In re Ellis

Decision Date25 August 2011
Docket Number301887.,Docket Nos. 301884
Citation817 N.W.2d 111,294 Mich.App. 30
PartiesIn re ELLIS.
CourtCourt of Appeal of Michigan — District of US

OPINION TEXT STARTS HERE

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Stephanie Achenbach, Assistant Attorney General, for the Department of Human Services.

Helm, Miller & Miller, Detroit (by Beth Anne Miller) for A. Jones.

Susan K. Rock for T. Ellis.

Before: FORT HOOD, P.J., and DONOFRIO and RONAYNE KRAUSE, JJ.

PER CURIAM.

In these consolidated appeals, respondents appeal as of right the trial court's order terminating their parental rights to A. Ellis. We affirm.

Respondents are the child's parents. When A. Ellis was less than two months of age, Children's Protective Services (CPS) received a complaint that the child had been brought to the hospital with, to understate the situation, injuries from physical abuse. In fact, skull x-rays and skeletal surveys revealed that the child had swelling and multiple skull fractures on the upper-rear right side of his head. He had internal bleeding inside the skull, over the coating of the brain, in the area of the fractures as well as on the left side of his head. In the area of the fractures, he had reduced blood supply to his brain. A. Ellis had 13 broken bones, including 7 partially healed fractures to his posterior ribs, with 3 breaks on his right side and 4 on his left. He also had fractures to bones in an arm and in his legs.

Neither respondent was able to provide an explanation for these severe injuries, and they agreed that they were A. Ellis's only caretakers. They explained that the child had been particularly fussy and crying more than usual. A physician qualified as an expert in child abuse and neglect, however, was able to explain the injuries. The rib fractures had resulted from physical abuse and very forceful squeezing of his rib cage, especially the posterior injuries. The fractures to A. Ellis's arm and leg bones were in the metaphysis portion of the bones,1 which was significant because fractures in that area are highly indicative of child abuse and typically occur when babies are shaken very forcefully. Finally, none of the child's injuries appeared to be accidental, related to any genetic problems, or the result of a difficult childbirth. Injuries caused by, say, being dropped or hitting his head against a faucet would have looked different. The physician expert concluded that A. Ellis had suffered “abuse head trauma and physical abuse.”

To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence. In re Trejo Minors, 462 Mich. 341, 355, 612 N.W.2d 407 (2000). Only one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights, even if the court erroneously found sufficient evidence under other statutory grounds. In re Powers Minors, 244 Mich.App. 111, 118, 624 N.W.2d 472 (2000). If a statutory ground for termination is established and the trial court finds “that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5).

This Court reviews the trial court's findings under the clearly-erroneous standard. MCR 3.977(K); Trejo, 462 Mich. at 356–357, 612 N.W.2d 407. A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich. 331, 337, 445 N.W.2d 161 (1989). To be clearly erroneous, a decision must be more than maybe or probably wrong. In re Sours Minors, 459 Mich. 624, 633, 593 N.W.2d 520 (1999). Further, regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. MCR 2.613(C); MCR 3.902(A); Miller, 433 Mich. at 337, 445 N.W.2d 161.

Respondents' parental rights were terminated pursuant to MCL 712A.19b(3)(b)( i ) (parent abused child), (b)( ii ) (parent failed to prevent abuse), (j) (child would likely be harmed if returned to the parent), and (k)( iii ) (abuse included battery, torture, or other serious abuse). Respondents argue that the trial court erred by terminating their rights. We disagree.

The most significant and interesting argument respondents raise is that it is impossible to determine which of them committed this heinous abuse of the minor child. That would be an extremely relevant, and possibly dispositive, concern in a criminal proceeding against either or both of them, but it is irrelevant in a termination proceeding. When there is severe injury to an infant, it does not matter whether respondents committed the abuse at all, because under these circumstances there was clear and convincing evidence that they did not provide proper care. In re Edwards, unpublished opinion per curiam of the Court of Appeals, issued Feb. 21, 2006 (Docket No. 264477), p. 3, 2006 WL 400998. While Edwards is unpublished and therefore not binding, MCR 7.215(C)(1), we find its reasoning sound and persuasive. See People v. Jamison, 292 Mich.App. 440, 445, 807 N.W.2d 427 (2011).

This Court has reached similar conclusions in other unpublished opinions with similar facts. We find those cases persuasive as well.

In In re Armstrong, unpublished opinion per curiam of the Court of Appeals, issued August 15, 2006 (Docket No. 266856), 2006 WL 2355491, a three-month-old child was treated for multiple nonaccidental fractures. They were determined to be the result of abuse, but because the child had several caregivers, it was not possible to determine the actual perpetrator. This Court nevertheless found that termination of the respondents' parental rights was appropriate, reasoning that the multitude of injuries over an extended period showed that the parents could have prevented the abuse but failed to do so and that the child would likely be injured again if returned to the care of either. In In re Rangel, unpublished opinion per...

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