IN RE TWIETMEYER MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of MPT and MGT, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
June 3, 2010
Petitioner-Appellee,
v
No. 295525
Saginaw Circuit Court
Family Division
LC No. 09-032059-NA
STEVEN TWIETMEYER,
Respondent-Appellant.
Before: BANDSTRA, P.J., and FORT HOOD and DAVIS, JJ.
PER CURIAM.
Respondent Steven Twietmeyer appeals as of right the order terminating his parental
rights to the minor children, daughter MPT and son MGT, both teenagers, under the Indian Child
Welfare Act (ICWA), 25 USC 1912(f), and MCL 712A.19b(3)(b)(i) (sexual abuse of child or
sibling), (j) (reasonable likelihood of harm if child returns to parent’s home), and (k)(ii) (abuse
of child or sibling involving criminal sexual conduct [CSC]). Rights of the mother, Lori
Twietmeyer, were not terminated and the children continue to live in her home. We affirm.
Termination of parental rights under MCL 712A.19b(3) is appropriate where petitioner
proves by clear and convincing evidence at least one ground for termination. In re Trejo, 462
Mich 341, 355; 612 NW2d 407 (2000). This Court reviews the lower court’s findings under the
clearly erroneous standard. In re Sours Minors, 459 Mich 624, 633; 593 NW2d 520 (1999). A
finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a
mistake has been committed, giving due regard to the trial court’s special opportunity to observe
the witnesses. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989); In re Terry, 240 Mich
App 14, 22; 610 NW2d 563 (2000). Once a statutory ground for termination is established by
clear and convincing evidence and the court finds that termination is in the children’s best
interests, the trial court must terminate parental rights. MCL 712A.19b(5). The trial court’s
decision on the best interests question is reviewed for clear error. Trejo, 462 Mich at 356-357.
The ICWA carries a higher standard of reasonable doubt to terminate parental rights. 25
USC 1912(f). Questions of law, including interpretation of the ICWA, are reviewed de novo. In
re JL, 483 Mich 300, 318; 770 NW2d 853 (2009); In re IEM, 233 Mich App 438, 443; 592
NW2d 751 (1999).
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Finally, the decision to admit or exclude expert testimony and the question of whether a
person is qualified as expert are reviewed for abuse of discretion. Mulholland v DEC
International Corp, 432 Mich 395, 402; 443 NW2d 340 (1989). A court abuses its discretion
when its decision falls outside a range of reasonable and principled outcomes. People v Kahley,
277 Mich App 182, 184; 744 NW2d 194 (2007).
Respondent’s parental rights were terminated under MCL 712A.19b(3)(b)(i), (j), and
(k)(ii), which provide:
(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 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.
* * *
(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.
(k) The parent abused the child or a sibling of the child and the abuse
included 1 or more of the following:
* * *
(ii) Criminal sexual conduct involving penetration, attempted penetration,
or assault with intent to penetrate.
Respondent’s parental rights were also terminated under 25 USC 1912(f), which provides in
pertinent part:
No termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of
the child by the parent or Indian custodian is likely to result in serious emotional
or physical damage to the child.
A similar provision appears in MCR 3.980(D).
The evidence in this case was sufficient to satisfy the state and federal standards. MPT’s
reports of respondent’s penetrative sexual abuse was corroborated by testimony from another of
his daughters. MPT also told numerous people, including medical personnel, about respondent’s
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repeated abusive conduct against her in a manner consistent with her testimony to the court
below. A family friend testified that respondent told him that he had sex with all of his
daughters and that he had offered MPT for sex to men in motel rooms. The family friend even
testified that respondent had offered MPT for sex to the friend. Another of respondent’s
acquaintances gave a similar account. The trial court found that allegations of respondent’s
depraved activity had been proved not merely with clear and convincing evidence but beyond a
reasonable doubt. The record here amply supports that conclusion.
Next, respondent baldly asserts that the lower court was “premature in terminating his
rights” and “[i]t would have been better . . . if reasonable efforts would have been made . . . to
provide services to” him, without citation to any authority in support. We note that both the
ICWA, 25 USC 1912(d), and the Michigan termination statute, MCL 712A.18f(3)(d), impose
requirements on petitioner to make certain efforts to keep families intact and to avoid the
termination of rights. However, petitioner did not rely on those statutes in making his
unsupported argument and, more importantly, the obligation imposed by those statutes is not
absolute; petitioner’s obligation may be mitigated or completely absolved depending on the facts
and circumstances of a case. See, e.g., In re Roe, 281 Mich App 88; 764 NW2d 789 (2008)
abrogated on other grounds, In re JL, 483 Mich 300, 326-327; 770 NW2d 853 (2009); In re SD,
236 Mich App 240; 599 NW2d 772 (1999). In light of respondent’s failure to even mention the
statutory authority upon which his argument might be based, much less discuss how applicable
precedents might apply to the facts and circumstances here, we consider this argument
abandoned. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959); Peterson Novelties,
Inc v City of Berkeley, 253 Mich App 1, 14; 672 NW2d 351 (2003); Etefia v Credit
Technologies, Inc, 245 Mich App 466, 471; 628 NW2d 577 (2001). Moreover, even if we were
to consider the argument and find it valid, we do not see what remedy might be available to
respondent at this point; certainly, now that the trial court has properly determined that
respondent was a sexually abusive parent, no efforts to preserve the family unit here or protect
his parental rights would be appropriate.
Respondent also argues that the trial court erred by “ignoring” that Dr. Frederick found
no injuries to MPT and that MPT never revealed the abuse when it was happening. These
arguments lack merit. The trial court saw the witnesses firsthand and was entitled to believe
MPT despite the deficiencies pointed out by respondent. People v Wolfe, 440 Mich 508, 574575; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992); People v Passage, 277 Mich App
175, 177; 743 NW2d 746 (2007).
Respondent next claims that the trial court erred by allowing David Gardner to testify as
an expert witness. The ICWA, 25 USC 1912(f), and MCR 3.980(D) require the testimony of
“qualified expert witnesses” before parental rights to an Indian child can be terminated.
“Witnesses” has been interpreted to require one witness. In re Elliott, 218 Mich App 196, 207;
554 NW2d 32 (1996); In re Kreft, 148 Mich App 682, 690; 348 NW2d 843 (1986). Kreft quoted
the following from guidelines of the U.S. Department of the Interior, Bureau of Indian Affairs:
Persons with the following characteristics are likely to meet the
requirements for a qualified expert witness for purposes of Indian child custody
proceedings:
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(i) A member of the Indian child’s tribe who is recognized by the tribal
community as knowledgeable in tribal customs as they pertain to family
organizations and child rearing practices.
(ii) A lay expert witness having substantial experience with the delivery of
child and family services to Indians, and extensive knowledge of prevailing social
and cultural standards and child rearing practices within the Indian child’s tribe.
(iii) A professional person having substantial education and experience in
the area of this or her specialty. [Kreft, 148 Mich App at 689-690, quoting 44 Fed
Reg 67593, § D.4(b).]
The trial court did not abuse its discretion by allowing Gardner’s testimony. Gardner was
a Potawatomi and knowledgeable in tribal customs. He had trained through the Oklahoma
Indian Child Welfare Association, and he worked and testified many times as an Indian child
welfare worker. His relative inexperience in his present position and in giving ICWA expert
testimony went to the weight, not the admissibility, of his testimony.
Finally, respondent challenges the trial court’s decision on best interests. The evidence
showed, and the trial court found, that respondent sexually abused daughter MPT many times,
offered her for sex to other men and provided illegal drugs to her. Older sister AT testified that
respondent sexually abused her and gave her pornographic magazines. Respondent argues that
termination of his parental rights to his son, MGT, was not in his best interests because there was
no evidence that MGT was abused. However, Gardner testified that there was a likelihood of
serious emotional or physical damage to the children if they continued in respondent’s care; this
was true even if the children did not live with respondent because of the divorce. Gardner felt
that MGT would be put in a position of potentially having to choose sides. Kevin Zaborney of
CPS believed termination to be in the children’s best interests and noted that both children
favored it. Zaborney stated that MGT had described situations causing him to fear his father, and
that he did not want to see his father in the foreseeable future. Respondent’s children were old
enough to express opinions about their own welfare. Those opinions were more than reasonably
based upon the evidence. The trial court did not err in finding clear and convincing evidence that
termination would be in the children’s best interests.
We affirm.
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
/s/ Alton T. Davis
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