IN RE LEWIS MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In
the
Matter
of
ANTHONY
LEWIS,
CHRISTOPHER LEWIS, JEFFREY LEWIS AND
SPENCER LEWIS, Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
June 29, 1999
Petitioner-Appellee,
v
No. 212787
Allegan Circuit Court
Family Division
LC No. 95-005318 NA
MURLINE WILLIAMS,
Respondent-Appellant,
and
JETHRO LEWIS AND JOHN LEWIS,
Respondents.
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v
No. 212900
Allegan Circuit Court
Family Division
LC No. 95-005318 NA
JETHRO LEWIS,
Respondent-Appellant,
and
MURLINE WILLIAMS and JOHN LEWIS,
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Respondents.
Before: Cavanagh, P.J., and Hoekstra and Gage, JJ.
PER CURIAM.
Respondent Murline Williams appeals as of right from the family court order terminating her
parental rights to her minor children Anthony, Christopher, Jeffrey, and Spencer pursuant to MCL
712A.19b(3)(b)(ii) [failure to protect children from physical or sexual abuse], (c)(i) [conditions that led
to adjudication continue to exist and are not likely to be rectified within a reasonable time], (c)(ii) [other
conditions exist that cause the children to come within the jurisdiction of the court and are not likely to
be rectified within a reasonable time], and (g) [parent, without regard to intent, fails to provide proper
care or custody for the children]; MSA 27.3178(598.19b)(3)(b)(ii), (c)(i), (c)(ii), and (g). Respondent
Jethro Lewis appeals as of right from the family court order terminating his parental rights to
Christopher, Jeffrey, and Spencer pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), and (g); MSA
27.3178(598.19b)(3), (c)(i), (c)(ii), and (g). We affirm.
Both respondents argue that the family court erred in admitting evidence of various out-of-court
statements made by the children regarding acts of physical and sexual abuse committed against them by
respondents. The decision to admit evidence at a termination hearing is reviewed for an abuse of
discretion. In re Hill, 221 Mich App 683, 696; 562 NW2d 254 (1997).
We conclude that the family court did not abuse its discretion in admitting the children’s
statements. The nature and circumstances surrounding the statements provided adequate indicia of
trustworthiness and there was sufficient corroborative evidence to justify admission of the statements
pursuant to MCR 5.972(C)(2). Specifically, the sexual abuse statements were corroborated by the
children’s sexual knowledge and behavior, their fear of respondent Lewis, their aggressive behavior,
and their consistent responses to play therapy games. The children’s fear and aggressiveness, and
Anthony’s scars, are also corroborative of the statements of physical and emotional abuse. Although
not all the statements were made spontaneously, they were repeated consistently and there was no
apparent motive for the children to fabricate. See In re Brimer, 191 Mich App 401, 405-406; 478
NW2d 689 (1991).
Respondents also contend that the family court erred in admitting the preliminary hearing
testimony of a deceased witness, Albert Thorne, at the termination hearing. We agree that the trial court
abused its discretion in admitting the testimony. See Hill, supra. The record indicates that respondents
were not present at the preliminary hearing because they had not been given proper notice.
Respondents, who were not represented by counsel at that point, were therefore deprived of the
opportunity to cross-examine Thorne, and no other party had a similar motive to explore the witness’
motivation and potential bias. Thus, admission of the testimony was improper under MRE 804(b)(1).
We are likewise not convinced that Thorne’s testimony was admissible under MRE 803(24) or MRE
804(b)(6). Nonetheless, given the overwhelming weight of the properly admitted evidence, we
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conclude that the error in admitting Thorne’s preliminary hearing testimony was harmless. See In re
Snyder, 223 Mich App 85, 92-93; 566 NW2d 18 (1997).
Finally, respondents assert that the family court erred in terminating their parental rights. We
disagree. The family court did not clearly err in finding that §§ 19b(3)(b)(ii), (c)(ii), and (g) were
established by clear and convincing evidence. See MCR 5.974(I); In re Miller, 433 Mich 331, 337;
445 NW2d 161 (1989). Furthermore, respondents failed to satisfy their burden of providing some
evidence that termination of their parental rights was clearly not in the children’s best interest. See MCL
712A.19b(5); MSA 27.3178(598.19b)(5); In re Hall-Smith, 222 Mich App 470, 472-473; 564
NW2d 156 (1997).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
/s/ Hilda R. Gage
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