Opinion
No. 336835
08-08-2017
In re H A HONTZ, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 15-520913-NA Before: SHAPIRO, P.J., and GLEICHER and O'BRIEN, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating his parental rights to the minor child pursuant to MCL 712A.19b(3)(b)(i), (g), (j), (k)(iii), and (k)(vi). We affirm.
The Department of Health and Human Services ("DHHS") sought to remove the child at issue in this case from respondent's care based on injuries to and the eventual death of the child's half-sibling. The child's half-sibling, who we will refer to as "the second child," suffered a variety of injuries and eventually died as a result of a traumatic brain injury. According to respondent, the second child was injured when respondent fell down the stairs and onto the child. As discussed below, however, several experts opined otherwise. Specifically, those experts opined that the second child's death was non-accidental and classified the manner of death as homicide. The child was removed from respondent's care, respondent was criminally charged for the death of the second child, and DHHS eventually petitioned for the termination of respondent's parental rights. As alluded to above, the trial court concluded that MCL 712A.19b(3)(b)(i), (g), (j), (k)(iii), and (k)(vi) were established by clear and convincing evidence and that the termination of respondent's parental rights was in the best interests of the child. Respondent appeals as of right, challenging both determinations.
Pursuant to MCL 712A.19b(3), a trial court may terminate a parent's parental rights if it finds that at least one of the statutory grounds has been established by clear and convincing evidence. Petitioner bears the burden of proving at least one statutory ground. In re Trejo Minors, 462 Mich 341, 350; 612 NW2d 407 (2000); MCR 9.77(A)(3). A trial court's decision that at least one statutory ground has been established is reviewed for clear error. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009). "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." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013) (citation and internal quotation marks omitted). "Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts Minors, 297 Mich App at 40; see also MCL 712A.19b(5). "In deciding whether termination is in the child's best interests, the 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." Id. at 41-42 (citations omitted). Additionally, "the fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interests." Id. at 43, citing In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010).
On appeal, respondent argues that the trial court erred by concluding that at least one of the statutory grounds set forth in MCL 712A.19b(3) was established by clear and convincing evidence and by concluding that the termination of his parental rights was in the child's best interests. We disagree in both respects.
First, we conclude that the trial court did not err by determining that at least one of the statutory grounds set forth in MCL 712A.19b(3) was established by clear and convincing evidence. The trial court terminated respondent's parental rights, in part, pursuant to MCL 712A.19b(3)(b)(i), (k)(iii), and (k)(vi), and respondent argues that its decision with respect to these statutory provisions was clearly erroneous because there was not clear and convincing evidence to support a conclusion that he had abused the child at issue or the child's siblings. His argument in this regard relies heavily on his position that the death of a second child was accidental, not intentional. However, whether that death was accidental or intentional was a credibility determination to be made by the factfinder, and we will not resolve credibility determinations anew on appeal. See MCR 2.613(C) (providing, in part, that "regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it"); see also People v Vaughn, 186 Mich App 376, 380; 465 NW2d 365 (1990) ("On this record, the question, then, is one of credibility. Credibility is a matter for the trier of fact to ascertain. We will not resolve it anew."). Specifically, the trial court expressly found the expert testimony presented by petitioner more credible than the expert testimony presented by respondent. While it is true that respondent was acquitted on charges involving the second child's death after his parental rights were terminated in this case, that verdict, especially in light of the different burdens of proof, does not control our decision here. Accordingly, his argument in this regard must fail. And, because only one statutory ground need be established, it is unnecessary for us to address the trial court's decision with respect to MCL 712A.19b(3)(g) and (j).
Second, we conclude that the trial court did not err by determining that the termination of respondent's parental rights was in the child's best interests. As the trial court correctly recognized, the child's bond with respondent, respondent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of the child's current placement over the respondent's home all favored the termination of respondent's parental rights. Olive/Metts Minors, 297 Mich App at 41-42. While we acknowledge that respondent does desire to have a relationship with the child and that he has consistently maintained that the second child's death was accidental, we, like the trial court, cannot overlook the lack of a bond between respondent and the child, respondent's lengthy criminal history, the injuries that the child sustained while respondent was involved in the child's life, the child's need for permanency, stability, and finality, and the severity of the allegations with respect to the second child's death. To the extent respondent challenged this evidence below, his challenges in this regard, like those with respect to the statutory grounds, merely present credibility determinations, and, again, we will not resolve those determinations anew on appeal. MCR 2.613(C); Vaughn, 186 Mich App at 380.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Elizabeth L. Gleicher
/s/ Colleen A. O'Brien