                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re KECK, Minors.                                                  March 14, 2017

                                                                     Nos. 333710;333721
                                                                     Macomb Circuit Court
                                                                     Family Division
                                                                     LC No. 2016-000072-NA
                                                                             2016-000090-NA

Before: HOEKSTRA, P.J., and JANSEN and SAAD, JJ.

PER CURIAM.

       In these consolidated appeals, respondent-father, A. Keck, and respondent-mother, J.
Karaffa, appeal as of right the trial court’s order terminating their parental rights to the minor
children, KK and CK, pursuant to MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), (k)(iii), and (k)(v).
Because the trial court did not clearly err by terminating respondents’ parental rights and
respondent-mother has not shown plain error in the admission of other acts evidence, we affirm.

        In 2016, respondents were living together with their two young children, KK and CK.
Also living in the home was GK, respondent-mother’s 11-year-old child from a previous
relationship. When CK was three months of age, Children’s Protective Services (CPS) received
a complaint that the infant had been brought to the hospital with injuries indicative of physical
abuse. These injuries included recent injuries—such as bilateral skull fractures, subdural
hematoma, and retinal hemorrhages in both eyes—as well as an older broken rib, which showed
signs of healing. Neither respondent was able to provide a feasible explanation for these severe
injuries.

         Petitioner sought termination of respondents’ parental rights to all three children at the
initial dispositional hearing. At the hearing, petitioner introduced other acts evidence relating to
respondent-father, indicating that, in 1994, he pled guilty to second-degree murder in the death
of his 3-month old daughter after he confessed to hitting her. Following the hearing, the trial
court assumed jurisdiction over the three children. The court found that statutory grounds for
termination of respondents’ parental rights had been established by clear and convincing
evidence under MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), (k)(iii), and (k)(v). The court also
concluded that a preponderance of the evidence supported a finding that termination of
respondents’ parental rights was in KK’s and CK’s best interests. However, noting that GK was
safely in the custody of her father, in view of her bond with her mother, the court found that
termination of respondent-mother’s parental rights to GK was not in GK’s best interests. The



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court entered an order terminating respondents’ parental rights to CK and KK. Respondents
appeal as of right.

        On appeal, respondents first argue that the trial court erred when it found that the
statutory grounds for termination were established by clear and convincing evidence. In
particular, respondents contend that there were possible accidental causes for CK’s injuries,
including the possibility that 18-month-old KK injured the baby by climbing into her bassinet
and sitting on her or the possibility that GK injured the baby by playing with her or accidentally
sitting on her. In view of these other possibilities and expert testimony to suggest that CK’s
injuries could have been accidental, respondents contend that the trial court could not conclude
by clear and convincing evidence that CK’s injuries were the result of nonaccidental child abuse.

       To terminate parental rights, the trial court must find that at least one statutory ground for
termination has been established by clear and convincing evidence. In re Trejo, 462 Mich 341,
355; 612 NW2d 407 (2000). This Court reviews the trial court’s findings under the clearly
erroneous standard. MCR 3.977(K). A finding is clearly erroneous if the reviewing court is left
with a definite and firm conviction that a mistake has been committed. In re Miller, 433 Mich
331, 337; 445 NW2d 161 (1989). “Due regard is given to the trial court's special opportunity to
judge the credibility of witnesses.” In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008).

         Respondents’ parental rights were terminated pursuant to MCL 712A.19b(3)(b)(i), (b)(ii),
(g), (j), (k)(iii), and (k)(v). These statutory provisions permit termination of parental rights when
the following conditions are satisfied:

              (b) The child or 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 the is a reasonable
       likelihood that the child will suffer injury or abuse in the foreseeable future if
       placed in the parent’s home.

                                               ***

               (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.

                                               ***

               (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.

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

                                                ***

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

                                                ***

               (v) Life-threatening injury.

Notably, when dealing with child abuse where the identity of the abuser cannot be definitively
established, “termination of parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), (j) 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 30, 35-36; 817 NW2d 111
(2011). See, e.g., In re VanDalen, 293 Mich App 120, 140; 809 NW2d 412 (2011).

        In this case, after reviewing the record, we conclude that the trial court did not clearly err
when it found that statutory grounds for termination were established by clear and convincing
evidence. The evidence overwhelmingly established that CK had sustained severe and life-
threatening physical injuries. A skeletal survey, x-rays, a CT scan, and an MRI revealed that the
infant had sustained bilateral skull fractures, one—if not more—rib fractures, and a fractured
femur. CK also experienced retinal hemorrhages in both eyes as well as a subdural hematoma,
and surgery was necessary to insert shunts to relieve intracranial pressure. The evidence
indicates that, because of the intracranial pressure, CK’s injuries were life-threatening.

        Further, the evidence showed that these injuries were the result of nonaccidental trauma.
That is, there was strong evidence that CK’s injuries were intentionally caused by both blunt
force trauma, i.e. severe impact, and by being forcefully shaken back and forth or side-to-side.
The testimony of CK’s treating physicians refuted any suggestion that CK’s injuries could have
been self-inflicted or accidental. The treating physicians opined that the types of injuries present
could not have been caused by GK or KK, in the manner suggested by respondents, because
CK’s siblings simply could not have exerted the force necessary to cause the injuries sustained.
Indeed, CK’s injuries were likened to the type of injury a child would have sustained had she
been ejected from a motor vehicle during an accident. To the extent respondents contend that
their expert disagreed with the opinions of CK’s treating physicians, we note that respondent’s
expert could not exclude the possibility of child abuse and that, in any event, resolution of any
disagreement among the experts posed a question of fact for the trial court. Robins v Garg, 276
Mich App 351, 363; 741 NW2d 496 (2007). Given the evidence presented, the trial court did not
clearly err by finding that CK suffered nonaccidental trauma.

        Recognizing that the injuries were not accidentally caused by CK’s siblings, in the
absence of any other explanation, it also follows from the evidence that CK was physically
abused by both of her parents, or that one parent abused CK and the other parent failed to protect
the child. Respondents were CK’s primary caregivers. Indeed, since her birth, CK had rarely
been out of respondents’ care, and there is no indication that another adult caused CK’s injuries.
Instead, it is clear that CK suffered her severe injuries while in respondents’ care. Moreover, the
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infant showed signs of an older injury to her ribs, and both parents noticed signs of the infant’s
swelling head and yet they failed to take prompt action for the infant’s protection. Cf. In re
VanDalen, 293 Mich App at 140. Given this evidence, the trial court did not clearly err by
determining that both respondents committed the abuse in question or, at a minimum, one parent
failed to protect the child from abuse inflicted by the other parent. In these circumstances, it was
not necessary for the evidence to conclusively establish which parent perpetrated the physical
abuse. See In re Ellis, 294 Mich App at 35-36.

         The evidence also supports the trial court’s finding that both CK and KK would be at risk
of harm if returned to respondents’ care. “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). Here, it is undisputed that CK sustained severe injuries. Respondents could
articulate no plausible explanation for these injuries. Indeed, respondents minimized the nature
of CK’s injuries, refused to acknowledge the manner in which they were sustained, and persisted
in blaming two young siblings. Respondents also failed to promptly seek treatment for CK when
she exhibited signs of injury. Respondent-mother, although acknowledging that respondent-
father had been convicted of second-degree murder in the death of his infant daughter, failed to
recognize the risk posed by respondent-father. Indeed, respondents were still in a relationship
and still living together. Because the evidence supported a finding that one or both of
respondents caused the injuries and that both respondents continued to deny knowledge of the
source of the injuries, there existed a reasonable likelihood that the children would suffer further
harm in respondents’ care. Based on the foregoing, there was clear and convincing evidence to
terminate respondents’ parental rights to the two children pursuant to MCL 712A.19b(3)(b)(i),
(b)(ii), (g), (j), (k)(iii), and (k)(v).

       Next, respondents challenge the trial court’s finding that termination of their parental
rights was in the children’s best interests. In particular, respondents contend that they are
strongly bonded to their children. They also argue that, in lieu of termination, the trial court
should have created a guardianship with the children’s maternal grandparents and afforded
respondents an opportunity to participate in services. We find no merit to these arguments.

        “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
the parental rights and order that additional efforts for reunification of the child with the parent
not be made.” MCL 712A.19b(5). Whether termination is in a child's best interests is
determined by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d
182 (2013). In evaluating a child’s best interests, the trial court should weigh all the available
evidence and may consider a wide variety of factors, including “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 White, 303 Mich App 701, 713; 846
NW2d 61 (2014) (citation omitted). The trial court may also consider a history of child abuse as
well as the children’s safety and well-being in the home. In re VanDalen, 293 Mich App at 142.
We review the trial court’s best interests determination for clear error. In re White, 303 Mich
App at 713.

        The trial court did not clearly err in finding that termination of respondents’ parental
rights was in KK’s and CK’s best interests. One or both of the respondents physically abused

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CK; the other parent failed to protect her. Respondents then compounded matters when they
failed to promptly obtain medical treatment. The evidence further established that respondents
continue to deny the manner in which CK was injured, and instead seek to place blame on CK’s
siblings. This evidence clearly showed that the children would be at risk if returned to
respondents’ care. Cf. In re VanDalen, 293 Mich App at 142. While it is undisputed that a
significant bond existed between respondents and their children, this bond does not outweigh the
children’s need for safety. Moreover, given the aggravated abuse in this case, respondents were
not entitled to further services aimed at reunification. See In re Moss, 301 Mich App at 91-92;
MCL 722.638(2).

        In terms of a possible guardianship, it is true that the maternal grandparents expressed a
willingness to enter into a guardianship. Although placement with a relative weighs against
termination, and the fact that a child is living with relatives must be considered, a trial court may
terminate parental rights in lieu of placement with relatives if it finds that termination is in the
child’s best interests. In re Olive/Metts, 297 Mich App 35, 43; 823 NW2d 144 (2012). In this
case, the trial court considered the children’s placement with a relative, but rejected the
possibility of a guardianship, and instead concluded that termination of respondents’ parental
right was in the children’s best interests. The trial court emphasized the children’s need for
safety and reasoned that termination would best ensure the children’s safety by permanently
eliminating respondents’ ability to make decisions for the children. Moreover, there was
testimony from the foster care worker that termination, which would pave the way for adoption,
was a preferable permanency path for the two children given their very young ages and their
need for long term protection and care. Under these circumstances, the trial court did not clearly
err when it rejected guardianship and found that termination of respondents’ parental rights was
in the children’s best interests.

        Finally, respondent-mother contends that the trial court abused its discretion when it
admitted evidence related to respondent-father’s 1994 second-degree murder conviction arising
from the death of respondent-father’s infant child. Specifically, respondent-mother argues on
appeal that testimony relating to the child’s autopsy was “graphic” and “emotional,” and that this
other acts evidence was thus substantially more prejudicial than probative. However, in the
lower court, respondent-mother’s attorney expressly waived any argument relating to the other
acts evidence, stating with respect to the admission of this evidence: “I would just waive
argument and leave it to the Court’s discretion . . . .” Respondent-mother cannot affirmatively
waive the issue in the trial court and then seek to raise it as an error on appeal. See People v
Carter, 462 Mich 206, 214-216; 612 NW2d 144 (2000). Waiver extinguishes any error, and
there is no error for this Court to review. Id.

        In any event, even if we did consider the issue, it is at best unpreserved and reviewed for
plain error affecting respondent-mother’s substantial rights. In re VanDalen, 293 Mich App at
135. “To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error
must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights.” Id. (citation omitted). In this case, it is clear that respondent-mother has not
satisfied these requirements.

       In particular, under MRE 404(b)(1), the trial court allowed petitioner to introduce
evidence that, in 1994, respondent-father pleaded no contest to a charge of second-degree murder

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in the death of his then three-month-old daughter. At the termination hearing, a police officer
testified to events related to his 1993 investigation of the child’s death, including details of
respondent-father’s confession and descriptions of the child’s injuries that the officer observed
during the infant’s autopsy. This evidence was relevant for a proper purpose, namely to establish
that CK’s injuries were not the result of an accident and, with regard to respondent-mother in
particular, to demonstrate respondent-mother’s failure to protect CK insofar as she knew of
respondent-father’s prior conduct and yet she failed to protect her children or to take prompt
action when she noticed CK’s swollen head. See MRE 404(b); People v VanderVliet, 444 Mich
52, 62-64; 508 NW2d 114 (1993), modified 445 Mich 1205 (1994).

        Contrary to respondent-mother’s appellate arguments, the probative value of this other-
acts evidence was not substantially outweighed by the danger of unfair prejudice. MRE 403.
Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence
will be given undue or preemptive weight. In re MU, 264 Mich App 270, 285; 690 NW2d 495
(2004). We see no such danger in this case. The evidence had considerable probative value, and
we are persuaded that the trial court was able to use the other acts evidence for the proper
purpose for which it was offered. See People v Bailey, 175 Mich App 743, 746; 438 NW2d 344
(1989) (finding that, in a case tried without a jury, “it is unlikely that the trier of fact considered
the evidence for anything other than the purpose for which it was offered”). Indeed, in reviewing
the trial court’s opinion, it is clear that the trial court’s findings in this case were based on the
strong medical testimony that established that CK was the victim of nonaccidental severe
physical abuse while in respondents’ care. There is no support for respondent-mother’s claim
that the police officer’s testimony was unfairly prejudicial or that such evidence affected the
outcome of the proceedings. Accordingly, respondent-mother has failed to establish plain error
that affected her substantial rights.

       Affirmed.



                                                               /s/ Joel P. Hoekstra
                                                               /s/ Kathleen Jansen
                                                               /s/ Henry William Saad




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