            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


                                                                       UNPUBLISHED
 In re JOHNSON/CLEMENTS, Minors.                                       February 11, 2020

                                                                       No. 348958
                                                                       Genesee Circuit Court
                                                                       Family Division
                                                                       LC No. 18-135503-NA


Before: BOONSTRA, P.J., and TUKEL and LETICA, JJ.

PER CURIAM.

         Petitioner, the Department of Health and Human Services (DHHS), appeals by right the
trial court’s order dismissing its petition for the court to take jurisdiction over respondents’ minor
children. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

         Respondents are the mother and father of 6 minor children, one of whom, MC, died in
 their care at four months of age. On October 23, 2018, Michael Zelinski, a Mt. Morris Township
 Police Officer, was dispatched to respondent’s home after an emergency call from respondents
 reporting that MC was not breathing. Officer Zelinksi found respondent-mother in a bedroom
 attempting to perform CPR on MC. Officer Zelinski testified at the adjudication hearing that
 the bed was covered with clothing, bedding material, and random items, and that a crib in the
 room was full of various items, including a liquor bottle, some wire, cigarette ash, a box of
 crackers, an empty water bottle, a soiled diaper, a plastic bag, an empty petroleum jelly bottle,
 and a broken cell phone. Respondent-mother told Officer Zelinski that she was in a panic after
 finding MC and had been throwing items around the room while trying to help him. MC was
 taken to McLaren hospital and died the following day. Respondent-mother told a Child
 Protective Services (CPS) investigator that she had placed MC and his twin brother AC face up
 on a pillow on an adult bed while cleaning. At the preliminary hearing, the trial court authorized
 the petition but dismissed petitioner’s claim for the immediate termination of respondents’
 parental rights. Respondents had entered into a voluntary safety plan with CPS, under which
 the three younger children remained in the home under the direct supervision of the maternal
 grandmother and the two older children were placed with their paternal grandfather. The trial
 court did not order the removal of any of the children.


                                                 -1-
            A two-day adjudication trial was held in April 2019. CPS employees testified at the trial
    that respondents had been the subject of three previous CPS investigations1 that had not resulted
    in a petition for court supervision. During these investigations, CPS employees noted a lack of
    “safe-sleeping” practices for infants, and instructed respondents that any child under the age of
    12 months had to be placed alone in an empty bassinet, crib or “Pac’n Play” with a firm surface
    and tight-fitted sheets. Respondents ultimately signed three “safe-sleep agreements” between
    2015 and 2017, indicating that they understood the need to follow this protocol.

             A CPS investigator, Caroline Ostrander, testified that she visited respondent’s home on
    the day MC was taken to the hospital, and that respondent-mother had told her that she had
    placed AC and MC on respondents’ bed and had sat on the bed while folding laundry;
    respondent-father was also on the bed watching TV. AC’s grandmother later came and took
    AC off the bed because he was fussing. Respondent-mother told Ostrander that respondents
    dozed off and that she awoke to find MC in the same position, on his back, but not breathing.
    Ostrander testified that when she received the initial call to investigate respondents after MC’s
    death, she was advised that respondents’ home was in a deplorable state; however, she stated
    that after her investigation she “didn’t think that the home was deplorable at all.” Yet Ostrander
    believed that there was a risk of harm to AC due to respondents’ failure to follow safe-sleep
    protocols, and had respondents sign yet another safe-sleep agreement. Ostrander made home
    visits in December 2018 and January 2019 and found no issues with the home environment or
    the children.

             Brian Hunter, M.D., the Genesee County Medical Examiner, testified that he performed
    an autopsy on MC, had found nothing out of the ordinary after the examination,2 and had ruled
    that the cause of death was “undetermined in the setting of unsafe sleep.” Dr. Hunter further
    testified:

          [W]hen we have a death like this, where we really don’t have concrete evidence
          that -- of the position that the child was found in when he or she is found
          unresponsive and we don’t have documented evidence of overlaying, the cause of


1
  The investigation in 2015 was for suspected physical abuse based on respondent-mother having
slapped one of the children. This investigation was substantiated and respondent-mother was
charged with domestic violence; however, the investigation found no pattern of ongoing abuse and
CPS opted to provide respondents with in-home services rather than file a petition for removal. In
2017, another investigation for suspected child abuse based on respondents’ oldest child being
absent from school was unsubstantiated. Also in 2017, MC and AC tested positive for THC (the
active ingredient in marijuana) at birth. This investigation was opened and closed the same day.
All three of the investigations involved home visits that found no other issues, apart from the fact
that safe sleep protocols were not being followed.
2
  Dr. Hunter did testify on cross-examination that he had discovered the presence of bacteria related
to bronchial pneumonia and that MC was “positive for human rhinovirus and enterovirus,” which
Dr. Hunter described as “the virus that causes a cold.” However, Dr. Hunter could not state with
certainty that these findings indicated that MC had either pneumonia or a cold while he was alive,
as they could have been caused by postmortem contamination.

                                                   -2-
       death is listed as undetermined; and, as long as there’s no other injury or natural
       disease, the cause of death is listed as undetermined but we note in the setting of
       unsafe sleep; so that we’re still tracking these cases epidemiologically so we’re
       looking at how many kids are dying in these unsafe sleep environments. . . . [T]here
       were unsafe sleep practices being followed; and the implications of those unsafe
       sleep practices, I can’t say definitively that someone overlaid the child or
       someone’s face was buried -- your know, the child’s face was buried in a pillow.
       We note the presence of unsafe sleep because epidemiologically we need to track
       those cases where children are dying [of] unsafe sleep, otherwise you’ll never be
       able to speak later on throughout time about what’s the incidents [sic] of unsafe
       sleep practices in the community.

         Brian Nolan, M.D., a board-certified doctor in child pediatrics, pediatric critical care,
 and the treatment of child abuse, testified as petitioner’s expert and opined that MC had been
 deprived of oxygen, leading to his death. Dr. Nolan indicated that he had reviewed MC’s
 records and had found no disease or defect that would account for MC having suffered from
 lack of oxygen or cardiac arrest, and that MC appeared to have been well cared-for. Dr. Nolan
 stated that he would be “concerned” if MC had been sleeping in a bed between sleeping parents.
 Dr. Nolan opined that MC’s cause of death was likely “positional asphyxia,” caused by unsafe
 sleeping practices, although he could not state so definitively. On cross-examination, Dr. Nolan
 admitted that MC’s medical records stated that there was a “concern for SIDS [Sudden Infant
 Death Syndrome].” When asked about this statement, Dr. Nolan stated generally that infant
 deaths from SIDS were much rarer than doctors had believed in the past, and that many SIDS
 deaths were actually deaths from other causes, such as unsafe sleep. However, he admitted that
 deaths from SIDS still occurred and were still a concern.

        During its closing argument, petitioner argued that the court should take jurisdiction
because of respondents’ improper supervision, so that it could be verified that respondents were
practicing safe-sleep practices. The children’s lawyer-guardian ad litem (L-GAL) argued that it
was unnecessary for the court to take jurisdiction over the children, noting that the children were
currently doing well and that MC’s cause of death was inconclusive.

       The trial court declined to take jurisdiction over the children, stating:

       [T]he court has enough experience in cases like this that it could fashion a rational
       basis for going either way. . . . It could be argued that had the baby not been in that
       bed, we wouldn’t be here. . . [T]he bottom line is the other kids in the house have
       been well cared for. We’re quickly approaching that one year birth date; and
       certainly the historic incidents and these proceedings can be about as much of a
       learning, an educational component—and you talk about learning the hard way, this
       certainly is it—but the case is in the margins; and, moreover, the benefit of finding
       jurisdiction and ordering services in not readily apparent . . . based on what’s been
       presented in court, um, I don’t know if you’re talking about smoking guns, I -- I
       don’t see it. . . . But I’m not going to find jurisdiction. I don’t believe it’s in the --
       in the children’s best interests. I don’t think compounding a tragedy with further
       court or agency intervention is appropriate. I would implore the parents to do
       anything other than end up sleeping in the same bed with the kids . . . .

                                                  -3-
         The trial court issued an order declining to take jurisdiction over the children. The order
was a Supreme Court Administrative Office (SCAO) form order, and it reflected a check in the
box that stated, “[a]fter trial, and by clear and convincing evidence, there are no statutory grounds
to exercise jurisdiction over the children.”

        This appeal followed.

                                  II. STANDARD OF REVIEW

        Generally, the applicable evidentiary standard applied by a trial court presents a question
of law that this Court reviews de novo. Pierron v Pierron, 282 Mich App 222, 243; 765 NW2d
345, 361 (2009); In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006). However, because
the issue of the evidentiary standard applied in this case was never raised before, discussed, or
decided by the trial court, we review this unpreserved issue for plain error. See Demski v Petlick,
309 Mich App 404, 426; 873 NW2d 404 (2015). This Court reviews for clear error the trial court’s
decision whether to exercise jurisdiction. In re BZ, 264 Mich App 286, 295; 690 NW2d 505, 510
(2004). Clear error exists “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. To be clearly erroneous, a decision must be more than maybe or
probably wrong. In re Williams, 286 Mich App 253, 271; 779 NW2d 286, 296 (2009).

            III. EVIDENTIARY STANDARD APPLIED BY THE TRIAL COURT

       Petitioner argues that the trial court mistakenly applied the clear and convincing evidence
standard of proof to petitioners’ request to take jurisdiction, rather than the preponderance of the
evidence standard. We disagree.

        A court may assume jurisdiction over a child if the evidence supports allegations of
wrongdoing that meet the requirements of MCL 712A.2(b)(1) and (2). For the trial court to do so,
the petitioner must prove by a preponderance of the evidence one or more of the statutory grounds
for jurisdiction alleged in the petition. See MCR 3.972(C)(1); In re Sanders, 495 Mich 394, 405;
852 NW2d 524, 529-530(2014).

        Here, the trial court did not expressly state at the adjudication trial which standard of proof
it was applying, but in the order declining to exercise jurisdiction, it checked the box for “clear
and convincing evidence.” Yet the trial court stated on the record that it “could fashion a rational
basis for going either way” and that “the case is in the margins,” which to us seems more
consistence with the application of a preponderance standard.

        “A trial judge is presumed to know the law.” Demski, 309 Mich App at 427. Although the
trial court did not announce which evidentiary standard it was applying, there is no evidence in the
record, apart from a single checked box on a SCAO form order, that it applied an incorrect one.
We decline to find plain error under these circumstances. Demski, 309 Mich App at 426; see also
MCR 2.613(A).

       Petitioner also argues that the trial court improperly engaged in a best-interest
determination before determining whether it had jurisdiction. We disagree that petitioner has
                                                 -4-
accurately characterized what the trial court said. The trial court merely stated, after holding that
it would not be asserting its jurisdiction, that it was not in the children’s “best interest” for it to do
so; it did not conduct a best-interest analysis. In context, it appears that trial court was expressing
its belief that its decision was the correct one for the welfare of the children and the family before
it; we disagree with petitioner that the trial court’s decision was based on an improper best-interest
analysis rather than the evidence before it and the applicable law.

                                 IV. ADJUDICATION DECISION

       Petitioner also argues that the trial court erred by declining to take jurisdiction over the
children. We disagree.

        A child comes under a trial court’s jurisdiction and becomes a ward of the court when the
trial court finds by a preponderance of the evidence that there is factual support to exercise
jurisdiction under MCL 712A.2(b). See MCR 3.972(E); MCR 3.977(E)(2); In re AP, 283 Mich
App 574, 593; 770 NW2d 403, 413 (2009). MCL 712A.2(b) provides 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. . . .

        MCL 333.5885 requires hospitals and health professionals to advise parents of infant safe-
sleep practices. MCL 333.5887 requires petitioner to work with other organizations to inform
parents of infant safe-sleep practices and the risk of infant death from unsafe sleep, and to provide
educational and instructional materials on this issue. Here, it is undisputed that CPS had educated
respondents on safe-sleep practices during three previous investigations in 2015 and 2017 and that
respondents had failed to follow those practices regularly. Further, it is undisputed that MC ceased
breathing while he was placed on respondent’s adult bed with bedding and pillows. However, Dr.
Hunter did not determine that the cause of death was unsafe sleep practices; rather, he only
concluded that the death was “undetermined in the setting of unsafe sleep.” Dr. Hunter’s further
statements clarified that the reference to unsafe sleep was part of a larger-scale collection of
epidemiological data, not a statement regarding causation in this particular case. Dr. Nolan,
petitioner’s expert, opined that it was “likely” that MC died of positional asphyxia based on his
review of the medical records, but could not definitively state that unsafe sleep practices were the
cause of MC’s death. MC’s medical records stated a concern for SIDS and positive tests for
pneumonia and the cold virus, although Drs. Nolan and Hunter, respectively, offered alternative
explanations for those factors.

                                                   -5-
        We agree with the trial court that there was evidence presented in support of both
petitioner’s and respondent’s positions. There was evidence that MC’s death was caused by
positional asphyxia, but also that MC’s cause of death could not be determined. Moreover, MC
did not die in his regular sleep environment, but expired after his parents fell asleep briefly with
him on their bed. While Ostrander and Officer Zelinski testified that they saw a crib full of
inappropriate items in respondents’ bedroom, it was never established that any child used the crib
to sleep. And even if MC did die of positional asphyxia, Ostrander’s testimony from subsequent
home visits indicated no problems with the rest of the children’s sleeping environments, or that
the children were at risk of harm or neglect in any other way.

        Under the circumstances of this case, we may have found no error if the trial court had
decided to exercise jurisdiction over the children. However, we reiterate that a finding of clear
error requires more than a finding that the trial court might have been wrong. Williams, 286 Mich
App at 271. And we are not left with a definite and firm conviction, giving due regard to the trial
court’s special opportunity to observe the witnesses, that the trial court made a mistake by
declining to exercise jurisdiction. In re BZ, 264 Mich App at 295. The trial court was not tasked
with determining whether MC’s death was definitely caused by positional asphyxia; rather, it was
tasked with determining whether the remaining children were at risk of harm such that it should
take jurisdiction over them. It heard evidence that the younger children (including AC, the only
child young enough to also be at risk from the unsafe sleep practices at issue in this case) were
doing well at home and that Ostrander had no current concerns for the children’s safety.
Additionally, the children’s L-GAL recommended against the court’s exercise of jurisdiction,
noting that the cause of death was inconclusive and that no criminal charges had been filed against
respondents. The L-GAL also stated that he was unsure what services would be offered if the
court did exercise jurisdiction other than to “look in there and make sure nobody’s sleeping with
the baby.” Finally, petitioner’s argument that the court should take jurisdiction was based on its
stated desire to ensure that respondents were following safe-sleep protocols; petitioner did not
allege that the children were at risk of any other type of harm or neglect. 3 Under the facts of this
case, we do not find clear error in the trial court’s adjudication decision and decline to reverse it.
In re BZ, 264 Mich App at 295.

       Affirmed.



                                                              /s/ Mark T. Boonstra
                                                              /s/ Jonathan Tukel




3
  Although not raised by either party, we note that by this point AC has aged beyond the period of
risk for unsafe sleep death at issue in this case. Although we do not decide the issue on this basis,
it does raise the question of whether, even if we agreed with petitioner, any relief we could grant
would be moot. Garrett v Washington, 314 Mich App 436, 449; 886 NW2d 762 (2016) (“[a]
matter is moot if this Court’s ruling cannot for any reason have a practical legal effect on the
existing controversy.”) (quotation marks and citation omitted).

                                                 -6-
