Opinion
No. 345150
04-23-2019
In re AVERY, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 11-504423-NA Before: LETICA, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ. PER CURIAM.
Respondent appeals as of right the order of the trial court terminating his parental rights to his two minor children, JRA and JDA. Respondent's parental rights were terminated pursuant to MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix). This case involves allegations of sexual abuse by respondent of his daughter, JRA. JRA lived in respondent's home with respondent, along with her mother; her step-sister, ZW; and her sibling, JDA. On appeal, respondent contends that the trial court clearly erred in determining that (1) a statutory basis for termination was established, and (2) termination of respondent's parental rights was in the best interests of the minor children. We affirm.
The trial court cited the nonexistent MCL 712A.19b(3)(k)(x), but it unambiguously intended to refer to MCL 712A.19b(3)(k)(ix).
I. FACTUAL BACKGROUND
This is not the first time child protective proceedings have been initiated against respondent based on his sexual abuse of children with whom he lived. In 2011, proceedings were initiated against respondent alleging that he had admitted to raping ZW. When ZW was 16, respondent began coming into her room and trying to be "playful" in ways that ZW felt were "weird." This culminated in respondent coming into ZW's room, removing her pants, and inserting his fingers into her vagina. ZW testified that respondent proceeded to rape her more than ten times over the next year and a half, but she did not tell anyone because she was afraid she would be disbelieved and kicked out of the house. ZW disclosed the rapes in late 2011 to a police officer who responded to a disturbance report filed by a neighbor, and ZW showed the officer semen on her bed skirt that she stated was from respondent.
Respondent was arrested, and several days later, he admitted that he had been having sex with ZW, but insisted that it was consensual. Respondent was charged with criminal sexual conduct, but the charges were dismissed by the prosecutor when ZW failed to appear to provide testimony. In the child protective proceeding, respondent argued that he was not ZW's father and ZW was over the age of 16 when the sexual relationship began, and there was no evidence he would necessarily engage in similar relations with JRA, to whom he was biologically related. The trial court determined that there were grounds to take jurisdiction, but not to terminate respondent's parental rights. The trial court opined that there was insufficient evidence that the sexual contact had been forcible or unwanted. Eventually, after a period of observation, the case was dismissed in 2013.
In October of 2017, another petition was filed against respondent, this time alleging sexual abuse perpetrated by respondent against JRA. JRA stated during a forensic interview that respondent had "tried to put his penis inside her buttocks and her vagina" while she was visiting his house. JRA also revealed that earlier, respondent had attempted to put his fingers into her vagina. A trial to terminate parental rights commenced in January of 2018. Respondent testified that he remembered the night in question, but claimed that he did not touch JRA. He did, however, admit that he was violating an arrangement with his now ex-wife concerning sleeping with the minor children during his visitation without supervision. The court found no reason to believe that JRA was lying, and thus, the allegations against respondent supported the court taking jurisdiction and establishing grounds for termination. The court further found that termination was appropriate for JDA, JRA's sibling, because of the egregiousness of respondent's conduct and the fact that further harm was possible. This appeal followed.
II. STANDARD OF REVIEW
We review for clear error a trial court's determinations whether at least one statutory ground for termination has been established and whether termination is in a child's best interest. MCR 3.977(K); In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016). "Appellate courts are obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). " 'A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made.' " In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016), quoting In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). "In 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.' " Schadler, 315 Mich App at 408-409, quoting In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
III. STATUTORY GROUNDS FOR TERMINATION
Respondent first contends that the trial court clearly erred in finding that statutory bases for termination existed. We disagree.
Petitioner bears the burden to establish by clear and convincing evidence at least one ground for terminating respondent's parental rights. In re Gonzales/Martinez, 310 Mich App 426, 431; 871 NW2d 868 (2015). "To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013), citing In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000), superseded by statute on other grounds as stated in Moss, 301 Mich App at 83. In this case, the trial court found statutory grounds had been established pursuant to MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix). At the time of the termination hearing, the relevant statutory provisions read:
(3) 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:
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(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.
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(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
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(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she 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:
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(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
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(ix) Sexual abuse as that term is defined in section 2 of the child protection law, 1975 PA 238, MCL 722.622. [MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix).]
Months after the court had orally determined that DHHS established each of these grounds for termination by clear and convincing evidence and that termination was in the children's best interest, it entered its order terminating respondent's parental rights on June 15, 2018. In the interim, MCL 712A.19b was amended effective June 12, 2018. 2018 PA 58. In relevant part, MCL 712A.19b(3)(g) was amended to replace "without regard to intent" with "although in the court's discretion financially able to do so;" and MCL 712A.19b(3)(k) was amended to add the requirement of "a reasonable likelihood that the child will be harmed if returned to the care of the parent."
On appeal, respondent discusses whether DHHS met its burden of proof on statutory grounds, citing the amended versions of (g) and (k). We need not decide the question of whether the amended version applies because a single statutory ground is sufficient for termination. In re Moss, 301 Mich App 76, 88; 836 NW2d 182 (2013). Here, there are two additional statutory grounds, (b)(i) and (j), which are unaffected by the statutory amendment. Consequently, we will not further address (g), (k)(ii), and (k)(ix) as statutory grounds for termination.
Subsection (3)(b)(i) provides that there is a basis for termination where a parent causes there to be sexual abuse against a child or any of their siblings and there is a reasonable likelihood that the abuse could continue in the foreseeable future. MCL 712A.19b(3)(b)(i); HRC, 286 Mich App at 460-461. Respondent first contends that there was not clear and convincing evidence that any sexual abuse occurred. We disagree. The Child Protective Services Specialist testified that JRA expressed during a Kids Talk forensic interview that, when she was four or five years old, respondent once rubbed his penis on her vagina and attempted to penetrate her vagina. Later, when JRA was eight years old, respondent once pulled down JRA's swimsuit and began rubbing his penis on her backside. The mother of the minor children testified that JRA disclosed to her the latter event, which caused the mother to file a police report and ultimately resulted in the petition to terminate respondent's parental rights.
Respondent points to the fact that there was no evidence of a medical evaluation to confirm JRA's allegations, no criminal charges as a result of the allegations, and no corroborative evidence that the allegations were true. However, the facts of this case suggest that there would have been no information to glean from a medical evaluation. Furthermore, the absence of a criminal conviction would only be relevant to termination under MCL 712A.19b(3)(m), which was not a ground relied on by the trial court here. See In re MU, 264 Mich App 270, 279-280; 690 NW2d 495 (2004). A prosecutor's exercise of discretion whether or not to pursue criminal charges proves nothing. See M Crim JI 3.5(4). Indeed, even if respondent had been charged and acquitted, that would still not establish his innocence for purposes of the instant proceeding, which requires a lesser quantum of evidence. See People v Ewing, 435 Mich 443, 473 n 15; 458 NW2d 880 (1990) (BOYLE, J); United States v Watts, 519 US 148, 155; 117 S Ct 633; 136 L Ed 2d 554 (1997). Despite respondent's denial of the allegations of abuse in his testimony, this Court defers to the trial court to determine the weight of the evidence and credibility of the witnesses. In re TK, 306 Mich App 698, 710; 859 NW2d 208 (2014), citing Miller, 433 Mich at 337. The trial court explicitly found JRA's allegations to be credible, and other than respondent's own testimony, which the trial court reasonably deemed less credible, there is nothing to suggest that the trial court's finding was erroneous, let alone clearly erroneous.
Finally, respondent contends that there was no evidence to suggest a reasonable likelihood of harm in the foreseeable future. However, respondent admitted to sexually abusing his stepdaughter years ago and was required to participate in parenting classes as a result. Regardless of that intervention, it was later credibly alleged that respondent sexually abused JRA on at least two occasions. We recognize that respondent has a Fifth Amendment right to maintain his innocence of criminal conduct, such that the trial court could not condition reunification with a child on admitting to perpetrating abuse. In re Blakeman, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 341826, slip op at pp 8-11). That does not mean the courts are obligated to accept that respondent is being truthful or to refrain from drawing obvious inferences from a finding that respondent lacks credibility regarding his perpetration of abuse. See In re MU, 264 Mich App at 283 n 5. Accordingly, based on respondent's abuse of JRA, the trial court did not err in determining that termination of respondent's parental rights to both JRA and JDA was warranted under MCL 712A.19b(3)(b)(i). See HRC, 286 Mich App at 461 (where a parent is found to have abused one child, grounds for termination exist as to their siblings as well).
The evidence also supports the trial court's reliance on MCL 712A.19b(3)(j), which provides grounds for termination where "[t]here is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned" to the parent. This Court has found that subsection (3)(j) is triggered where a respondent-parent causes or fails to safeguard a child from intentional abuses, even where the specific perpetrator is unknown. See In re VanDalen, 293 Mich App 120, 141; 809 NW2d 412 (2011) (holding that termination of parental rights pursuant to subsection (3)(j) "is permissible even in the absence of determinative evidence regarding the identity of the perpetrator when the evidence shows that the respondents must have either caused the intentional injuries or failed to safeguard the children from injury"). In this case, not only was there harmful abuse and a failure to safeguard, respondent personally perpetrated the abuse. Respondent's conduct shows a reasonable likelihood that the minor children would be harmed if left in his care.
As noted, we need not address MCL 712A.19b(3)(g), (k)(ii), and (k)(ix) as statutory grounds for termination. Moss, 301 Mich App at 88. --------
IV. BEST INTERESTS
Respondent next contends that the trial court clearly erred in determining that termination of his parental rights was in the best interests of the minor children. We disagree.
After finding a statutory ground for termination by clear and convincing evidence, a trial court "cannot terminate the parent's parental rights unless it also finds by a preponderance of the evidence that termination is in the best interests of the children." Gonzales/Martinez, 310 Mich App at 434, citing MCL 712A.19b(5) and Moss, 301 Mich App at 80. "In making its best-interest determination, the trial court may consider 'the whole record,' including evidence introduced by any party." Medina, 317 Mich App at 237, citing Trejo, 462 Mich at 353. " '[T]he focus at the best-interest stage has always been on the child, not the parent.' " In re Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874 NW2d 205 (2015), quoting Moss, 301 Mich App at 87 (alteration in original).
"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.' " In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014), quoting In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012). "Other considerations include the length of time the child was in care, the likelihood that 'the child could be returned to [the] parents' home within the foreseeable future, if at all,' and compliance with the case service plan." Payne, 311 Mich App at 64, quoting In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). "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 child[]'s well-being while in care, and the possibility of adoption." White, 303 Mich App at 714, citing In re AH, 245 Mich App 77, 89; 627 NW2d 33 (2001), In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004), and In re Jones, 286 Mich App 126, 129-130; 777 NW2d 728 (2009).
Respondent briefly contends that the trial court's best interest determination was erroneous because respondent testified that he was bonded to his children, and that he provided support to the extent that he was reasonably able to do so. While respondent's testimony suggests that he and the minor children shared a strong bond, respondent's testimony alone is not sufficient to establish that the trial court's determination was clearly erroneous, particularly in light of the fact that there was also credible evidence that respondent was sexually abusive. There was no evidence, other than respondent's testimony, that he provided any sense of permanency or stability for the minor children. The children's mother had full physical custody of the minor children, and respondent was entitled only to supervised visitation, which he himself admitted did not occur on a regular basis. Respondent testified that he provided money, school supplies, and food for the minor children, but his testimony was contradicted by the children's mother; respondent also admitted that he had not made a child support payment in nearly four years. What visitation respondent did have with the minor children resulted in no less than two credible allegations of sexual abuse, indicating that the well-being of the minor children was at risk while in respondent's care. Although respondent has made no argument with respect to the relative placement of the minor children, the egregiousness of respondent's conduct, coupled with the risk further abuse would pose, was sufficient to overcome the presumption against termination created by that placement. In short, the trial court did not clearly err in determining that the avoidance of further abuse was an important factor in its best interest determination, and that it was in the best interests of both JRA and JDA that respondent's rights be terminated.
Affirmed.
/s/ Anica Letica
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra