Opinion
No. 349152
12-17-2019
In re ROBERSON, Minors.
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 UNPUBLISHED Wayne Circuit Court Family Division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. 18-001231-NA Before: FORT HOOD, P.J., and SERVITTO and BOONSTRA, JJ. PER CURIAM.
Respondent appeals as of right the order terminating her parental rights to her children, PFR and PAR, pursuant to MCL 712A.19b(3)(b)(i) (physical or sexual abuse by parent), (g) (failure to provide care and custody), and (j) (reasonable likelihood that the child will be harmed if returned to parent). We affirm.
I. JURISDICTION
Respondent first argues that the trial court erred in concluding that there was sufficient evidence presented to take jurisdiction of PAR and PFR. We disagree.
"To properly exercise jurisdiction, the trial court must find that a statutory basis for jurisdiction exists." In re BZ, 264 Mich App 286, 294; 690 NW2d 505 (2004). "Jurisdiction must be established by a preponderance of the evidence." Id. This Court reviews the lower court's decision to exercise jurisdiction for clear error in light of the court's findings of fact. Id. "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." Id. at 296-297.
"Generally, a court determines whether it can take jurisdiction over the child in the first place during the adjudicative phase." In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). A court's authority to take jurisdiction is governed by MCL 712A.2(b). Id. Respondent challenges the court's jurisdiction under MCL 712A.2(b)(1) and (2), which provide, in relevant part:
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. . . .
* * *
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in. . . .
We discern no clear error in the trial court's determination that statutory grounds for jurisdiction existed. Evidence was presented that PAR, at the age of six weeks old, suffered life-threatening injuries while in respondent's care, and respondent is unable to account for those injuries whatsoever. Respondent contends that, on the night that PAR sustained the injuries, respondent had called a babysitter to watch PAR and PFR while respondent spent time outside. Around 11:30 p.m. respondent went back inside the house to sit with PAR and PFR, who were asleep upstairs. At some point, respondent left the children for approximately two minutes to again go outside, and when respondent returned, she found PAR severely injured. PAR suffered from a complex, bilateral skull fracture, as well as a subdural hematoma and a subarachnoid hemorrhage resulting in a lack of oxygen to his brain. As a result of these injuries, PAR suffers from irreversible brain damage.
Respondent admitted that, while outside, she smoked marijuana.
Following PAR's injuries, respondent proceeded to provide multiple inconsistent explanations to hospital and child protective services (CPS) workers as to how respondent discovered the injuries and how they may have occurred. Respondent testified in the termination proceedings that PAR's injuries must have accidentally occurred at the hands of a two-year-old child, who was also present in the home, picking up and dropping PAR. Respondent's explanation was refuted, however, by Dr. Syana Sarnaik, who testified that PAR's injuries were not accidental, that the injuries could only have been sustained by being shaken and hit, and that falling from an adult's arms would not have caused the type of injuries PAR suffered, let alone from a child's arms. Because evidence was presented that PAR suffered life-threatening, nonaccidental injuries while in respondent's care, petitioner presented sufficient evidence for the court to find that, at the very least, respondent neglected the health of PAR and PFR. Thus, we cannot conclude that the trial court clearly erred in taking jurisdiction.
"Neglect" under MCL 712A.2(b)(1) "means harm to a child's health or welfare by a person responsible for the child's health or welfare that occurs through negligent treatment . . . ." MCL 722.602(1)(d). --------
II. STATUTORY GROUNDS FOR TERMINATION
Respondent next argues that the trial court erred in finding that statutory grounds existed to terminate respondent's parental rights. Because we hold that the trial court did not err in terminating respondent's parental rights under MCL 712A.19b(3)(j), we need not address the other grounds cited by the court.
In order to terminate parental rights, a trial court must find that a statutory ground has been established by clear and convincing evidence. In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). The trial court's findings regarding statutory grounds are reviewed for clear error. Id. "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." Id. (citation and quotation marks omitted). The trial court may terminate parental rights pursuant to MCL 712A.19b(3)(j) if the court finds by clear and convincing evidence that "[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." Under MCL 712A.19b(3)(j), harm can be both physical and emotional harm. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011).
There was clear and convincing evidence that PAR and PFR could be physically or emotionally harmed if placed in respondent's care. PAR suffered life-threatening injuries at six weeks old. He remained in the intensive-care unit for six weeks after he sustained the injuries and now has irreversible brain damage. These injuries occurred while both PAR and PFR were in respondent's care. In addition, respondent continues to claim that she is unaware of how the life-threatening injuries occurred, asserting only inconsistent—and what the trial court determined to be medically implausible—explanations for PAR's injuries. Given the severity of PAR's injuries and the complete lack of a plausible explanation from respondent, we cannot conclude that the trial court clearly erred in determining that either PAR or PFR could be further harmed if returned to respondent's care.
III. BEST INTERESTS
Respondent lastly argues that the trial court erred in finding that it was in the best interests of PAR and PFR to terminate respondent's parental rights. We disagree.
[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. This Court reviews the trial court's ruling that termination is in the child's best interest for clear error. In re Hudson, 294 Mich App at 264. This Court also reviews for clear error whether the lower court failed to address a significant difference between each individual child's best interests. In re White, 303 Mich App 701, 716; 846 NW2d 61 (2014). "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 Moss, 301 Mich App at 80 (citation and quotation marks omitted).
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). "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, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). "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." In re White, 303 Mich App at 714.
The court did not clearly err in determining that it was in the best interests of PAR and PFR to terminate respondent's parental rights. Despite the fact that there was no dispute that respondent was bonded to her children, the evidence supported the conclusion that, even if respondent did not inflict the injuries herself, she failed to protect PAR from a dangerous, life-threatening situation. PAR sustained severe injuries while in respondent's care. The evidence supported the conclusion that the injuries were not accidental and were caused by hitting and or shaking. Moreover, respondent's inability or unwillingness to be forthcoming as to what happened to PAR supports a finding that it is in the best interests of PAR and PFR to terminate respondent's parental rights.
Respondent also argues that the trial court should have addressed the best interests of the children separately. "[I]f the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children's best interests." In re White, 303 Mich App at 715. However, the duty to examine the best interests of individual children "does not stand for the proposition that the trial court errs if it fails to explicitly make individual and—in many cases—redundant factual findings concerning each child's best interests." Id. at 716. Here, in the findings of fact, the referee discussed the best interests of PAR and PFR separately. The referee applied a similar analysis, concluding that because PAR was abused, and because PFR's sibling was abused, the children should be placed with their father who can protect them.
Moreover, the best interests of PAR and PFR are not significantly different. At the time respondent's parental rights were terminated, PAR was approximately eight months old. PFR was one year and eight months old. Both children had been living with both respondent and their father, and upon termination of respondent's parental rights, both children were placed in the care of their father. Furthermore, respondent's parental rights were terminated because of her failure to protect a six-week-old child from abuse. PFR was only one year old and was present in the same bedroom when PAR sustained the injuries. There is nothing significantly different about PFR's situation to warrant a separate analysis. Thus, the trial court did not err in concluding that it was in the best interests of both PAR and PFR to terminate respondent's parental rights.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto
/s/ Mark T. Boonstra