In re Keillor

• Court: Court of Appeal of Michigan
• Writing for the Court: Riordan, J.
• Citation: In re Keillor, 325 Mich App 80, 923 N.W.2d 617 (Mich. App. 2018)
• Decision Date: 28 June 2018
• Docket Number: No. 340395,340395
• Parties: IN RE KEILLOR, Minors.

325 Mich.App. 80

923 N.W.2d 617

IN RE KEILLOR, Minors.

No. 340395

Court of Appeals of Michigan.

Submitted May 9, 2018, at Grand Rapids.

Decided June 28, 2018, 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Chief Legal Counsel, and Susan B. Moody, Assistant Attorney General, for the Department of Health and Human Services.

Law Offices of Roman J. Ficaj (by Roman J. Ficaj ) for respondent.

Michigan Children’s Law Center (by Rubina S. Mustafa) for the minor children.

Before: Ronayne Krause, P.J., and Markey and Riordan, JJ.

Riordan, J.Respondent appeals as of right the trial court’s order terminating her parental rights to the minor children, KK–1 and KK–2, pursuant to MCL 712A.19b(3)(b)(iii ) (a nonparent adult’s act caused sexual abuse and a reasonable likelihood exists that the child will suffer abuse by the nonparent adult if returned to the parent’s home) and MCL 712A.19b(3)(j) (a reasonable likelihood exists based on the conduct or capacity of the child’s parent that the child will be harmed if returned to the home of the parent). We affirm.

I. FACTUAL BACKGROUND

Respondent adopted the minor children in 2011. In 2016, Child Protective Services (CPS) began an investigation into physical abuse of the minor children by respondent. Respondent pleaded no contest to the allegations in the petition on January 5, 2017, and the trial court took jurisdiction over the minor children. Later, a supplemental petition to terminate respondent’s parental rights was filed after KK–1 made allegations of sexual abuse by respondent’s live-in boyfriend, who fit the statutory definition of a "nonparent adult." See MCL 722.622(v).¹ On August 31, 2017, the trial court held a trial both to adjudicate the new allegations and regarding the request to terminate respondent’s parental rights. KK–1 provided testimony regarding the alleged sexual abuse by the nonparent adult.

After hearing the evidence, the trial court adjudicated the new allegations, finding that a preponderance of the evidence supported the existence of sexual abuse by the nonparent adult. The parties then argued regarding termination of respondent’s parental rights and whether termination would be in the best interests of the minor children. The trial court took the issue under advisement, eventually releasing a written opinion terminating respondent’s parental rights pursuant to MCL 712A.19b(3)(b)(iii ) and (j). This appeal followed.

II. STATUTORY GROUNDS

Respondent argues that the trial court clearly erred when it terminated her parental rights to the minor children. I disagree.²

A. STANDARD OF REVIEW

"This Court reviews for clear error the trial court’s factual findings and ultimate determinations on the statutory grounds for termination." In re White , 303 Mich. App. 701, 709, 846 N.W.2d 61 (2014). A trial court’s findings of fact are clearly erroneous if "we are definitely and firmly convinced that it made a mistake." Id . at 709–710, 846 N.W.2d 61. "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 N.W.2d 111 (2011). "[W]e review de novo questions of statutory interpretation." In re Harper , 302 Mich. App. 349, 352, 839 N.W.2d 44 (2013) (quotation marks and citation omitted).

B. APPLICABLE LAW AND ANALYSIS

The trial court found clear and convincing evidence of statutory grounds for termination under MCL 712A.19b(3)(b)(iii ), which provides:

(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:

* * *

(iii ) A nonparent adult’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 by the nonparent adult in the foreseeable future if placed in the parent’s home.

Although MCL 712A.19b does not provide definitions for the pertinent terms "nonparent adult" and "sexual abuse," those terms are found and defined in the Child Protection Law, MCL 722.601 et seq . Indeed, § 19b twice refers to and adopts the definition of "sexual abuse" "as that term is defined in section 2 of the child protection law, 1975 PA 238, MCL 722.622." MCL 712A.19b(3)(k)(ix ) and (l )(ix).

MCL 722.622(y) defines "sexual abuse" as follows:

"Sexual abuse" means 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.

In this case, there is no allegation of sexual penetration. The definition of "sexual contact" is as follows:

"Sexual contact" includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification , done for a sexual purpose, or in a sexual manner for:

(i ) Revenge.

(ii ) To inflict humiliation.

(iii ) Out of anger. [ MCL 750.520a(q) (emphasis added).]

In turn, MCL 750.520a(f) defines "intimate parts" as "includ[ing] the primary genital area, groin, inner thigh, buttock, or breast of a human being." Thus, in order for there to have been grounds for termination pursuant to MCL 712A.19b(3)(b)(iii ), the trial court must have found clear and convincing evidence that the nonparent adult touched KK–1’s "primary genital area, groin, inner thigh, buttock, or breast" in a manner that "can reasonably be construed as being for the purpose of sexual arousal or gratification ...." MCL 750.520a(f) and (q).

KK–1 testified that the nonparent adult touched her in an inappropriate manner during a trip to California with respondent. The nonparent adult slept with KK–1 in one room while KK–2 and respondent slept in another room. According to KK–1, it was strange and uncommon for the nonparent adult to be in bed with her. KK–1 provided the following pertinent testimony during direct examination regarding the night the nonparent adult touched her:

Q . All right. Did anything ever happen to you when [the nonparent adult] was sharing a room with you that made you feel bad or uncomfortable?

A . Yes.

* * *

Q . And, and what happened?

A . I was laying next to him and he was touching me.

Q . How was he touching you?

A . With his hand.

Q . And, and how did that come about? Did you ask him to touch you?

A . No.

Q . Okay. What—Were you awake when this happened?

A . Yes.

Q . And, and what—Did you have any kind of conversation with [the nonparent adult] at all before he touched you?

A . No. All I said was my stomach hurt.

Q . And you told that to [him]?

A . Yes.

Q . And after you told him that your stomach hurt, what did he do?

A . He started rubbing my stomach and going a little bit lower.

Q . And what were you wearing at the time?

A . I think I was wearing, I think I was wearing summer pajamas.

* * *

Q . All right. Where was his hand on your body at that time?

A . Almost below my waist.

Q . And then what happened?

A . I pulled his hand out and said you were the reason why my stomach was hurting.

Q . Did he make any comment to you after that?

A . No. I just ran into the bathroom.

Q . What did you mean by that, you’re the reason my stomach is hurting?

A . Because it made me feel uncomfortable where he, why he, where he was touching me.

Q . And after you went into the bathroom, how long did you stay there?

A . I stayed there for a couple minutes because I felt like I was gonna throw up.

Q . Did you throw up?

A . No.

* * *

Q . Did [the nonparent adult] ever touch you below your waist?

A . Yeah.

Q . And when did that occur? Before the bathroom or after?

A . Before.

Q . And before the bathroom, when he touched you below your waist, what exactly did he do, if you remember?

A . I don’t remember.

Q . Did he ever, do you have—Did he ever touch your private parts?

* * *

A . Almost.

Q . And what do you mean by almost?

A . Like he was right there, but then I pulled his hand out and I went to the top bunk.

On cross-examination, respondent elicited the following testimony from KK–1:

Q . Now, except for this one incident in California where you say he touched you, that never happened before or since, is that right?

A . Yes.

Q . And this happened over a year ago?

A . I’m not sure.

Q . And if I understood you correctly, you said on direct examination that you told him your stomach was hurting?

A . Yes.

Q . And then he started rubbing your stomach and he started going down into your pants—

A . (Interposing) Yes.

Q . Is that right?

A . Yes.

Q . But he never got down to your private parts, is that right?

A . He started to.

Q . He started, but he never got there, right?

A . Yes.

Respondent contends that the testimony could not have established sexual abuse by the nonparent adult because KK–1 never testified that he actually touched her private parts. I disagree because the definition of "intimate parts" cannot be read so narrowly. While one part of the statute defining "intimate parts" refers to the "primary genital area," the definition also includes "groin" as an intimate part. MCL 750.520a(f). Random House Webster’s College Dictionary (2d ed.) defines groin as "the fold or hollow where the thigh joins the abdomen" and "the general region of this fold or hollow." Meanwhile, The American Heritage Dictionary (2d ed.) defines "groin" as "[t]he crease at the junction of the thigh and the trunk, together with the adjacent area."

Respondent is correct that KK–1 never testified that the nonparent adult actually touched her vagina. However, KK–1 stated that the nonparent adult touched her below her waist, and KK–1 repeatedly said that she had to take his hand "out." It is reasonable to infer that KK–1’s use of the word "out" meant that the nonparent adult’s hand was in her pants. Further, KK–1 testified that he "[a]lmost" touched her private parts while lowering his...