Opinion
No. 354655
02-11-2021
In re L. R. SILER, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Branch Circuit Court Family Division
LC No. 18-005676-NA Before: BECKERING, P.J., and SAWYER and SHAPIRO, JJ. PER CURIAM.
Respondent appeals the trial court's order terminating his parental rights to the minor child, LS, under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (j) (reasonable likelihood that child will be harmed if returned to parent), and (k)(ii) (abuse of a sibling of the child involving penetration or attempted penetration). We affirm.
I. BACKGROUND
At the time of LS's birth, respondent was incarcerated for sexually abusing LS's half-sister, SS. Respondent does not deny that the sexual abuse occurred; he pleaded no contest to assault with intent to commit sexual penetration, MCL 750.520g(1), possession of child sexually abusive material, MCL 750.145c(4)(a), and distribution of child sexually abusive material, MCL 750.145c(3). Respondent was sentenced to 6 to 10 years' imprisonment, and his earliest release date is in September 2024. The Department of Health and Human Services filed a petition to terminate respondent's parental rights to LS on the basis of his abuse of SS and also sought to terminate LS's mother's parental rights for her failure to protect SS from abuse.
Following a termination hearing, the trial court terminated both respondents' parental rights. We affirmed as to LS's mother, but we vacated the order terminating respondent's parental rights because the trial court relied on the preamendment version of MCL 712A.19b(3)(g). On remand, the trial court found by clear and convincing evidence that statutory grounds existed to terminate respondent's parental rights under MCL 712A.19b(3)(c)(i), (j), and (k)(ii). The court also found by a preponderance of the evidence that terminating respondent's parental rights was in LS's best interests. This appeal followed.
In re Siler, unpublished per curiam opinion of the Court of Appeals, issued June 11, 2020 (Docket Nos. 351242 and 351354), p 5.
II. STATUTORY GROUNDS
Respondent first argues the trial court clearly erred when it determined that there were statutory grounds to terminate his parental rights.
The trial court's findings regarding statutory grounds are reviewed for clear error. In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." Id. (quotation marks and citation omitted).
In order to terminate parental rights, a trial court must find that a statutory ground has been established by clear and convincing evidence. In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). A trial court may terminate parental rights under MCL 712A.19b(3)(k)(ii) if the parent abused the child or a sibling of the child, the abuse included criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate, and there is a reasonable likelihood that the child will be harmed if returned to the care of the parent.
Respondent does not contest that he abused LS's sibling or that the abuse included assault with intent to penetrate. As stated, respondent pleaded no contest to that offense and upon inquiry, he did not deny that he committed acts of sexual abuse against SS. Further, respondent's prior acts of sexual abuse against SS indicate that LS would be at risk of sexual abuse in his care. See In re LaFrance, 306 Mich App 713, 730; 858 NW2d 143 (2014) ("[H]ow a parent treats one child is certainly probative of how that parent may treat other children."). The nature of respondent's conduct, including possessing and distributing child sexually abusive material, also supports the conclusion that there was a reasonable likelihood that LS would be harmed if returned to his care. See In re Jenks, 281 Mich App 514, 517; 760 NW2d 297 (2008). In addition, respondent had not yet participated in classes in prison meant to address his prior acts of sexual abuse. Accordingly, the trial court did not clearly err when it terminated respondent's parental rights under MCL 712A.19b(3)(k)(ii).
Only one statutory ground needs to be established to support the termination of parental rights under MCL 712A.19b(3). In re Martin, 316 Mich App 73, 90; 896 NW2d 452 (2016). Therefore, we decline to address the additional statutory grounds relied on by the trial court.
III. BEST INTERESTS
Respondent also argues that the trial court clearly erred when it determined that terminating his parental rights was in LS's best interests.
"If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). We review the trial court's ruling that termination is in the child's best interests for clear error. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011).
"Whether termination of parental rights is in the best interest of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App at 90. "In deciding whether termination is in the child's best interests, the court may consider 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." In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). "[T]he children's well-being while in care, and the possibility of adoption" are also relevant. In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
The record reflects that respondent does not share a bond with LS, and that he does not possess the ability to provide adequate parental care for LS. Respondent has been incarcerated for LS's entire life and has not had any contact with LS. Further, respondent will not be released from prison until at least 2024; he acknowledged that he will not be able to care for LS until that time. Respondent also testified that he had not developed a plan to care for LS upon his release from prison.
Moreover, the record reflects that terminating respondent's parental rights serves LS's need for permanency, stability, and finality. LS was placed in a nonrelative foster home shortly after her birth; she has remained there throughout the proceedings and there have not been any reported issues concerning her placement there. The petition alleged that LS's foster parents were reportedly willing to adopt LS, and the caseworker testified that respondent's parental rights should be terminated so that LS may be adopted. The trial court also properly considered that LS's safety would be best served by terminating respondent's parental rights. For these reasons, the trial court's bests-interests determination was not clearly erroneous.
The trial court's statement that there is a "high rate of recidivism among sex offenders," however, was not supported by any evidence. And that common assumption has been called into question. See Ellman & Ellman, "Frightening and High": The Supreme Court's Crucial Mistake About Sex Crime Statistics, 30 Const Comment 495 (2015); Arkowitz & Lilienfeld, Once a Sex Offender, Always a Sex Offender? Maybe Not., <https://www.scientificamerican.com/article/misunderstood-crimes/> (accessed January 29, 2021); Sex Offender Management Assessment and Planning Initiative, United States Department of Justice, Office of Justice Programs, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (2017); Bureau of Justice Statistics, NCJ 251773 (May 2019); Hanson et al, High-Risk Sex Offenders May Not Be High Risk Forever, 29 J Interpersonal Violence 2792 (2014). --------
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Douglas B. Shapiro