In re Schadler

315 Mich.App. 406

890 N.W.2d 676

In re SCHADLER.

Docket No. 327977.

Court of Appeals of Michigan.

Submitted May 4, 2016, at Detroit.

Decided May 24, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Michael J. Sepic, Prosecuting Attorney, for the Department of Health and Human Services.

WN Law, PLLC, Grand Rapids (by Renee L. Wagenaar ), for defendant.

Before: MURPHY, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

Respondent-father appeals as of right the trial court's orders terminating his parental rights to the minor children CS and BS under MCL 712A.19b(3)(b)(i ) (parent's act caused physical injury or physical or sexual abuse to child or sibling of child), (k)(ii ) (parent abused child or sibling of child by criminal sexual conduct), and, as to CS alone, (g) (failure to provide proper care or custody). We affirm.

On appeal, respondent challenges the trial court's findings with respect to the statutory grounds for termination and the children's best interests. 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 must terminate the respondent's parental rights to that child. MCL 712A.19b(3) and (5) ; In re Moss, 301 Mich.App. 76, 90, 836 N.W.2d 182 (2013) ; In re Ellis, 294 Mich.App. 30, 32–33, 817 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d 161 (1989).

With respect to MCL 712A.19b(3)(k)(ii ), termination is proper when "[t]he parent abused the child or a sibling of the child and the abuse included ... [c]riminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate." In this case, CS, who was born in 2009, consistently reported that respondent penetrated her vagina with his finger. The trial court found that CS's statements were credible and that respondent's explanation was not credible. See In re HRC, 286 Mich.App. at 460, 781 N.W.2d 105 ("It is not for this Court to displace the trial court's credibility determination."). And, contrary to respondent's argument on appeal, the forensic interviewer from the Children's Assessment Center testified that CS indicated that respondent "put his finger all the way in her vagina," and the sexual-assault nurse examiner testified that there were multiple findings with respect to CS's vaginal area that were consistent with digital or penile penetration. These medical findings corroborated CS's statements, and respondent's explanation of the circumstances was not consistent with the statements or the medical findings. The evidence clearly and convincingly established that respondent had digitally penetrated CS, which was an act of criminal sexual conduct involving penetration. Therefore, the trial court did not clearly err by finding that termination was warranted under MCL 712A.19b(3)(k)(ii ) with respect to CS. The trial court also did not clearly err by finding that termination was proper under MCL 712A.19b(3)(k)(ii ) with respect to BS because he is, indisputably, a sibling of CS. See In re Hudson, 294 Mich.App. at 265–266, 817 N.W.2d 115 (defining "sibling" as " ‘[o]ne of two or more individuals having one or both parents in common; a brother or sister’ ") (alteration in original; citation omitted).

Nevertheless, respondent argues that "the very absence of criminal charges in the case" refutes the allegations and supports his innocence. However, a parent need not be criminally charged with or convicted of criminal sexual conduct (CSC) for MCL 712A.19b(3)(k)(ii ) to apply. Indeed, it is MCL 712A.19b(3)(n)(i ) that addresses the situation in which a parent has actually been convicted of a CSC offense, and all that need be shown for purposes of termination under MCL 712A.19b(3)(n)(i ) is the CSC conviction, along with a best-interest determination; MCL 712A.19b(3)(k)(ii ) requires clear and convincing evidence but not CSC charges or a CSC conviction. As explained earlier, there was substantial evidence presented that respondent digitally penetrated CS. Therefore, this argument is without merit. Given the evidence of sexual abuse, we further hold that the trial court did not clearly err by finding grounds for termination under MCL 712A.19b(3)(b)(i ) and (g) with respect to CS, and because only one ground for termination need be established, we decline to address whether MCL 712A.19b(3)(b)(i ) supported termination in regard to BS.¹

With respect to the trial court's best-interest determination, we place our focus on the child rather than the parent.

In re Moss, 301 Mich.App. at 87, 836 N.W.2d 182. 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 N.W.2d 144 (2012) (citations omitted). Moreover, a trial court must "explicitly address whether termination is appropriate in light of the children's placement with relatives." Id. at 43, 823 N.W.2d 144.

With respect to CS's best interests, the trial court emphasized respondent's sexual abuse of CS. It reasoned that respondent's behavior demonstrated that he was not committed to meeting CS's needs, which required providing a safe and secure environment in which to grow up. The trial court noted that CS was in relative placement and that there was some evidence of a bond between CS and respondent. However, it reasoned that the abuse was "heinous and resulted in physical injury, as well as emotional injury." Therefore, the trial court found that CS could not "thrive and prosper and recover from the trauma she has sustained at the hands of her father if his parental rights remain intact," and it concluded that termination was in CS's best interests. Given respondent's sexual abuse of CS, it was not clearly erroneous to conclude that termination was in her best interests. Moreover, there was evidence that respondent imposed excessive physical discipline, and CS reported that there was a lot of fighting between her mother and respondent, which frightened her. Given these facts, the trial court did not clearly err by finding that termination of respondent's parental rights was in CS's best interests.

Respondent argues that the trial court failed to give proper...