Opinion
No. 350185
05-21-2020
In re BLACKKETTER, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Eaton Circuit Court Family Division
LC No. 18-020089-NA Before: CAVANAGH, P.J., and SAWYER and RIORDAN, JJ. PER CURIAM.
Respondent father appeals as of right an order terminating his parental rights to three minor children under MCL 712A.19b(3)(b)(i) [sexual abuse of a sibling by parent] and (k)(ii) [criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate a sibling by parent]. We affirm.
In December 2018, an amended petition was filed by the Michigan Department of Human Services (DHS) for Eaton County seeking the removal of the three children from respondent's custody—and the termination of his parental rights—alleging that respondent had been sexually abusing the children's 17-year-old half-sister, JE, in the family home since she was eight years old. Termination of respondent's parental rights was sought under MCL 712A.19b(3)(k)(ii) and (ix) [sexual abuse of a sibling] arising from respondent's conduct. Following a preliminary hearing on December 11, 2018, the petition was authorized.
On December 27, 2018, a second amended petition was filed which included additional support for the allegations of sexual abuse against respondent and added the children's mother as a respondent because she had allowed respondent-father to have unsupervised contact with the children contrary to the court's order. Termination of respondent-father's parental rights was sought under MCL 712A.19b(3)(b)(i), as well as MCL 712A.19b(3)(k)(ii) and (ix).
At an adjudication hearing held on April 8, 2019, respondent-father pleaded no contest to the following allegations: (1) he began sexually abusing JE when she was eight years old; (2) the sexual abuse included that he had her inappropriately touch him; (3) the sexual abuse included fellatio, anal penetration, and attempted vaginal penetration; and (4) the sexual abuse occurred in the family home where his three minor children resided. The CPS petitioner, Jerrica Hoaglin, testified that these allegations were included in the petition to terminate respondent-father's parental rights. Thereafter, the trial court assumed jurisdiction over the children. Respondent-father was to continue with supervised visitation of the minor children, and a termination trial would be scheduled.
At a disposition hearing held on April 22, 2019, the foster care worker, Shelly Mercer, testified that respondent-father had been participating in parenting time twice a week for one hour. Although it was recommended that respondent-father take parenting classes, he had not done so. Mercer testified that the children looked forward to seeing their father and they were bonded to him. Mercer also testified that respondent interacted well with the children and they enjoyed his company. The supervised visitation order was continued.
The termination trial as to respondent-father's parental rights was conducted on July 15, 2019. The first witness was JE. She knew respondent almost her whole life; since she was about two years old and she was 18 years old at the time of the hearing. Respondent acted as a father-figure to her and in the household. But he began sexually abusing her when she was about eight years old while they lived in Colorado. The first time he stuck her hand down his pants so that she would touch his penis. When she was about 10 years old, respondent did the same thing to her but it was more often and he would have her rub his penis with her hand. It happened too many times for her to count. Eventually, he would have JE put his penis in her mouth. When respondent was 15 years old, respondent anally penetrated her with his penis and ejaculated. Respondent told her a couple of times not to tell her mother. When she was 16 years old, respondent anally penetrated her again with his penis. He never used condoms or foreign substances. Respondent had also rubbed his penis against her vagina four or five different times, but she could not recall the precise circumstances of those events. She recalled that they were on the bed in his and her mother's bedroom. Respondent had also rubbed his penis between her breasts—more times than she could count—and he would ejaculate. Sometimes he would have her "finish" with his penis in her mouth and, when he ejaculated in her mouth, she would spit it out and brush her teeth.
The last name of JE changed during these proceedings but we will refer to her as JE.
The last time respondent touched her in a sexual manner was about two weeks before November 18, 2018, when she called the police after they got into a fight about her cell phone. She was going to leave because she was tired of everything that was going on, i.e., the sexual abuse. Respondent locked her out of her cell phone and the house on that day. She called the police and when they arrived, she told an officer about the sexual abuse. JE had previously talked to her half-sister about the sexual abuse and had tried talking to her mother once or twice. After she told her half-sister, her aunt called the police in about July of 2017. When law enforcement or CPS came out, JE denied everything at the time because she was scared to disclose the information. She was afraid of pulling the family apart. To deal with the sexual abuse emotionally, she began cutting herself at about age 13, i.e., she engaged in self-harm. She was in counseling at the time of the trial and was not cutting anymore. She saw respondent spank her half-brothers with his hand and sometimes there were bruises and red marks. It happened "very frequently;" sometimes daily, sometimes every other day. She was the children's primary caregiver. Respondent did not work; he played video games all day. Her mother worked, and JE took care of the house as well.
The next witness at the termination trial was Detective Jeremiah Kimbel from the Barry County Sheriff's Office. He investigated a report that one of respondent's minor children stated that he was touched on his bottom which he referred to as his naked. The child would point to his front genital area by his penis every time he referenced the word naked. The child disclosed that there was a monster at home that would touch his bottom and eat his naked. One of the child's siblings had drawn a picture of who he referred to as his dad and it was all blacked out. They referred to that picture as the monster.
The next witness was Angela Biek, the children's maternal aunt. The minor children, ages two, three, and four, were staying with her and had been since December 27, 2018. A couple months prior, one of the children made a statement to his teacher at school about being touched. Biek told the foster care worker, Shelly Mercer, who then called it into Central Intake. The child was afraid to go number two on the toilet because his brother poked him in the butt. About four or five weeks earlier, one of the other children dew a picture of a mom and dad but explained to his teacher that he scribbled out the dad's face because he was a bad guy, a goblin or monster. When Biek was looking at the picture, the child told her that it was his dad and he is a monster. Biek testified that the children were doing great in her care. All three were in diapers when they came to her but one had been potty trained and she was still working with the other two. The children were following directions better and only had outbursts before or after parenting time. They had a routine and were on a schedule. One of the children was in counseling for behavioral issues.
The next witness was the foster care worker, Shelly Mercer. Respondent had supervised visitations with the children twice a week for one hour. Some concerns arose during respondent's parenting time. In May or June respondent had taken the children to the bathroom and he commented that the youngest child had a very red bottom; it was inflamed and the child did not want to sit down. But when the child was examined, he did not have a red bottom. There was no redness or irritation. Then about two or three weeks later, one of the other children made a comment that somebody was sticking a finger in his butt. But during parenting times, respondent played with the children and was appropriate in disciplining them. Respondent refused to sign either of two parent-agency treatment plans, and had been asked to take parenting classes as well as complete a psychological evaluation but he refused. Respondent failed to respond to text messages regarding a couple family team meetings, claiming that he did not receive them. Mercer further testified that the children seemed to enjoy their visits with respondent. After Mercer's testimony, petitioner rested its case.
Respondent's father testified that respondent loves his children, was bonded to them, and was very much involved and active in their lives. But he admitted that he only saw respondent and the children about once or twice a year.
Following the testimony, the trial court issued its opinion from the bench finding that statutory grounds for termination of respondent-father's parental rights, i.e., MCL 712A.19b(3)(b)(i) and (k)(ii), had been proved by clear and convincing evidence. The court concluded that JE's testimony regarding respondent's sexual abuse against her was credible, and that respondent sexually abused his stepdaughter on multiple occasions between the ages of eight and seventeen, including when the minor children were present in the house. The court also noted that that respondent's criminal sexual conduct against JE involved penetration of her anal cavity at least two times, as well as assault with the intent to penetrate. The court then turned to the best interests of the children and noted that the three minor children had a bond with respondent. However, the court questioned respondent's parenting ability in that there was evidence that he had inappropriately disciplined the children by spanking them to the point of leaving red marks and bruises. Respondent also had not demonstrated significant love, affection, or emotional ties in that he chose not to voluntarily participate in parenting classes and refused to have a psychological evaluation or participate in the services that were offered to him. His voluntary participation would have shown his intent to change his parenting style or improve his parenting ability but he refused to do so. And considering the severity of the sexual abuse of his stepdaughter, respondent was lacking in the area of moral fitness. The court noted that the children were thriving in a stable and satisfactory environment with their maternal aunt. The court concluded that a preponderance of the evidence showed that it was in the best interests of the children to terminate respondent's parental rights. This appeal followed.
Respondent argues that the trial court erred in finding that any of the statutory grounds for terminating his parental rights were established by clear and convincing evidence. We disagree.
While respondent argues that the court erred in terminating his parental rights under "MCL 712A.2(b)(2)," his rights were not terminated under that jurisdictional statute. --------
To terminate parental rights, the trial court must find at least one of the statutory grounds for termination has been established by clear and convincing evidence. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination. MCR 3.977(K); In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). If a statutory ground for termination is established, the court must terminate parental rights if it finds from a preponderance of the record evidence that termination is in the child's best interests. MCL 712A.19b(5); In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). The trial court's determination that termination is in the child's best interests is also reviewed for clear error. Id.
Respondent's parental rights were terminated under MCL 712A.19b(3)(b)(i) and (k)(ii), which provide:
(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:
* * *
(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.
* * *
(k) The parent abused the child or a sibling of the child, the abuse included 1 or more of the following, and there is a reasonable likelihood that the child will be harmed if returned to the care of the parent:
* * *
(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
The trial court did not clearly err when it terminated respondent's parental rights to his children under either of these statutory grounds. JE is the half-sister of respondent's children and respondent was JE's stepfather at the time he sexually abused her for nine years. While respondent challenges JE's credibility—asserting the possibility of "coaching" by relatives—we accord "deference to the trial court's special opportunity to judge the credibility of the witnesses." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). We also reject respondent's claim that the grounds for termination "were not proven by legally admissible evidence as required by MCR 3.977(E)." JE testified extensively at the bench trial about respondent's sexual abuse including, in brief, that he began sexually abusing her when she was eight years old, that he would have her touch his penis and perform fellatio, and that he penetrated her anal cavity and rubbed his penis against her vagina and between her breasts numerous times. Moreover, there was evidence that at least two of the minor children claimed that someone was inappropriately touching their bottom, penis, or butt, stating that it was a monster and they referred to their dad, respondent, as a monster. Considering the circumstances, duration, and extent of respondent's criminal sexual conduct against JE, who was his stepdaughter, the trial court did not clearly err in determining that there was a reasonable likelihood that the minor children would suffer injury or abuse in the foreseeable future if placed in respondent's home. See, e.g., In re Jenks, 281 Mich App 514, 517-518; 760 NW2d 297 (2008). Further, it is well-established that "[e]vidence of how a parent treats one child is evidence of how he or she may treat the other children." In re Hudson, 294 Mich App at 266. Accordingly, respondent's parental rights to the minor children were properly terminated under MCL 712A.19b(3)(b)(i) and (k)(ii).
Next, respondent argues that the trial court erred in concluding that termination of his parental rights was in the children's best interests where the allegations of abuse "were leveled primarily by his step-daughter," and despite the strong bond between him and the children. We disagree.
A trial court must order termination of parental rights if a statutory ground for termination is established by clear and convincing evidence and the trial court finds by a preponderance of the evidence that termination is in the child's best interests. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). In making that determination, the court may consider a variety of factors, including the parent's parenting ability, the child's age and bond to the parent, and the child's need for permanency, stability, and finality. See In re Olive/Metts Minors, 297 Mich App at 41-42; In re VanDalen, 293 Mich App 120, 141-142; 809 NW2d 412 (2011). The parent's history of domestic violence, psychological evaluations, compliance with a case service plan, and visitation history with the children may also be considered by the trial court. In re White, 303 Mich App at 714; In re Jones, 286 Mich App 126, 131; 777 NW2d 728 (2009).
In this case, after considering the entire record, the trial court concluded that a preponderance of the evidence demonstrated that it was in the children's best interests to terminate respondent's parental rights and we are not left with a definite and firm conviction that a mistake was made. See In re Hudson, 294 Mich App at 264. The children were two, three, and four years old, i.e., they were very young. While the children seemed to have a bond with respondent, as discussed above, two of them also considered him a "monster." There was evidence that the children had behavioral issues before or after parenting time. There was also evidence that respondent would spank them "very frequently," hard enough to leave bruises and red marks. JE testified that she took care of the children, as well as the house, while her mother worked and respondent stayed home and played video games all day. Further, respondent sexually abused the children's half-sister, JE, for nine years, including while the children were in another room in the same house. Despite the foster care worker's attempts to provide respondent with services, including parenting classes and a psychological evaluation—which could have demonstrated his intention to improve his parenting ability—respondent refused. He also refused on two occasions to sign parent-agency treatment plans. Considering all of the record evidence, the trial court did not clearly err when it concluded that termination of respondent's parental rights was in the children's best interests. See In re Moss, 301 Mich App at 90.
Affirmed.
/s/ Mark J. Cavanagh
/s/ David H. Sawyer
/s/ Michael J. Riordan