Opinion
No. 338434
12-19-2017
In re COLBERT, Minors.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 17-000032-NA Before: METER, P.J., and SAWYER and SHAPIRO, JJ. PER CURIAM.
Respondent appeals the order terminating her parental rights to the minor children, JCC, RNC, and RC, pursuant to MCL 712A.19b(3)(b)(i) (sexual abuse of the minor child), (3)(g) (failure to provide proper care and custody), (3)(j) (reasonable likelihood of harm), and (3)(k)(ii) (sexual abuse involved penetration of the minor child). For the following reasons, we affirm.
I. BACKGROUND FACTS
On January 12, 2017, petitioner filed a mandatory petition seeking to terminate respondent's parental rights to the minor children. The petition alleged that on December 1, 2016, Child Protective Services (CPS) received a referral alleging sexual abuse of the children. The children were removed from respondent's custody and placed with their father.
During the termination hearing, CPS specialist, Latonya Lashore, testified that respondent admitted to performing oral sex on the children and digitally penetrating RCC with her fingers. Respondent also showed Lashore the bedroom where the abuse had occurred, and explained that "she had always had these type[s] of urges and she believed it came from her sexual, her own sexual abuse. She was traumatized as a child." Respondent also informed Lashore she was not taking her medications at the time of the abuse, but that during the interview, she was taking the medications and participating in a day-treatment program. Lashore testified that the home had only one bed for the children, there was no central heat in the home, there was no food, and the home was being heated by a space heater, and that although there were multiple bottles of water, she did not check to see if the water was working.
Respondent had other prior contacts with CPS. Lashore testified that specifically in October of 2009, an investigation was conducted after respondent admitted to "molestation of another child." According to Lashore, respondent confessed to a church pastor that "she likes to molest children and specifically it was infants; performs sexual acts on infants." She stated that respondent also confessed to the pastor and the police that she wanted to kill herself because she had performed oral sex on infants, who were not her children. In that instant, respondent was hospitalized after her confession and offered mental health services, but the allegations were not substantiated.
Lashore testified that she filed a Law Enforcement Notification (LEN) regarding the allegations of sexual abuse of the children by respondent with both the Detroit Police Department and the Highland Park Police Department, but no action had been taken. She stated that a Kid's Talk interview was conducted with JCC, but that the child did not make any statements. Medical examinations conducted on the children did not reveal any evidence of sexual abuse.
JCC was interviewed shortly before she turned 7.
Respondent's estranged husband and the children's father, Robert Colbert, testified that after he separated from respondent, the children remained with her and that he maintained regular contact with them. He testified that he was aware that respondent was prescribed medications for her mental health, and that he observed a difference in her behavior when she was not taking her medications. However he was unsure if her behavior improved when she took her medications. Colbert also testified that during the period he lived with respondent and after they separated, he did not see signs of mental instability. He testified that he had never witnessed respondent behaving inappropriately around the children, and that he was surprised to learn that she had accused herself of molesting the children. However, he stated that respondent told him that "she messed with the kids." Colbert also testified that respondent told me that she was "messing with a little kid one time."
The trial court found that grounds for termination existed and that it was in the children's best interests to terminate respondent's parental rights.
II. STATUTORY GROUNDS FOR TERMINATION
Before a court can terminate a parent's right to his or her child, the court must find by clear and convincing evidence that one or more of the statutory grounds for termination listed in MCL 712A.19b(3) exists. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012).
This Court reviews for clear error a trial court's decision that a ground for termination has been proven by clear and convincing evidence. MCR 3.977(K); In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). "A trial court's decision is clearly erroneous if although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012) (quotation marks and citation omitted).
As an initial matter, we note that although the trial court made extensive findings of facts, it did not articulate the specific statutory grounds upon which it relied on to terminate respondent's parental rights to the minor children. Likewise, the trial court's written order did not cite a statutory basis for termination. "An order terminating parental rights under the Juvenile Code may not be entered unless the court makes findings of fact, states its conclusions of law, and includes the statutory basis for the order." MCR 3.977(I)(3) (emphasis added). Similarly, MCL 712A.19b(1) provides that "[t]he court shall state on the record or in writing its findings of fact and conclusions of law with respect to whether or not parental rights should be terminated."
Although the trial court's failure to articulate a statutory ground for termination constitutes procedural error, we will not reverse an order terminating parental rights on the basis of a procedural error unless a failure to do so would be inconsistent with substantial justice. MCR 2.613(A); In re TC, 251 Mich App 368, 371; 650 NW2d 698 (2002). Moreover, respondent does not challenge the termination of her parental rights on this basis. And in the present case, the record clearly supports termination of respondent's parental rights on several grounds. The mandatory petition filed by petitioner cited the statutory basis for termination under MCL 712.19b, notably, MCL 712A.19b(3)(b)(i), (3)(g), (3)(j), and (3)(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 siblings has suffered physical injury or physical 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.
* * *
(g) The parents 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.
* * *
(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 and the abuse included 1 or more of the following:
* * *
(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
We conclude that clear and convincing evidence exists to terminate respondent's parental rights under MCL 712A.19b(3)(b)(i) and (k)(ii). The minor children were removed from respondent's custody when CPS received a complaint regarding allegations of sexual abuse and threatened harm to the children due to respondent's mental health. During the investigation, respondent admitted to performing oral sex on the children, and digitally penetrating RCC with her fingers. The trial court found that respondent's admissions presented clear and convincing evidence that she sexually abused the minor children. Given the trial court's observations, it is logical to conclude that the trial court terminated respondent's parental rights under MCL 712A.19b(3)(b)(i) and (k)(ii).
We also reject respondent's contention that the trial court ignored evidence that weighed against a finding that respondent abused the minor children. Specifically, respondent argues that JCC did not reveal the sexual abuse during the Kid's Talk, no evidence of sexual abuse was found on the children during the medical examination, no criminal action was pending against her, and that Colbert testified that he never saw respondent behave inappropriately around the minor children. Although there was testimony that JCC did not reveal the sexual abuse during the Kid's Talk, Lashore testified that when JCC was asked a certain line of questions, her "whole demeanor changed. She became fidgety, she looked down and she like shut down. She refused to continue with that line of questioning." Moreover, respondent confessed to sexually abusing the minor children. In addition, given the nature of the sexual abuse, it is likely that medical examination would not reveal any evidence of sexual abuse. Although Colbert testified that respondent does not behave inappropriately with the children and that he had been surprised that she accused herself of sexually assaulting the children, he testified that respondent told him that "she messed with the kids." That there are no criminal charges pending against respondent is not dispositive of whether or not she sexually assaulted the minor children, and so, we find no reversible error in this regard.
For the same reasons, clear and convincing evidence was presented under MCL 712A.19b(3)(g). In addition to respondent's sexual abuse of the minor children, her home was unsuitable for the children because the pipes at her house were broken and "everything was messed up in the basement." Specifically, Lashore testified that respondent and the children were staying in only one room at the house, which was being heated by a space heater. There was only one bed for the children and there was no heat or food in the home. These circumstances combined to show that respondent could not provide proper care and custody for the child and was not reasonably likely to do so within a reasonable time considering the children's age. The trial court properly concluded that the "conditions are not conditions that are conducive to raising three children."
The record also supports the trial court's conclusion that the children would be at risk if returned to respondent. It is undisputed that respondent suffers from mental health issues, was prescribed medications, and had been offered mental-health services. However, respondent had been inconsistent in addressing her mental health issues. Lashore testified that respondent admitted that she was not taking her medications at the time she sexually abused the children. There was also evidence that in 2009, respondent was hospitalized at a mental hospital after she confessed to her pastor that "she likes to molest children and specifically it was infants; performs sexual acts on infants." Respondent also confessed to the pastor and the police that she wanted to kill herself because she had performed oral sex on infants that were not her children. In fact, Colbert testified that before JCC was born, respondent confessed to him that she was "messing with a little kid one time." Respondent admitted that "she had always had these type[s] of urges and she believed it came from her sexual, her own sexual abuse. She was traumatized as a child." We conclude that statutory basis exists to terminate respondent's parental rights to the minor children.
III. BEST INTERESTS
Finally, respondent argues that the trial court erred in concluding that termination of her parental rights was in the children's best interest. Again, we disagree.
This Court reviews for clear error the trial court's determination that termination of respondent's parental rights was in the best interests of the children. In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000). --------
"Once a statutory ground for termination has been proved, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts, 297 Mich App at 40 (citations omitted). "[W]hether termination of parental rights is in the best interest of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). "In deciding whether termination is in the child's best interests, the court may consider the child's bond to the parent, the parent's parenting ability, and the child's need for permanency, stability, and finality . . . ." In re Olive/Metts, 297 Mich App at 41-42 (citations omitted). Additionally, "the fact that the children are in the care of a relative at the time of the termination hearing is an 'explicit factor to consider in determining whether termination was in the children's best interests.' " Id. at 43 (citation omitted).
The trial court noted that respondent loves the minor children, but that her love was "tainted by her own impulses . . . [and] her own upbringing." The court found that respondent was inconsistent in her mental health treatment and believed that respondent would continue to be so. According to the court, "[t]he demons that [respondent] carries around are demons that she will have for the rest of her life. These are demons that have to be tamed and demons that have to be dealt with . . . mental health professionals and she's been sporadic in that mental health treatment." The court noted that if it did not terminate respondent's parental rights, it would be up to Colbert to regulate respondent's involvement with the children, and that she could enlist the help of the police to force Colbert to return the children to her. Accordingly, the court concluded that because the danger of the children being returned to respondent exists, it was in their best interests to terminate respondent's parental rights. Given the record, the trial court's analysis and conclusions do not leave us with a definite and firm conviction that the trial court made a mistake. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010).
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Douglas B. Shapiro