Tender-years hearsay exception; MCR 3.972(C)(2); In re Archer; Burden of proof; Termination under §§ 19b(3)(b)(i), (j), & (k)(ix); Child’s best interests; MCL 712A.19b(5); Failure to investigate potential relative placements; MCL 722.954a(2); Plain error review

The court held that the trial court did not abuse its discretion in admitting testimony under the tender-years hearsay exception or in finding statutory grounds to terminate both respondents-parents’ parental rights. But it conditionally reversed the trial court’s findings that termination was in the child’s (DN) best interests due to the “DHHS’s failure to comply with its statutory duty under MCL 722.954a(2) to investigate relative placements,” and remanded. As to the admission of a teacher’s testimony about four-year-old DN’s statements, the court noted that “the tender-years hearsay exception does not require that the child’s statements be made in a recorded interview or as a result of a forensic interview.” Further, the record suggested that DN’s “statements were spontaneous. She was not being interviewed for the purpose of ascertaining whether she was being sexually abused. Rather, she was being asked to explain her behavior.” In addition, “the majority of her terminology was unexpected of a” child her age. The court also found that her “history of inappropriate behavior at school” supported a finding of reliability. And later statements supported the inference “her initial disclosure was reliable and that, after being coached while in the care of her grandmother, she tried to hide the abuse in order to be returned to” her parents. Further, there was “no indication that DN had any motive to fabricate the allegations.” Respondent-mother mentioned that the “DHHS failed to investigate potential relative placements before placing DN with an unrelated foster family.” While neither respondent argued that this was an independent basis for reversal, the court reviewed the issue for plain error. It found it was “plain that DHHS did not comply with its statutory duty” and further that failing to even try “to keep DN from being separated from her biological family seriously affects the fairness, integrity, and public reputation of judicial proceedings.” The court additionally concluded “given that the child’s rights are also directly impacted by the failure to consider relative placement, it is appropriate to consider whether the failure affected the child’s substantial rights.” It could not determine on the existing record whether DN “would or would not have been placed with relatives if DHHS had not ignored its statutory duties.” Affirmed in part, conditionally reversed in part, and remanded.