                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     FOR PUBLICATION
In re Keillor, Minors.                                               June 28, 2018

                                                                     No. 340395
                                                                     Wayne Circuit Court
                                                                     Juvenile Division
                                                                     LC No. 16-523730-NA


Before: RONYANE KRAUSE, P.J., and MARKEY and RIORDAN, JJ.

MARKEY, J. (dissenting).

        I must dissent in respect to both the majority and concurring opinions. I do not accept the
majority’s statutory interpretation legerdemain by which “stomach” is added to the statutory
definition of “intimate parts” under the aliases of “groin” and “inner thigh” and/or to make it
synonymous with any of those words. “In determining the Legislature’s intent, we must first
look to the language of the statute itself.” In re MKK, 286 Mich App 546, 556; 781 NW2d 132
(2009). Further, the Legislature is presumed to “be aware of the consequences of its use or
omission of statutory language.” Id. Judges may not read into a clear statute that which is not
within the manifest intention of the Legislature as derived from the language of the statute itself.
People v Breidenbach, 489 Mich 1, 10; 798 NW2d 738 (2011). Further, clear statutory language
must be enforced as written. Velez v Tuma, 492 Mich 1, 16-17; 821 NW2d 432 (2012). The
Legislature did not include “stomach” in its list of sexually “intimate parts” in MCL 750.520a(f),
and this Court may not add it to the statute to reach a desired result in this case. The majority’s
opinion does exactly that. Consequently, for this reason and for others discussed infra, I
conclude that the trial court clearly erred and would vacate the trial court’s order and remand this
case to the trial court for further proceedings.

                                 I. STANDARDS OF REVIEW

        This Court reviews for clear error the trial court’s factual findings regarding both the
statutory grounds to terminate parental rights and the trial court’s findings regarding the best
interests of the children. MCR 3.977(K); In re Trejo Minors, 462 Mich 341, 356-357; 612
NW2d 407 (2000); In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). To
be clearly erroneous, a decision must be more than maybe or probably wrong. In re Williams,
286 Mich App 253, 271; 779 NW2d 286 (2009). This Court will determine a finding is clearly
erroneous only when left with the definite and firm conviction that a mistake has been made. Id.

      This case also presents an issue of statutory interpretation, which this court reviews de
novo. In re Harper, 302 Mich App 349, 352; 839 NW2d 44 (2013). “The interpretation and
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application of a statute in particular circumstances is a question of law this Court reviews de
novo.” Detroit Public Schools v Conn, 308 Mich App 234, 246; 863 NW2d 373 (2014).

                                          II. ANALYSIS

        I conclude that the court clearly erred by finding that MCL 712A.19b(3)(b)(iii) was
proved by clear and convincing evidence. Because this Court must recognize the special
opportunity of the trial court to judge the credibility of the witnesses who appeared before it,
MCR 2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989), I accept KK-1’s
testimony as credible for purposes of my analysis. Her testimony, however, did not establish
“sexual abuse” within the meaning of § 19b(3)(b)(iii), and the trial court clearly erred in so
finding. Further, the erroneous finding of sexual abuse by a nonparent residing in respondent’s
home is so intertwined with the trial court’s finding under MCL 712A.19b(3)(j) of likely harm if
the children were returned to respondent’s care, that it renders this finding also clearly erroneous.
So even if terminating respondent’s parental rights were in the children’s best interests, MCL
712A.19b(5), at least one statutory ground for termination must still be proved by clear and
convincing evidence to support such an order. MCL 712A.19b(3); In re JK, 468 Mich 202, 210;
661 NW2d 216 (2003) (“A due-process violation occurs when a state-required breakup of a
natural family is founded solely on a ‘best interests’ analysis that is not supported by the
requisite proof of parental unfitness.”).1 I therefore conclude that the trial court’s order
terminating respondent’s parental rights must be vacated.

       The trial court found clear and convincing evidence of statutory ground for termination
under MCL 712A.19b(3)(b)(iii), which provides:

       (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:

                                              * * *

       (iii) A nonparent adult’s act caused the physical injury or physical or sexual abuse
       and the court finds that there is a reasonable likelihood that the child will suffer
       from injury or abuse by the nonparent adult in the foreseeable future if placed in
       the parent’s home.

        Although MCL 712A.19b does not provide definitions for the pertinent terms “nonparent
adult” and “sexual abuse,” those terms are found and defined in the Child Protection Law, MCL
722.601 et seq. Indeed, § 19b twice refers to and adopts the definition of “sexual abuse” “as that
term is defined in section 2 of the child protection law, 1975 PA 238, MCL 722.622.” MCL
712A.19b(3)(k)(ix) and (l)(ix).

       MCL 722.622(y) defines “sexual abuse” as follows:


1
 Adoptive parents have all the same rights and responsibilities as if they were natural parents.
MCL 710.60(1); Wilson v King, 298 Mich App 378, 381-382; 827 NW2d 203 (2012).


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               “Sexual abuse” means engaging in sexual contact or sexual penetration as
       those terms are defined in section 520a of the Michigan penal code, 1931 PA 328,
       MCL 750.520a, with a child.

        In this case, there is no allegation of sexual penetration, so only “sexual contact”
potentially is at issue. The definition of “sexual contact” is as follows:

               “Sexual contact” includes the intentional touching of the victim’s or
       actor’s intimate parts or the intentional touching of the clothing covering the
       immediate area of the victim’s or actor’s intimate parts, if that intentional
       touching can reasonably be construed as being for the purpose of sexual arousal
       or gratification, done for a sexual purpose, or in a sexual manner for:

               (i) Revenge.

               (ii) To inflict humiliation.

               (iii) Out of anger. [MCL 750.520a(q); Emphasis added.]

        In turn, MCL 750.520a(f) defines “intimate parts” as “includ[ing] the primary genital
area, groin, inner thigh, buttock, or breast of a human being.”

        In light of these unambiguous statutory terms, establishing “sexual abuse” as used in
MCL 712A.19b(3)(b)(iii) requires clear and convincing evidence that the nonparent adult
respondent, here, Mr. H, intentionally touched KK-1’s “intimate parts”—“the primary genital
area, groin, inner thigh, buttock, or breast,” or the clothing covering her intimate parts, and such
touching can reasonably be construed to have been for a sexual purpose or other purpose
prohibited by the statute. In this case, accepting KK-1’s testimony as credible, I note that the
evidence showed Mr. H did not touch KK-1’s “primary genital area, groin, inner thigh, buttock,
or breast” or her clothing covering those intimate parts. Indeed, KK-1 herself testified that Mr.
H rubbed her stomach and her abdomen after KK-1 had said her stomach hurt. She testified that
she pulled Mr. H’s hand out and that the touching made her feel uncomfortable. She got up and
went to the bathroom. She testified that when she came back, Mr. H started to rub her back, but
she asked him to stop. She testified that he immediately complied. This is the total extent of the
facts underlying the sole claim of sexual abuse or contact.

        When specifically asked if Mr. H had touched her “private parts,” KK-1 answered,
“Almost.” She explained, “Like he was right there, but then I pulled his hand out and I went to
the top bunk.” On cross-examination, KK-1 said that she thought Mr. H was moving his hand
toward her “private parts,” but he never got it there. In sum, there was no testimony whatsoever
to find that Mr. H touched KK-1’s “intimate parts,” MCL 750.520a(f). Patently, neither the trial
court nor this court may speculate or infer conduct or intent from the record evidence—the
majority and the concurrence do just that in reaching their respective decisions. Consequently, it
was clear error to find that “sexual abuse” within the meaning of MCL 712A.19b(3)(b)(iii)
occurred because there was a lack of evidence that “sexual contact” occurred. See MCL
722.622(y); MCL 750.520a(q).



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         Moreover, because there was no evidence that Mr. H touched KK-1’s “intimate parts” as
required by the statute, there also was no evidence to show either that the touching that KK-1
described was for a sexual purpose, or to support an inference that the touching was to exact
revenge, to humiliate, or out of anger. Rather, the touching or rubbing of KK-1’s stomach area
occurred only after she complained that her stomach hurt. While the touching may have made
KK-1 uncomfortable-- and given her age, that’s understandable--there was no evidence that Mr.
H intended to cause that reaction instead of intending to comfort KK-1. She had just complained
that her stomach was hurting. I also note the very important fact that Mr. H was in his late 60’s
at the time and had lived with respondent and the children by then for many years, indeed, most
of their lives. Notably, no other incidents of any similar nature were ever alleged either before or
after this one that was raised late in the proceedings and about which KK-1 testified.
Consequently, there was no clear and convincing evidence that the touching that KK-1 described
was for one of the prohibited statutory purposes. MCL 750.520a(q). For this reason it was also
clear error to find that “sexual abuse” within the meaning of MCL 712A.19b(3)(b)(iii)
occurred—there was a lack of evidence that the touching was for a sexual or other prohibited
purpose. See MCL 722.622(y); MCL 750.520a(q).

       And, again, KK-1 testified that the touching she described was a single incident that had
never happened before and that never happened again. To establish MCL 712A.19b(3)(b)(iii) as
a ground for termination, the court must find by clear and convincing evidence that “there is a
reasonable likelihood that the child will suffer from . . . [sexual] abuse by the nonparent adult in
the foreseeable future if placed in the parent’s home.” KK-1’s testimony described a single
touching that she stated had happened once—never before and never since. Parenthetically, I
also point out that KK-1’s sister had never made such accusations against Mr. H despite living
with him most of her life as well. Under these facts, I find no basis to conclude by clear and
convincing evidence that such an incident—were it in some way even fairly determined to have
been sexual abuse by a nonparent adult—would be likely to recur in the future.

        Additionally, the allegations of sexual abuse did not arise until late in the proceedings,
according to the supplemental petition at the end of April 2017. The supplemental petition
seeking termination on the basis of the new sexual abuse allegations was filed on May 8, 2017,
and not authorized until a May 22, 2017 pretrial hearing, at which time respondent and Mr. H
were served with it. At the time of the pretrial, respondent had not been permitted to visit the
children for seven months, initially because the court temporarily suspended visitation pending a
psychological examination but later because the children refused to participate, and the court did
not order them do so despite their young ages. Nevertheless, respondent was unquestionably
fully compliant with all court orders and with service provider’s treatment plans. In its oral
findings after trial, the trial court noted:

               And so, obviously, this is a very difficult case in the sense that the mother
       is compliant with the service plan, but because of the fact that the children won’t
       engage in therapy, they won’t engage in activities with the mother, they refuse to
       return home, they refuse to see the mother, we’re not able to reunify. And so, the
       Court, the Court has to be mindful of that, that notwithstanding the fact that the
       mother’s compliant, a case just can’t go on in perpetuity without, without having
       a permanency plan and some direction.


                                                -4-
         At trial, respondent testified that if necessary, she would establish a household separate
from Mr. H, either by having him move out of the home they owned together or by finding new
housing for herself and the children. Specifically, respondent testified that she would separate
from Mr. H if necessary to obtain the return of the children. Respondent, however, was never
directed to establish a separate home for herself as a condition of having the children returned to
her, nor was that issue even discussed with her. So a finding of likely future harm from Mr. H,
i.e., that he posed a potential threat to the children, was patently premature where the evidence
showed a one-time incident, and respondent expressed her willingness to establish a household
without Mr. H were that to be a condition for her children’s return.

        Here, the trial court’s finding regarding likely harm under § 19b(3)(j) if the children were
returned to respondent’s care is so intertwined with the court’s erroneous finding of sexual abuse
by a nonparent residing in respondent’s home that it also is clearly erroneous. MCL
712A.19b(3)(j) provides a ground for termination of parental rights if “[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 home of the parent.”

        On this statutory ground, I also part company with the concurring opinion. In its oral
opinion from the bench, the trial court stated that MCL 712A.19b(3)(j) “is also proven by clear
and convincing evidence because we have testimony of sexual abuse by the non-parent adult and
we have testimony of physical abuse to the child, [KK-1].” But it is settled law that a court
speaks through its written orders, not through its oral pronouncements. In re KMN, 309 Mich
App 274, 287; 870 NW2d 75 (2015). And, in its written order terminating parental rights, the
trial court wrote:

               It is further ordered that the court finds clear and convincing evidence of a
       statutory basis for termination of parental rights of the mother pursuant to MCL
       712a.19b(3)(b)(iii) and (j). The mother’s living together partner sexually abused
       the child [KK-1], and future abuse is reasonably likely as the non-parent adult has
       not come forward to engage in services. Further, the non-parent adult continues
       to reside in the home of the mother.

              In addition, the children will be harmed if returned to the home of the
       mother, given that the non-parent adult continues to reside in that home. While
       the mother is compliant with services, the children refuse to engage with the
       mother in any activities, and they refuse to return home.

Clearly, in it its written order and findings of fact, the trial court relied only on the alleged sexual
abuse by a nonparent adult to find both statutory grounds for termination. In her concurring
opinion, Judge Krause takes on the role of the trial court—here, relying in large part on facts that
apparently had no impact whatsoever on the trial court’s written analysis and findings: that
respondent, not Mr. H, has previously pled no contest to a charge of child abuse for striking a
child with an electrical cord. I suggest that the trial court did not focus on that issue in its order
because not only did respondent take full responsibility, she also presented and apparently
convinced those providing services and the court that she understood her mistake and clearly
conveyed that she had learned from it. Thus, to cite it as a reason to terminate would’ve been
erroneous. In short, it was patently a non-issue at the point of hearing and had been superseded

                                                  -5-
by the allegation against Mr. H. To now bootstrap that factor as the reason to terminate and
remove these children from respondent in lieu of remanding for a fair and proper hearing when
the trial court did not, is to me far beyond our role as appellate court judges.

        The trial court’s finding that clear and convincing evidence supported finding MCL
712A.19b(3)(j) as a ground for termination of respondent’s parental rights is clearly erroneous.
MCR 3.977(K); In re Olive/Metts Minors, 297 Mich App at 40. First, this finding is premised on
the findings that Mr. H perpetrated “sexual abuse” on KK-1 and that KK-1 was likely to be
sexually abused in the future by Mr. H. For the reasons already discussed, these premises are not
supported by clear and convincing evidence, much less any evidence!

        Moreover, this finding is based on the additional premise that Mr. H would remain in
respondent’s home. But respondent, who had fully complied with all other requirements of the
court, offered to establish a home for the children without Mr. H if the court required it as a
condition. But respondent was never directed or even advised to do so. So the court’s finding of
likely harm to the children from Mr. H if returned to respondent was patently not supported by
clear and convincing evidence. MCR 3.977(K). The finding regarding § 19b(3)(j) was more
than probably wrong, In re Williams, 286 Mich App at 271, the legal premise on which it was
based, “sexual abuse” by Mr. H was not supported by any evidence. Further, the “conduct or
capacity” of respondent showed that she would abide by the court’s direction and would remove
Mr. H from her home if directed to do so.

        Where, as in this case, petitioner sought termination of parental rights on grounds
different from those by which the court originally gained jurisdiction (physical abuse), it is
petitioner’s burden to prove “on the basis of clear and convincing legally admissible evidence
that one or more of the facts alleged in the supplemental petition.” MCR 3.977(A)(3), (F)(1)(b).
The petitioner bears the burden of establishing the existence of at least one of the grounds for
termination of parental rights listed in MCL 712A.19b(3) by clear and convincing evidence. In
re JK, 468 Mich at 210. In this case, petitioner asserted one ground for termination of parental
rights: sexual abuse of KK-1 by respondent and by respondent’s housemate, Mr. H. But the
evidence utterly failed to show any sexual abuse by respondent, and the testimony with respect to
Mr. H was legally insufficient to establish sexual abuse within the meaning of
MCL 712A.19b(3)(b)(iii). See MCL 722.622(y); MCL 750.520a(q); MCL 750.520a(f). The
trial court’s finding regarding likely harm under MCL 712A.19b(3)(j) if the children were
returned to respondent’s care is so dependent on the court’s erroneous finding of sexual abuse by
a nonparent residing in respondent’s home that it also is clearly erroneous. The trial court’s
decision to terminate, in fact, seems to be based solely on its conclusion that because the children
refused to engage in any way with treatment or respondent, its only option was to terminate
respondent’s parental rights. It should go without saying that such a determination as a basis for
termination of parental rights has no legal basis whatsoever and is a remarkable judicial assault
on the parent/child relationship. Many, if not most children, go through a defiant period while
maturing: KK-1 was about thirteen during these proceedings. To cite such defiance in pre-teen
and barely teenage children as the main reason for terminating parental rights is patently wrong
and for us to let it stand, dangerous. Because the evidence did not establish at least one ground
for termination of respondent’s parental rights, MCL 712A.19b(3), the trial court clearly erred by
terminating respondent’s parental rights. In re JK, 468 Mich at 210; In re Olive/Metts Minors,
297 Mich App at 40.

                                                -6-
        Terminating parental rights and removing children from their parent’s care is an
enormous responsibility and one which should be undertaken with scrupulous regard to the laws
that provide the strict criteria that must be followed. Because the trial court here clearly failed to
properly follow the statutory requirements in terminating respondent’s parental rights, I would
vacate the trial court’s order terminating respondent’s parental rights and remand this matter to
the trial court for further proceedings. I fail to see how remanding for a second hearing under
these unusual facts and legal conclusions is anything but a bottom line threshold to ensure the
fair and proper proceedings respondent and these children deserve.

                                                              /s/ Jane E. Markey




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