IN RE SZALMA MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of EDEN PAUL SZALMA and
COLE WILLIAM SZALMA, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
July 14, 2009
Petitioner-Appellee,
v
No. 288567
Wayne Circuit Court
Family Division
LC No. 07-471264-NA
GEORGE SZALMA,
Respondent-Appellant.
Before: Owens, P.J., and Servitto and Gleicher, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court order terminating his parental rights
under MCL 712A.19b(3)(b)(i), (j), and (k)(ii). We affirm.
Petitioner sought termination of respondent’s parental rights at the initial disposition. A
tender years hearing was held regarding Eden’s out-of-court statements that respondent sexually
abused him. The trial court found that Eden’s statements to his mother, two doctors, and the
Care House interviewer were admissible under MCR 3.972(C)(2). Following a trial, the trial
court found jurisdiction and terminated respondent’s parental rights.
Respondent first argues that the trial court clearly erred in finding jurisdiction over the
children. A trial court’s decision regarding jurisdiction is reviewed for clear error in light of the
trial court’s findings of fact. In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004).
Additionally, the trial court’s findings of fact may not be set aside unless they are clearly
erroneous, and this Court shall give regard to the trial court’s special opportunity to judge the
credibility of witnesses who appeared before it. MCR 2.613(C).
For a trial court to have jurisdiction over a child, the fact finder must find by a
preponderance of the evidence that the child comes within MCL 712A.2(b). In re MU, 264 Mich
App 270, 278; 690 NW2d 495 (2004). The trial court found that jurisdiction was established
under MCL 712A.2(b)(1) and (2), based on its finding that respondent sexually abused Eden.
Respondent centers his argument against jurisdiction around section (b)(2), arguing that it could
not be established because the children did not reside in his home and their home with
respondent mother was appropriate. MCL 712A.2(b)(2) provides that a child comes within the
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jurisdiction of the court if that child’s “ . . . home or environment, . . . is an unfit place for the
juvenile to live in.” [emphasis supplied]. While the children’s home with their mother was
appropriate, the children’s environment while with their father during parenting time was
properly found to be unfit by the trial court. In finding that section (b)(1) was established, the
trial court specifically found that the children were subject to a substantial risk of harm to their
mental well-being, based on respondent’s sexual abuse of Eden. These findings were not clearly
erroneous, and the trial court properly found jurisdiction under section (b)(1) and (2).
Respondent next argues that the trial court erred by denying his subpoena to have Eden
testify at trial. Respondent is correct in stating that MCR 3.972(C)(2) did not preclude his
calling Eden as a witness. However, the record reflects that respondent never called Eden as a
witness, and the trial court did not rule on this issue. Therefore, this Court cannot find error.
Respondent also argues that the trial court clearly erred in finding that the statutory bases
for termination were established by clear and convincing evidence. This Court reviews decisions
terminating parental rights for clear error. MCR 3.977(J); In re Trejo, 462 Mich 341, 357; 612
NW2d 407 (2000). The trial court did not clearly err in finding that sections (b)(i) and (j) were
established by clear and convincing evidence. The trial court, which had the best opportunity to
judge the credibility of witnesses and the trustworthiness of the child hearsay statements, found
that petitioner established that respondent sexually abused Eden. This Court cannot say that the
trial court’s findings were clear error. Further, we find no merit in respondent’s argument that,
even if respondent sexually abused Eden, sections (b)(i) and (j) are inapplicable because Eden
would never live in respondent’s home. Both sections of the statute specify if the child is
returned to the parent’s home. The trial court did not clearly err in finding that, if Eden and Cole
were placed in respondent’s home, there was a reasonable likelihood that they would be harmed.
Regarding section (k)(ii), although Eden told the witnesses that testified that it felt like
his father put his whole hand in his butt and moved it back and forth, he also said that he was
bent over, could not see what respondent was doing, and that it was wet afterward. Based on
these statements, the trial court did not clearly err in finding that respondent penetrated Eden’s
rectum with his penis. Further, penetration by hand or finger would be sufficient to establish
section (k)(ii).
Finally, respondent argues that the trial court clearly erred in finding that termination of
his parental rights was in the children’s best interests. MCL 712A.19b(5). Although respondent
and the children may have shared a bond at one point, the trial court did not clearly err in finding
that, because of respondent’s sexual abuse of Eden, termination of respondent’s parental rights
was in the children’s best interests.
Affirmed.
/s/ Donald S. Owens
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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