Opinion
No. 352570
11-19-2020
In re HACKETT, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Saginaw Circuit Court Family Division
LC No. 19-035868-NA Before: JANSEN, P.J., and FORT HOOD and RONAYNE KRAUSE, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor children, EPH and ADH, under MCL 712A.19b(3)(b)(i) (parent's act caused physical injury or abuse to child or sibling); (b)(ii) (failure to prevent physical injury or abuse to child or sibling); (i) (parental rights to sibling terminated due to serious and chronic neglect or abuse); (j) (reasonable likelihood of harm if returned to the parent); (k)(iv) (parent abused child or sibling and abuse included loss or serious impairment of an organ or limb); (k)(vi) (parent abused child or sibling and abuse included murder or attempted murder); and (l) (rights to another child were voluntarily terminated under certain conditions involving abuse and parent has failed to rectify the conditions that led to the prior termination). We affirm.
During the course of these proceedings, the rights of the children's father were also terminated; however, he is not a party to this appeal. Accordingly, the term "respondent" as used in this opinion refers only to respondent-mother.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In 2019, the Department of Health and Human Services (DHHS) filed a petition requesting EPH and ADH's removal from respondent's home on the basis that it was contrary to their welfare to remain in the home because the children's sibling, RS, had been severely physically abused while in the care of respondent-mother and respondent-father. EPH and ADH were removed from respondent-mother and respondent-father's home in May 2019 and placed with their paternal grandmother.
In October 2019, the DHHS filed an amended petition requesting the termination of respondent's parental rights to EPH and ADH. According to petitioner, RS had been diagnosed with a subdural hematoma and retinal hemorrhaging on August 22, 2018, which were most likely caused by blunt-force trauma in the form of Shaken Baby Syndrome, and respondent-mother and respondent-father had been charged with child abuse and lying to a police officers after the investigation into RS's injuries. Petitioner sought to terminate respondent's parental rights under MCL 712A.19b(3)(b)(i) and (ii); (g); (i); (j); (k)(iii), (iv), and (v); and (l)(iii), (iv), and (v).
In December 2019, the trial court received a second amended petition for purposes of a plea for jurisdiction, and respondent admitted to the petition in part and pleaded no contest in part during the adjudicative phase of the hearing. Respondent-mother admitted that RS had been taken to Mid-Michigan Medical Center on approximately August 22, 2018, after he displayed seizure-like activity, and that he was diagnosed with a subdural hematoma. Respondent admitted that she pleaded guilty to attempted fourth-degree child abuse on November 4, 2019, that she was sentenced to serve six months' imprisonment and 36 months' probation, and that as a term of probation she was not to have contact with minors under the age of 17, including her own children, unless approved by a field agent.
The trial court found by a preponderance of the evidence that there were statutory grounds to exercise jurisdiction over the children. Specifically, the court found that the parent or other person legally responsible for the care and maintenance of the children, when able to do so, neglected or refused to provide proper or necessary support, education, medical, surgical, or other necessary care for the children's health or morals, that he or she subjected the children to a substantial risk of harm to their well-being or abandoned the children without proper custody or guardianship, and that the home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of the parent, guardian, or other custodian, was an unfit place for the children to live. The court then proceeded to the dispositional hearing.
Respondent testified that on August 22, 2018, between midnight and 1:00 a.m., RS fell off the changing table while her back was turned and that RS subsequently had a seizure. Respondent testified that she took RS to Mid-Michigan Medical Center; however, she did not inform anyone that RS fell from the changing table. Respondent also testified that RS had an injury to his left arm before August 22, 2018, and that respondent-father had fallen with RS on approximately August 12, 2018. Respondent testified that she had videotaped RS's seizure with her cell phone. However, her phone was seized by a detective at the hospital on August 22, 2018, whereupon she provided respondent-father with her password, and respondent-father promptly performed a remote reset of the phone, which deleted its contents, including the video.
Respondent testified that she pleaded guilty to fourth-degree child abuse as a result of the August 22, 2018 incident and had been incarcerated since November 4, 2019. In a separate case, DHHS sought to terminate respondent's parental rights to RS on the basis of the August 2018 investigation into RS's injuries. Respondent voluntarily relinquished her parental rights to RS in August 2019.
Dr. Carla Parkin-Joseph testified that she examined RS in September 2018. There was no dispute that RS had suffered injuries that included a rib facture, a subdural hematoma, and retinal hemorrhages, and that he displayed seizure-like symptoms. Dr. Parkin-Joseph testified that RS's injuries were likely a result of nonaccidental trauma or physical abuse and that his symptoms were "highly concerning for abusive head trauma or physical abuse." Dr. Parkin-Joseph testified that it was "very highly unlikely" that RS caused the subdual hematoma and she did not believe that RS's injuries were caused by a fall. Dr. Parkin-Joseph testified that she believed RS had suffered a severe physical injury and that a subdural hematoma, seizures, and hemorrhaging were serious injuries that could have been life-threatening; however, she believed there was a low likelihood that RS would suffer loss or serious impairment of any of his bodily functions due to his injuries.
The foster care caseworker for RS, EPH, and ADH testified that he believed it was in the best interests of EPH and ADH for the court to terminate respondent's parental rights. The caseworker testified that EPH and ADH were bonded with their relative caretaker, their paternal grandmother, and that their grandmother was willing to adopt them. The caseworker testified that the grandmother provided permanency, structure, and stability that the children needed. Further, he testified that respondent had a "very limited bond" with EPH and ADH. The caseworker also testified that there were ongoing concerns regarding safety because neither respondent informed him that RS fell off the changing table. He also testified that he and DHHS did not believe that any services would rectify the fact that respondent-mother was convicted of child abuse.
Before the termination hearing, respondent-mother and respondent-father pleaded guilty to criminal charges. During the plea hearing, respondent-mother testified that she left RS unattended on a changing table on August 22, 2018, creating an unreasonable risk of bodily injury, and that RS had fallen from the changing table. However, during the same plea proceeding, respondent-father testified that RS had fallen from the changing table while he was in the shower and that respondent-mother was outside smoking. Respondent-father also testified that he was RS's "stepdad" and that he had often watched RS.
The trial court concluded that statutory grounds for termination in MCL 712A.19b(3)(b)(i) and (ii), (i), (j), (k), and (l) had been established by clear and convincing evidence. The trial court also concluded that the evidence established that termination of respondent's parental rights was in the best interests of the children. Accordingly, the trial court entered an order terminating respondent's parental rights.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Respondent argues that she was deprived of effective assistance of counsel because her trial counsel failed to call expert witnesses to refute the testimony of Dr. Parkin-Joseph. We disagree.
Whether a party has been deprived of effective assistance of counsel is "a mixed question of law and fact[.]" People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). "A judge must first find the facts, and then must decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel." People v LeBlanc, 465 Mich 575, 579; 640 NW2d (2002). We review the trial court's factual findings for clear error, while questions of constitutional law are reviewed de novo. Id. Here, the trial court did not hold an evidentiary hearing; therefore, our review is limited to the facts in the existing record. People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). However, although parties generally may not expand the record on appeal, we will review additional materials supplied by a party for the purpose of considering whether it would be appropriate to remand the matter for an evidentiary hearing. See People v Moore, 493 Mich 933, 933; 825 NW2d 580 (2013). We may also consider expanding the record in the interests of justice. See People v Parkmallory, 328 Mich App 289, 293-294; 936 NW2d 877 (2019), vacated on other grounds and implicitly aff'd in relevant part 505 Mich 866 (2019).
Our Supreme Court vacated this Court's opinion in Parkmallory on the basis of the record as expanded by this Court. By necessary inference, our Supreme Court therefore approved of this Court's expansion of the record in that matter. Peremptory orders of our Supreme Court are binding precedent to the extent they can be comprehended, even if only by reference to another opinion. Woodring v Phoenix, 325 Mich App 108, 115; 923 NW2d 607 (2018).
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. To establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. A defendant must also show that the result that did occur was fundamentally unfair or unreliable. [People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012) (citations omitted).]"A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Counsel's assistance is presumed to be effective and "decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy[.]" People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (quotation marks, brackets, and citation omitted).
Respondent has not provided any support for the implicit proposition that any experts called by her trial counsel would have been able to refute the testimony of Dr. Parkin-Joseph. Rather, respondent argues only that the trial court "may have come to different conclusions" had it been presented with favorable expert testimony. Respondent has not provided us with any evidence or affidavits to suggest that a different medical expert would have come to a different conclusion regarding RS's injuries. Thus, respondent only provides us with an unsupported hypothetical, which is not sufficient to present an argument that counsel committed an error, let alone an error that would have affected the outcome. See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Failing to advance a meritless argument does not constitute ineffective assistance of counsel. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Accordingly, respondent has not established that the decision to not call an expert fell below "an objective standard of reasonableness under prevailing professional norms" and that the result of the proceeding would have been different but for counsel's alleged errors. Lockett, 295 Mich App at 187.
III. STATUTORY GROUNDS
Next, respondent argues that the trial court erred by finding a statutory ground for termination. We disagree.
This Court reviews for clear error a trial court's factual findings following a termination hearing. A finding is clearly erroneous if the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. However, this Court . . . reviews de novo whether the trial court properly selected, interpreted, and applied a statute. [In re Gonzales/Martinez, 310 Mich App 426, 430-431; 871 NW2d 868 (2015) (quotation marks, citations, and brackets omitted; ellipsis in original).]We must give "due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004). If we conclude that the trial court did not clearly err by finding one statutory ground for termination, we need not address any additional grounds. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
We conclude that the trial court did not err by concluding that the statutory grounds found in MCL 712A.19b(3)(b)(i) and (ii) were proven by clear and convincing evidence.
MCL 712A.19b(3)(b) provides, in part, that the court may terminate a parent's parental rights to a child if the court finds by clear and convincing evidence that
[t]he child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:The totality of the evidence in this case supports the trial court's findings that respondent either physically abused or failed to protect RS, who was the sibling of EPH and ADH, and that there was a reasonable likelihood that EPH and AHD would suffer injury or abuse in the foreseeable future if placed in the parent's home.
(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.
There was no dispute that EPH and ADH were siblings of RS. There was also no dispute that RS had suffered injuries, including a rib facture, a subdural hematoma, and retinal hemorrhages, and displayed seizure-like symptoms while in the care of respondent-mother and respondent-father.
Respondent argues that the trial court clearly erred when it found that there was a reasonable likelihood that the children would suffer injury or abuse in the foreseeable future if placed in respondent-mother's home. Respondent first argues that, if the court believed that RS's injuries occurred because he fell off the changing table, services could have rectified those conditions and she could have shown that she is able to provide a safe environment to the children. Alternatively, respondent-mother argues that the evidence supports a finding that RS's "suspicious injuries" occurred while he was in respondent-father's care and that had she separated from respondent-father, the threat to the children may have been eliminated.
We have held that "termination of parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), (j), and (k)(iii) is permissible even in the absence of definitive evidence regarding the identity of the perpetrator when the evidence does show that the respondent or respondents must have either caused or failed to prevent the child's injuries." In re Ellis, 294 Mich App 30, 35-36; 817 NW2d 111 (2011). In In re Ellis, we concluded that the trial court did not clearly err when it found the statutory grounds for termination under MCL 712A.19b(3)(b)(i), (b)(ii), (j), and (k)(iii) because the evidence established that the child "suffered numerous nonaccidental injuries that likely occurred on more than one occasion and that the parents lived together, shared childcare responsibilities, and were the child's sole caregivers." Id. at 36.
In the instant case, the evidence supported the finding that RS had suffered numerous nonaccidental injuries that likely occurred on more than one occasion. Dr. Parkin-Joseph testified that RS had a healing rib that had been fractured at least 10 to 14 days prior to her examination on September 20, 2018. Respondent testified that RS fell off the changing table on August 22, 2018, and that she took him to the hospital after he displayed seizure-like symptoms. Dr. Parkin-Joseph testified that RS was diagnosed with a subdural hematoma and retinal hemorrhages on August 22, 2018. Respondent-mother also testified that RS had an injury to his left arm before August 22, 2018. There was also testimony that RS had fallen while being held by respondent-father on August 12, 2018.
Dr. Parkin-Joseph testified that RS's injuries were mostly likely the result of nonaccidental trauma or physical abuse. Dr. Parkin-Joseph also testified that RS's rib fracture had a "high specificity for inflicted or abusive injury" and that she did not believe RS's injuries were caused by a fall. Although respondent-mother testified that RS accidentally fell from a changing table, the trial court did not find her testimony credible and we defer to the trial court's credibility determinations. In re BZ, 264 Mich App at 296-297. Additionally, respondent testified that she did not inform the hospital or the DHHS that RS had fallen from the changing table. Further, although respondent-mother testified that she took a video of RS's seizure-like activity with her cell phone, respondent gave respondent-father her cell phone password so he could remotely delete the video after a detective seized the phone.
The evidence also supported a finding that respondent-mother and respondent-father lived together and collectively took care of RS. Although there was conflicting evidence regarding who was immediately responsible for watching RS when he allegedly fell and had a seizure, there was no dispute that RS was in the sole care of respondent-mother and respondent-father. Respondent pleaded guilty to fourth-degree child abuse as a result of the investigation into RS's injuries on August 22, 2018, and the record indicates that DHHS did not believe that any services would rectify the fact that respondent-mother was convicted of child abuse. We note that a neighbor of respondents testified that on August 22, 2018, she heard respondents arguing and then immediately heard "a thump on the floor and a baby start crying." Thus, the evidence, taking into account the trial court's credibility assessment, indicates that RS was not merely accidentally injured, both respondents were present, and respondent-mother thus either abused RS or failed to protect RS from abuse. Additionally, respondent-mother's and respondent-father's treatment of RS is probative of how they will treat EPH and ADH. In re HRC, 286 Mich App at 460-461. The termination of respondent-father's rights, under the circumstances, does not eliminate the concerns regarding respondent-mother, especially because of the ongoing discrepancy between her explanation of how RS was injured and the expert medical testimony.
We note, however, that respondent did testify that she took responsibility, and she blamed herself for being negligent in turning her back on RS. She also engaged in therapy and seems to have made a commendable effort at self-improvement, notwithstanding the trial court's doubt whether respondent had truly benefited from therapy. We do not wish to discourage such efforts, so we emphasize that our holding in this matter is based on the deference to which we are required to give trial courts, and it should not be construed as endorsing forever punishing a person in the future for their failings in the past. --------
Accordingly, we cannot conclude that the trial court clearly erred by finding that the grounds for termination under MCL 712A.19b(3)(b)(i) and (b)(ii) had been proven by clear and convincing evidence. Because we conclude that the trial court did not err by finding grounds for termination under MCL 712A.19b(3)(b)(i) and (b)(ii), we need not address any additional grounds. In re HRC, 286 Mich App at 461.
IV. BEST INTERESTS
Respondent also argues that the trial court erred when it found that termination of her parental rights was in the children's best interests. We disagree.
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). "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 at 296-297.
"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." In re Olive/Metts, 297 Mich App at 40. Whether termination of parental rights is in a 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). When considering best interests, the trial court must focus on the child rather than the parent. Id. at 87. "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).
In deciding a child's best interests, a court may consider 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. The trial court may also consider how long the child has lived in the present home, and the likelihood that the child "could be returned to [the] parent's home within the foreseeable future, if at all." In re Frey, 297 Mich App 242, 249; 824 NW2d 569 (2012). The trial court may also consider such factors as the parent's compliance with any service plan, the possibility of adoption, and how well the children are doing in care. In re White, 303 Mich App at 714.
The evidence supports the trial court's determination that termination of respondent's parental rights was in the best interests of the children.
The trial court found that EPH and ADH, who had been in foster care since their birth, were bonded to their paternal grandmother and that the grandmother's home was safe and stable. The trial court stated that the grandmother was willing to provide long-term safety, stability, and permanency through adoption only. The trial court found that respondent's bond had eroded with her children. The court also found evidence that RS was not safe and was injured while in respondents' care, contrary to the children's needs to be in a safe and stable environment.
The record indicates that EPH and ADH had been removed soon after their birth in May 2019, and had been in the care of their paternal grandmother for practically their entire lives. The caseworker testified that EPH and ADH were bonded to their grandmother and that she had provided permanency, structure, and stability that the children needed and was willing to adopt them. The caseworker also testified that respondent had a very limited bond with the children.
The suspicious nature of RS's injuries, seemingly while both respondents were present, indicates that respondent-mother either abused RS or failed to protect RS from abuse. Also concerningly, respondent-mother did not inform the hospital or DHHS that RS fell from the changing table on August 22, 2018; and she allowed respondent-father to remotely delete the alleged video of RS's seizure. Further, the caseworker testified that he and DHHS did not believe that any services would rectify the fact that respondent was convicted of child abuse. As a result of respondent's conviction, she was sentenced to serve six months' imprisonment and had been incarcerated since November 4, 2019. Respondent was also sentenced to 36 months' probation and as a term of probation she was not to have contact with minors under the age of 17, including her own children, unless approved by a field agent.
The trial court could reasonably find by a preponderance of the evidence that even with respondent-father removed, respondent-mother's home was not sufficiently safe and stable for the children. The trial court could further reasonably find it unlikely that the children could be returned to respondent's home within the foreseeable future in light of her incarceration and the terms of her probation. Finally, the trial court could also reasonably find that it would do the children more harm than good to upend their current safe, stable, and bonded environment. Accordingly, the trial court did not clearly err when, on the basis of the entire record, it found that termination of respondent's parental rights was in the best interests of the children.
Affirmed.
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
/s/ Amy Ronayne Krause