Ovalle Lutheran Social Services v. Ovalle , 140 Mich. App. 79 ( 1985 )

140 Mich. App. 79 (1985) 363 N.W.2d 731

IN THE MATTER OF OVALLE
LUTHERAN SOCIAL SERVICES
v.
OVALLE

Docket Nos. 76471, 76635.

Michigan Court of Appeals.

Decided January 2, 1985.

Peter D. Houk, Prosecuting Attorney, Robert B. Ebersole, Chief Appellate Attorney, and Susan L. LeDuc, Assistant Prosecuting Attorney, for petitioner.

Philip J. Dwyer, Guardian Ad Litem, for the minor children.

Ball, Van Dam & Ross, P.C. (by Richard D. Ball), for Susan Ovalle.

Charles M. Zwick, for Robert Ovalle, Sr.

Before: DANHOF, C.J., and GRIBBS and ALLEN, JJ.

GRIBBS, J.

Susan Ovalle and Robert Ovalle, Sr., appeal as of right from the Ingham County Probate Court's January 30, 1984, order terminating their parental rights. We affirm.

Susan Ovalle and Robert Ovalle, Sr., were divorced in 1980. Susan Ovalle retained custody of the two minor children, Robert, Jr., born on June 16, 1974, and Donnie, born on June 7, 1978. In May of 1980, the children were first removed from Susan Ovalle's home and placed in temporary foster care by a protective services caseworker. They were returned to her custody in August of 1980, but were again placed in foster care in December of 1980. The children were returned to her care in January, 1982, but were removed and placed in foster care for a third time in November of 1982. They were in foster care for a total of 930 days. In October of 1983, Robert Ovalle, Sr.'s mother, Rose Heller, petitioned the probate court for custody of the children. The children's case-worker also petitioned the probate court to take permanent jurisdiction. Finding that a ruling on Rose Heller's petition might resolve the issue of permanent custody to the parties' satisfaction, the court abated the proceedings on the permanent jurisdiction petition until it ruled on the grandmother's petition. Following the hearing on Rose Heller's petition for custody, the probate court found her unable to provide the children with a proper home and denied her petition. After a hearing on the caseworker's petition, the probate court terminated Susan Ovalle's and Robert Ovalle, Sr.'s parental rights and issued an order to that effect on January 30, 1984.

Susan Ovalle and Robert Ovalle, Sr., contend that the probate court violated their right to due process by admitting the children's foster mother's hearsay evidence at the termination proceedings. The probate court may consider all relevant and material evidence, including hearsay, at the dispositional phase of a termination proceeding. JCR 1969, 8.3(B); In the Matter of Hinson, 135 Mich App 472; 354 NW2d 794 (1984). The requirements of due process do not prevent the admission of hearsay testimony as long as the evidence is fair, reliable and trustworthy. Hinson, supra. In the instant case, although respondents objected to the admission of the foster mother's testimony concerning her conversations with the children, they did not suggest that such testimony was unreliable or not trustworthy. Moreover, the children's out-of-court statements to their foster mother were merely offered to show the children's feelings about being returned to their parents' custody, not to prove that they were unfit parents. We agree with the probate court that the children's feelings about being returned to their parents' custody were relevant considerations on the termination issue.

Susan Ovalle and Robert Ovalle, Sr., also contend that the probate court erred in terminating their parental rights. In reviewing parental rights termination decisions of the probate court, there has been confusion as to whether the standard of review is de novo or "clearly erroneous". In the Matter of Mudge, 116 Mich App 159, 161; 321 NW2d 878 (1982). However, we adopt the rationale in In the Matter of Irving, 134 Mich App 678; 352 NW2d 295 (1984), and find that the correct standard is the "clearly erroneous" standard of review. De novo review was originally applied to child custody determinations which were heard by the chancery division of the court. In contrast, the probate court is a statutory court, and MCL 600.866(1); MSA 27A.866(1) provides that all appeals from the probate court must be decided on the record and not tried de novo. Irving, supra.

Our review of the record persuades us that the probate court did not err in terminating Susan Ovalle's parental rights based on neglect and her inability to provide a proper home within the next 12 months. MCL 712A.19a(e) and (f); MSA 27.3178(598.19a)(e) and (f). There was clear and convincing evidence of long-term neglect. Fritts v Krugh, 354 Mich 97, 116; 92 NW2d 604 (1958); In the Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973). The children were removed from her custody three times and were in foster care for 930 days. The evidence also established her inability to make any progress toward establishing a good home in the near future. Susan Ovalle repeatedly disobeyed court orders requiring her to pursue counseling or therapy and job training. Although she claimed that she had kicked her drug habit and would follow the court's orders, her prior record of promising to reform and then continuing to neglect her children justified the probate court's conclusion that there would not be a change in her ability to provide a proper home for the children within the following 12 months. See MCL 712A.19a(f); MSA 27.3178(598.19a)(f).

The probate court also did not err in terminating Robert Ovalle, Sr.'s parental rights. Due to his incarceration of from 7 to 20 years for criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), he would not likely be able to provide his children with a suitable home for at least two years. MCL 712A.19a(d); MSA 27.3178(598.19a)(d).

Robert Ovalle, Sr., additionally argues that his mother, Rose Heller, could provide the children with a proper home. The probate court specifically considered her petition for custody prior to the termination proceedings and denied the petition after determining that her home was not a suitable environment for the children. Rose Heller is not a party to this appeal, and her son does not have standing to raise this issue. In the Matter of Campbell, 129 Mich App 780, 784; 342 NW2d 607 (1983).^[1]

In conclusion, the probate court properly admitted the foster mother's testimony regarding the children's feelings on being returned to their parents' custody, and there was clear and convincing evidence supporting the probate court's decision to terminate Susan Ovalle's and Robert Ovalle, Sr.'s parental rights.

Affirmed.

NOTES

[1] The cases cited by respondent Robert Ovalle, Sr., dealt with the assumption of jurisdiction by the probate court when a parent has placed a child in the custody of a relative whose home has not been deemed unfit. In the Matter of Curry, 113 Mich App 821, 823-827; 318 NW2d 567 (1982), and cases cited therein. In this case the court considered the fitness of the grandmother's home specifically because it believed that its decision on this matter might resolve the petition for termination of parental rights to the satisfaction of the parties.