• Criminal Law (4)
• Insurance (1)
• Litigation (1)
• Real Property (1)
• Tax (1)
• Termination of Parental Rights (1)

Criminal Law

 

Issues: Motion to suppress the defendant's police statement; Whether the statement should have been excluded because it was preceded by another interrogation that occurred before defendant was advised of his Miranda rights; Bobby v. Dixon; Missouri v. Seibert; Bucio v. Sutherland (SD OH); Oregon v. Elstad; Plain error review; People v. Carines; Whether the statement was "tainted" by misleading advice as to his right to counsel; Duckworth v. Eagan; People v. Johnson; California v. Prysock; The totality of the circumstances surrounding the interrogation; People v. Daoud; People v. Tierney; Admission of the bullets recovered from the victim's body; Whether there was sufficient foundation for admissibility; Adequacy of the "chain of custody"; People v. White; Whether defendant was entitled to a new trial based on "newly discovered evidence" that the officer who identified the bullets and testified as to the chain of custody committed "perjury"; People v. Cress; People v. Mechura

Court: Michigan Supreme Court

Case Name: People v. Mitchell

e-Journal Number: 53176

Judge(s): Young, Jr., Markman, M.B. Kelly, and Zahra; Voting to deny leave to appeal – Cavanagh, M. Kelly, and Hathaway

 

In an order in lieu of granting leave to appeal, the court reversed Part II and Part III B of the Court of Appeals opinion (see e-Journal # 50040 in the 11/16/11 edition) and remanded the case to that court for further proceedings. The court held that the trial court did not err in denying the defendant's motion to suppress his confession. The court quoted the U.S. Supreme Court's opinion in Bobby to the effect that unlike in Seibert, "'there is no concern here that police gave [defendant] Miranda warnings and then led him to repeat an earlier murder confession, because there was no earlier confession to repeat.'" The court also quoted Duckworth - "'Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one.'" Further, the court concluded that an evidentiary hearing as to a police officer's (F) testimony was unnecessary because (1) "as the Court of Appeals recognized, breaks in the chain of custody go to the weight of the evidence, not to its admissibility," (2) the documentary evidence sufficiently showed that F retrieved the bullets from the ME, and (3) admission of F's testimony at defendant's father's second trial that he was not at the autopsy would not make a different result probable on retrial. "Given the eyewitness testimony and defendant's confession, there is no doubt that a second jury would find defendant guilty."

 

Issues: Whether the trial court properly admitted the testimony of a nurse and forensic sexual assault examiner about rape trauma syndrome (RTS); "Waiver"; People v. Carines; Whether the expert's testimony was within the scope of her expertise; "Other acts" evidence of defendant's prior threats and acts of violence against VB (his wife); MRE 404(b)(1); MCL 768.27b(1); People v. Pattison; MRE 401; People v. Blackston; People v. Meissner; Ineffective assistance of counsel; People v. Armstrong; People v. Seals; People v. Frazier; People v. Rockey; Trial strategy; People v. Unger; People v. Dixon; People v. Wise; Sentencing; People v. Horn;  OVs 5 and 11; People v. Osantowski; People v. Cannon; "Cumulative errors"; People v. Bahoda; People v. Ackerman; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Brooks

e-Journal Number: 53059

Judge(s): Per Curiam - Jansen, Fort Hood, and Shapiro

 

In this case where the defendant was convicted by a jury of CSC I, AWIGBH, domestic violence, resisting or obstructing a police officer, and interference with a crime report, the court affirmed his convictions and sentences. The charges involved an incident at the home defendant had shared with his wife (VB). She had filed for divorce and he had just moved out. The couple had a five-year old daughter. On the night of the incident, defendant went to the house to get a microwave about 9:00 PM. VB testified that she was watching TV and said "Hello" to defendant. He responded by screaming, hitting her, and knocking over her chair. He then got on top of her and started choking her. He shoved his fingers down her throat, struck her in the face, grabbed her hair and hit her head repeatedly. She tried to get her cell phone, but defendant took it and began beating her with it. He was also shoving the cell phone down her throat, she gagged and tried to get up. He picked her up and threw her into the entertainment center. He continued to hit her and to bang her head on floor. She asked him to let her stand up because her head was spinning. VB would stand up, and defendant would knock her down again. This went on for some time. She blacked out and woke up naked while defendant was raping her. He said he was going to kill her. VB blacked out again because the next thing she recalled was that he was running water in the kitchen. She ran upstairs and had trouble seeing because her contact lens had fallen out. She closed herself in the bathroom and tried to call 911. Defendant entered the room, took the phone and pulled out the batteries. He then threw her to the bathroom floor. She tried to crawl away, but he pulled her back. At this point their child woke up and came down the hall crying. VB begged him to let her calm down the child and she lay down on the bed with the child. Defendant came and laid on the other said of the child and said, "You're not going to see daddy for a really long time, he did something really, really bad." Police, who were dispatched to the home, knocked at the door, and defendant went into a home office which contained a gun safe. He said to VB, "I'm not going to jail for this, I'm going to kill you." VB went downstairs to unlock the door. Defendant came up behind her and slammed the door shut. The police told him to open the door. VB ran back upstairs with her daughter. She then returned and saw defendant on the floor in handcuffs. At trial, photos were admitted showing her bruises and the home's disarray. The officers had to spray defendant, who had an officer in a head lock, with pepper spray and another officer had to taser him. Officers recovered five long guns from the gun safe. On appeal, defendant argued, inter alia, that the trial court erred by permitting a forensic sexual assault nurse to testify as to RTS because he claimed her testimony exceeded the scope of her expertise and her testimony impacted on VB's credibility. The court disagreed and held that defendant failed to meet his burden to show that plain error occurred. Even if the trial court erred by allowing the nurse to testify about RTS, defendant failed to show that the error affected the outcome of the proceedings.

 

Issues: Request to substitute appointed counsel; People v. Strickland; People v. Traylor; Guarantee of the right to appointed counsel; People v. Mack; People v. Ginther; Sufficiency of the evidence to support the defendant's felony murder conviction; People v. Smith; "Aiding and abetting"; People v. Robinson; Inferring "malice"; People v. Carines; A "criminal conspiracy"; People v. Justice (After Remand); "Impeachment evidence"; "Plain error" review; "Extrinsic evidence" of a "prior inconsistent statement"; People v. Jenkins; MRE 613(b); People v. Kilbourn; People v. Stanaway; Prosecutorial misconduct; People v. Dobek; People v. Mann; People v. Bahoda; Ineffective assistance of counsel; Strickland v. Washington; "Trial strategy"; People v. Odom; Knowles v. Mirzayance; People v. Ericksen; Claims that had no support in the record; People v. Kevorkian; Right of confrontation

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Matthews

e-Journal Number: 53050

Judge(s): Per Curiam – M.J. Kelly, Hoekstra, and Stephens

 

While the court agreed with the defendant that the trial court did not conduct a proper inquiry into her request to substitute appointed counsel, the court concluded that she failed to show harm from this non-constitutional error. The court also held, inter alia, that there was sufficient evidence of malice to support her felony murder conviction. Defendant was also convicted of conspiracy to commit armed robbery. The court noted that unlike in Strickland, "the trial court did not allow defense counsel the opportunity to rebut defendant's complaints and establish a record of client contact." Thus, it could be argued that the trial court was not informed to the extent required to exercise its discretion as to defendant's request for substitute counsel. However, defense counsel requested (and presumptively received) discovery from the prosecution that included the police report, defendant's police interview, and the statements from the two informants who testified that defendant made admissions to them. "These materials contained defendant's version of the facts of the case, including her alibi and blanket denial that she made any phone call." While she specifically took issue with her attorney's failure to interview her about her side of the story, her version of the events was available through the pretrial record and she offered no explanation of how her trial counsel's strategy suffered due to the alleged lack of communication. Thus, the court concluded that while the trial court should have held a hearing on the matter, defendant failed to show that "any error resulted in either an unfair trial or the conviction of an actually innocent person." The court also concluded that the trial evidence was sufficient to support defendant's conviction for felony murder based on the prosecution's aider and abettor theory of the case. Defendant argued that the prosecution failed to establish malice "where the victim's death was not an intended consequence of the criminal conspiracy because the victim was not supposed to be injured or killed." However, she failed to recognize that as established in Robinson, "malice can also be inferred from the natural and probable consequences of the underlying crime. Further, malice may be inferred where the evidence demonstrates the use of a deadly weapon." Defendant was charged with conspiracy to commit armed robbery, and B and Y both testified defendant was aware that R and P were armed. "Although it may not have been an intended consequence, shootings are often a natural and probable consequence of committing crimes while armed. When defendant called the victim to lure him to the motel for the armed robbery, she knowingly created a risk of great bodily harm." The court noted that the trier of fact weighed and believed the witness testimony about defendant's confessions. Further, the court rejected her claim that a witness was improperly impeached by admitting evidence of his prior inconsistent police statement via the investigating officer's testimony. The court held that the trial court did not commit plain error because "admission of extrinsic evidence of the prior inconsistent police statement was proper and did not affect defendant's substantial rights." The court also rejected defendant's prosecutorial misconduct and ineffective assistance of counsel claims. Affirmed.

 

Issues: Whether the trial court properly granted the defendant's motion to quash and reduced a charge of operating a motor vehicle while intoxicated causing serious impairment of a body function (OWI-SI)(MCL 257.625(5)) to operating while intoxicated (OWI)(MCL 257.625(1)); Whether the OWI statute defines "serious impairment of a body function"; MCL 500.3135(1); People v. Schultz; Whether the trial court properly concluded "serious impairment of a body function" as used in MCL 257.625(5) should be interpreted pursuant to MCL 500.3135(7) of the No-Fault Act and held that sufficient proofs were not offered at the preliminary hearing to meet that standard in that act; The Michigan Vehicle Code; MCL 257.58c; McCormick v. Carrier; Whether the chief judge properly assigned the judge who conducted the preliminary examination as a district judge to act as the circuit judge in this case; People v. Metamora Water Serv., Inc.; MCR 8.110(C)(3)(g); Kloian v. Schwartz; Van Buren Twp. v. Garter Belt, Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Rodriguez

e-Journal Number: 53111

Judge(s): Per Curiam - Shapiro, Gleicher, and Ronayne Krause

 

Holding that the meaning of the term "serious impairment of a body function" for purposes of OWI-SI is set forth in MCL 257.58c, not MCL 500.3135(7) and there were sufficient proofs to satisfy the probable cause standard, the court reversed and remanded for reinstatement of the original charge of OWI-SI. Defendant was charged with OWI-SI after an automobile accident in which a passenger of the vehicle was injured. The testimony at the preliminary examination was that the accident caused multiple fractures, including a fracture of the passenger's leg that required surgery to properly reduce the fracture and to internally affix a metal plate to the bone. She was on crutches for several weeks and in a walking cast for several weeks afterward. It is unlawful to operate a vehicle on the highway or other place open to the public "if the person is operating while intoxicated." If a person operates a vehicle while intoxicated "and by the operation of that motor vehicle causes a serious impairment of a body function of another person," the offense is a five-year felony. The OWI statute does not define "serious impairment of a body function." The words and phrases as defined in Chapter I of the Motor Vehicle Code "when used in this act shall, for the purposes of this act, have the meanings respectively ascribed to them in this chapter." Chapter I defines "serious impairment of a body function" in MCL 257.58c. Evidence was admitted that the injured passenger suffered multiple injuries, including a leg fracture requiring surgery, and fixation of a metal plate to the bone. Whether or not a jury ultimately concludes that this was a "serious bone fracture," it was surely sufficient to establish probable cause that this element of the offense can be proven under subsection (h). The court also concluded that the evidence was sufficient to establish probable cause as to subsection (d), "substantial impairment of a body function." Even if the court were to impose the standards in the No-Fault Act for this threshold, the court would find that probable cause was established given the evidence that the victim had a metal plate surgically implanted in her leg and that she was unable to use her leg and foot for several weeks.

 

Insurance

 

This summary also appears under Litigation

 

Issues: Motion to enforce a settlement agreement; Whether the defendant-insurer had a duty to disclose amended audits pursuant to MCR 2.302(E) and MCL 500.2008 and breach of that duty provided a basis for setting aside the settlement agreement; MCR 2.313(B)(2)(b); Whether defendant's failure to disclose the amended audits constituted an intentional/fraudulent misrepresentation that justified setting aside the settlement; Foreman v. Foreman; Agreement to settle a pending case as a contract; Michigan Mut. Ins. Co. v. Indiana Ins. Co.; Kloian v. Domino's Pizza, L.L.C.; Meyer v. Rosenbaum; Plamondon v. Plamondon; "Meeting of the minds"; Kamalnath v. Mercy Mem'l Hosp. Corp.; National Council of Compensation Insurance (NCCI)

Court: Michigan Court of Appeals (Unpublished)

Case Name: SPE Util. Contractors, LLC v. Zurich Am. Ins. Co.

e-Journal Number: 53060

Judge(s): Per Curiam – K.F. Kelly, Markey, and Servitto

 

Holding, inter alia, that the plaintiff (SPE) could not establish that the defendant-insurer's (Zurich) failure to disclose amended audits constituted an intentional/fraudulent misrepresentation that justified setting aside the parties' settlement agreement, the court affirmed the trial court's order granting Zurich's motion to enforce the agreement. SPE, a utility contractor, purchased several insurance policies from Zurich in 2006, including a multi-state worker's compensation insurance policy. That policy was an intermediate deductible policy, which essentially required SPE to pay the first $75,000 of any claim that was filed against it in exchange for a greatly reduced premium. As a condition of the policy, SPE was required to post security with Zurich in the form of a letter of credit issued by the defendant-bank on SPE's behalf in the amount of $150,000. In 8/07, Zurich submitted a proposal to extend the multi-state worker's compensation policy, which required SPE to execute a deductible agreement within 30 days. SPE refused to execute the agreement, and Zurich advised SPE in 1/08 that it would be converting the policy to a guaranteed cost policy as a result, which would increase the premium by over $88,000 per year. SPE terminated all policies with Zurich effective 3/1/08. When Zurich later drew $150,000 on the bank credit line, SPE filed this suit. Zurich filed a counter-complaint, asserting that SPE breached the parties' insurance contracts by failing to pay premiums and cancellation fees owed on the policies. The parties engaged in discovery, during which Zurich provided SPE with copies of several audits and statements it prepared in determining the amount of premiums and cancellation fees it claimed SPE owed. However, it did not provide the most recent audits, in which it had given SPE two credits toward its premiums (totaling nearly $22,000) that SPE applied for through the NCCI. SPE first argued on appeal that Zurich had a duty to disclose the amended audits showing the NCCI credits pursuant to MCR 2.302(E) and MCL 500.2008, and that a breach of those duties provided a basis for setting aside the settlement agreement. However, the court concluded that SPE "identified no obligation that can be read into the statute to disclose an audit prepared in defense of a breach of contract action or in preparation to pursue a breach of contract action," as were the audits at issue. Thus, SPE's claim based on MCL 500.2008 failed. SPE's claim based on MCR 2.302(E) also failed. As to SPE's fraudulent misrepresentation argument, the court held that even if Zurich could be said to have made a material misrepresentation, the other elements of fraudulent misrepresentation could not be met. SPE's reliance on Zurich's "representation and/or silence regarding the credits was patently unreasonable." SPE applied for the credits. Thus, SPE "knew the date on which it had applied, knew the potential that the credits existed, and presumably had access to NCCI to verify if the credits had been approved." Further, whether the credits were to be excluded from settlement was discussed during negotiations. The court concluded that SPE, "in agreeing to settle, knew it would not be getting all of the relief to which it felt it was entitled. That is the nature and purpose of settling a claim."

 

Litigation

 

This summary also appears under Insurance

 

Issues: Motion to enforce a settlement agreement; Whether the defendant-insurer had a duty to disclose amended audits pursuant to MCR 2.302(E) and MCL 500.2008 and breach of that duty provided a basis for setting aside the settlement agreement; MCR 2.313(B)(2)(b); Whether defendant's failure to disclose the amended audits constituted an intentional/fraudulent misrepresentation that justified setting aside the settlement; Foreman v. Foreman; Agreement to settle a pending case as a contract; Michigan Mut. Ins. Co. v. Indiana Ins. Co.; Kloian v. Domino's Pizza, L.L.C.; Meyer v. Rosenbaum; Plamondon v. Plamondon; "Meeting of the minds"; Kamalnath v. Mercy Mem'l Hosp. Corp.; National Council of Compensation Insurance (NCCI)

Court: Michigan Court of Appeals (Unpublished)

Case Name: SPE Util. Contractors, LLC v. Zurich Am. Ins. Co.

e-Journal Number: 53060

Judge(s): Per Curiam – K.F. Kelly, Markey, and Servitto

 

Holding, inter alia, that the plaintiff (SPE) could not establish that the defendant-insurer's (Zurich) failure to disclose amended audits constituted an intentional/fraudulent misrepresentation that justified setting aside the parties' settlement agreement, the court affirmed the trial court's order granting Zurich's motion to enforce the agreement. SPE, a utility contractor, purchased several insurance policies from Zurich in 2006, including a multi-state worker's compensation insurance policy. That policy was an intermediate deductible policy, which essentially required SPE to pay the first $75,000 of any claim that was filed against it in exchange for a greatly reduced premium. As a condition of the policy, SPE was required to post security with Zurich in the form of a letter of credit issued by the defendant-bank on SPE's behalf in the amount of $150,000. In 8/07, Zurich submitted a proposal to extend the multi-state worker's compensation policy, which required SPE to execute a deductible agreement within 30 days. SPE refused to execute the agreement, and Zurich advised SPE in 1/08 that it would be converting the policy to a guaranteed cost policy as a result, which would increase the premium by over $88,000 per year. SPE terminated all policies with Zurich effective 3/1/08. When Zurich later drew $150,000 on the bank credit line, SPE filed this suit. Zurich filed a counter-complaint, asserting that SPE breached the parties' insurance contracts by failing to pay premiums and cancellation fees owed on the policies. The parties engaged in discovery, during which Zurich provided SPE with copies of several audits and statements it prepared in determining the amount of premiums and cancellation fees it claimed SPE owed. However, it did not provide the most recent audits, in which it had given SPE two credits toward its premiums (totaling nearly $22,000) that SPE applied for through the NCCI. SPE first argued on appeal that Zurich had a duty to disclose the amended audits showing the NCCI credits pursuant to MCR 2.302(E) and MCL 500.2008, and that a breach of those duties provided a basis for setting aside the settlement agreement. However, the court concluded that SPE "identified no obligation that can be read into the statute to disclose an audit prepared in defense of a breach of contract action or in preparation to pursue a breach of contract action," as were the audits at issue. Thus, SPE's claim based on MCL 500.2008 failed. SPE's claim based on MCR 2.302(E) also failed. As to SPE's fraudulent misrepresentation argument, the court held that even if Zurich could be said to have made a material misrepresentation, the other elements of fraudulent misrepresentation could not be met. SPE's reliance on Zurich's "representation and/or silence regarding the credits was patently unreasonable." SPE applied for the credits. Thus, SPE "knew the date on which it had applied, knew the potential that the credits existed, and presumably had access to NCCI to verify if the credits had been approved." Further, whether the credits were to be excluded from settlement was discussed during negotiations. The court concluded that SPE, "in agreeing to settle, knew it would not be getting all of the relief to which it felt it was entitled. That is the nature and purpose of settling a claim."

 

Real Property

 

This summary also appears under Tax

 

Issues: "Valuation disclosure"; 1996 AACS, R 205.1101(1)(m) & 1283(3); Valuation methodology; Antisdale v. Galesburg; "Market approach"; Great Lakes Div. of Nat'l Steel Corp. v. Ecorse; Meadowlands Ltd. Dividend Hous. Ass'n v. Holland; Malcho v. Clark Twp. (Unpub.); "Taxable value cap"; MCL 211.27a(2)(a); Mich. Const. 1963, art. 9, § 3; Michigan Props., LLC v. Meridian Twp.; Whether public-service improvements are "additions" under Michigan law; Toll Northville Ltd. v. Northville Twp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Nixon Rd. Holding Co., LLC v. Township of Delta

e-Journal Number: 53044

Judge(s): Per Curiam - Fitzgerald, Meter, and Boonstra

 

The court held that the tax tribunal properly upheld petitioner's property taxes because its valuation rulings were appropriate. Petitioner purchased three parcels of property, subdivided them, and added public service improvements. It subsequently appealed the assessed values and state-equalized values for the subdivided lots to the board of review, which denied its request for relief. Petitioner then filed a petition with the tax tribunal, which affirmed. The court rejected petitioner's argument that the tribunal erred by not allowing petitioner to present certain valuation evidence. It held that the tribunal did not err by refusing to classify petitioner's spreadsheet - calculating the value of individual lots by dividing the cost of the parent parcel by the number of lots created from that parcel - as a valuation disclosure. Further, it found that, because no valuation disclosure was filed, the tribunal did not err by refusing to allow petitioner's witness to testify regarding matters of valuation. The court also rejected petitioner's argument that the tribunal erred by finding petitioner's valuation methodology was unsound. It found that petitioner's assertions that its valuation calculations comported with Malcho were not adequately supported by the record, and thus the tribunal did not err by determining that its valuation method was improper. It also concluded that, even if the tribunal had accepted petitioner's methodology, it would still have failed to provide sufficient evidence that respondent improperly included public-service improvements in its assessments of the parcels in question. The court next rejected petitioner's argument that the tribunal erred by allowing respondent to enter valuation documentation and testimony into evidence. It held that because the assessment cards at issue were offered for the purpose of establishing assessment methodology and not for the purpose of establishing taxable or true cash value, the tribunal did not err by admitting the evidence. Finally, the court rejected petitioner's argument that the tribunal erred by determining that petitioner's purchase of the parcels in question "uncapped" them for tax purposes and permitted the inclusion of public-service improvements into the valuations for those parcels. It held that, because petitioner failed to submit evidence establishing that any increase in taxable value resulted from public-service improvements beyond the uncapped years, the tribunal did not err by finding that petitioner failed to meet its burden of persuasion. Affirmed.

 

Tax

 

This summary also appears under Real Property

 

Issues: "Valuation disclosure"; 1996 AACS, R 205.1101(1)(m) & 1283(3); Valuation methodology; Antisdale v. Galesburg; "Market approach"; Great Lakes Div. of Nat'l Steel Corp. v. Ecorse; Meadowlands Ltd. Dividend Hous. Ass'n v. Holland; Malcho v. Clark Twp. (Unpub.); "Taxable value cap"; MCL 211.27a(2)(a); Mich. Const. 1963, art. 9, § 3; Michigan Props., LLC v. Meridian Twp.; Whether public-service improvements are "additions" under Michigan law; Toll Northville Ltd. v. Northville Twp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Nixon Rd. Holding Co., LLC v. Township of Delta

e-Journal Number: 53044

Judge(s): Per Curiam - Fitzgerald, Meter, and Boonstra

 

The court held that the tax tribunal properly upheld petitioner's property taxes because its valuation rulings were appropriate. Petitioner purchased three parcels of property, subdivided them, and added public service improvements. It subsequently appealed the assessed values and state-equalized values for the subdivided lots to the board of review, which denied its request for relief. Petitioner then filed a petition with the tax tribunal, which affirmed. The court rejected petitioner's argument that the tribunal erred by not allowing petitioner to present certain valuation evidence. It held that the tribunal did not err by refusing to classify petitioner's spreadsheet - calculating the value of individual lots by dividing the cost of the parent parcel by the number of lots created from that parcel - as a valuation disclosure. Further, it found that, because no valuation disclosure was filed, the tribunal did not err by refusing to allow petitioner's witness to testify regarding matters of valuation. The court also rejected petitioner's argument that the tribunal erred by finding petitioner's valuation methodology was unsound. It found that petitioner's assertions that its valuation calculations comported with Malcho were not adequately supported by the record, and thus the tribunal did not err by determining that its valuation method was improper. It also concluded that, even if the tribunal had accepted petitioner's methodology, it would still have failed to provide sufficient evidence that respondent improperly included public-service improvements in its assessments of the parcels in question. The court next rejected petitioner's argument that the tribunal erred by allowing respondent to enter valuation documentation and testimony into evidence. It held that because the assessment cards at issue were offered for the purpose of establishing assessment methodology and not for the purpose of establishing taxable or true cash value, the tribunal did not err by admitting the evidence. Finally, the court rejected petitioner's argument that the tribunal erred by determining that petitioner's purchase of the parcels in question "uncapped" them for tax purposes and permitted the inclusion of public-service improvements into the valuations for those parcels. It held that, because petitioner failed to submit evidence establishing that any increase in taxable value resulted from public-service improvements beyond the uncapped years, the tribunal did not err by finding that petitioner failed to meet its burden of persuasion. Affirmed.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(g) and (j); In re Jackson; Children's best interests; In re Trejo Minors; Whether the trial court was required to consider the children's placement with "relatives" in making its best interests determination; MCL 712A.19a(6)(a); In re Mason; MCL 712A.13a(1)(j); MCR 3.903(A)(18); "Waiver"; Hilgendorf v. St. John Hosp. & Med. Ctr. Corp.; Holmes v. Holmes

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Calhoun

e-Journal Number: 53078

Judge(s): Per Curiam – K.F. Kelly, Markey, and Servitto

 

The court concluded that even if the respondent-father had not waived the issue of the existence of a statutory ground for terminating his parental rights to the children, the trial court did not clearly err in finding that §§ 19b(3)(g) and (j) were established by clear and convincing evidence. The trial court also did not clearly err in determining that terminating his parental rights was in the children's best interests, and respondent's reliance on § 19a(6)(a) was misplaced given that the children remained in their mother's home and were not placed with "relatives." The court noted that respondent's counsel conceded in the trial court that "'the Court could find statutory grounds for meeting the limit and boundaries of termination.'" Further, the court concluded that the "evidence showed that respondent had a serious alcohol problem, which exacerbated his poor impulse control." The children had become temporary court wards twice before, due in part to his alcohol abuse. "Despite receiving alcohol abuse treatment, he continued to drink." In 10/11, he knowingly drove while heavily intoxicated, with two of his children in the car. "That alone placed the children's safety at risk. Respondent compounded the risk by his reckless driving while attempting to evade the police, which culminated in a roll-over accident in which the children were injured." The court noted that his conduct related to the two child occupants of his car was probative of how he was likely to act with his third child. As to the children's best interests, the evidence showed that respondent loved them and that they missed him. However, "the evidence also showed that respondent had a serious, long-standing alcohol abuse problem, which had contributed to the disruption of the family and the children's prior placement in foster care." Prior attempts at treatment were unsuccessful and respondent narrowly avoided termination of his parental rights in 2010 pursuant to a prior petition. Yet he continued to drink and endangered two of the children's lives by driving recklessly while drunk. In light of his "inability to achieve sobriety and the danger he presented to the children when he drank, the trial court did not clearly err in finding that termination was necessary to assure the children's safety." Further, the trial court was not required to consider the children's placement with relatives in making its best interests determination in this case. For purposes of § 19a, a "relative" is someone other than a parent, who is related to the child.

 

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