in Re Cook Minors ( 2019 )

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UNPUBLISHED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 COOK, Minors. May 14, 2019
Nos. 345383 and 345384
Kalkaska Circuit Court
Family Division
LC No. 17-004490-NA
Before: GLEICHER, P.J., and RONAYNE KRAUSE and O’BRIEN, JJ.
PER CURIAM.
In these consolidated appeals, respondent-mother (Docket No. 345383) and respondent-
father (Docket No. 345384) each appeal by right the trial court’s order terminating their parental
rights to their two children, MC and JC. The children were 17 and 15 years old at the time of the
trial court’s order. Finding no error requiring reversal, we affirm.
I. FACTS
During the summer of 2017, while at summer camp, MC disclosed to a camp counselor
that respondent-father had been inappropriately touching her and had digitally penetrated her
over the previous seven years. A forensic interview was conducted, and MC again disclosed the
sexual abuse. Petitioner filed a petition for removal and requested termination at the initial
dispositional hearing. JC subsequently made similar disclosures.
At the adjudication trial, an investigator for Child Protective Services (CPS), testified
regarding a prior 2012 CPS investigation during which both children reported that respondent-
father had inappropriately touched their genitalia while bathing them. They were 9 and 11 years
old at the time. Both girls originally claimed that respondent-father had touched their “privates”
and that it made them uncomfortable. However, they then recanted and said that they were
playing in the bathtub instead of cleaning themselves, and that respondent-father had to step in
and ensure that they were bathing properly. The investigator ultimately concluded that there was
insufficient evidence to proceed with the case, and no petition was filed. At that time, the
investigator advised respondents that it was inappropriate to bathe the children considering their
ages.
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MC testified that respondent-father began sexually abusing her when she was seven years
old. The abuse began with touching over the clothes, and it happened about twice a week. She
stated that the abuse occurred in many of the rooms of the house, including the bedrooms, living
room, and bathroom. The abuse progressed to touching under her clothing when MC was
between the ages of 12 to 14. When MC was 13 or 14 years old, respondent-father began
digitally penetrating her vagina. The sexual abuse continued until MC was 16 years old, at
which time she was removed from the home. MC testified that respondent-mother witnessed one
incident of abuse in 2012 or 2013 that occurred in the living room of the family home, but
respondent-mother left the room and did nothing to stop the abuse. The following day, CPS
came to the home for an unrelated incident involving JC. MC testified that respondent-mother
told her not to say anything about the sexual abuse to the CPS investigator. She testified that the
most recent incident of abuse occurred the night before she was to leave for summer camp when
she was 16 years old.
Both children also testified that respondents took them to an optometrist when they were
young. They claimed that they were told that they needed glasses, but that respondent-father
refused to get them. MC testified that upon being taken to an optometrist by her foster family,
she learned that she was “legally blind” without glasses. JC testified that she was also “legally
blind,” and the optometrist told her that her vision would not have been as bad if respondents had
purchased glasses for her sooner.
JC testified that respondent-father began sexually abusing her when she was two years
old. She claimed that he touched her inappropriately and that he had hit her. JC testified that he
would touch her on her chest and vagina while she was in the bathtub, always using his hands
and not in a way that indicated he was bathing her. JC claimed that the only time she could
remember respondent-father not abusing her was when they went on vacation to Florida. She did
not disclose the abuse to anyone until she disclosed it to her foster parents. She explained that
she was afraid that respondent-father would find out and hurt her.
Respondent-mother opined that MC and JC were lying about their allegations of sexual
abuse by respondent-father. She claimed that she would have known if he was abusing the
children. She denied ever walking in on respondent-father abusing MC. She stated that if he
were actually abusing the children, then she would have removed them from the situation.
Dr. Wayne Simmons testified as an expert in “general human psychology, child
psychology, and performing psychological evaluations and forensic interviews.” He opined that
the children had decreased credibility because of multiple lies that they had told and the methods
by which they disclosed the abuse, i.e., MC only disclosed after the camp counselor who she
looked up to revealed sexual abuse in her past, and JC only disclosed after her first interview and
after living with foster parents and her sister. However, Dr. Simmons stated that he could not
know or form an opinion about whether the girls were actually lying.
The jury found that one or more of the allegations in the petition were proven for both
respondents and both children. Therefore, the trial court took jurisdiction over the children.
The trial court then held the initial dispositional and termination hearing. Timothy
Strauss, who testified as an expert in clinical psychology, had performed a psychological
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evaluation on MC. Strauss diagnosed MC with post-traumatic stress disorder (PTSD), major
depression with anxious features, and dependent and avoidant personality traits. Strauss stated
that there were no results from MC’s testing that indicated that she was lying. Strauss noted that
MC indicated that she had not had contact with respondents for nine months and preferred not to
have any contact. However, Strauss declined to give a recommendation regarding whether or not
MC should be returned to respondents’ care. He nevertheless opined that it “probably wouldn’t
be helpful to have a lot [of] contact with her family.”
Dr. Erlinda Mercado, who testified as an expert in psychiatry, had performed a
psychiatric evaluation of JC. Dr. Mercado diagnosed JC with major recurring depression and
chronic PTSD. She stated that “chronic” meant that JC had experienced trauma “for some time” and
that trauma could hypothetically include sexual abuse. Dr. Mercado indicated that JC reported
suicidal thoughts and at least two attempts at suicide. She also stated that there was nothing to
indicate that JC was lying, and opined that there could be a risk of harm if JC were returned to
respondents’ care because her fears of returning home could cause her to attempt suicide again.
Jamila Lamb, who was qualified as an expert witness as a licensed psychologist, had met
with JC twice a week since March 5, 2018. JC discussed sexual abuse by respondent-father
during those sessions and indicated that she did not want to return home. Lamb opined that it
was not in JC’s best interests to return to respondents’ home because it could cause her to self-
harm. Lamb believed that JC was being truthful, but Lamb could not be certain.
Dr. Rosalynn Moten, a licensed clinical psychologist who was qualified as an expert, had
performed a psychological evaluation on JC on June 27, 2018. She indicated that JC presented
with issues of depression and “extremely low range of functioning with a full scale of 69”. That
meant that JC fell below the “2-percentile range for intellectual functioning.” Dr. Moten
indicated that JC became overwhelmed by negative emotions when recalling her traumas and
history of sexual abuse. She stated that JC’s response to recalling trauma was common amongst
those who experienced trauma. She also opined that JC’s PTSD could be related to sexual abuse.
The foster-care case manager testified that both respondents were ordered to complete
psychological evaluations, but neither did so. She also indicated that, at some point, it was
reported to the CPS investigator that the children were threatening to lie to the trial court in order
to get the foster mother in trouble so that they could be transferred to a different foster home.
Both respondents asserted their Fifth Amendment right not to testify, despite the trial
court informing them that their assertions could be used against them. Thereafter, the trial court
issued a written opinion terminating respondent-mother’s parental rights under MCL
712A.19b(3)(b)(ii) and (j), and terminating respondent-father’s parental rights under MCL
712A.19b(3)(b)(i), (j), (k)(ii), and (k)(ix). The trial court also found that termination was in the
best interests of the children.
II. RAPE-SHIELD STATUTE
On appeal, respondents argue that the trial court erred by prohibiting them from
questioning MC about statements she made regarding her ex-boyfriend keeping her as a sex
slave. We disagree.
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“A trial court’s decision whether to admit evidence is reviewed for an abuse of discretion,
but preliminary legal determinations of admissibility are reviewed de novo.” Albro v Drayer,
303 Mich App 758, 760; 846 NW2d 70 (2014). “An abuse of discretion occurs when a trial
court’s decision is not within the range of reasonable and principled outcomes.” Sys Soft Techs v
Artemis Techs, 301 Mich App 642, 650; 837 NW2d 449 (2013) (citation omitted). “A trial court
necessarily abuses its discretion when it makes an error of law.” Ronnisch Constr Group, Inc v
Lofts on the Nine, LLC, 499 Mich 544, 552; 886 NW2d 113 (2016). Issues of statutory
construction are issues of law that we review de novo. County of Wayne v Hathcock, 471 Mich
445, 455; 684 NW2d 765 (2004).
Respondents argue that the trial court excluded the evidence pursuant to the rape-shield
statute, MCL 750.520j. We disagree with that interpretation of the record. The trial court
entertained argument by the parties outside the presence of the jury regarding admissibility of
MC’s alleged statement, during which the rape-shield statute was discussed. However, it is clear
from the record that the trial court’s ruling was ultimately based on respondents’ inability to
provide an offer of proof that the statement was, in fact, a lie. Therefore, the trial court’s ruling
appears to have effectively been that MC’s statement was not relevant under MRE 402, or was
substantially more unfairly prejudicial than probative under MRE 403. We do not find that
ruling to be an abuse of discretion under the circumstances.
Furthermore, respondents were able to attack MC’s credibility through other lines of
questioning, other admissible evidence, and other witness testimony. In particular, MC was
cross-examined regarding her claims that she did not have certain social media accounts, despite
the admission into evidence of several photographs of MC from those online profiles which she
appeared to have created. Additionally, the testimony of Dr. Simmons indicated that MC had
decreased credibility and reliability because of the many lies that she had told. Thus, we
conclude that, “based on review of the entire record, it is more probable than not that the error
was not outcome determinative.” Nahshal v Fremont Ins Co, 324 Mich App 696, 717; 922
NW2d 662 (2018).
III. PETITION
Next, respondents both argue that the trial court erred when it read the allegations in the
petition verbatim to the jury venire. The petition recited that MC “credibly disclosed” the sexual
abuse. We review de novo constitutional issues and issues of procedure under the court rules. In
re VanDalen, 293 Mich App 120, 131-132; 809 NW2d 412 (2011).
In the context of a child protective proceeding, an adjudication trial is defined, in relevant
part, as “the fact-finding adjudication of an authorized petition to determine if the minor comes
within the jurisdiction of the court.” MCR 3.903(A)(27). As part of the adjudication trial, the
trial court is required to read the allegations in the petition, unless waived. MCR 3.972(B)(2).
Neither respondent waived the reading of the petition. Accordingly, the trial court complied with
the court rule. Although the allegations in the petition included statements that MC had credibly
disclosed the sexual abuse by respondent-father, we conclude that the trial court did not err in
adhering to the court rules by reading the allegations in the petition.
IV. VERDICT FORM
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Next, both respondents argue that they were prejudiced as a result of an improper jury
verdict form. In particular, respondent-mother argues that the verdict form was improper
because the jury was not required to state which specific statutory ground it found proven in
order to give the trial court jurisdiction. Respondent-father argues that the verdict form was
improper because it provided the option for finding that a statutory ground was proven before
providing the option that a statutory ground was not proven. We disagree with both arguments.
We review de novo claims of instructional error, including claims that a verdict form was
erroneous. In re VanDalen, 293 Mich App at 133. “Instructional error warrants reversal if it
resulted in such unfair prejudice to the complaining party that the failure to vacate the jury
verdict would be inconsistent with substantial justice.” Ward v CONRAIL, 472 Mich 77, 84; 693
NW2d 366 (2005) (quotation marks and citation omitted). MCR 3.972(E) states, “In a child
protective proceeding, the verdict must be whether one or more of the statutory grounds alleged
in the petition have been proven.” Moreover, “there is no requirement that the jurors must reach
a consensus regarding which specific statutory grounds supported jurisdiction.” In re VanDalen,
293 Mich App at 134. “If, on balance, the theories of the parties and the applicable law are
adequately and fairly presented to the jury, no error requiring reversal occurs. Reversal is not
warranted when the instructional error did not affect the outcome of the trial.” Id at 133.
(quotation marks and citations omitted). A requested instruction need not be given if it would
neither add to an otherwise balanced and fair jury charge nor enhance the jury’s ability to decide
the case intelligently, fairly and impartially. Johnson v Corbet, 423 Mich 304, 327; 377 NW2d
713 (1985).
For both respondents and both children, the jury found that “one or more of the statutory
grounds alleged in the Petition have been proven.” This finding complied with the requirements
of the Michigan Court Rules and caselaw. Contrary to respondent-mother’s assertion, the jury
was not required to state the specific statutory ground under which it granted the trial court
jurisdiction. The verdict form was proper in this regard, and respondent-mother’s argument
lacks merit.
Regarding respondent-father’s argument, the trial court instructed the jury that there were
two options for each child and each parent on the verdict forms—either a statutory ground was
proven or it was not. The applicable law was “adequately and fairly presented to the jury.” In re
VanDalen, 293 Mich App at 133. There was no indication that reversing the order of the verdict
options on the verdict forms would either “add to an otherwise balanced and fair jury charge [or]
enhance the jury’s ability to decide the case intelligently, fairly and impartially.” Johnson, 423
Mich at 327. Nor was there was any indication that the order of the verdict options affected the
outcome of the trial, and thus, reversal is not warranted. In re VanDalen, 293 Mich App at 133.
V. STATUTORY GROUNDS
Respondent-mother next argues that the trial court clearly erred in finding that a statutory
ground for terminating her parental rights was proven by clear and convincing evidence.
However, respondent-mother only conclusorily asserts that there was no clear and convincing
evidence provided, and that the trial court therefore clearly erred. She does not recite the
statutory grounds under which her parental rights were terminated, nor does she provide any
statements of the law regarding the statutory grounds or interpreting the statutory grounds. She
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did not apply any of the facts of the case to relevant caselaw or provide any analogous cases to
support her position. Respondent-mother essentially failed to provide any meaningful legal
analysis regarding this issue. Because respondent-mother merely asserted a position on appeal
without providing any authority or meaningful legal analysis, she has abandoned this issue on
appeal. See Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
VI. HEARSAY EVIDENCE
Respondent-father next argues that the trial court erred in admitting hearsay statements
and testimony from expert witnesses at the adjudication trial and the dispositional hearing
regarding the children’s credibility. We disagree.
As an initial matter, a considerable amount of hearsay and credibility evidence was
introduced, most of it without objection. A trial court is generally not obligated to strike
testimony sua sponte in the absence of an objection or any other request from counsel to
preclude that evidence. See People v Jones, 66 Mich App 223, 232-233; 238 NW2d 813 (1975).
Furthermore, neither respondent asserts that they received ineffective assistance of counsel. To
the extent either respondent objected, we will review the trial court’s admission of evidence for
an abuse of discretion. Albro, 303 Mich App at 760. To the extent respondent-father complains
of evidentiary errors to which no objection was made, our review is limited to plain error
affecting respondent-father’s substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d
253 (2008). An error generally will not affect substantial rights if it did not affect the outcome of
the proceedings. Id.MRE 801(c) defines hearsay as “a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evidence which is inadmissible for one purpose may be admissible for another
purpose. MRE 105. The rules of evidence apply at the adjudication trial. MCR 3.972(C)(1).
However, the rules of evidence do not apply at the initial dispositional hearing. MCR
3.973(E)(1). Moreover, “[a]ll relevant and material evidence, including oral and written reports,
may be received and may be relied on to the extent of its probative value.” MCR 3.973(E)(2).
The only apparent preserved objection to hearsay testimony, and the only objection
respondent-father actually identifies, was an objection to the investigator’s testimony regarding
her conversations with the children after the 2012 CPS investigation. The investigator testified
that the children initially stated that respondent-father was inappropriately touching them and
that it made them feel uncomfortable, but the next day recanted to say that respondent-father was
merely helping them bathe. The investigator noted that the 2012 CPS investigation was
unsubstantiated. In regard to respondent-mother, we agree with the trial court that the purpose of
the testimony was to demonstrate that, as of 2012, respondent-mother was placed on notice of
the potential issues. In other words, the investigator’s testimony was offered to establish its
effect on respondent-mother and not for the truth of the matter asserted. It was therefore not
hearsay. The trial court allowed the testimony admitted on that basis.
We agree with the trial court to some extent, but we also agree with respondent-father to
some extent. Specifically, the investigator’s testimony about her conversations with the children
during the 2012 CPS investigation was seemingly used to prove the truth of the matter asserted.
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However, MC testified at the adjudication trial that respondent-father perpetrated abuse in the
bathroom, and JC testified specifically that respondent-father inappropriately touched her while
she was bathing and that he did not seem to be doing so in a manner that indicated he was
helping her bathe. Thus, the investigator’s testimony was at the most cumulative, and the fact
that it included the children’s recantations might have even helped respondent-father by
undermining the children’s credibilities. Therefore, “based on review of the entire record, it is
more probable than not that the error was not outcome determinative.” Nahshal, 324 Mich App
at 717. Accordingly, we conclude that the error was harmless. To the extent that respondent-
father claims that hearsay evidence was erroneously admitted at the dispositional hearing, the
Michigan Court Rules clearly state that the rules of evidence do not apply at that proceeding.
MCR 3.973(E)(1). Thus, any argument that the trial court erred in admitting evidence as hearsay
at the dispositional hearing lacks merit.
Respondent-father asserts several other claims of evidentiary error to which no objection
was made. Respondent-father complains of several instances of hearsay testimony regarding
what an eye doctor, and possibly other individuals, said about the children’s eyesight and the
effect of delaying obtaining glasses for them. No objection was made to this testimony.
Importantly, respondent does not explain how this testimony prejudiced him, and we decline to
speculate. Mitcham, 355 Mich at 203. We do not find that any hearsay pertaining to the
children’s eyesight issues affected respondent-father’s substantial rights. In re Utrera, 281 Mich
App at 8.
Respondent-father finally argues that three experts were improperly permitted to render
opinions regarding the children’s credibilities. “[E]xpert testimony regarding the credibility of a
witness is improper, because the jury is the sole arbiter of witness credibility.” Franzel v Kerr
Mfg Co, 234 Mich App 600, 622; 600 NW2d 66 (1999). Again, however, respondent-father did
not object. We note that Dr. Simmons in fact opined that the children had decreased credibility,
and thus, even if it was improper, it benefitted respondents. Clearly, Dr. Simmons’s testimony
did not affect respondent-father’s substantial rights. In re Utrera, 281 Mich App at 8.
Strauss and Dr. Mercado both opined that there was no indication that either child was
lying during their psychological or psychiatric evaluations. The witnesses did not opine that the
children’s testimonies should be believed—only that there was no indication that they were
lying. Experts may not vouch for the veracity of a witness, but experts may properly testify
whether they found objective evidence within the scope of their expertise consistent or
inconsistent with an ultimate fact at issue. People v James, 182 Mich App 295, 297-298; 451
NW2d 611 (1990). We are unpersuaded that the experts’ testimonies here crossed the line.
Additionally, the trial court had the opportunity to observe the children’s testimonies, which it
indicated that it found credible. “[R]egard is to be given to the special opportunity of the trial
court to judge the credibility of the witnesses who appeared before it.” In re Miller, 433 Mich
331, 337; 445 NW2d 161 (1989).
Finally, the only other evidence of which respondent-father complains is the admission at
the dispositional hearing of a letter from JC. As noted, the rules of evidence do not apply at the
dispositional hearing. MCR 3.973(E)(1). Because respondent-father has not presented argument
regarding any other hearsay or credibility-assessment evidence, we decline to analyze them in
the first instance, and we conclude that they must not have affected his substantial rights.
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Mitcham, 355 Mich at 203; In re Utrera, 281 Mich App at 8. Therefore, we cannot conclude that
reversal is warranted. See Nahshal, 324 Mich App at 717.
VII. CUMULATIVE ERROR
Lastly, both respondents argue that, although each of the errors in this case standing alone
may not require reversal, their cumulative effect does require reversal. We disagree.
We review de novo an issue of cumulative error to determine if the combination of
alleged errors denied respondents a fair trial. People v Knapp, 244 Mich App 361, 387; 624
NW2d 227 (2001). “The cumulative effect of several minor errors may warrant reversal even
where individual errors in the case would not warrant reversal. In order to reverse on the
grounds of cumulative error, the errors at issue must be of consequence.” Id. at 388 (citations
omitted). Stated differently, “the effect of the errors must have been seriously prejudicial in
order to warrant a finding that defendant was denied a fair trial.” Id. (citation omitted). As
discussed, most of the errors asserted by respondents were not errors, and the remainder were
harmless. Because harmless errors do not accumulate, reversal is not warranted.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Amy Ronayne Krause
/s/ Colleen A. O'Brien
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