In Re BridgesPosted on March 31st, 2009 No comments
This opinion was issued on February 24, 2009. It is unpublished, but it is significant because it reverses a trial court’s termination of parental rights and addresses the issue of a respondent’s invocation of his or her 5th Amendment rights in a child protection proceeding.
In this case, Respondent-mother appealed as of right a circuit court order terminating her parental rights pursuant to MCL 712A.19b(3)(b)(i) [the parent’s act caused physical injury or physical or sexual abuse and a reasonable likelihood exists that the children will suffer injury or abuse in the foreseeable future if place in the parent’s home], (ii) [the parent who had the opportunity to prevent physical injury or physical or sexual abuse of a child failed to do so and a reasonable likelihood exists that the children will suffer injury or abuse in the foreseeable future if placed in the parent’s home], and (j) [given the parent’s conduct or capacity, the children likely would suffer harm if returned to the parent’s custody]. The allegations of abuse related to whether Respondent-mother intentionally caused the death of her 10 month old child. The theory was that evidence an injury to a sibling of the children could be used to show a likelihood that the children were at a risk of harm.
Respondent is the mother of MP and JB, the two children to whom her rights were terminated. Her third child, M., died at 10 weeks. Child abuse was strongly suspected. No evidence existed indicating that Respondent ever intentionally harmed M. or otherwise inflicted the contusions noted at the time of the autopsy. The medical examiner conceded based on the evidence available to him he could not rule out a homicide took place, but he had more questions than answers. The cause of M.’s death remained purely speculative. The speculative record simply did not support the fact respondent probably caused his death.
The petition alleged that on August 30, 2007, the Lincoln Park police department dispatched officers to Respondent’s residence based on “a report of a child not breathing.” EMS personnel arrived, found M. unresponsive, and took him to the hospital, where he was “pronounced dead on arrival.” The petition asserted that M. “was observed by hospital staff and the attending officer to have bruising to the right chest cavity, right arm and other redness to the face.” According to the medical examiner, the contusions found on M.’s chest, arm, and face were consistent with the events surrounding a frantic effort to grab and hold the child while performing CPR, and did not cause or contribute to his death. Nothing in the record supported an inference any of the contusions contributed to his death in any manner.
The trial court terminated Respondent’s parental rights based on the inference that the bruising on M.’s body resulted from injuries inflicted by respondent, and identified as the sole basis for this inference the absence of any “plausible” explanation for the bruising supplied by respondent herself.
Respondent invoked her 5th Amendment right and declined to testify at trial, citing the fact that the criminal investigation into the baby’s death remained open. Although respondent’s invocation of the Fifth Amendment permitted the circuit court to draw an adverse inference, Phillips v Deihm, 213 Mich App 389, 400; 541 NW2d 566 (1995), the existence of an adverse inference did not relieve petitioner of its burden to produce clear and convincing proof of the ground for termination. See Trupiano v Cully, 349 Mich 568, 570; 84 NW2d 747 (1957). Even assuming Respondent’s failure to testify resulted in a presumption her testimony would have been unfavorable, “[t]he burden of producing evidence of a fact cannot be met by relying on this ‘presumption.’” 2 McCormick, Evidence (6th Ed), § 264, p 225; see also MRE 301. Thus, an adverse inference drawn from her invocation of her Fifth Amendment right did not shift to her the burden of proving she did not cause the bruising, and did not relieve the DHS of the need to prove a ground for termination by clear and convincing evidence. The CoA reversed and remanded to the trial court.
This case is an interesting discussion of the value of an adverse presumption based on a Repondent’s failure to testify at trial. The burden of production cannot be met based solely on this presumption and it is certainly insufficient to overcome the clear and convincing evidence hurdle.
© 2009, Melinda Deel. All rights reserved.