If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

FOR PUBLICATION

In re MOTA, Minors. October 22, 2020

9:05 a.m.

No. 351830

Lenawee Circuit Court

Family Division

LC No. 19-000253-NA

Before: BOONSTRA, P.J., and MARKEY and HOOD, JJ.

MARKEY, J.

Respondent father appeals by right the trial court’s order terminating his parental rights to 

his three minor children pursuant to MCL 712A.19b(3)(b)(i) (a sibling of the children suffered 

sexual abuse caused by the parent’s act), (j) (reasonable likelihood that children will be harmed if 

returned to parent’s home), and (k)(ix) (parent sexually abused a sibling of the children and there 

is a reasonable likelihood of harm to the children if returned to parent’s care). On appeal, 

respondent presents three arguments. First, he contends that the trial court erred by combining the 

adjudication trial with the initial disposition hearing, resulting in one indistinguishable court 

proceeding. Second, respondent argues that his attorney was ineffective for failing to object to the 

trial court’s merging the adjudicative and dispositional phases of the case. Third, respondent 

maintains that the trial court erred by finding that it was in the children’s best interests to terminate 

respondent’s parental rights. We affirm. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In February 2019, the petitioner, the Department of Health and Human Services (DHHS), 

filed a petition to remove the minor children from respondent’s care and to terminate his parental 

rights. Although the minor children’s mother was listed as a respondent in the petition, she was 

subsequently dismissed from the case absent any adjudication relative to her parental rights. In 

the petition, the DHHS alleged that respondent had sexually abused the minor children’s halfsister, LP, by taking photographs of her anal and vaginal areas while LP pretended to be asleep. 

The petition asserted that jurisdiction was proper under MCL 712A.2(b)(1) and (2), that grounds 

for termination existed under MCL 712A.19b(3)(b)(i), (j), and (k)(ix), and that termination of 

respondent’s parental rights was in the children’s best interests. The trial court authorized the 

petition and placed the children with their mother. 
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In June 2019, the DHHS moved under MCR 3.972(C)(2) to admit statements LP had made 

to her maternal grandmother, Cynthia Johnson, regarding the sexual abuse. The DHHS argued 

that the statements LP made to Johnson satisfied the criteria for admissibility set forth in MCR 

3.972(C)(2).1 On October 24, 2019, the trial court conducted a tender-years’ hearing under MCR 

3.972(C)(2)(a). At the hearing, Johnson testified that LP was seven years old when she made 

statements to Johnson concerning the acts respondent allegedly committed. When Johnson was 

playfully tickling LP, she told Johnson that respondent had entered LP’s bedroom the night before 

while LP was in bed. According to LP, respondent pulled down LP’s pants and underwear and 

touched her buttocks. LP also told Johnson that respondent spread LP’s buttocks apart, that he

had a flashlight or a phone light that was turned on at the time, and that she believed that respondent 

took photographs of her. Johnson testified that LP indicated that she was scared and did not know 

what to do, so she pretended to be asleep even when respondent turned her over. LP appeared 

nervous to Johnson, but Johnson believed that this was because LP did not know how Johnson 

would react to LP’s assertions. Johnson noted that respondent had helped raise LP since before 

she was age one and that LP referred to respondent as “dada.” 

Kevin Sellers, who was employed by the DHHS, testified that he conducted a forensic 

interview of LP regarding her allegations of sexual abuse by respondent. LP informed Sellers that 

she was sleeping on her back when a light woke her up. LP told Sellers that she knew that it was 

respondent in her room with a light and that she pretended to be sleeping. According to LP, 

respondent pulled LP’s pants and underwear down with the light still on. LP explained to Sellers 

that respondent turned LP over onto her stomach and moved the light down to her buttocks area. 

As she had told Johnson, LP indicated to Sellers her belief that respondent was taking photographs 

of her. Sellers testified that LP informed him that respondent spread her buttocks apart and

“toward her . . . vaginal area.” 

At the conclusion of the testimony by Johnson and Sellers and following arguments by the 

parties on the DHHS’s tender-years’ motion, the trial court granted the motion, allowing for the 

 

1 MCR 3.972(C) provides, in relevant part, as follows:

(2) Any statement made by a child under 10 years of age . . . regarding an 

act of . . . sexual abuse . . . 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.

(b) If the child has testified, a statement denying such conduct may be used 

for impeachment purposes as permitted by the rules of evidence.
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admission of LP’s statements into evidence at trial. The court found that LP was under 10 years

of age when the statements were made, that the statements were sufficiently trustworthy, that LP 

made the statements spontaneously, and that LP had behaved appropriately under the 

circumstances. Accordingly, the criteria in MCR 3.972(C)(2) were satisfied. The trial court 

further concluded that LP’s statements were made to someone she trusted, that subsequent 

assertions LP made to Sellers were consistent with those made to Johnson, that there was nothing 

to suggest LP had a motive to lie about the incident, and that the terminology used by LP to 

describe the events was consistent with the language one would expect of a child her age. 

After the trial court granted the DHHS’s motion and a half-hour recess, the court 

commenced a combined adjudication trial and dispositional hearing. Rachelle VanAken, a Special 

Assault Nurse Examiner (SANE), testified that she physically examined LP around the time of the 

disclosure of sexual abuse. VanAken prepared a report concerning her examination, which 

included various statements LP made to VanAken. The DHHS sought to admit the SANE report

into evidence; respondent objected on the basis that the report contained information and directions 

that were supposedly given to the “patient” but were actually provided to Johnson. VanAken 

explained that some information and directions normally given to a patient are often given to the 

patient’s caregiver when the patient is a minor. The trial court overruled respondent’s objection. 

When VanAken physically examined LP, she observed some bruises on LP’s shins, which 

LP thought had been caused by bumping into something. VanAken testified that there was white 

discharge between LP’s labia and hymen, a tear where LP’s labia come together posteriorly, and 

a small abrasion on the outside of LP’s anus. LP reported to VanAken that her buttocks hurt “a 

little.” VanAken opined that the injuries were “highly suggestive” of sexual abuse. VanAken 

explained:

Due to the fact that she was saying that he spread her apart and depending 

on the force that was used or the pressure that was put on you can actually tear that 

tissue by spreading the areas around the vaginal area if you use your hands to spread 

that open you can actually tear that tissue and the same thing can kind of happen 

with the anal area. Any force that is used to spread open the anal area can cause 

injuries. 

According to VanAken, LP told her that respondent checked LP’s buttocks with a flashlight

while she pretended to sleep. VanAken believed that LP’s version of events was consistent with 

her physical injuries. Respondent raised a hearsay objection, which was overruled by the trial 

court on the basis of the medical treatment or diagnosis exception to hearsay, MRE 803(4). LP 

also informed VanAken about a history of domestic violence in the family home, describing 

several events, including one where respondent choked the children’s mother, which resulted in 

intervention by Johnson and her husband and a call to the police. 

Johnson was once again called to testify about the statements LP made to her. Johnson’s 

testimony was consistent with the testimony she gave during the tender-years’ hearing, with a few 

clarifications. On the basis of her discussion with LP, Johnson was unsure whether respondent 

had successfully turned LP over onto her back or if he had only attempted to do so. In addition, 

LP told Johnson that respondent did not put anything inside of her and had only touched her 

buttocks. Johnson did not believe that the minor children were bonded with respondent because
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he rarely engaged in activities with the children. Whenever Johnson saw them together, the 

children were playing by themselves while respondent played video games. 

Jill Heilmann, a children’s protective services worker, testified to her belief that the minor 

children were likely to be harmed if returned to respondent’s care. She was concerned about 

respondent’s having access to the children considering his sexual abuse of LP. Heilmann also 

noted that respondent had provided very little support for the minor children. Heilmann further

expressed concern regarding the alleged domestic violence, but the trial court struck this testimony 

when respondent objected on the ground that it constituted hearsay. In Heilmann’s opinion, the 

minor children had a heightened need for stability and permanency due to their ages—they were 

all under six years old. To the best of Heilmann’s knowledge, respondent had neither been arrested 

nor charged for the alleged sexual abuse of LP. 

Heilmann testified that before proceedings were commenced, the minor children had lived 

with their four older siblings, their mother, and respondent in a rental unit. At some point between 

the initiation of this case and trial, the family was evicted from the rental home and the children 

and their mother had moved in with Johnson and Johnson’s husband. According to Heilmann, the 

children were all bonded with each other. 

The children’s mother testified that respondent moved out of their home after LP made the 

allegations against respondent. She also touched on the alleged history of domestic violence, 

claiming that while respondent had not physically assaulted her, he would stand in her way and 

prevent her from leaving a room. The children heard some of their arguments although the 

children’s mother did not intend to argue in front of them. According to the children’s mother, 

respondent sometimes yelled at the children and spanked them for disciplinary purposes but never 

in a way that she deemed inappropriate. She never saw respondent physically mistreat any of the 

minor children. Because of the age of the youngest child, the children’s mother did not believe 

that the child and respondent had bonded. But the other two children talked about respondent often 

and said that they missed him. In the mother’s view, one child was having behavioral issues caused 

or exacerbated by respondent’s absence. When the child was angry with the children’s mother, 

the child would cry and ask for respondent. 

After the proofs were submitted, there was a power outage, so the court adjourned the 

matter for the day. A week later the case was reconvened, and the trial court issued its ruling from 

the bench. The trial court found a basis to exercise jurisdiction under MCL 712A.2(b)(1) and (2),

and it terminated respondent’s parental rights to the minor children. The petition had alleged 

grounds for termination under MCL 712A.19b(3)(b)(i), (j), and (k)(ix), and while the court’s ruling 

was a bit vague, it appeared that the court found that all three provisions had been proven by clear 

and convincing evidence. The primary premise of the court’s decision was its finding that there 

was “sexual abuse in this case.” The trial court concluded that the evidence even revealed some 

penetration. 

In finding a basis to exercise jurisdiction and to terminate respondent’s parental rights, the 

trial court determined that the minor children would be at a substantial risk of harm by respondent 

for two reasons related to respondent’s sexual abuse of LP. First, there was a direct risk of 

respondent’s engaging in similar conduct with his children and, second, there was a risk to the

children’s mental, physical, and emotional well-being in being raised by someone who would do 
-5-

such things. The trial court also found that termination was in the minor children’s best interests 

because they needed permanency, stability, and an environment safe from potential victimization. 

Furthermore, the court determined that the bond between the children and respondent, while 

significant, actually posed a danger to the children because they could be abused or learn negative 

behaviors and a lack of impulse control. The trial court also noted that the children were safe with 

their mother, who reported LP’s allegations immediately and continued to provide a good 

environment for the children. Respondent appeals by right. 

II. ANALYSIS

A. ADJUDICATION AND DISPOSITION IN A SINGLE COMBINED PROCEEDING

Respondent argues that the trial court erred when it combined the adjudication trial and the 

initial disposition hearing, resulting in a single indistinguishable proceeding. Respondent contends 

that “the record does not reflect that a separate hearing was conducted by the trial court to 

determine whether or not there was a preponderance of . . . evidence” to establish jurisdiction. 

Respondent further maintains that the SANE report prepared by VanAken was inadmissible 

because the medical treatment or diagnosis exception to hearsay, MRE 803(4), did not apply. 

Respondent similarly posits that some of VanAken’s testimony was based on hearsay statements 

LP made to VanAken and that LP herself stated that there was no penetration. And, according to 

respondent, there is no indication in the record whether the trial court used the SANE report and 

VanAken’s testimony for purposes of the adjudication or instead used the evidence to decide the 

issue of termination as part of the dispositional phase of the case. Respondent also argues that the 

trial court made no factual findings and thus it is unclear whether the court properly adjudicated 

respondent with legally admissible evidence. 

1. STANDARD OF REVIEW

“[F]amily division procedure under the court rules . . . [is] reviewed de novo.” In re AMAC, 

269 Mich App 533, 536; 711 NW2d 426 (2006). Respondent, however, did not preserve his 

argument below with an objection to the procedure employed by the trial court. Therefore, our 

review is for plain error affecting respondent’s substantial rights, and to justify reversal the plain 

error must also seriously affect the integrity, fairness, or public reputation of the judicial 

proceedings. In re Ferranti, 504 Mich 1, 30; 934 NW2d 610 (2019). 

2. INTERPRETATION OF THE COURT RULES

“When called upon to interpret and apply a court rule, this Court applies the principles that 

govern statutory interpretation.” Haliw v Sterling Hts, 471 Mich 700, 704-705; 691 NW2d 753 

(2005); see also Fleet Business Credit, LLC v Krapohl Ford Lincoln Mercury Co, 274 Mich App 

584, 591; 735 NW2d 644 (2007). “Court rules should be interpreted to effect the intent of the 

drafter, the Michigan Supreme Court.” Fleet Business, 274 Mich App at 591. Clear and 

unambiguous language contained in a court rule must be given its plain meaning and is enforced 

as written. Id. We may consult a dictionary to determine the plain meaning of an undefined term 

used in the court rules. Wardell v Hincka, 297 Mich App 127, 132; 822 NW2d 278 (2012).
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3. DISCUSSION

The DHHS, following an investigation, may petition a court to take jurisdiction over a 

child. In re Ferranti, 504 Mich at 15, citing MCR 3.961(A). The petition must contain essential 

facts that if proven would permit the court to assume and exercise jurisdiction over the child. MCR 

3.961(B)(3); MCL 712A.2(b); In re Ferranti, 504 Mich at 15. If a petition is authorized, the 

adjudication phase of the proceedings takes place, and the “question at adjudication is whether the 

court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) 

so that it can enter dispositional orders, including an order terminating parental rights.” In re 

Ferranti, 504 Mich at 15.

In In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014), the Michigan Supreme Court 

explained:

A brief review of the court rules and statutes governing child protective 

proceedings is helpful here. The juvenile code, MCL 712A.1 et seq., establishes 

procedures by which the state can exercise its parens patriae authority over minors. 

These procedures are reflected in Subchapter 3.900 of the Michigan Court Rules. 

In Michigan, child protective proceedings comprise two phases: the adjudicative 

phase and the dispositional phase. Generally, a court determines whether it can take 

jurisdiction over the child in the first place during the adjudicative phase. Once the 

court has jurisdiction, it determines during the dispositional phase what course of 

action will ensure the child's safety and well-being. [Citations omitted.]

If a trial is held regarding adjudication, the respondent is entitled to a determination of the 

facts by the jury or judge; the rules of evidence apply, and the burden of proof is a preponderance 

of the evidence. In re AMAC, 269 Mich App at 536. “The dispositional phase involves a 

determination of what action, if any, will be taken on behalf of the child.” Id. at 537. “Unlike the 

adjudicative [trial], at the initial dispositional hearing the respondent is not entitled to a jury 

determination of the facts and, generally, the Michigan Rules of Evidence do not apply, so all 

relevant and material evidence is admissible.” Id., citing MCR 3.911, MCR 3.973(E), and MCR 

3.977(A)(3). “Termination of parental rights may be ordered at the initial dispositional hearing.” 

In re AMAC, 269 Mich App at 537, citing MCR 3.977(E) and MCL 712A.19b(4).2 “If permanent 

termination of parental rights is sought, the petitioner bears the burden of proving the statutory 

basis for termination by clear and convincing evidence.” In re AMAC, 269 Mich App at 537; see 

also MCL 712A.19b(3). 

MCR 3.973 addresses procedural and substantive aspects of dispositional hearings, and 

Subrule (A) provides:

A dispositional hearing is conducted to determine what measures the court 

will take with respect to a child properly within its jurisdiction and, when 

applicable, against any adult, once the court has determined following trial, plea of 

 

2

“If a petition to terminate the parental rights to a child is filed, the court may enter an order 

terminating parental rights . . . at the initial dispositional hearing.” MCL 712A.19b(4).
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admission, or plea of no contest that one or more of the statutory grounds alleged 

in the petition are true. [Emphasis added.] 

The language of MCR 3.973(A) indicates that a dispositional hearing is to be conducted following 

or after a trial in which jurisdiction is established pursuant to statute. MCR 3.973(B) provides that 

“[u]nless the dispositional hearing is held immediately after the trial, notice of hearing may be 

given by scheduling it on the record in the presence of the parties or in accordance with MCR 

3.920.” This language plainly envisions the dispositional hearing taking place “after” the 

adjudication trial, whether immediately thereafter or later. MCR 3.973(C) provides, in relevant 

part, that “[t]he interval, if any, between the trial and the dispositional hearing is within the 

discretion of the court.” (Emphasis added.) An “interval” is “a space of time between events or 

states.” Merriam-Webster’s Collegiate Dictionary (11th ed). And even if there is no space of time 

“between” a trial and a dispositional hearing, which is permissible under MCR 3.973(C), the 

sequence of events nonetheless entails an adjudication trial followed by a dispositional hearing. 

MCR 3.977 addresses the termination of parental rights in the dispositional phase of the 

proceedings, and Subrule (E) provides, in pertinent part, as follows:

The court shall order termination of the parental rights of a respondent at 

the initial dispositional hearing held pursuant to MCR 3.973, and shall order that 

additional efforts for reunification of the child with the respondent shall not be 

made, if

(1) the original, or amended, petition contains a request for termination;

(2) at the trial or plea proceedings, the trier of fact finds by a preponderance 

of the evidence that one or more of the grounds for assumption of jurisdiction over 

the child under MCL 712A.2(b) have been established;

(3) at the initial disposition hearing, the court finds on the basis of clear and 

convincing legally admissible evidence that had been introduced at the trial or plea 

proceedings, or that is introduced at the dispositional hearing, that one or more facts 

alleged in the petition . . . .

The language of MCR 3.977(E) clearly envisions or contemplates two separate 

proceedings—a trial or plea relative to adjudication and a dispositional hearing for purposes of 

termination. MCR 3.977(E)(3) indicates that at an initial disposition hearing, a court can terminate 

parental rights on the basis of legally admissible evidence that had previously been introduced at 

the adjudication trial or legally admissible evidence presented for the first time at the dispositional 

hearing.3 Thus, MCR 3.977(E)(3) does allow a court, at the initial disposition hearing, to rely on 

 

3

In In re Utrera, 281 Mich App 1, 17-18; 761 NW2d 253 (2008), this Court noted that the

“petitioner sought termination of respondent's parental rights at the initial disposition in the 

amended petition, and MCR 3.977(E) provides that clear and convincing, legally admissible 

evidence was required.” (Emphasis added.) Thus, while generally the “Michigan Rules of 
-8-

evidence admitted at the adjudication trial to support termination. In that sense, MCR 3.977(E)(3) 

creates some murkiness with respect to the line of demarcation between an adjudication trial and 

an initial dispositional hearing. 

Reading MCR 3.973(A), (B), and (C) in conjunction with MCR 3.977(E)(3), we conclude 

that the following described process honors the intent of the court rules promulgated by our 

Supreme Court and applies when an adjudication trial is conducted and the DHHS requests 

termination at the initial dispositional hearing under circumstances such as those posed in this case. 

First, an adjudication trial is to be conducted with the court allowing the introduction of legally 

admissible evidence that is relevant to the exercise of jurisdiction under MCL 712A.2(b). At the 

conclusion of the adjudication trial, the court, in a bench trial, is to determine whether the DHHS 

established by a preponderance of the evidence a basis for jurisdiction under MCL 712A.2(b). If 

jurisdiction is not established, the proceeding is, of course, concluded. If the trial court finds that 

it has jurisdiction, the dispositional hearing in which termination is sought may immediately be 

commenced. At the termination hearing, the trial court, in rendering its termination decision under 

MCL 712A.19b, may take into consideration any evidence that had been properly introduced and 

admitted at the adjudication trial, MCR 3.977(E), along with any additional relevant and material 

evidence that is received by the court at the termination hearing, MCR 3.977(H)(2).

4

 

Evidence do not apply at the initial dispositional hearing,” MCR 3.973(E)(1), when termination is 

sought at the initial dispositional hearing, legally admissible evidence is required, MCR 

3.977(E)(3). When termination of parental rights is not being sought at the initial dispositional 

hearing nor on the basis of circumstances new or different from those that led the court to originally 

take jurisdiction, “[t]he Michigan Rules of Evidence do not apply, other than those with respect to 

privileges . . . .” MCR 3.977(H)(2). 

4 To the extent that the DHHS argues that this Court’s opinion in In re AMAC supports the trial 

court’s handling of the adjudication and dispositional phases of the case, we disagree. Indeed, In 

re AMAC fully supports our ruling, as reflected in the following passage:

In this case, there was an adjudicative hearing that concluded with the trial 

court rendering its written opinion and order terminating respondent's parental 

rights without a dispositional hearing either immediately following the trial or by 

proper notice after the trial. We construe the plain and ordinary language of MCR 

3.973(A) as requiring a dispositional hearing to be “conducted to determine what 

measures the court will take with respect to a child properly within its jurisdiction. 

. . .” Clearly, the dispositional hearing is to be held after the adjudicative phase of 

the proceeding in which it was determined that the child was properly within the 

court's jurisdiction. See MCR 3.973(A). And the dispositional hearing must be held 

either immediately following the adjudicative hearing or after proper notice. See 

3.973(B). Therefore, the trial court erred here in not affording respondent her right 

to a dispositional hearing. [In re AMAC, 269 Mich App at 538 (citations omitted; 

ellipses in original).]
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In this case, with respect to the presentation of evidence, the trial court did not separate the 

adjudication trial from the dispositional hearing, and it then issued rulings in regard to jurisdiction 

and termination after all of the proofs were submitted. The trial court, therefore, failed to proceed 

as required by the court rules. But on plain error review, we cannot conclude that respondent’s 

substantial rights were affected or that the integrity, fairness, or public reputation of the 

proceedings were seriously affected by the court’s procedural errors. With regard to respondent’s 

argument that the SANE report and VanAken’s testimony touching on LP’s assertions should not 

have been admitted into evidence and that it is impossible to tell whether the court used this 

evidence for adjudication or disposition, we note the record reflects that to the extent that the court

relied on the report and testimony, it was for purposes of both adjudication and termination. 

Moreover, the statements LP made to VanAken were “for purposes of medical treatment or 

medical diagnosis in connection with treatment and describing medical history, or past or present 

symptoms, pain, or sensations, or the inception or general character of the cause or external source 

thereof insofar as reasonably necessary to such diagnosis and treatment.” MRE 803(4). 

Respondent fails to develop any pertinent argument to the contrary. 

With respect to respondent’s contention that the trial court made no factual findings, 

leaving it unclear whether the court properly adjudicated respondent with legally admissible 

evidence, we find that argument lacks merit. The trial court, relying on legally admissible 

evidence, expressly found that respondent sexually abused LP, that there was penetration, and that 

there was a substantial risk of harm to the minor children in light of the sexual assault committed 

by respondent against LP. Moreover, these findings were used to support the exercise of 

jurisdiction and the termination of parental rights. 

In sum, we hold that the trial court committed procedural errors in conducting the 

adjudicative and dispositional phases of the case; however, respondent has failed to show that the 

errors affected his substantial rights or seriously affected the fairness, integrity, or public reputation 

of the judicial proceedings. 

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Respondent argues that his trial attorney was ineffective for failing to object to the trial 

court’s merger of the adjudicatory and dispositional phases of the case. 

 

Although a dispositional hearing can be conducted immediately after an adjudicative trial, the two 

cannot be converged such that there is no distinction. In re Thompson, 318 Mich App 375, 379; 

897 NW2d 758 (2016). 
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1. STANDARD OF REVIEW

Whether counsel was ineffective presents a mixed question of fact and constitutional law, 

which we review, respectively, for clear error and de novo. People v LeBlanc, 465 Mich 575, 579; 

640 NW2d 246 (2002). 

2. DISCUSSION

“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 Martin, 

316 Mich App 73, 85; 896 NW2d 452 (2016). To demonstrate prejudice, a party must show the 

existence of a reasonable probability that, but for counsel’s error, the results of the proceeding 

would have been different, and a reasonable probability is one that is sufficient to undermine 

confidence in the outcome. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). 

In light of our holding regarding the proper procedures under the court rules to be used in 

conducting an adjudicative trial and an initial dispositional hearing in which termination is sought, 

we conclude that trial counsel’s performance in failing to object to the process used in this case 

fell below an objective standard of reasonableness. Nevertheless, respondent simply cannot and 

does not establish the requisite prejudice. We are confident that the results of the adjudication and 

disposition would have been exactly the same had the court followed the proper procedures. 

Accordingly, reversal is unwarranted.

C. CHILDREN’S BEST INTERESTS

Finally, respondent argues that the trial court clearly erred by finding that termination of 

his parental rights was in the children’s best interests. Respondent contends that the children’s 

placement with their mother weighed heavily against termination and that the trial court failed to 

consider that the children were placed with a relative—their mother. He also maintains that the 

trial court failed to consider that the children had a good relationship and strong bond with their 

father. Respondent claims that terminating his parental rights was traumatic for the children. 

Respondent emphasizes that there was no evidence that he harmed, neglected, or abused his minor 

children. He notes that there was only one incident of abuse, that two of his children are boys, so 

there should have been no concern that he would sexually abuse them, and that respondent 

provided for the basic needs of the children. 

1. TERMINATION FRAMEWORK AND STANDARDS OF REVIEW

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 
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a respondent's parental rights to that child. MCL 712A.19b(3) and (5); MCR 3.977(H)(3); In re 

Beck, 488 Mich 6, 10-11; 793 NW2d 562 (2010); In re Moss, 301 Mich App 76, 90; 836 NW2d 

182 (2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).5 “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 the 

reviewing court has a definite and firm conviction that a mistake has been committed[.]” In re BZ, 

264 Mich App 286, 296; 690 NW2d 505 (2004). When applying the clear error standard in 

parental termination cases “regard 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); see also MCR 2.613(C). 

2. DISCUSSION 

With respect to a child’s best interests, we place our focus on the child rather than the 

parent. In re Moss, 301 Mich App at 87. In assessing a child’s best interests, a trial court may 

consider such factors as a “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.” In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations 

omitted). “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, 714; 846 NW2d 61 (2014). The trial court may also consider how long the child was in foster 

care or placed with relatives, along with the likelihood that “the child could be returned to [the] 

parents' home within the foreseeable future, if at all.” In re Frey, 297 Mich App 242, 248-249; 

824 NW2d 569 (2012). 

Furthermore, “[a] child’s placement with relatives is a factor that the trial court is required 

to consider” when making its best-interests determination, In re Gonzales/Martinez, 310 Mich App 

426, 434; 871 NW2d 868 (2015), and “a child’s placement with relatives weighs against 

termination,” In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). “Relative” is defined in

MCL 712A.13a(1)(j) as:

an individual who is at least 18 years of age and related to the child by blood, 

marriage, or adoption, as grandparent, great-grandparent, great-great-grandparent, 

aunt or uncle, great-aunt or great-uncle, great-great-aunt or great-great-uncle, 

sibling, stepsibling, nephew or niece, first cousin or first cousin once removed, and 

the spouse of any of the above, even after the marriage has ended by death or 

divorce.

 

5 Respondent does not argue that the trial court erred by finding that the grounds for termination 

were established by clear and convincing evidence.
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Thus, a child’s biological parent is not that child’s “relative” for purposes of the statute. 

This proposition was recognized by this Court in In re Schadler, 315 Mich App 406, 412-413; 890 

NW2d 676 (2016), wherein the panel observed:

Nevertheless, respondent argues that the trial court entirely failed to give 

any weight to BS's placement with his biological mother. However, the trial court 

specifically acknowledged the “week on / week off custodial arrangement between 

the father and mother” in the process of determining that termination was in BS's 

best interests. Moreover, MCL 712A.13a(1)(j) defines “relative,” and biological 

mother is not included in the definition. See MCL 712A.13a(1)(j). Therefore, 

because BS's biological mother was not a “relative” for purposes of MCL 

712A.19a, the trial court was not required to consider that relative placement. 

Respondent's argument is misplaced.

Accordingly, we reject respondent’s similar argument in this case.

In finding that termination was in the minor children’s best interests, the trial court 

acknowledged that respondent and the minor children were bonded and that termination would not 

be an easy transition. But the court also recognized that the children needed stability and 

permanence, as well as “to grow up in an environment where they are safe and secure[] from . . . 

potential victimization.” The trial court opined that the children’s mother was providing a safe 

and nurturing environment for the children. 

Although there was only evidence of one act of sexual abuse, it was an especially egregious

violation of a child who had looked to respondent for care and protection as a father figure. We 

cannot conclude that the trial court clearly erred by finding that this single act of sexual abuse that 

resulted in physical injuries revealed a side of respondent that posed a serious danger to his minor 

children. With respect to the purported bond between respondent and his children, there was also 

evidence of a bond between LP and respondent, yet that did not prevent respondent from sexually 

exploiting and abusing her. The doctrine of anticipatory neglect provides that how a parent treats 

one child is probative of how that parent may treat other children. In re LaFrance Minors, 306 

Mich App 713, 730; 858 NW2d 143 (2014). Although the doctrine is not a perfect fit in this case 

because LP is not respondent’s child, respondent had been raising LP for a number of years as if 

she were his daughter. Furthermore, there is nothing in the record to support respondent’s pseudopsychological argument that he is not a danger to young boys—abuse is abuse. Finally, the fact 

that respondent provided some limited assistance to his children did not suffice to overcome the 

danger that respondent poses to his children. In sum, the trial court did not clearly err by finding 

that termination of respondent’s parental rights was in the best interests of the children. 

III. CONCLUSION

We hold that the trial court committed procedural errors in conducting the adjudicative and 

dispositional phases of the case; however, respondent has failed to show that the errors affected 

his substantial rights or seriously affected the fairness, integrity, or public reputation of the judicial 

proceedings. We also conclude that trial counsel’s performance in failing to object to the process 

used in this case fell below an objective standard of reasonableness, but respondent fails to 
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establish the requisite prejudice. Finally, we hold that the trial court did not clearly err by finding 

that termination of respondent’s parental rights was in the children’s best interests. 

We affirm. 

/s/ Jane E. Markey 

/s/ Mark T. Boonstra

/s/ Karen M. Fort Hood