Opinion
No. 351395
05-21-2020
In re A.G. Miller, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Presque Isle Circuit Court Family Division
LC No. 18-000025-NA Before: RONAYNE KRAUSE, P.J., and SERVITTO and REDFORD, JJ. PER CURIAM.
Respondent appeals by right the trial court's order terminating his parental rights to AM on the ground that termination did not serve her best interests. We affirm.
I. FACTUAL BACKGROUND
Respondent's 17-year-old daughter, MH, who is AM's half-sister, disclosed to MH's mother and stepfather that, while at respondent's house, respondent raped her. MH's mother and stepfather were initially skeptical because MH had falsely accused others in the past of sexual abuse. MH, however, did not waiver and she exhibited behaviors indicative of trauma, so they took her to the Onaway police station where a county sheriff's deputy spoke with MH. MH reported that respondent smoked marijuana with her, gave her alcohol, permitted her to become intoxicated, and then raped her. He told her not to tell anyone and threatened that MH would not be able to see AM if she did. Respondent sexually assaulted her on three separate occasions at his home. The first time occurred the night before her birthday. The next assault occurred when he woke her during the early hours of Christmas day. He also raped her on Valentine's Day 2018. MH's report prompted the deputy to obtain and execute a search warrant of respondent's house where items were seized as evidence. Respondent voluntarily went to the police station that night and provided a recorded interview. A few days later, because additional information became available, the sheriff's deputy obtained and executed a second search warrant and seized additional items. The seized items included two towels, a bedspread, and a black polka-dotted bra. MH also provided the deputy some unwashed clothing. The deputy obtained DNA samples from respondent and MH. The deputy sent the seized items and the DNA to a Michigan State Police laboratory in Grayling where personnel performed forensic analysis on the items and then sent the items to a Michigan State Police laboratory in Grand Rapids for further analysis. The lab personnel extracted DNA from a green towel and performed a comparative analysis with the DNA of respondent and MH's DNA samples and determined that both respondent's and MH's DNA existed on the green towel.
The Department of Health and Human Services (DHHS) petitioned for the trial court to take jurisdiction over AM and to terminate respondent's parental rights. The trial court conducted a jury trial at which MH testified in detail regarding the sexual abuse she suffered, the deputy testified regarding the searches and respondent's interview, and forensic analysts testified regarding the DNA analysis. The jury returned a verdict that evidence substantiated the allegations stated in the petition that warranted the trial court's taking jurisdiction over AM. The DHHS filed a supplemental petition seeking termination of respondent's parental rights to AM. The trial court conducted a two-day termination bench trial, at the conclusion of which it found that clear and convincing evidence established statutory grounds for termination and that termination of respondent's parental rights served AM's best interests.
II. STANDARD OF REVIEW
Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights. MCL 712A.19b(5); MCR 3.977(E)(4). A trial court must find by a preponderance of the evidence that termination serves the best interests of the child before it may terminate parental rights. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013).
This Court reviews for clear error a trial court's best-interest decision. MCR 3.977(K); In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). A factual finding is clearly erroneous if this Court has a definite and firm conviction that a mistake was made. Id. This Court gives deference to the "trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). This Court also defers to the trial court's special opportunity to judge the credibility of witnesses. In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
III. ANALYSIS
Respondent does not appeal the trial court's decision regarding the existence of statutory grounds for termination. He appeals only the trial court's decision that termination served AM's best interests, contending that the best-interest factors favored maintaining his parental rights. We disagree.
Because respondent does not challenge the statutory grounds for termination, this Court may presume that the trial court did not clearly err in finding that statutory grounds were established by clear and convincing evidence. In re JS & SM, 231 Mich App 92, 98-99; 585 NW2d 326 (1998), overruled in part on other grounds In re Trejo, 462 Mich 341; 612 NW2d 407 (2000). Accordingly, we focus our review on whether the trial court erred by finding that a preponderance of the evidence established that termination of respondent's parental rights served AM's best interests.
In this case, at the termination bench trial, petitioner presented clear and convincing evidence that established the existence of statutory grounds for termination of respondent's parental rights under MCL 712A.19b(3)(b)(i) (a sibling of the child suffered sexual abuse by respondent and a reasonable likelihood exists that the child will suffer from abuse in the foreseeable future if placed in respondent's home), (j) (based on respondent's conduct, a reasonable likelihood exists that AM will be harmed if returned to respondent's home), and (k)(ii) (respondent criminally sexually abused the child's sibling by penetrating MH and a reasonable likelihood exists that the child will be harmed if returned to respondent). The evidence established that, when MH was a minor, on three occasions respondent facilitated MH's intoxication by marijuana or a combination of marijuana and alcohol, and then sexually assaulted her by penetrating her vagina. Respondent faced criminal charges because of his conduct against MH and he pleaded no contest to third-degree criminal sexual conduct (CSC-III), resulting in his incarceration for a minimum of 10 years. AM will still be a minor if respondent obtains release from prison after serving his minimum sentence. Evidence presented during the termination bench trial established that respondent had a strong influence over AM. The manner in which a parent treats one of his children is probative of how he will treat his other children. In re HRC, 286 Mich App 461. Accordingly, the trial court did not clearly err by finding that clear and convincing evidence established a statutory ground for termination.
Because clear and convincing evidence established a statutory ground for termination, the trial court had to decide whether termination of respondent's parental rights served AM's best interests. MCL 712A.19b(5); In re Trejo, 462 Mich at 353. When considering best interests, the trial court must focus on the child rather than the parent. In re Moss, 301 Mich at 87. The trial court may consider several factors including the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012), how long the child has lived in the present home, and the likelihood that the child "could be returned to [the] parents' home within the foreseeable future, if at all." In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). In In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014), this Court summarized:
The trial court should weigh all the evidence available to determine the children's best interests. 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. [Quotation marks and citation omitted.]
A child's safety and well-being, including the risk of harm a child might face if returned to the parent's care, constitute factors relevant to a best-interest determination. In re VanDalen, 293 Mich App 120, 142; 809 NW2d 412 (2011). A "child's placement with relatives weighs against termination. . . ." In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). Whether the "child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interests." In re Olive/Metts, 297 Mich App at 43. Further, a trial court may consider the best-interest factors used in child custody proceedings as set forth in MCL 722.23 during termination proceedings. In re Medina, 317 Mich App 219, 238-239; 894 NW2d 653 (2016). MCL 722.23 provides:
"best interests of the child" means the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
In this case, the record reflects that the trial court considered relevant factors and all of the evidence in the record for its best-interest decision. A preponderance of the evidence established that the best-interest factors weighed in favor of termination of respondent's parental rights to AM. Although respondent had a bond with AM and she expressed love and affection for him, the other relevant factors weighed in favor of termination. The trial court correctly found that, in light of respondent's conduct toward MH, he lacked that capacity and disposition to provide AM true parental love and affection. The record reflects that substantial uncontroverted evidence established that respondent facilitated MH's unlawful intoxication purposefully so that he could take sexual advantage of her in her vulnerable state and he raped her. Respondent twisted the parent-child relationship with MH for his own vile, illicit purposes despite having been imprisoned in the past for criminal sexual conduct with minors approximately MH's age. Moreover, his conduct demonstrated his lack of appropriate parenting skills.
Significantly, following his no-contest plea to CSC-III, respondent became incarcerated and must serve a minimum 10-year prison term. For the period of his incarceration, respondent will lack the ability to provide for AM's needs. Although AM generally lives in a stable environment with her mother, the record reflects that while on overnight visits with respondent, respondent smoked marijuana in her presence and did not restrict access to drugs, marijuana, and drug paraphernalia which were open and available. Respondent's criminal sexual conduct against MH, his plying her with marijuana and alcohol, and his open use of drugs in his children's presence established that he lacked the moral fitness to properly parent AM. Further, such conduct did not demonstrate the existence of a stable environment or the likelihood that respondent could provide a stable environment for AM in the foreseeable future, if at all. As the trial court correctly observed, respondent's criminal sexual conduct toward his own daughter also raised concerns regarding his mental health. The trial court could reasonably conclude from respondent's criminal sexual conduct against MH that he would likely do the same to AM given the opportunity.
The trial court properly considered the applicable best-interest factors and correctly determined that a preponderance of the evidence established that termination of respondent's parental rights served AM's best interests. The trial court, therefore, did not commit reversible error.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Deborah A. Servitto
/s/ James Robert Redford