Opinion
No. 343669
02-12-2019
In re CURRY, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2016-847120-NA Before: O'BRIEN, P.J., and TUKEL and LETICA, JJ. PER CURIAM.
In this termination of parental rights case, respondent-father appeals as of right the trial court's order terminating his parental rights to his three minor children under MCL 712A.19b(3)(b)(i), (g), and (j). We affirm.
The trial court declined to exercise jurisdiction with respect to the children's mother, who was separated from respondent when this case began, and obtained a divorce while the case was pending.
I. BASIC FACTS
The trial court terminated respondent's parental rights to the minor children, TLC, SLC, and LAC. In 2016, one of the children, LAC, made statements to a relative suggesting that respondent had sexually abused her. These statements were corroborated by another individual who was present at the time. Upon further investigation of possible abuse, one of the other children, SLC, made statements suggesting that respondent had threatened her if she spoke about matters relating to that allegation. The trial court found that statutory grounds for termination under MCL 712A.19b(3)(b)(i), (g) and (j) had been proven by clear and convincing evidence and that termination was in the best interests of the children.
II. ANALYSIS
A. STATEMENTS ATTRIBUTED TO THE CHILDREN
On appeal, respondent first argues that the trial court abused its discretion and committed an error of law in finding that hearsay statements made under a tender-years hearing could be admissible at trial when the statements were neither reliable nor credible, and where the court determined that the testimony did not go to admissibility but to the weight of the evidence. We disagree.
This Court reviews the trial court's evidentiary rulings for an abuse of discretion. Price v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d 337 (1993). "An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes." Radeljak v DaimlerChrysler Corp, 475 Mich 598, 603; 719 NW2d 40 (2006). We review a court's factual findings for clear error, under which reversal is warranted only when this Court is left with a definite and firm conviction that a mistake was made. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
Under the Michigan Court Rules, "[a]ny statement made by a child under 10 years of age . . . regarding an act of child abuse, child neglect, sexual abuse, or sexual exploitation . . . performed with or on the child by another person may be admitted into evidence through the testimony of a person who heard the child make the statement," MCR 3.972(C)(2), provided that "the court has found, in a hearing held before trial, that the circumstances surrounding the giving of the statement provide adequate indicia of trustworthiness," MCR 3.972(C)(2)(a). The rule expressly provides that such an admitted statement "is substantive evidence of the act or omission" and "may be received by the court in lieu of or in addition to the child's testimony." MCR 3.972(C)(2)(a). In this case, petitioner provided notice of its intent to use such statements attributed to each of the subject children, as told variously to their aunt, the aunt's boyfriend, and a forensic interviewer. Following a pretrial hearing, the trial court found selected statements attributed to the two younger children, LAC and SLC, to be admissible.
1. LAC's STATEMENT
The children's aunt testified that she was driving a car with LAC, along with her own young daughter and her boyfriend as passengers, when LAC, who was then three years of age, asked the aunt's daughter where she was going to "kiss her Barbie." According to the aunt, her daughter specified on "the forehead" and returned the question, upon which LAC answered, "I'm going to kiss it on the kitty." The aunt explained that she and her sister "tell our kids their vagina is their kitty." Concerned over such talk, the aunt asked LAC "where did she get that from," and the child answered, "My daddy." According to the aunt, she then asked LAC if "her daddy kissed her kitty," and the child answered, "Yes." The aunt admitted that she personally disliked respondent but denied that this would lead her to falsify allegations against him.
The trial court explained its decision to admit LAC's statements as follows:
I find that the circumstances of the giving of these statements . . . provide . . . adequate indicia of trustworthiness. They were spontaneous, . . . there [were] no leading or suggestive questions that prompted the statements, there's . . . a lack of motive to fabricate on the part of [the child], and I further find that the use of the term kitty to describe the vagina is consistent verbiage in
light of her age and further supported by the fact that [the child's mother and aunt] use that word to describe that part of the anatomy.The court also acknowledged that the aunt's boyfriend's account of what the child said differed somewhat from what the aunt reported but stated that "disparity in testimony presented by witnesses relates to the weight of the evidence not its admissibility."
The boyfriend's account differed as to the number of dolls the children were playing with; that LAC used the term "private part" instead of "kitty;" and that the term "kitty" was used by the aunt but not the child.
In challenging the trial court's decision, respondent insists that the aunt was being suggestive when, upon hearing talk of a "kiss" on the "kitty," she asked the follow-up question that led the child to specify respondent. However, according to the testimony, the aunt first asked the child "where did she get that from," which inquiry did not in the least suggest respondent, and it was only after the child initially answered with "[m]y daddy" that the aunt more specifically asked if "her daddy kissed her kitty," drawing the answer, "Yes." While the latter question may appear suggestive in isolation, it is not in the context present here. The aunt's account began with the child volunteering the concept of a kiss on the "kitty" entirely on her own, which the aunt then followed with the open-ended inquiry "where did she get that from." The final question specifying respondent, then, was more responsive to what the child had been saying than suggestive.
Respondent offers argument concerning the child's youth and the inconsistencies in some of the statements attributed to her. As the trial court correctly ruled, such argument relates to how much weight to afford the evidence, not its admissibility under MCR 3.972(C)(2). For these reasons, respondent has failed to show that the trial court's decision to admit LAC's statement fell outside the principled range of outcomes. See Radeljak, 475 Mich at 603.
2. SLC's STATEMENT
A forensic interviewer with CARE House of Oakland County testified that she interviewed the subject children in response to the allegations. During the course of the interviews, the middle child, SLC, then six years old, readily understood why the interview was taking place and also described a tearful "family meeting" on the subject of why the children were no longer allowed to see their father. The interviewer reported that SLC, in talking about "touches," would sometimes "say some information and then take that information back," including having answered affirmatively then negatively when asked if she had talked to her younger sister about the allegations. The interviewer further stated that SLC was quick to resort to "I don't know," and that when the interviewer attempted to continue with the subject, the child would sometimes become silent and then excitedly want to talk about neutral topics. The interviewer expressed the concern that such behavior might indicate "[r]eluctance, embarrassment, avoidance, [or] coaching."
The interviewer further testified that SLC stated that she did not want to talk about "private parts" because she was "scared" that "she would get her butt whooped." According to the interviewer, the child initially expressed that concern in connection with her mother but also "indicated that she has to keep touches to her butt . . . and . . . her vaginal area . . . a secret . . . because if dad hears she'll get her butt whooped." The trial court explained its decision to allow this evidence as follows:
[SLC] said that dad said don't talk about no touches and that . . . [she] would get a butt whooped if there was a statement. I do find that this statement is regarding child neglect and does meet the requirements under the statute . . . for a statement not to disclose touches or to keep secret from investigation and law enforcement . . . . The statement was performed with or on the child by another person, namely dad, telling [her] not to tell anyone else about touches and further that . . . [she] would have a butt whooping and I note this especially with regard to the doctrine of anticipatory neglect.
Further, . . . to the extent father made a statement, that father's statement . . . falls within a party admission under [MRE 801(d)(2)] and therefore is not hearsay.
[A]nd [the interviewer] heard the child . . . make the statement that dad told [her] not to talk about touches and that there would be a butt whooping if . . . there was such a statement.
Therefore, I find that [the child's] statements . . . that dad told [her] not to talk about . . . touches and that there would be a butt whooping if [she] did . . . is admissible at the time of trial.
I . . . further . . . find that there's adequate indicia of trustworthiness existing regarding this statement. I note that [the interviewer] followed the forensic interviewing protocol, had significant experience . . . with interviewing children, said to tell the truth, that the questions regarding these statements were not leading or suggestive and were open-ended.
The court noted that "neglect" for this purpose includes "harm or threatened harm to a child's health or welfare by a parent" and cited MCL 722.622(k)(ii). The latter subdivision refers to "harm or threatened harm" through "[p]lacing a child at an unreasonable risk . . . by failure of the parent . . . to intervene to eliminate that risk . . . ." The trial court probably should have referred to MCL 722.622(g), which defines "child abuse" to include "harm or threatened harm to a child's health or welfare that occurs through nonaccidental physical or mental injury . . . or maltreatment[] by a parent." Whether or not the feared "whooping" might have crossed the line from moderate corporal punishment to physical abuse, the threat of a "whooping" in response to telling the truth in the course of a CPS investigation constitutes "maltreatment," and thus child abuse, satisfying the requirements for admissibility set forth in MCR 3.972(C)(2).
In challenging the trial court's decision, respondent points out that the child demonstrated her discomfort at the interview, having several times asked to leave, and that some of the statements of this young child, as were those of her younger sister, were inconsistent. Such argument, however, is only an invitation to interpret the evidence anew without regard for the trial court's reasonable interpretation, to which we defer and only reverse for clear error. See In re Miller, 433 Mich at 337. And after a review of the record, we cannot say that the trial court clearly erred in its determinations.
In light of the trial court's careful parsing, and selective admission, of the statements made by the children, and the court's thoughtful explanations for its rulings, respondent's arguments fail to show that the court's decisions in those regards fell outside of the principled range of outcomes. See Radeljak, 475 Mich at 603.
B. ADJUDICATION
Respondent next argues that the trial court erred in finding a preponderance of evidence to establish jurisdiction over the children. We disagree. When deciding a challenge to a trial court's assumption of jurisdiction over a minor child, this Court must determine whether any error in the matter "was of such magnitude that, but for it, there was an insufficient basis for the . . . court to assume jurisdiction." In re Toler, 193 Mich App 474, 476; 484 NW2d 672 (1992). A trial court's findings of fact are reviewed for clear error. MCR 2.613(C). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich at 337.
The court found that jurisdiction was proper in accord with MCL 712A.2(b)(1) and (2), which establish the jurisdiction of the family division of the circuit court over a juvenile:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. . . .
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(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.
A court may assume jurisdiction over a child under MCL 712A.2(b) upon finding that one or more of its factual bases for doing so is satisfied by a preponderance of the evidence. In re Brock, 442 Mich 101, 108-109; 499 NW2d 752 (1993). In this case, the trial court concluded that jurisdiction was proper under both subsections, based on respondent's sexual abuse of LAC and his threatening of SLC if she spoke of the matter. The trial court found jurisdiction as to all three children because "the treatment of one child is indicative of how the parent will treat a second child and where one child has been abused the court may assume jurisdiction based on the anticipatory future abuse or neglect of another child." The trial court's finding that respondent sexually abused LAC satisfied subsection (2), so we need not consider whether it also satisfied subsection (1). And the court correctly recognized the applicability of the doctrine of anticipatory abuse or neglect. See In re LaFrance, 306 Mich App 713, 730; 858 NW2d 143 (2014).
Respondent attacks the trial court's conclusion that its jurisdiction was proper mainly by reiterating his position that the court erred in admitting evidence that LAC had spoken of kissing her doll on its "kitty" and erred by attributing the concept of kissing on the "kitty" to respondent, such that respondent had in fact done that to LAC. Having already concluded that the trial court did not abuse its discretion in admitting that evidence, we conclude here that respondent's argument that the trial court's decision to exercise jurisdiction based on the same evidence is without merit.
Respondent protests that he "should not be faulted for failing to explain something allegedly said by a three year old child," thus taking issue with the trial court's observation that respondent "offered numerous explanations to law enforcement to account for [that child's] statement" but none of them "explain[ed] why [the child] stated that Respondent-Father kissed her vagina." We conclude that the trial court was not so much "faulting" respondent for failing to offer a satisfactory explanation for what the child said, as stating that, in light of the evidence presented, the court found itself left without any basis for interpreting the statements attributed to the child at other than face value.
Respondent argues that the evidence implicated the child's mother more than respondent in having admonished the children not to speak of the allegations, "private parts," or "touchings." Respondent thus asserts that attributing such admonishment solely to him "demonstrates that the trial court's reasoning was misguided and selectively applied." But the forensic interviewer made clear that SLC indicated that she had been physically threatened by her mother, as well as respondent, if she spoke of such things. We thus find no abuse of discretion in the trial court's rulings relating to jurisdiction.
Respondent emphasizes that no criminal charges followed from the allegations. That non-development has little bearing on the trial court's decision to exercise jurisdiction, however, because given the stricter evidentiary standards applicable to criminal prosecutions, in particular that every element of the crime be proven beyond a reasonable doubt, see In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970); People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994), it is unremarkable that many child protection cases that feature factual findings of a parent's felonious abuse do not result in criminal prosecutions.
For these reasons, respondent has failed to show that the trial court erred in determining that its jurisdiction over the children was proper with respect to him.
C. STATUTORY TERMINATION FACTORS
Respondent also argues that the trial court clearly erred in finding that termination of his parental rights to the minor children was proper under MCL 712A.19b(3)(b)(i), (g), and (j). We disagree. Petitioner has the burden of proving a statutory ground for termination under MCL 712A.19b(3) by clear and convincing evidence. MCR 3.977(A)(3) and (H)(3); In re Trejo, 462 Mich 341, 356; 612 NW2d 407 (2000). An appellate court "review[s] for clear error . . . the court's decision that a ground for termination has been proven by clear and convincing evidence." In re Trejo, 462 Mich at 356-357. "Clear error exists when some evidence supports a finding, but a review of the entire record leaves the reviewing court with the definite and firm conviction that the lower court made a mistake." In re Dearmon, 303 Mich App 684, 700; 847 NW2d 514 (2014). This Court must defer to the trial court's special opportunity to observe the witnesses. Id.
Again, the trial court terminated respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), and (j), which at the time relevant provided as follows:
Pursuant to 2018 PA 58, effective June 12, 2018, subsection (3)(g) now provides as follows:
The parent, although, in the court's discretion, financially able to do so, 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.
(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:
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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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(g) The parent, 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.
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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.
Here, respondent again complains that the challenged evidence should not have been admitted and further claims that even if the evidence was admissible, petitioner nevertheless failed to prove by clear and convincing evidence that respondent sexually molested his youngest child.
Respondent asserts that "[c]lear and convincing evidence requires more than a single answer to a suggestive question to a three year old." We do not necessarily disagree, but the case against respondent was based on more than a single statement by LAC. As noted, according to the children's aunt, LAC spontaneously spoke of kissing her doll on its "kitty," then identified respondent when asked an open-ended question about where such notions came from. Only then did the aunt's question suggesting respondent, and the child's affirmative response, follow. This exchange thus consisted of more than the answer to a single suggestive question, in that the one suggestive question was prompted by the child's own spontaneous talk of "kitty" kissing, then her specification of respondent when asked how she came to have such ideas.
Respondent further points out that the child offered her aunt no details concerning the alleged sexual contact and was not known to have volunteered anything of the sort in any other situation. Respondent also notes that the trial court itself acknowledged that the child was at times satisfied to provide rote affirmative answers to seemingly any benign question an adult asked of her, examples including when the forensic interviewer asked the child if it was raining in their indoor location, or if she was 10, instead of three, years old.
But accompanying the evidence of what LAC said about respondent sexually molesting her was evidence that her parents, including respondent, acted as if they felt a need to cover up the truth behind those statements. Respondent makes issue of the trial court's findings concerning SLC and her CARE House interview, in regard to which the trial court stated as follows:
During the CARE House interview, [SLC] stated that Respondent-Father told her not to talk about touches and that she would get her butt whooped if she did. In addition, [this child] stated that Respondent-Mother did not want her to talk about private parts because she might whoop her or something. She also stated that Respondent-Father did not want her to talk about private parts. She stated that Respondent-Father would whoop her if [LAC] told about touches.Respondent challenges none of those factual particulars but rather argues that the court's "assessment" was "unfair" on the grounds that SLC "made many inconsistent statements about getting whooped by Mother and Father, and . . . was clearly uncomfortable by the repeated questioning of the interviewer as she asked at least eight times to leave the room." Respondent thus asks this Court to reweigh the evidence and credit his interpretation of it over that of the trial court, something which, again, we are not permitted to do. Accordingly, the trial court did not clearly err in concluding that the parents' attempts to clamp down further revelations relating to the allegations of sexual misconduct over open communications were both some evidence of child abuse and indicative of bases for termination of parental rights. For these reasons, we conclude that the evidence of what LAC said to her aunt about respondent kissing her "kitty," considered along with the evidence that the parents, including respondent, initially responded to the allegation by trying to suppress further communications or revelations in the matter provided the trial court with clear and convincing evidence that termination of respondent's parental rights was warranted under each of the three pertinent statutory criteria.
To the extent respondent raises a question about the trial court's consideration of his failure to admit the sexual abuse in terminating his parental rights under MCL 712A.19b(3)(g), see In re Blakeman, ___ Mich App ___; ___ NW2d ___ (2018) (Docket No. 341826), we decline to address it because any "error" would be harmless in light of the other statutory grounds being proven. See In re Powers, 244 Mich App 111, 118; 624 NW2d 472 (2000).
D. BEST INTERESTS
Respondent next argues that the trial court clearly erred in finding that termination of his parental rights was in the children's best interests. "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." MCL 712A.19b(5). Although termination of parental rights requires proof of at least one of the statutory termination factors on clear and convincing evidence, "the preponderance of the evidence standard applies to the best-interest determination." In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). An appellate court "review[s] for clear error . . . the court's decision regarding the child's best interest." In re Trejo, 462 Mich at 356-357.
In this case, in addition to the trial court's factual conclusion that respondent did sexually molest his youngest child, LAC, and chose to try to cover it up, the court had before it a psychological evaluation and also a risk assessment, both of which were prepared by experts with respondent's cooperation. The trial court noted that the psychological evaluation concluded that "it is in the best interest of all three children to discontinue reunification efforts with Respondent-Father," that respondent "continued to deny that he tried to conceal his actions and that there is no reasonable likelihood that he intends to correct any of his problematic behaviors," and that respondent "is highly likely to continue his past behaviors and, therefore, the children would be at risk of harm if placed in his care." The risk assessment in turn weighed less dramatically in favor of termination insofar as it concluded that respondent presented a "low risk" of sexual deviance or sexual aggressiveness. But the risk assessment otherwise offered no mitigation, in that its preparer, after admitting that he did not meet with the children or "necessarily" consider their interests "directly from their prospective [sic]," expressed concern that respondent was "not in a working process or therapeutic process to be able to understand and to be able to work through" his issues. In fact, the preparer further testified that respondent "could benefit from therapy even if in denial of his actions, but that it would increase the time needed for therapy." (Emphasis added.)
Given the trial court's conclusions that respondent molested his daughter and attempted to cover it up, along with the confirmation of those concerns provided by the risk assessment and especially the psychological evaluation, respondent's arguments about bonding with the children or otherwise showing his ability to care for them offer but little to counter the trial court's compelling bases for concluding that termination of his parental rights was in the children's best interests. The children had already been under the court's jurisdiction for 18 months, and the trial court prioritized their need for permanence and stability. We thus find no clear error in the trial court's best-interests findings.
E. CONSTITUTIONAL CHALLENGE
Finally, respondent argues that his constitutional rights were violated because the deprivation of his parental rights was arbitrary and oppressive as there was no clear and convincing evidence to support termination. This Court reviews constitutional questions de novo. In re Ayres, 239 Mich App 8, 10; 608 NW2d 132 (1999). However, because respondent did not raise his constitutional challenge below, our review is for plain error affecting substantial rights. See In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008).
Respondent's constitutional argument is simply a repackaging of his earlier assertions, which we have rejected. As respondent correctly recognizes, a parent's right to the care and custody of his or her child is an important liberty interest protected by constitutional guarantees of due process. See In re Brock, 442 Mich at 109. But in arguing that this right was violated, he reiterates his challenges to the trial court's factual finding that respondent sexually abused his youngest child, LAC. Respondent thus declares the termination decision "arbitrary and oppressive." Respondent further complains of "a violation of constitutional rights to substantive or [procedural] due process," but does not engage in any constitutional analysis. See In re Toler, 193 Mich App at 477 ("A party may not merely announce his position and leave it to us to discover and rationalize the basis for his claim.").
Regardless, as our Supreme Court stated in In re Trejo, 462 Mich at 355, "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." See also In re Moss, 301 Mich App at 93 (WILDER, J., concurring). Because respondent adds nothing to his prior arguments concerning LAC's allegations against him and because we have already concluded that there was clear and convincing evidence to show that the statutory grounds for the termination of parental rights were proven, respondent cannot show the existence of any error in this constitutional issue.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Jonathan Tukel
/s/ Anica Letica