Opinion
No. 334959
04-18-2017
In re L. H. MARTINEZ, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 16-522668-NA Before: SAWYER, P.J., and SAAD and RIORDAN, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court order terminating his parental rights to his daughter, LM, under MCL 712A.19b(3)(b)(i) (parent's act caused injury or physical or sexual abuse to child or a sibling), (g) (failure to provide proper care and custody), (j) (reasonable likelihood of harm), and (k)(ii) (parental abuse of child or sibling involving criminal sexual conduct related to penetration). We affirm.
I. FACTUAL BACKGROUND
This case arises out of a referral to Child Protective Services ("CPS") regarding improper supervision of three children, including respondent's daughter, LM, by their mother. During the course of the investigation, CPS determined that there had been a prior substantiated allegation that respondent, respondent-mother's boyfriend, had sexually abused LV, LM's half-sister. Additionally, there had been an unsubstantiated allegation that respondent had sexually abused LM.
Her parental rights are not at issue in this appeal. However, because she was a respondent in the child protective proceedings giving rise to this appeal, we will refer to her as "respondent-mother" in this opinion. We will not discuss any of the allegations or procedural history solely related to respondent-mother.
In April 2016, petitioner, the Department of Health and Human Services ("DHHS"), filed a petition seeking, inter alia, to terminate respondent's parental rights to LM. The petition stated detailed allegations regarding CPS' investigation and substantiation of claims that respondent sexually abused LV in 2012 and its subsequent investigation of a claim that respondent sexually abused LM in May 2013. The petition also alleged that respondent-mother admitted that she allowed LM to visit respondent despite the fact that CPS had substantiated the allegations of sexual abuse involving LV. Accordingly, petitioner requested that the trial court exercise jurisdiction over LM pursuant to MCL 712A.2(b)(1) and (2) and terminate respondent's parental rights to LM under MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix). An amended petition was filed a few days later, which included identical allegations. The trial court authorized the petition after a preliminary hearing.
The trial court held a bench trial in June 2016. With regard to respondent's adjudication, petitioner presented testimony from LV; Laura Boros, a limited licensed psychologist who provided therapy to LV; and Tiffany Pitts, a CPS specialist for DHHS. Pitts and Boros provided testimony regarding LV's descriptions of the sexual abuse as well as other matters. Petitioner also introduced medical records from Children's Hospital concerning LV, which included statements that LV had made to a doctor that respondent had vaginally penetrated her; medical records from the Kids-TALK Children's Advocacy Center concerning LM; a DVD recording of a Kids-TALK interview with LV, during which she described the sexual abuse; and the children's birth certificates.
Additionally, LV's father briefly testified. In providing a factual basis for her plea of admission to allegations in the petition, respondent-mother testified that respondent picked up then two-year-old LM from a babysitter in May 2013. After retrieving the child from respondent, respondent-mother changed LM's diaper and noticed redness in her vaginal area. Respondent-mother took LM to a doctor soon afterward because of this redness.
Most significantly, LV, who was 11 years old at the time of the trial, testified in graphic detail that respondent had touched her vagina and vaginally penetrated her while her mother was at work on several occasions. She was in third grade during the first incident of abuse, and respondent was living in LV's home at the time. LV also testified that respondent made her watch "sexual movies" before he touched her, and she provided detailed descriptions of the content that she watched. When she attempted to leave during one of the movies, respondent grabbed her hair, threw her on the floor, and started to hit her. She similarly testified that if she did not want to participate in the sexual acts, respondent would "grab [her], or throw [her], or hit [her] . . . ." Respondent sometimes hit her with his hand and sometimes with a belt, leaving welts on her body.
LV also testified that respondent made her put "his thing" in her mouth on more than one occasion. She described instances when respondent attempted to have anal intercourse with her and hit her when she yelled because of the pain. She testified that she noticed "a little drop of blood" coming out of her "private part" each time she used the restroom afterward. According to LV, respondent threatened that he would kill her family if she told anyone about the abuse.
At the end of the bench trial, the trial court found that respondent "repeatedly raped [LV]." Based on the doctrine of anticipatory neglect, the trial court concluded that there was sufficient evidence to exercise jurisdiction over LV pursuant to MCL 712A.2(b)(1) and (2). The trial court also found that petitioner had proven, by clear and convincing evidence, a statutory basis to terminate respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii).
The trial court held a separate best-interest hearing in August 2016, at which time petitioner presented additional testimony from Pitts. At the end of the hearing, the trial court noted that LM was placed with a relative, but found that termination of respondent's parental rights was in the best interests of LM because it "believe[d] that the risk of harm to [LM] would be to[o] great . . . to justify maintaining the parental rights of [respondent]," "basically based on the prior finding that [it] made." Accordingly, it entered an order terminating respondent's parental rights.
II. PROCEDURAL ERROR
Respondent first argues that the trial court erred by failing to conduct two separate hearings, an adjudication to determine whether jurisdiction was proper under MCL 712A.2(b) and a dispositional hearing to terminate respondent's parental rights. We disagree.
A. STANDARD OF REVIEW
Because respondent failed to object to the procedure used by the trial court in this case, this unpreserved issue is reviewed for plain error affecting respondent's substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).
Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings. When plain error has occurred, [r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence. [Id. at 9 (quotation marks and citations omitted; alterations in original).]
B. ANALYSIS
As respondent emphasizes, "[c]hild protective proceedings have long been divided into two distinct phases: the adjudicative phase and the dispositional phase." In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006). The adjudicative phase occurs before the dispositional phase, and it "involves a determination whether the trial court may exercise jurisdiction over the child, i.e., whether the child comes within the statutory requirements of MCL 712A.2(b)." Id. at 536. During the adjudication, "a trial may be held to determine whether any of the statutory grounds alleged in the petition have been proven," or a respondent may enter a plea of admission or of no contest to the allegations in the petition. Id. at 536, 536 n 2. If one or more of the statutory grounds alleged in the petition are proven, the trial court acquires jurisdiction over the child, and "the dispositional phase follows." Id. at 536. "The dispositional phase involves a determination of what action, if any, will be taken on behalf of the child." Id. at 537. As long as several conditions are fulfilled, a trial court may terminate parental rights at the initial dispositional hearing. Id. at 537-538.
Pursuant to MCR 3.973(A), a dispositional hearing must "be conducted to determine what measures the court will take with respect to a child properly within its jurisdiction[.]" In re AMAC, 269 Mich App at 538 (quotation marks and citation omitted). In In re AMAC, the trial court improperly held an "adjudicative hearing that concluded with the trial court rendering its written opinion and order terminating respondent's parental rights without a dispositional hearing either immediately following the trial or by proper notice after the trial." Id. at 538; see also In re Thompson, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 333294); slip op at 3 (recognizing that even though a dispositional hearing may be conducted immediately after an adjudicative hearing, "the two [cannot] be converged such that there [is] no distinction").
The instant case is distinct from In re AMAC. In that case, we reasoned:
The dispositional phase is particularly important when permanent termination of parental rights is sought and the respondent entered a plea of admission or a plea of no contest, or when one of the statutory grounds for termination is clearly and convincingly established during the adjudicative phase, because it provides the respondent with an opportunity to persuade the court that, although a statutory ground for termination is met, termination is not in the best interests of the child. See In re Trejo, 462 Mich 341, 356, 612 NW2d 407 (2000). This case presents that situation. . . . Without a dispositional hearing, a respondent is denied the opportunity to present evidence that was not admissible or relevant in the adjudicative phase of the proceeding in an attempt to prove that termination is clearly not in the child's best interests, a right and protection granted by MCL 712A.19b(5). See In re Trejo, supra at 356. That is, in fact, what happened in this case despite respondent's counsel's and the guardian ad litem's repeated references to a future "best interests" hearing, the expectation of which was not debunked by the trial court. [In re AMAC, 269 Mich App at 538-539 (emphasis added; footnote omitted).]Here, however, the trial court did not terminate parental rights before there was a best-interests hearing. Consistent with its ruling on the record, the court entered an order on June 27, 2016, finding that it could exercise jurisdiction over the child pursuant to MCL 712A.2(b)(1) and (2) and that a statutory basis for termination of respondent's parental rights had been established, by clear and convincing evidence, under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii). It is clear from the order as well as the trial court's statements on the record that it did not terminate respondent's parental rights or otherwise enter an order of disposition at that time. Instead, it later conducted a best-interests hearing on August 10, 2016. At the end of that hearing, the trial court concluded that termination was in LM's best interests. Accordingly, it entered an order stating its best-interest determination and terminating respondent's parental rights on September 16, 2016.
The citation to the statute in the order includes typographical errors.
The concerns implicated in In re AMAC, 269 Mich App at 538-539, are not present here. In effect, the trial court held separate adjudication and dispositional hearings, even though it made findings regarding the statutory grounds for termination following the adjudicative trial. Respondent has failed to establish a plain error affecting his substantial rights. See In re Utrera, 281 Mich App at 8-9.
III. EVIDENTIARY ERRORS
Respondent contests the admission of several categories of evidence during the bench trial. He also contends that his attorney provided ineffective assistance when she failed to object to this evidence. We conclude that reversal of the order terminating his parental rights is not warranted on these grounds.
A. STANDARD OF REVIEW AND APPLICABLE LAW
Our review of the record reveals that all of respondent's evidentiary errors are either unpreserved or waived. As previously mentioned, unpreserved errors are reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App at 8. We generally will not review waived issues, as "waiver has extinguished any error." People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks and citation omitted); see also 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 h[im] to do so would permit respondent to harbor error as an appellate parachute."). However, counsel's failure to object may serve as the basis for an ineffective assistance of counsel claim.
To preserve an issue pertaining to the admissibility of evidence for appellate review, the "party opposing the admission of evidence must timely object at trial and specify the same ground for objection that it asserts on appeal." In re Weiss, 224 Mich App 37, 39; 568 NW2d 336 (1997); see also MRE 103(a)(1); People v Knox, 469 Mich 502, 508; 674 NW2d 366 (2004); People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). A party's affirmative statement that it has no objection to the admission of evidence constitutes a waiver. People v Kowalski, 489 Mich 488, 504-505; 803 NW2d 200 (2011); People v McDonald, 293 Mich App 292, 295; 811 NW2d 507 (2011).
When we review an ineffective assistance of counsel claim in a termination of parental rights case, we apply by analogy the principles that have been developed in the criminal law context. In re CR, 250 Mich App 185, 197-198; 646 NW2d 506 (2001), overruled on other grounds by In re Sanders, 495 Mich 394; 852 NW2d 524 (2014). Because respondent failed to raise an ineffective assistance of counsel claim in an appropriate motion or request an evidentiary hearing in the trial court, our review is limited to errors apparent from the record. People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). "To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice." People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013). "To demonstrate prejudice, a defendant must show the probability that, but for counsel's errors, the result of the proceedings would have been different." Id. "Effective assistance of counsel is presumed, and defendant bears a heavy burden to prove otherwise." People v Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004).
B. ANALYSIS
Respondent challenges the admission of four categories of evidence: (1) a Kids-TALK DVD including a recorded interview of LV; (2) medical records pertaining to LV, (3) Boros' testimony regarding LV's statements, the statements of others, and the fact that LV's symptoms were consistent with those of an abused child; and (4) Pitts' testimony regarding LV's statements, including Pitts' conclusion that LV's testimony at trial was consistent with statements that LV made during a forensic interview. We will address the trial court's admission of the Kids-TALK DVD after we consider the other evidence.
During the adjudicative phase of child protective proceedings, only legally admissible evidence is permitted. See MCR 3.972(C); In re Sanders, 495 Mich at 405; In re Gillam, 241 Mich App 133, 136; 613 NW2d 748 (2000). Additionally, if the petitioner seeks termination at the initial disposition, as in this case, the court's termination decision must be based on legally admissible evidence. MCR 3.977(E)(2), (3).
Respondent's primary claim with regard to this evidence is that petitioner made "no effort to seek admission under MCR 3.972(C)(2)(a) of any statements made by [LV] to the CPS worker, to respondent[-]mother, to medical personnel who had examined the child, or to the child's therapist." Respondent's claim is misplaced. Petitioner was not required to seek admission of this evidence under MCR 3.972(C)(2)(a), which provides a nonexclusive basis for admission. Rather, MCR 3.972(C)(1) expressly states, "Except as otherwise provided in these rules, the rules of evidence for a civil proceeding and the standard of proof by a preponderance of evidence apply at the trial, notwithstanding that the petition contains a request to terminate parental rights." (Emphasis added.) Thus, we reject respondent's claim.
Furthermore, to the extent that respondent contends that this evidence was inadmissible for other reasons, respondent's claims are unpreserved, and he has failed to demonstrate the requisite prejudice. See In re Utrera, 281 Mich App at 8-9. Significantly, when the court provided its findings on the record, it said that it believed that "the key witness was [LV]." It also expressly stated that its findings were based on its conclusion that LV testified "credibly" and "truthfully," noting that it heard her testimony on the stand and reviewed the Kids-TALK interview. Respondent provides no argument explaining how he was prejudiced by LV's medical records, Boros' testimony, and Pitts' testimony. Rather, he only states, in the context of his ineffective assistance of counsel claim, that "[a]ll of these errors show that . . . [r]espondent was prejudiced and denied a fair trial." Given the trial court's statements on the record, it is clear that it would have come to the same conclusion even if this evidence had been excluded. Thus, respondent has failed to demonstrate a plain error affecting his substantial rights, see In re Utrera, 281 Mich App at 8, and we reject his ineffective assistance of counsel claim for the same reasons, see Nix, 301 Mich App at 207.
Furthermore, to the extent that respondent suggests that this evidence was otherwise inadmissible, most of these claims are abandoned, as he only has provided, at most, cursory arguments with no citation of legal authority. See In re ASF, 311 Mich App 420, 440; 876 NW2d 253 (2015) (stating that a "cursory argument, made without citation to relevant authority or application of the law to the facts, is insufficiently briefed, and . . . consider[ed] . . . abandoned").
Although he argues that the trial court improperly relied on the Kids Talk DVD, which we address later in this opinion, he does not make a similar argument with regard to the other evidence that he contests on appeal.
Next, we turn to respondent's challenges to the admission of the Kids-TALK DVD. Respondent's sole avenue to challenge the admission of this evidence is through an ineffective assistance of counsel claim, as he failed to preserve this claim by objecting to its admission on the same ground asserted on appeal, see MRE 103(a)(1); In re Weiss, 224 Mich App 37, 39; 568 NW2d 336 (1997), and, more importantly, counsel waived this claim by stating that she had "no argument" against the trial court's admission of the DVD at the beginning of the trial.
At the pretrial motion hearing, respondent's counsel objected to the admission of the Kids-TALK DVD solely on the basis that "it [is] sort of unusual to have both . . . the video and the child's testimony and it would seem that her testimony now, today, or at trial I mean would be the better route to go." The trial took the matter under advisement at the end of the motion hearing. At the beginning of the bench trial, the court entertained additional arguments concerning the admission of the DVD. After hearing the arguments of petitioner's counsel and the child's attorney-guardian ad litem, respondent's counsel stated, "I have no argument after hearing the case[.] I'll defer to the Court's judgment."
We agree with respondent that his counsel's failure to object to the admission of the Kids-TALK DVD at trial fell below an objective standard of reasonableness. See Nix, 301 Mich App at 207. Michigan law clearly provides that a child's recorded forensic interview is not admissible during the adjudicative phase. MCL 712A.17b(5); MCR 3.972(C)(2)(a); In re Martin, 316 Mich App 73, ___; ___ NW2d ___ (2016) (Docket Nos. 330231, 330232); slip op at 3; In re Brown/Kindle/Muhammad Minors, 305 Mich App 623, 632; 853 NW2d 459 (2014). "MCR 3.972(C)(2)(a), which expressly applies to adjudication trials, and MCL 712A.17b, which expressly does not apply to the adjudication stage, work in tandem." In re Martin, 316 Mich App 73, ___; slip op at 4. MCR 3.972(C) provides, "Any statement made by a child under 10 years of age . . . regarding an act of child abuse, child neglect, sexual abuse, or sexual exploitation . . . may be admitted into evidence through the testimony of a person who heard the child make the statement as provided in this subrule." MCR 3.972(C)(2)(a) further states that the "statement describing such conduct may be admitted regardless of whether the child is available to testify or not, and is substantive evidence of the act or omission if the court has found, in a hearing held before trial, that the circumstances surrounding the giving of the statement provide adequate indicia of trustworthiness." MCR 3.972(C)(2)(a). MCL 712A.17b(5) provides:
A custodian of the videorecorded statement may take a witness's videorecorded statement. The videorecorded statement shall be admitted at all proceedings except the adjudication stage instead of the live testimony of the witness. The videorecorded statement shall state the date and time that the statement was taken; shall identify the persons present in the room and state whether they were present for the entire videorecording or only a portion of the
videorecording; and shall show a time clock that is running during the taking of the statement. [Emphasis added.]
In In re Martin, 316 Mich App at ___; slip op at 3-4, we held that the trial court erred when it substantively considered a DVD of a recorded interview with a child to adjudicate the respondent. Similarly, the trial court admitted the DVD as substantive evidence during the adjudication in this case. Because it was clearly erroneous for the court to do so, respondent's attorney's failure to object fell below an objective standard of reasonableness. See Nix, 301 Mich App at 207.
However, respondent has, again, failed to demonstrate the requisite prejudice. The gravamen of respondent's claim is that "the trial court substantively used the DVD, in and of itself[,] to adjudicate respondent-father." In In re Martin, 316 Mich App at ___; slip op at 4, we explained:
[A] videorecorded statement taken in compliance with MCL 712A.17b must be admitted at a tender-years hearing and can be used by the trial court to assess whether a proposed witness who took the videorecorded statement should be permitted to testify at trial about the statement, i.e., to assess whether "the circumstances surrounding the giving of the statement provide[d] adequate indicia of trustworthiness." MCR 3.972(C)(2)(a). The problem in the instant case is that the forensic interviewer did not testify at trial with respect to the child's statements made in the interview. The trial court did not employ the DVD to determine whether the forensic interviewer should be allowed to testify under MCR 3.972(C)(2)(a). Rather, the trial court substantively used the DVD, in and of itself, to adjudicate respondent-father. [Emphasis added.]Later, we further reasoned:
Because adjudication in relation to respondent-father was determined solely on the basis of the DVD, we must reverse the order of adjudication and the order terminating his parental rights, which flowed from the adjudication order. We remand for new adjudication proceedings in compliance with MCR 3.972(C)(2)(a) and other applicable law in regard to the pending authorized termination petition concerning respondent-father. [Id. at ___; slip op at 5 (emphasis added).]
Unlike in In re Martin, and other unpublished cases, where reversal of a trial court's finding of jurisdiction was required based on the court's exclusive reliance on a forensic interview recording to adjudicate the respondent, the trial court in this case specifically relied on LV's in-court testimony, which it found "credibl[e]" and "truthful[]," in determining whether it had jurisdiction over the child. A trial court shall exercise jurisdiction over the child if petitioner proves one or more of the statutory bases for jurisdiction alleged in the petition by a preponderance of the evidence. MCR 3.972(C), (E); In re Sanders, 495 Mich at 405. The preponderance of the evidence "standard means the evidence must persuade the fact-finder that it is more likely than not that the proposition is true." Miller-Davis Co v Ahrens Const, Inc (On Remand), 296 Mich App 56, 71; 817 NW2d 609 (2012), rev'd in part on other grounds 495 Mich 161 (2014). Given the trial court's unequivocal finding that LV's in-court testimony was credible, which described in extensive detail sexual abuse perpetrated by respondent, there is no indication that the trial court would have concluded that petitioner had failed to establish a statutory basis for jurisdiction under the preponderance of the evidence standard if the DVD had been excluded.
Thus, respondent has failed to establish that there is a "probability that, but for counsel's errors," the result of the adjudication would have been different. Nix, 301 Mich App at 207. Reversal of the adjudication is not warranted.
IV. BASIS OF JURISDICTION
Respondent contests the trial court's finding of jurisdiction over the child on several grounds. For the reasons previously discussed, we disagree that reversal is warranted to the extent that the trial court considered the Kids-TALK DVD in adjudicating respondent. Respondent also asserts that the trial court erred when it applied the doctrine of anticipatory neglect to the facts of the case. See In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001); In re LaFlure, 48 Mich App 377; 210 NW2d 482 (1973). We disagree.
Specifically, respondent contends "that anticipatory neglect does not mandate a finding of neglect," and the doctrine should not have been applied here because "there was no substantiated abuse as to [LM]." He also argues that application of the doctrine was inappropriate in this case because respondent's visits with LM since May 2013 had been supervised. We reject respondent's claims.
"The doctrine of anticipatory neglect recognizes that '[h]ow a parent treats one child is certainly probative of how that parent may treat other children.' " In re AH, 245 Mich App at 84, quoting In re LaFlure, 48 Mich App at 392. The doctrine applies even where abuse is directed at a child other than the respondent's own child. In re Powers, 208 Mich App 582, 592-593; 528 NW2d 799 (1995), superseded by statute on other grounds as stated in In re Jenks, 281 Mich App 514, 518 n 2; 760 NW2d 297 (2008). Contrary to respondent's claims, "[a] child may come within the jurisdiction of the court solely on the basis of a parent's treatment of another child. Abuse or neglect of the second child is not a prerequisite for jurisdiction of that child and application of the doctrine of anticipatory neglect." In re Gazella, 264 Mich App 668, 680-681; 692 NW2d 708 (2005) (emphasis added), superseded in part on other grounds as stated in In re Hansen, 285 Mich App 158, 163; 774 NW2d 698 (2009), vacated on other grounds 486 Mich 1037 (2010). Moreover, any evidence that respondent only had supervised visits or limited contact with LM does not make the trial court's finding of jurisdiction improper given the applicable law. As previously discussed, the record includes—at the very minimum—a preponderance of evidence supporting the trial court's finding that its exercise of jurisdiction over LM was proper based on respondent's repeated sexual abuse of LV. See MCR 3.972(C), (E); In re Sanders, 495 Mich at 405.
Respondent has failed to demonstrate that the trial court's exercise of jurisdiction was improper.
V. STATUTORY GROUNDS FOR TERMINATION
Respondent next argues that the trial court erred when it found that statutory grounds for termination of his parental rights had been proven by clear and convincing evidence. We disagree.
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 NW2d 61 (2014). "A decision qualifies as clearly erroneous when, '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 Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009), quoting In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003). A clearly erroneous decision must be "more than just maybe or probably wrong." In re Williams, 286 Mich App at 271. We must give due regard "to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
B. ANALYSIS
In order to terminate parental rights, the trial court must find that a statutory basis for termination under MCL 712A.19b(3) has been established by clear and convincing evidence. In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). The trial court found a statutory basis for terminating respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii).
Respondent argues that the trial court erred because there was no substantiated abuse against LM. To terminate a respondent's parental rights under MCL 712A.19b(3)(b)(i), the trial court must find, in relevant part, that a sibling of the child has suffered sexual abuse perpetrated by the respondent, and that it is reasonably likely that the child will suffer abuse in the foreseeable future if placed in the respondent's home. To terminate a respondent's parental rights under MCL 712A.19b(3)(k)(ii), the trial court must find, in relevant part, that the respondent abused a sibling of the child, and the abuse included "[c]riminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate." A sibling includes a child's half-sibling. In re Hudson, 294 Mich App 261, 265-66; 817 NW2d 115 (2011).
Here, there is ample evidence from LV's testimony regarding the sexual abuse, as well as Boros's testimony regarding LV's description of the incidents and LV's statements in the medical records, that respondent sexually abused LV on multiple occasions, including instances of penetration and attempted penetration. Again, the trial court expressly stated that it found LV's testimony credible, and we must give due regard to the trial court's credibility determinations. In re Ellis, 294 Mich App at 33. In addition, under the doctrine of anticipatory neglect, the trial court properly considered the fact that " '[h]ow a parent treats one child is certainly probative of how that parent may treat other children.' " In re AH, 245 Mich App at 84, quoting In re LaFlure, 48 Mich App at 392. Accordingly, the record includes clear and convincing evidence that "there is a reasonable likelihood that [LM] will suffer from injury or abuse in the foreseeable future if placed in the parent's home." MCL 712A.19b(3)(b)(i).
Boros' testimony regarding LV's statements was admissible under MRE 803(4). See People v Meeboer, 439 Mich 310, 322-325, 329; 484 NW2d 621 (1992). LV's statements in the medical records also were admissible under MRE 803(4).
Although the trial court declined to make a finding of sexual abuse based on the evidence that LM returned from respondent's care with a vaginal abrasion and redness, this evidence provides further support for the trial court's finding of a reasonable likelihood that the LM will face injury or abuse if placed in respondent's care. MCL 712A.19b(3)(b)(i). --------
Thus, the trial court did not clearly err in finding that petitioner had proven a statutory ground for termination under MCL 712A.19b(3)(b)(i). For the same reasons, the trial court did not clearly err when it found a statutory basis for termination under MCL 712A.19b(k)(ii). Because "[o]nly one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights," In re Ellis, 294 Mich App at 32, we need not separately consider whether the trial court properly terminated respondent's parental rights under the other subsections.
VI. BEST INTERESTS
Lastly, respondent argues that the trial court erred in finding that termination of his parental rights was in LM's best interests. We disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
Pursuant to MCL 712A.19b(5), "[t]he trial court must order the parent's rights terminated if the [petitioner] has established a statutory ground for termination by clear and convincing evidence and it finds from a preponderance of the evidence on the whole record that termination is in the child['s] best interests." In re White, 303 Mich App at 713 (footnotes omitted). We review for clear error a trial court's best-interest determination. Id., citing MCR 3.977(K).
When it makes a best-interest determination, the trial court should weigh all available evidence, id., and the trial court's focus should be on the child rather than the parent, In re Moss, 301 Mich App 76, 86-87; 836 NW2d 182 (2013).
To determine whether termination of parental rights is in a child's best interests, the court should 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. [In re White, 303 Mich App at 713-714 (footnotes omitted); see also In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012).]
"[A] child's placement with relatives weighs against termination under MCL 712A.19a(6)(a) . . . ." In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). Thus, if a child is living with a relative when the case proceeds to termination, the trial court must "explicitly address whether termination is appropriate in light of the children's placement with relatives." In re Olive/Metts Minors, 297 Mich App at 43 (citations omitted).
B. ANALYSIS
Here, the trial court expressly recognized that LM was placed with a relative, but determined that the risk of harm to her was too great to justify maintaining respondent's parental rights. The trial court based its decision on its prior finding that respondent had repeatedly abused LV, and that LM faced a significant risk of harm if she were returned to respondent's care. LV's vivid testimony provides strong evidence that respondent severely sexually abused her on multiple occasions, and in horrific ways, while she was a young girl. These instances of abuse included sexual touching and penetration as well as substantial physical abuse, such as beating LV with a belt or grabbing her hair and throwing her on the floor. As the trial court noted, although respondent was not married to LV's mother, his relationship with LV was akin to that of a stepdaughter, as he resided in the family's home when the abuse occurred. Again, how a parent treats a child, especially one with whom he shares a parent-like relationship, is probative of how he may treat other children. See In re AH, 245 Mich App at 84; In re Laflure, 48 Mich App at 392. The girls are similarly situated, in that they both require protection from abuse by respondent.
Respondent contends "that there was insufficient evidence for the court to make a reasoned determination as to the best interest of the child" in light of the lack of evidence concerning respondent's bond with LV, his parenting abilities, and whether he had supported the child and could continue to support her. Given the severe nature of respondent's abuse of LV, we cannot imagine that additional evidence on these factors would have undercut the trial court's best-interest finding. Further, those are not mandatory considerations, as they are factors that the court may consider. See In re Olive/Metts Minors, 297 Mich App at 41-42.
Respondent also contends that respondent-mother could have adequately protected the child, pointing to respondent-mother's progress on her treatment plan and evidence in the record suggesting that all of his visits with the child had been supervised. However, we fail to see how that is relevant to the trial court's best-interest finding, especially considering the child's future. See In re White, 303 Mich App at 713-714; In re Olive/Metts Minors, 297 Mich App at 41-42. Rather, respondent's claims in this regard appear to implicitly acknowledge the significant risk that he posed to LM's safety.
Given the nature of respondent's sexual and physical abuse against a young girl who was living in his home, the trial court did not clearly err in concluding that there was no evidence outweighing the potential risk to LM. The trial court properly found, by a preponderance of the evidence, that termination of respondent's parental rights was in LM's best interests.
VII. CONCLUSION
Respondent has failed to establish that any of his claims on appeal warrant relief.
Affirmed.
/s/ David H. Sawyer
/s/ Henry William Saad
/s/ Michael J. Riordan