                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                      FOR PUBLICATION
In re J.R. MARTIN, Minor.                                             June 23, 2016
                                                                      9:05 a.m.

                                                                      Nos. 330231; 330232
                                                                      Wayne Circuit Court
                                                                      Family Division
                                                                      LC No. 15-520399-NA


Before: MURPHY, P.J., and SAAD and BORRELLO, JJ.

MURPHY, P.J.

        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)(ii) (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 attending doctor, but no medical personnel testified at the trial/hearing. The
evidence relied on by petitioner in support of the allegation was a DVD of a videorecorded
interview of the child by an adolescent forensic interviewer, wherein the child upon questioning
claimed that respondent-father had performed the alleged act of sexual penetration. Neither the
forensic interviewer nor the child testified at the trial/hearing.1




1
  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.


                                                 -1-
        Respondent-mother was alleged to have performed a sexual act with a male stranger for
money in front of the child in the man’s van after having exchanged text messages with the
stranger in order 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 she
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 man and respondent-mother exchanged further text messages, along with
speaking together on the phone. The FBI agent stated that respondent-mother informed him that
one of the phone calls was on speaker phone 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 he 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 above-described 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 considering 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 found that there existed clear and
convincing evidence supporting termination under MCL 712A.19b(3)(b)(i), (b)(ii), (g), and (j),
effectively relying on the same evidence of sexual abuse by respondents. Finally, the trial court
found that termination of parental rights was in the child’s best interests in light of the trauma
caused by the sexual abuse, the child’s adamant desire not to see respondents and absolute fear
of being returned to them, the child’s placement in a safe and secure environment with persons
willing to plan long-term for the child, and the child’s need for permanence essential to his
continued growth and development.

        On appeal, both respondents contend that the trial court erred in admitting the DVD into
evidence. Evidentiary 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, 460 Mich 484, 488; 596 NW2d 607 (1999).
For purposes of a trial with respect to adjudication, a statement by a child under the age of 10
concerning and describing an act of sexual abuse performed on the child by another person may
be admitted into evidence “through the testimony of a person who heard the child make the

                                               -2-
statement,” regardless of the child’s availability, but only if the court finds at a hearing before
trial “that the circumstances surrounding the giving of the statement provide adequate indicia of
trustworthiness.” MCR 3.972(C)(2)(a); see In re Brown/Kindle/Muhammad Minors, 305 Mich
App 623, 630; 853 NW2d 459 (2014); In re Archer, 277 Mich App 71, 80-81; 744 NW2d 1
(2007).2 Here, as mentioned earlier, the forensic interviewer who heard the child’s statements
regarding sexual abuse by respondent-father did not testify at the trial/hearing. Rather, the
interview of the child had been videorecorded, put on a DVD, and admitted into evidence in that
format. Accordingly, the child’s statements were not admitted in accordance with MCR
3.972(C)(2)(a).

        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.)3 Before the actual trial/hearing
in the instant case got under way, the trial court conducted a tender-years hearing and watched
the DVD, and the court concluded that the DVD was admissible under both MCR 3.972(C)(2)(a)
and MCL 712A.17b.4 The trial court later effectively relied on the child’s videorecorded


2
  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.”
3
    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.


4
  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.


                                                 -3-
statements contained in the DVD, not live testimony, in determining that it had jurisdiction over
the child relative to respondent-father. But pursuant to MCL 712A.17b(5), the trial court was not
permitted to substantively consider the DVD for purposes of adjudication and, as noted above,
MCR 3.972(C)(2)(a) could not have been relied on in relation to adjudication, given that the
forensic interviewer did not testify about the child’s statements, even assuming that there were
adequate indicia of trustworthiness.

        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.5 In a
situation such as the case at bar, the proper procedure would entail having the forensic
interviewer testify in regard to the adjudication stage, assuming compliance with MCR
3.972(C)(2)(a), followed by substantive consideration of the forensic interview displayed on the
DVD with respect to the termination stage, assuming compliance with MCL 712A.17b.

        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, 305 Mich App at 632. And a trial court does not
commit error in admitting a DVD under MCL 712A.17b(5) at a pretrial tender-years hearing for
the purpose of determining “whether the circumstances surrounding the giving of . . . children’s
statements provided adequate indicia of trustworthiness to warrant their admission at trial
through the testimony of [the DVD forensic interviewer] under MCR 3.972(C)(2)(a).” In re
Archer, 277 Mich App at 83 (emphasis added). Stated otherwise, a videorecorded statement
taken in compliance with MCL 712A.17b must be admitted at a tender-years hearing and can be
used by the trial court to assess whether a proposed witness who took the videorecorded
statement should be permitted to testify at trial about the statement, i.e., to assess whether “the
circumstances surrounding the giving of the statement provide[d] adequate indicia of
trustworthiness,” MCR 3.972(C)(2)(a). The problem in the instant case is that the forensic
interviewer did not testify at trial with respect to the child’s statements made in the interview.
The trial court did not employ the DVD to determine whether the forensic interviewer should be
allowed to testify under MCR 3.972(C)(2)(a). Rather, the trial court substantively used the
DVD, in and of itself, to adjudicate respondent-father.




5
 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).


                                                -4-
        In sum, the trial court erred by relying on the videorecorded statements contained in the
DVD for purposes of adjudication. In In re Sanders, 495 Mich 394, 400-401; 852 NW2d 524
(2014), our Supreme Court declared that the one-parent doctrine, which permitted “a court to
interfere with a parent’s right to direct the care, custody, and control of the children solely
because the other parent is unfit,” was “unconstitutional under the Due Process Clause of the
Fourteenth Amendment.” The Supreme Court held “that due process requires a specific
adjudication of a parent’s unfitness before the state can infringe the constitutionally protected
parent-child relationship.” Id. at 422. Because adjudication in relation to respondent-father was
determined solely on the basis of the DVD, we must reverse the order of adjudication and the
order terminating his parental rights, which flowed from the adjudication order. We remand for
new adjudication proceedings in compliance with MCR 3.972(C)(2)(a) and other applicable law
in regard to the pending authorized termination petition concerning respondent-father.6

        However, with respect to respondent-mother, the child’s videorecorded statements
contained in the DVD were essentially irrelevant in regard 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 as any presumed error was harmless, and she is thus not entitled to reversal.7
MCR 2.613(A); In re Williams, 286 Mich App 253, 273; 779 NW2d 286 (2009) (applying
harmless-error analysis in termination case).

        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, 250 Mich App 185, 197-
198; 646 NW2d 506 (2002), overruled on other grounds in In re Sanders, 495 Mich 394.


6
  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.
7
  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, with the child indicating 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 child’s best
interests.


                                               -5-
Respondent-mother first contends that counsel should have moved to suppress her statements
made to the FBI because the statements were involuntary and coerced, violating her Fifth
Amendment rights. Assuming a constitutional violation, which is not in fact supported by the
existing record, respondent-mother fails to direct us to any authority providing that the
exclusionary rule is applicable in the context of abuse and neglect proceedings; therefore, she has
failed to establish the requisite prejudice.8

        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 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, 277 Mich App at 84. Respondent-mother’s
foundational argument under MRE 901 is wholly undeveloped and thus waived. Mudge v
Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998). Moreover, the text messages were not
admitted into evidence, and a sufficient foundation was presented so as to allow the testimony of
the FBI agents regarding the text messages. Additionally, respondent-mother has not established
any prejudice, assuming deficient performance by counsel, given her admissions to the FBI
agents.9

        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


8
 We note that in In re T Minors, 143 NM 75, 78; 172 P3d 1287 (NM App, 2007), the Court of
Appeals of New Mexico, in rejecting application of the exclusionary rule in child protective
proceedings, observed:
               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.
9
  We note that respondent-mother invoked her Fifth Amendment right against self-incrimination
when asked whether she participated in the sexual conduct at issue, which invocation was
indisputably permissible. In re MU, 264 Mich App 270, 283 n 5; 690 NW2d 495 (2004). That
said, invoking the Fifth Amendment in an abuse and neglect proceeding, as opposed to a
criminal proceeding, gives rise to “an adverse inference against the respondent in th[e]
proceeding[.]” Id.


                                                -6-
performance constituted sound trial strategy. People v Carbin, 463 Mich 590, 600; 623 NW2d
884 (2001). Regardless, any deficiency by counsel in introducing testimony or evidence relative
to the child’s best interests was harmless. Respondent-mother was prepared to partake in a sex
act with her child for money in front of the stranger, after already having had sex with the
stranger in front of the child. Respondent-mother was ready and willing to engage in the sex act
with her child, because the eight-year-old boy “agreed” to the sex act on the basis that the family
needed money. This perversion and abdication of respondent-mother’s parental role as the
child’s caregiver dictated that it was in the child’s best interests to terminate respondent-mother’s
parental rights. Absent the FBI’s investigation of the stranger that led the agency to respondent-
mother, the potential of additional harm to the child is incalculable. A foster care worker
testified that the child did not want to be returned to his parents, that he had been traumatized by
the ongoing court proceedings and the possibility of being returned to their care, and that the
child had been undergoing intense therapy to address his emotional turmoil. Further, the foster
care worker testified that the child’s needs were being met in a very safe and suitable
environment as part of a potential pre-adoptive placement. In the face of these circumstances,
reversal is unwarranted on the claim that counsel should have submitted more best-interest
evidence.

        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. Thus, 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 in finding that the
statutory grounds for termination were proven by clear and convincing evidence and in finding
that termination was in the child’s best interests.10 With respect to MCL 712A.19b(3)(b)(i),



10
   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, 301 Mich
App 76, 90; 836 NW2d 182 (2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).
“This Court reviews for clear error the trial court's ruling that a statutory ground for termination
has been established and its ruling that termination is in the children's best interests.” In re
Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011); see also MCR 3.977(K). “A finding is
clearly erroneous if, although there is evidence to support it, we are left with a definite and firm
conviction that a mistake has been made.” In re HRC, 286 Mich App 444, 459; 781 NW2d 105
(2009). In applying the clear error standard in parental termination cases, “regard is to be given

                                                 -7-
which requires a showing that a child “has suffered . . . sexual abuse,” respondent-mother argues
that there was no evidence that she sexually abused the child, other than her “coerced and
involuntary statements” made to the FBI. She thus effectively concedes that her confession
made to the interviewing FBI agent constituted evidence of sexual abuse, and no error has been
established regarding the admission of the testimony by the FBI agent concerning the confession.
        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 in relying on MCL 712A.19b(3)(b)(ii) as to respondent-mother.

          The evidence of respondent-mother’s conduct with respect to her interactions with the
stranger as testified 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 there was no clear error by the trial court in relying on
those grounds to support termination. In sum, we hold that the trial court did not clearly err in
finding that the statutory grounds for termination in MCL 712A.19b(3)(b)(i), (g), and (j) were
proven 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, 294 Mich App 30, 32; 817
NW2d 111 (2011), the error in regard to MCL 712A.19b(3)(b)(ii) is irrelevant.

         Finally, for the reasons stated by the trial court and those set forth by us in our earlier
discussion of the child’s best interests, there was no clear error in the court’s finding that
termination of respondent-mother’s parental rights was in the child’s best interests. See In re
Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012).

        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.



                                                             /s/ William B. Murphy
                                                             /s/ Henry William Saad
                                                             /s/ Stephen L. Borrello


to the special opportunity of the trial court to judge the credibility of the witnesses who appeared
before it.” In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).




                                                -8-
