Opinion
No. 348300
11-26-2019
In re BOKACH/CAUGHEL/HUTCHINSON, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED St. Clair Circuit Court Family Division
LC No. 18-000314-NA Before: CAMERON, P.J., and CAVANAGH, and SHAPIRO, JJ. PER CURIAM.
Respondent mother appeals as of right an order terminating her parental rights to five minor children under MCL 712A.19b(3)(b)(i) (parent's act caused injury or sexual abuse), (b)(ii) (parent had the opportunity to prevent injury or sexual abuse but failed to do so), (g) (parent, although financially able to do so, failed to provide proper care and custody), and (j) (reasonable likelihood of harm if children returned). We affirm.
On September 28, 2018, the Department of Health and Human Services (DHHS) filed a petition to obtain jurisdiction over respondent's five children and to terminate her parental rights at the initial dispositional hearing. The DHHS alleged that respondent failed to protect her oldest minor child, AB, from being sexually abused by respondent's live-in boyfriend, R. Hutchinson, who was also the father of two of respondent's children. It was alleged that respondent admitted to witnessing Hutchinson touch the child on her breasts, under her clothing, multiple times from March 2012 through May 2015. Respondent also witnessed Hutchinson touch the child's vaginal area in July 2015 while staying at a motel. Respondent failed to report these incidents to law enforcement and failed to make a safety plan after these incidents occurred; rather, she allowed Hutchinson to remain in the home. The DHHS petition further alleged that AB was interviewed at the Child Advocacy Center and disclosed that she was sexually abused by Hutchinson; he touched her breasts and buttocks over and under her clothing multiple times beginning a few years ago when she was about 12 years old, and he touched her vaginal area. The petition was authorized and the trial court took the children into protective custody, finding that they were at substantial risk of harm because respondent failed to protect AB from being sexually abused and allowed the abuser to remain in the home even after witnessing the sexual abuse. By amended petition, the DHHS ultimately sought the termination of respondent's parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), and (k).
On January 16, 2019, a bench trial began as to the termination of respondent's parental rights. Detective Kelsey Wade from the St. Clair County Sheriff's Office testified that Hutchinson was charged with seven counts of criminal sexual conduct (CSC) in various degrees related to his sexual abuse of AB, and he ultimately pleaded guilty to three counts of second-degree CSC. Wade had interviewed respondent and she admitted that she saw Hutchinson's hand by AB's vaginal area in July or August of 2015 when AB was about 14 years old and they were staying at a motel. Respondent also admitted that she saw Hutchinson touch AB's breasts and butt under and over her clothing between March 2012 and May 2015 when they lived in an apartment in Croswell. Hutchinson would squeeze AB's breasts with both hands, both under and over her clothing. Respondent also witnessed various incidents of physical abuse by Hutchinson of AB. Respondent told Wade that she did not report any of the physical or sexual abuse to police.
On that same date, Hutchinson's parental rights to his two minor children were terminated by consent, and an order to that effect was entered on February 20, 2019. --------
AB testified that when she was about 11 years old, Hutchinson began touching her breasts under and over her clothing at least every day. Respondent was present when he would grab her breasts, but she would not do anything. Hutchinson would also touch AB's butt sometimes. Eventually, Hutchinson got bolder and began touching her butt more, as well as her crotch area, in addition to her breasts. He touched her both under and over her clothing. Respondent would be present sometimes but did not react in any way or tell him to stop. AB further testified that Hutchinson would hit her with an open hand and throw things at her. The physical abuse happened a lot when Hutchinson was intoxicated. Respondent was also physically abused by Hutchinson. The police were never called. AB also testified that respondent had a problem with alcohol and got drunk a lot. When she was drinking, respondent would attempt suicide at times and would be taken to the hospital in an ambulance. Respondent also had issues with maintaining income and housing so they had to move a lot. There were times they had no heat in the house or hot water. Respondent had these problems for as long as AB could remember and AB was doubtful that her mother could change.
The Child Protective Services (CPS) Investigator, Francesca Marzolf, testified that this matter first came to her attention because of an allegation of physical neglect. It was alleged that there was no heat in the house and there were concerns about respondent's mental health and substance abuse. During her investigation, Marzolf learned about the sexual abuse of AB by Hutchinson. She was present when respondent admitted to Detective Wade that she saw Hutchinson touch AB's breasts under and over her clothing more than once and that she knew about the physical abuse of AB by Hutchinson. Marzolf testified that respondent also admitted in her interview with Detective Wade that she would leave the children home alone a lot with Hutchinson because he was unemployed—despite witnessing all of the abuse. Marzolf also confirmed from police reports that alcohol and controlled substances had been an on-going, long-term problem for respondent. In fact, in October 2018 an order was entered by the court granting a petition for involuntary treatment of respondent's substance abuse disorder. As part of her investigation, Marzolf testified, she looked at respondent's CPS history and she had been listed in 19 CPS investigations. Allegations included physical neglect, improper supervision, and failure to protect. As a result of one case in 2017, respondent was provided services which included Families First Intensive In-Home services, CPS ongoing services, state emergency relief, education services, Safe Horizon, housing assistance, and Family Team Meetings. After Marzolf's testimony, the petitioner rested its case and the proceedings were adjourned.
On February 14, 2019, the bench trial continued with respondent's testimony. She began dating Hutchinson in about October 2010 and they moved in together in November 2010. During her relationship with Hutchinson there were problems, including physical and mental abuse which started pretty soon after they started dating. She was in fear of him during their relationship. When he got really drunk, he was mean to the children too. Respondent testified that she did not see Hutchinson sexually or inappropriately touch AB, and only learned about it shortly before this matter began. She did see physical abuse of AB. Respondent was currently in counseling and had court-ordered outpatient substance abuse counseling. But she did not feel that she had an issue with alcohol abuse, although she did when she was with Hutchinson. Hutchinson had a problem with alcohol abuse. Respondent did not report or seek help regarding the mental and physical abuse of the children because she was in fear of the consequences.
Respondent testified that she was not working and had no source of income so if the children were returned to her she did not know if she could care for them. She also admitted that the house she was living in with a man was too small for all of the children; she could only house the two youngest ones. And when this case began, there had been no heat or hot water for a few months in the house she lived in with her children. Respondent admitted that, to a certain extent, she did not provide a safe environment for the children. She felt that she had no control and that she could not protect her children or herself from Hutchinson. She did not tell Families First about the abuse because she did not think that there was any way they could have helped.
When respondent was asked if it was her testimony that she never saw Hutchinson touching AB's breasts or touching her in an inappropriate manner, respondent answered in the affirmative. Then respondent was asked why she told Detective Wade and Marzolf when she was interviewed that she had seen Hutchinson touch AB's breasts, both outside and under her clothing on different occasions, and respondent answered, "Never underneath her clothes." She was then asked whether she did, in fact, see him groping AB's breasts and she said, "Maybe once." Respondent testified: "He just touched them, that was it." She denied seeing Hutchinson touch AB's vaginal area.
Upon further questioning, respondent denied that her alcohol use impacted her ability to protect her children. When asked about her marijuana use, she said that it was not on a regular basis. And respondent admitted to writing letters to Hutchinson in jail. Respondent also testified that she had not seen her two sons for a number of years but believed she still had a strong bond with them.
Respondent's parents also testified at the trial. Her father testified that he did not know about any type of abuse at the hands of Hutchinson. He felt the children would be safe in respondent's care and custody after she got some counseling and some direction. But he also admitted that he was unaware of all of the issues his daughter had with Hutchinson, he was unaware of her alcohol abuse issues, and he was unaware of her hospitalizations. She kept a lot of things from him. But he still believed that she would be able to care for her children.
Respondent's mother also had no idea that AB had been sexually abused for years. And she had no idea about the extent of respondent's substance abuse issues. But she felt that if respondent received some services to enlighten her about abuse and controlling men, respondent would have the ability to be an appropriate parent. Despite knowing that her daughter and the children lived in a camper with no heat at times and with a man who was both physically and sexually abusive, respondent's mother still believed that respondent had always taken care of the children. After this testimony, the defense rested.
Thereafter, the court noted that the petition requested both temporary wardship and termination of parental rights. The court held that a preponderance of the evidence established that jurisdiction was proper under MCL 712A.2(b)(1) and (b)(2) because respondent did not provide a safe environment for the children. Even respondent admitted to being afraid of Hutchinson which is an acknowledgement that there was a reason for the children to be protected from him and an affirmative action was required under the circumstances. Accordingly, the grounds for temporary wardship were established and a best interests hearing was required.
On February 20, 2019, a best interests hearing was conducted. The first witness was Marzolf, the CPS investigator for the DHHS. She reviewed files pertaining to respondent and found several previous cases. There was a Category 2 case in 2003 for the physical neglect of AB. A "Category 2" case means there is an intensive risk to the minors, a case is opened, and CPS provides on-going services. AB was not being cared for properly, the home conditions were unfit, and there were concerns about respondent using alcohol or smoking marijuana. Respondent was provided services and the case was closed. There was another Category 2 case in November 2011 for substance abuse, drinking, a dirty home environment, and improper supervision. Respondent was provided services and the case was closed. There was another Category 2 case in December 2016 because the children were living in a camper with no heat and they were using a cook pot for a toilet. The Housing Assessment and Resource Agency (HARA) became involved and it was to pay respondent's rent for up to a year, as well as certain utilities. Thus, eventually, the CPS case was closed.
Marzolf further testified that, in September 2018, this case was opened because there was no heat in the home and there were mental health concerns regarding respondent. As a result of intervention, the sexual abuse was disclosed. Marzolf noted that when this case began, respondent had visitation with the children. At the end of a visit on November 1, 2018, respondent was drug screened because it was suspected that she was under the influence during the visit and she tested positive for THC and alcohol. Marzolf explained that termination of respondent's parental rights was requested in the initial petition because respondent failed to protect AB from sexual abuse although respondent witnessed that abuse as far back as in 2012 and yet failed to report it. Respondent also had a long history with CPS involvement for neglect and did not benefit from services, she failed to protect her children, she failed to address her mental health concerns and substance abuse issues, and she failed to comply with the PPO against Hutchinson because she wrote to him in jail. Respondent also had longstanding issues of unsuitable housing and insufficient income. The family had lived in several different places, and had even lived in a camper on two occasions. DHHS had great concerns regarding respondent's ability to protect her minor children. Marzolf believed that it was in the best interests of the children that respondent's parental rights be terminated.
The next witness was Trish Gentile, a foster care specialist at the DHHS involved in this matter. Gentile testified that respondent did not interact with the children very much during supervised visits. The youngest girls usually went to AB for comfort and the boys did not have much attachment to respondent because they had lived with their father and had not had contact with respondent for several years. During visits respondent mostly sat and watched the children interact with each other. There were also issues with respondent's inability to redirect or discipline the children during visits and Gentile had to intervene on occasion. Further, respondent had cancelled some visits with the children which was concerning.
Gentile also testified that while supervising one visitation, she noticed that respondent smelled very strongly of alcohol which prompted her to request that Marzolf perform a drug screen and respondent tested positive for THC and alcohol. She also testified that in October 2018 respondent was ordered to have involuntary treatment of her substance abuse disorder after several emergency room visits when respondent was intoxicated.
Gentile believed it was in the best interests of the children that respondent's parental rights be terminated because respondent failed to protect AB from being sexually abused by Hutchinson—abuse respondent witnessed for several years and failed to report. Further, respondent had a long history of substance abuse and mental health issues for which she failed to obtain treatment, had a long history of unstable housing as well as insufficient income, and had no contact with two of her sons for several years, abandoning them. Even by the time of this best interests hearing, respondent did not have housing or employment. DHHS had grave concerns regarding respondent's ability to protect her children from abuse and neglect in the future. After Gentile's testimony, the petitioner rested its case.
Respondent then testified. She was in counseling and dealing with substance abuse in individual counseling since January 2019. She admitted that she was still not in domestic violence treatment—although the abuse had gone on for numerous years. She never reported the domestic violence during all of the CPS cases. She did not think they would be able to help because Hutchinson is "a smooth talker." She also admitted that she had written letters to Hutchinson while he was in jail, including when she was intoxicated.
Respondent believed her visits with the children went good. Respondent believed that she could provide a safe environment for the children if they were returned to her because Hutchinson was out of her life. She believed that her parents would be a source of help in the future, although she admitted that her parents were there all along and she never told them anything about what was happening. Respondent would not say that she is an alcoholic but she has an alcohol problem. She admitted that the father of her sons got custody because of her alcohol issues but she never got treatment. When asked if there was a reason why she did not seek treatment for her alcohol problem although it had been an issue for years, she replied "no." Respondent also admitted that she has had issues with stable housing and even at the time of the hearing was living with someone without any formal agreement. And she was still not working. Despite her housing situation, and that she was not working, and that she has had an alcohol problem for many years, respondent believed she could care for her children because "I've taken care of them their whole lives." After respondent's testimony, she rested her defense. Following closing arguments, the matter was taken under advisement.
On February 28, 2019, the presiding referee issued his recommended findings of fact and conclusions of law. The court found that the evidence established AB had been sexually, physically, and emotionally abused by Hutchinson numerous times over a six year period beginning in 2012 and he pleaded guilty to three counts of second-degree CSC. In 2012, Hutchinson began touching AB's breasts over and under her clothing, as well as her rear end. There were periods of time when the sexual touching occurred every day. AB testified that her mother was sometimes present when Hutchinson touched her breasts and rear end, and witnessed the touching but did not do anything to stop or prevent it. And Hutchinson touched AB's crotch area, once over her clothes and once under her clothes. Hutchinson also physically abused AB by hitting her with an open hand and throwing objects at her. Hutchinson would get intoxicated and then the physical and emotional abuse would begin.
The court further noted that respondent admitted she was aware of the sexual abuse and did not do anything about it. She did not report the sexual abuse because "she did not think it would do any good." The court also noted that the evidence established a long history of neglectful living and unstable housing, i.e., they moved from location to location. In 2010, the family lived in a camper, then they moved to a trailer in Croswell, then to an apartment in Peck, then to an apartment above "Wanda's shop," then back to a camper in Jeddo, and then to a home in Fort Gratiot that had no heat or hot water. There were also concerns about substance abuse and mental health issues. The court concluded that clear and convincing evidence established that termination was proper under MCL 712A.19b(3)(b)(i), (b)(ii), (g), and (j). However, the evidence was not sufficient to terminate respondent's parental rights under MCL 712A.19b(3)(k).
The court then turned to the children's best interests and noted that it had the opportunity to observe the interaction between AB and her mother during trial and concluded that their bond had been severely compromised by respondent's failure to protect AB from Hutchinson. In fact, AB's "disappointment in her mother was palpable in her testimony at trial." Thus, the court concluded, the evidence established that it was in AB's best interests for the parental rights of respondent to be terminated. The court also concluded that it was in the best interests of respondent's two minor sons to terminate respondent's parental rights because they had lived with their father for years, had not seen respondent for years before this matter began, and the boys did not have a strong bond with respondent. Finally, the court concluded that it was in the best interests of respondent's two minor daughters to terminate respondent's parental rights because there was no evidence of a strong bond between respondent and the girls. During visitation there was minimal interaction and respondent failed to redirect or discipline them. The girls had also been subjected to unstable as well as substandard living conditions throughout their lives and respondent took no steps to protect them. Clearly, the court concluded, these girls would be at high risk for harm and neglect if returned to respondent. Accordingly, on February 28, 2019, an order terminating respondent's parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), (g), and (j) was entered by the court. This appeal followed.
Respondent argues that the trial court erred when it terminated her parental rights because a statutory ground for termination was not established by clear and convincing evidence. We disagree.
To terminate parental rights, the trial court must find at least one of the statutory grounds for termination listed in MCL 712A.19b(3) has been established by clear and convincing evidence. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). We review the trial court's factual findings and ultimate decision for clear error. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). A decision is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake was made. In re Olive/Metts Minors, 297 Mich App at 41 (citation omitted).
Respondent's parental rights were terminated under MCL 712A.19b(3)(b)(i), (b)(ii), (g), and (j), which permit termination under the following circumstances:
(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.
(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.
* * *
(g) The parent, although, in the court's discretion, financially able to do so, 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.
* * *
(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.
Respondent argues that there was no evidence that she "caused any physical injury to the children or perpetrated any acts of sexual abuse on any of the children." We agree. Clear and convincing evidence did not support the termination of respondent's parental rights under MCL 712A.19b(3)(b)(i). That is, there was no evidence that respondent herself caused any physical injury to the children or physically or sexually abused AB. Thus, the termination of respondent's parental rights under this statutory ground was clearly erroneous.
We also conclude that the termination of respondent's parental rights under MCL 712A.19b(3)(g) was clearly erroneous. The referee's recommended findings of fact and conclusions of law mistakenly set forth the pre-amended version of this statutory ground. The language of this statute was amended, effective June 12, 2018. See 2018 PA 58. Under the amended version of MCL 712A.19b(3)(g), a parent who fails to provide proper care or custody "although, in the court's discretion, financially able to do so," may have their parental rights terminated. The petition seeking termination of respondent's parental rights was filed September 28, 2018, and the order terminating respondent's parental rights was entered on February 28, 2019—both of which were after the effective date of the amendment. The trial court's order terminating parental rights, however, did state the amended version of the statutory ground but relied on the findings of fact and conclusions of law of the referee—none of which addressed respondent's financial ability to provide proper care and custody of the children. And there is no clear and convincing evidence in the record that would lead the court to conclude that respondent was financially able to provide proper care and custody of the children. In fact, all of the evidence plainly established that respondent had no source of income. Thus, the termination of respondent's parental rights under this statutory ground was clearly erroneous.
However, the errors in terminating respondent's parental rights under MCL 712A.19b(3)(b)(i) and (g) were harmless. Only one statutory ground need be proved by clear and convincing evidence and the trial court did not clearly err by finding that grounds for termination under MCL 712A.19b(3)(b)(ii) and (j) were established by clear and convincing evidence. See In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009); In re Powers, 244 Mich App 111, 118; 624 NW2d 472 (2000).
First, respondent had the opportunity to prevent the physical and sexual abuse of AB but failed to do so and there is a reasonable likelihood that the children would suffer injury or abuse in the future if placed in respondent's home. See MCL 712A.19b(3)(b)(ii). There was clear and convincing evidence establishing that AB was sexually and physically abused by Hutchinson for years and that respondent knew about the abuse, having witnessed it firsthand. Nevertheless, respondent did not take any action. She did not report the abuse, she did not call the police, she did not leave Hutchinson, she did not remove AB from harm, and she did not seek any treatment for AB. 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 261, 266; 817 NW2d 115 (2011). That respondent ignored the severe threat to AB's health, welfare, and safety is evidence of how she would also fail to respond to any threats to the other children's health, welfare, and safety. Accordingly, respondent's parental rights to all of her children were properly terminated under MCL 712A.19b(3)(b)(ii).
Second, there is a reasonable likelihood, based on the conduct or capacity of respondent, that the children will be harmed if returned to respondent's home. See MCL 712A.19b(3)(j). As the record clearly demonstrates, there is an extensive history of CPS involvement with respondent and her children that included physical neglect, improper supervision, inappropriate housing, and substance abuse. But despite the numerous instances of CPS involvement, and the plethora of services provided to her, respondent never reported the domestic violence, sexual abuse, or physical abuse going on in the home with Hutchinson. And despite Hutchinson's criminal actions and reprehensible conduct, respondent wrote letters to him while he was in jail. Further, alcohol and controlled substances had been an on-going and long-term problem for respondent. In fact, she has an extensive history of harming herself while intoxicated, in possible suicide attempts that required police intervention and hospitalization, yet respondent still refused to admit to or address these problems with consistent and appropriate alcohol and substance abuse treatment. Even at one of the supervised visitations with her children during these proceedings respondent tested positive for THC and alcohol. In brief, respondent did not provide the children with a safe, appropriate, and stable home environment and even throughout these proceedings did not change her behavior or attempt to show the court that she could and would provide a safe and stable environment for her children. Accordingly, respondent's parental rights to all of her children were properly terminated under MCL 712A.19b(3)(j).
Respondent also argues that the court committed clear error in finding that termination of her parental rights was in the children's best interests. After review for clear error, we disagree. See In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009).
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. The parent's history of domestic violence, visitation history with the child, and the child's well-being may also be considered by the trial court. In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
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 Olive/Metts Minors, 297 Mich App at 41. As detailed above, respondent had a long history of CPS involvement and yet she continued to stay in a relationship with Hutchinson despite the domestic violence, as well as physical and sexual abuse of her child. She completely failed to protect AB and her children from harm and violence. And despite the removal of her children from her home, respondent remained essentially homeless—living with a man for free without a formal agreement—and admitted that she could not support or house the children if they were returned to her care. She remained unemployed throughout these proceedings and had no source of income. She also did not seek domestic violence counseling or consistent treatment for her alcohol and substance abuse problems. She was repeatedly unable to put the needs of her children above her own desires to drink alcohol and take controlled substances. She even tested positive for THC and alcohol at a supervised visit with her children. In fact, she had not seen her two minor sons for years because of her alcohol abuse and yet she failed to get treatment.
The fact that respondent did not share a strong bond with her children was evident at her supervised visitations with the children. Respondent's minor sons showed very little interest and respondent's daughters sought out AB for comfort—not respondent. And the court noted that AB's "disappointment in her mother was palpable in her testimony at trial," demonstrating that any bond they shared was severely compromised. Further, during the supervised visitations respondent did not interact with the children very much and neither redirected nor disciplined them as necessary during the visits. Respondent also cancelled some visits with the children. Under the circumstances of this case, the trial court did not clearly err when it concluded that termination of respondent's parental rights was in the children's best interests.
Affirmed.
/s/ Thomas C. Cameron
/s/ Mark J. Cavanagh
/s/ Douglas B. Shapiro