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UNPUBLISHED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 DURAN/SMITH, Minors. February 17, 2022

No. 356856; 356857

Wayne Circuit Court

Family Division

LC No. 2020-000394-NA

Before: M. J. KELLY, P.J., and STEPHENS and REDFORD, JJ.

M. J. KELLY, P.J. (concurring in part and dissenting in part).

I concur in part and respectfully dissent in part. With respect to the majority’s holdings 

that the trial court did not clearly err by finding statutory grounds to terminate respondents’ 

parental rights to BMS and that termination of their parental rights to him was in BMS’s best 

interests, I fully concur. However, I would reverse the trial court’s decision to terminate 

respondents’ parental rights to EMD and ERD because the trial court clearly erred by finding that 

termination was warranted under MCL 712A.19b(3)(b)(i), (b)(ii), (j), and (k)(iii).

Each of those statutory grounds mandates that the trial court must find that there is a 

reasonable likelihood that the child will be harmed if returned to the home of the parent. See MCL 

712A.19b(3)(b)(i), (b)(ii), (j), and (k)(iii). Here, the evidence shows that EMD and ERD were 

healthy, were well-cared for, and there was no evidence that they had been physically injured or 

abused. There were no concerns related to employment or housing: respondent-father was 

employed and, following a complete home assessment, the Child Protective Services (CPS)

investigator stated that there were no concerns with the household and that they had sufficient food 

for the children. In fact, the only concern directly related to EMD and ERD was that they had not 

seen a pediatrician in over one year. In the absence of any evidence suggesting that the children 

had been previously harmed, the CPS investigator speculated that EMD and ERD were at risk due 

to “threatened harm” because it was “unknown if further along the line that they’ll be, as well, 

victims of abuse or neglect.”

As a result, the only non-speculative testimony that EMD or ERD would be harmed if 

returned to the care of their parents requires the application of the doctrine of anticipatory neglect. 

Under the doctrine of anticipatory neglect, “[h]ow a parent treats one child is certainly probative 

of how that parent may treat other children.” In re LaFlure, 48 Mich App 377, 392; 210 NW2d 
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482 (1973). Thus, under some circumstances, it allows the trial court to infer that because a parent 

abused or neglected one child, he or she will do the same to another child. “However, the probative 

value of such an inference is decreased by differences between the children, such as age and 

medical conditions.” In re Kellogg, 331 Mich App 249, 259; 952 NW2d 544 (2020). For example, 

in In re LaFrance, 306 Mich App 713, 726-730; 858 NW2d 143 (2014), the respondent-parents 

neglected the needs of their youngest child, but the record was devoid of evidence that they had 

neglected or abused their older children. The LaFrance Court concluded that the doctrine of 

anticipatory neglect and the respondent-parents’ failure to address their substance-abuse issues 

was insufficient to warrant termination because of marked and significant differences between the 

neglected child and the other three children: including age differences between the neglected infant 

and the older children, whose ages ranged from five to twelve, and because the neglected infant 

had a medical condition and required special care, whereas the older children did not. Id. at 730-

731. Similarly, in Kellogg, this Court held that the probative value of the doctrine of anticipatory 

neglect was severely decreased by the nine-year-age difference between the children and by the 

fact that the older child had a long history of trauma and behavioral issues, which included 

diagnoses of attention deficient disorder, oppositional defiance disorder, and post-traumatic stress 

disorder. Kellogg, 331 Mich App at 260.

In this case, there are marked and significant differences between BMS and his younger 

siblings. BMS was approximately two years older than EMD and three years older than ERD. 

Unlike his sisters, he also had documented behavioral issues. Specifically, medical records 

introduced by respondent-father showed that approximately one year before the petition was filed, 

respondents took BMS to a pediatrician and expressed concerns regarding his “prolonged temper 

tantrums.” Another medical record included a nurse’s observations that BMS would have 

occasional temper tantrums and would hit himself on the head and throw items when frustrated. 

Moreover, unlike his sisters, BMS was diagnosed with post-traumatic stress disorder. Further, 

although none of the children were taken to a pediatrician in over a year, the record reflects that, 

unlike BMS, there were no indications that EMD and ERD required any medical treatment during 

that period. Instead, as reflected by the caseworker’s testimony, when they were removed from 

respondents’ care they were healthy, did not have any injuries, and were well-cared for.

On appeal, petitioner argues that EMD and ERD were not taken to the doctor for well-child 

visits for a substantial period of time. The majority believes that this is evidence of actual neglect. 

I, however, do not agree that a parent commits actual neglect by failing to take an apparently 

healthy and uninjured child to a wellness examination. Many parents do not have the luxury of 

seeking recommended, but not required medical care for their children. Health insurance often 

does not always cover all of the associated costs and many parents may have to make a choice as 

to whether to allocate money to what appears to be unnecessary medical examinations versus 

necessities such as housing, transportation, and food. To hold that the mere failure to take an 

uninjured and otherwise apparently healthy child to a wellness examination is “actual neglect” 

ignores the reality that many parents face. With respect to EMD and ERD, the record reflects that 

they were healthy and uninjured, and petitioner has presented no evidence that the failure to take 

them to wellness examinations negatively impacted them in any way. Under the individual 

circumstances of this case, then, the failure to take the children to medical examinations does not 

rise to the level of neglect, actual or otherwise.
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Moreover, the failure to seek medical care for a child who is not exhibiting signs that such 

care is required is not, standing alone, sufficient to establish a reasonable likelihood that the child 

will be injured or abused if returned to the care of his or her parent. Although the failure to take 

an apparently healthy child for a well-child doctor’s visit can show that the parent is not a model 

parent, it is well-established that “[t]he fundamental liberty interest of natural parents in the care, 

custody, and management of their child does not evaporate simply because they have not been 

model parents . . . .” Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982).

There was also testimony that it was anticipated that if EMD and ERD begin to exhibit the 

same behaviors that BMS exhibits—i.e., prolonged temper tantrums and included self-harming 

behaviors—that respondents might do the same thing to them as they had done to BMS. The 

termination of parental rights, however, requires “more than ‘speculative opinions . . . regarding 

what might happen in the future.’ ” Id. at 732 (citation omitted, emphasis original).

In conclusion, the doctrine of anticipatory neglect does not support termination of 

respondents’ parental rights under the facts of this case. Because the trial court’s basis for its 

finding that EMD and ERD will be harmed or abused if returned to respondents’ care is based 

solely on speculation, I am left with a definite and firm conviction that it clearly erred by finding 

statutory grounds to terminate respondents’ parental rights to EMD and ERD. In re White, 303 

Mich App at 709-710. Consequently, I would reverse the court’s order terminating respondents’

parental rights to EMD and ERD.

/s/ Michael J. Kelly