Opinion
No. 342085
08-16-2018
In re UNDERWOOD/STRANGE, Minors.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2017-855047-NA Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ. PER CURIAM.
Respondent appeals by right the trial court order terminating her parental rights to her children under MCL 712A.19b(3)(b)(ii), (g), and (j). For the reasons stated in this opinion, we affirm the trial court's jurisdictional decision, but vacate the termination order and remand for further proceedings consistent with this opinion.
I. BASIC FACTS
On June 25, 2017, respondent received a call from JS, the father of her three-month old baby. He told her that he was on the way to the hospital and that the baby was not breathing. Dr. Allison Ball, an expert in pediatric abuse, testified at the combined adjudication and termination hearing that the baby was admitted to the pediatric intensive care unit after suffering a cardiac arrest at home. She stated that he had subdural hemorrhages, retinal hemorrhages, a diffuse brain injury for which he underwent emergency surgery. She opined that he might have suffered brain damage and that he was at risk of developing cerebral palsy and total or partial blindness. Dr. Ball added that there was no indication that any of the infant's injuries were inflicted on an earlier date. However, she stated that very significant and violent force would have been needed to inflict the injuries. At the best-interests hearing, a foster care worker testified that the baby's condition had not dramatically improved in the approximately five months following his release from the hospital. The foster care worker testified that the infant is on steroids to treat seizures, is still eating via a feeding tube because he cannot swallow, cannot track with his eyes, and is developmentally delayed. She characterized his medical condition as "bleak."
The circumstances leading up to the infant's hospitalization are fairly well developed. Respondent called JS to babysit because she had to work. JS drove to respondent's house despite the fact that he did not have a valid driver's license. JS was also looking after two of his older children because their mother, JW, asked him to watch her children while she worked. Sometime between when he arrived around 4:00 a.m. and around 10:30 a.m., the baby was severely injured.
Respondent's older child was being watched by his great-aunt and was not in the house when the baby was injured.
JS has five children with three different mothers. JW is the mother of his oldest children, a six-year-old and a four-year-old. The mother of his next two children was not identified at trial; those children were a two-year-old and a one-year-old. Finally, respondent's baby is JS's youngest child. Based on the record before this Court, the first time JS inflicted an injury on any of his children was on June 25, 2017, when he violently shook respondent's baby and threw him onto the bed.
Respondent had a history of volatile relationships with men. At the combined adjudication and termination hearing, she acknowledged that there was domestic violence between herself and her older child's father. Respondent stated that there was also domestic violence between her and a boyfriend named "Anthony." With regard to JS, the record reflects that respondent had known him for a long time, but had only recently engaged in a sexual relationship with him. Respondent described her relationship with JS as being somewhat volatile, noting that they would argue and that there was an incident where they "pushed" each other. A police officer, however, testified that in May 2017 he responded to a domestic violence call where respondent reported to him that JS had punched her in the face and attempted to strangle her. Respondent persisted in characterizing the May 2017 incident as only involving pushing and suggested that she had reported physical violence because she wanted JS to be arrested. Significantly, in some of the domestic violence situations, respondent was arrested for domestic violence rather than the man she was with at the time. Respondent was also involved in a violent incident between her sister and some other women that resulted in respondent pleading no contest to malicious destruction of property and a misdemeanor assault and battery. Respondent was on probation for those offenses when her son was injured, and she did not disclose her criminal history to the CPS (Child Protective Services) worker when initially asked because she was afraid CPS would take her children away.
In addition to the history of domestic violence between respondent and JS, respondent was aware that there had been domestic violence between JS and JW, the mother of his oldest two children. Respondent denied knowing the exact details. In any event, both respondent and JW testified that JS had always been "good" with the children. Respondent explained that although JS had a temper, she had never seen him use it against children, she had never seen him hurt her children or his older children, and she had never heard her older son complain that JS was mean. Before June 25, 2017, JS had watched the baby 15 or 20 times without incident, and he knew how to take care of him without any instructions from respondent. He had also watched JW's children on multiple occasions, again without incident, and JW testified that in the 9 years she had known JS, she had never seen him harm a child.
When respondent arrived at the hospital, JS was crying and told her that he did not know what had happened. The medical personnel, however, suspected that the injuries were the result of non-accidental trauma. CPS and the police were called. The police detective assigned to the case spoke with JS on three occasions. He recounted that JS originally suggested that the baby's half-siblings had done something to hurt him; however, during later interviews he admitted that he was responsible. The detective stated that although JS claimed that he had told respondent about what had happened, the detective nevertheless advised respondent about JS's admissions. In addition, CPS had respondent sign a voluntary agreement to keep JS away from her son, but respondent did not follow it. She explained that she initially could not believe that JS would hurt his own baby, so she continued to allow JS to be in the hospital room with the baby. Respondent also admitted to comforting JS when he was at the hospital, including holding his hand. She stated that she comforted him because he threatened to kill himself. However, she never left him alone with her son during the approximately two weeks he was hospitalized.
JS's older children were forensically interviewed and, according to the police detective, they indicated that they had witnessed the abuse and their statements inculpated JS.
On July 12, 2017, JS was arrested for second-degree child abuse. The CPS worker testified that after JS was arrested, respondent stated that she was "unsure" if she was going to continue a relationship with him, and that "she would possibly allow him in the home still to be around, but she would not let him babysit either of her children." At trial, respondent testified that she was now sure that JS had hurt her son and she would not have additional contact with him nor would she allow him to have contact with the children even if he were acquitted. She admitted that she accepted a phone call from JS after he was arrested. She stated that during the conversation, JS indicated that the police were "switching" his words and that he did not mean to do it, but she told him that he could not see her youngest son again.
At the best-interest hearing it was represented that JS had pleaded guilty to second-degree child abuse and had been sentenced to a minimum of 70 months in prison.
At the conclusion of the combined adjudication trial and termination hearing, the trial court found by a preponderance of the evidence that there were statutory grounds for jurisdiction under MCL 712A.2(b)(1) and (2), and that there was clear and convincing evidence of statutory grounds for termination under MCL 712A.19b(3)(b)(ii), (g), and (j). The court ordered respondent to undergo a psychological evaluation, and set the matter for a best-interests hearing. Following the best interest hearing, the court issued a written opinion finding by a preponderance of the evidence that termination of respondent's parental rights was in the children's best interests.
This appeal follows.
II. JURISDICTION
A. STANDARD OF REVIEW
Respondent first argues that the trial court erred by finding that petitioner proved by a preponderance of the evidence the existence of one or more statutory ground for the taking of jurisdiction under MCL 712A.2(b). "To properly exercise jurisdiction, the trial court must find that a statutory basis for jurisdiction exists." In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). "Jurisdiction must be established by a preponderance of the evidence." Id. "We review the trial court's decision to exercise jurisdiction for clear error in light of the court's findings of fact." Id. "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).
B. ANALYSIS
The trial court found that jurisdiction was proper under MCL 712A.2(b)(1), which provides that the court may take jurisdiction over a child "[w]hose 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 parents, guardian, or other custodian, or who is without proper custody or guardianship." The statute provides that the phrase " '[w]ithout proper custody or guardianship' does not mean a parent has placed the juvenile with another person who is legally responsible for the care and maintenance of the juvenile and who is able to and does provide the juvenile with proper care and maintenance." MCL 712A.2(b)(1)(B).
MCL 712A.2 was amended by the Legislature, effective June 12, 2018, and as part of the amendment subsection (b)(1)(B) has been renumbered (b)(1)(C). See 2018 PA 58.
Respondent argues that she did not fail to provide her children with proper support and care because at the time she left her younger son in JS's care she had no notice that JS would physically harm a child. Respondent relies upon this Court's decision in In re Waite, 188 Mich App 189; 468 NW2d 912 (1991), abrogated on other grounds by In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993). In Waite, the respondent's child's leg was fractured after she left him in the care of a friend. Id. at 191. This Court concluded that the trial court erred by finding grounds to take jurisdiction over the child under MCL 712A.2b(1), because
[t]he mere fact that an injury resulted does not necessarily establish that the injury was attributable to a failure to provide proper care. The facts in this case merely showed that respondent entrusted the temporary care of her son to a friend who she thought could take proper care of her child inasmuch as this friend had two children of her own. The testimony did not indicate that, at the time respondent entrusted her son to her friend's temporary care, she had any basis to believe that her friend either would not or could not provide proper care. [Id. at 195-196.]
Respondent likens her decision to leave her child with JS as identical to the Waite respondent's decision to leave her child with a friend. Here, however, the trial court did not rely on the mere fact that the baby was injured. The court found that based on respondent's experiences with JS, respondent was aware JS could be physically violent and had a temper. Further, at the hospital, despite being told by numerous individuals that JS had deliberately and severely injured her child, respondent was uncertain as to whether he was responsible and was unsure about whether she would continue her relationship with him. This combination of facts is sufficient to support the court's finding by a preponderance of the evidence that the baby had been left without proper care and custody. Therefore, the trial court did not clearly err by assuming jurisdiction under MCL 712A.2(b)(1).
We note that MCL 712A.2(b)(1) only requires petitioner to establish by a preponderance of the evidence that a parent legally responsible for the child failed to provide the child with proper custody. This failure must be established at the time the petition was filed, see In re MU, 264 Mich App 270, 279; 690 NW2d 495 (2004), and the statute does not direct the trial court to consider whether the problem, i.e., the improper custody, had been remedied or will likely be remedied within a reasonable time in the future. In contrast, the statutory grounds permitting a court to terminate a respondent's parental rights (as opposed to merely taking jurisdiction over the child), often contain an element looking toward the respondent's future conduct. For instance—and relevant to this case—MCL 712A.19b(3)(b)(ii) requires the petitioner to establish 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) requires a finding of "no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age," and MCL 712A.19b(3)(j) requires a finding that the child will be harmed in the future if returned to the respondent's home. Consequently, the fact that respondent eventually cut ties with JS is less significant at the jurisdiction stage, which looks to the circumstances when the petition was filed, than it is at the termination stage, which, under the relevant statutory grounds, looks to the future.
Respondent nevertheless argues that the trial court should have only assumed jurisdiction over the baby and not her older child. However, "[a] child may come within the jurisdiction of the court solely on the basis of a parent's treatment of another child. Abuse or neglect of the second child is not a prerequisite for jurisdiction of that child and application of the doctrine of anticipatory neglect." In re Gazella, 264 Mich App 668, 680-681; 692 NW2d 708 (2005), superseded by statute on other grounds in MCL 712A.19b(5). The doctrine of anticipatory neglect stands for the proposition that "how a parent treats one child is certainly probative of how that parent may treat other children." In re Powers, 208 MichApp 582, 588; 528 NW2d 799 (1995), superseded by statute on other grounds in MCL 712A.19b(3)(b)(i). Therefore, the trial court did not err by taking jurisdiction over both children.
Because only one statutory ground for taking jurisdiction under MCL 712A.2(b) must be established, In re Kanjia, 308 Mich App 660, 664; 866 NW2d 862 (2014), we decline to consider whether the trial court erred by finding that jurisdiction was also proper under MCL 712A.2(b)(2).
III. REUNIFICATION SERVICES
A. STANDARD OF REVIEW
Respondent next argues that there are no aggravating circumstances present in this case, so the trial court erred by terminating her parental rights at the initial disposition without first requiring petitioner to make reasonable reunification efforts. Because respondent did not raise this issue at the trial court, it is unpreserved. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Accordingly, we review this issue for plain error affecting respondent's substantial rights, id, and respondent must show that an error occurred, the error was clear or obvious, and it affected her substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
B. ANALYSIS
"In general, petitioner must make reasonable efforts to rectify conditions, to reunify families, and to avoid termination of parental rights." In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008). MCL 712A.19a(2) provides that "[r]easonable efforts to reunify the child and the family must be made in all cases except if any of the following" aggravated circumstances applies, and it sets for a specific list of aggravating circumstances. Our Supreme Court has explained " '[r]easonable efforts to reunify the child and the family must be made in all cases' except those involving aggravated circumstances . . . ." In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010), quoting MCL 712A.19a(2). Our Supreme Court has also recently held that the DHHS "has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2) (emphasis added). In doing so, the Court recognized that "[t]here are certain enumerated exceptions to this rule, see MCL 712A.19a(2) . . . ." Id. at 85 n 4 (emphasis added).
Effective June 12, 2018, MCL 712A.19a was amended by the Legislature, to add a provision stating that involuntary termination of a respondent's parental rights in a prior case is only an aggravated circumstance if the conditions leading to that termination have not been rectified. See 2018 PA 58.
Respondent argues that there are no aggravating circumstances in this case, so under MCL 712A.19a(2), petitioner has a duty to make reasonable efforts to reunify her with her children. Specifically, she contends that the aggravated circumstance in MCL 712A.19a(2)(a) is not satisfied. Under MCL 712A.19a(2)(a), it is an aggravated circumstance if "[t]here is a judicial determination that the parent has subjected the child to aggravated circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PA 238, MCL 722.638." MCL 722.638(2) provides:
There is no real dispute that the other enumerated exceptions to MCL 712A.19a(2) are not satisfied here. The aggravated circumstances set forth in MCL 712A.19a(2)(b), (c), and (d) are inapplicable because there are no allegations that respondent was convicted of an enumerated crime, had her parental rights to a sibling of the children involuntarily terminated, or was required to register under the sex offenders registration act. Next, MCL 722.638(1) provides that it is an aggravated circumstance if the DHHS "determines that a parent . . . has abused the child or a sibling of the child and the abused included 1 or more of the following . . . ." This section is clearly inapplicable because respondent did not abuse the baby or any of his siblings, which means that MCL 712A.19a(2)(a) is not satisfied to the extent that it relies on MCL 722.638(1).
(2) In a petition submitted as required by subsection (1),[] if a parent is a suspected perpetrator or is suspected of placing the child at an unreasonable risk of harm due to the parent's failure to take reasonable steps to intervene to eliminate that risk, the department shall include a request for termination of parental rights at the initial dispositional hearing as authorized under section 19b of chapter XIIA of 1939 PA 288, MCL 712A.19b.Respondent argues that her conduct does not satisfy this section because "she [did not] place either of her children at an unreasonable risk of harm." Respondent seemingly believes that she did not place the children at an "unreasonable" risk of harm because, prior to the baby being injured, she did not know or have reason to suspect that JS would harm a child. However, respondent knew JS was violent as evidenced by her testimony about the domestic violence between them and the police officer's testimony that respondent reported JS had punched her in the face and attempted to strangle her in May 2017. Despite that knowledge, respondent left her three-month old baby in JS's care. Then, after being told that the injuries were the result of non-accidental trauma and that JS had admitted to harming the baby, respondent continued to disbelieve his involvement and support him for the two weeks her child was hospitalized. Because MCL 722.638(2) only requires that DHHS suspect a parent of placing the child at an unreasonable risk of harm due to his or her failure to take reasonable steps to eliminate the risk, we cannot conclude that the decision to deny reasonable reunification services in this case amounted to plain error affecting respondent's substantial rights. Moreover, although the court did not make an express judicial determination under MCL 712A.19a(2)(a), the court stated at the hearing that services were not required in this case, which suggests that the court did, in fact, find that the aggravating circumstances in MCL 712A.19a(2)(a) were met in this case. Respondent has not satisfied her obligation to show plain error.
Here, a petition under MCL 722.638(1) was required to be submitted because the DHHS determined that JS, the baby's putative father, had abused respondent's son and the abuse included "[b]attering, torture, or other severe physical abuse," "[l]oss or serious impairment of an organ or limb," and [l]ife threatening injury." MCL 722.638(1)(iii) to (v).
Respondent directs this Court to MCR 3.965(C)(4), which addresses reasonable efforts that must be made to prevent a child's removal from the home. However, respondent does not argue that the trial court erred by not ordering reasonable efforts be made to prevent removal of the children from the home and the court rule does not address reasonable reunification efforts, so the court rule is not applicable.
III. STATUTORY GROUNDS TO TERMINATE RESPONDENT'S PARENTAL RIGHTS
A. STANDARD OF REVIEW
Respondent next contends that the trial court erred by finding there was clear and convincing evidence to terminate her parental rights under MCL 712A.19b(3)(b)(ii), (g), and (j). This Court reviews for clear error a trial court's finding of whether a statutory ground for termination has been proven by clear and convincing evidence. MCR 3.977(K); In re BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004).
B. ANALYSIS
The trial court found that termination was proper under MCL 712A.19b(3)(b)(ii), (g), and (j), which provide for termination if:
(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:
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(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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(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 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.
MCL 712A.19b(3)(g) was amended by the Legislature, effective June 12, 2018, so it now provides that a court may terminate a respondent's parental rights if "[t]he 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." See 2018 PA 58.
With regard to subdivision (b)(ii), we conclude that the trial court erred by terminating respondent's parental rights. At the outset, there is no evidence that respondent "had the opportunity to prevent the physical injury." An "opportunity" is defined in relevant part as "a good chance for advancement or progress." Webster's Collegiate Dictionary (11th ed). This Court has previously held that a respondent-mother had the opportunity to prevent sexual abuse to her children when she was told by one of her children that the man she let babysit them was sexually abusing them, but she did nothing to intervene. In re Brown, 305 Mich App 623, 636-637; 853 NW2d 459 (2014). In this case, respondent only knew that JS had a temper and was physically violent with her and that there had been domestic violence of some type between JS and JW. There is no evidence whatsoever that she was aware or should have been aware that JS would suddenly harm a child left in his care. Instead, the record reflects that she knew he had four older children, but had never been told by those children's mothers that JS would harm a child or had, in fact, harmed a child. She was told that JS was good with children, and she observed him watching his older children and her children. Respondent's older child never reported to her that JS was "mean" to him, and respondent had left the baby in JS's care once or twice a week since the child was born. There was no indication that he abused the child when he was left in his care on those occasions. Respondent wanted JS to have a relationship with his son. In the absence of any information that respondent knew or should have known that JS would suddenly switch from physical violence against his domestic partners to physical violence against his children, we cannot say that the evidence clearly and convincingly established that respondent had an opportunity to prevent the physical abuse in this case. Accordingly, on this record, the trial court clearly erred by finding that respondent had an opportunity to prevent the physical abuse to the baby.
We note that children are commonly left in the care of individuals who are both the victims of domestic abuse and the perpetrators of domestic abuse. In fact, in this case, respondent's older child was placed in the care of his biological father despite the fact that CPS and the court were aware that that father had engaged in domestic violence with respondent in the past. Presumably, there were no indications that the father would perpetrate violence against his son, which is why, despite knowing about the father's history of violence, CPS chose to place the child with him.
Moreover, the court erred by finding that there was 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). Here, the record reflected that for about two weeks after the baby was injured, respondent continued to allow JS to be around the baby despite being told that JS had inflicted severe injuries on the baby. There is also evidence that, even after JS was arrested, respondent was unsure about whether she would continue her relationship with JS, and that she accepted a phone call from him after he was arrested. Nevertheless, despite that two-week period of denial, respondent has since stated that she believes that JS harmed her baby and that she will not continue her relationship with him or allow him further contact with her children. There is no legally admissible evidence that she has had any additional contact with him or that she had reported to anyone that she will have further contact with him.
We note that there was testimony that JW reported seeing respondent with JS after he was released on bond; however, that statement was inadmissible hearsay. And, because termination was being sought in the initial petition, legally admissible evidence is required to prove the statutory grounds. MCR 3.977(E)(3). JW testified at the combined adjudication trial and termination hearing, but she was not asked whether she had seen respondent and JS together after JS was released on bond. On remand, if petitioner introduces evidence of an ongoing relationship with JS, beyond what respondent admitted, that evidence would be relevant to predict respondent's future conduct.
Furthermore, although there is certainly significant evidence that respondent has been a victim and perpetrator of domestic violence in her prior three relationships, nothing on the record suggests that she is currently engaged in such a relationship. And, although domestic violence may be reason to terminate the rights of a parent who has failed to benefit from services intended to address that problem, where no such services have been offered, "it would be impermissible for a parent's parental rights to be terminated solely because he or she was a victim of domestic violence." In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011).
In a supplemental brief filed on appeal, petitioner directs us to consider In re C M R Kaczkowski minor, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 341138). In that case, the respondent was in an ongoing relationship with a man, JK, who had a prior conviction for child molestation in Oklahoma and had been ordered to not have contact with any minor children. Id. at ___; slip op at 1. In affirming the trial court's termination decision under MCL 712A.19b(3)(c), (g), and (j), this Court noted that, "[d]espite respondent's denials, substantial evidence was presented that respondent had continued to voluntarily associate with JK and allowed the child to be around him. She continued to remain in contact with him, contrary to court orders and despite repeated reminders that neither she nor the child was allowed to have any contact with him." Id. at ___; slip op at 4. In addition, the respondent's therapist "expressed concern about [the] respondent's continued contact with JK, and opined that [the] respondent's continued poor decisions in choosing relationships with abusive men was a risk to the child's safety." Id. at ___; slip op at 3. Moreover, the respondent in C M R Kaczkowski minor received numerous services to correct her deficiencies over a period of approximately 2 ½ years, but she was unable to show sufficient progress. Id. at ___; slip op at 5.
In contrast, there is no evidence of an ongoing relationship between respondent and JS. After JS was arrested for child abuse, respondent told him that he could not have further contact with the child. Although she testified that she was uncertain about JS's culpability during the two weeks the child was at the hospital, she testified unequivocally at trial that she would not have further contact with JS and that she fully believed that he had abused the child. Moreover, the decision to not provide respondent with any services left a "hole" in the record, making it more difficult to reasonably predict her future behavior without resorting to blatant speculation that she let her child get hurt in the past so she will likely let the child get hurt again in the future.
The CPS worker assigned to the case testified that there were no services that could be offered to respondent to rectify the situation. However, we note that it is somewhat common for respondents in child protective cases to be offered parenting classes, domestic violence classes, psychological and psychiatric evaluations, anger management classes, individual and group counseling, and other services tailored to address the deficiencies in a respondent's parenting. It is unclear how it was determined that respondent would not benefit from any of these services. For instance, there is no testimony that respondent was resistant to receiving services, had received similar services in the past without benefit, or was otherwise incapable of benefiting. Yet, regardless of whether services were required, as explained in section III(B) of this opinion, no services were required in this case, and that fact remains true on remand.
Stated differently, the trial court based its termination decision on respondent's history of domestic violence and her delay in believing JS was responsible. The court found that respondent's actions showed a lack of insight that was detrimental to the children. However, the court's decision to terminate was based on speculation as to what would happen in the future, without any reliable testimony that respondent would continue to have a relationship with JS or any other abuser. In the absence of such evidence, we are left with a definite and firm conviction that the trial court made a mistake; there is not clear and convincing evidence to establish that respondent had an opportunity to prevent the physical abuse inflicted on the baby and that there is "reasonable likelihood" that her children will suffer an injury or abuse in the foreseeable future if returned to respondent's care, so termination was not proper under MCL 712A.19b(3)(b)(ii). Additionally, the evidence does not establish by clear and convincing evidence a "reasonable expectation" that respondent will be unable to provide proper care and custody in the future considering the children's ages, so termination was not proper under MCL 712A.19b(3)(g). Finally, the evidence does not establish by clear and convincing evidence that there is a "reasonable likelihood" that the children will be harmed if returned to respondent's care, so termination was not proper under ML 712A.19b(3)(j). Accordingly, on this record, we conclude that the trial court erred by finding grounds to terminate respondent's parental rights under MCL 712A.19b(3)(b)(ii), (g), and (j).
Given our conclusion, we decline to address the trial court's best-interests determination. --------
IV. CONCLUSION
The trial court did not err by taking jurisdiction over respondent's children under MCL 712A.2(b)(1). Additionally, because there are aggravating circumstances in this case, petitioner is not required to provide respondent with reasonable reunification efforts, nor was it improper for petitioner to seek termination in the initial petition. However, because the trial court erred by finding by clear and convincing evidence that there were statutory grounds to terminate respondent's parental rights, we vacate the termination order and remand for further proceedings. Our holding should not be construed to mean that petitioner cannot again seek termination of respondent's parental rights under any of the cited statutory grounds (or under new statutory grounds, if applicable). Instead, our holding is only that, on the evidence presented at the combined adjudication trial and termination hearing, there was not enough evidence to support the trial court's findings.
We affirm the trial court's jurisdictional decision, but vacate its termination order and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly