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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re WAITE, Minors. June 13, 2017

No. 335613

Isabella Circuit Court Family Division

LC No. 2016-000075-NA

Before: S WARTZLE , P.J., and S AAD and O’C ONNELL , JJ.

P ER C URIAM

.

Respondent appeals as of right from the order terminating her parental rights to her two minor children under MCL 712A.19b(3)(b)( ii ) (failure to protect child from sexual abuse) and (g) (failure to provide proper care or custody). We affirm.

I. APPLICABLE LAW AND STANDARD OF REVIEW

If a trial court finds that a single statutory ground for term ination of parental rights has been established by clear and convincing evidence and that it h as been proven by a preponderance of the evidence that termination of parental righ ts is in the best interests of a child, the court is mandated to terminate a respondent’s parent al rights to that child. In re Beck

, 488 Mich 6, 10-11; 793 NW2d 562 (2010); In re Ellis , 294 Mich App 30, 32; 817 NW2d 111 (2011). “This Court reviews for clear error the trial court’s ruling that a statutory ground for termination has been established and its ruling that terminatio n is in the childre n’s best interests

. ”

In re Hudson , 294 Mich App 261, 264; 817 NW 2d 115 (2011); see also MCR 3.97 7(K). “A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite

and firm conviction that a mistake has been made.” In re HRC , 286 Mich App 444, 459; 781 NW2d 105 (2009). In applying the c lear error standard in paren tal rights termination cases, “regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” In re Miller , 433 Mich 331, 337; 445 NW2d 161 (1989). The trial court must “state on the record or in writing its fin dings of fact and conclusions of law. Brief, definite, and pertinent findings and conc lusions on cont ested matters are sufficient.” MCR 3.977(I)(1).

II. STATUTORY GROUNDS

Respondent first argues that the trial court clearly erred in terminating her parental rights pursuant to MCL 712A.19b(3)(b)( ii ) and (g). We disagree.-2- MCL 712A.19b provides in pertin ent part as follows:

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

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(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 circu mstances:

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( ii ) The parent who had the opportun ity to prevent the physical in jury or physical or sexual abuse failed to do so and the court finds th at there is a reasonable likelihood that the child will suffer injury or abus e in the foreseeable future if placed in the parent’s home.

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(g) The parent, without regard to intent, fails to provide pro per care or custody for the child and there is no reasonable expectation th at the parent will be able to provide proper care and custody within a reasonable tim e considering the child’s age.

The trial court did not clearly err in finding clear and convi ncing evidence to support the statutory grounds for terminating respondent’s parental rights pursuant to MCL 712A.19b(3)(b)( ii ). Respondent was unwilling to protect her children from abuse . The children were removed from respondent’s care because of her relationship with a convicted sex offender, who sexually abused her oldest child. Before beginning a relat ionship and cohabitating with this man, respondent knew that he had a criminal sexual conduct hist ory involving a nine-year old girl, the approximate age of respondent’s two daughters. When petitioner discovered his prior criminal sexual conduct conviction, a safety plan was put in pl ace that precluded him from having any unsupervised contact with the children. The record clearly showed that respondent did not follow the safety plan and repeatedly allowed him to ha ve unsupervised access to her children. Respondent knew the risk of harm, had been forewarne d by her sister and caseworkers,

but still left the children alone with this convicted sex offen der. Ultimately, it came to light that he had physically and sexually assaulted the older daughter mul tiple times. Respondent was clearly in a position to prevent the severe abuse and failed to do so. All caseworkers and two evaluating psychologists, and even respondent herself, agreed t hat she failed to protect her children. The trial court did not err in finding that the firs t requirement of MCL 712A.19b(3)(b)( ii ) was met.

Rather, the central issue on a ppeal is whether the trial court clearly erred in finding that the second requirement of MCL 712A.19b(3)(b)( ii ) was met. We agree with the trial court that the record indicates that it was reasonably likely that the chi ldren would suffer injury or abuse in the foreseeable future if placed in respondent’s home.-3- Respondent allowed a convicted sex offender to watch her child ren alone on multiple occasions. When he was eventually charged with repeating this abuse with her older daughter, respondent refused to believe th e allegations and talked with h im approximately three times daily for two months while he was incarcerated. Recorded jailhouse t elephone conversations revealed that she was supportive of him and steadfastly professed her lo ve for him. Respondent encouraged him not to plead to anything and to fight the charge s. Most distressing is that respondent told him that she was doing what she needed to do to fool petitioner and the two discussed plans to move to Arizona with one of the children aft er petitioner was no longer involved with the family. Althou gh respondent indicated that s he eventually ended her relationship with this man, as noted by the trial court, she di d so just one week before the termination hearing, which seriously called into question wheth er this breakup was sincere or just another attempt to fool petitioner and the court. The trial court received testimony from two psychologists as w ell as a report from respondent’s therapist. On appeal, respondent argues that the trial court erred by crediting the testimony of the first psychologist over the testimony of the s econd psychologist and the report from respondent’s therapist. We disagree. The professionals agreed that respondent had heightened depe ndency needs, that she placed her romantic relationships above the needs of her childr en, that she displayed patterns common for individuals with long histories of abuse, including dependency, poor emotional regulation, and impaired judgment in relationships, and that sh e demonstrated some features of a personality disorder, includi ng having an unrealistic preoccupa tion with being left alone.

The only significant disagreement between the two psychologist s was with respect to the length of treatment and respondent’s prognosis of success. The first psychologist opined that respondent would require two to five years of treatment before respondent was ready to parent properly; the second psychologist opined that it would be reaso nable to give respondent one year of services and assess her progress in reducing the barriers th at led to the children’s removal at the end of that year; respondent’s therapist submitted a letter to the court indicating that respondent was actively engaging in therapy. Nonetheless, the first psychologist’s opinion was based upon his evaluations of re spondent, the children, and the ir father, while the second psychologist’s opinion was based primarily on respondent’s self -reporting. Determinations of credibility are the province of the factfinder, not this Court, Zeeland Farm Services, Inc v JBL Enterprises, Inc , 219 Mich App 190, 195; 555 NW2d 733 (1996), and, given the re cord presented to this Court, we are unable to conclude that the tri al court erred by crediting more favorably the testimony of t he first psychologist.

In any event, the totality of the evidence before the trial co urt, including respondent’s behavior before, during, and after the sexual assaults, confirm s that the trial court did not clearly err in concluding that respondent w as unlikely to be able to pr ovide for the children’s proper care even if given an addition al year of treatment. 1

1 We also reject respondent’s tan gential argument that her attor ney provided ineffective assistance of counsel by not requesting additional time for the second psychologist to evaluate

the children and the father and to conduct a bond assessment. The trial court reasonably-4- Respondent also takes issue with the trial court’s conclusion that respondent displayed a pattern of deception with caseworkers and the court. We disagr ee. Throughout the pendency of this case, respondent appeared t o be cooperating with petitione r and working on her reunification plan. Indeed, the first psychologist stated that respondent “p resent[ed] well.” Nonetheless, throughout nearly the entirety of p etitioner’s involvement, res pondent was having three telephone conversations per day w ith her child’s assailant, and informing him that she was attempting to fool petitioner. The two even planned to move to Arizona—outside of the trial court’s jurisdiction—after the c onclusion of the case. The rec ord speaks for itself and amply affirms the trial court’s conclusion. Accordingly, we find tha t the trial court properly concluded that MCL712A.19b(3)(b)( ii ) supported termination of res pondent’s parental rights. The proofs similarly supported the trial court findings, pursu ant to MCL 712A.19b(3)(g), that there was a reasonable exp ectation that respondent would n ot be able to provide proper care and custody within a reasonable time considering the children’s ages. Respondent failed to care properly for her children, knowingly and repeatedly placing the m alone with a sex offender. Although there was testimony that respondent should not have an y relationships for two years so that she could focus on her self-improvement, respondent immedi ately engaged in a new relationship once she realized t hat the sex offender would like ly have a long incarceration. She met her new partner through an online dating site, and they beg an living together after 45 days. Respondent argues that the trial court erred in concluding that this relationship was problematic

because the individual did not have a criminal record and was n ot a sex offender. The second psychologist, however, testified that the relationship was “a r ecipe for disaster” and would only harm respondent’s chances of making progress. Regardless of th is man’s ostensibly good character, we agree with the t rial court that respondent’s acti ons demonstrated that she would repeatedly place her self-interests above her children’s safety , and that MCL 712A.19b(3)(g) supported termination of he r parental rights.

III. BEST-INTEREST DETERMINATION

Respondent next argues that the trial court clearly erred in f inding that it was in the

children’s best interests to ter minate respondent’s parental ri ghts. Again, we disagree. “Once a statutory ground for termination has been proven, the trial court must find that

termination is in the child’s best interests before it can term inate parental rights.” In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). When determining be st interests, the focus must be on the child, not the parent. In re Moss , 301 Mich App 76, 87; 836 NW2d 182 (2013). The trial court may consider such factors as “the child’s bond to the parent, the parent’s parenting ability, the child’s need for permanency , stability, and finality, and the advantages of a foster home over the parent’s home.” In re Olive/Metts Minors, 297 Mich App at 41-42 (internal citations omitted). It may also consider th e likelihood that the child could be

concluded that respondent’s reck less and self-int erested action s demonstrated that she was not likely to be in a position to care properly for the children wi thin a reasonable time. There is nothing to indicate that any additional evaluations would have changed this conclusion or the trial court’s corresponding ter mination of respondent’s parenta l rights. See People v Uphaus (On Remand)

, 278 Mich App 174, 185; 748 NW2d 899 (2008).-5- returned to the parent’s home in the foreseeable future, and co mpliance with the case service plan. In re Frey , 297 Mich App 242, 248-249; 824 NW2d 569 (2012), as well as ev idence that the child is not safe with the parent, In re VanDalen , 293 Mich App 120, 141; 809 NW2d 412 (2011). A best interest determination must be proven by a prep onderance of the evidence. In re

Moss , 301 Mich App at 90. Although it is undisputed that the children were bonded to res pondent, the trial court correctly concluded that the ch ildren’s best interests would be better served by terminating respondent’s parental rights. Re spondent repeatedly placed her own need for companionship above her children’s safety. Respondent exposed her two young daughters to a known sex offender. This man repeatedly abused one of the daughters, and respondent’s other daughter witnessed some of the abuse. Respondent steadfastly insisted h er daughter was lying, and conspired with her assailant to f ool petitioner and the court. Respondent’s daughter reported th at she had thoughts of self-h arm and nightmares about the trauma. During her psychol ogical evaluation, she stated th at she would do anything to forget the time she spent with her mother and thought that most mother s were mean. She had concerns about her safety and showed cl ear signs of underlying depressio n. She did not wish to live with respondent. Two mental health professionals opined that respondent exhibit ed mental health issues that could not be treated overnight. Respondent’s mental healt h diagnoses, coupled with her refusal to take responsibility for her children’s safety, indic ated that she would be unable to provide for her children’s proper care for the reasonably fores eeable future. Her daughter’s

trauma underscores the children’s need for safety and permanenc y, and confirms that termination

was in the children’s’ best interests. Lastly, respondent argues that t he record is inadequate to mak e a best interest determination because the trial court failed to consider explic itly the children’s placement with their father, see In re Mason , 486 Mich 142, 164; 782 NW2d 747 ( 2010), and failed to conside r individually each child’s best interests, see In re Olive/Metts

, Minors, 297 Mich at 42. Both arguments are without merit. The record indicates that the tri al court did expre ssly consider the children’s placement with their father and whether he would be able to facilitate a healthy relationship between the childre n and respondent. Moreover, itwas unnecessary for the lower

court to address the children’s best interests individually because thei r needs did not differ significantly. In re White , 303 Mich App 701, 715-716; 846 NW2d 61 (2014). The children were close in age, both had been placed in danger of sexual abu se, and both had a similar bond to respondent and their father. Most importantly, respondent’s un willingness to place her

children’s welfare over her own interests placed both children at a risk of harm if returned to respondent’s care.

Affirmed.

/s/ Brock A. Swartzle /s/ Henry William Saad

/s/ Peter D. O'Connell