IN RE HALL/FILBRANDT MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DYLAN TYLER HALL,
BRANDI NICOLE HALL and FELICITY
JASMINE FILBRANDT, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
January 29, 2009
Petitioner-Appellee,
v
No. 285683
Kalkaska Trial Court
Family Division
LC No. 07-003955-NA
KIMBERLEE FILBRANDT,
Respondent-Appellant.
Before: Talbot, P.J., and Bandstra and Gleicher, JJ.
PER CURIAM.
Respondent-mother appeals as of right from a court order terminating her parental rights
under MCL 712A.19b(3)(b)(ii) [the parent who had the opportunity to prevent the physical or
sexual abuse of a child failed to do so and a reasonable likelihood exists that the child will suffer
injury or abuse in the foreseeable future if placed in the parent’s home], and (j) [given the
parent’s conduct or capacity, the children likely would suffer harm if returned to the parent’s
custody].1 We reverse and remand.
I. Basic Facts & Underlying Procedure
These child protective proceedings began after respondent reported to the police that her
husband, Garrett Filbrandt, had sexually abused respondent’s oldest daughter, BH.2 Two days
after respondent contacted the police, petitioner filed a petition seeking termination of
respondent’s parental rights to her three children. The petition also sought to terminate the
parental rights of Filbrandt and Jeffrey Hall, the children’s fathers. Regarding respondent, the
1
The trial court also terminated the parental rights of the fathers of the children, but they are not
parties to this appeal. The term “respondent” thus refers only to respondent-mother.
2
Garrett Filbrandt is the stepfather of two of the involved minors, BH and DH, and the father of
the third, FF.
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petition alleged that: (1) in 1996, she pleaded guilty to stealing or retaining a financial
transaction device, and in 2006 was convicted of uttering and publishing; (2) in 1998, petitioner
opened a protective services case because Hall, the father of the two oldest children, had
physically abused DH; (3) in 2001, petitioner opened a protective services case “due to neglect”
of DH and BH and respondent’s failure to “follow[] through on services for her son [DH] who
reportedly has a mental illness”; and (4) she failed to protect BH from sexual abuse. The facts
detailed in the petition concerning respondent included the following:
On or about 9/17/07 [respondent] went to the police and reported that her
husband Garrett Filbrandt had inappropriately touched her daughter [BH]. She
reported that [BH] had told her three weeks prior that Garrett had touched her
privates. [Respondent] confronted Garrett. She stated that [BH] also confronted
Garrett at which time Garrett said he was sorry and began to cry. [BH] then sat
on his lap and told him she forgave him. Garrett left the home and a short period
later came back and reported he would stop drinking or at least slow down. At
that time [respondent] remained in the home with the children, until 9/17/07 when
she discovered Garrett highly intoxicated again. At this time Garrett and [BH]
were alone again.
On the day that petitioner filed the petition, a referee ordered the children placed in protective
custody.
On October 4, 2007, petitioner filed an amended petition, again seeking termination of
respondent’s parental rights. The amended petition added the additional allegation that “[Garrett
Filbrandt] admitted to touching [BH] two years ago at which time [respondent] also confronted
him. [BH] supported there had been an incident two years ago as well, where Garrett had
touched her privates.” At a preliminary hearing conducted on October 4, 2007, respondent
waived a probable cause determination. A referee determined that “reasonable efforts shall not
be made to preserve and reunify the family because it would be detrimental to the children’s
health and safety.”3 On January 23, 2008, Filbrandt voluntarily relinquished his parental rights
to FF, and subsequently pleaded guilty to fourth-degree criminal sexual conduct. On March 11,
2008, Jeffrey Hall voluntarily relinquished his parental rights.
On March 28, 2008, the trial court conducted an adjudication jury trial regarding
petitioner’s allegations involving respondent. Shortly before the trial commenced, respondent’s
counsel objected to the introduction of hearsay evidence of BH’s statements, which petitioner
intended to offer pursuant to MCR 3.972. Respondent argued that the trial court’s failure to hold
a hearing regarding the trustworthiness of the statements, as required by MCR 3.972(C)(2)(a),
prohibited the admission of this evidence. The trial court then conducted a brief “tender years”
hearing, at which Barbara Cross, a therapist at the Maple Clinic, provided testimony. Cross
described her experience conducting forensic interviews with children, and explained that she
had forensically interviewed BH on October 10, 2007. According to Cross, BH stated that “on
multiple occasions” Filbrandt had entered her room at night and fondled her. Cross continued,
3
The parties did not order a transcript of these proceedings.
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“She told me she told her mother each and every time it happened.” At the request of the
prosecuting attorney, the trial court qualified Cross as an expert witness. The trial court ruled
that it would admit Cross’s testimony concerning BH’s statements, explaining, “And I’m
satisfied based on Barb Cross’ interview with [BH] that the circumstances surrounding that
interview and the giving of those statements by [BH] that there was an adequate indicia of
trustworthiness about that whole interview.”
Kalkaska police officer Brian Peacock testified that on the day respondent first reported
the sexual abuse, he met with BH and received her written statement.4 According to Peacock,
BH described only one episode of sexual abuse, which occurred “three weeks prior.”
Respondent told Peacock that BH “had advised her that her stepfather Garrett had touched her
inappropriately in her private area in the bedroom of their residence approximately three weeks
prior,” and that respondent had confronted Filbrandt and “demanded to know what [the] hell he
was doing.” Peacock recalled respondent reporting that she had left the household the night she
reported the abuse. Scott Griffith, a Kalkaska County deputy sheriff, interviewed BH the day
after respondent’s report of the sexual abuse. Griffith described that BH related another incident
involving “inappropriate touching” that had occurred “in Cedar a couple years ago.”
The prosecutor then presented Cross’s testimony. Cross described the method she
utilized to conduct forensic interviews, and over respondent’s objection, the trial court again
qualified Cross as an expert witness. Cross explained that during her interview with BH, BH
told her that Filbrandt had “touched her multiple times over the years.” According to Cross, the
typical scenario described by BH involved Filbrandt’s entry into her bedroom at night, followed
by him lying on her bed with her and fondling her “private parts.” Cross averred that BH
described that “on one occasion—at least one occasion, he took her hand and had her fondle
him.”
With respect to respondent, Cross recounted that BH “told her mother about being
touched.” According to Cross, BH reported that “at least two years ago she first told her mother
when they lived in Cedar.” Cross continued, “She told me that she told her mother every time
that he did something. ‘Daddy’s touching me.’” In response to questioning by the prosecutor,
Cross volunteered additional information regarding BH’s disclosures, including, “Garrett’s got
an alcohol problem, and they all feel sorry for Garrett because he’s got an alcohol problem. And
that he has cried and begged her for forgiveness and that kind of thing.” Cross revealed that BH
had expressed, “It’s my fault” that Filbrandt had to leave the house, and that BH “felt sorry for
him.”
Under cross-examination by respondent’s counsel, Cross admitted that her written report
of the interview reflected that BH “reportedly told her mother about [the abuse] on several
occasions.” When asked “how many times is ‘several’ to you,” Cross responded, “More than
twice.” The court-appointed guardian ad litem then questioned Cross with respect to BH’s
statements about her younger sister, FF. Respondent’s counsel objected on relevancy grounds,
4
BH was nine-years-old when respondent reported the abuse. BH’s statement to the police is
not contained in the record.
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but the trial court allowed the questioning because FF “is part of the petition.” Cross read aloud
from her report as follows:
[BH] shared a bedroom with her sister [FF] on Dresden Street and has
asked if someone could talk to [FF], because, “He might have touched her, too.”
When asked to explain why she suspected this, she told me, after he would touch
her—meaning BH—she heard him going to FF’s bed and hearing the bed move.
This needs further exploration to determine if FF has become a victim, as well.5
The guardian ad litem elicited further testimony from Cross regarding respondent:
Cross: BH has told me several different stories about her mother
confronting him, about prior—just prior to this disclosure, the mother seeing that
he was intoxicated, highly intoxicated with the neighbor next door, who
apparently was a heavy drinker. And that Mrs. Filbrandt, apparently, rounded the
kids up late at night one night because she feared he would molest her again
because he was so drunk. And they went to a friend’s house, a friend of the
mother’s house, who persuaded the mother to go to law enforcement.
Guardian ad Litem: And prior to that night, did she indicate whether or
not Ms. Filbrandt had taken any affirmative actions to ensure that that wouldn’t
happen prior to that particular night? Did she do anything to—did BH indicate to
you that on prior occasions regarding alcoholism and Mr. Filbrandt—did she ever
indicate to you that she had done anything else to protect them from some kind of
harm?
Cross: Actually, BH told me that her mother told her on one occasion—
and I don’t know where this occurred, what location—the mother told her
allegedly, “If he does that one more time, he’s just going to have to go.” Now,
this is over a two-year, at least, period of time that this child experienced some
acts of molestation because he did not leave.
The other thing BH has shared is that mom—“Mom kept Garrett around
for one reason, because she couldn’t handle DH.” And Garrett apparently could
handle DH, the older son, who’s got multiple behavior problems.
Respondent testified that two years before making the police report, BH told her, “‘I
don’t know if I was dreaming last night or not, … but I think daddy came in my bedroom and
was trying to touch my privates, but he might have been trying to see if my pull-up was wet.’”
During this same conversation, BH also stated that she recalled respondent “tickling [her] feet”
while Filbrandt was in her room. Respondent recalled that she denied having tickled BH’s feet,
and BH then stated, “‘Then I think I was dreaming.’” Respondent recounted that she
5
A psychologist who later interviewed FF testified at the dispositional hearing that FF adamantly
denied having been inappropriately touched by Filbrandt, and no evidence other than Cross’s
speculation at the adjudication trial supported that Filbrandt had assaulted FF.
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nevertheless confronted Filbrandt and “made him leave.” Filbrandt worked as a truck driver, and
spent months at a time on the road, but returned to the home “every couple months.”
Respondent denied that BH reported any other sexual abuse by Filbrandt before the incident that
triggered respondent’s revelation to the police, and claimed no knowledge of other incidents of
Filbrandt’s abuse.6 Respondent added that Filbrandt had been incarcerated, and she had served
him with a complaint for divorce.
The jury found that the trial court had jurisdiction over all three minor children, and the
court entered an order of adjudication. On May 15, 2008, the court conducted a dispositional
hearing. Dr. Wayne Simmons, a licensed psychologist, testified regarding his evaluations of the
three involved children. According to Simmons, DH, age 12, had been physically abused by
Hall, his biological father, and “exposed to a high level of violence … inappropriate television
and video kinds of things, terrifying movies and very exaggerated aggressive video games.”
While living with respondent, DH attended a special school for children with behavioral
problems, participated in counseling, and regularly took several medications, including Adderall,
Lithium, Lamictal and Seroquel. Simmons described as “remarkable” that DH “knew the
dosages” of his medications, and opined that when the child lived with respondent, “he had a
surprising and probably most would say an inappropriate level of control of himself” manifested
by the child’s assumption of responsibility for administering his own medications. In foster care,
DH exhibited an explosive temper and a preoccupation with sexual themes. Simmons explained
that DH had “been exposed to a lot of aggression, and now this knowledge that his sister’s been
victimized. And I think that he’s just flooded by more than he can handle.” Simmons
recommended that the child enter a hospital for medication adjustments, then placed in a
residential treatment facility.7
Simmons expressed “very, very guarded optimism, at best,” that DH’s problems could be
rectified through counseling “in the home environment.” On cross-examination Simmons
conceded that because he had never evaluated respondent, “I don’t have any way to know
whether that can be remedied or not.” Simmons admitted that DH felt “very close to his mother”
and expressed sadness being away from her.
Simmons described BH as “a charming girl, concerned about her weight,” who “certainly
indicated that she had an attachment to her mother . . . .” BH presented as “very depressed,” and
also expressed that she wanted to return home and live with her mother. Simmons recommended
6
Paula Lipinski, a protective services worker, testified that she filed the petition based on the
police report, and had not interviewed respondent or BH.
7
Respondent introduced as an exhibit a Child Protective Services report dated July 24, 1998,
reflecting respondent’s report that Hall “is abusive and mean to their children,” and had struck
the children. The report states, “This worker viewed both children and they appeared to be
healthy and well cared for. Also, their [sic] was plenty of food and diapers in the home. Further,
the home had a healthy and safe environment for young children. [Respondent] seems to be the
main caretaker for her children and she makes sure that they get everything that they need.” A
second report, dated August 21, 1998, indicates that respondent had “moved up north with her
children to get away from their father Mr. Hall,” and that the case had been closed “because
there is no longer nay need for P.S. involvement.”
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that BH continue in therapy with Cross. Simmons characterized FF as “just overwhelmed” by
the changes in her life, and that she had profoundly disrupted her foster care placement.
According to Simmons’s report, FF missed her parents “and is having a hard time processing and
containing discouragement she had about having moved away from them.” He described that FF
“is very, very provocative because she’s mad. And she’s had a massive loss. She knows that her
father did—her understanding is her father did something that he shouldn’t have. And you
know, she’s been removed from her home and is in an environment that’s foreign to her.”
Simmons admitted that he had never interviewed respondent, and had “no idea” whether
“what happened with the children [could] be rectified” within the foreseeable future. Simmons
stated, “What I can say is what I have said and that is that the kids are profoundly disrupted, and
it raised great concern. But I wouldn’t say—I don’t have any way to know whether that can be
remedied on her part or not.”
Petitioner’s second witness, Cross, also admitted that she had not assessed or evaluated
respondent, but opined that a “poor prognosis” existed regarding respondent’s capacity to
remedy her past deficiencies. According to Cross, respondent failed to intervene with respect to
the sexual abuse and her husband’s alcoholism, which made it unlikely that her parenting ability
would improve:
Defense Counsel: And you have no idea of the capacity of Ms. Filbrandt
to prevent this from happening again or to allow it to happen again?
Cross: Well, I don’t know her, number one. Haven’t assessed her or
evaluated her. But, based on her past history and lack of doing anything, I have
no reason to believe she wouldn’t do that in the future. We have a duel [sic]
problem in this family that she didn’t take care of. And that’s the sexual abuse
and the alcoholism.
Petitioner presented no additional evidence regarding the statutory grounds for termination of
respondent’s parental rights.8
Three witnesses testified on respondent’s behalf before she offered her own testimony.9
Respondent claimed that BH had reported two episodes of abuse, one in Cedar and the event that
led to the police report. Respondent repeated that the first time BH told her about being touched
by Filbrandt, BH also volunteered that she may have been dreaming, and for that reason
respondent had not reported the abuse allegation. Respondent claimed that she had confronted
Filbrandt, and that he ceased living with her and the children for approximately a year.
Respondent also described a class that she had taken at the Maple Clinic taught by Holly
Blomquist, a psychotherapist, regarding “teaching kids to keep themselves safe.” Respondent’s
counsel then attempted to introduce a letter written by Blomquist regarding her “knowledge” of
8
The children’s foster mother testified that she and her husband did not believe that their home
would serve as the children’s permanent placement.
9
The three witnesses consisted of the children’s preschool teacher and two family friends.
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respondent. The prosecutor objected to the introduction of the letter “if this is being offered as
some sort of expert or clinical opinion.” Respondent’s counsel replied, “It’s not an expert
opinion. … This is somebody … that knows [respondent]. She works at Maple Clinic. She’s a
friend of [respondent]. And it’s talking about, I guess, her involvement with her. But . . . there’s
no expert opinion in this.” The trial court refused to admit the letter, explaining that “the witness
needs to be available, I guess, to question on something like this . . . .” Respondent then
subpoenaed Blomquist.
In response to questioning by respondent’s counsel, Blomquist testified that she worked
as a licensed clinical social worker and psychotherapist for the Maple Clinic. Blomquist met
respondent six years earlier at a “playgroup” in Kalkaska, and considered respondent “a friend.”
Blomquist described, “There’s a number of parents there, and [respondent] was one of the
primary parents I would choose to spend time with at those playgroups because of—you know, I
thought a lot of her as a parent.” The questioning continued, in relevant part as follows:
Q. And do you think that there’s anything where she would not be
capable of—anything about her that would make her incapable of taking care of
these children?
A. In my experience with her, I do not have evidence to say she can’t take
care of her children.
Q. And if the Court were to determine that there was a number of things
that they wanted [respondent] to do, do you believe that she would do whatever
was necessary to have the children back home and to have them safe?
A. My personal opinion is that she would work very hard towards that.
During cross-examination by the prosecutor, Blomquist repeated that she offered her personal
opinions as respondent’s “friend,” and not as a “professional,” and emphasized that she had
“worked hard to stay clear of [respondent’s] involvement with the Maple Clinic and DHS.” On
recross-examination, Blomquist again stated, “I don’t feel I’m here as a professional today. I
feel I’m here as a friend.”
At the conclusion of Blomquist’s testimony, the trial court engaged in the following
colloquy with her:
The Court: I don’t know. I guess I’m just kind of trying to understand
how do you separate the two. I mean, you’re here as a friend, but . . . I mean—
you testify—you’ve testified in other cases, you know, as an expert. I don’t know
how you separate the two. I don’t know.
Blomquist: I have really—
The Court: You’re trying to say you’re just friend, but yet you’re basing
your opinion on your qualifications, your experience and everything else, so.
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Blomquist: There’s professional (Inaudible) I would say come into play in
being her friend in this specific issue.
The Court: Okay. But don’t you have a problem—
Blomquist: But I’ve worked really hard to stay out—
The Court: —doing this? I mean coming to court to get on the stand—
Blomquist: I have a real problem with being here today.
The Court: —and testify?
Blomquist: I have a real problem today being here contradicting, you
know, Barb’s beliefs in this case. But I’ve had a very positive relationship with
Kimberlee, and I’ve been involved in many cases where children have been
returned to the home for much more serious situations. And I’m not minimizing
what’s taken place in this case, but I really think that Kimberlee should have the
opportunity to have her children returned.
The Court: Okay. But we’re talking about specifically—I don’t know
what you’re referencing in terms of kids being returned on less serious issues.
This is a criminal sexual conduct area where you have experience in that area.
Blomquist: I’m saying very serious issues where kids are going home to
mom because mom wasn’t the offender. And this is the case where mom wasn’t
the offender. And she’s, you know, in this situation that the possibility of not
having her kids returned. I’m not able to make sense of that as a professional,
where there’s so many other cases that are so serious in nature, and the kids go
right home to mom.
The Court: Okay. You don’t see a problems with this one, where she
kicks him out, you know, the first time it happens, and then . . . kicks him out of
the house. Then takes him back, so she—you know, it’s kind of—the evidence
suggests to me she’ll say one thing and do quite another. So what’s to guarantee
she’s going to protect these kids? You’re trying to tell me, I mean, standing
here—sitting here on the stand as a friend of hers that she’s going to do—she’s
going to protect those children when she’s got a track record of not doing that.
Blomquist: And that’s what I’m saying I haven’t been involved with her
professionally to give, you know, a professional opinion on that. But, as a friend,
I have seen her protect her children. I have seen her deal with behavioral issues.
I have seen her how distraught she’s been in working towards—what can I do to
make sure my kids are safe in the future. Obviously, I didn’t handle this right
before. I have to make sure that doesn’t happen again. And she’s showing me
that sincerity that suggests that she would follow through on this.
The Court: Well—
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Blomquist: But again, that’s outside the professional setting.
The Court: But I don’t know how you can separate the two. I mean, it
almost calls into question your credibility as it relates to even other cases where
you come to Court. I mean, I don’t know. I mean, it doesn’t seem like you
should be here or even get involved in a situation.
Blomquist: I’ve worked really hard to stay out of it for specifically that
reason. And I was subpoenaed to be here, so I didn’t have a choice.
The Court: Okay.
Blomquist: I have—
The Court: Well, I mean, you wrote the letter. I mean, that’s – this is
being offered to us today, you know, as – on behalf of the mother’s side of the
case.
Respondent’s counsel: Your Honor—
The Court: It just seems to me that you shouldn’t even be getting involved
in a situation like this.
Respondent’s counsel: I think the reason the letter was written was at my
request. So I believe I’m responsible. She had a very difficult time being here
today.
The Court: Right.
Respondent’s counsel: And I said that, well, in lieu of the subpoena,
perhaps you can write a letter.
The Court: Okay. I mean, but you know—I mean, you know. She’s
appeared and testified as an expert on other cases. I mean, just handing this in
without even the opportunity to cross-examine her on this is rather inappropriate.
I mean, just to hand that to me or to the other attorneys and just say here you go is
just not the way we do things. And you know that.
So I mean, . . . I don’t know what to make of this. You know, and the
thing that concerns me is that it kind of calls into question your ability to assess
other situations, too, where I need to be able to rely on that testimony as being,
you know, accurate and credible. And I’m just kind of wondering about—I mean,
it raises issues of credibility now I think for you even in not only this case, but
other cases as well.
Respondent’s testimony subsequently concluded with her admission that she had
“handled both situation[s]” involving BH’s reports “in the wrong way,” and her request for a
second chance with her children.
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The trial court then entertained argument from counsel. The guardian ad litem began as
follows:
Guardian ad litem: Judge, you know, Ms. Blomquist, qualified or not,
she’s an expert witness. And she’s been qualified as an expert in this Court
numerous times. And she pretty much vouched for Ms. Filbrandt, even if that
wasn’t her role today. And she has had personal experiences with Ms. Filbrandt.
And, although I hold in high esteem the opinion of Ms. Cross, we now have two
people who have been previously qualified as experts who don’t agree. Ms.
Blomquist specifically said that she thinks that the children should be returned
home. That’s a problem as it relates to the evidentiary standard.
The Court: You don’t think her judgment is clouded?
Guardian ad litem: You’re the arbitrator of—
The Court: Unbiased? She’s giving me an unbiased opinion?
Guardian ad litem: I am only saying that she has been qualified as an
expert witness.
The Court: Well, she told us that she wasn’t here in that professional
capacity today. So . . . I don’t know how she separates the two, but I mean, I
don’t know how you can—I—you know, her opinion is just—is not real credible
here, you know, because she is—it seems like her view of things is just clouded.
It’s not . . . an accurate assessment of what’s going on. You’ve got the other
therapists who are totally unbiased and you’re trying to advocate to me that her
position—I should accept her position in what she’s telling this Court when she’s
totally biased and her opinion is—she doesn’t have all of the facts. And I should
accept that over somebody else? Is that what you’re suggesting?
Guardian ad litem: Judge, what I am saying is, is there were multiple
professionals who testified. And you are the final arbitrator of who is credible
and who is not. I can only say that what was said was said. You make the
ultimate decision.
Ms. Cross said that she didn’t think that, you know, the children should be
returned home. She said that she pretty much thought there’d be a danger if they
were returned home.
Ms. Blomquist didn’t quite see it that way.
Mr. Simmons said that, you know, he didn’t have too much involvement
with her, but, perhaps, if he did some kind of psychological evaluation, maybe
that would give him some kind of insight.
Ms. Filbrandt testified that, you know, if given an opportunity, perhaps,
it’s something that she could work on. She went to the classes.
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The children had indicated through testimony that they want to be returned
home, that they all want to go home.
I just—I mean, Judge, you’re the arbitrator of who’s credible and not. She
said what she said, and she’s been qualified as an expert. And I can honestly say
that I don’t always agree with Ms. Blomquist and Ms. Cross, but I’ve never found
either one of them to be unfair or unreasonable. I’ve never questioned their
credibility. I might not agree with their opinion, but I’ve never said, you know,
Ms. Blomquist is unfair. I’ve never said Ms. Cross is unfair. It’s quite the
contrary.
And I . . . understand that you’re saying. But, as an attorney, I still have
an ethical obligation, even if one of my clients is a friend, I wouldn’t lie for them
simply because they’re my friend. And I would assume that she has the same
ethical obligation. I just think that’s problematic, Judge, that’s all.
The Court: Okay. So you’re leaving it up to me, is that what you’re
telling me?
Guardian ad litem: I take no position.
The trial court commenced its bench ruling as follows:
Okay. Well, you know, it’s obvious to me in this case, I mean, that Dr.
Simmons and Dr.—or Dr. Simmons’ testimony and Barbara Cross’ testimony is
going to carry more weight here.
I mean, Holly Blomquist, you know, is a friend only. And she’s appearing
as a friend to testify. I think there’s a huge conflict in interest in here, and this is
probably something she shouldn’t even have gotten herself in the middle of,
because she’s not had any involvement with this family. I think it only raises
concerns in the future regarding her testimony on other cases because, as Mr.
Metzger said, I mean, anything in the system we have some involvement with
somebody that’s a friend or, you know, anything I have, you know, a situation
that involve people that work underneath me, I mean, I disqualify myself, because
just even for the appearance of impropriety or because of the fact that they—we
work together. You know, and it just seems to me that, as a therapist, I mean, that
she would not have been making or rendering any opinion. I mean, I understand
that she’s a friend to the mother here and she’s advocating for a friend. But
clearly, I mean, her opinion is not unbiased here. I mean, I—and the credibility of
that opinion is questionable at best, I mean in light of the other testimony that I’ve
heard.
The trial court then reviewed the testimony of Dr. Simmons, and noted his opinion “that there
was evidence of mental harm to these children. And that is a direct result of their being in the
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care of their mother. . . . And he said that several different times. I mean, clearly, mother’s
environment contributed—has contributed to their disorganized state.”10 According to the trial
court, Simmons expressed “guarded optimism at best” regarding whether the children could
return to respondent’s home. The trial court concluded that based on Simmons’s testimony, “to
return them back to that environment would clearly not be in their best interest.”
The trial court then addressed Cross’s testimony, recalling that Cross “had indicated that
there was an open discussion in this family—it was an open issue about the sexual abuse, about
the alcoholism. The abuse was known for at least two-and-a half years, and the mother did not . .
. protect BH. There’s no guarantee that she would protect the kids in the future.” The trial court
summarized the facts underlying its decision as follows:
The abuse was known, and the mother basically acknowledged that she
knew that he—that the father, Mr. Filbrandt, had done something wrong, and that
he had abused [BH] and kicked him out of the house. And then took him back a
couple of years later. And then when the abuse occurred again, she didn’t report
it right away to the police and only waited until he started drinking again, and
then decided to report it.
I think, you know, based on all of those facts, there’s [sic] some real
serious questions whether or not she would do the right thing and would protect
these children in the future if given another chance. I mean, she’s already been
given that chance to protect the children. And the children need her to be the
parent, not the other way around. I mean, it’s her responsibility to make sure that
the children are safe and protected.
The trial court opined that after learning of the abuse, respondent should not have allowed
Filbrandt to return, and should not have delayed making a police report. According to the trial
court, “evidence of abuse as to one child also is evidence of abuse to the other children, too.”
The trial court determined that Simmons’s testimony indicated that “all [the children’s] issues
are directly related form the environment that they came from. And that environment, mother’s
environment had contributed to their disorganized state[.] And that there’s evidence of mental
harm that has been done to the children from being in her care and custody.”
The trial court concluded that one or more of the allegations in the petition was true, and
that a reasonable likelihood existed that the children would suffer injury or abuse in the future if
placed in respondent’s home.
Clearly, this case is just so absolutely clear to me, I think, from the history
of it, because the mother failed to do the right thing, you know, when she first
found out about the abuse, and then let the perpetrator back in, and then failed to
report again when she found out about it and delayed reporting again for another
three weeks.
10
As discussed infra, Simmons did not express any opinions that the children’s emotional
problems were caused by respondent.
-12-
And given the previous history of the physical abuse with Mr. Hall, I
mean there’s a reasonable likelihood that these children would suffer from injury
or abuse in the foreseeable future if placed back in her home. I have no guarantee
that she’s going to do the right thing in the future to protect these children and
keep them safe.
III. MCR 3.972(C)(2)
Respondent first contends that the trial court erred by admitting Cross’s testimony at the
adjudication trial because it did not conduct before the trial the hearing required by MCR
3.972(C)(2)(a). In a child protective proceeding, MCR 3.972(C)(2) governs the admission of a
child’s hearsay statement during an adjudication trial. The court rule provides:
(2)
Any statement made by a child under 10 years of age or an
incapacitated individual under 18 years of age with a developmental disability as
defined in MCL 330.1100a(21) regarding an act of child abuse, child neglect,
sexual abuse, or sexual exploitation, as defined in MCL 722.622 (f), (j), (w), or
(x), performed with or on the child by another person may be admitted into
evidence through the testimony of a person who heard the child make the
statement as provided in this subrule.
(a)
A statement describing such conduct may be admitted regardless
of whether the child is available to testify or not, and is substantive evidence of
the act or omission if the court has found, in a hearing held before trial, that the
circumstances surrounding the giving of the statement provide adequate indicia of
trustworthiness. This statement may be received by the court in lieu of or in
addition to the child’s testimony.
Contrary to respondent’s argument, the record reflects that the trial court conducted a
hearing before the trial commenced, and concluded that the circumstances surrounding BH’s
statements to Cross provided adequate indicia of trustworthiness. Nevertheless, Cross’s trial
testimony clearly exceeded the scope of MCR 3.972(2). We review de novo issues “concerning
family court procedure under the court rules.” In re CR, 250 Mich App 185, 200; 646 NW2d
506 (2002).
The trial court properly admitted Cross’s testimony regarding BH’s descriptions of
Filbrandt’s inappropriate touching, and BH’s statement that “she told her mother every time that
he did something.” But Cross also testified regarding BH’s statements that (1) “she feels like
this is her fault,” (2) Filbrandt “might have touched” FF, and (3) “she heard him going to FF’s
bed and [heard] the bed move.” These hearsay statements do not qualify as descriptions of an act
of abuse or neglect “performed with or on the child by another person,” as required under the
plain language of MCR 3.972(C)(2). However, we find this error harmless because a
preponderance of the evidence established adequate grounds for the court’s assumption of
jurisdiction, and respondent subsequently acknowledged the propriety of jurisdiction under the
circumstances presented in this case.
-13-
IV. Sufficiency of the Evidence Regarding Statutory Bases for Termination
Respondent next asserts that petitioner failed to present clear and convincing evidence
supporting the termination of her parental rights. Specifically, respondent contends that
inadequate evidence supported the trial court’s determinations that (1) “there is a reasonable
likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the
parent’s home,” MCL 712A.19b(3)(b)(ii), and (2) there exists “a reasonable likelihood, based on
the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned
to the home of the parent,” MCL 712A.19b(3)(j).
The Michigan Court Rules provide that the trial court “shall” order termination of a
respondent’s parental rights at the initial dispositional hearing, and that additional efforts for
reunification not be made, if:
(1)
termination;
the original, or amended, petition contains a request for
(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. [MCR 3.977(E)(3)].
MCR 3.977(G)(2) provides in pertinent part that “[a]t the hearing all relevant and material
evidence, including oral and written reports, may be received by the court and may be relied
upon to the extent of its probative value.”
As already noted, we consider de novo issues “concerning family court procedure under
the court rules.” In re CR, supra at 200. We review for clear error the trial court’s decision to
terminate parental rights. MCR 3.977(J). The clear error standard controls our review of “both
the court’s decision that a ground for termination has been proven by clear and convincing
evidence and, where appropriate, the court’s decision regarding the child’s best interest.” In re
Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). A decision qualifies as clearly erroneous
when, “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, 468 Mich 202,
-14-
209-210; 661 NW2d 216 (2003). Clear error signifies a decision that strikes us as more than just
maybe or probably wrong. In re Trejo, supra at 356.
The proof supporting a court’s termination decision must qualify at least as clear and
convincing. Santosky v Kramer, 455 US 745, 768-770; 102 S Ct 1388; 71 L Ed 2d 599 (1982).
The clear and convincing evidence standard is “the most demanding standard applied in civil
cases[.]” In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). Our Supreme Court has
described clear and convincing evidence as proof that
produces in the mind of the trier of fact a firm belief or
of the allegations sought to be established, evidence so
and convincing as to enable the factfinder to come to a
hesitancy, of the truth of the precise facts in issue.
omitted, alteration in original).]
conviction as to the truth
clear, direct and weighty
clear conviction, without
[Id. (internal quotation
The trial court terminated respondent’s parental rights after finding that the evidence
supported termination under two statutory grounds: subsections 19b(3)(b)(ii) and (j). The plain
language of both grounds requires a finding that “there is a reasonable likelihood” that the
involved children will suffer harm or injury or abuse if returned to the parent’s home.11 In the
trial court’s estimation, Cross and Simmons supplied the evidence supporting that respondent
would likely fail to protect her children if they were returned to her. The trial court viewed their
testimony as substantiating “evidence of mental harm that has been done to the children from
being in her care and custody.” Regarding the likelihood of future harm, the court observed that
respondent had failed to protect BH, allowed Filbrandt back into the home after becoming aware
of the abuse, and “given the previous history of the physical abuse with Mr. Hall, I mean there’s
a reasonable likelihood that these children would suffer from injury or abuse in the foreseeable
future if placed back in her home.”
Our careful review of the record in this case leads us to conclude that the trial court
clearly erred in finding clear and convincing evidence that the involved children would likely
suffer harm if returned to respondent’s care. Neither Cross nor Simmons had ever met or
evaluated respondent, as both freely admitted. Contrary to the trial court’s expressed factual
findings, Simmons simply offered no testimony directly linking respondent’s behavior to any
mental health problems evident in the children. Simmons emphasized that his opinions
regarding respondent had no basis in first-hand observations, but rested on speculation. For
example, with respect to whether family counseling qualified as an option, Simmons stated,
“Well, I don’t know about that. I mean, I wouldn’t necessarily say family counseling, because
what’s being implied—and I have to say over and over I don’t know whether this is so or not—
but what’s being implied is deficits on the part of the mother, not conflict between the mother
and the kids.” (Emphasis supplied). When asked directly whether he believed “because of the
way the kids are acting that she might have not been parenting properly,” Simmons responded,
11
MCL 712A.19b(3)(b)(ii) also includes the requirement that the injury or abuse is likely to
occur “in the foreseeable future.”
-15-
I don’t think that that’s an unreasonable assumption to come to unless
there’s some other variable that has not been able to be brought out in terms of
what would have an effect on them. But, as I said, that doesn’t provide an
ultimate answer. … She needs to be assessed by me or somebody to try to make a
determination about where she’s at and what her potential is, if she needs to
change. … And I think it’s appropriate that she be evaluated, try and help
understand that.
Cross evaluated only BH, and also admitted that she lacked first-hand knowledge of respondent’s
capacity to prevent future harm to the children. The strongest statement Cross offered on this
subject was, “[B]ased on her past history and lack of doing anything, I have no reason to believe
she wouldn’t do that in the future.”
Although this testimony raises legitimate concerns regarding respondent’s ability to
parent, it does not constitute clear and convincing evidence that the children would likely suffer
harm or abuse if returned to her care, particularly in light of the fact that she had divorced
Filbrandt. Furthermore, the trial court’s statement that “evidence of abuse as to one child also is
evidence of abuse as to the other children, too,” misstates the law that governed the court’s
evidentiary review. “How a parent treats one child is certainly probative of how that parent may
treat other children.” In re LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973) (emphasis
supplied). However, such evidence is not “conclusive or automatically determinative.” In re
Kantola, 139 Mich App 23, 28; 361 NW2d 20 (1984). Therefore, the trial court clearly erred by
concluding that respondent’s failure to protect BH conclusively evidenced her neglect of the
other children.
We further observe that the trial court’s decision to entirely disregard Blomquist’s
testimony also amounts to clear error. The trial court erroneously concluded that because
Blomquist worked as a professional, she lacked competency as a witness. In fact, Blomquist
supplied the only first-hand testimony offered during the proceedings concerning respondent’s
parenting abilities. Notwithstanding her Maple Clinic employment, Blomquist repeatedly
emphasized that she was appearing only in her capacity as respondent’s friend, and someone
who had observed respondent interact with her children over the course of six years.
Blomquist’s observations of respondent and her children qualified as relevant, material, and
competent evidence regarding respondent’s capacity to parent. The trial court rejected
Blomquist’s testimony, stating, “[I]t’s not an accurate assessment of what’s going on,” and
further observing, “[Blomquist’s] not had any involvement with this family.” But the evidence
indisputably establishes that Blomquist did have involvement with the family. Given that the
trial court lacked any other nonspeculative evidence of respondent’s capacity to parent,
Blomquist’s testimony constituted an assessment that the trial court should have considered
along with all of the other legally admissible evidence presented during the proceedings.
We additionally express concern regarding several statements made by the trial court
during the dispositional hearing. At the close of petitioner’s proofs, respondent’s counsel argued
that the prosecutor had failed to present any evidence that the involved children would suffer
injury or abuse in the foreseeable future if placed in respondent’s home. In rejecting this
argument, the trial court opined that the 2-1/2 year period that elapsed after BH’s first report of
abuse “in and of itself is going to be enough to say that there’s a factual basis to find that there’s
-16-
a reasonable likelihood that the children … could suffer from abuse in the future.” The trial
court continued,
But I’ve been listening to everything and I guess I disagree with you.
You’re trying to suggest that there isn’t any evidence upon which the Court can
make those findings based on the facts of this particular case. And, if there’s any
case that could be more clear than this one, I don’t know what it would be,
because, whenever you have sexual abuse and it goes unreported for a number of
years, you know, that’s pretty clear that there’s a reasonable likelihood that the
children could suffer from abuse again in the future if that happens again.
The trial court also expressed strong opinions in rejecting Blomquist’s testimony, including that
“it doesn’t seem like you should be here or even get involved in a situation,” and “I’m just kind
of wondering about—I mean, it raises issues of credibility now I think for you even in not only
this case, but other cases as well.” The trial court articulated these perceptions before respondent
completed her proofs, and before hearing the arguments of counsel. When the guardian ad litem
expressed serious reservations about terminating respondent’s parental rights in the absence of
more information regarding respondent’s capacity to keep her children safe in the future, the trial
court reiterated an unwillingness to consider Blomquist’s testimony. The trial court’s comments
reflect a lack of interest in considering evidence that conflicted with the court’s preconceived
conclusions. “[A] fair trial in a fair tribunal is a basic requirement of due process.” Cain v Dep’t
of Corrections, 451 Mich 470, 499; 548 NW2d 210 (1996), quoting Withrow v Larkin, 421 US
35, 46; 95 S Ct 1456; 43 L Ed2d 712 (1975). Because the trial court’s comments demonstrate
that it lacks the ability to impartially evaluate respondent’s evidence, this case shall be assigned
to a different judge on remand to preserve the appearance of judicial impartiality.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael J. Talbot
/s/ Richard A. Bandstra
/s/ Elizabeth L. Gleicher
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