Opinion
No. 334946 No. 334947
04-25-2017
In re AMOS-METZGAR, Minors.
UNPUBLISHED Calhoun Circuit Court Family Division
LC No. 2014-001021-NA Before: SAWYER, P.J., and SAAD and RIORDAN, JJ. PER CURIAM.
Respondent-mother in Docket No. 334946 and respondent-father in Docket No. 334947 appeal the trial court's order that terminated their parental rights to the minor children, ZAM and AAM, under MCL 712A.19b(3)(b)(i), (b)(ii), (c)(i), (g), and (j). For the reasons provided below, we affirm.
In April 2014, respondents brought AAM to her two-month well-child examination. The doctor discovered that AAM had a broken arm. He instructed respondents to take AAM to the emergency room. X-rays taken at the emergency room revealed that AAM had 52 fractures in various stages of healing. Though a no-contest plea, respondent-father was convicted of third-degree child abuse, MCL750.136b(5).
I. CONSTITUTIONAL RIGHT TO PARENT THE CHILDREN
On appeal, respondents argue that, because they had a constitutional right to parent the minor children, this Court must reverse the order that terminated their parental rights. However, this argument fails to appreciate the fact that, while a parent has a due process right to parent one's children, the right is not absolute. In re Sanders, 495 Mich 394, 409; 852 NW2d 524 (2014). The state has a legitimate interest to protect the moral, emotional, mental, and physical welfare of children. Id. at 409-410. When the state seeks to terminate parental rights, it must provide the parent with fundamentally fair procedures. Santosky v Kramer, 455 US 745, 753-754; 102 S Ct 1388; 71 L Ed 2d 599 (1982). "In Michigan, procedures to ensure due process to a parent facing removal of [her] child from the home or termination of [her] parental rights are set forth by statute, court rule, DH[H]S policies and procedures, and various federal laws . . . ." In re Rood, 483 Mich 73, 93; 763 NW2d 587 (2009). Respondents make no argument that they were not provided fundamentally fair procedures. Regardless, after statutory grounds for termination are established, "the liberty interest of the parent no longer includes the right to custody and control of the children." In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). As will be discussed below, the trial court did not clearly err when it found that termination of respondents' rights to the minor children was proper. Accordingly, we decline to reverse the trial court's order that terminated respondents' parental rights on the basis that they had a constitutional right to parent the minor children.
II. STATUTORY GROUNDS FOR TERMINATION
Before a court can terminate a parent's rights to his or her child, the court must find by clear and convincing evidence that one or more of the statutory grounds for termination listed in MCL 712A.19b(3) exists. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). This Court reviews for clear error the trial court's determination regarding the statutory grounds for termination. MCR 3.977(K); In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). "A finding of fact is clearly erroneous where the reviewing court is left with a definite and firm conviction that a mistake has been made." In re Terry, 240 Mich App 14, 22; 610 NW2d 563 (2000). "When reviewing the trial court's findings of fact, this Court accords deference to the special opportunity of the trial court to judge the credibility of the witnesses. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005).
The trial court terminated parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), (c)(i), (g), and (j), which provide:
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:
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(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.
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(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
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(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 or custody within a reasonable time considering the child's age.
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(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.
A trial court may terminate parental rights if "[t]he child or a sibling of the child has suffered physical injury or physical or sexual abuse" and "[t]he 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" or "[t]he 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." MCL 712A.19b(3)(b)(i), (ii). And under MCL 712A.19b(3)(j), a trial court may terminate parental rights if "[t]here 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." Evidence of how a parent treats one child is evidence of how the parent may treat another child. In re Hudson, 294 Mich App 261, 266; 817 NW2d 115 (2011).
Here, respondents claim that they did not abuse AAM and any injuries that they did cause were accidental. The case of In re Ellis, 294 Mich App 30; 817 NW2d 111 (2011), is instructive. In In re Ellis, the minor child, when he was two months of age, had multiple skull fractures and bleeding inside the skull. He also had fractures to his ribs, arms, and legs. The respondents, the minor child's parents, were unable to provide an explanation for the injuries, but an expert in child abuse concluded that the injuries were the result of physical abuse. The trial court terminated the respondents' parental rights, in part, under §§ (3)(b)(i), (b)(ii), and (j). On appeal, the respondents argued that the trial court erred when it terminated their parental rights because it was impossible to determine which of them abused the minor child. This Court disagreed and held that the trial court properly determined that at least one of the respondents abused the child and at least one of the respondents failed to prevent it; it did not matter who did which. Id. at 35. Thus, according to this Court, termination of parental rights under §§ (3)(b)(i), (b)(ii), and (j) is permissible in the absence of definitive evidence regarding the identity of the perpetrator where the evidence showed that the respondent or respondents must have caused or failed to prevent the child's injuries. Id. at 35-36.
As in In re Ellis, it was not proven which of the two respondents (or both) abused AAM and which abuse actually led to AAM's voluminous injuries. But as the Court stated, it does not matter. Here, regardless of whether mother or father physically caused AAM's injuries, the other respondent failed to prevent the injuries. Accordingly, consistent with In re Ellis, termination of respondents' parental rights is proper for the abuser under § (3)(b)(i), proper for the one who failed to prevent the abuse under § (3)(b)(ii), and proper for both under § (3)(j).
Because only one statutory ground need by proved by clear and convincing evidence to support an order terminating parental rights, In re Frey, 297 Mich App 242, 244; 824 NW2d 569 (2012), we need not address the remaining statutory grounds relied on by the trial court.
III. BEST-INTERESTS DETERMINATION
Respondent-mother argues that the trial court erred when it found that termination of her parental rights was in the best interests of the minor children. We review for clear error a trial court's decision regarding the best interests of a child. In re Olive/Metts, 297 Mich App at 40.
"If the court finds that there are grounds for termination and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights . . . ." MCL 712A.19b(5). Unlike the findings related to a statutory ground to support termination of parental rights, a best-interest finding need only be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The focus of the best-interest inquiry is on the child, not the parent. Id. at 87. A trial court should weigh all the evidence available to it. In re Payne/Pumphrey/Forston, 311 Mich App 49, 63; 874 NW2d 205 (2015). Factors that a trial court may consider are the child's bond to the parent; the parent's parenting ability and compliance with the case service plan; the child's need for permanency, stability, and finality; the advantages of a foster home over the parent's home; the child's well-being while in care; and the possibility of adoption. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014).
Respondent-mother's argument that the trial court failed to consider any relevant best-interest factors is not supported by the record. The trial court considered numerous factors, and its finding that termination of respondent-mother's parental rights was in the best interests of the minor children was not clearly erroneous. While in respondent-mother's care, AAM suffered 52 broken bones. Respondent-mother refused to acknowledge that either she or respondent-father physically abused AAM, and she took no steps to ensure that abuse would not happen in the future. The minor children have been living in a placement home for over two years and are happy, doing well, and safe. In fact, the amount of time spent living in the placement home is longer than the amount of time the children lived with respondent-mother. The minor children have developed a bond and a sense of permanency with the placement family, and the family is willing to adopt the children. Thus, the court did not clearly err when it found that a preponderance of the evidence showed that termination was in the best interests of the children.
Affirmed.
/s/ David H. Sawyer
/s/ Henry William Saad
/s/ Michael J. Riordan