Opinion
No. 353716
03-25-2021
In re I. M. DAVITTO, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 19-001199-NA Before: O'BRIEN, P.J., and SERVITTO and GLEICHER, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating his parental rights to the minor child, IMD, pursuant to MCL 712A19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix). We affirm.
I. FACTS
On April 11, 2019, IMD returned to her mother's home after visiting respondent for several hours. Respondent and IMD's mother were never married nor did they live together at the time. IMD informed her mother that she played a game with respondent during her visit that involved her being blindfolded and respondent putting things in her mouth. IMD was told to suck and lick the item but not bite it. IMD asserted that she tasted a red popsicle, a banana, and a salted banana. After IMD's disclosure to her mother, the Department of Health and Human Services (DHHS) began an investigation. IMD participated in a Kids Talk interview with Hannah Chin and told Chin about the taste game as well. During the interview with Chin, IMD clarified that she never saw any bananas, that she played the game twice with respondent, and that the salted banana tasted like chicken. IMD also asserted that respondent told her to keep the game a secret. Thereafter, DHHS filed a petition to terminate respondent's parental rights to IMD on the grounds that he sexually abused IMD.
While the proceedings were ongoing, IMD made additional disclosures regarding conduct respondent had previously engaged in. IMD told her mother that respondent had, on at least one occasion, showered with IMD. This disclosure led to a second Kids Talk interview, this time with Savannah Sears, during which IMD restated that she had showered with respondent. IMD talked to her therapist Brenda Heissenbuettel about respondent's conduct as well. In addition to repeating her previous statements about the taste game and showering with respondent, IMD told Heissenbuettel that respondent and IMD had a movie night whenever IMD visited respondent and that on those nights she and respondent showered together and that respondent's penis touched IMD's vagina during the showers. They also danced around together while naked.
On the basis of evidence presented at a bench trial, the trial court terminated respondent's parental rights to IMD pursuant to MCL 712A.19b(3)(b)(i), (3)(g), (3)(j), (3)(k)(ii) and (3)(k)(ix). Respondent now appeals.
II. STANDARD OF REVIEW
A trial court's factual findings regarding statutory grounds to terminate parental rights and whether termination is in a child's best interests are reviewed for clear error. In re Keillor, 325 Mich App 80, 85, 93; 923 NW2d 617 (2018). "A trial court's decision is clearly erroneous [i]f although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." Id. at 93 (quotation marks and citation omitted; alteration in original).
III. DISCUSSION
Respondent first argues the trial court erred by finding statutory grounds to terminate his parental rights by clear and convincing evidence. Specifically, respondent argues the trial court's finding that respondent sexually abused IMD was mere speculation based on IMD's description of a game that may sound like oral sex. Respondent argues some physical evidence of sexual penetration is necessary to support a finding of sexual abuse. We disagree.
"To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence." In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). Under MCL 712A.19b(3), parental rights may be terminated if:
(b) The child . . . has suffered . . . sexual abuse under 1 or more of the following circumstances:
(i) The parent's act caused the . . . 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.
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(g) The 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.
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(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 . . . , 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:MCL 722.622(z) defines sexual abuse as "engaging in sexual contact or sexual penetration as those terms are defined in section 520a of the Michigan penal code, 1931 PA 328, MCL 750.520a, with a child." MCL 750.520a(q) defines sexual contact as "the intentional touching of the victim's . . . intimate parts . . . if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification . . . ." MCL 750.520a(r) defines sexual penetration as "fellatio . . . or any other intrusion, however slight, of any part of a person's body . . . into the genital or anal openings of another person's body . . . ."
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(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
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(ix) Sexual abuse as that term is defined in section 2 of the child protection law, 1975 PA 238, MCL 722.622.
On three separate occasions, IMD told her mother, Chin, and DHHS case worker Dawn Uncapher about the "taste game." The game involved IMD laying down on respondent's bed, blindfolded, while respondent put various items in IMD's mouth. IMD was not allowed to see what respondent put in her mouth, and she was to suck it, but not bite it. On the most recent occasion, IMD tasted a red popsicle, a banana, and a salted banana that tasted like chicken. Respondent told IMD to keep the game a secret. IMD also disclosed to numerous individuals that respondent and she showered together naked. On at least one occasion, respondent picked IMD up in the shower and held her. Respondent's penis touched IMD's vagina during the shower. After the shower, respondent and IMD went to respondent's bedroom, danced around naked, and got dressed together. On the basis of this evidence, the referee found that respondent sexually abused IMD by putting his penis in IMD's mouth under the guise of the taste game and touching IMD's vagina with his penis in the shower. The referee found IMD's statements to be reliable given their frequency and consistency. The referee also noted that IMD clearly loved respondent and had no reason to lie. Therefore, the referee found clear and convincing evidence of MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix). The trial court adopted the referee's findings.
IMD's statements regarding the taste game supported the trial court's finding that respondent put his penis in IMD's mouth, and we are not left with a definite and firm conviction that a mistake has been made. Keillor, 325 Mich App at 85. While IMD did not assert that respondent put his penis in her mouth, the rules of the taste game, IMD's description of what was in her mouth, and the fact that respondent told IMD to keep the game a secret all supported such a conclusion. The trial court found IMD's statements to be credible and "[i]t is not for this Court to displace the trial court's credibility determination." In re HRC, 286 Mich App 444, 460; 781 NW2d 105 (2009).
Based on the clear and convincing evidence presented, it was not clearly erroneous for the trial court to find that termination of respondent's parental rights was appropriate under MCL 712A.19b(3)(b)(i), (3)(k)(ii), and (3)(k)(ix). Given the fact that respondent engaged in the taste game with IMD more than once and made sexual contact with IMD in the shower at least once, it was not clearly erroneous for the trial court to find that there was a reasonable likelihood of additional abuse in the future if IMD was returned to respondent's care. MCL 712A.19b(3)(b)(i) and (k). Respondent's argument that physical evidence is required to support a finding of sexual abuse is unpersuasive, not only because the statute does not require such, but also because one would not expect to find physical evidence under the facts of this case.
In light of the above, the trial court's findings that MCL 712A.19b(3)(g) and (j) were proved by clear and convincing evidence were also not clearly erroneous. Respondent failed to provide proper care for IMD when he sexually abused her more than once, MCL 712A.19b(3)(g), and, as noted above, there is a reasonable likelihood, based on respondent's conduct, that IMD would be harmed if she was returned to respondent's custody, MCL 712A.19b(3)(j). Because there is a reasonable likelihood that IMD would be harmed if returned to respondent's home, "there is no reasonable expectation that [respondent] will be able to provide proper care and custody within a reasonable time considering the child's age." MCL 712A.19b(3)(g). For these reasons, the trial court did not clearly err by finding MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and (k)(ix) were proved by clear and convincing evidence.
Respondent also argues the trial court erred by finding termination of respondent's parental rights to be in IMD's best interests because it failed to adequately consider IMD's bond with respondent and the fact that respondent would comply with any court order meant to safeguard IMD during visitations. We disagree.
"Once a statutory basis for termination has been shown by clear and convincing evidence, the court must determine whether termination is in the child's best interests. In re LaFrance Minors, 306 Mich App 713, 732-733; 858 NW2d 143 (2014), citing MCL 712A.19b(5). "Best interests are determined on the basis of the preponderance of the evidence." Id. at 733. "[T]he focus at the best-interest stage has always been on the child, not the parent." In re Moss, 301 Mich App 76, 87; 836 NW2d 182 (2013). "In assessing whether termination of parental rights is in a child's best interests, the trial court should weigh all evidence available to it." In re Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874 NW2d 205 (2015). The court should consider factors such as the child's bond to the parent, the child's need for permanency, stability, and finality, and the likelihood the child could be returned to the parent in the foreseeable future. Id. at 63-64.
The trial court—through its adoption of the referee's recommendation—found that terminating respondent's parental rights was in IMD's best interests. The court noted that IMD had a strong bond with respondent, that IMD was safe while in her mother's care, and that respondent was in therapy. But, in the court's view, the risk of harm to IMD from continuing to have contact with respondent outweighed those considerations. This was particularly true in light of respondent's refusal to acknowledge any wrongdoing. We are not left with a definite and firm conviction that the trial court made a mistake in its views. Keillor, 325 Mich App 80 at 85. Respondent has not identified any relevant factor that the trial court failed to consider, instead attempting to place greater emphasis on two factors the trial court fully considered: IMD's bond to respondent and respondent's willingness to comply with court orders that would safeguard IMD during visitations. The court expressly considered IMD's bond to respondent and determined it did not outweigh the risk of future harm. Further, while the court did not expressly consider the possibility of respondent complying with court orders to safeguard IMD during visitations in the future, the court implicitly found that no safeguards would be adequate when it noted that an ongoing relationship with respondent put IMD at risk of irreparable harm given the gravity of respondent's conduct. The court's conclusion was not clearly erroneous. Keillor, 325 Mich App 80 at 85.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher