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STATE OF MICHIGAN 

COURT OF APPEALS 

 

UNPUBLISHED 

In re KECK, Minors. March 14, 2017 

Nos. 333710;333721 

Macomb Circuit Court 

 Family Division 

LC No. 2016-000072-NA 

 2016-000090-NA 

Before: HOEKSTRA, P.J., and JANSEN and SAAD, JJ. 

PER CURIAM. 

 In these consolidated appeals, respondent-father, A. Keck, and respondent-mother, J. 

Karaffa, appeal as of right the trial court’s order terminating their parental rights to the minor 

children, KK and CK, pursuant to MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), (k)(iii), and (k)(v). 

Because the trial court did not clearly err by terminating respondents’ parental rights and 

respondent-mother has not shown plain error in the admission of other acts evidence, we affirm. 

 In 2016, respondents were living together with their two young children, KK and CK. 

Also living in the home was GK, respondent-mother’s 11-year-old child from a previous 

relationship. When CK was three months of age, Children’s Protective Services (CPS) received 

a complaint that the infant had been brought to the hospital with injuries indicative of physical 

abuse. These injuries included recent injuries—such as bilateral skull fractures, subdural 

hematoma, and retinal hemorrhages in both eyes—as well as an older broken rib, which showed 

signs of healing. Neither respondent was able to provide a feasible explanation for these severe 

injuries. 

 Petitioner sought termination of respondents’ parental rights to all three children at the 

initial dispositional hearing. At the hearing, petitioner introduced other acts evidence relating to 

respondent-father, indicating that, in 1994, he pled guilty to second-degree murder in the death 

of his 3-month old daughter after he confessed to hitting her. Following the hearing, the trial 

court assumed jurisdiction over the three children. The court found that statutory grounds for 

termination of respondents’ parental rights had been established by clear and convincing 

evidence under MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), (k)(iii), and (k)(v). The court also 

concluded that a preponderance of the evidence supported a finding that termination of 

respondents’ parental rights was in KK’s and CK’s best interests. However, noting that GK was 

safely in the custody of her father, in view of her bond with her mother, the court found that 

termination of respondent-mother’s parental rights to GK was not in GK’s best interests. The 
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court entered an order terminating respondents’ parental rights to CK and KK. Respondents 

appeal as of right. 

 On appeal, respondents first argue that the trial court erred when it found that the 

statutory grounds for termination were established by clear and convincing evidence. In 

particular, respondents contend that there were possible accidental causes for CK’s injuries, 

including the possibility that 18-month-old KK injured the baby by climbing into her bassinet 

and sitting on her or the possibility that GK injured the baby by playing with her or accidentally 

sitting on her. In view of these other possibilities and expert testimony to suggest that CK’s 

injuries could have been accidental, respondents contend that the trial court could not conclude 

by clear and convincing evidence that CK’s injuries were the result of nonaccidental child abuse. 

 To terminate parental rights, the trial court must find that at least one statutory ground for 

termination has been established by clear and convincing evidence. In re Trejo, 462 Mich 341, 

355; 612 NW2d 407 (2000). This Court reviews the trial court’s findings under the clearly 

erroneous standard. MCR 3.977(K). A finding is clearly erroneous if the reviewing court is left 

with a definite and firm conviction that a mistake has been committed. In re Miller, 433 Mich 

331, 337; 445 NW2d 161 (1989). “Due regard is given to the trial court's special opportunity to 

judge the credibility of witnesses.” In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008). 

 Respondents’ parental rights were terminated pursuant to MCL 712A.19b(3)(b)(i), (b)(ii), 

(g), (j), (k)(iii), and (k)(v). These statutory provisions permit termination of parental rights when 

the following conditions are satisfied: 

(b) The child or 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 the is a reasonable 

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

placed in the parent’s home. 

* * * 

(g) The parent, without regard to intent, fails to provide proper care or 

custody for the child and there is no reasonable expectation that the parent will be 

able to provide proper care and custody within a reasonable time considering the 

child’s age. 

* * * 

 (j) There is a reasonable likelihood, 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. 
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 (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 other severe physical abuse. 

* * * 

 (v) Life-threatening injury. 

Notably, when dealing with child abuse where the identity of the abuser cannot be definitively 

established, “termination of parental 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 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). See, e.g., In re VanDalen, 293 Mich App 120, 140; 809 NW2d 412 (2011). 

 In this case, after reviewing the record, we conclude that the trial court did not clearly err 

when it found that statutory grounds for termination were established by clear and convincing 

evidence. The evidence overwhelmingly established that CK had sustained severe and lifethreatening physical injuries. A skeletal survey, x-rays, a CT scan, and an MRI revealed that the 

infant had sustained bilateral skull fractures, one—if not more—rib fractures, and a fractured 

femur. CK also experienced retinal hemorrhages in both eyes as well as a subdural hematoma, 

and surgery was necessary to insert shunts to relieve intracranial pressure. The evidence 

indicates that, because of the intracranial pressure, CK’s injuries were life-threatening. 

 Further, the evidence showed that these injuries were the result of nonaccidental trauma. 

That is, there was strong evidence that CK’s injuries were intentionally caused by both blunt 

force trauma, i.e. severe impact, and by being forcefully shaken back and forth or side-to-side. 

The testimony of CK’s treating physicians refuted any suggestion that CK’s injuries could have 

been self-inflicted or accidental. The treating physicians opined that the types of injuries present 

could not have been caused by GK or KK, in the manner suggested by respondents, because 

CK’s siblings simply could not have exerted the force necessary to cause the injuries sustained. 

Indeed, CK’s injuries were likened to the type of injury a child would have sustained had she 

been ejected from a motor vehicle during an accident. To the extent respondents contend that 

their expert disagreed with the opinions of CK’s treating physicians, we note that respondent’s 

expert could not exclude the possibility of child abuse and that, in any event, resolution of any 

disagreement among the experts posed a question of fact for the trial court. Robins v Garg, 276 

Mich App 351, 363; 741 NW2d 496 (2007). Given the evidence presented, the trial court did not 

clearly err by finding that CK suffered nonaccidental trauma. 

 Recognizing that the injuries were not accidentally caused by CK’s siblings, in the 

absence of any other explanation, it also follows from the evidence that CK was physically 

abused by both of her parents, or that one parent abused CK and the other parent failed to protect 

the child. Respondents were CK’s primary caregivers. Indeed, since her birth, CK had rarely 

been out of respondents’ care, and there is no indication that another adult caused CK’s injuries. 

Instead, it is clear that CK suffered her severe injuries while in respondents’ care. Moreover, the 
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infant showed signs of an older injury to her ribs, and both parents noticed signs of the infant’s 

swelling head and yet they failed to take prompt action for the infant’s protection. Cf. In re 

VanDalen, 293 Mich App at 140. Given this evidence, the trial court did not clearly err by 

determining that both respondents committed the abuse in question or, at a minimum, one parent 

failed to protect the child from abuse inflicted by the other parent. In these circumstances, it was 

not necessary for the evidence to conclusively establish which parent perpetrated the physical 

abuse. See In re Ellis, 294 Mich App at 35-36. 

 The evidence also supports the trial court’s finding that both CK and KK would be at risk 

of harm if returned to respondents’ care. “Evidence of how a parent treats one child is evidence 

of how he or she may treat the other children.” In re Hudson, 294 Mich App 261, 266; 817 

NW2d 115 (2011). Here, it is undisputed that CK sustained severe injuries. Respondents could 

articulate no plausible explanation for these injuries. Indeed, respondents minimized the nature 

of CK’s injuries, refused to acknowledge the manner in which they were sustained, and persisted 

in blaming two young siblings. Respondents also failed to promptly seek treatment for CK when 

she exhibited signs of injury. Respondent-mother, although acknowledging that respondentfather had been convicted of second-degree murder in the death of his infant daughter, failed to 

recognize the risk posed by respondent-father. Indeed, respondents were still in a relationship 

and still living together. Because the evidence supported a finding that one or both of 

respondents caused the injuries and that both respondents continued to deny knowledge of the 

source of the injuries, there existed a reasonable likelihood that the children would suffer further 

harm in respondents’ care. Based on the foregoing, there was clear and convincing evidence to 

terminate respondents’ parental rights to the two children pursuant to MCL 712A.19b(3)(b)(i), 

(b)(ii), (g), (j), (k)(iii), and (k)(v). 

 Next, respondents challenge the trial court’s finding that termination of their parental 

rights was in the children’s best interests. In particular, respondents contend that they are 

strongly bonded to their children. They also argue that, in lieu of termination, the trial court 

should have created a guardianship with the children’s maternal grandparents and afforded 

respondents an opportunity to participate in services. We find no merit to these arguments. 

 “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 

the parental rights and order that additional efforts for reunification of the child with the parent 

not be made.” MCL 712A.19b(5). Whether termination is in a child's best interests is 

determined by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 

182 (2013). In evaluating a child’s best interests, the trial court should weigh all the available 

evidence and may consider a wide variety of factors, including “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.” In re White, 303 Mich App 701, 713; 846 

NW2d 61 (2014) (citation omitted). The trial court may also consider a history of child abuse as 

well as the children’s safety and well-being in the home. In re VanDalen, 293 Mich App at 142. 

We review the trial court’s best interests determination for clear error. In re White, 303 Mich 

App at 713. 

 The trial court did not clearly err in finding that termination of respondents’ parental 

rights was in KK’s and CK’s best interests. One or both of the respondents physically abused 
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CK; the other parent failed to protect her. Respondents then compounded matters when they 

failed to promptly obtain medical treatment. The evidence further established that respondents 

continue to deny the manner in which CK was injured, and instead seek to place blame on CK’s 

siblings. This evidence clearly showed that the children would be at risk if returned to 

respondents’ care. Cf. In re VanDalen, 293 Mich App at 142. While it is undisputed that a 

significant bond existed between respondents and their children, this bond does not outweigh the 

children’s need for safety. Moreover, given the aggravated abuse in this case, respondents were 

not entitled to further services aimed at reunification. See In re Moss, 301 Mich App at 91-92; 

MCL 722.638(2). 

 In terms of a possible guardianship, it is true that the maternal grandparents expressed a 

willingness to enter into a guardianship. Although placement with a relative weighs against 

termination, and the fact that a child is living with relatives must be considered, a trial court may 

terminate parental rights in lieu of placement with relatives if it finds that termination is in the 

child’s best interests. In re Olive/Metts, 297 Mich App 35, 43; 823 NW2d 144 (2012). In this 

case, the trial court considered the children’s placement with a relative, but rejected the 

possibility of a guardianship, and instead concluded that termination of respondents’ parental 

right was in the children’s best interests. The trial court emphasized the children’s need for 

safety and reasoned that termination would best ensure the children’s safety by permanently 

eliminating respondents’ ability to make decisions for the children. Moreover, there was 

testimony from the foster care worker that termination, which would pave the way for adoption, 

was a preferable permanency path for the two children given their very young ages and their 

need for long term protection and care. Under these circumstances, the trial court did not clearly 

err when it rejected guardianship and found that termination of respondents’ parental rights was 

in the children’s best interests. 

 Finally, respondent-mother contends that the trial court abused its discretion when it 

admitted evidence related to respondent-father’s 1994 second-degree murder conviction arising 

from the death of respondent-father’s infant child. Specifically, respondent-mother argues on 

appeal that testimony relating to the child’s autopsy was “graphic” and “emotional,” and that this 

other acts evidence was thus substantially more prejudicial than probative. However, in the 

lower court, respondent-mother’s attorney expressly waived any argument relating to the other 

acts evidence, stating with respect to the admission of this evidence: “I would just waive 

argument and leave it to the Court’s discretion . . . .” Respondent-mother cannot affirmatively 

waive the issue in the trial court and then seek to raise it as an error on appeal. See People v 

Carter, 462 Mich 206, 214-216; 612 NW2d 144 (2000). Waiver extinguishes any error, and 

there is no error for this Court to review. Id. 

 In any event, even if we did consider the issue, it is at best unpreserved and reviewed for 

plain error affecting respondent-mother’s substantial rights. In re VanDalen, 293 Mich App at 

135. “To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error 

must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected 

substantial rights.” Id. (citation omitted). In this case, it is clear that respondent-mother has not 

satisfied these requirements. 

 In particular, under MRE 404(b)(1), the trial court allowed petitioner to introduce 

evidence that, in 1994, respondent-father pleaded no contest to a charge of second-degree murder 
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in the death of his then three-month-old daughter. At the termination hearing, a police officer 

testified to events related to his 1993 investigation of the child’s death, including details of 

respondent-father’s confession and descriptions of the child’s injuries that the officer observed 

during the infant’s autopsy. This evidence was relevant for a proper purpose, namely to establish 

that CK’s injuries were not the result of an accident and, with regard to respondent-mother in 

particular, to demonstrate respondent-mother’s failure to protect CK insofar as she knew of 

respondent-father’s prior conduct and yet she failed to protect her children or to take prompt 

action when she noticed CK’s swollen head. See MRE 404(b); People v VanderVliet, 444 Mich 

52, 62-64; 508 NW2d 114 (1993), modified 445 Mich 1205 (1994). 

 Contrary to respondent-mother’s appellate arguments, the probative value of this otheracts evidence was not substantially outweighed by the danger of unfair prejudice. MRE 403. 

Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence 

will be given undue or preemptive weight. In re MU, 264 Mich App 270, 285; 690 NW2d 495 

(2004). We see no such danger in this case. The evidence had considerable probative value, and 

we are persuaded that the trial court was able to use the other acts evidence for the proper 

purpose for which it was offered. See People v Bailey, 175 Mich App 743, 746; 438 NW2d 344 

(1989) (finding that, in a case tried without a jury, “it is unlikely that the trier of fact considered 

the evidence for anything other than the purpose for which it was offered”). Indeed, in reviewing 

the trial court’s opinion, it is clear that the trial court’s findings in this case were based on the 

strong medical testimony that established that CK was the victim of nonaccidental severe 

physical abuse while in respondents’ care. There is no support for respondent-mother’s claim 

that the police officer’s testimony was unfairly prejudicial or that such evidence affected the 

outcome of the proceedings. Accordingly, respondent-mother has failed to establish plain error 

that affected her substantial rights. 

Affirmed. 

/s/ Joel P. Hoekstra 

/s/ Kathleen Jansen 

/s/ Henry William Saad