IN RE DAVIDSON MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of J.W.D. and A.A.D., Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
December 17, 2009
Petitioner-Appellee,
v
No. 291955
Saginaw Circuit Court
Family Division
LC No. 08-031698-NA
KIMBERLY DAVIDSON,
Respondent-Appellant,
and
ALLAN FORD DAVIDSON,
Respondent.
In the Matter of J.W.D. and A.A.D., Minors.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 291983
Saginaw Circuit Court
Family Division
LC No. 08-031698-NA
ALLAN FORD DAVIDSON,
Respondent-Appellant,
and
KIMBERLY DAVIDSON,
Respondent.
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Before: Beckering, P.J., and Cavanagh and M. J. Kelly, JJ.
PER CURIAM.
In Docket No. 291955, respondent Kimberly Davidson (“respondent mother”) appeals as
of right from an order terminating her parental rights to the minor children under MCL
712A.19b(3)(b)(ii), (g), and (j). In Docket No. 291983, respondent Allan Ford Davidson
(“respondent father”) appeals as of right from the same order, which terminated his parental
rights to the same children under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(ii). We affirm.
Both respondents argue that the trial court erred in finding that the statutory grounds for
termination were established by clear and convincing evidence. We disagree.
The existence of a statutory ground for termination must be proven by clear and
convincing evidence. MCR 3.977(F)(1)(b) and (G)(3); In re Miller, 433 Mich 331, 344-345; 445
NW2d 161 (1989). The trial court’s findings of fact are reviewed for clear error and may be set
aside only if, although there may be evidence to support them, the reviewing court is left with a
definite and firm conviction that a mistake has been made. MCR 3.977(J); In re Conley, 216
Mich App 41, 42; 549 NW2d 353 (1996). Due regard is given to the trial court’s special
opportunity to judge the credibility of witnesses. In re Miller, supra at 337.
Once a statutory ground for termination has been proven, a court is required to terminate
parental rights if it finds “that termination of parental rights is in the child’s best interests[.]”
MCL 712A.19b(5). The trial court’s best interests decision is also reviewed for clear error. In re
Trejo, 462 Mich 341, 356; 612 NW2d 407 (2000).
Both respondents argue that the trial court erred in finding that the statutory grounds for
termination were established because petitioner violated its duty to make reasonable efforts to
reunify the family by failing to provide services to respondent mother. Respondents do not
challenge petitioner’s failure to offer services to respondent-father.
MCL 712A.19a(2)(a) provides that reasonable efforts toward reunification are not
required when “[t]here is a judicial determination that the parent has subjected the child to
aggravated circumstances” as provided in MCL 722.638(1). Under MCL 722.638(1)(a)(iii),
aggravated circumstances exist when “[t]he department determines that a parent . . . has abused
the child or a sibling of the child and the abuse included . . . [c]riminal sexual conduct involving
penetration, attempted penetration, or assault with intent to penetrate.” In this case, petitioner
sought to terminate respondents’ parental rights because of respondent-father’s extensive,
ongoing sexual abuse of two of his children,1 which included sexual penetration, and respondentmother’s refusal to protect the children from the abuse despite her knowledge that it was
occurring. The trial court found that these allegations were established by clear and convincing
1
This appeal involves only two of respondents’ three children. The third child attained the age
of 18 before the initial adjudication and, therefore, was not subject to the trial court’s termination
order.
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evidence. Under the circumstances, petitioner was not required to provide respondent-mother
with services and offer her a treatment plan before proceeding to termination.
Respondent-mother does not challenge the existence of a statutory ground for termination
apart from arguing that petitioner was obligated to provide her with services to reunify the
family. Respondent-father challenges the existence of a statutory ground for termination, but
does not argue that the testimony describing his extensive and ongoing sexual abuse of his
children, if believed, was insufficient to justify termination under §§ 19b(3)(b)(i), (g), (j), and
(k)(ii). Rather, he only challenges the credibility of the evidence describing his abuse. However,
the trial court considered and rejected each of respondent-father’s credibility challenges. The
trial court’s credibility determinations are entitled to substantial deference and, after reviewing
the record in this case, we find no reason to disturb them. The trial court did not clearly err in
finding that there was clear and convincing evidence that respondent-father sexually abused two
of his children on a regular and ongoing basis, and forced the children to participate in sexual
activity with each other, and that respondent-mother was aware of the abuse and did nothing to
protect the children. The evidence amply supports the trial court’s reliance on each of the
statutory grounds for termination cited with respect to both respondents.
We note that respondent-mother asserts on appeal that respondent-father’s conduct was
heinous, and she now appears to concede that the abuse occurred. In the trial court, however,
respondent-mother consistently refused to acknowledge even the possibility that the allegations
of sexual abuse might be true, and downplayed the allegations of physical abuse. The trial court
found that her testimony and explanations for respondent-father’s behavior were “unbelievable”
and “incomprehensible,” and that she had done “anything and everything she can to stick with
[respondent-father] at the detriment of her children.” The record discloses that respondentmother’s testimony was frequently inconsistent with other objective evidence that was presented,
and that she repeatedly changed her testimony when presented with contradictions. The trial
court did not clearly err in finding that her testimony was not credible, and that she could not be
trusted to protect the children in the future because she had not done so in the past and because
she continued to remain loyal to respondent-father despite his extensive abuse.
Finally, considering the extensive abuse to which the children were subjected and
exposed to while in respondents’ care, the trial court did not clearly err in finding that
termination of their parental rights was in the children’s best interests.
Affirmed.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly
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