IN RE TASCHEREAU MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of AUSTIN TASCHEREAU and
EDWARD TASCHEREAU, Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
August 12, 2004
Petitioner-Appellee,
v
No. 252707
Roscommon Circuit Court
Family Division
LC No. 02-723653
EDWARD TASCHEREAU,
Respondent-Appellant.
Before: Hoekstra, P.J., and Cooper and Kelly, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court order terminating his parental rights to
the minor children under MCL 712A.19b(3)(a)(ii) and (g). We affirm.
This matter began when respondent and the mother of the minor children left them with
relatives for an intended stay of several days and then could not be located for the return of the
children. The Family Independence Agency filed a petition for temporary custody of the
children, and Edward was placed in foster care while Austin was placed with his maternal aunt.
After respondent remained out of contact with his children and the agency for a period of time,
the agency filed a supplemental petition seeking permanent custody of the children. Following
an adjudication trial, the court took jurisdiction over the minor children. The court then
terminated respondent’s parental rights at the initial dispositional hearing.
On appeal, respondent asserts that the termination of his parental rights must be reversed
because the trial court erroneously considered various reports that constituted inadmissible
hearsay at the dispositional hearing. Generally, we review a lower court’s decision to admit
evidence for an abuse of discretion and underlying issues of law de novo. People v Lukity, 460
Mich 484, 488; 596 NW2d 607 (1999). This issue is not preserved for appeal because
respondent’s trial counsel failed to object to the admission of some of these reports and objected
to others on grounds different from those now asserted on appeal. MRE 103(a)(1). Therefore,
our review is limited to plain error affecting respondent’s substantial rights. People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999). It appears that respondent’s trial counsel,
indeed all counsel below and the trial court as well, was under the incorrect impression that
because this was an initial dispositional hearing, the rules of evidence did not apply. MCR
-1-
3.973(E)(1), (2). However, as respondent correctly notes on appeal, when parental rights are
terminated at an initial dispositional hearing, the court may only rely upon legally admissible
evidence to establish the statutory grounds for termination. MCR 3.977(E)(3).
Respondent’s assertion of error in the admission of the reports of the Family
Independence Agency and the Foster Care Review Board lacks merit because these documents
are records of regularly conducted activity, admissible pursuant to MRE 803(6). While the other
documents were arguably inadmissible, we conclude that any error in their admission was
harmless. MRE 103(a). The psychological reports were essentially cumulative of the testimony
of their authors, both of whom testified below. Further, the trial court, while noting the
admission of these exhibits in its written opinion, did not rely on them in its extensive findings of
fact and conclusions of law concerning the statutory grounds for termination. Finally, these
items, even though otherwise inadmissible hearsay, were properly admitted to aid in the trial
court’s determination concerning the best interests of the children. MCR 3.977(E)(3)(b), (G)(2).
Respondent also contends that he received ineffective assistance of counsel at the
termination hearing because his attorney failed to object, or to object on appropriate grounds, to
inadmissible evidence. The principles of effective assistance of counsel developed in the
criminal context apply by analogy in child protective proceedings. In re CR, 250 Mich App 185,
197-198; 646 NW2d 506 (2001). To prevail on a claim of ineffective assistance of counsel,
respondent must show that his trial counsel’s performance was deficient, that is, it “fell below an
objective standard of reasonableness” and that respondent was so prejudiced that he was denied a
fair trial. Id. at 198, quoting People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). In
order to show prejudice, respondent must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result would have been different.” Id., quoting People v
Johnson, 451 Mich 115, 124; 545 NW2d 637 (1996).
The performance of respondent’s counsel did not fall below an objective standard of
reasonableness when he failed to object to evidence that was admissible under MRE 803(6), such
as the reports of the Family Independence Agency and the Foster Care Review Board. Counsel’s
failure to object to other inadmissible hearsay, notably various psychological reports, arguably
fell below an objective standard of reasonableness. However, there is no evidence whatsoever
that the erroneous admission of these items so prejudiced respondent as to deprive him of a fair
trial. In re CR, supra at 198. On the same grounds that we have already concluded that any
error in the admission of the reports was harmless, we also find no likelihood that the result
would have been different but for counsel’s errors. Id.
Finally, respondent challenges the sufficiency of the evidence for the termination of his
parental rights. The trial court did not err by finding that the statutory grounds for termination
were established by clear and convincing evidence. MCR 3.977(J); In re Miller, 433 Mich 331,
337; 445 NW2d 161 (1989). Respondent had no contact whatsoever with Austin after leaving
him with relatives in November 2002. He failed to appear for two scheduled visits with Edward,
and despite arrangements for the children to telephone respondent in lieu of visits, respondent
was available at the appointed time infrequently, if at all, in the ninety-one days preceding the
filing of the termination petition. Respondent has never initiated contact with either child and
failed to support them or undertake any actions to regain custody of them. Under these
circumstances, the trial court did not clearly err by finding termination warranted under MCL
712A.19b(3)(a)(ii). In re Trejo, 462 Mich 341, 364-365; 612 NW2d 407 (2000).
-2-
Termination was also appropriate on the grounds that respondent failed to provide proper
care and custody for the minor children and would be unable to do so within a reasonable time
considering their ages. MCL 712A.19b(3)(g). Respondent clearly failed to provide proper care
and custody for the minor children when he left them in the care of relatives for an intended visit
of several days and then could not be located for the return of the children. Moreover,
respondent continued to lack stable and suitable housing at the time of the termination trial. He
had been living for approximately one-and-a-half months with a girlfriend and her three children
in a two-bedroom apartment of which she was the sole lessee. Respondent admitted he did not
know how he would care for his children if his girlfriend were to remove him from her life. The
trial testimony of respondent and his father-in-law indicated that respondent had a significant
history of substance abuse. Respondent lost possession of a trailer that his father-in-law
provided for him and his family due to failure to make modest monthly payments, during a
period when respondent was employed and making $400 to $700 per week. This history,
together with respondent’s complete failure to come forward and take any action toward
reunification in this matter, presents a bleak outlook for his future ability to care for the children.
That conclusion is supported by psychological evidence. Respondent was diagnosed as suffering
from parent-child problems, partner relational problems, mild depression and personality
disorder with mixed features. In order to parent the children, respondent would need to make a
substantial change from his current lifestyle, which was described as being driven to avoid upset
and randomly move away from discomfort. The prognosis for respondent’s being able to parent
the children was poor. The psychological testimony indicated that the internal shift that would
be necessary had not been made, and indeed might never be made. On a record reflecting a
lengthy history of failing to attend to the basic needs of the children and a poor prognosis for
change, the trial court did not clearly err by concluding that there was no reasonable likelihood
that respondent would be able to provide proper care and custody for the children in the
reasonable future. Id.
There was little evidence of any bond between Austin and his father, and conflicting
evidence concerning respondent’s bond with Edward.1 Unfortunately, respondent remains
unable to provide the children with stability. In these circumstances, the trial court’s finding
regarding the children’s best interests was not clearly erroneous. MCL 712A.19b(5); Trejo,
supra at 364-365.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Jessica R. Cooper
/s/ Kirsten Frank Kelly
1
Psychological evidence indicated that Edward did not show a strong attachment to his parents,
while a social worker testified that there was a strong bond. Notably, Edward showed vast
improvement since his placement in foster care.
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