If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNPUBLISHED

In re A. WHITE, Minor. May 19, 2022

No. 358115

Roscommon Circuit Court

Family Division

LC No. 20-725143-NA

In re BAIRD/WHITE, Minors. No. 358180

Roscommon Circuit Court

Family Division

LC No. 20-725143-NA

Before: GADOLA, P.J., and SERVITTO and REDFORD, JJ.

PER CURIAM.

In Docket No. 358115, respondent-father appeals as of right the trial court’s order 

terminating his parental rights to AW pursuant to MCL 712A.19b(3)(b)(i) and (b)(ii). In Docket 

No. 358180, respondent-mother appeals as of right the trial court’s orders terminating her parental 

rights to AW and to an older child, KB, also pursuant to MCL 712A.19b(3)(b)(i) and (b)(ii).1 We 

affirm the trial court’s termination of respondent-father’s and respondent-mother’s parental rights 

to AW, but reverse the trial court’s termination of respondent-mother’s parental rights to KB and 

remand for further proceedings.

 

1 At the time of termination, KB resided with her father, who is not a party to this appeal. This 

Court consolidated respondents’ appeals to advance the efficient administration of the appellate 

process. In re White, In re Baird/White, unpublished order of the Court of Appeals entered 

September 28, 2021 (Docket Nos. 358115; 358180).
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I. FACTUAL BACKGROUND

On October 30, 2020, the Department of Health and Human Services (DHHS) petitioned

for the removal of AW, who was then almost four months old, from respondents’ home. The 

petition alleged that an investigation by Child Protective Services (CPS) revealed that AW had 

sustained bruising to her lower left jaw and above her left ear, and had 16 rib fractures that were 

in various stages of healing. The rib fractures were described as compression fractures, usually 

thought to be caused by squeezing or compression of the child’s chest. DHHS filed an amended 

petition shortly thereafter seeking termination of respondents’ respective parental rights to AW 

pursuant to MCL 712A.19b(3)(b)(i) or (b)(ii) because of physical abuse of AW and failure to 

prevent the abuse. DHHS alleged among other factual allegations that a pediatrician and internal 

medicine doctor of the Center for Child Protection of the Helen DeVos Children’s Hospital 

examined AW and found that the infant child suffered 16 rib fractures in different stages of healing 

and that genetic testing determined that AW had no bone-fragility disorders and found no concerns 

for such disorders. Because no credible explanation had been given for the injuries, the doctor 

concluded that the totality of the injuries were indicative of nonaccidental trauma which confirmed 

a medical diagnosis of pediatric physical abuse. The amended petition also alleged that petitioner 

had serious concerns about the safety of approximately 10-year-old KB, respondent-mother’s older 

daughter, because, if respondent-mother could not keep AW safe, she likely could not keep KB 

safe. The amended petition, however, did not allege that KB had ever suffered any abuse or 

neglect.

Dr. Yvonne Rekeny, an expert in child abuse and neglect and who was consulted on AW’s 

case, testified during the termination hearing that the injuries were highly indicative of child abuse. 

Dr. Rekeny also testified that her team considered and ruled out various disorders and genetic 

defects, such as osteogenesis imperfecta or fragile bone disorder, as a contributory factor to AW’s 

injuries. Dr. Rekeny explained that the manner of mechanism of injury that respondents presented 

did not account for AW’s injuries. The trial court found that petitioner presented clear and 

convincing evidence to support termination of respondent-father’s and respondent-mother’s 

respective parental rights to AW under MCL 712A.19b(3)(b)(i) or (b)(ii). The trial court further 

ruled that these grounds also supported termination of respondent-mother’s parental rights to KB. 

The trial court found that termination of respondents’ respective parental rights served AW’s best 

interests, and that termination of respondent-mother’s parental rights to KB served that child’s best 

interests.

II. RESPONDENT-FATHER’S APPEAL (DOCKET NO. 358115)

A. STATUTORY GROUNDS FOR TERMINATION

Respondent-father first argues that the trial court clearly erred by finding that clear and 

convincing evidence established a statutory ground for termination of his parental rights to AW. 

We disagree.

We review for clear error a trial court’s ruling that a statutory ground for termination has 

been proved by clear and convincing evidence and its ruling that termination is in the children’s 

best interests. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). “A finding is clearly 
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erroneous if, although there is evidence to support it, this Court is left with a definite and firm 

conviction that a mistake has been made.” Id.

“In order to terminate parental rights, the trial court must find by clear and convincing 

evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been 

met.” In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). “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 this case, the trial court found that clear and convincing evidence established grounds 

for terminating respondent-father’s parental rights under MCL 712A.19b(3)(b)(i) and (b)(ii), 

which authorizes termination in the following circumstances:

(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 reflects that petitioner presented clear and convincing evidence establishing

grounds for termination under MCL 712A.19b(3)(b)(i) and/or (b)(ii). Petitioner presented the 

testimony of Dr. Rekeny and other evidence that the nonmobile infant, AW, suffered 16 broken 

ribs which she sustained over an extended period and on more than one occasion. Dr. Rekeny 

testified that before AW’s arrival at the Helen DeVos Children’s Hospital on October 29, 2020, 

the referring hospital had taken a “full skeletal survey” revealing the rib fractures. The fractures 

were in different stages of healing, indicating that they occurred at different times. Dr. Rekeny 

also testified that nothing about the injuries led her to believe that they resulted from picking the 

child up from a chair, or from toys or other items falling on her as respondents had offered as 

explanations for the child’s injuries. Dr. Rekeny opined that AW had sustained pediatric physical 

abuse and nonaccidental trauma. Had the injuries been caused by an accident, Dr. Rekeny 

explained that such severe injuries would result from something delivering a high level of force, 

such as a long fall or a car accident. Even then, one would not expect to see fractures in different 

stages of healing. Dr. Rekeny also opined that nonaccidental injures such as these typically would 

be caused by a forceful blow or kick to the ribs, or a forceful compression of the ribs, where the 

abuser squeezed or compressed hard on the child’s back. Compression near the spine acted as

leverage on the ribs, such that they could break on the lateral sides or the back.

Dr. Rekeny also testified that the hospital performed a follow-up skeletal survey two weeks 

after the initial one which revealed no additional fractures, indicative that the injuries were not the 

result of any genetic disorder. Had AW had a significant bone-fragility disorder, given that she 
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had sustained 16 broken ribs in 3 months, Dr. Rekeny would have expected to see additional 

findings in the more recent survey of which there were none. Dr. Rekeny also testified that if the 

child had a bone disorder, she would expect to see other fractures, such as long bone fractures, not 

just fractures to the child’s ribs. Dr. Rekeny also provided further explanation of the lack of any 

genetic disorders that would explain the injuries, which included a discussion of the symptoms of 

polycythemia or lactose intolerance and AW’s paternal grandfather’s exposure to Agent Orange. 

Further, all of the bone surveys done on AW indicated that she had normal bone mineralization 

for her age. AW’s undisputed physical injuries and the medical diagnostic testing elucidated by 

Dr. Rekeny’s testimony support the trial court’s determination that the injuries were caused by 

trauma, rather than a genetic defect or accident. In addition, respondent-mother denied that there 

were any complications with AW’s birth which ruled out birth trauma as a cause.

Respondent-father argues that even if the injuries were caused by trauma, no testimony 

linked the injuries to his own actions, or respondent-mother’s actions, either as a cause of the 

injuries or a failure to protect. CPS investigator, Stacy Bohnhoff, however, testified that she 

created a timeline based on the different stages of rib healing as part of the investigation to 

eliminate other caregivers as persons who could have caused the injuries. This evidence supported 

a finding that one or both respondents injured the child. Other testimony also supported a 

determination that one or both respondents knew of the child’s injuries but failed to protect AW 

from abuse. When asked whether the injuries could have occurred without respondents knowing 

about them, Dr. Rekeny acknowledged that an infant cannot vocalize and can be irritable at times, 

but testified that the child would have been in pain, would have shown increased irritability, and 

would have cried at the time of the acute injury. Although respondent-mother testified that she 

did not notice anything wrong, other than AW becoming fussy after she ate, Bohnhoff testified 

that respondent-mother told her that AW would sometimes be fussy or cry unconsolably.

Contrary to what respondent-father asserts, petitioner was not required to prove which 

parent hurt AW and which one failed to protect the child in order to prove this statutory ground 

for termination. This Court has held that termination of parental rights under MCL 

712A.19b(3)(b)(i) or (b)(ii) “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). In re Ellis involved facts similar to the instant case where

[t]he [child’s] injuries were numerous, highly indicative of child abuse, using a very 

high force of impact, and inconsistent with any sort of accident. The fact that many 

of them were in various stages of healing showed that [the child] had suffered 

multiple instances of abuse over a prolonged time. The physician testified that 

while the child may not have been crying constantly, he would have shown signs 

of distress at least periodically through lack of appetite, sleeping more, and 

increased fussiness. Respondents could not offer any plausible alternative 

explanation for [the child’s] injuries. [Id. at 36.]

This Court noted that the respondents-parents had argued “that it is impossible to determine which 

of them committed this heinous abuse of the minor child.” Id. at 33. However, this Court 

explained that the question regarding which parent committed the abuse of the minor child
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would be an extremely relevant, and possibly dispositive, concern in a criminal 

proceeding against either or both of them, but it is irrelevant in a termination 

proceeding. When there is severe injury to an infant, it does not matter whether 

respondents committed the abuse at all, because under these circumstances there 

was clear and convincing evidence that they did not provide proper care. [Id. at 

33.2]

This Court then concluded that the trial court “properly determined that at least one of them had 

perpetrated the abuse and at least one of them had failed to prevent it; consequently, it did not 

matter which did which.” Id. at 35.

The trial court in this case did not clearly err when it found that clear and convincing 

evidence established grounds for termination of respondents’ parental rights under MCL 

712A.19b(3)(b)(i) or (b)(ii), even though which respondent injured AW could not be definitively 

determined because the evidence established statutory grounds under either subpart. Even if

respondent-father did not cause AW’s injuries, clear and convincing evidence nevertheless

established that he knew of the recurring injuries and failed to protect the child. The same applies 

to respondent-mother. The trial court, therefore, did not clearly err by finding that clear and 

convincing evidence established a ground for termination under MCL 712A.19b(3)(b)(i) or (b)(ii).

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Respondent-father next argues that he is entitled to relief because his trial counsel provided

ineffective assistance by failing to obtain all relevant medical records necessary to respond to 

petitioner’s evidence, by failing to consult more than one potential expert witness after the first 

one he contacted said that he would not be able to help respondents, and by stipulating to the 

introduction of respondent-father’s psychological evaluation report in lieu of calling the report 

author as a witness. We disagree with all three claims of ineffective assistance.

A claim of ineffective assistance of counsel generally presents a mixed question of fact and 

constitutional law, with questions of fact being reviewed for clear error and questions of law being 

reviewed de novo. In re Mota, 334 Mich App 300, 318; 964 NW2d 881 (2020). Respondents in 

parental-rights proceedings are entitled to the effective assistance of counsel, and claims regarding 

ineffectiveness are reviewed under the same principles that apply in criminal proceedings. In re 

Martin, 316 Mich App 73, 85; 896 NW2d 452 (2016). To successfully establish a claim of 

ineffective assistance of counsel, a respondent in child protective proceedings must show “that (1) 

counsel’s performance was deficient, falling below an objective standard of reasonableness, and 

that (2) the deficient performance prejudiced the respondent.” Id. “To demonstrate prejudice, a 

party must show the existence of a reasonable probability that, but for counsel’s error, the results 

of the proceeding would have been different, and a reasonable probability is one that is sufficient 

to undermine confidence in the outcome.” Mota, 334 Mich at 319. Counsel is presumed to be 

effective, and a respondent bears a heavy burden to overcome that presumption. People v Cooper, 

 

2 This Court also noted that “[a]lthough published before this case, in In re VanDalen, 293 Mich

App 120, . . . this panel arrived at the same conclusion as a basis for terminating parental rights 

under MCL 712A.19b(3)(g) and (j).” Id. at 35 n 2.
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309 Mich App 74, 80; 867 NW2d 452 (2015). This burden includes establishing the factual 

predicate for an ineffective-assistance claim. Id.

In general, “[d]ecisions regarding what evidence to present, whether to call witnesses, and 

how to question witnesses are presumed to be matters of trial strategy.” People v Horn, 279 Mich 

App 31, 39; 755 NW2d 212 (2008). This Court “will not second-guess counsel on matters of trial 

strategy, nor will we assess counsel’s competence with the benefit of hindsight.” Id. However, 

“[c]ounsel always retains the duty to make reasonable investigations or to make a reasonable 

decision that makes particular investigations unnecessary.” People v Trakhtenberg, 493 Mich 38, 

52; 826 NW2d 136 (2012) (quotation marks and citation omitted). “[A] sound defense strategy 

cannot follow an incomplete investigation of the case when the decision to forgo further 

investigation was not supported by reasonable professional judgment.” Id. at 55.

1. FAILURE TO OBTAIN COMPLETE MEDICAL RECORDS

Preliminarily, the record does not support respondent-father’s argument that trial counsel 

failed to obtain all necessary medical records. Respondent-father claims that his post-termination 

expert, Dr. Douglas M. Smith, M.D., Ph.D., did not have all of the medical information he needed 

to form a more complete conclusion in his preliminary report. However, this is refuted by trial 

counsel’s actions and statements in the trial court. Before the hearing, counsel for petitioner 

informed the court that he would provide “copies of everything the Department has and intends to 

use at trial.” The court stated that it would also entertain late discovery requests if the items sought 

would be admissible. Before the start of the termination hearing, the trial court stated that it had 

spoken with counsel off the record and asked the parties whether there were any preliminary 

matters that needed to be put on the record. Respondents’ respective counsel did not raise any 

concerns, such as an inability to obtain the underlying x-rays or other medical records. In his 

report, Dr. Smith lists a number of items he reviewed when preparing his report, including AW’s 

birth records, the bone survey, and records from the Helen DeVos Children’s Hospital. However, 

there is no indication that respondent-father’s counsel did not have these materials before the 

termination hearing. Moreover, neither respondent has provided an offer of proof regarding any 

necessary records that counsel did not have or failed to obtain. The record, therefore, does not 

support respondent-father’s argument that counsel failed to obtain all of the necessary medical 

records.

2. FAILURE TO INVESTIGATE OR OBTAIN EXPERT WITNESSES

Respondent-father also argues that counsel provided ineffective assistance by failing to 

further investigate other possible favorable expert witnesses after he, or respondent-mother’s 

counsel, spoke with Dr. Blake Bulloch. On the beginning of the second day of the termination 

hearing, counsel for respondent-mother informed the court that he and counsel for respondentfather had decided not to call any expert witnesses. Counsel explained that they had contacted 

experts in polycythemia and experts in the causes of rib fractures in infants, and specifically 

advised the court regarding contacting Dr. Blake Bulloch, “who has published scholarly articles in 

pediatrics as well as works at the children’s hospital in Phoenix and is somewhat of an expert in 

the area.” Counsel explained, however, that they were “[u]nable to secure any who we believe 

will be helpful to our cause.” Counsel for respondent-father agreed. This exchange establishes 

that respondents’ respective counsel had investigated the potential value of an expert witness and 
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sought out at least one expert and received an unfavorable response. Further, it appears that 

counsel may have sought out additional experts. Respondent-father essentially argues that counsel 

should have kept looking. His argument also relies on the belief that Dr. Smith would have been 

able to help respondents’ cause as indicated in his preliminary report.

Respondent-father primarily relies on People v Ackley, 497 Mich 381; 870 NW2d 858

(2015), in support of his contention that counsel’s failure to engage another expert was objectively 

unreasonable. However, we agree with the trial court that Ackley is factually distinguishable from 

this case. In Ackley, our Supreme Court considered whether a defendant’s trial counsel performed

ineffectively by failing to retain an expert where the defendant was charged with first-degree 

felony murder and first-degree child abuse after his live-in girlfriend’s three-year-old daughter 

died while in the defendant’s care. Id. at 384. The defendant’s counsel contacted a possible expert 

witness, but the witness agreed with the prosecution’s theory and told counsel that he could provide 

no help, because he was on the other side of the debate in his field. However, he advised counsel 

to seek the assistance of a different expert, who not only was on the “opposite” side of the debate, 

but who was also “significantly more likely to agree with the defendant’s claim that the child’s 

death in this case must have been accidental.” Id. at 390. Counsel ignored the advice and did not 

contact the suggested witness or any other forensic pathologist with expertise, “rendering [the first 

expert] his expert by default.” Id. Our Supreme Court held that defense counsel’s decision to 

“confine his pursuit of expert assistance to [the first witness], a self-proclaimed opponent of the 

very defense theory counsel was to employ at trial, despite [the witness’s] referral to at least one 

other expert who could provide qualified and suitable assistance to the defendant” was objectively 

unreasonable. Id. at 391. The Court also faulted counsel for failing to consult “readily available”

journal articles on the subject or otherwise educate himself or conduct any independent 

investigation of the medical issues beyond counsel’s first consultations. Id. at 391.

As the trial court noted, respondents’ attorneys in the instant case did the opposite of the 

defendant’s counsel in Ackley. Rather than continue to rely on an expert who told the defense he 

could not be helpful, they chose not to rely on that unhelpful witness. Later they enlisted the aid 

of another doctor whose proffered opinion consisted mostly of speculative conclusions and relied 

upon studies that largely were irrelevant to the instant facts. Thus, unlike in Ackley, where the 

scientific debate at issue was both significant and highly controversial and at least one highly 

qualified expert could have testified on the defendant’s behalf, respondent-father has not shown 

that his post-termination expert would have been helpful in this case. Respondent-father’s reliance 

on Ackley, therefore, is misplaced.

While Dr. Douglas Smith’s report refers to underlying studies, it is unclear how those 

studies would have been helpful in this case. Much of Dr. Smith’s opinion relies on speculation, 

or on factual scenarios unrelated to the circumstances of the instant case. For example, when 

discussing counsel’s alleged failure to pursue genetic testing on AW, Dr. Smith relies on a case 

study of a baby “who suffered multiple fractures before birth, including multiple rib fractures and 

bilateral fractures of the upper arm or upper leg bones” where the mother had “hypermobility type 

Ehlers-Danlos syndrome.” In this case, AW suffered no other broken bones to support an alternate 

explanation for the injuries. No evidence established that AW had incurred injury before or during 

her birth. Further, respondent-mother testified that there were no complications with AW’s birth. 

Respondent-father, who attended AW’s birth, also testified that no known issues presented during 

the actual birth. Moreover, Dr. Rekeny testified that AW’s injuries were inconsistent with being
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caused during birth because respondents reported that the birth was normal and the multiple rib 

fractures were in different stages of healing when the child presented at the Helen DeVos 

Children’s Hospital.

Likewise, when discussing bone fragility in relation to a vitamin D deficiency, Dr. Smith 

discussed one of his own consults in which the child presented with a skull fracture after falling 

off a couch. That patient had a vitamin D level of 14ng/ml, which is less than half of the low end 

of the normal range of 30 ng/ml. AW had a vitamin D recorded test result of 33 ng/ml. Upon 

further examination, the child for whom Dr. Smith provided consultation, had a fractured femur 

after a number of physicians, particularly a neurosurgeon, examined the patient. Dr. Smith relied 

on this case to opine that, in contrast to the generally accepted claim by child pediatricians that a 

vitamin D deficiency without an x-ray showing rickets does not increase the risk of fractures, “it 

seems unlikely that the neurosurgery resident would have fractures of the femur if the child did 

not have some degree of bone fragility.” Such conclusion is speculative. Although Dr. Smith’s 

observation may be correct that vitamin D levels could change more quickly than bone density, he 

essentially acknowledged that any conclusion that vitamin D may have played a role in AW’s

fractures constituted speculation. In addition, Dr. Smith failed to explain how this could occur in 

light of Dr. Rekeny’s testimony that all of the bone surveys done on AW indicated that she had 

normal bone mineralization for her age. We also agree with the trial court that any comparison to 

fractures caused by infant CPR is unwarranted.

Dr. Rekeny testified regarding the tests performed on AW to determine whether she had a 

bone-fragility disorder. Apart from her testimony that even “common” bone-fragility disorders, 

with rickets being the most common one, were actually “pretty rare,” nothing in her findings or 

the ones she relied on supports a conclusion that AW suffered from any bone disorder. The tests 

done by Dr. Rekeny and the other DeVos Children’s Hospital doctors, included reviewing x-rays 

of the child’s bone mineralization for any abnormalities of the skeletal structure. The hospital also 

performed laboratory tests to look for a variety of bone-fragility disorders, including checking for 

a vitamin D deficiency, copper deficiency, whether the child had normally functioning parathyroid 

activity, calcium levels, and other nutritional factors. The results were all negative. Dr. Rekeny 

also obtained a genetic consult to evaluate for any concerns of bone-fragility disorders, and all of 

that workup presented normal or negative results ruling out bone-fragility disorders as a 

contributor to the rib fractures. When asked why her facility did not test for “all” genetic bone 

disorders, Dr. Rekeny explained that there are “thousands” of bone disorders and that they “don’t 

check for all bone disorders if there’s no evidence or signs or need to do that.” Given this 

testimony, nothing in the laboratory work supported a finding that further genetic testing was 

needed. Further, respondent-father has not shown that counsel had any other information that 

would have shed light on whether AW suffered from osteogenesis imperfecta or any other bonefragility genetic disorder. For example, to the extent that respondents rely on possible inherited 

genetic defects, respondents have presented no genetic testing of either parent, or other family 

members, to support a conclusion that further investigation of an inherited genetic disorder was 

necessary. Further, although only one additional set of x-rays was completed a few weeks after 

the initial screening, as the trial court noted, no evidence supports a finding that the child had been 

further injured or sustained any fractures after removal.

Dr. Smith also relied on a study that he maintained rendered unreliable Dr. Rekeny’s 

finding that the fractures were not birth-related. That study divided the appearance of bone 
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fractures on x-rays into 6 stages of healing over approximately 11 weeks. Dr. Smith maintained 

that the study supported a finding that some of AW’s rib fractures were in stage 6, which permitted 

estimating the age the fractures between 9 to 11 weeks. He contended that, because fractures could 

persist with little change for several weeks to months, AW’s fractures could be from birth, which 

occurred 16 weeks before the child presented to the hospital. Dr. Smith, however, acknowledged

that it was a “small study and the times are somewhat idealized.” Moreover, Dr. Smith did not 

discuss Dr. Rekeny’s determination that some of the fractures appeared to be only one or two 

weeks old, although difficult to pinpoint the exact ages of fractures.

Dr. Smith’s report does not establish that respondents’ respective counsel provided 

ineffective assistance. The trial court noted that Dr. Rekeny consistently stated that the fractures 

were in different stages of healing, with some “much older” than others. The record evidence and 

the testimony supported a conclusion that AW’s injuries were incurred on different dates, as 

opposed to being linked to a single event such as her birth. Therefore, as with the genetic 

information, respondent-father has not shown that counsel provided ineffective assistance by

failing to obtain other experts to provide more precise dates of when the fractures occurred.

Respecting the evidence about the ability to observe the injuries in AW, Dr. Smith opined 

that “[e]ven if the fractures were inflicted on the child, one would not expect that the child would 

have exhibited significant signs of pain when cared for by the non-offending caretakers or when 

being examined by [her] doctor.” Dr. Smith relied on expert testimony from another court case,

but it is unclear whether the facts are comparable. The trial court observed that any birth fractures 

likely would have been discovered by physicians who were closely monitoring AW during her 

stay in the neonatal intensive care unit. The evidence presented in this case does not support Dr. 

Smith’s speculative opinions regarding contributing factors to AW’s rib fractures. More 

importantly, Dr. Smith essentially admitted in his report that he could not rule out abuse as the 

cause of AW’s rib fractures.

In sum, nothing in Dr. Smith’s report establishes that counsel’s failure to investigate or call 

another expert was objectively unreasonable, or that there is a reasonable probability that the 

outcome of the proceeding would have been different if an expert, such as Dr. Smith, had been 

retained and testified on behalf of respondents.

3. STIPULATION TO THE PSYCHOLOGICAL EVALUATION REPORT

Respondent-father also argues that trial counsel provided ineffective assistance by

stipulating to the introduction of respondent-father’s psychological evaluation report without 

calling the report author as a witness. However, respondent-father has not presented any affidavit 

or other offer of proof to support a finding that the author’s in-person testimony was necessary,

would have been helpful, or would have had a reasonable likelihood of affecting the outcome. 

Moreover, it is apparent that trial counsel strategically decided not to do so. Rather than call the 

author of the evaluation as a witness, trial counsel cross-examined other witnesses regarding 

aspects of statements made in the evaluation. During such cross-examination of witnesses, counsel 

effectively pointed out inaccuracies in the author’s predictions regarding respondent-father’s 

potential for rehabilitation. For example, counsel asked caseworker Kristi Root whether the 

psychological evaluation report stated that respondent-father “is gonna be compliant and 

cooperative?” She replied, “[N]ot unless he chooses to be,” but then admitted that he had been 
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compliant since the beginning of the case. Root testified that both respondents had been 

cooperative and had been voluntarily participating in services. She also acknowledged that, even 

though the report stated that respondent-father had a highly addictive personality, he had not used 

any controlled substances in the last eight months. When asked whether respondents could benefit 

from continued services, Root agreed with the report’s evaluation that respondent-father could 

benefit only if he chose to participate and make it a priority and chose to make changes; he would 

have to “buy into that before it would be” beneficial. She then admitted that respondent-father had 

been doing so for the last several months, and he had done everything that the caseworkers had 

asked him to do. Respondent-father’s counsel reasonably used cross-examination to clarify 

portions of the psychological evaluation report that were not unfavorable and to demonstrate that 

some of the report author’s predictions were not accurate.

Moreover, there is no basis for concluding that counsel’s stipulation affected the outcome 

for respondent-father. Respondent-father did not disagree with any of the report’s recitation of 

statements attributed to him during the evaluation. He specifically agreed that he had told the 

report author that if he lost his daughter, he would become a “loose cannon” and there would be 

nothing to stop him at that point. He made repeated statements suggesting that he would act 

irrationally and erratically, would be willing to break the law, and would even become hostile to 

caseworkers or others. Respondent-father has not established that his counsel’s performance fell 

below an objective standard of reasonableness nor has he demonstrated a reasonable likelihood 

that the outcome of the proceedings would have been different had his counsel not stipulated to 

the psychological evaluation report’s admission.

C. BEST INTERESTS

Respondent-father next challenges the trial court’s determination that termination of his 

parental rights served AW’s best interests. “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). Whether termination of parental rights is 

in a child’s best interests is determined by a preponderance of the evidence. In re Olive/Metts, 297 

Mich App 35, 40; 823 NW2d 144 (2012). Factors to be considered 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.” Id. at 41-42 (citations omitted). A 

court may also consider whether it is likely “that the child could be returned to her parents’ home 

within the foreseeable future, if at all.” In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 

(2012). “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, 714; 846 NW2d 61 (2014).

In this case, the trial court found that a bond existed between AW and respondents and that 

both respondents had complied with the parenting skills portion of the case service plan. The court 

also found that respondents had not missed any parenting-time visits. The court, however, found 

that evidence established that both AW and KB needed permanency and stability, and that even 

though AW’s current placement might not be permanent, she needed finality in order to know 

where she would grow up. The court also found that a high probability existed that AW’s aunt, 
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who currently cared for AW, would adopt her, but even if she did not, little difficulty likely existed 

in finding other adoptive parents given AW’s age. The court found that the predictions in 

respondent-father’s psychological evaluation, coupled with his trial testimony, indicated a low 

probability of respondent-father’s rehabilitation. The court also noted that no further injuries to 

AW had occurred since her removal.

The trial court did not clearly err by finding that termination of respondent-father’s parental 

rights served AW’s best interests. The record indicates that neither respondent took responsibility

for AW’s injuries. The record also establishes that despite being aware that AW had incurred 

injuries, neither respondent did anything to prevent further injuries to AW over the course of 

several weeks. The trial court did not err by finding that AW’s future safety if returned to 

respondents could not be assured. Further, although testimony indicated some inaccuracy of the 

predictions in respondent-father’s psychological evaluation report, respondent-father’s own 

testimony demonstrated his volatility and emotional instability. Respondent-father did not refute 

any of the statements attributed to him during the examination that raised serious concerns about 

his mental health, and he specifically admitted that he told the report author that if he lost his 

daughter he would become a “loose cannon” and there would be nothing to stop him. Respondentfather admitted that he would even break the law. The trial court’s decision is also supported by 

testimony that AW was thriving in foster care, and that her foster parents, respondent-mother’s 

sister and her husband, were providing for the child’s needs and were willing to consider adoption, 

even though they were not 100% committed to adoption at the time. Root also testified that the 

child showed a very high degree of love and affection to both foster parents, and that AW looked 

to them for comfort and interaction. Moreover, after removal, the child, who had regular wellchild examinations, had not suffered any further injury in her new home. A preponderance of the

evidence, therefore, supported the trial court’s finding that termination of respondent-father’s 

parental rights served AW’s best interests.

III. RESPONDENT-MOTHER’S APPEAL (DOCKET NO. 358180)

A. STATUTORY GROUNDS FOR TERMINATION

In Docket No. 358180, respondent-mother similarly challenges the trial court’s findings of 

statutory grounds for termination under MCL 7l2A.19b(3)(b)(i) and (b)(ii) claiming that no

evidence established which respondent caused AW’s injuries or which respondent failed to protect 

her. For the same reasons discussed in § II(A), we reject these arguments and hold that the trial 

court did not clearly err when it found that clear and convincing evidence established statutory 

grounds under MCL 712A.19b(3)(b)(i) or (b)(ii) for terminating respondent-mother’s parental 

rights to AW. We also conclude, for reasons similar to those explained in § II(C) that a 

preponderance of the evidence established that termination of respondent-mother’s parental rights 

to AW served AW’s best interests. The record indicates that the trial court properly considered 

and weighed the applicable best-interest factors. The trial court did not err in this regard.

Respecting KB, petitioner relied on the doctrine of anticipatory neglect or abuse. The 

doctrine of anticipatory neglect or abuse recognizes that “ ‘[h]ow 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) quoting In re LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973).
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Respondent-mother relies on In re LaFrance, 306 Mich App 713; 858 NW2d 143 (2014), 

in support of her contention that the trial court erred by applying the doctrine of anticipatory 

neglect or abuse in this case respecting her parental rights to KB. In In re LaFrance, DHHS 

petitioned for removal of the respondents’ four children because of the urgent medical condition 

and needs of the youngest child. The child, only several weeks old, had sustained severe 

dehydration caused by a virus, suffered from cerebral palsy, and also showed signs of chronic 

subdural hematomas not caused by external trauma. Id. at 715-716, 731. This Court held that the 

trial court erred by relying on the doctrine of anticipatory neglect to find that grounds existed to 

terminate the respondents’ parental rights to the three older children. Id. at 715-717, 730. The 

older children, who ranged in ages from 5 to 12 years, “did not share their infant sister’s medical 

vulnerabilities or inability to articulate personal needs or discomforts.” Id. at 731. This Court 

noted that the petitioner had not provided evidence that the respondents’ substance-abuse issues 

affected their ability to parent the older children. Id. at 732. This Court explained that “the trial 

court nowhere suggested, and no evidence was offered to prove, that either respondent had ever 

abused or neglected any of their three older children.” Id. at 730. This Court added:

Moreover, respondents had cared for those children from birth without incident, 

including any allegation, let alone proof, that they had abused or neglected the three 

older children at any time. While anticipatory neglect can militate in favor of 

termination, under the unusual circumstances of this case, the doctrine has little 

bearing. [Id.]

This Court held that the trial court erred by invoking the anticipatory neglect doctrine as ground 

for termination of respondents’ parental rights to the older children. Id. at 732.

The instant case presents similar facts. KB is approximately 10 years older than AW and 

is healthy and a normally developed child. The record indicates that KB had not lived with 

respondent-mother for several years. Because of housing issues when respondent-mother moved 

from Flint to Roscommon County, KB resided with respondent-mother’s sister but visited 

respondent-mother. KB later went to live with her father. Root testified that petitioner had concern 

that KB could be injured if returned to respondents’ care because of the injuries that AW had 

sustained and because KB was too young to protect herself. However, neither Root nor any other 

witness testified that respondent-mother had ever harmed or neglected KB. Indeed, the trial court 

did not specifically discuss any allegations or evidence respecting KB.

The trial court applied MCL 712A.19b(3)(b) respecting KB, because a sibling had suffered 

physical injury. MCL 712A.19b(3)(b) authorizes termination of parental rights to a child, if the 

child or a sibling of the child has suffered physical injury or physical abuse or sexual abuse under 

any of the following conditions:

(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 
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likelihood that the child will suffer injury or abuse in the foreseeable future if placed 

in the parent’s home.

(iii) A nonparent adult’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 by the nonparent adult in the foreseeable future if placed 

in the parent’s home.

In this case, although petitioner established by clear and convincing evidence that statutory 

grounds existed for termination of respondents’ parental rights to AW, and by extension partially 

satisfied the grounds for termination of respondent-mother’s parental rights to KB, the record 

establishes that petitioner failed to present clear and convincing evidence that there is a reasonable 

likelihood that KB will suffer from injury or abuse in the foreseeable future if placed in the parent’s 

home. As in In re LaFrance, the trial court erred by concluding that grounds existed for

termination of respondent-mother’s parental rights to KB. This Court observed in In re LaFrance, 

that “[t]ermination of parental rights requires ‘both a failure and an inability to provide proper care 

and custody,’ which in turn requires more than ‘speculative opinions . . . regarding what might

happen in the future.’ ” In re LaFrance, 306 Mich App at 732, quoting In re Hulbert, 186 Mich

App 600, 605; 465 NW2d 36 (1990). Respecting KB, no allegations or evidence suggested or 

established that respondent-mother had ever abused or neglected KB or that a high likelihood 

existed that KB would be injured in the future if placed in respondent-mother’s home. Concerns 

over AW did not militate in favor of terminating respondent-mother’s parental rights to KB.

In sum, although the trial court did not err by finding that clear and convincing evidence 

established grounds for terminating respondent-mother’s parental rights to AW, the trial court 

erred by terminating her parental rights to KB.

3

 Accordingly, we reverse the trial court’s order 

terminating respondent-mother’s parental rights to KB.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Respondent-mother argues that her trial counsel provided ineffective assistance by failing 

to properly investigate and obtain a more favorable expert witness. We reject this argument for 

the same reasons discussed earlier in the context of respondent-father’s appeal.

Respondent-mother also argues that her counsel provided ineffective assistance by

stipulating to the introduction of her psychological evaluation report. We disagree.

Preliminarily, respondent-mother has not presented any affidavit or other offer of proof to 

support a finding that the psychological examiner’s in-person testimony or cross-examination 

would have been favorable or had a reasonable likelihood of affecting the outcome. In any event, 

it is apparent from the record that trial counsel made a strategic decision not to call the examiner 

 

3 Respondent-mother also argues that the trial court erred when it found that termination of her 

parental rights served KB’s best interests. Given our conclusion that clear and convincing 

evidence did not establish a statutory ground for termination of respondent-mother’s rights to KB, 

we need not consider whether termination of her parental rights served KB’s best interests.
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as a witness. Accordingly, respondent-mother has not overcome the presumption of sound 

strategy. When discussing respondent-mother’s psychological report, Root affirmed that the 

psychological evaluation report suggested that concerns existed that respondent-mother would not 

follow through with petitioner’s recommendations or requirements. However, Root conceded that 

such had not occurred and that respondent-mother had done everything asked of her. Counsel 

established through cross-examination of other witnesses that some of the concerns or predictions 

identified in respondent-mother’s psychological evaluation lacked accuracy or had not 

materialized. Accordingly, it was not objectively unreasonable for respondent-mother’s trial 

counsel to not call the report’s author as a witness.

Respondent-mother also complains that her counsel did not prepare or develop “proofs 

more favorable,” but she presents no offer of proof to support her contention. Thus, she has failed 

to establish the factual predicate for her claim of ineffective assistance of counsel. Cooper, 309 

Mich App at 80.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with 

this opinion. We do not retain jurisdiction.

/s/ Michael F. Gadola 

/s/ Deborah A. Servitto 

/s/ James Robert Redford