In Re Hamminga Minors ( 2024 )

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UNPUBLISHED
August 15, 2024
In re MH and TH, Minors.
No. 368418
Grand Traverse Circuit Court
Family Division
LC No. 2021-004919-NA
Before: SWARTZLE, P.J., and K. F. KELLY and YOUNG, JJ.
PER CURIAM.
Respondent-mother appeals by right the trial court’s order terminating her parental rights
to the minor children, MH and TH.1 Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case began when petitioner Department of Health and Human Services received an
allegation in 2020 that respondent’s oldest son, MHJ, sexually assaulted TH. After the court
acquired jurisdiction over the children in 2021 and adjudicated respondent, she complied with her
service plan and was dismissed from the case. It was later discovered that TH had been repeatedly
sexually abused by MHJ and that MHJ had attempted to assault MH on more than one occasion.
A safety plan was put into place giving respondent temporary custody of MH, TH, and
MHJ until MHJ could be placed in a juvenile facility. The safety plan stipulated that respondent
was to never leave the children unsupervised. In January 2022, however, respondent left the three
children alone at a water park, where MHJ sexually assaulted TH. Although respondent learned
of the assault days later, she did not report it to the authorities.
1
At the time of termination, respondent-father’s parental rights had not been terminated, and he is
not a party to this appeal.
-1-
Upon learning of the assault, petitioner sought termination of respondent’s parental rights.
Ultimately, the trial court terminated respondent’s parental rights to MH and TH under MCL
712A.19b(3)(b)(ii) (child or sibling of child suffered sexual abuse and parent failed to prevent it),
(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care or
custody), and (j) (reasonable likelihood of harm if child returned to parent), as a result of her failure
to protect, her poor judgment, and the guarded prognosis given by psychologists regarding her
capacity to be an effective parent. Because MHJ was located in a juvenile facility, was close to
18, and had no support system, the court concluded that it was not in MHJ’s best interests to
terminate respondent’s parental rights as to him.
This appeal followed.
II. STANDARDS OF REVIEW
To terminate a respondent’s parental rights, the trial court must find by clear and
convincing evidence that at least one statutory ground for termination has been established. In re
Pops, 315 Mich App 590, 593; 890 NW2d 902 (2016). This Court reviews for clear error the trial
court’s factual findings and its ultimate determination that a statutory ground has been established.
In re Keillor, 325 Mich App 80, 85; 923 NW2d 617 (2018). A finding is clearly erroneous if, even
though some evidence supports it, the Court is nevertheless left with the firm and definite
conviction that the lower court made a mistake. Id.III. ANALYSIS
Under MCL 712A.19b(3)(b)(ii), the trial court may terminate a parent’s parental rights if
there is clear and convincing evidence that the “parent who had the opportunity to prevent the
physical injury or physical or sexual abuse 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.” To terminate a parent’s rights under MCL 712A.19b(3)(b)(ii), petitioner is
not required to show that “the children were at risk of harm from the same abuser”; instead, the
provision “addresses the harm occasioned by a parent who is unwilling or unable to protect his or
her children from abuse.” In re Gonzalez/Martinez, 310 Mich App 426, 432; 871 NW2d 868(2015).
Similarly, under MCL 712A.19b(3)(j), termination is proper if “there is a reasonable
likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if
the child is returned to the home of the parent.” The proper focus of this provision is not only the
risk of physical harm to the children but also the risk of emotional harm as well. In re Hudson,
294 Mich App 261, 268; 817 NW2d 115 (2011).
The trial court did not clearly err when it found that petitioner established statutory grounds
for termination of her parental rights as to TH under MCL 712A.19b(3)(b)(ii) by clear and
convincing evidence. The adjudication was based on respondent’s failure to supervise and protect
her children properly at the water park where TH was sexually assaulted by MHJ in MH’s
presence. This incident occurred despite respondent’s agreement to adhere to a strict safety plan
stating that MH and TH were not to be left alone with MHJ and despite respondent’s knowledge
of the danger posed to the children if left alone with MHJ.
-2-
The same is true for the trial court’s determination under MCL 712.19b(3)(j) as to both
children. Despite respondent’s knowledge of the risk MHJ posed to the children if left alone with
them, respondent chose to leave the three alone at the water park in order to be with her boyfriend.
Respondent’s demonstrated lack of judgment with regard to the safety of her children and her
inability to make significant progress in recognizing her deficiencies entitled the trial court to find
by clear and convincing evidence that there was a reasonable likelihood the children would face
further physical and emotional harm if returned to respondent’s care. See In re Hudson, 294 Mich
App at 268.
On appeal, respondent contends that any danger posed by MHJ could have been eliminated
if the court had simply terminated respondent’s parental rights to MHJ. But this argument
overlooks the purpose of MCL 712A.19b(3)(b)(ii), which is not to ensure that the children are
protected from a particular abuser, but rather to protect the children from the parent who is unable
or unwilling to protect her children from any abuser. See In re Gonzalez/Martinez, 310 Mich App
at 432. In other words, the concern is respondent’s general judgment and inability to protect her
children.2
Respondent also contends that the trial court improperly focused on the water park incident
and failed to acknowledge that respondent could have learned new parenting skills with additional
services. But respondent already had engaged in many services by that time and continued to
receive services throughout the proceedings. Megan Wuerfel, a caseworker, testified that despite
the services, respondent was not doing enough to make TH feel safe and was not recognizing the
severity of the impact of the sexual assault. Wuerfel stated that TH reverted to acting like a toddler
during parenting time with respondent. She also stated that respondent was not in touch with the
children’s teachers about their educational needs and was not providing them with sufficient
educational support. In addition, while these proceedings were ongoing, MH sexually assaulted
TH. Respondent characterized the assault as “an experiment” based on “curiosity,” and justified
it because TH did not say “no.” This incident demonstrates that respondent clearly had not
progressed from her services to be able to understand her children’s problems and needs.
Accordingly, the trial court did not clearly err by finding that statutory grounds for
termination had been established under MCL 712A.19b(3)(b)(ii) and (j). And because petitioner
was only required to establish at least one ground for termination under MCL 712A.19b(3), we
need not address respondent’s remaining challenges to the other grounds for termination. In re
Gonzalez/Martinez, 310 Mich App at 431.3
2
In addition to the sexual abuse committed by MHJ, respondent-father was also alleged to have
been physically abusive towards respondent and the children, and obstructed the authorities who
attempted to investigate MHJ’s sexual assaults.
3
Although respondent does not challenge on appeal the trial court’s best-interests determination,
we have little trouble concluding that the trial court did not clearly err when it determined that
termination of respondent’s parental rights was in the children’s best interests. See MCL
712A.19b(5) (“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
-3-
Affirmed.
/s/ Brock A. Swartzle
/s/ Kirsten Frank Kelly
/s/ Adrienne N. Young
parental rights and order that additional efforts for reunification of the child with the parent not be
made.”). “To determine whether termination of parental rights is in a child’s best interests, the
court should consider a wide variety of factors that may include 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 White, 303 Mich App 701, 713; 846
NW2d 61 (2014) (quotation marks and citation 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.” Id. at 714. The trial court heard testimony that the children did not trust
or feel safe with respondent, who had a poor prognosis for obtaining adequate parenting skills.
Respondent was unable to comply with her service and safety plans, which facilitated the sexual
assault of TH at the water park. Respondent was also unable to meet the children’s emotional and
intellectual needs, especially their need to feel protected and safe. In light of these circumstances,
the trial court did not clearly err when it concluded termination was in the children’s best interests.
See id.-4-