Opinion
No. 347516
08-13-2019
In re K. L. GARZA-MCNUTT, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Calhoun Circuit Court Family Division
LC No. 2018-002323-NA Before: CAVANAGH, P.J., and STEPHENS and O'BRIEN, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court's order terminating his parental rights to the minor child, KGM, under MCL 712A.19b(3)(b)(i) (the parent's act caused sexual abuse of the child and there is a reasonable likelihood that the child will be harmed if returned to the parent); (j) (there is a reasonable likelihood that the child will be harmed if returned to the parent based on the conduct of the parent); and (k)(ii) (the sexual abuse of the child involved penetration and there is a reasonable likelihood that the child will be harmed if returned to the parent). We affirm.
On October 17, 2018, the Department of Health and Human Services (DHHS) submitted a petition to the trial court requesting termination of respondent's parental rights. The petition alleged that on July 7, 2018, non-respondent mother's boyfriend notified local police officers that KGM reported that respondent sexually abused her approximately six years ago, when KGM was about six years old. The petition further alleged that KGM reported that she was at her grandmother's house a few days prior to July 7, 2018, and witnessed respondent assault his girlfriend, causing a bloody nose and bruised eyes. The DHHS alleged that KGM stated that witnessing the assault triggered her memories of respondent sexually assaulting her when she was younger. The petition stated that KGM reported that when she was approximately six years old, respondent put his penis in her vagina and told her that if she told anyone, they would both get in trouble. The petition further stated that on July 19, 2018 a forensic interview of KGM was conducted where she reported the same incident at her grandmother's house. The petition stated that KGM reported that she woke up with no clothes on and her private parts hurting and respondent had no clothes on and had his privates in her privates. In addition, the petition stated that on August 10, 2018, KGM participated in a medical examination at the Bronson Children's Hospital and made a disclosure of the same sexual abuse incident. The DHHS alleged that it was contrary to KGM's welfare to remain in the care and custody of respondent on the basis of the threat of sexual abuse, improper supervision, failure to protect, and threatened harm. The DHHS requested termination pursuant to MCL 712A.19b(3)(b)(i), (j), and (k)(ii).
On the same date that the petition was filed, the trial court held a preliminary hearing. Respondent appeared at the hearing via telephone. The DHHS caseworker testified that she had a discussion with KGM regarding the sexual abuse and reported that KGM was attending counseling sessions. The caseworker testified that she did not recommend any parenting time for father, including supervised visits, because she was concerned for KGM's safety, the trauma she had already suffered, the difficulty she was having coping with the effects of the abuse, and KGM's issues with respondent's relatives as a result of the abuse disclosure. The trial court authorized the petition, continued KGM's placement with non-respondent mother, and continued the suspension of father's parenting time. Additionally, the trial court informed respondent that it was necessary for him to address two outstanding warrants in Calhoun County—one regarding a driving-while-license-suspended offense and one regarding a child support matter—in order to continue to appear by telephone for this case.
The trial court held an initial hearing on August 20, 2018, due to the filing of a complaint by the DHHS on August 17, 2018, requesting ex parte relief. At the initial hearing, the trial court suspended respondent's parenting time, ordered that respondent not have any contact with KGM, and ordered placement of KGM with her mother.
On December 6, 2018, the trial court held a combined adjudication and termination hearing regarding respondent's parental rights to KGM. Respondent did not appear in person or by telephone, but was notified of the hearing. The DHHS presented a stipulated offer of proof that, if KGM was called as a witness, she would testify that when she was about five or six years old, it was common practice that father slept in the same bed with her. KGM would testify that, on one occasion, she woke up and father's penis was in her vagina. KGM would testify that she was scared to disclose the incident at that time and that she wanted to be able to see her paternal family members. KGM was sworn in by the trial court and attested that her statements to counsel in this case were true and that she would testify to the same information that was presented in the stipulation. Defense counsel asserted that further questioning of KGM at the hearing would not further respondent's defense. The trial court accepted the stipulation regarding the sexual abuse incident and found that it was contrary to the welfare of KGM to remain in respondent's care and that custody with respondent presented a substantial risk of harm to KGM.
The trial court determined that the DHHS proved the statutory bases for termination pursuant to MCL 712A.19b(3)(b)(i), (j), and (k)(ii) by clear and convincing evidence and that termination was in KGM's best interests. The trial court found that the DHHS was not required to make reasonable efforts but that the DHHS nonetheless offered respondent the opportunity to participate in counseling, a psychological evaluation, and parenting time.
On appeal, respondent argues that the trial court erroneously deprived him of his constitutional right to parent by terminating his parental rights to the minor child because the trial court did not consider that his custodial rights were constitutionally protected. We disagree.
This Court reviews de novo the question of constitutional law whether the termination proceedings complied with a parent's right to due process. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009). The parent of a child has a fundamental liberty interest in the care, custody, and management of the child. See Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982); In re Beck, 488 Mich 6, 11; 793 NW2d 562 (2010). Although public policy in Michigan favors natural parents having custody of their children, the rights of the parent and the child come into conflict when the parent is unfit to parent the child. The state may interfere with the parent and child's "mutual due process liberty interests" by demonstrating parental unfitness in a judicial proceeding. In re Clausen, 442 Mich 648, 687, 687 n 46; 502 NW2d 649 (1993). The state may constitutionally terminate a parent's parental rights if it affords the parent fundamentally fair procedures, which includes proof by clear and convincing evidence that termination is warranted. See Santosky, 455 US at 753-754; see also In re Rood, 483 Mich at 92-93. "Once the petitioner has presented clear and convincing evidence that persuades the court that at least one ground for termination is established under subsection 19b(3), the liberty interest of the parent no longer includes the right to custody and control of the children." In re Trejo, 462 Mich 341, 355. Therefore, so long as the DHHS satisfied its burden of establishing one ground for termination under MCL 712A.19b(3) by clear and convincing evidence, respondent's constitutional rights were not violated. Here, as explained below, the evidence presented by the DHHS established multiple grounds for termination by clear and convincing evidence, and as a result, respondent's constitutional right to parent KGM was not violated.
Respondent argues that the evidence to support the statutory grounds for termination was insufficient. Specifically, respondent argues that there were major discrepancies in KGM's statements regarding the sexual abuse incident, that there was no physical evidence of penetration, and that there was no proper cross-examination of KGM. We disagree.
"In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). " 'If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.' " Id., quoting MCL 712A.19b(5). This Court reviews the trial court's findings and factual determinations for clear error. MCR 3.977(K); see also In re Trejo, 462 Mich at 356; 612 NW2d 407 (2000); In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005). "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 HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
MCL 712A.19b(3) states, in relevant part:
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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(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.
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(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:
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(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
The trial court found that the DHHS established these grounds for termination on the basis of KGM's statements that respondent sexually abused her. The DHHS presented a stipulated offer of proof regarding KGM's testimony of the sexual abuse incident. The attorney for the DHHS, respondent's attorney, and the lawyer-guardian ad litem met with KGM outside the purview of the court, prior to the December 6, 2018 adjudication hearing, where she testified and answered questions and the attorneys had the opportunity to cross-examine her. The DHHS caseworker also testified that KGM disclosed the same information regarding the sexual abuse incident to the caseworker, a medical examiner, law enforcement officers, and KGM's family members. Therefore, respondent's arguments that there were discrepancies in KGM's statements and that there was a lack of proper cross-examination are without merit. The trial court accepted the offer of proof and found that the unrefuted testimony demonstrated that respondent sexually abused KGM by penetration. The trial court implicitly determined that KGM's statements were credible. The trial court had the opportunity to judge KGM's credibility and determined that KGM's body language, mannerisms, fear on her face, and tears demonstrated emotional distress and stress. The lower court record does not contradict the trial court's credibility determination. MCR 2.613(C) ("[R]egard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it."); In re HRC, 286 Mich App at 460 ("It is not for this Court to displace the trial court's credibility determination."). The trial court's finding that KGM's testimony was credible was sufficient to establish that respondent sexually assaulted KGM. That there was no physical evidence of the assault in no way negates this finding, and respondent's argument to the contrary is unpersuasive. Further, the trial court determined, based on testimony from the DHHS, that because respondent refused to participate in any treatment or services during the pendency of this case, there was a reasonable likelihood that KGM would suffer from abuse in the future if placed in respondent's home.
At the hearing, respondent's attorney stipulated to the offer of proof of KGM's testimony. The trial court specifically asked respondent's attorney if she was satisfied that if called to testify, KGM would say on the stand what was in the offer of proof and respondent's attorney responded that she "had an opportunity to ask her questions in the conference room and I am satisfied that that is what she would say." Respondent's attorney also agreed that any further questioning would not help respondent's position. KGM affirmed on the record at the hearing that her assertions regarding the sexual abuse were true and that if called to testify, she would give the same testimony.
Additionally, respondent's sexual abuse of KGM presented a risk to her physical well-being and emotional and behavioral development. KGM attended counseling since August 2018, and her counselor indicated that KGM experienced trauma from the sexual abuse. KGM continued to attend weekly counseling sessions at the time of the adjudication and termination hearing to address the trauma related to the sexual abuse. The evidence and testimony established that respondent's actions had a persisting negative effect on KGM and that there was a reasonable likelihood that KGM would continue to suffer these negative effects if returned to respondent's care. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011) (concluding that MCL 712A.19b(3)(j) contemplates the reasonable likelihood of both physical and emotional harm to the child in the parent's care). Additionally, the DHHS caseworker testified that termination of respondent's parental rights was necessary because she did not feel that KGM's paternal family would protect her from respondent, and instead would allow respondent to have contact with her. Therefore, the trial court did not clearly err by finding that the DHHS established by clear and convincing evidence that respondent sexually abused the minor child, that the sexual abuse included penetration, and that there was a reasonable likelihood that KGM would suffer abuse in the future if she was returned to respondent's care. Based on these findings, the trial court did not clearly err in terminating respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii). In re Trejo, 462 Mich at 359-360; In re Hudson, 294 Mich App at 268, In re HRC, 286 Mich App at 460-461.
Respondent next argues that the trial court should have considered KGM's placement with her biological mother when determining whether termination of his parental rights was in KGM's best interests. We disagree.
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012); see also MCL 712A.19b(5); MCR 3.977(E)(4). The trial court determines each child's best interests individually and, in doing so, "may consider 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 Olive/Metts, 297 Mich App at 41-42 (citations omitted). "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 children's well-being while in care, and the possibility of adoption." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). If a child is placed with a relative at the time of the termination hearing, the trial court must consider whether termination is appropriate in light of the child's placement with a relative. In re Olive/Metts, 297 Mich App at 43. However, a trial court need not consider the child's placement with a biological parent because a biological parent is not a "relative" pursuant to MCL 712A.13a(1)(j). In re Schadler, 315 Mich App 406, 409; 890 NW2d 676 (2016).
In this case, the trial court was not required to consider KGM's placement with her biological mother. Id. Further, the trial court appropriately considered KGM's need for permanency and closure to address the trauma of the sexual abuse. The trial court found that there were no services or available remedies that would allow KGM to return to respondent's care or mitigate the risk of harm to KGM if the trial court did not terminate respondent's parental rights. Respondent argues that the trial court could have used less draconian alternatives than permanent termination of parental rights to ensure that KGM remained safe, such as a change in custody or parenting time. However, the trial court asked the DHHS caseworker whether termination of respondent's parental rights was preferable to KGM's mother seeking sole custody of KGM. The DHHS caseworker testified that termination was preferable because she was concerned that KGM's paternal family members would allow contact with respondent, which posed a risk of harm to KGM. Finally, the lower court record also supports the conclusion that KGM did not have a bond with respondent as he only randomly visited KGM before July 2018 and she was not concerned whether she saw respondent again. Also, respondent did not participate in any services offered by the DHHS or in the child protective proceedings. Therefore, the trial court did not clearly err by determining by a preponderance of the evidence that termination of respondent's parental rights was in the best interests of KGM. In re Olive/Metts, 297 Mich App at 41-42.
Respondent also argues that the DHHS failed to provide reunification services, and that the trial court denied him the opportunity to participate in the child protective proceedings. We disagree.
Generally, "the [DHHS] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). Notwithstanding the general duty to make reasonable efforts to reunify, MCL 712A.19a(2) provides, in relevant part, that reasonable efforts are not required if:
(a) There is a judicial determination that the parent has subjected a child to aggravated circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PA 238, MCL 722.638.The petitioner "is not required to provide reunification services when termination of parental rights is the agency's goal," and MCL 722.638(1)(a)(ii) provides that the DHHS must seek termination of parental rights when the respondent is suspected of perpetuating sexual abuse on the minor child. In re HRC, 286 Mich App at 463.
In this case, the DHHS was not required to make reasonable efforts or provide respondent with services for reunification with the minor child. The DHHS sought termination in the initial complaint and petition on the basis of respondent's sexual abuse of KGM, as mandated by MCL 722.638(1)(a)(ii). The testimony at the termination hearing supported the trial court's finding that respondent subjected KGM to criminal sexual conduct involving penetration. Therefore, the DHHS was not required to make reasonable efforts in this case. In re HRC, 286 Mich App at 463.
Further, the DHHS caseworker testified that the DHHS offered respondent services, including counseling, a psychological exam, and parenting time. However, respondent failed to respond or contact the DHHS and failed to participate in the services. The caseworker also testified that respondent denied that the sexual abuse occurred. Therefore, the caseworker believed that there was not a service that would be able to remove the risk of harm to KGM.
Additionally, the trial court did not prevent respondent from participating in the child protective proceedings. The trial court informed respondent that it was necessary for him to address two outstanding warrants in order to continue to appear by telephone for this case. The trial court did not preclude respondent from participating in person and indicated that respondent could continue to appear by telephone if he addressed the outstanding warrants.
According to testimony from the DHHS caseworker, she believed that respondent lived in Florida throughout the pendency of this case, but he did not maintain contact with his attorney or the DHHS for either to be able to confirm his location. Respondent gave two addresses to his attorney, one in Battle Creek, Michigan and one in Florida. Despite attempts to contact respondent, respondent's attorney admitted at the termination hearing that she only spoke with respondent for five minutes at the preliminary hearing and never had a substantive conversation regarding the allegations, other than learning that respondent "did not agree with the allegations". Respondent never appeared to take care of his warrants as requested by the trial court and was therefore precluded from participating in further proceedings by telephone. The trial court acknowledged that respondent was personally served with notice of the termination hearing and was notified of the date for the termination hearing while he was on the telephone at the preliminary hearing. Respondent does not challenge the sufficiency of the notice on appeal. --------
In sum, the trial court did not clearly err by determining that the DHHS established at least one statutory ground for termination and that termination was in the minor child's best interests. The trial court also did not erroneously determine that the DHHS was not required to make reasonable efforts and provide respondent with services to reunify the family. Therefore, the termination proceedings were not fundamentally unfair and did not deprive respondent of his constitutional due process rights. We conclude that the trial court did not violate or erroneously deprive respondent of his constitutional right to parent. In re Rood, 483 Mich at 91; In re Utrera, 281 Mich App at 8-9.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
/s/ Colleen A. O'Brien