In Re Legoas Minors

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re LEGOAS, Minors. September 21, 2023

Nos. 364682; 364683

Oakland Circuit Court

Family Division

LC No. 21-883857-NA

Before: LETICA, P.J., and MURRAY and PATEL, JJ.

PER CURIAM.

In these consolidated appeals, respondents appeal by delayed leave granted1 the trial court’s

August 24, 2022 order, finding statutory grounds to exercise jurisdiction over respondents’ minor

children, CL and BL, under MCL 712A.2(b)(1) (parent neglects or refuses to provide proper or

necessary medical care or other care necessary for the children’s health), and (2) (the home is an

unfit place for the children to live because of neglect), and finding statutory grounds to terminate

respondents’ parental rights under MCL 712A.19b(3)(b)(i) (parent’s act caused physical injury or

physical abuse), (b)(ii) (parent failed to prevent physical injury or physical abuse), and (j)

(reasonable likelihood of harm if children returned to parent). We affirm in part, reverse in part,

and remand for further proceedings consistent with this opinion.

I. BACKGROUND

On September 26, 2021, it was determined BL, who was two months old at the time, had

a fracture to his right humerus. Child Protective Services (CPS) was contacted. Respondents, who

were BL’s sole caretakers, denied they caused the injury. Respondent-mother opined the injury

could have been caused when she briefly left BL and three-year-old CL alone in a vehicle together

on September 21, 2021. As part of a safety plan, the children were placed with their maternal

grandparents. On October 22, 2021, BL underwent a bone survey because of “concern for

nonaccidental trauma.” A radiologist compared BL’s previous diagnostic testing with the October

22, 2021 results. It reflected, in relevant part, that BL had “a healing fracture” to his right humerus.

1

In re Legoas Minors, unpublished order of the Court of Appeals, entered March 9, 2023 (Docket

Nos. 364682 and 364683).

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It was noted “[t]he previously described irregularities at the distal aspect of the left radius and ulna

are no longer appreciated. . . . The previously described irregularities at the distal aspect of the

right femur are no longer appreciated.”

Petitioner filed a petition, requesting the trial court authorize the petition, exercise

jurisdiction, and terminate respondents’ parental rights. The petition alleged BL suffered from

fractures to his humerus, femur, and radius. It was further alleged BL had subconjunctival bleeding

in his bilateral eyes. After a preliminary hearing, the trial court authorized the petition. The

children continued to be placed with their maternal grandparents, and respondents were permitted

to have supervised parenting time.

In June and July 2022, a combined adjudication trial and statutory grounds hearing was

held. The parties stipulated to the admission of the October 22, 2021 radiology report into

evidence. Respondent-mother and Children’s Protection Specialist Rosanna Kuzmyn testified.

Expert testimony was not presented. Respondent-mother testified she believed CL caused BL’s

injury on September 21, 2021. However, Kuzmyn did not believe respondent-mother’s theory was

feasible. During cross-examination, Kuzmyn was questioned extensively about the October 22,

2021 radiology report. Although Kuzmyn stated she was not familiar “with all the medical terms,”

she later agreed the October 22, 2021 radiology report only supported that BL suffered a fracture

to his humerus. The parties’ closing arguments support the understanding that the evidence

supported that BL only suffered from a fractured humerus. The trial court exercised jurisdiction

under MCL 712A.2(b)(1) and (2), and found statutory grounds for termination under MCL

712A.19b(3)(b)(i), (b)(ii), and (j). The trial court found respondent-mother’s theory as to how

BL’s humerus was fractured was not feasible. The best-interests hearing was scheduled to be held

at a later date.

Respondents filed delayed applications for leave to appeal from the August 24, 2022 order.

We granted leave, In re Legoas Minors, unpublished order of the Court of Appeals, entered March

9, 2023 (Docket Nos. 364682 and 364683), and consolidated the matters, In re Legoas Minors,

unpublished order of the Court of Appeals, entered May 31, 2023 (Docket Nos. 364682 and

364683). The trial court proceedings were stayed pending the outcome on appeal. Thereafter,

petitioner and the lawyer-guardian ad litem (LGAL) moved this Court to remand the matter to the

trial court, arguing it was necessary to present expert testimony to support that BL suffered from

multiple injuries in September 2021, that were indicative of child abuse. Petitioner and the LGAL

submitted the affidavit of Dr. Bradley J. Norat, who treated BL in September 2021. According to

Dr. Norat, BL suffered from a newly fractured humerus on September 26, 2021. Additionally, BL

had a fractured radius and femur, which were in the process of healing, and displayed

hemorrhaging to his eyes. Dr. Norat, who has been qualified as an expert in child abuse in the

past, opined the injuries could not have been caused by accidental trauma. We denied the motion

without prejudice. In re Legoas Minors, unpublished order of the Court of Appeals, entered June

1, 2023 (Docket Nos. 364682 and 364683).

II. ADJUDICATION

Respondents argue that the trial court clearly erred in determining by a preponderance of

the evidence that the children came within its jurisdiction under MCL 712A.2(b)(1) and (2). We

disagree.

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A. STANDARDS OF REVIEW

“To acquire jurisdiction, the factfinder must determine by a preponderance of the evidence

that the child comes within the statutory requirements of MCL 712A.2.” In re Miller, ___ Mich

App ___, ___; ___ NW2d ___ (2023) (Docket No. 364195); slip op at 2 (quotation marks and

citation omitted). “We review the interpretation and application of statutes . . . de novo.” In re

Ferranti, 504 Mich 1, 14; 934 NW2d 610 (2019).

This Court reviews a lower court’s determination of jurisdiction for clear error in

light of the court’s finding of fact. A finding of fact is clearly erroneous if the

reviewing court has a definite and firm conviction that a mistake has been

committed, giving due regard to the trial court’s special opportunity to observe the

witnesses. [In re Miller, ___ Mich App at ___; slip op at 2 (quotation marks and

citations omitted).]

B. RELEVANT AUTHORITY

“In Michigan, child protective proceedings comprise two phases: the adjudicative phase

and the dispositional phase.” In re Pederson, 331 Mich App 445, 463-464; 951 NW2d 704 (2020)

(quotation marks and citation omitted). The adjudicative phase determines whether the trial court

may exercise jurisdiction over the children. Id. at 464. “To properly exercise jurisdiction, the trial

court must find that a statutory basis for jurisdiction exists.” In re BZ, 264 Mich App 286, 295;

690 NW2d 505 (2004). If a trial is held, the trier of fact must find that one or more of the statutory

grounds for jurisdiction have been proven by a preponderance of the evidence. Id. “Proof by a

preponderance of the evidence means that the evidence that a statutory ground alleged in the

petition is true outweighs the evidence that that statutory ground is not true.” M Civ JI 97.37.

In relevant part, MCL 712A.2 states:

(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age

found within the county:

(1) Whose parent or other person legally responsible for the care and

maintenance of the juvenile, when able to do so, neglects or refuses to provide

proper or necessary support, education, medical, surgical, or other care necessary

for his or her health or morals, who is subject to a substantial risk of harm to his or

her mental well-being, who is abandoned by his or her parents, guardian, or other

custodian, or who is without proper custody or guardianship. . . .

(2) Whose home or environment, by reason of neglect, cruelty,

drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent

adult, or other custodian, is an unfit place for the juvenile to live in. . . . [MCL

712A.2(b)(1) and (2).]

“Because MCL 712A.2 speaks in the present tense, . . . the trial court must examine the

child[ren]’s situation at the time the petition was filed. To properly find jurisdiction over []

child[ren], at least one statutory ground must be proven.” In re Miller, ___ Mich App at ___; slip

op at 5 (first alteration in original; quotation marks and citations omitted).

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C. APPROPRIATE EVIDENCE TO CONSIDER RELATING TO THE TRIAL COURT’S

JURISDICTIONAL DECISION

As noted by respondents, petitioner relies extensively on evidence that was presented at

the December 3, 2021 preliminary hearing to support the trial court did not clearly err by finding

statutory grounds to exercise jurisdiction. Specifically, petitioner relies on Kuzmyn’s December

3, 2021 testimony. This is improper. At the December 3, 2021 hearing, Kuzmyn often relied on

the out-of-court statements of medical providers to support that BL suffered from multiple injuries.

This testimony amounts to hearsay. See MRE 801(c). While this testimony was proper in the

context of the preliminary hearing, see MCR 3.965(B)(12), the rules of evidence applied at the

adjudication trial, see MCR 3.972(C)(1). Additionally, there is no indication the trial court was

aware of this testimony. Indeed, the trial court did not preside over the December 3, 2021

preliminary hearing. Therefore, we will only consider the evidence presented at the adjudication

trial when analyzing the trial court’s finding that it was proper to exercise jurisdiction.

Petitioner also argues that the October 22, 2021 radiology report supports that BL suffered

from fractures to his left radius and right femur, which were in different stages of healing than the

right humerus fracture. However, expert testimony was necessary to interpret the radiology report.

Indeed, interpreting a radiology report requires knowledge that belongs more to an expert than to

the common person. See King v Taylor Chrysler-Plymouth, Inc, 184 Mich App 204, 215; 457

NW2d 42 (1990). Additionally, expert testimony would have undoubtedly aided the trial court in

making its ultimate decision. See id.

The need for expert testimony is highlighted by the confusion that ensued at the

adjudication trial. Indeed, Kuzmyn and the attorneys appeared to be confused as to the meaning

of the term “appreciated.” After being asked about the October 22, 2021 radiology report, Kuzmyn

noted she was “not familiar with all the medical terms. . . .” Later, when asked if the “only

evidence” presented supported “evidence of one humerus fracture,” Kuzmyn responded: “Yes,

sir.” Petitioner conceded this during closing arguments, noting that “at least at some point,” “there

was a thought of . . . another break in the left radius and the right femur but those were not

appreciated following further investigation by the doctors.” Respondents and the LGAL also

solely focused on the humerus fracture during closing arguments. We decline to analyze the

October 22, 2021 radiology report without the benefit of expert testimony. We also decline to

consider evidence that BL had conjunctival bleeding in both eyes when deciding whether the trial

court properly exercised jurisdiction. Indeed, no evidence concerning bleeding in BL’s eyes was

presented at the adjudication trial.

D. THE TRIAL COURT’S DECISION TO EXERCISE JURISDICTION UNDER MCL

712A.2(b)(1)

With respect to the trial court’s decision to exercise jurisdiction under MCL 712A.2(b)(1),

the trial court found BL’s right humerus was fractured and respondents did not have a plausible

explanation for the fracture. The trial court did not clearly err. As noted by the trial court,

respondent-mother testified she and respondent-father cared for the children at all relevant times.

Thus, it reasonably follows BL was in the care of both respondents, respondent-father, or

respondent-mother when the injury occurred.

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Respondents were initially unable to explain how the injury occurred. Later, however,

respondent-mother opined that BL was injured on September 21, 2021, when he was alone in the

vehicle with CL for 30 seconds to one minute. Respondent-mother believed CL grabbed BL’s arm

or hit BL’s arm. The trial court found this explanation to be implausible. While respondents are

correct that there is no medical evidence to support that the explanation is not plausible, CL was

only three years old when the injury occurred. It is reasonable to question how CL could have

broken BL’s humerus in such a short period of time when he was partially restrained in a car seat.

Moreover, BL was seen by medical professionals on September 25, 2021. According to

respondent-mother, they fully evaluated BL, and a fractured humerus was not detected. This

evidence supports BL did not fracture his humerus on September 21, 2021, as opined by

respondent-mother.

Even if CL did cause BL’s injury, the injury would have occurred on September 21, 2021.

Respondent-father did not notice the injury despite being BL’s sole caregiver for twelve hours

each day in the three days following September 21, 2021. Although BL was exhibiting signs of

distress, respondent-mother did not take BL to receive medical attention until the evening of

September 25, 2021. Consequently, even if CL caused the injury on September 21, 2021,

respondents failed to detect it for several days. A preponderance of the evidence supports

respondents, who were legally responsible for the care and maintenance of BL, neglected to

provide BL with the proper or necessary medical care. See MCL 712A.2(b)(1).

While there is no evidence respondents failed to properly care for CL, “the doctrine of

anticipatory neglect allows an inference that a parent’s treatment of one child is probative of how

that parent may treat other children.” In re Kellogg, 331 Mich App 249, 259; 952 NW2d 544

(2020). Given the lack of evidence the children had different needs, evidence of respondents’

treatment of BL is highly probative of how respondents will treat CL. See id. The trial court did

not clearly err in determining by a preponderance of the evidence that CL came within the statutory

requirements of MCL 712A.2(b)(1). Because it was proper for the trial court to exercise

jurisdiction under MCL 712A.2(b)(1), we need not specifically consider the additional ground

upon which the trial court based its decision.2 See In re Miller, ___ Mich App at ___; slip op at 5

(only one statutory ground must be proven to properly find jurisdiction over children). Given this

holding, it is unnecessary to consider whether it is proper to remand the matter to the trial court

for consideration as to whether a new adjudication trial is necessary.

III. STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

2

Respondents argue the trial court failed to consider their circumstances individually and instead

considered them “jointly.” However, evidence presented at the adjudication trial established

respondents were BL’s sole caretakers. It is undisputed BL suffered from a fractured humerus.

Respondent-father did not offer an explanation as to how the injury occurred, and respondent-

mother did not offer a plausible explanation as to how the injury occurred. Given the record

evidence, the trial court was left with no choice but to consider respondents jointly.

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Respondents next argue the trial court clearly erred by finding that statutory grounds for

terminating their parental rights were established by clear and convincing evidence under MCL

712A.19b(3)(b)(i), (b)(ii), and (j). We agree.

A. STANDARDS OF REVIEW

“We review for clear error the trial court’s finding that there are statutory grounds for

termination of a respondent’s parental rights.” In re Atchley, 341 Mich App 332, 343; 990 NW2d

685 (2022). “A finding of fact is clearly erroneous if the reviewing court has a definite and firm

conviction that a mistake has been committed, giving due regard to the trial court’s special

opportunity to observe the witnesses.” In re Miller, ___ Mich App at ___; slip op at 2 (quotation

marks and citation omitted). “We review the interpretation and application of statutes . . . de

novo.” In re Ferranti, 504 Mich at 14.

B. ANALYSIS

“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 Pederson, 331 Mich App at 472 (quotation marks and citation omitted). Importantly, the

clear and convincing evidence standard is “the most demanding standard applied in civil cases[.]”

Id. (alteration in original; quotation marks and citation omitted).

Evidence is clear and convincing if it produces in the mind of the trier of fact a firm

belief or conviction as to the truth of the allegations sought to be established,

evidence so clear, direct and weighty and convincing as to enable the factfinder to

come to a clear conviction, without hesitancy, of the truth of the precise facts in

issue. [Id. (quotation marks and citation omitted).]

The trial court “may take into consideration any evidence that had been properly introduced

and admitted at the adjudication trial . . . .” In re Mota, 334 Mich App 300, 316; 964 NW2d 881

(2020). The trial court may also consider “any additional relevant and material evidence that is

received by the court at the termination hearing . . . .” Id. Thus, we will consider all the evidence

presented at the combined bench trial and statutory grounds hearing when analyzing whether the

trial court clearly erred by finding statutory grounds for termination of respondents’ parental rights.

For the reasons already discussed above, we will focus solely on BL’s humerus fracture.

The trial court found grounds for terminating respondents’ parental rights were established

under MCL 712A.19b(3)(b)(i), (b)(ii), and (j). In relevant part, MCL 712A.19b(3) authorizes

termination when:

(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.

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(ii) The parent who had the opportunity to prevent the physical injury or

physical or sexual abuse failed to do so and the court finds that there is a reasonable

likelihood that the child will suffer injury or abuse in the foreseeable future if placed

in the parent’s home.

* * *

(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.

As argued by petitioner, this Court has held that termination of parental rights under MCL

712A.19b(3)(b)(i), (b)(ii), and (j), “is permissible even in the absence of definitive evidence

regarding the identity of the perpetrator when the evidence does show that the respondent or

respondents must have either caused or failed to prevent the child’s injuries.” In re Ellis, 294 Mich

App 30, 35-36; 817 NW2d 111 (2011). In In re Ellis, the respondents lived together in a small

apartment and were the only individuals who provided care for their child. Id. at 35. Expert

testimony at trial indicated the child “suffered numerous nonaccidental injuries” that were “highly

indicative of child abuse, using a very high force of impact, and inconsistent with any sort of

accident.” Id. at 32, 35. The injuries “were in various stages of healing,” which allowed for an

inference that the child “had suffered multiple instances of abuse over a prolonged time.” Id. at

35. A physician testified that, because of the injuries, the child would have “shown signs of distress

at least periodically.” Id. The respondents were unable to “offer any plausible alternative

explanation” for the child’s injuries. Based on this evidence, this Court concluded “the trial court

properly determined that at least one of [the respondents] had perpetrated the abuse and at least

one of them had failed to prevent it; consequently, it did not matter which did which.” Id.

This case bears some similarities to In re Ellis. Indeed, like the parents in In re Ellis,

respondents lived together and were the sole caretakers of BL, who is purported to have been

abused and injured. However, as noted by respondents, unlike in In re Ellis, expert testimony was

not presented to support BL’s humerus fracture was intentionally inflicted. Only respondent-

mother and Kuzmyn testified at the combined adjudication trial and statutory grounds hearing.

Kuzmyn noted she spoke with Dr. Norat. However, Kuzmyn’s testimony about this is not clear.

When asked if she did not believe respondent-mother’s explanation for BL’s fractured humerus,

Kuzmyn stated: “This was her explanation and consulting with the [sic] Dr. Norat did not agree

that the (audio cut out) explanation.”3

Additionally, as noted by respondents, in In re Ellis, it was significant the child had

numerous nonaccidental injuries in various stages of healing, and there was testimony the child

would have shown signs of distress because of his injuries. In re Ellis, 294 Mich App at 35. Those

facts allowed for an inference that the abuse would have been apparent to the nonabusive parent,

given that it occurred on more than one occasion and over an extended period of time. Id. As

noted by respondents in this case, however, the parties and the trial court focused solely on one

3

Although the trial occurred in the summer of 2022, for some reason the combined adjudication

trial and statutory grounds hearing was conducted remotely.

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injury: the fractured humerus. Therefore, there is no record evidence to support that BL suffered

injuries before, at the earliest, September 21, 2021, and, as a result, it reasonably follows that the

nonabusive parent would not have been able to detect any injuries on BL before that date. The

record is also devoid of any evidence suggesting CL sustained any injuries indicative of child

abuse. Indeed, it is undisputed respondents had not been involved in a CPS investigation before

the proceedings at issue in this appeal. There is nothing to suggest the nonabusive parent was

aware of the need to protect the children from an abuser.

As already stated, the clear and convincing evidence standard is “the most demanding

standard applied in civil cases[.]” See In re Pederson, 331 Mich App at 472 (alteration in original;

quotation marks and citation omitted). Because it was not established by clear and convincing

evidence that either respondent abused BL, the trial court clearly erred by finding statutory grounds

to terminate respondents’ parental rights under MCL 712A.19b(3)(b)(i). Additionally, because it

is unclear who or what caused BL’s humerus fracture and because the record does not support that

either respondent failed to prevent abuse, the trial court also clearly erred by finding statutory

grounds to terminate respondents’ parental rights under MCL 712A.19b(3)(b)(ii). For these same

reasons, the trial court clearly erred by finding statutory grounds to terminate respondents’ parental

rights under MCL 712A.19b(3)(j). Cf. In re VanDalen, 293 Mich App 120, 140-141; 809 NW2d

412 (2011) (holding termination of the respondents’ parental rights was proper under MCL

712A.19b(3)(j) where expert testimony established the children’s “injuries were the direct result

of repeated, brutal abuse perpetrated by [the] respondents”).

IV. CONCLUSION

We affirm the trial court’s decision to exercise jurisdiction. However, we reverse the trial

court’s finding that statutory grounds existed to terminate respondents’ parental rights and remand

to the trial court for further proceedings. If petitioner continues to seek to terminate respondents’

parental rights at the initial dispositional hearing on remand, the trial court must make the requisite

findings of aggravated circumstances under MCL 712A.19a(2)(a). We do not retain jurisdiction.

/s/ Anica Letica

/s/ Christopher M. Murray

/s/ Sima G. Patel

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