                            STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re LEONARD, Minors.                                               August 30, 2018

                                                                     No. 340557
                                                                     Washtenaw Circuit Court
                                                                     Family Division
                                                                     LC No. 15-000140-NA


Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.

O’BRIEN, J. (dissenting).

        Because I believe that the trial court did not clearly err in finding by a preponderance of
the evidence that termination was in the children’s best interests, I respectfully dissent.

        “[W]hether termination of parental rights is in the best interests of the child must be
proved by a preponderance of the evidence.” In re Moss, 301 Mich App 76, 90; 836 NW2d 182
(2013). “This Court reviews for clear error the trial court’s ruling . . . that termination is in the
children’s best interest.” In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). A
decision is clearly erroneous if “the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been made.” In re JK, 468 Mich 202, 209-210;
661 NW2d 216 (2003). A best-interest determination is focused on the child rather than the
parent. In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016).

        Respondent admitted that termination was appropriate under MCL 712A.19b(3)(j), which
provides grounds for termination when “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.” After a two-day hearing on the children’s best interests, the trial court delivered a
detailed best-interest analysis in which it explained why it was in the children’s best interests to
terminate respondent’s rights based on his extensive history of viewing child pornography.

        The trial court explained that respondent’s collecting and viewing of child pornography
brought into question his relationship with the children, AL and LL. The evidence established
that respondent viewed pornographic material of children in the same age range as AL and LL,
and that most of the viewing occurred while the children were still in his care. I believe that the
trial court appropriately considered this evidence as bringing into question respondent’s bond
with AL and LL, even in light of the contradictory evidence. In other words, I believe that the
trial court appropriately questioned respondent’s bond with AL and LL—by addressing whether
it was a “healthy” bond—based on the apparent inconsistencies between evidence of


                                                -1-
respondent’s strong bond with AL and LL and his viewing of pornographic material depicting
children the same age as AL and LL while AL and LL were in his care.

        The trial court’s best-interest analysis also addressed the children’s needs for
permanency, stability, and finality. It expressed concern over respondent’s addiction and its
unknown origin, and questioned whether the addiction was curable. The trial court’s concerns
were supported by the evidence: no one could offer an explanation for why respondent began
looking at child pornography, and Miller testified that respondent’s recovery of his addiction
would be a life-long process. The trial court correctly equated these concerns to uncertainty over
the children’s future if left in respondent’s care. In that light, consideration of respondent’s
ability to address and overcome his addiction to child pornography was especially pertinent
because respondent admitted that there was a reasonable likelihood that, based on his viewing of
child pornography, the children would likely be harmed if returned to his care.

       The trial court also reasoned that termination was in the children’s best interests because
downloading child pornography was “a form of domestic violence.” While I agree with the
majority that this statement is inaccurate, I do not see this as a reason to vacate the trial court’s
order. I think that the statement is reasonably read as finding that respondent’s actions were
harmful, and the trial court explained why: watching child pornography promotes an industry
that unequivocally harms the children exploited in the pornographic material. The fact that
respondent did not consider this harm when he viewed the material—especially when the
children in the material were the same age as AL and LL—raises uncertainty about whether he
would be able to understand the effect of his actions in general on AL and LL. The trial court’s
concern over whether the children’s well-being could be reasonably assured in respondent’s care
was proper, and it supports finding that termination was in the children’s best interests. See In re
VanDalen, 293 Mich App 120, 142; 809 NW2d 412 (2011) (in the context of unknown physical
abuse, holding that the trial court did not clearly err by finding that termination was in the
children’s best interests because their “safety and well-being could not reasonably be assured”).

        Ultimately, while the trial court’s best-interest analysis did not recite every fact in the
record, I would nonetheless conclude that its decision was proper. The trial court explicitly
acknowledged that “it should weigh all the evidence available to determine the child’s best
interest.” It then focused its analysis on addressing the factors it found applicable to this case
and explaining why those factors tended to support its decision. On this record and in light of
the trial court’s explanation, I am not left with a definite and firm conviction that termination
was not in the children’s best interests. For these reasons, I respectfully dissent.

                                                              /s/ Colleen A. O'Brien




                                                -2-
