IN RE JAILEN GORDON MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JAILEN GORDON, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
December 22, 2009
Petitioner-Appellee,
v
No. 292592
Wayne Circuit Court
Family Division
LC No. 08-483656-NA
SHONNEY GORDON,
Respondent-Appellant,
and
JAMES K. CLARK,
Respondent.
Before: Murphy, C.J., and Jansen and Zahra, JJ.
PER CURIAM.
Respondent Shonney Gordon appeals as of right from the trial court’s order terminating
her parental rights to the minor child under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(iii).
Respondent raises two issues. First, respondent maintains that the statutory grounds for
termination were not established by clear and convincing evidence.1 Second, respondent
maintains the trial court erred when it failed to determine whether termination of her parental
rights was in the best interest of the child, pursuant to MCL 712A.19b(5). For the reasons set
forth below, we conclude there is no merit to either issue raised by respondent. We affirm. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
1
In the first issue presented in respondent’s brief on appeal, she also argues that termination was
not in the best interest of the child. We address the merits of this argument while addressing
respondent’s second issue on appeal.
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I. Basic Facts and Procedure
Respondent called 911 because Jailen, then 18 months old, suffered severe burns on the
soles of his feet. Jailen’s injuries occurred around 7:30 to 7:45 p.m., but respondent did not call
911 until 8:30 p.m. Respondent delayed because she was nervous and thought that Protective
Services would take her child from her. When the police arrived at respondent’s apartment, the
apartment was filthy with dirty dishes piled up, laundry all over, and old food on the countertops.
When the emergency medical services (“EMS”) and the fire department arrived and asked
respondent what had happened, she immediately asked if they were going to call Protective
Services. Respondent told Officer Brian Hancock, who responded to her 911 call, that she had
been bathing Jailen in the bathroom sink. He had been sitting on the countertop when she turned
away from him to grab a washcloth. When Jailen screamed, she turned back to him. She
thought that Jailen must have hit the faucet with his arm or leg and turned the hot water on.
While Hancock was at the apartment, he found a marijuana cigarette on the living room floor.
Respondent admitted that it was hers and that she had smoked marijuana around 3:00 p.m. that
afternoon. Hancock reported the incident to Protective Services.
When Jailen was at the hospital, his doctors discovered that his height and weight were
far below the fifth percentile for his age. A failure to thrive is a failure to grow normally, and
any child whose height and weight falls below the fifth percentile is automatically diagnosed as
failure to thrive. Petitioner filed an original petition for the termination of respondent’s parental
rights.
II. Standard of Review
In order 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 met by clear and convincing
evidence. In re McIntyre, 192 Mich App 47, 50; 480 NW2d 293 (1991). The trial court must
also find clear and convincing evidence that termination of respondent’s parental rights was in
the child’s best interests. MCL 712A.19b(5). This Court reviews a trial court’s factual findings
in an order terminating parental rights for clear error. MCR 3.977(J); In re Miller, 433 Mich
331, 337; 445 NW2d 161 (1989). A finding of fact is clearly erroneous, if although there is
evidence to support it, the reviewing court is left with the definite and firm conviction that a
mistake has been made. In re Miller, supra.
III. The Evidence Supporting the Statutory Grounds for Termination
Clear and convincing evidence established the statutory grounds for termination of
respondent’s parental rights. There was no dispute that Jailen suffered severe physical injury.
MCL 722.628(3)(c) defines severe physical injury as an injury to a child that requires
hospitalization and seriously impairs the child’s health or well-being. Mary Lu Angelilli, the
Children’s Hospital pediatrician who reviewed Jailen’s case and interviewed respondent because
of suspected abuse, testified that Jailen suffered from second-degree burns and that he received
treatment for the burns in the hospital from November 11 to 15, 2008. Angelilli stated that
second degree burns were very painful and that the doctors gave Jailen Tylenol with Codeine and
Motrin for his pain. Angelilli did not believe that Jailen’s injuries were consistent with
respondent’s explanation of how the burns occurred. Angelilli concluded that Jailen’s burns
were intentionally inflicted and not accidental. Angelilli thought that Jailen’s burns, which were
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in a contiguous area that went from the soles of his feet around the sides extending partially to
the top, were consistent with injuries suffered by a child who was unable to move his feet from
hot water.
Respondent had changed her version of what caused Jailen’s injuries several times. The
version she told Angelilli and Hancock was different than both her trial testimony and the
version she told Sergeant James Howell and Judy Carruthers, the officer and Protective Services
worker who interviewed her at the hospital. Regardless, respondent’s versions of events were
inconsistent with Jailen’s actual injuries. If Jailen had been sitting on the edge of the sink with
the water coming out of the faucet, Angelilli expected that the top and center of his feet would
have been burned, he would have had individual splash marks on his feet and legs and the soles
of his feet would have been less significantly burned because he would have lifted his feet out of
the water. If Jailen had been sitting in the sink, Angelilli would have expected burns on other
parts of Jailen’s body and splash marks caused by Jailen lifting his feet up and down to get them
out of the water. Thus, the medical testimony demonstrated that the child’s injuries were not
consistent with respondent’s explanation.
There was a reasonable likelihood that the child would suffer injury or abuse if returned
to respondent’s care. Respondent insisted that Jailen’s injuries were caused when he accidentally
flipped the faucet to hot, even after the medical testimony ruled that out as a cause of Jailen’s
injuries. Given respondent’s lack of truthfulness about the incident combined with respondent’s
concern about what would happen to her after she called 911, there was a reasonable likelihood
that the child would suffer injury in the foreseeable future.
In addition to Jailen’s burns, he was suffering from a failure to thrive. Jailen’s height and
weight were far below the fifth percentile. If a child’s height and weight fall below the fifth
percentile, he is automatically diagnosed as failure to thrive. Jailen was about the size of a sixto eight-month-old infant. Angelilli testified that Jailen’s height and weight were far from
normal and that genetics or picky eating did not explain height and weight that far below normal.
Respondent listed a number of trivial reasons why Jailen may have been underweight, but did not
express concern about his condition. Angelilli thought that respondent fed Jailen an inadequate
number of calories. Respondent gave Jailen two cups of water, two cups of juice, two cups of
milk, and very little solid food every day. Jailen’s diet should have consisted primarily of solid
food and his amount of fluid intake should have been limited to 20 ounces per day. Angelilli
found Jailen’s overall health to be good, which ruled out another illness hindering his growth.
In sum, clear and convincing evidence supported the statutory bases for termination.
Respondent’s child suffered second-degree burns while in her care and her version of events was
inconsistent with his injuries. Respondent fed Jailen a liquid diet, which led to his height and
weight falling way below normal, and classifying him as a failure to thrive. Respondent’s
response to both of these conditions demonstrated a complete lack of understanding of the
conditions themselves and her responsibility for them. Given respondent’s denial of abuse and
responsibility for his lack of growth, there was no reasonable expectation that respondent would
be able to properly care for Jailen.
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IV. Best Interest Finding
Respondent next argues that the trial court erred because it failed to address the child’s
best interests. The trial court did address the child’s best interests but applied the wrong
standard. While the trial court clearly erred in applying the wrong standard for the child’s best
interests, the trial court’s error was harmless and does not require reversal. MCR 2.613(A).
While the trial court did not find that termination of respondent’s parental rights was in the
child’s best interests, the record supports that conclusion if the trial court had applied the proper
standard. There is no reasonable probability that the trial court’s error affected the outcome of
the trial. People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
Affirmed.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Brian K. Zahra
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