                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re WILSON, Minors.                                                May 26, 2016

                                                                     No. 328388
                                                                     Wayne Circuit Court
                                                                     Family Division
                                                                     LC No. 15-518699-NA


Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

       Respondent appeals as of right the trial court’s order terminating her parental rights to her
sons CW and EW pursuant to MCL 712A.19b(3)(b)(i) (parent causes physical injury), MCL
712A.19b(3)(b)(ii) (parent fails to prevent physical injury), MCL 712A.19b(3)(g) (failure to
provide proper care and custody), MCL 712A.19b(3)(j) (reasonable likelihood of harm), and
MCL 712A.19b(3)(k)(iii) (parent causes severe physical abuse).1 For the reasons stated in this
opinion, we affirm.

        On December 3, 2014, respondent went to work, leaving her children at her home with
two live-in babysitters, Curtis Lee and Angela Taylor. Respondent testified that while she was
working, the babysitters called and told her that EW was hurt. Respondent returned home and,
because EW had a big bruise above his eye and was not walking, she took him to the hospital.
At that time, EW was given ibuprofen and sent home. Respondent testified that she followed up
with EW’s pediatrician on December 5, 2014.

         According to Kimberly Spencer, a Child Protective Services (CPS) investigator, the
police performed a wellbeing check on the children on December 3, 2014. Two days later, on
December 5, 2014, Spencer made an unannounced visit to respondent’s home to address
allegations that the children were being put in the closet and that there was domestic violence
between respondent and her boyfriend, Jordan Sosa. Sosa was living with respondent, and
during the visit, respondent denied that she had been the victim of domestic violence. She later
testified that the reason she denied the allegations of domestic violence was because Sosa was in
the room during the visit. Spencer, however, testified that Sosa was not in the room when


1
  The trial court also terminated the parental rights of EW’s putative father and CW’s legal
father, neither of which has appealed the decision.



                                                -1-
respondent denied the domestic violence allegations. She also testified that respondent’s
“perfectly normal” demeanor did not change when Sosa entered the room. Spencer testified that,
at that time, she was satisfied that there was no domestic violence between the two; however, she
followed up with the police department and learned that there had been no domestic violence
runs to respondent’s home.

         Respondent testified that, because she did not know what happened to EW, she kicked
Sosa and the babysitters out of her house, quit her job, and stayed home with the children. She
testified, however, that she could not keep Sosa away. According to respondent, Sosa beat her
dozens of times and would kick or rip open her doors. She testified that she called the police
numerous times, but that they did not do anything, only advised Sosa to stay away, and made
things worse for her. She testified that she did not report the domestic violence to Spencer when
Sosa was not around because she was afraid.2

        On January 5, 2015, respondent took EW to the hospital again. After medical personnel
determined that EW had fractured bones in both legs, he was transferred to the Children’s
Hospital of Michigan, where he remained for three days. Dr. Brian Park a pediatric emergency
medicine physician at the Children’s Hospital, testified that EW had a fresh fracture on his left
lower leg, a healing fracture on his right leg, fractures on his ribs, and a skull fracture at the base
of his skull. He testified that the fractures suggested non-accidental trauma because there were
multiple fractures and they were in non-typical areas for a mobile 22-month old child. Dr. Park
opined that the fractures would be painful to a child.

         Spencer testified that she met respondent at the hospital to discuss the new allegations.
At the termination hearing, respondent testified that she did not have an explanation for the
fractures. However, she thought one leg fracture could have been caused by EW climbing a
dresser and falling and the other leg fracture could have been caused by CW jumping on EW.
She testified that the rib fractures could have been from Sosa stomping on EW, and she added
that, although she did not see such an incident, CW told her it happened. She believed that the
skull fracture was from CW hitting EW with a toy truck.

        Dr. Park, however, opined that while it was possible that CW caused the leg fracture, it
was unlikely that he caused the skull fracture. He explained that the most likely causes of a skull
fracture were non-accidental trauma or a car accident. Dr. Park added that any indentation in the
skull was “pretty severe” and was a “very significant injury” in a 22-month old child. He also


2
  Respondent testified at length about additional domestic violence that occurred between her
and Sosa after the children were removed. She testified that Sosa punched her on Easter,
bruising her face while witnesses were present. She said no one called the police. She testified
that, about a week later, Sosa showed up at her house around 3:00 a.m. and kicked in her back
door. She testified that he stayed for five hours, ranting, raving, and arguing with her. She
testified that she put her four dogs in her bedroom and went to sleep. She testified that Sosa also
got into bed and that she had sex with him out of fear. She stated that she did not call the police
when he arrived because Sosa took her phone; however, she testified that around 8:00 a.m., when
her mother arrived, her mother called the police. Sosa was arrested at that time.



                                                 -2-
opined testified that it was “highly unlikely” that EW jerked his head back hard enough to cause
the fracture.

       On January 8, 2015, petitioner filed an initial petition seeking termination of respondent’s
parental rights to CW and EW because of allegations of severe physical abuse. Following an
adjudication and termination hearing, the trial court found grounds for jurisdiction under MCL
712A.2(b), grounds for termination under MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), and (k)(iii),
and that termination of respondent’s parental rights was in the children’s best interests. This
appeal follows.

       Respondent first argues that the trial court clearly erred in finding that MCL
712A.19b(3)(b)(i), (b)(ii), and (k)(iii) had been proven by clear and convincing evidence.3 We
disagree.

       MCL 712A.19b(3)(b)(i), (b)(ii), and (k)(iii) 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:

                                             * * *

              (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.

               (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.

                                             * * *

              (k) The parent abused the child or a sibling of the child and the abuse
       included 1 or more of the following:

                                             * * *


3
  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). “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.




                                                -3-
               (iii) Battering, torture, or other severe physical abuse.

         The record establishes that EW sustained fractures to his skull, legs, and ribs. Dr. Park
testified that the injuries were likely caused by non-accidental trauma, would be painful to a
child, and that the skull injury, in particular, was a very serious injury for a 22-month old child.
The trial court found that the injuries were either caused by respondent or by Sosa. Respondent
argues that these grounds were not established, however, because there was a lack of direct
evidence that she was the perpetrator of the harm directed against the minor child or that she
failed to protect him. Her argument fails to take into consideration past precedent of this Court.
First, termination of parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), and (k)(iii) “is
permissible even in the absence of definitive evidence regarding the identity of the perpetrator
when the evidence does show that the respondent or respondents must have either caused or
failed to prevent the child’s injuries.” In re Ellis, 294 Mich App at 35-36; 817 NW2d 111
(2011). Second, this Court has upheld terminations in the absence of determinative proof
regarding the identity of the abuser where the evidence supported a finding that the child’s
severe physical injuries were either intentionally inflicted by the respondent or caused by the
respondent’s failure to prevent the injuries. See In re VanDalen, 293 Mich App 120, 140-141;
809 NW2d 412 (2011). Here, the evidence established that after December 5, 2014, respondent
kicked everyone out of her house and was the children’s sole caregiver. She testified that Sosa,
however, continued to come into the house. She testified that he was abusive to her, beating her
multiple times and kicking open her door, but she took no steps against him until after the
children were removed from her home.4 She also testified at trial that Sosa caused at least some
of EW’s injuries by stomping on him, an allegation that she did not present in the five months
between the children’s removal and the date she testified at the termination hearing. There was
also testimony from Lee, one of the babysitters, that respondent was aware that Sosa struck CW
with a belt on at least one occasion and, rather than call the police, respondent attempted to
address the situation herself. Thus, on this record, we find no error in the trial court’s
determination that grounds for termination were established by clear and convincing evidence
under MCL 712A.19b(3)(b)(i), (b)(ii), and (k)(iii).

       Respondent’s rights were also terminated under MCL 712A.19b(3)(g) and (j), which
provide that termination is proper if there is clear and convincing evidence that:

               (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.

                                              * * *




4
 Respondent obtained a personal protection order (PPO) against Sosa on January 31, 2015. The
children were removed on January 9, 2015.



                                                 -4-
               (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.

The same evidence supports termination on these grounds. EW sustained multiple fractures,
requiring a three-day hospital stay. The fractures to his legs were in different stages of healing.
The fracture to his skull was described as a significant injury for a 22-month old child. By her
own testimony, respondent was the primary caregiver during the timeframe when he would have
been injured. At trial, she speculated to various causes for his injuries, including that he fell
from a dresser drawer, that his brother was too rough with him, and that Sosa had stomped on
him. Significantly, respondent testified at length about her abusive relationship with Sosa, but
she took no steps to protect the children from him and, in fact, denied that any abuse was
happening when asked by Spencer. She asserted that she did not reveal the abuse because she
was afraid, however, even after Sosa was arrested (apparently on a home invasion charge), she
did not offer him as a possible source for EW’s rib fractures until the day of the termination
hearing. The record is devoid of any pre-removal steps that respondent took to protect the
children from someone she described as beating her dozens of times. Likewise, assuming that
EW’s injuries were caused by his three-year old brother, CW, the record reflects that EW
received multiple fractures in spite of respondent’s efforts to keep the children separated.
Additionally, presuming that EW’s injuries were, in fact, caused by him climbing and falling
from a drawer, respondent testified to no steps that she took to prevent him from climbing the
dresser. Admittedly, Shirley Carr, a friend of respondent’s, testified that respondent and her
witnessed EW climbing the dresser and that they then repositioned it. However, assuming that
was the only step taken to alleviate the harm, the fact that EW may have later climbed and fallen
from the dresser suggests that the steps taken to alleviate the harm were, in fact, insufficient. For
these reasons, the trial court did not err in terminating respondent’s rights under (g) and (j).

        Respondent also challenges the trial court’s finding that termination of her parental rights
was in the best interests of the children. “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). Respondent argues that the best
interests determination was in error because there were no grounds for termination of her
parental rights. Given our determination that the trial court did not err in finding grounds for
termination, this argument is unavailing.

        Respondent next argues that the trial court’s best interests determination was erroneous
because the trial court did not expressly identify the standard of proof applicable to the decision.
“[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 Minors, 301 Mich App 76, 90; 836 NW2d 182
(2013). Respondent asserts that because the trial court did not expressly state that it was a
applying a preponderance of the evidence standard this Court cannot determine whether the trial
court used a probable cause standard of proof when it made its best interests determination.
Respondent has not directed us to any authority requiring the trial court to expressly identify the
standard of proof before making a best interests finding. Nor do we find that our ability to
review the record is impeded by the fact that the standard of proof was not stated on the record.
In reviewing the trial court’s decision, we are tasked with determining whether the trial court’s


                                                 -5-
findings are supported by a preponderance of the evidence. Thus, if the trial court, in fact, used
an improperly low standard of proof, such an error would become apparent upon review of the
record. Accordingly, we find that respondent’s argument lacks merit.

        Respondent also argues that the trial court’s best interests determination was clearly
erroneous because the court failed to allocate adequate weight to the strong bond between
respondent and the children. “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 35, 41-42; 823 NW2d 144 (2012) (internal
citations omitted). The trial court may also consider an unfavorable psychological evaluation,
the child’s age and a parent’s continued involvement in domestic violence. See In re Jones, 286
Mich App 126, 131; 777 NW2d 728 (2009).

         Here, the parties presented no evidence regarding respondent’s bond with her children.
However, the record reflects that respondent sought to have her parenting time changed from
once per week for three hours to twice per week for an hour and a half, so that she could see the
children more often and maintain her bond with them. Nevertheless, a parent’s bond with a child
is only one factor that may be considered by the trial court. In this case, the trial court found that
termination of respondent’s parental rights was in EW’s best interests because respondent could
not be trusted to protect him from harm. The record reflects that while in respondent’s care he
sustained—at different times—a fracture to his right leg, a fracture to his left leg, fractures to
multiple ribs, and a fracture to his skull. Respondent’s response was to blame EW, CW, and
Sosa for the injuries. The steps she allegedly took to protect EW from CW and from himself
were ineffective, given that even after she was home fulltime, EW sustained additional fractures.
Further, she took no steps to protect EW from potential abuse by Sosa. Instead, according to her
own testimony, she would leave the children unattended with Sosa, even though he had beat her
dozens of times and would not leave her home after she kicked him out. In particular, after
EW’s December 2014 hospital visit, respondent testified that she kicked everyone out of her
house, including Sosa. She then told Spencer that in January 2015, she left Sosa alone with EW
for fifteen minutes while she went to the store to purchase cigarettes. She then allowed Sosa to
take CW to preschool even though, according to Lee, she was aware that Sosa had struck CW
with a belt on at least one occasion. Although only EW sustained multiple fractures, the record
reflects that respondent’s parenting exposed CW and EW to a severe risk of physical harm
because both were being cared for primarily by respondent, who left both in the care of someone
she characterized as physically abusive. Accordingly, on this record, we conclude that the trial
court did not clearly err in finding that termination of respondent’s parental rights was in the
children’s best interest. Moreover, the trial court’s finding was supported by a preponderance of
the evidence.

       Affirmed.



                                                              /s/ Michael F. Gadola
                                                              /s/ Deborah A. Servitto
                                                              /s/ Douglas B. Shapiro


                                                 -6-
