Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  February 28, 2020                                                                  Bridget M. McCormack,
                                                                                                   Chief Justice

  160626-7                                                                                David F. Viviano,
                                                                                          Chief Justice Pro Tem

                                                                                        Stephen J. Markman
                                                                                             Brian K. Zahra
                                                                                       Richard H. Bernstein
                                                                                       Elizabeth T. Clement
                                                                                       Megan K. Cavanagh,
                                                                                                        Justices
  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 open-
ended 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
                                                                                              4

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 respondent-
father 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
                                                                                                              6


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




                        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
                                                                            Clerk
