Opinion
No. 348999 No. 349687
07-23-2020
In re KOPCZYK, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court Family Division
LC Nos. 2016-000191-NA 2016-000192-NA Before: MURRAY, C.J., and RONAYNE KRAUSE and TUKEL, JJ. RONAYNE KRAUSE, J. (dissenting)
I respectfully dissent. Because petitioner expressly adopted nonrespondent mother's brief and arguments, mother's standing or lack thereof is irrelevant to this Court's consideration of those arguments. After reviewing the record, including all ten transcripts of the substantive evidentiary hearings, it is manifestly apparent that the trial court's determination of MK's credibility was based on objective inaccuracies in the trial court's reading or recollection of the testimony and evidence. I agree with the majority's recitation of the applicable law and standards of review; and I further agree that trial courts are entitled to great deference, especially regarding credibility assessments. However, that deference is not blind, and this Court generally does not defer to a trial court's discretion where that discretion was exercised on the premise of a clear error. I would reverse and remand for further proceedings.
I. EVIDENCE
Although there was some difference of opinion whether MK's statements described sexual abuse, the testimony of three witnesses shows that MK repeatedly and consistently disclosed that respondent-father had touched her vagina and her anus in an inappropriate manner. The forensic interviewer clearly and concisely testified that MK made a disclosure of sexual abuse. During the interview, MK did report that respondent helped her wipe when she went to the bathroom. However, she also disclosed that respondent sometimes touched her body when he was not wiping her. In addition, the forensic interviewer testified that MK "talked about dad using a doll and crayons and she would, she would go back and forth between pointing to her vagina and using the word butt." The police officer and an investigator with Child Protective Services (CPS) testified that the multidisciplinary group labeled the disclosures "inconclusive." However, notwithstanding this label, the officer testified that MK reported that respondent "scratched her private." The CPS investigator testified that MK reported that respondent touched her butt without toilet paper, touched her butt using a crayon, and touched her butt with a favorite doll. MK also stated that respondent scratched inside her underwear, and then pointed to her vaginal area. The CPS worker also recalled MK reporting that she felt bad when respondent touched the "inside of her private."
As the majority states, notwithstanding MK's disclosures, respondent-father was then given makeup parenting time. Upon MK's return to mother's care, MK again reported that respondent had hurt her to her mother. Because mother had been instructed not to question the MK, mother asked MK to draw a picture. At that time, MK created a primitive drawing of two individuals; one was lying on a bed, the other standing next to it. The standing figure's arm was reaching out and placed between the legs of the figure in repose.
MK was then interviewed at Care House for a second time. The forensic interviewer testified that "[MK] disclosed dad uses his fingers to touch the inside of her butt where she pees." MK explained to the interviewer that it hurt because respondent was putting a finger in her "butt." When she testified at the termination hearing, 2½ years after her initial disclosure, MK used the word "vagina," which the interviewer opined was consistent with a growing child's evolving vocabulary. MK never recanted her statements during that time. Both her mother and the CPS worker testified that MK had never changed her account. A trauma therapist who treated MK weekly for 17 months also testified that MK never recanted.
Importantly, there was also objective physical evidence to corroborate MK's accusations. Only a few days after spending two weeks with respondent, a forensic nurse examiner, Gail Lippert, noted a three millimeter by three millimeter abrasion on MK's labia minora. Ms. Lippert explained that although she could not date the abrasion, it was clearly a newer injury. Further, because of the isolated nature of the abrasion, the nurse ruled out the possibility that MK had suffered a straddle-type injury, such as on a bicycle. In addition to this indisputable physical evidence, there was also objective evidence that respondent was inclined to cross boundaries. Notably and disturbingly, while respondent was still living in the home and caring for the children when the children's mother was at work, respondent posted on Facebook a disconcerting picture of himself and MK. The picture depicted a clearly naked respondent holding MK, who was also naked and only wrapped in a towel. The trial court never even mentioned this photograph in its opinion.
The foregoing evidence was more than sufficient to satisfy petitioner's burden of proof by clear and convincing evidence. Notwithstanding minor variations in detail, MK consistently reported, on multiple occasions, that respondent had touched her anus and her vagina in an inappropriate manner. MK was forensically interviewed twice, she testified at two preliminary examinations, and she testified again during the termination hearing. These events all occurred over a three-year period and began when MK was four years old.
Notably, a significant portion of the delay was attributable to the trial court's adjournment of this matter pending the outcome of respondent-father's criminal sexual conduct charges. Although clearly of benefit to respondent-father, such a delay would obviously be detrimental to any witness's memory. Consequently, it would actually be more surprising and suspicious if there was not at least a little variation in how MK recalled or described events almost half of her lifetime ago. Importantly, none of the core details changed, and MK has remained consistent in describing the way she was violated. When MK did provide details of the abuse, the details were consistent. That is, she consistently described the improper touching. Over the course of the 2½ years, she has consistently stated that respondent touched her vagina and butt with his fingers, crayons, and a Barbie doll. MK did not embellish her experiences by adding details such as other objects or seeing her father naked. She remained remarkably consistent about the nature of the touching itself.
Notwithstanding the foregoing, the trial court found MK less than credible. In this regard, it simply noted that: "Although [MK] has made allegations that her dad sexually abused her during the July 13, 2016 interview and during the hearing, [MK] also testified that she did not remember or was mistaken when asked about the statements made during the interviews." From this finding, it is clear that the court did not consider any of the testimony related to disclosures of sexual abuse made during the June 17, 2016 Care House interview. The majority and I agree that the trial court found MK less than credible because she could not recall what statements she previously made. However, whether a seven-year-old child would accurately recall precisely what they said to an interviewer two years previously has no bearing on what the child actually said. Thus, I disagree with the majority that the trial court truly analyzed whether MK's statements were consistent with each other. The trial court did nothing of the sort; it abdicated any such analysis in favor of a pure superficiality. The majority even recognizes that the substance of MK's statements was actually consistent every time she explained to anyone what had happened. Indeed, MK clearly recalled that before she moved to Georgia, respondent had touched her "vagina and anus." It is not surprising that MK now used those words rather than "her butt." As she explained, her mother had taught her the correct words and she no longer used "butt" to refer to both where she "peed" and "pooped." The trial court's decision was, as a consequence, based not on MK's recollection of what happened to her, but a seven-year-old child's recollection of how she had described what happened to her when she was four years old.
It is also evident that the trial court believed that MK's accusations of sexual abuse were manufactured with the mother's assistance. The court noted that MK "testified that she practices what to say with the mother and that they 'practiced telling the truth.' " The trial court took this statement grossly out of context: both parties extensively interrogated MK regarding "practicing" testimony before eventually discovering that MK did not know what the word "practicing" meant. On recross-examination, respondent's counsel, after much questioning, got MK to state "yeah," when asked if her mother "practiced" her testimony with her. However, MK then explained that they did not practice what she was going to say that day. They instead talked a little bit about court, and she "practiced" things about her, like how old she was. When asked to further elaborate about the things they practiced about "her," MK could not really remember, but then she said, "Well, I didn't really practice, it just - I practiced more telling the truth." When asked if she practiced "telling the truth" with the mother, MK replied, "Well, no." Then, after MK had been repeatedly questioned by both petitioner and respondent about "practicing," the child admitted that she did not know what the attorneys meant "by practicing." When the phrase practicing was then explained to MK, she denied that she talked to her mother about what she would say that day. MK then, again, reiterated that her mother never told her what to say, she simply told her to tell the truth. Thus, the trial court's conclusion did not merely take MK's statement out of context, it suggests the exact opposite of MK's explanation.
In addition to MK's testimony, there was ample evidence from other witnesses confirming that fabrication or coaching was never a concern or contemplated. The mother categorically denied that she told MK what to say. More compelling was the testimony from the child advocates and professionals involved in this case, who would have had no personal interest in the outcome of this matter. During the June 2016 forensic interview, the interviewer looked for evidence that MK had been coached and did not find any. According to MK's therapist, during the 17 months that she provided trauma therapy to MK, she never had any concerns that MK had been coached. She then explained that MK was consistent in the things she reported and her body language matched the things that she said. The therapist did not believe that MK presented as a child who could be easily manipulated. She also appeared honest and credible during their interactions. In addition to this testimony, despite respondent's efforts to elicit favorable testimony, the police officer involved in the matter and the CPS worker both testified that they never felt the need to repeat or admonish the mother about conversations she should or should not have with MK. It is apparent that the trial court ignored relevant evidence, and I conclude that it clearly erred when it completely discounted MK's testimony regarding the alleged sexual assaults.
The trial court also found compelling the testimony of two mental health professionals, Dr. Gerald Shiener, a psychiatrist, and Dr. Patrick Ryan, a psychologist. Again, however, a careful review of the testimony and the trial court's opinion demonstrates that the court did not consider the testimony of these two individuals in its entirety.
Respondent's expert, Dr. Shiener, only reviewed the written materials, i.e., the transcripts from MK's forensic interviews and her preliminary examination testimony. He never examined MK and did not review Dr. Ryan's psychological evaluation. While Dr. Shiener was board-certified in multiple disciplines, he was not board-certified in child and adolescent psychiatry. Dr. Shiener agreed that the forensic interviewer followed the required protocols when she conducted the interviews. Regarding his opinions, Dr. Shiener essentially concluded that MK's disclosures merely amounted to a parent assisting a small child with her bathroom needs. He further opined that MK incorporated a crayon into her narrative because she happened to be coloring during the forensic interviews. In other words: pure guesswork. Dr. Shiener also believed that MK's recounting of her experiences, given during the interviews and two preliminary examination hearings, was contaminated by intervening events. Dr. Shiener acknowledged that questioning by an attorney "is more likely to contaminate recollection" than if the questioning were administered "in a neutral way" by a "skilled forensic interviewer." Given that MK was, in fact, questioned by a skilled forensic interviewer, this would make MK more believable, not less.
After reviewing the record, I conclude that the trial court gave undue weight to Dr. Shiener's opinions. Such deference was not warranted when it is obvious that Dr. Shiener gave little consideration to MK's initial disclosures, and he primarily focused on the changes in details that occurred over the passage of time. Dr. Shiener did not acknowledge the disclosures MK initially made to her mother. Then, regarding the first Care House interview, the only observation Dr. Shiener made was reflected in his opinion that MK incorporated crayons into her narrative because she was coloring with the forensic interviewer. Dr. Shiener offered no similar explanation for the reference to a Barbie doll or to MK's reporting that respondent touched her with his fingers. Even crediting Dr. Shiener's opinion that MK's story was contaminated by intervening events, this does not address the credibility of MK's initial and earliest disclosures.
I also conclude that the trial court did not fully consider the scope of Dr. Ryan's opinions. Indeed, considering the number of times that Dr. Ryan mentioned that he found a circumstance "concerning," it is unclear why the court gave such little weight to the totality of Dr. Ryan's testimony. Dr. Ryan evaluated MK, respondent, and MK's mother in late 2016 and early 2017. In addition, he observed a supervised visit between respondent and MK. Regarding MK, Dr. Ryan performed three tests, the Rorschach test, the Robertson Picture test, and the Child Sexual Behavior Inventory ("CSBI"), to narrow in on the same concern. The results of the CSBI revealed that MK endorsed a lot of sexualized behaviors that were unusual for a child her age. This result suggested some boundary crossing and an "area of concern that needs to be further addressed." Indeed, consistent with the CSBI results, Dr. Ryan observed for himself MK's boundary-crossing behavior. Dr. Ryan noticed that MK was a "leaner." She leaned into him, a total stranger, a lot and was overly familiar with him, which Dr. Ryan found concerning.
When Dr. Ryan met with MK, she appeared to be a happy, well-adjusted 4½-year-old child. However, Dr. Ryan opined that MK had a really good "game face" because Rorschach test results indicated that MK was an anxious, uncertain child who saw the world as a negative place. Dr. Ryan noted that MK did not respond to some of the ink-blot cards that a child who has been sexually abused typically responds to. However, she also exhibited some responses that were similar to those of children who have been "boundary crossed." Nothing in the record suggests that it was even possible to have prepared or "coached" MK for a Rorschach Ink Blot test. Moreover, Dr. Ryan opined that MK's anxiety could be an indicator that "something might have happened." Finally, Dr. Ryan performed the Roberson Picture Test on MK. The results of this test did not yield anything remarkable.
MK's credibility, to the extent that it was questioned, was clearly bolstered by Dr. Ryan's concerning observations. Dr. Ryan's testimony lent credence to the conclusion that MK presented as a child who has been sexually victimized. The trial court did not meaningfully consider the entirety of Dr. Ryan's opinions and how his observations related to the credibility of the other testimony.
The trial court also found compelling Dr. Ryan's observation that during the supervised visit between MK and respondent, the child appeared very comfortable with her father. However, once again, the trial court took this out of context. Dr. Ryan did observe that MK seemed comfortable with respondent, but as noted, explained that MK had good "game face," and her apparent comfort with respondent was not actually probative of whether any boundaries had been crossed. The only relevance Dr. Ryan attributed to MK's comfort level was that if reunification efforts were to be made, they usually went more smoothly with a child who is not resistant. I also note that MK's therapist testified that MK frequently talked about respondent and expressed that she missed him. However, the therapist further explained that it was not unusual for a child to miss a parent even if that parent sexually abused them. The weight given by the trial court to MK's apparent comfort with respondent-father was directly contrary to the experts' assessments and inappropriate under the circumstances. I agree with the majority that it is not necessarily improper for the trial court to place heavy reliance on experts' testimonies. However, the trial court's failure to consider the context of the experts' statements shows that the trial court misunderstood the experts' testimonies as a whole.
Additionally, the trial court found compelling Dr. Ryan's testimony that respondent's "validity indices" suggested that he was a "truth teller," while the results of her mother's tended "to move in the other direction." Again, we note that the trial court did not consider the totality of Dr. Ryan's testimony in this regard, or other evidence related to veracity. Dr. Ryan concluded, among other things, that the mother's validity scale was elevated. However, he explained that this did not mean that she was a liar. It suggested, instead, that she presented herself in an overly positive light. That is, she was trying to put her best foot forward in a more aggressive manner. Further, the court did not consider the evidence presented at trial that respondent was less than candid about the events that led to the termination of his employment.
Finally, physical evidence of an abrasion to MK's labia minora may not be ignored. The deference to which a trial court is ordinarily entitled does not extend to handwaving away obvious mistakes as to objective evidence. Initially, the trial court misquoted in its written opinion the first physical examination by nurse practitioner, Susanne Rice. It indicates that Ms. Rice testified that the genital exam was "normal." That is objectively incorrect on several levels. Notwithstanding Ms. Lippert's clear explanation, the trial court somehow failed to comprehend basic anatomy and the difference between the labia majora, the outer surface area of the vulva, and the labia minora, the more internal structure located within the labia majora. Ms. Rice testified that she examined MK's labia majora, not MK's labia minora, and then reported this to Child Protective Services. As noted above, forensic nurse examiner Ms. Lippert performed the second physical examination of MK. Ms. Lippert found a newer injury, a three-millimeter by three-millimeter abrasion, on MK's labia minora shortly after MK had been in respondent's care for two weeks. Although Ms. Lippert could not specifically date the injury because "we all heal differently," she unambiguously explained that based on the abrasion's redness, it must have been "newer versus older."
Ms. Lippert emphasized that she could not know how the injury occurred. However, she maintained that it was abnormal and should not have been present. Despite vigorous and extensive cross-examination, Ms. Lippert maintained that such an injury was inconsistent with a straddle injury, because there would be injury to the labia majora and other injuries as well. In contrast, she testified that the injury would be consistent with MK's history of abuse as reported to her by mother. Again, the trial court clearly completely ignored—or, ironically given its focus on MK's recollection of her prior statements, perhaps simply forgot—the actual evidence.
Although not evidentiary, I am also concerned that the trial court never recognized in its opinion that the guardian ad litem advocated in favor of termination. The GAL is the lawyer representing the children and is not there as an advocate for anyone but the children. During argument the GAL pointed out that Dr. Shiener was playing "Monday morning quarterback" and did not interview anybody involved. He also emphasized that the child was consistent about the abuse respondent perpetrated on her.
II. DISCUSSION
The trial court is certainly within its rights to favor some evidence over other evidence and to consider its own assessment of the relative credibilities of the witnesses. However, the clear error standard of review requires us to review the entire record. In re Dearmon, 303 Mich App 684, 700; 847 NW2d 514 (2014). The majority correctly observes that this Court has always extended great deference to trial courts' superior positions to determine witnesses' credibilities. McGonegal v McGonegal, 46 Mich 66, 67; 8 NW 724 (1881); In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). I wholeheartedly agree that such deference is both proper and an unavoidable necessity. However, this Court is not a rubber-stamp, and a trial court may not " 'insulate [its] findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness.' " Beason v Beason, 435 Mich 791, 804; 460 NW2d 207 (1990), quoting Anderson v City of Bessemer City, NC, 470 US 564, 575; 105 S Ct 1504; 84 L Ed 2d 518 (1985). Furthermore, truly objective evidence, the interpretation of which does not in any way call for a credibility assessment, is entitled to its own special deference. See People v Lemmon, 456 Mich 625, 643-646; 576 NW2d 129 (1998); Scott v Harris, 550 US 372, 378-381; 127 S Ct 1769; 167 L Ed 2d 686 (2007); Anderson, 470 US at 575. Trial courts' factual findings are not entitled to the same degree of deference due a jury's factual findings. Beason, 435 Mich at 804.
The majority also accurately explains that the "clear and convincing" standard is extremely stringent. In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). Nevertheless, we review the trial court's factual determinations for clear error. In re Curry, ___ Mich ___, ___; 938 NW2d 735 (2020) (Docket No. 160626-7), slip op at pp 2-3. Furthermore, a factfinder's determination of evidence other than pure credibility assessments is entitled to a lesser degree of deference. Smith v Anonymous Joint Enterprise, 487 Mich 102, 120 n 49; 793 NW2d 533 (2010) (discussing the "clear and convincing" evidence standard in a defamation proceeding). The majority also accurately explains that trial courts need not comment upon each and every item of evidence. Fletcher v Fletcher, 447 Mich 871, 883-884; 526 NW2d 889 (1994). However, the trial court here did not simply fail to comment on some evidence or resolve a credibility issue in which there was some obvious doubt. As noted, the trial court critically made objectively incorrect factual findings, for example, getting basic and extremely important anatomy wrong; and it derived its credibility assessment by inventing doubt out of whole cloth. Again, our deference to the trial court is not infinite.
As noted, the trial court somehow confused the difference between the labia majora and the labia minora. Not only is that objectively incorrect and thus entitled to no deference at all, but the trial court's incomprehension of basic female anatomy bodes poorly for its comprehension of any other facts relevant to an allegation of sexual abuse.
The trial court's ruling was premised on its finding that MK lacked credibility and that the experts' testimony was compelling. As outlined above, the trial court's ruling was derived from piecemeal extraction of discrete, out-of-context statements and in complete disregard for the objective physical evidence. Had the trial court actually relied on the experts' testimonies, as the majority suggests, or at least comprehended them, and considered the substance and consistency of MK's description of what occurred rather than irrelevancies like her recollection of what she previously said, the outcome of this matter would have been completely different. The trial court's conclusion that MK lacked credibility was clearly unwarranted and improper in light of the aspects of her statement that were consistent, the opinions of experts, as well as testimony by the investigating workers who were trained in forensic interviewing. There existed clear and convincing evidence that MK had been sexually victimized by respondent. Accordingly, I conclude that the trial court erred when it failed to find that the statutory grounds for termination had been established by clear and convincing evidence.
I would reverse the trial court's order dismissing the petitions and remand for entry of an order finding that there existed clear and convincing evidence to terminate respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), and (j). On remand, I would order the trial court to hold a hearing to determine if termination of respondent's parental rights is in the children's best interests.
/s/ Amy Ronayne Krause