Ineffective assistance of counsel; People v. Trakhtenberg; People v. Lockett; Futile objections; People v. Thomas; Other acts evidence; MRE 404(b); People v. VanderVliet; Relevant evidence; MRE 401; People v. Chelmicki; People v. Knox; Admissibility of prior acts of domestic violence where defendant is charged with domestic violence; MCL 768.27b(1); MRE 403; Unfair prejudice; People v. Magyar; People v. McGhee; Presumption jurors follow their instructions; People v. Mahone; Failure to give notice under MCL 768.27b(1) or MRE 404(b) as plain error; People v. Hawkins; Sufficiency of the evidence for third-degree child abuse conviction (MCL 750.136b); Physical harm defined; MCL 750.136b(1)(e); The affirmative defense of parental discipline; MCL 750.136b(9); People v. Sherman-Huffman; Elements of domestic violence; MCL 750.81(4); Assault & battery defined; People v. Starks

Rejecting defendant’s ineffective assistance of counsel claims and holding that there was sufficient evidence for the jury to conclude beyond a reasonable doubt that he did not use reasonable force, the court affirmed his third-degree child abuse and domestic violence, third offense convictions. He argued that his trial counsel was ineffective for failing to object to portions of victim-P’s (defendant’s daughter) testimony. The court disagreed, concluding that even if trial counsel had objected, it would have been futile. P’s “testimony was logically relevant and probative of” his intent, which was an element of third-degree child abuse. Further, “evidence of prior acts of domestic violence was properly admitted under MCL 768.27b(1).” Also, her testimony that he slapped her “within the year prior to the incident was relevant to the third-degree child abuse charge in order to show that defendant intended to slap [her] and that it was not an accident or mistake.” In addition, evidence that he told her not to tell anyone would similarly be relevant. Further, her testimony “was not substantially outweighed by the danger of unfair prejudice.” It was not extraneous to the merits of the case given that it was highly probative to determining whether defendant committed the charged crimes, and the trial court limited the danger of unfair prejudice with a jury instruction. “Because evidence of other acts of domestic violence was relevant and not unduly prejudicial, any objection would have been futile.” While the record did not contain any evidence the prosecution provided the notice required under MCL 768.27b(1) or MRE 404(b), and failing to give it has been held to be plain error, the court found the error harmless here. It also rejected defendant’s claim that the prosecution failed to offer sufficient evidence to overcome his affirmative defense of parental discipline. P testified that “defendant ‘backhanded’ her, which caused her to fall backward and hit her head on a metal bar; when she stood up, her vision was blurred and she felt dizzy.” She testified that he left a bruise resembling “two of his fingerprints. She also testified that [he] spanked her three or four times and that . . . it ‘hurt really bad’ for around 20 minutes, that it hurt to sit down, and that it ‘left a hand print for a while[.]’ A jury could reasonably” find that the force used exceeded what “would be ‘reasonable,’ supporting” its verdict.

Sentencing; People v. Lockridge; Reasonableness; People v. Dixon-Bey; People v. Milbourn; People v. Walden; Consideration of the facts underlying uncharged crimes; People v. Coulter (After Remand); People v. Williams

Holding that the departure sentence imposed was proportionate to the seriousness of the circumstances surrounding the offense and the offender, the court affirmed. Defendant pled guilty to being a prisoner in possession of a controlled substance and was sentenced to serve 30 to 60 months. Her sole argument was that the trial court abused its discretion by departing upwards from the guidelines range of 0 to 17 months and sentencing her to 30 to 60 months. The trial court articulated several factors in support of imposing the departure sentence. First, it noted that defendant had other charges that were dismissed by the prosecution as part of a plea bargain when she pled guilty to the current charge. The “trial court noted that felony charges of furnishing contraband to a prisoner and absconding bond had been dismissed pursuant to the plea agreement. Further, the prosecution’s notice of defendant’s status as a third-offense habitual offender was also dismissed.” The trial court also noted that the dismissed charges, particularly had she “been sentenced as a third offense habitual offender, could have carried sentences substantially larger than” the one imposed here. “These were appropriate considerations.” Also, the trial court noted that the Class H grid, MCL 777.69, under which she was sentenced, accounted for a total of only 16 OV points, while her total OV score was 26 points. Although 25 points were scored for OV 19 because she brought marijuana into the jail, the record indicated that OV 19 did not account for her conduct in absconding bond, her refusal to participate in random drug testing, her failure to adhere to an order for random drug testing, her failure to appear for a show-cause hearing after a bench warrant was issued, and her failure to appear at another hearing, which resulted in the cancelation of her trial. The trial court properly explained why the sentence imposed was “more proportionate to the offense and the offender than a different sentence would have been.” Moreover, it clearly indicated “it would have imposed the same sentence even if the guidelines were scored differently or if only one of the cited factors existed.”

Whether the prosecution intentionally procured a witness’s unavailability; MRE 804(b)(1); People v. Garland; Principle that assertion of a Fifth Amendment privilege against self-incrimination generally renders a witness unavailable; People v. Meredith; MRE 804(a)(5); People v. McIntosh; People v. Pena; People v. Crabtree; Penalties for perjury; MCL 750.422

Concluding that the trial court did not err in finding that “the prosecutor intentionally procured the unavailability of a key witness” (H) or abuse its discretion in ruling that defendants-Reed and Lopez should receive a new trial, the court vacated their convictions and remanded for a new trial. During the trial, H declared his intent to invoke his Fifth Amendment right not to testify. His attorney stated that this was due to perjury concerns. H stated, “The prosecutor’s [sic] told me—they threatened me with life in prison.” The trial court decided at the time that H was unavailable under MRE 804 and thus, the prosecution could admit his preliminary exam testimony. In this appeal following a prior remand and an evidentiary hearing, the court held that the trial court’s factual findings on remand "were not clearly erroneous and that its conclusions are well-supported by the record.” The trial court noted that the prosecutor’s testimony about H’s unimportance conflicted with his statements at H’s sentencing hearing, where he called H his “star witness.” The trial court determined that he did not simply explain the consequences of perjury to H, but rather told him “in an aggressive and threatening manner that he could face life in prison if his trial testimony” differed from his preliminary exam testimony. Defendants’ attorneys “described the prosecutor’s remarks as threatening, aggressive, and matter-of-fact, and not as a mere explanation of [H’s] rights. [H] testified similarly.” The trial court determined that “the prosecutor’s comments were similar to the judge’s remarks in Webb . . . .” Further, under Pena simply “sending a letter outlining the perjury statute is likely improper, . . . and the prosecutor’s remarks in this case went far beyond that line, given that he (1) personally met with [H] without permission from [H’s] attorney, (2) used a threatening and aggressive tone, and (3) gave an improper statement of the law.” The trial court reasonably determined “that the prosecutor intended to scare [H] into either testifying as he did at the preliminary” exam or electing not to testify due to “fear of the consequences, thereby making himself unavailable and allowing the prosecutor to use his preliminary” exam testimony. This prohibited the application of MRE 804 and the admission of H’s preliminary exam testimony. Further, its admission was not harmless error as it was the only evidence tying defendants to the murder.

Jurisdiction under the Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA) (MCL 722.1101 et seq.); MCL 722.1105(1); Atchison v. Atchison; Chessman v. Williams; Ramamoorthi v. Ramamoorthi; In re McDonald; Home state jurisdiction; MCL 722.1201(1) & (2); “Home state”; MCL 722.1102(g); MCL 722.1206(1)(a); “Commencement”; MCL 722.1102(e); Principle that physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child-custody determination; MCL 722.1201(3); Waiver; Sweebe v. Sweebe; Winters v. Dalton; Stipulated orders; Phillips v. Jordan

The court held that the trial court did not err by finding that Mexico had subject-matter jurisdiction over the parties’ divorce pursuant to the UCCJEA because the children had been living there for six consecutive months before defendant-father filed his divorce complaint in Mexico and divorce proceedings were initiated there first. On appeal, the court rejected plaintiff-mother’s argument that the UCCJEA did not apply because the parties were on an extended vacation with the children in Mexico. It was “objectively true that the family had been in Mexico for three years prior to their transport to the United States and that defendant remained in Mexico at the onset of the proceedings. The trial court properly analyzed the case pursuant to the UCCJEA where a child-custody proceeding was initiated in both Michigan and Mexico, and one party resided outside of Michigan.” It also rejected her claim that even if the UCCJEA did apply, only Michigan had home state jurisdiction. “The trial court noted that there may be some issues with plaintiff traveling to Mexico and defendant’s residency status in Mexico, but those issues had not been established in the existing record (the parties merely presented these issues in argument and pleadings no actual evidence was provided).” As such, its “decision to decline jurisdiction despite having some concerns was not an abuse of discretion.” The court next rejected her contention that defendant breached the stipulation and waived his defense that he filed for divorce first in Mexico by filing a counterpetition under the Hague Convention with his motion to dismiss as to plaintiff’s divorce case in Michigan. The “counterpetition was filed in anticipation of the trial court finding that Michigan had subject-matter jurisdiction pursuant the UCCJEA and to preserve defendant’s defenses as contemplated by the stipulation. At best, [he] waived personal jurisdiction objections.” The trial court had to determine subject-matter jurisdiction and defendant could not waive this determination. It further rejected her argument that the trial court erred in failing to make any findings as to the Hague Convention or allow her to present her defenses. The trial court did not commit “any error, especially considering that plaintiff did not file her second motion for summary disposition (involving her arguments under the Hague Convention) until after the trial court issued its opinion regarding jurisdiction and the voluntary return order.” It found her remaining arguments meritless. Affirmed.

Divorce; Property distribution; Elahham v. Al-Jabban; Rights to vested pension; MCL 552.18(1); Vander Veen v. Vander Veen; Valuation & distribution of a pension’s interest; Pickering v. Pickering; Sparks v. Sparks; Keefer v. Keefer; Heike v. Heike; Hodge v. Parks; Eligible Domestic Relations Order (EDRO); Qualified Domestic Relations Order (QDRO)

The court held that the trial court did not err in its division of the parties’ pensions. It applied a 50/50 distribution method, finding that awarding 50% of each party’s pension was “the most equitable method for division,” and entered a judgment of divorce providing that plaintiff-ex-wife would receive 50% of defendant-ex-husband’s pension through an EDRO and defendant would receive 50% of plaintiff’s pension through a QDRO. On appeal, the court rejected his argument that the trial court erred by refusing to tailor its property division determination to defendant’s testimony that he anticipated retiring at age 48, and that its decision to distribute the pensions according to the 50/50 method rather than the offset method was unfair and inequitable. The trial court “was required to balance the equities in light of the all of the circumstances and did so.” It considered both pensions' value, the parties' contribution, "as well as the fairness of distributing the property in a manner that would allow the parties equal access to their share of the property, irrespective of any indefinite future actions taken by the parties.” The trial court “was not required to consider, as it noted, ‘unknown future events or actions by the parties,’ and thus, defendant has failed to show that the trial court’s equal division of the pensions was clearly inequitable.” Affirmed.

Personal protection insurance (PIP) benefits under the No-Fault Act (MCL 500.3101 et seq.); Principle that a trial court is required to balance the equities before holding that rescission is an appropriate remedy when an innocent third party is involved; Bazzi v. Sentinel Ins. Co.; Summary disposition under MCR 2.116(C)(10); Kosmalski ex rel Kosmalski v. St John’s Lutheran Church; Zaher v. Miotke

The court held that while the trial court correctly concluded that defendant-Everest was entitled to seek rescission of the insurance policy obtained by defendant-Cherea White through fraudulent misrepresentation, it erred in determining that plaintiff-Petite was automatically excluded from seeking benefits under the policy. Thus, it vacated and remanded to the trial court so that it can consider whether rescission was available as an equitable remedy as between Petite and Everest. The case arose from a motor vehicle accident where Petite was a passenger in a vehicle driven by defendant-Patterson. The vehicle was insured with Everest by White. Petite filed a claim seeking, in relevant part, PIP benefits. “Everest sought to preclude Petite’s claim, arguing that if it discovered that White made a material misrepresentation in obtaining the insurance policy, Everest could rescind the policy.” After discovery, it asserted that “White failed to list Richardson and their daughter as members of her household when she applied for” the policy, and that this misrepresentation entitled Everest to rescind it. Petite argued on appeal that the trial court erred by granting Everest summary disposition given the Supreme Court’s holding in Bazzi, “that a trial court is required to balance the equities before holding that rescission is an appropriate remedy when an innocent third party is involved.” The court agreed, concluding that the Supreme Court’s holding in Bazzi was “clear: when an insurance company seeks rescission, the trial court’s next step is to determine whether the insurance company’s claim concerning the third-party is justified by the equities of the case.” The trial court here did not undertake that analysis.

Motion to strike; MCR 2.115(B); McLaughlin v. Consumers Power Co.

The court held that the trial court did not abuse its discretion by striking plaintiff’s complaint and dismissing his action against defendant. Plaintiff sued defendant, an attorney who was representing plaintiff’s ex-wife in an ongoing domestic relations dispute, alleging a variety of claims. The trial court eventually granted defendant’s motion to strike the complaint and dismissed the case. On appeal, the court noted that “[d]espite having given plaintiff ample opportunity to correct the problems with plaintiff’s complaint, the trial court concluded that those problems were not corrected in the first amended complaint. The trial court analyzed the complaint in detail. In the general allegations, [it] noted that the complaint contained ‘impertinent, scandalous, and irrelevant information.’ . . . And, as with the entire pleading, it contained details related to the domestic matter but without identifying defendant’s involvement in a ‘concise, direct manner.’ [It] also noted that many of the allegations related to plaintiff’s perception of defendant’s efficiency in representing plaintiff’s ex-wife, as well as allegations that were legal conclusions.” In addition, the trial court “discussed that the complaint contained much information relevant to the underlying domestic matter, but not to this action. That is, many of the allegations simply did not relate to any of the claims in the complaint.” It further summarized many of them “as simply representing defendant ‘advocating on behalf of a client’ and that any impropriety in that advocacy ‘shall be judged by the proper authority.’ The trial court characterized parts of the complaint as plaintiff using it as ‘a forum to vent displeasure with events and filings that occurred during the domestic matter and relationships allegedly harmed as a result.’” And it noted that whether defendant’s claims in the domestic relations case lacked merit, as plaintiff alleged, was “an issue for the court in the domestic matter to decide.” Affirmed.

Jurisdiction; The Rooker-Feldman doctrine; D.C. Court of Appeals v. Feldman; Rooker v. Fidelity Trust Co.; Exxon Mobil Corp. v. Saudi Basic Indus. Corp.; Van Hoven v. Buckles & Buckles, P.L.C.; Berry v. Schmitt; McCormick v. Braverman; Lawrence v. Welch; Evans v. Cordray (Unpub. 6th Cir.); Todd v. Weltman, Weinberg & Reis Co.; Harold v. Steel (7th Cir.); Fair Debt Collection Practices Act (FDCPA) (15 USC § 1692 et seq.); Sheriff v. Gillie; §§ 1692e & 1692f; Michigan Collection Practices Act (MCL 445.251 et seq.); Michigan Occupational Code (MCL 339.101 et seq.); Post-judgment garnishment under Michigan state law; MCR 3.101(D)-(E) & (J)(1)

[This appeal was from the WD-MI.] The court reversed the district court's dismissal of plaintiffs' claims challenging the interest rate used on writs of garnishment, holding that the Rooker-Feldman doctrine did not deprive the district court of subject-matter jurisdiction. Plaintiffs are consumers who sued the defendants-law firms hired to collect on their debts under the FDCPA and Michigan statutes. Plaintiffs had been sued in state court, and judgments were entered against them. Defendants then filed for writs of garnishment. Plaintiffs brought this case in federal court, arguing that the interest rate defendants were using on the writs was too high, thus violating the FDCPA and Michigan statutes. The district court dismissed the case based on lack of subject-matter jurisdiction, ruling that plaintiffs’ claims were essentially appeals of the state-court judgments and writs of garnishment in the collection proceedings, and were barred under the Rooker-Feldman doctrine. The court reviewed the history and scope of the doctrine, and held that it only applies in “an exceedingly narrow” set of cases where “the source of the plaintiff’s injury is the state-court judgment itself . . . .‘If there is some other source of injury, such as a third party’s actions, then the plaintiff asserts an independent claim.’” In Van Hoven, which presented similar circumstances, the court held that “a writ of garnishment issued by a Michigan court ‘is not a state court judgment . . . .’” It noted that a writ of garnishment is not a judgment at all but “the result of a ‘ministerial process’” undertaken by the court clerk. Also, plaintiffs’ injuries were not based on the garnishments themselves but instead “‘the costs included in them.’” Thus, the court reversed the district court’s dismissal for lack of subject-matter jurisdiction and remanded.

Jurisdiction; Alston v. Advanced Brands & Importing Co.; Steel Co. v. Citizens for a Better Env’t; Untimely notice of appeal; 28 USC § 2107(a); Fed.R.App.P. 4(a)(1)(A); Bowles v. Russell; Extension of time to file a notice of appeal; § 2107(c); Rule 4(a)(5); Martin v. Sullivan; Poole v. Family Court of New Castle Cnty. (3d Cir.); Campos v. LeFevre (2d Cir.); Pryor v. Marshall; Hall v. Tennessee Dep’t of Corr. Main Hosp.

Even though plaintiff-Young’s notice of appeal was filed after the statutory 30-day time limit, the court remanded the case to the district court to consider whether he had established “excusable neglect or good cause” to justify an extension of time for filing a notice of appeal. In his notice, Young, an inmate, stated that he had been transferred to another prison and placed in the psychiatric unit where he was not allowed to have property in his possession when the judgment came down. He claimed that these factors were responsible for a delay in his receipt of the judgment, and resulted in his late filing. Appended to his motion were documents supporting his claim. The court noted that “district courts must liberally construe a document that could reasonably be interpreted as a motion for an extension of time to file a notice of appeal or a motion to reopen the time to file an appeal.” It concluded that Young’s notice of appeal effectively read “as a motion for an extension of time to file an appeal” and the court treated it as such.

Unjust enrichment; Michigan Ass’n of Home Builders v. City of Troy (MAHB); Genesee Cnty. Drain Comm’r v. Genesee Cnty.

On remand from the Michigan Supreme Court, the court concluded that MAHB and Genesee further supported its previous judgment and again vacated the circuit court’s partial summary disposition order because it improperly dismissed plaintiffs’ unjust enrichment claim. Plaintiffs brought a self-styled class-action case against defendant-West Bloomfield Charter Township, challenging fees levied by the township’s building division and asserting both equitable and legal claims. The court found that this case was similar to Genesee “in that while the plaintiffs in both actions do seek money from the defendants, the money is not meant as compensation.” Rather, plaintiffs here, like the plaintiff in Genesee, sought “the return of monies paid over to defendant that should not have been charged in the first instance and therefore was unjustly held by defendant. Requesting the return of the funds was not a tort or contract action, but an action to divest the township of benefits unjustly retained.” As the relief sought was equitable in nature, the claim was not barred by MAHB. Remanded.

Child’s best interests; The Indian Child Welfare Act (ICWA) (25 USC § 1901 et seq.); The Michigan Indian Family Preservation Act (MIFPA) (MCL 712B.1 et seq.); In re Payne/Pumphrey/Fortson; MCL 712B.5; § 1912(f); MCL 712B.15(4); MCR 3.977(G); In re Beers; Whether the decision was based only on respondent’s incarceration; Distinguishing In re Mason; Principle that the ICWA does not require the trial court to consider a guardianship over termination; Superiority of the child’s interest in a normal & stable family home to any interest respondent might have; In re Moss Minors

Concluding that the trial court did not base its best interests determination only on respondent-father’s incarceration, and complied with the ICWA, MIFPA, and MCR 3.977(G), the court affirmed the order terminating his parental rights. The child’s mother was a member of the Pokagon Band of the Potawatomi. Respondent’s only claim on appeal was that the trial court erred in finding that termination was in the child’s best interests. But the record showed that while he “appropriately parented the child during supervised visitation, his frequent incarcerations and his inability to control his substance abuse addiction precluded him from providing stability or security in the child’s life.” He had a lengthy criminal history before the child’s birth, and “continued to abuse substances and commit further crimes resulting in incarceration” during the case. He was incarcerated at the start “and was in prison during the termination hearing.” During the nearly three years the case was pending, he had been incarcerated for almost two years. He showed “he could not remain drug free for longer than a few months, and that he needed constant supervision in order to stay off illegal drugs and away from criminal activity.” The court found this case distinguishable from Mason, noting that “respondent here was provided with extensive services and participated by phone or video in every hearing while incarcerated. DHHS workers maintained contact with” him and visited him in prison. As to the alternative of a guardianship with relatives, the court noted that the “ICWA does not require that the court consider a guardianship over termination. In this case, the evidence showed that petitioner, the Pokagon Band representative during the pendency of this case, the expert Indian witness, the Pokagon Tribe, and the guardian ad litem all favored termination” over a guardianship, which would “have created a risk of uncertainty. The child had lived his entire life with his maternal aunt and extended family, was an integrated member of the family and the tribe, and called his maternal aunt and uncle Mom and Dad. Their home was stable and the family lived by the values, beliefs, and practices of the Pokagon Band.” The court noted that the child’s interest in a stable, normal family home “is clearly the desire, concern, and purpose of the ICWA.”

Termination under §§ 19b(3)(b)(i), (b)(ii), (g), (j), & (k)(iii); The Americans with Disabilities Act (42 USC § 12101 et seq.); Waived issue; In re Terry; In re Martin; In re Hudson; “Severe physical abuse”; Severe defined

Holding that the statutory grounds for termination existed, the court affirmed termination of respondent-mother’s parental rights to the children (TR, T, E, and M). Regarding § (b)(i), the children were removed from their mother’s care after T reported that respondent beat her. T told the foster care worker (S) that respondent had banged T’s head on the floor, which E reported as having seen. Moreover, T testified that, when her mother was intoxicated, she used her fists to hit T. S testified as to having seen the scratch on T’s head as a result of her head being banged on the floor, and another witness testified as to having seen new and old bruises on T’s body that T reported were the result of respondent assaulting her. Thus, the trial court did not err in finding that the mother had physically abused T. Moreover, the trial court did not err in finding that there was a reasonable likelihood that her children would suffer from injury or abuse in the foreseeable future if returned to her care. Concerning § (b)(ii), the court held that because of the mother’s history of allowing the “children to be sexually abused and her continuous struggle with substance abuse, the trial court did not err in finding that there” was a reasonable likelihood that they would be harmed if returned to her home. Also, regarding § (g), the trial court did not err in finding that there was no reasonable expectation that the mother would be able to provide proper care and custody within a reasonable time given the children’s ages. Further, as to § (j), because of the mother’s “extensive history of substance abuse, physical abuse, failure to protect her daughters from sexual abuse, and her failure to rectify these conditions after having received court-ordered services multiple times over 14 years, the trial court did not err in finding that there is a reasonable likelihood that the children would be physically or emotionally harmed if returned to” her care. Finally, as to § (k)(iii), her abuse of T constituted severe physical abuse.

Termination under § 19b(3)(g); A parent’s failure to comply with the parent-agency agreement (PAA) as evidence of failure to provide proper care & custody; In re JK; Principle that only one statutory ground is required; In re Martin; Child’s best interests; MCL 712A.19b(5); In re Olive/Metts Minors; In re White

Holding that the trial court did not clearly err in finding that § (g) was established and that termination was in the child’s (A) best interests, the court affirmed the order terminating respondent-mother’s parental rights. A’s foster care worker (S) testified that respondent tried to hide A’s birth “by lying about a miscarriage and taking” him out of the state. S also testified that the DHHS first learned of A “after receiving a complaint that respondent physically abused” him and used poor judgment in parenting. At the time of removal, A’s vaccinations were not up to date, he had severe diaper rash, and was overweight. S observed respondent’s interactions with him, and opined that her behavior contributed to A’s weight. Respondent frequently fed him “fast food and candy even when” he did not seem interested in eating. Due to her feeding habits, A “had diarrhea, and vomited after several visits with respondent.” When S told her that her feeding habits were likely making A sick, “respondent replied that she knew how to parent her child.” S also testified that she had not complied with the PAA during the proceedings as to her older children. S failed to benefit from the parenting classes she completed, and she “did not complete individual therapy or domestic violence counseling.” Given that she did not comply with the PAA from 2/16 to 6/18, or participate in any services during this case, the court agreed with the trial court that there was no reasonable expectation she would be able to provide A with proper care and custody within a reasonable time. As to A’s best interests, there was evidence that he and respondent did not share a strong bond, and that she lacked strong parenting skills. There was also evidence the “foster home had several advantages over” her home. S testified that respondent’s home was insufficiently furnished and there was barely any food for A. Respondent’s evidence that she obtained a crib and a swing for him did not negate the foster home’s advantages. S testified that A was thriving in the foster home. The foster mother stated that A “was meeting his developmental milestones, he was healthy, and he had all his immunizations.” A’s siblings were also placed there, and she testified that she intended to adopt all three of them. Thus, there was evidence that A’s foster home provided him stability and permanency.

Termination under §§ 19b(3)(c)(ii) & (j); Reasonable reunification efforts; “Cognitive limitations”; In re Frey; In re Utrera; In re VanDalen; In re Hicks/Brown; In re Fried; Children’s best interests; In re Schadler; In re Olive/Metts Minors; In re White; Community Mental Health (CMH)

Holding that the trial court did not plainly err by concluding the DHHS made reasonable efforts to preserve and reunify the family, and properly determined that termination of respondent-mother’s parental rights was in the children’s best interests, the court affirmed. She argued that the DHHS failed to tailor services based on her “cognitive limitations.” She claimed that it was unreasonable to require her to pass the GED test because she would have needed “supportive services and accommodation and likely, individualized support.” However, she did not make any attempt to comply with the requirement. She took a test to show what help she needed for studying for the GED test. Although she knew that she was supposed to follow up with the “DHHS after taking the test, she did not do so because she claimed that she did not have the money to purchase the books needed to study for the GED test or the funds to take the test. However, a DHHS foster care worker testified that she told respondent that DHHS would pay for her to rent the books.” Because she did not begin to attempt to study for the GED, it was “unclear what services she would have received while studying for the GED.” Respondent also argued that the DHHS should have “[modified] the expectation and [provided] services for her to become self-sustainable without employment” rather than requiring her to get her GED and a job. In terms of counseling services, the trial court focused on how respondent “minimized [her] first two intake sessions” at CMH. She was “initially denied services at CMH, which was likely because she was dishonest at her first intake.” She had a second intake after the foster care worker spoke with CMH. However, she only participated in case management services approximately once per month until 1/19. “She did not participate in counseling services at CMH during this time even though she could have and, in fact, was asked ‘several times’ to do so.” At some point, she had to transfer to a different CMH location because she moved. Respondent “did not present any evidence to explain why she could not follow up with CMH rather than waiting until Maternal Infant Health became involved.” Also, at the time of the termination hearing, she “was living in a trailer, but it was in someone else’s name, which meant that she could not control who was in” it. Her mother’s trailer was “unsuitable” because the mother was on the “Central Registry list,” and her brother would not allow the DHHS into his trailer.

Child’s best interests; The Indian Child Welfare Act (ICWA) (25 USC § 1901 et seq.); The Michigan Indian Family Preservation Act (MIFPA) (MCL 712B.1 et seq.); In re Payne/Pumphrey/Fortson; MCL 712B.5; § 1912(f); MCL 712B.15(4); MCR 3.977(G); In re Beers; Whether the decision was based only on respondent’s incarceration; Distinguishing In re Mason; Principle that the ICWA does not require the trial court to consider a guardianship over termination; Superiority of the child’s interest in a normal & stable family home to any interest respondent might have; In re Moss Minors

Concluding that the trial court did not base its best interests determination only on respondent-father’s incarceration, and complied with the ICWA, MIFPA, and MCR 3.977(G), the court affirmed the order terminating his parental rights. The child’s mother was a member of the Pokagon Band of the Potawatomi. Respondent’s only claim on appeal was that the trial court erred in finding that termination was in the child’s best interests. But the record showed that while he “appropriately parented the child during supervised visitation, his frequent incarcerations and his inability to control his substance abuse addiction precluded him from providing stability or security in the child’s life.” He had a lengthy criminal history before the child’s birth, and “continued to abuse substances and commit further crimes resulting in incarceration” during the case. He was incarcerated at the start “and was in prison during the termination hearing.” During the nearly three years the case was pending, he had been incarcerated for almost two years. He showed “he could not remain drug free for longer than a few months, and that he needed constant supervision in order to stay off illegal drugs and away from criminal activity.” The court found this case distinguishable from Mason, noting that “respondent here was provided with extensive services and participated by phone or video in every hearing while incarcerated. DHHS workers maintained contact with” him and visited him in prison. As to the alternative of a guardianship with relatives, the court noted that the “ICWA does not require that the court consider a guardianship over termination. In this case, the evidence showed that petitioner, the Pokagon Band representative during the pendency of this case, the expert Indian witness, the Pokagon Tribe, and the guardian ad litem all favored termination” over a guardianship, which would “have created a risk of uncertainty. The child had lived his entire life with his maternal aunt and extended family, was an integrated member of the family and the tribe, and called his maternal aunt and uncle Mom and Dad. Their home was stable and the family lived by the values, beliefs, and practices of the Pokagon Band.” The court noted that the child’s interest in a stable, normal family home “is clearly the desire, concern, and purpose of the ICWA.”