            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                                                                   UNPUBLISHED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 J. B. SMITH, Minor.                                          May 21, 2019

                                                                   No. 344252
                                                                   Wayne Circuit Court
                                                                   Family Division
                                                                   LC Nos. 16-523212-NA



In re J. A. SMITH, Minor.                                          No. 344255
                                                                   Wayne Circuit Court
                                                                   Family Division
                                                                   LC No. 16-523212-NA



Before: REDFORD, P.J., and MARKEY and K. F. KELLY, JJ.

PER CURIAM.

       In Docket No. 344252, respondent father appeals as of right the trial court’s order
terminating his parental rights to his son, JBS, pursuant to MCL 712A.19b(3)(b)(i), (g), and (j).
In Docket No. 344255, respondent mother appeals as of right the trial court’s order terminating
her parental rights to her daughter, JAS, pursuant to MCL 712A.19b(3)(g), (j), and (i). We
affirm in each appeal, but remand with instructions for the trial court to duly segregate the
“confidential” portions of the lower court files from the public file. 1



1
  The record provided to this Court is in disarray, containing numerous unbound documents,
orders, exhibits, and other materials, many of which are not in chronological order, and none are
clearly segregated between public “legal” and confidential “social” files. Accordingly, we
remand for the trial court to segregate the materials into public and confidential files to be
maintained in accordance with MCR 3.925(D)(1) and (2), consistent with MCR 3.903(A)(3)
(defining the contents of a “confidential file”).



                                               -1-
                                          I. BASIC FACTS

        This case arises out of permanently disabling, nearly fatal brain injuries that JBS suffered
in July 2016—before JAS was born—while the then-eight-month-old JBS was in respondent
father’s care. JBS was the result of a domestically violent relationship between the unmarried
respondents. The evidence strongly suggested, and the trial court found, that JBS suffered his
injuries when respondent father violently shook him. 2

                         II. FUNDS FOR AN EXPERT (BOTH APPEALS)

        In both appeals, respondents argue that the trial court deprived them of due process by
refusing to appoint an expert medical witness on their behalf at state expense. By failing to raise
this due process argument below, respondents waived our consideration of it. See Walters v
Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (holding that, as a general rule, “a failure to
timely raise an issue waives review of that issue on appeal”). Even if we were to exercise our
discretion to review this issue on appeal, see, e.g., In re Medina, 317 Mich App 219, 228; 894
NW2d 653 (2016), we would nevertheless find no error requiring reversal. The trial court did
not deny respondents a process by which they could seek appointment of an expert at state
expense. Rather, respondents refused to avail themselves of the process that was afforded,
failing to file an appropriate motion before the chief judge as the trial court instructed. This
procedural failure is attributable to respondents, not the trial court, and it is “settled that error
requiring reversal may only be predicated on the trial court’s actions and not upon alleged error
to which the aggrieved party contributed by plan or negligence.” See In re Utrera, 281 Mich
App 1, 11; 761 NW2d 253 (2008) (quotation marks and citation omitted).

                      III. DOCKET NO. 344252 (RESPONDENT MOTHER)

        In Docket No. 344252, respondent mother raises two additional claims of error. First, she
argues that the trial court clearly erred by deciding that it had been proven, by clear and
convincing evidence, that termination of respondent mother’s rights to JAS was warranted under
several statutory grounds. We disagree.

        We review for clear error the trial court’s decision whether grounds for termination have
been proven by clear and convincing evidence. In re Medina, 317 Mich App at 236. “A finding
is clearly erroneous if the reviewing court is left with a definite and firm conviction that a
mistake has been made,” with the reviewing court “defer[ring] to the special ability of the trial
court to judge the credibility of witnesses.” In re LaFrance, 306 Mich App 713, 723; 858 NW2d
143 (2014).

       “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). “Only one statutory
ground need be established by clear and convincing evidence to terminate a respondent’s


2
    Respondent father was acquitted of criminal child abuse charges arising out of the incident.


                                                  -2-
parental rights, even if the court erroneously found sufficient evidence under other statutory
grounds.” Id.

        The clear and convincing evidence standard is “the most demanding standard applied in
civil cases[.]” In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). Evidence is clear and
convincing if it

       produces in the mind of the trier of fact a firm belief or conviction as to the truth
       of the allegations sought to be established, 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. [Id. (quotation marks, citation,
       and brackets omitted.]

“Evidence may be uncontroverted, and yet not be ‘clear and convincing.’ ” Id. (quotation marks
and citation omitted). “Conversely, evidence may be ‘clear and convincing’ despite the fact that
it has been contradicted.” Id. (quotation marks and citation omitted).

        On this record, we cannot conclude that the trial court clearly erred by finding that
Subsection (3)(j) had been established by clear and convincing evidence. On appeal, respondent
mother argues that there was no proof that she would expose JAS to respondent father in the
future. Respondent mother’s argument ignores the fact that, for purposes of Subsection (3)(j),
the harm in question need not be physical; a “risk of emotional harm” can suffice. In re Hudson,
294 Mich App 261, 268; 817 NW2d 115 (2011). Respondent mother also ignores the doctrine of
“anticipatory neglect,” which “recognizes that how a parent treats one child is certainly probative
of how that parent may treat other children.” In re AH, 245 Mich App 77, 84; 627 NW2d 33
(2001) (quotation marks, citation, and brackets omitted). Finally, respondent mother’s argument
ignores the fact that petitioner was not, under Subsection (3)(j), required to produce clear and
convincing evidence that respondent mother would expose JAS to exactly the same harm to
which JBS had been exposed, i.e., abuse at the hands of respondent father. Rather, petitioner
was required to prove a reasonable likelihood, based on respondent mother’s conduct or
capacity, that JAS would be harmed if she were returned to respondent mother.

        In light of the trial court’s factual findings and credibility determinations, none of which
we perceive as clearly erroneous, there was clear and convincing evidence to support the
conclusion that respondent mother’s conduct would put JAS at substantial risk or physical or
emotional harm if JAS were returned to respondent mother. It is clear that respondent mother
continued her sexual relationship with respondent father for weeks or months after she had
reason to know that he had either badly injured JBS or neglected the child’s care, permitting
someone else to abuse him. And based on respondent mother’s inconsistent testimony about
when respondent father first admitted to her that he shook JBS—and when she ended her
relationship with him—we are neither definitely nor firmly convinced that the trial court made a
mistake when it found that respondent mother likely wished to rekindle her relationship with
respondent father. Instead, we agree with the lawyer-guardian ad litem’s observation below that
respondent mother’s testimony on such points was obviously untruthful. All of this evidence
suggests that respondent mother has been willing to put her own interests— specifically, her
desire to continue her violent sexual entanglement with respondent father—over the interests of
her children, regardless of the potential repercussions. The doctrine of anticipatory neglect

                                                -3-
suggests that respondent mother will continue to do so in the future. Thus, there is a very real
risk that respondent mother might choose to expose JAS to respondent father or another man like
him in the future, thereby exposing the child to the risk of physical abuse and resulting emotional
harm.

        Furthermore, as the trial court observed, in light of JBS’s medical condition, and
respondent mother’s superior bond with him, it seems that she is far more focused on JBS and
his recovery than on developing a bond with JAS, choosing to focus her time, attention, and
limited financial resources on JBS. For those reasons, we conclude that the trial court did not
clearly err by finding that Subsection (3)(j) had been proven by clear and convincing evidence.
Having so decided, we need not decide whether other statutory grounds for termination were also
established. In re Ellis, 294 Mich App at 32.

       Respondent mother also argues that the trial court clearly erred by finding that it was in
JAS’s best interests for her parental rights to be terminated. We disagree.

        We review the trial court’s best-interest determination for clear error. See In re Medina,
317 Mich App at 236. MCL 712A.19b(5) provides, “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.” As recently explained in In re Medina,
317 Mich App at 237:

       Although a reviewing court must remain cognizant that the fundamental liberty
       interest of natural parents in the care, custody, and management of their children
       does not evaporate simply because they have not been model parents or have lost
       temporary custody of their children to the State, at the best-interest stage, the
       child’s interest in a normal family home is superior to any interest the parent has.
       Therefore, once a statutory ground for termination has been established by clear
       and convincing evidence, a preponderance of the evidence can establish that
       termination is in the best interests of the child. [Quotation marks, citations, and
       brackets omitted.]

“In making its best-interest determination, the trial court may consider the whole record,
including evidence introduced by any party.” Id. at 237 (quotation marks and citation omitted).

       [T]he 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.
       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. [In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014).]

Additionally, the court may consider the best-interest factors that are utilized when making child
custody decisions in divorce actions, as enumerated at MCL 722.23. In re Medina, 317 Mich
App at 238.

                                                 -4-
        Notably, the children’s LGAL supports respondent mother in her instant claim of error.
Were this issue subject to review de novo, we might be inclined to rule differently. However,
within the confines of the standard of review that actually applies here—the highly deferential3
clear-error standard—we cannot justify such a ruling. In other words, on this record, we are not
definitely and firmly convinced that the trial court made a mistake.

       As the LGAL aptly notes in his brief on appeal, there was substantial evidence in this
case suggesting that respondent mother was capable of being a loving, appropriate mother for
both minor children. And termination would most likely sever not only JAS’s developing bond
to respondent mother, but also of any hope that JAS might one day develop a bond with her
brother, JBS. In the context of child protective proceedings, however, such things are blades
capable of cutting both ways. As this Court explained in In re Medina, 317 Mich App at 240:

       Respondent argues that “[k]nowing who one’s biological father is and having a
       relationship with him have intrinsic value.” In a utopian world, that might be
       true. But ours is an imperfect world, and the “value” a child derives from the
       parent-child relationship is not, as respondent suggests, universally positive; if it
       were, there would be little need for child protective proceedings.

In this case, while there is evidence that respondent mother is capable of being loving and
appropriate during supervised visitations, there is also evidence suggesting that, at other times,
she is capable of extreme selfishness, placing her own interests and desires above those of her
children. In light of JAS’s young age and her placement with her nonparty father, the trial court
might well have been correct that the best course was to sever JAS’s ties with respondent mother
and JBS before they developed further, thereby minimizing the potential for serious emotional
trauma in the future and allowing JAS to begin fully bonding with her father in a stable,
permanent household. Additionally, under the doctrine of anticipatory neglect, we agree with the
trial court that it is more likely than not that respondent mother’s poor decisions regarding
romantic partners will, unless redressed by treatment (or age and experience), tend to expose her
children to abusive male figures in the future. Therefore, we conclude that the trial court’s best-
interest determination concerning JAS is not clearly erroneous.

       Affirmed, but remanded to the trial court in keeping with the attached order sealing files
so that the trial court may perform its legally required duty to segregate the “confidential”
portions of the lower court files from the public file. We do not retain jurisdiction.

                                                             /s/ James Robert Redford
                                                             /s/ Jane E. Markey
                                                             /s/ Kirsten Frank Kelly



3
  See, e.g., Home-Owners Ins Co v Andriacchi, 320 Mich App 52, 79; 903 NW2d 197 (2017),
(“we employ the deferential ‘clearly erroneous’ standard”); People v McSwain, 259 Mich App
654, 683; 676 NW2d 236 (2003) (“Overall, the clear error standard of review is highly
deferential to the trial court”).


                                                -5-
                              Court of Appeals, State of Michigan
                                             ORDER
                                                                                James Robert Redford
In re J B Smith Minor; In re J A Smith Minor                                      Presiding Judge

Docket No.     344252; 344255                                                   Jane E. Markey

LC No.         16-523212-NA                                                     Kirsten Frank Kelly
                                                                                  Judges


                 On the Court’s own motion and in accordance with the Court’s opinion issued
with this order, the Court orders that the Wayne Circuit Court Juvenile Division public case file
in this matter be kept under seal by the circuit court until such time as the clerk of that court
removes from the public file all confidential materials. The clerk of the circuit court is directed
to place the confidential materials in a confidential social file separate from the public file. The
clerk shall certify to this Court by letter to the clerk of this Court that the confidential materials
have been removed from the public file. Once all of the confidential materials are removed from
the public file, the clerk of the circuit court may unseal the public file without further order from
the Court.

                                                              /s/ James Robert Redford




                                 May 21, 2019
