Respondent-mother and respondent-father appeal as of right the order terminating their parental rights to the minor child, a boy born in 2007, at the initial disposition (adjudication trial in combination with termination hearing) pursuant to MCL 712A.19b(3)(b)(i) (parent sexually abused child), (b)(¿¿) (parent failed to prevent sexual abuse), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm if child returned to parent). We affirm the order terminating respondent-mother’s parental rights, reverse the order terminating respondent-father’s parental rights, and remand for further proceedings with respect to respondent-father.
Petitioner alleged that respondent-father perpetrated an act of penile-anal penetration against the child. A medical record was entered into evidence containing this accusation as made by the child to the attending doctor, but no medical personnel testified at the trial/hearing. The evidence relied on by petitioner in support of the allegation was a DVD of a videore-corded interview of the child by an adolescent forensic interviewer in which the child, upon questioning, claimed that respondent-father had performed the
Respondent-mother was alleged to have performed a sexual act with a male stranger for money in front of the child in the stranger’s van after having exchanged text messages with the stranger to arrange the encounter. An FBI agent testified that respondent-mother came to his attention when he was investigating the stranger. The FBI had arrested the stranger for attempting to have sex with an unrelated minor, and the execution of a search warrant attendant to the arrest resulted in the discovery of the text messages between the stranger and respondent-mother. A second FBI agent testified that he took respondent-mother in for questioning and that respondent-mother admitted to the sexual act in the van in her son’s presence. Respondent-mother told the agent that the stranger had initially responded by phone to a used-bike advertisement that she had posted on Craigslist and that the discussion quickly became sexual, eventually leading to the text messages and the sex act in the van. Petitioner also asserted that respondent-mother subsequently was prepared to commit a sexual act on the child in the presence of that same stranger for remuneration. The second FBI agent testified that after the first encounter in the stranger’s van, the stranger and respondent-mother exchanged further text messages and spoke together on the phone. The FBI agent stated
The trial court found by a preponderance of the evidence that it had jurisdiction over the child under MCL 712A.2(b) given the sexual abuse by respondent-father as established by the child’s claim of anal penetration made in the child’s forensic interview captured on the DVD and given the sexual abuse by respondent-mother as established by the FBI testimony of her admitted engagement in a sex act in the presence of the child and her plan to participate in a sex act with the child himself in the presence of the aforementioned stranger. Having established jurisdiction relative to adjudication, the trial court next found that there existed clear and convincing evidence supporting termination under MCL 712A.19b(3)(b)(i), (b)(ii), (g), and <j), effectively relying on the same evidence of sexual abuse by respondents. Finally, the trial court found that termination of parental rights was in the child’s best interests in light of the trauma caused by the sexual abuse, the child’s adamant desire
On appeal, both respondents contend that the trial court erred by admitting the DVD into evidence. Evi-dentiary rulings are reviewed for an abuse of discretion; however, we review de novo preliminary questions of law affecting the admission of evidence, e.g., whether a statute or rule of evidence bars admissibility. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). For purposes of a trial with respect to adjudication, a statement by a child under the age of 10 concerning and describing an act of sexual abuse performed on the child by another person may be admitted into evidence “through the testimony of a person who heard the child make the statement,” regardless of the child’s availability, but only if the court finds at a hearing before trial “that the circumstances surrounding the giving of the statement provide adequate indicia of trustworthiness.” MCR 3.972(C)(2)(a); see In re Brown/Kindle/Muhammad Minors, 305 Mich App 623, 630; 853 NW2d 459 (2014); In re Archer, 277 Mich App 71, 80-81; 744 NW2d 1 (2007).2 In this case, as mentioned earlier, the forensic interviewer who heard the child’s statements regarding sexual abuse by respondent-father did not testify at the trial/hearing. Rather, the interview of the child had been videorecorded, put on a DVD, and admitted into evidence in that format. Accordingly, the child’s statements were not admitted in accordance with MCR 3.972(C)(2)(a).
It is plain to us that MCR 3.972(C)(2)(a), which expressly applies to adjudication trials, and MCL 712A.17b, which expressly does not apply to the adjudication stage, work in tandem. MCR 3.972(C)(2)(a) forces petitioner to produce at trial any witness claiming that a child victim made statements of abuse heard by the witness if petitioner wishes to rely on such statements in its case, subject to the existence of circumstances indicating trustworthiness. This allows the accused parent the opportunity to at least cross-examine that witness. MCL 712A.17b(5) not only permits but mandates admission of a videorecorded statement (“shall be admitted”) in regard to any proceeding other than one at the adjudication stage, which would necessarily include a termination hearing, as long as the prerequisites set forth in MCL 712A.17b(5) and (6) are satisfied, e.g., the questioning must be in accordance with forensic interview protocol.5 In a situation such as the case at bar, the proper procedure would entail having the forensic interviewer testify at the adjudication stage, assuming compliance with MCR 3.972(C)(2)(a), followed by substantive consideration of the forensic interview displayed on the DVD at the termination stage, assuming compliance with MCL 712A.17b.
In sum, the trial court erred by relying on the videorecorded statements contained in the DVD for purposes of adjudication. In In re Sanders, 495 Mich 394, 400-401; 852 NW2d 524 (2014), our Supreme Court declared that the one-parent doctrine, which permitted “a court to interfere with a parent’s right to
However, with respect to respondent-mother, the child’s videorecorded statements contained in the DVD were essentially irrelevant to the allegations against her, which were established through the testimony of the FBI agents. Accordingly, in connection with either adjudication or termination, assuming for the sake of argument that the DVD was inadmissible for purposes of the termination stage of the proceedings, respondent-mother cannot establish prejudice because any presumed error was harmless, and she is therefore not entitled to reversal.7 MCR 2.613(A); In re Williams, 286
Respondent-mother next alleges multiple instances of ineffective assistance of counsel. The principles applicable to claims of ineffective assistance of counsel in the arena of criminal law also apply by analogy in child protective proceedings; therefore, it must be shown that (1) counsel’s performance was deficient, falling below an objective standard of reasonableness, and that (2) the deficient performance prejudiced the respondent. In re CR, 250 Mich App 185, 197-198; 646 NW2d 506 (2002), overruled on other grounds by In re Sanders, 495 Mich 394. Respondent-mother first contends that counsel should have moved to suppress her statements made to the FBI because the statements were involuntary and coerced, violating her Fifth Amendment rights. Assuming a constitutional violation, which is not in fact supported by the existing record, respondent-mother fails to direct us to any authority providing that the exclusionary rule is applicable in the context of abuse and neglect proceedings; therefore, she has failed to establish the requisite prejudice.8
Finally, respondent-mother argues that counsel was ineffective for failing to insist that the child receive a trauma assessment that had been ordered by the trial court but apparently never conducted. Given the nature of respondent-mother’s conduct and the testimony by the foster-care worker regarding the child’s traumatized state, respondent-mother fails to convince us that counsel’s performance was deficient in failing to seek enforcement of the court’s decision, nor has she established the requisite prejudice. The result of a trauma assessment, under the circumstances and existing record, could potentially have been more favorable to petitioner than respondent-mother. Therefore, we are not prepared to fault counsel for shying away from pushing the trial court to enforce its decision. Counsel’s performance was not deficient, nor, once again, can we find the necessary prejudice.
Lastly, respondent-mother contends that the trial court clearly erred by finding that the statutory grounds for termination were proved by clear and convincing evidence and by finding that termination was in the child’s best interests.10 With respect to MCL
In regard to MCL 712A.19b(3)(b)(ii), which addresses a failure by a parent to prevent sexual abuse, the record, while a bit unclear, appears to indicate that respondent-mother was alleged to have failed to protect the child from respondent-father’s alleged sexual abuse and that respondent-father was alleged to have failed to protect the child from respondent-mother’s sexual abuse. Assuming that the DVD of the forensic interview was admissible relative to the termination stage of the proceedings, there is inadequate evidence of respondent-mother’s failure to prevent the act of anal penetration allegedly perpetrated by respondent-father. Respondents, who were divorced, were not living together, and the alleged sexual act by respondent-father against the child supposedly occurred out of state while respondent-mother was in Michigan. The trial court clearly erred by relying on MCL 712A.19b(3)(b)(¿¿) as to respondent-mother.
The evidence of respondent-mother’s conduct with respect to her interactions with the stranger as testi-
Finally, for the reasons stated by the trial court and those set forth in our earlier discussion of the child’s best interests, there was no clear error in the trial court’s finding that termination of respondent-mother’s parental rights was in the child’s best interests. See In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012).
We affirm the order terminating respondent-mother’s parental rights, reverse the order terminating respondent-father’s parental rights, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
SAAD and BORRELLO, JJ., concurred with MURPHY, P. J.
1.
Respondent-mother did testify that a child protective services (CPS) worker had informed her of the alleged sexual abuse by respondent-father and that the child thereafter told respondent-mother “what happened and why he didn’t tell me .. . The CPS worker testified at the trial/hearing, but she did not discuss the nature of any statements that the child made to her, and the full extent of respondent-mother’s testimony on the subject of statements made by the child to her is reflected in the preceding sentence.
2.
MCR 3.972(C)(2)(a) also provides that the “statement may be received by the court in lieu of or in addition to the child’s testimony.”
3.
MCL 712A.17b(6) mandates the following:
In a videorecorded statement, the questioning of the witness should be full and complete; shall be in accordance with the forensic interview protocol implemented as required by section 8 of the child protection law, 1975 PA 238, MCL 722.628; and, if appropriate for the witness’s developmental level, shall include, but need not be limited to, all of the following areas:
(a) The time and date of the alleged offense or offenses.
(b) The location and area of the alleged offense or offenses.
(c) The relationship, if any, between the witness and the respondent.
(d) The details of the offense or offenses.
(e) The names of other persons known to the witness who may have personal knowledge of the offense or offenses.
4.
The hearing did not pertain to any evidence other than the child’s videorecorded statements. There was no effort to seek admission under MCR 3.972(C)(2)(a) of any statements made by the child to the CPS worker, to respondent-mother, or to medical personnel who had examined the child.
5.
When termination is sought at the initial disposition, “clear and convincing legally admissible evidence” must be presented to establish the grounds for termination. MCR 3.977(E)(3).
6.
On appeal, counsel for the child agrees that there was error and that respondent-father is entitled to a remand for proper adjudication. Given our ruling, which effectively results in the deprivation of the trial court’s jurisdiction, it becomes unnecessary to address respondent-father’s arguments challenging the trial court’s findings in regard to the statutory grounds for termination and the child’s best interests.
7.
Respondent-mother concedes that the forensic interview of the child benefitted her for the most part, considering that the child indicated that he was not aware of the circumstances surrounding respondent-
8.
We note that in In re T Minors, 143 NM 75, 78; 172 P3d 1287 (NM App, 2007), the New Mexico Court of Appeals, in rejecting application of the exclusionary rule in child protective proceedings, observed:
We have found no cases, and the parties do not cite to any, in which any other jurisdiction has applied the exclusionary rule inPage 86the context of abuse and neglect proceedings. Other jurisdictions that have addressed the issue have held that the exclusionary rule should not apply in civil abuse and neglect proceedings because it may thwart the State’s interest in the protection of children.
9.
We note that respondent-mother invoked her Fifth Amendment right against self-incrimination when asked whether she participated in the sexual conduct at issue, and her invocation was indisputably permissible. In re MU, 264 Mich App 270, 283 n 5; 690 NW2d 495 (2004). That said, invoking the Fifth Amendment in an abuse and neglect
10.
If a trial court finds that a single statutory ground for termination has been established by clear and convincing evidence and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is mandated to terminate a respondent’s parental rights to that child. MCL 712A.19b(3) and (5); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). “This Court reviews for clear error the trial court’s ruling that a statutory ground for termination has been established and its ruling that termination is in the children’s best interests.” In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011); see also MCR 3.977(K). “A finding is clearly erroneous if, although there is evidence to support it, we are left