Opinion
No. 349504
01-21-2020
In re S. PADRON-MORENO, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 19-000043-NA Before: RIORDAN, P.J., and SAWYER and JANSEN, JJ. PER CURIAM.
Respondent-mother, appeals as of right the order terminating her parental rights to her minor child. The trial court terminated respondent-mother's parental rights under MCL 712A.19b(3)(b)(i) ("[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 injury or abuse in the foreseeable future if placed in the parent's home"), MCL 712A.19b(3)(b)(ii) ("[t]he parent who had the opportunity to prevent the physical injury 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)(g) (parent failed to provide proper care or custody and no reasonable expectation parent will provide proper care or custody within a reasonable time), MCL 712A.19b(3)(j) ("[t]here is a reasonable likelihood, on the basis of 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[]"), and MCL 712A.19b(3)(k)(iii) (parent abused the child and the abuse included: "[b]attering, torture, or other severe physical abuse"). We affirm.
I. REASONABLE EFFORTS
Respondent-mother first argues that petitioner failed to make reasonable efforts to reunify her with the minor child. We disagree.
This Court generally reviews a trial court's finding "that reasonable efforts were made to preserve and reunify the family" for clear error. In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005). "Generally, when a child is removed from the parents' custody, the petitioner is required to make reasonable efforts to rectify the conditions that caused the child's removal by adopting a service plan." In re HRC, 286 Mich App 444, 462; 781 NW2d 105 (2009). A petitioner, however, "is not required to provide reunification services when termination of parental rights is the agency's goal." Id. at 463. Further, "the petitioner can request termination in the initial petition." In re Moss, 301 Mich App 76, 91; 836 NW2d 182 (2013). "[T]ermination is required at the initial disposition hearing and additional reunification efforts shall not be ordered if" the requirements of MCR 3.977(E) are met. Id. at 91. MCR 3.977(E) provides:
The court shall order termination of the parental rights of a respondent at the initial dispositional hearing held pursuant to MCR 3.973, and shall order that additional efforts for reunification of the child with the respondent shall not be made, if
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child under MCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is introduced at the dispositional hearing, that one or more facts alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights under MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), or (m);
(4) termination of parental rights is in the child's best interests
Petitioner sought to terminate respondent-mother's parental rights in the original petition because of respondent-mother's failure to protect the minor child from physical abuse. Because termination was the petitioner's goal, there was no obligation to provide respondent-mother with services. In re Moss, 301 Mich App at 91. In addition, at the preliminary hearing, the trial court found by a preponderance of the evidence, that there were grounds to assume jurisdiction. Specifically, the trial court determined it had jurisdiction because there was evidence that the minor child had been physically abused while he was in the care of his parents. Respondent-mother argues that because the minor child was in his father's care when he was abused, the trial court erred when it failed to provide respondent-mother with reunification services. However, the trial court reasoned that the DHHS was not required to provide respondent-mother with reunification efforts because respondent-mother was still residing with the man who had physically abused the minor child. Further, respondent-mother was aware of the abuse and failed to protect the minor child from his father. Nonetheless, the trial court allowed respondent-mother to have supervised visits with the minor child.
At trial, the court found by clear and convincing evidence that grounds for termination had been established under MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), and (k)(iii). In making its best interests determination, the trial court determined that the minor child was at risk in respondent-mother's care because she failed to protect him from his father. The trial court also found that termination of respondent-mother's parental rights was in the minor child's best interests. Because all the requirements of MCR 3.977(E) were met, reunification efforts were not required. In re Moss, 301 Mich App at 91.
II. BEST INTERESTS
Respondent-mother also argues that the trial court erred in its determination that termination of her parental rights was in the best interests of the minor child. We disagree.
This Court reviews a trial court's determination regarding best interests for clear error. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). "A trial court's decision is clearly erroneous '[i]f 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 Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012), quoting In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989) (citations and quotation marks omitted).
"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 Minors, 306 Mich App 713, 732-733; 858 NW2d 143 (2014), citing MCL 712A.19b(5). " '[T]he focus at the best-interest stage has always been on the child, not the parent.' " In re Payne/Pumphery/Fortson Minors, 311 Mich App 49, 63; 874 NW2d 205 (2015), quoting In re Moss, 301 Mich App at 87. "Best interests are determined on the basis of the preponderance of the evidence." In re LaFrance Minors, 306 Mich App at 733. "In deciding whether termination is in the child's best interests, the 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." In re Olive/Metts Minors, 297 Mich App at 41-42 (citations omitted). When the trial court makes its best interests determination, it may rely upon evidence on the entire record, including the evidence establishing the statutory grounds for termination. In re Trejo, 462 Mich 341, 353-354; 612 NW2d 407 (2000), superseded by statute on other grounds as recognized in In re Moss, 301 Mich App at 83.
In addition, "a child's placement with relatives weighs against termination . . . ." In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). "[T]he fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interest." In re Olive/Metts Minors, 297 Mich App at 43. While the trial court may terminate parental rights in lieu of placing the child with relatives, a child's placement with relatives "is an explicit factor to consider in determining whether termination was in the children's best interests." Id. (citation and quotation marks omitted). "A trial court's failure to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal." Id.
The evidence supports the trial court's findings. In December 2018, the minor child was admitted to the Children's Hospital of Michigan, because he suffered second-degree burns to his forehead, arms, and torso. The minor child's father explained that the minor child was taking a shower and the water got hot and burned him. Respondent-mother confirmed the father's explanation. However, the medical records indicated that because the minor child's wounds were in the shape of "perfect circles," it was impossible for him to receive the burns from taking a hot shower.
The court stated that it was "ridiculous" for anyone to believe that the minor child had been burned with water because the burns on his body were in the shape of "perfect circles." The court explained that if the minor child had been burned by hot water in the shower, he would have marks reflecting "hot water sprinkling" all over his body. Thus, the court concluded that respondent-mother was "in denial" because she corroborated the father's story that the minor child had actually been burned by hot water. Moreover, respondent-mother knew that the father was physically abusive and failed to protect her son from his abuse. The medical records show that the minor child had suffered second-degree burns on his forehead and arms and he was admitted to the Burn Unit for treatment. Despite the severity of the minor child's injuries, respondent-mother failed to take him to the hospital and continued to allow the father to be with him.
The trial court stated that it did not believe respondent-mother's testimony that the father had only abused her on one occasion and that she was unaware of his drug use. Because respondent-mother was not a credible witness, the trial court did not believe that respondent-mother was no longer in contact with the father. Therefore, the trial court held that termination of respondent-mother's parental rights was in the minor child's best interests because respondent-mother failed to protect her son from abuse.
The testimony at trial supports the trial court's findings. Dr. Salama examined the minor child and testified that he had injuries on his forehead, arms, and chest. Dr. Salama opined that the injuries did not seem accidental because the wounds were "very circular in nature; that it is unlikely for . . . a possible splash of hot water to be that shape." Dr. Salama also stated that the location of the minor child's injuries indicated that they were not accidental. At trial, DHHS worker, Zachary Flynn testified that he interviewed the father and respondent-mother at their home regarding the minor child's injuries. After the father explained that the minor child had been burned by hot water in the shower, respondent-mother corroborated the father's version of events. Case worker Flynn tested the water temperature in the shower and averred that he did not have to move his hand from under the water because the water never got too hot. Case worker Flynn also stated that the father admitted to using cocaine, marijuana, and drinking alcohol.
The trial court accepted testimony from respondent-mother's sister, who stated that she had witnessed and been a victim of the father's physical abuse. Respondent-mother's sister had also witnessed the father using cocaine, marijuana, and drinking alcohol. On the basis of the testimony provided at trial, respondent-mother was clearly aware that the minor child was not safe with the father and that respondent-mother had failed to take any action to prevent the father from abusing her son.
Respondent-mother argues that the trial court did not properly consider that the minor child is currently residing with a relative, a factor that weighs against termination. The trial court specifically noted that the minor child was living with his maternal aunt, and that even though this factor weighs against termination of respondent-mother's parental rights, it was not dispositive. Therefore, the trial court did not clearly err in determining that the preponderance of the evidence supported that it was in the minor child's best interest to terminate respondent-mother's parental rights.
Affirmed.
/s/ Michael J. Riordan
/s/ David H. Sawyer
/s/ Kathleen Jansen