                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re MURPHY, Minors.                                                April 14, 2016

                                                                     Nos. 328791; 328796
                                                                     Macomb Circuit Court
                                                                     Family Division
                                                                     LC Nos. 2014-000284-NA
                                                                             2014-000285-NA
                                                                             2014-000286-NA
                                                                             2014-000287-NA


Before: O’CONNELL, P.J., and MARKEY and O’BRIEN, JJ.

PER CURIAM.

        In these consolidated appeals, respondent-father H. Murphy (Docket No. 328791) and
respondent-mother K. Murphy (Docket No. 328796) each appeal as of right the trial court’s order
terminating their parental rights to their four minor children under MCL 712A.19b(3)(b)(i)
(parent caused severe abuse), (b)(ii) (parent failed to prevent severe abuse), (g) (failure to
provide proper care and custody), and (j) (risk of harm if children returned to parents). We
affirm.

                                 I. FACTUAL BACKGROUND

                                      A. ADJUDICATION

        The Department of Health and Human Services (DHHS) removed the four minor children
from the Murphys in December 2013 after the children’s infant sibling died while in the
Murphys’ care. The trial court held an adjudication trial by jury to determine its jurisdiction over
the children.

        At the trial, Sterling Heights Police Detective Mark Glazewski testified that, in October
2013, the Murphys’ 11-month-old daughter died of a morphine overdose. When he was at the
home, there was clothing and debris scattered around, and live electrical cords resembling long
jumper cables—which the Murphys used to illegally pirate power from a neighbor’s home—
crossed the floors. The child’s crib was filled with junk and debris. Mother told him that the
child’s grandmother had died recently of terminal cancer, for which she had been prescribed
morphine, and mother must have misplaced one of the morphine pills. Police found a bottle of
60 milligram morphine pills in the home, an amount consistent with the dose that killed the child.


                                                -1-
        Marquita Gaines testified that the Murphys had an extensive history with Children’s
Protective Services (CPS). These complaints included burns on the children, that the children
were left at an abandoned home without utilities, that the Murphys struck the children with
objects, that the children attended school without clean clothes or hygiene, and that one of the
children stole food and they reported being hungry. While CPS did not substantiate all of the
complaints, Gaines found the pattern concerning. The older son was taken to a dentist while in
foster care, and the dentist testified that when he treated the child, he had gingivitis and
periodontitis, severe problems that took a long time to accumulate.

       According to Gains, she filed a protective petition over the Murphys’ remaining children
because the Murphys had a history of unsuitable housing. Taneisha Sims, the children’s foster
care caseworker, testified that the children were placed with a paternal aunt. Sims testified that
the aunt met the children’s medical and dental needs and that the children’s grades improved.

        According to Detective Glazewski, when the infant died, mother was pregnant. After
mother gave birth, mother left the hospital with the child and officers were unable to locate the
child for five months. Mother and father would drive in circles for hours after court hearings to
lose surveillance vehicles. Sims testified that mother only stated there was “no baby,” and both
parents refused to return her calls. A relative eventually delivered the infant to authorities.

        Dr. Patrick K. Ryan testified that he was a licensed psychologist and board-certified
neuropsychologist who had practiced psychology for 40 years. The parties stipulated to Dr.
Ryan’s expertise as a psychologist. According to Dr. Ryan, he performed psychological
evaluations of the Murphys in 2009, and he administered the three standard tests he had used
over 20,000 times to determine their personality functioning and its impact on parenting. While
neither mother nor father suffered from mental disorders, they both did not believe they required
assistance. Father’s answers to questions indicated he did not take the process seriously and was
not invested in it.

        The children fell asleep in Dr. Ryan’s waiting room and did not appear to be well-
mannered or cared for. The oldest child had significant cognitive impairments, the middle child
was energetic and pleasant but had mild cognitive impairments, the youngest child was highly
intelligent, and he could not evaluate the infant. All the children were positively bonded to their
parents, but Dr. Ryan opined that the children required stable environments and nurturing from
diligent parents to reach their full potential.

         Following the testimony, the jury found that DHHS had proven one or more grounds for
the trial court to take jurisdiction over the children.

                                       B. DISPOSITION

       At the dispositional hearing, Dr. Ryan updated the trial court to inform it that he had
attempted to make further contact with the Murphys to provide services, but they had not
contacted him. The Murphys chose not to testify because they had pending criminal charges
involving the infant’s death.

       The trial court found that the Murphys’ home was filthy and deplorable and had
hazardous conditions such as morphine and live electrical wires on the floor. It also found that
                                               -2-
the Murphys had an extensive history with the Department and “don’t take any of it seriously.”
On the basis of the testimony at the adjudication, the trial court found there was clear and
convincing evidence that one or both of the Murphys’ acts or omissions had caused the death of
their 11-month-old infant. It also found that the evidence showed the Murphys failed to provide
their children with proper care, and that the children would be harmed if returned to the home.

         The trial court spent an extensive amount of time discussing the children’s best interests.
It found that, while the children loved their parents and the parents loved the children, other
factors supported terminating the parents’ rights. The parents failed to keep a decent home and
keep the children clean and healthy. They failed to provide for the children’s physical needs for
food, clothing, and medical care. The children had stabilized in their current placement, but had
little permanence and stability with the Murphys, who had moved around a lot. The children had
not been doing well in school until they were placed in foster care, where they were “doing way
better in the current placement by all counts.” It noted that the children had a family connection
and found that the children’s safety was a paramount concern. Accordingly, the trial court
determined that terminating the Murphys’ parental rights was in the children’s best interests.

                                 II. STANDARDS OF REVIEW

        This Court reviews for clear error a jury’s verdict regarding the trial court’s jurisdiction
over children. See In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). We review for
clear error the trial court’s factual findings and ultimate determinations on the statutory grounds
for termination. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). We also review for
clear error the trial court’s determination regarding the children’s best interests. In re Trejo
Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000). A finding is clearly erroneous if, after
reviewing the entire record, we are definitely and firmly convinced that the trial court made a
mistake. Mason, 486 Mich at 152. We review for an abuse of discretion challenges to the trial
court’s evidentiary rulings. In re Utrera, 281 Mich App 1, 15; 761 NW2d 253 (2008). The trial
court abuses its discretion when its decision falls outside range of principled outcomes. Id.

                      III. ADJUDICATION AND EXPERT TESTIMONY

       Mother and father challenge the sufficiency of the adjudication on different grounds.
Father argues that Dr. Ryan impermissibly testified as an expert without the trial court admitting
him as such, and mother argues that insufficient evidence supported the jury’s verdict. We
disagree with both arguments.

        Father has waived any contention regarding Dr. Ryan’s qualifications as an expert. “A
waiver is the intentional relinquishment or abandonment of a known right.” Acorn Investment
Co v Mich Basic Prop Ins Ass’n, 495 Mich 338, 357; 852 NW2d 22 (2014) (quotation marks and
citation omitted). A party’s waiver precludes that party from asserting an error on appeal.
Braverman v Granger, 303 Mich App 587, 608; 844 NW2d 485 (2014). In this case, father
stipulated to Dr. Ryan’s qualifications at the adjudication. He cannot now challenge them on
appeal.

       Mother contends that there was no proof of neglect or harm to the children at the
adjudication. At the adjudication, the petitioner must prove by a preponderance of legally

                                                -3-
admissible evidence that the children are subject to the trial court’s jurisdiction. In re S R, 229
Mich App 310, 314; 581 NW2d 291 (1998). MCL 712A.2(b) grants the trial court jurisdiction
over children

       (1) [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, . . . [or]

       (2) [w]hose 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.

       While mother credits the testimony of witnesses who testified that the home was in a
temporary state following the death of the children’s grandmother, the presence of conflicting
testimony creates a question of credibility, which is for the trier of fact to determine. See People
v Lemmon, 456 Mich 625, 642-643; 576 NW2d 129 (1998). This Court defers to the credibility
findings of the trier of fact and will not substitute our judgment for that of the jury. See
Woodington v Shokoohi, 288 Mich App 352, 358; 792 NW2d 63 (2010).

         Mother focuses on the supposedly temporary disarray in the home, but this case went
beyond a messy house. As previously described, at the adjudication in this case, Detective
Glazewski detailed the dangerous conditions in which the children were found. And Gains
testified that the children were subject to ongoing neglect and that this was not the first unsafe
environment in which the children lived. The Department previously provided the Murphys with
housing-related services. What is unfortunate is that it took the death of a child for the surviving
children to be removed from the Murphys’ care. We are not definitely and firmly convinced that
the jury made a mistake when it found that the Murphys had neglected to provide support for the
children or had provided the children with an unsafe home environment.

                                 IV. STATUTORY GROUNDS

       The Murphys both challenge the trial court’s finding that statutory grounds supported
terminating their parental rights. We disagree.

        The Department has the burden to prove the existence of a statutory ground by clear and
convincing evidence. MCL 712A.19b(3); Mason, 486 Mich at 166. Clear and convincing
evidence is “evidence so clear, direct and weighty and convincing as to enable [the factfinder] to
come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” In re
Martin, 450 Mich 204, 227; 538 NW2d 399 (1995) (quotation marks and citation omitted,
alteration in original).

       MCL 712A.19b(3)(b) provides that the trial court may terminate a parent’s rights if

       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:


                                                -4-
              (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.

Termination under MCL 712A.19b(3)(b)(i) and (ii) is appropriate when “at least one of [the
parents] had perpetrated the abuse and at least one of them had failed to prevent it[.]” In re Ellis,
294 Mich App 30, 35; 817 NW2d 111 (2011). “Evidence 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).

       MCL 712A.19b(3)(g) provides that the trial court may terminate a parent’s rights if

       [t]he 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.

And MCL 712A.19b(3)(j) provides that the trial court may terminate parental rights if

       [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.

A parent’s failure to comply with his or her service plan is evidence that the parent will not be
able to provide a child with proper care and custody and that the child may be harmed if returned
to the parent’s home. In re White, 303 Mich App 701, 710-711; 846 NW2d 61 (2014).

         In this case, the Murphys’ 11-month-old infant died after consuming morphine in their
extremely dirty house. This was not the only dangerous condition present: Detective Glazewski
testified that electrical wires also ran across the floor and that he could have been electrocuted if
he stepped on them. The Department previously provided the Murphys with services and they
still failed to maintain decent housing. Additionally, during the pendency of the case, the
Murphys not only failed to participate in services but fled with their new infant and concealed
her from the authorities. There could hardly have been greater evidence that the Murphys did
not intend to comply with a service plan designed to protect their children, but additionally,
Gaines and Dr. Ryan testified that the Murphys consistently failed to contact them. Dr. Ryan
also testified that the Murphys did not believe they needed assistance.

        We are not definitely and firmly convinced that the trial court erred when it found that
statutory grounds supported terminating the Murphys’ parental rights. Clear and convincing
evidence supported the trial court’s findings that at least one of the Murphys caused the physical
injury and one of them failed to prevent it, that the children were not properly cared for, and it


                                                -5-
was reasonably likely that another child would suffer a serious physical injury if left in the
Murphys’ care.

                                      V. BEST INTERESTS

        Finally, mother contends that the trial court erred by determining the children’s best
interests without considering their placement with relatives and terminating her rights when she
and the children had a positive bond. We disagree.

        The trial court must order the parent’s rights terminated if it finds from a preponderance
of evidence that termination is in the children’s best interests. In re Olive/Metts Minors, 297
Mich App 35, 40; 823 NW2d 144 (2012); In re Moss, 301 Mich App 76, 83; 836 NW2d 182
(2013). To determine whether termination of a parent’s parental rights is in a child’s best
interests, the court should consider a wide variety of factors that may include “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.” Olive/Metts, 297 Mich App at 41-
42. 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.” White, 303 Mich App at
714. The trial court’s factual findings concerning the child’s best interests are factually
inadequate if the child is placed with a relative, but the trial court does not consider that factor
when determining the child’s best interests. In re Mays, 490 Mich 993, 994; 807 NW2d 307
(2012).

         The trial court acknowledged that the children had a strong, positive bond with the
Murphys. But the children’s bond with the parents is only one factor that the trial court should
consider when determining the children’s best interests. In this case, the court considered a wide
variety of factors, most of which it weighed against the Murphys. These factors included the
children’s safety, permanence, stability, hygiene, living environment, other material needs, and
improvement in their foster care placement. Additionally, the trial court considered the
children’s placement with relatives. It remarked on their “safety, permanency, and family
connections” when deciding their best interests. The trial court considered appropriate factors
when determining the children’s best interests, and we are not definitely and firmly convinced
that it made a mistake.

       We affirm.

                                                              /s/ Peter D. O’Connell
                                                              /s/ Jane E. Markey
                                                              /s/ Colleen A. O’Brien




                                                -6-
