Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack, Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

February 28, 2020

160626-7

In re CURRY, Minors. SC: 160626-7

COA: 343669; 350113

Oakland CC Family Division:

2016-847120-NA

_______________________________________/

On order of the Court, the application for leave to appeal the November 12, 2019 

judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of 

granting leave to appeal, we REVERSE the judgment of the Oakland Circuit Court 

terminating respondent’s parental rights, and we REVERSE the judgment of the Court of 

Appeals affirming the circuit court.

The trial court terminated respondent’s parental rights to three minor children, TLC, 

SLC, and LAC. In 2016, LAC responded affirmatively to a leading question from her aunt 

indicating respondent had sexually abused her. The aunt reported the allegation to her 

mother (the children’s maternal grandmother) who, in turn, reported the allegation to the 

children’s mother. A referral of allegations of sexual abuse was reported to Child 

Protective Services (CPS), prompting a CPS worker to visit the home and meet with the 

mother and LAC. The mother agreed to bring all three children to Care House for a forensic 

interview and to prevent respondent from contacting the children. Based on an allegation 

that all three children had been sexually abused, in addition to an allegation that respondent 

and the children’s mother threatened the children with a “whooping” if they discussed the 

allegation, a petition for temporary custody against both respondent and the children’s 

mother was filed by the Department of Health and Human Services (DHHS). Following a 

hearing and upon a finding of reasonable cause that one or more of the allegations was true, 

the circuit court ordered the children to be taken into custody.

DHHS subsequently amended the petition against both parents seeking permanent 

custody of all three children. Several additional hearings were held and the circuit court 

eventually ruled that the aunt’s statement regarding LAC’s statement of abuse and the 

statement by LAC’s sibling regarding respondent threatening a “whooping” were 

admissible under the “tender years” hearsay exception in MCR 3.972(C)(2). The case 

proceeded to trial.

Viewed in a light most favorable to the petitioner, the facts established in the circuit 

court record are as follows. In 2016, LAC’s aunt was driving 3-year-old LAC and her 5-

year-old cousin. The girls were playing with dolls in the backseat. The aunt later recalled 
2

that after the cousin said she was going to kiss her doll on its forehead, LAC said she was 

going to kiss her doll on the “kitty,” a euphemism used in the family to refer to a vagina. 

The aunt asked, “[W]ho told her that?” and LAC answered that respondent had. The aunt 

then asked if respondent kissed LAC’s vagina, and she said “yes.” LAC would not repeat 

the statement in a forensic interview. However, in the interview, LAC did respond 

affirmatively to leading questions such as whether it was raining inside, and whether she 

was 10 years old. Additionally, though SLC never disclosed any abuse in her forensic 

interview, she said she would “get her butt whooped” for talking about touches to her butt

or vagina. LAC’s mother testified that when she told respondent about the statement, he 

said LAC was “exaggerating.” LAC’s mother told respondent he needed to talk with LAC 

and “let her know what good touches and bad touches are basically.” Respondent denied 

any abuse to LAC’s mother. Regarding the statement, LAC’s mother testified, “I don’t 

know who she did or didn’t learn it from which is why I took her to the doctor to see what 

was going on.” LAC’s mother talked to LAC about the statement and “didn’t know what 

to believe because she went back and forth.”1

In an order entered on November 14, 2017, following trial, the circuit court held 

that jurisdiction under MCL 712A.2(b)(1) and (2) had been established by a preponderance 

of the evidence as to respondent but that jurisdiction had not been established with respect 

to the children’s mother. The circuit court also held that statutory grounds for termination 

of respondent’s parental rights under MCL 712A.19b(3)(b)(i), (g) and (j) had been proven 

by clear and convincing evidence. In an order entered on April 12, 2018, the circuit court 

held that termination of respondent’s parental rights was in the best interests of the children. 

Respondent appealed, and the Court of Appeals affirmed. We vacated the Court of Appeals 

judgment in part, and remanded the case to the circuit court to reconsider its order 

terminating respondent’s parental rights and to apply the clear and convincing evidentiary 

standard to the allegations of sexual abuse. In re Curry, Minors, 503 Mich 1023 (2019). 

On remand, the circuit court held an evidentiary hearing at which one witness testified, and 

the court again terminated respondent’s parental rights. The Court of Appeals affirmed 

once again. In re Curry, Minors (On Remand), unpublished per curiam opinion of the 

Court of Appeals, issued November 12, 2019 (Docket Nos. 343669 and 350113).

The Court of Appeals correctly stated the applicable evidentiary standard and 

standard of review regarding termination:

Under MCL 712A.19b(3), petitioner has the burden of proving a 

statutory ground for termination by clear and convincing evidence. See 

 1 At the removal hearing, the CPS worker testified that all three children disclosed sexual 

abuse during the Care House interview. However, review of the interviews at the 

subsequent hearings evidenced that this allegation was not substantiated.
3

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 NW2d 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 convincing” despite the fact that it has been 

contradicted. [Id., citing In re Jobes, 108 NJ 394, 407-408; 

529 A2d 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 convincing 

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 re Curry, Minors, unpub op at 3.]

This record leaves us with a definite and firm conviction that a mistake has been 

made.

Respondent does not challenge the circuit court’s initial authorization to take the 

children into custody, and we see no factual basis to question the circuit court’s 

determination that reasonable cause existed to believe that one or more of the allegations 

of abuse were true. We disagree, however, with the circuit court’s determination that a 

statutory basis to terminate respondent’s parental rights was established by clear and 

convincing evidence. The statutory grounds for termination and the best-interest 

determination all turn on the factual finding regarding whether respondent sexually abused 

one of the children. That finding is based on a 3-year-old child’s response to two openended questions and one leading question asked by her aunt, and a 6-year-old child’s 

statement that respondent threatened a “whooping” for discussing the allegations. 

Regarding the initial statement, we note that the child did not repeat the statement 

in the forensic interview. But the child affirmatively responded to leading questions such 
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as whether it was raining indoors and whether she was 10 years old. Appellate courts give 

deference to a trial court’s opportunity to observe a witness, but the trial court did not 

actually observe the statement characterized by the aunt as alleging abuse.2

 Further, the 

trial court seemed to place the burden on respondent to disprove the statement. Finding 

respondent’s various theories on why a 3-year-old might make such a statement 

unsatisfactory, the trial court concluded it had to take the statement at “face value.” In 

doing so, the court shifted the burden to respondent to disprove the statement. 

Regarding the indication that respondent threatened another child with a 

“whooping” for discussing the allegations, these are hearsay accounts from a 6-year-old. 

The record does not seem clear to us that whatever was said was an attempt at thwarting

an investigation rather than an inartfully phrased instruction about what topics of 

discussion are generally appropriate. 

Even assigning these two pieces of evidence the most weight they might be due, we 

cannot see how any reasonable trier of fact could consider this 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.” In re Martin, 450 Mich at 227 

(citations and quotation marks omitted). Consequently, we conclude the trial court abused 

its discretion. We REMAND this case to the Oakland Circuit Court, Family Division to 

determine whether a basis exists for the court’s continuing jurisdiction and for further 

proceedings not inconsistent with this order. 

We do not retain jurisdiction.

MARKMAN, J., (dissenting).

The majority provides a fair-minded recitation of the record upon which the trial 

court assumed jurisdiction and terminated respondent-father’s parental rights, and its 

decision to reverse both the trial court and the Court of Appeals is not unreasonable. 

Nonetheless, I respectfully dissent. 

Before considering whether termination of parental rights is in the best interest of a 

child, the trial court must find that clear and convincing evidence supports at least one 

statutory ground for termination. In re Trejo, 462 Mich 341, 355 (2000). Here, the trial 

court found that the evidence supported its conclusions that respondent-father had sexually 

abused LAC and that there was a reasonable likelihood the children would suffer additional 

injury or abuse if placed in his home. See MCL 712A.19b(3)(b)(i). And an appellate court 

reviews for clear error the trial court’s determination that a statutory ground for termination

 2 In addition, the aunt testified at trial that she did not like respondent, ranking her dislike 

for him a “10” on a scale of 1 to 10.
5

has been shown. 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 (2014). In reviewing the record, an appellate court must “giv[e] due 

regard to the trial court’s special opportunity to observe the witnesses.” In re BZ, 264 Mich 

App 286, 296-297 (2004). Finally, for this Court to intervene, respondent-father was 

obligated to demonstrate that the Court of Appeals’ decision to affirm the trial court “is 

clearly erroneous and will cause material injustice[.]” MCR 7.305(B)(5)(a). 

This admittedly is a difficult case. However, in light of the following, I am unable 

to concur with the majority that the trial court “clearly erred” when it found that “clear and 

convincing” evidence supported its conclusion that respondent-father sexually abused 

LAC. First, it is highly atypical, and indicative of sexual abuse, for a three-year-old to 

spontaneously suggest an act of oral sex. Second, in response to her aunt’s nonleading and 

open-ended question as to who gave her the idea to kiss her doll goodnight on the “kitty,” 

LAC answered “My Daddy.” Third, respondent-father initially responded to the allegation 

that he had sexually abused his daughter by professing that LAC was “exaggerating,” a 

somewhat odd response that could reasonably be viewed as an attempt by respondentfather to minimize the extent of his inappropriate conduct rather than to affirmatively deny

the allegation. Fourth, while LAC did not restate the allegation in a forensic interview, a 

reasonable observer might ascribe this to intervening actions by LAC’s parents subsequent 

to the initial allegation to threaten one of LAC’s siblings with a “whooping” if the 

allegations were discussed any further. Fifth, LAC’s mother’s testified that, when she first 

discussed the allegation with LAC, the child “went back and forth” concerning the 

allegation, indicating that although LAC did not restate the allegation at the forensic 

interview, in much closer proximity to the initial comments to her aunt, the child did restate 

the allegation to her mother. Finally, I am unpersuaded by the majority’s effort to minimize 

the trial court’s conclusion that LAC’s aunt testified credibly. While the majority correctly 

points out that the aunt disliked respondent-father before the critical interaction with her 

niece, a close reading of the hearing transcript suggests nothing incompatible with the trial 

court’s conclusion that the aunt testified forthrightly, providing what information she 

possessed, presenting a straightforward and unembellished version of events, and 

acknowledging when she lacked adequate information.

Having considered the deference owed the trial court’s credibility determination, 

the available evidence, and the inferences that could reasonably have been drawn from 

such evidence by the trial court, I am not left with a “definite and firm” conviction that the 

court erred in terminating respondent-father’s parental rights. Nor am I convinced that 

respondent-father has shown that the Court of Appeals reached a “clearly erroneous” 

decision in affirming the trial court. Thus, while I appreciate the basis for the majority’s
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 February 28, 2020

p0225

6

Clerk

position, I do not believe the trial court’s (or the Court of Appeals’) positions to be 

unreasonable. Therefore, I respectfully dissent.