Opinion
No. 351510
06-11-2020
In re HOOVER/FOX, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wexford Circuit Court Family Division
LC No. 19-028487-NA Before: CAMERON, P.J., and BOONSTRA and LETICA, JJ. PER CURIAM.
Respondent-mother appeals the trial court's order terminating her parental rights to the minor children, KH1, KH2, KH3, and MF under MCL 712A.19b(3)(b)(ii) (failure to prevent sexual abuse to child or sibling) and (b)(iii) (reasonable likelihood that the child will suffer from injury or sexual abuse by a nonparent adult in the foreseeable future if placed in the parent's home). We affirm.
I. PERTINENT FACTS
This case arises out of the sexual abuse of KH1, KH2, and KH3, by respondent's boyfriend, Robert Fox. Fox is also the biological father of respondent's fourth child, MF; however, there were no allegations that Fox had sexually abused MF.
In 2013, Child Protective Services (CPS) received a complaint that Fox, who had a history of criminal sexual conduct and domestic violence, had engaged in oral sex with KH3. Also, during an investigation, it was discovered that Fox had been physically abusive toward some of the children and to respondent in front of the children. Respondent was provided with services for one year, and she successfully completed them. Although respondent indicated that she had ended her relationship with Fox and that she was committed to protecting the children, the caseworker received reports that respondent was still seeing Fox and that she had started a separate relationship with a sex offender. Nonetheless, the case was resolved in December 2014 after Fox voluntarily relinquished his parental rights to MF. Respondent was warned by both the judge who presided over the case and the case worker that permitting Fox to be around the children could result in her parental rights being terminated. Respondent agreed that she would not allow Fox to live with her and the children or to have unsupervised contact with the children.
Fox was charged with a criminal sexual conduct crime in relation to KH3's allegations. However, at some point in 2013 or 2014, KH3 either changed her statement or recanted. The charge against Fox was dismissed without prejudice, although there were concerns that respondent had influenced KH3. At some point in 2019, Fox was charged with first-degree criminal sexual conduct in relation to the 2013 incident involving KH3. --------
In May 2016, CPS received a complaint that respondent was granting Fox access to her home and an investigation commenced. Respondent acknowledged that Fox spent time with her and the children at her home, but she denied that Fox had unsupervised contact with the children. Respondent was offered services, but she declined to participate in them. A petition was not filed and the children were not removed from respondent's care; instead, respondent was warned that it was her responsibility to ensure that the children were safe. In December 2017, Fox moved into respondent's home, and respondent admitted that she let Fox have unsupervised contact with the children. On March 19, 2019, CPS received a complaint alleging that Fox had been inappropriately touching KH1, KH2, and KH3, and had been sleeping in the same bed as them. An investigation commenced, and the children were interviewed.
On March 20, 2019, petitioner filed a petition for removal of the minor children from respondent's custody and requested that the trial court exercise jurisdiction and terminate respondent's parental rights. The petition alleged that respondent had failed to protect the children from abuse by Fox in the past and that, despite being warned that further contact with Fox could cause her to lose her parental rights to the children, respondent had permitted Fox to live with her and the children. The petition also alleged that KH1, KH2, and KH3 had disclosed that Fox had sexually assaulted them. Specifically, KH1 disclosed that Fox had touched her chest; KH2 disclosed that while she was sleeping, someone had touched her chest area and that she saw Fox standing next to her when she woke up; and KH3 disclosed that Fox had put his "private part" in her mouth several times. The petition also alleged that respondent had been informed about the "inappropriate touching" and that she did not believe that it was true. The trial court authorized the petition, and the minor children were removed from respondent's care. KH1, KH2, and KH3 were placed with their father and stepmother, and MF was placed with her paternal aunt.
After an adjudication hearing was held on July 23, 2019, the trial court exercised jurisdiction over the minor children under MCL 712A.2(b)(1) and (2) and held that they would remain temporary wards of the state. Respondent began voluntarily participating in services. She also had supervised visitation with the children twice each week.
The termination hearing was held over the course of three days. The testimony at the hearing centered around whether respondent would be able to protect the children from abuse in the future and how the minor children were doing in their placements. At the end of the hearing, the trial court determined that it was proper to terminate respondent's parental rights under MCL 712A.19b(3)(b)(ii) and (b)(iii). The trial court also found that it was in the best interests of the minor children to terminate respondent's parental rights. This appeal followed.
II. ANALYSIS
A. STATUTORY GROUNDS FOR TERMINATION
Respondent argues that the trial court clearly erred by finding clear and convincing evidence supporting the two statutory grounds cited in support of termination. We find no clear error warranting reversal.
"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). We review for clear error the trial court's decision whether grounds for termination have been proven by clear and convincing evidence. In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016). "A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made," with the reviewing court "defer[ring] to the special ability of the trial court to judge the credibility of witnesses." In re LaFrance, 306 Mich App 713, 723; 858 NW2d 143 (2014) (citation omitted).
The trial court found that grounds for terminating respondent's parental rights were established under MCL 712A.19b(3)(b)(ii) and (iii), which authorize termination under the following circumstances:
(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.
(iii) A nonparent adult'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 by the nonparent adult in the foreseeable future if placed in the parent's home.
MCL 712A.19b(3)(b)(ii) "is intended to address the parent who, while not the abuser, failed to protect the child[ren] from the other parent or nonparent adult who is an abuser." In re LaFrance, 306 Mich App at 725. In particular, it applies to instances where the respondent parent failed to protect the child or children from physical abuse, sexual abuse, or excessive corporal punishment. Id. at 725-726.
In this case, it is undisputed that respondent failed to protect KH1, KH2, and KH3 from sexual abuse at the hands of Fox. At the termination hearing, respondent acknowledged that she had permitted Fox to live in the home that she shared with the children and that she had allowed him to have unsupervised contact with them, even though she knew that Fox had a history of engaging in sexual abuse and that he had sexually abused KH3 in 2013. The evidence demonstrates that KH1, KH2, and KH3 were sexually abused by Fox after respondent permitted Fox to return to the home in December 2017. Thus, the record evidence supports that respondent had the opportunity to prevent the sexual abuse of KH1, KH2, and KH3, but failed to do so. Although there is no evidence that Fox abused MF, this is not dispositive because "[h]ow a parent treats one child is certainly probative of how that parent may treat other children." In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001) (quotation marks and citation omitted).
On appeal, respondent argues that the trial court clearly erred by finding that there was a reasonable likelihood that the children would suffer abuse in the future if they were returned to respondent's home because Fox was incarcerated at the time of termination. We disagree. As already discussed, despite being aware that Fox had sexually abused KH3 in 2013 and that her parental rights could be terminated if she failed to protect the children from abuse in the future, respondent permitted Fox to move into the home and to have unfettered access to the children. Testimony also supported that respondent did not initially believe that KH1, KH2, and KH3 had been sexually assaulted, and that she did not report Fox to the authorities despite being informed of the abuse in February 2019.
Although respondent engaged in counseling and parenting education during the proceeding, the record supports that she continued to have contact with Fox after the children were removed from her care in March 2019. Specifically, one witness testified that she saw respondent with Fox on three different occasions in the summer of 2019 when Fox had two warrants out for his arrest in relation to his sexual assaults on KH3. According to the witness, after Fox was arrested, respondent asked the witness not to tell anyone that she had been in contact with Fox. Although respondent denied that she had been in contact with Fox after late February 2019, the trial court found the testimony of the witness to be credible and noted that respondent was in possession of some of Fox's property. Accordingly, the record does not support that respondent benefitted from the services that she received.
Additionally, respondent's therapist, who began treating respondent in May 2019, testified that respondent had not informed her of the type of abuse that KH3 sustained at the hands of Fox. After eight sessions with respondent, the therapist agreed that respondent had not likely overcome the controlling dynamics that were involved in her relationship with Fox. The therapist testified that she was unable to predict respondent's future behavior. Importantly, respondent acknowledged that she had dated another sex offender during the 2013 proceeding, and that KH1 had expressed concern that she would be "sent into the same danger" if she and her siblings were returned to respondent's care.
In sum, we conclude that the evidence establishes that respondent placed her desire to be with Fox over the needs of her children—despite the pending criminal charges against him and his history of sexual abuse—and that she would likely continue to place her personal interests over her children's welfare in the future. Therefore, the trial court did not clearly err when it found that petitioner had established by clear and convincing evidence that termination was warranted under MCL 712A.19b(3)(b)(ii). Having decided that termination was properly granted under Subsection (b)(ii), it is unnecessary to consider or decide respondent's claims of error concerning the other disputed ground. See In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011) ("Only one statutory ground need be established . . . to terminate a respondent's parental rights[.]").
B. BEST INTERESTS
Respondent also argues that the trial court erred by finding that termination of her parental rights was in the children's best interests. We disagree.
"The trial court must order the parent's rights terminated if the Department has established a statutory ground for termination by clear and convincing evidence and it finds from a preponderance of evidence on the whole record that termination is in the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). We review the trial court's best-interest determination for clear error. Id.
"In making its best-interest determination, the trial court may consider the whole record, including evidence introduced by any party." In re Medina, 317 Mich App at 237 (quotation marks and citation omitted).
[T]he court should consider a wide variety of factors that may include 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. The trial court may also consider . . . the children's well-being while in care, and the possibility of adoption." [In re White, 303 Mich App at 713-714.]
Respondent cites her bond to the children in support of her argument that the trial court clearly erred by finding that termination of her parental rights was in the children's best interests. Although respondent was bonded to the children and exhibited good parenting skills during parenting time, the evidence supports that the children required permanence, stability, finality, and the ability to feel safe. Respondent was not able to provide these things to the children given that she failed to protect KH1, KH2, and KH3 from abuse at the hands of Fox, and given that the evidence supports that the children would be vulnerable to future abuse if returned to respondent. Additionally, respondent's actions during the proceeding support that she was unable or unwilling to put the children's interests ahead of her own despite being aware that her parental rights were at stake. Thus, although the record supports that respondent shared a bond with the minor children, the record also supports that the bond was not healthy for the children.
The record evidence also supports that the minor children were doing well in their placements, and that they were receiving the stability and safety that they required. Additionally, testimony supports that MF's paternal aunt was interested in adopting her and that KH1, KH2, and KH3's stepmother was interested in adopting them. The trial court explicitly considered the children's relative placements and noted that they weighed against termination. See In re Olive/Metts Minors, 297 Mich App 35, 43; 823 NW2d 144 (2012). Nonetheless, the trial court found that termination was in the children's best interests given that respondent had demonstrated an inability to protect them from abuse and given that the children required stability and finality, which they were receiving in their current placements. We conclude that the trial court did not clearly err by finding that, despite the children's relative placements, termination of respondent's parental rights was in the best interests of the children.
We also conclude that respondent's argument that reversal is required because the trial court failed to conduct a "meaningful best interest analysis as to each individual child" has no merit. We have held that "if the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children's best interests." In re White, 303 Mich App at 715. However, the trial court does not err "if it fails to explicitly make individual and—in many cases—redundant factual findings concerning each child's best interests." Id. at 716. The record shows that the trial court addressed the best interests of the children together, and respondent has not identified any significantly different interests of the children that the trial court failed to address. Furthermore, upon review of the record, we were unable to locate evidence that would support that the children's interests significantly differed. Indeed, all the children were placed with relatives; required stability, permanency, and safety; and were at risk of abuse if returned to respondent's care. For those reasons, we are convinced that the trial court's best-interest determination was not clearly erroneous.
Affirmed.
/s/ Thomas C. Cameron
/s/ Mark T. Boonstra
/s/ Anica Letica