IN RE DEWEY LEE SCOTT BUTCHER MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DEWEY LEE SCOTT
BUTCHER, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
October 22, 2009
Petitioner-Appellee,
v
No. 291358
Allegan Circuit Court
Family Division
LC No. 08-042980-NA
DAVID BUTCHER,
Respondent-Appellant,
and
ELAINA BUTCHER and JAMES WILLIAMSON,
Respondents.
Before: Fort Hood, P.J., and Sawyer and Donofrio, JJ.
PER CURIAM.
This appeal arises from the termination of respondent’s parental rights to the minor,
Dewey Butcher (DOB 7/21/08), based on allegations that he physically abused another of the
mother’s children, Hannah Baptiste (DOB 12/12/06).1 We affirm the termination of
respondent’s parental rights, vacate in part, and remand for further proceedings consistent with
this opinion.
Underlying this termination is respondent’s no-contest plea to second-degree child abuse
after Hannah was brought to the hospital in April 2008 with symptoms of having been shaken.
Respondent was taking care of Hannah at the time and he was the only adult present.
Respondent claimed that Hannah had been dropped or had fallen. The trial court terminated
respondent’s rights after finding clear and convincing evidence supporting four statutory
grounds:
1
Respondent Williamson is Hannah’s father.
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MCL 712A.19b(3)(b): The child or a sibling of the child has suffered
physical injury or physical or sexual abuse under 1 or more of the following
circumstances:
(i) The parent’s act caused the physical injury or physical or sexual 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[,]
MCL 712A.19b(3)(g): The parent, without regard to intent, fails to
provide proper care or custody for the child and there is no reasonable expectation
that the parent will be able to provide proper care and custody within a reasonable
time considering the child’s age[,]
MCL 712A.19b(3)(j): There is a reasonable likelihood, based on the
conduct or capacity of the child’s parent, that the child will be harmed if he or she
is returned to the home of the parent[, and]
MCL 712A.19b(3)(k): The parent abused the child or a sibling of the
child and the abuse included 1 or more of the following:
***
(iv) Loss or serious impairment of an organ or limb.
In order to terminate parental rights, the trial court must find that at least one of the
statutory grounds for termination set forth in MCL 712A.19b(3) has been proven by clear and
convincing evidence. In re Sours, 459 Mich 624, 632-633; 593 NW2d 520 (1999). If at least
one ground is so proven, the court must terminate the parent’s rights if it finds termination is in
the child’s best interests. MCL 712A.19b(5), In re Hansen, ___ Mich App ___; ___ NW2d ___
(Docket No. 289903, issued July 21, 2009). We review for clear error the trial court’s findings
that a ground for termination has been established. MCR 3.977(J); In re Rood, 483 Mich 73, 9091 (Corrigan, J.); 126 n 1 (Young, J.); 763 NW2d 587 (2009). We also review the trial court’s
findings regarding the child’s best interest under the clearly erroneous standard. MCR 3.977(J);
Rood, supra. A finding is clearly erroneous if, although there is evidence to support it, we are
left with a definite and firm conviction that a mistake has been made. In re JK, 468 Mich 202,
209-210; 661 NW2d 216 (2003).
First, we note that the trial court made no finding that termination of respondent’s rights
was in the child’s best interest. This is clear error. In re Hansen, supra. The court did conduct
a “best interest” analysis, but only as concerning termination of the mother’s rights. Nor do we
find clear evidence in the record that termination was in the child’s best interest. Respondent
presented evidence showing that he had a history of providing appropriate care for small
children. We therefore remand for the trial court to consider whether termination of
respondent’s rights was in the child’s best interest and to identify the factual support for its
conclusion.
Second, we reverse the trial court’s decision that termination was appropriate under three
of the four grounds it identified. However, because we conclude termination was correct under
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the fourth ground, we affirm the decision that termination was supported by clear and convincing
evidence. Three of the grounds, (3)(b)(i), (3)(g), and (3)(j), require a finding of a reasonable
likelihood the potential for harm would continue. The court based its decision on the fact that
respondent insisted Hannah’s injuries occurred because she had fallen into the bathtub, despite
the treating physician’s testimony that the only plausible explanation in this case was that
respondent had shaken Hannah significantly, and because respondent initially told the physicians
that she had fallen when her playpen tipped over. The court concluded without evidence that
therapy would be useless unless respondent first admitted to shaking Hannah. Nothing supported
this conclusion: there was no evidence that respondent could not, through counseling or
parenting classes, become able to refrain from uncontrolled outbursts, no expert testified that
people who shake babies cannot learn to control themselves, and no psychological evaluation
was done on respondent. In contrast, there was considerable evidence presented by respondent
that he had cared for small children numerous times without problems. There was also no
evidence that respondent would again conceal facts from physicians, once he understood the
importance of it. He testified that he did not think the manner of the fall mattered, as long as
they knew she had hit her head. Even if none of respondent’s testimony is believed, the
incontrovertible fact is that he immediately sought medical treatment for Hannah, despite his
culpability. Only speculation leads to the conclusion of a reasonable likelihood of harm to the
child if returned to respondent and therefore the trial court erred in terminating his rights based
on those grounds.
However, the fourth ground for termination, (3)(k)(iv), does not require a finding that
harm is likely to recur. All that the court had to find was that respondent physically abused
Hannah and that the abuse caused the loss or serious impairment of an organ or limb. The court
did not clearly err in finding this ground adequately supported by the evidence. The fact that
Hannah continued to suffer partial peripheral blindness was undisputed; in addition, she had
some paralysis that she apparently managed to overcome, and there was testimony that she had
“dead matter” in her brain that could cause seizures as a result of being shaken. Even if we did
not find this evidence clear and convincing, we have on occasion upheld termination under a
different subsection of § 19b than the one considered by the trial court. See, e.g., In re Powers,
208 Mich App 582; 528 NW2d 799 (1995); In re Kellogg, 157 Mich App 148; 403 NW2d 111
(1987); In re Bailey, 125 Mich App 522, 527; 336 NW2d 499 (1983). In this case, there is no
dispute that Hannah’s injuries were life-threatening, and the trial court did not clearly err in
finding respondent’s conduct amounted to abuse. Thus, termination would be appropriate under
MCL 712A.19b(3)(k)(v), as well.
We affirm the trial court’s termination of respondent’s parental rights, but vacate the
finding that termination was in the child’s best interests, and remand for the trial court to
determine whether termination is in the child’s best interests; the trial court shall cite evidence
supporting its decision. We retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ David H. Sawyer
/s/ Pat M. Donofrio
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