Opinion
Nos. 350340 Nos. 352406
05-14-2020
In re ROBBS, Minors. In re Z L ROBBS, Minor.
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 UNPUBLISHED Wayne Circuit Court Family Division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. 18-000322-NA Wayne Circuit Court Family Division
LC No. 18-000324-NA Before: K. F. KELLY, P.J., and BORRELLO and BOONSTRA, JJ. PER CURIAM.
In these consolidated appeals, respondent appeals as of right the trial court's orders terminating his parental rights to his children, MBR, MTR, and ZLR, under MCL 712A.19b(3)(b)(i) (parent abused child), (j) (child will likely be harmed if returned to the parent), (k)(iii) (abuse including battering, torture, or other physical abuse), (k)(iv) (abuse resulted in loss or serious impairment to an organ or limb), and (k)(v) (abuse resulted in life-threatening injury). For the reasons set forth in this opinion, we affirm as to MBR and MTR, but reverse and remand for proceedings consistent with this opinion with respect to ZLR.
On February 13, 2020, this Court entered an order consolidating these two appeals. In re Robbs, Minors, unpublished order of the Court of Appeals, entered February 13, 2020 (Docket Nos. 350340 and 352406).
I. BACKGROUND
These consolidated appeals arise from the termination of respondent's parental rights to another one of his children, JBS. JBS was approximately one year old when he suffered permanently disabling, nearly fatal brain injuries while in respondent's care. The evidence presented during prior termination proceedings led the court to find that JBS suffered his injuries while in the care of respondent either as a direct result of respondent violently shaking JBS (the mother testified that respondent admitted that he "shook" JBS) or respondent's neglect in allowing such horrific harm to come to JBS while in his care. As a consequence of these findings, the court terminated respondent's parental rights to JBS. In later criminal proceedings arising out of these same injuries, respondent was charged with first-degree child abuse and acquitted.
In addition to the allegations of and findings of child abuse in the prior proceeding, the court also found that respondent was physically and emotionally abusive to the mother of JBS, including incidents where he pulled the mother's hair and "smacked" her, pulled a gun on her and kicked in the door of the home where she was living. The domestic violence continued while the mother was pregnant. Testimony from additional witnesses revealed that respondent had a temper and was prone to committing violent acts against others.
During the May 7, 2018 evidentiary and adjudicatory hearing regarding MBR, MTR, and ZLR, the trial court considered whether there were grounds to exercise jurisdiction over the children under MCL 712A(b)(1) and (2), and whether there were grounds for termination of respondent's parental rights under MCL 712A.19b(3)(b)(i), (j), (k)(iii), (k)(iv), and (k)(v). Counsel for petitioner informed the trial court that respondent's parental rights to JBS were recently terminated, and she moved for the trial court to take judicial notice of all findings of fact and all court orders in relation to the termination of respondent's parental rights to JBS. Respondent's counsel did not object, and the trial court took judicial notice of the entire file regarding the termination of respondent's parental rights to JBS.
Respondent testified on his own behalf and acknowledged that his parental rights to JBS were recently terminated, and he was appealing the termination of his parental rights. Respondent denied abusing JBS.
After testimony concluded, the trial court determined that there were grounds to exercise jurisdiction over MBR, MTR, and ZLR under MCL 712A.2(b)(1) and (2), and there were statutory grounds to terminate respondent's parental rights to MBR, MTR, and ZLR under MCL 712A.19b(3)(b)(i), (j), and (k). The trial court accepted the judge's prior finding in the termination proceeding regarding JBS that JBS sustained severe injuries while he was in respondent's care, and the injuries occurred when respondent violently shook JBS. In doing so, the trial court reasoned that its findings were "mandated as a matter of law and they exist as a result of [another judge's] findings." The trial court acknowledged that respondent was appealing the termination of his parental rights to JBS, and it stated, "if that order is changed by appeal that will have an effect on this [c]ourt's decision." The trial court stated, "I have an order that is an order of a [j]udge of this court and its binding on me, it's res judicata."
The trial court did specify the subsections that were met under MCL 712A.19b(3)(k).
On July 19, 2018, the trial court held an evidentiary hearing to determine whether termination of respondent's parental rights was in the best interests of MBR, MTR, and ZLR. Witnesses for petitioner reported that respondent did not attend any supervised visits with MBR and MTR during that period, respondent having informed petitioners that in his opinion, supervised visits that it would be detrimental for MBR and MTR. However, testimony also revealed that respondent recently began attending supervised visits with ZLR. Petitioners informed the court that respondent was attentive during the visits, and that respondent bonded with ZLR.
Respondent again testified on his own behalf, informing the court that he opined that supervised visitation was harmful to MBR, MTR, and ZLR, as the children did not understand why visits must be supervised. Although respondent did not attend supervised visits with MBR and MTR, he testified that he frequently spoke with MBR and MTR on the telephone, and he also began visiting ZLR. Respondent again denied that he ever abused JBS and testified that he was willing to support and care for MBR, MTR, and ZLR. After testimony concluded, the trial court took the matter under advisement in order to review the case file regarding the termination of respondent's parental rights to JBS.
On August 23, 2018, the trial court rendered its best interests determination. In doing so, the trial court acknowledged that respondent was acquitted of criminal charges stemming from JBS's injuries; however, the trial court stated, "[b]ecause of the difference in burdens of proof that decision does not affect this Court's decision." The trial court went on to address the termination of respondent's parental rights to JBS. The trial court stated that another judge previously determined that respondent severely injured JBS, and respondent's parental rights to JBS were terminated for that reason. The trial court held that it was bound to accept the judge's findings, and there was a reasonable likelihood that MBR, MTR, and ZLR would be harmed in the future because respondent severely injured JBS. The trial court held that respondent did not share a strong bond with MBR, MTR, or ZLR because he failed to attend the vast majority supervised visits with them. The trial court further determined that respondent's failure to contact MBR, MTR, and ZLR had an immediate detrimental effect on the children's well-being, and respondent ignored the effect of his actions.
Next, the trial court concluded that there were no factors weighing against termination of respondent's parental rights, though, as will discussed in detail later, such a finding failed to address ZLR's placement with his maternal grandmother. The trial court determined by a preponderance of the evidence that termination of respondent's parental rights was in the best interests of MBR, MTR, and ZLR and entered an order terminating respondent's parental rights to ZLR. On September 26, 2018, ZLR was returned to his mother's custody, and the trial court entered an order terminating jurisdiction over ZLR on December 13, 2018. On August 16, 2019, the trial court entered an order terminating respondent's parental rights to MBR and MTR. This appeal ensued.
I. ANALYSIS
A. TERMINATION OF PARENTAL RIGHTS
On appeal, respondent argues that the trial court clearly erred when it relied on a preclusion rationale in determining that there were statutory grounds to terminate respondent's parental rights. Respondent also asserts that the trial court clearly erred when it determined that termination of respondent's parental rights was in the best interests of MBR, MTR, and ZLR.
The trial court did not clearly err when it relied on a preclusion rationale in determining that there were statutory grounds to terminate respondent's parental rights.
In order to terminate parental rights, a trial court must find that a statutory ground has been established by clear and convincing evidence. In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). The trial court's findings regarding statutory grounds are reviewed for clear error. Id. "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." Id. (citation and quotation marks omitted). The trial court based its termination determination on the application of the doctrine of res judicata. The applicability of the doctrine of res judicata is a question of law subject to de novo review on appeal. Duncan v State, 300 Mich App 176, 194; 832 NW2d 761 (2013).
From the outset, we note that the trial court mislabeled the basis for its determination that statutory grounds existed to terminate respondent's parental rights. The trial court relied on what it labeled as "the doctrine of res judicata" when it barred the relitigation of respondent's culpability in causing JBS's injuries. However, the applicable doctrine was collateral estoppel. Although the trial court did not expressly base its reasoning on the doctrine of collateral estoppel, this Court exercises its discretion to review this issue because it "involves a question of law and the facts necessary for its resolution have been presented." In re Medina, 317 Mich App 219, 228; 894 NW2d 653 (2016).
Additionally, in his brief on appeal, petitioner also mislabels the applicable doctrine as "law of the case." --------
"Collateral estoppel bars relitigation of an issue in a new action arising between the same parties or their privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding." Leahy v Orion Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006). "The doctrine bars relitigation of issues when the parties had a full and fair opportunity to litigate those issues in an earlier action." Id. "A decision is final when all appeals have been exhausted or when the time available for an appeal has passed." Id.
Collateral estoppel barred the parties from relitigating respondent's culpability in causing JBS's injuries. The actions to terminate respondent's parental rights arose between the same parties. DHHS was the petitioner in both actions, and respondent was the respondent in both actions.
Respondent's culpability was actually and necessarily determined during the action to terminate respondent's parental rights to JBS, and both parties had a full and fair opportunity to litigate respondent's culpability. Petitioner presented evidence that JBS sustained severe injuries when respondent violently shook him, and respondent presented evidence that he did not cause JBS's injuries. Respondent's culpability was actually determined when the trial court found that respondent violently shook JBS. Respondent's culpability was necessary to the termination of respondent's parental rights because statutory grounds for termination of respondent's parental rights would not have been met if the trial court determined that respondent did not cause JBS's injuries.
Finally, the trial court's finding that respondent caused JBS's injuries resulted in a valid, final judgment. Respondent exhausted his right to appeal the trial court's termination of his parental rights to JBS, and this Court affirmed the trial court's order. Considering the foregoing, we hold that collateral estoppel barred the parties from relitigating respondent's culpability in causing JBS's injuries. Even if the trial court had not relied on a preclusion rationale, it's holding did not constitute clear error because, without objection, it took judicial notice of the entire file, all findings of fact, and all court orders in relation to the termination of respondent's parental rights to JBS. As stated above, the contents of that file revealed that respondent was had a temper which had often led to violent outbursts. Additionally, the evidence revealed that while in his care, JBS was shaken so hard that he almost died, and will, for the remainder of his life be dependent on others to live. We discern from the record that respondent opined he bore no responsibility for the violence that was inflicted on his son.
In his brief on appeal, respondent argues that he has never harmed any of his children, though the record clearly proves otherwise. Seemingly, respondent believes himself worthy of another chance at raising children, despite the horrific injuries inflicted on JBS. Such a holding could only occur if we were to completely ignore the doctrine of "anticipatory neglect," which "recognizes that how 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, citation, and brackets omitted). Given the record before us, we conclude that the trial court did not clearly err when it determined that statutory grounds existed to terminate respondent's parental rights.
Following its determinations relative to whether statutory grounds existed to terminate respondent's parental rights, the trial court next decided whether termination of respondent's parental rights was in the best interests of the children under MCL 712A.19b(5). On this ruling we conclude that the trial court clearly erred when it determined that termination of respondent's parental rights was in the best interests of ZLR without addressing ZLR's placement with his maternal grandmother.
Whether 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 at 90. This Court reviews the trial court's ruling that termination is in the child's best interests for clear error. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). "A finding is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re Moss, 301 Mich App at 80 (citation and quotation marks omitted).
"The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014) (citation omitted). To determine whether termination of parental rights is in a child's best interests, the court should consider factors including "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." Id. (citation and quotation marks 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." Id. at 714 (citation omitted).
B. BEST INTERESTS RELATIVE TO MBR AND MTR
The trial court did not clearly err when it determined that termination of respondent's parental rights was in the best interests of MBR and MTR under MCL 712A.19b(5). In determining that termination of respondent's parental rights was in the best interests of MBR and MTR, the trial court considered respondent's history of domestic violence, respondent's bond with the children, and respondent's visitation history with the children. The trial court concluded that JBS sustained severe injuries while he was in respondent's care, and the injuries occurred when respondent violently shook JBS. Moreover, the trial court concluded that respondent did not share a strong bond with MBR and MTR because he failed to attend any supervised visits with them. Thus, respondent's history of domestic violence, respondent's visitation history, and respondent's tenuous bond with MBR and MTR all weighed in favor of termination. Therefore, the trial court did not clearly err when it determined that termination of respondent's parental rights was in the best interests of MBR and MTR under MCL 712A.19b(5).
C. BEST INTERESTS RELATIVE TO ZLR
The trial court clearly erred when it determined that termination of respondent's parental rights was in the best interests of ZLR. If the best interests of children significantly differ, the trial court has a duty to address each child's best interests individually. Id. at 715. The best interests of ZLR significantly differed from the best interests of MBR and MTR because ZLR was placed with a relative. See id. This Court has concluded: "A trial court's failure to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal." In re Olive/Metts Minors, 297 Mich App at 43. Because the trial court failed to explicitly address whether termination was appropriate in light of ZLR's placement with his maternal grandmother, the factual record was inadequate for this Court to make a best-interest determination, and reversal is required with respect to ZLR.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra