Opinion
No. 349583
01-30-2020
In re HILL, Minors.
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 UNPUBLISHED Wayne Circuit Court Family Division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. 18-002027-NA Before: METER, P.J., and FORT HOOD and REDFORD, JJ. PER CURIAM.
The trial court's physical file and most of the documents in the file are identified with the case number "18-002027N" and the petition number "18-002947-NA." The trial court's register of actions identifies the case number as "18-002947-NA."
Respondent appeals as of right the order terminating his parental rights to the minor children, KH and PH, under MCL 712A.19b(3)(b)(i) (parent caused physical or sexual abuse of the child or sibling), (g) (failure to provide proper care and custody), (j) (reasonable likelihood of harm if child is returned to parent's home), and (k)(ii) (parent's abuse of the child or sibling involves criminal sexual conduct with penetration, attempted penetration, or assault with intent to penetrate). We affirm.
I. FACTUAL BACKGROUND
In December 2018, the Department of Health and Human Services (DHHS), filed a petition alleging that the children came within the trial court's jurisdiction because respondent sexually abused his 15-year-old stepdaughter, SJ, the children's half-sister. At the time, respondent was incarcerated for a parole violation and the children and SJ remained in their mother's care. Petitioner sought termination of respondent's parental rights at the initial disposition. The trial court held a combined dispositional hearing and bench trial during March and April 2019, in which the trial court heard testimony from SJ, KH, and the children's mother. The trial court found statutory grounds existed for exercising jurisdiction over the children, clear and convincing evidence established statutory grounds for terminating respondent's parental rights, and concluded that termination of respondent's parental rights served the children's best interests.
Petitioner did not name the children's mother as a respondent.
II. ANALYSIS
A. DUE PROCESS
Respondent first argues that the trial court violated his right to due process by denying his request to participate in the proceedings in person or by video conference, rather than by telephone. We disagree.
"Whether child protective proceedings complied with a parent's right to procedural due process presents a question of constitutional law, which we review de novo." In re Sanders, 495 Mich 394, 403-404; 852 NW2d 524 (2014) (citation omitted). Parents have a constitutionally protected liberty interest in the right to make decisions regarding the care, custody, and control of their children. Id . at 409. As such, parents are entitled to due process before the government can interfere with their parental rights. Id. At its core, due process requires fundamental fairness and a meaningful opportunity to be heard. In re Rood, 483 Mich 73, 92; 763 NW2d 587 (2009). In determining whether a litigant has been afforded procedural due process, appellate courts consider relevant precedent and the interests at stake. Id. We also consider the following factors to determine what due process requires in a particular case:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Id. at 92-93, quoting Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976).]
In In re Vasquez, 199 Mich App 44, 48; 501 NW2d 231 (1993), this Court concluded that an incarcerated parent does not have an absolute right to be physically present at a dispositional hearing or proceeding to terminate parental rights. As the Vasquez Court explained, "In light of present-day telecommunications, other means that fall short of securing the physical presence of a parent are available to ensure that an incarcerated prisoner receives due process at a dispositional hearing." Id . at 48-49. In addition, MCR 2.004 provides for an incarcerated party's participation in child protective proceedings by video conference or telephone. In this case, respondent participated in every stage of the proceedings by telephone. The trial court further facilitated respondent's remote participation by accommodating any requests to break for the purpose of allowing defense counsel and respondent to confer with each other. The record indicates that respondent did not request such breaks, but the trial court specifically noted that respondent conferred with defense counsel on at least one occasion during the proceedings.
Despite these accommodations, respondent maintains that he should have been permitted to participate by video conference or in person. We disagree.
Respecting the first factor we must consider, we recognize that respondent's private interest at stake in this case involved retaining his parental rights to his two minor children, both a fundamental and significant liberty interest. See, e.g., Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982); In re Sanders, 495 Mich at 409; In re Rood, 483 Mich at 91. Accordingly, this factor favors respondent. Despite the importance of the private interest involved, however, the other factors do not favor respondent.
Regarding the second factor, we find no risk of an erroneous deprivation of his interest through the procedures used. Respondent participated in every stage of the proceedings by telephone with the assistance of counsel. Respondent's contention that he had difficulty hearing is unsupported by the record. Although the trial court noted the ambient noise caused by a fan in the courtroom and asked some of the witnesses to raise their voices, the record does not indicate that respondent lacked the ability to hear the proceedings. When the trial court rejected defense counsel's request that respondent be permitted to participate in person or by video conference, respondent agreed to notify the court if he had trouble hearing. Respondent never indicated any such difficulties during the proceedings. Further, there were no physical exhibits presented during the proceedings, so respondent's telephonic participation did not prevent him from viewing items in evidence. Defense counsel's presence in the courtroom permitted him to address any issues involving the witnesses, including cross-examining them and challenging their credibility. The trial court also permitted defense counsel to confer with respondent regarding any matters that arose during the proceedings in private. The record reflects that defense counsel came well-prepared for the trial, thoroughly cross-examined each witness, and argued against termination of respondent's parental rights. The record does not reflect nor has respondent adequately explained how his physical presence or ability to see the proceedings would have aided his defense. Further, respondent has failed to establish the existence of any risk of an erroneous termination of his parental rights or that the proceedings resulted in an erroneous outcome.
Moreover, respondent's interest in being physically present or participating by video conference does not outweigh the state's strong interest in adjudicating child protective proceedings in a timely and efficient manner. The record reflects that securing respondent's physical presence at trial would have been burdensome from an administrative standpoint because respondent was incarcerated in Jackson County and the proceedings in this case took place in Wayne County. The record indicates that the courtroom was not equipped for video conferencing. Attendance via telephone in this case did not violate respondent's right to due process. He had notice and opportunity to be heard and the trial court afforded him the opportunity to participate in the proceedings in a meaningful way. Accordingly, the trial court did not clearly err.
B. HEARSAY
Respondent next argues that the trial court erred by admitting and relying on inadmissible hearsay. We disagree.
Because respondent did not object to the alleged hearsay evidence below, this issue is unpreserved. In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011). We review unpreserved issues for plain error. Id. "To avoid forfeiture under the plain-error rule, the proponent must establish that a clear or obvious error occurred and that the error affected substantial rights." In re Beers, 325 Mich App 653, 677; 926 NW2d 832 (2018). "[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Id . (quotation marks and citation omitted; alteration in original).
The rules of evidence apply to trials in child protective proceedings including initial dispositional hearings at which the petitioner seeks termination of the respondent's parental rights. MCR 3.972(C)(1); MCR 3.977(E)(3); In re Snyder, 223 Mich App 85, 89; 566 NW2d 18 (1997). Although hearsay is generally inadmissible, MRE 802, admissions of a party opponent are not considered hearsay, MRE 801(d)(2). An out-of-court statement qualifies as an admission of a party opponent, rather than hearsay, if the statement is made by the party against whom it is offered. MRE 801(d)(2)(A). Further, "[a]n appellant cannot contribute to error by plan or design and then argue error on appeal." Munson Med Ctr v Auto Club Ins Ass'n, 218 Mich App 375, 388; 554 NW2d 49 (1996).
Respondent argues that the trial court erred by admitting hearsay testimony concerning sexual abuse by him against an older sibling of the children. The record reflects that defense counsel first elicited testimony about allegations made earlier against respondent about his sexually abusing other children. Defense counsel asked the children's mother if she had any information about sexual abuse against her children before 2018, and she stated that respondent's mother told her about something that happened with her oldest daughter around 2005 or 2006. We presume that defense counsel acted from a sound trial strategy. See In re Martin, 316 Mich App 73, 87; 896 NW2d 452 (2016). Although the children's mother indicated that she discussed the matter with respondent's mother, the details of that conversation were not elicited at trial. The particulars of the allegations of earlier sexual abuse were never presented; the children's mother only testified that she heard about the allegations and that Children's Protective Services did not substantiate a complaint concerning the allegations. The children's mother also testified that respondent told her he had been "inappropriate" with her oldest daughter. Respondent's admission did not constitute inadmissible hearsay under MRE 801(d)(2)(A).
Respondent has not established that the trial court committed plain error nor has he shown that plain error affected his substantial rights. The record reflects that the evidence about which he complains was not offered for the truth of the matter asserted. Even if the trial court committed plain error by admitting hearsay testimony, respondent has not established that the testimony prejudiced his case.
C. JURISDICTION
Next, respondent argues that the trial court erred by finding that it could exercise jurisdiction under MCL 712A.2(b). We disagree.
After a petition is authorized, the trial court must determine whether it can exercise jurisdiction over the child and respondent under MCL 712A.2(b). In re Ferranti, 504 Mich 1, 15; 934 NW2d 610 (2019) (Docket No. 157907); slip op at 9. We review a trial court's jurisdictional findings for clear error. In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). "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 LaFrance Minors, 306 Mich App 713, 723; 858 NW2d 143 (2014). A jurisdictional basis must be established by a preponderance of the evidence. In re BZ, 264 Mich App at 295.
The trial court found grounds for jurisdiction on the basis of "criminality, domestic violence, and sexual abuse." The trial court exercised jurisdiction under MCL 712A.2(b)(2), which applies to children "[w]hose 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." Respondent argues that the trial court erred by finding a statutory basis for jurisdiction because the children were in their mother's care and there was no persuasive evidence of domestic violence or sexual assault. We disagree.
Contrary to respondent's contention, the mere fact that the children were in their mother's care throughout these proceedings did not deprive the trial court of jurisdiction because the trial court did not exercise jurisdiction on the basis of improper care or custody. Rather, the trial court found jurisdiction on the basis of respondent's criminality, including sexual abuse. A trial court can properly exercise jurisdiction under MCL 712A.2(b)(2) if a preponderance of the evidence demonstrates that the respondent engaged in criminal behavior that renders the child's home or environment unfit. In re MU, 264 Mich App 270, 279-280; 690 NW2d 495 (2004). SJ, the children's half-sister, testified at length about sexual assaults committed by respondent over many years from the time she was 11 years old. Such conduct constituted criminal sexual conduct of varying degrees. SJ testified that, when she and the children visited and stayed at respondent's house, he came into the room where she and the children slept, removed SJ's clothes, touched her inappropriately, and on some occasions penetrated her anus with his penis. Given the nature of respondent's alleged criminality—sexual abuse of the children's half-sister—and the severity of the risk of harm to the children, the trial court did not clearly err by finding that such criminality rendered the children's environment unfit.
The record also indicates that respondent had a history of aggression and domestic violence toward the children's mother, although when that occurred is unclear. Regardless, the trial court's findings concerning respondent's sexual abuse of the children's half-sisters sufficed to support its exercise of jurisdiction under MCL 712A.2(b)(2).
Respondent also argues that the trial court could not rely on SJ's testimony. The trial court, however, found SJ a credible witness. We generally defer to the trial court's assessment of a witness's credibility. In re Medina, 317 Mich App 219, 227; 894 NW2d 653 (2016). We may reject a credibility assessment when the witness's testimony is "so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it." Beason v Beason, 435 Mich 791, 804; 460 NW2d 207 (1990). In this case, the trial court articulated a well-reasoned basis for accepting SJ's testimony as true despite some inconsistencies. The trial court noted that the majority of the inconsistencies in her testimony related to dates and the specific nature of the sexual assaults that occurred on each date. Because the sexual assaults occurred over the span of many years, SJ's inability to pinpoint exact dates did not render her testimony inconsistent or inherently unreliable. The record reflects that SJ repeatedly indicated that respondent's sexual assaults began when she was 11 years old and continued for a period until his incarceration, then resumed after respondent obtained release from prison in 2018. SJ testified that respondent began with sexual contact involving his hands and penis and his conduct evolved into sexual penetration of her anus with his penis.
Analysis of the record indicates that some of SJ's confusion may have arisen from the shifting terminology used by the attorneys during her testimony. During her direct examination, SJ described two specific instances of sexual assault—the first incident that occurred when she was 11 years old and the most recent incident that occurred in the fall of 2018. Petitioner's counsel sometimes referred to the most recent sexual assault as the "second incident," despite SJ's testimony that respondent sexually assaulted her between five and seven times. Defense counsel asked SJ about the details of every instance of sexual assault, using references to the chronological events. The record reflects that the trial court noted the "problem with terminology" and asked the attorneys to be more careful in their questioning, but only after SJ had completed the majority of her testimony. Despite the confusing nature of the questioning, the trial court appropriately discerned the consistency in SJ's testimony and did not err by finding her credible. Accordingly, the trial court did not err by considering her testimony for its jurisdiction determination in this case.
D. STATUTORY GROUNDS
Respondent also argues that the trial court erred by finding that clear and convincing evidence established statutory grounds for termination of his parental rights. We disagree.
Before terminating a respondent's parental rights, the trial court must find by clear and convincing evidence that at least one statutory ground for termination exists. In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). "This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination." In re White, 303 Mich App 701, 709; 846 NW2d 61 (2014). "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 LaFrance Minors, 306 Mich App at 723.
"To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence." In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). Evidence is clear and convincing if it
produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. [In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995) (quotation marks, citation, and brackets omitted.]
In this case, the trial court terminated respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii), which provide:
(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.
* * *
(g) 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.
* * *
(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.
Respondent challenges the trial court's findings concerning each of these grounds, but his arguments regarding each statutory ground are the same and principally rest upon his contention that SJ lacked credibility. The trial court, however, did not clearly err by finding SJ's testimony credible. Accordingly, respondent's claim of error lacks merit.
The record reflects that petitioner presented clear and convincing evidence that established to support termination of respondent's parental rights under MCL 712A.19b(3)(j). The record reflects that respondent sexually abused two of the children's half-sisters. Respondent's sexual abuse of SJ last occurred less than one year before the instant proceedings and while KH and PH were asleep in the same bed while respondent sexually abused SJ. Respondent argues that KH and PH were never subjected to physical abuse, sexual abuse, or neglect. He contends that they are not subject to risk of harm. Respondent's position is flawed because he focuses only on the risk of physical harm. MCL 712A.19b(3)(j), however, is not limited to the risk of physical harm alone. The risk of emotional harm also serves as a ground for termination of parental rights under subdivision (j). In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011) (terminating parental rights where the respondent sexually abused a sibling of the children). Just like the children involved in In re Hudson, KH and PH are faced with the emotional aftermath of learning that respondent sexually abused at least one, if not two, of their half-sisters. See id. The trial court did not clearly err by concluding that clear and convincing evidence established a ground for termination of respondent's parental rights under MCL 712A.19b(3)(j).
The trial court's conclusions regarding MCL 712A.19b(3)(b)(i) and (k)(ii) also were not clearly erroneous for similar reasons. The children's half-sister, SJ, credibly testified that respondent sexually abused her on several occasions. She described criminal sexual conduct perpetrated against her by respondent consistent with the type contemplated by MCL 712A.19b(3)(k)(ii), as well as, general "sexual abuse" of a sibling as contemplated by MCL 712A.19b(3)(b)(i). The trial court did not clearly err in finding that a reasonable likelihood of harm existed if the children were returned to respondent's care. The well-recognized doctrine of anticipatory neglect provides that "[h]ow a parent treats one child is certainly probative of how that parent may treat other children." In re LaFrance Minors, 306 Mich App at 730 (quotation marks and citation omitted; alteration in original). Thus, the trial court could infer from respondent's sexual abuse of one of the children's half-sisters that a reasonable likelihood existed that respondent would treat KH and PH similarly if given an opportunity to do so in the future.
For purposes of MCL 712A.19b, a "sibling" includes "a child who is related through birth or adoption by at least 1 common parent." MCL 712A.13a(1)(l). SJ, KH, and PH are siblings under this definition because they share a common mother.
The trial court did not err by finding that clear and convincing evidence established a statutory ground for termination of respondent's parental rights. Because "[o]nly one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights," we need not consider respondent's arguments regarding other statutory grounds. In re Ellis, 294 Mich App at 32.
E. BEST INTERESTS
Last, respondent argues that the trial court erred by finding that termination of his parental rights served the children's best interests. We disagree.
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." We review the trial court's best-interests determination for clear error. In re Medina, 317 Mich App at 236. "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 LaFrance, 306 Mich App at 723.
If the petitioner establishes at least one statutory ground for termination, the trial court must terminate the respondent's parental rights if it determines by a preponderance of the evidence that termination serves the children's best interests. In re White, 303 Mich App at 713. The trial court should weigh all the record evidence and consider
a wide variety of factors that may include 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. 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. 713-714.]
The trial court acknowledged that a bond existed between respondent and the children and respondent's efforts to actively parent his children when not incarcerated. Nevertheless, the trial court determined that termination of his parental rights served the children's best interests. The trial court reasoned that, if respondent remained involved in the children's lives, a risk existed that the children might come to view inappropriate sexual activity as normal. The trial court also expressed concern that the children risked being personally victimized by respondent in the future. A preponderance of the evidence supports the trial courts' determination in this regard. Evidence established that respondent criminally sexually abused SJ in the presence of the children without regard for their safety or the emotional consequences to them.
The record also reflects that respondent's repeated incarceration limited his involvement in the children's lives. Further, evidence established that respondent engaged in domestic violence against the children's mother in the past. The trial court could properly consider such evidence in evaluating the children's best interests. In re White, 303 Mich App at 714.
Considering the entire record, we are not left with a definite and firm conviction that the trial court made a mistake by finding that a preponderance of the evidence established that termination of respondent's parental rights served the children's best interests.
Affirmed.
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
/s/ James Robert Redford