Admission of evidence; Waiver; In re MJC; Relevance; MRE 401; MCR 3.977(H)(2); In re Ferranti; Prejudice; Ineffective assistance of counsel in termination proceedings; In re Lovitt (Amended Opinion); Effect of a failure to raise an issue in the statement of questions presented; MCR 7.212(C)(5); Seifeddine v Jaber

The court held that the trial court did not err by terminating respondent-father’s parental rights to the two children. His rights were terminated on the basis of his sexual abuse of one of the children, MY, beginning when she was 9 or 10 years old, and culminating in her pregnancy when she was 13. He ultimately pled nolo contendere to CSC I and III and was sentenced to 18 to 30 years and 10 to 15 years respectively. On appeal, the court rejected his challenges to the admission of a photograph of fetal remains, the certified judgment of conviction for his CSC offenses, and the testimony regarding his brother’s CSC conviction, noting he “did not merely fail to object; he expressly acquiesced to the admission of both the photograph and the certified judgment of conviction.” When the DHHS “moved to admit the photograph and the certified judgment of conviction, respondent’s counsel stated that he had no objection. The affirmative acceptance of the evidence constitutes waiver, extinguishing any claim of error.” Further, because “there is no indication that the trial court considered respondent’s brother or his brother’s CSC conviction or that this consideration would have affected the outcome, respondent cannot establish that the admission of that testimony affected his substantial rights.” The court also rejected his argument that his trial counsel was ineffective for failing to object to the admission of the evidence at issue, noting that because he “did not raise this issue in the statement of questions presented, it is waived.” In any event, he “cannot demonstrate prejudice regarding counsel’s failure to object to the photograph and certified judgment of conviction because the jury had ample other evidence supporting a statutory ground to exercise jurisdiction, including MY’s testimony that respondent sexually abused her for years and DNA evidence regarding the fetal remains.” He also “cannot establish prejudice regarding counsel’s failure to object to the testimony concerning his brother because the trial court relied on extensive evidence that termination was in the children’s best interest without relying upon or even referencing respondent’s brother.” Affirmed.