IN RE ADAMS/CRIGLER MINORS (Per Curiam Opinion)
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STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED December 13, 2012 In the Matter of ADAMS/CRIGLER Minors. Nos. 308982; 308983 Wayne Circuit Court Family Division LC No. 98-368951-NA Before: SAAD, P.J., and K. F. KELLY and M. J. KELLY, JJ. PER CURIAM. In these consolidated appeals, respondent-mother appeals by right in Docket No. 308982, and respondent-father appeals by right in Docket No. 308983, the trial court s order terminating their parental rights to their 12 children at the initial dispositional hearing. The court terminated respondent-mother s parental rights under MCL 712A.19b(3)(b)(ii), (g), and (j), and terminated respondent-father s parental rights under MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(iii). Because we conclude that there were no errors warranting relief in either docket, we affirm in both. The family has a long history with Child Protective Services dating to 1998. The children were removed for a six-month period from November 2010 to May 2011. Shortly after they were returned, the Department filed a new petition for removal after AC reported being physically abused by respondent-father as punishment for talking to investigators. Thereafter, other children began disclosing physical and sexual abuse in the home. Petitioner requested that respondents parental rights be terminated at the initial dispositional hearing. The trial court held a jury trial and the jury found that a statutory basis existed for the court to exercise jurisdiction over the children. The court thereafter conducted a dispositional hearing, following which it terminated respondents parental rights to the children. I. DOCKET NO. 308982 A. LAWYER MISCONDUCT Respondent-mother first argues that petitioner s lawyer engaged in misconduct warranting a new trial. Because she did not object to the misconduct, her claims of error are unpreserved. In appeals involving the termination of parental rights, we review unpreserved issues for plain error. In re HRC, 286 Mich App 444, 450; 781 NW2d 105 (2009). -1- This Court may grant a new trial on the basis of a lawyer s misconduct at trial. See Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102-103; 330 NW2d 638 (1982). This Court will order a new trial where the misconduct may have caused the result or played too large a part and may have denied a party a fair trial. Id. However, a lawyer s improper comments at trial will normally not warrant a new trial: An attorney s comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Reversal is required only where the prejudicial statements of an attorney reflect a studied purpose to inflame or prejudice a jury or deflect the jury s attention from the issues involved. [Hunt v Freeman, 217 Mich App 92, 95; 550 NW2d 817 (1996) (citations omitted).] Respondent-mother argues that it was improper for petitioner s lawyer to tell the jury in her opening statement that it was her role to protect children from abuse and neglect. Respondent-mother also contends that petitioner s lawyer improperly vouched for a witness and the strength of her case and improperly stated that AC had been sexually abused by both parents, even though there was no evidence that respondent-mother sexually abused the child. In criminal matters, a prosecutor may not vouch for the credibility of his witnesses by suggesting that he has some special knowledge of the witnesses truthfulness. People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995). He may, however, argue from the facts that a witness should be believed. People v McGhee, 268 Mich App 600, 630; 709 NW2d 595 (2005). Petitioner s lawyer did not suggest that she had special knowledge or was aware of facts that would not be presented to the jury regarding the credibility of her witnesses or the strength of her case. Although she stated that it was her role to protect children, she also made it clear that it was her job . . . to present to you evidence that supports the Department s position. Thus, she clarified that the jury was to make its decision on the basis of the evidence and not on out of an appeal to civic duty. See Bahoda, 448 Mich at 282-283. Similarly, the comment about AC having a difficult life was made in the context of explaining that the evidence would show that AC had been subjected to years of physical and sexual abuse. Moreover, although petitioner s lawyer did mistakenly state that AC had suffered from years of having sex with her parents, which erroneously suggested that respondent-mother participated in the sexual abuse, she immediately corrected her reference by stating or with her father and siblings. This correction mitigated any prejudice that she might have caused by her misstatement. Respondent-mother also argues that petitioner s lawyer improperly elicited testimony that disparaged respondents witnesses in order to bolster the credibility of her own witnesses. Contrary to what respondent-mother argues, the exchange in question did not involve improper vouching. Vouching generally involves an inference that the speaker has personal knowledge about the witness. Id. at 276. Here, neither petitioner s lawyer, nor the investigator, suggested that they had personal knowledge about a witness truthfulness. Rather, the investigator merely related her observations of the interactions between respondent-father and an older daughter, which was a relevant issue in the case considering that the older daughter was called as a witness on behalf of respondent-father. There was no plain error. -2- Respondent-mother also argues that, during closing argument, petitioner s lawyer improperly argued that the testimony by the therapist for some of the children and an expert in child and adolescent therapy, Heather Brown, established an ultimate issue of fact that was reserved for the jury. In her closing, petitioner s lawyer argued that AC s conduct was consistent with a child suffering from post-traumatic stress disorder, as described by Brown. She did not argue that Brown had testified that the children had in fact been abused. Her comments were proper commentary on the substance of Brown s testimony and did not involve improper vouching. McGhee, 268 Mich App at 630. Respondent-mother also argues that it was improper for petitioner s lawyer to state during closing argument that Brown was one of the best [witnesses] I ve ever heard. 1 While this remark was improper, respondent-mother has not shown that this remark was so prejudicial that it warrants a new trial. The improper remark was isolated and immediately preceded proper arguments on the facts and the statutory basis for jurisdiction. Had respondent-mother objected to the remark, the trial court could easily have cured any prejudice with an instruction. Accordingly, there was no misconduct warranting relief. See People v Williams, 265 Mich App 68, 71; 692 NW2d 722 (2005). B. ULTIMATE ISSUE OF FACT Respondent-mother next argues that Brown was improperly permitted to testify that AC was credible and had been abused, and that it was her opinion that CC had also been abused. Because respondent-mother did not object to the challenged testimony, our review is limited to plain error. In re HRC, 286 Mich App at 450. An expert generally cannot testify that a child suffered sexual abuse or that the defendant is guilty or otherwise vouch for the victim s veracity. People v Peterson, 450 Mich 349, 352353; 537 NW2d 857 (1995). However, an expert may testify in the prosecution s case in chief regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining a victim s specific behavior that might be incorrectly construed by the jury and may testify with regard to the consistencies between the behavior of the particular victim and other victims of child sexual abuse to rebut an attack on the victim s credibility. Id. At trial, there was evidence that AC lied when she stated that two of her younger siblings were her children by respondent-father. DNA testing established that the siblings were not AC s children. And AC s history of lying was an issue that was thoroughly explored during trial. 1 Citing page 51 of the transcript for September 23, 2011, both respondents argue that it was error for petitioner s lawyer, Lauryl Scott, to vouch for Brown in the manner quoted. However, this comment was part of the closing argument by John Stempfle, the lawyer appearing on behalf of the children. Stempfle stated: Yesterday we had the testimony of therapist Heather Brown. . . . I ve been in this court a long time, and heard many witnesses. She s one of the best I ve ever heard. Nevertheless, at oral arguments on this claim of error, the lawyers insisted that it was Scott who made these remarks. -3- Brown testified that AC s symptoms, including her lying, were consistent with severe post-traumatic stress disorder. When Brown was asked whether AC had lied to her, Brown stated that she was not aware of it, but also explained that that was not a part of her assessment; she was not concerned with determining what actually happened to AC. Brown stated that individuals with post-traumatic stress disorder can be prone to hallucinations or unable to accurately recall details. According to Brown, it was not surprising that AC might lie about her siblings because they were important to her. Brown did not comment on whether she personally believed AC s allegations and she appropriately informed the jury that that was not a part of her assessment. Thus, we disagree with respondent-mother s argument that Brown improperly offered her opinion on the ultimate issues. See Peterson, 450 Mich at 374. Brown was also questioned about CC and testified that she exhibited symptoms of trauma and affirms feelings in responses consistent with a child who has witnessed domestic violence and experienced abuse. Brown also testified that CC and SC had made disclosures in art therapy indicative of abuse or domestic violence. Brown s testimony was consistent with the limitations stated in Peterson, 450 Mich at 352-353, because she never testified that the children had actually been abused, she never vouched for their veracity, and she did not testify that respondents were guilty of abuse. Brown merely offered her expert opinion that some of the children s peculiar behaviors were consistent with the behavior of children who had been exposed to trauma or abuse. Further, neither petitioner s lawyer nor the children s lawyer asserted in closing argument that Brown had testified that the children s claims were credible on this basis. Instead, they appropriately related how the children s conduct in this case was consistent with the conduct of children who had been exposed to abuse and violence. Those arguments were properly based on the evidence. Accordingly, there was no plain error warranting relief. C. STATUTORY GROUNDS Respondent-mother next argues that the trial court erred in finding that the statutory grounds for termination were established by clear and convincing evidence. A petitioner must establish a statutory ground for termination by clear and convincing evidence. In re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000). This Court reviews the trial court s factual findings, as well as its ultimate decision whether a statutory ground for termination has been proven, for clear error. MCR 3.977(K); In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). A finding is clearly erroneous when, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made. Id. This Court will, however, defer to the trial court s assessment of the credibility of the witnesses who appeared before it. In re Newman, 189 Mich App 61, 65; 472 NW2d 38 (1991). Because respondent-mother s parental rights were terminated at the initial dispositional hearing, the trial court s decision had to be supported by legally admissible evidence. MCR 3.977(E); In re Utrera, 281 Mich App 1, 15-17; 761 NW2d 253 (2008). Termination of parental rights need only be supported by a single statutory ground. In re McIntyre, 192 Mich App 47, 50; 480 NW2d 293 (1991). -4- The trial court terminated respondent-mother s parental rights under MCL 712A.19b(3)(b)(ii), (g), and (j), which permit termination under the following circumstances: (b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances: *** (ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent s home. *** (g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child s age. *** (j) There is 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. The trial court found that the evidence supported termination under § 19(b)(3)(b)(ii) because the children s allegations of abuse were credible and because respondent-mother continued to stay with respondent-father, even though she knew that he had been sexually abusing the children. Although respondent-mother argues that AC s allegations of abuse were not credible, the credibility of her testimony was for the trial court, as the trier of fact, to resolve. Further, testimony was offered that AC exhibited the symptoms of post-traumatic stress disorder, and that lying was consistent with that disorder and her other emotional problems. In addition, AC s accounts of abuse were consistent with the abuse described by other children. The trial court did not clearly err in finding that respondent-mother failed to protect the children from repeated, ongoing abuse, and that, considering her inability or unwillingness to change, there was a reasonable likelihood that the children would be harmed if placed in her home. The same evidence also supports the trial court s reliance on §§ 19b(3)(g) and (j) as additional grounds for termination. Considering the nature and extent of the abuse, there was no reasonable expectation that respondent-mother would be able to provide proper care and custody within a reasonable time, and it was reasonably likely that the children would be harmed if returned to respondent-mother s home. Although the evidence did not show that all of the children had been abused, termination of respondent-mother s parental rights to all of the children was appropriate under the doctrine of anticipatory abuse or neglect. See In re HRC, 286 Mich App at 460-461. -5- We reject respondent-mother s argument that reversal is warranted because petitioner s case was based in part on inadmissible hearsay. Respondent-mother refers to testimony from caseworkers or investigators about CA catching NC inappropriately touching his younger sisters and telling respondent-mother. Even if that testimony was improper, it was cumulative of NC s trial testimony that CA caught him and then told respondent-mother, which resulted in NC being punished. The testimony about CA informing respondent-mother was not hearsay because it was not offered for the truth of the matter asserted (that is, to prove that NC sexually abused his sibling), MRE 801(c), but instead was offered to show how respondent-mother reacted when informed. Although CA denied that she ever caught NC touching his sister, CA s denial does not make NC s testimony improper; it merely created an issue of fact. Respondent-mother also argues that it was improper for the trial court to rely on Dr. Kia Anderson s testimony to find that respondent-father has a personality disorder that there are symptoms of narcissism and lack of sympathy, because Dr. Anderson admitted that she did not perform a complete evaluation. However, it is apparent that the trial court was aware of the limited nature of Dr. Anderson s testimony because it later stated in its findings, consistent with Dr. Anderson s testimony, that the father had traces of narcissism but [Dr. Anderson] can t diagnose narcissism because she had not spent enough time with him. Although respondentmother argues that it was improper for Dr. Anderson to rely on information received from an older sibling because that sibling had not lived with the family for many years, an objection to testimony regarding the sibling s input was overruled at trial after petitioner established a foundation by establishing that the sibling had been living in the family home. Respondent-mother further argues that the trial court should not have relied on petitioner s witnesses who interviewed the children because it was not shown that the investigators who conducted the interviews followed proper forensic protocol. However, the primary investigator who initially questioned AC testified that she was trained in forensic questioning procedures and did not ask leading questions. The trial court did not clearly err in finding that the statutory grounds for termination were established by clear and convincing evidence. D. BEST INTERESTS Respondent-mother lastly argues that the trial court erred in finding that termination of her parental rights was in the children s best interests. Once a statutory ground for termination has been established, the court shall order termination of parental rights if it finds that termination of parental rights is in the child s best interests[.] MCL 712A.19b(5). This Court reviews a trial court s finding that it is in the child s best interests to terminate his or her parent s parental rights for clear error. In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009). The evidence showed that respondent-mother refused to acknowledge the children s claims of recurring abuse, and blamed others outside the family for the children s significant emotional and behavioral problems. The trial court found that the children s claims of significant emotional, physical, and sexual abuse over many years were credible, and that respondent-mother did nothing to prevent the abuse or to address her children s situations. Although respondent-mother accurately asserts that the children, at least several of them, were -6- bonded to her, that respondents home was physically adequate for the children, and that criminal charges were never brought against either respondent, those considerations do not change the fact that the children were exposed to significant abuse and domestic violence, causing severe emotional harm to many of them, and that respondent-mother has never demonstrated that she is willing or capable of providing the protection and stability that the children require. The trial court did not clearly err in finding that termination of respondent-mother s parental rights was in the children s best interests. There were no errors warranting relief in docket no. 308982. II. DOCKET NO. 308983 A. LAWYER MISCONDUCT Respondent-father argues that petitioner s lawyer engaged in misconduct warranting a new trial by offering inadmissible evidence and making improper arguments and statements to the jury. Because respondent-father did not preserve his claims of misconduct with appropriate objections at trial, our review is limited to plain error. In re HRC, 286 Mich App at 450. Respondent-father first argues that it was improper to introduce evidence of the family s prior involvement with protective services. Respondent father argues that this evidence was inadmissible under MRE 404(b)(1). MRE 404(b)(1) provides that [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, but may be admitted for other, noncharacter purposes. Evidence of prior acts is admissible if (1) offered for a proper purpose, i.e., not to prove the party s character or propensity to commit the crime, (2) relevant to an issue or fact of consequence at trial, and (3) sufficiently probative to outweigh the danger of unfair prejudice. People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993). MRE 404(b)(1) applies in both civil and criminal cases. See Lewis v LeGrow, 258 Mich App 175, 207; 670 NW2d 675 (2003). The evidence of the family s prior history was not offered to establish either respondents character in order to show action in conformity therewith, but rather to provide a backdrop for the jury to understand the circumstances that led to the children s most recent removal, and to understand AC s behavior after her return to the family home. The family s prior history was so blended and connected to the most recent allegations that it was admissible in order to establish a complete picture: It is the nature of things that an event often does not occur singly and independently, isolated from all others, but, instead, is connected with some antecedent event from which the fact or event in question follows as an effect from a cause. When such is the case and the antecedent event incidentally involves the commission of another crime, the principle that the jury is entitled to hear the complete story ordinarily supports the admission of such evidence. -7- Stated differently: Evidence of other criminal acts is admissible when so blended or connected with the crime of which defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime. [People v Sholl, 453 Mich 730, 742; 556 NW2d 851 (1996) (citations omitted).] Here, the family s history with petitioner and the previous removals were all connected to petitioner s most recent decision to seek removal. AC had alleged that after their most recent return, respondents abused her and questioned the other children to learn who had provided information to petitioner. Moreover, it was respondents theory that the children s emotional problems were the result of their placement in foster care, not their treatment in the family home. The family s prior history was thus so inextricably intertwined with the allegations in the present proceeding that it was necessary for the jury to understand that history to properly understand and evaluate the present circumstances. Id. Accordingly, the evidence was admissible. Respondent-father also argues that it was improper to elicit that an investigator did not visit respondents home to investigate its condition because of safety concerns. Although respondent-father argues that this testimony was inadmissible under MRE 404(b)(1), the testimony did not involve any reference to prior bad acts. The investigator only explained, in general terms, that she was concerned for her safety. Because respondent-father has not shown that the testimony implicated MRE 404(b)(1), he has not shown plain error. Respondent-father next argues that it was improper for petitioner s lawyer and the children s lawyer to question investigators regarding the frequency with which they file petitions or substantiate complaints. While respondent-father argues that the questions constituted improper vouching, neither lawyer interjected his or her personal opinions premised on special knowledge. Accordingly, there was no improper vouching. Bahoda, 448 Mich at 276. Respondent-father also challenges that same opening remarks by petitioner s lawyer that respondent-mother challenged in her appeal concerning the purpose of child protection proceedings and petitioner s lawyer s role. As previously explained, the comments were not improper and, for the same reason, we conclude that there was no error warranting relief. Respondent-father also argues that petitioner s lawyer improperly vouched for Brown s credibility during closing argument by remarking that [s]he s one of the best [witnesses] I ve ever heard. As stated above, this remark was improper, but we nevertheless conclude that it did not affect respondent-father s substantial rights considering that it was isolated, that a timely objection could have cured any possible prejudice, and that counsel thereafter focused on the facts in arguing that the jury should find a statutory basis for jurisdiction. B. INEFFECTIVE ASSISTANCE Respondent-father next argues that he was denied the effective assistance of counsel. The test for ineffective assistance of counsel in criminal matters applies by analogy to child protective proceedings. In re Rogers, 160 Mich App 500, 502; 409 NW2d 486 (1987). Because respondent-father did not raise this issue in the trial court, our review of this issue is limited to errors apparent on the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). -8- To establish ineffective assistance of counsel, respondent-father must show that counsel s performance fell below an objective standard of reasonableness, and that the representation so prejudiced respondent-father that he was denied a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). To establish prejudice, respondent-father must show a reasonable probability that, but for his counsel s error, the result of the proceeding would have been different. People v Johnson, 451 Mich 115, 124; 545 NW2d 637 (1996). The record does not support respondent-father s claim that his lawyer did not have sufficient time to prepare for trial. Respondent-father s lawyer was appointed approximately two months before trial. Although respondent-father asserts that two months was insufficient to properly prepare in light of the nature of the case, he has not identified any record support for his claim that counsel was unprepared. The record also does not support his claim that his lawyer was ineffective for failing to request independent psychological evaluations. The trial court had previously appointed the Clinic for Child Study to perform evaluations for the entire family to independently assist and advise the court. Respondent-father has not offered any reason to believe that additional independent evaluations were necessary or would be beneficial to respondent-father. Respondent-father also argues that counsel was ineffective for not objecting to a caseworker s testimony that he had reviewed the family s voluminous file that dated back to 1997. As previously discussed, evidence that the family had prior involvement with protective services was relevant and admissible. The caseworker merely testified that he had reviewed the file to become familiar with the family s history. There is no basis for believing that any objection by counsel would have been successful, or that the testimony that was provided was prejudicial. For the same reason, there was no basis for an objection to testimony concerning the number of prior referrals or petitions involving the family. Respondent-father also argues that counsel was ineffective for failing to object to allegedly improper questions asking witnesses whether they believed the children s accusations against respondents, but he has not provided record citations showing where any such questions were asked, or identified the witnesses involved. Accordingly, respondent-father has not properly supported this argument. McIntosh v McIntosh, 282 Mich App 471, 484-485; 768 NW2d 325 (2009). C. STATUTORY GROUNDS Respondent-father next argues that the trial court erred in finding that the statutory grounds for termination were established by clear and convincing evidence. In addition to relying on §§ 19b(3)(g) and (j), which are set forth above, the trial court also relied on §§ 19b(3)(b)(i), (k)(ii), and (k)(iii), which permit termination under the following circumstances: (b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances: (i) The parent s act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent s home. -9- *** (k) The parent abused the child or a sibling of the child and the abuse included 1 or more of the following: *** (ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate. (iii) Battering, torture, or other severe physical abuse. The trial court s findings regarding respondent-father s long-term sexual and physical abuse of the children provide ample support for its determination that each of these statutory grounds was established by clear and convincing evidence. We find no merit to respondentfather s argument that it was pure conjecture for the trial court to find that the children would be harmed if returned to his custody. This finding is supported by the evidence of long-term abuse in the family home, as well as the evidence that shortly after the children were returned in May 2011, respondent-father lined them up and demanded to know who had snitched, following which AC was physically abused because respondent-father believed that she spoke with the authorities. Contrary to what respondent-father argues, the absence of broken bones or other physical scars or injuries to the children does not establish that the children could be safely returned to his custody. We also reject respondent-father s reliance on evidence that he interacted appropriately with the children during visits. Respondent-father s conduct during supervised visits does not demonstrate that the trial court s findings regarding his unsupervised conduct in the family home are clearly erroneous. Respondent-father also argues that the trial court erred in relying on Dr. Anderson s findings regarding the family s evaluation. It is clear that the trial court found that Dr. Anderson s evaluation and recommendation were credible. Although respondent-father offers reasons why he believes that the evaluation was not reliable, he has not demonstrated that the trial court clearly erred is according weight to that evidence. Respondent-father has not shown that the trial court s findings regarding the statutory grounds for termination are clearly erroneous, or that the court erred in finding that any of the applicable grounds for termination were established by clear and convincing evidence. D. BEST INTERESTS Respondent-father lastly argues that the trial court erred in finding that termination of his parental rights was in the children s best interests. The trial court found that both respondents were unable to provide the children with the safety, stability, and permanency they required. The evidence showed that respondents refused to acknowledge the children s claims of recurring abuse, and blamed others outside the family for the children s significant emotional and behavioral problems. The trial court found that the children s claims of significant emotional, physical, and sexual abuse over the years were credible, and that respondent-father was largely -10- responsible for the abuse and that his conduct had not changed. When the children were most recently returned, they were subjected to more abuse for having talked to investigators. Many of the children required treatment for serious emotional and mental health problems. Although there was evidence that some of the children were bonded to respondent-father, that does not change the fact that they were exposed to significant abuse and domestic violence, causing severe emotional harm to many of them, and that, despite being given multiple chances to demonstrate that he could be a proper parent, he had never done so. The trial court did not clearly err in finding that termination of respondent-father s parental rights was in the children s best interests. There were no errors warranting relief in docket no. 308983. Affirmed in both dockets. /s/ Henry William Saad /s/ Kirsten Frank Kelly /s/ Michael J. Kelly -11-
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