statements LP made to VanAken. The DHHS sought to admit the SANE report into evidence; respondent objected on the basis that the report contained information and directions that were supposedly given to the "patient" but were actually provided to Johnson. VanAken explained that some information and directions normally given to a patient are often given to the patient's caregiver when the patient is a minor. The trial court overruled respondent's objection.
When VanAken physically examined LP, she observed some bruises on LP's shins, which LP thought had been caused by bumping into something. VanAken testified that there was white discharge between LP's labia and hymen, a tear where LP's labia come together posteriorly, and a small abrasion on the outside of LP's anus. LP reported to VanAken that her buttocks hurt "a little." VanAken opined that the injuries were "highly suggestive" of sexual abuse. VanAken explained:
Due to the fact that she was saying that he spread her apart and depending on the force that was used or the pressure that was put on you can actually tear that tissue by spreading the areas around the vaginal area if you use your hands to spread that open you can actually tear that tissue and the same thing can kind of happen with the anal area. Any force that is used to spread open the anal area can cause injuries.
According to VanAken, LP told her that respondent checked LP's buttocks with a flashlight while she pretended to sleep. VanAken believed that LP's version of events was consistent with her physical injuries. Respondent raised a hearsay objection, which was overruled by the trial court on the basis of the medical treatment or diagnosis exception to hearsay, MRE 803(4). LP also informed VanAken about a history of domestic violence in the family home, describing several events, including one in which respondent had choked the children's mother, which resulted in intervention by Johnson and her husband and a call to the police.
Johnson was once again called to testify about the statements LP made to her. Johnson's testimony was consistent with the testimony she gave during the tender-years’ hearing, with a few clarifications. On the basis of her discussion with LP, Johnson was unsure whether respondent had successfully turned LP over onto her back or if he had only attempted to do so.
In addition, LP told Johnson that respondent did not put anything inside of her and had only touched her buttocks. Johnson did not believe that the minor children were bonded with respondent because he rarely engaged in activities with the children. Whenever Johnson saw them together, the children were playing by themselves while respondent played video games.
Jill Heilmann, a children's protective services worker, testified to her belief that the minor children were likely to be harmed if returned to respondent's care. She was concerned about respondent's having access to the children considering his sexual abuse of LP. Heilmann also noted that respondent had provided very little support for the minor children. Heilmann further expressed concern regarding the alleged domestic violence, but the trial court struck this testimony when respondent objected on the ground that it constituted hearsay. In Heilmann's opinion, the minor children had a heightened need for stability and permanency due to their ages—they were all under six years old. To the best of Heilmann's knowledge, respondent had neither been arrested nor charged for the alleged sexual abuse of LP.
Heilmann testified that before proceedings were commenced, the minor children had lived with their four older siblings, their mother, and respondent in a rental unit. At some point between the initiation of this case and trial, the family was evicted from the rental home and the children and their mother had moved in with Johnson and Johnson's husband. According to Heilmann, the children were all bonded with each other.
The children's mother testified that respondent moved out of their home after LP made the allegations against respondent. She also...
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