in Re H C Powell Minor ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re H. C. POWELL, Minor. May 9, 2017
No. 335335
Wayne Circuit Court
Family Division
LC No. 16-522447-NA
Before: TALBOT, C.J., and K. F. KELLY and BORRELLO, JJ.
PER CURIAM.
Respondent appeals as of right the order terminating his parental rights to the minor
child. Respondent’s rights were terminated under MCL 712A.19b(3)(g) (failure to provide
proper care or custody), and MCL 712A.19b(3)(j) (reasonable likelihood, based on conduct or
capacity of parent, that child will be harmed if returned home). For the reasons set forth in this
opinion, we affirm.
I. BACKGROUND
The Department of Health and Human Services (DHHS) filed a petition to terminate
respondent’s parental rights after respondent allegedly sexually abused an unrelated minor
victim, the daughter of his live-in partner (LTP). At the time, respondent was living apart from
the minor child’s mother (mother), and mother currently retains parental rights and custody of
the minor child.
A pretrial hearing was held before a referee on April 8, 2016. During the hearing, the
referee set the date for the combined adjudication and termination hearing for May 17, 2016.
Petitioner filed a motion for a tender-years evidentiary hearing pursuant to MCR 3.972(C)(2) on
July 19, 2016. Petitioner requested that the trial court hold an evidentiary hearing to determine
the admissibility of statements the minor child made to Christine Brohl, a “Kids Talk” forensic
interviewer, regarding respondent’s sexual abuse. At an evidentiary hearing, Brohl testified
about the forensic interview she conducted with the minor child wherein the minor child
disclosed that respondent touched and digitally penetrated her vagina on one occasion when she
was in her bedroom. Brohl testified that the minor child also stated that respondent “didn’t do
it,” and that maybe she was dreaming. Following the hearing, the referee granted petitioner’s
motion, and accepted Brohl’s statement in lieu of the minor child’s testimony, finding that the
circumstances surrounding the minor child’s statements provided adequate indicia of
trustworthiness.
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A combined adjudication and termination hearing was held before a referee on October 4,
2016. At the outset of the hearing, petitioner’s counsel stated that the parties had stipulated to
incorporating Brohl’s previous testimony from the evidentiary hearing into the combined
adjudication and termination hearing record. The other parties did not object to the stipulation.
Corey Reed, a CPS worker, testified that he investigated the allegations made in the
petition. He believed termination of respondent’s parental rights were in the minor child’s best
interests because of the allegations that respondent sexually abused another minor. He testified
that the minor child was currently placed with mother, and at the time the sexual abuse allegation
was made, the minor child stayed with respondent on Tuesdays, Thursday, and on some
weekends. He confirmed that he believed terminating respondent’s parental rights was “a
superior plan” even though the minor child was placed with mother.
Reed testified that a medical examination was conducted on the minor who was sexually
abused, but that the medical examination did not reveal any signs of sexual abuse. Reed also
testified that he never personally interviewed the minor. According to Reed, “Garden City” was
also investigating the incident, however, Reed was unaware if any criminal charges had been
filed against respondent. Additionally, Reed noted that respondent was currently living
somewhere in Illinois.
The referee briefly restated the testimony of the witnesses. The referee then noted, “[t]his
is a difficult case. I mean, the Court, again, had the opportunity to view the Kids Talk interview
and [the sexual assault victim] went back and forth stating, you know, he touched her on her
period and then that he didn’t do it.” She then stated, “it wasn’t exactly clear as to what exactly
happened.” However, the referee considered “the fact that usually young children don’t make up
allegations like this and it would be hard to coach a child at this even if she was told to say it
didn’t happen, it was difficult for her to keep up with that it didn’t happen because she went back
and forth.”
Ultimately, the referee recommended that the trial court take temporary jurisdiction over
the minor child because the referee found by a preponderance of the evidence that respondent
had sexually abused the unrelated minor. The referee then found, by clear and convincing
evidence, that there were statutory grounds to terminate respondent’s parental rights based on the
fact that respondent failed to provide proper care and custody, and also that there was a
reasonable likelihood that the minor child would be harmed if he was returned to respondent’s
home. She also found that it was in the minor child’s best interests to terminate respondent’s
parental rights because she found that respondent had sexually abused the unrelated minor and
that the minor child was in risk of future harm from respondent. The referee considered the fact
that the minor child was placed with mother, however, she still found that it was in minor child’s
best interests to terminate respondent’s parental rights.
On October 4, 2016, the trial court entered its order taking jurisdiction over the minor
child, and terminating respondent’s parental rights to the minor child, as it found that statutory
grounds existed for termination, and that termination was in the best interests of the minor child.
This appeal then ensued.
II. ANALYSIS
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Respondent first argues that the trial court erred when it admitted Brohl’s testimony in
lieu of the unrelated minor’s testimony about the abuse after petitioner filed the tender-years
motion under MCR 3.972(C)(2). “This Court reviews the trial court’s decision to admit or
exclude evidence for an abuse of discretion.” In re Archer, 277 Mich. App. 71, 77; 744 NW2d 1
(2007). However, whether evidence is admissible under the rules of evidence, the court rules, or
a statutory provision involves a question of law that we review de novo. People v Lane, 308
Mich. App. 38, 52; 862 NW2d 446 (2014).
The trial court did not abuse its discretion when it admitted the statements the unrelated
minor made to Brohl during her forensic interview. By court rule, MCR 3.972(C)(2) authorizes
a trial court to admit the testimony of a person who heard “any statement made by a child under
10 years of age” with regard to “an act of child abuse, child neglect, sexual abuse, or sexual
exploitation,” and the trial court may admit that testimony without regard to whether the child is
available to testify. Prior to admitting the testimony of the person who heard the child’s
statement, the trial court must conduct an evidentiary hearing to determine whether “the
circumstances surrounding the giving of the statement provide adequate indicia of
trustworthiness.” MCR 3.972(C)(2)(a). The fact that the statement was made by the child
during a properly conducted forensic interview indicates trustworthiness. Archer, 277 Mich. App.
at 82. A determination that a statement is trustworthy “depends on the totality of the
circumstances surrounding the making of the statement.” Id. “Circumstances indicating the
reliability of a hearsay statement may include spontaneity, consistent repetition, the mental state
of the declarant, use of terminology unexpected of a child of a similar age, and lack of motive to
fabricate.” Id. Additionally, the trial court may view a recording of the child’s statements
during the evidentiary hearing to determine the trustworthiness of the child’s statements. Id. at
83.
The circumstances surrounding the unrelated minor’s statements provided adequate
indicia of trustworthiness. Brohl, who conducted the forensic interview, was a certified forensic
interviewer who had conducted over 1,000 forensic interviews. Brohl explained how she
followed eight phases of the forensic interview protocol, the method she used to determine
whether a child knew the difference between the truth and a lie, and how she first asks a child to
provide her with an unrelated free narrative before turning to the central issue of the forensic
interview. Additionally, pursuant to MCR 3.972(C)(2), Brohl interviewed the unrelated minor
when she was under 10 years of age.
The unrelated minor consistently described the sexual abuse during her interview with
Brohl. Brohl provided extensive testimony about the unrelated minor’s statements concerning
how respondent had touched her “period,” how the unrelated minor “was naked” when
respondent was “laying [sic] on top of her and that he had took [sic] all his fingers and put it on
her period spot” and then how respondent “stuck two fingers into her period.” The unrelated
minor also told Brohl about how respondent had “pulled his pants down with underwear and that
his period goes on the outside and hers go [sic] on the inside.” Brohl testified that the unrelated
minor was “pretty descriptive” about things “that it would be hard for a six-year-old to know
about unless somebody coached her to say that or had actually done it to her.” And ultimately,
during the evidentiary hearing the referee viewed the recording of Brohl’s interview of the
unrelated minor, and she had the opportunity to evaluate the trustworthiness of the unrelated
minor’s statements.
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On appeal, respondent contends that the circumstances surrounding the unrelated minor’s
statements lack adequate indicia of trustworthiness. Respondent notes that the unrelated minor
acted out during the interview by running around the room and jumping on furniture, and that the
unrelated minor repeatedly denied that any sexual abuse occurred because she indicated during
the interview that the she was describing a dream. Brohl confirmed that the unrelated minor
stated that maybe she was dreaming about the incident; however, Brohl also testified that this
was common in situations where “children are told not to tell these things for specific reasons of
people getting in trouble.” Further, Brohl confirmed that she believed the unrelated minor was
engaging in that behavior on the day of their interview. During the interview, the unrelated
minor explained that she did not tell anyone about the incident, except for LTP, because the
unrelated minor feared no one would believe her and “that people would maybe want to kill her
because of it.” Notably, after the unrelated minor mentioned that respondent would go to jail if
anyone found out, Brohl asked the unrelated minor how she knew that respondent would go to
jail, and the unrelated minor replied by telling Brohl that she had informed LTP about what had
happened with respondent. Thus, if the abuse did not occur, the unrelated minor expressed
knowledge of potential adverse consequences for respondent if she disclosed the abuse, and she
also expressed a fear of dire repercussions for discussing the abuse with other people.
While the unrelated minor initially claimed that the incident may have been a dream, as
the interview progressed the unrelated minor provided more details about the incident. After the
unrelated minor told Brohl about the incident, the unrelated minor made a gesture that consisted
of her “spread[ing] her legs open and [she] started taking a finger and inserting it into her, over
her clothes.” When ruling on the tender-years motion, the referee noted that “the Court is also
faced with the fact that usually young children don’t make up allegations like this and it would
be hard to coach a child at this age even if she was told to say it didn’t happen, it was difficult for
her to keep up with that it didn’t happen because she went back and forth.” Therefore, the
referee properly considered the unrelated minor’s initial denials that the abuse occurred, and that
she properly concluded based on the totality of the circumstances surrounding her statements
there was an adequate indicia of trustworthiness. The trial court did not err in admitting Brohl’s
statements in lieu of the unrelated minor’s testimony.
Next, respondent argues that the trial court erred when it found clear and convincing
evidence to terminate his parental rights pursuant to MCL 712A.19b(3)(g) and MCL
712A.19b(3)(j). “This Court reviews for clear error a trial court’s factual findings and ultimate
determinations on the statutory grounds for termination.” In re White, 303 Mich. App. 701, 709;
846 NW2d 61 (2014). “A finding is clearly erroneous if the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been made.” In re
Gonzales/Martinez, 310 Mich. App. 426, 430-431; 871 NW2d 868 (2015) (quotation marks
omitted).
Petitioner has the “burden to establish by clear and convincing evidence the existence of
a ground for termination.” Id. at 431. “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).
A trial court may terminate parental rights under MCL 712A.19b(3)(g) if it finds, by clear
and convincing evidence, that “[t]he parent, without regard to intent, fails to provide proper care
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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). Termination under MCL 712A.19b(3)(g) is permissible when evidence
establishes that a respondent either caused intentional injuries to a minor child or when a
respondent fails to safeguard a minor child from injury. See In re VanDalen, 293 Mich. App. 120,
141; 809 NW2d 412 (2011). Additionally, a trial court may rely on the doctrine of anticipatory
neglect, which recognizes that “[h]ow a parent treats one child is certainly probative of how that
parent may treat other children.” In re AH, 245 Mich. App. 77, 84; 627 NW2d 33 (2001)
(quotation marks omitted).
The trial court did not err when it found that clear and convincing evidence established
that respondent failed to provide proper care or custody for the minor child when respondent
sexually abused the unrelated minor. Petitioner presented clear and convincing evidence that
respondent sexually abused the unrelated minor. Brohl testified that the unrelated minor made
statements concerning how respondent had touched her “period,” how the unrelated minor “was
naked” when respondent was “laying on top of her and that he had took all his fingers and put it
on her period spot” and then how respondent “stuck two fingers into her period.” The unrelated
minor stated that respondent had “pulled his pants down with underwear and that his period goes
on the outside and hers go [sic] on the inside.” And after the unrelated minor disclosed the
details of the incident, she made a gesture that consisted of her “spread[ing] her legs open and
[she] started taking a finger and inserting it into her, over her clothes.” Additionally, the minor
child may have been in respondent’s home at the time the incident occurred because the
unrelated minor stated that respondent shut her bedroom door so the minor child “couldn’t hear
what daddy, [respondent], was doing or he would go to jail.” On this record, the trial court did
not clearly err in finding grounds for termination under MCL 712A.19b(3)(g). Given that there
was at least one statutory ground for termination, 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).
Respondent appears to contend that petitioner failed to provide services for the purpose
of reunifying the minor child and respondent when petitioner moved to terminate respondent’s
parental rights at the initial dispositional hearing pursuant to MCR 3.977(E). However, under
MCR 3.977(E), the trial court “shall order that additional efforts for reunification of the child
with the respondent shall not be made, if” the trial court assumes jurisdiction over the minor
child, finds facts that establish statutory grounds for terminating on the basis of clear and
convincing legally admissible evidence, and that termination of parental rights is in the minor
child’s best interests. Therefore, under MCR 3.977(E), in this case, the trial court was not
required to order petitioner to undertake efforts to reunify the minor child and respondent.
Finally, respondent argues that the trial court erred by finding it to be in the minor child’s
best interests to terminate respondent’s parental rights. “Even if the trial court finds that the
Department has established a ground for termination by clear and convincing evidence, it cannot
terminate the parent’s parental rights unless it also finds by a preponderance of the evidence that
termination is in the best interests of the children.” Gonzales/Martinez, 310 Mich. App. at 434.
We review for clear error a trial court’s “determination regarding the children’s best interests.”
White, 303 Mich. App. at 713.
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The trial court terminated respondent’s parental rights after finding that the minor child
would be placed in harm if he was in respondent’s custody and care. The trial court found that
respondent sexually abused the unrelated minor. It considered the minor child’s placement with
mother, and it found that mother would protect the minor child from any future harm or danger.
The evidence petitioner presented supported the trial court’s findings and best-interest
determination. Respondent sexually abused the unrelated minor, and this may have occurred
while the minor child was present in respondent’s home. The trial court focused on the minor
child’s best interests, as he would be at risk of long-term neglect due to respondent’s sexual
assault of a child. On this record, the trial court did not clearly err in finding that termination
was in the minor child’s best interests. White, 303 Mich. App. at 713.
Affirmed.
/s/ Michael J. Talbot
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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