Termination under §§ 19b(3)(b)(i), (g), & (j); The clear & convincing evidence standard; In re Trejo Minors; In re Martin; A definite & firm conviction that a mistake was made; In re Dearmon

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 71674 in the 11/19/19 edition), which had affirmed the trial court’s termination order. The record left the court “with a definite and firm conviction that a mistake” was made. The statutory grounds for terminating respondent-father’s parental rights “and the best-interest determination all turn on the factual finding regarding whether respondent sexually abused one of the children. That finding is based on a 3-year-old child’s response to two open-ended questions and one leading question asked by her aunt, and a 6-year-old child’s statement that respondent threatened a ‘whooping’ for discussing the allegations.” The court noted that, as to the initial statement, the child did not repeat it in the forensic interview. However, she “affirmatively responded to leading questions such as whether it was raining indoors and whether she was 10 years old.” While appellate courts give deference to trial courts’ ability to observe the witnesses, the trial court here “did not actually observe the statement characterized by the aunt as alleging abuse.” In addition, it appeared “to place the burden on respondent to disprove the statement. Finding respondent’s various theories on why a 3-year-old might make such a statement unsatisfactory, the trial court concluded it had to take the statement at ‘face value.’ In doing so, the court shifted the burden to respondent to disprove the statement.” As to the indication that he “threatened another child with a ‘whooping’ for discussing the allegations, these are hearsay accounts from a 6-year-old.” It was not clear from the record that whatever was said was an effort to thwart “an investigation rather than an inartfully phrased instruction about what topics of discussion are generally appropriate.” The court concluded that, even giving the “two pieces of evidence the most weight they might be due, we cannot see how any reasonable trier of fact could consider this evidence ‘so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’” It remanded to the trial court for further proceedings.

While finding the majority’s decision was not unreasonable, the dissent could not concur in the ruling “that the trial court ‘clearly erred’” when it determined termination was supported by “clear and convincing” evidence. Among other things, the dissent noted that “it is highly atypical, and indicative of sexual abuse, for a three-year-old to spontaneously suggest an act of oral sex.” Further, responding to “her aunt’s nonleading and open-ended question as to who gave her the idea to kiss her doll goodnight on the ‘kitty,’” the child answered, “My Daddy.” For these and other reasons, the dissent was “not left with a ‘definite and firm’ conviction that the” trial court erred, and not convinced that respondent showed that “the Court of Appeals reached a ‘clearly erroneous’ decision in affirming the trial court.”