Opinion
No. 350435
04-30-2020
In re Stinson, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 19-000511-NA Before: BECKERING, P.J., and SAWYER and GADOLA, JJ. PER CURIAM.
Respondent appeals as of right the order of the trial court terminating his parental rights to his minor children, BS and DS, under MCL 712A.19b(3)(b)(i) (parent caused physical injury to child), (g) (failure to provide proper care and custody), (j) (reasonable likelihood of harm if returned to parent), (k)(iii) (battering, torture, or other severe physical abuse), and (k)(iv) (loss or serious impairment of an organ or limb). We affirm.
I. FACTS
On March 10, 2019, respondent took one-year-old DS to the emergency room at Children's Hospital of Michigan because of burns to the feet of DS. Due to the severity of the burns, DS was rushed to the resuscitation area, and then the burn unit for treatment. DS suffered second- and third-degree burns to his feet; the third-degree burns required debridement and skin grafting surgery. Burn unit surgeons used skin from DS's body in order to perform the graft.
Debridement is the process by which surgeons remove dead skin from burn areas.
On March 18, 2019, the Department of Health and Human Services (DHHS) filed a petition seeking to terminate respondent's parental rights to BS and DS. In the petition, according to respondent, BS "boo-boo'd" on herself, which led respondent to run a bath to clean her. Respondent claimed to turn the water handle to a warm setting, and let the bathtub fill up as he cleaned BS off. Respondent further claimed that DS climbed into the bathtub, accidentally turned the water to hot, and stood there for a few seconds before crying. However, DHHS stated in its petition that respondent's explanation is not consistent with the nature of the burns sustained by DS.
On August 12, 2019, DHHS filed a petition to terminate respondent's parental rights to KS, born after the March 10, 2019 incident. Respondent's parental rights to KS are not addressed in this opinion. --------
At trial, evidence was introduced that DS suffered non-accidental injuries. Expert testimony provided that the presence of white clear lines of demarcation on both legs established forcible immersion burns. Such burns indicate DS was forcibly held in water. Expert testimony further provided that this contrasts with accidental burns, which would typically be indistinct and irregular due to splash marks caused by evasive action.
Upon conclusion of the trial on the petition, the trial court entered an order terminating respondent's parental rights to the children under MCL 712A.19b(3)(b)(i), (g), (j), (k)(iii), and (k)(iv). Respondent now appeals from that order.
II. DISCUSSION
A. STATUTORY GROUNDS
Respondent contends that the trial court's decision in terminating his parental rights was clearly erroneous because the statutory grounds for termination were not established by clear and convincing evidence. Specifically, respondent argues that despite a bruise on the forehead, the trial court ignored evidence that DS had no other marks or bruises to show someone held him down in the bathtub. Respondent further argues the trial court, to make a reasonable determination, should have been provided evidence about the bathtub, the amount of water in the bathtub, and temperature of the water. Respondent also argues that the expert testimony was inconsistent. We disagree.
To terminate parents rights, the trial court must find that at least one statutory ground for termination under MCL 712A.19b(3) has been proven by clear and convincing evidence. In re Keillor, 325 Mich App 80, 85; 923 NW2d 617 (2018). "This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination." MCR 3.977(K); In re White, 303 Mich App 701, 709; 846 NW2d 61 (2014). Such a review involves deferring to the trial court's special ability to determine the credibility of witnesses. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). A trial court's factual findings are clearly erroneous if this Court is definitely and firmly convinced that the trial court made a mistake. In re Gonzales/Martinez, 310 Mich App 426, 430-431; 871 NW2d 868 (2015). To be clearly erroneous, a trial court's determination must be more than possibly or probably incorrect. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
In this case, the trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(b)(i), (g), (j), (k)(iii), and (k)(iv), which provide:
(3) 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.
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(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.
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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.
(k) The parent abused the child or a sibling of the child, the abuse included 1 or more of the following, and there is a reasonable likelihood that the child will be harmed if returned to the care of the patient:
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(iii) Battering, torture, or other severe physical abuse.
(iv) Loss or serious impairment of an organ or limb.
The trial court found that termination of respondent's parental rights was warranted under MCL 712A.19b(3)(b)(i). The record supports this finding. DS suffered second- and third-degree burns to his feet, which required skin graft surgery. Dr. Rajan Arora, a pediatric physician at Children's Hospital of Michigan, and Dr. Justin Klein, a pediatric surgeon and medical director of the Burn Unit at the same hospital, each opined that the injuries to DS appeared to be non-accidental. Dr. Arora testified that the burns DS suffered occur when a person is forcibly held in water and unable to move. Similarly, Dr. Klein testified that the burns on DS were "suspicious" for being an inflicted injury because of its severity, uniformity, and patterns. The trial court compared the injury description provided by Dr. Arora and Dr. Klein with respondent's version of events, and determined the medical expert testimony to be more credible. As a result, the trial court did not err when it found that respondent caused the physical injuries to DS.
Relatedly, "[e]vidence of how a parent treats one child is evidence of how he or she may treat the other children." In re Hudson, 294 Mich App 261, 266; 817 NW2d 115 (2011). Here, respondent admitted DS suffered burns while in his care. The record supports the finding that respondent caused injury to DS, the sibling of BS. Based on these factual findings, the trial court also did not err when it found that there is a reasonable likelihood that BS and DS will suffer from injury or abuse in the foreseeable future if placed in respondent's home. Based on this same analysis, the trial court did not err in terminating respondent's parental rights under MCL 712A.19b(3)(j), finding that there is a reasonable likelihood, based on the conduct or capacity of respondent, that BS and DS will be harmed if returned to respondent's home.
Also, the trial court did not err in finding that termination of respondent's parental rights was warranted under MCR 712A.19b(3)(g). As explained, expert testimony established that DS suffered second- and third-degree burns while in respondent's care. The evidence supports the trial court's conclusion that the burns were not accidental, but inflicted upon DS by respondent. Respondent failed to provide proper care and custody for DS and BS, and the trial court did not err in concluding that there is a reasonable likelihood the children will be harmed if returned to respondent's care.
Further, the trial court terminated respondent's parental rights under MCL 712A.19b(3)(k)(iii) and (iv), finding that respondent abused DS, resulting in serious impairment of an organ and limbs. Dr. Arora and Dr. Klein considered the severity, uniformity, and pattern of the burns, the age of DS, the clear and straight lines of demarcation, and the lack of splash marks when concluding the burns were not accidental. The evidence supports a finding that DS was burned by non-accidental force that resulted in second- and third-degree burns, the removal of dead skin, and the need for skin graft surgery. Because of this, the trial court did not err in terminating respondent's rights under MCL 712A.19b(3)(k)(iii) and (iv).
B. BEST INTERESTS
Respondent argues that the evidence failed to establish that termination of his parental rights was in the best interests of BS and DS. Again, we disagree.
"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). This Court reviews a trial court's decision regarding a child's best interests for clear error. In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016). "A finding is 'clearly erroneous' if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
The petitioner bears the burden to establish by a preponderance of the evidence that termination is in the best interests of the child. In re Gonzales/Martinez, 310 Mich App at 434, citing MCL 712A.19b(5) and In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). To determine a child's best interests, the trial court should weigh all available evidence. In re White, 303 Mich App at 713. "[T]he 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 court may also consider the likelihood of the child being returned to their parents within the foreseeable future. In re Kaczkowski, 325 Mich App 69, 78; 924 NW2d 1 (2018).
Karoline Nowak, a DHHS employee, explained that despite respondent acting appropriately during supervised parenting time and demonstrating a bond with BS and DS, termination of respondent's parental rights was appropriate. The trial court's best interests analysis focused on respondent's ability to provide BS and DS with safety, stability, and permanence. While in respondent's care and custody, DS suffered severe physical injury. The trial court concluded that respondent intentionally caused injury to DS and failed to take responsibility for his action.
The trial court also concluded, on the basis of respondent's conduct, that BS and DS were at risk of future abuse and neglect by respondent. While BS did not suffer any physical abuse, she was at risk for future abuse based on respondent's actions with DS. Moreover, as young children, BS and DS are dependent on their parents for basic needs. The evidence presented to the trial court demonstrates that respondent is unable to fulfill the basic needs of his children. Therefore, it was not clearly erroneous for the trial court to find that termination of respondent's parental rights was in the best interests of BS and DS in order to ensure their safety and well-being.
C. REASONABLE EFFORTS
Respondent also contends that he should be given an opportunity to regain custody of BS and DS by completing a case services plan. Generally, after a child has been removed from a parent's custody, the agency must make reasonable efforts to reunify the child with the parent unless certain aggravated circumstances exist. MCL 712A.19a(2).
Here, the trial court properly determined that respondent physically abused DS, and that this abuse resulted in serious impairment of an organ or limbs. MCL 722.638(1)(a)(iii) and (iv). Therefore, DHHS was under no obligation to provide reunification services to respondent.
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Michael F. Gadola