In re GILLIAM, 241 Mich. App. 133

Holbrook, jr., J. Respondent father appeals as of right from the family court order terminating his parental rights to his minor children under MCL 712.19b(3)(c)(i), (3)(g), and (3)0); MSA 27.3178(598.19b)(3)(c)(i), (3)(g), and (3)0). We reverse and remand. In February 1996, petitioner, Family Independence Agency, filed the initial petition in this matter asking for the court to assume jurisdiction over the four minor children. Petitioner alleged that the children had suffered smoke inhalation after a fire broke out in respondent mother’s apartment.

The petition asserted that at the time of the fire, the children had been left alone in the apartment by respondent mother. The petition also alleged that respondent father, who was separated from respondent mother at the time of the fire, had indicated that he did not have a suitable home for the children and was not able to plan for them at that time. A supplemental petition was filed in July 1998. This later petition contained new and different allegations.

Specifically, the supplemental petition alleged that respondent father had tested positive for cocaine use twice in 1996 and for cocaine or amphetamine use on eight occasions in 1998 and that he had failed to attend parenting classes and drug abuse therapy. Two witnesses were called by petitioner at the termination hearing. Esther Ryans, who worked at Evergreen Counseling Service (hereinafter Evergreen), testified that several drug screens submitted by respondent father had come back positive. Respondent father’s hearsay objection to this testimony was overruled by the trial court.

Ryans admitted that she did not know how the tests were conducted or what their accuracy rate was and that respondent father had consistently questioned the accuracy of the testing procedures and results obtained. The second witness was Kristin White, a therapist with Evergreen, who had been working with the children since July 1997. White testified that some of the children had anxiety about visiting with respondent father because of his inability to control his anger. Respondent father’s hearsay objection to this testimony was also overruled by the court.

Ultimately, the court concluded that because of respondent father’s possible substance abuse and anger management problems, the children would be at risk if they were returned to him. Respondent father first contends that the trial court abused its discretion in admitting hearsay testimony concerning possible drug abuse and the children’s anxiety over visiting with him. We agree. The rules of evidence apply at the adjudicative phase of a child protective proceeding. MCR 5.972(C)(1). However, the rules of evidence do not apply at the dispositional phase of the proceeding. MCR 5.973(A)(4)(a).

Instead, “[a]ll relevant and material evidence . . . may be received and may be relied on to the extent of its probative value, even though such evidence may not be admissible at trial.” Id. If termination is sought on the basis of one or more circumstances “new or different” from those that led to the original assumption of jurisdiction, “[l]egally admissible evidence must be used to establish the factual basis of parental unfitness sufficient to warrant termination of parental rights.” MCR 5.974(E)(1).

The primary factors relied on by the trial court for terminating respondent father’s parental rights were an ongoing substance abuse problem and problems with anger management. Neither of these circumstances was related to the court’s initial assumption of jurisdiction. Accordingly, these matters were required to be proved by legally admissible evidence. Id.; In re Snyder, 223 Mich App 85, 88-91; 566 NW2d 18 (1997). However, only inadmissible hearsay evidence was presented to establish both of these new and different circumstances. MRE 801.

The drug abuse allegation was supported by drug screen results testified to by Ryans, while White’s testimony was the only evidence presented relative to the issue of how respondent father’s alleged anger management problems may have affected the children. Given that no legally admissible evidence was presented to establish these new circumstances, we conclude that the erroneous admission of this hearsay testimony was not harmless. Accordingly, we conclude that reversal is warranted.

At the hearing regarding the supplemental petition, any allegations of new or different circumstances from those that justified the original assumption of jurisdiction must be established with legally admissible evidence. Because of our disposition of this issue, we need not address respondent father’s claim that insufficient evidence was introduced to support the termination of parental rights. Finally, we will address the concurring judge’s criticisms of In re Snyder.

While we sympathize with our brother’s comments regarding the type of evidence that should be relied on by a court when faced with terminating a parent’s fundamental interest in the care, custody, and management of the parent’s children, we do not agree that In re Snyder misconstrues the relevant court rules. We believe that the In re Snyder analysis of the plain language and interplay of the relevant court rules was correct. We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction. Fitzgerald, J., concurred.

Drug testing, parenting classes, and therapy were some of the conditions set forth in the parent-agency treatment plan. Petitioner agreed at the termination hearing not to pursue other allegations of abuse.