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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re HINES/NEAL, Minors. August 16, 2016

No. 326780
Macomb Circuit Court Family Division LC Nos. 2014-000137-NA; 2014-000138-NA;
2014-000139-NA

AFTER REMAND

Before: J ANSEN , P.J., and C AVANAGH and G LEICHER , JJ.

P ER C URIAM

.

This case returns to us after remand to the trial court in ord er for the court to make findings of fact and conclusions o f law regarding the statutory grounds for termination of respondent-appellant’s parental r ights to the mi nor children, B EH, RJN, and ODN. See In re
Hines/Neal , unpublished order of the Court of Appeals, entered December 1 5, 2015 (Docket No. 326780). We concluded that the trial court failed to make inde pendent findings on the statutory grounds for termination. Id . We directed the trial court to determine on remand “whether, on the basis of clear and convincing legally admissible evidence, the facts alleged in the petition are true and establish a statutory basis for termination.” Id . The trial court conducted an updated hearing and again terminated res pondent’s parental rights under MCL 712A.19b(3)(b) (child
suffered abuse and there is a reasonable likelihood that child will be abused in the future), 1 (c)( i ) (conditions of adjudication continue to exist), (g) (failure to provide proper care or custody), (j) (reasonable likelihood that child will be h armed if returned to parent), and (k)( iii ) (parent abused child or a sibling and abuse inc luded battery, torture, or othe r severe physical abus e). We affirm.

1 We note that the trial court did not specify whether terminati on occurred under MCL 712A.19b(3)(b)( i ), ( ii ), or ( iii ). However, petitioner sought termination under MCL 712A.19b(3)(b)( i ).-2- I. EVIDENTIARY CHALLENGES

This case arises from an initial petition to terminate respond ent’s parental rights following the discovery of injuries to RJN during a wellness ch eck. 2 Respondent contends that the trial court abused its discretion in admitting inadmissible evidence and relying on the opinions of witnesses who did not testify as experts during the termination hearing. We disagree.

The trial court’s decision to admit or exclude evidence is gen erally reviewed for an abuse of discretion, which occurs when the trial court chooses an out come falling outside the range of principled outcomes. In re Brown/Kindle/Muhammad , 305 Mich App 623, 629; 853 NW2d 459 (2014). However, any preliminary questions of law are reviewed de novo. Id . at 629-630. “This Court reviews for an abuse of discretion a trial court’s qualif ication of an expert witness and its ultimate ruling regarding whether to admit expert testimony.” People v Wood , 307 Mich App 485, 507; 862 NW2d 7 (2014), vacated in pa rt on other grounds 4 98 Mich 914 (2015).

As noted in our previous opinion, in general, the rules of evi dence apply to the adjudicative phase of a child protective proceeding, but not du ring the dispositional phase of the child protective proceeding. MCR 3.972(C)(1); MCR 3.973(E)(1). However, the application of the rules of evidence differs when termination is requested at the initial dispositional hearing. MCR 3.977(E). MCR 3.977(E) provides:

The court shall order terminati on of the parental rights of a respondent at the initial dispositional hear ing held pursuant to MCR 3.973, a nd shall order that additional efforts for reunification of the child with the resp ondent shall not be made, if

(1) the original, or amended, peti tion contains a request for termination;

(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds f or assumption of jurisdiction over th e child under MCL 712A.2(b) have been estab lished;

(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is int roduced at the dispositional he aring, that one or more facts alleged in the petition:

(a) are true, and

(b) establish grounds for termina tion of parental rights under MCL 712A.19b(3)(a), (b), (d), (e), (f) , (g), (h), (i), (j), (k), (l ), (m), or (n);

2 For a summary of the relevant facts in this case, see In re Hines/Neal , unpublished opinion per curiam of the Court of Appeals, issued December 15, 2015 (Docke t No. 326780).-3- (4) termination of parental ri ghts is in the child’s best inte rests. [Emphasis added.]

Thus, the statutory grounds for termination must be established by clear and convincing, legally
admissible evidence in this case because termination occurred at the initial disposition hearing. See MCR 3.977(E).

Respondent contends that the trial court improperly considered hearsay testimony when rendering its decision. Hearsay is defined as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). A statement is “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an asse rtion.” MRE 801(a). Hearsay is inadmissible except as provided by the rules of evidence. MRE 802. “If . . . the proponent of the evidence offers the statement for a purpose other than to prove the truth of the matter asserted, then the statement, by definition, is not hearsay.” People v Musser , 494 Mich 337, 350; 835 NW2d 319 (2013). A statement offered to show why an individual took certain action is not hearsay. See People v Chambers , 277 Mich App 1, 11; 742 NW2d 610 (2007). Records kept in the ordinary course of business are admissible as an exception to hearsay. MRE 803(6). A laboratory report prepared by a nontestifying analyst is hearsa y. People v Payne , 285 Mich App 181, 196; 774 NW2d 714 (2009). However, a record related to tr eatment is generally admissible if it is a record of regular ly conducted activity. See MRE 803 (6).

Respondent further contends that the trial court impermissibly considered the testimony of certain physician witnesses b ecause the witnesses were requi red to be qualified as experts in order for the court to consider their testimony. The rules of evidence govern admission of lay witness and expert testimony. Limited opinion testimony from a lay witness is permitted by MRE 701, which provides:

If the witness is not testifying as an expert, the witness’ te stimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) h elpful to a clear understanding of the witness’ tes timony or the determination of a fact in issue.

“Any witness is qualified to test ify as to his or her physical observations and opinions formed as
a result of them.” Lamson v Martin (After Remand) , 216 Mich App 452, 459; 549 NW2d 878 (1996). A lay witness may testif y regarding opinions and infer ences that are rationally based on the perception of the witness and are helpful to understand the witness’s testimony or the
determination of a fact in issue. People v McLaughlin , 258 Mich App 635, 657; 672 NW2d 860 (2003).

MRE 702, which governs the admissibility of expert testimony, provides:

If the court determines that sc ientific, technical, or other s pecialized knowledge will assist the trier of fact to understand the evide nce or to determine a fact in issue, a witness qualified as an expert by knowledge, s kill, experience, training, or education may testify thereto in the form of an op inion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the-4- product of reliable principles and methods, and (3) the witness has applied the principles and methods reliabl y to the facts of the case.

In Surman v Surman , 277 Mich App 287, 308; 745 NW2d 802 (2007), this Court deline ated the following requirements for expert testimony:

The admission of expert testimony requires that (1) the witnes s be an expert, (2) there are facts in evidence that require or are sub ject to examination and analysis by a competent expert, and (3) the knowledge is in a particular area that belongs more to an expert than to the common man. The party presenting the expert bears the burden of persu ading the trial court that the expert has the necessary qualifications and speci alized knowledge that will ai d the fact-finder in understanding the evidence or det ermining a fact in issue. A w itness may be qualified as an expert by knowledge, skill, experience, trainin g, or education.

An expert may testify in the form of an opinion provided that the underlying facts and data are admitted in evidence, but may not testify regarding an other expert’s diagnosis. MRE 703; People v Fackelman , 489 Mich 515, 534-535; 802 NW2d 552 (2011). Consequently, th e proper and limited purpose of a med ical report prepared by one doctor, but relied upon by another doctor, is for consideration of the facts and data upon which the testifying expert based his opinion. Id . at 535.

Caselaw indicates that failure to properly certify an expert o r to obtain expert testimony
does not warrant reversal. In People v Dobek , 274 Mich App 58, 62; 732 NW2d 546 (2007), the victim alleged that she was molested by the defendant, her step father, when she was 12 years old, but the trial did not occur until she was 22 years old. O n appeal, the defendant argued that the prosecutor improperly elicited testimony regarding delayed disclosure from a detective, as a lay witness, when expert testimony was required. Id . at 76. This Court concluded that even assuming that expert testimony wa s required, the police detecti ve was qualified to provide an expert opinion on the subject matter in light of his testimony regarding his extensive knowledge, experience, training, and educat ion regarding the sexual abuse of children. Id . at 79. The
detective delineated the hundreds of investigations he particip ated in with child victims and the training he received regarding delayed disclosure. Id . Thus, through his training, background, and experience in interviewing vi ctims, he became knowledgeable regarding delayed disclosure.
Id

.

A. HEARSAY CHALLENGES

Respondent contends that certain testimony contained inadmissi ble hearsay statements. Respondent challenges Dr. Christopher Lee’s testimony on the ba sis that Dr. Lee was not qualified as an expert and imprope rly relied on the reports of other doctors. Dr. Lee, the orthopedic surgeon who evaluated RJN, testified that RJN’s injuries were the result of child abuse. Dr. Lee refreshed his memory during his testimony with the use of his three-page report. Dr. Lee did not testify regarding the contents of his report, b ut instead merely used the report to refresh his memory regarding the location of RJN’s fractures. Accordingly, Dr. Lee’s testimony did not contain hearsay statements since there was no statement other than the one made by the declarant while testifying at the hearing. See MRE 801(c).-5- Furthermore, as noted by the trial court, Dr. Lee’s testimony encompassed the information in his medical records. The review of the report a llowed Dr. Lee to testify that RJN suffered from several different fractures in various stages of healing. In light of his training and experience, he opined t hat the fractures wer e of different ages , ranging from a c ouple of weeks in age to a couple of months. Dr. Lee noted that he examined his own x-rays to determine the fractures sustained by RJN. Dr. Lee’s x-rays did not constitut e hearsay because they did not constitute “statements.” See MRE 801(c). Dr. Lee also noted that he had treated other children with genetic disorders, but concluded that RJN’s injuries were not attributable to a genetic
disorder because the child did n ot have a bone structure that p redisposed him to fractures. Dr. Lee also stated that RJN also had a black eye when treated. Al though Dr. Lee was shown Exhibits 5 through 7, which were reports of other physicians, t he reports were used to refresh Dr. Lee’s testimony with regard to the location of RJN’s fractures. Like with his own report, Dr. Lee did not testify regarding the contents of the reports in Exhibi ts 5 through 7. Accordingly, his testimony did not include improper hearsay statements since the re were no statements other than those made by the declarant whil e testifying at the hearing. S ee id

.
With regard to medical geneticist Dr. Vinod Misra, respondent contends that Dr. Misra relied on hearsay when he stated that he relied on all of the o ther information in coming to his opinion that RJN’s injuries were caused by abuse and not by a d isease. However, Dr. Misra’s testimony did not contain hearsay because Dr. Misra merely allu ded to the fact that he
considered other records in com ing to a conclusion on the issue . Like Dr. Lee, Dr. Misra refreshed his memory with the use of his reports, but did not r elay the contents of his reports on the record. Accordingly, Dr. Misra’s testimony did not containimproper hearsay statements. See MRE 801(c).

Respondent also challenged pediatrician Dr. Anton Osk’s testim ony as impermissible hearsay. However, Dr. Osk’s testimony was not offered for the truth of the matter asserted. Rather, he saw RJN and ODN for a wellness visit and, during the course of the visit, noted that RJN had a lump on his leg. Therefore, he ordered an x-ray to d etermine the cause of the lump and ensure that a tumor was not p resent. When he did not recei ve a response regarding the status of the x-rays from respondent, he called Child Protective Servi ces (CPS). To the extent that his testimony involved conversations w ith others, the testimony was not offered for its truth, but to explain the course of ac tion he took and why. See MRE 801(c).

Respondent also contends that pediatrician Dr. Marcus DeGraw r elied on hearsay
evidence because he stated that he reviewed the medical records , impressions and plans, vital signs, laboratory reports, and x-rays before making his final i mpression of RJN’s injuries. He also testified that he spoke withother physicians. However, D r. DeGraw did not state what the reports said or what the other doctors told him. See MRE 801(c ). Dr. DeGraw specifically reported that he learned from respondent and from the record th at respondent took RJN for a wellness check and that the pediatrician ordered an x-ray of RJ N’s thigh during the wellness check. He also explained that the x-ray showed at least two fr actures. However, Dr. DeGraw’s testimony did not constitute inadmissible hearsay because the s tatements did not go to the truth of the matter asserted, but inst ead explained how Dr. DeGraw ca me to his conclusions regarding the source of RJN’s injuries. To the extent that Dr. DeGraw’s description of the x-rays as showing fractures went to the t ruth of the matter asserted, the x-rays did not constitute statements-6- under MRE 801(c). Accordingly, Dr. DeGraw’s testimony did not contain impermissible hearsay statements. See id

.
Respondent also contended that CPS worker Amy Dumas’s testimony incorporated impermissible hearsay because Dumas testified that she relied o n RJN’s first medical evaluation,
an out of court statement instru cting respondent to obtain an x -ray, and conversations with hospital staff. Respondent contends that Dumas reviewed severa l documents and spoke with several people before filing th e petition, and admitted that he r opinions were based on the documentation. However, Dumas testified that she received a CP S complaint regarding RJN. Because of the complaint, she made contact with respondent. Th us, the receipt of the complaint
was not offered for the truth of the matter asserted, but rathe r, to explain why Dumas made contact with respondent. In addition, Dumas’s testimony regard ing her discussion with other people and her review of records and documentation did not cons titute hearsay since the testimony was not used to prove the truth of the matter asserte d, but instead, to explain why Dumas came to the conclusions that she did and why she took the action she took. See MRE 801(c).

With regard to Warren Police Officer Charles Younkin, responde nt argues that Officer Younkin’s testimony contained impermissible hearsay since he di scussed conversations he had with Dr. DeGraw, who reported the injuries he observed on RJN. Officer Younkin also testified regarding conversations he had with other persons not parties t o this case. However, the trial court’s opinion and order shows that the court only considered Officer Younkin’s testimony regarding the statements that respondent made to him, as well a s the statements made by O. Neal and O. Neal’s relatives regarding the explanations for RJN’s in juries. To the extent that Officer Younkin relied on statements made by respondent, the statements were not hearsay. MRE 801(d)(2) (explaining that a party ’s own statement offered agai nst the party is not hearsay). O. Neal reported that RJN’s injuries were likely caused when he fe ll over in his car seat or by respondent’s autistic child, whil e O. Neal’s relatives had no e xplanation for the injuries. However, it is clear that Officer Younkin’s testimony regarding the explanations for RJN’s injuries were not admitted for the truth of the matter asserted , but rather, explained why Officer Younkin took the action of reporti ng the case to the prosecutor . See MRE 801(c).

Respondent further contends that the trial court improperly co nsidered foster-care worker Karlesha Simmons’s testimony regard ing conversations she had wi th Reginald Hines (R. Hines), Brenda Harris, and Nicole Hunt, as well as her reliance on an E arly On Assessment of BEH and
her discussion of BEH with BEH’s physician. However, Simmon’s testimony with regard to her conversations with R. Hines, Harris, and Hunt involved whether the three were potential relative placements for the children. The testimony did not relate to the statutory grounds for termination. See MCR 3.977. Furthermore, the trial court did not discuss the conversations when discussing Simmons’s testimony in it opinion and order on the statutory grounds for termination, and it is therefore clear that the trial court did not consider the testimony when rendering its decision. With regard to the Early On Assessment , Simmons used the assessment to refresh her memory, and she did not discuss the contents of the report. Finally, with regard to her discussion with BEH’s prima ry care physician, Simmons testi fied that BEH’s primary care physician referred BEH for an autism assessment. She did not r elate the statements made by BEH’s primary care physician. Accordingly, Simmons’s testimonydid not contain inadmissible hearsay statements. See MRE 801( c). Furthermore, the trial co urt did not rely on any statements-7- that BEH’s primary care physician made to Simmons in its opinio n and order discussing the statutory grounds for termination. For the reasons discussed above, respondent is not entitled to
a new trial on the basis of a dmission of hearsay statements.

B. REFRESHING RECOLLECTION

Respondent also contends that the trial court improperly permi tted petitioner to refresh
the recollections of certain witn esses with documents that were not properly authenticated. In order for a witness to refresh his recollection with a writing, there must be a proper foundation.
Genna v Jackson , 286 Mich App 413, 423; 781 NW2d 124 (2009). “To lay a proper foundation, the proponent must show that (1) the witness’s present memory i s inadequate, (2) the writing
could refresh the witn ess’s present memory, and (3) reference t o the writing actua lly does refresh the witness’s present memory.” Id . The record in this case demonstrates that petitioner laid a proper foundation with regard to each exhibit used to refresh the memory of a witness. However, respondent contends that the materials used to refreshthe memories of the witnesses were not properly authenticated. “Where memory or recollection is being refreshed, the material used for that purpose is not subs tantive evidence. Rather, the material is employed to simply trigger the witnesses’ recollection of the events. That recoll ection is substantive evidence and
the material used to refresh is not.” People v Favors , 121 Mich App 98, 109; 328 NW2d 585 (1982). MRE 901 clarifies that a uthentication or identificatio n is a condition precedent to admissibility of evidence. See MRE 901. Respo ndent’s argument that petition er was required to authenticate the documents used to refresh the memory of the wi tnesses is without merit since
the exhibits were used to refresh the recollection of the witne sses, and were not admitted as
substantive evidence. 3

C. EXPERT WITNESSES

Respondent also contends that the court improperly considered the opinions of most of the doctors who testified during the hearing because the doctor s did not testify as expert witnesses. Dr. DeGraw testified as an expert witness at the he aring. However, Dr. Lee, Dr. Osk, and Dr. Misra did not testify as expert witnesses at the hearin g. Although petitioner did not
move to have the doctors testif y as experts, the court qualifie d the doctors as experts in its opinion and order. The court explained that the substance of the doctors’ testimony revealed the fact that their testimony consti tuted expert witness testimony, and the court pointed out that there was no tenable argument that the doctors were not qualified to testify as experts. The court
stated that it would consider the testimony of the doctors only to the extent that their opinions
were based on admissible evidence.

3 The trial court stated that Exhibits 5 through 7 were not prop erly admitted, and the court stated that it did not consider Exhibits 8 through 10 as well. The co urt concluded that Exhibits 4 was admissible because Dr. Lee authenticated his medical records, and the records were admissible under the hearsay exception in MRE 803(6). However, the court also explained that Dr. Lee’s testimony covered all of the information in his medical records , and it is therefore unnecessary to
determine whether the trial cour t properly determined that Exhi bit 4 was admissible.-8- While Dr. Osk was not called as an expert witness, it is clear from the record that his role
was that of a fact witness. He was called to describe RJN’s co ndition, his need to obtain an x-ray to diagnose the condition, and th e failure to obtain respondent ’s cooperation, result ing in a call to CPS. Accordingly, there was no need to certify him as an exper t. Dr. Misra was also not qualified as an expert. Howeve r, respondent does not take issu e with his training and experience, his qualifications, and his conc lusions regarding how to diagno se osteogenesis imperfecta. Dr. Lee did not testify as an expert witness, but he outlined his e ducation and 40 years of training and experience in orthopedic pe diatrics during his testimony. Accordingly, we conclude that the trial court did not err in considering the expert opinion testi mony of Dr. Misra and Dr. Lee because petitioner laid a proper foundation for each physician’ s education, professional experience, and expertise.

Regardless, even assuming that the court erred in determining that the doctors were qualified as experts and in consid ering the testimony of the do ctors, the error was harmless because the testimony of Dr. DeGraw, who was qualified as an ex pert medical doctor with a pediatrics specialty and a focus in child abuse, was sufficientto establish that RJN’s injuries were the result of abuse. Dr. DeGraw was qualified as an expert in 400 cases, and he testified as a child abuse expert or a child abuse pediatrician in the major ity of the cases. Dr. DeGraw testified that he examined RJN and opined that his injuries wer e the result of abuse. He conducted a child abuse evaluation of RJN’s injuries and found that the number of fractures in various stages of healing coupled with no plausible explanation for the fractures indicated that
the fractures were the result of child abuse. There was no obj ection to Dr. DeGraw’s testimony as an expert. The testimony of the other physicians supplement ed the testimony of Dr. DeGraw. Therefore, we conclude that eve n assuming that the court improp erly considered the testimony of the other physicians, the testimony of Dr. DeGraw, combined with the admissible testimony of the other witnesses who testified at trial, provided clear and convincing evidence that RJN’s injuries were the result of abuse. 4

II. STATUTORY GROUNDS

Respondent further argues that the trial court erred in findin g by clear and convincing
evidence that there were statut ory grounds to terminate her par ental rights. We disagree.

“To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has be en established.” In re Moss

, 301 Mich App 76, 80; 836 NW2d 182 (2013). “We review for clear error a trial court’s finding

4 Respondent also argues that the witnesses improperly referred to the diagnoses of nontestifying physicians, which constituted speculation. However, respondent abandons the argument on appeal by failing to specify which testimony she contends const ituted speculation. See Woods v SLB Prop Mgt, LLC , 277 Mich App 622, 626-627; 750 NW2d 228 (2008) (noting that “ ‘[a]n appellant’s failure to properly address the merits of his asser tion of error constitutes abandonment of the issue’ ”) (c itation omitted; alteration in o riginal).-9- of whether a statutory ground for termination has been proven b y clear and convincing
evidence.” Id .. “’ A finding of fact is clear ly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due r egard to the trial court’s special opportunity to observe the witnesses.’ ” In re Laster , 303 Mich App 485, 491; 845 NW2d 540 (2013) (citation omitted).

The petition requested termina tion of respondent’s parental ri ghts pursuant to the following provisions of MCL 712A.19b(3):

(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 circu mstances:

( i ) The parent’s act caused the physical injury or physical or s exual 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.

* * *

(g) The parent, without regard to intent, fails to provide pro per care or custody for the child and there is no reasonable expectation th at the parent will be able to provide proper care and custody within a reasonable tim e considering the child’s age.

* * *

(j) There is a reasonable lik elihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.

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

* * *

( iii ) Battering, torture, or othe r severe physical abuse.

“[O]nly one statutory ground for termination must be establishe d for each parent[.]” In re
Laster , 303 Mich App at 495.

Respondent first challenges the trial court’s statement in its opinion and order that respondent “has admitted” to the contents of the petition when she pleaded no contest. To the
extent that the trial court er red in failing to distinguish bet ween a plea of admission and a nocontest plea, the error was harm less because the trial court de tailed at length a dditional testimony establishing by clear and convinc ing evidence the allegations i n the petition, and we conclude that the remaining facts outlined by the court provided clear and convincing evidence that the grounds in MCL 712A.19b(3)(b)( i ), (g), (j), and (k)( iii ) were met.-10- A. MCL 712A.19b(3)(b)( i ) AND (k)( iii )

The trial court did not err in concluding that there was clear and convincing evidence that MCL 712A.19b(3)(b)( i ) and (k)( iii ) provided statutory grounds for termination. The testimony presented during the hearing established that RJN’s injuries we re the result of child abuse. Dr. DeGraw testified as an expert in child abuse pediatrics. Dr. D eGraw testified that RJN suffered from multiple fractures at various stages of healing. Dr. DeGr aw testified that RJN expressed pain when the area with the leg bump was manipulated, and the b ump was readily visible. Additionally, RJN had bruising to his head. Because of the chi ld’s age, the injuries could not have been self-inflicted, and th e child would have responded to the pain. Dr. DeGraw attempted to obtain a plausible explanation for the injuries and question ed respondent regarding whether the child had been dropped, injure d in an accident, or injured by a sibling, but respondent answered negatively to all possibilities. Consequently, the do ctor concluded that RJN’s fractures were the result of child abuse because they were significant tr aumatic injuries, their cause was unexplained, the child could not injure himself, he did not rec eive medical care for the injuries, and the family took several days to complete the x-ray. Dr. De Graw’s conclusion was further supported by the fact that RJN did not suffer any new fractures after the children were removed from respondent’s care. Thus, the re was evidence establishing that RJN’s injuries were the result
of child abuse.

Additionally, respondent testified that she was the primary caregiver for the children. She was unemployed and at home with the children the majority o f the time, and only occasionally left the children with babysitters. In In re Ellis , 294 Mich App 30, 31; 817 NW2d 111 (2011), an infant was taken to the hospital where he was di agnosed with multiple skull fractures and 13 broken bones, inc luding partially healed fract ures. The respondents, the infant’s parents, had no explanation for the severe injuries, and they a dmitted that they were the child’s only caretakers. Id . at 32. The couple did acknowl edge that the child was particu larly fussy and crying more than usual. Id . However, a physician qualified in child abuse was able to ex plain that the injuries were caused by squeezing the rib cage and for ceful shaking. Id . There were no accidental, genetic, or childbirth causes to explain the infant ’s injuries, and therefore, the injuries were caused by physical abuse. Id . This Court rejected the contention that termination of parental rights could not occur pursuant to MCL 712A.19b(3)(b)( i ), (b)( ii ), (j), or (k)( iii ) because the perpetrator of the abuse w as not identified. This Court explained:

The most significant and intere sting argument respondents rais e is that it is impossible to determine which of them committed this heinous ab use of the minor
child. That would be an extrem ely relevant, a nd possibly dispo sitive, concern in a criminal proceeding against either or both of them, but it is i rrelevant in a termination proceeding. When there is severe injury to an infa nt, it does not matter whether respondents committed the abuse at all, because under these circumstances there was clear and convincing evidence that theydid not provide

proper care.

* * *

Respondents lived together in a small apartment. Both testifi ed that they were the only two individuals who took care of the child. The child suffered-11- numerous nonaccidental injuries, and the explanations provided were inconsistent with the extent and nature of the child’s injuries. The injuri es were numerous, highly indicative of child abuse, using a very high force of im pact, and inconsistent with any sort of acci dent. The fact that many of them were in various stages of healing showed that A. Ellis had suffered multiple in stances 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 a t least periodically through lack of appetite, sleeping more, and increased fussines s. Respondents could not offer any plausible alte rnative explanation for A. El lis’s injuries. We conclude 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 pr event it; consequently, it did not matter which did which.

We hold that termination of p arental rights under MCL 712A.19b (3)(b)( i ), (b)( ii ), (j), and (k)( iii ) is permissible even in the absence of definitive evidence regarding the identity of the perpetrator when the evidence doe s show that the respondent or respondents must have either caused or failed to prevent the child’s injuries. The evidence in this case clearly shows that A. Elli s suffered numerous nonaccidental injuries that likely occurred on more than one oc casion and that the parents lived together, shared childcare responsibilities, and were the child’s sole caregivers. [ Id . at 33, 35-36.]

Applying this analysis to the pre sent case, there was clear an d convincing, legally admissible evidence to support termination of respondent’s pare ntal rights pursuant to MCL 712A.19b(3)(b)( i ) and (k)( iii ). Respondent and the biological father of the twins were the primary caregivers for the children. Neither provided a plausi ble and consistent explanation for RJN’s injuries. If respondentdid not commit the physical abus e that caused RJN’s fractures, they were caused by RJN’s biological father. However, responde nt perpetuated the abuse by seeing signs of it and failing t o take RJN to the doctor.

The twins were not taken to the doctor for approximately the f irst six months of their
lives. When advised that an x-ra y was necessary to determine t he cause of the RJN’s leg bump, respondent did not take the child in for the x-ray. Rather, th e doctor’s office and the doctor himself persistently called res pondent to no avail, and CPS had to make an unannounced visit to ensure that the x-ray was taken. The x-rays resulted in the re moval of the children from respondent’s home because of the discovery of several fractures in various stages of healing. Respondent was advised that an x-ray was necessary to diagnose why RJN was in discomfort. Additionally, RJN’s weight was not in the normal percentage ran ges for children his age. Thus, even if the leg bump was present at birth, respondent ignored R JN’s injury and need for medical care. Accordingly, respondent per petuated the abuse by failing to obtain treatment for RJN’s injuries and allowing additional injury to occur. In addition, the children are reasonably likely to suffer from injury or abuse in the foreseeable future if placed in respondent’s home because respondent failed to identify the cause of RJN’s injuries or ac cept responsibility for them. Therefore, MCL 712A.19b(3)(b)( i ) and (k)( iii ) were satisfied by clear and convincing, legally
admissible evidence.-12- B. MCL 712A.19b(3)(g)

We further conclude that there was clear and convincing eviden ce to support the trial court’s decision to terminate respondent’s parental rights unde r MCL 712A.19b(3)(g). Respondent failed to take all of the children to the doctor for regular wellness checks. With regard to BEH, respondent failed to acknowledge that BEH had sp ecial needs, and she did not seek services for BEH’s special needs while the child was in he r care. With regard to RJN, the
evidence indicated that when RJN was taken in for a wellness ch eck, RJN had multiple fractures in various stages of healing. He was also malnourished. In ad dition, respondent was advised of the need to take RJN in for an x-ray, but she failed to do so. When questioned why she did not, she faulted the transportation system. Karen Neiman, responden t’s friend, testified that she had provided respondent with rides to take BEH to the doctor, but r espondent had not asked her for a ride to the doctor’s office recently. Neiman testified that sh e would have given respondent a ride
in order to take the twins to a doctor appointment. Respondentwas advised of the need to diagnose the source of RJN’s leg bump and that the child was in pain or discomfort because of the bump. Despite this informa tion, she ignored repeated calls from the doctor’s office regarding the status of the x-ray. The x-r ay was only taken after the do ctor involved CPS. Because respondent failed to take any steps to protect RJN from abuse o r take measures to eliminate additional abuse, he was not pr ovided with proper care or custo dy.

The doctrine of anticipatory ne glect reasons that “ ‘[h]ow a parent treats one child is certainly probative of how that parent may treat other children .’ ” In re LaFrance , 306 Mich App 713; 858 NW2d 143 (2014) (citations omitted; alteration in original). Thus, respondent’s treatment of RJN is indicative of how she may treat her other c hildren in the future. Further, given respondent’s unwillingness to follow medical advice and o btain treatment for RJN, combined with her failure to take the children to regular docto r’s appointments, there was no reasonable expectation that respondent would be able to provide proper care and custody within a reasonable time considering the children’s young ages. Thus, there was clear and convincing, legally admissible evidence to s upport this ground for terminat ion.

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

There was also clear and convincing evidence supporting the tr ial court’s determination that MCL 712A.19b(3)(j) provided a statutory ground for termina tion. As discussed above, respondent failed to take the children for regular wellness che cks at the doctor’s office. Respondent also failed to take RJN for a diagnostic x-ray despi te multiple inquiries from the
doctor’s office and the doctor hi mself regarding the status of the x-ray. When CPS took measures to ensure that the x-ray occurred, RJN was diagnosed w ith seven fractures at various stages of healing. As discussed above, respondent did not prov ide a valid reason for why RJN suffered the factures. There was physician testimony that the fractures were the result of abuse,
and the facts of the case indi cate that respondent either cause d the abuse or failed prevent it.-13- This demonstrates a reasonable likelihood that RJN, BEH, and OD N would be at risk of harm if returned to respondent’s care . Therefore, termination was prop er under MCL 712A.19b(3)(j). 5

III. BEST INTERESTS

Respondent finally contends that the trial court improperly de termined that termination
was in the children’s best interests. We disagree.

“[W]hether termination of parental rights is in the best inter ests of the child must be proved by a preponderance of the evidence.” Moss , 301 Mich App at 90. “We review a trial court’s decision regarding a child’s best interests for clear e rror.” Laster , 303 Mich App at 496.
We also “review for clear error whether the trial court failed to address a significant difference
between each child’s best interests.” In re White , 303 Mich App 701, 716; 846 NW2d 61 (2014).

“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 a dditional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5). Factors for the trial court to con sider in determining best
interests include the “ ‘the chil d’s bond to the parent, the pa rent’s parenting ability, the child’s need for permanency, stability, and finality, and the advantage s of a foster home over the parent’s home.’ ” White , 303 Mich App at 713 (citation omitted). “The trial court mayalso 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.” Id . at 714. “[T]he trial court ‘has a duty to decide the best interests of each child individually.’ ” Id . at 715 (citation omitted).

The trial court did not clearly err in determining that termin ation of respondent’s parental rights was in the children’s be st interests. As petitioner ack nowledges, there was testimony that respondent had a bond with her children. However, the children ’s bond with respondent is only one factor for the trial court to consider in determining best interests, and the court did not err in determining that other factors significantly outweighed the chi ldren’s bond with respondent. First, the testimony indicated that the children would not be s afe in respondent’s care. Respondent was the primary caregiver for the children, and the evidence established that she
failed to obtain routine medical care for her children even bef ore the injuries to RJN were discovered. There was testimony that respondent failed to take the children for regular wellness checks. With regard to RJN, although respondent contended that the bump was present on RJN

5 We note that the trial court indicated in its opinion and orde r that termination was proper under MCL 712A.19b(3)(c)( i ). We conclude that MCL 712A.19b(3)(c)( i ) was not a proper ground for termination because termination occurred at the initial disposi tional hearing. See MCL 712A.19b(3)(c)( i ) (contemplating that 182 or more days have elapsed since the i ssuance of an initial dispositional order). However, the error is harmless b ecause only one ground for termination needs to be established by clear and convincing evi dence, and the court properly concluded that the other statutory grounds were established by clear and convincing evidence.
See Laster , 303 Mich App at 495.-14- at birth, she failed to take RJN for an x-ray when Dr. Osk orde red it on an expedited basis because of the child’s discomfort. Respondent did not find the resources to take her children to the doctor or call an ambulance, contrary to testimony that res pondent had the resources to do so. The evidence indicated that either respondent or O. Neal abused RJN, and respondent did nothing to protect the child fro m further abuse, calling into q uestion the safety of his siblings.

Second, respondent demonstrated a n inability to care for all o f her children at once. During supervised visits, respondent was unable to address the needs of all three children at once, requiring a worker to intervene to prevent injury when BE H climbed on a table. Since the children’s placement in foster care, they were advancing cognit ively, improving physically, communicating, and RJN had not su ffered any new fractures. The refore, there was ample evidence to indicate that respondent was not meeting the childr en’s needs and that termination of respondent’s parental right would a llow them to advance in a sa fe environment.

Respondent challenges the trial court’s decision to consider t he best interests of the children collectively, except as otherwise indicated. Although the trial court stated that it was applying the best-interest standa rd to the children collectivel y, the court did discuss the children separately to address the differe nt needs and circumstances of BEH and RJN. This Court in
White clarified that “if the best interests of the individual childre n significantly differ, the trial court should address those differences when making its determin ation of the children’s best
interests.” White , 303 Mich App at 715. Respondent does not point out any signi ficant
differences between each child’s best interests that the trial court failed to consider. The record does not reveal any significant differences between the childre n that the court did not consider. Accordingly, we conclude that th e trial court did not fail to a ddress any significant differences
between each child’s be st interests. See id

.
Respondent further contends tha t petitioner failed to consider relative placements for the children. Respondent cites caselawindicating that the trial c ourt must explici tly consider the children’s placement with relatives during the termination hear ing. See In re Mason , 486 Mich 142, 164; 782 NW2d 747 (2010). However, the record reveals tha t petitioner continuously attempted to locate relative placements for the children, and n one of the proposed relative placements were suitable for the children. The relative placem ent offered by respondent involved respondent’s mother, who was on the Department of Heal th and Human Services Central Registry at the time of the initial placement decision, was living with respondent, and did not have a legal source of income. With regard to R. Hines, th e uncle of M. Hines, R. Hines
indicated to Simmons that he w as not willing to be a foster par ent to the children. With regard to Hunt, the sister of M. Hines, the placement applied only to BEH , the child had not had contact with Hunt in years, and there was no indication that Hunt had the ability to care for BEH’s special needs. Hunt lived in V irginia, and BEH would have to l ive in Virginia as well. Simmons explained that it would not be in the best interests of BEH to be placed with Hunt because BEH could not have parenting time visits with respondent or visitat ions with her siblings. Simmons further explained that BEH would not know who Hunt is. Simmons also testified that she considered Harris, another relative, but Harris was not willing to be a foster-care provider. Therefore, we conclude that peti tioner properly considered rela tive placements, and none of the relatives provided suitable place ments for the children. See M CL 722.954a. For these reasons, a preponderance of the evidence supports the trial court’s determ ination that termination of respondent’s parental rights was in the children’s best interes ts.-15- Affirmed.

/s/ Kathleen Jansen /s/ Mark J. Cavanagh
/s/ Elizabeth L. Gleicher