in Re a J Melendez Minor ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re L. L. MELENDEZ, Minor. September 18, 2018
No. 338076
Wayne Circuit Court
Family Division
LC No. 16-523785-NA
In re A. J. MELENDEZ, Minor. No. 338079
Wayne Circuit Court
Family Division
LC No. 16-523893-NA
Before: O’CONNELL, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
Respondent-mother, D. Burroughs, and respondent-father, J. Hoffman, have one daughter
between them, LM. Respondent-father also has an older daughter, AM, with non-respondent
mother, B. Pac. In these consolidated appeals, respondents appeal as of right the trial court’s
orders terminating their parental rights to the children. The trial court terminated respondent-
mother’s parental rights to her daughter pursuant to MCL 712A.19b(3)(g) and (j). The court
terminated respondent-father’s parental rights to LM under MCL 712A.19b(3)(b)(i), (g), (j),
(k)(iii), (k)(iv), and (k)(v). His parental rights to AM were only terminated under MCL
712A.19b(3)(b)(i), (k)(iii), (k)(iv), and (k)(v). Because we conclude that there are no errors
warranting relief in either appeal, we affirm.
I. GENERAL FACTUAL AND PROCEDURAL BACKGROUND
Respondents were in a relationship and living together for approximately four years when
respondent-mother gave birth to their daughter, LM, in August 2016. According to respondent-
mother, she received prenatal care and LM was born full-term, healthy, and with no
complications. Respondents both attended routine visits with the pediatrician and LM was not,
in general, a fussy newborn. Respondent-mother took a six-week maternity leave and then
returned to her employment.
While respondent-mother was at work, respondent-father cared for LM. Although
respondent-father was unemployed, he received Social Security benefits related to a cognitive
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disability. Respondent-father’s other child, AM, lived with her mother, but the child spent one
night a week, and every other weekend, with respondent-father and respondent-mother.
In October 2016, when LM was 11 weeks old, respondents left LM in the care of
respondent-father’s mother, C. Goodman. LM was in Goodman’s care from 3:00 p.m. on
October 29, 2016, until approximately noon on October 30, 2016. Goodman testified that LM
was happy and content during her entire stay. Neither respondent had any concerns about LM’s
condition after she returned from staying at Goodman’s home.
On October 31, 2016, respondent-father, respondent-mother, and LM went to the home of
respondent-father’s sister to celebrate Halloween. During this visit, LM seemed happy and
several witnesses, including respondents, testified that she was fine that day.
LM’s crib was located in respondents’ bedroom. During the middle of the night on
November 1, 2016, LM woke up crying. According to respondent-mother, respondent-father got
up with the baby, rocked LM back to sleep, placed her in bed with respondent-mother, and then
he went to sleep on the couch in the living room. Respondent-father, however, recalled that he
was not able to sooth LM, so he put her in bed with respondent-mother and then went to sleep on
the couch. In any event, when respondent-mother woke up at 7:00 a.m. for work, she put a
sleeping LM back in her crib, prepared for work, and then, before she left for the day, woke up
respondent-father and instructed him to go back to the bedroom. When respondent-mother left
for work at 7:30 a.m., both LM and respondent-father were asleep in the bedroom. Respondent-
mother testified that she called home three times on November 1, 2016. During these calls,
respondent-father reported that LM had been crying throughout the day, but he did not think
anything of it.
According to respondent-father, at approximately 9:00 a.m., he and LM woke for the day.
LM was fussy, but respondent-father was not concerned because “all babies are fussy at times.”
Respondent-father attempted to feed LM twice that day. LM typically finished a six-ounce
bottle, but she did not finish either of the two bottles respondent-father attempted to feed her.
Respondent-father also had a difficult time getting LM to take her nap. According to
respondent-father, LM eventually fell asleep at about 4:00 p.m. Although he knew safe sleep
practices recommended that a baby be placed on its back, respondent-father placed LM on her
stomach. When respondent-father put LM down, he did not have any concerns related to LM’s
physical condition. However, approximately two to five minutes after he put her down, he
returned to the crib to check on LM. Initially, respondent-father could not explain why he
returned so quickly to check on his daughter. Later, however, he stated that he went back in so
quickly after putting LM down because he realized that he needed to flip her over.
When he entered the bedroom, respondent-father said LM’s name. He expected that she
would move her arms or legs in response. When she did not, he gently touched her leg. When
she still did not show any response, he picked LM up out of the crib. Respondent-father claimed
that he picked LM up underneath her armpits and used his fingers to support her head. At that
point, respondent-father could tell that LM was not breathing. According to respondent-father,
he then gently shook her for two to three seconds. Again, LM did not respond. Then,
respondent-father blew in LM’s mouth, which caused LM to let out a small gasp. According to
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respondent-father, he then realized that she needed medical attention so he put her in her car seat
and headed to the hospital. Later, a coworker drove respondent-mother to the hospital.
Initially, LM was treated at Henry Ford-Wyandotte Hospital, but was later transferred to
Children’s Hospital of Michigan where she would remain until her discharge on November 15,
2016. During her admission, LM was diagnosed as suffering from a fractured clavicle, stretched
ligaments in the neck, retinal bleeding, and bilateral subdural hematomas. LM’s treating
physicians all concluded that her injuries were caused by non-accidental trauma; specifically,
vigorous shaking.
While LM was still hospitalized, a petition was filed requesting termination of
respondents’ parental rights to LM and termination of respondent-father’s parental rights to AM
at the initial dispositional hearing. Following a hearing, the trial court found that the statutory
grounds for termination of respondents’ parental rights had been established by clear and
convincing evidence. Specifically, the court found that respondent-father physically abused LM
and that respondent-mother was complicit in a cover-up. Thereafter, the court concluded that a
preponderance of the evidence supported a finding that termination of respondents’ parental was
in LM’s and AM’s best interests. Accordingly, the court entered an order terminating
respondents’ parental rights to the children. This appeal followed.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
For her first issue on appeal, respondent-mother argues that she was denied the effective
assistance of counsel. This Court applies criminal law principles to claims of ineffective
assistance of counsel in child protective proceedings. In re Martin, 316 Mich. App. 73, 85; 896
NW2d 452 (2016). This Court remanded this case for a Ginther1 hearing at which respondent-
mother’s current appellate issues were considered. After the hearing, the trial court denied
respondent-mother’s motion for a new trial.
The issue of ineffective assistance of counsel is a mixed question of fact and law. People
v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012) (citation omitted). We review the trial
court’s findings of fact for clear error, and review questions of law de novo. Id. “To establish a
claim of ineffective assistance of counsel, a [respondent] must show both that counsel’s
performance was deficient and that counsel’s deficient performance prejudiced the defense. In
order to demonstrate that counsel’s performance was deficient, the [respondent] must show that
it fell below an objective standard of reasonableness under prevailing professional norms.”
People v Riley (After Remand), 468 Mich. 135, 140; 659 NW2d 611 (2003), citing Strickland v
Washington, 466 U.S. 668, 687; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984) and People v Pickens, 446
Mich. 298, 302-303; 521 NW2d 797 (1994). Establishing prejudice necessarily requires
demonstrating a reasonable probability that the result of the proceedings would have been
different but for counsel’s error. People v Nix, 301 Mich. App. 195, 207; 836 NW2d 224 (2013).
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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Respondent-mother first argues that she was denied the effective assistance of counsel
because she and respondent-father were jointly represented by the same retained attorney at the
dispositional hearing. We are not persuaded that trial counsel’s joint representation constituted
the ineffective assistance of counsel due to a conflict of interest.
At the outset, the record discloses that respondent-mother consented to the joint
representation after being fully informed of the consequences and implications of joint
representation. At the November 17, 2016 preliminary hearing, in respondent-mother’s
presence, the prosecutor questioned trial counsel’s joint representation, and the trial court
directed counsel to address the issue with his clients and further indicated that the court could
appoint attorneys for respondents, if necessary. This issue was raised again at a January 5, 2017
pretrial hearing. The court advised respondents that a conflict of interest could exist or arise
from the joint representation. Respondent-mother indicated that she had spoken with defense
counsel and she did not believe there was a conflict in the joint representation. At the Ginther
hearing, defense counsel testified that he discussed the potential conflict with both respondents.
He further advised respondents that if they wanted a different attorney, they would be entitled to
court-appointed counsel. In response, respondent-mother agreed that she wanted defense
counsel to continue to represent both parents. At the Ginther hearing, respondent-mother did not
produce evidence that she did not understand the consequences of her actions. Under the
circumstances, respondent-mother should not now be permitted to complain that the dual
representation deprived her of the effective assistance of counsel when she knowingly agreed to
the joint representation. “Respondent may not assign as error on appeal something that she
deemed proper in the lower court because allowing her to do so would permit respondent to
harbor error as an appellate parachute.” In re Hudson, 294 Mich. App. 261, 264; 817 NW2d 115
(2011).
Furthermore, we find no substantive merit to respondent-mother’s claim that the joint
representation deprived her of the effective assistance of counsel. A respondent bears the burden
of establishing the factual predicate for her claim of ineffective assistance of counsel. People v
Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999). Respondent-mother has not done so in this case.
Specifically, she has not demonstrated that an actual conflict of interest existed during the joint
representation or that any alleged conflict adversely affected her trial counsel’s performance.
Representation of multiple respondents by one attorney can create a conflict of interest,
but a conflict will not be presumed or implied. See, e.g., People v Lafay, 182 Mich. App. 528,
530; 452 NW2d 852 (1990). To establish the ineffective assistance of counsel in this regard, it
must be shown that an actual conflict of interest existed and that this conflict adversely affected
the adequacy of trial counsel’s representation. Id. The lower court record does not demonstrate
an actual conflict of interest. The defense theory of both respondents was that neither one of
them abused LM. On multiple occasions, respondent-mother testified that she did not believe
that respondent-father harmed their daughter. She further testified, as did respondent-father, that
the paternal grandmother was the perpetrator of the abuse. During the entire hearing below,
respondent-mother and respondent-father shared the same position. Based on the record, it is
apparent that because of respondent-mother’s steadfast support of respondent-father, no conflict
of interest existed.
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Further, respondent-mother has not established that any alleged conflict adversely
affected trial counsel’s representation. That is, trial counsel did not advance a position on behalf
of one parent that compromised the other parent’s interests. Respondent-mother specifically
argues that because of the joint representation, trial counsel was not able to advise her to leave
respondent-father. At the evidentiary hearing, however, defense counsel testified that he advised
respondent-mother that her chances would be better if she were to separate from respondent-
father. Then, at the beginning of the termination hearing, respondent-mother testified that she
intended to plan with respondent-father and she hoped they would marry. By the end of the
hearing, in her case-in-chief, respondent-mother tepidly testified that her priority was LM and
she would and could plan by herself if that was required of her. Even then, she continued to
assert that respondent-father did not harm LM and that she would still leave her child in his care.
Respondent-mother has not demonstrated that a conflict of interest impaired trial counsel’s
ability to adequately represent her interests. Counsel did advise respondent-mother that she
might fare better if she separated from respondent-father. Further, the record clearly
demonstrates that respondent-mother was not willing to comply with the advice of counsel when
given. Under these circumstances, respondent-mother has not established the factual predicate
for her claim.
Because respondents shared the same position during the dual representation and there is
no evidence that any actual conflict of interest impaired trial counsel’s representation of his
individual clients, respondent-mother has failed to establish ineffective assistance in this regard.
Next, respondent-mother argues that her trial counsel was ineffective for accepting the
opinions of LM’s treating physicians without consulting another medical expert or introducing
contradictory evidence regarding the cause of LM’s injuries. Specifically, respondent-mother
asserts that trial counsel should have presented expert testimony and argued that LM’s condition
was attributable to birth trauma sustained 11weeks earlier, as opposed to physical abuse. We
conclude that respondent-mother has not established that trial counsel was ineffective in this
regard.
The decision to call or not call an expert witness is presumed to be a matter of trial
strategy. People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012). Trial strategy is
entitled to great deference and this Court will not substitute its judgment for that of trial counsel
regarding matters of trial strategy. People v Garza, 246 Mich. App. 251, 255; 631 NW2d 764
(2001). “A particular strategy does not constitute ineffective assistance of counsel simply
because it does not work.” People v Matuszak, 263 Mich. App. 42, 61; 687 NW2d 342 (2004).
The failure to call a witness only constitutes ineffective assistance of counsel if it deprives the
respondent of a substantial defense. See People v Dixon, 263 Mich. App. 393, 398; 688 NW2d
308 (2004). “A substantial defense is one that might have made a difference in the outcome of
the trial.” People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68 (2009) (citation and
quotation marks omitted).
At the Ginther hearing, trial counsel testified that he concluded expert testimony would
not be necessary in light of the defense respondents intended to mount. Trial counsel contacted
David Moran at the University of Michigan Innocence Clinic. Moran, in turn, referred counsel
to an expert who, while not a medical doctor, was an expert consultant in abusive head trauma
cases. Counsel provided this individual with copies of LM’s hospital records. After reviewing
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the records, this consultant opined that the case was more about determining who abused LM
rather than whether she was abused. Accordingly, the record indicates that trial counsel
investigated the matter before settling on a trial strategy.
Trial counsel’s strategy included accepting that LM was physically abused, but asserting
that LM was injured while in the care of the paternal grandmother. Trial counsel concluded that
pursuing this strategy would not require an expert because the opinions of the treating physicians
would support this theory. LM’s treating physicians testified to time frames in which the injuries
could have occurred. All three of the doctors testified to an injury time-frame that included the
days that LM was in the care of her grandmother.
We conclude that trial counsel’s strategy was objectively reasonable. No less than three
treating physician’s opined that LM was a victim of physical abuse. Trial counsel sought the
assistance of an expert and this expert reached the same conclusion. Respondent-father admitted
on several occasions that he did in fact shake LM, but respondents attempted to minimize the
severity of the shaking and the significance of this admission. When asked if he ever
contemplated pursuing a theory that LM was suffering from birth trauma injuries as opposed to
child abuse, trial counsel explained that there was no indication to support this theory. This too
appears to be borne out by the record. According to respondent-mother, she received appropriate
prenatal care and LM was born full-term, healthy, and with no complications. Respondents both
attended routine visits with the pediatrician and LM was not, in general, a fussy newborn. Based
on the information available, trial counsel’s strategic decision to pursue a theory that LM was
physically abused by someone other than respondents was objectively reasonable. Accordingly,
the decision not to call an expert witness was similarly a matter of trial strategy.
Respondent-mother argues that trial counsel’s failure to consult additional experts
deprived her of a substantial defense. This is simply not supported by the record. In reality,
respondent-mother is attempting to relitigate the matter with a new defense because the one
mounted by trial counsel proved unsuccessful. In any event, respondent-mother still has not
established that the failure to consult another medical expert or introduce contradictory evidence
constituted the ineffective assistance of counsel. To prevail on this ineffective assistance of
counsel claim, respondent-mother was required to produce evidence that, had trial counsel
consulted additional medical experts, a different outcome would have been reasonably probable.
Put another way, respondent-mother was required to provide credible evidence that LM’s
medical condition was caused by birth trauma. Respondent-mother has not met this burden.
Respondent-mother relies on the opinions of Dr. Douglas Smith, a retired pathologist.
However, Dr. Smith’s testimony and affidavit fall far short of establishing a medical opinion that
LM’s fractured clavicle, retinal hemorrhages, and subdural hematomas were attributable to birth
trauma.2 Dr. Smith opines, at most, that trial counsel should have consulted with several experts
2
At the Ginther hearing, the trial court did not permit appellate counsel to fully explore Dr.
Smith’s opinion that LM’s condition was caused by birth trauma. The court reasoned that the
purpose of the evidentiary hearing was to explore the reasonableness of the defense mounted by
trial counsel, not to relitigate the case with a new theory of defense. Nonetheless, Dr. Smith’s
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to acquire opinions regarding the nature of the injuries. However, there is no evidence that, had
those experts been consulted, they would have reached the conclusion that the injuries were
related to birth trauma. Indeed, Dr. Smith simply concluded that, in his opinion, “there are
possible medical conditions that explained the findings” in this case. He then avers that “it is
likely that they were caused by a birth injury that evolved into a chronic subdural hematoma,
which presented to medical attention when she began to have seizures.” However, even this
opinion is less than credible under Dr. Smith’s own reasoning. Dr. Smith is most critical of trial
counsel’s failure to seek expert review of several medical records, including respondent-mother’s
prenatal care and LM’s birth. He testified that in order to give an opinion on the cause of LM’s
medical conditions, it would be absolutely necessary to review these records. Yet, Dr. Smith
readily admits that he, himself, did not review the prenatal and birth records. Because he did not
review the very records that he claimed were critical and essential to an expert opinion in this
case, he was in no position to provide a reliable opinion on the cause of LM’s injuries. Dr.
Smith’s affidavit is filled with nothing more than speculation and conjecture. Consequently,
respondent-mother has failed to show that trial counsel’s failure to call an expert or that retention
of an expert would have changed the outcome. Respondent-mother has the burden of
establishing the factual predicate for her ineffective assistance of counsel argument. See Hoag,
460 Mich. at 6. She has not done so.
We also reject respondent-mother’s reliance on People v Ackley, 497 Mich. 381; 870
NW2d 858 (2015), in support of her argument. That decision does not support the broad
proposition advanced by respondent-mother that failure to call an expert witness in abusive head
trauma cases constitutes the ineffective assistance of counsel. Ackley involved “the unexplained
and unwitnessed death of a child[.]”. Id. at 383. The prosecution argued that the defendant
killed the child either by blunt force trauma or shaking. The defendant denied harming the child
and asserted that she must have died by an accidental fall. Id. at 384. The prosecution called
five medical experts to establish the cause of death. The defendant, in contrast, called no expert
in support of his theory that the child’s injures resulted from an accidental fall, although the court
had provided funding for expert assistance. During the evidentiary hearing in Ackley, the
defendant provided an affidavit from an expert pathologist who averred that he would have
testified that the child’s head injuries could not be attributed to shaken baby syndrome or abusive
head trauma, but were caused by an accidental mild impact. Under these circumstances, the
Ackley Court held that the defense’s failure to call an expert to respond to the prosecution’s
medical testimony constituted the ineffective assistance of counsel. The Court did not conclude
that all abusive head trauma cases require the defense to present expert medical testimony.
Moreover, in contrast to Ackley, in which there were competing theories on the cause of death
necessitating expert opinions and the defendant produced factual support for his theory that the
child’s injuries could be attributed to accidental impact, respondents in this case did not contest
opinions were explored and it is clear that, at most, he opined that trial counsel did not fully
investigate other causes of the injuries. After further admonishment by the court, appellate
counsel eventually ceased her line of questioning and commented that Dr. Smith’s opinion was
set forth in his affidavit, which had been provided to this Court. Thus, it is appropriate to
examine the affidavit to evaluate the nature of Dr. Smith’s opinions.
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that LM’s condition was caused by physical abuse. Furthermore, respondent-mother has not
produced competent evidence to support her appellate contention that LM’s medical condition
was a result of birth trauma. Therefore, respondent-mother’s reliance on Ackley is misplaced.
B. STATUTORY GROUNDS
Both respondents argue that the trial court erred when it found that the statutory grounds
for termination were established by clear and convincing evidence. We disagree. In order to
terminate parental rights, the trial court must find that at least one of the statutory grounds for
termination has been established by clear and convincing evidence. In re Trejo, 462 Mich. 341,
355; 612 NW2d 407 (2000). This Court reviews the trial court’s findings under the clearly
erroneous standard. MCR 3.977(K). A finding is clearly erroneous if the reviewing court is left
with a definite and firm conviction that a mistake has been committed. In re Miller, 433 Mich.
331, 337; 445 NW2d 161 (1989) (citations omitted).
The trial court terminated respondent-mother’s parental right to LM pursuant to MCL
712A.19b(3)(g) and (j). The court terminated respondent-father’s parental rights to LM pursuant
to MCL 712A.19b(3)(b)(i), (g), (j), (k)(iii), (k)(iv), and (k)(v), and terminated his parental rights
to AM pursuant to those same grounds, except MCL 712A.19b(3)(g) and (j). These statutory
grounds permit termination of parental rights under the following circumstances:
(b) The child or a 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.
* * *
(g) The parent, without regard to intent, fails to provide proper care or
custody for the child and there is no reasonable expectation that the parent will be
able to provide proper care and custody within a reasonable time considering the
child’s age.
* * *
(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:
* * *
(iii) Battering, torture, or other severe physical abuse.
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(iv) Loss or serious impairment of an organ or limb.
(v) Life-threatening injury.
After reviewing the record, we conclude that the trial court did not clearly err by finding that
these statutory grounds were established by clear and convincing evidence.
At the outset, we note that respondent-father fails to specifically address the termination
of his parental rights under MCL 712A.19b(3)(k)(iv) and (k)(v). “The failure to brief the merits
of an allegation of error is deemed an abandonment of an issue.” In re JS & SM, 231 Mich. App.
92, 98; 585 NW2d 326 (1998), overruled in part on other grounds by In re Trejo, 462 Mich. at
353 n 10. Accordingly, we may assume that the trial court did not clearly err when it found clear
and convincing evidence to terminate respondent-father’s parental rights under MCL
712A.19b(3)(k)(iv) and (k)(v). See In re JS & SM, 231 Mich. App. at 98-99. Because only one
statutory ground for termination must be established by clear and convincing evidence,
respondent-father’s failure to challenge the trial court’s findings with respect to MCL
712A.19b(3)(k)(iv) and (k)(v) would preclude appellate relief with respect to his challenge to the
statutory grounds. Id. at 98. Nonetheless, we are satisfied from our review of the record that the
trial court did not clearly err when it found that each of the cited statutory grounds for
termination were established by clear and convincing evidence.
The evidence overwhelmingly established that 11-week-old LM was the victim of severe
physical abuse at the hands of respondent-father and that respondent-mother was complicit in the
cover-up. When LM was admitted to the hospital on November 1, 2016, she was in critical
condition. Her physical injuries included a fractured clavicle, retinal hemorrhaging, and bilateral
subdural hematomas. Imaging showed inflammation of the ligaments in LM’s neck, indicating
that they had been stretched. As a consequence of damage to her optic nerves, LM suffered
permanent vision impairment. It is likely that she will have long-term or permanent neurological
deficits related to the damage to her brain. As a further consequence of the injuries, LM
developed a seizure disorder that her physicians continue to treat with multiple anti-seizure
medications. LM also requires physical therapy because the left side of her body does not
function properly.
Moreover, there was overwhelming evidence that LM’s injuries were caused by non-
accidental trauma. The testimony of LM’s treating physicians refutes any suggestion that LM’s
injures could have been self-inflicted, accidental, or related to birth trauma. All three physicians
agreed that LM suffered abusive head trauma most likely caused by vigorous shaking. The
pediatric critical care specialist who treated LM testified that the combination of injuries could
only have occurred by someone forcefully shaking the infant.
Neither respondent took responsibility for injuring LM. Indeed, they persistently claimed
that they had no idea how she sustained such severe trauma. The evidence, however, was
sufficient to enable the court to conclude that LM was injured while in respondent-father’s care.
By all accounts, LM did not appear injured or in distress in the days preceding her
hospitalization. On November 1, 2016, LM was left in respondent-father’s care while
respondent-mother was at work. Respondent-mother was not concerned about LM’s condition
when she left for the day.
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Respondent-father’s own testimony regarding the events that transpired further implicates
him. Respondent-father told a police officer that LM, who was not normally fussy, was having a
particularly difficult day. She was not feeding or napping in her usual manner. When he
eventually put LM down at 4:00 p.m. for a nap, respondent-father almost immediately went back
in to check on her. It was at this time that he allegedly found LM unresponsive. Respondent-
father could not explain why he went back in to check on LM so quickly after putting her down.
Only after prompting from his attorney did he eventually claim that he went back in simply to
reposition LM onto her back. On several occasions, respondent-father admitted that he did, in
fact, shake LM that day, although he asserted that he did so gently.
Respondents’ actions in the days following November 1, 2016, are also compelling.
Respondent-father admitted that respondent-mother suggested that they lie about what happened
and say that LM hit her head on the crib. Further, when speaking to his sister, respondent-
father’s account of the events was inconsistent and illogical. He implored his sister to say good
things about respondents to the investigators.
At trial, respondents argued that LM was injured while in the care of her grandmother.
The treating physicians could not say precisely what day LM was injured; at best, they were able
to provide a range that did include the time period when LM was with her grandmother, as well
as her parents. However, there was clear and convincing evidence from which the court could
conclude that it was not plausible that LM’s grandmother was the perpetrator. First, respondents
admitted that when LM returned home from her grandmother’s care, she was fine. And she
remained fine for two days. This is consistent with the grandmother’s testimony that LM was
content while in her care and that nothing unusual happened. Further, the critical care specialist
opined that in light of the severity of the injuries, LM’s behavior would have changed and her
symptoms would have been quickly apparent. Indeed, considering the degree of injury, it would
have been uncommon for there to be a delay in the onset of symptoms. Respondents claimed at
trial that early on they disclosed their suspicions to Child Protective Services (CPS). However,
the CPS specialist testified that she spoke to respondents no less than four times while LM was
hospitalized and not once did they implicate the paternal grandmother. Based on the foregoing,
there was clear and convincing evidence from which the court could conclude that respondent-
father became frustrated with an irritable infant, and took this frustration out on the helpless child
by shaking her vigorously back and forth. The evidence further established that respondent-
mother participated in a cover-up by attempting to implicate a relative.
Moreover, the evidence persuasively demonstrated that respondent-mother was unlikely
to protect LM from risks of harm in the future. It is undisputed that LM sustained severe
injuries. Respondent-mother could articulate no plausible explanation for these injures. Despite
overwhelming evidence of non-accidental injury, respondent-mother testified both at the
beginning and the end of trial that she did not believe that respondent-father had harmed their
daughter. Indeed, respondent-mother admitted that she would have no concerns in the future
with leaving a child in respondent-father’s care. Respondent-mother and respondent-father
continued to live together and she hoped that someday they would marry. Respondent-mother’s
own admissions make it readily apparent that she is not willing to put her child’s needs ahead of
her own and, consequently, LM would be at risk of serious harm if returned to respondent-
mother’s care.
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Based on the foregoing evidence, the trial court did not clearly err when it found clear
and convincing evidence to terminate respondents’ parental rights.3
C. BEST INTERESTS
Finally, both respondents challenge the trial court’s finding that termination of their
parental rights was in the children’s best interests. We find no merit to these challenges. “If the
court finds that there are grounds for termination of parental rights and that termination of
parental rights is in the child’s best interests, the court shall order termination of the parental
rights and order that additional efforts for reunification of the child with the parent not be made.”
MCL 712A.19b(5). Whether termination of parental rights is in the child’s best interests must be
proven by a preponderance of the evidence. In re Moss, 301 Mich. App. 76, 90; 836 NW2d 182
(2013). We review for clear error a trial court’s finding that termination of parental rights is in a
child’s best interests. In re Jones, 286 Mich. App. 126, 129; 777 NW2d 728 (2009).
The court may consider several factors when deciding if termination of parental rights is
in a child’s best interests, including the child’s bond to the parent, the parent’s parenting ability,
the child’s need for permanency, stability and finality, and the advantages of a foster home over
the parent’s home. In re Olive/Metts Minors, 297 Mich. App. 35, 42; 823 NW2d 144 (2012). The
court may also consider psychological evaluations, the child’s age, involvement in domestic
violence, and a parent’s history. In re Jones, 286 Mich. App. at 131.
The trial court did not clearly err when it found that termination of respondent-mother’s
parental rights was in LM’s best interests. LM was severely physically abused at the hands of
her father. The evidence further showed that respondent-mother continued to deny the manner in
which LM was injured, encouraged respondent-father to lie about the events, and sought to place
blame on a relative. Moreover, respondent-mother continued her relationship with, and indeed
wished to marry, the man who severely abused their 11-week-old infant. This is not the action of
a parent who is willing to make the needs of her child paramount.
It is undisputed that after her child was removed, respondent-mother made efforts to
demonstrate her parenting skills. She called the foster mother every day and kept in weekly
contact with the caseworker. Respondent-mother was also patient and attentive at parenting time
and she brought with her many of the necessities for caring for an infant. Nonetheless,
respondent-mother has not demonstrated that she can or would protect her child and ensure her
child’s safety. Clearly, LM would continue to be at risk of harm if returned to respondent-
mother’s care. Accordingly, the trial court did not clearly err when it found that termination of
respondent-mother’s parental rights was in LM’s best interests.
Turning to respondent-father, as discussed, LM suffered physical harm while in his care.
This factor must weigh heavily in favor of terminating his parental rights to LM. More
3
Both respondents argue that petitioner did not offer them reunification services. However,
“[p]etitioner . . . is not required to provide reunification services when termination of parental
rights is the agency’s goal.” In re HRC, 286 Mich. App. 444, 463; 781 NW2d 105 (2009).
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compelling is that respondent-father has failed to take responsibility for his actions. Under these
circumstances, the danger of continued physical abuse was simply too great. Therefore, the trial
court did not clearly err when it found that termination of respondent-father’s parental right to
LM was in the child’s best interests.
The court correctly recognized that additional factors would need to be considered
relative to AM’s best interests. This Court has held that a trial court has an obligation “to view
each child individually when determining whether termination of parental rights is in that child's
best interests.” In re Olive/Metts, 297 Mich. App. at 42. AM was five years old when LM was
injured. She lived with her biological mother, but visited respondent-father frequently and
routinely. Respondent-father contributed to AM’s financial needs. Several witnesses testified
that respondent-father and AM shared a strong bond and that respondent-father’s interaction with
his daughter was appropriate. Notably, both counsel for the children and the non-respondent
biological mother requested that the court not terminate respondent-father’s parental rights to
AM. Notwithstanding these requests, the court found that termination of respondent-father’s
parental rights was in AM’s best interests. We agree. As the trial court noted, respondent-father
caused severe and permanent injury to AM’s sibling, denied that he did so, and then attempted to
blame his own mother for the abuse. Despite the fact that AM would presumably be safe in her
mother’s care, there would still be the potential for interaction between respondent-father and his
oldest daughter if his parental rights were not terminated. Given the continued danger of
physical abuse in the home, AM would be at risk if respondent-father’s parental rights remained
intact. Accordingly, the trial court did not clearly err when it found that termination of
respondent-father’s parental rights was also in AM’s best interests.
Affirmed.
/s/ Peter D. O’Connell
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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