IN RE MARTIN/RAMSEY MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KA-DASHA MARTIN and
DELVON RAMSEY, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
March 24, 2009
Petitioner-Appellee,
v
No. 286425
Wayne Circuit Court
Family Division
LC No. 07-475447
WALTER D. RAMSEY,
Respondent-Appellant,
and
JOHN DOE,
Respondent.
Before: Fort Hood, P.J., and Wilder and Borrello, JJ.
PER CURIAM.
Respondent Walter Ramsey appeals as of right from a circuit court order terminating his
parental rights to the minor child under MCL 712A.19b(3)(a)(ii), (g), (h), and (j). Although we
agree with appellant that there were substantial evidentiary deficiencies in the proceedings before
the circuit court, we affirm on alternative grounds.
On December 14, 2007, a complaint (request for action for child protective proceedings)
(form JC-02) was filed with the court that alleged that on December 14, 2007, at 4840 Townsend
street, Kimberly Martin (the mother of the minor child, the rights to whom are at issue in this
appeal), and her sister, Erica Martin, were stabbed to death inside the home. The petition was
signed by Sgt. Richard Knox. Later on the same day (December 14, 2007), a complaint for child
protective proceedings (form JC-04b) was filed, alleging as follows: “Mother found stabbed to
death at the referral address. Police responded to a run at 13867 Linnhurst Detroit Mi 48205
where bloody clothes were found and a letter written by the alleged assailant. Police then went
to [the] referral address[,] where Mother Kimberly Martin and her adult daughter Ericka Martin
were found stabbed to death.”
-1-
The termination hearing1 in this matter occurred on May 30, 2008, and the order
terminating respondent’s parental rights was entered on June 2, 2008. Testimony indicated that
the minor child came to the attention of petitioner when it was reported that on December 14,
2007, respondent had stabbed to death the minor child’s mother. No independent evidence to
establish that respondent had been charged with the killing, however, was introduced. In
addition, although the caseworker also testified that it was her understanding that respondent had
been incarcerated since December 25, 2007, there was no direct testimony as to the reason for
respondent’s incarceration. The trial court later permitted the introduction into evidence, as a
business record, a form identified in the record as a “JC-01” form,2 for the purpose of
establishing that the minor child had told a detective investigating the case that he was present at
the time his mother was killed.
The caseworker acknowledged that she had made no effort to have personal contact with
respondent concerning this case, and also acknowledged that there had been communications
with respondent’s mother. However, respondent’s trial counsel objected to the introduction of
any hearsay testimony of the content of the conversations between the caseworker and
respondent’s mother, and the trial court sustained these objections. At the close of the proofs,
the petitioner argued that the evidence established that respondent was awaiting trial for the
murder of the child’s mother and that termination of his parental rights was warranted. The trial
court concluded that the evidence established that termination of respondent’s parental rights was
warranted under MCL 712A.19b(3)(a)(ii), MCL 712A.19b(3)(g), MCL 712A.19b(3)(h) and
MCL 712A.19b(3)(j).
Respondent argues that the trial court erred in finding that the statutory grounds for
termination were established by clear and convincing evidence. Although we agree that there
were substantial deficiencies in the proofs required to establish grounds for termination clearly
and convincingly, we nonetheless find alternative grounds for affirming.
When termination is sought at the original dispositional hearing, the court must find, on
the basis of clear and convincing and legally-admissible evidence, introduced at the trial or
hearing, that one or more facts alleged in the petition are true, and establish a statutory basis for
1
Respondent was served with the petition and requested a bench trial before a referee. At the
trial, counsel for petitioner merely presented the testimony of the caseworker. However, the
caseworker had not provided any services or had any contact with respondent father. Rather, her
knowledge of the circumstances surrounding the charged crimes and the arrest of respondent
father were premised on information and contacts with the police. Respondent father objected to
admission of the testimony based on hearsay. Although counsel for petitioner requested an
adjournment to call additional witnesses, the court overruled the objection, concluding that the
documents submitted by the police and maintained by child protective services were business
records, and allowed them into evidence to support the termination. Despite respondent father’s
claim of appeal, petitioner did not file a brief.
2
State Court Administrative Office (SCAO) form JC-01 applies to delinquency proceedings,
while SCAO form JC-02 applies to child protective proceedings. We presume that the reference
in the record to form JC-01 is mistaken, since, while this Court is unable to locate form JC-01 in
the record, a form JC-02 is in the record.
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termination. MCR 3.977(E)(3). The trial court’s findings of fact are reviewed for clear error. In
re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000).
Section 19b(3)(a)(ii) requires proof that respondent abandoned the child for 91 or more
days without seeking custody. Desertion under § 19b(3)(a) means an intentional or willful act.
In re B & J, Minors, 279 Mich App 12, 18-19 n 3; 756 NW2d 234 (2008). The evidence,
however, showed only indirectly that respondent was incarcerated. The caseworker had no
contact with respondent, and the testimony was unclear as to what respondent’s mother’s
contacts with the caseworker concerned.3 We have no choice but to conclude that the evidence
failed to prove that at the time the petition was filed on December 20, 2007, respondent had
abandoned the child for at least 91 days.
Section 19b(3)(g) requires proof that respondent failed to provide proper care or custody
of the child and is not reasonably likely to be able to provide proper care and custody within a
reasonable time. The caseworker testified that there was no there was no history of neglect or
abuse by respondent, at least before the murders. In addition, there was no admissible direct
evidence in the record that respondent had been charged with the murder, and no admissible
direct evidence as to the anticipated length of respondent’s incarceration. Again, we are left with
no choice but to conclude that the record does not establish by clear and convincing evidence
that respondent was unlikely to be able to provide proper care and custody within a reasonable
time considering the child’s age.4
Section 19b(3)(h) requires proof that respondent “is imprisoned for such a period that the
child will be deprived of a normal home for a period exceeding 2 years” and that respondent is
not reasonably likely to be able to provide proper care and custody within a reasonable time.
The testimony presented was that at the time the petition was filed, respondent was not
incarcerated. Although the caseworker testified that it was her understanding that respondent
was incarcerated at the time of the termination hearing, no admissible evidence was presented
concerning how long he might remain incarcerated. In re Utrera, 281 Mich App 1, 21; ___
NW2d ___ (2008).
3
The contacts with respondent’s mother might have been regarding respondent’s alleged desire
to have his mother care for the minor child. In that case, there would be no abandonment,
because, although incarcerated, respondent would not have had the intent to abandon.
4
Here, again, we take pains to note that while it may have been plain to all concerned that
respondent had been charged with the murder of his child’s mother, the record fails to establish
this fact with clear and convincing evidence. Although the trial court apparently relied upon
form JC-02 rather than the testimony of witnesses to conclude that petitioner had established
grounds for termination, hearsay is not permissible to prove the statutory bases for termination of
parental rights. In re Utrera, 281 Mich App 1, 21; ___ NW2d ___ (2008) (“the trial court
abused its discretion in allowing the admission of extensive hearsay statements, detailed above,
to prove the statutory bases for termination of respondent’s parental rights”). In re Utrera held
that the abuse of discretion, in admitting the hearsay, was harmless, because there was sufficient
admissible evidence to establish, by clear and convincing evidence, the statutory bases for
termination. Id.
-3-
The termination hearing in this matter occurred on May 30, 2008, and the order
terminating respondent’s parental rights was entered on June 2, 2008. Testimony indicated that
the minor child came to the attention of petitioner when it was reported that on December 14,
2007, respondent had stabbed to death the minor child’s mother. The caseworker also testified
that it was her understanding that respondent had been incarcerated since December 25, 2007.
The trial court later permitted the introduction into evidence, as a business record, a form
identified as a “JC-01,” for the purpose of establishing that the minor child had told a detective
investigating the case that he was present at the time his mother was murdered.
Respondent’s trial counsel objected to the introduction of any hearsay testimony of the
content of the conversations between the caseworker and respondent’s mother, and the trial court
sustained these objections. At the close of the proofs, the petitioner argued that the evidence
established that respondent was awaiting trial for the homicide of the child’s mother, and that the
evidence established that termination of respondent’s parental rights was warranted under MCL
712A.19b(3)(a)(ii), MCL 712A.19b(3)(g), MCL 712A.19b(3)(h) and MCL 712A.19b(3)(j).
Section 19b(3)(a)(ii) requires proof that respondent abandoned the child for 91 or more
days, without seeking custody. Desertion under § 19b(3)(a) means an intentional or willful act.
In re B & J, Minors, 279 Mich App 12, 18-19 n 3; 756 NW2d 234 (2008). The evidence shows
that respondent was incarcerated. The caseworker had no contact with respondent. At the time
the petition was filed on December 20, 2007, respondent had abandoned the child for at least 91
days.
Section 19b(3)(g) requires proof that respondent failed to provide proper care or custody
of the child, and is not reasonably likely to be able to provide proper care and custody, within a
reasonable time. And § 19b(3)(h) requires proof that respondent “is imprisoned for such a period
that the child will be deprived of a normal home for a period exceeding 2 years” and that
respondent is not reasonably likely to be able to provide proper care and custody within a
reasonable time. Here, the caseworker testified that it was her understanding that respondent was
incarcerated at the time of the termination hearing. The parties appeared to assume that
respondent was incarcerated for the requisite time period. Accordingly, the parties failed to put
on proofs of the length of the incarceration. We caution the parties that what is clear to everyone
at a trial does not suffice; there must be proofs of all required elements.
Finally, section 19b(3)(j) requires proof that the child is reasonably likely to be harmed if
returned to the parent’s home. As indicated previously, there was no history of neglect or abuse
by respondent before the charged homicide, and no admissible evidence was presented from
which the trial court could find that respondent’s actions involving the alleged, charged offense
would likely result in harm if the child was returned to respondent’s home.5 Thus, there was
insufficient proof that the minor child was reasonably likely to be harmed if returned to
respondent’s home.
5
Again, we feel constrained to note that what might be obvious to all concerned from matters not
of the record cannot serve as the basis for the trial court’s decision. Only those matters properly
of record may be relied on by the trial court.
-4-
Although there were deficiencies in the evidence presented in this case, as described
above, there is an independent basis to affirm. We take judicial notice of defendant’s murder
conviction and sentence.
Judicial notice is a substitute for actual proofs put on by parties. Winekoff v Pospisil, 384
Mich 260, 268; 181 NW2d 897 (1970).
Judicial notice is based upon very obvious reasons of convenience and
expediency; and the wisdom of dispensing with proof of matters within the
common knowledge of everyone has never been questioned. This is the principle
upon which the doctrine of judicial notice rests; convenience and expediency, and
the saving of the time, trouble and expense which would be lost in establishing in
the ordinary way facts which do not admit of contradiction. [Id. quoting 1 Jones,
Blue Book of Evidence (Bancroft-Whitney edition of 1913), p 509, § 105a (104).]
A judicially noticed fact is one not subject to reasonable dispute because it is “capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” MRE 201(b)(2). Judicial notice may be taken at any stage of a proceeding,
whether requested or not. MRE 201(c), (e). “A court takes judicial notice of its own files and
records.” Prawdzik v Heidema Brothers, Inc, 352 Mich 102, 112; 89 NW2d 523 (1958); see also
Hawkeye Casualty Co v Frisbee, 316 Mich 540, 549; 25 NW2d 521 (1947) (the Supreme Court
took judicial notice of its own records, by examining a related case, to supply the alleged defects
in the matter then pending before the Court). When a court takes judicial notice of facts
contained in its own records, the original record need not be introduced. In re Stowe, 162 Mich
App 27, 33; 412 NW2d 655 (1987).
Documents that are part of lower court records in this or other cases are within this
Court’s purview under principles of judicial notice, based on the one court of justice concept
found in Michigan’s constitution. Const 1963, art 6, § 1; People v Snow, 386 Mich 586, 591;
194 NW2d 314 (1972). In Snow, the Supreme Court held that over 200 sentences were subject
to judicial notice. The over 200 cases were compiled in an affidavit. The Court held that “[t]he
results in the 234 cases cited in the affidavit could have been judicially noticed under the ‘one
court of justice’ doctrine.” Id.
Additionally, MCL 600.2106 address court orders, and provides:
A copy of any order, judgment or decree, of any court of record in this
state, duly authenticated by the certificate of the judge, clerk or register of such
court, under the seal thereof, shall be admissible in evidence in any court in this
state, and shall be prima facie evidence of the jurisdiction of said court over the
parties to such proceedings and of all facts recited therein, and of the regularity of
all proceedings prior to, and including the making of such order, judgment or
decree.
Further, MCR 7.216(A) grants this Court discretion to exercise powers of amendment of the trial
court, and to draw inferences of fact. MCR 7.216(A)(1), (6).
-5-
Review of the records of this Court reveals that respondent father was convicted of two
counts of second-degree murder following a jury trial.6 He was sentenced to 31 to 60 years in
prison.7 In light of these convictions, albeit post-termination, we find that there exists an
alternative ground to affirm the trial court’s conclusion that respondent father would not be able
to provide proper care and custody for the child within a reasonable time, MCL 712A.19b(3)(g),
and that respondent will be imprisoned for such a period of time that the minor child would be
deprived of a normal home for a period exceeding two years, MCL 712A.19b(3)(h).
Additionally, the trial court did not err in concluding that termination was clearly in the child’s
best interests under the circumstances. MCL 712A.19b(5).
In reaching this conclusion, we emphasize that we do not condone the lack of
preparation, and the paucity of proofs, put on by the petitioner in the lower court, and on appeal.
More, we recognize that parents have, qua parents, inherent, natural rights,8 under state law, to
the companionship, care, custody, and management of their children, and that these state-law
rights are protected, by both federal and state constitutional law, from deprivation without due
process of the law. In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003). However, in light of
the factual circumstances surrounding the removal of the children here, and their presence at the
home during the brutal murders, judicial notice of the record in respondent father’s criminal
prosecution demonstrates that the termination of his parental rights was correct, and that there is
clear and convincing evidence for the termination.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
6
See Court of Appeals Docket No. 289710.
7
See the judgment of sentence contained in Docket No. 289710.
8
See generally In re LE, 278 Mich App 1, 23-24; 747 NW2d 883, 897 (2008) (“Even though
Davis, as a mere putative father, did not yet have a legal duty to care for LE, he did have, as her
biological father, a clear moral duty to do so . . . .” (emphasis added)), which may be considered
relevant, insofar as natural rights may be analogous to moral duties.
-6-
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