            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



                                                                  UNPUBLISHED
In re CURRY, Minors.                                              November 12, 2019

                                                                  No. 343669; 350113
                                                                  Oakland Circuit Court
                                                                  Family Division
                                                                  LC No. 2016-847120-NA


                                            ON REMAND

Before: O’BRIEN, P.J., and TUKEL and LETICA, JJ.

PER CURIAM.

        This case returns to this Court on remand from our Supreme Court for further
proceedings. This case was originally before this Court in In re Curry, Minors, unpublished per
curiam opinion of the Court of Appeals, issued February 12, 2019 (Docket No. 343669), in
which we affirmed the trial court’s order terminating respondent’s parental rights. Respondent
subsequently appealed to our Supreme Court, which remanded to this Court with instructions for
us to remand to the trial court while maintaining jurisdiction. In re Curry, Minors, 503 Mich
1023 (2019).1 Our Supreme Court’s remand order additionally directed the trial court to
reconsider its order terminating respondent’s parental rights and to “apply the ‘clear and
convincing’ evidentiary standard to the allegation of sexual abuse against the respondent-




1
 Despite this Court’s having retained jurisdiction, respondent claimed an appeal in connection
with the new termination decision, which this Court accepted as Docket No. 350113. This Court
consolidated the two appeals in an unpublished order entered on August 8, 2019. In re Curry,
Minors, unpublished order of the Court of Appeals, entered August 8, 2019 (Docket Nos.
343669; 350113).



                                              -1-
father.”2 Id. On remand, the trial court then held an evidentiary hearing and again terminated
respondent’s parental rights. We affirm.



                                          I. BASIC FACTS

       We previously summarized the underlying facts of this case in In re Curry, Minors,
unpub op at 1:

                  The trial court terminated respondent’s parental rights to the minor
          children, TLC, SLC, and LAC. In 2016, one of the children, LAC, made
          statements to a relative suggesting that respondent had sexually abused her.
          These statements were corroborated by another individual who was present at the
          time. Upon further investigation of possible abuse, one of the other children,
          SLC, made statements suggesting that respondent had threatened her if she spoke
          about matters relating to that allegation. The trial court found that statutory
          grounds for termination under MCL 712A.19b(3)(b)(i), (g) and (j) had been
          proven by clear and convincing evidence and that termination was in the best
          interests of the children.

        Following remand, the trial court held an evidentiary hearing. Dr. Bernard Gaulier was
the sole witness at the evidentiary hearing.3 He testified that, because of the trial court’s
previous findings that the allegations in the petition were true, he believed the sexual abuse at
issue in this case did occur. Dr. Gaulier also believed that termination of respondent’s parental
rights was in the best interest of the children. Dr. Gaulier, however, opined that “[o]ther than
what is described in the petition, based on my evaluation, there is no indication that he’s
dangerous or aggressive in any way.” No other evidence was offered at the evidentiary hearing.

        The trial court issued its written findings and conclusions three weeks later and again
terminated respondent’s parental rights. In its written order, the trial court repeatedly stated that
it found statutory bases to terminate respondent’s parental rights “by clear and convincing
evidence” under MCL 712A.19b(3)(b)(i), (g) and (j). Specifically, the trial court found, by clear
and convincing evidence, that respondent sexually abused LAC. The trial court also stated that
“it has not considered Respondent-Father’s failure to admit perpetrating sexual abuse upon his
daughter as a basis for terminating his parental rights,” and that “the evidence of what [LAC]
stated to her aunt, along with the evidence that Respondent-Father tried to conceal or suppress
any further disclosure is sufficient to demonstrate by clear and convincing evidence that
termination of Respondent-Father[’s] parental rights is warranted under MCL 712A.19b(3)(b)(i),



2
  Because out Supreme Court only remanded for the limited purpose of determining statutory
bases and best interests, we will only address those issues here. See In re Curry, Minors, 503
Mich at 1023. We will not address the other issues raised in respondent’s original appeal.
3
    Dr. Gaulier failed to specify, at the evidentiary hearing on remand, what kind of doctor he is.


                                                  -2-
(g), and (j).” The trial court also found that termination of respondent’s parental rights was in
the children’s best interests.




                                           II. ANALYSIS

                          A. STATUTORY TERMINATION FACTORS

        Under MCL 712A.19b(3), petitioner has the burden of proving a statutory ground for
termination by clear and convincing evidence. See 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 the present case, the trial court terminated respondent’s parental rights under MCL
712A.19b(3)(b)(i), (g), and (j), which at the time relevant provided as follows:[4]




4
    Pursuant to 2018 PA 58, effective June 12, 2018, subsection (3)(g) now provides as follows:

         The parent, although, in the court’s discretion, financially able to do so, 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.



                                                  -3-
       (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:

              (i) The parent’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 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.

        Here, respondent again complains that the challenged evidence should not have been
admitted and further claims that even if the evidence was admissible, petitioner nevertheless
failed to prove by the requisite standard, clear and convincing evidence, that respondent sexually
molested his youngest child, arguing that “[c]lear and convincing evidence requires more than a
single answer to a suggestive question to a three year old.”

       In its opinion on remand, the trial court specifically noted that it was considering whether
a ground for termination had been proven by clear and convincing evidence. The trial court in
fact engaged in such an analysis, by specifically considering how various pieces of evidence
corroborated each other. The trial court reviewed the allegation, first made by LAC’s aunt, that
while driving together LAC stated that “she was going to kiss her Barbie on the kitty. It is clear
from the testimony presented that ‘kitty’ is the word used by [LAC] to refer to her vagina.”
When her aunt asked where “she got that from, [LAC] replied ‘my daddy.’ [LAC] then
confirmed that her daddy kissed her kitty.”

        More significantly, the trial court relied on evidence that respondent had, on at least one
occasion, told LAC not to make such statements “because someone could get in trouble and
threatened to whoop [SLC, one of LAC’s siblings] if she discussed touches or if [LAC] told
about touches.” Respondent-mother confirmed that respondent told LAC “that she should not
say things like this because people could get in trouble.” Respondent-mother also confirmed that
the word “whoopings,” as used in the home, meant spankings, and that punishments “in her
home range from being sent to rooms, to taking away privileges to spankings, sometimes with a
belt.”

                                                -4-
        The trial court relied on that evidence to find, by the clear and convincing standard, that
respondent’s parental rights should be terminated. In addition to finding that respondent caused
sexual abuse, the trial court also found that respondent “tried to conceal his conduct by
threatening [SLC] into not disclosing the abuse. The sexual abuse coupled with Respondent-
Father’s actions to try to cover up the abuse and suppress any further disclosure demonstrate by
clear and convincing evidence that there is a reasonable likelihood that all three children will
suffer from abuse in the foreseeable future if placed in the Respondent-Father’s home.”5

        On remand, the trial court noted numerous times that it was applying the “clear and
convincing evidence” standard in finding a statutory basis for termination, which included a
finding, also by clear and convincing evidence, that respondent sexually abused LAC.
Accordingly, the trial court fully complied with our Supreme Court’s remand order. For the
reasons stated in In re Curry, Minors, unpub op at 8-9, we are not convinced that the trial court
clearly erred by making these findings. Thus, the trial court did not clearly err when it found, by
clear and convincing evidence, that respondent’s parental rights to the children should be
terminated under MCL 712A.19b(3)(b)(i), (g), and (j).6

                                     D. BEST INTERESTS

       We previously addressed whether termination of respondent’s parental rights was in the
children’s best interests in In re Curry, Minors, unpub op at 9:



5
  Thus, as the trial court noted, and contrary to respondent’s argument, the evidence consisted of
more than merely LAC’s statement. The fact that the statement had been made was corroborated
by several adults, and it was permissible for the trial court to view that statement as
corroborating evidence, given that respondent told LAC not to discuss the incident or that she
might be “whooped,” meaning beaten with a belt. The trial court of course could have rejected
such evidence for any number of reasons, such as lack of credibility or corroboration on the part
of witnesses, including LAC, as urged by respondent; or because the factfinder could reasonably
have found that respondent had an innocent reason for telling LAC to not make such statements,
such as merely to avoid being the public subject of an embarrassing and serious allegation, rather
than consciousness of actually having done something wrong. However, those were not the trial
court’s findings. Rather, the trial court found that “The lack of a satisfactory explanation leaves
this court without any basis for interpreting the statements made by [LAC] at other than face
value—that Respondent-Father kissed her vagina.” The trial court’s view of the evidence was
permissible, had a reasonable basis in the evidence, and was supported by a finding by the trial
court that respondent supported his statement with a threat of physical violence. Thus, the trial
court’s findings were not clearly erroneous, the standard which we must apply. Consequently,
we decline to set aside those findings, as to do so would be beyond our purview.
6
  It would have been helpful for the trial court to set out more fully the definition of “clear and
convincing evidence” and to state more clearly why its findings adhered to that standard.
Nonetheless, the substance of the trial court’s findings demonstrated that it in fact made its
findings by the clear and convincing standard.


                                                -5-
               Respondent next argues that the trial court clearly erred in finding that
       termination of his parental rights was in the children’s best interests. “If the court
       finds that there are grounds for termination of parental rights and that termination
       of parental rights is in the child’s best interests, the court shall order termination
       of parental rights and order that additional efforts for reunification of the child
       with the parent not be made.” MCL 712A.19b(5). Although termination of
       parental rights requires proof of at least one of the statutory termination factors on
       clear and convincing evidence, “the preponderance of the evidence standard
       applies to the best-interest determination.” In re Moss, 301 Mich App 76, 83; 836
       NW2d 182 (2013). An appellate court “review[s] for clear error . . . the court’s
       decision regarding the child’s best interest.” In re Trejo, 462 Mich at 356-357.

        In this case, in addition to the trial court’s factual conclusion that respondent did sexually
molest his youngest child, LAC, and chose to try to cover it up, the court had before it a
psychological evaluation and also a risk assessment, both of which were prepared by experts,
with respondent’s cooperation. The trial court noted that the psychological evaluation concluded
that “it is in the best interest of all three children to discontinue reunification efforts with
Respondent-Father,” that respondent “continued to deny that he tried to conceal his actions and
that there is no reasonable likelihood that he intends to correct any of his problematic behaviors,”
and that respondent “is highly likely to continue his past behaviors and, therefore, the children
would be at risk of harm if placed in his care.” The risk assessment in turn weighed less
dramatically in favor of termination insofar as it concluded that respondent presented a “low
risk” of sexual deviance or sexual aggressiveness. But the risk assessment otherwise offered no
mitigation, in that its author, after admitting that he did not meet with the children or
“necessarily” consider their interests “directly from their prospective [sic],” expressed concern
that respondent was “not in a working process or therapeutic process to be able to understand and
to be able to work through” his issues. In fact, the author further testified that respondent “could
benefit from therapy even if in denial of his actions, but that it would increase the time needed
for therapy.” (Emphasis added.)

        Given the trial court’s conclusions that respondent molested his daughter and attempted
to cover it up, along with the confirmation of those concerns provided by the risk assessment and
especially the psychological evaluation, respondent’s arguments about bonding with the children
or otherwise showing his ability to care for them offer but little to counter the trial court’s
compelling bases for concluding that termination of his parental rights was in the children’s best
interests. The children had already been under the court’s jurisdiction for 18 months, and the
trial court prioritized their need for permanence and stability. We thus find no clear error in the
trial court’s best-interests findings.

        On remand, Dr. Gaulier testified that, if not for the trial court’s determination that
respondent sexually abused LAC, he would not think that respondent was dangerous. Based on
the trial court determination, however, Dr. Gaulier opined that respondent did sexually abuse
LAC and that termination of his parental rights were in the best interest of the children. For the
reasons stated previously In re Curry, Minors, unpub op at 9-10, we agree that termination of
respondent’s parental rights was in the best interests of the children. Even setting aside the
somewhat incongruous situation of an expert witness, whose role is to provide valuable
“scientific, technical, or other specialized knowledge” intended to “assist the trier of fact to

                                                 -6-
understand the evidence or to determine a fact in issue,” see MRE 702, instead basing his
conclusions on determinations made by the factfinder, we find that there was more than
sufficient evidence, without considering Dr. Gaulier’s testimony at all, to support the trial court’s
best interest findings by a preponderance of the evidence. Specifically, the trial court’s finding
that defendant sexually abused his daughter, and engaged in a series of actions to cover up that
fact, backed up by physical threats, more than supported the trial court’s findings by a
preponderance of the evidence.

       Affirmed.


                                                              /s/ Colleen A. O'Brien
                                                              /s/ Jonathan Tukel
                                                              /s/ Anica Letica




                                                -7-
