in Re Imp Minor ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re IMP, Minor. September 24, 2020
No. 353024
Macomb Circuit Court
Family Division
LC No. 2017-000167-NA
Before: RIORDAN, P.J., and O’BRIEN and SWARTZLE, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating his parental rights to his
minor son, IMP, pursuant to MCL 712A.19b(3)(b)(i), (g), (j), and (k)(iii). We affirm.
I. FACTS
Children’s Protective Services (CPS) was contacted after IMP, then three months old, was
treated at a hospital for a broken arm. Based on the nature of the injury, hospital staff believed the
injury was caused by abuse. At the time of the injury, IMP was at home with respondent and
IMP’s mother was at work.
Respondent admitted that he broke IMP’s arm, but maintained that it was an accident.
Earlier that day, respondent drove IMP’s mother to work with IMP in the car. When respondent
returned home with IMP, he left IMP in his car seat on the floor next to the couch. Respondent
fell asleep on the couch and woke up when IMP screamed. Respondent claims he fell off the couch
and onto IMP’s arm, which was hanging over the side of the car seat. Respondent texted IMP’s
mother and told her about IMP’s scream and subsequent crying, but he did not tell her what caused
IMP to scream. IMP eventually quieted down and fell asleep. Respondent did not obtain medical
treatment for IMP. IMP’s mother knew something was wrong because IMP cried when she
attempted to take him out of the car seat after respondent picked her up from work several hours
later. IMP’s mother took IMP to the pediatrician, who told her to take IMP to the hospital. There,
the staff found IMP’s radius and ulna bones of his right arm were broken. IMP remained in the
hospital for a week.
After the discovery of IMP’s injury, respondent was charged criminally and pleaded no
contest to third-degree child abuse. Additionally, the instant petition was filed by the Department
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of Health and Human Services (DHHS) for the court to exercise jurisdiction over IMP, order
respondent to vacate the home he shared with IMP and IMP’s mother, and terminate respondent’s
parental rights. The court authorized the petition and ordered respondent to vacate the home,
leaving IMP in his mother’s care. Respondent pleaded no contest to the court’s jurisdiction and to
the statutory grounds for termination. The trial court found termination of respondent’s parental
rights to be in IMP’s best interests and terminated respondent’s parental rights. Respondent now
appeals.
II. ANALYSIS
Respondent argues the trial court clearly erred by finding termination of his parental rights
to be in IMP’s best interests. Specifically, he argues the future risk of harm to IMP from physical
abuse was minimal in comparison to the larger risk of harm from IMP losing his father. IMP’s
mother could have received full custody of IMP and respondent could have continued to have
supervised visits, without risk of harm to IMP. We disagree.
We review the trial court’s determination that termination of parental rights is in a child’s
best interests for clear error. In re White, 303 Mich. App. 701, 713; 846 NW2d 61 (2014). A finding
is clearly erroneous if although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been made. In re Mason,
486 Mich. 142, 152; 782 NW2d 747 (2010). Best interests are determined on the basis of the
preponderance of the evidence. In re LaFrance Minors, 306 Mich. App. 713, 733; 858 NW2d 143
(2014). A trial court may consider evidence introduced by any party and consider the evidence on
the whole record to determine whether termination is in a child’s best interests. In re Trejo, 462
Mich. 341, 353; 612 NW2d 407 (2000). To determine whether termination serves a child’s best
interests, the trial court should consider a variety of factors, 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. The trial court may also consider a parent’s history of domestic
violence, the parent’s compliance with his or her case service plan, the parent’s
visitation history with the child, the children’s well-being while in care, and the
possibility of adoption. [White, 303 Mich. App. at 713-714 (quotation marks and
citations omitted).]
During the pendency of this case, respondent completed numerous parts of a proposed
Parent-Agency Agreement (PAA). He completed a parenting class within two months of this case
beginning and entered therapy to treat his anxiety. Respondent obtained employment, housing,
his driver’s license, and a vehicle. For over two years while these proceedings were ongoing,
respondent consistently visited IMP for several hours at least once a week. He arrived on time or
early for his visits and DHHS had no concerns about IMP’s safety or the appropriateness of
respondent’s conduct during those visits.
However, respondent failed to seek immediate medical treatment for IMP after breaking
his arm, and waited several hours for IMP’s mother to get home and take him to the hospital.
During the four months between the two termination hearings, respondent visited IMP only once
and stopped allowing the DHHS designee to supervise his visits because, he contended, the
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designee neglected IMP by chain smoking in her small apartment. Respondent further asserted
that the designee had “a table full of pills she pops” and would fall asleep with cigarettes in her
hand while IMP did whatever he wanted. Yet respondent did not report this supposed neglect to
DHHS or the court, despite knowing the designee occasionally babysat IMP in addition to the
supervised visits with respondent.
According to IMP’s mother, the decision to stop supervising respondent’s visits was made
by the designee because respondent was not interacting with IMP during his visits. Instead,
respondent would spend the time talking about his new girlfriend and the baby they were
expecting. Respondent testified that his failure to maintain regular visits during those four months
was due to scheduling conflicts between himself, IMP’s mother, and the DHHS worker responsible
for supervising visits in the absence of a designee. However, the DHHS worker testified that
respondent made only three unsuccessful attempts to schedule a visit during that time.
Moreover, in another instance, respondent agreed to give the mother of one of his other
five children sole custody of the child they had together, despite knowing she had substance abuse
issues, and he made no effort to protect the child. How a parent treats one child is certainly
probative of how that parent may treat other children. In the Matter of LaFlure, 48 Mich. App. 377,
392; 210 NW2d 482 (1973); see also In re AH, 245 Mich. App. 77, 84; 627 NW2d 33 (2001).
The trial court expressed concern about respondent’s ability to keep IMP safe, and noted
that on three occasions respondent failed to respond to the safety needs of his children: first, he
did not seek medical treatment for IMP after his arm was broken; second, he had not taken any
steps to protect his other child from its substance-abusing mother; and third, he did not report his
concerns about the designee to DHHS or the court. Given these concerns, the fact that IMP’s
mother was providing IMP with a safe and stable environment, and IMP’s need for permanency
and finality, the court found termination to be in IMP’s best interests.
Respondent’s improvements and attempts to maintain a relationship with IMP during these
proceedings are admirable, but the trial court’s concern for IMP’s safety and desire to give IMP
stability are supported by the record, and constitute valid reasons for terminating respondent’s
parental rights. White, 303 Mich. App. at 713-714. Respondent’s argument that supervised visits
could have been continued, apparently indefinitely, is unpersuasive considering the court’s desire
to give IMP stability and finality. Therefore, the trial court’s finding that termination of
respondent’s parental rights was in IMP’s best interests was not clearly erroneous. Mason, 486
Mich. at 152.
III. CONCLUSION
The trial court properly concluded that termination of respondent’s parental rights to IMP
were in IMP’s best interests. Accordingly, we affirm.
/s/ Michael J. Riordan
/s/ Colleen A. O’Brien
/s/ Brock A. Swartzle
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