IN RE COX MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of of ZACHARY JAMES COX and
MCKENZIE ALEXANDRIA COX, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
September 25, 2008
Petitioner-Appellee,
v
No. 284599
Cass Circuit Court
Family Division
LC No. 06-000120-NA
KANDICE E. CANTRELL, f/k/a KANDICE E.
COX,
Respondent-Appellant.
Before: Saad, C.J., and Sawyer and Beckering, JJ.
PER CURIAM.
Respondent appeals as of right the trial court order terminating her parental rights to the
minor children pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
I
Respondent first argues that the trial court improperly admitted an audiotape recording on
which she can be heard verbally abusing, and possibly physically abusing, her children.
Respondent argues that the admission of this evidence violated state and federal eavesdropping
statutes. Generally, we review the admission of evidence for an abuse of discretion. In re Hill,
221 Mich App 683, 696; 562 NW2d 254 (1997). But, because defendant never argued during
the termination proceedings that the evidence was inadmissible under the federal eavesdropping
statute or that admission of the evidence would deny her due process, we review that portion of
her argument for plain error affecting her substantial rights. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999).
Although no specific state statute is referenced on appeal, respondent argued below that
the recording was obtained in violation of MCL 750.539d, which provides, in part:
(1) Except as otherwise provided in this section, a person shall not do
either of the following:
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(a) Install, place, or use in any private place, without the consent of the
person or persons entitled to privacy in that place, any device for observing,
recording, transmitting, photographing, or eavesdropping upon the sounds or
events in that place.
(b) Distribute, disseminate, or transmit for access by any other person a
recording, photograph, or visual image the person knows or has reason to know
was obtained in violation of this section.
(2) This section does not prohibit security monitoring in a residence if
conducted by or at the direction of the owner or principal occupant of that
residence unless conducted for a lewd or lascivious purpose.
The audiotape recording was obtained by respondent’s boyfriend, who hid a recording
device in respondent’s house. While it appears that respondent’s boyfriend obtained the
recording in violation of MCL 750.539d, the statute does not prohibit the admission of the
recording into evidence. Respondent argued below that admission of the recording was
prohibited by the exclusionary rule. The exclusionary rule bars the introduction into evidence of
materials seized and observations made during an unconstitutional search. People v Hawkins,
468 Mich 488, 498-499; 668 NW2d 602 (2003). The purpose of the rule is to deter improper
police conduct. Id. at 499. However, the exclusionary rule does not apply to statutory violations
unless the statute so provides. Id. at 500. MCL 750.539d does not contain any provision barring
the introduction of evidence obtained in violation of the statute, and we will not create a remedy
that the Legislature chose not to create. See Hawkins, supra at 500. Furthermore, the recording
in this case was not obtained during an unconstitutional search, and there was no improper police
or other governmental conduct involved in obtaining the evidence. Compare People v
Livingston, 64 Mich App 247, 255; 236 NW2d 63 (1975) (holding that a violation of MCL
750.539c does not “call into play the per se exclusionary rule applicable to constitutionally
defective searches and seizures”). Therefore, suppression of the evidence was not required,
notwithstanding a possible violation of the Michigan eavesdropping statute.
Respondent also argues that the trial court’s admission of the evidence violated 18 USC
2515, which provides:
Whenever any wire or oral communication has been intercepted, no part of
the contents of such communication and no evidence derived therefrom may be
received in evidence in any trial, hearing, or other proceeding in or before any
court, grand jury, department, officer, agency, regulatory body, legislative
committee, or other authority of the United States, a State, or a political
subdivision thereof if the disclosure of that information would be in violation of
this chapter.
The term “intercept” is defined as “the aural or other acquisition of the contents of any wire,
electronic or oral communication through the use of any electronic, mechanical, or other device.”
18 USC 2510(4).
However, 18 USC 2511(2)(d) provides:
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It shall not be unlawful under this chapter for a person not acting under
color of law to intercept a wire, oral, or electronic communication where such
person is a party to the communication or where one of the parties to the
communication has given prior consent to such interception unless such
communication is intercepted for the purpose of committing any criminal or
tortious act in violation of the Constitution or laws of the United States or of any
State.
In this case, respondent addressed her boyfriend on the audiotape recording, making him a party
to the communication. Therefore, pursuant to 18 USC 2511(2)(d), it was not unlawful for him to
intercept the communication. Absent an unlawful interception under the federal eavesdropping
statute, the remedy of suppression is not warranted. See Resha v United States, 767 F2d 285,
288 (CA 6, 1985); United States v Horton, 601 F2d 319, 324 (CA 7, 1979).
MCR 3.977(G)(2) provides that the “Michigan Rules of Evidence do not apply, other
than those with respect to privileges,” to termination proceedings. In this case, the trial court
was entitled to consider all relevant and material evidence in deciding whether to terminate
respondent’s parental rights. See Id. The audiotape recording was probative evidence of
respondent’s relationship and interaction with her children, and was relevant to her fitness as a
parent. Therefore, we conclude that the trial court properly admitted the recording into evidence.
II
Next, respondent argues that the trial court erred in finding that a statutory ground for
termination was established by clear and convincing evidence and that termination was in the
children’s best interests. We disagree. We review the trial court’s findings of fact for clear
error. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). A trial court’s decision to
terminate parental rights is clearly erroneous if, although there is evidence to support it, the
reviewing court is left with the definite and firm conviction that a mistake has been made. In re
JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003).
The evidence presented at the termination hearing established that respondent had serious
problems with anger management and domestic violence resulting in the abuse of her children.
Although respondent made some progress in therapy, she failed to fully acknowledge the abuse
of her children and its affect on them. Although respondent required additional therapy on child
abuse issues, the therapy she obtained after discontinuing her relationship with her first therapist
did not focus on those issues, instead focusing on respondent’s current situation and the loss of
her children. Thus, the issues that made respondent an abusive parent remained unresolved and
were not reasonably likely to be resolved within a reasonable time. Accordingly, there remained
a reasonable likelihood that the children would be harmed if returned to respondent’s home.
We disagree with respondent’s argument that her case was mismanaged because her first
therapist, Karen Chism, never worked on a relapse prevention and lifestyle plan, as Dr. Haugen
and Dr. Henry had recommended, and because she was not provided with a home therapist,
which Dr. Henry felt was needed if the children were returned to respondent’s care. Because the
children were never returned to respondent, there was no need for a home therapist. Moreover,
while Chism may not have worked on a relapse prevention and lifestyle plan, she worked on the
critical issues in this case, e.g., respondent accepting responsibility for the removal of her
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children, gaining insight into the negative impact of the abuse on the children, understanding the
children’s emotional needs, improving parenting skills, and evaluating past relationships and
gaining insight into how those affected the children. Accordingly, respondent’s argument does
not provide a basis for concluding that the trial court clearly erred in finding that the statutory
grounds for termination were established by clear and convincing evidence.
Finally, the evidence failed to show that termination of respondent’s parental rights was
clearly contrary to the children’s best interests. MCL 712A.19b(5); In re Trejo, supra at 354.
On the contrary, both children were severely traumatized by events that occurred in respondent’s
home and the children’s therapist agreed that it would be contrary to their best interests to return
to respondent’s home. The trial court did not clearly err in terminating respondent’s parental
rights to the children. Id. at 356-357.
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Jane M. Beckering
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