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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re I. D. Z. FOSTER-RIMSON, Minor. July 14, 2016

No. 330938 Wayne Circuit Court Family Division LC No. 14-518111-NA

In re Z. K. RIMSON, Minor. No. 330939 Wayne Circuit Court Family Division LC No. 14-518303-NA

In re FOSTER-RIMSON/FOSTER, Minors. No. 331065 Wayne Circuit Court Family Division LC No. 14-518111-NA

Before: R IORDAN , P.J., and S AAD and M. J. K ELLY , JJ.

P ER C URIAM

. Respondent-father C. Rimson and respondent-mother V. Foster ar e the natural parents of IDZF. Respondents also have a second child in common, IF, who died from severe physical abuse and neglect in October 2014, when he was seven years old. Each respondent also has a child from another relationship. Rimson’s other child is ZKR, and Foster’s other child is IDLGF. After IF’s death, the De partment of Health and Human Se rvices filed petitions for jurisdiction over respondents’ r emaining children and for termi nation of respondents’ parental rights to the children at the i nitial dispositional hearing. F ollowing a hearing, the trial court terminated respondents’ parental rights to the children pursuan t to MCL 712A.19b(3)(b)( i ), (g), and (j). In these consolidated appeals, respondent Rimson appe als the trial court’s orders that terminated his parental rights to IDZF and ZKR, and respondent Foster appeals the trial court’s orders that terminated her pare ntal rights to IDZF and IDLGF. We affirm in all appeals.-2- After seven-year-old IF’s death in October 2014, a Wayne Count y medical examiner performed a post-mortem examination to determine the cause of I F’s death. According to the medical examiner’s report, which was admitted into evidence in these proceedings, IF had numerous physical injuries of varying ages, which were indicati ve of ongoing physical abuse. He had also developed gangrene and other infections related to his injuries. In addition, the child was suffering from extreme weight loss and dehydration. The ma lnourishment, injuries, and infectious diseases had progressed over an extended period of t ime and caused visi ble indications that the child was in urgent need of protection and medical att ention. Respondents did not seek medical attention for IF until after the child became unrespons ive in October 2014. They brought the child to a hospital an d the child was pronounced de ad within minutes after his arrival.

Both respondents were criminally charged and convicted in rela tion to IF’s death. Foster was convicted of involuntary manslaughter, MCL 750.321, torture , MCL 750.85, and firstdegree child abuse, MCL 750.136b(2). She was sentenced to conc urrent prison terms of 5 to 15 years for the involuntary manslaughter conviction, and 27 to 50 years each for the convictions of torture and child abuse, with an earliest release date of Octob er 2041. Rimson was convicted of involuntary manslaughter, MCL 750.321, and second-degree child abuse, MCL 750.136b(3), for which he received concurrent pri son sentences of 10 to 15 years and 5 to 10 years, respectively, with an earliest releas e date of October 2024.

Following a hearing in November 2015, the trial court found th at the circumstances leading to IF’s death were “horrific,” it asserted jurisdictionover respondents’ remaining children, and it determ ined that termination of respondent’s pa rental rights to the children was warranted under MCL 712A.19b(3)(b)( i ), (g), and (j), and that termination of respondents’ parental rights was in the c hildren’s best interests.

I. STATUTORY GROUNDS FOR TERMINATION

Both respondents argue that the trial court erred in finding t he existence of a statutory ground for termination. In an action to terminate parental rig hts, the petitioner must prove by clear and convincing evidence th at at least one statutory groun d for termination in MCL 712A.19b(3) exists. MCR 3.977(A)(3) and (H)(3); In re Trejo , 462 Mich 341, 356; 612 NW2d 407 (2000). We review the trial c ourt’s decision for clear err or. MCR 3.977(K); In re Trejo , 462 Mich at 356. A finding is clearly erroneous when the reviewing court is left with the firm and definite conviction that a mistake was made. In re JK , 468 Mich 202, 209-210; 661 NW2d 216 (2003).

The trial court terminated respondents’ parental rights pursua nt to MCL 712A.19b(3)(b)( i ), (g), and (j), 1 which permit termination under the following circumstances:

1 Although petitioner had also requested termination of responde nts’ parental rights under MCL 712A.19b(3)(h) (parent’s imprisonment for two or more years) an d (k)( vi ) (abuse involving-3- (b) The child or a sibling of the child has suffered physical i njury or physical or sexual abuse under 1 or more of t he following circumstances:

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

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(g) The parent, without regard t o intent, fails to provide prop er care or custody for the child and there is no reasonable expectation that the paren t will be able to provide proper care and custody within a reasonable time consid ering the child’s
age.

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(j) There is reasonable likeli hood, based on the conduct or cap acity of the child’s parent, that the child will be h armed if he or she is returned to the home of the parent.

Respondents argue that the trial court erred in principally re lying on the evidence relating to IF’s death to support the statutory grounds for termination where petitioner did not present specific evidence concerning the circumstances of IF’s death, o r evidence showing each respondent’s personal involvement in the events that led to IF’ s death. We disagree. The postmortem report, which was admitted without objection, clearly es tablished that IF was malnourished over an extended time, that he was physically harm ed on multiple occasions, and that he suffered from life-threat ening infections over an exten ded time period. Medical treatment was not sought until the child b ecame unresponsive. Regardless of which respondent was caring for IF at the moment he became unresponsive and died, the evide nce clearly and convincingly established that both respondents would have been aware of IF’s serious medical condition (which was marked by numerous physical injuries of varying ages , malnutrition, and disease) and that both respondents neglec ted his condition and nutrition al needs for an extended period of time until he died.

We reject Rimson’s argument that termination of his parental r ights was improper because the circumstances of his involvement in IF’s death were “speculative” or because no witnesses specifically eliminated Sudden Infant Death Syndrome or some other underlying medical condition as a cause of IF’s death. The post-mortem re port overwhelmingly established that IF died because of extended neglect and abuse. The report concludes, “This constellation of injuries resulted from the child being beaten on at least sever al different occasions.” At the very least, the circumstances support a non-speculative inference th at Rimson abandoned his parental responsibilities for a long enough time to pass in which IF die d from longstanding abuse and neglect. Rimson’s unsupported suggestion that the “infant” may have died from SIDS or some other medical condition is not onl y speculative, but also not a pplicable to a seve n-year-old child. murder or attempted murder), the trial court did not terminate respondents’ parental rights under either of those grounds.-4- Any suggestion by respondents th at their personal culpability in the events that led to IF’s death was never adequately established is also negated by the a dmission of the records of their criminal convictions relating to the child’s death. Both respo ndents essentially claim that the mere admission of the “document” of their convictions is inadeq uate because such a document lacks sufficient detail to glean what they were aware of and wh at specific actions they took with respect to IF. However, such claims are without merit. Respon dents offer no authority, and we find none, for the premise that the trial court could not take judicial notice of the elements of their convictions to determine th e nature of the acts that resp ondents took with respect to IF.

Respondents’ culpability in IF’s death supports the statutory grounds for termination under §§ 19b(3)(b)( i ), (g), and (j). With respect to § 19b(3)(b)( i ), each respondent was convicted of child abuse in relation to IF , a sibling of the minor childr en at issue in these proceedings. That evidence satisfies the element that “[t]he child or a sibling o f the child has suffered physical injury or physical . . . abuse” and the element that “[t]he par ent’s act caused the physical injury or physical . . . abuse.” The doctrine of anticipatory abuse o r neglect “recognizes that how a parent treats one child is certainly probative of how that pare nt may treat other children.” In re AH , 245 Mich App 77, 84; 627 NW2d 33 (2001). Considering the sev ere nature and duration of the abuse of IF, the trial court did not clearly err in finding that the other children were reasonably likely to suffer from injury or abuse in the foresee able future if placed in respondents’ home. The physical injuries to IF did not involve an isolated incident but instead a longstanding pattern of repeated abuse.

The circumstances leading to IF’s death and the doctrine of an ticipatory abuse and neglect also support terminati on of respondents’ parental right s to their other children under §§ 19b(3)(g) and (j). Respondents cl early failed to provide pr oper care and custody for the child, and considering the severity and protracted nature of the abuse and neglect, there is no reasonable expectation that they can be trusted to provide prop er care and custody of their other children in the future. These circumstances also establish a r easonable likelihood that the children will be harmed if re turned to respondents’ home.

We reject Foster’s reliance on In re LaFrance , 306 Mich App 713, 730-731; 858 NW2d 143 (2014), to argue that the antic ipatory neglect doctrine sho uld not be applied in this case. This case is factually distinguishable from In re LaFrance , in which this Court held that the doctrine of anticipatory neglec t did not apply to the responden ts’ three older children where their fourth, younger child had been dehydrated for several hours and suffered acute kidney failure and the parents did not immediately recognize that child’s dist ress because of the child’s other special medical needs. The evidence in this case did not show a mere error in judgment regarding a child’s condition, or t hat Foster failed to provide a higher degree of care to a child with special and demanding needs. Rather, the evidence establi shed that IF was exposed to extreme and ongoing abuse and neglect. Considering the nature and severity of the injuries to IF, and the prolonged period during which he was abused and neglect ed, it is wholly appropriate to apply the doctrine of anticipatory neglect or abuse to establis h a reasonable likelihood that Foster’s other child would be harmed if placed in Foster’s care

. Foster also argues that termi nation was not warranted under § 19b(3)(g) because incarceration alone does not support termination and because th e trial court failed to consider whether she would be able to care for her children with the hel p of relatives. Although the-5- evidence indicated that Foster received a 27-year minimum sente nce for her torture conviction, with an earliest release date o f October 2041, the trial court did not terminate her parental rights solely on the basis of her in carceration. Indeed, the trial co urt declined to terminate her parental rights under §19b(3)(h) (incarcera tion of a parent that deprive s a child of norma l home for two or more years). The trial court’s finding that Foster was unable to provide proper care and custody was based on the post-mortem report and Foster’s convictions of first-degree child abuse and involuntary manslaughter in the death of IF, which proved that she was culpable of long-term abuse and neglect.

The record also fails to support Foster’s argument that suitab le relative placements were available for the children in lieu of terminating Foster’s pare ntal rights. The record indicates that petitioner investigated suggested relative placements, but the suggested relatives either were not interested in accepting placement of the children or were deter mined to be unsuitable. Foster’s criticism of petitioner for not making repeated telephone calls to disinterested relatives is unwarranted. If relatives were not diligent in coming forward, the workers were not obligated to recruit them. Because there is no evidence of a suitable relat ive willing to accept placement of the children, the trial court did not err by failing to pursue that option.

In sum, respondents have failed to establish that the trial co urt clearly erred in finding that the statutory grounds for t ermination were established by clear and convincing evidence.

II. BEST INTERESTS

Foster argues that the trial court erred in finding that termi nation of her parental rights was in her children’s best inter ests. Once a statutory ground for termination is established, the trial court shall order termination of parental rights if it fi nds by a preponderance of the evidence that termination is in the child ’s best interests. MCL 712A.19 b(5); In re Brown/Kindle/Muhammad , 305 Mich App 623, 637; 853 NW2d 459 (2014). The trial court’ s best-interests decision is re viewed for clear error. Id.

Foster’s dereliction of her parental responsibilities was so e gregious that her child died after suffering from long-term abuse and neglect. She was conv icted of three crimes, including torture, for her actions. She has proven herself completely un trustworthy in the care of children. She betrayed the trust of all of her children, not only IF. Fo ster attempts to piggyback her own parental rights to the alleged bond between the siblings, IDZF and IDLGF, by arguing that her own parental rights should be pr eserved in order to avoid separ ating the siblings. Preserving Foster’s parental rights would not ensure that the sisters stay together, especially when Foster will be incarcerated until 2041. I ndeed, IDZF and IDLGF have d ifferent fathers, and the trial court did not terminate the parental rights of IDLGF’s father. That situation could independently impede the two siblings from remaining together even if Foster’ s parental rights were not terminated. Although Foster sugges ts that IDLGF’s father could also provide a home for IDZF if he achieves reunification with IDLGF, there is no indication in the record that he has any interest in pursuing adoption of IDZF, or that such an arrangement would be suitable or in IDZF’s best interests. Considering all the evidence, the trial court did n ot clearly err in finding that termination of Foster’s parental rights was in the children’s b est interests.

III. INEFFECTIVE ASSISTANCE OF COUNSEL-6- Rimson argues that he was denied the effective assistance of c ounsel because his trial attorney failed to present evidence to refute petitioner’s evid ence or attack petitioner’s evidence for its lack of specificity. Because Rimson did not raise an i neffective assistance of counsel issue in the trial court, revie w of this issue is limited to er rors apparent on the record. See People v Jordan , 275 Mich App 659, 667; 739 NW2d 706 (2007).

The principles of ineffective assistance of counsel in crimina l cases apply by analogy to proceedings to terminate parental rights. In re Osborne (On Remand, After Remand) , 237 Mich App 597, 606; 603 NW2d 824 (1999). To prevail on a claim of in effective assistance of counsel, respondent must establish that (1) counsel’s performance was de ficient, meaning that it fell below an objective standard of reasonableness, and (2) but for counsel's error, there is a reasonable probability that the outcome of the proceeding would have been different. People v Carbin , 463 Mich 590, 600; 623 NW2d 884 ( 2001), citing Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Respondent must ove rcome the presumption that counsel’s performance constituted sound strategy. People v Henry , 239 Mich App 140, 146; 607 NW2d 767 (1999).

Although Rimson argues that trial counsel was ineffective for failing to present evidence to challenge the post-mortem findings or to undermine the infer ence that he was responsible for IF’s death, he does not specify what evidence counsel should or could have presented. An attorney’s failure to present evidence constitutes ineffective assistance of counsel only if it deprives his client of a substantial defense. People v Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012); People v Chapo , 283 Mich App 360, 371; 770 NW2d 68 (2009). Absent a showing of actual favorable evidence that was not presented, Ri mson cannot satisfy either prong for ineffective assistance ba sed on counsel’s alleged failure t o present evidence.

Rimson also complains that counsel failed to question petition er’s witnesses on crossexamination. Counsel’s decisions pertaining to the questioning of witnesses were a matter of trial strategy, which we will not second-guess. Russell , 297 Mich App at 716. The record discloses that Rimson’s counsel declined to cross-examine some witnesses who had already been cross-examined by Foster’s counsel. Although Rimson contends t hat counsel could have questioned witnesses about the specific facts surrounding IF’s death, there is no indication that the witnesses had any personal kno wledge of facts that would ha ve undermined the conclusions in the post-mortem report or the evidence of respondents’ crimi nal convictions. Accordingly, Rimson has failed to establish that counsel’s lack of cross-exa mination was objectively unreasonable, or that there is a reasonable probability that fu rther cross-examination would have affected the outcome.

Rimson also criticizes counsel’s waiver of opening statement. The purpose of an opening statement is to outline what the advocate intends to show. People v Moss , 70 Mich App 18, 32; 245 NW2d 389 (1976). “[T]he waiver of an opening statement inv olves “a subjective judgment on the part of trial counsel which can rarely, if ever, be the basis for a successful claim of ineffective assistance of counsel.” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009) (citation and quotation marks omitted). Rimson does not suggest what meaningful purpose an opening statement would have served. The trial judg e was already familiar with the case because he had presided over several prior hearings. Nota bly, all other parties had also waived their opening statements. Under these circumstances, th ere is no basis for concluding-7- that counsel’s decision to waive opening statement was objectiv ely unreasonable, or that there was a reasonably probability that counsel’s waiver of opening s tatement affected the outcome.

Rimson also criticizes counsel’s brief closing argument. In acriminal case, counsel’s complete concession of the defendant's guilt renders counsel in effective. People v Krysztopaniec , 170 Mich App 588, 596; 429 NW2d 828 (1988). However, counsel is not ineffective for conceding what is obvious based on the evidence

. People v Wise , 134 Mich App 82, 98; 351 NW2d 255 (1984). In this case, counsel did not con cede any fact other than the obvious fact that Rimson was incarcerated. Counsel did not address the post-mortem report or the nature of Rimson’s convictions, but Rimson does not explain how counsel should have addressed these matters. And considering the report and Rimson ’s convictions, we fail to see how counsel could have addressed these matters in any manner th at would have affected the outcome. Accordingly, this claim of ineffective assistance als o fails.

Rimson also complains that trial counsel failed to advocate fo r the children’s placement with a relative. Because ZKR was placed in the custody of her mother, this argument pertains only to IDZF. The record disclose s that the possibility of rel ative placement was discussed at three different hearings. Casew orkers testified that suggested relatives either failed to return the workers’ calls, or were found to be unsuitable. Although Rimso n asserts in his brief on appeal that his sister was able and willing to care for IDZF, nothing in the record supports this assertion. Thus, there is no basis in the record for concluding that couns el was ineffective for not doing more to facilitate a feasib le relative placement.

Affirmed.

/s/ Michael J. Riordan /s/ Henry William Saad /s/ Michael J. Kelly