            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                                                                   UNPUBLISHED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 CLEVELAND/GRANT/WEAVER, Minors.                              October 15, 2019

                                                                   No. 343832
                                                                   Wayne Circuit Court
                                                                   Family Division
                                                                   LC No. 17-001147-NA


Before: O’BRIEN, P.J., and BECKERING and LETICA, JJ.

O’BRIEN, J. (dissenting)

        I would conclude that the trial court clearly erred when it ruled that SW placed AMC in
the tub. Because of this, there is no plausible explanation for how AMC was injured. Without
an explanation for AMC’s injuries, I would conclude that the trial court clearly erred when it
found that the children are not at risk of harm if returned to respondent’s home. But even
accepting the trial court’s conclusion that SW placed AMC in the tub, I would conclude that the
children are still at risk of harm if returned to respondent’s home based on respondent’s refusal
to accept responsibility for her actions and to instead blame her then-four-year-old son for
AMC’s injuries. For these reasons, I would reverse and remand for further proceedings.

        AMC suffered second- and third-degree burns to 70% of her body while in respondent’s
care. The injuries occurred while respondent was home with AMC, AC, and SW. Respondent
placed AMC and her twin brother, AC—who were eight months old at the time—outside of the
bathroom, while she went to collect items for them to take to their babysitter’s. According to
respondent, during this time her then-four-year-old son, SW, went into the bathroom near AMC
and AC, drew a bath in a baby tub left in the larger bathtub, picked up AMC, and placed her in
the baby tub. Respondent testified that she never heard AMC scream, but heard AMC “like
whining.” When respondent walked back to check on AC and AMC, she saw that AMC was in
the tub, so she hurried over and pulled AMC out. AMC’s skin instantly began to blister and peel
off, and respondent rushed AMC to the hospital.

        At trial, now-five-year-old SW testified—at respondent’s request—wearing a Batman
outfit and asked to be called Batman. SW confirmed certain aspects of respondent’s testimony,
namely that he was responsible for placing AMC in the hot water that caused her burns, and that
AMC did not scream when she was placed in the water but “was moving around making



                                               -1-
sounds.” Yet SW testified that he placed AMC in the tub because respondent had asked him to
help her bathe AMC and AC. Respondent, on the other hand, testified that this portion of SW’s
testimony was a lie.

       Respondent stated that what happened to AMC was “not in [her] control” and that it was
“something that happened out of [her] control.” When asked if she did anything wrong,
respondent said,

       Yeah, I kept my head turned too long and it resulted in my baby being burned and
       almost losing her life. But as far as causing her injuries, it’s not on me because if
       [SW] wouldn’t have been home that day then we wouldn’t be here today because
       that way [AMC] would have never ended up in the bathtub getting burned.

Respondent also testified that at the time AMC was injured, respondent was using marijuana
every other day.

        The parties stipulated that Dr. Marc Cullen, the chief of pediatric surgery at St. John’s
Hospital where AMC was initially treated, was an expert in pediatric surgery and a “burns
specialist.” Dr. Cullen testified that when he first treated AMC’s burns, she “was minimally
responsive” and “was in shock,” so he did not give her any medication because he was afraid
“she would stop breathing.” Dr. Cullen explained that AMC had a combination of severe
second- and third-degree burns, and described the injuries as “life-threatening.” Dr. Cullen
explained that AMC would have to undergo treatment for years (including the three months she
had to spend in the hospital before she could be released), and that she would likely be dealing
with the effects of her injuries for the rest of her life.

       Dr. Cullen estimated that for AMC to suffer the severity of the burns she suffered
(meaning for the burns to be as deep as they were), she would have had to be in 133°F water for
15 to 20 seconds.1 Dr. Cullen explained that, at 133 degrees, “no one can say ‘I didn’t know [the
water] was that hot. That is not credible.” Dr. Cullen testified that there was “no question” that,
with water that hot, an eight-month-old baby would immediately start crying if placed in it. Dr.
Cullen clarified that “100 percent” there would have been an initial scream, and that if the baby
went into shock, it would be at some time after the injury from “pain and fluid losses associated
with” the injury. Dr. Cullen opined that it “stretches the imagination” that a four-year-old child
would be “physically capable of lifting a baby over the edge of the tub for a perfect two point
landing into a tub within a tub scenario.” Dr. Cullen further opined that this explanation was
“discordant” and was “not a one to one match with the child’s injuries.”

       During closing arguments, petitioner argued that respondent’s explanation that SW
caused AMC’s injuries was not plausible. The trial court disagreed, and found that SW placed
AMC in the water. The trial court ultimately determined that it could not “necessarily say that if



1
 Dr. Cullen explained that he based his estimate on the time that AMC was likely in the water
according to the people interviewed at the hospital when AMC was brought in.


                                                -2-
this child was put back in [respondent’s] home it’s going to get injured again,” and, therefore, it
found that there were no statutory grounds to terminate respondent’s parental rights.

        First addressing the trial court’s factual finding that SW placed AMC in the baby tub, this
Court’s review is for clear error. See In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). A
finding is clearly erroneous if, although there is evidence to support it, the reviewing court is left
with a definite and firm conviction that a mistake has been made. Id.

        I would conclude that the trial court’s finding that SW placed AMC in the baby tub was
clearly erroneous. While respondent’s and SW’s testimony support this conclusion, I agree with
Dr. Cullen that their explanation—that a four-year-old child was able to pick up an
eight-month-old baby, lift her over the side of a tub, and place her perfectly in a baby tub inside a
larger bathtub—“stretches the imagination.” Moreover, I believe that it is patently incredible
that an eight-month-old child would not scream when placed in scalding-hot water.2 As
explained by Dr. Cullen, if the child were to go into shock, the shock would not set in until
sometime after the injury from “pain and fluid losses.” Ultimately, there is no plausible
explanation for how AMC was placed in the tub and remained in the tub long enough to sustain
second- and third-degree burns to over two-thirds of her body, yet it is undisputed that, when this
happened, respondent was home and was supposed to be watching over the child.

        On these facts, I would conclude that petitioner established by clear and convincing
evidence grounds for termination under MCL 712A.19b(3)(j), and that the trial court clearly
erred by holding otherwise.3 MCL 712A.19b(3)(j) provides that a trial court may terminate a
parent’s parental rights if it finds by clear and convincing evidence that “[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.” Without a plausible explanation for how AMC
suffered such horrendous injuries, I cannot conclude that AMC, or any of the other children,
would be safe if returned to respondent’s home.4 I would hold that the trial court clearly erred by
holding otherwise.

        I would also conclude that termination would have been proper under MCL
712A.19b(3)(g), which provides that a trial court may terminate a parent’s parental rights if
“[t]he parent, without regard to intent, fails to provide proper care or custody for the child and


2
 Dr. Cullen acknowledged that AMC could have been in less hot water—like 124-degree
water—for a longer time and suffered the same injuries, but he explained that even 124-degree
water would be scalding hot to an adult.
3
  “To terminate parental rights, a trial court must find by clear and convincing evidence that at
least one statutory ground under MCL 712A.19b(3) has been established.” In re Moss, 301 Mich
App 76, 80; 836 NW2d 182 (2013), lv den 495 Mich 856 (2013). This Court “review[s] for clear
error a trial court’s finding of whether a statutory ground for termination has been proven by
clear and convincing evidence.” Id.
4
 The other children would be in danger of injury in respondent’s home based on the doctrine of
anticipatory neglect. See In re LaFrance, 306 Mich App at 730.


                                                 -3-
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.” In In re Ellis, 294 Mich App 30, 33; 817
NW2d 111 (2011), this Court explained, “When there is severe injury to an infant, it does not
matter whether respondents committed the abuse at all, because under these circumstances there
was clear and convincing evidence that they did not provide proper care.” It is undisputed that
eight-month-old AMC suffered severe injuries. And, as already explained, I would conclude that
there is no plausible explanation for how she suffered those injuries. Under such circumstances,
I would conclude that the trial court clearly erred by holding that petitioner did not establish by
clear and convincing evidence grounds for termination under MCL 712A.19b(3)(g). In re Ellis,
294 Mich App at 33.

        But even accepting the trial court’s finding that SW placed AMC in the baby tub, I would
conclude that the trial court clearly erred by not terminating respondent’s rights under MCL
712A.19b(3)(j). It is undisputed that AMC suffered a severe physical injury—she had
second- and third-degree burns to 70% of her body. AMC required three months of
hospitalization following the injury, as well as extensive and ongoing follow-up treatment and
therapy. Yet respondent admitted in her testimony that she could have prevented this injury.
She testified that she kept her “head turned too long and it resulted in [AMC] being burned and
almost losing her life.” Indeed, this is the type of accident that parents generally have the
opportunity to prevent. Accepting respondent’s version of how AMC was injured, SW drew a
bath (which respondent, for whatever reason, could not hear5), got the water hot enough to cause
third-degree burns to an eight-month-old child, took off AMC’s diaper, carried AMC into the
bathroom, lifted AMC over the side of the bathtub, placed AMC in the baby bathtub, and left her
in there long enough to cause third-degree burns. Given this sequence of events, respondent was
clearly not keeping a reasonable watch over the children when AMC was injured.

         While the trial court found that respondent was remorseful, respondent’s remorse,
standing alone, could not ensure the safety of the children in her home. The children’s safety can
only be reasonably assured if respondent understands how AMC was injured in the first place—
that is, if she understands that she caused AMC’s injuries by failing to properly supervise AMC
and SW. The record reflects that respondent refuses to see this; she refuses to accept
responsibility for her role in causing AMC’s injuries, and chooses instead to place the fault
squarely on the shoulders of then-four-year-old SW. Respondent described what happened to
AMC as “something that happened out of [her] control.” Yet it clearly was not out of her
control; if she had kept a closer eye on SW and the twins, then she could have prevented AMC’s
injuries. Even so, she testified that




5
 Respondent testified that she never heard any water running even though “[i]t wasn’t too loud
or anything” in the house at that time.


                                                -4-
       as far as causing [AMC’s] injuries, it’s not on me because if [SW] wouldn’t have
       been home that day then we wouldn’t be here today because that way [AMC]
       would have never ended up in the bathtub getting burned.6

        SW was a four-year-old child when AMC was injured. Accepting that his actions may
have directly caused AMC’s burns, respondent’s failure to properly supervise SW would have
also caused AMC’s burns. Respondent was correct that if SW had not placed AMC in the tub on
that day then AMC would not have been burned on that day, but no one can say that the same
thing would not have happened on a different day. Indeed, there can be no reasonable assurance
that the same thing won’t happen in the future if the children are placed in respondent’s home.
SW would still be in the home with AC and AMC, and because respondent does not understand
how she, too, caused AMC’s injuries, it is unclear what respondent would do differently so that
this type of horrible accident would not happen again.

        In sum, even accepting the trial court’s factual findings, respondent played a role in
causing AMC’s injuries, but she appears to not understand this and instead places the blame
solely on SW. By placing the blame for AMC’s injuries on SW, and by failing to understand
that her actions, too, put AMC in danger and caused her injuries, there was a reasonable
likelihood, based on respondent’s conduct or capacity, that the children will be harmed if
returned to her home.

       This conclusion is supported by the Clinic for Child Study report, which stated:

                [Respondent] does a very poor job of accepting any responsibility for
       monitoring her children, resents the intervention of authority figures, and
       externalizes blame onto her four-year-old son, maintaining that the burns on her
       daughter were the result of his actions. Even if we accept that he could run the
       bathwater, take off his sister’s diaper, carry her from one room to another without
       dropping her and place her in the scalding hot liquid, [respondent’s] assertions
       that this makes him the culprit showed very little parenting ability.

                                            * * *

       [E]ven the explanation [respondent] believes exonerates her from guilt proves to
       be extremely neglectful. For example, knowing that [SW] is an active and
       challenging child, she still did not exercise greater care of him or her twins,
       suggesting this or similar threat to life and limb could happen again when outside
       the purview of the court.


6
  This testimony immediately followed respondent’s admission that she “kept [her] head turned
too long . . . .” I cannot conclude that this admission was, as the majority believes, an
“acknowledgment [by respondent] that AMC’s injuries were ultimately her fault . . . .” Rather, I
think that respondent’s testimony immediately following this admission shows that she refused
to acknowledge that she was to blame for AMC’s injuries because, according to respondent, SW
was solely to blame.


                                               -5-
               Individuals who do not acknowledge their shortcomings do not learn from
       their mistakes and are highly likely to repeat previous patterns[.]

        For these reasons, I would conclude that the trial court clearly erred by finding that
petitioner failed to establish by clear and convincing evidence at least one statutory ground for
termination. I therefore respectfully dissent.



                                                           /s/ Colleen A. O’Brien




                                               -6-
