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In re Hanner

STATE OF MICHIGAN COURT OF APPEALS
Nov 21, 2019
No. 348536 (Mich. Ct. App. Nov. 21, 2019)

Opinion

No. 348536

11-21-2019

In re G. O. HANNER, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 17-002231-NA Before: RONAYNE KRAUSE, P.J., and METER and GLEICHER, JJ. PER CURIAM.

Respondent-father Bradly James McKinnies (respondent) appeals by right the trial court's order terminating his parental rights to the minor child, GH, who was born in 2018. The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(b)(i) [parent physically or sexually abused a sibling of the child and reasonable likelihood of future abuse if placed in parent's home], (h) [parent will be imprisoned for at least two years and no reasonable expectation of being able to provide care and custody considering the child's age], (i) [previous termination of parental rights to a sibling due to physical or sexual abuse and failure to rectify conditions], (j) [reasonable likelihood of harm if child is returned to the parent], (k)(ii) [parent abused a sibling involving criminal, sexual conduct involving penetration or attempted penetration and likelihood of harm to the child if returned to the parent], and (k)(iii) [parent abused a sibling involving battery, torture, or other severe physical abused and likelihood of harm if returned to the parent]. We affirm.

I. BACKGROUND

The instant termination arises out of prior termination proceedings involving four other children who shared the same mother, DK, with GH. When respondent married DK in 2014, she lived with two children by an unrelated father: TB (born in 2004) and BB (born in 2006). During the marriage, respondent and TK had two children together, MK (born in 2015), and TK (born in 2017). Respondent's parental rights to MK and TK were previously terminated based on respondent's severe sexual and physical abuse of TB and BB. Respondent was convicted in separate criminal proceedings, pursuant to his pleas of guilty, of first- and second-degree criminal sexual conduct (CSC), and third-degree child abuse, arising out of his treatment of the stepchildren. When GH was born, respondent was awaiting sentencing on those convictions, and respondent has never actually met GH. The trial court's termination of respondent's parental rights to MK and TK was based on respondent's plea of no contest and the trial court's review of a Children's Protective Services (CPS) investigative report. In terminating respondent's parental rights to GH, the trial court referred to defendant's criminal proceedings, but apparently based its termination on the contents of its own case file. The termination of respondent's parental rights to MK and TK was never appealed and is not at issue here.

As will be discussed in greater detail below, respondent contends that the trial court erred by basing its termination of his rights to GH on his criminal proceedings, based largely on his contention that the trial court should have awaited the outcome of an allegedly pending appeal. Respondent contends that other than the criminal proceedings, no evidence existed upon which to base termination of his rights to GH. Because the trial court relied on taking notice of its own case file, the termination proceedings regarding MK and TK are relevant to the instant matter.

As noted, in the previous termination proceeding, respondent entered a plea of no contest to the trial court's jurisdiction and to the existence of statutory grounds for termination. The trial court relied on both the CPS report and testimony from TB, BB, police officers, and the CPS investigator. TB testified that respondent had initially seemed nice, but about a year and a half after he and DK married in 2014, he became "mean." TB described respondent's manner of disciplining the children including "all sorts of things" like

we had to write like 5,000 sentences or more, peanut butter sandwiches that's all we ate with a glass of water. Sometimes he would make us hold like 25 pounders above our head and then we'd tell him like we dropped he would smack our arms or some where where [sic] he could smack. He would make [BB] do a bunch of pushups and every time my brother fell he would add a [sic] extra 50 on them.
TB also testified that respondent sexually assaulted her, and he would threaten either her or BB if she "didn't want to do anything." TB opined that respondent was a danger to his biological children as well. She stated that "he had control over us like he had control over anybody like everybody would think he's a good guy but like he's really not." TB also stated she was afraid of him, and that DK was at work when respondent acted in these ways toward her and BB.

BB testified that he was usually punished for disobedience or "back talk," but sometimes he did not know why he was being punished. He testified that respondent would usually smack him in the mouth, but respondent would also "swat" or spank him with a belt or with a large wooden spoon on his leg. BB further testified that respondent would strike him with the spoon "most of the time everyday [sic]" because of what respondent believed was BB's "attitude." BB explained respondent would impose punishments on him that required BB to hold weights over his head, do pushups or planks, write thousands of sentences, and respondent would restrict BB's diet to peanut butter sandwiches and water. BB also testified that respondent punched TB in the chest, and that respondent placed BB, partially unclothed, in an uninsulated and unfurnished extension of the home as a punishment. Like TB's testimony, BB also testified that DK was not home when respondent treated BB in this manner. Furthermore, BB opined that respondent's biological children would be unsafe with him.

The police officer who initially interviewed TB at her school, Officer Jeffrey Wickham, testified that during his interview with TB, TB explained "that her father was touching her inappropriately and she pointed down" to her "lower torso," then "she pointed up" to "her upper torso," and "then she started to cry." Officer Wickham believed TB was referring to respondent's actions toward her. During a Kids Talk interview that Officer Wickham attended, but did not conduct, TB disclosed

That he would lock - he would call [TB] into a room. He would be naked or take his clothes off and he would touch her. He would rub his penis around her vagina and made her perform fellatio. She said she injured her vagina and he kissed it to make it better. She made reference to him sticking his tongue inside her vagina.
The CPS investigation report indicated that TB was afraid of respondent discovering her disclosures and physically retaliating. The report also indicated that respondent may have sexually assaulted another 13-year-old girl, EK, who was a friend of TB. EK was interviewed, but she did not make any disclosures.

There was some concern that respondent may have physically abused MK and TK in addition to physically and sexually abusing TB and BB. However, it is not clear from the record to what extent, if at all, that concern was substantiated.

Corporal Todd Schrecengost testified that he interviewed respondent regarding the sexual allegations. Respondent eventually admitted to touching TB's breasts, labia, and genitals; making TB perform fellatio on him, performing oral sex on her, and engaging in digital penetration of her labia with his fingers. Respondent "also said that [BB] had accused him of making him do punishments." The CPS investigator testified that, based on the information she obtained,

Respondent physically abused both [BB] and [TB]. The planks, [BB] was told he had to do planks. He had to write 5,000 sentences. He was punched in the stomach [by respondent.] He was thrown against the wall. [TB] was hit with a chair. [TB] was swatted with a wooden spoon.
The trial court concluded, on the basis of the testimony and the CPS report, that respondent had physically abused both BB and TB, and had sexually abused TB. The trial court also found that even though respondent had not directly abused his own biological children, those children had been indirectly harmed by the abuse. The trial court concluded that respondent's treatment of TB and BB was probative of how he was likely to treat his own children, and in any event, respondent was incapable of providing them with a safe environment. The trial court subsequently terminated respondent's parental rights to MK and TK, on the stated grounds of respondent's plea of no contest, MCL 712A.19b(3)(b)(i), (j), (k)(ii), (k)(iii), and (k)(ix).

Shortly thereafter, GH was born. Petitioner promptly commenced the instant proceedings to terminate respondent's parental rights to GH. The petition reiterated much of the contents of the prior petition regarding TB, BB, MK, and TK, as well as respondent's guilty pleas in the criminal matters.

The trial court held a bench trial regarding GH. Respondent testified that he had been convicted of CSC-I "regarding" TB, and his earliest release date was 2029. He stated that he had "an appeal in," but he agreed that the appeal had not been granted as of the date of the current trial, and he did not know its current status. Respondent also agreed that he had been convicted of child abuse regarding TB and BB, although he spontaneously interjected that he "would look at it as child discipline." He further agreed that his rights to TK and MK had been terminated, and he had never met GH. He did not appeal the termination of his rights to TK and MK because he "did not get appeal papers for that."

The only other witness called to testify was GH's foster care worker, EE, who opined it was in GH's best interest to terminate respondent's parental rights, "given the circumstances regarding [GH's] siblings and the allegations against [respondent] regarding the siblings." EE reaffirmed her opinion when she learned of respondent's prison sentence, testified respondent had not provided any care or custody for GH, testified that to the best of her knowledge respondent had never met GH and had not developed a bond with her, and therefore, believed respondent could not provide for GH. Furthermore, respondent had not requested a meeting with GH.

Respondent conceded that statutory grounds for termination had been presented to the court, but testified that it was not in GH's best interest for the court to terminate his parental rights to her because

at this point in time, unless or until his criminal conviction is overturned this child will be a minimum of ten to eleven years old when he is released. At that point in time the parties have been divorced. Any type of contact or parenting time can be dealt with through a divorce judgment.
The trial court recognized that respondent had "appealed his criminal case but the status of that appeal at [that] time [was] unknown." The trial court also recognized that respondent had not appealed the prior termination of his parental rights to TK and MK. The trial court terminated respondent's parental rights to GH because of its belief that "the child would be at risk for future abuse and or neglect" based on the testimonies of TB, BB, the officers' and CPS's reports, and GH's foster care worker. The trial court further stated, GH "has a right to be raised in a safe and stable environment and the Court believes that [respondent] is unable to provide that safe environment for [her]." The trial court entered an order accordingly, and this appeal followed.

II. STANDARD OF REVIEW

In termination of parental rights proceedings, this Court reviews for clear error the trial court's factual findings and reviews de novo the trial court's legal determinations. In re Gonzalez/Martinez, 310 Mich App 426, 430-431; 871 NW2d 868 (2015). Clear error requires more than a mere difference of opinion, but rather requires this Court to be "left with a firm and definite conviction that a mistake has been made." Marshall Lasser, PC v George, 252 Mich App 104, 110; 651 NW2d 158 (2002). This Court will defer to the trial court if there is any doubt, especially if the credibility of the witnesses is at issue, even if this Court's review is otherwise de novo. See McGonegal v McGonegal, 46 Mich 66, 67; 8 NW 724 (1881); In re Loyd, 424 Mich 514, 535; 384 NW2d 9 (1986). Even if an error occurred, this Court will not disturb the trial court's ruling or order unless it would be "inconsistent with substantial justice" to permit the ruling or order to stand. MCR 2.613(A); In re TC, 251 Mich App 368, 371; 650 NW2d 698 (2002). If at least one statutory ground for termination was properly established, any error regarding other statutory grounds is necessarily harmless. In re Powers Minors, 244 Mich App 111, 118; 624 NW2d 472 (2000). When determining whether to terminate a parent's parental rights to a child, the trial court considers the child's best interests, which are proven by a preponderance of the evidence. See In re Brown/Kindle/Muhammad Minors, 305 Mich App 623, 637; 853 NW2d 459 (2014), and In re Moss, 301 Mich App 76, 83-90; 836 NW2d 182 (2013).

III. STATUTORY GROUNDS FOR TERMINATION

The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(b)(i), (h), (i), (j), (k)(ii), and (k)(iii), which provides as follows:

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.


* * *

(h) The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, 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.

(i) Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights.

(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.

(iii) Battering, torture, or other severe physical abuse.
The trial court must find at least one statutory ground for termination established by clear and convincing evidence. In re Moss, 301 Mich App at 80.

As an initial matter, respondent presents his belief that the court should have offered him a treatment plan with a goal for reunification with GH as the ultimate goal, despite his incarceration. No such services are required where, as here, the petitioner sought termination from the outset and respondent's rights to a sibling had been involuntarily terminated and he failed to rectify the conditions that led to that termination. MCL 712A.19a(2)(c). See In re Moss, 301 Mich App at 90-91. Additionally, "reunification" cannot occur because respondent has never met GH, and he has not established a bond with her. See In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) ("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, [and] the child's need for permanency, stability, and finality.") (internal quotations omitted). Respondent further argues that the trial court erred by failing to await the outcome of the alleged appeal of his criminal convictions. However, this argument is without merit because MCL 712A.19b(3) does not require the final outcome of convictions to determine whether a court should terminate respondent's parental rights. MCL 712A.19b(3) only requires clear and convincing evidence that abuse to the child, or to the sibling of the child at issue, occurred.

Additionally, we can find no record of respondent having ever filed another appeal with this Court. We take judicial notice of the publicly available Wayne County circuit court records, from which it is clear that respondent's third-degree child abuse conviction could no longer be timely appealed. Respondent filed a motion to withdraw his guilty pleas to CSC, but the circuit court denied that motion. In any event, even if respondent is ultimately permitted to withdraw those pleas, we trust he would go to trial, not walk free. We therefore also find his arguments regarding an allegedly pending plea to be disingenuous. --------

TB and BB are "siblings" of MK, TK, and GH, because all five children have a parent in common, DK. In re Hudson, 294 Mich App 261, 265-266; 817 NW2d 115 (2011). Thus, respondent's parental rights to two of GH's siblings were previously terminated because of respondent's sexual assaults on and abuse of TB, and respondent's severe physical abuse of both TB and BB. In deciding the prior termination of respondent's rights to MK and TK, the trial court expressly disregarded respondent's criminal proceedings, stating that those proceedings had not been documented before the court. Rather, respondent's rights were terminated based on his sexual and physical abuse of TB and BB, as established by evidence properly in the record. In resolving the instant termination petition, the trial court properly took judicial notice of the contents of its own record in this matter. See In re Albert, 383 Mich 722, 724; 179 NW2d 20 (1970); Prawdzik v Heidama Bros, Inc, 352 Mich 102, 112; 89 NW2d 523 (1958); In re Stowe, 162 Mich App 27, 33; 412 NW2d 655 (1987). Thus, the major prerequisites for MCL 712A.19b(3)(b)(i), (i), (j), (k)(ii), and (k)(iii) were unambiguously established by clear and convincing evidence, without regard to, or consideration of, respondent's criminal proceedings.

The remaining element at issue of those statutory grounds is whether there was a reasonable likelihood that GH would be harmed if she was placed in respondent's care. Respondent argues that, having never met GH, he cannot have actually harmed her. The trial court, however, correctly observed that respondent's treatment of other children, including children in his care, is probative of how he will treat GH. In re Hudson, 294 Mich App at 266. Respondent's prior conduct might not necessarily be dispositive by itself. See In re JL, 483 Mich 300, 331; 770 NW2d 853 (2009) (discussing the higher standard under the ICWA). However, a parent's historic conduct is probative of future conduct. See id. at 331-332. We take special notice of respondent's unprompted statement that he continued to regard his severe physical abuse of TB and BB as mere "child discipline." This statement reflects a continued inability of respondent to comprehend the harmful nature of his actions.

Respondent's statement regarding "child discipline" also shows that respondent has not rectified the conditions that resulted in the prior termination and that GH would be in serious danger if placed in his care. See In re JL, 483 Mich at 331-332. This concern is especially great in light of TB's and BB's testimonies that respondent mostly abused them when no other witnesses were present. Respondent and DK have divorced; if GH were placed in respondent's care, there would likely be no witnesses to respondent's treatment of GH. Additionally, irrespective of the outcome of respondent's CSC criminal proceedings, statutory grounds for termination were overwhelmingly established, with evidence of more than one example of abuse, under MCL 712A.19b(3)(i), (i), (j), and (k)(ii).

The trial court made one comment that might suggest undue reliance upon respondent's CSC conviction for all of its statutory-grounds findings. Specifically, the trial court remarked the respondent's "prior termination was based on severe or sexual abuse, and [respondent] also has a criminal conviction for sexual abuse and for child abuse and that pretty much covers all the statutory codes." However, it is clear from the statement's context that the trial court found respondent to have sexually abused TB and physically abused TB and BB without regard to the criminal proceedings against respondent. Most of the statutory grounds for the trial court's termination of respondent's parental rights were based on that record-based factual finding. Consequently, even accepting respondent's argument regarding his alleged appeal and release from incarceration at face value, his argument could only have meaningful implications for termination of his rights under MCL 712A.19b(3)(h). However, because only one statutory ground must be established, any conceivable error regarding MCL 712A.19(b)(3)(h) is harmless. In re Powers Minors, 244 Mich App at 118.

IV. BEST INTERESTS

Because the trial court properly found numerous statutory grounds for termination established by clear and convincing evidence, the trial court was required to consider whether termination was in GH's best interests, and if so, it was required to terminate respondent's parental rights. In re Brown/Kindle/Muhammad Minors, 305 Mich App 623, 637; 853 NW2d 459 (2014). The trial court did not err by finding that allowing respondent to maintain his parental rights to GH would not be in the child's best interest. In re Moss, 301 Mich App at 83-90.

Our review of factors to determine the child's best interest includes the parent's "care, custody, and management of the child" and "the child's interest in a normal family home." Moss, 301 Mich App at 86. Respondent argues that because he had not met GH, he had not been given an opportunity to exhibit his care for GH. Therefore, the trial court should have postponed the matter of his parental rights to GH until the appeal of his criminal convictions was resolved. The trial court reasoned that respondent's conduct had already harmed GH, as well as the entire family, due to the resulting turmoil, and that it had no intention of giving respondent the opportunity to cause more harm to another child. We agree. Furthermore, children are not expected to wait indefinitely for a hypothetical resolution that may never occur, and in fact, appears unlikely. See In re Dahms, 187 Mich App 644, 647; 468 NW2d 315 (1991). Even if there was any evidence that an appeal was actually pending or had any likelihood of succeeding, the trial court's decision would not have been erroneous.

Given respondent's clearly unaddressed propensity for treacherous, harmful, and destructively selfish conduct; and the fact the GH's development and care are best supported through a consistent and stable family environment, the trial court properly found that termination of respondent's parental rights was in GH's best interests.

V. CONCLUSION

The trial court did not clearly err in finding that multiple statutory grounds for terminating respondent's parental rights of GH were established by clear and convincing evidence, and it did not clearly err in finding termination of respondent's parental rights in GH's best interests by a preponderance of evidence. Affirmed.

/s/ Amy Ronayne Krause

/s/ Patrick M. Meter

/s/ Elizabeth L. Gleicher


Summaries of

In re Hanner

STATE OF MICHIGAN COURT OF APPEALS
Nov 21, 2019
No. 348536 (Mich. Ct. App. Nov. 21, 2019)
Case details for

In re Hanner

Case Details

Full title:In re G. O. HANNER, Minor.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Nov 21, 2019

Citations

No. 348536 (Mich. Ct. App. Nov. 21, 2019)