• Bankruptcy (1)
• Contracts (1)
• Criminal Law (1)
• Employment & Labor Law (1)
• Family Law (1)
• Real Property (1)
• Termination of Parental Rights (4)

Bankruptcy

 

This summary also appears under Family Law

 

Issues: Chapter 7; Whether an unscheduled asset that the trustee partially administered should be deemed abandoned to the debtor's ex-wife; 11 USC § 554(c) and (d); Whether a stipulation is voidable; 11 USC § 362; Easley v. Pettibone MI Corp.; "Abandonment by operation of law" or "technical abandonment"; LPP Mtg., Ltd. v. Brinley; In re Reiman (Bankr. ED MI); "Unless the court orders otherwise"; Stark v. Moran (In re Moran); Automatic abandonment; Olson v. Aegis Mtg. Corp. (In re Bloxsom) (Bankr. WD MI); DeVore v. Marshack (In re DeVore) (BAP 9th Cir.); "Fail safe" provision (§ 554(d)); Mele v. First Colony Life Ins. Co. (D DC); Relief from judgment; Fed.R.Civ.P. 60(b); Effect of the debtor's failure to list an asset on his schedules; Cundiff v. Cundiff (In re Cundiff) (BAP 6th Cir.); Darrah v. Franklin Credit (In re Darrah) (Bankr. ND OH); Vreugdenhill v. Navistar Int'l Transp. Co. (8th Cir.); Debtor's affirmative duty; Magana-Lopez v. JPMorgan Chase Bank, N.A. (In re Magana-Lopez) (Bankr. CD CA); Charboneau v. Jordan (Unpub. ED MI); In re Prospero (Bankr. CD CA); Interpreting bankruptcy statutes containing the phrase "unless the court orders otherwise"; In re Acosta-Rivera (1st Cir.); G & J Invs. v. Zell (In re Zell) (Bankr. SD OH); Whether a technical abandonment under § 554(c) may be revoked; Spear v. Schafler (In re Schafler) (ND CA); Neville v. Harris (D NJ); In re Johnson (Bankr. D MT); In re Gonzales (Bankr. CD CA)

Court: U.S. Bankruptcy Appellate Panel Sixth Circuit

Case Name: In re DeGroot

e-Journal Number: 53611

Judge(s): Emerson, Harris, and Shea-Stonum

 

The court held that the bankruptcy court did not abuse its discretion in determining that an unscheduled asset the trustee had partially administered should be deemed abandoned to the debtor's ex-wife pursuant to §§ 554(c) and (d). Thus, the court affirmed the bankruptcy court's decision. Debtor's ex-wife was ordered as part of their divorce to pay him $48,000 for his share in the marital property (the receivable). After she made the first payment, debtor filed for bankruptcy. During the bankruptcy, the parties agreed to extinguish the remainder of the receivable. However, debtor's ex-wife later found that the lien on the home was not removed. The trustee successfully moved to reopen the bankruptcy case. The bankruptcy court eventually found that the balance of the receivable should be abandoned. The court held that the bankruptcy court did not err in finding that it had discretion under §§ 554(c) and (d) to order abandonment of the receivable to debtor's ex-wife. The bankruptcy court concluded that the receivable had not been abandoned under § 554(c), but that it could deem the receivable abandoned to debtor's ex-wife pursuant to the "unless the court orders otherwise" language found in §§ 554(c) and (d). The bankruptcy court was not revoking any type of abandonment since the receivable remained property of the estate when the case was closed pursuant to § 554(d). The bankruptcy court determined that appropriate circumstances existed that warranted invoking its discretion to order otherwise under §§ 554(c) and (d). Debtor did not list the receivable on his bankruptcy schedules although he disclosed it at his § 341 meeting of creditors and explained why he did not list it on his schedules. The trustee "failed to properly administer the asset in violation of his statutory duties to 'collect and reduce to money the property of the estate.'" There was no question that the trustee knew about the receivable - he filed a notice of assignment of lien in the county recorder's office and thus, exerted control over the property and the right to payment of any money that came due under the receivable. While debtor's failure to list the receivable on his schedules technically meant that the property remained property of the estate when the case was closed, the trustee's partial administration of the receivable, followed by his filing a no asset report and certifying that he had performed the duties required under § 704, weighed "heavily in allowing the bankruptcy court to now 'order otherwise.'" The bankruptcy court reasoned that the only person who seemed to have suffered as a result of the failure of debtor and the trustee to comply with their statutory duties was the ex-wife. Thus, the bankruptcy court concluded that although the receivable technically remained property of the estate under § 554(d), appropriate circumstances existed to "order otherwise" and deem the receivable abandoned. The court concluded that the bankruptcy court's finding that this discretionary decision was necessary in order to prevent a "miscarriage of justice" and to mitigate unfair consequences of §§ 554(c) and (d)'s default rules was not an abuse of discretion.

 

Contracts

 

This summary also appears under Real Property

 

Issues: Whether the purchase and sale (P & S) agreement's integration clause barred plaintiffs' fraud action; Walsh v. Taylor; Motion for a directed verdict; Sniecinski v. Blue Cross & Blue Shield of MI; Purpose of an integration clause; Coal Res., Inc. v. Gulf & W. Indus., Inc. (6th Cir.); UAW-GM Human Res. Ctr. v. KSL Recreation Corp.; Hamade v. Sunoco, Inc (R&M); Whether an agreement contained a release voidable only by fraud in the execution; Whether plaintiffs were required to tender back the consideration provided for in the release before challenging it on the grounds of fraud; Stefanac v. Cranbrook Educ. Cmty. (After Remand); Applicability of the "tender-back doctrine"; Collucci v. Eklund; Fraud in the inducement; Samuel D Begola Servs., Inc. v. Wild Bros.; Motion to exclude evidence of silent fraud; Department of Transp. v. Frankenlust Lutheran Congregation; Maldonado v. Ford Motor Co.; Titan Ins. Co. v. Hyten; Expert testimony as to fraud; Campbell v. Department of Human Servs.; MRE 702; Edry v. Adelman; Surman v. Surman; King v. Taylor Chrysler-Plymouth, Inc.; MRE 704; MCR 2.613(A)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Grand Pointe Prop., LLC v. SEC Grand Pointe, LLC

e-Journal Number: 53712

Judge(s): Per Curiam – Gleicher, O’Connell, and Murray

 

The court held, inter alia, that defendant-SEC's merger clause claims were "utterly meritless." The appeal arose from the purchase and sale of a shopping center. Shortly after the sale finalized, the shopping center's anchor tenant, a café-bakery, went out of business. The purchasers promptly discovered that the shopping center's previous owners had been well aware of the café-bakery's precarious financial condition and knew that the restaurant owner intended to close the business almost immediately after the sale. The sellers had entered into several undisclosed side agreements with the café-bakery's owner designed to disguise the tenant's economic misfortunes. The buyers asserted a variety of claims, including that the sellers materially misrepresented the shopping center's financial condition. A jury found that the sellers committed fraud and awarded the buyers $630,000 in damages. SEC argued, inter alia, that the P & S agreement's integration clause barred plaintiffs' fraud action. "Absent any proof of fraud regarding the integration clause itself," SEC argued, "the court should have granted summary judgment [sic] and/or dismissed the allegation following Plaintiffs' proofs." The court found no merit in this argument, "which essentially (and incorrectly) portrays a merger clause as conferring immunity from suit for fraud." Generally, "a merger clause prevents a court from considering evidence outside the four corners of a contract." Because SEC did not identify with any particularity the evidence it claimed was incorrectly admitted, its merger clause argument was "difficult to decipher." SEC insisted that "[t]he only proof offered at trial as to any statements or misrepresentations were statements by" E, and that E's subsequent dismissal as a party-defendant eliminated SEC's respondeat superior liability for E's statements. But the transcript pages identified by SEC as containing these alleged misrepresentations related to plaintiffs' admissions that before the closing, no SEC representative made any verbal representations pertinent to the sale. SEC did not address "the representations made pursuant to" the P & S agreement, which formed "the vast bulk of plaintiffs' fraud claim." The court agreed with SEC that as a general principle, the merger clause barred the introduction of parol evidence as to pre-contractual understandings or intentions. But SEC failed to point to any objectionable pre-contractual statements. Further, the record failed to substantiate that plaintiffs sought to vary or escape from the terms of the P & S contract. "Rather, plaintiffs asserted throughout the case that SEC's material misrepresentations made pursuant to the contract both breached the agreement and constituted fraud." They based their fraud claims on representations made pursuant to the contractual requirements that SEC produce a truthful rent roll and that the tenants certify the accuracy of their tenant estoppel certificates. Plaintiffs contended the information supplied by SEC was either false or deliberately misleading. The P & S agreement specifically integrated the tenant estoppel letters and the rent roll - "This written Agreement, including all exhibits attached hereto and documents to be delivered pursuant hereto, shall constitute the entire agreement and understanding of the parties[.]" Thus, the merger clause "did not apply to these post-contractual statements, which by the contract's own terms were not extrinsic but merged into the contract itself." Affirmed.

 

Criminal Law

 

Issues: Admission of voice identification testimony; People v. Murphy (On Remand); People v. Bozzi; People v. Harris; "Unduly suggestive" identification procedure; People v. Williams; Independent basis for the in-court identification; People v. Anderson; People v. Kachar; "Other acts" evidence; MRE 404(b)(1); People v. VanderVliet; "Proper purpose"; People v. Mardlin; "Identity" element; People v. Yost; "Relevant evidence" under MRE 402; MRE 403; "Unfair prejudice"; People v. Blackston; Limiting jury instruction; Presumption that jurors follow their instructions; People v. Abraham; Motion for a mistrial; People v. Lugo; People v. Griffin; An unresponsive volunteered answer to a proper question; People v. Holly; People v. Hackney; People v. Lumsden; Sufficiency of the evidence that the defendant conspired to rob the victim; People v. Bettistea; People v. Cotton; People v. Hoffman; People v. Nowack; People v. Hardiman; People v. Terry; Double jeopardy; People v. Denio; "Plain error" review; People v. Scott

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Bryant

e-Journal Number: 53683

Judge(s): Per Curiam – Talbot, Wilder, and Stephens

 

Holding, inter alia, that the trial court did not err in admitting the victim's (H) voice identification testimony because there was a sufficient independent basis for it, or in admitting other acts evidence that defendant previously committed another robbery while dressed as a woman, the court affirmed his convictions. He was convicted of conspiracy to commit armed robbery, armed robbery, and felony-firearm. H invited C to his home. During the evening, C left the house, saying that he needed to go to his car for a minute. C returned accompanied by another man whom he addressed as "Kia." They assaulted and robbed H. The offense was carried out over a period of one to two hours, during which Kia spoke throughout and did most of the talking. Defendant was later apprehended for a possible parole violation based in part on his participation in the robbery. H attended the preliminary parole violation hearing and identified defendant's voice as Kia's. Other circumstantial evidence, including records from C's and defendant's cell phones, linked defendant to the crime. He argued on appeal, inter alia, that the trial court should not have admitted H's voice identification testimony because H did not identify anything peculiar about defendant's voice that would enable him to recognize it, and because the parole violation hearing constituted an unduly suggestive identification procedure. The court concluded that H's testimony showed "that he had ample opportunity to become familiar" with Kia's voice because the robbery lasted over two hours, and H testified that Kia did most of the talking and at times addressed him directly. When H heard defendant speak at the parole violation hearing, he immediately recognized the voice as Kia's. Thus, H's "voice identification testimony was 'positive and unequivocal,' and was competent." The court was not left with a "'definite and firm conviction'" that the trial court erred in admitting the testimony. It appeared that the trial court agreed that the identification procedure was unduly suggestive but concluded that there was an independent basis for H's in-court identification, because, at an evidentiary hearing, the trial court analyzed the admissibility of H's identification testimony by reviewing the factors in Kachar. Most of the relevant factors in Kachar supported a finding of an independent basis for H's identification of defendant's voice. The only factor that weighed against it was factor 1, "'[p]rior relationship with or knowledge of the defendant,'" because H had never previously seen or heard defendant. "But considering that the offense was carried out over a prolonged period of time, during which the suspect identified as Kia spoke throughout and did most of the talking," H had a sufficient opportunity to familiarize himself with Kia's voice. Thus, "the trial court was justified in discounting the weight to be given to factor 1." The court also held that evidence defendant previously committed a robbery while dressed as a woman, coupled with other evidence linking him to C, made it more probable that he was C's accomplice Kia, who was a man dressed as a woman. Although the evidence was probative of defendant's character, it was also probative of his identity as the suspect known as Kia.

 

Employment & Labor Law

 

Issues: Discrimination claims in federal employment; Title VII of the Civil Rights Act as amended by the Equal Employment Opportunity Act; Sovereign immunity; United States v. Sherwood; Waiver of sovereign immunity; United Liberty Life Ins. Co. v. Ryan; Steiner v. Henderson; Reporting agency noncompliance with a settlement agreement; 29 CFR § 1614.504; Whether sovereign immunity can be waived by statute or regulation; Frahm v. United States (4th Cir.); Munoz v. Mabus (9th Cir.); Lindstrom v. United States (10th Cir.); Unlawful retaliation; 42 USC § 2000e-3(a); Prima facie retaliation; Abbott v. Crown Motor Co.; Spengler v. Worthington Cyclinders; Mickey v. Zeidler Tool & Die Co.; Hunter v. Secretary of U.S. Army; "Adverse employment action"; Garner v. Cuyahoga Cnty. Juvenile Court; Creggett v. Jefferson Cnty. Bd. of Educ.; Burlington Indus., Inc. v. Ellerth; Retaliation that produces harm; Burlington N. & Santa Fe Ry. Co. v. White; Whether the court may consider an employer's alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case; Wexler v. White's Fine Furniture, Inc.; Causal connection; Upshaw v. Ford Motor Co.

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Taylor v. Geithner

e-Journal Number: 53610

Judge(s): Moore and Merritt; Concurring in part, Dissenting in part - McKeague

 

Deciding an issue of first impression in the 6th Circuit, the court held that the district court properly dismissed plaintiff's breach of settlement agreement claim for lack of subject-matter jurisdiction because Congress has not expressly waived sovereign immunity for such claims. The court also held that the district court erred in granting summary judgment for defendant on plaintiff's retaliation claim because plaintiff produced sufficient evidence to establish a prima facie retaliation claim. Plaintiff, an employee of the Internal Revenue Service (IRS), sued defendant alleging breach of settlement agreement and retaliation based on alleged noncompliance with a settlement agreement she had with the IRS and on a series of purported retaliatory actions taken by her supervisor. The district court dismissed the breach of settlement agreement claim for lack of subject-matter jurisdiction and granted defendant's motion for summary judgment on the retaliation claim. On appeal, the court rejected plaintiff's argument that the district court erred in dismissing her breach of settlement agreement claim for lack of subject-matter jurisdiction. It found that plaintiff could not point to an express waiver of sovereign immunity concerning breach of settlement agreement claims under Title VII, noting that § 1614.504 provides clear instructions as to the exclusive procedures by which a complainant may seek relief - specific performance of the settlement agreement or reinstatement of the original complaint. Accordingly, the court joined its sister circuits and affirmed the district court's dismissal of this claim for lack of subject-matter jurisdiction. However, the court agreed with plaintiff's argument that she produced sufficient evidence to establish a prima facie case of retaliation. It found that the facts showed that at the same time and shortly after plaintiff filed discrimination-based complaints with the agency, she was rejected from 52 positions within the same agency and, when requesting a recommendation from her unit supervisor, was given a negative reference. This, the court said, was sufficient to establish a prima facie case under the McDonnell Douglas burden-shifting analysis. Affirmed in part, reversed in part, and remanded.

 

Family Law

 

This summary also appears under Bankruptcy

 

Issues: Chapter 7; Whether an unscheduled asset that the trustee partially administered should be deemed abandoned to the debtor's ex-wife; 11 USC § 554(c) and (d); Whether a stipulation is voidable; 11 USC § 362; Easley v. Pettibone MI Corp.; "Abandonment by operation of law" or "technical abandonment"; LPP Mtg., Ltd. v. Brinley; In re Reiman (Bankr. ED MI); "Unless the court orders otherwise"; Stark v. Moran (In re Moran); Automatic abandonment; Olson v. Aegis Mtg. Corp. (In re Bloxsom) (Bankr. WD MI); DeVore v. Marshack (In re DeVore) (BAP 9th Cir.); "Fail safe" provision (§ 554(d)); Mele v. First Colony Life Ins. Co. (D DC); Relief from judgment; Fed.R.Civ.P. 60(b); Effect of the debtor's failure to list an asset on his schedules; Cundiff v. Cundiff (In re Cundiff) (BAP 6th Cir.); Darrah v. Franklin Credit (In re Darrah) (Bankr. ND OH); Vreugdenhill v. Navistar Int'l Transp. Co. (8th Cir.); Debtor's affirmative duty; Magana-Lopez v. JPMorgan Chase Bank, N.A. (In re Magana-Lopez) (Bankr. CD CA); Charboneau v. Jordan (Unpub. ED MI); In re Prospero (Bankr. CD CA); Interpreting bankruptcy statutes containing the phrase "unless the court orders otherwise"; In re Acosta-Rivera (1st Cir.); G & J Invs. v. Zell (In re Zell) (Bankr. SD OH); Whether a technical abandonment under § 554(c) may be revoked; Spear v. Schafler (In re Schafler) (ND CA); Neville v. Harris (D NJ); In re Johnson (Bankr. D MT); In re Gonzales (Bankr. CD CA)

Court: U.S. Bankruptcy Appellate Panel Sixth Circuit

Case Name: In re DeGroot

e-Journal Number: 53611

Judge(s): Emerson, Harris, and Shea-Stonum

 

The court held that the bankruptcy court did not abuse its discretion in determining that an unscheduled asset the trustee had partially administered should be deemed abandoned to the debtor's ex-wife pursuant to §§ 554(c) and (d). Thus, the court affirmed the bankruptcy court's decision. Debtor's ex-wife was ordered as part of their divorce to pay him $48,000 for his share in the marital property (the receivable). After she made the first payment, debtor filed for bankruptcy. During the bankruptcy, the parties agreed to extinguish the remainder of the receivable. However, debtor's ex-wife later found that the lien on the home was not removed. The trustee successfully moved to reopen the bankruptcy case. The bankruptcy court eventually found that the balance of the receivable should be abandoned. The court held that the bankruptcy court did not err in finding that it had discretion under §§ 554(c) and (d) to order abandonment of the receivable to debtor's ex-wife. The bankruptcy court concluded that the receivable had not been abandoned under § 554(c), but that it could deem the receivable abandoned to debtor's ex-wife pursuant to the "unless the court orders otherwise" language found in §§ 554(c) and (d). The bankruptcy court was not revoking any type of abandonment since the receivable remained property of the estate when the case was closed pursuant to § 554(d). The bankruptcy court determined that appropriate circumstances existed that warranted invoking its discretion to order otherwise under §§ 554(c) and (d). Debtor did not list the receivable on his bankruptcy schedules although he disclosed it at his § 341 meeting of creditors and explained why he did not list it on his schedules. The trustee "failed to properly administer the asset in violation of his statutory duties to 'collect and reduce to money the property of the estate.'" There was no question that the trustee knew about the receivable - he filed a notice of assignment of lien in the county recorder's office and thus, exerted control over the property and the right to payment of any money that came due under the receivable. While debtor's failure to list the receivable on his schedules technically meant that the property remained property of the estate when the case was closed, the trustee's partial administration of the receivable, followed by his filing a no asset report and certifying that he had performed the duties required under § 704, weighed "heavily in allowing the bankruptcy court to now 'order otherwise.'" The bankruptcy court reasoned that the only person who seemed to have suffered as a result of the failure of debtor and the trustee to comply with their statutory duties was the ex-wife. Thus, the bankruptcy court concluded that although the receivable technically remained property of the estate under § 554(d), appropriate circumstances existed to "order otherwise" and deem the receivable abandoned. The court concluded that the bankruptcy court's finding that this discretionary decision was necessary in order to prevent a "miscarriage of justice" and to mitigate unfair consequences of §§ 554(c) and (d)'s default rules was not an abuse of discretion.

 

Real Property

 

This summary also appears under Contracts

 

Issues: Whether the purchase and sale (P & S) agreement's integration clause barred plaintiffs' fraud action; Walsh v. Taylor; Motion for a directed verdict; Sniecinski v. Blue Cross & Blue Shield of MI; Purpose of an integration clause; Coal Res., Inc. v. Gulf & W. Indus., Inc. (6th Cir.); UAW-GM Human Res. Ctr. v. KSL Recreation Corp.; Hamade v. Sunoco, Inc (R&M); Whether an agreement contained a release voidable only by fraud in the execution; Whether plaintiffs were required to tender back the consideration provided for in the release before challenging it on the grounds of fraud; Stefanac v. Cranbrook Educ. Cmty. (After Remand); Applicability of the "tender-back doctrine"; Collucci v. Eklund; Fraud in the inducement; Samuel D Begola Servs., Inc. v. Wild Bros.; Motion to exclude evidence of silent fraud; Department of Transp. v. Frankenlust Lutheran Congregation; Maldonado v. Ford Motor Co.; Titan Ins. Co. v. Hyten; Expert testimony as to fraud; Campbell v. Department of Human Servs.; MRE 702; Edry v. Adelman; Surman v. Surman; King v. Taylor Chrysler-Plymouth, Inc.; MRE 704; MCR 2.613(A)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Grand Pointe Prop., LLC v. SEC Grand Pointe, LLC

e-Journal Number: 53712

Judge(s): Per Curiam – Gleicher, O’Connell, and Murray

 

The court held, inter alia, that defendant-SEC's merger clause claims were "utterly meritless." The appeal arose from the purchase and sale of a shopping center. Shortly after the sale finalized, the shopping center's anchor tenant, a café-bakery, went out of business. The purchasers promptly discovered that the shopping center's previous owners had been well aware of the café-bakery's precarious financial condition and knew that the restaurant owner intended to close the business almost immediately after the sale. The sellers had entered into several undisclosed side agreements with the café-bakery's owner designed to disguise the tenant's economic misfortunes. The buyers asserted a variety of claims, including that the sellers materially misrepresented the shopping center's financial condition. A jury found that the sellers committed fraud and awarded the buyers $630,000 in damages. SEC argued, inter alia, that the P & S agreement's integration clause barred plaintiffs' fraud action. "Absent any proof of fraud regarding the integration clause itself," SEC argued, "the court should have granted summary judgment [sic] and/or dismissed the allegation following Plaintiffs' proofs." The court found no merit in this argument, "which essentially (and incorrectly) portrays a merger clause as conferring immunity from suit for fraud." Generally, "a merger clause prevents a court from considering evidence outside the four corners of a contract." Because SEC did not identify with any particularity the evidence it claimed was incorrectly admitted, its merger clause argument was "difficult to decipher." SEC insisted that "[t]he only proof offered at trial as to any statements or misrepresentations were statements by" E, and that E's subsequent dismissal as a party-defendant eliminated SEC's respondeat superior liability for E's statements. But the transcript pages identified by SEC as containing these alleged misrepresentations related to plaintiffs' admissions that before the closing, no SEC representative made any verbal representations pertinent to the sale. SEC did not address "the representations made pursuant to" the P & S agreement, which formed "the vast bulk of plaintiffs' fraud claim." The court agreed with SEC that as a general principle, the merger clause barred the introduction of parol evidence as to pre-contractual understandings or intentions. But SEC failed to point to any objectionable pre-contractual statements. Further, the record failed to substantiate that plaintiffs sought to vary or escape from the terms of the P & S contract. "Rather, plaintiffs asserted throughout the case that SEC's material misrepresentations made pursuant to the contract both breached the agreement and constituted fraud." They based their fraud claims on representations made pursuant to the contractual requirements that SEC produce a truthful rent roll and that the tenants certify the accuracy of their tenant estoppel certificates. Plaintiffs contended the information supplied by SEC was either false or deliberately misleading. The P & S agreement specifically integrated the tenant estoppel letters and the rent roll - "This written Agreement, including all exhibits attached hereto and documents to be delivered pursuant hereto, shall constitute the entire agreement and understanding of the parties[.]" Thus, the merger clause "did not apply to these post-contractual statements, which by the contract's own terms were not extrinsic but merged into the contract itself." Affirmed.

 

Termination of Parental Rights

 

Issues: Termination of parental rights to the minor daughter pursuant to §§ 19b(3)(c)(i), (j), (g); Termination of parental rights to the minor son pursuant to §§ 19b(3)(g) and (j); In re Trejo Minors; In re BZ; Matter of Jackson; In re Sours Minors; Best interests of the children

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Burns/Hyde

e-Journal Number: 53703

Judge(s): Per Curiam - Talbot, Wilder, and Stephens

 

The court held that the trial court properly terminated the parental rights of the respondent-mother to her minor children because the statutory grounds for termination were established by clear and convincing evidence and termination was in the children's best interests. The petitioner-DHS sought termination of respondent's parental rights alleging that she had substance abuse problems. Testimony at the termination hearing established that since 11/07, her daughter had been previously removed three times. Further, she had taken part in numerous substance abuse programs and attended counseling, but was unable to stay sober. During the trial court's temporary wardship of her daughter, respondent admitted using narcotics while pregnant, which was confirmed when her son was born with narcotics in his system and suffered withdrawal symptoms. At the time of the termination hearing where the trial court terminated her parental rights, she had begun her second attempt at a 12-month Christian counseling program having been previously terminated from the program for a rules violation. The court's review of the case revealed that respondent was afforded numerous opportunities for sobriety, and failed. Further, her daughter was afraid of being with her mother. The daughter was afraid to visit her mother unless a caseworker went with her. The record did not reveal any sustained period of time when respondent could remain sober. The daughter, at a very young age, was required to care for her mother, especially when the mother would sleep through the day from ingestion of controlled substances. Respondent can remain sober only for very limited times. There was no evidence from which the court, or the trial court, could conclude that there was a reasonable likelihood that respondent will remain sober. Affirmed.

 

Issues: Termination under §§ 19b(3)(g), (i), and (l); The children's best interests; In re Beck; In re Mays; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Loughner

e-Journal Number: 53702

Judge(s): Per Curiam – Gleicher, O’Connell, and Murray

 

The court held that the trial court properly terminated both respondents-parents' parental rights to their two minor children where the statutory grounds for termination were established by clear and convincing evidence. However, the court held that the trial court's determination that termination of both respondents' parental rights was in the children's best interests was clear error in this case. Thus, the court vacated the trial court's best-interest analysis, and remanded the case to the trial court for an evaluation as to how (if at all) its best interest findings as to each child are impacted considering that the maternal aunt had custody of the children at the time of termination. Both respondents acknowledged that because it was undisputed that their parental rights to another child were previously terminated, a statutory ground for termination of their parental rights as to the two minor children at issue existed under § 19b(3)(l). Thus, the only argument put forth on appeal was whether the trial court clearly erred in its best interests determination. The court held that it did. The children were living with an aunt at the time of the dispositional hearing. However, the trial court did not consider their placement with their aunt while making its best-interest determination. While only the respondent-father raised this issue on appeal, the trial court was required to consider this factor in determining the best interests of the children in relation to both parents. Further, the court rejected the respondent-mother's argument that the trial court erred in determining that the termination of her parental rights was in the minor children's best interests because testimony at the disposition hearing showed that she was a good mother when she was not using heroin. The evidence relied upon by the trial court showed that the mother used heroin in 2005 and relapsed into heroin use during 2010 and 2011. She continued to relapse despite her participation in drug tests, Alcoholics Anonymous, counseling, and a parent mentor program. The home environment the children lived in was also dangerous to their health and safety. Thus, the court affirmed the trial court's factual findings that the termination of her parental rights was in the best interests of the children, but the trial court must reevaluate that decision in light of the children's custodial situation with their maternal aunt. Affirmed in part, vacated in part, and remanded.

 

Issues: Termination under §§ 19b(3)(g), (i), and (j); In re HRC; In re Mason; In re Jones; Reunification; The child's best interests; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Meyers

e-Journal Number: 53705

Judge(s): Per Curiam – Talbot, Wilder, and Stephens

 

The court held that the trial court properly terminated the respondent-mother's parental rights to the minor child where the statutory grounds for termination were established by clear and convincing evidence and termination was in the child's best interests. Respondent admitted to a history of drug abuse and a failure to maintain sobriety. At the time of the hearing, she was in jail awaiting sentencing on a larceny charge, which she believed could result in a sentence of six months in jail. She testified that she was sober for a significant period of time, but had relapsed a few days prior to the child's birth, which caused her daughter to be born with cocaine, morphine, and marijuana in her system. Respondent admitted that she voluntarily signed away her parental rights to her four previous children because she could not care for them due to her addiction. Further, she told petitioner-DHS's caseworker that she hoped her mother or oldest son would provide care for this child since she, again, could not due to her drug abuse. Finally, she provided no care and had no custody over the child, as the child was taken from her while they were still in the hospital. The caseworker also testified that respondent never contacted her to inquire into the child's well-being. Thus, there was clear and convincing evidence that respondent had not and could not provide proper care and custody of the child within a reasonable time. The court was not left with a "definite and firm conviction" that the trial court made a mistake when it terminated respondent's parental rights under § 19b(3)(g). Affirmed.

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i), (g), and (j); In re Trejo Minors; In re SLH, AJH, & VAH; In re Bechard; In re Hatcher; In re JK

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Naber/Reed

e-Journal Number: 53668

Judge(s): Per Curiam - Wilder, Meter, and Gleicher

 

The court held that the trial court properly terminated the respondent-mother's parental rights to her three minor children because the statutory bases for termination were established by clear and convincing evidence and termination was in the children's best interests. Respondent's children were made temporary court wards in 2000 and again in 2007. They were returned to respondent's care in 11/08 and the trial court terminated its jurisdiction over them in 2/09. A month later, her oldest daughter, JN, was arrested after a violent altercation with respondent over JN's possession of a cell phone. Respondent initiated incorrigibility proceedings. The DHS filed a petition for temporary jurisdiction over JN and later amended the petition to include respondent's three younger children. An adjudicative trial on the petition was held after the incorrigibility proceedings involving JN concluded. A jury determined that a statutory basis for the trial court's jurisdiction was established under MCL 712A.2(b). The trial court tried various different relative and residential placements for JN, but none were successful. Respondent blamed the DHS for not restraining JN's behavior and keeping her safe. The three younger children were initially placed with respondent, but she allowed her son, KR to live with his grandfather. A foster care worker testified that DHS had not given its approval for this placement. Respondent's relationship with the DHS deteriorated and in the summer of 2010, she and her daughters, NR and RR, relocated to Georgia without the DHS's knowledge or consent. Georgia authorities cooperated with the DHS to return the two girls to Michigan where NR was placed in foster care and RR was placed with her paternal grandmother. In 3/11, the DHS filed a supplementary petition to terminate respondent's parental rights to all four children. After a bifurcated hearing the trial court found that the statutory grounds for termination were established pursuant to §§ 19b(3)(c)(i), (g) and (j) and that termination was in the best interests of JN, KR, and RR but was not in NR's best interests. The evidence overwhelmingly demonstrated that respondent's relationship with JN was hopelessly antagonistic and irreparably damaged. The trial court did not clearly err in finding that it was in JN's best interests to end that relationship. The evidence showed that KR had very little relationship with respondent, primarily because she did not feel that she was capable of adequately raising a son. Also, the evidence showed that RR, who was only 6 years old, rarely discussed respondent, or exhibited signs of missing her. The trial court did not clearly err in finding that KR and RR were both in need of permanence and stability, which respondent could not provide, and that their best interests would be better served by finally terminating respondent's parental rights instead of continuing their uncertain tie with her. Although the fact that KR and RR were placed with relatives was a relevant factor, the court did not consider these placements and nonetheless concluded that termination was the most appropriate outcome. Affirmed.

 

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