In Re a C M Brown Minor ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re A.C.M. BROWN, Minor. June 22, 2023
No. 362562
Wayne Circuit Court
Juvenile Division
LC No. 2013-511325-NA
Before: MARKEY, P.J., and JANSEN and K. F. KELLY, JJ.
PER CURIAM.
Respondent-father1 appeals by right the trial court’s order terminating his parental rights
to his minor child, ACMB. Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises out of ACMB’s allegations that she was sexually abused by respondent.
In 2019, ACMB was placed in respondent’s care, after petitioner, the Michigan Department of
Health and Human Services (the “Department”), petitioned to remove ACMB and her half-brother
from their mother’s care and custody because of neglect and unsanitary living conditions. In 2021,
a friend of respondent brought ACMB to the hospital after ACMB told the friend that respondent
sexually abused her. Because of the allegations, a complaint was filed with Child Protective
Services (“CPS”). At the beginning of the investigation, a CPS worker contacted ACMB’s mother
about the allegations. The mother “believed the sexual abuse allegations to be true based on her
observations of [ACMB’s] ‘promiscuous’ behavior[,]” and an incident when she found a hole in
ACMB’s underwear. After being medically examined, ACMB underwent a forensic interview,
during which she repeated her allegations. Although respondent denied the allegations, the
Department petitioned the court to terminate respondent’s parental rights.
During the adjudication hearing, a CPS worker, Whitney Bondy, testified regarding the
mother’s allegations against respondent. Bondy related that the mother “admitted that during the
1
The lower court proceedings involved other children and respondents, but they are not at issue
on appeal. Thus, only the facts relevant to respondent-father’s case will be discussed.
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summer of 2021 she had seen [ACMB] wearing a pair of underwear with a large hole in it,” which
the mother apparently stated she suspected was made by respondent “in order to engage in sexual
activity.” Bondy stated that the mother told her that ACMB’s “behavior had become increasingly
promiscuous even though she was still very young,” and that the mother “had previously seen
[respondent] kissing [ACMB] on the lips.” Bondy also testified that the mother told Bondy that
respondent “had sexually assaulted his sister and that he also had a long history of inappropriately
touching children and other adults.” Similarly, another CPS worker, Sofia Garcia, testified that
the mother told Garcia that “[ACMB] had been showing [behaviors] that were of concern to her,
like sitting on men’s laps, kissing people on the lips, and she said her body language wasn’t right.”
Garcia also repeated the mother’s allegation that ACMB “had been wearing an underwear that had
a hole in it.”
Respondent objected to the CPS workers’ testimony, arguing the statements regarding what
the mother told them were inadmissible hearsay. While the trial court sustained some of the
objections, it permitted other testimony, believing it was admissible as a statement of a party-
opponent and as an excited utterance. During the adjudication, it was also revealed that the
criminal investigation into respondent’s behavior was inactive and that CPS and the Department
had been given a police report. Respondent’s attorney apparently never received the report and,
after reviewing it, requested its admission. The trial court denied the request because the document
contained inadmissible hearsay. Respondent then requested an adjournment to call the police
investigator who authored the report to testify, which was also denied. The trial court reasoned
that there was not good cause for the court to grant the adjournment because respondent had not
yet subpoenaed the investigator and respondent knew of the criminal investigation before the trial
started. However, the trial court did inform respondent he could call the investigator for the
bifurcated best interests hearing, which he did not do.
After the best interests hearing, the trial court terminated respondent’s parental rights under
MCL 712A.19b(3)(b)(i) (child or sibling suffered sexual abuse by parent’s action with reasonable
likelihood of suffering future abuse if returned); MCL 712A.19b(3)(b)(ii) (child or sibling suffered
sexual abuse and parent failed to prevent it despite being able with reasonable likelihood of
suffering future abuse if returned); MCL 712A.19b(3)(g) (parent, while financially capable, failed
to provide proper care for child with no reasonable expectation parent will be able to do so within
a reasonable time, given child’s age); MCL 712A.19b(3)(j) (reasonable likelihood child will be
harmed if returned to parent’s home based on parent’s conduct or capacity); MCL
712A.19b(3)(k)(ii) (parent abused the child or sibling by engaging in criminal sexual conduct
involving penetration); and MCL 712A.19b(3)(k)(ix) (parent sexually abused the child or sibling).
The court relied primarily on ACMB’s admissions, which it found to be credible and trustworthy,
and corroborated by ACMB’s medical records. This appeal followed.
II. STANDARDS OF REVIEW
“We review for an abuse of discretion a trial court’s decision regarding the admission of
evidence.” In re Utrera, 281 Mich App 1, 15; 761 NW2d 253 (2008). This Court also reviews
for abuse of discretion a ruling on a motion for a continuance. Id. at 8. “An abuse of discretion
occurs when the trial court chooses an outcome that falls outside the range of principled outcomes.”
Id. at 15 (quotation marks and citation omitted). “When an evidentiary question involves a
question of law, such as the interpretation of a statute or court rule, our review is de novo.” Id.
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III. ANALYSIS
On appeal, respondent argues the trial court abused its discretion when it admitted the
hearsay statements from the CPS workers regarding the mother’s allegations and when it denied
his request for an adjournment to call the investigating officer to testify. We disagree.
A. HEARSAY
“The statutory grounds for termination of parental rights must be proven by clear and
convincing evidence.” Id. at 15. The evidence must also be legally admissible. Id. at 17; see also
MCR 3.977(E)(3). The parties do not dispute the mother’s statements, as related by Bondy and
Garcia, without any exceptions or exclusions, constituted hearsay. “Hearsay is a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. Hearsay is inadmissible unless the rules of evidence provide
otherwise.” In re Utrera, 281 Mich App at 18 (quotation marks and citation omitted). The
exclusion to the hearsay rule at issue in this case concerns admissions by a party-opponent, which
are statements offered against a party which are “the party’s own statement, in either an individual
or a representative capacity . . . .” MRE 801(d)(2). Also at issue is the excited utterance exception
to the hearsay rule, which allows the admission of statements “relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event or
condition.” MRE 803(2).
We have little trouble concluding that Bondy and Garcia’s testimony was not admissible
as a statement of a party-opponent. MRE 801(d)(2) permits admission of statements against a
party which were “the party’s own statement[s.]” However, neither Bondy nor Garcia testified
regarding statements made by respondent. The mother’s statements to them concerned the
mother’s impressions, inferences, and opinions concerning respondent and ACMB’s behavior. In
other words, the testimony given by Bondy and Garcia was not related to respondent’s own
statements and, therefore, did not qualify as a statement by a party-opponent. See Merrow v
Bofferding, 458 Mich 617, 633; 581 NW2d 686 (1998) (“A statement cannot be used as a party
admission unless the party made the statement.”).
We also assume, without deciding, that the mother’s statements did not qualify for
admission as excited utterances. In order to demonstrate that a hearsay statement is admissible as
an excited utterance, the party offering the statement must show “1) that there be a startling event,
and 2) that the resulting statement be made while under the excitement caused by the event.”
People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998). While it was likely unsettling for the
mother to be questioned by CPS regarding allegations that respondent sexually abused ACMB,
her testimony makes clear that she already suspected that respondent was sexually abusing ACMB.
But we need not decide whether Bondy and Garcia’s statements were admissible under the
excited utterance exception because even if the trial court abused its discretion when admitting
them under either theory advanced, any such error was harmless. See People v Mateo, 453 Mich
203, 206; 551 NW2d 891 (1996) (“Where the error asserted is the erroneous admission of
evidence, the court engages in a comparative analysis of the likely effect of the error in light of the
other evidence.”). When the trial court provided its reasoning on the record concluding there were
statutory grounds to terminate respondent’s parental rights, the trial court did not rely on Bondy
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or Garcia’s testimony. Rather, the court noted ACMB’s allegations, as well as the mother’s own
direct testimony regarding the allegations. Any statements made by Bondy and Garcia were not
crucial to the trial court’s ultimate reasoning for terminating respondent’s parental rights. Thus,
any error in admitting those statements was harmless.
B. ADJOURNMENT
“Adjournments of trials or hearings in child protective proceedings should be granted only
(1) for good cause, (2) after taking into consideration the best interests of the child, and (3) for as
short a period of time as necessary.” MCR 3.923(G); see also Utrera, 281 Mich App at 10. This
Court has defined good cause as “ ‘[a] legally sufficient reason’ and ‘a substantial reason
amounting in law to a legal excuse for failing to perform an act required by law.’ ” Utrera, 281
Mich App at 10-11.
The trial court did not abuse its discretion by refusing to adjourn the hearing. The purported
purpose of respondent’s request to adjourn was to introduce evidence that the criminal
investigation involving him for the underlying allegations in this case was inactive. Respondent
contends the Department’s alleged discovery violation—failing to provide the police report—
provided good cause for an adjournment. However, both respondent and his attorney stated on the
record they knew the investigation was ongoing and had tried to contact the investigator multiple
times without success. Thus, the record demonstrates that respondent and his attorney were aware
of the investigation and had suspicions the investigation was closed after having difficulty
contacting the investigator. Respondent’s attorney argued she did not subpoena the investigator
earlier because she wished to speak with the investigator beforehand but, considering the alleged
difficulty in getting any response from the investigator, respondent’s failure to subpoena the
investigator does not constitute a legally-sufficient reason for an adjournment.
Moreover, the trial court itself acknowledged when making its ruling that the investigation
was closed but determined, considering the different burdens of proof between criminal and
termination proceedings, as well as the credibility of ACMB’s statements, it was nevertheless
proper to terminate respondent’s parental rights. The trial court highlighted that while criminal
investigations are relevant considerations during termination proceedings, they are not dispositive.
The trial court found ACMB made statements to a number of adults, over multiple days, which
remained consistent and were corroborated by her medical records. Considering the heightened
deference owed to the trial court on appeal, we cannot say the trial court abused its discretion when
it denied respondent’s request for an adjournment.
Affirmed.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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