IN RE ASHLEY MARTELL-SANCHEZ MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ASHLEY MARTELLSANCHEZ, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
May 26, 2009
Petitioner-Appellee,
v
No. 288617
Wayne Circuit Court
Family Division
LC No. 08-478653-NA
JENNIFER MARTELL-SANCHEZ,
Respondent-Appellant,
and
HECTOR RENE TUBENS-MENDEZ and
RONALD MULLINS,
Respondents.
Before: Jansen, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
Respondent Ashley Martell-Sanchez appeals as of right the trial court order terminating
her parental rights to the minor child pursuant to MCL 712A.19b(3)(g) and (j). We affirm.
The trial court did not clearly err in finding that the statutory grounds for termination of
respondent’s parental rights were proven by clear and convincing evidence. In re Trejo, 462
Mich 341, 356-357; 612 NW2d 407 (2000); In re McIntyre, 192 Mich App 47, 50; 480 NW2d
293 (1991).
The almost two-year-old minor child was taken to the hospital by respondent and her
live-in boyfriend, Mr. Comarena, because the child had been vomiting and had a loss of appetite.
The initial diagnosis was possible hepatitis because of elevated liver enzymes. An ultrasound
revealed fluid in the abdomen, and a CT scan confirmed the fluid as blood and revealed a
laceration to the liver. The liver laceration was considered a moderate laceration. On further
physical examination, bruises were found on the bridge of the minor child’s nose, her abdomen,
the back of her hand, and her leg. The bruises were suspicious because of their locations.
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Respondent and Mr. Comarena were questioned about whether the minor child had been in an
automobile accident or had had a fall from a significant distance. They denied any accidents.
They were also questioned about the possibility of intentional blunt trauma to the minor child’s
abdomen and denied this as well. Respondent telephoned the minor child’s babysitter who
denied knowledge of any accidents, falls, or intentional blunt trauma. Respondent reported that
the only people who cared for the minor child were herself, Mr. Comarena, and the babysitter.
Three physicians, all of whom had been qualified as experts in their field pursuant to
MRE 702, testified with regard to the diagnosis of a lacerated liver, the potential causes of a
lacerated liver, and their conclusion that the injury had been intentionally inflicted absent the
occurrence of an accidental trauma. Respondent failed to accept the diagnosis of a lacerated
liver and argued that the minor child’s symptoms arose as the result of an antibiotic prescribed
for a rash in the minor child’s ears and a vaccine for hepatitis A. She continued a relationship
with the minor child’s babysitter and continued to live with Mr. Comarena, despite the experts’
diagnosis that the minor child had suffered a lacerated liver as the result of intentional blunt
trauma to her abdomen.
The evidence is clear and convincing that respondent did not provide proper care and
custody with respect to the minor child. The minor child suffered a moderately severe liver
laceration. Respondent’s failure to recognize the severity of the situation and take steps to insure
that the minor child would not be intentionally injured again is evidence of her inability to
provide proper care and custody within a reasonable time considering the age of the minor child.
Moreover, her failure to take necessary steps so that this would not happen again is evidence that
there is a reasonable likelihood that the minor child would be harmed if returned to respondent’s
care.
While medical science is not exact, and there are situations where mistakes are made and
adverse reactions occur that have not been reported in the medical literature, there is no question
that the minor child suffered a lacerated liver. Respondent does not even acknowledge that this
injury occurred. The experts opined that typically this type of injury occurs as the result of some
type of blunt force, whether it is accidental or intentional. They did not believe that a hepatitis A
shot could have resulted in the lacerated liver. While respondent raised some doubt, albeit small,
with regard to the possibility of the liver injury being the result of the hepatitis A shot,
respondent was unwilling to look at the other possible causes of the minor child’s injury. If the
minor child had been intentionally injured, and respondent had not herself caused the injury, a
reasonable parent would explore the other causes of injury and remove them from the
environment where they would have access to the minor child. A reasonable parent would do
what was in her power to insure that that the minor child was not injured again.
Respondent raises seven arguments as challenges to the trial court’s determination. This
Court does not reverse the lower court’s decision based on any of these arguments.
Respondent’s arguments that the trial court may not terminate her parental rights based on
circumstantial evidence, without direct evidence regarding the cause of the injury, and without
evidence that respondent’s actions or inactions caused the injury, are without merit. There is no
question that the child was injured while in the care and custody of respondent, that respondent
failed to acknowledge the injury, and that respondent failed to take reasonable steps to insure that
the injury would not happen again. Respondent’s argument that her poor English skills
prohibited her from understanding all of the proceedings fails to take into account the interpreter
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that was provided to her throughout the proceedings. Moreover, several instances occurred
throughout the trial in which the witness was asked to slow down to accommodate the
interpreter. Respondent’s argument that the trial judge incorrectly failed to admit evidence from
the manufacturer of the hepatitis A vaccine does not acknowledge that the information
respondent attempted to admit was not relevant because it applied to the adult vaccine and not
the child vaccine. While respondent argues that she did not know what happened to the minor
child and should not be blamed for the injury, this ignores the fact that she refused to
acknowledge that the injury existed and failed to take reasonable steps, in absence of a plausible
explanation, to insure the minor child’s safety in the future. Finally, criminal proceedings are not
a precursor or requirement to termination of a parent’s parental rights. See In re Mu, 264 Mich
App 270, 279; 690 NW2d 495 (2004).
"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
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 for clear error the trial court’s best interests
decision. Trejo, supra at 356-357.
The trial court did not clearly err in its best interests determination. While it appeared
that respondent had taken good care of the minor child in the past, respondent did not care for the
minor child in a manner that was in her best interests with respect to the incident that resulted in
the filing of the petition. Respondent chose to ignore the experts’ opinions with regard to the
injury sustained by the minor child, refusing to acknowledge her daughter’s lacerated liver. She
did not question whether the minor child’s babysitter or Mr. Comarena could have been
responsible for the injury, instead choosing to blame it on the hepatitis A vaccine the minor child
received five days before and/or an antibiotic the minor child was taking. It was in the best
interests of the minor child to terminate respondent’s parental rights under these circumstances.
Returning the minor child to respondent’s care would put the child at risk of harm.
Affirmed.
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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