                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                       UNPUBLISHED
In re ASBERRY/HOWARD/SAXTON, Minors.                                   December 20, 2018

                                                                       No. 343681
                                                                       Wayne Circuit Court
                                                                       Family Division
                                                                       LC No. 18-000168-NA


In re M N ASBERRY, Minor.
                                                                       No. 343682
                                                                       Wayne Circuit Court
                                                                       Family Division
                                                                       LC No. 18-000168-NA


Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.

PER CURIAM.

       In Docket No. 343681, respondent mother appeals as of right an order terminating her
parental rights to her minor children, MNA, AKA, AMS, DLH, and DMH, pursuant to MCL
712A.19b(3)(b)(ii) (child suffered physical or sexual abuse, parent failed to prevent the abuse,
and there is a reasonable likelihood child will suffer further abuse if placed with parent), MCL
712A.19b(3)(g) (failure to provide proper care and custody and no reasonable expectation that
parent will be able to provide proper care and custody within a reasonable time), and MCL
712A.19b(3)(j) (reasonable likelihood that child will be harmed if returned to parent). We
affirm. In Docket No. 343682, respondent father appeals as of right an order terminating his
parental rights to MNA pursuant to MCL 712A.19b(3)(b)(ii), (g), and (j). We affirm.

        On appeal, respondent mother contends that the trial court erroneously concluded that 1)
it had jurisdiction over the minor children, 2) statutory bases for termination existed, and 3)
termination was in the best interests of the minor children. Respondent father contends that the
trial court erroneously concluded that 1) statutory bases for termination existed, and 2)
termination was in the best interests of MNA.

                                         I. JURISDICTION

        The trial court’s decision to exercise jurisdiction is reviewed for clear error in light of the
court’s findings of fact. In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). We defer to
a trial court’s factual findings at termination proceedings if those findings are not clearly
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erroneous. In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). “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). But
regard must be given to the trial court’s opportunity to judge the credibility of the witnesses. In
re Schadler, 315 Mich App 406, 408-409; 890 NW2d 676 (2016) (citation omitted).

        A statutory basis must exist, by a preponderance of the evidence, for a trial court to
properly exercise jurisdiction. In re BZ, 264 Mich App at 295. In exercising jurisdiction, the
trial court must examine the circumstances as they existed when the petition was filed. In re
MU, 264 Mich App 270, 279; 690 NW2d 495 (2004). MCL 712.A.2(b)(1) and (2) provide
jurisdiction to the trial court over minors:
       (1) Whose parent or other person legally responsible for the care and maintenance
       of the juvenile, when able to do so, neglects or refuses to provide proper or
       necessary support, education, medical, surgical, or other care necessary for his or
       her health or morals, who is subject to a substantial risk of harm to his or her
       mental well-being, who is abandoned by his or her parents, guardian, or other
       custodian, or who is without proper custody or guardianship. . . .

       (2) Whose home or environment, by reason of neglect, cruelty, drunkenness,
       criminality, or depravity on the part of a parent, guardian, nonparent adult, or
       other custodian, is an unfit place for the juvenile to live in. [MCL 712A.2(b)(1)
       and (2).]

        In this case, the petitioning representative of the Michigan Department of Health and
Human Services (DHHS), Camille Young, testified that, at the time the petition was filed,
respondent mother was homeless and unable to provide appropriate and suitable housing for the
minor children. The arrangements organized by respondent mother—to place MNA, AKA, and
AMS in a home with someone respondent mother believed to have previously sexually assaulted
MNA—put all three children at substantial risk of harm to their health and mental well-being.
The unsuitability of the home by reason of neglect, criminality, depravity, or all three, was
evidenced by the reasonably predictable sexual assault that occurred at the hands of that same
individual, and the pornographic imagery to which MNA was both exposed to and the subject of.
We are not left with a definite and firm conviction that the trial court erred when it determined
that the evidence preponderated in favor of jurisdiction over MNA, AKA, and AMS, and that the
doctrine of anticipatory neglect further established jurisdiction over DLH and DMH. See In re
BZ, 264 Mich App at 296 (explaining that, with respect to jurisdiction, evidence of how a parent
treats one child can be considered as evidence of how a parent will treat other children).

        We note respondent mother’s contentions that 1) she was never, in fact, homeless, and 2)
she was never aware that the individual who perpetrated the sexual assault against MNA was
living in the house in which she placed MNA, AKA, and AMS. First, the fact that respondent
mother’s testimony conflicts with the testimony of Young is an issue of credibility, and it is the
role of the trier of fact to determine the credibility of the witnesses and the weight of the
evidence. See In re Schadler, 315 Mich App at 408-409. Similarly, MNA provided testimony
that suggested respondent mother—at the very least—had reason to know that the individual
who assaulted MNA—her step-grandfather—was in and around the home. Coupled with the fact

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that respondent mother intentionally placed MNA, AKA, and AMS with respondent father and
respondent father’s mother—the step-grandfather’s wife—it was not clearly erroneous for the
trial court to determine that respondent mother either did know or should have known that
MNA’s step-grandfather also lived in the house.

                             II. GROUNDS FOR TERMINATION

        Respondents next contend the trial court erred in determining that statutory bases for
termination existed. We review the trial court’s factual findings and ultimate determinations as
to the statutory grounds for termination for clear error. In re White, 303 Mich App 701, 709; 846
NW2d 61 (2014).

       At least one statutory ground under MCL 712A.19b(3) must be established by clear and
convincing evidence to terminate parental rights. In re Moss, 301 Mich App 76, 80; 836 NW2d
182 (2013). The statutory provisions cited by the trial court in this case include, in pertinent
part:
       (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:

                                             * * *

       (ii) The parent who had the opportunity to prevent the physical injury or physical
       or sexual abuse failed to do so and the court finds that there is a reasonable
       likelihood that the child will suffer 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. [MCL 712A.19b(3)(b)(ii), (g), and (j).]

Sufficient evidence exists to support the trial court’s finding that statutory grounds were
established, i.e., the trial court’s determination was not clearly erroneous.


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        MCL 712A.19b(3)(b)(ii) “addresses a failure by a parent to prevent sexual abuse,” In re
Martin, 316 Mich App 73, 89; 896 NW2d 452 (2016), and is the most clearly established ground
for termination as to both respondent mother and respondent father. Both respondents admitted
to Young that they were aware of allegations that MNA was sexually assaulted by her step-
grandfather when she was young, and both respondents admitted that they believed the
allegations to be true. Respondents then knowingly allowed MNA to live in the same home as
her assaulter—a clear failure to protect—leading to yet more sexual abuse. The error in
judgment was substantial, and given the events after the more recent assault by MNA’s step-
grandfather, it was not clear error for the trial court to find that a reasonable likelihood existed
that, should any of the children be returned to respondent mother or should MNA be returned to
respondent father, respondents would continue to make decisions that could cause harm to the
minor children.

         We note that respondent mother makes the same argument with respect to this statutory
ground as she does with respect to the statutory bases for jurisdiction—respondent mother
contends that she had no idea MNA’s step-grandfather was living in the home. The argument
fails as applied to this issue for the same reason that it fails as applied to jurisdiction. First, there
is evidence that respondent mother—at the very least—should have known that MNA’s step-
grandfather was living with respondent father, and second, it is the duty of the trial court to judge
the credibility of the witnesses and weigh the evidence. Respondent mother’s argument lacks
merit and fails to demonstrate clear error on the part of the trial court.

        Respondent father contends on appeal that subsection (3)(b)(ii) was not established
because there was no evidence that MNA’s step-grandfather was a child sex offender, and thus
there was no reason for respondent father to know that MNA’s step-grandfather could pose a
danger to MNA. Young testified, however, that not only was respondent father aware of the
allegations against MNA’s step-grandfather, but that respondent father believed them. MNA’s
step-grandfather was purportedly accused of sexual assault by three of respondent father’s
cousins, and according to Young, respondent father recalled that when he was 11 years old, his
cousin woke him up in tears alleging that the step-grandfather “tried to have sex with her.”
Respondent father has also failed to establish clear error.

        The evidence also supports the trial court’s reliance on MCL 712A.19b(3)(g) and (j). At
the time of this matter, MCL 712A.19b(3)(g) provided grounds for termination where “[t]he
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.” Under MCL 712A.19b(3)(j) termination is proper
where “[t]here 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 parent.

        This Court has found that both subsection (3)(g) and subsection (3)(j) are triggered where
a respondent-parent causes or fails to safeguard a child from intentional abuses, even where the
specific perpetrator is unknown. See In re VanDalen, 293 Mich App 120, 141; 809 NW2d 412
(2011) (holding that termination of parental rights under subsections (3)(g) and (3)(j) “is
permissible even in the absence of determinative evidence regarding the identity of the
perpetrator when the evidence shows that the respondents must have either caused the intentional


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injuries or failed to safeguard the children from injury”). Of course, in this case, the exact
perpetrator was known, and respondents still failed to safeguard MNA from the sexual abuse.

        Additionally, petitioner alleged 12 former CPS investigations of respondent mother,
ranging from allegations of sexual abuse to improper supervision. Also, Young testified that—
contrary to respondent mother’s assertions—respondent mother was homeless and unable to
provide a stable, safe environment. Taken together, Young’s testimony alone provided sufficient
evidence to establish grounds for termination of respondent mother’s rights under both
subsection (g) and (j). Similarly, although the trial court found insufficient evidence to support
the claim that respondent father sexually assaulted MNA, the circumstances of the pornographic
video of MNA found on respondent father’s telephone cannot be ignored. The video had
allegedly been on respondent father’s telephone for at least 22 days, and someone with access to
respondent father’s information purportedly attempted to erase the telephone’s data remotely
after the telephone was confiscated—suggesting that respondent father may have known that the
telephone contained the recording. In any event, the sheer existence of the video on respondent
father’s telephone evidences a failure to provide a safe home and environment for MNA, and
there was no evidence that respondent father could protect MNA from similar harm were she to
be returned to his care. See In re Schadler, 315 Mich App at 410 (only one ground for
termination need be established).

                          III. BEST-INTERESTS DETERMINATION

        Finally, respondents contend that the trial court erred in determining that termination
served the best interests of the minor children.

       Even if a statutory ground for termination is established by clear and convincing
evidence, a trial court “cannot terminate the parent’s parental rights unless it also finds by a
preponderance of the evidence that termination is in the best interests of the children.” In re
Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). In making its best-interest
determination, the trial court may consider all of the evidence. In re Medina, 317 Mich App 219,
237; 894 NW2d 653 (2016). The child is the focus at the best-interest stage, not the parent. In
re Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874 NW2d 205 (2015) (citation omitted).

        “To determine whether termination of parental rights is in a child’s best interests, the
court should consider a wide variety of factors that may include ‘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 White, 303 Mich App at 713,
quoting In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012). “Other
considerations include the length of time the child was in care, the likelihood that ‘the child
could be returned to [the] parents’ home within the foreseeable future, if at all,’ and compliance
with the case service plan.” In re Payne/Pumphrey/Fortson, 311 Mich App at 64, quoting In re
Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). “The trial court may also consider a
parent’s history of domestic violence, the parent’s compliance with his or her case service plan,
the parent’s visitation history with the child, the child[]’s well-being while in care, and the
possibility of adoption.” In re White, 303 Mich App at 714. Finally, “a child’s placement with
relatives weighs against termination under MCL 712A.19a(6)(a),” and relative placement should


                                               -5-
be an “explicit factor” in the best-interest determination. In re Mason, 486 Mich 142, 164; 782
NW2d 747 (2010).

        Both respondent mother and respondent father contend that the trial court failed to give
adequate weight to the bonds between the parents and the minor children, and that the court
failed to consider the placement of the minor children with relatives. Both arguments are
without merit.

        First, Young testified that the minor children lacked stability, but were doing well in their
respective placements, and that it would serve the minor children’s best interests to keep them in
their placements. Other than testimony that MNA had developed a history of running away,
there was very little if any evidence presented that would speak to the bond between respondent
mother and any one of the minor children, or respondent father and MNA, and accordingly, it
cannot be said that the trial court clearly erred by failing to weigh the bond between respondent
and the minor children more heavily.

      Second, whether an individual is considered a “relative” for the purposes of relative
placement is governed by MCL 712A.13a, which provides, in pertinent part:
       (j) “Relative” means an individual who is at least 18 years of age and related to
       the child by blood, marriage, or adoption, as grandparent, great-grandparent,
       great-great grandparent, aunt or uncle, great-aunt or great-uncle, great-great-aunt
       or great-great-uncle, sibling, stepsibling, nephew or niece, first cousin or first
       cousin once removed, and the spouse of any of the above, even after the marriage
       has ended by death or divorce. [MCL 712A.13a(1)(j).]

MNA, AKA, and AMS were placed with godparents, and a godparent is not a “relative” under
MCL 712A.19a. Similarly, DLH and DMH were placed with their biological father, M. Howard,
who also was not a relative pursuant to the statute. See In re Schadler, 315 Mich App at 413
(explaining that a biological parent is not a “relative” for the purposes of MCL 712A.19a).
Accordingly, the trial court did not err in failing to treat the minor children’s placements as
relative placements.

        In summary, the trial court did not clearly err in determining that termination was in the
best interests of the minor children.

       Affirmed.



                                                              /s/ Mark J. Cavanagh
                                                              /s/ Deborah A. Servitto
                                                              /s/ Thomas C. Cameron




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