In re Gardner

• Docket Number: 364403,364405
• Decision Date: 29 June 2023
• Parties: In re GARDNER, Minors.
• Court: Court of Appeal of Michigan — District of US

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In re GARDNER, Minors.

Nos. 364403, 364405

Court of Appeals of Michigan

June 29, 2023

UNPUBLISHED

Mecosta Circuit Court Family Division LC No. 22-006796-NA

Before: GLEICHER, C.J., and RICK and MALDONADO, JJ.

PER CURIAM

In these consolidated appeals, respondent-father and respondent-mother appeal by right the trial court's order terminating respondent-father's parental rights to SJG (who was less than a year old at the time of termination) and respondent-mother's parental rights to SJG and SKG (who was 15 years old at the time of termination). Respondent-mother was the mother of both children, and respondent-father was only the father of SJG. SKG's father is deceased. The respondents' parental rights were terminated pursuant to MCL 712A.19b(3)(b)(i) (parent's act caused sexual abuse to child or sibling) (b)(ii) (failure to prevent sexual abuse to child or sibling), (b)(iii) (nonparent's act caused sexual abuse), (j) (reasonable likelihood of harm if returned to parent), (k)(ii) (parent abused child or sibling and abuse included criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate), and (k)(ix) (parent abused child or sibling and abuse included sexual abuse).

Neither party disputes that the grounds for termination of parental rights were established by clear and convincing evidence with respect to both children, and we affirm with respect to SKG. However, there was no testimony offered in the trial court regarding SJG. Therefore, we must reverse the trial court's findings that termination of respondent-mother's and respondent-father's parental rights to SJG was in the best interests of the child. We remand this case to the circuit court for a new hearing solely regarding SJG's best interests.

I. BACKGROUND

When the petition in this matter was filed, both respondents already had a history with Child Protective Services (CPS). Respondent-mother had been investigated for improper supervision and physical neglect arising out of her use of methamphetamine, for which she had completed services a few months previously. Respondent-father had been investigated for sexually assaulting another minor child, for which he was ultimately convicted of second-degree criminal sexual conduct, MCL 750.520c(2)(b) (victim under the age of 13), and placed on the sex offender registry.

SKG and respondent-mother moved into respondent-father's mother's house in the spring of 2020, when SKG was 13 years old, and shortly thereafter, respondent-father began touching SKG in a sexual manner. The abuse progressed to directing SKG to engage in sexual intercourse with him. Respondent-father sexually assaulted SKG on multiple occasions, and respondentmother was aware of those sexual assaults. A few months after the abuse began, SKG was forced to move out of respondent-father's mother's house-while respondent-mother remained-because being around SKG was a violation of respondent-father's probation.^[1] The assaults paused while respondent-mother was living apart from SKG. Eventually, SKG and respondent-mother resumed living together away from respondent-father's mother's house. Respondent-mother began driving SKG to respondent-father's home in the middle of the night where she would help SKG climb through a window in order to facilitate the continued sexual abuse. Following SJG's birth, SKG only saw respondent-father when respondent-father came to get SJG.^[2] At that time, SKG was nominally watching SJG while respondent-mother was at work, and respondent-father would come to see SJG, and while SJG was sleeping, respondent-father would molest SKG.

The sexual abuse did not end until a then-housemate of respondent-mother discovered that respondent-father had taken numerous video recordings of respondent-father molesting SKG. An employee of the Department of Health and Human Services (DHHS) went to ask respondents some initial investigative policy questions, and she discovered respondents living in a dilapidated popup camper. She arrived to find respondent-mother begging respondent-father not to leave because she loved him and respondent-father screaming at respondent-mother for having cut herself and for having failed to acquire a phone for him. The DHHS employee asked nothing about the sexual abuse allegations, but respondent-father nevertheless went on a spontaneous "rant." As the DHHS employee described it,

in the process of [respondent-father's] rant, he did make comments that were concerning to me because they were about his sexual deviant history and about- they were just sexually inappropriate in nature. And so I did make note of those individual comments .... I-and these are quotes from him. "I have a sexual behavior problem", "I molested an eight-year-old girl", "They are saying I raped [SKG], but I don't force anyone", "I'm not saying I didn't do it, I'm not saying I did do it, I'm not saying anything", "I'm not a forceful guy", "I don't hold people down", "Even though she was eight, she consented", "I deeply feel that there should be an age cap, but if you believe you can consent", and the final quote I have is, "I have been out of prison for two years and I could have had multiple victims by now if I wanted. There were plenty of opportunities to go snatch up children if I wanted to." And all of that was in the context of, you know, his rant about there's no evidence against him.

A Mecosta County Sheriff's Deputy interviewed respondent-mother, who admitted that she knew respondent-father was molesting SKG, that she drove SKG to respondent-father's home, and that she helped SKG sneak through the window. Respondent-mother also disposed of the phone with the incriminating media at respondent-father's direction, and the phone was ultimately not recovered. Respondent-mother made similar admissions to another CPS investigator.

At the conclusion of an adjudication bench trial, the trial court summarized the testimony and found that "just really a thousand-foot overview, [SKG] was having sexual intercourse with [respondent-father] and her mom knew it happened and, in fact, facilitated that sexual intercourse by taking her over in a vehicle." The trial court stated that it found SKG's testimony highly credible, and it articulated on the record its reasons for that finding. The trial court took jurisdiction over the children as to both parents. DHHS sought termination at the initial disposition, and at the ensuing termination hearing the only additional evidence admitted consisted of three parentagency treatment plans and the case service plan. The trial court relied on the evidence already in the record and found statutory grounds for termination established by at least clear and convincing evidence as to both children and both parents.

The trial court also found termination to be in both children's best interests. Additionally, the trial court found that both parents had demonstrated "a depraved ability to provide love, affection, and guidance," and stated that they "belong[ed] in the dictionary . . . as a definition of somebody without any moral fitness." The trial court opined that respondent-mother must "be mentally ill or mentally disturbed to facilitate the repeated rape of her young daughter," invoking the maxim of res ipsa loquitur. It similarly invoked the maxim of res ipsa loquitur as to respondentfather, noting that respondent-father not only raped SKG, but also an eight-year-old child. The court, repeating respondent-father's own prior statements, noted that he had "a penchant for moms with younger kids who will give it up better than their mamas." It concluded that as to both respondents, there was no possible way to "cure or fix or stop such a shocking deviant behavior" within a reasonable time.

As to SKG, the trial court regarded respondent-mother's actions as "sickening" and almost guaranteed to recur if SKG was returned; it noted that SKG placed with a relative, but a guardianship could not safeguard SKG, who "needs to cut ties and run as far from her mother as possible." As to SJG, the trial court invoked the doctrine of anticipatory neglect, expressly rejecting the notion that any significance should be assigned to the fact that SJG was an infant, male, and respondent-father's own child. It did not express the belief that respondents would necessarily abuse SJG in precisely the same way, but it concluded that respondent-father would eventually abuse SJG and respondent-mother would eventually "pimp out" SJG. It noted that, SJG would suffer emotional harm by being present in "a situation where children having sexual intercourse within the home is normalized and acceptable," and SJG's "mentality would be harmed as well with the knowledge that his mother pimped him out-or pimped his sister out to his father."

Respondent-father's "scheming" would inevitably harm any child to whom he had access. The trial court again recognized that SJG was placed with a relative, but it concluded that SJG's only hope to grow up in a healthy environment was to cut all ties with respondents. It therefore terminated respondents' parental rights, and these appeals followed.

II. STANDARDS OF REVIEW AND GOVERNING LAW

The trial court's factual findings regarding the best interests of a child are reviewed for clear error. In re Olive/Metts Minors, 297 Mich.App. 35, 40; 823 N.W.2d 144 (2012). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re Moss, 301 Mich.App. 76, 80 836 N.W.2d 182 (2013) (quotation marks and citation omitted). Under the clearly erroneous standard, a trial court's decision must be "more than just maybe or...