Opinion
No. 348999 No. 349687
07-23-2020
In re KOPCZYK, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court Family Division
LC Nos. 2016-000191-NA 2016-000192-NA Before: MURRAY, C.J., and RONAYNE KRAUSE and TUKEL, JJ. PER CURIAM.
In these consolidated appeals, nonparty mother, N. Barba (hereinafter "Barba"), and petitioner, Department of Health and Human Services ("DHHS"), appeal as of right and by delayed leave granted, respectively, the trial court's order dismissing a petition to terminate the parental rights of respondent, K. Kopczyk II, to his minor children, MK and LK. The trial court ruled that petitioner failed to introduce sufficient evidence to establish statutory grounds for termination under MCL 712A.19b(3)(b)(i) (child suffered physical or sexual abuse by act of parent), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm if child returned to parent's home). We dismiss Barba's appeal for lack of standing, and affirm the trial court order dismissing the petition. This appeal is being decided without oral argument under MCR 7.214(E)(1).
On August 14, 2019, this Court granted DHHS's delayed application for leave to appeal, and consolidated the matter with Barba's appeal in Docket No. 348999. In re Kopczyk, unpublished order of the Court of Appeals, entered August 14, 2019 (Docket No. 349687).
I. STATEMENT OF FACTS
Respondent and Barba were married for approximately five years. They were divorced in 2014. MK and LK were born during the marriage. Under the consent judgment of divorce, the parents shared joint legal and physical custody of the children. Although the children were primarily domiciled with Barba, respondent was granted 104 overnight visits each year, and some holiday visits. He consistently exercised his parenting time.
On May 23, 2016, MK informed Barba that respondent had hurt her. At that time, MK was 4½ years old. When Barba asked MK to show her, MK started to touch her vagina. MK said, "it hurt because he did it too long and too hard." Four weeks later, on June 17, 2016, MK again disclosed that respondent had touched her inappropriately during a Care House interview. During the interview, MK reported that respondent helped her wipe when she went to the bathroom. However, she also disclosed that respondent sometimes touched her body when he was not wiping her. In addition, the forensic interviewer, Nichole King, testified that MK "talked about dad using a doll and crayons and she would, she would go back and forth between pointing to her vagina and using the word butt." The police officer and an investigator with Child Protective Services (CPS) testified that the multidisciplinary group labeled the disclosures "inconclusive."
After the first interview, Barba filed a motion to suspend respondent's parenting time, which was denied. Respondent was instead awarded makeup parenting time from June 27, 2016, to July 10, 2016. When the children returned to Barba's care after this visit, MK again reported that respondent had hurt her. Because she had been instructed not to question the child, Barba asked MK to draw a picture. MK created a drawing of two individuals; one was lying on a bed, the other standing next to it. The standing figure's arm was reaching out and placed between the legs of the figure in repose.
MK was interviewed at Care House for a second time on July 13, 2016. During this interview, MK disclosed that respondent touched her "butt" and her "back butt." She talked about respondent using his fingers, specifically, "MK disclosed dad uses his fingers to touch the inside of her butt where she pees." MK explained to King that it hurt because respondent was putting a finger in her "butt." The day after the second Care House interview, and only a few days after spending two weeks with respondent, a forensic nurse examiner noted a .3 cm by .3 cm abrasion on MK's labia minora. The nurse explained that while she could not date the abrasion, it was a newer injury. Because of the isolated nature of the abrasion, the nurse ruled out the possibility that MK had suffered a straddle-type injury.
Petitioner then filed a petition seeking termination of respondent's parental rights based on MK's disclosure. Respondent pleaded no contest to the allegations in the petition, and the court took jurisdiction over the minor children. The hearing on the petition was adjourned several times over the next two years because of respondent's criminal matter related to the same allegations. On July 18, 2018, in exchange for the prosecutor's dismissal of two first-degree criminal sexual conduct charges, responded pleaded no contest to one count of felonious assault, MCL 750.82. He was sentenced to 36 months' probation, wearing a tether for one year, and was to have no contact with the minor children. Shortly after respondent entered his plea agreement, the court granted Barba's motion to change the children's domicile to Atlanta, Georgia, and temporarily granted Barba sole legal and physical custody. The termination hearing did not begin until February 2019.
II. STANDING
As an initial matter, we must address whether Barba, as the nonrespondent mother, has standing to appeal the order terminating respondent's parental rights. Barba was never a party to this case, and thus her parental rights were never at issue. Standing is "the right of a party plaintiff initially to invoke the power of the court to adjudicate a claimed injury in fact." Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 290; 715 NW2d 846 (2006). On December 23, 2019, respondent filed a motion to dismiss Barba's appeal, arguing that Barba lacked standing. This Court denied the motion without prejudice for further consideration by the case call panel, and allowed the parties to file a motion to file a supplemental brief, In re Kopczyk Minors, unpublished order of the Court of Appeals, entered January 29, 2020 (Docket No. 348999), which both parties did. After reviewing the supplemental briefs, we conclude that Barba lacks standing to bring this appeal.
MCR 3.977(J)(1)(a) provides that a "respondent" is entitled to appellate review of the order terminating his or her parental rights. The court rule provides no authority for a nonrespondent parent to appeal an order terminating another parent's rights. "Petitioner" is defined by the court rules as "the person or agency who requests the court to take action" in a child protective proceeding, MCR 3.903(A)(22), and a petition for termination may be requested by the agency, the child, "the guardian, legal custodian, or representative of the child," a concerned person as defined in MCL 712A.19b(6), the state children's ombudsman, or the prosecuting attorney, MCR 3.977(A)(2). Although a custodial parent has standing to petition for termination of the noncustodial parent's parental rights, In re Medina, 317 Mich App 219, 235-236; 894 NW2d 653 (2016), here, DHHS, not Barba, filed the petition to terminate respondent's parental rights. Thus, Barba was not a party to the proceedings, and her argument that it is irrelevant whether she or DHHS filed the petition is unpersuasive. She relies on MCR 3.903(A)(19)(b) to argue that she was a party to the proceedings. However, this court rule defines "party" as "petitioner, child, respondent, and parent, guardian, or legal custodian in a protective proceeding." MCR 3.903(A)(19)(b) (emphasis added). The children were represented by a lawyer-guardian ad litem, and no guardianship existed between Barba and the children. Although Barba is a parent, she undisputedly was not a respondent. Therefore, Barba's reliance on MCR 3.903(A)(19)(b) to assert that she was a party to the proceeding is misplaced; that rule precludes her from being considered a party. She was nothing more than a witness during the proceedings.
Proceedings to terminate parental rights are particular and specific to each parent. See In re Sanders, 495 Mich 394, 422; 852 NW2d 524 (2014) (the trial court must adjudicate each parent individually before interfering with their parental rights). In In re Terry, 240 Mich App 14, 20; 610 NW2d 563 (2000), the respondent mother argued on appeal that the trial court lacked jurisdiction to terminate her parental rights because one of the respondent fathers was not properly served with notice of the termination proceedings. This Court concluded that although failure to provide notice is a jurisdictional defect rendering the proceedings void, the respondent mother had no standing to challenge an order affecting only the respondent father. Id. at 21.
See also In re Smith, unpublished per curiam opinion of the Court of Appeals, issued February 9, 2016 (Docket No. 327986), pp 3-4 (the respondent mother lacked standing to appeal the order of adjudication regarding the respondent father because she was not an aggrieved party). Although unpublished decisions are not binding under the rule of stare decisis, MCR 7.215(C)(1), we nonetheless find this decision persuasive. Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 219 (2017).
Respondent [mother] does not challenge the validity of service on herself, nor does she argue that any defects in the service on [the respondent father] somehow affected her rights. Because notice of the proceedings involves a personal right belonging only to [the respondent father], respondent [mother] lacks standing to argue that service on [the respondent father] was defective. Any deficiency in the service on [the respondent father] affects only the family court's decision to terminate his parental rights. [Id.]
This leads our analysis to MCR 7.203(A), which provides this Court with jurisdiction over appeals as of right filed by an aggrieved party.
This Court has previously stated, "To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency." An aggrieved party is not one who is merely disappointed over a certain result. Rather, to have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court's power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case. [Federated Ins Co, 475 Mich at 291-292 (citations omitted).]
Barba's parental rights to MK and LK were not dependent on or altered by the trial court's decision to dismiss the petition to terminate respondent's parental rights. As noted above, Barba was not a respondent, nor was she the petitioner; DHHS filed the petition. Therefore, the trial court decision only implicated respondent's parental rights, and Barba suffered no individual, particularized injury as a result of the trial court's decision. In re Terry, 240 Mich App at 21; Federated Ins Co, 475 Mich at 291-292. Although she is a parent of the children, that alone does not grant her standing, MCR 3.903(A)(19)(b), and to the extent she seeks to gain standing through a representational interest with her children, that is the right of the GAL. Therefore, Barba lacks appellate standing. When this Court concludes that an appellant lacks standing, dismissal is appropriate. Federated Ins Co, 475 Mich at 288. Thus, Barba's appeal is dismissed.
We now turn to the merits of the DHHS appeal.
III. STATUTORY GROUNDS
In order to terminate parental rights, the trial court must find that at least one of the statutory grounds for termination has been established by clear and convincing evidence. In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). This Court reviews the trial court's findings under the clearly erroneous standard. MCR 3.977(K). A finding is clearly erroneous if, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). This Court "must defer to the special ability of the trial court to judge the credibility of witnesses." In re Medina, 317 Mich App at 227 (quotation marks and citation omitted).
The petition sought termination of respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), and (j). These statutory grounds permit termination of parental rights when the following conditions are satisfied.
(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:A parent's treatment of one child is probative of how the parent may treat another child. In re Foster, 285 Mich App 630, 631; 776 NW2d 415 (2009). Therefore, it is appropriate for a trial court to evaluate a respondent's potential risk to other siblings by analyzing how that respondent treated another child. In re Hudson, 294 Mich App 261, 266; 817 NW2d 115 (2011).
(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.
In asserting that the trial court erred in dismissing the petition to terminate respondent's parental rights, petitioner asserts that the trial court failed to consider all of the testimony, ignored the consistent testimony by MK, and failed to address whether respondent was financially able to provide proper care. Considering the record as a whole, and recognizing both the deference given to a trial court's credibility findings and the narrow standard of review, we conclude that the trial court did not clearly err in its determination that these grounds for termination were not established by clear and convincing evidence.
Before turning to the specific statutory grounds, we make a couple over-arching points. First, in making factual findings, trial courts are not required to articulate acceptance or rejection of all the evidence presented. Fletcher v Fletcher, 447 Mich 871, 884; 526 NW2d 889 (1994); MCR 2.517. Consistent with this well-known principle, the trial court here addressed certain witnesses' testimony, particularly the two experts and the child, but noted that its decision was "based on the evidence submitted at trial" after a "review of all the evidence." Thus, in determining whether clear and convincing evidence existed, all the evidence must be considered in reviewing the decision, not just that part of the evidence mentioned by the court.
Second, we must keep in mind the burden of proof placed upon petitioner—clear and convincing evidence—is the most demanding standard applied in civil cases, and is defined as evidence that "produce[s] 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 and citation omitted). Evidence that is clear may not be convincing, and here the trial court seemed to conclude that there was concern over whether MK was coached between the first Care House interview (that resulted in no finding of abuse) and the second one weeks later that did. That view of the evidence—which had support in the record—was in part guiding the court's review of the entire evidence.
The trial court did not clearly err when it determined that statutory grounds did not exist under MCL 712A.19b(3)(b)(i) and (j) because there was not clear and convincing evidence that the sexual abuse of MK by respondent occurred. MK consistently stated that respondent touched her vagina and anus. She said this during her Care House interviews, to her therapist, to the two expert witnesses, during the preliminary examination in respondent's criminal case, and during the termination hearing. But with the passage of time, there were major discrepancies in the details that affected MK's credibility and created some doubt about the occurrence of the events. The trial court noted these discrepancies in the opinion and order dismissing the petition to terminate, a credibility determination the trial court is entitled to make, and to which we must defer. In re Medina, 317 Mich App at 227. This was due, in part, to MK's inability to recall statements that she made during the Care House interviews and previous testimony, and her assertion that she was "mistaken" when asked about her previous statements. For instance, MK did not recall saying that respondent "scratched her private," and then said, "he didn't even scratch my private. I don't know what I was thinking." Additionally, respondent denied all of MK's allegations, and the court found respondent's testimony credible based in part on his psychological test results that he was a truth teller.
The court also found credible the testimony of Dr. Gerald Sheiner, a psychiatrist, and Dr. Patrick Ryan, a psychologist. See id. Although Dr. Sheiner never examined MK or respondent, he did review MK's testimony transcripts and concluded that MK's disclosures merely amounted to a parent assisting a small child with her bathroom needs. He further opined that MK incorporated a crayon into her narrative because she happened to be coloring during the forensic interviews. Dr. Ryan evaluated MK, respondent, and Barba. Regarding MK, Dr. Ryan performed three tests, the Rorschach test, the Robertson Picture test, and the Child Sexual Behavior Inventory ("CSBI"). The results of the CSBI revealed that MK endorsed a lot of sexualized behaviors that were unusual for a child her age. This result suggested some boundary crossing and an "area of concern that needs to be further addressed." However, we note that Dr. Ryan had Barba complete the CSBI on MK's behalf. Dr. Ryan observed some boundary crossing behavior in MK, specifically, that she tended to lean into him although he was a stranger. However, MK did not respond to the ink blot cards in the way that a sexually abused child typically would, and the Roberson Picture Test did not yield remarkable results. Dr. Ryan ultimately concluded that this was an "inconclusive situation" regarding the presence of sexual abuse; there was "a lot to argue that it's implausible," and "there is a lot to argue that it is plausible." Though there was other evidence the trial court could have relied upon, the trial court's reliance on the testimony Dr. Sheiner and Dr. Ryan was not clearly erroneous. People v Farrow, 461 Mich 202, 209; 600 NW2d 634 (1999).
Moreover, the trial court believed that MK's accusations of sexual abuse were manufactured with Barba's assistance. Although Barba denied any such coaching, the multidisciplinary team involved in the first Care House interview of MK determined that MK had not, in fact, made a disclosure of sexual abuse at that time. It was difficult for the forensic interviewer, King, to gather information from MK, and King developed an alternative hypothesis that nothing more than routine hygiene had occurred. King did not see any evidence of coaching in the first interview, but MK was more descriptive in the second, which King said could be a product of coaching. The other members of the multi disciplinary team and MK's therapist did not believe that MK had been coached.
Dr. Sheiner, however, believed that MK's recounting of her experiences, given during the interviews and two preliminary examination hearings, was contaminated by intervening events. Dr. Sheiner testified that MK said that she and Barba discussed "show and tell" in the context of preparing for the forensic interview, which Dr. Sheiner said was consistent with a child being coached or making reports contaminated by someone else feeding information. He believed that MK's recounting should have been consistent across all of her testimony and interviews. The differences could be caused by the method of questioning, or an intervening event, or coaching. He opined that MK's increase in details over time were most likely the product of contamination given her developmental stage, the way she responded, and how she incorporated concurrent activities in her reporting. Dr. Ryan testified that when MK disclosed to him that respondent touched her, she appeared to have an agenda. MK interrupted Dr. Ryan to relate certain details, indicating that she wanted to tell him. This suggested coaching. Dr. Ryan testified that there should not have been much difference between the first and second Care House interviews, and any difference would be the result of intervening factors such as conversations or communications with other people. He also noted that MK's testimony was more detailed during the preliminary examination, which suggested intervening factors.
Based on the ambiguities in the testimony by MK, it was not unreasonable for the trial court to question the credibility of her testimony, and find the testimony of the experts credible and persuasive, determinations to which we must defer. In re Medina, 317 Mich App at 227. The amount of conflicting evidence regarding whether MK was coached into making disclosures about alleged sexual abuse also demonstrates that the trial court did not clearly err in determining that statutory grounds were not established by clear and convincing evidence. In re Trejo, 462 Mich at 355. We are not left with a definite and firm conviction that the trial court made a mistake when it determined that it was not established by clear and convincing evidence that sexual abuse occurred, MCL 712a.19b(3)(b)(i), or that that there was a reasonable likelihood of harm if the children were to be returned to respondent's care, MCL 712A.19b(3)(j). MCL 712A.19b(3)(j) accounts for the risk of emotional harm as well as physical harm that a child could suffer if returned to a parent's care. In re Hudson, 294 Mich App at 268.
In In re Hudson, the respondent's parental rights to her children were terminated, in part, because she sexually abused a biological sibling of the children that she previously put up for adoption. Id. at 263. The Court determined that statutory grounds existed under MCL 712A.19b(3)(j) because the "[r]espondent's behavior will have lifelong and profound effects on her children as they come to grips with the fact that she was guilty of first-degree criminal sexual conduct with her own 14-year-old biological child." Id. at 268. Because there was not clear and convincing evidence that any sexual abuse occurred in this matter, we cannot say that the trial court clearly erred in determining that there was no reasonable likelihood of harm if the children are returned to respondent's care.
Lastly, there was not clear and convincing evidence that respondent failed to provide proper care or custody for the children, and there is no reasonable expectation that he would be unable to do so within a reasonable time. MCL 712A.19b(3)(g). The evidence is also conflicting in this regard, which does not leave us with a definite and firm conviction that the trial court made a mistake in determining that the statutory ground did not exist. In re Miller, 433 Mich at 337.
Barba testified that respondent stayed home to care for the children for 2½ years while Barba worked before the parties divorced. However, Barba relies on a photograph that respondent posted to Facebook in which he is naked, holding a naked MK wrapped in a towel, to question his parenting ability. Dr. Ryan was shown this picture, and initially testified that it appeared inappropriate, but was recalled to testify, and after speaking with respondent, was less concerned. Respondent said it was a picture to document his life as a stay-at-home dad. Barba testified that during the divorce proceedings, respondent had a job, but was not financially supporting the children. When he was not working, however, he cared for the children while Barba was at work. After the divorce was entered, respondent was in arrears on his child support obligations. Respondent testified that he lost his job after pleading to the felonious assault charge, and owed $10,000 in child support. At the time of the hearing, respondent worked as a pizza delivery man, and received financial support from his mother and friends.
The trial court also found compelling Dr. Ryan's observation that during the supervised visit between MK and respondent, the child appeared very comfortable with respondent. Respondent was appropriate with MK. Dr. Ryan noted MK's comfort level with respondent, but explained that this did not indicate, one way or the other, whether any boundaries were crossed. Dr. Ryan only noted MK's comfort level because in the event that reunification efforts were made, things usually went more smoothly with a child who is not resistant. Dr. Sheiner noted that MK reported being scared of respondent when he scowled, but she otherwise felt safe in his home. MK's positive feelings were inconsistent with negative feelings or a typical reaction to abuse. MK's therapist also testified that MK frequently talked about respondent, and expressed that she missed him. However, the therapist further explained that it was not unusual for a child to miss a parent even if that parent sexually abused them.
Based on this evidence, we cannot conclude that it was clearly erroneous for the trial court to find that clear and convincing evidence did not exist that respondent was unable to provide proper care and custody for the children, and there is no reasonable expectation that he could not do so within a reasonable time. MCL 712A.19b(3)(g). The burden of proof on petitioner is the highest in civil cases, and the trial court's view as to the ambiguous nature of the evidence supports its conclusion that clear and convincing evidence did not exist. Therefore, the trial court did not clearly err when it determined that statutory grounds were not proven by clear and convincing evidence under MCL 712A.19b(3)(g).
IV. CONCLUSION
We point out that this was a close case based on the varying evidence, and that the question for this Court is not how we would rule in the first instance. Clearly, reasonable minds could decide this case in different ways. Our duty is instead to review the trial court's findings within the proper—and limited—standards of review.
Thus, we have no quarrel with our dissenting colleague. The difference between our opinion and the dissent comes down to our deference to the trial court's overall findings, which have support in the evidence, and the entire record evidence. Additionally, we point out that, although MK's testimony and that of the Care House staff (whose testimony about the lack of confirmation of abuse after the first interview provided support for the trial court's conclusions) and experts provided significant evidence, the trial court noted that its decision was based upon all of the evidence presented. And, as we hope to have explained, the lack of concrete evidence in support of the petition requires, under the stringent standards applicable here and in the trial court, affirmance of the trial court's opinion. --------
As we have emphasized, the trial court's ruling was premised on its finding that MK did not remember or was mistaken regarding statements she made in previous interviews, and that the experts' testimony was compelling. The trial court relied on Dr. Sheiner's opinion that MK's memories were "contaminated," and Dr. Ryan's belief there was a "great deal of doubt" about the situation. Indeed, when considering the trial court's conclusion about the consistency of MK's testimony, the expert's summation that what actually occurred (actual abuse or coaching) was ambiguous, and the fact that 13 witnesses supplied evidence—and not just MK and the experts—a court would be hard pressed to find clear and convincing evidence either way. And, ultimately, that is what the trial court ruled. We accord deference to the special opportunity the trial court has to judge the credibility of the witnesses. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). Clear error is present when, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich at 337. We conclude that the trial court did not clearly err because there was not clear and convincing evidence that MK had been sexually victimized by respondent. Therefore, statutory grounds were not established by clear and convincing evidence under MCL 712A.19b(3)(b)(i) and (j). Nor did the trial court clearly err in concluding that there was not clear and convincing evidence that respondent failed to provide proper care and custody, or would not be able to do so in the future. MCL 712A.19b(3)(g).
We dismiss Barba's appeal in Docket No. 348999, and affirm the trial court order dismissing the petition to terminate respondent's parental rights.
/s/ Christopher M. Murray
/s/ Jonathan Tukel