Opinion
No. 340395
06-28-2018
IN RE KEILLOR, Minors.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Chief Legal Counsel, and Susan B. Moody, Assistant Attorney General, for the Department of Health and Human Services. Law Offices of Roman J. Ficaj (by Roman J. Ficaj ) for respondent. Michigan Children’s Law Center (by Rubina S. Mustafa) for the minor children.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Chief Legal Counsel, and Susan B. Moody, Assistant Attorney General, for the Department of Health and Human Services.
Law Offices of Roman J. Ficaj (by Roman J. Ficaj ) for respondent.
Michigan Children’s Law Center (by Rubina S. Mustafa) for the minor children.
Before: Ronayne Krause, P.J., and Markey and Riordan, JJ.
Riordan, J.Respondent appeals as of right the trial court’s order terminating her parental rights to the minor children, KK–1 and KK–2, pursuant to MCL 712A.19b(3)(b)(iii ) (a nonparent adult’s act caused sexual abuse and a reasonable likelihood exists that the child will suffer abuse by the nonparent adult if returned to the parent’s home) and MCL 712A.19b(3)(j) (a reasonable likelihood exists based on the conduct or capacity of the child’s parent that the child will be harmed if returned to the home of the parent). We affirm.
I. FACTUAL BACKGROUND
Respondent adopted the minor children in 2011. In 2016, Child Protective Services (CPS) began an investigation into physical abuse of the minor children by respondent. Respondent pleaded no contest to the allegations in the petition on January 5, 2017, and the trial court took jurisdiction over the minor children. Later, a supplemental petition to terminate respondent’s parental rights was filed after KK–1 made allegations of sexual abuse by respondent’s live-in boyfriend, who fit the statutory definition of a "nonparent adult." See MCL 722.622(v). On August 31, 2017, the trial court held a trial both to adjudicate the new allegations and regarding the request to terminate respondent’s parental rights. KK–1 provided testimony regarding the alleged sexual abuse by the nonparent adult.
I cite the alpha designations of MCL 722.622, as amended by 2016 PA 35, effective from March 8, 2016 to April 5, 2017, because the alleged sexual abuse in this case occurred sometime during 2016. Although the alphabetical references may have often changed over the years, the substantive definitions have remained the same, so our analysis has not been affected by any amendments.
After hearing the evidence, the trial court adjudicated the new allegations, finding that a preponderance of the evidence supported the existence of sexual abuse by the nonparent adult. The parties then argued regarding termination of respondent’s parental rights and whether termination would be in the best interests of the minor children. The trial court took the issue under advisement, eventually releasing a written opinion terminating respondent’s parental rights pursuant to MCL 712A.19b(3)(b)(iii ) and (j). This appeal followed.II. STATUTORY GROUNDS
Respondent argues that the trial court clearly erred when it terminated her parental rights to the minor children. I disagree.
I note that this case is being published at the request of the dissent pursuant to MCR 7.215(A).
A. STANDARD OF REVIEW
"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 N.W.2d 61 (2014). A trial court’s findings of fact are clearly erroneous if "we are definitely and firmly convinced that it made a mistake." Id . at 709–710, 846 N.W.2d 61. "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 N.W.2d 111 (2011). "[W]e review de novo questions of statutory interpretation." In re Harper , 302 Mich. App. 349, 352, 839 N.W.2d 44 (2013) (quotation marks and citation omitted).
B. APPLICABLE LAW AND ANALYSIS
The trial court found clear and convincing evidence of statutory grounds for termination under MCL 712A.19b(3)(b)(iii ), which provides:
(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:
* * *
(iii ) A nonparent adult’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 by the nonparent adult in the foreseeable future if placed in the parent’s home.
Although MCL 712A.19b does not provide definitions for the pertinent terms "nonparent adult" and "sexual abuse," those terms are found and defined in the Child Protection Law, MCL 722.601 et seq . Indeed, § 19b twice refers to and adopts the definition of "sexual abuse" "as that term is defined in section 2 of the child protection law, 1975 PA 238, MCL 722.622." MCL 712A.19b(3)(k)(ix ) and (l )(ix).
MCL 722.622(y) defines "sexual abuse" as follows:
"Sexual abuse" means engaging in sexual contact or sexual penetration as those terms are defined in section 520a of the Michigan penal code, 1931 PA 328, MCL 750.520a, with a child.
In this case, there is no allegation of sexual penetration. The definition of "sexual contact" is as follows:
"Sexual contact" includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification , done for a sexual purpose, or in a sexual manner for:
(i ) Revenge.
(ii ) To inflict humiliation.
(iii ) Out of anger. [ MCL 750.520a(q) (emphasis added).]
In turn, MCL 750.520a(f) defines "intimate parts" as "includ[ing] the primary genital area, groin, inner thigh, buttock, or breast of a human being." Thus, in order for there to have been grounds for termination pursuant to MCL 712A.19b(3)(b)(iii ), the trial court must have found clear and convincing evidence that the nonparent adult touched KK–1’s "primary genital area, groin, inner thigh, buttock, or breast" in a manner that "can reasonably be construed as being for the purpose of sexual arousal or gratification ...." MCL 750.520a(f) and (q).
KK–1 testified that the nonparent adult touched her in an inappropriate manner during a trip to California with respondent. The nonparent adult slept with KK–1 in one room while KK–2 and respondent slept in another room. According to KK–1, it was strange and uncommon for the nonparent adult to be in bed with her. KK–1 provided the following pertinent testimony during direct examination regarding the night the nonparent adult touched her:
Q . All right. Did anything ever happen to you when [the nonparent adult] was sharing a room with you that made you feel bad or uncomfortable?
A . Yes.
* * *
Q . And, and what happened?
A . I was laying next to him and he was touching me.
Q . How was he touching you?
A . With his hand.
Q . And, and how did that come about? Did you ask him to touch you?
A . No.
Q . Okay. What—Were you awake when this happened?
A . Yes.
Q . And, and what—Did you have any kind of conversation with [the nonparent adult] at all before he touched you?
A . No. All I said was my stomach hurt.
Q . And you told that to [him]?
A . Yes.
Q . And after you told him that your stomach hurt, what did he do?
A . He started rubbing my stomach and going a little bit lower.
Q . And what were you wearing at the time?
A . I think I was wearing, I think I was wearing summer pajamas.
* * *
Q . All right. Where was his hand on your body at that time?
A . Almost below my waist.
Q . And then what happened?
A . I pulled his hand out and said you were the reason why my stomach was hurting.
Q . Did he make any comment to you after that?
A . No. I just ran into the bathroom.
Q . What did you mean by that, you’re the reason my stomach is hurting?
A . Because it made me feel uncomfortable where he, why he, where he was touching me.
Q . And after you went into the bathroom, how long did you stay there?
A . I stayed there for a couple minutes because I felt like I was gonna throw up.
Q . Did you throw up?
A . No.
* * *
Q . Did [the nonparent adult] ever touch you below your waist?
A . Yeah.
Q . And when did that occur? Before the bathroom or after?
A . Before.
Q . And before the bathroom, when he touched you below your waist, what exactly did he do, if you remember?
A . I don’t remember.
Q . Did he ever, do you have—Did he ever touch your private parts?
* * *
A . Almost.
Q . And what do you mean by almost?
A . Like he was right there, but then I pulled his hand out and I went to the top bunk.
On cross-examination, respondent elicited the following testimony from KK–1:
Q . Now, except for this one incident in California where you say he touched you, that never happened before or since, is that right?
A . Yes.
Q . And this happened over a year ago?
A . I’m not sure.
Q . And if I understood you correctly, you said on direct examination that you told him your stomach was hurting?
A . Yes.
Q . And then he started rubbing your stomach and he started going down into your pants—
A . (Interposing) Yes.
Q . Is that right?
A . Yes.
Q . But he never got down to your private parts, is that right?
A . He started to.
Q . He started, but he never got there, right?
A . Yes.
Respondent contends that the testimony could not have established sexual abuse by the nonparent adult because KK–1 never testified that he actually touched her private parts. I disagree because the definition of "intimate parts" cannot be read so narrowly. While one part of the statute defining "intimate parts" refers to the "primary genital area," the definition also includes "groin" as an intimate part. MCL 750.520a(f). Random House Webster’s College Dictionary (2d ed.) defines groin as "the fold or hollow where the thigh joins the abdomen" and "the general region of this fold or hollow." Meanwhile, The American Heritage Dictionary (2d ed.) defines "groin" as "[t]he crease at the junction of the thigh and the trunk, together with the adjacent area."
Respondent is correct that KK–1 never testified that the nonparent adult actually touched her vagina. However, KK–1 stated that the nonparent adult touched her below her waist, and KK–1 repeatedly said that she had to take his hand "out." It is reasonable to infer that KK–1’s use of the word "out" meant that the nonparent adult’s hand was in her pants. Further, KK–1 testified that he "[a]lmost" touched her private parts while lowering his hand downward from her abdomen. Considering the broad area surrounding KK–1’s private parts covered by the definition of "groin," KK–1’s testimony established that the nonparent adult touched her "intimate parts." MCL 750.520a(f) and (q). It would be unreasonable to conclude that the area below KK–1’s waist and pants line but above the opening of her vagina is not an "intimate part" when the definition also includes the "inner thigh." Thus, in my view, the trial court did not clearly err by determining that the nonparent adult touched KK–1’s intimate parts. MCL 750.520a(f) and (q). I also conclude that KK–1’s testimony established that the nonparent adult’s touching could "reasonably be construed as being for the purpose of sexual arousal or gratification ...." MCL 750.520a(q). KK–1 stated that it was uncommon for the nonparent adult to sleep in bed with her, KK–2 and respondent were in another room, and the nonparent adult’s touching caused her to be uncomfortable and feel nauseous. KK–1’s testimony that she told the nonparent adult her stomach hurt because he was touching her suggests that the touching began before KK–1 complained of a stomachache. Therefore, the trial court also did not clearly err by finding that the nonparent adult touched KK–1 for the purpose of sexual arousal or gratification. Id . Consequently, the trial court did not clearly err by finding that clear and convincing evidence supported that the nonparent adult sexually abused KK–1. MCL 712A.19b(3)(b)(iii ).In order for termination to be proper pursuant to MCL 712A.19b(3)(b)(iii ), the trial court also was required to find by clear and convincing evidence "that there is a reasonable likelihood that the child will suffer from injury or abuse by the nonparent adult in the foreseeable future if placed in the parent’s home." The record shows that respondent did not and does not believe that the nonparent adult sexually abused KK–1. To wit, at the time of the trial, the nonparent adult was still living in the home with respondent. While respondent asserted that she would have the nonparent adult move out if so ordered by the trial court, I do not believe that the trial court clearly erred by finding otherwise. Provided that the nonparent adult still lives in respondent’s house and testimony established that she does not believe KK–1’s allegations of sexual abuse, the trial court did not clearly err by finding that clear and convincing evidence established that the minor children would suffer sexual abuse by the nonparent adult in the future. Id .
In contrast, the dissent suggests young children should suffer adverse consequences if they take proactive steps, such as removing an abuser’s hand from an intimate part of the body. Thus, MCL 712A.19b(3)(b)(iii ), following the dissent’s reasoning, would not apply to a child who seeks to protect herself during the commission of a sexual assault by an abuser.
In sum, because termination was proper pursuant to MCL 712A.19b(3)(b)(iii ), I need not consider the trial court’s termination of respondent’s parental rights pursuant to Subsection (j), In re Ellis , 294 Mich. App. at 32, 817 N.W.2d 111, but note that, for the same reasons, there was clear and convincing evidence that "[t]here 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." MCL 712A.19b(3)(j).
III. BEST INTERESTS
Respondent argues that the trial court clearly erred by determining that it was in the minor children’s best interests to terminate respondent’s parental rights. We disagree.A. STANDARD OF REVIEW AND APPLICABLE LAW
This Court reviews a trial court’s determination regarding best interests for clear error. In re White , 303 Mich. App. at 713, 846 N.W.2d 61. "A trial court’s decision is clearly erroneous ‘[i]f although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.’ " In re Olive/Metts Minors , 297 Mich. App. 35, 41, 823 N.W.2d 144 (2012), quoting In re Miller , 433 Mich. 331, 337, 445 N.W.2d 161 (1989).
"Once a statutory basis for termination has been shown by clear and convincing evidence, the court must determine whether termination is in the child’s best interests." In re LaFrance Minors , 306 Mich. App. 713, 732–733, 858 N.W.2d 143 (2014), citing MCL 712A.19b(5). " ‘[T]he focus at the best-interest stage has always been on the child, not the parent.’ " In re Payne/Pumphrey/Fortson , 311 Mich. App. 49, 63, 874 N.W.2d 205 (2015), quoting In re Moss , 301 Mich. App. 76, 87, 836 N.W.2d 182 (2013). "Best interests are determined on the basis of the preponderance of the evidence." In re LaFrance Minors , 306 Mich. App. at 733, 858 N.W.2d 143.
In considering the issue of whether termination is in the best interests of the minor child, the trial court is permitted to consider "the child’s bond to the parent, the parent’s parenting ability, the child’s need for permanency, stability, and finality, ... the advantages of a foster home over the parent’s home[,] ... the length of time the child was in care, the likelihood that the child could be returned to her parents’ home within the foreseeable future, if at all, and compliance with the case service plan." In re Payne/Pumphrey/Fortson , 311 Mich. App. at 63–64, 874 N.W.2d 205 (citations and quotation marks omitted). "In assessing whether termination of parental rights is in a child’s best interests, the trial court should weigh all evidence available to it." Id . at 63, 874 N.W.2d 205.
B. ANALYSIS
As previously stated, there was testimony that the nonparent adult sexually abused KK–1 while on vacation in California. He did so while sleeping in the same bed with KK–1 while respondent and KK–2 were in a separate room. At trial, testimony established that respondent did not believe KK–1’s allegations and could not explain why KK–1 slept alone with the nonparent adult. Furthermore, testimony of the family therapist showed that the bond between respondent and the minor children was broken. To wit, the family therapist stated that KK–1 would not engage with respondent at group sessions and that KK–2 followed her sister’s lead. The minor children refused to visit with respondent, and the record established that the minor children were flourishing in their placement with other relatives, who were willing to adopt them. In addition to the allegations of sexual abuse, the record was replete with accusations of serious physical abuse by respondent. Therefore, a number of reasons—including respondent’s noted disbelief of KK–1’s sexual abuse allegations, respondent’s allowing the nonparent adult to remain in her house even after those allegations, KK–1’s numerous allegations of respondent’s physical abuse of her, and the broken bond between the family members—prove that the trial court did not clearly err by determining that a preponderance of the evidence supported that termination of respondent’s parental rights was in the best interests of the minor children. MCL 712A.19b(5).
Affirmed.
Ronayne Krause, P.J. (concurring).I respectfully concur in affirming the trial court. I am unpersuaded that the evidence in this record adequately establishes that sexual abuse of either child by a nonparent adult actually occurred. However, any act the nonparent adult did or did not perpetrate against the children is irrelevant. If only one statutory ground for termination is properly established, a parent’s parental rights must be terminated unless the trial court finds that doing so is contrary to the best interests of the children. In re Powers Minors , 244 Mich. App. 111, 118, 624 N.W.2d 472 (2000) ; In re BZ , 264 Mich. App. 286, 301, 690 N.W.2d 505 (2004). On this record, the trial court must be affirmed.
The record conclusively establishes that respondent physically abused the children; she even admitted to beating them with an extension cord and was convicted of third-degree child abuse. The trial court could have left us with more specific factual findings to review, but it is clear that it chose to believe the testimony given by one of the children, which is the prerogative of the trial court, not this Court. McGonegal v. McGonegal , 46 Mich. 66, 67, 8 N.W. 724 (1881). Considering all the evidence—specifically: (1) respondent’s bizarre testimony that she would do anything to bring the children home but would have agreed with the children’s wishes never to see her again had the one child who stated that she was sexually abused by the nonparent adult withdrawn her allegation of sexual abuse; (2) respondent’s apparent lack of concern for the serious trauma the children suffered; (3) the trial court’s readily discernable finding that the children would suffer additional harm if returned to respondent, based, in part, on respondent’s physical abuse of the child—it is clear that the trial court’s decision is amply supported. Additionally, respondent’s clear disregard for the children’s allegations of sexual abuse further reflects an equal disregard for their well-being. I find that MCL 712A.19b(3)(j) has been more than adequately established by clear and convincing evidence.
Because I find one statutory ground for termination overwhelmingly established, I would not address the issue of the alleged sexual abuse because doing so is unnecessary. And as can be seen from the lead opinion and the dissenting opinion, it is something about which there can be a serious debate. Not so with the physical abuse: it unequivocally occurred. Only the severity of the physical abuse is at all in question, and again, I defer to the trial court’s findings regarding credibility of the witnesses. McGonegal , 46 Mich. at 67, 8 N.W. 724.
Other than the sexual abuse allegation itself, I agree with the lead opinion’s assessment of the best interests of the children. Consequently, I concur in affirming.
Markey, J. (dissenting).
I must dissent in respect to both the majority and concurring opinions. I do not accept the majority’s statutory interpretation legerdemain by which "stomach" is added to the statutory definition of "intimate parts" under the aliases of "groin" and "inner thigh" and/or to make it synonymous with any of those words. "In determining the Legislature’s intent, we must first look to the language of the statute itself." In re MKK , 286 Mich. App. 546, 556, 781 N.W.2d 132 (2009). Further, the Legislature is presumed to "be aware of the consequences of its use or omission of statutory language." Id . Judges may not read into a clear statute that which is not within the manifest intention of the Legislature as derived from the language of the statute itself. People v. Breidenbach , 489 Mich. 1, 10, 798 N.W.2d 738 (2011). Further, clear statutory language must be enforced as written. Velez v. Tuma , 492 Mich. 1, 16–17, 821 N.W.2d 432 (2012). The Legislature did not include "stomach" in its list of sexually "intimate parts" in MCL 750.520a(f), and this Court may not add it to the statute to reach a desired result in this case. The majority’s opinion does exactly that. Consequently, for this reason and for others discussed later in this opinion, I conclude that the trial court clearly erred and would vacate the trial court’s order and remand this case to the trial court for further proceedings.
I. STANDARDS OF REVIEW
This Court reviews for clear error the trial court’s factual findings regarding both the statutory grounds to terminate parental rights and the trial court’s findings regarding the best interests of the children. MCR 3.977(K) ; In re Trejo Minors , 462 Mich. 341, 356–357, 612 N.W.2d 407 (2000) ; In re Olive/Metts Minors , 297 Mich. App. 35, 40, 823 N.W.2d 144 (2012). To be clearly erroneous, a decision must be more than maybe or probably wrong. In re Williams , 286 Mich. App. 253, 271, 779 N.W.2d 286 (2009). This Court will determine a finding is clearly erroneous only when left with the definite and firm conviction that a mistake has been made. Id.
This case also presents an issue of statutory interpretation, which this Court reviews de novo. In re Harper , 302 Mich. App. 349, 352, 839 N.W.2d 44 (2013). "The interpretation and application of a statute in particular circumstances is a question of law this Court reviews de novo." Detroit Pub. Sch. v. Conn. , 308 Mich. App. 234, 246, 863 N.W.2d 373 (2014).
II. ANALYSIS
I conclude that the court clearly erred by finding that MCL 712A.19b(3)(b)(iii ) was proved by clear and convincing evidence. Because this Court must recognize the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it, MCR 2.613(C) ; In re Miller , 433 Mich. 331, 337, 445 N.W.2d 161 (1989), I accept KK–1’s testimony as credible for purposes of my analysis. Her testimony, however, did not establish "sexual abuse" within the meaning of § 19b(3)(b)(iii ), and the trial court clearly erred in so finding. Further, the erroneous finding of sexual abuse by a nonparent residing in respondent’s home is so intertwined with the trial court’s finding under MCL 712A.19b(3)(j) of likely harm if the children were returned to respondent’s care that it renders this finding also clearly erroneous. So even if terminating respondent’s parental rights were in the children’s best interests, MCL 712A.19b(5), at least one statutory ground for termination must still be proved by clear and convincing evidence to support such an order. MCL 712A.19b(3) ; In re JK , 468 Mich. 202, 210, 661 N.W.2d 216 (2003) ("A due-process violation occurs when a state-required breakup of a natural family is founded solely on a ‘best interests’ analysis that is not supported by the requisite proof of parental unfitness."). I therefore conclude that the trial court’s order terminating respondent’s parental rights must be vacated.
Adoptive parents have all the same rights and responsibilities as if they were natural parents. MCL 710.60(1) ; Wilson v. King , 298 Mich. App. 378, 381–382, 827 N.W.2d 203 (2012).
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The trial court found clear and convincing evidence of statutory grounds for termination under MCL 712A.19b(3)(b)(iii ), which provides:
(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:
* * *
(iii ) A nonparent adult’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 by the nonparent adult in the foreseeable future if placed in the parent’s home.
Although MCL 712A.19b does not provide definitions for the pertinent terms "nonparent adult" and "sexual abuse," those terms are found and defined in the Child Protection Law, MCL 722.601 et seq . Indeed, § 19b twice refers to and adopts the definition of "sexual abuse" "as that term is defined in section 2 of the child protection law, 1975 PA 238, MCL 722.622." MCL 712A.19b(3)(k)(ix ) and (m)(ix).
MCL 722.622(y) defines "sexual abuse" as follows:
"Sexual abuse" means engaging in sexual contact or sexual penetration as those terms are defined in section 520a of the Michigan penal code, 1931 PA 328, MCL 750.520a, with a child.
In this case, there is no allegation of sexual penetration, so only "sexual contact" potentially is at issue. The definition of "sexual contact" is as follows:
"Sexual contact" includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification , done for a sexual purpose, or in a sexual manner for:
(i ) Revenge.
(ii ) To inflict humiliation.
(iii ) Out of anger. [ MCL 750.520a(q) (emphasis added).]
In turn, MCL 750.520a(f) defines "intimate parts" as "includ[ing] the primary genital area, groin, inner thigh, buttock, or breast of a human being."In light of these unambiguous statutory terms, establishing "sexual abuse" as used in MCL 712A.19b(3)(b)(iii ) requires clear and convincing evidence that the nonparent adult, here, Mr. H, intentionally touched KK–1’s "intimate parts"—"the primary genital area, groin, inner thigh, buttock, or breast," or the clothing covering her intimate parts, and such touching can reasonably be construed to have been for a sexual purpose or other purpose prohibited by the statute. In this case, accepting KK–1’s testimony as credible, I note that the evidence showed Mr. H did not touch KK–1’s "primary genital area, groin, inner thigh, buttock, or breast" or her clothing covering those intimate parts. Indeed, KK–1 herself testified that Mr. H rubbed her stomach and her abdomen after KK–1 had said her stomach hurt. She testified that she pulled Mr. H’s hand out and that the touching made her feel uncomfortable. She got up and went to the bathroom. She testified that when she came back, Mr. H started to rub her back, but she asked him to stop. She testified that he immediately complied. This is the total extent of the facts underlying the sole claim of sexual abuse or contact.
When specifically asked if Mr. H had touched her "private parts," KK–1 answered, "Almost." She explained, "Like he was right there, but then I pulled his hand out and I went to the top bunk." On cross-examination, KK–1 said that she thought Mr. H was moving his hand toward her "private parts," but he never got it there. In sum, there was no testimony whatsoever to find that Mr. H touched KK–1’s "intimate parts," MCL 750.520a(f). Patently, neither the trial court nor this Court may speculate or infer conduct or intent from the record evidence—the majority and the concurrence do just that in reaching their respective decisions. Consequently, it was clear error to find that "sexual abuse" within the meaning of MCL 712A.19b(3)(b)(iii ) occurred because there was a lack of evidence that "sexual contact" occurred. See MCL 722.622(y) ; MCL 750.520a(q).
Moreover, because there was no evidence that Mr. H touched KK–1’s "intimate parts" as required by the statute, there also was no evidence to show either that the touching that KK–1 described was for a sexual purpose or to support an inference that the touching was to exact revenge, to humiliate, or out of anger. Rather, the touching or rubbing of KK–1’s stomach area occurred only after she complained that her stomach hurt. While the touching may have made KK–1 uncomfortable—and given her age, that’s understandable—there was no evidence that Mr. H intended to cause that reaction instead of intending to comfort KK–1. She had just complained that her stomach was hurting. I also note the very important fact that Mr. H was in his late sixties at the time and had lived with respondent and the children by then for many years, indeed, most of their lives. Notably, no other incidents of any similar nature were ever alleged either before or after this one that was raised late in the proceedings and about which KK–1 testified. Consequently, there was no clear and convincing evidence that the touching that KK–1 described was for one of the prohibited statutory purposes. MCL 750.520a(q). For this reason it was also clear error to find that "sexual abuse" within the meaning of MCL 712A.19b(3)(b)(iii ) occurred—there was a lack of evidence that the touching was for a sexual or other prohibited purpose. See MCL 722.622(y) ; MCL 750.520a(q).
And, again, KK–1 testified that the touching she described was a single incident that had never happened before and that never happened again. To establish MCL 712A.19b(3)(b)(iii ) as a ground for termination, the court must find by clear and convincing evidence that "there is a reasonable likelihood that the child will suffer from ... [sexual] abuse by the nonparent adult in the foreseeable future if placed in the parent’s home." KK–1’s testimony described a single touching that she stated had happened once—never before and never since. Parenthetically, I also point out that KK–1’s sister had never made such accusations against Mr. H despite living with him most of her life as well. Under these facts, I find no basis to conclude by clear and convincing evidence that such an incident—were it in some way even fairly determined to have been sexual abuse by a nonparent adult—would be likely to recur in the future.
Additionally, the allegations of sexual abuse did not arise until late in the proceedings—at the end of April 2017, according to the supplemental petition. The supplemental petition seeking termination on the basis of the new sexual abuse allegations was filed on May 8, 2017, and not authorized until a May 22, 2017 pretrial hearing, at which time respondent and Mr. H were served with it. At the time of the pretrial, respondent had not been permitted to visit the children for seven months, initially because the court temporarily suspended visitation pending a psychological examination but later because the children refused to participate, and the court did not order them to do so despite their young ages. Nevertheless, respondent was unquestionably fully compliant with all court orders and with the service provider’s treatment plans. In its oral findings after trial, the trial court noted:
And so, obviously, this is a very difficult case in the sense that the mother is compliant with the service plan,
but because of the fact that the children won’t engage in therapy, they won’t engage in activities with the mother, they refuse to return home, they refuse to see the mother, we’re not able to reunify. And so, the Court, the Court has to be mindful of that, that notwithstanding the fact that the mother’s compliant, a case just can’t go on in perpetuity without, without having a permanency plan and some direction.
At trial, respondent testified that if necessary, she would establish a household separate from Mr. H, either by having him move out of the home they owned together or by finding new housing for herself and the children. Specifically, respondent testified that she would separate from Mr. H if necessary to obtain the return of the children. Respondent, however, was never directed to establish a separate home for herself as a condition of having the children returned to her, nor was that issue even discussed with her. So a finding of likely future harm from Mr. H, i.e., that he posed a potential threat to the children, was patently premature where the evidence showed a one-time incident and respondent expressed her willingness to establish a household without Mr. H were that to be a condition for her children’s return.
Here, the trial court’s finding regarding likely harm under § 19b(3)(j) if the children were returned to respondent’s care is so intertwined with the court’s erroneous finding of sexual abuse by a nonparent residing in respondent’s home that it also is clearly erroneous. MCL 712A.19b(3)(j) provides a ground for termination of parental rights if "[t]here 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."
On this statutory ground, I also part company with the concurring opinion. In its oral opinion from the bench, the trial court stated that MCL 712A.19b(3)(j)"is also proven by clear and convincing evidence because we have testimony of sexual abuse by the non-parent adult and we have testimony of physical abuse to the child, [KK–1]." But it is settled law that a court speaks through its written orders, not through its oral pronouncements. In re KMN , 309 Mich. App. 274, 287, 870 N.W.2d 75 (2015). And in its written order terminating parental rights, the trial court wrote:
It is further ordered that the court finds clear and convincing evidence of a statutory basis for termination of parental rights of the mother pursuant to MCL 712A.19b(3)(b)(iii ) and (j). The mother’s living together partner sexually abused the child [KK–1], and future abuse is reasonably likely as the non-parent adult has not come forward to engage in services. Further, the non-parent adult continues to reside in the home of the mother.
In addition, the children will be harmed if returned to the home of the mother, given that the non-parent adult continues to reside in that home. While the mother is compliant with services, the children refuse to engage with the mother in any activities, and they refuse to return home.
Clearly, in its written order and findings of fact, the trial court relied only on the alleged sexual abuse by a nonparent adult to find both statutory grounds for termination. In her concurring opinion, Judge KRAUSE takes on the role of the trial court—here, relying in large part on facts that apparently had no impact whatsoever on the trial court’s written analysis and findings: that respondent, not Mr. H, has previously pled no contest to a charge of child abuse for striking a child with an electrical cord. I suggest that the trial court did not focus on that issue in its order because not only did respondent take full responsibility, she also presented and apparently convinced those providing services and the court that she understood her mistake and clearly conveyed that she had learned from it. Thus, to cite it as a reason to terminate would have been erroneous. In short, it was patently a nonissue at the point of hearing and had been superseded by the allegation against Mr. H. To now bootstrap that factor as the reason to terminate and remove these children from respondent in lieu of remanding for a fair and proper hearing when the trial court did not is, to me, far beyond our role as appellate court judges.
The trial court’s finding that clear and convincing evidence supported finding MCL 712A.19b(3)(j) as a ground for termination of respondent’s parental rights is clearly erroneous. MCR 3.977(K) ; In re Olive/Metts Minors , 297 Mich. App. at 40, 823 N.W.2d 144. First, this finding is premised on the findings that Mr. H perpetrated "sexual abuse" on KK–1 and that KK–1 was likely to be sexually abused in the future by Mr. H. For the reasons already discussed, these premises are not supported by clear and convincing evidence; in fact, they are not supported by any evidence!
Moreover, this finding is based on the additional premise that Mr. H would remain in respondent’s home. But respondent, who had fully complied with all other requirements of the court, offered to establish a home for the children without Mr. H if the court required it as a condition. But respondent was never directed or even advised to do so. So the court’s finding of likely harm to the children from Mr. H if returned to respondent was patently not supported by clear and convincing evidence. MCR 3.977(K). The finding regarding § 19b(3)(j) was more than probably wrong, In re Williams , 286 Mich. App. at 271, 779 N.W.2d 286, because the legal premise on which it was based, "sexual abuse" by Mr. H, was not supported by any evidence. Further, the "conduct or capacity" of respondent showed that she would abide by the court’s direction and would remove Mr. H from her home if directed to do so.
Where, as in this case, petitioner sought termination of parental rights on grounds different from those by which the court originally gained jurisdiction (physical abuse), it is petitioner’s burden to prove "on the basis of clear and convincing legally admissible evidence that one or more of the facts alleged in the supplemental petition" are true and come within MCL 712A.19b(3). MCR 3.977(A)(3) and (F)(1)(b). The petitioner bears the burden of establishing the existence of at least one of the grounds for termination of parental rights listed in MCL 712A.19b(3) by clear and convincing evidence. In re JK , 468 Mich. at 210, 661 N.W.2d 216. In this case, petitioner asserted one ground for termination of parental rights: sexual abuse of KK–1 by respondent and by respondent’s housemate, Mr. H. But the evidence utterly failed to show any sexual abuse by respondent, and the testimony with respect to Mr. H was legally insufficient to establish sexual abuse within the meaning of MCL 712A.19b(3)(b)(iii ). See MCL 722.622(y) ; MCL 750.520a(q) ; MCL 750.520a(f). The trial court’s finding regarding likely harm under MCL 712A.19b(3)(j) if the children were returned to respondent’s care is so dependent on the court’s erroneous finding of sexual abuse by a nonparent residing in respondent’s home that it also is clearly erroneous. The trial court’s decision to terminate, in fact, seems to be based solely on its conclusion that because the children refused to engage in any way with treatment or respondent, its only option was to terminate respondent’s parental rights. It should go without saying that such a determination as a basis for termination of parental rights has no legal basis whatsoever and is a remarkable judicial assault on the parent/child relationship. Many—if not most—children, go through a defiant period while maturing: KK–1 was about 13 years old during these proceedings. To cite such defiance in preteen and barely teenage children as the main reason for terminating parental rights is patently wrong and, for us to let it stand, dangerous. Because the evidence did not establish at least one ground for termination of respondent’s parental rights, MCL 712A.19b(3), the trial court clearly erred by terminating respondent’s parental rights. In re JK , 468 Mich. at 210, 661 N.W.2d 216 ; In re Olive/Metts Minors , 297 Mich. App. at 40, 823 N.W.2d 144.
Terminating parental rights and removing children from their parent’s care is an enormous responsibility and one which should be undertaken with scrupulous regard to the laws that provide the strict criteria that must be followed. Because the trial court here clearly failed to properly follow the statutory requirements in terminating respondent’s parental rights, I would vacate the trial court’s order terminating respondent’s parental rights and remand this matter to the trial court for further proceedings. I fail to see how remanding for a second hearing under these unusual facts and legal conclusions is anything but a bottom-line threshold to ensure the fair and proper proceedings respondent and these children deserve.