Opinion
No. 341465
06-14-2018
In re ROSUL, Minors.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 17-001486-NA Before: SWARTZLE, P.J., and SHAPIRO and BOONSTRA, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating his parental rights to his three minor children—two daughters and a son—under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ix). Respondent's parental rights to a fourth child, BPR (the half-sister of the minor children), were also terminated under the same statutory grounds. BPR turned 18 years of age approximately one month after the trial court's order, and respondent has opted not to appeal the trial court's termination of his parental rights to BPR. Because the trial court's termination of respondent's parental rights to BPR is inextricably intertwined with its termination of respondent's parental rights to the three younger children, we address both terminations in this opinion. We affirm.
I. BACKGROUND
Petitioner initiated the proceedings after substantiating allegations that respondent had hundreds of photographs of young women on his electronic tablet. Although the young women in the photographs were clothed, they were photographed in sexually suggestive positions. According to respondent, he found the pictures online and all of the women were 18 years of age or older. While there was not evidence in the record confirming the women's ages, many of the women in the photographs appeared to be much younger than 18 years. Also on respondent's tablet were three videos of respondent engaged in sexual acts with a girl who may have been 15, 16, or 17 years of age (a definite age was never determined below). The testimony at trial revealed that the girl was respondent's neighbor, and respondent admitted to a sexual relationship with the then-minor. The photographs and videos on respondent's tablet were discovered by BPR and turned over to police. At least one of the three younger children was also aware of the content on respondent's tablet.
At the initial adjudication and the subsequent termination trial, BPR testified regarding an uncomfortable encounter she had with respondent several months earlier. According to BPR, respondent gave her alcohol—which he had done on several prior occasions—and rubbed BPR's buttocks and inner and outer thighs while telling her explicit details about his sexual relationship with her biological mother. The incident happened in respondent's bedroom, and BPR was only wearing a long shirt and underwear at the time. At one point, respondent touched the frontal area between BPR's thighs, approximately six inches below her waist. BPR testified that she did not end the encounter or say anything to respondent because she was too scared to do so. Although BPR viewed the encounter as inappropriate, she did not believe that respondent had sexually abused her.
The trial court assumed jurisdiction over the children and removed them from respondent's care. The three younger children were placed in the care of their biological mother, JMO, and her husband. Because the parental rights of BPR's biological mother were previously terminated, BPR was placed in petitioner's care and eventually moved into foster care with JMO, who offered her home to BPR even past BPR's 18th birthday. All of the children received sexual-abuse medical examinations that came back negative.
At the termination trial, BPR testified that she did not believe that she or her half-siblings would be safe in respondent's care. BPR wanted respondent's parental rights terminated and testified that one of the younger children felt the same way. The remaining children's preferences were not clear from the record. As noted above, the trial court found statutory grounds to terminate respondent's parental rights to all four children. The trial court found that, despite BPR's feeling that she was not sexually abused, respondent did sexually abuse BPR "and basically was just grooming her for something to go even further." The trial court reasoned that, if respondent did "that to one child, all the children are at risk of being sexually abused." The trial court found that the three younger children would be protected from this abuse in the care of JMO and her husband. Accordingly the trial court found that termination was in the best interests of all four children and terminated respondent's parental rights to each child.
This appeal followed.
II. ANALYSIS
Jurisdiction. Respondent first argues that the trial court clearly erred by assuming jurisdiction over the children because there was insufficient evidence to support a finding that respondent abused BPR or the younger children. The trial court may assume jurisdiction over a minor child when it finds by a preponderance of the evidence that a statutory basis for jurisdiction exists. In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). Under MCL 712A.2(b)(1), the trial court has jurisdiction over a minor child "who is subject to a substantial risk of harm to his or her mental well-being" or who is "without proper custody or guardianship." The trial court may also assume jurisdiction under MCL 712A.2(b)(2) where a minor child's home is an unfit place to live in "by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent." MCL 712A.2 requires the trial court to "examine the child's situation at the time the petition was filed." In re MU, 264 Mich App 270, 279; 690 NW2d 495 (2004). "We review the trial court's decision to exercise jurisdiction for clear error in light of the court's findings of fact." In re BZ, 264 Mich App at 295.
Respondent argues that petitioner presented insufficient evidence to support a finding that respondent sexually abused BPR because BPR claimed that respondent never sexually abused her and her sexual-abuse medical examination was negative. MCL 722.622(z) defines sexual abuse as "engaging in sexual contact or sexual penetration . . . with a child" as defined by MCL 750.520a. MCL 750.520a(q) defines "sexual contact" to include "the intentional touching of the victim's . . . intimate parts or the intentional touching of the clothing covering the immediate area of the victim's . . . intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification." "Intimate parts" include "the primary genital area, groin, inner thigh, buttock, or breast of a human being." MCL 750.520a(f).
Based on BPR's testimony, it is clear that respondent sexually abused her regardless of the fact that she did not believe that she was actually sexually abused. Immediately after giving her alcohol, respondent touched BPR's intimate parts, specifically her buttocks and inner thighs. Respondent did so while BPR was not wearing any pants and, during the encounter, respondent told BPR explicit details about his sexual relationship with her mother. The record makes clear that this touching was done for the purpose of respondent's sexual arousal or gratification. We conclude, therefore, that the trial court properly assumed jurisdiction over BPR.
Respondent also argues that the trial court erred by assuming jurisdiction over the three younger children under the doctrine of 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." In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001) (internal citation and notation omitted). Under this doctrine, the trial court may assume jurisdiction over a child based on the parent's treatment of another child. See In re Gazella, 264 Mich App 668, 680; 692 NW2d 708 (2005). "Abuse or neglect of the second child is not a prerequisite for jurisdiction of that child and application of the doctrine of anticipatory neglect." Id. at 680-681. Here, respondent sexually abused BPR and engaged in a sexual relationship with his neighbor. Respondent also amassed a collection of sexually suggestive images of young women, and at least one of the younger children was aware of this collection. Although they had not been physically abused at the time the trial court assumed jurisdiction over them, it is clear that they were at a risk of future physical or mental harm if they remained in respondent's care. Therefore, the trial court properly assumed jurisdiction over the three younger children. See In re BZ, 264 Mich App at 295-296.
Statutory Grounds for Termination. Respondent next argues that the trial court erred in concluding that the statutory grounds for termination were established by clear and convincing evidence. Petitioner bears the burden of providing a statutory basis for termination by clear and convincing evidence. In re Trejo, 462 Mich 341, 350, 355; 612 NW2d 407 (2000). This Court reviews the trial court's findings regarding statutory grounds for clear error. MCR 3.977(K). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. In re Gonzales/Martinez, 310 Mich App 426, 430-431; 871 NW2d 868 (2015).
The trial court found clear and convincing evidence to terminate respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ix). Termination of parental rights is appropriate under MCL 712A.19b(3)(b)(i), "if the child or a sibling of the child" has suffered sexual abuse caused by "[t]he parent's act" and there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if returned to the parent's home. Under the version of MCL 712A.19b(3)(k)(ix) in effect at the time of respondent's trial, a parent's direct sexual abuse of a child or sibling of the child constitutes grounds to terminate the parent's parental rights apart from any inquiry into the likelihood of any future harm. Termination is also appropriate under MCL 712A.19b(3)(g) when the parent, regardless of 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." Statutory grounds to terminate parental rights exist under MCL 712A.19b(3)(j) when 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." Harm, within the context of MCL 712A.19b(3)(j), includes both physical and emotional harm. See In re Hudson, 294 Mich app 261, 268; 817 NW2d 115 (2011).
MCL 712A.19b(3)(k)(ix) was amended by 2017 PA 193, effective June 12, 2008, to require an inquiry into the likelihood of future harm to a child who is the victim of sexual abuse by a parent if the child is returned to the parent's home.
MCL 712A.19b(3)(g) was also amended by 2017 PA 193. The new version of the statute requires the trial court to inquire into the financial ability of the parent to provide proper care and custody. --------
Respondent appears to make the same arguments regarding the trial court's statutory-grounds finding as he makes regarding the trial court's assumption of jurisdiction. Again, respondent argues that there was no evidence that he sexually abused BPR and that the trial court erred by concluding that the three younger children were at a risk of harm in respondent's care. The evidence is clear and convincing, however, that respondent did sexually abuse BPR. BPR testified that respondent touched her buttocks and inner thigh, and he did so while giving her alcohol and telling her sexually explicit stories about her biological mother. Despite BPR's belief that respondent did not sexually abuse her, and respondent's argument that he did not sexually abuse BPR because he did not touch BPR's other intimate parts, respondent's conduct constituted sexual abuse as defined in statute. This sexual abuse was sufficient for the trial court to find statutory grounds to terminate respondent's parental rights to all four of his children under MCL 712A.19b(3)(k)(ix).
Additionally, respondent's sexual abuse of BPR is certainly probative of his ability to provide proper care and custody for the three younger children under MCL 712A.19b(g). See In re Powers, 208 Mich App 582, 592; 528 NW2d 799 (1995), superseded in part on other grounds In re Jenks, 281 Mich App 514, 517-518 n 2, 760 NW2d 514 (2008). Looking to the likelihood of future harm under MCL 712A.19b(3)(b)(i) and (j), respondent's sexual abuse of BPR was part of a pattern of inappropriate sexual conduct. Indeed, as the trial court found, it is reasonable to conclude that respondent's sexual abuse of BPR was an attempt to groom her for further sexual abuse. Additionally, respondent amassed a collection of pictures of young women and engaged in a sexual relationship with his neighbor. Respondent's misconduct is not isolated, but is rather evidence of his penchant for underage women. Thus, it is clear from the record that all three of respondent's daughters were at a risk of sexual abuse if returned to respondent's care. While it is unclear whether respondent's minor son was also at the same risk of sexual abuse, respondent's son was at a clear risk for emotional harm—at the very least—given respondent's abuse of the child's half-sister and respondent's illicit propensities. This risk of emotional harm is shared by all four of respondent's children. Accordingly, we conclude that MCL 712A.19(b)(i), (g), and (j) also supported termination of respondent's parental rights to the three younger children.
Best-Interests. Finally, respondent argues that the trial court clearly erred by finding that termination of his parental rights was in the best interests of the three younger children. "Even if the trial court finds that [petitioner] has established a ground for termination by clear and convincing evidence, it cannot terminate the parent's parental rights unless it also finds by a preponderance of the evidence that termination is in the best interests of the children." In re Gonzales/Martinez, 310 Mich App at 434. The best-interests analysis focuses on the child rather than the parent. In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016). To determine whether the termination of a parent's rights is in the child's best interests, the trial court should weigh all of the available evidence, In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014), and consider the entire record, including any evidence introduced by any party, In re Medina, 317 Mich App 219, 237; 894 NW2d 653 (2016). Factors that the trial court may consider in making this determination 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." Id. at 237 (internal citation and notation omitted). We review the trial court's best-interest findings for clear error. MCR 3.977(K).
We agree with the trial court that termination of respondent's parental rights was in the best interests of all of respondent's children. Respondent had already sexually abused one of his children and each of the children were at a risk of harm if returned to respondent's care. At least two of respondent's children did not feel safe with respondent and wanted his parental rights terminated and each child suffered a risk of physical and emotional harm in respondent's care. In contrast, JMO and her husband provided each of the children with a safe, stable, and supportive home environment. Thus, the trial court did not clearly err in concluding that termination was in the three younger children's best interests. Accordingly, the trial court did not err by terminating respondent's parental rights to the children.
Affirmed.
/s/ Brock A. Swartzle
/s/ Douglas B. Shapiro
/s/ Mark T. Boonstra