If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

UNPUBLISHED

In re CURRY, Minors. November 12, 2019

No. 343669 ; 350113

Oakland Circuit Court Family Division

LC No. 2016

- 847120

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ON REMAND

Before: O ’ B RIEN

, P .J., and T UKEL and L ETICA , JJ.

P ER C URIAM

.

This case returns to this Court on remand from our Supreme Court for further proceedings. This case was originally before this Court in In re Curry, Minors , unpublished per

curiam opinion of the Court of Appeals, issued February 12, 2019 (Docket No. 343669), in which we affirmed the trial court’s order terminating respondent’s parental rights. Respondent subsequently appealed to our Supreme Court, which remanded to this Court with instructions for

us to remand to the trial court while maintaining jurisdiction

. In re Curry, Minors , 503 Mich 1023 (2019). 1 Our Supreme Court’s remand order additionally directed the trial court to reconsider its order terminating respondent’s parental rights and to “apply the ‘clear and convincing’ evidentiary standard to the allegation of sexual abuse against the respondent

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1 Despite this Court ’ s having retained jurisdiction, respondent claimed an appeal in connection with the new termination decision, which this Court accepted as Docket No. 350113. This Court consolidated the two appeals in an unpublished order entered on August 8, 2019. In re Curry,

Minors , unpublished order of the Court of Appeals, entered August 8, 2019 (Docket Nos. 343669; 350113).- 2

- father.” 2 Id

. On remand, t he trial court then held an evidentiary hearing and again terminated respondent’s parental rights. We affirm.

I. BASIC FACTS

We previously summarized the underlying facts of this case in In re Curry, Minors

, unpub op at 1:

T he trial court terminated respondent’s parental rights to the minor

childr en, TLC, SLC, and LAC. In 2016, one of the children, LAC, made

statements to a relative suggesting that respondent had sexually abused her. These statements were corroborated by another individual who was present at the time. Upon further investigation of possible abuse , o ne of the other children, SLC, made statements suggesting that respondent had threatened her if she spoke about matters relating to that allegation. The trial court found that statutory grounds for termination under MCL 712A.19b(3)(b)( i ), (g) and (j) had been proven by clear and convincing evidence and that termination was in the best

interests of the children.

Following remand, the trial co urt held an evidentiary hearing. Dr. Bernard Gaulier was the sole witness at the evidentiary he aring. 3 He testified that, because of the trial court’s previous findings that the allegations in the petition were true, he believed the sexual abuse at issue in this case did occur. Dr. Gaulier also believed that termination of respondent’s parental

ri ghts was in the best interest of the children. Dr. Gaulier, however, opined that “[o]ther than what is described in the petition, based on my evaluation, there is no indication that he’s dangerous or aggressive in any way.” No other evidence was offered at the evidentiary hearing.

The trial court issued its written findings and conclusions three weeks later and again terminated respondent’s parental rights. In its written order, the trial court repeatedly stated that it found statutory bases to terminat e respondent’s parental rights “by clear and convincing

evidence ” under MCL 712A.19b(3)(b)( i ), (g) and (j). Specifically, the trial court found, by clear and convincing evidence, that respondent sexually abused LAC. T he trial court also stated that

“it h as not considered Respondent

- Father’s failure to admit perpetrating sexual abuse upon his daughter as a basis for terminating his parental rights,” and that “the evidence of what [LAC] stated to her aunt, along with the evidence that Respondent

- Father trie d to conceal or suppress any further disclosure is sufficient to demonstrate by clear and convincing evidence that termination of Respondent

- Father[’s] parental rights is warranted under MCL 712A.19b(3)(b)( i ),

2 Because out Supreme Court only remanded for the limited purpose of determining statutory bases and best interests, we will only address those issues here. See In re Curry, Minors , 503 Mich at 1023. We will not address the other issues raised in respondent ’ s original appeal.

3 Dr. Gaulier failed to specify, at the evidentiary hearing on remand, what kind of doctor he is

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- (g), and (j)

. ” The trial court also found tha t termination of respondent’s parental rights was in

the children’s best interests.

II. ANALYSIS

A. STATUTORY TERMINATION FACTORS

Under MCL 712A.19b(3), petitioner has the burden of proving a statutory ground for termination by clear and convincing ev idence. See MCR 3.977(A)(3) and 3.977(H)(3); In re Trejo , 462 Mich 341, 356; 612 NW2d 407 (2000).

“[T]he clear and convincing evidence standard [is] the most demanding standard applied in civil cases[.]” In re Martin , 450 Mich 204, 227; 538 NW 2d 399 (1995) (brackets added). 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 convincin g” despite the fact that it has been contradicted. [ Id

., citing In re Jobes , 108 NJ 394, 407

- 408; 529 A 2d 434 (1987).]

An appellate court “review[s] for clear error

. . . the court’s decision that a ground for termination has been proven by clear and conv incing evidence.” In re Trejo , 462 Mich at 356

- 357. “Clear error exists when some evidence supports a finding, but a review of the entire record leaves the reviewing court with the definite and firm conviction that the lower court made a

mistake.” In re Dearmon , 303 Mich App 684, 700 ; 847 NW2d 514 (2014) . This Court must defer to the trial court’s special opportunity to observe the witnesses. Id.

In the present case, the trial court terminated respondent’s parental rights under MCL 712A.19b(3)(b)( i ), (g), and (j), which at the time relevant provided as follows: [ 4 ]

4 Pursuant to 2018 PA 58, effective June 12, 2018, subsection (3)(g) now provides as follows:

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.- 4

- (3) The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:

* * *

(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 i s a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent’s home.

* * *

(g) The parent, without regard to intent, 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.

* * *

(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.

Here, respondent again complains that the challenged evidence should not have been

admitted and further claims that even if the evidence was admissible, petitioner nevertheless

faile d to prove by the requisite standard, clear and convincing evidence

, that respondent sexually molested his youngest child , arguing that “[c]lear and convincing evidence requires more than a single answer to a suggestive question to a three year old

. ”

In its opinion o n remand, the trial court specifically noted that it was considering whether a ground for termination had been proven by clear and convincing evidence. The trial court in

fact engaged in such an analysis, by specifically considering how vari ous pieces of evidence corroborated each other. The trial court reviewed the allegation, first made by LAC’s aunt

, that while driving together LAC stated that “she was going to kiss her Barbie on the kitty. It is clear from the testimony presented that ‘ kitty’ is the word used by [LAC] to refer to her vagina. ”

When her aunt asked where “ she got that from, [LAC] replied ‘my daddy.’ [LAC] then confirmed that her daddy kissed her kitty.”

More significantly, the trial court relied on evidence that respond ent had, on at least one occasion, told LAC not to make such statements “because someone could get in trouble and threatened to whoop [SLC, one of LAC’s siblings] if she discussed touches or if [LAC] told

about touches.” Respondent

- m other confirmed that r espondent told LAC “that she should not say things like this because people cou ld get in trouble.” Respondent

- m other also confirmed that

the word “whoopings,” as used in the home, meant spankings, and that punishments “in her home range from being sent to rooms, to taking away privileges to span k ings, sometimes with a

belt.”- 5

- The trial court relied on th at evidence to find, by the clear and convincing standard, that respondent’s parental rights should be terminated. In addition to finding that respondent caused sexual abuse, the trial court also found that respondent “tried to conceal his conduct by threatening [SLC] into not disclosing the abuse. The sexual abuse coupled with Respondent

Father’s actions to try to cover up the abuse and suppres s any further disclosure demonstrate by clear and convincing evidence that there is a reasonable likelihood that all three children will suffer from abuse in the foreseeable future if placed in the Respondent

- Father’s home.” 5

On remand, the trial court noted numerous times that it was apply ing the “ clear and convincing evidence” standard in finding a statutory basis for termination, which included a finding, also by clear and convincing evidence, that respondent sexually abused LAC. Accordingly, the tri al court fully complied with our Supreme Court’s remand order. For the

reasons stated in In re Curry, Minors , unpub op at 8

- 9, we are not convinced that the trial court clearly erred by making these findings. Thus, the trial court did not clearly err whe n it found, by clear and convincing evidence, that respondent’s parental rights to the children should be

terminated under MCL 712A.19b(3)(b)( i ), (g), and (j). 6

D. BEST INTERESTS

We previously addressed whether termination of respondent’s parental rights was in the

children’s best interests in In re Curry, Minors , unpub op at 9:

5 Thus, as the trial court noted, and contrary to respondent ’ s argument, the evidence consisted of more than merely LAC ’ s stat ement. The fact that the statement had been made was corroborated by several adults, and it was permissible for the trial court to view that statement as corroborating evidence , given that respondent told LAC not to discuss the incident or that she might be “ whooped, ” meaning beaten with a belt. The trial court of course could have rejected such evidence for any number of reasons, such as lack of credibility or corroboration on the part of witnesses, including LAC, as urged by respondent; or because the f actfinder c ould reasonably

have found that respondent had an innocent reason f or telling LAC to not make such statements

, such as merely to avoid being the public subject of an embarrassing and serious allegation

, rather than consciousness of actually havi ng done something wrong

. However, those were not the trial

court ’ s findings

. Rather, the trial court found that “The lack of a satisfactory explanation leaves this court without any basis for interpreting the statements made by [LAC] at other than face

v alue

— that Respondent

- Father kissed her vagina.” T he trial court ’ s view of the evidence was permissible

, had a reasonable basis in the evidence, and was supported by a finding by the trial court that respondent supported his statement with a threat of phys ical violence. Thus, the trial

court ’ s findings were not clearly erroneous, the standard which we must apply. Consequently, we decline to set aside those findings

, as to do so would be beyond our purview.

6 It would have been helpful for the trial cour t to set out more fully the definition of “clear and convincing evidence” and to state more clearly why its findings adhered to that standard. Nonetheless, the substance of the trial court ’ s findings demonstrated that it in fact made its findings by the c lear and convincing standard.- 6

- Respondent next argues that the trial court clearly erred in finding that termination of his parental rights was in the children’s best interests. “If the court

finds that there are grounds for termination of parental rights and that termination of parental rights is in the child’s best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 712A.19b( 5). Although termination of parental rights requires proof of at least one of the statutory termination factors on clear and convincing evidence, “the preponderance of the evidence standard applies to the best

- interest determination.” In re Moss , 301 Mic h App 76, 83; 836 NW2d 182 (2013). An appellate court “review[s] for clear error

. . . the court’s decision regarding the child’s best interest.” In re Trejo , 462 Mich at 356

- 357.

In this case, in addition to the trial court’s factual conclusion that re spondent did sexually molest his youngest child, LAC, and chose to try to cover it up, the court had before it a psychological evaluation and also a risk assessment, both of which were prepared by experts

, with respondent’s cooperation. The trial court no ted that the psychological evaluation concluded

that “it is in the best interest of all three children to discontinue reunification efforts with Respondent

- Father,” that respondent “continued to deny that he tried to conceal his actions and

that there is n o reasonable likelihood that he intends to correct any of his problematic behaviors,” and that respondent “is highly likely to continue his past behaviors and, therefore, the children would be at risk of harm if placed in his care.” The risk assessment in turn weighed less dramatically in favor of termination insofar as it concluded that respondent presented a “low risk” of sexual deviance or sexual aggressiveness. But the risk assessment otherwise offered no mitigation, in that its author , after admittin g that he did not meet with the children or “necessarily” consider their interests “directly from their prospective [sic],” expressed concern that respondent was “not in a working process or therapeutic process to be able to understand and

to be able to wo rk through” his issues. In fact, the author further testified that respondent “could benefit from therapy even if in denial of his actions , but that it would increase the time needed for therapy.” (Emphasis added.)

Given the trial court’s conclusions th at respondent molested his daughter and attempted to cover it up, along with the confirmation of those concerns provided by the risk assessment and especially the psychological evaluation, respondent’s arguments about bonding with the children

or otherwise showing his ability to care for them offer but little to counter the trial court’s compelling bases for concluding that termination of his parental rights was in the children’s best interests. The children had already been under the court’s jurisdiction for 18 months, and the trial court prioritized their need for permanence and stability. We thus find no clear error in the

trial court’s best

- interests findings.

On remand, Dr. Gaulier testified that, if not for the trial court’s determination that

respo ndent sexually abused LAC, he would not think that respondent was dangerous. Based on the trial court determination, however, Dr. Gaulier opined that respondent did sexually abuse LAC and that termination of his parental rights were in the best interest o f the children. For the reasons stated previously In re Curry, Minors , unpub op at 9

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, we agree that termination of respondent’s parental rights was in the best interests of the children. Even setting aside the

somewhat incongruous situation of an expe rt witness, whose role is to provide valuable “scientific, technical, or other specialized knowledge” intended to “ assist the trier of fact to- 7

- understand the evidence or to determine a fact in issue,” see MRE 702, instead basing his

conclusions on determin ations made by the factfinder, we find that there was more than sufficient evidence, without considering Dr. Gaulier’s testimony at all, to support the trial court’s best interest findings by a preponderance of the evidence. Specifically, the trial court’ s finding that defendant sexually abused his daughter, and engaged in a series of actions to cover up that fact, backed up by physical threats, more than supported the trial court’s finding s by a preponderance of the evidence.

Affirmed.

/s/ Colleen A. O 'Brien

/s/ Jonathan Tukel

/s/ Anica Letica