IN RE ANTOWONE LAMAR MAYES MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ANTOWONE LAMAR MAYES,
Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
March 16, 2001
Petitioner-Appellee,
v
No. 225905
Monroe Circuit Court
Family Division
LC No. 99-014470-NA
AMBER PATTERFRITZ,
Respondent-Appellant,
and
REGINALD MAYES,
Respondent.
In the Matter of ANTOWONE LAMAR MAYES,
Minor.
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v
No. 225932
Monroe Circuit Court
Family Division
LC No. 99-014470-NA
REGINALD MAYES,
Respondent-Appellant,
and
AMBER PATTERFRITZ,
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Respondent.
Before: Hood, P.J., and Doctoroff and K.F. Kelly, JJ.
PER CURIAM.
Respondents appeal as of right from the order terminating their parental rights pursuant to
MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), and (k)(iii); MSA 27.3178(598.19b)(3)(b)(i), (b)(ii), (g),
(j), and (k)(iii). We affirm.
Respondents argue that the family court erred in proceeding to a termination trial without
first holding either a dispositional review hearing or a permanency planning hearing, pursuant to
MCL 712A.19b(1); MSA 27.3178(598.19b)(1), MCR 5.973, and MCR 5.974(F). We disagree.
The Child Protection Law, MCL 722.621 et seq.; MSA 25.248(1) et seq., requires petitioner to
seek termination of parental rights at the initial dispositional hearing if it is determined that a
child has been abused, the abuse included “battering, torture, or other severe physical abuse,”1
and a parent is a suspected perpetrator or is suspected of placing the child at an unreasonable risk
of harm due to the parent’s failure to take reasonable steps to eliminate that risk. MCL
722.638(1) and (2); MSA 25.248(18)(1) and (2).
In this case, when the original petition was filed, petitioner was aware that the child
suffered from a fractured right humerus, a bone in his upper arm, and several fractured ribs.
However, petitioner did not know at that time whether the injuries were the result of an accident
or were deliberately inflicted. Expert medical testimony at the subsequent adjudicative hearing
eliminated all reasonable explanations for the child’s injuries except child abuse. No evidence
pointed to any perpetrators other than respondents, who acknowledged being the child’s sole
caretakers. Given these facts, petitioner was required to seek termination of respondents’
parental rights, and the family court did not err in proceeding to a termination hearing without
holding a dispositional hearing or a permanency planning hearing.
We also reject respondents’ argument that a review hearing was required by statute or
court rule. MCL 712A.19b(1); MSA 27.3178(598.19b)(1) determines only what should happen
if a child remains in foster care following a review hearing or dispositional hearing. Likewise,
MCR 5.974(F) gives the family court discretion to take action on a supplemental petition under
certain circumstances, but does not require that a review hearing take place.
Both respondents argue that the trial court erred when it concluded that petitioner
established statutory grounds for termination by clear and convincing evidence. Specifically,
1
Severe physical abuse” is not defined under the act. “Child abuse” is defined as “harm or
threatened harm to a child’s health or welfare by a parent, legal guardian, or any other person
responsible for the child’s health or welfare, or by a teacher or teacher’s aide, that occurs through
nonaccidental physical or mental injury; sexual abuse; sexual exploitation, or maltreatment.”
MCL 722.622(e); MSA 25.248(2)(3). “Severe physical injury” includes bone fractures. MCL
722.628(3)(c); MSA 25.248(8)(3)(c).
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respondent Patterfritz argues that the family court clearly erred in finding that termination of her
parental rights was warranted under §§ 19b(3)(b)(i) and (b)(ii). She contends that the family
court erred in finding that it was not necessary to determine which parent “caused the physical
injury” and which parent “had the opportunity to prevent the physical injury . . . but failed to do
so.” Patterfritz further argues that there was no evidence that she caused physical injury to the
child or that she had the opportunity to prevent his injuries.
We find no clear error in the family court’s conclusion that these statutory grounds were
established by clear and convincing evidence. Although respondent is correct that petitioner did
not conclusively prove that either respondent caused the child’s injuries, all accidental causes of
his injuries were ruled out at the termination hearing. Respondents testified that the child had
been in their exclusive care between the time of his birth and the time his broken bones were
discovered. Patterfritz testified that she was the child’s primary caretaker and left him in Mayes’
sole care only twice.
Moreover, circumstantial evidence indicated that both parents had the opportunity to
prevent at least some of the child’s injuries. The medical testimony indicated that the break in
the child’s arm would have been immediately very painful, and the child would have screamed
for some time. The broken ribs would have been painful whenever the child was moved,
dressed, or bathed. Under these circumstances, there were opportunities for either parent to
discover the injuries and separate the child from the abusing parent. Finally, respondents lived
together when the injuries occurred, remained a couple throughout the pendency of the case, and
sat through all of the hearings and heard the evidence. Their denial of any knowledge of the
source of the child’s injuries indicates a “reasonable likelihood” that the child would “suffer
injury or abuse in the foreseeable future” if returned to his parents’ custody.
Patterfritz also argues that the family court erred in finding that termination of her
parental rights was warranted under §§ 19b(3)(g) and (j). The same evidence that supports
termination under §§ 19b(3)(b)(i) and (b)(ii) also supports a finding that respondents failed to
provide proper care and custody for the child, that there was no reasonable expectation that
respondents would be able to provide proper care and custody within a reasonable time, and that
there was a reasonable likelihood, based on respondents’ conduct, that the child would be harmed
if returned to respondents. In addition, the evidence indicated that of the twenty-three available
visits with the child, respondent Patterfritz attended only ten and did not show up or call for
eleven of the missed visits. Patterfritz did not complete her psychological evaluation and missed
several appointments for domestic violence counseling. Respondents argued in front of the
child, expressed their hostility towards the caseworkers, and, at the time of the termination
hearing, had no permanent home. There was no reasonable likelihood that respondents would be
able to provide care and custody for the minor child within a reasonable time, and there was
ample likelihood that the child would be harmed if returned to respondents.
Termination was also warranted under § 19b(3)(k)(iii). An orthopedic surgeon testified
that the child’s arm fracture was likely caused by a direct blow, either by an object or by a
compression of the arm as the child laid on his side. He stated that it would take “a full thrust,
with full body weight, with momentum to fracture a humerus in a child that age.” He also
thought that the injury to the child’s ribs was caused by a blow or thrust applied to the chest wall.
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The family court did not clearly err in finding that the child had been subjected to severe physical
abuse.
Respondent Mayes argues on appeal that he was never told that he had to distance himself
from respondent Patterfritz in order to avoid having his parental rights terminated, and there was
no evidence that he chose her over the child. However, respondents lived together during the
time that the child sustained his injuries, sat through all of the proceedings and heard the medical
evidence that the child’s injuries were the result of a severe trauma and must have been
intentionally or recklessly inflicted. Because respondents continued their relationship after
hearing this evidence, the court did not clearly err in determining that they had each chosen the
other over the child.
Mayes also argues that he was in compliance with his treatment plan, except for the
completion of a psychological examination. At the termination hearing, Mayes first contended
that he had completed the examination, but then, on cross-examination, stated that he had briefly
talked to the psychologist because he had trouble with the written tests. Mayes attended only
nine of the twenty-three available visits with the child and did not show up or call for twelve of
the missed visits. Contrary to Mayes’ argument, the failure to complete the psychological
examination and the missed visitations demonstrate that he was not in substantial compliance
with his treatment plan.
Finally, both respondents argue that the family court erred in finding that it was in the
child’s best interests to terminate their parental rights. Respondent Mayes contends that the
family court record is void of any mention of the child’s best interests as it relates to him and that
no evidence sustained the court’s finding that “neither parent will be in a healthy and appropriate
situation to parent him in the foreseeable future.” He maintains that he demonstrated his desire
to have custody of the child by attending parenting classes. Patterfritz argues that she showed a
willingness to make changes.
Respondents have inappropriately placed the focus of the best interests inquiry on their
own activities and desire to have custody. Once a petitioner establishes a statutory ground for
termination, the family court must terminate parental rights unless the court finds from evidence
on the whole record that termination is clearly not in the child’s best interests. MCL
712A.19b(5); MSA 27.3178(598.19b)(5); In re Trejo, 462 Mich 341, 354; 612 NW2d 407
(2000). Here, the evidence was overwhelming that the child was intentionally injured by
respondents, and their denial of the abuse strongly suggests that it would continue in the future.
As the family court stated, “[n]o one can speak for [the child] nor intervene on his behalf the next
occasion that either parent abuses him or fails to protect him. . . .” The court did not err in
concluding that termination of respondents’ parental rights was not clearly contrary to the child’s
best interests.
Affirmed.
/s/ Harold Hood
/s/ Martin M. Doctoroff
/s/ Kirsten Frank Kelly
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