Circuit Court Family Division LC No. 16-523730-NA
Before: Ronayne Krause, P.J., and Markey and Riordan, JJ.
MICHAEL J. RIORDAN JUDGE
appeals as of right the trial court's order terminating
her parental rights to the minor children, KK-1 and KK-2,
pursuant to MCL 712A.19b(3)(b)(iii) (a nonparent
adult's act caused sexual abuse and a reasonable
likelihood exists that the child will suffer abuse by the
nonparent adult if returned to the parent's home), and
MCL 712A.19b(3)(j) (a reasonable likelihood exists based on
the conduct or capacity of the child's parent, that the
child will be harmed if returned to the home of the parent).
adopted the minor children in 2011. In 2016, Child Protective
Services (CPS) began an investigation into physical abuse of
the minor children by respondent. Respondent pleaded no
contest to the allegations in the petition on January 5,
2017, and the trial court took jurisdiction over the minor
children. Later, a supplemental petition to terminate
respondent's parental rights was filed after KK-1 made
allegations of sexual abuse by respondent's live-in
boyfriend, who fit the statutory definition of a
"nonparent adult." See MCL
722.622(v). On August 31, 2017, the trial court held a
trial both to adjudicate the new allegations and regarding
the request to terminate respondent's parental rights.
KK-1 provided testimony regarding the alleged sexual abuse by
the nonparent adult.
hearing the evidence, the trial court adjudicated the new
allegations, finding that a preponderance of the evidence
supported the existence of sexual abuse by the nonparent
adult. The parties then argued regarding termination of
respondent's parental rights and whether termination
would be in the best interests of the minor children. The
trial court took the issue under advisement, eventually
releasing a written opinion terminating respondent's
parental rights pursuant to MCL 712A.19b(3)(b)(iii)
and (j). This appeal followed.
argues that the trial court clearly erred when it terminated
her parental rights to the minor children. I
STANDARD OF REVIEW
Court reviews for clear error the trial court's factual
findings and ultimate determinations on the statutory grounds
for termination." In re White, 303 Mich.App.
701, 709; 846 N.W.2d 61 (2014). A trial court's findings
of fact are clearly erroneous if "we are definitely and
firmly convinced that it made a mistake." Id.
at 709-710. "To terminate parental rights, the trial
court must find that at least one of the statutory grounds
for termination in MCL 712A.19b(3) has been proved by clear
and convincing evidence." In re Ellis, 294
Mich.App. 30, 32; 817 N.W.2d 111 (2011). "[W]e review de
novo questions of statutory interpretation." In re
Harper, 302 Mich.App. 349, 352; 839 N.W.2d 44 (2013)
(internal quotation marks omitted).
APPLICABLE LAW AND ANALYSIS
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
(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.
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).
722.622(y) defines "sexual abuse" as follows:
"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
case, there is no allegation of sexual penetration. 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
(ii) To inflict humiliation.
(iii) Out of anger. [MCL 750.520a(q); Emphasis
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." Thus, in
order for there to have been grounds for termination pursuant
to MCL 712A.19b(3)(b)(iii), the trial court must
have found clear and convincing evidence that the nonparent
adult touched KK-1's "primary genital area, groin,
inner thigh, buttock, or breast" in a manner that
"can reasonably be construed as being for the purpose of
sexual arousal or gratification . . . ." MCL 750.520a(f)
testified that the nonparent adult touched her in an
inappropriate manner during a trip to California with
respondent. The nonparent adult slept with KK-1 in one room
while KK-2 and respondent slept in another room. According to
KK-1, it was strange and uncommon for the nonparent adult to
be in bed with her. KK-1 provided the following pertinent
testimony during direct examination regarding the night the
nonparent adult touched her:
Q. All right. Did anything ever happen to you when
[the nonparent adult] was sharing a room with you that made
you feel bad or uncomfortable?
Q. And, and what happened?
A. I was laying next to him and he was touching me.
Q. How was he touching you?
A. With his hand.
Q. And, and how did that come about? Did you ask him
to touch you?
Q. Okay. What-Were you awake when this happened?
Q. And, and what-Did you have any kind of
conversation with [the nonparent adult] at all before he
A. No. All I said was my stomach hurt.
Q. And you told that to [him]?
Q. And after you told him that your stomach hurt,
what did he do?
A. He started rubbing my stomach and going a little