in Re bulley/may Minors ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re STRINGER, Minors. November 20, 2018
No. 342833
Wayne Circuit Court
Family Division
LC No. 17-000564-NA
In re BULLEY, Minor. No. 342835
Wayne Circuit Court
Family Division
LC No. 17-000561-NA
In re BULLEY/MAY, Minors. No. 342837
Wayne Circuit Court
Family Division
LC No. 17-000561-NA
Before: M. J. KELLY, P.J., and SAWYER and MARKEY, JJ.
PER CURIAM.
In these consolidated appeals,1 respondents appeal the trial court orders terminating their
parental rights to their respective minor children. In Docket No. 342833, respondent-father, KS, 2
appeals as of right the trial court order terminating his parental rights to the minor children,
KSMS and KMS, under MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), and (k)(v). In Docket No.
342835, respondent-father, AB, appeals as of right the trial court order terminating his parental
1
In re KS Minors; In re AB/May Minors, unpublished order of the Court of Appeals, entered
March 27, 2018 (Docket Nos. 342833; 342835; 342837).
2
In order to protect the identities of the minor children, we will only refer to respondent-fathers
by their initials.
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rights to the minor child, AIDB, under MCL 712A.19b(3)(g), (h), and (j). In Docket No.
342837, respondent-mother appeals as of right the trial court order terminating her parental rights
to AIDB and JMM under MCL 712A.19b(3)(b)(i), (b)(ii), (g), and (j). We affirm in Docket Nos.
342833 and 342837. In Docket No. 342835, we vacate the trial court’s order and remand for
further proceedings consistent with this opinion.
I. BASIC FACTS
In April 2017, the Department of Health and Human Services (DHHS) filed a petition
seeking removal of JMM, AIDB, and PES from their home with respondent-mother and KS for
reasons of physical abuse and failure to protect. Respondent-mother was identified as the mother
of all three children. Respondent-mother was married to KS, and he was identified as the father
of PES and the alleged perpetrator of the physical abuse. AB was identified as the father of
AIDB; AB was incarcerated at the time of the alleged abuse and his earliest release date was
January 5, 2019. JMM’s father was identified as a non-respondent in this case, and JMM was
released to his father.
DHHS sought termination of respondent-mother’s parental rights to all three children,
termination of AB’s parental rights to AIDB, and termination of KS’s parental rights to PES.
DHHS also filed a petition seeking termination of KS’s parental rights to KSMS and KMS for
reasons related to the physical abuse of PES. DHHS recommended that KSMS and KMS remain
with their mother, who was a non-respondent parent.
The petitions indicated that PES was admitted to a pediatric intensive care unit on March
14, 2017, after suffering a cardiac arrest. KS initially reported that he picked up PES when he
was crying and started burping him. PES began throwing up and “the vomit had little specks of
blood in it.” After calling respondent-mother, KS called 911 and then started CPR. When EMS
arrived, PES had no heartbeat or pulse. EMS personnel continued CPR until PES was revived.
At the hospital, a CT scan revealed that PES had a subdural hematoma, and a chest x-ray showed
he had healing fractures on his right sixth and seventh ribs. Additional fractures were suspected.
PES remained in critical condition, required a ventilator, and lacked brain function. He died
during the pendency of the proceedings.
Throughout the proceedings, there was significant discussion about PES’s special needs
because he was born at 26 weeks’ gestation and was discharged approximately 82 days after
birth with oxygen, an apnea monitor, and medications to assist with his lung development. PES
was also born at stage three of blindness in both eyes. However, the severe, life-threatening
injuries PES sustained while in the care and custody of respondent-mother and KS was the
primary issue in the case. Medical expert testimony established that PES’s injuries raised a high
suspicion of non-accidental trauma given that the injuries were at various stages of healing and
could not be explained as the result of CPR or a single fall. The testimony indicated that “a
considerable amount of force” would be necessary to produce the fractures to PES’s ribs. In
addition, a fall alone was insufficient to explain PES’s subdural hematoma and the fractures of
PES’s fibula and tibia were indicative of child abuse.
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By all accounts, respondent-mother was absent during the events that led to PES’s
hospitalization, and KS testified that he shook and dropped PES prior to seeking medical
attention. KS added that he believed the rib injuries could be explained by his acts on a prior
occasion when he “massaged” the infant to produce a bowel movement. Nonetheless, KS
maintained that he never purposely inflicted pain on PES, and respondent-mother continued to
reside with KS. She reported that she did not believe that he presented a risk to herself or her
older children.
The record also reflects that AB acknowledged that he was presently unable to provide
care and custody for AIDB because of his incarceration. However, he suggested that his family
would be willing and able to provide care and custody on his behalf. AB maintained contact
with DHHS workers and sought to participate in any services available to him. Further, AB’s
mother stated that she intended to help care for AIDB and she began participating in two to three
visits per week, during which AB would speak to his son on the phone.
The trial court took jurisdiction over the children following an adjudication hearing, and,
in the same proceedings, it found there was clear and convincing evidence to establish grounds to
terminate each respondent-parent’s parental rights. The matter was set for a best interests
hearing, and, after the hearing, the court found by a preponderance of the evidence that
termination of each respondent-parent’s parental rights was in the best interest of each of the
children.
II. JURISDICTION
A. STANDARD OF REVIEW
“We review the trial court’s decision to exercise jurisdiction for clear error in light of the
court’s findings of fact.” In re BZ, 264 Mich. App. 286, 295; 690 NW2d 505 (2004). “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.” Id. at 296-297.
B. ANALYSIS
Respondent-mother first argues that the trial court erred by not providing her with notice
of her appellate rights immediately after making a determination regarding jurisdiction.
However, the trial court is only required to advise the respondent that he or she may appeal
“[i]mmediately after entry of an order terminating parental rights . . . .” MCR 3.977(J)(1).
Accordingly, the trial court was not obligated to provide respondent-mother notice of her
appellate rights immediately after taking jurisdiction.
Respondent-mother also asserts that the court erred when it obtained jurisdiction over
JMM and AIDB because there was no indication that she had created an environment that was
unfit for her children, there were no allegations that she neglected or abused JMM or AIDB, and
there was no allegation that she was ever inappropriate with the children. “To properly exercise
jurisdiction, the trial court must find that a statutory basis for jurisdiction exists.” BZ, 264 Mich
App at 295. The court may take jurisdiction if the respondent’s conduct created a situation in
which the child’s “home or environment, by reason of neglect, cruelty, drunkenness, criminality,
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or depravity . . . is an unfit place for the juvenile to live in.” MCL 712A.2(b)(2). “[T]he failure
of one parent to protect a child from abuse or neglect by the other parent can be grounds for
taking jurisdiction over the child . . . .” In re SLH, 277 Mich. App. 662, 670; 747 NW2d 547
(2008).
Here, despite learning that KS had injured PES, respondent-mother continued to express
a belief that the children were not at risk in his care and planned to continue her relationship with
him. It is undisputed that PES suffered significant injuries and that his medical needs were
neglected following several events that may have resulted in injury. This combination of facts is
sufficient to support the court’s finding by a preponderance of the evidence that the baby had
been left without proper care and custody, thus creating “an unfit place for [a] juvenile to live
in.” MCL 712A.2(b)(1).
Respondent-mother nevertheless argues that the trial court should have assumed
jurisdiction over PES, but not her older children. However, “[a] child may come within the
jurisdiction of the court solely on the basis of a parent’s treatment of another child. Abuse or
neglect of the second child is not a prerequisite for jurisdiction of that child and application of
the doctrine of anticipatory neglect.” In re Gazella, 264 Mich. App. 668, 680-681; 692 NW2d
708 (2005), superseded by statute on other grounds in MCL 712A.19b(5). In this case, the trial
court concluded that respondent-mother either participated in PES’s abuse or failed to protect
him from physical abuse inflicted by KS. Because both findings are supported by the record, the
trial court did not clearly err by taking jurisdiction over all of respondent-mother’s children.
III. STATUTORY GROUNDS
A. STANDARD OF REVIEW
“In order to terminate parental rights, the trial court must find by clear and convincing
evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been
met.” In re VanDalen, 293 Mich. App. 120, 139; 809 NW2d 412 (2011). The trial court’s finding
that a ground for termination has been established is reviewed for clear error. MCR 3.977(K); In
re Rood, 483 Mich. 73, 90-91; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.). Likewise, the
issue of whether petitioner made reasonable efforts to preserve and reunify the family is
reviewed for clear error. In re Fried, 266 Mich. App. 535, 542-543; 702 NW2d 192 (2005).
B. ANALYSIS
The trial court terminated KS’s parental rights pursuant to MCL 712A.19b(3)(b)(i),
(b)(ii), (g), (j), and (k)(v); it terminated respondent-mother’s parental rights pursuant to MCL
712A.19b(3)(b)(i), (g), and (j); and it terminated AB’s parental rights to his child under MCL
712A.19b(3)(g), (h), and (j). At the time of the proceedings,3 the relevant statutory provisions
provided:
3
Effective June 12, 2018, MCL 712A.19b(3)(g) and (k) have since been substantively
amended. See 2018 PA 58.
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(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 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.
(ii) The parent who had the opportunity to prevent the physical injury or
physical or sexual abuse failed to do so and the court finds that there is a
reasonable likelihood that the child will suffer 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.
(h) The parent is imprisoned for such a period that the child will be
deprived of a normal home for a period exceeding 2 years, and the parent has not
provided for the child’s proper care and custody, 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:
* * *
(v) Life-threatening injury.
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1. DOCKET NO. 342833
KS argues that termination of his parental rights to KSMS and KMS was not supported
by MCL 712A.19b(3)(b)(i) because PES had significant special needs that his older children do
not have and, therefore, there is no reasonable likelihood that KSMS and KMS would suffer
abuse if he retains his parental rights. We disagree. PES had significant needs when he was
born; however, his injuries were not the result of his medical needs or neglect of his medical
needs. Rather, a medical expert opined that PES’s injuries were the result of non-accidental
trauma. Furthermore, given the different stages of healing, the injuries occurred on more than
one occasion, which is indicative of child abuse. Moreover, when asked about PES’s rib
injuries, KS testified that they might have occurred when he “massaged” the infant to produce
bowel movements. Furthermore, KS reported to DHHS an incident where “he fell asleep on the
couch with PES lying on his chest, and he jumped up in the middle of the night and forgot PES
was lying on him, and he fell and hit his head on the floor.” KS did not seek medical attention
for PES at that time. KS also testified that he “shook” and then “dropped” PES on March 14,
2017. KS explained, “I dropped him, but it wasn’t like a drop, it was just like, I don’t want this.
I’m in this situation and I’m by myself, this woman’s other two kids, here with my son. I
panicked. It was a messed up moment for me at the time.” KS told DHHS that “he didn’t know
how hard he laid PES on the floor” on the date he was hospitalized. Thus there is evidence that a
sibling of KSMS and KMS was physicially injured by KS and that the injury was non-
accidental.4
KS argues that neither of respondent-mother’s children who resided with KS ever
suffered injury, abuse, or other harm while in KS’s care, which would support his position that
his own children would not be harmed. However, “[h]ow a parent treats one child is certainly
probative of how that parent may treat other children.” In re AH, 245 Mich. App. 77, 84, 627
NW2d 33 (2001) (quotation marks and citation omitted). Although there was no evidence that
the other children had ever suffered injury, abuse, or harm by KS, evidence of actual harm is not
required, and the physical harm to PES, who was a sibling of each of the children involved in
this case, was sufficient to meet the statutory standard.
KS next contends that there is no reason to believe that he could not remedy his feelings
of being overwhelmed or frightened in an emergency or maintain safe sleeping practices in the
future and that a parenting plan should be put into place to afford the opportunity to demonstrate
that he can safely parent KMS and KSMS. However, KS was not entitled to a treatment plan
because this case involved a termination petition under MCL 712A.19a(2)(a), which authorizes
an original permanent custody petition when the abused child has suffered life-threatening
injuries. In such a case, DHHS is not required to provide reunification services when
termination of parental rights is the agency’s goal. HRC, 286 Mich. App. at 463. Furthermore,
4
KS argues that the trial court erred by terminating his parental rights because there is no clear
and convincing evidence that KS caused the injuries that ended PES’s life. However, MCL
712A.19b(3)(b)(i) requires only that a parent’s act cause a physical injury—not that death be the
result.
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given KS’s acts resulting in PES’s injuries and his poor judgment in the face of a medical crisis,
there remains a reasonable likelihood that any other children could suffer harm or injury while in
respondent-father’s care.5 The court did not clearly err by finding grounds to terminate KS’s
parental rights under MCL 712A.19b(3)(b)(i).
2. DOCKET NO. 342837
Respondent-mother argues that petitioner did not establish by clear and convincing
evidence that she either caused the injuries or had an opportunity to prevent the injuries to PES.
Yet, the facts of this case are nearly identical to the facts of In re Ellis, 294 Mich. App. 30; 817
NW2d 111 (2011). In Ellis, the respondent-parents lived together, and both testified that they
were the only individuals who took care of the child. Id. at 35. Their child suffered several non-
accidental injuries, and the respondents’ explanations for the injuries were “inconsistent with the
extent and nature of the child’s injuries,” which were highly indicative of child abuse, requiring a
very high force of impact, and were inconsistent with those caused by accident. Id. Because the
injuries were at various stages of healing, it was apparent that the child had suffered multiple
instances of abuse. Id. This Court concluded that the trial court properly determined that
termination was proper under MCL 712A.19b(3)(b)(i), (b)(ii), and (j) because at least one of the
parents had perpetrated the abuse and at least one of them had failed to prevent it, and that it did
not matter which did which. Id. at 35-36.
Similarly, the evidence in this case shows that PES suffered numerous non-accidental
injuries that occurred on more than one occasion, that his parents lived together, and that the
parents shared childcare responsibilities and were PES’s sole caregivers. Furthermore, KS and
respondent’s explanations were insufficient to explain all the non-accidental injuries. Thus, on
this record, respondent-mother either caused some of the injuries or failed to protect PES from
ongoing physical abuse. Accordingly, the trial court did not clearly err by finding that the
statutory grounds for termination of respondent-mother’s parental rights were established by
clear and convincing evidence under MCL 712A.19b(3)(b)(i), (b)(ii), and (j).6
3. DOCKET NO. 342835
AB argues that the trial court erred by finding that DHHS made reasonable efforts at
reunification. DHHS has an affirmative duty to make reasonable efforts to reunify a family
before seeking termination of parental rights. MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2).
Our Supreme Court has explained that “ ‘[r]easonable efforts to reunify the child and the family
must be made in all cases’ except those involving aggravated circumstances . . . .” In re Mason,
486 Mich. 142, 152; 782 NW2d 747 (2010), quoting MCL 712A.19a(2). DHHS is not relieved of
the statutory duty to make reasonable efforts with respect to an incarcerated parent. Id. at 159.
5
Given our resolution, we need not address the additional grounds under which KS’s parental
rights were terminated. In re HRC, 286 Mich. App. 444, 461; 781 NW2d 105 (2009).
6
Given our resolution, we decline to address whether termination was also proper under MCL
712A.19b(3)(g). See HRC, 286 Mich. App. at 461.
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In such cases, consideration of an incarcerated parent’s suggestions for relative placement is
critical, as “[t]he mere present inability to personally care for one’s children as a result of
incarceration does not constitute grounds for termination . . . . [A]lthough the parent is in
prison[,] he need not personally care for the child.” Id. at 160-161. Thus, courts must evaluate
whether an incarcerated parent could provide proper care and custody in the future by voluntarily
granting legal custody to relatives for the remaining term of his or her incarceration. Id. at 163.
Thereafter, the “court is not required to terminate parental rights if the State has not provided to
the family of the child . . . such services as the State deems necessary for the safe return of the
child to the child’s home.” Rood, 483 Mich. at 104. In other words, “[t]he adequacy of the
petitioner’s efforts to provide services may bear on whether there is sufficient evidence to
terminate a parent’s rights.” Id. at 89.
From the beginning of the termination case, AB stated that his mother and sister could
provide the necessary care for his child. AB also testified that he had planned to take care of his
child and once released would obtain employment to take care of his child financially. AB
intended to get a house and make sure the child had transportation back and forth to school,
dental appointments, and doctor’s appointments. In response to AB’s request to be placed on a
treatment plan, the trial court stated that AB could participate in whatever services were offered
at his facility, but he was not ordered to participate in any services. And, although a treatment
plan was never put into effect, AB was in contact with the DHHS worker about a service plan
and was on the waiting list for classes and programs.
Petitioner argues that it is not required to provide reunification services when termination
of parental rights is the agency’s goal. HRC, 286 Mich. App. at 463. However, in this case,
DHHS did not request termination of AB’s parental rights based on an aggravated circumstance
created by AB, nor is there any evidence that any of the aggravating circumstances set forth in
MCL 712A.19a(2) or MCL 722.638(1) exist in this case. Accordingly, petitioner was required to
make reasonable efforts in this case. Mason, 486 Mich. at 152.
It is undisputed that despite DHHS’s lack of efforts, AB made repeated requests and
efforts to obtain whatever services were necessary to demonstrate his ability and desire to
provide proper care and custody for his child. However, petitioner did not make a reasonable
effort at reunification. The record does not suggest that DHHS considered a temporary
guardianship with any relative in lieu of termination. Rather, petitioner simply dismissed AB’s
claims that his mother would assist by focusing on the fact that she did not attend the trial court
hearings for several months. Even after being presented with both AB’s and the paternal
grandmother’s testimony that proper care and custody was available for AIDB during AB’s
incarceration, petitioner’s efforts still did not include consideration of a guardianship or
placement with one of AB’s willing relatives. Accordingly, the trial court clearly erred by
failing to recognize that DHHS’s efforts were indeed insufficient to support termination.
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Additionally, we conclude that, even if reasonable reunification efforts were not required
in this case, the trial court erred by finding clear and convincing evidence to terminate AB’s
parental rights.7 Again, the court terminated AB’s parental rights under MCL 712A.19b(3)(g),
(h), and (j). The trial court found that that those statutory grounds were established based on
AB’s “criminality, incarceration, and failure to provide care and custody.” However, this Court
has previously held that a parent’s present or past inability to provide care because of
incarceration is not decisive. Mason, 486 Mich. at 165. Rather, the trial court must evaluate
“whether respondent could care for his children in the future, either personally or through his
relatives.” Id. Here, before terminating AB’s parental rights, the trial court wholly failed to
consider whether AB could provide that care through his mother, nor is there any indication that
DHHS made any efforts to determine whether such a placement would be appropriate.
Furthermore, this Court has established that incarceration alone does not justify
termination under MCL 712A.19b(3)(j); rather, the court must consider the likelihood of harm if
the child was returned to the parent’s home after the parent’s release. In re Pops, 315 Mich. App.
590, 600; 890 NW2d 902 (2016). The trial court cannot merely assume that the child is at risk in
his or her parent’s care. Rood, 483 Mich. at 115. Here, the trial court appeared to suggest that
the child was at risk solely because, as a result of AB’s incarceration, the child resided with
respondent-mother and KS. However, there was no evidence that any such risk would remain
after AB’s release, and, arguably, that risk would not remain following the trial court’s
termination of respondent-mother’s parental rights.
Moreover, “just as incarceration alone does not constitute grounds for termination, a
criminal history alone does not justify termination.” Mason, 486 Mich. at 165. AB’s criminal
history did not involve harm to minors, and no evidence was presented that his criminality would
present a risk to his child either presently or in the future. Consequently, AB’s “criminality” was
an insufficient basis to establish statutory grounds for termination of his parental rights.
Finally, although there was no guarantee that AB would be eligible for parole on his
earliest release date, January 5, 2019, there was no clear or convincing evidence presented that
he would not. Given that AB attempted to provide care by placing his child with a relative and
given that his earliest release date was fewer than two years away, we are left with a definite and
firm conviction that the trial court clearly erred by finding that termination was proper under
MCL 712A.19b(3)(g), (h), and (j).
Having so determined, we decline to address AB’s additional argument that termination
of his parental rights was not in AIDB’s best interests. Instead, we vacate the trial court’s order
terminating AB’s parental rights and remand to the trial court for further proceedings.
7
Petitioner contends that on appeal AB did not challenge the court’s findings that there were
statutory grounds for termination. Yet, under MCR 7.216(A)(7), we have the authority to “enter
any judgment or order or grant further or different relief as the case may require.” Accordingly,
we will review this issue.
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IV. BEST INTERESTS
A. STANDARD OF REVIEW
We review the trial court’s determination of best interests for clear error. In re
Olive/Metts, 297 Mich. App. 35, 40; 823 NW2d 144 (2012).
B. ANALYSIS
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can terminate parental rights.” Id. When
considering best interests, the focus is on the child, not the parent. In re Moss, 301 Mich. App. 76,
87; 836 NW2d 182 (2013). “[W]hether termination of parental rights is in the best interests of
the child must be proved by a preponderance of the evidence.” Id. at 90. “The trial court should
weigh all the evidence available to determine the child’s best interests.” In re White, 303 Mich
App 701, 713; 846 NW2d 61 (2014). The trial court may consider such factors as “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 . . . .” Olive/Metts, 297
Mich. App. at 41-42 (citations omitted). The trial court may also consider the likelihood that “the
child could be returned to [the] parent’s home within the foreseeable future, if at all.” Frey, 297
Mich. App. at 248-249.
1. DOCKET NO. 342833
KS argues that the trial court erred by finding that termination of his parental rights was
in the children’s best interests because he had no history of abusive behavior towards others, he
is hardworking, and he is responsible. KS also contends that he had no prior contact with Child
Protective Services (CPS). However, although KS had no substantiated cases with CPS, the
petition indicates that KS had been previously investigated by CPS for physical abuse of another
woman and her children; therefore, his claim that there was no prior contact is not necessarily
accurate. Furthermore, while his ability to support his family could impact the court’s
consideration of KS’s parenting ability, other than KS’s own testimony that he worked to
maintain the family, there is nothing in the record to corroborate that he was hardworking and
responsible. Finally, to the extent that the record does establish that KS was actively involved in
the care of his children, the evidence also supports a finding that KS’s care may have played a
significant role in PES’s injuries, which weighs negatively against KS.
KS also asserts that he had a long history of being a loving, safe father to KMS and
KSMS, that KMS and KSMS enjoyed a strong bond with him, and he provided permanency and
stability for them in addition to their material and emotional needs. However, among a “wide
variety of factors,” the strength of the bond between the child and the parent is only one factor
for the court to consider. See White, 303 Mich. App. at 714. KS stated that he loved PES and had
a special bond with him; however, that bond was clearly insufficient to prevent KS’s abuse of
PES, and there is no indication that a strong bond would be sufficient to prevent harm to KSMS
and KMS.
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KS argues that the children are already in the primary care of their non-respondent
mother and that termination is therefore not necessary. However, it is permissible to terminate
the rights of a parent while the children are safely living elsewhere. See In Re Medina, 317 Mich
App 219, 233-235; 894 NW2d 653 (2016). Indeed, whenever the state is concerned that a parent
should not be entrusted with the care and custody of his or her children, “the state has the
authority—and the responsibility—to protect the children’s safety and well-being . . . .” In re
Sanders, 495 Mich. 394, 421-422; 852 NW2d 524 (2014). Thus, the fact that the children were
safely living with their mother does not detract from the danger KS would pose if they were
returned to his care.
The trial court also properly considered the clinic’s recommendation that the children’s
best interests did not include reunification with KS. The use of experts in family care and
psychology is well established in termination of parental rights cases. See In re Zelzack, 180
Mich. App. 117, 127; 446 NW2d 588 (1989). Psychological evaluations of a parent are relevant
and probative of the person’s future ability to parent. In re Johnson, 142 Mich. App. 764, 766;
371 NW2d 446 (1985). According to the clinician, KS’s failure to obtain medical attention
following PES’s first fall indicated his “poor judgment and decision making skills.” Further, the
clinician noted that KS’s frustration and impulsiveness may have contributed to his actions on
March 14, 2017. Accordingly, the trial court did not clearly err by finding that termination of
KS’s parental rights was in the children’s best interests.
2. DOCKET NO. 342837
Respondent-mother argues that the trial court erred by finding that termination of her
parental rights was in the children’s best interests because she successfully raised them for four
years and the children were extremely bonded to her. Again, however, the strength of the bond
between the child and the parent is only one factor for the court to consider. White, 303 Mich
App at 714. Here, the parent-child bond was insufficient to protect PES from harm, so it is
reasonable to infer that respondent-mother’s bond to her older children would be sufficient to
protect them from harm. This is particularly true given that respondent-mother denied any
potential risk to her children from her continued relationship with KS. During the pendency of
the proceedings, respondent-mother did not show an appreciation for KS’s role in PES’s injuries.
The clinician found that her failure to internalize the potential that KS abused PES reflected a
poor prognosis for reunification. The clinician also noted that respondent-mother was
“immature” and gave impulsive responses that reflected that she lacked “the appropriate
understanding, judgment and insight regarding the severity and importance of proper safety or
need to protect.”
Respondent-mother argues that her successful parenting-time visits weigh against
termination. Respondent-mother’s parenting time with AIDB and JMM was successful and
appropriate; however, at the time of termination, it was clear that PES suffered significant
unexplained injuries. The foster care worker stated that although respondent-mother could
benefit from some services, there were no services to address respondent-mother’s failure to take
responsibility for PES’s injuries. Although the trial court could not determine whether
respondent-mother contributed to the injuries, it could reasonably conclude that she either caused
the injuries or failed to protect PES from injuries. In re Ellis, 294 Mich. App. 30. This finding,
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coupled with PES’s unexplained injuries, supports the trial court’s conclusion that termination of
respondent-mother’s parental rights was in the children’s best interests.
Respondent-mother next asserts that the children’s placement with relatives weighs
against termination of her parental rights and that guardianship could be considered as an
alternative to termination. Yet, the trial court recognized and discussed the children’s placement
with relatives and found that the children’s need for finality and stability outweighed the parents’
desire to maintain custody of their children. Further, the fact that the children were bonded with
each other does not support a finding that the children should be returned to her care, especially
when considering that, although the children were living apart, they were still able to visit
together.
Respondent-mother also contends that the trial court erred because the record does not
indicate whether PES died from his injuries or any other possible cause. But the reason for
PES’s death is not dispositive. The trial court found that KS and respondent-mother were
“hiding the truth as to the abuse and neglect” that occurred to PES. The court also found that the
parents “demonstrated that they are dishonest and unfit to parent their children. And it is
unlikely that they will become fit in any reasonable period of time.” MCR 2.613(C) states that
regard is to be given to the special opportunity of the trial court to judge the credibility of the
witnesses who appeared before it. Accordingly, giving deference to the trial court’s
determination about respondent-mother’s credibility, we affirm the trial court’s finding that
termination of respondent-mother’s parental rights was in the children’s best interests.
V. CONCLUSION
For the reasons stated above, we affirm the trial court’s termination of KS’s and
respondent-mother’s parental rights in Docket Nos. 342833 and 342837. However, we vacate
the trial court’s order terminating AB’s parental rights in Docket No. 342835 and remand to the
trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ David H. Sawyer
/s/ Jane E. Markey
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