Opinion
No. 350752
04-02-2020
In re TORRES, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Lenawee Circuit Court Family Division
LC No. 19-000304-NA Before: BECKERING, P.J., and SAWYER and GADOLA, JJ. PER CURIAM.
Respondent-father appeals as of right from the trial court's order terminating his parental rights to the minor children, CT and MT, under MCL 712A.19b(3)(b)(i) (parent sexually or physically abused child or child's sibling and there is a reasonable likelihood of future abuse), (j) (reasonable likelihood of harm if child is returned to parent), and (k)(ix) (parent sexually abused child or child's sibling). The sole issue raised is whether the trial court violated respondent's due-process right to a fair and impartial decision maker. Finding no due-process violation, we affirm the trial court's termination order.
I. RELEVANT FACTS AND PROCEEDINGS
In May 2019, MP—respondent's stepdaughter—accused respondent of sexually abusing her several times over a period of four years. MP disclosed the abuse to her mother, DT, who is also the mother of the minor children at issue in this appeal. The next day, DT reported the abuse to the Adrian Police Department. As a result of these accusations and a subsequent forensic interview of MP, petitioner, the Department of Health and Human Services (DHHS), filed a petition seeking the termination of respondent's parental rights to his biological and legal children, CT and MT.
At the termination hearing, MP provided detailed testimony concerning respondent's alleged acts of sexual abuse. MP testified that respondent, at various times over a four-year period, had sexually abused her by touching and smelling her vaginal area, reaching under her shirt to touch her breasts, and—during naps the two took together—guiding MP's hand under his trousers to masturbate him and attempting to take off MP's clothes and vaginally penetrate her. After one of these incidents, respondent told MP that she could not tell anyone about the abuse because the "family would fall apart" as a result. Although not alleged in the DHHS's petition, MP testified that respondent had physically abused CT and MT, spanking them, and throwing toys at the children when angry. MP also testified concerning sexualized behavior by CT and MT, and that the day before the termination hearing, MT had told CT not to bite his penis. Respondent testified several times throughout the termination hearing. In his testimony, respondent unequivocally denied MP's accusations. Respondent asserted that MP had a history of lying, and had fabricated the allegations in order to get respondent "out of the house" because he was a stricter disciplinarian than DT.
The trial court also heard testimony from Kathryn Hancock, a therapist employed by Parkside Family Counseling who had been working with CT and MT. In response to several questions posed by the trial court, Hancock testified that the behavior of CT and MT displayed indicators of possible abuse or trauma. These indicators included an excessive interest by CT and MT in their bodies, an inability to follow rules or the directions of adults, and physical violence. On cross-examination, Hancock agreed with respondent's trial counsel that these behaviors could also result from the environment in which CT and MT were being raised, or from CT's hyperactivity disorder, and did not definitively indicate abuse. After Hancock's substantive testimony, the trial court asked additional questions concerning Hancock's training and therapy practice. As a result of these questions, and with the express consent of the parties, the trial court stated it would consider Hancock to be an expert and Hancock's evidence to be expert testimony.
At the conclusion of the termination hearing, the trial court found that the DHHS had proven the statutory grounds for termination of respondent's parental rights by clear and convincing evidence and that termination was in the best interests of CT and MT. The trial court explained that MP's testimony had provided clear and convincing evidence of respondent's sexual abuse, under MCL 712A.19b(3)(b)(i), and that Hancock's testimony of the sexualized behavior of CT and MT indicated the children might have been sexually abused or exposed to sexual behavior. As a result, there was a risk of future harm to CT and MT. This evidence, indicated the trial court, also established statutory grounds under MCL 712A.19b(j). Similarly, the sexual abuse committed by respondent against MP, a sibling of CT and MT, met the requirements of MCL 712A.19b(3)(k)(ix), warranting termination under that statutory ground.
Turning to the children's best interests, the trial court stated that CT and MT had similar experiences and behavior. The trial court noted that a bond existed between respondent and the children. But, the trial court also noted that the existence of a bond does not necessarily mean that the bond is a healthy one and that the sexualized behavior of CT and MT, a possible indicator of abuse or exposure to sexual behavior, indicated that the children did not share a healthy bond with respondent. The trial court also stated that despite being aware of the bond he shared with the children, respondent disregarded that bond by failing to attend a recent visitation. Considering the ages of CT and MT, the trial court stated the children were at the stage where they needed stability and permanence to learn boundaries and form healthy bonds with others. As a result, termination of respondent's parental rights was in the best interests of CT and MT.
II. DISCUSSION
On appeal, respondent argues that the trial court took on an adversarial role in the termination proceedings, thereby denying respondent his due-process right to a fair and impartial decision-maker. We find no error.
While respondent raised several evidentiary objections in the trial court, he concedes in his brief to this Court that he did not assert that the trial court had failed in its duty to be impartial, thereby denying him his due-process rights. Thus, the constitutional issue before us is unpreserved. See In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014) ("issues that are raised, addressed and decided by the trial court are preserved for appeal"). Our review of unpreserved error in termination proceedings is limited to plain error affection substantial rights. In re Utera, 281 Mich App 1, 8; 761 NW2d 253 (2008). Generally, an error affects substantial rights if it affected the outcome of the proceedings. Id. at 9 "When plain error has occurred, reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id.
"[A] parent has a fundamental liberty interest in the care, custody, and management of his or her child, which is constitutionally protected. Both the Michigan Constitution and the United States Constitution preclude the government from depriving a person of life, liberty, or property without due process of law." In re TK, 306 Mich App at 706 (quotation marks and citations omitted). And, pertinent to respondent's claims in this Court "[d]ue process requires that an unbiased and impartial decision-maker hear and decide a case." Mitchell v Mitchell, 296 Mich App 513, 523; 823 NW2d 153 (2012) (citation omitted). However, "a trial judge is presumed unbiased, and the party asserting otherwise has the heavy burden of overcoming the presumption." Id. (citation omitted). When discussing the circumstances under which due-process considerations would support the disqualification of a trial judge, this Court has stated that an actual showing of bias or prejudice may not be necessary:
"in situations where experience teaches that the probability of actual bias on the part of the judge or decisionmaker [sic] is too high to be constitutionally tolerable," such as situations when the judge has a pecuniary interest in the outcome, has been the target of personal abuse or criticism from a party, is enmeshed in other matters involving a party, or has previously participated in the case as an accuser, investigator, fact-finder, or initial decisionmaker [sic]. [In re MKK, 286 Mich App 546, 567; 781 NW2d 132 (2009), quoting Cain v Dep't of Corrections, 451 Mich 470, 498; 548 NW2d 210 (1996).]The disqualification of a trial judge for due-process considerations is reserved for the most extreme cases. See Cain, 451 Mich at 498. Moreover, "[d]isqualification on the basis of bias or prejudice cannot be established merely by repeated rulings against a litigant, even if the rulings are erroneous." In re MKK, 286 Mich App at 566.
Respondent first asserts that the trial court took on an adversarial role in the termination proceedings by allowing or eliciting testimony unrelated to the allegations contained in the DHHS petition. Apart from stating that admission of this evidence is proof of the trial court's bias, respondent fails to explain his reasoning or point to any legal authority that supports his claim, effectively abandoning the argument. See Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959) ("It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.").
While respondent is correct that the testimony with which he takes issue—the DHHS's trial counsel asking respondent if he had ever hit CT or MT, MP providing testimony concerning sexualized behavior exhibited by CT and MT, and Hancock recounting possible hearsay testimony concerning information gained while making a medical diagnosis—is not directly concerned with respondent's alleged sexual abuse of MP, the basis for the petition, it does not follow that the evidence was inadmissible. The Michigan Rules of Evidence apply to an initial disposition hearing when, as is the case here, the DHHS has requested termination of respondent's parental rights at the initial disposition. MCR 3.977(E)(3). The basic requirement for the admission of evidence is that it is relevant, making "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. The statutory provision under which the DHHS sought termination of respondent's parental rights were concerned not only with respondent's previous conduct, but also with the likelihood of harm to CT and MT in the future. Thus, evidence concerning respondent's relationship with CT and MT, his behavior with his children generally, and the needs of CT and MT, both at the time of the termination hearing and in the future, were relevant to the trial court's determinations concerning the reasonable likelihood of future harm and whether termination was in the children's best interest. Moreover, by listing the statutory grounds for termination, the DHHS petition gave respondent notice that the likelihood of future harm to CT and MT was a question at issue in the termination proceeding, and that he may have to rebut evidence presented on that issue. Thus, the trial court's admission of this evidence does not appear to be in error; and it certainly does not rise to the level required to overcome the presumption of the trial court's impartiality.
Respondent's assertion that the trial court took an adversarial role in its questions to Hancock, by exploring issues outside of the DHHS's petition and not raised by the parties in their examination of Hancock, is also without merit. And again, apart from this bare assertion, respondent provides us with no legal authority for or analysis of his claim. Under MRE 614(b), the trial court "may interrogate witnesses, whether called by itself or by a party." Although occurring in the criminal context, our Supreme Court has provided guidance in construing this rule, stating "it is appropriate for a judge to question witnesses to produce fuller or more exact testimony or elicit additional relevant information." People v Stevens, 498 Mich 162, 173; 869 NW2d 233 (2015). Additionally, a trial judge "has greater discretion in questioning during a bench trial." In re Jackson, 199 Mich App 22, 29; 501 NW2d 182 (1993). Provided the questions posed by a trial court are "not intimidating, argumentative, prejudicial, unfair, or partial," id., but rather "intended to clarify testimony and elicit additional testimony," id., such questions do not violate a respondent's right to a fair trial.
Viewed in context, the trial judge's questions concerning Hancock's observations of CT and MT are appropriate under the rules of evidence. As discussed earlier, the likelihood of future harm and the children's best interests were at issue in the termination proceeding, and the trial judge's questions were directed at gaining further information concerning the experiences and future needs of CT and MT—a permissible goal of judicial interrogation of a witness. Further, respondent was given the opportunity to cross-examine Hancock after the trial judge and, in doing so, elicited testimony that the source of the children's behavior was not necessarily sexual abuse or trauma. Respondent has not shown how the trial judge's questions were partial, argumentative, prejudicial, or unfair. Respondent relies solely on the fact that the questioning occurred to establish evidence of bias. But again, there appears to be no error and no evidence of partiality and bias sufficient to support respondent's due-process claim.
Finally, respondent asserts that the trial court erred in qualifying Hancock as an expert witness. Under MRE 702, if the trial court determines that specialized knowledge would assist the resolution of a fact at issue, then:
a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.Respondent has waived review of this issue because he expressly consented to Hancock's testimony being considered expert testimony when asked by the trial court. Generally, "a party cannot stipulate with regard to a matter and then argue on appeal that the resulting action was erroneous." Hodge v Parks, 303 Mich App 552, 556; 844 NW2d 189 (2014). If the trial court did not properly fulfill the procedural requirements concerning expert witnesses, then respondent should have objected to the trial court's request that Hancock be considered an expert. Instead, respondent expressly stated that he had no objection to Hancock being considered an expert, and "[t]his consent constitutes a waiver that eliminates any alleged error . . . ." Id.
Further, were we to assume for the sake of argument that the trial court was incorrect in its qualification of Hancock as an expert witness, respondent's argument would still fail. Indeed, this final argument encapsulates the fatal flaw in respondent's appeal. In similar contexts, when determining whether due-process considerations required the disqualification of a trial judge because of bias, this Court has stated, "[t]he mere fact that a judge ruled against a litigant, even if the rulings are later determined to be erroneous, is not sufficient to require disqualification or reassignment." In re Contempt of Henry, 282 Mich App 656, 680; 765 NW2d 44 (2009) (citation omitted). While the procedural context is different, in that respondent never sought disqualification of the trial judge in the trial court, respondent essentially makes the same argument—his denial of due process is evidenced by the trial court's erroneous evidentiary decisions. But, unfavorable decisions, even erroneous ones, are simply not enough to evidence bias sufficient to sustain a due-process claim. Id.
Our review of the record reveals no bias or antagonism on the part of the trial court. Accordingly, respondent has failed to establish a violation of his right to a fair and impartial decision-maker.
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Michael F. Gadola