IN RE SCRIVER MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DEVON JOSEPH SCRIVER and
CHASTITY ANN SCRIVER, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
May 21, 2009
Petitioner-Appellee,
v
No. 290002
Grand Traverse Circuit Court
Family Division
LC No. 08-002465-NA
DONNA JEAN CASTOR,
Respondent-Appellant,
and
ALFRED JOSEPH SCRIVER,
Respondent.
Before: Fitzgerald, P.J., and Talbot and Shapiro, JJ.
PER CURIAM.
Respondent Donna Jean Castor appeals as of right from the trial court order terminating
her parental rights to the minor children pursuant to MCL 712A.19b(3)(b)(ii) [child or sibling of
child suffered physical injury or physical or sexual abuse and parent who had opportunity to
prevent failed to do so], (g) [failure to provide proper care or custody without regard to intent],
and (j) [reasonable likelihood that child will be harmed if returned to home of parent]. We
affirm.
To terminate parental rights, the trial court must find that at least one of the statutory
grounds for termination has been met by clear and convincing evidence and that termination is in
the children’s best interests. In re McIntyre, 192 Mich App 47, 50; 480 NW2d 293 (1991); MCL
712A.19b(5). The trial court’s decision is reviewed for clear error. In re Trejo, 462 Mich 341,
356-357; 612 NW2d 407 (2000). In applying the clearly erroneous standard, the Court should
recognize the special opportunity the trial court has to assess the credibility of the witness. MCR
2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
The trial court did not clearly err when it terminated respondent’s parental rights to the
minor children. Respondent’s primary argument is that, with respect to the 2008 allegations of
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sexual abuse against respondent-father, she did not have sufficient information or expertise to
draw a conclusion that respondent-father was a threat to the minor children. However, she knew
of many incidents of abuse by respondent-father, including: respondent-father’s 1989 conviction
for criminal sexual conduct involving a child approximately 12 years old; the female minor
child’s allegations of inappropriate touching in the shower in 2003 and his polygraph failure with
regard to the allegations; years of domestic violence between respondent and respondent-father
in the presence of the minor children; and an incident involving respondent-father choking
respondent’s older son. Therefore, respondent should have known that respondent-father was a
threat to the minor children.
Respondent argues that she should not be held to a higher standard than the professionals,
such as the CPS workers, petitioner, the police, and prosecutors involved in the case with respect
to whether respondent-father should have been banned from the home. However, respondent’s
obligation as a parent was to be aware of, and appropriately assess, the home environment to
insure that the minor children were safe. In addition, respondent had firsthand knowledge of all
of the facts set forth above, including the extensive domestic violence in front of the minor
children. While arguably the professionals involved in this matter could have acted sooner with
regard to petitioning the trial court for temporary custody of the minor children, this does not
alleviate respondent’s obligation to provide the minor children with a safe home. In making its
decision, the trial court carefully weighed the facts and found that the minor female child was a
credible witness based on the opinion of professionals who have interviewed many witnesses
with similar allegations in the past. The trial court did not clearly err in finding that respondentfather had sexually abused respondent’s daughter and physically abused her older son, and that
respondent had the opportunity to prevent the abuse but failed to do so. Respondent’s history of
continuing to let respondent-father live in the home, the long history of domestic violence, and
her failure to believe the allegations of the minor children despite a polygraph test corroborating
the allegations were sufficient evidence for the trial court to find that there was a reasonable
likelihood that the minor children would be harmed in the foreseeable future if returned to
respondent’s home.
Respondent argues that abuse was not substantiated in any investigation by law
enforcement or petitioner before the beginning of the case, and respondent-father was “merely
charged” with sexual misconduct crimes. Respondent also argues for the first time on appeal
that the minor children were not interviewed in accordance with a protocol that would satisfy the
criteria for reliability and trustworthiness inherent in child hearsay testimony. Respondent did
not raise these issues at the time of the termination trial. Failure to raise an issue at trial results
in a waiver of the right to raise that issue on appeal. People v Coons, 158 Mich App 735, 740;
405 NW2d 153 (1987). However, the law is clear that prosecution or conviction is not a
prerequisite in a termination proceeding. In re MU, 264 Mich App 270, 279; 690 NW2d 495
(2004). In addition, even without the testimony of the minor children, respondent admitted that
respondent-father choked her older son and that she believed her daughter’s allegations of sexual
abuse by respondent-father. She also admitted to years of domestic violence directed toward her
that occurred in front of the children. Therefore, reports by the minor female child to
professionals were not critical to the trial court’s findings.
Finally, respondent contends the trial court incorrectly accepted testimony pertaining to
the adoption potential for these children. While the availability of a suitable alternative home is
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not a factor in the determining whether the petitioner has established a statutory ground for
termination of parental rights, the determination of a child's best interests may encompass the
consideration of available suitable alternative homes and placement with relatives. In re
Mathers, 371 Mich 516, 530; 124 NW2d 878 (1963); In re Futch, 144 Mich App 163, 170; 375
NW2d 375 (1984). In this instance, the potential viability of a future adoption for these children
was not a significant factor in the best interests determination of the trial court when compared to
the overwhelming evidence of possible risk to the children should they be returned to
respondent’s care.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
/s/ Douglas B. Shapiro
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