Substantive due-process & state-created-danger claims under 42 USC § 1983 for lead-contaminated drinking water; Whether plaintiffs stated a claim for violation of “bodily integrity” under the Fourteenth Amendment against defendants-city & state officials; Guertin v Michigan; Whether the right to bodily integrity was “clearly established” for purposes of qualified immunity; In re Flint Water Cases; Claim against defendant-city under Monell v Department of Soc Servs; Supplemental jurisdiction over state-law claims

[This appeal was from the WD-MI.]  The court held that plaintiffs plausibly pled a violation of the Fourteenth Amendment right to bodily integrity against defendants-City of Benton Harbor officials and their Monell claim against defendant-City arising from lead-contaminated water. Thus, it reversed the dismissal of those claims and remanded. It also reversed and remanded as to the district court’s order declining supplemental jurisdiction over the state-law claims. But it affirmed the dismissal of the claims against defendants-State officials. This case was brought by children living in Benton Harbor who have elevated levels of lead in their blood after drinking City water. They sued the City and various officials under § 1983 alleging substantive-due-process and state-created-danger violations and state-law negligence against engineering firms. The district court granted defendants’ motion to dismiss for failure to state a claim and based on qualified immunity and declined to exercise supplemental jurisdiction. As to plaintiffs’ bodily integrity claim, under Guertin, they were required to show not only that their “bodily integrity was infringed, but also that it was infringed by government officials’ discretionary, ‘constitutionally repugnant’ actions.” This involves a “shock the conscience” standard. The court found that if plaintiffs’ “claims are true—that the City officials lied about the presence of lead in the Benton Harbor water supply, thereby causing residents to drink the water—that would shock the conscience.” That is all that was needed at this stage of the litigation. While the court determined that plaintiffs failed to allege that the State defendants were “deliberately indifferent” to a known risk of harm, the result was not the same for the City defendants. The court held that “the complaint’s allegations regarding the City officials tell a plausible tale of deliberate indifference to a known risk of harm.” The court reviewed false statements made by City officials “that the City itself had no lead lines” and the complaint’s allegations that one of them “attempted to cover up the extent of the problem or, at least, remained willfully blind to its scale and severity.” The complaint alleged that they “‘dishonestly and publicly stated that inroads were being made regarding eliminating lead from the water,’ even as lead levels were rising.” These allegations were sufficient to allow the claim to go forward. The court also found that, for purposes of qualified immunity, it recognized the right to bodily integrity related to a water crisis “as a preexisting, clearly established right” in Guertin and the Flint Water Cases. And as it “concluded that the claims can go forward against the individual City officials,” it allowed the Monell claim against the City to also proceed.

Substantive due-process & state-created-danger claims under 42 USC § 1983 for lead-contaminated drinking water; Whether plaintiffs stated a claim for violation of “bodily integrity” under the Fourteenth Amendment against defendants-city & state officials; Guertin v Michigan; Whether the right to bodily integrity was “clearly established” for purposes of qualified immunity; In re Flint Water Cases; Claim against defendant-city under Monell v Department of Soc Servs; Supplemental jurisdiction over state-law claims

[This appeal was from the WD-MI.]  The court held that plaintiffs plausibly pled a violation of the Fourteenth Amendment right to bodily integrity against defendants-City of Benton Harbor officials and their Monell claim against defendant-City arising from lead-contaminated water. Thus, it reversed the dismissal of those claims and remanded. It also reversed and remanded as to the district court’s order declining supplemental jurisdiction over the state-law claims. But it affirmed the dismissal of the claims against defendants-State officials. This case was brought by children living in Benton Harbor who have elevated levels of lead in their blood after drinking City water. They sued the City and various officials under § 1983 alleging substantive-due-process and state-created-danger violations and state-law negligence against engineering firms. The district court granted defendants’ motion to dismiss for failure to state a claim and based on qualified immunity and declined to exercise supplemental jurisdiction. As to plaintiffs’ bodily integrity claim, under Guertin, they were required to show not only that their “bodily integrity was infringed, but also that it was infringed by government officials’ discretionary, ‘constitutionally repugnant’ actions.” This involves a “shock the conscience” standard. The court found that if plaintiffs’ “claims are true—that the City officials lied about the presence of lead in the Benton Harbor water supply, thereby causing residents to drink the water—that would shock the conscience.” That is all that was needed at this stage of the litigation. While the court determined that plaintiffs failed to allege that the State defendants were “deliberately indifferent” to a known risk of harm, the result was not the same for the City defendants. The court held that “the complaint’s allegations regarding the City officials tell a plausible tale of deliberate indifference to a known risk of harm.” The court reviewed false statements made by City officials “that the City itself had no lead lines” and the complaint’s allegations that one of them “attempted to cover up the extent of the problem or, at least, remained willfully blind to its scale and severity.” The complaint alleged that they “‘dishonestly and publicly stated that inroads were being made regarding eliminating lead from the water,’ even as lead levels were rising.” These allegations were sufficient to allow the claim to go forward. The court also found that, for purposes of qualified immunity, it recognized the right to bodily integrity related to a water crisis “as a preexisting, clearly established right” in Guertin and the Flint Water Cases. And as it “concluded that the claims can go forward against the individual City officials,” it allowed the Monell claim against the City to also proceed.

Waiver of jurisdiction over respondent; MCL 712A.4(4) factors; Seriousness of the crimes; Culpability; Prior record of delinquency; Programming history; Adequacy of punishment or programming available in the juvenile system; Dispositional options; Suitability of the programs & facilities available in the adult system

Finding that the “family court adequately considered the statutory factors, and its ultimate conclusion was principled and reasoned,” the court held that respondent-juvenile did not establish “that the family court erred when it waived its jurisdiction over” him. Thus, it affirmed the order waiving jurisdiction over him and transferring proceedings to the criminal division. “At the Phase II hearing governed by MCL 712A.4(4) and MCR 3.950(D)(2), the family court found that the interests of the public and the juvenile would be served by waiving jurisdiction and transferring proceedings to the circuit court.” As to the seriousness of the crimes, he argued “that the family court abused its discretion by determining that this factor supported waiver because [his] alleged crimes were property crimes that did not involve respondent’s use of a weapon. However, the family court acknowledged this potential argument and found that it was not persuasive[.]” Also, while “family courts are required to consider the statutory factors, [they] retain the discretion to consider other facts to make the ultimate determination whether to waive jurisdiction over a juvenile.” In this case, “the family court discussed the risks that respondent faced by associating with other individuals who did have weapons[.]” Further, the court held that “the fact that no one was physically injured during respondent’s alleged property crimes does not preclude a finding that the offenses were serious enough to support waiver.” Thus, the “family court did not err when it considered the specific facts of respondent’s case and determined that MCL 712A.4(4)(a) weighed in favor of waiver.” Also, it found that “the family court did not abuse its discretion when it determined that MCL 712A.4(4)(b) supported waiver.” Respondent correctly observed “that there was no specific testimony at the Phase II hearing regarding whether [he] was involved in planning the alleged crimes. But the family court could reasonably infer from the evidence of [his] participation in nearly all aspects of the crime spree that he was involved in at least some planning.” Additionally, the family court’s finding as to his “prior record of juvenile delinquency does not fall ‘outside the range of principled outcomes’ and, accordingly, is not an abuse of discretion.” The court also found that the “family court adequately considered” factor (d) “and did not abuse its discretion by finding that” it weighed in favor of waiver. As to the adequacy of juvenile punishment or programming, its findings were supported by Officer W’s “testimony that respondent had trouble staying away from negative peers and that ‘a good majority’ of [his] involvement with the judicial system was a result of the influence of inappropriate peers.” Finally, the court held that while “the family court did not explicitly consider available adult programming, [it] did not clearly err or abuse its discretion.”

Sufficiency of the evidence for first-degree murder, second-degree murder, & AWIM convictions; Self-defense; MCL 780.971 & 972; People v Dupree; Premeditation; People v Smith

The court held that there was sufficient evidence to disprove defendant’s self-defense claim and to support his convictions. He was convicted of first-degree murder, second-degree murder, AWIM, FIP, and felony-firearm for shooting and killing two victims (J and B) and wounding a third during an altercation at a home. On appeal, the court rejected his argument that there was insufficient evidence to support his convictions because the prosecution failed to prove he did not act in self-defense, and failed to establish premeditation as to B. First, the “evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that [defendant] (1) was the aggressor, (2) did not honestly and reasonably believe deadly force was immediately necessary, and (3) was not under threat of serious bodily injury.” Second, as to premeditation, sufficient evidence contradicted defendant’s “testimony and preferred narrative.” There was evidence he “started the altercation, and pulled the gun from his sweatshirt pocket. [B] was not blocking the exit, nor did he have a gun.” Defendant shot B “in the back three times as he was running away,” and assuming he “initially began shooting in reaction to [J], who ‘walked up in [defendant’s] face,’ and attempted to grab him by the shirt collar, viewing the evidence in the light most favorable to the prosecution, [defendant] eliminated the immediate threat when [J] fell to the ground. Rather than retreat, he continued to shoot at [B], who was fleeing with his back turned.” Viewed in the “light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that” defendant’s murder of B was premeditated. Affirmed.

Ineffective assistance of counsel; Trial strategy; Firearm identification; Expert testimony; MRE 702; Daubert v Merrell Dow Pharm, Inc; Comparing United States v Brown (7th Cir); Counter expert; Motion to suppress; Search warrant affidavit; Probable cause; Totality of the circumstances; Hearsay

The court held that defendant failed to establish ineffective assistance of counsel arising from defense counsel’s decisions not to pursue a counter expert to rebut the prosecution’s firearm and toolmarks testimony, or to seek suppression of the murder weapon. He was convicted of second-degree murder and felony-firearm for shooting and killing the victim during an altercation at a block party outside of a bar. On appeal, the court rejected his argument that he was denied the effective assistance of counsel. First, “excluding firearm match testimony on the basis of the unreliability of its underlying methods would be unprecedented, and defense counsel would have been asking the [trial] court to venture into uncharted waters. Declining to make such a request cannot be described as an unprofessional error.” In addition, defense “counsel’s decision not to call a counter expert to challenge the validity of the prosecution’s firearm identification evidence was a sound exercise of trial strategy.” Calling a “counter expert to cast doubt on whether defendant’s gun was the murder weapon would have undercut this strategy.” Further, defendant failed to show “that this choice of strategy was the result of an incomplete investigation.” Finally, the search warrant affidavit “provided a substantial basis for a finding of probable cause.” Affirmed.

National Voter Registration Act (NVRA); 52 USC § 20507; Removal of dead voters from the voting list; § 20507(a)(4)(A); Private right of action; § 20510(b); Bellitto v Snipes (11th Cir); Help America Vote Act; §§ 20901–21145; Michigan election law statutes; MCL 168.509o(4); “Qualified voter file” (QVF); Discovery disputes; Quashing a subpoena; Standing to bring an action alleging failure to produce records; Campaign Legal Ctr v Scott (5th Cir); Public Interest Legal Foundation (PILF); Electronic Registration Information Center (ERIC)

[This appeal was from the WD-MI.] Noting it had not previously considered “what efforts are enough to be considered reasonable” under the NVRA, the court held that a “state that actively makes efforts to remove dead registrants based on state and federal death records is engaging in an inherently rational, sensible attempt at maintaining accurate voter registration lists.” It concluded that “Michigan makes a reasonable effort” to maintain accurate voter rolls. Thus, it affirmed summary judgment for defendant-Benson in her official capacity as Michigan Secretary of State on plaintiff-PILF’s claim that she failed to comply with the NVRA by not removing dead registrants from voter rolls and by refusing to grant PILF access to public records relating to the rolls. The court first explained the relevant federal and state law pertaining to Michigan’s voter file, the QVF. It then considered the district court’s denial of PILF’s discovery motions and concluded that it could only review the one discovery appeal that PILF had filed in the district court—the quashed subpoena to appellee-ERIC. It held that PILF failed to show prejudice. It next reviewed Count I of PILF’s complaint alleging a NVRA violation for failure to conduct list maintenance. It agreed with the district court that states are required to make “only a ‘reasonable effort,’ not a perfect effort,” to remove registrants who have died. It rejected PILF’s interpretation of “reasonable efforts,” holding that “the plain language of the statute, not legislative history or the Justice Department’s actions, determine the law’s meaning." The district court reviewed what other courts have considered to be “reasonable efforts” and noted that federal data shows “‘Michigan is consistently among the most active states in cancelling the registrations of deceased individuals.’” It further “noted that Michigan undertakes a number of steps to ensure a well-functioning program, including: (1) comparing Social Security Administration death reports on a weekly basis to” the state’s software system (CARS) “list; (2) reconciling the QVF with the CARS driver file on a quarterly basis; and (3) manually reviewing the bimonthly ERIC reports, which are created by comparing the QVF to the Social Security Death Index.” The court held that the district court correctly determined “that Michigan’s programs fell squarely within the NVRA’s reasonable effort language.” As to Count II of the complaint, alleging failure to produce records, the court held that plaintiff lacked standing where “PILF is not a registered voter, nor has it claimed organizational standing on behalf of registered voters, in the voting jurisdiction at issue.”

Child custody; Established custodial environment (ECE); Pierron v Pierron; Great weight of the evidence; The statutory best-interest factors; MCL 722.23; Ritterhaus v Ritterhaus; Factors (b), (d), (f), (g), & (h); The trial court’s findings; Legal custody; MCL 722.26a(1)(a) & (b); Bofysil v Bofysil

The court held that the trial court did not err by granting defendant-mother sole legal and physical custody of the parties’ two children. On appeal, the court rejected plaintiff-father’s argument that the trial court’s finding that an ECE existed only with defendant was against the great weight of the evidence. The trial court “acknowledged the children’s bond and time spent with plaintiff, but it also found that the evidence had clearly demonstrated that the children had a ‘much stronger’ bond with defendant and ‘look[ed] primarily to [defendant] for love, guidance, security, and the necessities of life.’” It also found “that defendant was the children’s primary caregiver throughout their lives, including after the parties’ separation.” Further, plaintiff “spent little time with the children during the parties’ marriage and even less so following his suicide attempt, and he seemingly made few attempts to engage in additional parenting time with the children following the parties’ separation.” The trial court also “considered plaintiff’s mental health and the impact it had on his ability to parent, concluding that plaintiff’s ‘mental health and impulsive behaviors continue to have a negative impact on how he is able to effectively parent’ and have ‘negatively affected’ the children.” The court also rejected plaintiff’s claim that the trial court erred in its analysis of the best-interest factors. “The trial court’s factual findings and legal conclusions regarding the challenged factors were by no means lacking, and [it] left a sufficiently clear record” for the court to determine “whether the evidence clearly preponderated against” its findings. Further, the trial court’s findings as to each of the challenged factors were not against the great weight of the evidence. Finally, the court rejected plaintiff’s contention that the trial court abused its discretion by granting defendant sole legal custody of the children, noting it was clear “that the parties’ relationship had broken down to a point where they could no longer communicate, cooperate, and generally agree concerning decisions about the children. Considering that, along with the 12 best-interest[] factors, the trial court did not err by determining that sole legal custody with defendant, rather than joint legal custody, was in the children’s best interests.” Affirmed.

Waiver of jurisdiction over respondent; MCL 712A.4(4) factors; Seriousness of the crimes; Culpability; Prior record of delinquency; Programming history; Adequacy of punishment or programming available in the juvenile system; Dispositional options; Suitability of the programs & facilities available in the adult system

Finding that the “family court adequately considered the statutory factors, and its ultimate conclusion was principled and reasoned,” the court held that respondent-juvenile did not establish “that the family court erred when it waived its jurisdiction over” him. Thus, it affirmed the order waiving jurisdiction over him and transferring proceedings to the criminal division. “At the Phase II hearing governed by MCL 712A.4(4) and MCR 3.950(D)(2), the family court found that the interests of the public and the juvenile would be served by waiving jurisdiction and transferring proceedings to the circuit court.” As to the seriousness of the crimes, he argued “that the family court abused its discretion by determining that this factor supported waiver because [his] alleged crimes were property crimes that did not involve respondent’s use of a weapon. However, the family court acknowledged this potential argument and found that it was not persuasive[.]” Also, while “family courts are required to consider the statutory factors, [they] retain the discretion to consider other facts to make the ultimate determination whether to waive jurisdiction over a juvenile.” In this case, “the family court discussed the risks that respondent faced by associating with other individuals who did have weapons[.]” Further, the court held that “the fact that no one was physically injured during respondent’s alleged property crimes does not preclude a finding that the offenses were serious enough to support waiver.” Thus, the “family court did not err when it considered the specific facts of respondent’s case and determined that MCL 712A.4(4)(a) weighed in favor of waiver.” Also, it found that “the family court did not abuse its discretion when it determined that MCL 712A.4(4)(b) supported waiver.” Respondent correctly observed “that there was no specific testimony at the Phase II hearing regarding whether [he] was involved in planning the alleged crimes. But the family court could reasonably infer from the evidence of [his] participation in nearly all aspects of the crime spree that he was involved in at least some planning.” Additionally, the family court’s finding as to his “prior record of juvenile delinquency does not fall ‘outside the range of principled outcomes’ and, accordingly, is not an abuse of discretion.” The court also found that the “family court adequately considered” factor (d) “and did not abuse its discretion by finding that” it weighed in favor of waiver. As to the adequacy of juvenile punishment or programming, its findings were supported by Officer W’s “testimony that respondent had trouble staying away from negative peers and that ‘a good majority’ of [his] involvement with the judicial system was a result of the influence of inappropriate peers.” Finally, the court held that while “the family court did not explicitly consider available adult programming, [it] did not clearly err or abuse its discretion.”

Defamation; Absolute privilege; Kefgen v. Davidson; Qualified privilege; Smith v Fergen; Tumbarella v Kroger Co; Attorney fees & costs; MCL 600.2911(7); Adherence to the jury’s finding; MCR 2.515(B); Frivolousness; MCL 600.2591; Actual malice; Additur; MCR 2.611

Finding no errors requiring reversal, the court affirmed the trial court’s rulings in this case involving defamation. The parties filed various lawsuits against each other. One party, Dubs, sued another, Bowles, alleging defamation and interference with a business relationship in connection with Bowles’ allegation that Dubs (a teacher and coach at her school) pulled her toward him in a gym and kissed her. He also sued for abuse of process and malicious prosecution in connection with the filing of a police report and a petition for a PPO. And Bowles sued Dubs, alleging assault, as well as abuse of process in connection with the filing of his lawsuit. Bowles also sued Dubs’ girlfriend, defendant-Repkie, alleging defamation and “disclosure of embarrassing private facts” in connection with Repkie’s statements at a school board meeting. And Repkie sued Bowles, alleging her lawsuit amounted to abuse of process and malicious prosecution. The jury found Bowles and her mother, BB, defamed Dubs, and that Repkie defamed Bowles, but rejected the other claims. On appeal, the court rejected Repkie’s argument that the trial court should have granted her summary disposition of Bowles’s defamation claim. “Ultimately, the trial court did not err by finding that a genuine issue of material fact existed for trial. Bowles presented adequate evidence of the elements of defamation. Repkie continually refer[red] to trial testimony in support of her assertion that her statements were substantially true, but the question before the trial court, and before” the court was “whether Bowles presented enough evidence to raise a question of fact at the summary disposition stage. We find that she did.” The court also rejected Bowles’ claim that the trial court should have awarded her attorney fees and costs, and that Dubs’ defamation theory was legally deficient. “The trial court did not err by adhering to the jury’s precise finding regarding attorney fees and other damages, as MCR 2.515(B) required it to do so.” The trial court “explained that the litigation had been extensive and contentious from all sides, and it decided that costs would not be awarded in either lower court docket number.” This was not an abuse of discretion. Further, Dubs’ “allegation of defamation per se was legally adequate.” Finally, the court rejected Dubs’ contention that the trial court erred by denying his motion for additur or a new trial on damages, noting: 1) Bowles’s attorney cross-examined Dubs’ online reputation expert (C) and did not simply accept the testimony at face value, 2) the jurors were free to disbelieve C, 3) the jurors knew they were finding in Dubs’ favor on the defamation claim and may have inferred this finding would make its way online, and 4) there was “no evidence that the jury’s verdict on the additur issue was motivated by passion or prejudice.” 

Defamation; Absolute privilege; Kefgen v. Davidson; Qualified privilege; Smith v Fergen; Tumbarella v Kroger Co; Attorney fees & costs; MCL 600.2911(7); Adherence to the jury’s finding; MCR 2.515(B); Frivolousness; MCL 600.2591; Actual malice; Additur; MCR 2.611

Finding no errors requiring reversal, the court affirmed the trial court’s rulings in this case involving defamation. The parties filed various lawsuits against each other. One party, Dubs, sued another, Bowles, alleging defamation and interference with a business relationship in connection with Bowles’ allegation that Dubs (a teacher and coach at her school) pulled her toward him in a gym and kissed her. He also sued for abuse of process and malicious prosecution in connection with the filing of a police report and a petition for a PPO. And Bowles sued Dubs, alleging assault, as well as abuse of process in connection with the filing of his lawsuit. Bowles also sued Dubs’ girlfriend, defendant-Repkie, alleging defamation and “disclosure of embarrassing private facts” in connection with Repkie’s statements at a school board meeting. And Repkie sued Bowles, alleging her lawsuit amounted to abuse of process and malicious prosecution. The jury found Bowles and her mother, BB, defamed Dubs, and that Repkie defamed Bowles, but rejected the other claims. On appeal, the court rejected Repkie’s argument that the trial court should have granted her summary disposition of Bowles’s defamation claim. “Ultimately, the trial court did not err by finding that a genuine issue of material fact existed for trial. Bowles presented adequate evidence of the elements of defamation. Repkie continually refer[red] to trial testimony in support of her assertion that her statements were substantially true, but the question before the trial court, and before” the court was “whether Bowles presented enough evidence to raise a question of fact at the summary disposition stage. We find that she did.” The court also rejected Bowles’ claim that the trial court should have awarded her attorney fees and costs, and that Dubs’ defamation theory was legally deficient. “The trial court did not err by adhering to the jury’s precise finding regarding attorney fees and other damages, as MCR 2.515(B) required it to do so.” The trial court “explained that the litigation had been extensive and contentious from all sides, and it decided that costs would not be awarded in either lower court docket number.” This was not an abuse of discretion. Further, Dubs’ “allegation of defamation per se was legally adequate.” Finally, the court rejected Dubs’ contention that the trial court erred by denying his motion for additur or a new trial on damages, noting: 1) Bowles’s attorney cross-examined Dubs’ online reputation expert (C) and did not simply accept the testimony at face value, 2) the jurors were free to disbelieve C, 3) the jurors knew they were finding in Dubs’ favor on the defamation claim and may have inferred this finding would make its way online, and 4) there was “no evidence that the jury’s verdict on the additur issue was motivated by passion or prejudice.” 

Violations of the Open Meetings Act (OMA); MCL 15.263(1)-(3); Whether a city’s marijuana license Selection Committee was a “public body”; Pinebrook Warren, LLC v City of Warren (Pinebrook Warren II)

On remand from the Supreme Court for reconsideration in light of Pinebrook Warren II, the court held that the trial court erred in ruling that defendant-Westland Marijuana Selection Committee (the SC) “could not have violated the OMA because it was not a ‘public body.’” The case arose from defendant-city’s process for granting licenses to sell marijuana. “The OMA requires that ‘meetings,’ ‘decisions,’ and ‘deliberations’ of a ‘public body’ must be open to the public.” The Supreme Court, in Pinebrook Warren II, held that defendant-city of Warren’s “Review Committee, which functioned in a very similar manner to that alleged with respect to the city’s [SC] in this case, was acting as a ‘public body.’” The allegations here were “very similar to those in Pinebrook Warren. In both cases, a separate committee was set up to review and score applications for licenses, and the final results were sent to the governing body, the city council, for its decision. Plaintiffs alleged in this case, as was alleged in Pinebrook Warren, that the committee was charged with reviewing and scoring the applications, and that the city council did not independently consider the merits of those applications. Therefore, under Pinebrook Warren II, plaintiffs’ allegations, if proven, would support the conclusion that the [SC] in this case was the de facto decisionmaker” as to awarding marijuana-seller licenses and thus, “subject to the OMA.” The arguments made by defendants and intervening defendants did “not alter this conclusion.” While they pointed “out that appeals from the decisions of the city’s Review Board were open to the public, it is the activity of the [SC] that is at issue in plaintiffs’ OMA claims. By the time the Review Board heard appeals, the selection process had been completed and the applicants had already been ranked.” Further, it appeared that it “made no changes to the [SC’s] recommendations, suggesting that [it] may have merely ‘rubber stamped’ the [SC’s] work. Additionally, the city council arguably had insufficient time to engage in an independent review of the work performed by the [SC] if it was only acting in an advisory capacity. Defendants and intervening defendants” failed to establish this case was “different enough from Pinebrook Warren to compel a conclusion that they should prevail as a matter of law.” The court reversed the portion of the order granting them summary disposition under MCR 2.116(C)(8) on the OMA claims and remanded.

Jurisdiction under MCR 7.203(A); “Aggrieved party”; In re Jackson/Jenkins/Jones (Unpub); Whether the release of parental rights was knowing or voluntary; Lawyer-guardian ad litem (LGAL); Advice of rights under MCR 3.971(B); Prejudice

The court concluded “that when a parent challenges the validity of a release of parental rights on the ground that it was not made knowingly or voluntarily, the parent alleges a concrete injury arising from the trial court’s order and qualifies as an aggrieved party for purposes of appellate jurisdiction.” It affirmed the trial court’s order finding respondent-mother’s release was both knowing and voluntary, and terminating her parental rights. The DHHS argued the court lacked “jurisdiction to consider the appeal because [she] consented to termination and [was] therefore not an ‘aggrieved party’ under MCR 7.203(A).” She countered that she was aggrieved because her release was not knowing or voluntary. The jurisdictional question was whether her voluntary release operated as a consent judgment that precluded her from being “aggrieved.” The court found Jackson/Jenkins/Jones persuasive and concluded “that, in a termination of parental rights proceeding, a respondent who released their parental rights is an aggrieved party under MCR 7.203(A) when challenging the validity of the release itself.” It found that “even if an order terminating parental rights based on a release is analogous to a consent judgment, it does not necessarily follow that respondent is precluded from appealing from it. Because the termination here was based on a release respondent now claims was defective,” the court rejected the DHHS’s argument that the release deprived it of jurisdiction. She contended the trial court erred in accepting her release because it was not knowing or voluntary. The court found the release left “little room for second-guessing” as it expressly stated she made “a considered decision that termination was in her children’s best interests and” did not contest it. At the adjudication trial, respondent confirmed that the release was “a correct statement.” The trial court conducted a colloquy to ensure she “understood the consequences of the release, including that she would lose the ability to make decisions regarding her children’s healthcare, education, or daily life, and that the children would be placed for adoption. Both respondent’s counsel” and LGAL confirmed she “knowingly and voluntarily executed the release and had the opportunity to consult with counsel about its impact. [She] also requested a final goodbye visit with her children, which the [trial] court granted, and she was advised of her appellate rights.” The court concluded that nothing suggested “the release resulted from misunderstanding, intimidation, coercion, or deception.” Instead, it “was the product of respondent’s free, deliberate, and informed choice.” On appeal, she claimed her “release was invalid because the trial court did not advise her of the rights set forth in MCR 3.971(B), which outlines admonitions a court must provide before accepting a plea of admission or no contest to statutory grounds for termination. However, those warnings apply when a respondent admits to statutory grounds at the adjudication phase of the proceedings.” Because her “release was not a plea, the trial court was not required to provide the” advisements. Even if it erred in accepting her release, she could not show prejudice.

Termination under §§ 19b(3)(c)(i) & (c)(ii); Failure to make meaningful change; In re Williams

Holding that §§ (c)(i) and (c)(ii) were met, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis of housing instability, substance use, and failure to comply with court-ordered services and treatment plans. On appeal, the court rejected her argument that a statutory ground for termination was not met. It noted that § (c)(i) was met as respondent “did not accomplish any meaningful change in her lack of adequate housing after more than two years, and there is no reasonable likelihood that the conditions would be rectified within a reasonable time considering the children’s ages.” It also found that § (c)(ii) was met as she “did not accomplish any meaningful change in the other conditions that existed, and there [was] no reasonable likelihood that the conditions would be rectified within a reasonable time considering the children’s ages.”