Due process; Sua sponte dismissal; Meaningful opportunity to be heard; Acceptance of well-pleaded factual allegations in complaints as true; Distinction between alleging facts & alleging conclusions; Mootness; The contempt power; MCL 600.1701; MCL 600.1731; The doctrine of expressio unius est exclusio alterius; Standing; “Actual controversy”; MCL 691.1408

In these consolidated cases, the court held that plaintiff was not deprived of due process by the Court of Claims’ sua sponte dismissal, and that his claims seeking to prevent challenged candidates from serving as circuit court judges were moot. Further, “the Court of Claims correctly recognized that it lacked the power to hold a person in contempt of another court’s order,” and plaintiff’s last claim was “partially moot and partially unavailable because” he lacked standing. Most of the issues arose from his lawsuit “generally challenging the candidacy of several individuals for the position of Wayne County Circuit Judge” in the 11/22 general election. He sought to prohibit “votes for those individuals from being counted; to hold the Wayne Circuit Court itself, and several of its judges, in contempt of an order of disqualification entered by another judge of the Wayne Circuit Court; and a declaratory judgment that the Wayne Circuit Court and its Chief Judge violated the law by providing staff counsel for two of the challenged individuals who were at the time incumbent judges.” As to his due process argument, the court noted he asserted there were no factual disputes, and it observed that his pleadings were “highly detailed and go far beyond the requirements of notice pleading. A review of plaintiff’s pleadings, motions, and other filings reveals that he had a pattern of reiterating his original positions, so it appears clear that he had a substantively meaningful opportunity to present his positions to the Court of Claims. The Court of Claims did not grant summary disposition on the basis of an issue that it raised sua sponte.” The court further noted the Court of Claims analyzed the substance of his arguments, and it was obvious it read his pleadings. As to his contempt argument, MCL 600.1701 does not contain “any clear indication that the Legislature intended to permit courts generally to hold any person in contempt of another court. Indeed, its language suggests the opposite.” Further, in light of MCL 600.1731, the fact “the Legislature explicitly provided a single situation in which contempt proceedings may be heard before a different court strongly suggests contempt proceedings may not otherwise be held before a different court.” And he lacked standing to seek a declaratory judgment as to “the legality in general of courts providing counsel for their judges in light of MCL 691.1408.”

Breach of contract (commercial lease); Causation; Gorman v American Honda Motor Co, Inc; Indemnification; “Arising or resulting from”; Pacific Employers Ins Co v Michigan Mut Ins Co; Applicability of the first-substantial-breach rule; Tindle v Legend Health, PLLC

The court held that the trial court did not err by granting defendants-landlords summary disposition of plaintiff-tenant’s breach of contract claim. Plaintiff owned and operated a restaurant and beer garden on a shopping center’s “outlots” that it leased from defendants. Plaintiff sued them for breach of contract after it was evicted for nonpayment of rent. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting defendants summary disposition on its claim that they failed to conduct common-area maintenance as required by the lease. “Even assuming for the sake of argument that there is no genuine issue of material fact that defendants did not perform the common-area maintenance as required by the [lease], plaintiff’s affidavits only provide conclusory speculation that their purported lost business was caused by defendants’ purported failures.” As such, “even when viewing the evidence favorably to plaintiff, plaintiff’s affidavits amounted to mere speculation that was insufficient to create a genuine issue of material fact as to causation.” In addition, an affidavit submitted by plaintiff “provided speculation that an overpayment had occurred, and this is not sufficient to overcome defendants’ evidence that the common-area maintenance charges were properly submitted to plaintiff and not paid by plaintiff.” Further, the trial court “did not rely on plaintiff’s purported failure to mitigate its losses when granting defendants summary disposition, and instead [it] held that plaintiff had not presented a genuine issue of material fact that defendants’ lack of common-area maintenance caused plaintiff’s business losses[.]” The court also rejected plaintiff’s argument that the trial court erred by dismissing its claim for indemnification under the lease. “[E]ven assuming without deciding that the trial court read the indemnification provision too narrowly, summary disposition” for defendants on this issue was still appropriate. Finally, the court rejected plaintiff’s contention that the trial court erred in granting defendants summary disposition on their “counterclaims because the party ‘who first breaches a contract cannot maintain an action against the other contracting party for his subsequent breach or failure to perform.’” Plaintiff did not “offer evidence tending to show that defendants’ failure to maintain the common area caused plaintiff’s business losses. Simply put, the first-substantial-breach rule” did into apply. Affirmed.

Sentencing; Proportionality; People v Milbourn; People v Posey; People v Steanhouse

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 69933 in the 3/18/19 edition), the court remanded the case to the Court of Appeals for consideration of “defendant’s argument that his sentence was disproportionate under the standard set forth in” Milbourn. It denied leave to appeal in all other respects because it was not persuaded that it should review the questions presented.

Sentencing; Proportionality; Effect of a within-guidelines sentence; People v Posey

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 79235 in the 4/10/23 edition) to the extent it was inconsistent with the court’s decision in Posey and remanded the case to the Court of Appeals for reconsideration in light of Posey. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Double jeopardy; Multiple murder convictions arising from the death of a single victim; People v Bigelow; People v Ream; Anonymous jury; People v Williams; Whether MCL 768.27b infringes on the Supreme Court’s authority to establish rules of practice & procedure; People v Mack; Jury instructions; People v Robar; Judgment of sentence (JOS)

The court held that defendant’s conviction of both first-degree premediated murder and felony murder for one death violated double jeopardy, but that there were otherwise no errors requiring reversal. Thus, it affirmed in part, vacated in part, and remanded. He was convicted of first-degree murder, felony murder, first-degree home invasion, felonious assault, and felony-firearm, for shooting and killing the victim, who was dating his ex-girlfriend, while he was in bed. On appeal, the court first noted that the JOS reflected “the trial court’s attempt to alleviate double-jeopardy concerns when sentencing a defendant convicted of both first-degree premeditated murder and felony murder arising from the death of a single victim . . . .” But the note on the JOS indicated the felony murder conviction was not dismissed “and defendant was convicted and sentenced for first-degree home invasion, which the felony information lists as the predicate felony for felony murder.” As such, the court remanded for the trial court to modify the judgment of conviction to clarify that the felony murder and its related felony-firearm convictions were vacated. The court next rejected defendant’s argument that he was “entitled to a new trial because the trial court arbitrarily chose to refer to the venire and selected jurors by numbers, rather than names,” compromising the presumption of innocence. “Because the jurors were given a clear, plausible explanation for the use of numbers in lieu of names, there is no reason to believe that the jurors viewed the practice as implying that anonymity was necessary because defendant was guilty or particularly dangerous. Thus, under Williams, [he] is not entitled to appellate relief.” The court also rejected his claim that his ex-girlfriend should not have been allowed to testify about past instances of domestic violence or the PPOs she obtained against him because MCL 768.27b violates separation-of-powers principles. The Michigan Supreme Court, in Mack, found that this statute does not infringe on its “authority to establish rules of ‘practice and procedure . . . .’” Finally, as to the jury instructions, the trial court’s “failure to instruct the jury regarding the burden of proof in PPO proceedings was not outcome-determinative.”

Motion to quash a bindover for trial on CSC III charges under MCL 750.520d(1)(b); “Force” or “coercion”; MCL 750.520b(1)(f); People v Eisen; People v Premo; People v Carlson; People v Reid; Probable cause

Holding that the totality of the circumstances established probable cause to believe defendant used coercion to sexually penetrate the complainant, the court affirmed the trial court’s denial of his motion to quash his bindover for trial on CSC III charges under MCL 750.520d(1)(b). He contended “the presence of a gun and the complainant’s subjective feelings alone were not evidence of force or coercion.” But this argument focused “on isolated factors in” the case and failed to “account for the context of this case viewed as a whole. Admittedly, the facts of this case do not meet the scenarios of force or coercion as listed in MCL 750.520b(1)(f)(i) through (v). However, force or coercion is not limited to this list.” The preliminary hearing testimony “established that this case involved a young, Amish girl. Pennsylvania Dutch was her first language, and because of her membership in the Amish community, she was uneducated about sex. Defendant was the complainant’s neighbor and hired her to work at his house.” The court concluded that considering her “testimony, she was subject to a coercive environment. She was a young, naïve, Amish girl, who was employed and isolated by defendant in his barn. [He] started grooming [her] by praising, kissing, and touching her, and he escalated that behavior to sexual penetration. [He] told [her] that she could not tell others about his conduct and complained when she brought her siblings to work for him. Likewise, during some of the sexual encounters, she saw a gun present in the room. This testimony, in total, established probable cause that defendant sexually penetrated the complainant by establishing a coercive environment in which an isolated and vulnerable minor could not refuse his advances.” As a result, the court found that “the district court did not abuse its discretion when it bound over defendant on” CSC III charges on a force or coercion theory.

Motion to change children’s domicile; The MCL 722.31(4) factors; Yachcik v Yachcik; Brown v Loveman

Holding that the trial court’s denial of plaintiff-mother’s motion to change the domicile of the parties’ children “was not so palpably and grossly violative of fact and logic that it evidenced a perversity of will[,]” the court affirmed. The parties shared joint legal and physical custody of the children. Plaintiff planned to move with the children to Georgia. MCL 722.31(4) sets forth the factors a trial court has to consider when a party moves to change a child’s domicile. The trial court here referenced the children’s change in schooling, their custodial environments with both parties, defendant-father’s parenting time, “and the domestic-violence incident between the parties.” It determined plaintiff failed to establish “that a change in the children’s domicile would be in their best interests.” The court found that while “the trial court did not specifically comment on each of the listed factors in MCL 722.31(4), [it] was not required to delineate its findings” as to each factor. It “did not refer specifically to whether plaintiff would, herself, benefit from moving to Georgia, but it did consider that plaintiff had family in Georgia, though this was not sufficient to justify the move.” Further, the court noted that she argued “on appeal only vaguely how her own personal life would improve by a move to Georgia, apart from the purported domestic-violence incident, which the trial court explicitly considered.”

No-fault action; Domicile; Grange Ins Co of MI v Lawrence; Whether a person is domiciled in the same household as the insured; Workman v DAIIE; Situations involving young persons transitioning into independence; Dairyland Ins Co v Auto-Owners Ins Co; Directed verdict; Smith v Foerster-Bolser Constr, Inc; Judgment notwithstanding the verdict (JNOV); Clemens v Lesnek; Right to appeal & plenary review

Holding that there were genuine issues of material fact as to domicile, and that the trial court did not err by denying defendants-insurers’ motions for directed verdict or JNOV, the court affirmed. Plaintiff (the insured), as his son’s (Kyle) guardian, sued defendants for no-fault benefits after Kyle was struck by a vehicle while crossing the street. The trial court denied defendants’ motions for summary disposition, finding questions of material fact existed as to Kyle’s domicile. It also denied their motion for a directed verdict. The jury returned a verdict for plaintiff, finding Kyle was domiciled with his parents. Defendants then unsuccessfully moved for JNOV. On appeal, as an initial matter, the court found that “the trial agreement recognized the right of any party to take an appeal of the jury’s verdict relative to the issue of domicile.” As such, defendants were entitled to plenary review of their arguments. Turning to the merits, it found that factual disputes existed as to Kyle’s domicile. First, although he had recently rented an apartment, the trial court found “considerable evidence of [his] continuing ties to [his parents’] address, including a room, possessions, time spent, and [his father’s] testimony that Kyle was using the apartment merely for social gatherings.” In addition, defendants did “not dispute that there were informal family relationships between Kyle and his parents, such that he was free to use his parents’ home at will.” Further, the third Workman factor, whether he “lived in the same house as [his father], presented a myriad of unresolved material facts such as how often Kyle stayed in each residence, the degree to which each residence had furnishings and what type of furnishings--- to name but a few.” Only the fourth factor favored defendants, “because Kyle had rented a place of lodging apart from” his parents’ address. Meanwhile, the other Dairyland factors seemed to favor plaintiffs’ position, but nonetheless left “a genuine issue of material fact, because the testimony indicated that Kyle maintained possessions and a bedroom, and received mail and packages, paid some rent to his father at [the parents’] address, but was also paying for, and using, his own apartment.” Thus, there was no error in denying summary disposition. The court also rejected defendants’ argument that the trial court erred by denying their motions for directed verdict or JNOV, finding “the evidence, including inferences that could legitimately arise from it, when viewed in a light most favorable to plaintiffs, was sufficient to support the determination that Kyle’s domicile was” with his parents.

Due process; Sua sponte dismissal; Meaningful opportunity to be heard; Acceptance of well-pleaded factual allegations in complaints as true; Distinction between alleging facts & alleging conclusions; Mootness; The contempt power; MCL 600.1701; MCL 600.1731; The doctrine of expressio unius est exclusio alterius; Standing; “Actual controversy”; MCL 691.1408

In these consolidated cases, the court held that plaintiff was not deprived of due process by the Court of Claims’ sua sponte dismissal, and that his claims seeking to prevent challenged candidates from serving as circuit court judges were moot. Further, “the Court of Claims correctly recognized that it lacked the power to hold a person in contempt of another court’s order,” and plaintiff’s last claim was “partially moot and partially unavailable because” he lacked standing. Most of the issues arose from his lawsuit “generally challenging the candidacy of several individuals for the position of Wayne County Circuit Judge” in the 11/22 general election. He sought to prohibit “votes for those individuals from being counted; to hold the Wayne Circuit Court itself, and several of its judges, in contempt of an order of disqualification entered by another judge of the Wayne Circuit Court; and a declaratory judgment that the Wayne Circuit Court and its Chief Judge violated the law by providing staff counsel for two of the challenged individuals who were at the time incumbent judges.” As to his due process argument, the court noted he asserted there were no factual disputes, and it observed that his pleadings were “highly detailed and go far beyond the requirements of notice pleading. A review of plaintiff’s pleadings, motions, and other filings reveals that he had a pattern of reiterating his original positions, so it appears clear that he had a substantively meaningful opportunity to present his positions to the Court of Claims. The Court of Claims did not grant summary disposition on the basis of an issue that it raised sua sponte.” The court further noted the Court of Claims analyzed the substance of his arguments, and it was obvious it read his pleadings. As to his contempt argument, MCL 600.1701 does not contain “any clear indication that the Legislature intended to permit courts generally to hold any person in contempt of another court. Indeed, its language suggests the opposite.” Further, in light of MCL 600.1731, the fact “the Legislature explicitly provided a single situation in which contempt proceedings may be heard before a different court strongly suggests contempt proceedings may not otherwise be held before a different court.” And he lacked standing to seek a declaratory judgment as to “the legality in general of courts providing counsel for their judges in light of MCL 691.1408.”

No-fault action; Domicile; Grange Ins Co of MI v Lawrence; Whether a person is domiciled in the same household as the insured; Workman v DAIIE; Situations involving young persons transitioning into independence; Dairyland Ins Co v Auto-Owners Ins Co; Directed verdict; Smith v Foerster-Bolser Constr, Inc; Judgment notwithstanding the verdict (JNOV); Clemens v Lesnek; Right to appeal & plenary review

Holding that there were genuine issues of material fact as to domicile, and that the trial court did not err by denying defendants-insurers’ motions for directed verdict or JNOV, the court affirmed. Plaintiff (the insured), as his son’s (Kyle) guardian, sued defendants for no-fault benefits after Kyle was struck by a vehicle while crossing the street. The trial court denied defendants’ motions for summary disposition, finding questions of material fact existed as to Kyle’s domicile. It also denied their motion for a directed verdict. The jury returned a verdict for plaintiff, finding Kyle was domiciled with his parents. Defendants then unsuccessfully moved for JNOV. On appeal, as an initial matter, the court found that “the trial agreement recognized the right of any party to take an appeal of the jury’s verdict relative to the issue of domicile.” As such, defendants were entitled to plenary review of their arguments. Turning to the merits, it found that factual disputes existed as to Kyle’s domicile. First, although he had recently rented an apartment, the trial court found “considerable evidence of [his] continuing ties to [his parents’] address, including a room, possessions, time spent, and [his father’s] testimony that Kyle was using the apartment merely for social gatherings.” In addition, defendants did “not dispute that there were informal family relationships between Kyle and his parents, such that he was free to use his parents’ home at will.” Further, the third Workman factor, whether he “lived in the same house as [his father], presented a myriad of unresolved material facts such as how often Kyle stayed in each residence, the degree to which each residence had furnishings and what type of furnishings--- to name but a few.” Only the fourth factor favored defendants, “because Kyle had rented a place of lodging apart from” his parents’ address. Meanwhile, the other Dairyland factors seemed to favor plaintiffs’ position, but nonetheless left “a genuine issue of material fact, because the testimony indicated that Kyle maintained possessions and a bedroom, and received mail and packages, paid some rent to his father at [the parents’] address, but was also paying for, and using, his own apartment.” Thus, there was no error in denying summary disposition. The court also rejected defendants’ argument that the trial court erred by denying their motions for directed verdict or JNOV, finding “the evidence, including inferences that could legitimately arise from it, when viewed in a light most favorable to plaintiffs, was sufficient to support the determination that Kyle’s domicile was” with his parents.

Premises liability; Trip over an uneven patch of asphalt that defendant had applied to repair a portion of the sidewalk; Open & obvious; Kandil-Elsayed v F & E Oil, Inc; Pinsky v Kroger Co of MI

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 76894 in the 2/11/22 edition) and remanded the case to the Court of Appeals “for reconsideration in light of Kandil-Elsayed and Pinsky.”

Wrongful death; Premises liability; Open & obvious danger; Kandil-Elsayed v F & E Oil, Inc; Pinsky v Kroger Co of MI

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 78942 in the 2/23/23 edition) and remanded the case to the Court of Appeals for reconsideration in light of Kandil-Elsayed and Pinsky.

Express easements; Reciprocal easements under a Cross-Easement Agreement; Applicability of Dipboye v Acchione & Windemere-Grand Improvement & Protective Ass’n v American State Bank of Highland Park; Distinguishing MacLeod v Hamilton; Showing abandonment of an easement interest; Michigan Dep’t of Natural Res v Carmody-Lahti Real Estate, Inc

The court held that the trial court erred in ruling the reciprocal easements established by the Cross-Easement Agreement at issue were no longer valid or enforceable. Nonparties-Shopko and Ironwood Oil entered into the Agreement in 1993. The trial court apparently found the purpose of the easements “was abandoned, and thus, [they] were extinguished.” The court disagreed. The parties were successors in interest to the “Agreement by its plain terms and there is no evidence that plaintiff ever abandoned the purpose of the Agreement or that the easements had been dormant for years.” Further, the Agreement clearly “established reciprocal easement rights to use each other’s land for the specified purpose of allowing shared access to common areas and other designated areas of their adjoining properties. It also established contractual obligations pertaining to the maintenance of those areas. Obviously, the Cross-Easement Agreement did not establish a partnership to construct and develop a shopping center. ‘Once granted, an easement cannot be modified by either party unilaterally.’” As to the duration of the easements, § 11.01 stated the “easements, covenants, restrictions and other provisions of this Agreement shall be of perpetual duration.” While defendants asserted “in the trial court that the purpose of the easements ceased to exist because a ‘shopping center’ does not exist[,]” establishing a shopping center was not the purpose of the easements; “the purpose was, at minimum, to allow shared access to common areas and other designated areas with regard to these adjoining properties. There is no evidence that such purpose ceased to exist, was abandoned, or rendered impossible. The parking lots, roadways, and other paved and unpaved areas between the properties continue to exist.” The court noted that “if the original contracting parties had intended the reciprocal easements and other rights and obligations to terminate when Shopko or Ironwood Oil sold their properties, or when any other particular event occurred, they could have so stated in the” Agreement. And defendant took no action to terminate or amend it via the procedure in § 11.02. Thus, the “Agreement, which was recorded in the chain of title and runs with the land, is binding and enforceable against plaintiff and defendants as the successors in interest of the original contracting parties.” Vacated in part, affirmed in part, and remanded.

Breach of contract (commercial lease); Causation; Gorman v American Honda Motor Co, Inc; Indemnification; “Arising or resulting from”; Pacific Employers Ins Co v Michigan Mut Ins Co; Applicability of the first-substantial-breach rule; Tindle v Legend Health, PLLC

The court held that the trial court did not err by granting defendants-landlords summary disposition of plaintiff-tenant’s breach of contract claim. Plaintiff owned and operated a restaurant and beer garden on a shopping center’s “outlots” that it leased from defendants. Plaintiff sued them for breach of contract after it was evicted for nonpayment of rent. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting defendants summary disposition on its claim that they failed to conduct common-area maintenance as required by the lease. “Even assuming for the sake of argument that there is no genuine issue of material fact that defendants did not perform the common-area maintenance as required by the [lease], plaintiff’s affidavits only provide conclusory speculation that their purported lost business was caused by defendants’ purported failures.” As such, “even when viewing the evidence favorably to plaintiff, plaintiff’s affidavits amounted to mere speculation that was insufficient to create a genuine issue of material fact as to causation.” In addition, an affidavit submitted by plaintiff “provided speculation that an overpayment had occurred, and this is not sufficient to overcome defendants’ evidence that the common-area maintenance charges were properly submitted to plaintiff and not paid by plaintiff.” Further, the trial court “did not rely on plaintiff’s purported failure to mitigate its losses when granting defendants summary disposition, and instead [it] held that plaintiff had not presented a genuine issue of material fact that defendants’ lack of common-area maintenance caused plaintiff’s business losses[.]” The court also rejected plaintiff’s argument that the trial court erred by dismissing its claim for indemnification under the lease. “[E]ven assuming without deciding that the trial court read the indemnification provision too narrowly, summary disposition” for defendants on this issue was still appropriate. Finally, the court rejected plaintiff’s contention that the trial court erred in granting defendants summary disposition on their “counterclaims because the party ‘who first breaches a contract cannot maintain an action against the other contracting party for his subsequent breach or failure to perform.’” Plaintiff did not “offer evidence tending to show that defendants’ failure to maintain the common area caused plaintiff’s business losses. Simply put, the first-substantial-breach rule” did into apply. Affirmed.

Principal residence exemption (PRE); Estate of Schubert v Department of Treasury; MCL 211.7cc’s occupancy requirements; “Principal residence” (MCL 211.7dd(c)); “Occupy”; Effect of an individual’s mailing address; Burden of proving entitlement to the exemption; Owner residing at another property “solely for purposes of convalescence”; MCL 211.7cc(5); Waiver; Michigan Tax Tribunal (MTT)

Holding that the evidence supported the MTT’s finding that, while there was no dispute petitioner owned the property at issue, he otherwise failed to show he also occupied it “as his principal residence in the tax years in question,” the court affirmed the MTT’s judgment upholding respondent-county’s denial of a PRE for the property. Respondent denied petitioner a PRE for tax years 2018-2021 “to his Harbor Springs property because petitioner did not satisfy the occupancy requirements under MCL 211.7cc.” The court noted that he only presented “his self-serving statements that he occupied the Harbor Springs property at least six months of the year and the written statements of four witnesses attesting that” he lived there, “which the MTT found lacked credibility. While petitioner testified that he rotated staying with his parents for three months at a time, his testimony in no way evidenced the fact that he resided at the Harbor Springs property permanently or continuously.” The court agreed with the MTT that his “testimony was insufficient to establish that he occupied the subject property as his true, fixed, and permanent home in order to qualify for the exemption.” In addition, the record supported the MTT’s conclusion the written statements he produced “could not credibly establish petitioner’s occupancy of the Harbor Springs property.” They primarily addressed his “health issues or caretaking of his parents, which required him to stay at the Macomb property for extended periods. The statements did not directly address how long or often [he] resided at the Harbor Springs property. The MTT also found that [he] admitted to holding out the Macomb property as his residence by permanently changing his address on all mail and relevant legal documentation.” Further, the record showed he “provided no other evidence indicating that he stayed at the Harbor Springs property in satisfaction of the occupancy requirements.” The court also noted that “respondent submitted petitioner’s driver’s license, mailing address, and voter registration card, which listed petitioner’s address as the Macomb property address.” Additionally, it presented evidence showing his businesses were “affiliated with the Macomb property.” As to his reliance on MCL 211.7cc(5), the evidence did not show convalescence “was the sole basis for petitioner residing at the Macomb property.”

Termination under § 19b(3)(b)(ii); Failure to protect a child from abuse; In re LaFrance; Whether the parent had an opportunity to prevent the abuse; In Gonzales/Martinez; Best interests of the children; In re White; Parent-child bond; Failure to benefit from a case service plan

Holding that § (b)(ii) was met, and that termination was in the children’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis of her failure to protect one of her children (PL) from abuse by her boyfriend (EIJ), who was the father of another one of her children. On appeal, the court rejected her argument that the DHHS failed to prove a statutory ground for termination. “Statutory grounds for termination of respondent’s parental rights existed because respondent had a pattern of involvement in abusive relationships, and failed multiple times to protect her children from her abusive partners. It is undisputed that EIJ physically injured PL.” In addition, respondent “had the opportunity to protect her children from EIJ, but failed to do so, leading to PL’s injuries.” The court also rejected her claim that termination was not in the children’s best interests. “Respondent’s repeated refusal to keep her children safe from known domestic abusers, evidencing poor parenting, supports the trial court’s finding that” terminating her parental rights was in their best interests. In addition, “the children’s need for permanency, stability, and finality would be better met by termination of respondent’s parental rights.” Finally, she did not offer any evidence describing her bond with the children, and although “she behaved appropriately when she visited her children, she only did so a few times throughout this case.”