-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re THOMPSON, Minors. September 10, 2015

No. 324060 Genesee Circuit Court Family Division LC No. 14-130960-NA

Before: T ALBOT , C.J., and W ILDER and F ORT H OOD , JJ.

P ER C URIAM

. Respondent appeals as of right from the trial court order term inating her parental rights to two of her minor children, ET and AT, pursuant to MCL 712A.19b( 3)(b)( i ), (b)( ii ), (g), (j), (k)( iii ), and (k)( v ). We affirm.

I. FACTS

Respondent is the mother of four children. Two of these child ren died as infants while in respondent’s care. ET is responde nt’s oldest child. Her secon d child, JT, died 18 days after his birth in 2006. JT died while sleeping in the same bed as respo ndent. The Department of Health and Human Services (DHHS) investigated the matter, which was su bstantiated for physical neglect. AT is respondent’s third child. At six months of age , AT weighed only 11 pounds. DHHS again investigated responden t and found that AT was medica lly neglected. In the fall of 2008, respondent was provided with a variety of services and re ferrals aimed at correcting her parenting deficiencies.

Respondent’s fourth child, IT, was born in the fall of 2013. Approximately three weeks after his birth, respondent returned to her apartment with IT n ear midnight. IT was in a car seat. Because the apartment was cold, respondent turned the heat up t o 90 degrees. She took off IT’s coat, but left him in the car seat and placed a blanket on him. Respondent fell asleep and did not awake until the following morning. By this time, IT had died o f dehydration. The coroner ruled the death accidental, but found tha t it was the result of gross negligence.

After IT’s death, a safety plan was put in place. AT and ET b egan living with their father, and respondent was not allowed to see the children with out his supervision. However, on February 4, 2014, DHHS learned that respondent had poured undil uted bleach on ET’s shoulder-2- blade in a misguided attempt to treat a ringworm infection. 1 Because respondent reported that she suspected both children had ri ngworm, DHHS instructed respo ndent to take the children to the hospital. Respondent complie d, and both children received medication. DHHS filed a petition seeking termination of respondent’s parental rights to AT and ET shortly thereafter. After an evidentiary hearing, th e trial court terminated respon dent’s parental rights to AT and ET.

II. DISCUSSION 2

A. STATUTORY GROUNDS

Respondent first argues that the trial court erred when it fou nd statutory grounds existed to terminate her parental right s to ET and AT. We disagree.

“To terminate parental rights, a trial court must find by clea r and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has be en established.” 3 “We review for clear error a trial court’s factual findings as well as its ultimate determination that a statutory ground for termination of parental rights has been proved by cl ear and convincing evidence.” 4 “A finding is clearly erroneous if although there is evidence t o support it, the reviewing court on the entire evidence is left w ith the definite and firm convicti on that a mistake has been made.” 5

Termination of respondent’s paren tal rights was appropriate pu rsuant to MCL 712A.19b(3)(b)( i ). 6 Termination is appropriate under this subsection if “[t]he ch ild or a sibling of the child has suffered physical injury or physical or sexual abuse [and] . . . [t]he 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

1 The children’s father was not present at the time, having left the children in the care of his girlfriend.

2 Respondent has asked this Court to remand this matter to the t rial court for clarification because the trial court did not address each subsection of MCL 712A.19b (3) individually. We do not find a remand necessary. The trial court stated its findings of fac t and conclusions of law and included the statutory bases for its order. We are satisfied t hat the trial court was aware of the relevant issues and correctly applied the law. We need no furt her information to facilitate our review. See MCR 3.977(H)(3); Triple E Produce Corp v Mastronardi Produce, Ltd , 209 Mich App 165, 176; 530 NW2d 772 (1995).

3 In re Moss , 301 Mich App 76, 80; 836 NW2d 182 (2013).

4 In re Mason , 486 Mich 142, 152; 782 NW2d 747 (2010). See also MCR 3.977(K ).

5 Id . (quotation marks, brackets, and citation omitted).

6 Although the petition cited MCL 712A.19b(3)(b)( ii ), the trial court did not specifically refer to this subsection. Thus, we presum e that the trial court did not rely on subsection (3)(b)( ii ) when it reached its determination in this matter.-3- placed in the parent’s home.” 7 There is no doubt that siblings of ET and AT suffered physica l injuries. Two of their siblings died while in respondent’s car e. While it is unclear exactly what caused JT’s death, IT’s death was clearly caused by respondent having overheated her apartment and then falling asleep. Further, ET was chemically burned by respondent when she poured undiluted bleach on his shoulder. IT’s death and ET’s chemical burn also occurred in the recent past and after DHHS had interve ned and provided respondent with resources. Under the circumstances, the trial court did not clearly err when it foun d that there was a reasonable likelihood of injury to ET and AT if returned to respondent’s c are.
Respondent argues that the deaths of her children and the blea ch incident with ET should not be considered under this s ubsection because her conduct was merely negligent, and that she did not intend to cause harm. Respondent relies on In re LaFrance
, 8 in which this Court found that the types of physical injur ies contemplated by MCL 712A.19 b(3)(b) must be “caused by a parent’s act . . . and not merely contributed to by an unintent ional omission.” 9 However, unlike the respondent father in LaFrance , respondent here did not simply fail to respond to an accidental injury or naturally occurring medical condition. Un controverted evide nce established that respondent caused IT’s death by turning the heat up to 90 degrees and leaving him in a car seat for 11 hours. The evidence also established that she caus ed ET’s chemical burn, not by failing to respond to his ringworm, but by actively pouring ble ach on him based on advice she obtained from the internet. LaFrance does not support respo ndent’s position.

Because “[o]nly one statutory ground need be established by cl ear and convincing evidence to terminate a res pondent’s parental rights,” 10 this Court need not consider the remaining statutory grounds cited by the trial court. However, we agree with the trial court’s conclusions regarding the remaining statutory grounds. While t he evidence tends to show that respondent did not intend to injure or kill her children, the f act remains that her conduct caused the harm that occurred. The circumstances of this case clearly and convincingly demonstrated that respondent, “without regard to intent, fail[ed] to provide proper care or custody” of ET and AT “and there is no reasonable expectation that [respondent] wi ll be able to provide proper care and custody within a reasonable time considering [ET and AT]’s age.” 11 The evidence also clearly demonstrated that “[t] here is a reasonable likelihood, based on the conduct or capacity of the child[ren]’s parent, that the child[ren] will be harmed if . . . returned to the home of the

7 MCL 712A.19b(3)(b)( i ).

8 In re LaFrance , 306 Mich App 713; 858 NW2d 143 (2014).

9 Id . at 725 (quotation marks omitted).

10 In re Ellis , 294 Mich App 30, 32; 817 NW2d 111 (2011).

11 MCL 712A.19b(3)(g).-4- parent.” 12 The evidence also established that respondent “abused the chi ld or a sibling of the child and the abuse included” both “severe physical abuse” and “life threatening injury.” 13

B. BEST INTERESTS DETERMINATION

Respondent next argues that the t rial court erred when it foun d termination of her parental rights was in the best interes ts of her childre n. We disagree.

Once a statutory ground has been proven, the trial court must find that termination is in the child’s best interests before it can terminate parental rig hts. 14 This Court reviews a trial court’s decision regarding whethe r termination of parental righ ts is in a child’s best interests for clear error. 15 Whether termination is in the children’s best interests must be proven by a preponderance of the evidence. 16 In considering whether termination of parental rights is in t he best interests of the child, “t he court should weigh all the ev idence available to determine the children’s best interests.” 17 These factors include the existence of a bond between the chi ld and the parent, the parent’s ability to parent, the child’s need fo r permanency and stability, the advantages of a foster home over the parent’s home, the parent’ s compliance with his or her service plan, the parent’s visitation history with the child, t he child’s well-being, and the possibility of adoption. 18

Respondent argues that the trial court clearly erred by not ex plicitly addressing why termination was necessary in light of the fact that the childre n were placed with their father. Placement of a child with a relative “ ‘weighs against terminat ion under MCL 712A.19a(6)(a),’ ” and must be considered as part of the best interest determinati on. 19 However, the term “relative” as used in MCL 712A.19a does not include the child’s other pare nt. 20 Therefore, the trial court

12 MCL 712A.19b(3)(j).

13 MCL 712A.19b(3)(k)( iii ) and ( v ).

14 MCL 712A.19b(5). See also Moss , 301 Mich App at 86.

15 In re Trejo , 462 Mich 341, 356-357; 612 NW2d 407 (2000).

16 Moss , 301 Mich App at 90.

17 In re White , 303 Mich App 701, 713; 846 NW2d 61 (2014).

18 Id . at 713-714.

19 In re Olive/Metts , 297 Mich App 35, 43; 823 NW2d 144 (2012), quoting Mason , 486 Mich at 164.

20 The term “relative” is statutorily defined, and includes only those related to the child “as grandparent, great-grandparent, great-great-grandparent, aunt o r uncle, great-aunt or great-uncle, great-great-aunt or great-great- uncle, sibling, stepsibling, ne phew or niece, first cousin or first cousin once removed, and the spouse of any of the above, even a fter the marriage has ended by death or divorce.” MCL 712A.13a(1)(j).-5- in this case did not need to explicitly consider the children’s placement with their father in determining their best interests.

Nor did the trial court err in finding that termination was in the children’s best interests. Two infants had died in respondent’s care, AT had been medicall y neglected and failed to thrive, and ET received second-degree burns when respondent poured undi luted bleach on his skin. ET stopped acting out and improved in his school work when he move d from respondent’s home to that of his father. Although there was evidence that the child ren shared a bond with respondent, the testimony of case workers was that the children were happy living with their father and did not want to return to respondent’s home. There was testimony t hat the children would be harmed if they were cut off from respondent entirely, but their father made it clear that he would ensure that his children had a relationship with respondent. T he trial court did not clearly err in holding that termination was in the best interests of each chil d.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Finally, respondent argues that she received ineffective assis tance of counsel because her court-appointed attorney faile d to file a jury demand. As this Court has explained:

The juvenile court is required to appoint an attorney for the c hild in child protective proceedings. Although the constitutional provisions explicitly guaranteeing the right to counsel apply only in criminal procee dings, the right to due process also indirectly gua rantees assistance of counsel in child protective proceedings. Thus, the principles of effective assistance of c ounsel developed in the context of criminal law apply by analogy in child protectiv e proceedings.

To prevail on this claim of ineffective assistance of counsel, [respondent] must show that her trial counsel’s performance was deficient, i .e., she must “show that counsel’s performance fell below an objective standard of reasonableness, and that the representation so p rejudiced” her that it denied h er a fair trial. This necessarily entails proving prejudice to [respondent], which me ans that there is “a reasonable probability that, but for counsel’s unprofessional e rrors, the result would have been different.” [21]

Respondent fails to show that her counsel’s performance fell b elow an objective standard of reasonableness, much less that she was prejudiced as a resul t. In child protective proceedings, a respondent is only entitled to a jury during the adjudicative phase. 22 In this case, the record shows that respondent decided to forego the adjudicative phase by willingly submitting to the court’s jurisdiction. Because respondent submitted to the cour t’s jurisdiction, there was no need for counsel to request a jury. Nor has respondent demonstrated a reasonable probability of a

21 In re CR , 250 Mich App 185, 197-198; 646 NW2d 506 (2001), overruled on other grounds In re Sanders , 495 Mich 394 (2014).

22 Sanders , 495 Mich at 406. See also MCR 3.911(A).-6- different result had such a request been made. Under the circu mstances presented, the trial court clearly had jurisdiction over the children. 23 Respondent has not demonstr ated that she received ineffective assistance of counsel.

Affirmed.

/s/ Michael J. Talbot /s/ Kurtis T. Wilder /s/ Karen M. Fort Hood

23 See MCL 712A.2(b)(1) and (2). Re spondent argues only that a G enesee County jury may have refused to find jurisdiction out of sympathy. This sugges tion is no more than speculation. Moreover, the argument is based entirely on facts not apparent in the record. Because respondent failed to preserve her claim of ineffective assistan ce of counsel, our review is limited to the existing record. People v Johnson , 293 Mich App 79, 90; 808 NW2d 815 (2011).