IN RE AVERY MAJOR MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of AVERY MAJOR, Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
August 25, 2005
Petitioner-Appellee,
v
No. 258535
Wayne Circuit Court
Family Division
LC No. 03-424301-NA
LORI LYNN SCOTT,
Respondent-Appellant,
and
RUSTY NEAL MAJOR,
Respondent.
Before: Cooper, P.J., and Fort Hood and R.S. Gribbs*, JJ.
COOPER, P.J. (dissenting).
I must dissent from the majority opinion of my colleagues. Respondent-appellant’s
parental rights were terminated based upon hearsay allegations. Respondent-appellant’s attempts
to challenge the accuracy of those allegations on cross-examination were answered with further
hearsay. This evidence was unfair, unreliable, and untrustworthy. I would, therefore, find that
these errors require reversal.
Polly Wilson, a foster care worker with Evergreen Children Services, was assigned to
respondent-appellant’s case. Ms. Wilson ceased working for that agency before the termination
proceeding. Following Ms. Wilson’s departure, Carolyn Rayford, a foster care supervisor at
Evergreen, had minimal contact with the respondents.1 Even though Ms. Rayford had no
1
Ms. Rayford had no direct contact with respondent-appellant until August 12, 2004. The only
direct contact she had with Mr. Major was to arrange for a final visit with the child.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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personal knowledge of the case, petitioner failed to subpoena Ms. Wilson to testify. Ms.
Rayford’s testimony at the termination proceeding was based solely on her review of the records
compiled by Ms. Wilson. However, Ms. Wilson was available and in the area. In fact, Ms.
Rayford testified that she spoke with Ms. Wilson during the week of the termination proceeding.
The use of Evergreen’s records was clearly hearsay. The records were compiled by an
individual who was not present at the proceeding to testify regarding their contents. As noted by
the majority, however, a trial court may consider otherwise inadmissible hearsay evidence at the
dispositional phase of a termination proceeding.2 The evidence must be “fair, reliable and
trustworthy.”3 “The parties must be afforded an opportunity to examine and controvert written
reports so received and shall be allowed to cross-examine individuals who made the report when
those individuals are reasonably available.”4
Respondent-appellant’s counsel challenged the accuracy of the records on crossexamination. She questioned Ms. Rayford regarding visits with the child and telephone contacts
between respondent-appellant and Ms. Wilson that were not included in the file. Rather than
testify from personal knowledge, Ms. Rayford indicated that she spoke with Ms. Wilson that
week and she “asked [Ms. Wilson] when did she recall was the last visit and she stated that she
recalled that the parents last visited in January. She did not indicate that there were more visits.”
That response was classic hearsay. Without Ms. Wilson’s presence at the trial, respondentappellant was denied the opportunity to adequately test the information in Evergreen’s records
and to challenge the allegations against her. Ms. Wilson was reasonably available and should
have been subpoenaed for the hearing. Accordingly, I would reverse the trial court’s termination
order.
/s/ Jessica R. Cooper
2
MCR 3.977(G)(2); In re Gilliam, 241 Mich App 133, 136-137; 613 NW2d 748 (2000).
3
In re Ovalle, 140 Mich App 79, 82; 363 NW2d 731 (1985).
4
MCR 3.977(G)(2) (emphasis added).
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