in Re a Taylor Minor

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UNPUBLISHED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 A. TAYLOR, Minor. August 15, 2019
No. 347833
Jackson Circuit Court
Family Division
LC No. 18-003119-NA
In re T. TAYLOR, Minor. No. 347839
Jackson Circuit Court
Family Division
LC No. 18-003120-NA
Before: CAVANAGH, P.J., and STEPHENS and O’BRIEN, JJ.
PER CURIAM.
In these consolidated cases, respondent-father appeals as of right the trial court’s order
terminating his parental rights to two minor children, TT and AT1, under MCL
712A.19b(3)(b)(i) (sibling of the child suffered sexual abuse and there is a reasonable likelihood
of injury or abuse in the foreseeable future) and (b)(ii) (failure to protect from sexual abuse and
there is a reasonable likelihood of injury or abuse in the foreseeable future). We reverse and
remand for additional proceedings.
I. BACKGROUND
This case commenced when the Department of Health and Human Services (DHHS) filed
two separate petitions seeking the termination of respondent’s parental rights. Although the
particular circumstances remain unclear, the petitions alleged receipt of a complaint about
domestic violence between respondent and AT1’s mother. Upon further investigation, the
DHHS learned that in 2006, Children’s Protective Services (CPS) in Wexford County
substantiated respondent for sexual abuse of another child, AT2. The petitions further alleged
that respondent sexually penetrated then-four-year-old AT2’s vagina with his penis, but no
criminal charges resulted because AT2 was too afraid to testify against respondent. At the time
-1-
of trial, AT2 was 18 years old and no longer afraid to testify against respondent, whom she had
not seen in 14 years. At the termination hearing, AT2 described how respondent sexually
assaulted her. The trial court found AT2’s testimony credible, describing AT2 as “one of the
most credible witnesses that has ever taken the witness stand.” Based on AT2’s testimony, the
trial court found that the DHHS had established by clear and convincing evidence grounds for
termination under MCL 712A.19b(3)(b)(i) and (ii), and concluded that termination was in the
children’s best interests. Thereafter, the trial court entered an order terminating respondent’s
parental rights to TT and AT1. Respondent now appeals.
II. STATUTORY GROUNDS
Respondent first argues that the trial court clearly erred when it found that the DHHS had
established grounds for termination by clear and convincing evidence. We agree.
A. STANDARD OF REVIEW
“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).
B. ANALYSIS
The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(b)(i) and
(ii). Those sections provide that the trial court may terminate parental rights if it finds by clear
and convincing evidence that:
(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.
(ii) 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. [MCL 712A.19b(3)(b)(i) and (ii).]
In In re Sours, 459 Mich. 624, 634-635; 593 NW2d 520 (1999), our Supreme Court explained
that this statutory language
makes clear [that] not only does the prosecution have the burden of showing by
clear and convincing evidence that the parents injured or abused the children, or
failed to protect the children from injury or abuse, but the prosecution must also
-2-
show a reasonable likelihood that the child will suffer injury or abuse in the
foreseeable future if placed in the parent’s home. [Quotation marks and citation
omitted.]
We generally defer to a trial court’s ability to judge the credibility of a witness, see In re
HRC, 286 Mich. App. 444, 460; 781 NW2d 105 (2009), and we have no reason to question the
trial court’s determination that AT2 was credible. We therefore conclude that, based on AT2’s
testimony about the sexual assault, the trial court did not clearly err in finding by clear and
convincing evidence that respondent sexually abused his then-four-year-old daughter 14 years
before the termination hearing.1
Yet, as In re Sours made clear, petitioner had to not only show that respondent sexually
abused TT and AT1’s sibling, but it had to establish by clear and convincing evidence that there
is a reasonable likelihood that TT and AT1 will suffer from injury or abuse in the foreseeable
future if placed in respondent’s home. See id.; MCL 712A.19b(3)(b)(i) and (ii). While the trial
court’s oral opinion2 explains in detail the evidence establishing that TT and AT1’s sibling was
sexually abused, the trial court failed to explain what evidence supported that TT and AT1 would
likely suffer from injury or abuse if placed in respondent’s home.
While not explicitly stated, the trial court implied that it was relying on the doctrine of
anticipatory neglect—how a parent treats one child is probative of how the parent may treat other
children, see In re LaFrance, 306 Mich. App. at 7303—to conclude that TT and AT1 would likely
suffer from injury or abuse if placed in respondent’s home. Under this doctrine, evidence that
respondent sexually abused AT2 is probative of how respondent will treat TT and AT1 if they
are placed in his care.4 But such evidence is not determinative of how respondent will treat TT
1
Respondent argues that AT2’s testimony was not sufficient to establish by clear and convincing
evidence that respondent sexually assaulted her because the allegations were uncorroborated.
Yet in criminal prosecutions, where the standard is proof beyond a reasonable doubt, the
testimony of a victim of criminal sexual misconduct need not be corroborated to convict the
defendant. See MCL 750.520h. We see no reason why the testimony of a victim of sexual
assault needs to be corroborated to prove that the victim was sexually assaulted under the lower
(yet still demanding) clear-and-convincing-evidence standard. Thus, that AT2’s testimony was
uncorroborated does not convince us that the trial court clearly erred when it found that AT2’s
testimony established by clear and convincing evidence that respondent sexually assaulted her.
2
The trial court twice stated that it was “reserving the right” to issue a written opinion, but there
is no written opinion included in the lower court file.
3
Respondent contends that In re LaFrance “undercut the doctrine of anticipatory neglect.” We
disagree, and believe that a fair reading of In re LaFrance shows that it upheld the general
application of the doctrine, but determined that the doctrine had no application to the case before
it based on that case’s “unusual” facts. In re LaFrance, 306 Mich. App. at 730-731.
4
Probative evidence is evidence that “makes a fact of consequence more or less probable than it
would be without the evidence.” People v Mills, 450 Mich. 61, 67; 537 NW2d 909 (1995).
-3-
and AT1. If it were, it would render nugatory the language requiring that there be “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) and (ii). And if this is what the Legislature intended—
that a finding of past abuse always means that there is clear and convincing evidence to find a
reasonable likelihood that the parent will abuse or injure a child in the future if placed in the
parent’s home—the statute could simply omit the reasonable-likelihood-of-future-abuse
language altogether.
Indeed, this used to be the case, albeit for another subsection. Before June 12, 2018,
MCL 712A.19b(3)(k) allowed trial courts to terminate a parents rights to a child if the court
found that the parent had abused the child or a sibling of the child, and the abuse included one of
the following:
(i) Abandonment of a young child.
(ii) Criminal sexual conduct involving penetration, attempted penetration,
or assault with intent to penetrate.
(iii) Battering, torture, or other severe physical abuse.
(iv) Loss or serious impairment of an organ or limb.
(v) Life-threatening injury.
(vi) Murder or attempted murder.
(vii) Voluntary manslaughter.
(viii) Aiding and abetting, attempting to commit, conspiring to commit, or
soliciting murder or voluntary manslaughter.
(ix) Sexual abuse as that term is defined in section 2 of the child protection
law, 1975 PA 238, MCL 722.622.
But with the enactment of 2018 PA 58, in addition to finding one of the above instances of
abuse, MCL 712A.19b(3)(k) now requires trial courts to find that “there is a reasonable
likelihood that the child will be harmed if returned to the care of the parent.” MCL
712A.19b(3)(k) as amended by 2018 PA 58.5 This statutory history reveals that even in the most
horrific instances of abuse, the Legislature now intends for trial courts to find by clear and
convincing evidence a reasonable likelihood that the child will be subject to future harm in the
5
Petitioner argues that termination was proper here based on the version of MCL
712A.19b(3)(k)(ii) in effect before 2018 PA 58. Petitioner appears to overlook that the petition
in this case was filed on November 5, 2018—nearly five months after the current version of
MCL 712A.19b(3)(k)(ii) took effect.
-4-
parent’s care before terminating the parent’s parental rights. See People v Pinkney, 501 Mich.
259, 276 n 41; 912 NW2d 535 (2018) (“Unlike legislative history, statutory history—the
narrative of the ‘statutes repealed or amended by the statute under consideration’—properly
‘form[s] part of the context of the statute . . . .’ ”) (Citation omitted.) Thus, with the enactment
of 2018 PA 58, MCL 712A.19b(3)(k)—like subsections (b)(i) and (ii)—no longer permits a
finding of past abuse, without more, to justify terminating a parent’s parental rights.
In sum, there are certainly cases in which a trial court can reasonably find by clear and
convincing evidence, based solely on instances of past abuse of a child or the child’s sibling, 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 based on the doctrine of anticipatory neglect. This, in turn, would
justify termination under MCL 712A.19b(3)(b)(i) and (ii). But past abuse of a child or the
child’s sibling—and application of the doctrine of anticipatory neglect—does not always
establish by clear and convincing evidence that there is a reasonable likelihood that the child will
suffer injury or abuse if returned to the parent’s care. Thus, past abuse alone does not always
justify termination under MCL 712A.19b(3)(b)(i) and (ii). In short, these cases are very
fact-intensive, and there is no one-size fits all approach. With this in mind, we turn to the case
before us, and examine the facts and evidence that were before the trial court.
The abuse happened 14 years before the termination hearing. AT2 described the abuse in
graphic detail: while AT2’s brother was sleeping on the top bed of a bunk bed, respondent had
AT2—then four years old—get off of the top bed and lay on the bottom bed, where respondent
had her take off her pajamas and inserted his penis into her vagina. AT2 pleaded with
respondent to stop, which he eventually did, and then he yelled at AT2 to put her pants on and go
back to the top bunk. AT2 did not report the sexual abuse until she was six years old—two years
after it happened.
Respondent was never charged with a crime related to the abuse because AT2 was too
afraid to testify. Respondent was not allowed to see AT2 following the abuse, but his rights
were apparently never terminated. Roughly four years after AT2’s disclosure, respondent had
another child, TT, with a different woman. When TT was about one year old, his mother was
granted full custody, and respondent had not seen him since. Approximately four years later, in
2015, respondent had another child, AT1, with yet another woman. From 2015 to 2018,
respondent co-parented AT1 with AT1’s mother. In August 2018, respondent and AT1’s mother
parted ways, and respondent became AT1’s primary caregiver until November 2018, when the
petition in this case was filed and AT1 was removed from respondent’s care.
Because the petition requested termination at the initial disposition, respondent was never
offered services. Respondent was, however, offered supervised visitations with AT1. He
attended all of the offered visitations, and the caseworker testified that they went well with no
reported problems. Besides visitations, respondent, on his own initiative, completed parenting
classes, and documents showing that he completed the classes were entered into evidence.
Respondent also testified that he would be willing to engage in services if they were offered.
At the termination hearing, the caseworker testified that based on AT2’s allegation, there
were no services that could be offered to respondent that would ensure the children’s safety.
-5-
And after finding AT2’s allegations to be credible—and therefore finding that respondent had
sexually abused his then-four-year-old child 14 years ago—the trial court stated:
None of it, none of that matters, if you sexually assault someone it’s
inexcusable, it’s unforgivable, it’s a lifetime offense. No apologies make up for
it, [the caseworker] said, I don’t know where she is, but -- there she is. You can’t
service that, you can’t service that[.]
We are definitely and firmly convinced that the trial court erred by concluding that
petitioner had established by clear and convincing evidence that there was a reasonable
likelihood that the children would suffer from injury or abuse in the foreseeable future if placed
in respondent’s home. The clear and convincing evidence standard is “the most demanding
standard applied in civil cases[.]” In re Martin, 450 Mich. 204, 226-227; 538 NW2d 399 (1995).
As explained in In re Martin:
Evidence is clear and convincing when it produce[s] in the mind of the trier of
fact a firm belief or conviction as to the truth of the allegations sought to be
established, evidence so clear, direct and weighty and convincing as to enable [the
factfinder] to come to a clear conviction, without hesitancy, of the truth of the
precise facts in issue. . . . Evidence may be uncontroverted, and yet not be “clear
and convincing.” . . . Conversely, evidence may be “clear and convincing”
despite the fact that it has been contradicted. [Id. at 227 (quotation marks and
citation omitted; alterations in original).]
It was the DHHS’s burden to prove by clear and convincing evidence that there was a
reasonable likelihood that TT and AT1 would suffer from injury or abuse in the foreseeable
future if placed in respondent’s home. It was not respondent’s burden to prove a negative;
respondent did not have to offer evidence establishing that there was not a reasonable likelihood
that TT and AT1 would be harmed if placed in his care. As already explained, evidence that
respondent sexually abused AT2 14 years ago is probative of whether TT and AT1 will be at risk
of harm if placed in respondent’s home. But this was the only evidence that the DHHS offered
to prove that the children would be at risk of harm if placed in respondent’s home.6 There was
no evidence that respondent had committed other abusive acts towards children in the 14 years
since he sexually assaulted AT2 (or at any time before the assault7), despite having children in
his care. And because respondent was never offered services, including a psychological
evaluation (which respondent’s counsel repeatedly requested so that a psychologist could
6
In support of its decision, the trial court, in addition to AT2’s testimony, also relied on
respondent’s use of the word “snuggle” to describe his interactions with AT1. The trial court
suggested that this word was a link to his daughter’s testimony and provided a basis to believe
that respondent was in a position to abuse AT1. We cannot agree that this word, commonly used
in all sorts of innocuous contexts, in any way demonstrates a likelihood of future abuse.
7
There was an allegation in the petition that respondent sexually assaulted his sister, but no
evidence proving this allegation was admitted.
-6-
determine whether respondent posed a threat to the children’s safety), there was no evidence
respondent otherwise posed a threat to children placed in his care.8
Considering the evidence, we conclude that the trial court clearly erred by finding that the
DHHS established by clear and convincing evidence that there was a reasonable likelihood that
TT and AT1 would suffer from injury or abuse in the foreseeable future if placed in respondent’s
home. The evidence of respondent’s sexual abuse of AT2 was probative of whether respondent
would injure or abuse TT or AT1 if they were placed in his home, but the trial court treated this
evidence as determinative. The trial court stated that the sexual assault was “inexcusable, it’s
unforgivable, it’s a lifetime offense,” and “[n]o apologies make up for it[.]” While we agree
with the sentiment that sexual assault—especially of one’s own child—is inexcusable and
unforgiveable, the evidence of respondent’s sexual abuse of AT2 was not determinative of
whether TT and AT1 would be at risk of injury or abuse in respondent’s home. Had the
Legislature intended for persons such as respondent to always have their rights terminated to any
children they have now or in the future, the Legislature would have written the law that way.
But instead, the Legislature requires the DHHS to prove both the past abuse and that there is a
reasonable likelihood of future abuse. Given the evidence presented in this case, we are
definitely and firmly convinced that the trial court made a mistake by finding that the DHHS
established this latter requirement by clear and convincing evidence. Because reasonable
likelihood of injury or abuse in the foreseeable future if placed in respondent’s home was a
requirement for both MCL 712A.19b(3)(b)(i) and (ii), the trial court’s findings for both statutory
grounds was clearly erroneous.9
III. BEST INTERESTS
Respondent also contends that the trial court erred by concluding that termination was in
TT and AT1’s best interests. We agree.
A. STANDARD OF REVIEW
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can terminate parental rights.” In re
Olive/Metts, 297 Mich. App. 35, 40; 823 NW2d 144 (2012). “[W]hether termination of parental
8
We note this only because, had the DHHS offered services to respondent, respondent’s refusal
to participate in services, or facts that came to light based on respondent’s participation in
services, could have been probative of whether there is a reasonable likelihood that the children
would be harmed in the foreseeable future if placed in respondent’s home. We emphasize that
the DHHS was not required to provide services to respondent, and do not base our reasoning in
any way on the DHHS’s proper refusal to provide services.
9
We also note that “subparagraph (ii) is intended to address the parent who, while not the
abuser, failed to protect the child from the other parent or nonparent adult who is an abuser.” In
re LaFrance Minors, 306 Mich. App. at 725. It is unclear to us from the trial court’s decision why
this statutory ground would be applicable to respondent given the facts.
-7-
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.
B. ANALYSIS
The focus at the best-interest stage is on the child, not the parent. In re Moss, 301 Mich
App at 87. 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. at 41-42 (citations omitted).]
Other factors include “a parent’s history of domestic violence, . . . 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).
The trial court’s best-interest analysis here was limited. It appeared to find that
termination was in the children’s best interests because their safety could not be assured in
respondent’s care. It did not consider and weigh any other factor, such as AT1’s bond with
respondent, respondent’s parenting ability, respondent’s visitation history with AT1, or the
children’s need for permanency, stability, and finality. That is not to say that whether “the
children’s safety and well-being [can be] reasonably assured” in the respondent’s care cannot
outweigh the other factors, see, e.g., In re VanDalen, 293 Mich. App. 120, 142; 809 NW2d 412
(2011); only that a trial court’s best-interest analysis is supposed to weigh all the evidence
available to it, In re Trejo, 462 Mich. at 364, and the trial court did not appear to do that here.
But the problems with the trial court’s best-interest analysis go beyond this.
In In re Olive/Metts, 297 Mich. App. at 43, this Court explained that “a child’s placement
with relatives weighs against termination under MCL 712A.19a(6)(a),” and that “[a] trial court’s
failure to explicitly address whether termination is appropriate in light of the children’s
placement with relatives renders the factual record inadequate to make a best-interest
determination and requires reversal.” Though TT was placed with his mother and not a relative,
see In re Schadler, 315 Mich. App. 406, 409; 890 NW2d 676 (2016) (explaining that a biological
parent is not considered a relative under MCL 712A.13a(1)(j)), AT1 was placed with a relative—
respondent’s sister. The trial court wholly failed to consider this factor when it ruled that
termination was in AT1’s best interests, which was error.
In In re White, 303 Mich. App. 701, 715; 846 NW2d 61 (2014), this Court held 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.” AT1 had been living
with respondent all of his life, which included respondent being AT1’s primary caregiver for
three months before AT1’s removal. In contrast, respondent had no part of TT’s life; respondent
and had not even seen TT for years before the petition was filed. The trial court never addressed
these significant differences and how they might affect its best-interest analysis, if at all.
-8-
Reversed and remanded for additional proceedings. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
/s/ Colleen A. O’Brien
-9-