                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
In re HEWITT/YOESTING, Minors.                                      November 14, 2017

                                                                    No. 338329
                                                                    Tuscola Circuit Court
                                                                    Family Division
                                                                    LC No. 15-010972-NA


Before: BECKERING, P.J., and O’BRIEN and CAMERON, JJ.

PER CURIAM.

         Respondent-mother appeals as of right the trial court’s order terminating her parental
rights to her two minor daughters, BH and LY. The trial court terminated respondent’s parental
rights under MCL 712A.19b(3)(b)(ii) (failure to prevent physical injury, or physical or sexual
abuse), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm to
child if child is returned to parent’s care). We affirm.

        In December 2015, a petition was filed alleging that respondent and her husband had
engaged in domestic violence in the presence of the children.1 An order of adjudication was then
entered in February 2016, after respondent entered pleas of admission and no contest to
allegations in the petition. The children remained with respondent, and services were put in
place for the goal of reunification. On August 2, 2016, a supplemental petition was filed
requesting termination of respondent’s parental rights.2 The petition alleged that on July 30,
2016, LY left respondent’s home with David Brigham, a family friend, in the middle of the
night, and that Brigham physically and sexually assaulted LY for several hours. The petition
further alleged that respondent and her husband had engaged in sexual activity with Brigham and
knew him to be “sexually violent.”




1
  The petition additionally reported an earlier child protection proceeding in connection with
respondent’s first husband sexually abusing her daughter, which led to respondent voluntarily
terminating her rights to her four other children.
2
  A request for removal of the children from respondent’s care was also filed on that date, and
the trial court granted that request and ordered that the children be placed in the care of DHHS.


                                                -1-
         At the termination hearing held in March 2017, respondent admitted that the original
petition was filed as a consequence of domestic violence between herself and her husband, and
that she had entered a plea of responsibility in the matter. Respondent further testified that,
despite having some doubts at the time, she did not dispute that her first husband had sexually
assaulted their daughter in 2005, and admitted that this daughter had told respondent that she had
also been sexually assaulted by two others. Respondent admitted that if the latter allegation was
true, it meant that she had been sexually involved with three men who had sexually assaulted her
children.

       Respondent conceded that Brigham had sexually assaulted her daughter, and agreed that
she should not have “allowed a situation to develop where . . . [the girl] would leave with
[Brigham] because she knows him and trusts him.” Respondent admitted that she learned
Brigham may have molested his own daughters about one or two years before he abducted LY.
Respondent stated that she did not warn her daughters that Brigham might be dangerous because
she thought they would not be around him enough for such an issue to arise.

         A pediatric emergency nurse who treated LY in connection with the injuries she suffered
at the hands of Brigham testified that the case stuck out to her because of the “brutality” of it.
The nurse testified that LY had a black eye and was severely bruised “basically everywhere,”
including on her neck and breasts. The nurse also testified that respondent was present at the
hospital, but the nurse mostly remembered respondent “being on her cell phone,” adding, “I had
to literally at one point tell them it’s okay to comfort her.” The nurse opined that respondent’s
behavior in that situation did not seem protective or otherwise parental. The nurse testified that
respondent “was very adamant about leaving” and became upset when informed that LY would
be admitted to the hospital. The nurse further testified that she observed no efforts on
respondent’s part to comfort the child, other than telling the child that she had also been raped in
her youth.

       The children’s lawyer-guardian ad litem opined as follows:

               She did not protect her children the first round with her first husband. She
       did not protect these two children in this particular situation. She talks big, she
       delivers nothing. She wants five minutes alone with Brigham, she’ll kick her
       husband out, she’ll turn right back around to this courthouse.

                                               * * *

               And . . . she has had services upon services upon services. . . .

                                               * * *

               [Respondent] I am certain has learned a very painful lesson that she has
       failed to protect children way too many times. I am not confident that she has the
       instinct that it takes to protect children. . . . I do not think that that can be taught
       to her. I don’t think that even when she’s in a good mood to learn that she has
       been receptive of it and has not demonstrated that she has learned anything. I
       regret that my position is that her rights should be terminated.


                                                 -2-
       At the conclusion of the five-day termination trial, the trial court made its decision to
terminate respondent’s parental rights. The trial court stated that “while the court would like to
believe that [respondent] has learned her lesson and that no child of hers will suffer injury or
abuse in the future, her past actions indicate otherwise.” The court found it “totally alarming that
[respondent] did not see this coming. Instead though, she allowed her children . . . to become
associated with and continue associating with a believed and known perpetrator.” The court
concluded, “[Respondent] failed once. She failed twice. And . . . she will fail again. . . . The
proofs are clear and convincing to this court that [MCL 712A.19b(3)(b)(ii)] has been met.”

        The trial court applied similar reasoning in concluding that factors MCL 712A.19b(3)(g)
and (j) were also met, and that termination was in the children’s best interests, while also noting
respondent’s failure to benefit from reunification services, the children’s special needs, and
respondent’s failure to show proper parental alarm and compassion in response to the severe
abuse of her daughter. The court also cited authority for its application of the doctrine of
anticipatory neglect, which recognizes that how a parent treats one child is probative of how that
parent would treat other children. See In re LaFrance, 306 Mich App 713, 730; 858 NW2d 143
(2014). An order terminating respondent’s parental rights was thus entered on May 2, 2017.

        On appeal, respondent first argues generally that the trial court erred in terminating her
parental rights. We disagree. An appellate court “review[s] for clear error both the court’s
decision that a ground for termination has been proven by clear and convincing evidence and . . .
the court’s decision regarding the child’s best interest.” In re Trejo, 462 Mich 341, 356-357; 612
NW2d 407 (2000). “Clear error exists when some evidence supports a finding, but a review of
the entire record leaves the reviewing court with the definite and firm conviction that the lower
court made a mistake.” In re Dearmon, 303 Mich App 684, 700; 847 NW2d 514 (2014). This
Court must defer to the trial court’s special opportunity to observe the witnesses. Id.

       “If 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 and order that additional efforts for reunification of the child with the parent not
be made.” MCL 712A.19b(5).

      Here, the trial court terminated respondent’s parental rights under MCL
712A.19b(3)(b)(ii), (g), and (j), which permit termination under the following circumstances:

              (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.

                                              * * *



                                                -3-
               (g) The parent, without regard to intent, fails to provide proper care or
       custody for the child and there is no reasonable expectation that the parent will be
       able to provide proper care and custody within a reasonable time considering the
       child’s age.

                                              * * *

               (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.

        The trial court offered detailed findings and conclusions in connection with each of these
statutory grounds, and also with respect to the children’s best interests. In arguing this issue,
however, respondent neither differentiates between those three statutory criteria nor distinguishes
the statutory criteria from the best-interest inquiry. Nor does respondent specifically attack any
of the trial court’s findings, or discuss any specific evidence of record. Instead, respondent
merely summarizes the reasons for opposing termination that respondent’s attorney put forward
in closing argument, then states very generally that “considering all of the testimony including
that from [respondent], the court erred in terminating her parental rights.”

       Respondent thus does not dispute the trial court’s evidentiary bases for any of its
conclusions, but instead urges this Court to reinterpret the evidence in accord with the views of
respondent’s attorney below. However, in light of our duty to defer to the trial court’s special
opportunity to observe the witnesses, In re Dearmon, 303 Mich App at 700, such argument does
not provide us with a valid basis for reversing the trial court’s conclusions.3 See DeGeorge v
Warheit, 276 Mich App 587, 594-595; 741 NW2d 384 (2007) (“It is not enough for an appellant
to simply announce a position or assert an error in his or her brief and then leave it up to this
Court to discover and rationalize the basis for the claims, or unravel and elaborate the appellant’s
arguments, and then search for authority either to sustain or reject the appellant’s position.”);
Houghton v Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003) (“An appellant’s failure
to properly address the merits of his assertion of error constitutes abandonment of the issue.”).

       For these reasons, respondent has failed to show any clear error in the trial court’s
findings or conclusions.



3
  In any event, we find that the trial court did not err in finding clear and convincing evidence to
terminate respondent’s parental rights under MCL 712A.19b(3)(b)(ii), (g), and (j). As stated
above, respondent allowed BH and LY to continue associating with Brigham, a known sexual
perpetrator. The continued association eventually led to Brigham physically and sexually
assaulting LY. Respondent failed to provide proper care or guidance to protect her children from
having contact with Brigham. The trial court also did not err in its best-interest determination.
The trial court found that respondent’s mental health problems, failure to benefit from services
offered, lack of any bond with her children, and repeated issues involving domestic and sexual
abuse impaired her ability to care for her children.


                                                -4-
        Next, respondent argues that the trial court erred in allowing the emergency room nurse
to offer her personal opinion on the propriety of respondent’s behavior during her visit with LY,
and in sustaining an objection to testimony concerning how many children shared the subject
children’s foster-care placement. We disagree. We review the trial court’s evidentiary rulings
for an abuse of discretion. Price v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d 337
(1993).

         The following exchange took place while petitioner was questioning the emergency room
nurse:

                 Q. You’ve indicated that there might not be one . . . specific type of
         reaction that a parent might have when seeing their child suffer injuries such as
         [this child] suffered, . . . is that correct?

                A. True, yes.

                Q. Might there be . . . say a range of . . . appropriate reactions that might
         be expected?

                A. Yes.

                 Q. If there is such a range, do you think that the reactions of [respondent]
         fell within it?

                A. No.

                Q. Why?

                A. That’s my personal opinion. Because I didn’t—there was nothing—

                        [RESPONDENT’S COUNSEL]: I would object. Her personal
         opinion doesn’t necessarily come into play when I—I guess let me ask if you can
         repeat the question one more time so I make sure I’m stating it correctly.

                        [PETITIONER’S COUNSEL]: The . . . question was if there was
         such a range, do you think [respondent’s] behavior fell within it?

                         THE COURT: And she said no.

                         [PETITIONER’S COUNSEL]: And then I asked her to say why.

                       [RESPONDENT’S COUNSEL]:               I would think that her
         professional opinion should what—should come into play here. That’s what
         everyone’s professional opinion when we have professional witnesses testifying.
         Personal opinions don’t have any place in testifying in relation to your employ-
         ment and your treatment of a child.

                                                 -5-
                      [PETITIONER’S COUNSEL]: . . . I’d start by saying I think it’s a
       perfectly appropriate lay opinion. And I think that [opposing counsel] has tried to
       establish whether she believed in her personal opinion that this was an appropriate
       reaction.

                     THE COURT: Correct. The objection’s overruled. You may
       answer the question, if you can remember it, ma’am.

                      THE WITNESS: No, . . . I don’t think she fell within that because I
       didn’t see any kind of reaction. That’s why this child is stuck in my mind and it’ll
       probably always be in my mind.

Respondent argues that this expression of opinion was irrelevant and otherwise not in accord
with the rules of evidence.

        “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” MRE 401. Under this broad definition of “relevant
evidence,” this opinion from the perspective of a pediatric emergency nurse was certainly
relevant to the issue of respondent’s parental fitness.

        Respondent protests generally that “[t]here was no basis in fact or law to allow such an
opinion over objection,” and specifically that the witness “was never qualified as an expert,” but
does not otherwise suggest or set forth any argument that the opinion at issue should have
triggered the court’s scrutiny applicable to expert witnesses under MRE 702.4 Further, in
dispositional termination hearings, “[t]he Michigan Rules of Evidence do not apply, other than
those with respect to privileges . . . ,” and so “all relevant and material evidence . . . may be
received by the court and may be relied upon to the extent of its probative value.” MRE
3.977(H)(2).

         Moreover, the actual objection below was only that the nurse was testifying as a
professional, in which capacity she can only offer a professional opinion, not a personal one.
Petitioner made clear that the opinion sought was indeed a “lay opinion.” Even though the nurse
was never qualified as an expert, MRE 701 permits a witness who is not testifying as an expert to
testify in the form of an opinion if the opinion is “(a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of his [or her] testimony or the determination of
a fact in issue.” The nurse’s opinion that respondent did not react appropriately to LY’s
circumstances was rationally based on the nurse’s perception of respondent’s reactions to seeing
LY in the hospital emergency room after her recent severe abuse, and that opinion was helpful to


4
  MRE 702 authorizes a trial court to admit evidence from a witness “qualified as an expert by
knowledge, skill, experience, training, or education” where the court “determines that recognized
scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue . . . .”


                                                -6-
a clear understanding of respondent’s capacity to recognize and understand her child’s need for
empathy and comforting, and also respondent’s capacity to offer and provide appropriate care
and comfort for a child who has been severely abused.5

        Because the nurse’s opinion concerning the propriety of respondent’s behavior in the
emergency room was relevant, the rules of evidence at such hearings are relaxed to permit such
testimony, and the testimony qualified as lay opinion testimony admissible under MRE 701, the
trial court did not abuse its discretion in admitting the nurse’s testimony.

       The issue concerning the number of children in the foster-care placement arose during the
cross-examination of a foster care case manager. Respondent questioned the case manager
regarding the number of children residing at the foster home that BH and LY were placed in.
The case manager answered that seven children currently lived there, and the prosecutor objected
to the answer on the grounds of relevancy. The trial court sustained the objection ruling the
testimony irrelevant.

        Respondent argues that the objected-to testimony “was relevant and should have been
admitted” because the trial court can consider how the foster home compares with the parent’s
home when making its best-interest determination. However, respondent neither acknowledges
that the transcript actually captured the answer “seven,” nor explains why that or any other
answer would have improved her position at trial. In any event, the trial court made plain that it
was not concerned about the number of children sharing the subject children’s foster-care
placement, especially in light of respondent’s own admission that a foster home does not become
inappropriate simply for having multiple children. Refusing to allow further questioning along
those lines was simply an exercise in tailoring the testimony to matters at issue. Indeed,
respondent elicited other relevant testimony regarding the conditions of the foster home that the
trial court was able to consider when making its best-interest determination.

       For these reasons, we find no merit in respondent’s evidentiary issues.

       Affirmed.

                                                            /s/ Jane M. Beckering
                                                            /s/ Colleen A. O'Brien
                                                            /s/ Thomas C. Cameron




5
  We note that the trial court’s several expressions of concern while delivering its findings
regarding respondent’s inappropriate reactions to her daughter’s recent severe abuse indicate that
the court was expressing its own concern in that regard, not merely adopting the nurse’s.


                                               -7-
