Opinion
354880
06-24-2021
In re GLASPIE, Minors
UNPUBLISHED
Jackson Circuit Court Family Division LC No. 19-002306-NA
Before: Jansen, P.J., and Ronayne Krause and Gadola, JJ.Per Curiam.
This case arises out of the death of respondent's two-month old child, T.G., on June 11, 2019, resulting from severe physical injuries he sustained on June 8, 2019 while in respondent's care. Respondent argues that the trial court clearly erred when it concluded that terminating his parental rights to his two older children, J.G. (age seven) and J.G. (age four), under MCL 712A.19b(3)(b)(i) (parent caused physical injury of a sibling), (ii) (failure to protect a child from physical injury), (g) (failure to provide proper care or custody), and (j) (child will be harmed if returned to parent), was in the minor children's best interests. We affirm.
We review a trial court's ruling regarding best interests for clear error. In re Schadler, 315 Mich.App. 406, 408; 890 N.W.2d 676 (2016). "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 parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). The focus of the best-interest inquiry is on the child, not the parent. In re Moss, 301 Mich.App. 76, 87; 836 N.W.2d 182 (2013). The trial court may consider various factors when making its determination, including the child's bond to the parent, In re Olive/Metts Minors, 297 Mich.App. 35, 41-4; 823 N.W.2d 144 (2012), the parent's parenting ability, In re Jones, 286 Mich.App. 126, 129-130; 777 N.W.2d 728 (2009), and the child's need for permanency, stability and finality, In re Gillespie, 197 Mich.App. 440, 446-447; 496 N.W.2d 309 (1992). Further, the court may also consider any history of domestic violence and the child's well-being while in care. In re White, 303 Mich.App. 701, 713-714; 846 N.W.2d 61 (2014). The findings need not be extensive; "brief, definite, and pertinent findings and conclusions on contested matters are sufficient." MCR 3.977(I)(1).
The trial court determined that there was clear and convincing evidence to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(b)(i), (ii), (j) and (g), which states:
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, although, in the court's discretion, financially able to do so, 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.
"Once a statutory basis for termination has been shown by clear and convincing evidence, the court must determine whether termination is in the child's best interests." In re LaFrance, 306 Mich.App. 713, 732-733; 858 N.W.2d 143 (2014), citing MCL 712A.19(b)(5)." The focus at the best-interest stage has always been on the child, not the parent." In re Moss, 301 Mich.App. 76, 87; 836 N.W.2d 182 (2013). A trial court should weigh all the evidence available to it when making its best-interest determination. In re Payne/Pumphrey/Forston, 311 Mich.App. 49, 63; 874 N.W.2d 205(2015).
It is well recognized that evidence of how a respondent treats one child is probative of how the respondent would treat another. In re Jackson, 199 Mich.App. 22, 26; 501 N.W.2d 182, 184 (1993). Thus, the trial court did not clearly err when it considered the severity of T.G.'s abuse in making its best-interest determination. In In re Jenks, 281 Mich.App. 514; 760 N.W.2d 297 (2008), this Court concluded that the trial court properly considered the grave nature of a father's criminal sexual conduct involving a half-sibling and the length of his incarceration for that offense when making its best-interest determination.
Respondent argues that his parental rights were terminated because he allegedly murdered T.G. and that the charge has not been proven. However, it is irrelevant that respondent's criminal murder charge has not been resolved. Child protection proceedings are civil in nature and, as correctly noted by the trial court, have a lower standard of proof than criminal proceedings. "The purpose of child protective proceedings is the protection of the child, while criminal cases focus on the determination of the guilt or innocence of the defendant." In re Brock, 442 Mich. 101, 107-108: 499 N.W.2d 752, 756 (1993).
The record supports the trial court's conclusion that respondent horrifically abused two-month old T.G. on June 8, 2019, resulting in his death on June 11, 2019. It was undisputed that when T.G.'s mother brought the infant to respondent's home at approximately 8:00 p.m., the child was conscious and did not have any apparent injuries or breathing difficulties. T.G. was solely in respondent's care until approximately 10:00 p.m. when respondent called 911 and reported that the child had stopped breathing. Respondent later told an attending physician that T.G. drank a small amount from a bottle and then fell asleep. According to respondent, nothing occurred during the next 90 minutes between the time T.G. fell asleep and the point at which he started fussing, would not calm down, and experienced short quick shallow breaths. Respondent initiated CPR, coached by the 911 dispatcher, and later told the investigating detective that he did shake T.G. after the child had stopped breathing.
Three medical experts definitively concluded that T.G. died from trauma so severe that it resulted in immediate signs of injury and loss of consciousness. This plainly rebuts respondent's claim that the child was injured before he came into respondent's care on June 8, 2019. CT scans of T.G.'s head showed injuries that could only have been caused by trauma or shaking, and a skull fracture that could only have been caused by impact. The infant also had retinal hemorrhages definitively consistent with head trauma, as well as 30 to 35 bilateral rib fractures in multiple stages of healing dating as far back as 12 days beforehand and which were not of the type that could have been caused by CPR. Further, the child also had compression fracturing of his back, the left femur was suspicious of injury, and the left fibula showed some signs of injury. All of T.G.'s injuries were the result of physical abuse and abusive head trauma. There was also brain bleeding, caused either by impact or acceleration/deceleration trauma, and not by a genetic structural abnormality. Also, there was testimony that after an abusive incident that involved the types of severe injuries that T.G. had sustained, the child would "present with some form of symptoms almost immediately afterwards," indicating that the event causing the injury had occurred on the evening of June 8, 2019. The forensic pathologist concluded that T.G. had sustained a blunt force trauma to the head, and had been violently shaken or sustained a blunt force trauma with such force as to cause accelartion-decleration retinal hemorrhages. It was determined that T.G. was immediately unconscious and comatose from the extensive blow to his head, that the cause of death was a traumatic head injury from blunt force trauma, and that the death was a homicide.
Another physician testified that T.G. had sustained a blow to the abdomen that had a high degree of specificity for abuse. He concluded that T.G. had been abused at least twice and almost certainly at least three times, including on the night of June 8, 2019. He unequivocally stated that the abuse caused death, and had no doubt that the acute injuries were from extreme, violent, out-of-control shaking.
The record does not support respondent's claim that the child's injuries occurred within a 10 to 14-day time period while the child was not in his care and that no real effort was made to investigate the possibility that T.G. was injured while in his mother's care or the care of others. While there may have been evidence of earlier injuries, the medical evidence was clear that T.G.'s lethal injuries occurred on the evening on June 8, 2019 while he was solely in respondent's care. Respondent had acknowledged to a detective that he was the only one who had been with T.G. between 8:00 and 10:00 p.m. on June 8, 2019. Notably, T.G.'s mother was present during the bench trial and respondent did not avail himself of the opportunity to call her as a witness to testify whether T.G. was or was not in respondent's care during the time frame of the additional abusive episodes.
Respondent contends that the trial court's best-interest determination was clearly erroneous because the children's mother and the paternal grandparents testified that respondent was an amazing father to the children and that they opposed terminating his parental rights. It is undisputed that respondent did not have a criminal record or any prior history of abuse, neglect, aggression, domestic violence, or mental health or substance abuse issues. Moreover, respondent was an active father and appeared to have a bonded relationship with J.G and J.G. However, the trial court did not clearly err in concluding that, despite testimony indicating respondent's appearance of being an ideal father, there was a darker side that flared, seemingly without warning, that resulted in the children's sibling's horrific death. The trial court properly concluded that placing the children in his care was too grave a risk to their safety and that this risk outweighed the children's bond with respondent. That petitioner did not have the children psychologically evaluated, as respondent argues it should have, is of no moment, as it would not have ameliorated the risk.
Lastly, respondent claims that the trial court erred by not expressly addressing the fact that the children were residing with their mother. The trial court did note that the children would remain in their mother's care. Although "a child's placement with relatives weighs against termination," In re Mason, 486 Mich. 142, 164; 782 N.W.2d 747, 758 (2010), MCL 712A.13a(1)(j) defines "relative," and biological mother is not included in the definition. Because the children's biological mother is not a respondent's "relative" for purposes of MCL 712A.19a, the trial court was not required to consider that relative placement. In re Schadler, 315 Mich.App. 406, 413; 890 N.W.2d 676, 679-680 (2016).
Reviewing the whole record, we are not left with a firm conviction that the trial court mistakenly concluded that it was in the children's best interests to terminate respondent's parental rights given that T.G. had been "so horrifically abused," resulting in his death.
Affirmed.
Ronayne Krause, J. (dissenting)
I respectfully dissent. I would vacate the trial court's order terminating respondent's parental rights as premature and insufficiently justified on this record.
I. BACKGROUND
This matter concerns the termination of respondent's parental rights to his two older children, JG and JG, then approximately six and three years old; based on the death of his younger child, TG, then approximately two months old. At approximately 8:00 p.m. on June 8, 2019, TG's mother dropped TG off at respondent's house. TG's mother was TG's primary caregiver, although TG had also been recently cared for by several other individuals, including TG's maternal grandparents or great-grandparents. By all accounts, TG was "fussy" at the time, but not in any other apparent distress. TG's mother had prepared milk for TG, but according to respondent, TG only took a few milliliters before falling asleep. Respondent placed TG in the middle of his bed, sat on the same bed and watched television for half an hour to an hour, and then noticed TG to be in distress. He discovered that TG was short of breath, and then not breathing at all. Respondent called TG's mother, and then just after 10:00 p.m., he called 911. Respondent performed CPR, coached by the dispatcher, until emergency medical services arrived. TG was taken to the hospital, never regained consciousness, and died on June 11, 2019. No other adults were present for the two hours TG was in respondent's care. Inexplicably, although TG's mother was subpoenaed as a witness and showed up to the courtroom, she was not called to testify.
Subsequent medical examination revealed that TG had died of severe trauma to his head, which resulted in a skull fracture and extensive bleeding around his brain. It was also revealed that TG had also sustained extensive non-fatal injuries, including numerous broken ribs, severe spinal injuries that included some nerve necrosis, and possibly fractures to bones in his legs. Some of those injuries were recent; others were in various stages of healing and would have been at least ten to fourteen days old. Furthermore, although some of them could be explained by the performance of CPR, most of them could not have occurred without intentional infliction of extreme violence and would not typically be seen even in an automobile accident. TG also had substantial bruising to his abdomen.
Importantly, two of the prosecution's expert witnesses opined that TG's non-fatal injuries would likely not have been apparent to outside observers, and although they would have been painful, any symptoms of those injuries could have been subtle or easily mistaken for something else. One of the experts opined that the bruising might have been obscured by TG's dark skin. Indeed, TG had been to a wellness exam with his primary care pediatrician only a few days earlier, on June 6, 2019, and the pediatrician apparently noticed nothing amiss. Critically, however, all three of the prosecution's expert witnesses agreed that the fatal injuries, i.e., the severe trauma to TG's head, would have resulted in some degree of immediate symptoms, including difficulty breathing and loss of consciousness.
The trial court concluded that the pediatrician must therefore have been incompetent, a conclusion that I find improper under the circumstances as contrary to the experts' opinions that TG's earlier injuries would not have been outwardly apparent.
The petition to terminate respondent's parental rights to JG and JG was filed immediately upon TG's death pursuant to a mandatory policy by DHHS. Petitioner admitted to having no knowledge of any concrete concerns regarding JG and JG, and provided an evasive non-answer when asked whether that meant the petition was essentially speculative. DHHS had no contact with TG's mother after TG's death because she had no other children. Respondent had no criminal history or CPS history, and he was polite and cooperative. There were no allegations of any abuse or neglect perpetrated by respondent against JG or JG. Indeed, their mother testified that respondent had been present at their births, had been an amazing father since "day one," had never displayed any violent or aggressive behaviors, was supportive and caring, and had strong bonds with the children. Respondent's parents provided similarly glowing descriptions of respondent's parenting of JG and JG. The lawyer-guardian ad litem (LGAL) argued that the evidence was speculative whether respondent perpetrated the abuse against TG, that at a minimum the termination proceedings should be postponed until the conclusion of his ongoing criminal prosecution, and petitioner appeared to be pursuing termination for the purpose of vengeance and punishment rather than protecting JG and JG.
Insofar as I can discern, criminal proceedings against respondent remain pending.
The trial court found the statutory grounds for termination established as noted above, and it found termination to be in JG and JG's best interests, largely citing the fact that TG had been "so horrifically abused." This appeal followed.
II. STANDARD OF REVIEW AND LEGAL STANDARDS
Although respondent argues that the trial court erred in finding it proven that he was the person who inflicted TG's injuries, respondent does not challenge whether statutory grounds for termination were established. Rather, respondent solely argues that termination of his rights to the older children was not in the older children's best interests. "Once a statutory basis for termination has been shown by clear and convincing evidence, the court must determine whether termination is in the child's best interests." In re LaFrance, 306 Mich.App. 713, 732-733; 858 N.W.2d 143 (2014), citing MCL 712A.19(b)(5). "[T]he focus at the best-interest stage has always been on the child, not the parent." In re Moss, 301 Mich.App. 76, 87; 836 N.W.2d 182 (2013). "In assessing whether termination of parental rights is in a child's best interests, the trial court should weigh all evidence available to it." In re Payne/Pumphrey/Forston, 311 Mich.App. 49, 63; 874 N.W.2d 205(2015). "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich.App. at 90. The findings need not be extensive; "brief, definite, and pertinent findings and conclusions on contested matters are sufficient." MCR 3.977(I)(1).
We review a trial court's ruling regarding best interests for clear error. In re Schadler, 315 Mich.App. 406, 408; 890 N.W.2d 676 (2016). "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." In re BZ, 264 Mich.App. 286, 296-297; 690 N.W.2d 505 (2004). A finding is clearly erroneous if it is so lacking in evidentiary support that this court is definitely and firmly convinced the trial court made a mistake despite that deference, but the clear error standard also recognizes that the evidence may have supported more than one proper conclusion. See Hill v City of Warren, 276 Mich.App. 299, 308-309; 740 N.W.2d 706 (2007). Clear error cannot be founded on mere doubt or ambiguity, especially where the credibility or demeanor of anyone who appeared before the trial court is relevant. See McGonegal v McGonegal, 46 Mich. 66, 67; 8 N.W. 724 (1881). However, to the extent credibility is not at issue, somewhat less deference to the trial court is required. See Sparks v Sparks, 440 Mich. 141, 146-148; 485 N.W.2d 893 (1992).
III. ANALYSIS
Notably, there is no evidence whatsoever of who inflicted TG's non-fatal injuries. TG's mother was TG's primary caregiver, along with TG's maternal grandparents and great-grandparents, and possibly other individuals. Importantly, the evidence overwhelmingly showed that TG's non-fatal injuries would not have been outwardly apparent, even to medical experts. The evidence also suggests that respondent and TG's mother did not share much, if any, simultaneous parenting of TG. Therefore, anyone who had not inflicted those injuries could not be expected to know about them, much less act on them or take steps to prevent further such injuries. This Court has upheld terminations of parental rights as to both parents, despite a lack of evidence of which parent perpetrated abuse against a child, where the parents were joint caretakers and, even if only one of the parents committed the abuse, the other must have known about the abuse and could have prevented that abuse. In re VanDalen, 293 Mich.App. 120, 139-141; 809 N.W.2d 412 (2011); In re Ellis, 294 Mich.App. 30, 31, 33-36; 817 N.W.2d 111 (2011). The facts in this matter differ drastically. Here, the evidence is that if TG's non-fatal injuries were inflicted by respondent, then TG's mother would have no reason to know of them; conversely, if they were inflicted by TG's mother, then respondent would have no reason to know of them. Indeed, if the injuries were inflicted by one of the grandparents or other caretakers, then neither respondent nor TG's mother would necessarily have had any reason to know of them.
In short, the evidence is insufficient to find that respondent was the person who inflicted TG's non-fatal injuries, and it was clearly erroneous to find, on this record, that respondent did inflict those injuries.
Conversely, the medical experts uniformly agreed that TG's fatal injuries would have resulted in immediate symptoms, including loss of consciousness and shortness of breath. However, I am unpersuaded that respondent necessarily must have therefore inflicted TG's fatal injuries. For example, it is not clear whether those symptoms would start with any particular degree of severity, it is not clear what it meant for TG to be "fussy," it is not clear whether it was unusual for TG to take only a few milliliters of milk, it is not clear whether TG's other injuries might make it expected for TG to appear uncomfortable, and it is not clear whether two hours is a long or a short time for symptoms to build in severity. Thus, it is possible that TG received his fatal injuries shortly before being dropped off with respondent. However, as noted, clear error cannot be founded upon mere doubt, or upon the mere possibility that another conclusion would have also been supportable by the evidence. On this record, I am therefore unable to conclude that I am definitely and firmly convinced that the trial court made a mistake in finding that TG received his fatal injuries while in respondent's care. Because there were no other adults present at that time, there is more than a mere possibility that respondent inflicted the injuries.
Nevertheless, "[t]he purpose of child protective proceedings is the protection of the child, while criminal cases focus on the determination of the guilt or innocence of the defendant." In re Brock, 442 Mich. 101, 107-108; 499 N.W.2d 752, 756 (1993). Thus, the fact that respondent was found to have committed a horrific act of abuse does not, standing alone, establish that he poses a danger to JG or JG. It is well-established that a parent's treatment of one child can be indicative of how that parent will treat other children, but it is equally well-established that such evidence is not conclusive, and its probative value may be significantly weakened where the children are dissimilarly situated. In re Kellogg, 331 Mich.App. 249, 259-261; 952 N.W.2d 544 (2020); Matter of Kantola, 139 Mich.App. 23, 28-29; 361 N.W.2d 20 (1984). The trial court's focus on the horrifying nature of TG's injuries was not unwarranted, but the trial court's ruling seems to have missed the essential question of whether, if respondent did indeed inflict TG's injuries, respondent was in any way dangerous to JG and JG.
Respondent contends that the trial court's best-interest determination was clearly erroneous because the children's mother and the paternal grandparents testified that respondent was an amazing father to the children and that they opposed terminating his parental rights. It is undisputed that respondent did not have a criminal record or any prior history of abuse, neglect, aggression, domestic violence, or mental health or substances abuse issues. Moreover, respondent was an active father and appeared to have a bonded relationship with JG and JG. The trial court was unimpressed, finding that, despite testimony indicating respondent's appearance of being an ideal father, there was a darker side that flared, seemingly without warning, that resulted in the children's sibling's horrific death. The trial court concluded that the placing the children in his care was too grave a risk to their safety and that this risk outweighed the children's bond with respondent.
The trial court's ruling thus failed to consider that JG and JG are differently situated from TG. I am particularly concerned that the trial court also ignored the LGAL's pleas not to terminate respondent's parental rights. The trial court appears to have entirely ignored the possibility that respondent simply treated his older children differently; perhaps due to their ages, perhaps due to his relationships with their different mothers, perhaps due to simple favoritism, or perhaps due to any number of other factors. I also note that the petition in this matter was automatically filed pursuant to policy, and petitioner did not offer a helpful response when asked whether it was essentially speculative. JG and JG are no longer infants, and for whatever reason, respondent was apparently involved in their care when they were infants and did not harm them at that time. The trial court also unambiguously disregarded the possibility of psychological harm to JG and JG, nor did it attempt to assess the likelihood that respondent might physically harm them.
After reviewing the record as a whole, I find the trial court's finding that termination was in JG and JG's best interests to be insufficiently supported. Although I cannot find clear error in the trial court's finding that respondent committed the injuries that caused TG's death, the record does not support a finding of who committed TG's older injuries. Importantly, the trial court erred by failing to analyze the likelihood that respondent would harm JG and JG, and by failing to balance that likelihood against the likelihood that JG and JG would be harmed by the termination of respondent's parental rights. I further share the LGAL's suspicion that the petition in this matter seeks to punish respondent more than to protect JG and JG. The fact that TG's injuries were horrifying is certainly not irrelevant, nor is it disputed; but standing alone, it is not sufficient. I would not hold that termination is necessarily improper, because such a conclusion would be equally premature. Rather, I would hold only that on this record and on the trial court's reasoning, it has not been adequately established that termination was in the best interests of JG and JG. I would remand until the criminal case against respondent is resolved.