in Re Clemons Minors ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re CLEMONS, Minors. December 28, 2017
No. 338177
Genesee Circuit Court
Family Division
LC No. 16-133700-NA
Before: MURRAY, P.J., and K. F. KELLY and FORT HOOD, JJ.
PER CURIAM.
Respondent appeals as of right from an order terminating his parental rights to his three
children, JMC, JDC, and JWC, under MCL 712A.19b(3)(b)(i) (physical or sexual abuse), (g)
(failure to provide proper care and custody), (j) (reasonable likelihood of harm), and (n)
(conviction of serious criminal offense). We affirm.
I. FACTS
In November 2016, respondent entered JMC’s room1 while she was sleeping and touched
her buttocks and vaginal area over her spandex pants. Respondent took a video of himself doing
so on his cell phone. His motivation was apparently retribution against his wife, the mother of
the children, for talking with other men. JMC was not aware of the incident until the next day
when her mother showed her the video. Ultimately, respondent pleaded guilty to fourth-degree
criminal sexual conduct.
At the termination hearing, respondent stated that he recorded himself touching JMC
“[b]ecause [] at multiple times found my wife talking to [JMC’s] biological father, and that day
was another one of those days, and, in my drunken stupidity, I did it.” Respondent added that he
recorded the touching “[s]o that [his wife] could see it because I know she checks my phone
every night.” Respondent also indicated that the incident with JMC was intended to stop his
wife from speaking with other men.
1
Respondent is the biological father of JDC and JWC, and signed an affidavit of parentage with
respect to JMC.
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Respondent’s wife explained that when respondent found out in September 2016 that she
was talking with JMC’s father, respondent “pushed me, started yelling at me, calling me names.”
She said that “when he pushed me down, he grabbed a hold of my leg and started dragging me
down my hallway all the way to my front door, and then kicked me out of my house with nothing
on but just my pants and my shirt, and called me names.” She affirmed that respondent had been
violent toward her “a good three times within the year prior to this,” elaborating that “[h]e hasn’t
physically hurt me. He’s yelled at me and stuff. It always started with yelling. I’d swing back if
he would swing at me though.” The trial court inquired how respondent had been physically
violent, and she explained: “He would push me down. He’s drug me all the way through my
house before, in the bedroom, all the way down the hallway, outside. He kicked me out of the
house. That’s how a lot of our fights went.” She affirmed that respondent had hit her in the past.
Respondent’s wife also said that he was “superior” and explained that she meant:
I was lower than him. I’ve never been equal to him. He made all the rules. I had
to abide by them. If I didn’t, we fought. That’s how it was. I mean it was pretty
much like an olden day relationship where I stay at home with the kids, all that
stuff, and he went to work and he made all the money and I didn’t even have any
access to the bank accounts or nothing like that because whenever I did, we’d
fight because something got messed up, you know. That’s why I say he was
superior because of the fact that he really was superior. He was. He knows this,
and I don’t think he would deny it. I’m sure that he wouldn’t deny it because he
knows it.
Much of this testimony was in response to the trial court’s questions. The trial court asked the
attorneys if they had any follow-up questions and respondent’s attorney then asked about
incidents where the wife may have struck respondent with a belt and baseball bat.
The trial court found that petitioner had introduced clear and convincing evidence to
terminate respondent’s rights and that termination was in the children’s best interests. The court
explained that prior to the hearing, it had been “skeptical of the request to terminate
[respondent’s] rights as to [JDC and JWC],” that it had assumed respondent’s motive for
sexually assaulting JMC was sexual gratification, and that its opinion changed when it learned
that respondent’s motive was “an escalation of power and control tactics after violence against
mother no longer worked.” The trial court further explained that “while there is little chance that
father would sexually abuse the boys for sexual gratification, there is a high risk that he would
hurt them to maintain power and control. The risk is even higher given father’s propensity to
escalate the harm, both in degree and kind.” In conclusion, the trial court found “that
[respondent] poses an unacceptable risk to the children and that there is no way to remediate that
risk to an acceptable level within a reasonable time. As such, petitioner has proven grounds for
termination pursuant to subsections (b)(i), (g), (j) and (n) of MCL 712A.19b(3).” The trial court
also concluded that termination was in the children’s best interests after weighing the bond
between respondent and the children against the “risk for serious physical and psychological
harm,” and determining that the risk of harm was “the greater concern.”
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II. DISCUSSION
Respondent argues that the trial court terminated his parental rights on the basis of
domestic violence, that the domestic violence was a “new or different” circumstance than what
was set forth in the petition, and that his due process rights were violated when his rights were
terminated based on this “new or different” circumstance without petitioner filing a supplemental
petition.
This Court reviews de novo questions of constitutional law, including “[w]hether a child
protective proceeding complied with a respondent’s right to due process . . . .” In re Williams,
286 Mich App 253, 271; 779 NW2d 286 (2009). “A natural parent possesses a fundamental
interest in the companionship, custody, care, and management of his or her child, an element of
liberty protected by the due process provisions in the Fourteenth Amendment of the United
States Constitution and article 1, § 17, of the Michigan Constitution.” Frowner v Smith, 296
Mich App 374, 381; 820 NW2d 235 (2012). “The essentials of procedural due process are
adequate notice, an opportunity to be heard, and a fair and impartial tribunal.” Hughes v Almena
Twp, 284 Mich App 50, 69; 771 NW2d 453 (2009).
We conclude that respondent received adequate notice that there would be testimony
regarding domestic violence. The original petition asserted that the children came within the
trial court’s jurisdiction because
[t]he parent or other person legally responsible for the care and
maintenance of the child(ren), when able to do so, neglected or refused to provide
proper or necessary support, education, medical, surgical, or other care necessary
for the child(ren)’s health or morals, or he/she has subjected the child(ren) to a
substantial risk of harm to his or her mental well-being, or he/she has abandoned
the child(ren) without proper custody or guardianship.
The petition also alleged that the children came within the trial court’s jurisdiction because “[t]he
home environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the
part of the parent, guardian, nonparent adult, or other custodian, is an unfit place for the
child(ren) to live.” Additionally, the petition contained a request for termination of respondent’s
parental rights on the grounds that “[t]he child or sibling of the child has suffered physical injury
or physical or sexual abuse . . .” and the “parent’s act caused the physical injury or sexual abuse
and the court finds that there is a reasonable likelihood that the child will suffer from injury or
abuse in the foreseeable future if placed in the parent’s home.” MCL 712A.19b(3)(b)(i).
The quoted statute provides a ground for termination if there is reasonable likelihood that
a child will suffer injury or abuse; it does not require a reasonable likelihood of another incident
of sexual abuse. As a result, respondent was on notice that he would have to rebut evidence that
tended to establish that he might harm his daughter and/or his sons in the future, i.e., evidence of
prior physical abuse against his wife and the reasons behind it. Additionally, the petition
indicated that “[t]his family has had prior contacts with CPS on the following dates: 6/28/2005
and 10/10/2013. These contacts were made due to allegations of Improper Supervision,
Threatened Harm, Substance Abuse, Physical Abuse, and Failure to Protect.” This provided
respondent additional notice that he may have to defend against evidence related to “threatened
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harm” or “physical abuse.” Because respondent was provided notice that he might have to face
testimony concerning domestic abuse, which would have a bearing on the “reasonable likelihood
that the child will suffer from injury or abuse in the foreseeable future,” MCL 712A.19b(3)(b)(i),
as well as “threatened harm” or “physical abuse,” we conclude that respondent was provided
adequate notice of the possibility of being faced with testimony regarding domestic violence.
Respondent argues that domestic violence was a new or different circumstance, which
would require petitioner to file a supplemental petition. We conclude that the domestic violence
was not a “new or different circumstance.”
Petitioner asserted, and the trial court found, that grounds existed under MCL
712A.19b(3)(b)(i), (g), (j) and (n). MCL 712A.19b(3)(b)(i) provides that termination is
appropriate when the “child or a sibling of the child has suffered physical injury or physical or
sexual abuse” and that “[t]he parent’s act caused the physical injury or physical or sexual abuse
and the court finds that there is a reasonable likelihood that the child will suffer from injury or
abuse in the foreseeable future if placed in the parent’s home.” Termination is proper under
MCL 712A.19b(3)(g) if the petitioner proves by clear and convincing evidence that “[t]he
parent, without regard to 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.” Termination is proper under MCL 712A.19b(3)(j)
if the petitioner proves by clear and convincing evidence that “[t]here 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.” Termination is proper under MCL 712A.19b(3)(n) if the
petitioner proves by clear and convincing evidence that the respondent has been convicted of an
offense specified in MCL 712A.19b(3)(n)(i),2 and “the court determines that termination is in the
child’s best interests because continuing the parent-child relationship with the parent would be
harmful to the child[.]”
The trial court elicited testimony from respondent’s wife detailing the manner in which
respondent would react when he became angry, particularly at her. She recounted respondent
yelling at her, and forcing her out of the house. This testimony shed light on respondent’s
actions when faced with a situation that angered him, and assisted the trial court in finding that
there was “a reasonable likelihood that the child will suffer from injury or abuse in the
foreseeable future if placed in the parent’s home.” MCL 712A.19b(3)(b)(i). This testimony also
provided evidence demonstrating that there was a reasonable likelihood that the children would
be harmed by respondent if returned to him, § (3)(j), and that “termination is in the child’s best
interests because continuing the parent-child relationship with the parent would be harmful to the
child,” MCL 712A.19b(3)(n). Further, because the testimony demonstrated respondent’s
tendency toward being violent, it provided evidence that “[t]he parent, without regard to intent,
fails to provide proper care or custody for the child and there is no reasonable expectation that
2
This includes violations of sections “316, 317, 520b, 520c, 520d, 520e, or 520g of the Michigan
penal code, 1931 PA 328, MCL 750.316, 750.317, 750.520b, 750.520c, 750.520d, 750.520e
[fourth-degree criminal sexual conduct], and 750.520g.” MCL 712A.19b(3)(n)(i).
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the parent will be able to provide proper care and custody within a reasonable time considering
the child’s age.” MCL 712A.19b(3)(g). Therefore, the domestic violence testimony was
“related to,” In re Gilliam, 241 Mich App 133, 137; 613 NW2d 748 (2000), grounds for
termination alleged in the petition as well as the reason the trial court assumed jurisdiction.
Because of this, we conclude that the domestic violence was not a “new or different
circumstance.”
Respondent next argues that the trial court’s questions violated MRE 614(b) and his right
to due process. Generally, whether a judge has pierced the veil of impartiality is determined by
looking at the totality of the circumstances to ascertain whether “it is reasonably likely that the
judge’s conduct improperly influenced the jury by creating the appearance of advocacy or
partiality against a party.” People v Stevens, 498 Mich 162, 171; 869 NW2d 233 (2015).
However, “a trial judge has more discretion to question witnesses during a bench trial than
during a jury trial[.]” In re Forfeiture of $1,159,420, 194 Mich App 134, 153; 486 NW2d 326
(1992). This Court reviews de novo “[w]hether a child protective proceeding complied with a
respondent’s right to due process” because it is a question of law. In re Williams, 286 Mich App
at 271.
MRE 614(b) provides that a trial court “may interrogate witnesses, whether called by
itself or by a party.” The Supreme Court has explained that “the central object of judicial
questioning should be to clarify.” Stevens, 498 Mich at 173. Accordingly, “it is appropriate for
a judge to question witnesses to produce fuller and more exact testimony or elicit additional
relevant information.” Id. at 173-174. Further, “[a] trial court has greater discretion in
questioning during a bench trial.” In re Jackson, 199 Mich App 22, 29; 501 NW2d 182 (1993).
Here, petitioner elicited testimony that respondent would “lose his temper too fast,” and
that he “liked to be very mean with his words.” Petitioner also elicited testimony that his
marriage had been “rocky,” that on the night of the incident respondent had “cuffed [his wife]
upside [the] head,” and that one month prior to the incident, he had forced her out of the house
and later forced her onto her knees and “took his thing out of his pants and started slapping me in
the face and stuff with it.” The trial court inquired about specifics regarding domestic violence
as follows:
[The court]: Any violence towards you?
[Witness]: Yes
[The court]: How many occasions?
[Witness]: I really don’t know. Every time he got mad at me over — I’d
have to say there was a good three times within the year prior to this.
[The court]: Can you describe for me what happened in those three times?
I know this is hard for you, but —
[Witness]: Our last big fight was because of the fact that he had found out
I was talking to [JMC’s] father and I had talked to a couple of other people. I’m
not a saint. I messed up.
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[The court]: How was he violent toward you?
[Witness]: He hasn’t physically hurt me. He’s yelled at me and stuff. It
always started with yelling. I’d swing back if he would swing at me though. I
know I did. I didn’t like him hit - I did like to fight him. So, I didn’t want to
fight, and I didn’t like him being angry with me.
[The court]: So, he was physically violent toward you?
[Witness]: Not always.
[The court]: Okay. You said three times within the year prior to the 17th.
[Witness]: Yes.
[The court]: Okay, so when he was physically [violent], how was he
physically violent? What did he do to be violent?
[Witness]: He would push me down. He’s drug me all the way through
my house before, in the bedroom, all the way down the hallway, outside. He
kicked me out of the house. That’s how a lot of our fights went.
[The court]: Okay. Did he ever hit you?
[Witness]: Yes.
[The court]: Had the police ever responded to any of these incidents?
[Witness]: I never told anybody. I took pictures, you know, as if I would
one day tell somebody.
According to the trial court, respondent’s wife seemed “very reluctant” to testify as to the
domestic violence. The trial court’s questions, then, were designed to “produce fuller and more
exact testimony or elicit additional relevant information,” Stevens, 498 Mich at 173, regarding
respondent potentially being violent toward his children. We therefore conclude that the
questioning was proper.
Respondent also argues that this questioning violated his right to due process. “The
essentials of procedural due process are adequate notice, an opportunity to be heard, and a fair
and impartial tribunal.” Hughes, 284 Mich App at 69. Respondent had adequate opportunity to
cross-examine the witness regarding the domestic violence, including asking whether she had
struck respondent with a belt and other objects. Additionally, there is no evidence that the trial
court was acting partially, as its questions regarding domestic violence were “designed to clarify
points and to elicit additional relevant evidence,” Law Offices of Lawrence J Stockler, PC v
Rose, 174 Mich App 14, 24; 436 NW2d 70 (1989). Therefore, the trial court’s questions did not
violate respondent’s right to due process.
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Respondent next argues that the trial court’s best-interest analysis was flawed. This
Court reviews the trial court’s decision on whether termination is in the best interests of the
minor child for clear error. In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004). For a
decision to be clearly erroneous, it must be “more than just maybe or probably wrong.” In re
Williams, 286 Mich App at 271. The reviewing court gives due regard “to the special
opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” In
re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
The best-interests determination focuses on the child, not the parent. In re Schadler, 315
Mich App 406, 411; 890 NW2d 676 (2016). “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.” Id. (citation
and quotation marks omitted). Respondent’s father and aunt testified that respondent had a bond
with all the children. Additionally, respondent explained that he took care of the children
financially. However, given respondent’s actions in sexually assaulting JMC for revenge against
his wife, there was no clear error in the determination that the children would be at a risk of harm
if they stayed in respondent’s custody. Further, JDC and JWC were both under the age of ten at
the time of the termination hearing. Given the young ages of the two boys, they likely needed
“permanency, stability, and finality,” id., rather than being concerned about their own well-being
in the aftermath of respondent’s assault of JMC. Therefore, the trial court did not clearly err
when it concluded that the best-interests analysis weighed in favor of termination.
Lastly, respondent argues that the trial court based termination solely on its insufficient
best-interest analysis and violated respondent’s due process rights because the analysis amounted
to an unconstitutional procedure that stripped respondent of his parental rights without facts
being admitted that demonstrated abuse toward the boys. The trial court followed the relevant
procedures set forth in MCR 3.977(E). As part of that procedure, the trial court found that at
least one statutory ground had been proven by clear and convincing evidence. In re JK, 468
Mich 202, 210; 661 NW2d 216 (2003); In re SLH, 277 Mich App 662, 674; 747 NW2d 547
(2008). The trial court concluded that petitioner had proven the grounds for termination under
MCL 712A.19b(3)(b)(i), (g), (j) and (n). MCL 712A.19b(3)(b)(i) provides that termination is
appropriate when the “child or a sibling of the child has suffered physical injury or physical or
sexual abuse” and that “[t]he parent’s act caused the physical injury or physical or sexual abuse
and the court finds that there is a reasonable likelihood that the child will suffer from injury or
abuse in the foreseeable future if placed in the parent’s home.” “Evidence of how a parent treats
one child is evidence of how he or she may treat the other children.” In re Hudson, 294 Mich
App 261, 266; 817 NW2d 115 (2011). Accordingly, it is “appropriate for a trial court to evaluate
a respondent’s potential risk to the other siblings by analyzing how the respondent treated
another one of his or her children . . . .” Id.In In re Jenks, 281 Mich App 514, 515; 760 NW2d 297 (2008), the respondent admitted
in a plea that he sexually penetrated his stepdaughter. There, the “trial court found, by clear and
convincing evidence, that [the] respondent had committed a sexual penetration of a half-sister of
the minor children and that there was a reasonable likelihood that the minor children would
suffer injury or abuse if ever placed in [the] respondent’s custody.” Id. at 515-516. This Court
rejected the respondent’s challenge to the trial court’s determination:
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The record clearly established that [the] respondent sexually abused the minor
children’s half-sister; [the] respondent does not dispute this. And the statute
clearly encompasses such conduct. Further, considering the nature of [the]
respondent’s criminal sexual conduct with the other child, which included
penetration, the trial court did not clearly err in determining that there is a
reasonable likelihood that the minor children would suffer injury or abuse in the
foreseeable future if placed in [the] respondent’s home. Therefore, the trial court
did not clearly err in finding that this ground for termination was established by
clear and convincing legally admissible evidence. [Id. at 517-518.]
This Court did not engage in an analysis of whether the respondent was likely to commit
similar offenses against his other children, or whether the other children had been abused.
Rather, it considered the “nature of [the] respondent’s criminal sexual conduct with the other
child” in determining that the trial court did not clearly err when it found clear and convincing
evidence to terminate the respondent’s rights under MCL 712A.19b(3)(g). In re Jenks, 281 Mich
App at 519. Similarly, the trial court here considered that respondent had admitted to sexually
assaulting JMC. It took into account testimony that respondent had committed domestic
violence, that the violence was a means for dominance and control, and that the sexual assault
was an escalation of the violence and dominance he sought to assert. Considering that
respondent stated that he touched JMC in response to his wife talking to other men, the trial court
did not clearly err when it found that petitioner had proven by clear and convincing evidence the
ground under § (3)(b)(i). Because petitioner need only prove one ground for termination, In re
JK, 468 Mich at 210, we decline to address the remaining grounds.
Respondent also challenges the trial court’s best-interests determination. Respondent
was present for both the jurisdictional trial as well as the termination hearing, and therefore had
an “opportunity to be heard.” Hughes, 284 Mich App at 69. Finally, although there were no
facts introduced tending to show that respondent had abused the boys, testimony was introduced
that demonstrated how respondent had dealt with situations that made him angry and ultimately
led him to sexually assaulting the boys’ half-sister. Respondent’s behavior indicated that the
boys could be placed in harm’s way, and respondent had the opportunity to rebut testimony
regarding his violent tendencies. Thus, respondent’s due process rights were not violated.
Affirmed.
/s/ Christopher M. Murray
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
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