Opinion
No. 336138 No. 336139
07-18-2017
In re LUTTON, Minors.
UNPUBLISHED Wayne Circuit Court Family Division
LC Nos. 16-522724-NA; 16-522722-NA Before: MURPHY, P.J., and TALBOT, C.J., and O'CONNELL, J. PER CURIAM.
These cases involve respondent S. Lutton's parental rights to six of his children. In Docket No. 336138, the trial court entered an order terminating respondent's parental rights to his children DCL and JML under MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix). In Docket No. 336139, the trial court entered an order terminating respondent's parental rights to his children RNL, SRL, DLL, and SAL under the same statutory grounds. Respondent appeals both orders as of right. We previously consolidated the appeals. We now affirm.
In re Lutton Minors, unpublished order of the Court of Appeals, entered March 22, 2017 (Docket Nos. 336138; 336139).
I. FACTS
Respondent was charged with multiple counts of criminal sexual conduct (CSC) against his daughters RNL, SRL, and SAL. Petitioner then filed a petition for permanent custody in each case, asking the trial court to remove the children from respondent's home and terminate respondent's parental rights. The trial court authorized the petitions, placed the children with their respective biological mothers, and proceeded to adjudication.
At the adjudication hearing, respondent pleaded no contest to the allegations in the petition. On the basis of his plea, the trial court concluded that the children came within the court's jurisdiction and that it had clear and convincing evidence of statutory grounds to terminate respondent's parental rights to all six children.
The trial court then held a hearing to determine whether termination was in the children's best interests. The trial court determined that termination was in each child's best interest and entered two orders terminating respondent's parental rights to all six children.
II. STANDARDS OF REVIEW
"We review de novo the interpretation and application of statutes . . . ." In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010).
We review for clear error the trial court's factual findings, id., determinations regarding the statutory grounds for termination, id., and determinations regarding a child's best interests, In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). A finding is clearly erroneous if we have "a definite and firm conviction that a mistake has been committed." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
III. STATUTORY GROUNDS
Respondent argues that the trial court clearly erred in terminating his parental rights to all six children because the state did not meet its high burden to prove that termination was warranted in light of his due process right to care for his children. We disagree.
A "parent's right to control the custody and care of h[is] children is not absolute." In re Sanders, 495 Mich 394, 409; 852 NW2d 524 (2014). "[T]he state has a legitimate interest in protecting the moral, emotional, mental, and physical welfare of . . . minor[s] and in some circumstances neglectful parents may be separated from their children." Id. at 409-410 (quotations and citations omitted). The juvenile code, MCL 712A.1 et seq., outlines a procedure that can be used to terminate parental rights. Under this procedure, the petitioner must prove by clear and convincing evidence that there is at least one statutory ground under MCL 712A.19b(3) to terminate parental rights. In re Foster, 285 Mich App 630, 634-635; 776 NW2d 415 (2009).
In this case, the trial court found statutory grounds to terminate respondent's parental rights on the basis of respondent's no contest plea to the allegations in the permanent custody petitions. The petitions alleged that respondent inappropriately touched RNL, SRL, and SAL, constituting sexual abuse, and was charged with one count of CSC I and six counts of CSC II. The petitions asked the trial court to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix), which provide:
Respondent cites no authority to support his argument that the trial court could not terminate his parental rights until his criminal case was completed. Therefore, he abandoned the argument. See MCR 7.212(C)(7); VanderWerp v Plainfield Charter Twp 278 Mich App 624, 633; 752 NW2d 479 (2008). --------
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
The trial court stated that it found clear and convincing evidence of statutory grounds to terminate respondent's parental rights due to the statements of sexual abuse.
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(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.
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(g) The parent, without regard to intent, 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.
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(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.
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(k) The parent abused the child or a sibling of the child and the abuse included 1 or more of the following:
(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
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(ix) Sexual abuse as that term is defined in section 2 of the child protection law, 1975 PA 238, MCL 722.622.
Respondent's argument that the state failed to meet its burden to prove statutory grounds to terminate his parental rights fails because he already pleaded no contest to allegations of statutory grounds to terminate his parental rights based on alleged sexual abuse. See In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). "Respondent may not assign as error on appeal something that [he] deemed proper in the lower court because allowing [him] to do so would permit respondent to harbor error as an appellate parachute." Id.
Further, the trial court did not clearly err in finding statutory grounds to terminate respondent's parental rights because the trial court had clear and convincing evidence to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(k)(ix). Subsection (k)(ix) defines sexual abuse as "sexual contact" "with a child," MCL 722.622(z), meaning "the intentional touching of the victim's or actor's intimate parts" that "can reasonably be construed as being" done for "a sexual purpose," "sexual arousal," or sexual "gratification," MCL 750.520a(q). The petitions allege that respondent "touched and kissed" RNL's vagina and made SAL "rub his legs." A Child Protective Services report, which the trial court relied upon for the basis of respondent's no contest plea, states that SRL reported that respondent "h[e]ld her breast and rub[bed] her private area," and SAL reported that respondent "rubbed her private area." RNL, SRL, and SAL are all respondent's children, DCL, JML and DLL are the girls' siblings, and respondent's acts constitute sexual abuse. Therefore, we do not have a definite and firm conviction that the trial court erred when it found statutory grounds to terminate respondent's parental rights pursuant to subsection (k)(ix), and the trial court only needed to find clear and convincing evidence of one statutory ground to terminate respondent's parental rights. See In re Foster, 285 Mich App at 634-635.
IV. BEST INTERESTS
Respondent also argues that the trial court clearly erred when it found that termination of his parental rights was in the best interests of his six children. We disagree.
Once the trial court finds clear and convincing evidence of a statutory ground to terminate parental rights, "a parent's interest in the care and custody of his or her child[ren] yields to the state's interest in the protection of the child[ren]." Id. If the petitioner then proves by a preponderance of the evidence that termination is in each child's best interests, the trial court must order termination of parental rights. MCL 712A.19b(5); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); In re Olive/Metts Minors, 297 Mich App 35, 42; 823 NW2d 144 (2012). In considering whether termination is in a child's best interests, the trial court should consider many factors, including "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," In re White, 303 Mich App at 713-714 (quotations and citation omitted), and "the likelihood that 'the child could be returned to [his or] her parent['s] home within the foreseeable future,' " In re Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015), quoting In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012).
Here, the trial court did not clearly err in determining that termination of respondent's parental rights was in each child's best interests. The trial court concluded that all the children needed permanency and found that respondent was facing a lengthy prison sentence if convicted in his criminal case. It explained that the sexual abuse could have a "long lasting" effect on "any other plan or a treatment plan" and would subject the children to fear or to a constant reminder of what has happened. The trial court found no significant parental bond between RNL, SRL, DLL, SAL, and respondent. It concluded that termination was in RNL, SRL, and SAL's best interests because they suffered from respondent's sexual abuse. It further concluded that termination was in DCL, JML, and DLL's best interests in light of the sexual abuse "inflicted on their siblings" and because they did not want contact with respondent. Therefore, we do not have a definite and firm conviction that the trial court erred when determining that termination was in each child's best interests.
The children's placement with their respective biological mothers does not change this conclusion. The trial court must consider whether each child is placed with a relative, a factor that weighs against termination. In re Olive/Metts, 297 Mich App at 43. However, a biological parent is not considered a relative for this purpose. In re Schadler, 315 Mich App 406, 413; 890 NW2d 676 (2016). Nonetheless, the trial court explicitly considered the fact that the children were placed with their respective biological mothers and still determined by a preponderance of the evidence that termination was in their best interests due to the sexual abuse.
We affirm.
/s/ William B. Murphy
/s/ Michael J. Talbot
/s/ Peter D. O'Connell