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In re Williams

STATE OF MICHIGAN COURT OF APPEALS
Jul 25, 2017
No. 336493 (Mich. Ct. App. Jul. 25, 2017)

Opinion

No. 336493 No. 336494

07-25-2017

In re WILLIAMS, Minors.


UNPUBLISHED Wayne Circuit Court Family Division
LC No. 04-428009-NA Before: MURPHY, P.J., and TALBOT, C.J., and O'CONNELL, J. PER CURIAM.

Respondents appeal as of right the trial court's order terminating their parental rights to their two minor children, MKW and MSW. Respondent-mother's parental rights were terminated pursuant to MCL 712A.19b(3)(b)(ii) (failure to protect from physical injury or sexual abuse), MCL 712A.19b(3)(g) (failure to provide proper care or custody), and MCL 712A.19b(3)(j) (reasonable likelihood that child will be harmed if returned to home of the parent). Respondent-father's parental rights were terminated pursuant to MCL 712A.19b(3)(b)(i) (causing physical injury or sexual abuse), MCL 712A.19b(3)(g), MCL 712A.19b(3)(j), MCL 712A.19b(3)(k)(i) (abandonment of a young child), and MCL 712A.19b(3)(k)(ix) (sexual abuse of a child). We affirm.

Respondent-mother has an older daughter, DAB, who was originally included in the termination petition, but the proceedings with respect to DAB were later dismissed because she had turned 18 years old; respondent-father is not DAB's biological father. The evidence established that DAB, starting at the age of seven, was horribly sexually abused on a regular basis by respondent-father, who impregnated her when she was 16 years of age and forced her to drink a homemade concoction of castor oil and lemonade and to swallow and insert "abortion pills" obtained online, resulting in an abortion. There was also evidence that respondent-father was now sexually and physically abusing MKW and MSW, both under the age of ten. Finally, evidence was presented showing that respondent-mother became aware of the sexual and physical abuse of all three children, that she chose not to believe their claims, that she had no intention of ending her marriage to respondent-father, and that she continued to communicate with respondent-father by phone during his incarceration on criminal charges arising from the sexual abuse, doing so in violation of a no-contact order and by employing third parties to initiate the calls.

On appeal, respondent-mother, conflating the statutory grounds for termination with the best-interests determination, argues that "the trial court's permanent custody order was reached without clear and convincing evidence of a single statutory basis to indicate that the best interest of the minor children would be termination of appellant mother's parental rights." Respondent- father's appellate arguments are focused on the children's best interests and his claim that the best-interests hearing should have been adjourned until after his criminal trial was completed.

If a trial court finds that a single statutory ground for termination has been established by clear and convincing evidence and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is mandated to terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5); In re Beck, 488 Mich 6, 10-11; 793 NW2d 562 (2010); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). "This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established and its ruling that termination is in the children's best interests." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011); see also MCR 3.977(K). "A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). In applying the clear error standard in parental termination cases, "regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).

With respect to both respondents, they expressly declined to challenge the trial court's exercise of jurisdiction and the statutory grounds for termination, pleading no contest to the allegations; therefore, to the extent that respondent-mother challenges the grounds for termination, she waived the argument. Hudson, 294 Mich App at 264 ("Respondent may not assign as error on appeal something that she deemed proper in the lower court because allowing her to do so would permit respondent to harbor error as an appellate parachute."). Moreover, the evidence was more than sufficient to support the grounds for termination, reflecting that respondent-mother opted in favor of her relationship with respondent-father instead of choosing to protect the health, safety, and well-being of her children.

Appellate counsel for respondent-mother, aside from conflating her argument and not recognizing that any challenge of the statutory grounds for termination was waived, asserts that the trial court took jurisdiction pursuant to statutory grounds outlined in MCL 712A.19b(3). A court takes jurisdiction in a protective proceeding under MCL 712A.2 (adjudicative phase); MCL 712A.19b(3) concerns grounds for termination (dispositional phase). Respondent-mother's appellate attorney next quotes MCL 712A.19b(5), claiming that it provides that once statutory grounds are established, termination is required "unless the court finds that termination of parental rights to the child is clearly not in the child's best interests." Counsel cites a 1997 opinion from this Court in support. Pursuant to 2008 PA 199, the Legislature amended MCL 712A.19b(5), which was made effective July 11, 2008, nearly ten years ago. Trial courts must now find, in addition to satisfaction of a statutory ground for termination, "that termination of parental rights is in the child's best interests." Counsel also complains that reunification services were not provided to respondent-mother. However, given the fact that termination was petitioner's goal from the onset, no services were required. Moss, 301 Mich App at 91; HRC, 286 Mich App at 463. Appellate counsel's lapses are very concerning to this panel, and we question whether she should be handling termination appeals. That said, we find nothing in the record that would warrant reversal of the order terminating respondent-mother's parental rights.

In regard to the children's best interests, we place our focus on the child rather than the parent. Moss, 301 Mich App at 87. The trial court may consider such factors as "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). "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." In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).

The nature of the physical and sexual abuse perpetrated by respondent-father, along with respondent-mother's failure to protect the children and to place their interests over those of her sexual-predator husband, demand that we hold that the trial court did not clearly err in finding that a preponderance of the evidence showed that termination of respondents' parental rights was in the children's best interests. The children are entitled to permanency, stability, and finality, entailing a safe and secure environment, as opposed to the environment from which the children were rescued by petitioner.

Finally, respondent-father argues on appeal that the trial court abused its discretion in denying his request to adjourn the best-interests hearing until his criminal trial pertaining to the sexual abuse was held and completed, which trial was scheduled several months later. A trial court's decision on a motion for an adjournment is reviewed by this Court for an abuse of discretion. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "Adjournments of trials or hearings in child protective proceedings should be granted only (1) for good cause, (2) after taking into consideration the best interests of the child, and (3) for as short a period of time as necessary." MCR 3.923(G); see also Utrera, 281 Mich App at 10. "Good cause" for an adjournment exists under the court rule when there is a legally sufficient or substantial reason for the adjournment. Utrera, 281 Mich App at 11. Here, respondent-father failed to show good cause, where, as observed by the trial court, he had already pled no contest to the sexual abuse allegations for purposes of jurisdiction and the statutory grounds for termination. The result of respondent-father's criminal trial, even if an acquittal, could not undo the plea, and different evidentiary standards are at play. We agree with the trial court that the children's best interests weighed against delaying the best-interests hearing. There certainly was no abuse of discretion.

Respondent-father argues that the pending criminal charges prevented him from testifying in the child protective proceedings without waiving his Fifth Amendment right against self-incrimination in the criminal case. A similar argument was posed and rejected in In re Stricklin, 148 Mich App 659, 663-666; 384 NW2d 833 (1986). And again, respondent-father had already pled no contest to the sexual abuse allegations, long before the adjournment was requested. --------

Affirmed.

/s/ William B. Murphy

/s/ Michael J. Talbot

/s/ Peter D. O'Connell


Summaries of

In re Williams

STATE OF MICHIGAN COURT OF APPEALS
Jul 25, 2017
No. 336493 (Mich. Ct. App. Jul. 25, 2017)
Case details for

In re Williams

Case Details

Full title:In re WILLIAMS, Minors.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Jul 25, 2017

Citations

No. 336493 (Mich. Ct. App. Jul. 25, 2017)