IN RE ANNA & JO THOMAS & JENNIFER & CHRYSTAL KOHNS MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of A.T., J.T., C.K., and J.K., Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
December 12, 2000
Petitioner-Appellee,
v
No. 225457
Oscoda Circuit Court
Juvenile Division
LC No. 99-000061-NA
DIANNA KOHNS,
Respondent-Appellant,
and
DAVID KOHNS,
Respondent.
Before: O’Connell, P.J., and Zahra and B.B. MacKenzie,* JJ.
MEMORANDUM.
Respondent-appellant (hereinafter respondent) appeals as of right from an order
terminating her rights to her four minor children pursuant to MCL 712A.19b(3)(b)(ii); MSA
27.3178(598.19b)(3)(b)(ii). We affirm.
Respondent first argues that the trial court erred in considering the testimony of one of
her daughters during the initial dispositional hearing. Respondent cites language contained in
MCR 5.974(D)(3) providing that the court’s finding must be on the basis of “clear and
convincing legally admissible evidence introduced at the trial, or at plea proceedings, on the issue
of assumption of court jurisdiction . . . .” Respondent asserts that when the court allowed the
child to testify at the disposition and termination hearing, it impermissibly considered evidence
beyond that which was introduced at the trial and plea proceedings on the issue of the court’s
jurisdiction. Respondent further argues that without the disputed evidence, the court would not
have been able to terminate her parental rights at the initial dispositional hearing.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
-1-
We reject respondent’s argument. MCR 5.974(D)(3) allows a court to terminate a
parent’s rights at the initial dispositional hearing if it finds “on the basis of clear and convincing
legally admissible evidence introduced at the trial, or at plea proceedings, on the issue of
assumption of court jurisdiction, that one or more facts alleged in the petition: (a) are true, (b)
justify terminating parental rights at the initial dispositional hearing, and (c) fall under MCL
712A.19b(3); MSA 27.3178(598.19b)(3),” unless termination is clearly not in the child’s best
interest. Nothing in the rule prevents a court from considering additional testimony. To require
a court to make its decision on the basis of less, rather than more, evidence would be illogical.1
Respondent next argues that the record lacked clear and convincing evidence to justify
the court’s decision to terminate respondent’s parental rights. We disagree. This Court reviews
for clear error a trial court’s decision to terminate parental rights. In re Trejo, 462 Mich 341,
356; 612 NW2d 407 (2000); MCR 5.974(i). We have carefully reviewed the lower court record
and conclude that the evidence was sufficient to establish that respondent took the role of passive
observer to her daughter’s plight, and that she had an established pattern of failing to protect her
children. Further, respondent’s failure to protect her children in the past made more likely that
she would fail to protect her children from other forms of harm in the future. Therefore, the trial
court’s finding that petitioner established a statutory ground to terminate respondent’s parental
rights, and that the termination was in the children’s best interest, was not clearly erroneous.
Affirmed.
/s/ Peter D. O’Connell
/s/ Brian K. Zahra
/s/ Barbara B. MacKenzie
1
In any event, the disputed evidence was not determinative of the outcome of this case. The
child’s testimony for the most part echoed the testimony that Timothy Jensen gave at the
preliminary hearing. It was only more damaging with respect to respondent insofar as the child
testified that she informed her mother of her stepfather’s actions sixteen or seventeen times,
whereas Jensen testified that the child told him that she had informed her mother only three
times.
-2-
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