Opinion
368452
10-23-2024
In re PITTMAN/SANDERS, Minors.
UNPUBLISHED
Wayne Circuit Court Family Division LC No. 2023-000011-NA
Before: Gadola, C.J., and O'Brien and Maldonado, JJ.
PER CURIAM.
Respondent appeals as of right the trial court's order terminating his parental rights to his minor children under MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix). We affirm.
I. FACTS
Respondent is the father of CMP, ECP, CTS, and MMH. CS is the mother of CMP, ECP, and CTS, and BH is the mother of MMH. In December 2022, petitioner, the Department of Health and Human Services (DHHS), filed a petition seeking to terminate respondent's parental rights to CMP, ECP, and CTS, alleging that respondent sexually abused MMH in July 2022 by digitally penetrating her vagina, ostensibly to ascertain whether she was sexually active, after he found her speaking to a boy on the phone late at night. After a preliminary hearing, the trial court authorized the petition, and placed the three younger children with their mother, CS.
MMH was not a child subject to the petition in this case.
Following an adjudication and termination hearing, the trial court found a statutory basis to exercise jurisdiction over the children under MCL 712A.2(b) based on respondent's sexual abuse of MMH. The trial court also found that petitioner had presented clear and convincing evidence to support termination of respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix). After a further hearing, the trial court found that termination was in the children's best interests based upon respondent's sexual abuse of MMH and the risk of harm respondent posed to the children. The trial court entered an order terminating respondent's parental rights to the children. Respondent now appeals.
II. DISCUSSION
A. STATUTORY BASIS
Respondent contends that the trial court clearly erred by finding clear and convincing evidence to support any of the statutory bases for termination because no evidence was presented that he abused or neglected CMP, ECP, or CTS. Respondent argues that the trial court erroneously relied upon the doctrine of anticipatory neglect in speculating that respondent posed a risk of harm to the children. We disagree.
To terminate a parent's rights to his or her child, the trial court must find that a statutory basis warranting termination under MCL 712A.19b(3) has been established by clear and convincing evidence. In re Jackisch/Stamm-Jackisch, 340 Mich.App. 326, 333; 985 N.W.2d 912 (2022). We review for clear error the trial court's factual findings and its determination that a statutory basis for termination has been proven by clear and convincing evidence. In re Keillor, 325 Mich.App. 80, 85; 923 N.W.2d 617 (2018). The decision to terminate parental rights is clearly erroneous if "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 JK, 468 Mich. 202, 209-210; 661 N.W.2d 216 (2003). We will not find a trial court's decision clearly erroneous unless it is more than possibly or probably incorrect. In re Ellis, 294 Mich.App. 30, 33; 817 N.W.2d 111 (2011). We give considerable deference to the trial court's dispositional orders, In re Sanders, 495 Mich. 394, 406; 852 N.W.2d 524 (2014), and particularly to the trial court's opportunity to evaluate the credibility of the witnesses. MCR 2.613(C); In re MJC, ___ Mich.App. ____, ____; ____ NW3d (2023) (Docket No. 365616); slip op at 9.
In this case, the trial court terminated respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix), which provide:
(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:
(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 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.
(k) The parent abused the child or a sibling of the child, the abuse included 1 or more of the following, and there is a reasonable likelihood that the child will be harmed if returned to the care of the parent:
(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
(ix) Sexual abuse as that term is defined in Section 2 of the child protection law, 1975 PA 238, MCL 722.622. [MCL 712A.19b(3).]
A review of the record demonstrates that the trial court did not clearly err by finding that clear and convincing evidence supported termination of respondent's parental rights under MCL 712A.19b(3)(b)(i). Under that subsection, a trial court may terminate a parent's rights to a child if it finds by clear and convincing evidence that the parent sexually abused the child or a sibling of the child, and there is a reasonable likelihood that the child will suffer from abuse in the foreseeable future if placed in the parent's home. MCL 712A.19b(3)(b)(i). Here, the trial court found that respondent sexually abused MMH, a sibling of the children in this case. The record supports this finding. MMH testified that respondent penetrated her vagina with his finger for approximately 90 seconds, ostensibly to ascertain whether she was sexually active, after respondent found her talking to a boy on the phone late at night. Though respondent denied the allegation, the trial court found MMH to be credible, and we will not displace the trial court's credibility determination. See In re HRC, 286 Mich.App. 444, 460; 781 N.W.2d 105 (2009). The trial court thus did not clearly err by finding clear and convincing evidence that respondent sexually abused MMH, a sibling of the children.
The trial court further found that there is a reasonable likelihood, based upon respondent's sexual abuse of MMH, that the children will suffer abuse in the foreseeable future if placed in respondent's home. Respondent argues that no evidence was presented demonstrating that he abused or neglected CMP, ECP, or CTS, and that the trial court erred by applying the doctrine of anticipatory neglect. This argument is unpersuasive. The doctrine of anticipatory neglect recognizes that a parent's conduct toward one child is probative of how the parent may treat another child. In re Christie, 339 Mich.App. 1, 6; 981 N.W.2d 172 (2021). The doctrine of anticipatory neglect is sometimes considered in connection with a trial court assuming jurisdiction of a child under MCL 712A.2(b) to satisfy the parental conduct element of the statute. See, e.g., In re Christie, 339 Mich.App. at 6. The doctrine inherently acknowledges that there is no assertion that a detrimental act to the second child actually occurred. Id.
In this case, the trial court was determining whether termination of respondent's parental rights to the three younger children was warranted under MCL 712A.19b(3)(b)(i). A trial court may terminate a parent's rights to a child under that statutory subsection if the trial court finds by clear and convincing evidence that the parent sexually abused the child or a sibling of the child, and there is a reasonable likelihood that the child will suffer from abuse in the foreseeable future if placed in the parent's home. MCL 712A.19b(3)(b)(i). In other words, the trial court did not choose to employ the doctrine of anticipatory neglect under this subsection; rather, MCL 712A.19b(3)(b)(i) directs the trial court to anticipate whether a child who is a sibling of the sexually abused child is reasonably likely to suffer abuse in the foreseeable future if placed in the parent's home. Here, the trial court's finding that respondent sexually abused MMH was supported by the record evidence, and the trial court appropriately considered respondent's sexual abuse of MMH when determining that there was a reasonable likelihood that the other children would suffer from abuse in the foreseeable future if placed in respondent's home. Accordingly, respondent has not established that the trial court clearly erred by finding clear and convincing evidence to terminate respondent's parental rights under MCL 712A.19b(3)(b)(i).
A court need only find that one statutory basis has been established to support termination of parental rights under MCL 712A.19b(3). In re Martin, 316 Mich.App. 73, 90; 896 N.W.2d 452 (2016). We conclude, however, that the trial court did not err by finding that the same clear and convincing evidence also demonstrated that termination of respondent's parental rights under MCL 712A.19b(3)(j), (k)(ii), and (k)(ix) was warranted. The evidence supports the trial court's finding that respondent sexually abused a sibling of the children by criminal sexual conduct involving penetration warranting termination of his parental rights under subsections (k)(ii) and (ix). The evidence also supports the trial court's finding that respondent's abuse of MMH demonstrated that there is a reasonable likelihood, based on the conduct or capacity of respondent, that the children would be harmed if returned to his home.
B. REASONABLE EFFORTS
Respondent contends that termination of his parental rights was premature because petitioner did not provide him with reunification services. We disagree.
The DHHS must make reasonable efforts to reunify a family before seeking to terminate parental rights, In re Hicks/Brown, 500 Mich. 79, 85; 893 N.W.2d 637 (2017), except in cases involving aggravated circumstances, In re Simonetta, 340 Mich.App. 700, 707; 987 N.W.2d 919 (2022); MCL 712A.19a(2). We review the trial court's finding regarding reasonable efforts for clear error. In re Sanborn, 337 Mich.App. 252, 258; 976 N.W.2d 44 (2021).
Under MCL 712A.19a(2)(a) reasonable reunification efforts are not required if "[t]here is a judicial determination that the parent has subjected the child to aggravated circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PA 238, MCL 722.638." See also In re Rippy, 330 Mich.App. 350, 358-359; 948 N.W.2d 131 (2019). MCL 722.638(1)(a)(ii) and (2) provide that the DHHS may seek termination at the initial disposition when the parent abused the child or a sibling of the child, and the abuse included criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate. In this case, the trial court made findings amounting to a judicial determination that respondent subjected the children to aggravated circumstances as provided in MCL 722.638(1) and (2) by sexually abusing the children's sibling. See In re Rippy, 330 Mich.App. at 358-359. Accordingly, respondent was not entitled to reasonable reunification efforts.
C. BEST INTERESTS
Respondent contends that the trial court clearly erred by finding that termination was in the children's best interests because the trial court failed to consider his parenting ability and also failed explicitly to consider the children's placement with their mother. We disagree.
When the trial court finds that the petitioner has established a statutory basis for termination, the trial court must terminate the parent's rights if a preponderance of the evidence demonstrates that termination is in the child's best interests. MCL 712A.19b(5); In re Medina, 317 Mich.App. 219, 236-237; 894 N.W.2d 653 (2016). We review the trial court's decision regarding a child's best interests for clear error. In re Sanborn, 337 Mich.App. at 276.
The child is the focus of the best-interests determination, not the parent. In re Atchley, 341 Mich.App. at 346. To determine whether termination of parental rights is in a child's best interests, the trial court must weigh the available evidence and consider a wide variety of factors, such as the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, the advantages of the foster home over the parent's home, the length of time the child was in care, the likelihood that the child could be returned to the parent's home in the foreseeable future, and the parent's compliance with the case service plan. See In re Payne/Pumphrey/Fortson, 311 Mich.App. 49, 63-64; 874 N.W.2d 205 (2015).
Our Supreme Court has held that a child's placement with a relative is an "explicit factor to consider" when determining whether termination is in a child's best interests. In re Mason, 486 Mich. 142, 164; 782 N.W.2d 747 (2010). This Court has held that a trial court's failure "to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal." In re Olive/Metts Minors, 297 Mich.App. 35, 43; 823 N.W.2d 144 (2012). Placement with a relative generally weighs against termination, although that fact alone is not determinative. In re Atchley, 341 Mich.App. 332, 347; 990 N.W.2d 685 (2022). MCL 712A.13a(j) was amended effective October 7, 2022, and now defines "relative" as a person who is at least 18 years of age and is "[r]elated to the child within the fifth degree by blood, marriage, or adoption . . .," MCL 712A.13a(1)(j)(i), and thus the statute's definition of relative now includes a child's biological parent.
Although a trial court must consider a child's placement with a relative when determining the child's best interests in a child protective proceeding, there is no requirement that the trial court state particular words when issuing its findings; rather, it is sufficient if the trial court makes "[b]rief, definite, and pertinent findings and conclusions on contested matters." MCR 3.977(I)(1). More generally, a trial court's findings are sufficient "if it appears that the trial court was aware of the issues in the case and correctly applied the law, and where appellate review would not be facilitated by requiring further explanation." Ford Motor Co v Dep't of Treasury, 313 Mich.App. 572, 589; 884 N.W.2d 587 (2015) (quotation marks and citation omitted).
In this case, the trial court was aware that the children were placed with their mother. The trial court's order terminating respondent's parental rights states, "The children remain with the mother and the case is dismissed," and two other sections of the order prominently state, "THE CASE IS DISMISSED. CHILDREN REMAIN WITH MOTHER." The trial court further explained that its finding that termination was in the best interests of the children was based upon the report of the evaluating clinician that concluded that the children were in danger of abuse from respondent if left in his care. The trial court reasoned that "we will never know if [respondent's] conduct of forcing [MMH's] legs open and putting his finger into the child's vagina for what the child described as 90 seconds was for his sexual gratification or some method of discipline. Either way, the behavior is so inappropriate and bizarre as to demonstrate that he would be a danger to any child in his care."
Our review of this issue would not be facilitated by a further statement by the trial court that it had considered the children's placement with the mother as a relative placement when concluding that termination was in the children's best interests. It is obvious from the trial court's termination order that it considered the fact the children were placed with their mother but nonetheless terminated respondent's parental rights, having concluded that he could not safely parent any of his children. We similarly disagree that the trial court failed to consider respondent's parenting ability; the trial court determined that respondent's parenting decision regarding MMH was so inappropriate and bizarre as to render his parenting dangerous to his children. We are not left with a definite and firm conviction that the trial court made a mistake when it found that termination of respondent's parental rights was in the best interests of the children.
Affirmed.
Allie Greenleaf Maldonado, J. (dissenting).
The doctrine of anticipatory neglect does not give courts license to automatically terminate a parent's rights to other children. Therefore, I believe that DHHS's and the trial court's failure to individually consider the three younger children mandates that we reverse its order terminating respondent's parental rights to them.
At the outset, it should be made clear that what respondent did to MMH was horrendous, and I do not want to downplay the severity of his wrongdoing. However, this case involves three children who were completely overlooked. The statute requires a proper examination of the needs of each child before termination of parental rights, which was not done here. See MCL 712A.19b(3)(b), (g), (j), (k).
I. ANTICIPATORY NEGLECT
"The doctrine of anticipatory neglect recognizes that how a parent treats one child is certainly probative of how that parent may treat other children. . . . However, the probative value of such an inference is decreased by differences between the children, such as age and medical conditions." In re Kellogg Minor, 331 Mich.App. 249, 256, 259; 952 N.W.2d 544 (2020) (quotation marks, citation, and alteration omitted). "Although evidence of how parents treat one child may be probative of their treatment of another, such evidence is not conclusive or automatically determinative." In re Kantola/Carlstrom Minors, 139 Mich.App. 23, 28; 361 N.W.2d 20 (1984) (citation omitted).
While this Court is "not strictly required to follow uncontradicted opinions from this Court decided before November 1, 1990," these opinions are "considered to be precedent and entitled to significantly greater deference than are unpublished cases." Woodring v Phoenix Ins Co, 325 Mich.App. 108, 114-115; 923 N.W.2d 607 (2018).
Right from the get-go, the petition filed regarding the three younger children offered no information about them save for their names and ages; it is entirely about the sexual abuse perpetrated against the oldest child. A second petition contained vague allegations that respondent abandoned ECP and CTS but nothing regarding CMP. At the termination hearing, the only testimony pertaining to these three children was that respondent's interactions with them during supervised parenting time were "appropriate" and that the children were "very interactive with" respondent. When the caseworker who filed the petition on behalf of the three younger children was asked to describe the risk respondent posed to them, she said: "Definitely if there is findings [sic] of a sexual abuse [sic] for [MMH] then that would be an issue for the rest of the children . . . So it would be the sexual abuse and threatened harm with them as well." Outside of positive feedback regarding his interactions with them during parenting time, the caseworker offered no facts regarding the three younger children. Further, MMH testified that this was the only instance of abuse by respondent; while one is far too many and clearly establishes statutory grounds with MMH, this is certainly probative of the risk respondent poses to the other children. Moreover, there are noteworthy differences with the other children in that they have a different mother, there is no evidence respondent ever abused them, they are significantly younger than MMH, and the youngest is a boy. Simply put, DHHS fell far short of meeting its burden of establishing that there was a reasonable likelihood that respondent would abuse the younger children, that he failed to provide proper care and custody for the younger children, or that there was a reasonable likelihood of harm if the younger children were returned to respondent's care. The trial court's findings were likewise deficient. The court "found [MMH] to be enormously credible" but then made no findings with respect to the younger children.
See MCL 712A.19b(3)(g). Regarding this ground, the court also failed to make any findings regarding respondent's financial ability to support the children.
See MCL 712A.19b(3)(j), (k).
The same mistakes were made during the best-interests phase of the proceedings. The only testimony regarding the younger children was that their interactions were appropriate and that they were "always excited to see him." Respondent testified that he would participate in services and be open to making changes. Moreover, the court stated that it was unable to discern whether the abuse perpetrated against MMH "was for his sexual gratification or some method of discipline"; were it the latter, this would suggest susceptibility to rehabilitation such that he could potentially be a safe parent to the other three. Once again, the court made no findings regarding the three younger children.
I have no sympathy for respondent, who placed himself and all of his children in this situation by perpetrating an unthinkable act of abuse against his eldest child. However, the other three children have a right to be cared for by their father. In this case, these three children were completely ignored. Once it was determined that respondent abused one child, the book was closed on the other three. DHHS and the court had their minds made up that respondent could not be a safe parent for any of his children, and the other three became a footnote in this case. There was no investigation into their needs, their relationships with their father, or respondent's potential to be rehabilitated so as to give these children the care to which they are entitled. Simply put, these children, their needs, and their rights were ignored. MMH had a thorough investigation, and her needs were rightly at the forefront of her case. CTS, CMP, and ECP deserved the same due diligence.
II. CONCLUSION
The doctrine of anticipatory neglect is a critical tool available to courts for the protection of children from abuse. However, it does not shed the courts and DHHS of their obligation to exercise due diligence with respect to the needs and risks of every single child. Because the trial court failed to follow the law by individually examining the needs of each child, I would reverse.