IN RE FOSTER MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of MICHAEL RAY FOSTER,
JUSTIN LLOYD FOSTER, MARTIN JOSEPH
JAMES FOSTER, and AUSTIN JAMES FOSTER,
Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
November 19, 2009
Petitioner-Appellee,
v
No. 291004
Ingham Circuit Court
Family Division
LC No. 08-001544-NA
HEATHER FOSTER,
Respondent-Appellant,
and
CHRISTOPHER FOSTER,
Respondent.
In the Matter of MICHAEL RAY FOSTER,
JUSTIN LLOYD FOSTER, MARTIN JOSEPH
JAMES FOSTER, and AUSTIN JAMES FOSTER,
Minors.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 291005
Ingham Circuit Court
Family Division
LC No. 08-001544-NA
CHRISTOPHER FOSTER,
Respondent-Appellant,
and
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HEATHER FOSTER,
Respondent.
Before: Borrello, P.J., and Whitbeck and K.F. Kelly, JJ.
PER CURIAM.
In these consolidated appeals, respondent-mother Heather Foster and respondent-father
Christopher Foster each appeal as of right from the trial court’s order terminating their parental
rights to the minor children pursuant to MCL 712A.19b(3)(g) and (j) with respect to both
respondents, and also pursuant to MCL 712A.19b(3)(k)(ii) and (m) with respect to respondentfather. For the reasons set forth in this opinion, we affirm.
I. Standard of Review
This Court reviews under the clearly erroneous standard a trial court’s findings of fact in
support of its decision that a statutory ground for termination under MCL 712A.19b(3) has been
established by clear and convincing evidence. MCR 3.977(J); In re Trejo, 462 Mich 341, 356357; 612 NW2d 407 (2000). A finding is clearly erroneous if, although there is evidence to
support it, this Court is left with a definite and firm conviction that a mistake has been made. In
re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003). To be clearly erroneous, the trial court’s
finding must strike this Court as more than just maybe or probably wrong. In re Trejo, supra,
462 Mich at 357. Regard is given to the trial court’s special opportunity to judge the credibility
of witnesses who appeared before it. MCR 2.613(C); In re Miller, 433 Mich 331, 337; 445
NW2d 161 (1989). Once a statutory ground for termination has been established, MCL
712A.19b(5) requires that the court additionally find that termination of parental rights is in the
child’s best interests before it can order termination of parental rights. The trial court’s best
interests decision is also reviewed for clear error. In re Trejo, supra at 356-357.
II. Docket No. 291004
Respondent-mother first argues that the trial court erred in admitting at the adjudicative
jury trial an eight-minute portion of a videorecorded interview of one of the children.
Respondent-mother argues that this evidence was inadmissible as a matter of law under MCL
712A.17b(5).1 Because respondent-mother did not object to the videorecording on the ground
1
We disagree with petitioner’s argument that respondent-mother is precluded from raising this
issue because it constitutes an impermissible collateral attack on the trial court’s exercise of
jurisdiction, contrary to the rule set forth in In re Hatcher, 443 Mich 426; 439, 444; 505 NW2d
834 (1993). Because respondent-mother’s parental rights were terminated at the initial
dispositional hearing, the order terminating her parental rights was the first dispositional order
from which an appeal by right could have been filed, see MCR 3.993(A)(1), and respondentmother’s attack on the adjudication is a direct one, not an impermissible collateral attack. See In
re SLH, AJH, and VAH, 277 Mich App 662, 668-669; 747 NW2d 547 (2008).
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that it was barred by MCL 712A.17b(5), this issue is not preserved.2 City of Westland v Okopski,
208 Mich App 66, 72; 527 NW2d 780 (1994). We review unpreserved claims of error for plain
error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).
MCL 712A.17b(5) states, in pertinent part:
A custodian of the videorecorded statement may take a witness’s
videorecorded statement. The videorecorded statement shall be admitted at all
proceedings except the adjudication stage instead of the live testimony of the
witness. [Emphasis added.]
A “videorecorded statement” is “a witness’s statement taken by a custodian of the videorecorded
statement as provided in subsection (5).” MCL 712A.17b(1)(c). A “custodian of the
videorecorded statement” means “the family independence agency, investigating law
enforcement agency, prosecuting attorney, or department of attorney general or another person
designated under the county protocols established as required by section 8 of the child protection
law, 1975 PA 238, MCL 722.628.” MCL 712A.17b(1)(a).
In this case, MCL 712A.17b(5) clearly prohibited the child’s videorecorded statement
from being introduced at the adjudicative jury trial. Clear statutory language is to be enforced as
written. Fluor Enterprises, Inc v Dep't of Treasury, 477 Mich 170, 174; 730 NW2d 722 (2007).
Thus, respondent-mother has established that the trial court committed plain error.3 When plain
error has occurred, “[r]eversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings independent of the defendant’s innocence.”
In re Utrera, supra at 9. (internal quotation marks and citations omitted.)
Considering the evidence as a whole, the playing of the DVD was not so prejudicial as to
“seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. In
addition to the allegations that one of the minors made through Detective Reust, the jury also
heard testimony regarding respondent-mother’s failure to keep the children away from
respondent-father after the allegations surfaced. This testimony alone was for the jury to find
that the children were within the trial court’s jurisdiction. Accordingly, we conclude that
admission of the portion of the DVD at the jury trial, although plain error, did not affect
respondent-mother’s substantial rights such that reversal is required.
We further note that the purpose of the adjudicative phase is to determine whether there
is a statutory basis for the court to exercise jurisdiction over a child. In re Archer, 277 Mich App
2
An objection on one ground is insufficient to preserve an appellate attack on a different ground.
City of Westland v Okopski, supra.
3
Respondent-mother also argues that the videorecorded statement was improperly introduced at
the adjudicative jury trial because the trial court failed to articulate whether the circumstances
surrounding the giving of the child’s statements provided adequate indicia of trustworthiness, as
required by MCR 3.972(2)(a). It is unnecessary to reach this issue in light of our conclusion that
the videorecorded statement was inadmissible as a matter of law under MCL 712A.17b(5).
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71, 79-80; 744 NW2d 1 (2007). Respondent-mother does not argue that the eight-minute
videorecording affected the jury’s finding that a statutory basis for jurisdiction existed. Instead,
she only argues that the videorecorded statement should not have been considered by the trial
court. Although the trial court did consider the videorecorded statement, it did so only pursuant
to the later introduction of the videorecording at the dispositional hearing. The trial court did not
decide the issue of jurisdiction at the adjudicative phase, and MCL 712A.17b(5) did not preclude
the videorecording from being introduced at the subsequent dispositional hearing. See In re
Archer, supra at 81 (“MCL 712A.17b(5) permits the introduction of a child’s videorecorded
statement . . . at proceedings that take place either before or after the adjudicative stage”).
Therefore, respondent-mother has not shown that her substantial rights were affected.
Respondent-mother next argues that the trial court erred in finding that the statutory
grounds for termination, §§ 19b(3)(g) and (j), were both established by clear and convincing
evidence. The trial court found that there was credible evidence that respondent-father sexually
abused the children, and that respondent-mother had actual knowledge of the abuse against at
least one child, yet she continued to allow the children to have contact with respondent-father,
was in complete denial that the abuse occurred, and continued to associate with respondentfather. Giving due regard to the trial court’s credibility determinations, the trial court’s findings
are not clearly erroneous. Further, they demonstrate that respondent-mother cannot reasonably
be expected to provide proper care and custody within a reasonable time, and that there is a
reasonable likelihood that the children will be harmed if returned to respondent-mother’s home.
Therefore, the trial court did not err in finding that §§ 19b(3)(g) and (j) were both proven by
clear and convincing evidence.
Respondent-mother lastly argues that termination of her parental rights was not in the
children’s best interests. The evidence clearly revealed that the children were traumatized by the
abuse they experienced from respondent-father. Respondent-mother provided no indication that
she would keep the children away from respondent-father or would seek necessary treatment for
the children. The children were receiving, in foster care, the treatment and services they needed
to deal with their trauma and to resolve their related behavioral issues. They had made marked
improvement since their removal. The trial court did not clearly err in finding that termination of
respondent-mother’s parental rights was in the children’s best interests.
III. Docket No. 291005
Respondent-father argues that the trial court violated his right to due process, but he does
not present any substantive argument in support of this claim. An appellant may not merely
announce his position and leave it to this Court to discover and the basis for his claims. Peterson
Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). Therefore, this
issue is abandoned. Id.
Respondent-father also argues that the trial court erred in terminating his parental rights
under §§ 19b(3)(k)(ii) and (m). However, because termination of parental rights need only be
supported by a single statutory ground, In re Trejo, supra at 360, and respondent-father does not
challenge the trial court’s determination that termination of his parental rights was also
warranted under §§ 19b(3)(g) and (j), it is unnecessary to consider this issue. Moreover,
respondent-father concedes that the evidence supports the trial court’s decision to terminate his
parental rights under § 19b(3)(m). He merely argues that the trial court could have declined to
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terminate his parental rights under § 19b(3)(m), based on the children’s best interests. But
because respondent-father does not present a separate best interests argument, any claim of error
in that regard is abandoned. Peterson Novelties, Inc, supra at 14. Regardless, in light of the trial
court’s findings that respondent-father sexually abused his children and that the abuse included
sexual penetration, and the undisputed evidence that respondent-father previously released his
parental rights to another child, we find no clear error in the trial court’s findings that the
statutory grounds for termination were established by clear and convincing evidence with respect
to respondent-father, or that termination of respondent-father’s parental rights was in the
children’s best interests.
Affirmed.
/s/ Stephen L. Borrello
/s/ William C. Whitbeck
/s/ Kirsten Frank Kelly
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