in Re lee/lee Daniels Minors ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re LEE/LEE DANIELS, Minors. September 11, 2018
No. 341196
Wayne Circuit Court
Family Division
LC No. 13-512596-NA
Before: SWARTZLE, P.J., and JANSEN and O’BRIEN, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to her
five children: CTL, KLL, ZAML, ZPBL, and ZRLD. The trial court terminated respondent’s
rights under MCL 712A.19b(3)(b)(i) (parent caused sexual abuse of the children), (b)(ii) (parent
failed to prevent abuse), (g) (failure to provide proper care and custody), and (j) (reasonable
likelihood that children will be harmed if returned to parent).1 We affirm.
Respondent first argues that the trial court clearly erred by finding statutory grounds for
termination. We disagree. “To terminate parental rights, a trial court must find by clear and
convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been
established.” In re Moss, 301 Mich. App. 76, 80; 836 NW2d 182 (2013). “We review for clear
error a trial court’s finding of whether a statutory ground for termination has been proven by
clear and convincing evidence.” Id. “A finding is clearly erroneous if the reviewing court is left
with a definite and firm conviction that a mistake has been made.” In re LaFrance, 306 Mich
App 713, 723; 858 NW2d 143 (2014). We generally defer to the trial court’s special ability to
judge the credibility of witnesses. In re Gach, 315 Mich. App. 83, 93; 889 NW2d 707 (2016).
The trial court found clear and convincing evidence to terminate respondent’s parental
rights under MCL 712A.19b(3)(b)(ii). Termination is appropriate under MCL
712A.19b(3)(b)(ii) if “[t]he parent who had an opportunity to prevent the . . . sexual abuse of the
child . . . failed to do so and the court finds that there is a reasonable likelihood that the child will
suffer injury or abuse in the foreseeable future if placed in the parent’s home.”
1
While the termination order indicates that respondent’s parental rights were also terminated
under MCL 712A.19b(3)(a)(i), this appears to be a clerical mistake intended only to apply to the
children’s unknown fathers, as that ground concerns the inability to ascertain a parent’s identity.
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The Department of Health and Human Services (DHHS), filed a petition to terminate
respondent’s parental rights after substantiating allegations that ZPBL was sexually abused by
respondent’s friend, Isaac Seals. At trial, ZPBL testified to the sexual abuse she suffered at the
hands of Seals. ZPBL testified that before the incident that triggered the DHHS’s involvement,
she had told respondent that Seals had touched her inappropriately, and that afterwards
respondent continued to allow Seals to watch ZPBL and the other children. Thus, the evidence
at trial established that ZPBL’s sexual abuse was the result of respondents’ failure to prevent the
abuse; namely, respondent’s choice to continue leaving the children alone with Seals after being
alerted to Seals’s inappropriate acts.2 On appeal, respondent argues that we should disregard
ZPBL’s testimony because it is not credible. As an appellate court, it is difficult for us to judge a
witness’s credibility, which is why we generally defer to the trial court on this matter. See In re
Gach, 315 Mich. App. at 93. The trial court found ZPBL to be credible, and respondent has not
presented a sufficient basis for us to question the trial court’s credibility determination.
As for the reasonable likelihood that the children would suffer future abuse if placed in
respondent’s care, the trial court found that respondent failed to take appropriate action when she
learned that ZPBL had been sexually abused. Respondent asserts that this finding was erroneous
because she attempted to notify the police after learning that Seals had sexually abused ZPBL.
While notifying the police was a proper response, respondent only took this action after she
found out that another adult had taken ZPBL to the hospital and the police station. 3 In addition,
the trial court found credible ZPBL’s testimony that respondent told her not to tell anyone and
attempted to bully ZPBL into lying at the termination trial. Because respondent failed to
properly act upon learning of the sexual abuse—and actually tried to cover-up the abuse—it is
apparent that respondent does not understand her role in creating the situation that led to ZPBL’s
sexual abuse. Thus, there is a reasonable likelihood that respondent would care for the children
in the same manner as she always has and would continue exposing them to danger.
Consequently, the trial court did not clearly err by finding by clear and convincing evidence that
there was a reasonable likelihood that the children would suffer future abuse if placed in
respondent’s care.
Having concluded that termination was proper under MCL 712A19(b)(3)(b)(ii), we need
not consider the additional grounds upon which the trial court based its decision. In re HRC, 286
Mich. App. 444, 461; 781 NW2d 105 (2009).
2
Respondent testified at trial that she never left the children alone with Seals and that ZPBL
never told her of Seals’s inappropriate behavior, but the trial court credited ZPBL’s testimony
and not respondent’s. Indeed, respondent’s testimony was contradicted in part by Garrick Kern,
who testified that he used to stay with respondent and the children, and that he once slept outside
of Seals’s house in his car while the children slept inside Seals’s house.
3
Moreover, respondent’s testimony on this point was internally contradictory. During a June 27,
2017 family team meeting, respondent denied that ZPBL was sexually abused, and she continued
to express doubt that ZPBL was sexually abused at trial. Thus, according to respondent, she
apparently attempted to notify the police to a sexual abuse that she believed never happened.
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Respondent next argues that the trial court erred by finding by a preponderance of the
evidence that it would be in the best interests of the children to terminate her parental rights. We
disagree. “[W]hether termination of parental rights is in the best interests of the child must be
proved by a preponderance of the evidence.” In re Moss, 301 Mich. App. at 90. Appellate courts
“review for clear error . . . the court’s decision regarding the child’s best interests.” In re Trejo,
462 Mich. 341, 356-357; 612 NW2d 407 (2000), superseded by statute on other grounds as
recognized in In re Moss, 301 Mich. App. at 83. Again, we defer to the trial court’s special ability
to judge the credibility of witnesses. In re Gach, 315 Mich. App. at 93.
The best-interests analysis focuses on the child rather than the parent. In re Schadler,
315 Mich. App. 406, 411; 890 NW2d 676 (2016). The trial court should weigh all the evidence
available to it in determining the child’s best interests, In re Trejo, 462 Mich. at 364, and 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, 297 Mich. App. 35, 41-42; 823 NW2d 144 (2012).
The trial court found that termination was in the children’s best interests because
respondent was homeless, had the children stay in abandoned buildings, and otherwise failed to
provide adequate living conditions for the children. ZPBL testified that she and her siblings
spent most of the time walking from one temporary place of lodging to another. According to
ZPBL, when respondent did find housing, it was in the form of hotels or motels, abandoned
buildings, or the homes of friends. Other evidence at trial established that respondent had been
unable to consistently maintain suitable housing since the children originally fell within the
court’s jurisdiction in 2013. Thus, the trial court’s finding that respondent was homeless and
living in abandoned buildings is supported by the record.
Respondent contends that her only barrier to reunification was housing; she apparently
fails to realize that her issues extended beyond her failure to maintain suitable housing. ZPBL
testified that even when respondent found shelter for ZPBL and her siblings, respondent often
left the children alone, leaving ZPBL to care for her younger siblings. Thus, ZPBL—who was
10 years old at the time of trial—was responsible for changing CTL’s diapers, bathing her
siblings, and washing their clothes. ZPBL also testified that respondent often failed to leave
them with sufficient food, and told of one time when she and her four siblings were forced to
share one can of Vienna sausages. In addition, the evidence at trial established that respondent
failed to consistently enroll her children in school. Even when the children were enrolled, they
missed months of school at a time, and neither respondent nor the children could remember the
names of the children’s teachers. Respondent also lacked employment at the time of the
evidentiary hearing. The inadequate conditions that the children were forced to live in while in
respondent’s care, as well as the unlikelihood that respondent would be able to provide adequate
living conditions in the future, support that termination was in the children’s best interests.
The trial court also found, and we agree, that termination was in the children’s best
interests based on respondent’s failure to protect ZPBL from sexual abuse. Not only did
respondent fail to protect ZPBL, but she failed to take appropriate action upon learning of the
abuse. The evidence showed that rather than taking ZPBL to the hospital or law enforcement,
respondent instructed ZPBL to not tell anyone. In fact, ZPBL testified that respondent attempted
to bully her into lying about Seals’s actions. Respondent’s failure to prevent the abuse—as well
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as her actions to try to cover-up the abuse—evidence that the children’s safety and well-being
could not be reasonably assured in respondent’s care, which in turn supports that termination was
in the children’s best interests. See In re VanDalen, 293 Mich. App. 120, 142; 809 NW2d 412
(2011) (in the context of unknown physical abuse, holding that the trial court did not clearly err
by finding that termination was in the children’s best interests because their “safety and well-
being could not reasonably be assured”).
On appeal, respondent contends that she had a strong bond with the children, which
supports that termination was not in the children’s best interests.4 While we agree that
respondent’s bond with her children weighs against termination, this is just one factor that we are
to consider. When considering the entire record, we are not left with a definite and firm
conviction that the trial court erred by finding by a preponderance of the evidence that
termination was in the children’s best interests.5
Affirmed.
/s/ Brock A. Swartzle
/s/ Kathleen Jansen
/s/ Colleen A. O'Brien
4
Respondent also asserts that the trial court did not properly consider the testimony of
foster-care worker Aleisha Alston, who, respondent contends, “did not believe that it would be in
the best interest to break up the family.” Contrary to respondent’s assertion, Alston testified that
she did not have an opinion whether respondent’s parental rights should be terminated.
5
Relying on In re Olive/Metts, 297 Mich. App. at 43, respondent argues that the trial court was
required, and failed, to address the best interests of each child individually. In In re White, 303
Mich. App. 701, 715; 846 NW2d 61 (2014), this Court clarified that “In re Olive/Metts stands for
the proposition that, if the best interests of the individual children significantly differ, the trial
court should address those differences when making its determination of the children’s best
interests.” Respondent does not argue that the best interests of the individual children differed
significantly, and we can find nothing in the record to otherwise support that conclusion.
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