Opinion
No. 333162 No. 333475
01-10-2017
In re MORSE/SNITGEN, Minors. In re K. M. SNITGEN, Minor.
UNPUBLISHED Eaton Circuit Court Family Division
LC No. 15-019391-NA Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ. PER CURIAM.
In these consolidated appeals, in Docket No. 333162, respondent-mother appeals by right the termination of her parental rights to her four children, CM, AM, LM, and KS, under MCL 712A.19b(3)(b)(i) (child suffered physical injury caused by parent), MCL 712A.19b(3)(g) (parent failed to provide proper care or custody), and MCL 712A.19b(3)(j) (reasonable likelihood that child would be harmed if returned to parent). In Docket No. 333475, respondent-father appeals by right the same order terminating his parental rights to his daughter, KS, under MCL 712A.19b(3)(b) (child suffered physical injury and injury was either caused by or not prevented by parent) and MCL 712A.19b(3)(g) (parent failed to provide proper care or custody). For the reasons set forth in this opinion, we affirm.
The parental rights of the father of CM, AM, LM were also terminated. He has not appealed.
Two days prior to oral argument, this Court received notice of the death of respondent-father. Counsel for respondent-father requested, and this Court honored the request to proceed with the respondent-father's appeal.
I. BACKGROUND
Petitioner's involvement with respondent-mother and respondent-father that lead to termination of their parental rights began when respondent-father's parents noticed extensive bruising on KS, which the paternal grandmother described as "fresh" and "hideous." The police and Child Protective Services (CPS) were contacted, and the children were removed from the home on December 9, 2015, the day after KS's bruising was discovered by the paternal grandparents. DHHS petitioned the court to take jurisdiction over the children, alleging neglect, improper home environment, that there were grounds to believe that the parents were using heroin in front of the children, and there was domestic violence committed when the children were home.
The trial held an adjudication trial on February 16, 2016, to determine jurisdiction as to KS. At the adjudication trial, KS's paternal grandfather testified that when he and his wife visited KS on December 8, 2015, they noticed she had extensive bruises on her thighs and on her side. The paternal grandparents called CPS and the police.
CPS caseworker Gretchen Lain testified at the adjudication trial that she was assigned to meet with the family in response to the grandparent's complaint. Lain testified that she discovered an unusual bruise on KS's head, that her whole lower back was "mildly red," and that there were more than 15 bruises between her left hip and her mid-calf that were between one and three inches long. Lain testified that respondent-mother told her the bruise on KS's head was from a fall KS sustained in a parking lot, but that respondent-mother could not explain why there were bruises under KS's neck. Lain stated that when she asked about the bruises on KS's legs, respondent-mother "immediately started to cry and said that [respondent-father] had lost his temper . . . because he was mad at [KS] [for] defecating in her pants." Lain testified that respondent-father denied ever leaving bruises on his children, although he admitted that both he and respondent-mother spanked the children. Lain testified that, given her concerns about KS's safety, it would be appropriate for the court to take jurisdiction over KS and to terminate respondent-father's parental rights. Lain estimated that there had been between five and ten previous substantiated CPS cases against respondent-mother.
Respondent-father testified at the adjudication trial. Respondent-father stated that he had been arrested on January 28, 2016 for violating a personal protection order (PPO) that respondent-mother had filed against him, and that he had pleaded no contest to a charge of domestic violence against respondent-mother in 2014. Respondent-father testified that he had started using heroin in 2013 and was still using it in 2015, but stated that he was currently drug-free and attending weekly substance abuse recovery meetings. When asked how he disciplined his children, respondent-father indicated that he spanked them, generally with his hand, but that twice he had used a spatula, although he denied ever spanking them hard enough to leave a bruise. Respondent-father testified that he had seen respondent-mother spank the children and that he had never seen her use anything but her hand. He further testified that respondent-mother forced KS to carry around her dirty diaper as punishment for not learning to use the bathroom. Respondent-father testified that since December 1, 2015, he had seen KS one day a week for scheduled visits.
After hearing the evidence, the court found statutory grounds to assume jurisdiction over all four children. The court stated:
Again, without ascribing fault to any person here, it's clear to this Court that [KS] was a person who suffered bruising and injury in the possession of both the mother and the legal father in this case, and that continued placement in the home could cause a substantial risk of harm to the mental wellbeing of [KS]. And I also find that that home was an unfit home environment by reason of neglect, cruelty, drunkenness and criminality . . . .The circuit court assumed jurisdiction over all four children, ordered DHHS to make reasonable efforts at reunification and ordered supervised visitation.
As to all four children, I find that it's contrary to the welfare of these children to remain in the home because there's allegations and proof of domestic violence and substance abuse, and some physical abuse.
On April 12, 2016, DHHS filed an amended petition to terminate both parents' parental rights to all of the children. The court held a three-day termination hearing in April and May, 2016. At the termination hearing, Matthew Kasper, a forensic nurse examiner, testified that he completed a medical history of KS after she was brought to the hospital on suspicion of physical abuse. Kasper testified KS reported that her buttocks hurt because her mother had spanked her there with a spoon. Kasper testified that he asked KS whether it had happened more than once, and she responded that it had. Kasper stated that the bruises on KS's lower legs were "not too concerning because they were consistent with normal child play activity"; however, he described the bruising on her lower back as "consistent with . . . some type of blunt force trauma" that was unlikely to have been sustained from "having typical falls from walking and being clumsy," unless the fall was from a significant height. Kasper concluded that these bruises "appeared to have been inflicted upon her," stating that although he could not determine what had caused them; they would be consistent with KS's report that she had been hit with a spoon.
Kasper reported that KS told him that she fell while inside a store and bruised her head. Kasper expressed concern that there appeared to be multiple bruises on different parts of KS's head rather than "just one indication of a fall." Kasper also testified that in his experience, the type of bruises he saw on KS's neck were "some type of injury that is related to a hand manipulation." Kasper concluded that KS's injuries were "consistent with child abuse" and that it was likely that KS had in fact been abused. Kasper stated that KS also spontaneously stated, "Mommy hits [me] a lot." Kasper testified that KS never said that her father hit her.
Melissa Jolly, a DHHS caseworker from Muskegon, testified that she had worked with respondent-mother between July 2013 and January 2015, while respondent-mother was in a relationship with respondent-father. Jolly testified that respondent-mother benefitted from mental-health, substance-abuse, and family-reunification services during that time. Jolly characterized the possibility of the termination of respondent-mother's parental rights as a "turning point" that caused respondent-mother to "really turn[] things around."
Jolly testified that she also "attempted to assist" respondent-father with his housing, substance-abuse, and domestic-violence issues, but that he would not comply with random drug screens and that she "did not believe that their relationship was a positive one." Jolly stated that respondent-father "never really acknowledged that he needed that assistance."
Tanya Edger, a social worker with a "family preservation program," testified that she worked with respondent-mother and the children between July 27, 2015 and August 23, 2015 through a DHHS referral. Edger worked with respondent-mother on issues involving proper supervision, bonding, and alternative methods of discipline with regard to the children, and on preventing a relapse into drug use. Edger testified that she thought respondent-mother made "good progress" during the time they worked together.
Christy Brandon, the family's current foster-care case manager, testified that she had worked with the children and the parents since December 2015. While she had no specific concerns about KS or LM, she explained that CM had been referred to counseling for "anger issues" reported by the foster parents, and she described AM as seeming "a little emotionally traumatized." Brandon reported that although respondent-mother met with a counselor regarding substance abuse, respondent-mother would not submit to drug testing and had missed 22 days of methadone doses. Brandon stated that respondent-mother's attendance was also sporadic at the parenting-skills classes and domestic-relations counseling. Brandon testified that although respondent-mother's parenting times typically went well, one had to be cancelled because she became verbally abusive when she learned that only one of her children could attend and that the visit could not be rescheduled.
Brandon testified that her interactions with respondent-father had been good but sporadic, noting that he had only visited KS about once a month. Brandon indicated that respondent-father had "expressed a lot of anger towards the fact that we're identifying substance use as a barrier," given that he did not believe he had a problem. Brandon reported that respondent-father had only participated in two of the drug screens that he was supposed to do twice weekly, and that one of those had come back positive for opiates. Brandon testified that after respondent-father violated respondent-mother's PPO, respondent-mother expressed fear that he would sexually assault her and commit suicide.
Having worked with the family for several months, Brandon testified that she believed it was "absolutely in the children's best interests to terminate [respondent-mother's] parental rights" to all four children because the children were young, had been in the system a long time, and "deserve permanency" so they could "feel safe again." Brandon also concluded that it would be in KS's best interests to terminate respondent-father's parental rights to KS because Brandon did not believe respondent-father could provide a permanent home with consistent parenting and positive support. Brandon testified that all four children were currently living with respondent-mother's great-aunt and great-uncle, who were prepared to adopt them.
Lain, who filed the petition in this case, did not believe respondent-mother benefitted from any of the services DHHS had provided her in the past. Lain testified that she developed concerns about the children when she was called to the police station to observe KS after the grandparents called to report KS' bruises. Lain testified that she was concerned because the bruises "were in multiple locations" and "not indicative of a fall."
Lain stated that she believed child abuse was a barrier in the case, stating that when she drove KS to her first parenting-time visit with respondent-mother, KS "screamed and cried and just had a meltdown in the car seat for probably a solid 30 minutes and just kept saying that she did not want to see her mom." Lain reported that in her interview with LM, the child said that when she or KS got in trouble, respondent-mother spanked them with her hand or a spoon. And in her interview with KS, KS pointed out her bruises and told her, "Mommy did that." Lain also testified that AM stated that respondent-mother would get angry when KS defecated in her pants.
Lain interviewed CM who reported that respondent-mother would regularly give all the children cough syrup at night to help them sleep. Lain testified that CM cried when describing his relationship with respondent-father, expressing disappointment that respondent-mother allowed him to come back after she had said she would not do so.
Lain testified that she had concerns about returning the children to their parents because of respondent-mother's history of returning to men who had been physically abusive, which Lain did not believe could be remedied. Lain stated that she was also concerned about the number of previous investigations and the parents' substance abuse. Lain opined that both parents' continuing heroin use rendered their home environment unfit. When asked whether the parents were likely to rectify "at least the barriers of substance use, child abuse, domestic violence, [and] criminality," Lain responded, "No, absolutely not." Lain testified that she did not believe the children would have permanence or stability if returned to their parents.
Randall Haugen, a licensed psychologist, testified that he conducted a psychological evaluation of respondent-mother in March 2016. Haugen diagnosed respondent-mother as having a severe opiate-use disorder and a personality disorder, and also mentioned "[c]hild neglect and child psychological abuse in terms of not keeping a child safe and allowing a child to be exposed to an abuser." Haugen opined that these were long-term conditions, that respondent-mother was "vulnerable to relapse," and that her prognosis for changing within the foreseeable future was poor. Haugen agreed that, in his professional opinion, it was consistent with respondent-mother's historical character to fail to protect her children. Haugen indicated that respondent-mother "had a real reluctance to admit to issues during potential problems," such as her refusal to call the police or DHHS when respondent-father was being physically abusive.
Haugen also reviewed a psychological evaluation of respondent-father that a colleague had prepared, which Haugen testified showed that respondent-father "tended not to view himself as having any problems" and that he "did not understand his own role in failing to protect and maintaining kind of vigilant supervision of his child." Haugen opined that respondent-father's prognosis depended on his willingness to "invest[] himself in treatment."
Susan Norris, one of the children's foster parents, testified that all four children would become violent before and after visits with respondent-mother. The children were "very skinny" when they first came to stay and had multiple cavities from lack of dental care. Norris testified that the prospect of returning the children to their parents would be "the worst thing that could happen" to them and she and her husband hoped to adopt the children.
KS' paternal grandfather testified that KS lived with him for 17 months at one point. The grandfather did not believe that respondent-father was ready to parent KS and instead needed to obtain "long-term treatment and stick with it so he can change his life." Respondent-father was not ready to be a good dad because he continued to "fall[] into traps that he's been falling into for years."
Respondent-father also testified at the termination trial. He appeared in shackles because he violated respondent-mother's PPO against him for the second time. Respondent-father testified that he missed the first day of the trial because he passed out from having too many pain killers in his system, but did not deny that he was actually passed out from over-dosing on heroin. Respondent-father denied that he had a drug problem. Respondent-father admitted to being physically violent to respondent-mother on one occasion and he agreed that he spanked KS twice with a spatula to "instill fear," but he denied that he left a bruise. Respondent-father testified that he was unaware that KS had bruises.
Respondent-father testified that he "used to be very addicted to opiates," starting in around 2007 and having "very bad years" in 2013 and 2014. He indicated that during these years he was using drugs about twice a month, which he continued to do in 2015, but had "only used three times" in 2016, one of which was on lunch recess from the hearing. He said he had been in rehabilitation programs "multiple times," but he denied needing to go back to a rehab program, stating that he had "quit cold turkey two weeks ago" and no longer had a substance-abuse problem. He expressed a willingness to submit to the recommendation of a substance-abuse assessment, as long as it did not involve an inpatient rehabilitation program.
Respondent-father testified that he was employed with a wireless company and was living with his boss in Kalamazoo. He testified that if KS were returned to him when he was released from jail for the PPO violation, he could take care of her at the house he shared with his boss, but he would need help with daycare, transportation, and money, because he did not have a stable source of income.
Respondent-mother testified and admitted to having an issue with heroin addiction and that she had been involved with DHHS on numerous other occasions. She testified that respondent-father physically abused her on separate occasions and at one point choked her to the point that she feared for her life. She explained that in January 2015, she had been staying in an apartment in Grand Ledge. She lost her job at a drugstore after engaging in embezzlement there; she later obtained a job at a fast-food restaurant. In September 2015, respondent-father moved back in with her and the children (they had broken up in or about August 2014). Respondent-mother testified about the bruises on KS. She stated that KS fell and bruised her forehead and that the bruises on KS' buttocks and back resulted from spankings. Respondent-mother testified that respondent-father admitted to spanking KS with a spoon or a spatula days before she noticed the bruises. She stated that she did not consider contacting authorities following the spankings because it would not be a benefit to have "other people to get involved." Respondent-mother denied causing KS' bruises and she stated that respondent-father moved out in late 2015. Respondent-mother obtained a PPO against respondent-father in January 2016.
Following testimony, the trial court found statutory grounds to terminate both parents' parental rights and that termination was in the children's best interests. With respect to respondent-father, the trial court found statutory grounds for termination under MCL 712A.19b(3)(b) because respondent-father either injured KS or failed to prevent her from being injured when he had the opportunity to do so. The court also found that KS was reasonably likely to be injured if she were returned to respondent-father's home. The court also noted that there had been "clear testimony" about "major domestic violence" between respondents, and also clear evidence that respondent-father had a "major drug abuse problem" that could not be effectively treated because he denied or minimized his drug use. The court explained that "the evidence is very clear that [respondent-father] has not had a good faith attempt to try to break his substance abuse cycle" and that he "doesn't have any inclination to want to become sober."
The court also concluded that termination of respondent-father's parental rights was warranted under MCL 712A.19b(3)(g) because respondent-father had failed to provide proper care or custody for KS and there was no reasonable expectation that he would be able to do so within a reasonable time given her age.
With regard to whether it was in KS's best interests to terminate respondent-father's parental rights, the court concluded that he had a bond with KS and that she had "love and affection for him." However, the court found clear evidence that he "has not shown a capacity and disposition for love, affection and emotional ties because of his severe drug use," his "creating an environment of domestic violence," and his failure to attend seven scheduled parenting times in January and February of 2016. The court found that respondent-father could not meet KS's need for permanency, stability, and finality. Accordingly, the court found it was in KS's best interests to terminate respondent-father's parental rights.
With regard to respondent-mother, the court found that there was clear evidence that respondent-mother inflicted serious injuries upon KS. The court found that respondent-mother had not fully rectified any of the barriers to reunification, which the court identified as "substance abuse, domestic violence, parenting, . . . stable employment and stable housing." The court found that petitioner had established grounds for terminating respondent-mother's parental rights under MCL 712A.19b(3)(b)(i) by showing that KS had suffered physical injury or abuse at respondent-mother's hands and that there was a reasonable likelihood that KS would suffer injury or abuse if returned to respondent-mother's custody.
The court also found that respondent-mother had failed to provide proper care or custody for the four children under MCL 712A.19b(3)(g) "because of the drug use, domestic violence, [and] instability in housing and employment" and that, "based on her conduct," there was no reasonable expectation that she would be able to provide proper care and custody within a reasonable time. The court found that there was a reasonable likelihood that the children would be harmed if returned to respondent-mother "because of the propensity of domestic violence and physical abuse of these children, and dramatic drug use."
With regard to whether it was in the children's best interests to terminate respondent-mother's parental rights, the court found that all four children were bonded with her, loved her, and "loved being with her." However, the court stated that despite respondent-mother's "capacity for love, affection and emotional ties with these children," she had "not shown a capacity to have a loving and affectionate home" because of her "drug use," "criminality," "domestic violence," and insufficient mental and physical health, which led the court to weigh her parenting ability "strongly" in favor of termination. The court also found that the children's need for permanency, stability, and finality weighed against respondent-mother, noting that the children had "lived in many, many, many places," had not been able to establish themselves in school, and felt "very insecure not knowing where they're going to be or who they're going to be with," whereas the children's lives had been stable since they had been placed with relatives. The court stated that it was in the children's best interests to live together, which the court noted could continue in their current placement but would likely not be possible if they were returned to respondent-mother. The court concluded that the petitioner had established by "at least clear and convincing evidence" that it would be in the children's best interests to terminate respondent-mother's parental rights. These appeals ensued.
II. RESPONDENT-MOTHER (DOCKET NO. 333162)
Respondent-mother argues that the trial court clearly erred by concluding that terminating her parental rights was in the children's best interests.
We review the trial court's determination that the termination of a person's parental rights was in the child's best interests for clear error. In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
"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." MCL 712A.19b(5). In determining a child's best interests, the trial court may consider the child's need for stability and permanency and whether the child is progressing in its current placement. In re VanDalen, 293 Mich App 120, 141; 809 NW2d 412 (2011). In addition, the trial court may consider the children's bond to the parent, the parent's parenting ability, and the advantages of a foster home over the parent's home. In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012).
In this case, there was evidence that respondent-mother physically abused KS, respondent-mother had numerous other substantiated CPS complaints against her, she abused substances in the presence of the children, was repeatedly involved in abusive relationships, and she could not provide a safe and secure home for the children. KS suffered significant physical abuse while she was in respondent-mother's care and there was nothing in the record to support that KS or the other children would be safe if returned to respondent-mother's custody. Lain testified that respondent-mother was "absolutely not" able to overcome the barriers to reunification and the evidence supported this assertion. Respondent-mother failed to submit to drug testing, missed methadone treatment, and sporadically attended parenting-skills and domestic relations classes. Brandon opined that it was in the children's best interests to terminate respondent-mother's parental rights and that the children needed permanency and stability. Furthermore, Lain testified that she did not believe respondent-mother had benefitted from any of the services DHHS provided her in the past, and when asked whether respondent-mother and respondent-father were likely to rectify "at least the barriers of substance use, child abuse, domestic violence, [and] criminality," Lain responded, "No, absolutely not." Moreover, the children needed the stability and permanency that they received in their foster home and there was nothing in the record to support that respondent-mother could provide this environment for the children in any reasonable amount of time. On this record, the trial court did not clearly err in finding that termination of respondent-mother's parental rights was in the children's best interests. In re Trejo Minors, 462 Mich at 356-357.
III. RESPONDENT-FATHER (DOCKET NO. 333475)
A. ADJUDICATION HEARING
Respondent-father argues that the trial court violated his's right to the care, custody, and control of KS by failing at the adjudication phase to find by a preponderance of the evidence that he was unfit to raise her.
This jurisdictional issue touches on whether respondent-father was afforded procedural due process. "Whether child protective proceedings complied with a parent's right to procedural due process presents a question of constitutional law, which we review de novo." In re Sanders, 495 Mich 394, 403-404; 852 NW2d 524 (2014). An unpreserved issue is reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008).
"Petitioner may initiate child protective proceedings by filing a petition containing facts that constitute an offense against the child under the juvenile code." In re Collier, ___Mich App___; ___NW2d___(2016) slip op. at 5 (internal quotations and citations omitted). "The parent may demand an adjudication trial at which he has a right to a jury trial and at which the rules of evidence generally apply, or he may admit to the allegations contained in the petition." Id. (quotation marks omitted). "The petitioner has the burden of proving by a preponderance of the evidence one or more statutory grounds for jurisdiction alleged in the petition, MCR 3.972(E)." Id. (quotation marks omitted). "'When the petition contains allegations of abuse or neglect against a parent . . . and those allegations are proved by a plea or at the trial, the adjudicated parent is unfit.'" Id., quoting In re Sanders, 495 Mich at 405.
In this case, the court held an adjudication trial as to respondent-father and KS. After hearing testimony from respondent-father, the paternal grandparents, and CPS worker Lain, the court found statutory grounds to assume jurisdiction by a preponderance of the evidence pursuant to MCL 712A.2(b)(1) and (2), which provide that a court may assume jurisdiction over a juvenile:
(1) Whose 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, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. []
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent . . . is an unfit place for the juvenile to live in.
In arguing that there was insufficient evidence at the adjudication trial, respondent-father essentially challenges the trial court's jurisdiction. In the context of a child custody case, there are two types of challenges to the court's jurisdiction: (1) a challenge for want of jurisdiction, which may be raised at any time; and (2) a challenge on "matters affecting the court's exercise of its jurisdiction," which "may be challenged only on direct appeal of the jurisdictional decision." In re Kanija, 308 Mich App 660, 667; 866 NW2d 862 (2014) (citation omitted).
In re Sanders, 495 Mich at 394, illustrates a permissible challenge to a court's want of jurisdiction. In Sanders, the trial court adjudicated the respondent-mother as unfit, but dismissed the allegations against the respondent-father. Nevertheless, the trial court, relying on the one-parent doctrine, limited the respondent-father's contact with his children and required him to comply with a service plan. Sanders, 495 Mich at 407. Our Supreme Court held that the one-parent doctrine was unconstitutional, stating that "due process requires a specific adjudication of a parent's unfitness before the state can infringe the constitutionally protected parent-child relationship." Id. at 422. Thus, because the trial court never adjudicated the respondent-father, the court did not obtain jurisdiction to enter dispositional orders affecting the respondent-father's parental rights and, on appeal, the respondent-father could challenge the court's want of jurisdiction. In re Kanjia, 308 Mich App at 670-671.
The one-parent doctrine allowed a court to enter dispositional orders affecting the parental rights of both parents even if jurisdiction was established by adjudicating only one parent as unfit. Sanders, 495 Mich at 407. --------
In contrast, where a court adjudicates a parent, assumes jurisdiction, yet nevertheless makes errors during the process, the respondent must directly appeal the court's jurisdictional order as opposed to waiting to raise the issue until after the termination. In re SLH, 277 Mich App 662, 668; 747 NW2d 547 (2008); In re Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993). That is, "[m]atters affecting the court's exercise of its jurisdiction may be challenged only on direct appeal of the jurisdictional decision." In re Kanija, 308 Mich App at 667. Thus, "when a termination occurs following the filing of a supplemental petition for termination after the issuance of the initial dispositional order . . . an adjudication cannot be collaterally attacked following an order terminating parental rights." In re SLH, 277 Mich App at 668.
In this case, respondent-father's argument amounts to an impermissible collateral attack on matters affecting the court's jurisdiction. Here, respondent-father received an adjudication trial. The court heard testimony at the adjudication trial and the court made findings of fact after hearing the evidence and determined that there were statutory grounds to assume jurisdiction. However, respondent failed to directly appeal the court's exercise of jurisdiction following the adjudication trial and termination of her parental rights occurred following the issuance of an initial dispositional order and pursuant to a supplemental petition. Because respondent was present and was adjudicated he cannot collaterally attack alleged errors in the assumption of jurisdiction. Id.; see also In re Hudson, 294 Mich.App 261, 264; 817 NW2d 115 (2011) (noting that a "[r]espondent may not assign as error on appeal something that [ ]he deemed proper in the lower court because allowing [him] to do so would permit respondent to harbor error as an appellate parachute.")
Moreover, even if we were to address this issue, the court did not err in finding a preponderance of the evidence to assume jurisdiction under MCL 712A.2(b)(1) and (2). Assuming, as respondent-father argues, that the evidence at the adjudication trial did not show that respondent-father was responsible for the physical abuse inflicted upon KS, the evidence supported that respondent-father otherwise failed to provide proper care and custody and failed to provide a place that was fit for KS to reside. Specifically, the evidence supported that respondent-father had knowledge of the abuse, yet failed to take any action to prevent the abuse. Lain testified that KS had bruises on her head, that her lower back was "mildly red," and that KS had more than 15 bruises between her left hip and her mid-calf. Although respondent-father argues that he did not live with respondent-mother at the alleged time the abuse occurred, the extensive amount of bruising on KS' body would have placed respondent-father on notice that the child was suffering physical abuse, yet respondent-father failed to take appropriate action to stop the abuse. Furthermore, there was evidence that respondent-father abused narcotics and were involved in domestic violence. On this record, the trial court did not err in finding that a preponderance of the evidenced supported grounds to assume jurisdiction pursuant to MCL 712A.2(b)(1) and (2).
B. STATUTORY GROUNDS FOR TERMINATION
Next, respondent-father argues that the trial court clearly erred by determining that statutory grounds existed to justify terminating his parental rights.
We review a trial court's determination that a statutory ground for termination of parental rights has been proved for clear error. MCR 3.977(J); In re Trejo Minors, 462 Mich at 356-357. A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich at 337.
The court terminated respondent-father's parental rights, in part, under MCL 712A.19b(3)(b), which provide as follows:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(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.
Respondent-father argues that the court erred by terminating his parental rights under MCL 712A.19b(3)(b) for having either caused or failed to prevent KS's extensive bruising because he had moved out of respondent-mother's house on December 1, 2015, allegedly a week before the bruises were discovered. Therefore, according to respondent-father, he could not have either inflicted or prevented her injuries. However, as the trial court explained, while
there certainly is testimony that shows that [respondent-father] was not in the home of KS about the time that the major injuries were inflicted, . . . I think the medical testimony is also clear that you can't put exact dates and times on bruises. And so I can't completely rule out that [respondent-father] . . . was not a perpetrator . . . .
In addition, respondent-father testified that he had disciplined the children by spanking them, occasionally using a spatula or spoon; and the forensic nurse who examined KS testified that her bruises were consistent with child abuse generally and having had been hit with a spoon in particular.
Respondent-father notes that the court stated later that "the evidence shows by clear and convincing and even to me beyond a reasonable doubt that [respondent-mother] was the person who inflicted these serious injuries on KS." To the extent that this finding conflicts with the court's conclusion that respondent-father could not be ruled out as being the perpetrator, the court also concluded that the evidence showed that respondent-father "knew about [the abuse] to the extent that he failed to take reasonable care once these injuries were inflicted." The court explained:
I just can't make sense of the testimony when a child was injured this gravely with so many injuries on her body that he testified he didn't see it, didn't know how it happened, didn't know what was going on. It took his parents, who happened to be watching the children, to take this child to the hospital; and for [respondent-father] to say he . . . didn't notice it, it's just unfathomable to me.
Respondent-father testified that he was aware that respondent-mother disciplined the children by spanking them, and respondent-mother testified that although respondent-father had moved out of their apartment, he was staying with a neighbor across the hall and was still taking care of KS when KS's injuries were inflicted. Although the court expressed general doubts about respondent-mother's credibility, to the extent it may have credited her testimony on this point, it did not clearly err. See In re LaFrance Minors, 306 Mich App 713, 723; 858 NW2d 143, 149 (2014) (stating that a reviewing court "must defer to the special ability of the trial court to judge the credibility of witnesses"). Moreover, given the extent of the injuries, it is reasonable to conclude that respondent-father would have become aware of them at some point when he had KS in his care. The fact that respondent-father did not have custody of the child did not preclude him from acting to prevent further injury by reporting the suspected abuse. On this record, the trial court did not clearly err in finding grounds for termination under MCL 712A.19b(3)(b). In re Trejo Minors, 462 Mich at 356-357. Because there was one ground for termination, we need not address the additional grounds upon which the trial court based its decision. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).
C. BEST INTERESTS
Respondent-father also argues that the court erred in concluding that termination of his parental rights was in KS's best interests.
As noted above, we review a trial court's best interests determination for clear error. In re Trejo, 462 Mich at 356-357. A finding is clearly erroneous if we are left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich at 337.
Here, the evidence showed that KS needed stability and permanency and there was nothing in the record to support that respondent-father would be able to provide this in a reasonable amount of time. The record supported that respondent-father had a history of substance abuse and domestic violence. Although respondent-father argues that the service plan was only implemented in February 2016 and that termination occurred in April 2016, respondent-father missed seven scheduled parenting time visits in January and February. In addition, Brandon testified that respondent-father skipped drug screens and tested positive on one of the two screens that he did submit to. Brandon testified that respondent-father denied that he had a substance-abuse problem and was angry that substance-abuse was considered a barrier to reunification. In addition, the paternal grandparents testified that respondent-father needed to resolve his personal issues before he could be a good dad and Brandon testified that it was in KS' best interests to terminate his parental rights because he could not provide the stable home that KS needed. In contrast, KS was doing well in her foster home where she received the permanency and stability that she needed and her foster parents were planning for her long-term.
Respondent-father argues that the court erred by finding that KS's need for permanency, stability, and finality favored termination without considering respondent-father's living situation completely separately from respondent-mother's. However, although the court did mention "the living environment of [respondent-father] and [respondent-mother]" in making its finding on this point, it specifically found that "this child doesn't have stability or permanency or finality with [respondent-father]." Considering that respondent-father was in jail at the time, was otherwise sharing a house with his boss in Kalamazoo, and had stated that he would likely need help supporting KS because his income "fluctuate[d] greatly," the court's conclusion on this point was not clearly erroneous. In re Trejo Minors, 462 Mich at 356-357. For similar reasons, the fact that the court failed to compare KS's foster placement expressly with respondent-father's current living situation did not render its ultimate finding clearly erroneous.
Respondent-father also argues that the trial court erred with respect to its findings regarding the advantages of KS' foster home and erred in failing to consider that KS was placed with relatives, which should have weighed against termination. However, given that respondent-father's home environment was characterized by instability, incarceration, and drug use, and in the absence of evidence that KS was not doing well in her foster placement, the court's conclusion that her foster placement was a factor to be weighed against respondent-father does not give rise to a definite and firm conviction that it made a mistake. In re Miller, 433 Mich at 337. Similarly, the court did expressly acknowledge the presumption that a placement with relatives ordinarily weighed against termination, and it went on to explain why that presumption was outweighed by the court's concerns about drug use and domestic violence and its interest in keeping the children together. The court did not clearly err in making this factual determination.
Finally, to the extent respondent-father's argument is predicated on the court's failure to make best-interest findings specific to KS, it is not persuasive in this case because all four children's interests in a stable, nonviolent, drug-free home coincided, and the trial court was not required to make redundant findings to this effect. See In re White, 303 Mich App at 716. In sum, the trial court did not clearly err in finding that termination of respondent-father's rights was in KS' best interests. In re Trejo, 462 Mich at 356-357.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher