Opinion
No. 347382
08-13-2019
In re MCGHEE/NICHOLSON, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 18-001287-NA Before: K. F. KELLY, P. J., and TUKEL and REDFORD, JJ. PER CURIAM.
Respondent appeals by right the trial court order terminating his parental rights to his six minor children under MCL 712A.19b(3)(b)(i), (j), and (k)(ii). We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Respondent was the biological father of six of Shuna Nicholson's seven children. The couple resided together with their six children and ZN, Nicholson's eldest 14-year-old daughter. ZN's biological father died when she was 13 years old, but she had not seen him since she was five years old. After her father died, ZN spent time with his family during the summer. When ZN was 13 years old, she disclosed that respondent began sexually abusing her at the age of 10. She testified that respondent touched her vagina and rear end both under and over her clothing and forced her to touch his penis once. There were other family members present in the home at the time of the inappropriate touching. Additionally, ZN testified that respondent attempted to bribe her to allow the inappropriate contact to occur. He also instructed her to lie and blame someone else for the sexual abuse.
ZN acknowledged that her medical records contained a different version of events. The medical records indicated that ZN was abused since she was three years old and that the abuse occurred more frequently and involved penetration. However, ZN asserted that her testimony was correct, and the doctor must have misunderstood her statements. Although she felt uncomfortable when alone with respondent, she did not witness respondent abuse any of his biological children and did not believe that he would harm them. During cross-examination, ZN explained that she did not disclose the abuse sooner because she was unsure of whom she could trust and how to explain what transpired.
In addition to ZN's testimony, Tellecia Wiggins, child protective service specialist with petitioner, testified that the petition was initiated after ZN disclosed her abuse. Respondent's counsel was unable to question Wiggins regarding the disparity between ZN's testimony and prior statements because the court ruled that the statements constituted hearsay. Wiggins opined that termination of parental rights was necessary because of the risk that respondent would abuse his other children and that termination was in the children's best interests. The court acknowledged that there were inconsistencies in the record regarding the timing, degree, and severity of the abuse in light of the medical records, but nonetheless, concluded that ZN was credible and did not have a motive to fabricate the allegations. The court terminated respondent's parental rights, and from this decision, he appeals.
II. EVIDENTIARY RULINGS
Respondent first contends that the trial court abused its discretion and denied respondent a fair trial in its evidentiary rulings. We disagree. This Court reviews a decision to admit or exclude evidence for an abuse of discretion. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). An abuse of discretion occurs when the trial court's decision falls outside the range of principled outcomes. People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). An abuse of discretion exists only if an unprejudiced person, considering the facts on which the trial counsel acted, would say that there is no justification or excuse for the trial court's decision. People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000).
The original petition for permanent custody alleged that respondent had sexually abused his children's older 14-year-old sister, ZN, since she was 10 years old. Respondent contends that the trial court abused its discretion by limiting trial counsel's cross-examination concerning a possible motive for ZN to fabricate her story. Respondent contends that the evidence was relevant and not hearsay because it would not be admitted for the truth of the matter asserted, but for impeachment. ZN's credibility was crucial because the entire case hinged on the reliability of her statements. During cross-examination of ZN, she admitted that there was a time when she wanted to live with the family of her deceased biological father. When respondent's attorney asked ZN if anyone on her father's side of the family told her to "tell this story," the guardian ad litem objected on the basis of hearsay, and respondent's attorney proceeded to ask another question before the court could rule. Over the guardian ad litem's objection, the court allowed respondent to ask ZN why she waited two or three years to tell anyone about the abuse, and she replied that she did not feel she could trust anyone and did not know how to tell somebody. Respondent's attorney continued to question ZN about what had made her change her mind, and upon objection by the guardian ad litem that "we've gone far enough," the court agreed and cut off the line of questioning.
In People v Perkins, 116 Mich App 624, 628-629; 323 NW2d 311 (1982), the Court held:
As a general principle, a witness's bias or prejudice may be shown by extrinsic evidence, since "particular conduct and circumstances form the only means practically available for effectively demonstrating the existence of bias." 3A Wigmore on Evidence (Chadboum Rev.) § 948, p. 784. . . .
There seems little question that, since the case against defendant consisted almost entirely of complainant's testimony, any possibility of the existence of a motive for testifying falsely should be presented to the jury. Of course, the trial court has wide discretion in determining how far afield the inquiry should go, and "has the responsibility for seeing that the sideshow does not take over the circus." McCormick, Evidence (2d ed.), § 41, p. 81.
The inference defendant sought to establish by the excluded evidence was highly tenuous, and we believe that defendant was afforded sufficient opportunity to demonstrate the possibility that the prosecution's chief witnesses may have had a motive for testifying falsely. There was no abuse of discretion by the trial court in excluding testimony concerning other drug activities of the complainant's husband.
The record reveals that respondent's attorney was trying to present a possible motive for ZN to fabricate the allegations of sexual abuse by showing that she wanted to live with her father's relatives. Respondent's attorney began with questions concerning the aunts and uncles on her father's side, and, when an objection to relevance was made, respondent's attorney was reluctant to explain the relevance of the question. The court stated that it did not know "where you're going" and did not see the relevance, but it would give respondent's attorney "a little bit of leeway." Finally, respondent's attorney stated he would "reduce it to one question," and asked, "Did anybody on your father's side of the family tell you to tell this story?" As the questioning by respondent's attorney proceeded, over objection, the trial court allowed respondent's attorney to ask ZN why she waited over two years to tell somebody about it. However, when respondent's attorney continued to press the witness, petitioner objected that the questioning had "gone far enough," and the court agreed.
This was not a jury trial. In the court's stated opinion on the record, the court addressed respondent's contention that ZN had a motive to lie. The court found that, because of the consequences of her testimony, including the anger her six siblings would have toward her if she had made up the allegations, ZN would not risk lying "just for her own benefit." The court believed that ZN understood what a difficult decision she had made and believed that she was truthful. The record is clear that respondent was successful in presenting a possible motive for the witness to lie, but that the court rejected respondent's contention and found ZN to be credible. As in Perkins, the trial court did not abuse its "wide discretion in determining how far afield the inquiry should go." Id. at 628.
Respondent next claims the court abused its discretion by ruling that the answers to his attorney's questions during cross-examination of petitioner about the hospital records would be inadmissible hearsay. Respondent contends that the answers would not be hearsay because they were not being admitted for the truth of the matter asserted, but for impeachment. We disagree. The medical records were admitted into evidence. The examining doctor had written in the medical records that ZN reported she had been sexually abused every week since she was three years old. On direct examination, ZN testified that the medical records were wrong; the doctor misunderstood what she said and thought that she said that the sexual abuse started when she was three. She testified that the sexual abuse started when she was 10 years old.
Upon cross-examination of ZN, respondent's attorney reiterated that the doctor had written in the medical records that the sexual abuse started when she was three and asked ZN, "So, that's not true?" ZN stated it was not true; nothing happened until she was 10 years old. Then, during the cross-examination of worker Wiggins, respondent's attorney asked her when she first became aware that the medical records were inaccurate. Wiggins answered that she did not rely on the hospital records; she relied on what ZN had told her and the Kids Talk examiner. Respondent's attorney then asked petitioner whether ZN told her that the sexual abuse happened weekly starting when she was three years old. The guardian ad litem objected on the basis of hearsay, and the court sustained the objection on that ground and ruled the evidence was inadmissible. Respondent's attorney then asked Wiggins what ZN told her about when the sexual abuse started and what acts ZN stated had happened. She answered those questions. Finally, an objection was made to an additional follow-up question about what ZN had said, and the court again ruled it was hearsay. Respondent's attorney argued that he should be permitted to ask if somebody could refute ZN's testimony, and the court stated that respondent could recall ZN to ask her those questions. Respondent's attorney stated he wanted to find out whether ZN had given Wiggins a different history. The court held it was inadmissible hearsay.
In this bench proceeding, the record shows that the court was sufficiently aware of the inconsistencies in ZN's hospital records and her testimony, and her explanation that the doctor misunderstood her. The court made it clear that it would not consider the medical report in its decision. We conclude that the court ruled correctly. MRE 613(b) provides in pertinent part:
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.
In the present case, respondent was given the opportunity to recall ZN and declined. In a bench trial, the trial court is presumed to know the applicable law. People v Lanzo Constr Co, 272 Mich App 470, 484; 726 NW2d 746 (2006). The trial judge who sits as a factfinder is presumed to possess an understanding of the law, which allows him to understand the difference between admissible and inadmissible evidence. People v Wofford, 196 Mich App 275, 282; 492 NW2d 747 (1992). The court's decisions concerning the admission of hearsay evidence were not outside the range of principled outcomes, and it could not be said that there was no justification or excuse for the court's decisions. Benton, 294 Mich App at 195; Snider, 239 Mich App at 419. There was no evidence that the trial court abused its discretion in its evidentiary rulings.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Respondent next contends that he was denied the effective assistance of counsel because his attorney failed to contest the allegations in the petition, failed to point out the inconsistencies in ZN's statements, failed to take sufficient steps to impeach ZN's testimony, and failed to address his children's best interests. We disagree. Respondent did not raise this issue in the trial court or request an evidentiary hearing and therefore it has not been preserved for appeal. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). Unpreserved claims of ineffective assistance of counsel are reviewed for errors apparent on the record. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
The principles of ineffective assistance of counsel in criminal cases apply by analogy in termination of parental rights proceedings. In re Osborne (On Remand), 237 Mich App 597, 606; 603 NW2d 824 (1999). Therefore, respondent must establish that (1) counsel's performance was deficient, falling below an objective standard of reasonableness, and that (2) but for counsel's errors, there is a reasonable probability that the outcome of the proceeding would have been different. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001); In re Martin, 316 Mich App 73, 85; 896 NW2d 452 (2016). A claim of ineffective assistance of counsel is a mixed question of law and fact. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). Effective assistance of counsel is presumed, and respondent bears the burden of proving otherwise. Id. at 578.
The failure of a particular trial strategy does not render counsel's performance deficient. People v Petri, 279 Mich App 407, 412; 760 NW2d 882 (2008). "Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of counsel regarding matters of trial strategy." People v Davis, 250 Mich App 357, 368; 250 Mich App 801; 649 NW2d 94 (2002). The failure to cross-examine a witness only constitutes ineffective assistance if it deprives respondent of a substantial defense. People v Hopson, 178 Mich App 406, 412; 444 NW2d 167 (1989). "[T]his Court will not second-guess counsel regarding matters of trial strategy, and even if defense counsel was ultimately mistaken, this Court will not assess counsel's competence with the benefit of hindsight." People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
A review of the record reveals that trial counsel addressed every issue about which respondent complains. First, respondent's argument that defense counsel did not contest the allegations in the petition is without merit. By not admitting the allegations in the petition, defense counsel contested the allegations in the petition. As demonstrated above, the record shows that respondent's attorney did question ZN about the inconsistencies between her testimony and the hospital records. There is no indication that a more detailed cross-examination would have affected the outcome of the case. In addition, during closing arguments, trial counsel brought out the inconsistencies between the medical reports and records and ZN's testimony at trial. Further, counsel addressed the best interests of respondent's children during closing arguments. Trial counsel argued that, because there was not clear and convincing evidence to support a statutory ground for termination, there was not sufficient evidence to address best interests. Then, trial counsel argued that termination was against the best interests of the children because respondent was bonded with all the children, had a job, and was a productive member of society. There was no need for respondent's attorney to restate the arguments. The court is presumed to understand the law and what is required to determine best interests. Lanzo Constr Co, 272 Mich App at 484; Wofford, 196 Mich App at 282.
Respondent has failed to demonstrate that there were any errors made by counsel that are apparent on the record. Respondent has failed to show that his attorney's representation fell below an objective standard of reasonableness or that, but for counsel's actions, there is a reasonable probability that the results of the proceeding would have been different. Therefore, respondent has failed to present a claim of ineffective assistance of counsel.
IV. STATUTORY GROUNDS
Respondent next contends that the trial court clearly erred in finding clear and convincing evidence to support the statutory grounds for termination. We disagree. "This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination." In re White, 303 Mich App 701, 709; 846 NW2d 61 (2014). A trial court's findings of fact are clearly erroneous if "we are definitely and firmly convinced that it made a mistake." Id. at 709-710. "To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence." In re Keillor, 325 Mich App 80, 85; 923 NW2d 617 (2018).
Respondent's parental rights were terminated under MCL 712A.19b(3)(b)(i), (j), 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.
* * *
(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 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 petitioner for termination of parental rights must prove at least one ground for termination. In re Trejo, 462 Mich 341, 351; 612 NW2d 407 (2000); In re Moss, 301 Mich App 76, 88; 836 NW2d 182 (2013).
If resolution of a disputed factual question turns on the credibility of witnesses or the weight of the evidence, this Court will defer to the trial court, which had superior opportunity to evaluate these matters. People v Sexton, 461 Mich 746, 752; 609 NW2d 822 (2000). This Court must accord due deference to the trial court's assessment of the credibility of the witnesses before it in light of its special opportunity to observe the witnesses. MCR 2.613(C); MCR 3.902(A); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989); In re Newman, 189 Mich App 61, 65; 472 NW2d 38 (1991). We have previously recognized that, when a respondent denies sexually assaulting a child, but the trial court believes the testimony of the child, "[i]t is not for this Court to displace the trial court's credibility determination." In re HRC, 286 Mich App 444, 460; 781 NW2d 105 (2009).
As respondent asserts, ZN's testimony regarding the circumstances of the sexual assaults was not entirely without inconsistencies, and there was no other evidence to substantiate her testimony. However, ZN stated with certainty that the doctor at the hospital misunderstood what she was saying and wrote down that the sexual assaults started at age three. The trial court clearly demonstrated that it was aware of the inconsistencies but, in rendering its opinion, it relied solely on ZN's testimony under oath at the termination hearing. Despite the numerous issues raised by defense counsel in an attempt to discredit ZN's testimony, the record is clear that the trial court believed ZN was credible.
ZN testified that respondent touched her behind and her vagina, over and under her clothes. He had touched the lips of her vagina. Respondent grabbed her hands and made her touch his penis. She testified that he told her, if she was asked, to give a different name as to who had done these things to her. According to ZN's testimony, within recent months, respondent pushed her up against a wall and tried to touch her "butthole and stuff," grabbed her by her arm, touched her "butthole" under her clothes, and that he had Vaseline on his finger. Respondent tried to bribe ZN with a cookie. When respondent hugged her, he would touch her "butt" over her clothes. She testified that he treated her differently than he treated the other children, and she "felt weird" when she was alone with him because she always felt like he was trying to touch her. The testimony supported the finding that the child suffered sexual abuse, that respondent's acts caused the sexual abuse, and there was a reasonable likelihood that she or her siblings would suffer the abuse in the foreseeable future if placed in respondent's home. Therefore, there was clear and convincing evidence to support termination under MCL 712A.19b(3)(b)(i). Based on the same evidence and considering respondent's conduct, there was a reasonable likelihood that the children would be harmed if returned to respondent's home. Therefore, there was clear and convincing evidence to support termination under MCL 7123A.19b(3)(j).
Once ZN understood what "penetrate" actually meant, she denied that respondent put his finger or penis inside of her. However, based on her testimony, there was clear and convincing evidence to support the finding that respondent's sexual abuse included "attempted penetration, or assault with intent to penetrate." Therefore, there was clear and convincing evidence to support termination of respondent's parental rights under MCL 713A.19b(3)(k)(ii). The trial court did not clearly err in finding clear and convincing evidence to support the statutory grounds for termination of respondent's parental rights.
V. BEST INTERESTS
Finally, respondent argued that the trial court clearly erred in finding that termination of respondent's parental rights was in the best interests of his children. We disagree. Once the petitioner has established a statutory ground for termination by clear and convincing evidence, the trial court must find that termination is in the child's best interests before it can order termination of parental rights. MCL 712A.19b(5). Whether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence. In re Moss, 301 Mich App at 88-90. This Court reviews a trial court's decision regarding a child's best interests for clear error. In re Laster, 303 Mich App 485, 496; 845 NW2d 540 (2013). "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).
MCL 712A.19b(5), provides:
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.In making its best-interest determination, the court should consider the whole record and "may consider evidence introduced by any party." In re Trejo, 462 Mich at 354-355. The court may consider the parent's parenting ability, In re Jones, 286 Mich App 126, 129-130; 777 NW2d 728 (2009), the child's bond to the parent, In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004), the child's safety and well-being, In re VanDalen, 293 Mich App 120, 142; 809 NW2d 412 (2011), whether the parent can provide a permanent, safe, and stable home, In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012), and the child's "need for permanency, stability, and finality," In re Gillespie, 197 Mich App 440, 446-447; 496 NW2d 309 (1992).
The trial court found, without clearly erring, that there was clear and convincing evidence that respondent had sexually abused ZN, there was a reasonable likelihood that he would continue to do so, and he had committed criminal sexual conduct involving attempted penetration or assault with intent to penetrate. Regardless of any bonding or whether respondent could financially provide for his children, in consideration of the children's safety and well-being, the trial court did not clearly err in finding that the risk that respondent would commit criminal sexual conduct on one or more of them was too great to permit him to be part of their lives. In In re Moss, 301 Mich App at 89, the Court held:
[O]nce a statutory ground for termination is established, i.e., the parent has been found unfit, the focus shifts to the child and the issue is whether parental rights should be terminated, not whether they can be terminated. Accordingly, at the best-interest stage, the child's interest in a normal family home is superior to any interest the parent has. [(Emphasis in original).]
Therefore, considering the superior interest of the children, the trial court did not clearly err in finding by a preponderance of the evidence that termination of respondent's parental rights was in the children's best interests.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel
/s/ James Robert Redford