concluding that the failure to admit recorded statements at a tender-years hearing was harmless
How later courts described this case
- concluding that the failure to admit recorded statements at a tender-years hearing was harmless
Written by the judges who cited it.
The opinion
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UNPUBLISHED
March 17, 2025
2:47 PM
In re JV, BS, and SZ, Minors.
No. 370510
Sanilac Circuit Court
Family Division
LC No. 22-036601-NA
In re JV, Minor. No. 370511
Sanilac Circuit Court
Family Division
LC No. 22-036601-NA
In re SZ, Minor. No. 370513
Sanilac Circuit Court
Family Division
LC No. 22-036601-NA
In re BS, Minor. No. 370694
Sanilac Circuit Court
Family Division
LC No. 22-036601-NA
Before: MALDONADO, P.J., and LETICA and WALLACE, JJ.
PER CURIAM.
-1-
In Docket No. 370510, respondent KS appeals as of right an order terminating her parental
rights to JV, BS, and SZ pursuant to MCL 712A.19b(3)(b)(i) (physical injury or physical or sexual
abuse to the child or a sibling), (g) (failure to provide proper care or custody), (j) (likelihood of
harm to the child), and (k)(iii) (severe physical abuse). In Docket No. 370511, respondent JVS
appeals as of right an order terminating his parental rights to JV pursuant to MCL
712A.19b(3)(a)(ii) (desertion), (h) (imprisonment such that the child will be deprived of a normal
home for over two years), (j), and (m) (conviction of certain enumerated crimes). In Docket No.
370513, respondent ZZ appeals as of right an order terminating his parental rights to SZ pursuant
to MCL 712A.19b(3)(b)(i), (g), (j), and (k)(iii). In Docket No. 370694, respondent NW appeals
as of right an order terminating his parental rights to BS pursuant to MCL 712A.19b(3)(c)(i)
(failure to rectify conditions leading to adjudication) and (j). We affirm in all four appeals.
I. BACKGROUND
KS and ZZ had custody of the three boys at the time of removal and the filing of the initial
petition. JVS was incarcerated, serving a sentence of life imprisonment without the possibility of
parole. KS, ZZ, and JVS demanded a jury trial for purposes of adjudication, and the jury found
that the court had jurisdiction over the children. The court subsequently terminated KS’s, ZZ’s,
and JVS’s parental rights at the initial dispositional hearing, finding that KS and ZZ had inflicted
multiple types of physical and sexual abuse upon the children and that JVS had committed
extremely serious crimes and had not supported or cared for JV. NW did not demand a jury trial
and instead made a plea of admission to the petition for jurisdiction. He was offered services by
petitioner, the Department of Health and Human Services (DHHS). After several review hearings,
the court terminated his parental rights to BS, finding that NW had failed to comply with the
services.
On appeal, KS and ZZ contend that the trial court erred by allowing into evidence
statements the children made to other people. They also contend that the trial court erred by finding
that there were statutory grounds for termination and that termination was in the children’s best
interests. JVS argues that the trial court erred by finding that there were statutory grounds for
termination. NW argues that the trial court erred by finding that there were statutory grounds for
termination and that termination was in BS’s best interests.
II. STANDARDS OF REVIEW
“A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.
An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of
principled outcomes.” In In re Brown/Kindle/Muhammad, 305 Mich App 623, 629; 853 NW2d
459 (2014).
To terminate parental rights, the trial court must initially find, by clear and convincing
evidence, a statutory ground for termination, MCL 712A.19b(3), and this Court reviews for clear
error the trial court’s factual findings and its ultimate determination that a statutory ground has
been established, In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). A finding is clearly
erroneous if, even if some evidence supports it, the reviewing court is nevertheless left with the
firm and definite conviction that the lower court made a mistake. Id.
-2-
This Court reviews for clear error a lower court’s decision that termination is in a child’s
best interests. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012).
III. DOCKET NOS. 370510 AND 370513: KS AND ZZ
A. TENDER-YEARS HEARING
KS and ZZ argue that the trial court erred by admitting testimony regarding statements that
the children made to other people. We disagree.
In May 2023, petitioner filed a motion to admit evidence of statements made by the children
to others, in accordance with MCR 3.972(C)(2). This court rule provided, at the pertinent time
and in pertinent part:
Child’s Statement. Any statement made by a child under 10 years of age or
an incapacitated individual under 18 years of age with a developmental disability
as defined in MCL 330.1100a(26) regarding an act of child abuse, child neglect,
confirmed sexual abuse, or confirmed sexual exploitation, as defined in MCL
722.622(g), (k), (q), or (r), performed with or on the child by another person may
be admitted into evidence through the testimony of a person who heard the child
make the statement as provided in this subrule.
(a) A statement describing such conduct may be admitted regardless of
whether the child is available to testify or not, and is substantive evidence of the act
or omission if the court has found, in a hearing held before trial, that the
circumstances surrounding the giving of the statement provide adequate indicia of
trustworthiness. This statement may be received by the court in lieu of or in
addition to the child’s testimony. [Former MCR 3.972(C)(2).1]
“Developmental disability” is defined, in pertinent part, as follows:
(a) If applied to an individual older than 5 years of age, a severe, chronic
condition that meets all of the following requirements:
(i) Is attributable to a mental or physical impairment or a combination of
mental and physical impairments.
(ii) Is manifested before the individual is 22 years old.
(iii) Is likely to continue indefinitely.
1
Nonsubstantive changes were made to the rule after the proceedings in this case.
-3-
(iv) Results in substantial functional limitations in 3 or more of the
following areas of major life activity:
(A) Self-care.
(B) Receptive and expressive language.
(C) Learning.
(D) Mobility.
(E) Self-direction.
(F) Capacity for independent living.
(G) Economic self-sufficiency.
(v) Reflects the individual’s need for a combination and sequence of special,
interdisciplinary, or generic care, treatment, or other services that are of lifelong or
extended duration and are individually planned and coordinated. [Former MCL
330.1100a(26).2]
Petitioner stated in its motion that BS was nine years old, SZ was seven years old, and JV
was 12 years old. Petitioner noted that JV had been diagnosed as having a developmental disability
and referred to an Easter Seals assessment. Petitioner set forth the various statements the children
had made to others during the course of the case. Petitioner stated that “[a]ll of the individuals
who interviewed the minor boys in this matter have been trained in forensic interviewing
techniques (with the exception of foster mom)” and argued that there was “adequate indicia of
trustworthiness.” At oral arguments regarding the motion, petitioner’s attorney noted that the court
had just heard the foster mother testify regarding a motion for a protective order3 and could assess
her trustworthiness.
The court stated that JV had a developmental disability “based upon the record and file in
this matter.” The court also said that it had examined the “specific[] disclosures made by the
children” and concluded “that the circumstances surrounding the giving of their statements
provide . . . adequate indicia of trustworthiness.” It noted that the statements SZ made to the foster
mother had been spontaneous, that the children’s statements were consistent, that the children had
no motive to fabricate, and that children “of their age [would not] be able to fabricate these stories
using [the] language or visible descriptions that they are using.” In a later order, the court allowed
some additional statements, noting that they were corroborative and consistent with the other
statements.
2
The definition is now located in subsection (27).
3
The protective-order motion hearing took place on the same date as the motion hearing regarding
the request to allow the children’s statements into evidence.
-4-
During the May motion hearing, DHHS’s attorney had said that she did not have the
videotapes of interviews that took place at the Children’s Advocacy Center (CAC). On November
1, 2023, the court (a successor judge) stated that there had been a “renewed motion on the issue of
the tender years exception” and that “everyone seems to agree that” the court needed to review the
recordings of the CAC interviews, which consisted of 10 hours of tape. The court heard the parties’
renewed oral arguments and listened to the tapes. It later issued a written opinion. The court stated
that, after reviewing the recordings and reading the Easter Seals assessment, it concluded that JV
had a developmental disability. The court indicated that the statements made by SZ to the foster
mother were spontaneous, that the various interviewers were trained in forensic interviewing, that
there was consistency among the various statements provided by the children, that the children had
no motive to fabricate, and that children “of their age” would not “normally be able to fabricate
these facts.” The court added:
The Court finds that there is no prejudice to the parties by the Court
reviewing the CAC interviews at this later date and conducting a second tender
years hearing, which was outside the presence of the jury and not during the
adjudication trial. This [o]rder is largely consistent with the ruling delivered by
[the previous judge], and the parties had months to prepare for cross-examination
of the witnesses named in this opinion and order.
KS and ZZ contend that the May 2023 pretrial hearing was improper because the court did
not take testimony or properly review evidence concerning the trustworthiness of the children’s
statements. “The reliability of a statement [offered pursuant to MCR 3.992(C)(2)(a)] depends on
the totality of the circumstances surrounding the making of the statement.” In re Archer, 277 Mich
App 71, 82; 744 NW2d 1 (2007). “Circumstances indicating the reliability of a hearsay statement
may include spontaneity, consistent repetition, the mental state of the declarant, use of terminology
unexpected of a child of a similar age, and lack of motive to fabricate.” Id. In this case, the record
establishes that the court made its decision with this guidance. KS and ZZ seem to imply that the
people to whom the statements were made needed to testify at the tender-years hearing, but the
court rule does not require as much. Rather, it merely requires that the court conduct a hearing
prior to trial. MCR 3.972(C)(2)(a).
KS and ZZ also argue that the court erred by not viewing the CAC recording. MCL
712A.17b(5) provides:
A custodian of the videorecorded statement may take a witness’s
videorecorded statement. The videorecorded statement shall be admitted at all
proceedings except the adjudication stage instead of the live testimony of the
witness. The videorecorded statement shall state the date and time that the
statement was taken; shall identify the persons present in the room and state
whether they were present for the entire video recording or only a portion of the
video recording; and shall show a time clock that is running during the taking of
the statement.
“MCL 712A.17b(5) requires a trial court to admit videorecordings of a child’s forensic interview
during a nonadjudicatory stage—here, a tender-years hearing.” In re Brown/Kindle/Muhammad,
305 Mich App at 632.
-5-
The court’s failure to admit the CAC recordings at the first tender-years hearing was
erroneous. However, the error was harmless because the court subsequently viewed the 10 hours
of recordings and ruled anew on the motion to admit the children’s statements. See id. at 634
(concluding that the failure to admit recorded statements at a tender-years hearing was harmless).
“Even if an error occurred, this Court will not disturb the trial court’s order unless it would be
‘inconsistent with substantial justice’ to permit the order to stand.” In re Williams, 333 Mich App
172, 178; 958 NW2d 629 (2020), quoting MCR 2.613(A). It is not inconsistent with substantial
justice to refrain from reversing the trial court’s termination orders on the basis of this issue given
that the court did eventually view the recordings.
KS and ZZ contend that there was inadequate evidence that JV had a developmental
disability. See MCR 3.972(2). Petitioner, in its initial motion, referred to an Easter Seals
assessment contained in a confidential file. The assessment indicated that JV had certain
significant diagnoses. The assessment did indicate that the diagnoses were “provisional,” meaning
that the assessor recommended further observations. However, in the “Background” portion of
the assessment, it was set forth that JV had already been diagnosed with these conditions and
qualified for Community Mental Health services. Further information in the confidential file
amply supported the trial court’s conclusion regarding JV’s disability.
B. STATUTORY GROUNDS
KS and ZZ argue that petitioner failed to establish a statutory basis for termination of their
parental rights to the three children4 by clear and convincing evidence. We disagree.
The statutory grounds for termination of parental rights are articulated in MCL
712A.19b(3), which provides in pertinent part:
The court may terminate a parent’s parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
* * *
(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.
* * *
(g) The parent, although, in the court’s discretion, financially able to do so,
fails to provide proper care or custody for the child and there is no reasonable
4
KS is the mother of all three children, but ZZ is only SZ’s father, despite residing with and
abusing all three children.
-6-
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 the child is returned to the home of
the parent.
(k) The parent abused the child or a sibling of the child, the abuse included
1 or more of the following, and there is a reasonable likelihood that the child will
be harmed if returned to the care of the parent:
* * *
(iii) Battering, torture, or other severe physical abuse.
The evidence of pervasive and severe abuse perpetrated by both KS and ZZ against all
three children overwhelmingly established each of these grounds for termination. This case
initially came to CPS on the basis of allegations that ZZ taped and chained BS to a chair in his
automobile body shop. It came to light that ZZ also put BS in a garbage can in the bed of a pickup
truck and then hoisted the truck up on a vehicle lift. Further, ZZ dragged JV across the floor of
the body shop, causing scratches on his back. As the case progressed, evidence was uncovered
regarding numerous instances of physical abuse by both KS and ZZ. ZZ tasered all three children,
shot SZ with a BB gun, and gave JV a black eye by hitting him in the face. There was evidence
that KS would slap the children, at one point giving JV a bloody nose. JV had a mark on his mouth
at his forensic interview from being slapped by KS. The children also disclosed an incident in
which they were forced to take a bath together in ice-cold water. There was also evidence of an
ongoing pattern of sexual abuse perpetrated by KS and ZZ against all three children. This abuse
included performing sex acts on the children, performing sex acts on each other in the presence of
the children, and showing the children nude photographs of ZZ. The record showed the JV acted
out sexually and that KS and ZZ were aware of this, but failed to comply with the safety plan.
Finally, there was evidence that KS and ZZ forced JV to take the garbage out while naked during
the winter time.
In light of this evidence, the trial court did not clearly err by finding that the statutory
grounds for termination were established.
C. BEST INTERESTS
KS and ZZ argue that the trial court erred by finding that termination of parental rights was
in the best interests of the children. We disagree.
“If a trial court finds that a statutory basis for terminating parental rights exists by clear
and convincing evidence, it is required to terminate parental rights if it finds from a preponderance
of evidence on the whole record that termination is in the children’s best interests.” In re
-7-
Brown/Kindle/Muhammad, 305 Mich App at 637 (quotation marks and citation omitted); see also
MCL 712A.19b(5).
The trial court should weigh all the evidence available to determine the
children’s best interests. To determine whether termination of parental rights is in
a child’s best interests, the court should consider a wide variety of factors that may
include the child’s bond to the parent, the parent’s parenting ability, the child’s need
for permanency, stability, and finality, and the advantages of a foster home over the
parent’s home. The trial court may also consider a parent’s history of domestic
violence, the parent’s compliance with his or her case service plan, the parent’s
visitation history with the child, the children’s well-being while in care, and the
possibility of adoption. [In re White, 303 Mich App 701, 713-714; 846 NW2d 61
(2014) (quotation marks and citations omitted).]
The abuse described earlier all weighs overwhelmingly in favor of the court’s finding that
termination of parental rights was in the best interests of all three children. The evidence supported
a finding that the children were not bonded with KS or ZZ and did not want to see or live with
them. Both SZ and JV had expressed that they “hated” KS and ZZ. The children’s guardian ad
litem (GAL) said that the boys’ improvements since coming into foster care were “astounding,”
and, accordingly, she supported termination. Neither KS nor ZZ took accountability for the severe
trauma the boys had endured. The trial court did not clearly err by concluding that it was in the
best interests of JV, BS, and SZ to terminate KS’s parental rights and that it was in the best interests
of SZ to terminate ZZ’s parental rights. KS and ZZ contend that the case was built upon unreliable
statements by the children. However, we have concluded that the trial court properly admitted the
children’s statements, and this Court must give “due regard to the trial court’s special opportunity
to observe the witnesses” who testified about the children’s statements. See In re BZ, 264 Mich
App 286, 296-297; 690 NW2d 505 (2004).
For these reasons, the trial court did not clearly err by finding that termination of parental
rights was in the best interests of all three children.
In conclusion, in docket nos. 370510 and 370513, no errors warranting reversal have been
established. Accordingly, we affirm.
IV. DOCKET NO. 370511: JVS
JVS argues that the trial court erred by finding statutory grounds for termination of his
parental rights to JV.5 We disagree.
5
JVS argued in his main appellate brief that the trial court erred by ordering termination at the
initial dispositional hearing—which resulted in a lack of reunification services offered to JVS—
because the court did not make a finding of aggravated circumstances and there was no such
evidence of aggravated circumstances. After petitioner noted in its appellee brief that reunification
services are not required when the parent has been ordered to register under the Sex Offenders
-8-
Among other grounds,6 JVS’s parental rights were terminated pursuant to MCL
712A.19b(3)(m). This subdivision provides that termination of parental rights is appropriate if:
The parent is convicted of 1 or more of the following, and the court
determines that termination is in the child’s best interests because continuing the
parent-child relationship with the parent would be harmful to the child:
(i) A violation of section 136, 136a, 316, 317, 520b, 520c, 520d, 520e, or
520g of the Michigan penal code, 1931 PA 328, MCL 750.136, 750.136a, 750.316,
750.317, 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g.
(ii) A violation of a criminal statute that includes as an element the use of
force or the threat of force and that subjects the parent to sentencing under section
10, 11, or 12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL
769.10, 769.11, and 769.12.
(iii) A federal law or law of another state with provisions substantially
similar to a crime or procedure listed or described in subparagraph (i) or (ii).
JVS concedes that he was convicted of a listed crime but contends that the trial court did not
adequately explain why it would be harmful to JV to continue the parent-child relationship. The
court appears to have tied its finding of harm to the “horrific” nature of JVS’s crimes, including
criminal sexual conduct, and this was appropriate. JVS argues that because “best interests” is
mentioned in subdivision (m), DHHS needs to prove the “best interests” aspect of the subdivision
by clear and convincing evidence, whereas the trial court mentioned “a preponderance of
evidence” when discussing best interests. However, subdivision (m) requires a finding “that
termination is in the child’s best interests because continuing the parent-child relationship with the
parent would be harmful to the child.” In other words, the best-interests finding is tied to the
finding of harm, and the court specifically stated that continuing the parent-child relationship
would be harmful to JV. That termination was in JV’s best interests was demonstrated not only
by the nature of JVS’s crimes but also by the evidence that JV had significant special needs and
needed “special care,” had vastly improved in foster care, and had no bond with JVS.
Because it is only necessary to establish one statutory ground for termination, we decline
to review JVS’s arguments regarding the other grounds cited by the trial court. See In re Ellis,
294 Mich App 30, 32; 817 NW2d 111 (2011). Therefore, in docket no. 370511, we affirm.
Registration Act (SORA), MCL 28.721 et seq., see MCL 712A.19a(2)(d), JVS made the following
statement in his reply brief: “Respondent-Father concedes that he is listed on the SORA and, thus,
that MCL 712A.19a(2)(d) applies. Therefore, Respondent-Father withdraws that issue from his
appeal.” JVS has, therefore, abandoned his argument about a lack of reunification services.
6
Petitioner conceded at oral arguments that the trial court erred with respect to its reliance on
712A.19b(3)(h).
-9-
V. DOCKET NO. 370694: NW
A. STATUTORY GROUNDS
NW argues that petitioner failed to establish a statutory basis for termination of his parental
rights to BS by clear and convincing evidence. We disagree.
Among other grounds, NW’s parental rights were terminated pursuant to MCL
712A.19b(3)(c)(i). Termination pursuant to subsection (c)(i) is appropriate when “the totality of
the evidence” supports a finding that the parent “had not accomplished any meaningful change in
the conditions” that led to adjudication. In re Williams, 286 Mich App 253, 272; 779 NW2d 286
(2009). Additionally, the court must find that “there is no reasonable likelihood that the conditions
will be rectified within a reasonable time considering the child’s age.” MCL 712A.19b(3)(c)(i).
The determination of what constitutes a reasonable time includes both how long the parent will
take to improve the conditions and how long the child can wait for the improvements to occur. In
re Dahms, 187 Mich App 644, 648; 468 NW2d 315 (1991).
On March 2, 2023, NW made a plea of admission to some of the allegations against him.
He admitted that he lacked stability in his life, had left BS without supervision, abused substances,
and was facing criminal charges involving a motor-vehicle accident during which BS was present.
He admitted that he had not followed numerous safety plans that had been implemented, that BS
had been exposed to verbal arguments, that he had been unhoused while BS was in his custody,
and that BS had not been attending school regularly. A DHHS worker testified at the termination
hearing that NW stopped visiting BS and stopped communicating with DHHS in July 2023.7 NW
had not seen BS since July 28, 2023. He had not completed any services that had been ordered.
The worker agreed that DHHS had “ma[d]e beyond reasonable efforts really to contact him and
try to get him into those services.” In July 2023, NW told DHHS that he wanted to “sign off” his
parental rights. The worker stated that NW had not rectified any of the conditions leading to
adjudication.
In sum, the record establishes that NW wholly failed to make any progress toward
rectifying the conditions leading to adjudication. Therefore, the court did not err by finding that
petitioner established MCL 712A.19b(c)(3)(i) by clear and convincing evidence, and we do not
need to review his arguments regarding subsection (j). See Ellis, 294 Mich App at 32.
B. BEST INTERESTS
NW argues that the trial court erred by finding that termination of parental rights was in
the best interests of BS. We disagree.
7
He apparently had one communication afterwards, in September 2023, when he repeated an
earlier desire to voluntarily release his parental rights.
-10-
At the outset, we note that although NW’s appellate counsel argues that the trial court
clearly erred by determining that it was in BS’s best interest to terminate NW’s parental rights, he
cites outdated law stating that the court “must order termination of parental rights” unless
“termination is not in the child’s best interest.” In this regard, we note that in 2008 the Legislature
amended MCL 712A.19b(5), requiring a trial court to always make an affirmative finding “that
termination of parental rights is in the child’s best interests.” This change was effective on July
11, 2008. See 2008 PA 199.
As discussed earlier, when determining whether termination of parental rights is in the best
interests of the child,
[T]he court should consider a wide variety of factors that may include the child’s
bond to the parent, the parent’s parenting ability, the child’s need for permanency,
stability, and finality, and the advantages of a foster home over the parent’s home.
The trial court may also consider a parent’s history of domestic violence, the
parent’s compliance with his or her case service plan, the parent’s visitation history
with the child, the children’s well-being while in care, and the possibility of
adoption. [White, 303 Mich App at 713-714 (quotation marks and citations
omitted).]
As noted earlier, NW had virtually no contact with BS during the pendency of the
proceedings and at times expressed interest in releasing his parental rights. The DHHS worker
testified that the bond between NW and BS had been limited from the start and that by the time of
the termination proceedings, no bond between the two remained. While BS needed intensive
therapy due to behavioral issues, the worker testified that he was doing well overall. She said that
BS’s foster home was safe, appropriate, and met all of his needs. The worker described BS as
“very happy” with his foster family and remarked that the foster parents had significantly helped
him catch up academically. The caseworker and GAL each opined that termination of parental
rights was in BS’s best interests.
Given this evidence, NW cannot establish a clear error arising from the trial court’s finding
that termination of parental rights was in the best interests of BS.
In conclusion, because NW’s arguments are each without merit, we affirm in Docket No.
370694.
VI. CONCLUSION
In Docket No. 370510, KS has failed to establish any errors warranting reversal regarding
the tender-years hearing, the statutory grounds for termination, or best interests. Therefore, we
affirm the trial court’s order terminating KS’s parental rights to JV, SZ, and BS.
In Docket No. 370513, ZZ raises the same meritless arguments as KS. Therefore, we
affirm the trial court’s order terminating ZZ’s parental rights to SZ.
In Docket No. 370511, JVS has failed to establish any errors warranting reversal regarding
the statutory grounds for termination. Therefore, we affirm the trial court’s order terminating
JVS’s parental rights to JV.
-11-
In Docket No. 370694, NW has failed to establish any errors warranting reversal regarding
the statutory grounds for termination or best interests. Therefore, we affirm the trial court’s order
terminating NW’s parental rights to BS.
/s/ Allie Greenleaf Maldonado
/s/ Anica Letica
/s/ Randy J. Wallace
-12-