Opinion
No. 349939
01-28-2020
In re P. J. DAVIS, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 18-001842-NA Before: BECKERING, P.J., and CAVANAGH and STEPHENS, JJ. PER CURIAM.
Respondent-father appeals as of right the order terminating his parental rights to his child, PD, under MCL 712A.19b(3)(j) (reasonable likelihood child will be harmed if returned to parent). We affirm.
I. BACKGROUND
Petitioner filed an original permanent custody petition as to PD and his two older siblings, alleging that respondent-father had sexually assaulted the 13-year-old sister of PD's mother for a period of one year and that he was awaiting trial on three counts of criminal sexual conduct (CSC). The petition also alleged that respondent-father did not provide for PD and had failed to seek reasonable means to do so.
At the preliminary hearing on the petition, petitioner's representative testified that, in 2015, Child Protective Services (CPS) discovered that respondent-father had been charged with sexually assaulting his minor step-daughter in 2002. PD's mother told CPS that she already knew of those allegations and agreed to keep the children away from respondent-father. She did not do so. In 2018, CPS learned that respondent-father had sexually abused the 13-year-old sister of PD's mother. Respondent-father admitted to the Taylor Police Department that he had engaged in oral and vaginal sex with the child for over a year. He admitted performing oral sex on the child to a CPS worker.
PD and his siblings were placed with a maternal aunt and uncle. The court found that the children were not Native American, contrary to respondent father's claim that his grandmother was Cherokee. The court authorized the permanent custody petition.
Respondent-father pleaded no contest to the allegations in the permanent custody petition. Petitioner submitted a CPS report that provided a factual basis for the sexual assault allegations against respondent-father. Respondent-father had pleaded guilty to all three counts of CSC. The court exercised jurisdiction and found clear and convincing evidence of statutory grounds to terminate respondent-father's parental rights. Respondent-father requested a clinical assessment to aid the court in determining PD's best interests, which the court granted.
Petitioner and PD's lawyer-guardian ad litem requested termination of respondent father's parental rights on the grounds that he had pleaded guilty to CSC against a child, would be incarcerated for 10 years, and that PD was thriving in the care of his maternal aunt and uncle. The court found by a preponderance of the evidence that it was in PD's best interests to terminate respondent-father's parental rights. PD would not be safe with an individual who makes decisions to have inappropriate sexual contact with minors. Respondent-father now appeals.
II. ANALYSIS
Respondent-father argues that the evidence shows that he had never abused PD, that he had never sexually abused a male child, and that he was not sexually attracted to males; therefore, the trial court clearly erred in determining that it was in PD's best interests to terminate a positive relationship with respondent-father. We disagree.
A trial court's determination of a child's best interests must be supported by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). "The clear error standard controls our review of . . . the court's decision regarding the child's best interest." In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009) (quotation marks and citation omitted). A finding is clearly erroneous if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." Id. (quotation marks and citations omitted). This Court must consider "the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (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."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). "[T]he court 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 Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (internal citations omitted). The court may "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 at 713. The court may also consider whether the parent has ever been convicted of criminal sexual conduct toward a child. See In re Medina, 317 Mich App 219, 239; 894 NW2d 653 (2016).
Respondent-father pleaded guilty to having oral and vaginal sex with the 13-year-old sister of PD's mother for over a year. Even before she learned of that conduct, PD's mother told CPS that she knew respondent-father was a "molester," though he had not been convicted. The mother's allowance of respondent-father's presence in the children's home was the primary reason the children were originally placed into care.
Respondent-father argues that there is no evidence he has had "anything other than a positive relationship" with PD. There is also no evidence for the existence of a positive relationship, and no evidence that respondent-father ever supported PD or provided him with a suitable home. On appeal, respondent-father supports his claim of a nurturing parent-child bond by pointing to his trial counsel's unsubstantiated assertion of one. Therefore, he effectively argues that the trial court should have inferred the existence of a positive relationship from the absence of any evidence that he sexually abused his two year-old son. That argument reflects an equal lack of any evidence in respondent-father's favor. Respondent-father is currently serving a 10-year minimum sentence for sexually assaulting a minor who is related to PD. He will not be able to provide for PD during PD's formative years. Even if he were able to do so, the risk of sexual abuse that PD would face at his hands—the very risk for which PD was originally placed into care—would still justify terminating respondent-father's parental rights. We note he offered a disingenuous argument that his gender specific predatory behavior mitigates any risk to PD. We reject this absurd argument. Further, petitioner produced evidence that PD was thriving in the home of his maternal aunt and uncle, who had the capacity to protect him from sexual predators like respondent-father. PD is entitled to stability, consistency, and finality. Therefore, the trial court did not clearly err in finding by a preponderance of the evidence that termination of respondent-father's parental rights was in PD's best interests.
Affirmed.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens