                          STATE OF MICHIGAN

                           COURT OF APPEALS


                                                                    UNPUBLISHED
In re BROWN, Minors.                                                September 13, 2018

                                                                    No. 342028
                                                                    Ingham Circuit Court
                                                                    Juvenile Division
                                                                    LC No. 17-000810-NA


Before: SWARTZLE, P.J., and JANSEN and O’BRIEN, JJ.

PER CURIAM.

        Respondent-father (hereinafter, respondent), appeals as of right an order terminating his
parental rights to his three minor children, pursuant to MCL 712A.19b(3)(b)(i) (sibling of the
minor children has suffered physical injury and there is a reasonable likelihood the minor
children will suffer injury in the foreseeable future), MCL 712A.19b(3)(b)(ii) (sibling of the
minor child has suffered physical injury and the parent who had the opportunity to prevent the
physical injury failed to do so), MCL 712A.19b(3)(j) (reasonable likelihood that the minor
children will be harmed if returned to the home of the parent), and MCL 712A.19b(3)(k)(v)
(parent abused the minor children or a sibling which resulted in life-threatening injury and there
is a reasonable likelihood the minor children will be harmed if returned to the parent).1 On
appeal, respondent argues that the trial court clearly erred when finding that statutory grounds
supported termination of his parental rights, and further, that termination of his parental rights
was not in the best interests of the minor children. We affirm.

                   I. RELEVANT FACTS AND PROCEDURAL HISTORY

       This appeal arises out of the termination of respondent’s parental rights to his three minor
children following the death of his fourth minor child, who was two months old at the time of his
death. On May 11, 2017, petitioner, the Michigan Department of Health and Human Services
(the DHHS) filed a petition for permanent custody of the three minor children, and requested
termination of respondent’s parental rights pursuant to MCL 712A.19b(3)(b)(i),
712A.19b(3)(b)(ii), 712A.19b(3)(j), and 712A.19b(3)(k)(v). The petition alleged that it was
contrary to the welfare of the minor children to be returned to respondent’s care and custody


1
  The minor children’s mother was also a respondent in this action, and had her parental rights
terminated. However, she does not challenge termination of her parental rights in this Court.


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because the fourth minor child had “suffered death while in the care of [respondent].” The
fourth minor child, like two of his older siblings, had “presented with inexplicable injuries.” The
petition went on to detail that on March 3, 2017, the Ingham County Child and Protective
Services (CPS), a division of the DHHS, “received a complaint alleging [respondent] as [a]
perpetrator[ ] of physical neglect, [the fourth minor child] is the victim and has suffered death as
a result.”

       The Lansing Police Department responded to respondent’s home on March 3, 2017 after
the minor children’s mother found the fourth minor child “unresponsive in his bed & called
911.” The child was pronounced dead at the scene. Respondent told officers that he and his wife
had been “drinking alcohol & smoking marijuana with a friend the night before.” The child’s
mother fed him and put him to bed around 11:00 p.m. The next morning respondent awoke to his
wife screaming that the child was cold to the touch. The petition went on to allege that on March
4, 2017, CPS was informed that the “preliminary finds of the autopsy performed on [the child’s]
body found bruising on the right side of his face and traces [of] blood in his liver, brain, and
stomach.” Neither parent claimed to have any knowledge of the child’s injuries. The child’s
cause of death was listed as “multiple injuries,” and his manner of death was classified as a
homicide.

        The petition further detailed that on March 21, 2017, the three older minor children were
examined by Dr. Stephen Guertin who reported that respondent’s oldest son and respondent’s
daughter exhibited various injuries that were suspicious for abuse. Respondent’s oldest son “had
two dig-mark type scars on his neck, a U-shaped faded bruise on the left back, and a faded
semicircular bruise which may be a bite or remnants of an old loop mark.” Respondent’s
daughter “had a patterned rectangular mark which looked like a burn scar.” Again, neither
parent claimed to have any knowledge of the children’s injuries.

        An amended petition for permanent custody was filed on August 30, 2017. In the
amended petition, recent developments regarding the three minor children were detailed.
Specifically, following a well child visit, it was determined by Dr. Aimee Leisure-Martins that
respondent’s oldest son and respondent’s daughter both demonstrated “adequate growth,” but
had “global developmental delays,” likely due to neglect. Additionally, respondent’s youngest
son was seen by Dr. Nathan Gonik who diagnosed him with “severe to profound hearing loss
bilaterally.” Respondent’s youngest son underwent a surgical procedure for his hearing, and
although respondent was provided with “gas cards and offered transportation,” he chose not to
attend. The doctors at Children’s Hospital of Michigan informed CPS that the child’s hearing
loss “could have been prevented if treatment had been sought earlier.” Dr. Leisure-Martins also
saw respondent’s youngest son for a well visit, and indicated that the child was “a[n] 18-month-
old male, with failure to thrive, and global developmental delay[s],” likely as a result of neglect.

        The trial court conducted an adjudication hearing on October 2, 2017. The trial court
heard testimony from various officers involved in the case, as well as Dr. Michael Markey, a
forensic pathologist at Sparrow Hospital in Lansing, Michigan, who performed the autopsy on
the fourth minor child. Dr. Markey testified that the child had bruising around his right eye and
right knee, and significant internal injuries, including:



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       lacerations or tears in the liver tissue associated with bleeding. There was
       bleeding both over the surface of the liver and the areas where the liver was torn
       and there was free blood within the abdominal cavity itself what is called the
       peritoneal cavity. When the head was open, there was evidence of bleeding over
       the surface of the brain. Most significantly what we would call subdural
       hemorrhage which is bleeding between the fibrous coverage of the skull and the
       surface of the brain, brain itself.

These injuries appeared to be fresh, as there was no evidence of healing. Dr. Markey testified
that the child’s manner of death was determined to be homicide because there “was no
explanation for these injuries and these injuries in an infant would most likely have been caused
by another person or persons.” After the conclusion of testimony, the trial court indicated that
there was a preponderance of the evidence to “find that statutory grounds exist to exercise
jurisdiction over all three children in the household at that time[.]” The trial court went on to
find that “there’s an unfit home environment by reason of neglect, cruelty, definitely neglect.”
Accordingly, the trial court took jurisdiction over respondent’s three minor children.

        The two day termination trial in this matter began on December 5, 2017, and continued
on December 15, 2017. The trial court heard testimony from Dr. Guertin, who testified that
when he examined respondent’s oldest son, he had a small bruise near his left eye, as well as a
faint loop shaped bruise on his back, and two semi-circular “marks or loops on the right anterior
thigh.” Dr. Guertin explained that marks or bruises from loops are “usually from a looped over
instrument,” like a belt. Respondent’s oldest son also had dig marks from fingernails on his
neck. Additionally, respondent’s daughter had some redness below her left eye and a rectangular
burn-like scar on her left upper arm.

         Dr. Guertin, who also works as part of the Child Death Review Team in Ingham County,
testified that he had reviewed the autopsy report of the fourth minor child. Dr. Guertin opined
that, “the baby was likely beaten to death or died as a result of the beating that he received.”
Specifically, Dr. Guertin explained that:

       The child had bruising on the right side of the face with linear marks running
       through the bruises. That’s usually from being hit and the linear marks are from
       where the blood vessels on the skin rupture and they rupture generally in-between
       the fingers that that gives you lines which he had. The child also had effused
       bleeding around the brain in what we call the subdural space which in a two-
       month-old it’s not likely they can do themselves anything that would cause that.
       It has to be the result of either shaking or of impact and you already have
       evidence of that which is the blow to the right side of the face. And then the baby
       also had an acute subarachnoid hemorrhage so this is hemorrhage right over the
       very top of the brain sitting pretty much right on top of the brain. And that almost
       always is from impact. And, again, you have evidence of an impact to the right
       side of the face. And then there were several areas of lacerations of the liver so
       that would imply a really significant blow to the child’s belly to lacerate the liver
       and then there was blood within the peritoneal cavity from the broken liver, from
       the lacerated liver. The amount of blood found in the peritoneal cavity wouldn’t I
       don’t think account for the baby’s death. There wasn’t that much. There was

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       about 40 CC’s of blood and, um, in a two-month-old baby, yea, that, that
       wouldn’t even be a fifth of the child’s total circulating blood volume so I don’t
       think the child died of blood loss. I think the child died from a head injury but the
       liver injuries are consistent, again, with a child who was beaten, beaten badly
       enough to tear his liver.

These injuries were comparatively consistent with falling “from a mountaintop or from four
stories or been involved in rollover accident in a motor vehicle and been unrestrained[.]” Dr.
Guertin noted that due to the child’s young age, approximately two-months-old, the child would
not have been crawling, turning over, or in other ways moving around on its own such that he
could have injured himself so severely. Dr. Guertin further opined that contrary to respondent’s
assertion, there was no way that the minor child had died of sudden infant death syndrome.

       Dr. Ronald M. Horowitz, a clinical professor at Michigan State University College of
Medicine, testified in support of respondent’s position that the child had died from sudden infant
death syndrome (SIDS). Dr. Horowitz had reviewed the autopsy report in this case, as well as a
neuropathologist report, and the scene investigation report. Based on his review, Dr. Horowitz
did not think there were “sufficient changes documented to support” the opinion that the fourth
minor child’s death was a homicide. Rather, Dr. Horowitz testified that “51 percent [the] child
could have had a sudden infant death syndrome event. There could have been secondary
changes with the mother trying to resuscitate the child.”

         The trial court also heard testimony regarding respondent’s behavior during his
supervised parenting time. Originally, respondent’s parenting time took place at the home of
Monica Granberry, respondent’s aunt, who was caring for the minor children. However, after
communication broke down between respondent and Granberry, visitation was moved to a
visitation center. The minor children were always excited to see their parents, however
respondent and the minor children’s mother would occasionally raise their voices at each other
during the visits, which confused the children. If respondent and his wife were having a difficult
time getting along,

       they would sit there quietly and the children would kind of kind of figuring
       themselves out. Um, if the children wanted to play, if mom or dad were upset, the
       children would kind of be sitting down and waiting for mom and dad [to] decide[
       ] to interact with them again.

Additionally, respondent was occasionally too rough with the minor children. For example, “[i]f
the children are crying, um, dad would sometimes pick them up and kind of roughly, kind of
throw them on the couch, um, and ask them to stay there till they quiet down.” Respondent
would occasionally “ignore” the minor children.

        The parent’s relationship with each other would affect the minor children’s behavior
during visitation. Respondent’s oldest son would pick up on the tension and become, “very
agitated,” and would “hit or kick” and “bite.” Respondent’s daughter had also started to “bite
and hit.” Respondent would also leave parenting time, on average, 15 minutes early. There was
also some testimony regarding respondent’s drug use. Although not court ordered, respondent


                                                -4-
had submitted to some drug screens before attending his supervised parenting time.
Respondent’s drug screen came back positive for cocaine.

       The trial court also heard testimony that while in foster care, the minor children had been
evaluated regarding their developmental delays. All three children were evaluated to have been
developmentally delayed by several months. Respondent’s youngest son, who was 18-months-
old, had “communication, fine motor, gross motor, social emotion, and some possible visual
concerns.” Additionally, respondent’s youngest son was not yet walking independently.
Respondent’s daughter, who was two years and six months old at the time of the evaluation, had
delays in “cognitive communication, fine motor and social/emotional” skills. She was
determined to have a 20 percent delay in development, meaning she was evaluated at being
between at a 18 and 25 month level, when she was approximately 29 months old. Respondent’s
daughter was referred for speech and language therapy.

        Since being placed in foster care, the minor children had been receiving the therapy they
needed. Respondent’s youngest son had gained weight and was walking. He had also begun to
learn sign language and better interact with the people around him. Respondent’s daughter had
progressed quickly during her speech therapy, and respondent’s oldest son’s “attitude” and
behavior had continued to “get better and better.”

        After the conclusion of testimony, the trial court gave its findings. Specifically, the trial
court concluded that the fourth minor child’s death “was horrific, and quite frankly, caused by
again one or both of the parents.” With respect to the three other minor children, the trial court
found that respondent’s oldest son “has also suffered physical abuse at the hands of one or both
of his parents.” The trial court continued, stating

       I want everybody to understand how little these children are. These are still very
       young children. Whooping a two-year-old is inappropriate quite frankly.
       Whooping a three-year-old is inappropriate. In this court’s opinion you don’t
       whoop anybody and especially when you’re getting to the point that you’re
       leaving . . . loop marks.

The trial court also touched on the fact that the minor children were “significantly behind in their
development.” Respondent’s youngest son was not even walking or standing, had significant
hearing loss, and was diagnosed as medically fragile. Respondent’s daughter had significant
developmental delays, and respondent’s oldest son had various emotional issues. The trial court
also addressed parenting time, articulating,

       there’s been a lot of testimony regarding the parents’ lack of insight and ability to
       properly parent the children even during supervised parenting time. The grabbing
       of the children, pulling up a little kid by the arm and throwing him on a couch
       more than once.

The trial court further reiterated that respondent yelled at the minor children, despite various
developmental delays and the youngest son’s hearing loss. Moreover, the trial court stated, it
was “significant” that when respondent’s son underwent a surgical procedure,


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       a lot of effort had been made to engage these parents to even attend surgery and
       they didn’t do it. They’re not going to medical appointments. They’re not doing
       what they need to do to understand the circumstances of these current children
       that they do have, that they have the ability to try to parent and that they don’t
       make the effort to do that.

         Based on the foregoing, the trial court found that clear and convincing evidence was
presented by the petitioner to terminate respondent’s parental rights under MCL
712A.19b(3)(b)(i), MCL 712A.19b(3)(b)(ii), MCL 712A.19b(3)(j), and MCL 712A.19b(3)(k)(v).
The trial court found that it was “very confident that one or both of these parents contributed and
caused the physical abuse to” the fourth minor child that lead to his death. Accordingly, based
on the conduct of the parents in relation to the other three minor children, there was “absolute
reasonable likelihood that the other children would suffer from injury or abuse in the foreseeable
future [if] placed back in the parents’ home.” Further, based on the doctrine of anticipatory
neglect, “treatment of one child is indicative of how other children will be treated by the parents,
we have suspicious, suspected abuse” regarding respondent’s oldest son and respondent’s
daughter. The trial court went on to find that respondent had not “progressed,” meaning he did
not attend to the medical needs of his children, did not attend medical appointments, did not
benefit from any type of parenting class. Finally, the trial court found that there was “no question
in this court’s mind that [the fourth minor child] suffered a life threatening injury based upon the
abuse of one of both of the parents in this matter.”

        Moreover, the trial court concluded that it was in the best interests of the minor children
to terminate respondent’s parental rights. The trial court acknowledged that the minor children
were bonded to their parents, however, the trial court felt that the bond was outweighed by the
“horrific” death of the fourth minor child, respondent’s inappropriate behavior during supervised
parenting time, his failure to attend to the minor children’s medical needs, his failure to attend
medical appointments or procedures, and his failure to benefit from parenting classes. The trial
court did not find that respondent would be able to provide permanence, finality, and stability for
the minor children in a reasonable amount of time, and that the minor children’s needs were
being met in their current placement with respondent’s aunt. Accordingly, respondent’s parental
rights to his three minor children were terminated. Following trial, a termination order was
entered on December 15, 2017. This appeal followed.

                                  II. STATUTORY GROUNDS

      Respondent first challenges the trial court’s determination that there were statutory
grounds to terminate his parental rights. We disagree.

         “This Court reviews for clear error the trial court’s factual findings and ultimate
determinations on the statutory grounds for termination.” In re White, 303 Mich App 701, 709;
846 NW2d 61 (2014). A trial court’s findings of fact are clearly erroneous if this Court is
“definitely and firmly convinced that it made a mistake.” Id. at 709-710. “To terminate parental
rights, the trial court must find that at least one of the statutory grounds for termination in MCL
712A.19b(3) has been proved by clear and convincing evidence.” In re Ellis, 294 Mich App 30,
32; 817 NW2d 111 (2011). This Court reviews questions of statutory interpretation de novo. In
re Harper, 302 Mich App 349, 352; 839 NW2d 44 (2013).

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       The trial court found that clear and convincing evidence of statutory grounds for
termination under MCL 712A.19b(3)(b)(i), MCL 712A.19b(3)(b)(ii), MCL 712A.19b(3)(j), and
MCL 712A.19b(3)(k)(v). We first address termination under MCL 712A.19b(3)(b)(i) and (b)(ii),
which provide that statutory grounds for termination exist where:

       (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.

        The record in this case established that respondent’s fourth minor child sustained severe
physical injuries that ultimately lead to his death. Specifically, the child had bruising around his
right eye and his right knee, and the autopsy report detailed significant internal injuries,
including multiple lacerations or tears in the liver associated with bleeding, bleeding on the
surface of the liver and the areas where the liver was torn, free blood within the abdominal
cavity, bleeding on the surface of the brain, and a “subdural hemorrhage which is bleeding
between the fibrous coverage of the skull and the surface of the brain” itself. The child’s death
was ruled a homicide.

         Neither parent has admitted to inflicting the injuries that lead to the death of respondent’s
fourth minor child. However, as the child’s only caregivers, either respondent or his wife are
responsible for causing the child’s severe physical injuries. Regardless if respondent was not the
parent who caused the child’s death, as a caregiver in the home, respondent would have had an
opportunity to prevent the physical injuries but failed to do so. Moreover, two of respondent’s
other minor children also presented with recent physical signs of abuse, which could have been
inflicted by either respondent or his wife. Again, even if respondent was not physically abusing
the minor children, as a caregiver in the home, he failed to prevent the abuse. During supervised
visitations, respondent was observed roughly grabbing the minor children by one arm and putting
them on a couch until they calmed down, and had to have his behavior corrected by supervisors.
Based on the foregoing, respondent’s past behavior is the best predictor of future injury to
respondent’s other three minor children. Accordingly, the trial court did not err in concluding
that there were grounds under MCL 712A.19b(3)(b)(i) and (b)(ii) to terminate his parental rights.

       Respondent also challenges termination of his parental rights under MCL 712A.19b(3)(j)
and MCL 712A.19b(3)(k)(v). However, only one statutory ground need be proven to terminate a
respondent’s parental rights. In re Trejo, 462 Mich 341, 360; 612 NW2d 407 (2000), superseded
on other grounds as stated in In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).


                                                 -7-
Accordingly, this Court need not address respondent’s remaining arguments relating to statutory
grounds for termination.

                                      III. BEST INTERESTS

        Respondent also argues that it was not in the minor children’s best interests to terminate
his parental rights. We disagree.

        This Court reviews a trial court’s best interests determination for clear error. In re White,
303 Mich App at 713. “A trial court’s decision is clearly erroneous ‘[i]f although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been made.’ ” In re Olilve/Metts Minors, 297 Mich App 35, 41;
823 NW2d 144 (2012), quoting In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989)
(citations and quotation marks omitted).

        “Once a statutory basis for termination has been shown by clear and convincing evidence,
the court must determine whether termination is in the child’s best interest.” In re LaFrance
Minors, 306 Mich App 713, 732-733; 858 NW2d 143 (2014), citing MCL 712A.19b(5). “ ‘[T]he
focus at the best-interest stage has always been on the child, not the parent.’ ” In re
Payne/Pumphrey/Fortson Minors, 311 Mich App 49, 63; 874 NW2d 205 (2015), quoting In re
Moss, 301 Mich App at 87. “Best interests are determined on the basis of the preponderance of
the evidence.” In re LaFrance Minors, 306 Mich App at 733.

       In considering whether termination is in the best interest of the minor children, the trial
court may consider “the child’s bond to the parent, the parent’s parenting ability, the child’s need
for permanency, stability and finality, the advantages of a foster home over the parent’s home . . .
the length of time the child was in care, the likelihood that the child could be returned to her
parents’ home within the foreseeable future, if at all, and compliance with the case service plan.”
In re Payne/Pumphrey/Fortson Minors, 311 Mich App at 63-64 (citations and quotation marks
omitted). The trial court should weigh all evidence available to it when considering whether
termination is the children’s best interests. Id. at 63.

        The trial court did address all of the above factors in making its best interests
determination. Although respondent and the minor children appeared to be bonded, as discussed,
respondent either contributed to the death of the fourth minor child or entirely failed to prevent
it. Additionally, respondent was either physically abusing two of the minor children, or failed to
prevent two of his other minor children from being physically abused. All three of the minor
children suffered from developmental delays as a result of neglect that required the intervention
of services. Further, not only was respondent’s youngest son not walking, or pulling himself to
stand, at 18-months-old, but he suffered from a severe bilateral hearing loss. The child required
surgery, but respondent failed to attend, despite being offered transportation. Respondent also
failed to attend various other medical appointments. Respondent’s interactions with the children
required some correction during supervised parenting time. Specifically, respondent had to be
instructed more than once not to grab a young child by the arm and throw them on to a couch in
an effort to get them to behave. Most importantly, however, all three minor children were
thriving in their placement with Granberry. They had been getting up to speed developmentally,
and Granberry was able to provide permanency, stability, and finality. Based on the foregoing,

                                                -8-
we cannot conclude that the trial court’s determination that termination of respondent’s parental
rights was in the best interests of the minor children was clearly erroneous.

       Affirmed.

                                                           /s/ Brock A. Swartzle
                                                           /s/ Kathleen Jansen
                                                           /s/ Colleen A. O’Brien




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