IN RE ALICIA DANIELLE UTRERA MINORAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ALICIA DANIELLE UTRERA,
September 23, 2008
Macomb Circuit Court
LC No. 2006-000274-NA
Advance Sheets Version
ANNE L. MILLER,
Before: Whitbeck, P.J., and O’Connell and Kelly, JJ.
Respondent mother appeals as of right the trial court order terminating her parental rights
to her minor child pursuant to MCL 712A.19b(3)(d) (parent’s noncompliance with a limited
guardianship placement plan resulted in a disruption of the parent-child relationship) and (j)
(reasonable likelihood that the child will be harmed if returned to parent). We affirm.
I. Basic Facts and Proceedings
In March 2002, respondent filed a petition with the probate court requesting the
appointment of Carolyn H. Roach as the limited guardian for the minor child pursuant to MCL
700.5205, because respondent lacked housing. Roach was the mother of respondent’s boyfriend
and acted as a surrogate grandmother to the minor child. The probate court granted the petition,
and for the five years between the time the petition was granted and the time of the dispositional
hearing, the minor child lived with Roach. The probate court ordered respondent to comply with
a limited guardianship placement plan, which required respondent to visit the minor child seven
times a week and participate in positive outings, have daily telephone contact with the child,
provide transportation to school, attend all school conferences and nonemergency doctor and
dentist appointments, pay for babysitting, and contribute $200 a month for room, board, and
expenses and $100 a month for food.
In June 2004, respondent petitioned the probate court to terminate the guardianship of the
minor child, but the petition was dismissed after respondent and Roach agreed to a consent order
for visitation. This order provided for visitation every Saturday from 10:00 a.m. to 2:00 p.m. at
In June 2005, Roach suspended respondent’s parenting time because she found that
respondent’s behavior was disruptive. Respondent then petitioned the probate court to terminate
the guardianship. The court adopted a transition plan on August 8, 2005, requiring that
respondent obtain a recommendation for a psychiatrist and receive a full psychiatric evaluation,
including a comprehensive recommendation for treatment and medication. The plan provided
that respondent should comply with any medication and treatment recommendations and
authorize the release of her medical and counseling records to the court, Laura Henderson (the
minor child’s therapist), Karen Russell (who, before acting as petitioner in this matter, had been
the minor child’s guardian ad litem), and respondent’s attorney. The plan required respondent to
participate in parenting classes and maintain adequate housing and a legitimate source of income.
The plan also provided that Henderson should facilitate parenting time, following the receipt of
respondent’s psychiatric evaluation. The court ordered that the matter would be reviewed in six
Respondent failed to provide a report confirming that she had received a full psychiatric
evaluation. On February 15, 2006, the probate court denied respondent’s motion to terminate the
guardianship, finding that respondent had failed to substantially comply with the transition plan.
The probate court suspended respondent’s parenting time and directed the guardian ad litem to
take appropriate action in the juvenile court on behalf of the minor child.
The guardian ad litem, now petitioner in this matter,1 filed the initial petition with the
trial court in this matter on June 6, 2006, claiming that respondent had failed to comply with the
court-structured transition plan, which resulted in a disruption in the parent-child relationship.
Petitioner alleged that respondent had significant mental health issues, including bipolar
disorder. Petitioner requested that the court take jurisdiction of the minor child. In an amended
petition filed on August 21, 2006, petitioner requested the termination of respondent’s parental
rights pursuant to MCL 712A.19b(3)(d), (e), (g), and (j), at the initial disposition phase. The
court adjourned the matter on five occasions before the case came before the court in June 2007,
approximately a year after petitioner filed the initial petition.
The trial court then asserted jurisdiction over the child on the basis of the prior order of
the probate court finding that respondent had failed to comply with the transition plan, MCL
712A.2(b)(3).2 The court proceeded to the dispositional hearing. When the hearing began,
respondent had not had visitation with the child for over two years.
Elaine Ball-Tyler, a guardianship investigator with the probate court, testified that she
first had contact with respondent because the maternal grandparents had been appointed as
The lower court record indicates that once Russell became the petitioner, a different guardian
ad litem was appointed.
It appears that the trial court regarded the transition plan as a modified limited guardianship
plan, and respondent does not challenge this consideration on appeal.
limited guardians of respondent’s two older children. During an investigation regarding the
guardianship of the older children in August 2001, Ball-Tyler visited respondent’s home and
reported that it had a very unpleasant odor, and clothing, debris, papers, and materials from
various projects were strewn about the house. Ball-Tyler first met the minor child who is the
subject of this action in April 2002, when she conducted a guardianship investigation pursuant to
a referral based on respondent’s petition for guardianship in the instant case. The child, then
almost five years old, was fearful, unaccustomed to sleeping alone, and frequently wet the bed.
Ball-Tyler recalled that the child had poor communicative language skills, did not know how to
hold a crayon, and did not know the alphabet, numbers, or colors. Ball-Tyler described the child
as disheveled and indicated that she had not received most of her immunizations, had a drifting
eye, and she required dental care.
Ball-Tyler asserted that respondent had not complied with the limited guardianship
placement plan in that she had failed to visit the minor child seven times a week, attend medical
appointments, pay for babysitting, contribute $200 a month for room and board, or contribute
$100 a month for food. Respondent admitted that she had not provided any money for room,
board, or food, claiming that she could not afford it.
Henderson, the child’s therapist, opined that there was no bond between respondent and
the minor child and that there had been a dramatic disruption in the parent-child relationship.
There was a “huge gap of time” when respondent did not have any consistent contact with the
child, and the child did not recall any positive memories of respondent. Henderson believed that,
if the child were returned to respondent, she would most likely “show some significant
regressive behavior fairly quickly.” Henderson did not believe that, given respondent’s history,
the child would be psychologically safe if returned to respondent. During the two years
Henderson had conducted therapy with the minor child, she saw a significant reduction in the
child’s anxiety and depression. Henderson asserted that the child was thriving in her
environment, which was evidenced by her success in school and relationships with her friends.
Ball-Tyler reported that the child was happy, secure, confident, and succeeding in school and
involved in a variety of activities. Henderson believed that the child needed closure,
consistency, and stability, and she asserted that termination was in the child’s best interests.
Respondent’s therapist, Sandra Fringer, testified that, during the preceding year,
respondent had been working on stress management techniques and had made improvement.
Fringer stated that respondent’s psychiatrist had reported that her condition was stable.
However, Fringer testified that she understood that respondent had a psychiatric hospitalization
seven months before the dispositional hearing began. Fringer was unable to offer an opinion
with respect to respondent’s ability to parent or maintain her own household. Respondent
similarly claimed that she had been stable for a year before the dispositional hearing. In
addition, respondent’s friend, Sherry Pinch, testified that she believed that respondent could be a
good parent to the minor child.
The minor child informed Henderson that, before she began living with Roach,
respondent’s older children had permitted her to jump out of a window onto a trampoline while
respondent was at work and that they had once locked her out of the house. With respect to the
trampoline incident, respondent admitted that she had left the minor child under the supervision
of her older children, then ages 8 and 12, and she blamed them for the lapse in judgment.
Respondent did not believe that her older children had locked the minor child out of the home.
Respondent admitted that, during the time the minor child had been living with Roach,
she had been involved in two different relationships that exhibited poor judgment. In both of
these relationships, she moved in with a man whom she had known for a short time and lived
with him for one to two months. Both of these relationships involved incidents of domestic
violence for which the police were summoned.
Respondent testified that she was unable to obtain the required psychiatric evaluation
because the psychiatrists to whom she had been referred would not accept her insurance.
However, she admitted that she received a psychiatric evaluation in December 2005 and that the
doctor recommended lithium. Respondent asserted that she was unable to take lithium because it
caused seizures and that the doctor was unwilling to prescribe any other medications.
Respondent did not know why she had not presented this evaluation to the court, but she
explained that she had been having trouble or mental problems at the time and could not manage
to obtain the records, even though she had an attorney.
The trial court terminated respondent’s parental rights to the minor child pursuant to
MCL 712A.19b(3)(d) (parent’s noncompliance with a limited guardianship placement plan
resulted in a disruption of the parent-child relationship) and (j) (reasonable likelihood that the
child will be harmed if returned to parent). This appeal follows.
Respondent argues that the trial court erred by failing to conduct a timely adjudication
pursuant to MCR 3.972(A). We agree that the trial court erred, but we conclude that this error
did not affect the outcome of the proceedings and therefore does not warrant reversal.
A. Standards of Review
Generally, this Court reviews a ruling on a motion for a continuance for an abuse of
discretion. In re Jackson, 199 Mich App 22, 28; 501 NW2d 182 (1993). However, because
respondent failed to raise this issue before the trial court, it has not been properly preserved for
appellate review. In re NEGP, 245 Mich App 126, 134; 626 NW2d 921 (2001). Our review is
therefore limited to plain error affecting substantial rights. People v Carines, 460 Mich 750,
763, 774; 597 NW2d 130 (1999). Generally, an error affects substantial rights if it caused
prejudice, i.e., it affected the outcome of the proceedings. Id. at 763. 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
Osborne (On Remand, After Remand), 237 Mich App 597, 606; 603 NW2d 824 (1999) (internal
quotation marks and citations omitted; alteration in original), citing Carines, supra at 763-764.
This issue also involves the interpretation of a court rule, which is a question of law that
we review de novo. In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006); In re BAD,
264 Mich App 66, 72; 690 NW2d 287 (2004). We likewise review de novo the construction of
the term “good cause.” In re FG, 264 Mich App 413, 417; 691 NW2d 465 (2004).
MCR 3.972(A) provides the following time requirements for conducting a trial after a
petition has been filed:
If the child is not in placement, the trial must be held within 6 months after
the filing of the petition unless adjourned for good cause under MCR 3.923(G). If
the child is in placement, the trial must commence as soon as possible, but not
later than 63 days after the child is removed from the home unless the trial is
(1) on stipulation of the parties for good cause;
(2) because process cannot be completed; or
(3) because the court finds that the testimony of a presently unavailable
witness is needed.
When trial is postponed pursuant to subrule (2) or (3), the court shall
release the child to the parent, guardian, or legal custodian unless the court finds
that releasing the child to the custody of the parent, guardian, or legal custodian
will likely result in physical harm or serious emotional damage to the child.
If the child has been removed from the home, a review hearing must be
held within 182 days of the date of the child’s removal from the home, even if the
trial has not been completed before the expiration of that 182-day period.
Here, the 63-day requirement is inapplicable. The minor child was not “in placement” as
she had been living with a limited guardian and was not in “foster care, a shelter home, a
hospital, or a private treatment agency.” MCR 3.903(C)(8). Rather, MCR 3.972(A) requires that
the trial should have been conducted within six months of the date the petition was filed “unless
adjourned for good cause under MCR 3.923(G).” Pursuant to MCR 3.923(G), “[a]djournments
of trials or hearings in child protective proceedings should be granted only (1) for good cause,
(2) after taking into consideration the best interests of the child, and (3) for as short a period of
time as necessary.”
“Good cause” is not defined by court rule. Therefore, we consult a dictionary and
caselaw to assist us in ascertaining its meaning. In re FG, supra at 418; Richards v McNamee,
240 Mich App 444, 451; 613 NW2d 366 (2000). Black’s Law Dictionary (8th ed) defines good
cause as “[a] legally sufficient reason.” See Richards, supra at 451-453 (discussing the
dictionary definition of “good cause” in applying MCR 2.102[D]). In the context of
MCR 3.615(B)(3),3 this Court has defined good cause as “[a] legally sufficient reason” and “a
substantial reason amounting in law to a legal excuse for failing to perform an act required by
law.” In re FG, supra at 419 (internal quotation marks and citation omitted). We adopt the same
definition here, and hold that in order for a trial court to find good cause for an adjournment, “a
legally sufficient or substantial reason” must first be shown. See id.
Petitioner filed the initial petition on June 6, 2006, and the trial court scheduled a pretrial
hearing for June 21, 2006. On June 21, 2006, the court adjourned the hearing, and it was
rescheduled for July 26, 2006. This hearing was also adjourned, and it was rescheduled for
August 29, 2006. The lower court record does not contain any indication regarding the reasons
for these two adjournments, and no legally sufficient or substantial reasons supporting these
adjournments are apparent from the record. Moreover, there are no indications that the best
interests of the child were considered. The trial court erred in repeatedly adjourning these
proceedings. However, we conclude that this error does not require reversal in this case.
When the parties appeared for the August 29, 2006, hearing, respondent formally
requested a hearing before a judge rather than a referee pursuant to MCR 3.912(B). The pretrial
hearing was adjourned and rescheduled before a judge for September 19, 2006. No
determination regarding good cause was made with respect to this adjournment. However, “[i]t
is settled that error requiring reversal may only be predicated on the trial court’s actions and not
upon alleged error to which the aggrieved party contributed by plan or negligence.” Lewis v
LeGrow, 258 Mich App 175, 210; 670 NW2d 675 (2003). Given that this adjournment may be
attributed to respondent, any error in this adjournment does not require reversal.
The court convened on September 19, 2006, and respondent requested a jury trial. The
trial court scheduled a jury trial for January 4, 2007. Respondent’s request for a jury trial likely
constitutes a legally sufficient or substantial reason for this adjournment, but there are no
indications that the best interests of the child were taken into consideration or that the 3½- month
period of adjournment was as short as necessary. See MCR 3.923(G)(2) and (3). However,
given that this adjournment may also be attributed to respondent, any error that occurred does not
require reversal. See Lewis, supra at 210.
At a December 18, 2006, motion hearing, respondent’s counsel informed the court that
respondent was hospitalized. In answer to the court’s questions, the minor child’s guardian ad
litem asserted that the child was safe, in stable placement, and would not experience any
potential prejudice or harm if the matter were adjourned. Respondent’s doctor, who was
contacted after the hearing, informed respondent’s attorney that she was not expected to be able
to participate in the proceedings scheduled for January 2007. The trial court entered an order
adjourning the January 4, 2007, trial, ruling that good cause had been shown by respondent’s
hospitalization. The court rescheduled the jury trial for March 27, 2007. Given respondent’s
MCR 3.615 governs proceedings pursuant to the Parental Rights Restoration Act (PRRA),
MCL 722.901 et seq. MCR 3.615(B)(3) prohibits the release of the contents of the court file
maintained under the PRRA absent “good cause shown and only for a purpose specified in the
order of the court.”
hospitalization and the expectation that she would be unable to participate in the proceedings,
there was a legally sufficient or substantial reason for this adjournment. The trial court also took
the best interests of the child into consideration, and there is no indication that the 2½- month
adjournment was longer than necessary. We therefore conclude that this adjournment was
proper pursuant to MCR 3.972(A).
On March 12, 2007, respondent filed a stipulated waiver of jury trial, requesting a bench
trial on March 27, 2007. The trial court scheduled a bench trial for March 27, 2007, and the
parties appeared on that date. The guardian ad litem requested that the court transfer the case
back to the referee for trial, and respondent waived her right to a trial before a judge and
consented to transfer the case to the referee. The trial before the referee was scheduled to begin
on June 26, 2007, and it commenced as scheduled. Given that respondent contributed to the
delay by consenting to transfer the case back to the referee, any error in this adjournment does
not require reversal. See Lewis, supra at 210.
The petition was filed on June 6, 2006, and the trial was not conducted until June 26,
2007, more than six months beyond the time limit provided in MCR 3.972(A). The high number
of adjournments in this case was inappropriate. However, respondent has not claimed prejudice.
She merely notes that memories and circumstances may change over time, and she does not
assert any violation of due process guarantees.
With respect to the failure to comply with the requirement that a termination hearing on a
supplemental petition be conducted within 42 days after the supplemental petition is filed, this
Court has noted that the court rule and applicable statute provided no sanctions for the violation.4
In re Jackson, supra at 28-29; In re Kirkwood, 187 Mich App 542, 545-546; 468 NW2d 280
(1991). The Kirkwood Court declined to include a sanction in those provisions and held that
“[s]uch a procedural defect, standing alone, will not cause us to dismiss the case or set aside the
termination order.” Kirkwood, supra at 546. MCR 3.902(A) provides that MCR 2.613 governs
limitations on the correction of errors in proceedings involving juveniles. In re TC, 251 Mich
App 368, 371; 650 NW2d 698 (2002). MCR 2.613(A) provides:
An error in the admission or the exclusion of evidence, an error in a ruling
or order, or an error or defect in anything done or omitted by the court or by the
parties is not ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
take this action appears to the court inconsistent with substantial justice.
MCR 3.972(A) does not provide a sanction for a violation of the six-month time limit,
and, given the circumstances of this case, respondent could have actually benefited from the
In In re Jackson, supra at 28-29, and In re Kirkwood, 187 Mich App 542, 545-546; 468 NW2d
280 (1991), the Court applied former MCR 5.974(F)(1)(a). The rules governing juvenile
proceedings have since been amended and renumbered, effective May 1, 2003. MCR subchapter
5.900 was moved to new MCR subchapter 3.900, and MCR 3.977 corresponds to former MCR
5.974. In re JK, 468 Mich 202, 209 n 17; 661 NW2d 216 (2003).
additional time because she could continue to work on establishing stability and resolving any
barriers to reunification. See In re Gazella, 264 Mich App 668, 674; 692 NW2d 708 (2005); In
re Jackson, supra at 29. Therefore, respondent was not prejudiced by the repeated and erroneous
adjournments, and substantial justice does not require reversal.
III. Admissibility of Evidence
Respondent contends that the trial court improperly admitted hearsay evidence at the
initial dispositional hearing, which resulted in the termination of her parental rights. We agree
that hearsay was improperly admitted, but we conclude that there was sufficient clear and
convincing, legally admissible evidence to support the trial court’s decision to terminate
respondent’s parental rights.
A. Standards of Review
We review for an abuse of discretion a trial court’s decision regarding the admission of
evidence. In re Archer, 277 Mich App 71, 77; 744 NW2d 1 (2007). An abuse of discretion
occurs when the trial court chooses an outcome that falls “outside the range of principled
outcomes.” Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007). When an
evidentiary question involves a question of law, such as the interpretation of a statute or court
rule, our review is de novo. In re Archer, supra at 77; In re BAD, supra at 72.
The statutory grounds for termination of parental rights must be proven by clear and
convincing evidence. MCR 3.977(E)(3). “If the court finds that there are grounds for
termination of parental rights, the court shall order termination of parental rights . . . unless the
court finds that termination of parental rights to the child is clearly not in the child’s best
interests.” MCL 712A.19b(5). We review for clear error a trial court’s decision to terminate
parental rights and, if appropriate, its decision regarding whether termination is contrary to the
child’s best interests. MCR 3.977(J); In re JK, 468 Mich 202, 209; 661 NW2d 216 (2003). A
decision is clearly erroneous if, “although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction that a mistake has been made.” In
re JK, supra at 209-210.
B. Protective Proceedings
Child protective proceedings consist of two distinct phases: the trial, also known as the
adjudicative phase, and the dispositional phase. In re AMAC, supra at 536. During the
adjudicative phase, which occurs first, the trial court determines whether it may exercise
jurisdiction over the minor child pursuant to MCL 712A.2(b). In re AMAC, supra at 536. If the
court conducts a trial, “the rules of evidence for a civil proceeding and the standard of proof by a
preponderance of evidence apply . . . notwithstanding that the petition contains a request to
terminate parental rights.” MCR 3.972(C)(1); In re AMAC, supra at 536. If the court acquires
jurisdiction over the child, the dispositional phase follows, at which the trial court determines
“what action, if any, will be taken on behalf of the child.” In re AMAC, supra at 536-537; see
also MCR 3.973(A). The dispositional phase must be conducted immediately after the
adjudicative hearing or after proper notice has been given. In re AMAC, supra at 538. Unlike
the adjudicative phase, the Michigan Rules of Evidence do not generally apply at an initial
dispositional hearing. MCR 3.973(E)(1); In re AMAC, supra at 537.
The trial court may order termination at an initial dispositional hearing under certain
circumstances. MCL 712A.19b(4); In re CR, 250 Mich App 185, 201; 646 NW2d 506 (2002).
MCR 3.977(E) provides the procedural requirements for terminating parental rights at an initial
dispositional hearing as follows:
The court shall order termination of the parental rights of a respondent at
the initial dispositional hearing held pursuant to MCR 3.973, and shall order that
additional efforts for reunification of the child with the respondent shall not be
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a
preponderance of the evidence that one or more of the grounds for assumption of
jurisdiction over the child under MCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear
and convincing legally admissible evidence that had been introduced at the trial or
plea proceedings, or that is introduced at the dispositional hearing, that one or
more facts alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights under MCL
712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), or (n);
unless the court finds by clear and convincing evidence, in accordance with the
rules of evidence as provided in subrule (G)(2), that termination of parental rights
is not in the best interests of the child. [Emphasis added.]
Petitioner sought termination of respondent’s parental rights in the amended petition, and
the trial court assumed jurisdiction over the child on the basis of the prior order of the probate
court that stated that respondent had failed to comply with the limited guardianship plan, MCL
712A.2(b)(3). Therefore, clear and convincing, legally admissible evidence was required to
establish the grounds for termination.
We reject petitioner’s argument that In re Gilliam, 241 Mich App 133; 613 NW2d 748
(2000), and In re Snyder, 223 Mich App 85; 566 NW2d 18 (1997), dictate that the Michigan
Rules of Evidence do not apply. Both cases involved former MCR 5.974(E),5 which governed
the termination of parental rights based on changed circumstances. See Gilliam, supra at 136
Former MCR 5.974(E) corresponds to current MCR 3.977(F). See In re JK, supra at 209 n 17.
138; Snyder, supra at 89-90. Given that petitioner did not seek termination on the basis of
changed circumstances, MCR 3.977(F) does not apply, and petitioner’s reliance on Snyder and
Gilliam is misplaced. Rather, petitioner sought termination of respondent’s parental rights at the
initial disposition in the amended petition, and MCR 3.977(E) provides that clear and
convincing, legally admissible evidence was required.
Respondent claims that there were repeated instances of hearsay pertaining to statements
Roach made about respondent, statements the minor child made to Henderson, and statements
contained in police reports. Respondent also indicates that Ball-Tyler improperly testified about
statements made by the maternal grandparents. Hearsay is “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” MRE 801(c). Hearsay is inadmissible unless the rules of evidence provide
otherwise. MRE 802.
Henderson testified that the minor child told her that she was afraid of respondent
because respondent yelled, threw things at her boyfriend, and engaged in incidents of domestic
violence with him. Ball-Tyler testified that the minor child told her that she did not want to have
telephone calls or visitation with respondent, that the visits were not good, that respondent made
her feel afraid, that she cried the night before a visit was scheduled to occur, and that she did not
think respondent would ever get well. Ball-Tyler also related that the child said that respondent
used “bad words,” asked her to keep secrets, and threatened not to let the minor child see Roach
or Roach’s family if she were returned to respondent. Although these statements constitute
hearsay, they are admissible as exceptions because they pertain to the minor child’s then-existing
mental or emotional condition. Statements that the declarant is afraid may be admissible
pursuant to MRE 803(3) to prove the declarant’s state of mind. People v Bauder, 269 Mich App
174, 188-189; 712 NW2d 506 (2005); People v Ortiz, 249 Mich App 297, 307-310; 642 NW2d
417 (2002). These statements were relevant pursuant to MRE 401 because they tended to show
that the parent-child relationship had been disrupted under MCL 712A.19b(3)(d), which was at
Ball-Tyler also testified that she had reviewed multiple police reports regarding domestic
violence involving respondent; two reports involved respondent committing acts of domestic
violence, and one involved her being the alleged victim of such violence. Ball-Tyler conducted
an investigation in response to the June 2005 petition to terminate the guardianship, and although
respondent had reported that she was living with the maternal grandparents, Ball-Tyler was
unable to schedule a home visit by contacting their residence. Ball-Tyler’s testimony
demonstrated that respondent was not living with her parents; rather, it indicated that respondent
was living at other locations at various times. Ball-Tyler’s testimony was offered to demonstrate
that respondent had not been consistently living with the maternal grandparents, and not for the
truth of the matter asserted, i.e., that respondent was living with various boyfriends, was violent,
or was involved in abusive relationships. Therefore, this testimony does not constitute hearsay
pursuant to MRE 801(c). See Int’l Union, United Automobile, Aerospace & Agricultural
Implement Workers of America v Dorsey (On Remand), 273 Mich App 26, 35-36; 730 NW2d 17
(2006). These reports themselves were not admitted into evidence. Although Ball-Tyler may
have offered more testimony than necessary to establish respondent’s residence, respondent
admitted that, during the time the minor child was living with Roach, respondent had been
involved in two relationships in which incidents of domestic violence occurred and the police
were summoned. Respondent testified regarding other domestic violence incidents as well,
further elaborating on Ball-Tyler’s testimony.
Ball-Tyler asserted that the maternal grandparents had told her that they did not believe
respondent could manage her own residence or was capable of being on her own and that they
were concerned about the stability and consistency of her behavior over time. Because these
statements were offered to prove the truth of the matter asserted, i.e., that respondent was not
able to manage her own residence or live on her own and that her behavior was not stable or
consistent over time, they constitute hearsay. MRE 801(c). Ball-Tyler also asserted that
Henderson told her that the visits with respondent were causing stress and anxiety for the minor
child and were counterproductive. Ball-Tyler stated that Roach reported being frustrated with
respondent because of the problems during the visits with the minor child and respondent’s
inappropriate actions. Henderson testified that the child expressed that she was afraid that
respondent would take her away from Roach, whom she regarded as her grandmother. These
statements constitute hearsay because they were offered for the truth of the matter asserted, i.e.,
that respondent’s visits with the child were not productive. MRE 801(c).
Ball-Tyler testified that Roach told her that respondent rarely arrived at 10:00 a.m. for the
scheduled visits with the minor child and that the child was attempting to avoid telephone calls
with respondent. To the extent that these statements were offered to prove the truth of the matter
asserted, i.e., that respondent was not timely for her visits, they constitute hearsay. MRE 801(c).
However, respondent acknowledged that she had not arrived on time for her weekly visitation
with the minor child and admitted that she did not believe it was important to be on time.
Ball-Tyler stated that the maternal grandparents had informed her that respondent’s two
older children had “great parental responsibility” for the minor child. Henderson testified that
the child had similarly told her that respondent’s older children were frequent caregivers and that
the child had identified three incidents involving the older children: they permitted her to jump
out of a window onto a trampoline, they locked her out of the house, and they permitted her to
eat dog food. These statements constitute hearsay because they were offered for the truth of the
matter asserted, i.e., that respondent left the minor child in the care of her older children. MRE
801(c). However, with respect to the trampoline incident, respondent admitted that she had left
the minor child in the care and supervision of her older children while she was at work.
Respondent also asserted that she did not believe that her older children had locked the minor
child out of the home.
Although the trial court abused its discretion by allowing the admission of extensive
hearsay statements, detailed above, to prove the statutory bases for termination of respondent’s
parental rights, MCR 3.977(E)(3), reversal is not necessarily required. To the extent that
respondent testified regarding the substance of hearsay statements that were improperly
admitted, she must demonstrate that substantial justice requires us to reverse the order
terminating her parental rights. MCR 2.613(A); MCR 3.902(A); In re TC, supra at 371. If
petitioner provided clear and convincing, legally admissible evidence that respondent
substantially failed, without good cause, to comply with the limited guardianship placement plan
and that this noncompliance resulted in a disruption of the parent-child relationship,
MCL 712A.19b(3)(d), or that there was a reasonable likelihood that the child would be harmed if
returned to respondent, MCL 712A.19b(3)(j), reversal is not warranted. See In re CR, supra at
D. MCL 712A.19b(3)(d)
The trial court terminated respondent’s parental rights pursuant to MCL 712A.19b(3)(d),
The child’s parent has placed the child in a limited guardianship under
section 5205 of the estates and protected individuals code, 1998 PA 386, MCL
700.5205, and has substantially failed, without good cause, to comply with a
limited guardianship placement plan described in section 5205 of the estates and
protected individuals code, 1998 PA 386, MCL 700.5205, regarding the child to
the extent that the noncompliance has resulted in a disruption of the parent-child
relationship. [Emphasis added.]
Again, the term “good cause” is not defined in the statute. As discussed earlier, this
Court defines “good cause” as “a legally sufficient or substantial reason,” and we adopt the same
definition here. Termination is therefore appropriate pursuant to MCL 712A.19b(3)(d) if a
respondent fails to substantially comply with a limited guardianship plan without a “legally
sufficient or substantial reason,” and this noncompliance results in a disruption of the parent
The probate court expressly found “that there has been no substantial compliance by the
natural mother with the Transition Plan . . . .” Henderson testified at the dispositional hearing
that she never received respondent’s psychiatric evaluation, which supports the probate court’s
finding that respondent failed to comply with the transition plan. However, respondent asserted
that she had difficulty obtaining a psychiatric evaluation because she could not find a psychiatrist
who accepted her insurance. Although much of the evidence disproving this claim was
improperly admitted hearsay,6 respondent’s own testimony was sufficient to demonstrate that her
noncompliance with the transition plan was without good cause. Respondent admitted that she
had received a psychiatric evaluation in December 2005, but she explained that, because of her
mental problems at the time, she could not manage to obtain the records, even though she was
represented by counsel. Because respondent’s asserted cause for noncompliance with the
transition plan, i.e., her mental illness, is the very condition that impairs her ability to care for the
child, it cannot constitute a legally sufficient or substantial reason. The absence of good cause
was established by clear and convincing, legally admissible evidence.
Respondent’s failure to comply with the transition plan resulted in a further disruption of
the parent-child relationship, which was already severely disrupted by that time. Roach
For example, Ball-Tyler testified that a previous therapist of respondent informed her that she
had advised respondent of several psychiatrists who would accept her insurance and perform a
psychiatric evaluation. Respondent does not challenge the admission of this testimony.
suspended respondent’s parenting time in June 2005, and the probate court suspended
respondent’s parenting time in February 2006 because respondent had failed to comply with the
transition plan. Henderson did not facilitate visitation because she never received a psychiatric
evaluation, and visits were never reinstated. Visitation was ultimately suspended when petitioner
sought termination of respondent’s parental rights in August 2006. See MCL 712A.19b(4).
Thus, the eight-month gap in visits from the time of respondent’s psychiatric evaluation in
December 2005 until the filing of the termination petition in August 2006 is wholly attributable
to respondent’s failure to comply with the transition plan. This clearly constitutes a disruption in
the parent-child relationship, and termination on this ground was proven by clear and
convincing, legally admissible evidence.
E. MCL 712A.19b(3)(j)
Given our conclusion that the grounds for termination pursuant to MCL 712A.19b(3)(d)
were established by clear and convincing evidence, it is not necessary to address the second
ground for termination pursuant to MCL 712A.19b(3)(j). In re Trejo Minors, 462 Mich 341,
360; 612 NW2d 407 (2000). We nonetheless provide analysis as follows.
The trial court also terminated respondent’s parental rights pursuant to MCL
712A.19b(3)(j) because it found that there was a reasonable likelihood that, given respondent’s
conduct or capacity, the child would be harmed if returned to respondent’s home. Respondent
suffers from bipolar disorder, and she testified that, from 1994 until July 2006, she was not
stable. Respondent admitted that she made poor decisions during the time the minor child lived
with Roach, including living with two abusive men whom she knew for very short periods before
beginning to live together. Respondent continued to exhibit poor judgment at the dispositional
hearing, for example, by testifying that she felt it had been appropriate to leave the minor child in
the care of her older children, who were then 8 and 12 years old, while respondent was at work.
Respondent attributed the trampoline incident to poor judgment on the part of her older children,
but not herself for leaving them in charge of the minor child. Respondent also indicated that she
did not believe that her older children had locked the minor child out of the house. Respondent
acknowledged that she might have disappeared between November 2003 until May 2004 and
failed to remember it. She testified that she had been physically and mentally unable to visit the
minor child for the entire four-hour visitation periods that were allowed during part of the limited
guardianship. She answered affirmatively when asked whether a seven-year-old was supposed
to realize that her mother just could not come to visit.
Fringer could not provide an opinion with respect to respondent’s ability to maintain a
household on her own or on her ability to parent. She indicated that, after six additional months
of therapy, respondent could “possibly” care for herself without therapy and could improve
enough to potentially parent. Fringer also testified that respondent had a psychiatric
hospitalization in December 2006, contradicting respondent’s own testimony that she was
hospitalized at Oakland General Hospital for a heart attack and later transferred to the Detroit
Behavioral Institute for three or four days for observation of her heart. Respondent herself
testified that she had been stable since July 2006. Any rational evaluation of the evidence must
take into account respondent’s lengthy history of instability as relevant to her current capacity to
provide proper care for the child. Respondent’s lengthy period of instability, compared to the
recent period of stability reported by herself and Fringer, in combination with her own testimony
indicating a continuing lack of judgment, insight, and empathy for the child, provided sufficient
evidence to support termination pursuant to MCL 712A.19b(3)(j). Thus, despite the extensive
hearsay erroneously received by the trial court, we conclude that the trial court’s decision to
terminate was supported by clear and convincing, legally admissible evidence. MCR
/s/ Kirsten Frank Kelly
/s/ William C. Whitbeck
/s/ Peter D. O’Connell