in Re Baldwin Minors ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re BALDWIN, Minors. October 8, 2019
No. 348134
Oakland Circuit Court
Family Division
LC No. 18-866892-NA
Before: CAVANAGH, P.J., and BECKERING and GADOLA, JJ.
PER CURIAM.
Respondent appeals by right an order terminating his parental rights to his minor children
under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii). We affirm.
The Department of Health and Human Services (DHHS) filed a petition seeking
termination of respondent’s parental rights. It was alleged that respondent had sexually abused
his eldest daughter and had been charged with multiple counts of third-degree criminal sexual
conduct, and that respondent had required his son to clean his buttocks after bowel movements
and provided no documentation to establish that the assistance was medically necessary. The
petition additionally alleged that a voluntary safety plan was put in place that barred respondent’s
contact with the children until a Child Protective Services (CPS) investigation could be
completed, that respondent continued to have contact with the children at the hotel where he
stayed, and that he had moved back into the family home for a short time.
At a bench trial on the question of jurisdiction and whether there were statutory grounds
for termination of respondent’s parental rights, his eldest daughter testified that he had sexually
abused her at least 10 times. Her testimony was graphic and extremely detailed. Her friend
testified that respondent had inappropriately discussed his sex life with her and had sent her an
Internet link to a video regarding pleasing your partner sexually. Respondent’s 12-year-old son
testified that he frequently wiped respondent’s buttocks after bowel movements. He claimed that
it was necessary because respondent had medical issues with his back, that he did not mind doing
this for his father, and that his mother also did it for respondent. Based on this evidence, the trial
court found that the children came within its jurisdiction by reason of neglect, criminality, and
depravity. It also found that the above listed statutory grounds were proven by clear and
convincing evidence.
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The trial court then held a best-interests hearing. It took judicial notice of a
psychological evaluation report prepared after a court-ordered evaluation of respondent. The
report concluded that it was in the children’s best interests to terminate respondent’s parental
rights. A CPS caseworker testified that respondent refused to participate in services offered to
him and that it was in the children’s best interests to terminate his parental rights. The children’s
mother testified that the children had a close bond to respondent. She opined that there was
nothing inappropriate about her son wiping respondent’s buttocks, and she did not believe the
sexual abuse allegations. The trial court found that it was in the children’s best interests to
terminate respondent’s parental rights considering the sexual abuse, the improper care of
respondent’s son, the failure to participate in services, and the children’s need for permanency
and stability.
Respondent first argues on appeal that the trial court clearly erred in assuming
jurisdiction over the children. We disagree.
We review rulings regarding jurisdiction “for clear error in light of the court’s findings of
fact.” In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). “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). We
review de novo the interpretation and application of statutes and court rules. In re Sanders, 495
Mich 394, 404; 852 NW2d 524 (2014). “We give deference to the trial court’s special
opportunity to judge the credibility of the witness.” In re HRC, 286 Mich App at 459.
MCL 712A.2 governs jurisdiction in child neglect proceedings. That statute states in
relevant part:
The court has the following authority and jurisdiction:
* * *
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age
found within the county:
(1) Whose parent or other person legally responsible for the care and
maintenance of the juvenile, when able to do so, neglects or refuses to provide
proper or necessary support, education, medical, surgical, or other care necessary
for his or her health or morals, who is subject to a substantial risk of harm to his
or her mental well-being, who is abandoned by his or her parents, guardian, or
other custodian, or who is without proper custody or guardianship.
* * *
(2) Whose home or environment, by reason of neglect, cruelty,
drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent
adult, or other custodian, is an unfit place for the juvenile to live in.
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It is well-established that “[e]vidence 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).
Most concerning in this case was the evidence that respondent sexually abused his eldest
daughter. The trial court found her testimony credible, noting that she did not “waver in such
testimony whatsoever.” Her friend’s testimony indicated that respondent’s inappropriate
behavior was not isolated to his daughter. Evidence of how respondent treated his daughter is
evidence of how he may treat his younger children. Id. We conclude that there was no clear
error in the finding that the home environment by reason of criminality and depravity was an
unfit place for the minor children; accordingly, jurisdiction over the children was proper under
MCL 712A.2(b)(2). Moreover, the evidence demonstrated that respondent neglected or refused
to provide proper care and that jurisdiction over the children was also proper under MCL
712A.2(b)(1).
Respondent next argues that the trial court clearly erred in finding that the statutory
grounds for termination were proven by clear and convincing evidence. We disagree.
To terminate parental rights, the trial court must find that at least one of the statutory
grounds for termination has been established by clear and convincing evidence. MCL
712A.19b(3); In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). The trial court’s
determination is reviewed for clear error. Id. Only one statutory ground need be proven in order
to terminate parental rights. In re Laster, 303 Mich App 485, 495; 845 NW2d 540 (2013). We
accord deference to the trial court’s determinations on witness credibility. In re HRC, 286 Mich
App at 459.
We first address the trial court’s opinion regarding MCL 712A.19b(3)(g). Termination
under MCL 712A.19b(3)(g) is appropriate when “[t]he parent, although, in the court’s discretion,
financially able to do so, 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.” MCL 712A.19b(3)(g) was amended by 2018 PA
58, effective June 12, 2018. The preamendment language stated: “The 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.” (Emphasis added). As noted, the statute now requires financial
ability. The petition seeking the termination of respondent’s parental rights was filed on August
17, 2018—after the amendment became effective—and the court’s opinion was issued on
February 14, 2019. Accordingly, subsection (g) should have been analyzed under the amended
language, but the trial court erroneously used the preamendment language. Nevertheless, we
conclude that the trial court did not clearly err in its findings and conclusions regarding the
remaining statutory grounds.
The trial court also terminated respondent’s parental rights under MCL
712A.19b(3)(b)(i), (j), and (k)(ii) which state:
(3) The court may terminate a parent’s parental rights to a child if the
court finds, by clear and convincing evidence, 1 or more of the following:
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* * *
(b) The child or a sibling of the child has suffered physical injury or
physical or sexual abuse under 1 or more of the following circumstances:
(i) The 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.
* * *
(j) There 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.
* * *
(k) The parent abused the child or a sibling of the child, the abuse included
1 or more of the following, and there is a reasonable likelihood that the child will
be harmed if returned to the care of the parent:
* * *
(ii) Criminal sexual conduct involving penetration, attempted penetration,
or assault with intent to penetrate.
“Harm” under MCL 712A.19b(3)(j) includes physical as well as emotional harm. In re Hudson,
294 Mich App at 268. And, again, “[e]vidence of how a parent treats one child is evidence of
how he or she may treat the other children.” Id. at 266.
The evidence demonstrated that respondent sexually abused the minor children’s older
sibling and that the abuse included criminal sexual conduct involving penetration. The sibling’s
friend established that respondent’s inappropriate sexual conduct was not limited to his eldest
daughter. And as discussed, how respondent treated her was evidence of how he might treat the
younger children. Moreover, respondent’s assessment that there was nothing improper about
having his son wipe his buttocks after bowel movements, as well as his disregard of the safety
plan, was evidence that the children might be emotionally harmed if returned to his care.
Therefore, we are not “left with a definite and firm conviction that a mistake has been made,” In
re HRC, 286 Mich App at 459, in the trial court’s findings that the remaining statutory grounds
were proven by clear and convincing evidence.
Respondent lastly argues that the trial court clearly erred in finding that termination of his
parental rights was in the best interests of the children. We disagree.
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The trial court must find by a preponderance of the evidence that termination was in the
children’s best interests. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The trial
court’s findings of fact are reviewed for clear error. In re HRC, 286 Mich App at 459.
“If the court finds that there are grounds for termination of parental rights and that
termination of parental rights is in the child’s best interests, the court shall order termination of
parental rights and order that additional efforts for reunification of the child with the parent not
be made.” MCL 712A.19b(5). In determining the children’s best interests, the trial court may
consider the children’s bond to the parent; the parent’s parenting ability; the children’s need for
permanency, stability, and finality; and the suitability of alternative homes. In re Olive/Metts,
297 Mich App 35, 41-42; 823 NW2d 144 (2012). “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).
Regarding respondent’s parenting ability, apart from the sexual abuse of his older
daughter and the inappropriate behavior toward her friend, defendant thought it was proper to
have his young son wipe his buttocks after defecating. Respondent also refused to participate in
services, and he declined to take responsibility for his actions. A psychological evaluation report
recommended that termination was in the children’s best interests. And a CPS caseworker
agreed with that recommendation. The trial court also considered the children’s need for
permanence and stability when it stated that it was imperative that the children not have to wait
for stability and permanence so that they could “begin correcting the family dysfunction that they
have been subjected to in [respondent’s] care.” Although the trial court did not consider such
factors as the possibility of adoption or the history of domestic violence, those factors were not
present in this case, and thus, they were not relevant. We conclude that the trial court considered
the appropriate factors, and we are not “left with a definite and firm conviction that a mistake has
been made,” In re HRC, 286 Mich App at 459, in the trial court’s findings that it was in the
children’s best interests to terminate respondent’s parental rights.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Jane M. Beckering
/s/ Michael F. Gadola
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