Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Professional discipline standard of review; Competent material & substantial evidence; MCL 24.306(1); Department of Cmty Health v Anderson; Expert testimony required to prove professional standard of care; In re Jankowski; Common-knowledge exception to expert requirement; Sillery v Board of Med; Administrative law judge (ALJ)
The court held that the disciplinary finding that respondent violated the Public Health Code was not supported by competent, material, and substantial evidence because the standard-of-care breach finding rested on a rule the ALJ adopted without admissible expert testimony and the common-knowledge exception did not apply. A veterinarian delegated a dog’s teeth cleaning to a licensed veterinary technician and then left the clinic for a farm call without expressly telling the other veterinarians she was leaving or obtaining an explicit agreement that another veterinarian would supervise the procedure, and the dog later experienced respiratory distress and died from an unknown cause. The ALJ rejected allegations about examination and charting but concluded the veterinarian negligently supervised the delegated task by failing to “hand off” supervision, reasoning that a handoff requires “a communication between the providers and an agreement by the new provider to assume care of the patient” and that such communication is “intentional” rather than “automatic.” The court held that conclusion required expert testimony because the ALJ’s bright-line rule about when supervision may be implicitly transferred was not within the “common knowledge and experience of the ordinary layman,” especially where the ALJ itself relied on expert testimony for the proposition that supervision may be transferred at all. Because the ALJ’s breach finding was unsupported by admissible expert testimony and respondent’s experts testified that supervision could be “de facto” or “seamless” in a small clinic setting, the court held the agency’s conclusion was not supported by substantial evidence. The court also rejected the Bureau’s attempt to sustain a violation of MCL 333.16221(h) without an underlying proven violation, holding there was no competent evidentiary basis for the predicate violations. Reversed in part and remanded for dismissal.
Consent judgment of divorce; Attorney fees; Federal preemption of state law; The Supremacy Clause; Recovery of delinquent taxes by the IRS; Farr v United States (9th Cir); Effect of a party’s payment of the other party’s tax debt to the IRS; Immunity under 26 USC § 6332(e); United States v General Motors Corp (6th Cir); Contempt proceedings to coerce a party’s compliance with the judgment’s terms; Civil contempt
The court concluded that “the trial court improperly read words into the plain language of the” parties’ consent judgment of divorce when it directed plaintiff-ex-wife to pay defendant-ex-husband’s attorney $12,000. It further found that remand was required related to a payment the wife made to the IRS, and that the trial court committed legal error related to contempt proceedings against the wife. Thus, it vacated the trial court’s 5/22/24 order in part and remanded for further proceedings. “If necessary, on remand, the parties should be granted: (1) the opportunity to be heard; and (2) an evidentiary hearing. Once it determines the amounts paid to the IRS, the trial court must grant wife immunity under” § 6332(e) for these amounts. Any amounts she “improperly paid to husband or his counsel under the [5/22/24] order must be returned to her.” She contended that “by ordering her to directly pay husband’s counsel $12,000 in attorney fees and failing to fully account for her payments made to satisfy the tax levy, the trial court effectively rewrote a provision of the consent judgment.” The court agreed. The clear language of the relevant judgment provision “unambiguously entitled husband to an additional $12,000 from the sale of the marital home, for husband to use towards payment of his attorney fees, if his counsel presented proof husband owed at least $12,000 in attorney fees.” The trial court, “by ordering wife, rather than husband, to directly pay the $12,000 in attorney fees to husband’s counsel . . . tampered with the parties’ consent judgment and improperly created an obligation between wife and husband’s counsel when neither a legal nor a contractual obligation previously existed.” Thus, the court vacated the portion of the “order requiring wife to directly pay husband’s counsel $12,000[.]” As to the requirement that the wife pay $40,331.13, “a third party who honors a levy, and surrenders property to the IRS, is ‘“discharged from any obligation or liability to the delinquent taxpayer with respect to such property or rights to property arising from such surrender or payment.”’” As a result, if on remand the “wife provides sufficient evidence of payment of husband’s tax debt to the IRS, wife is only obligated to pay any amount to husband under the consent judgment of divorce that remains owing after applying the amounts paid to the IRS.”
Free speech; 42 USC § 1983; Whether the permitted restricted area constituted a “public forum”; Whether the enforcement of the restricted area was “content neutral” & subject to intermediate scrutiny; Whether the enforcement of the restricted area was narrowly tailored; Whether there were alternative channels for free speech; Due process; Monell claim; Qualified immunity
The court held that the district court did not err by granting the defendants summary judgment on plaintiff-Blankenship’s free speech claim where the restrictions on “free speech” resulting from defendant-Metro Government’s (Metro) special use permit were not designed to hinder Blankenship’s free speech but were narrowly tailored to promote the government’s interest in crowd control. Metro issued Churchill Downs Race Track a special use permit in connection with the Kentucky Derby, committing to providing security for the area involved, and posting “no trespassing” signs. Blankenship, along with others, entered the posted area, with Blankenship preaching and the group passing out literature. They refused security personnel’s requests to leave. Eventually, a Kentucky State Trooper, defendant-Officer Young, arrested Blankenship, who then sued defendants under § 1983 for allegedly violating his right to free speech, free exercise, and due process. The district court granted defendants summary judgment with Officer Young receiving qualified immunity. Addressing the free speech issue, the court held that the restricted area constituted a “limited public forum” and not a “traditional public forum” as Blankenship argued. “Churchill Downs required that an individual have a ticket or other credentials to enter the immediate area surrounding the Kentucky Derby, not that an individual obtain permission before speaking.” The court agreed with the district court that the restrictions were content neutral and subject to intermediate scrutiny and the area was subject to time, place, or manner restrictions. It also held that the restrictions were “narrowly tailored” to serve “significant governmental interests” of crowd control, safety and convenience. Additionally, Blakenship could have exercised his free-speech rights outside the restricted area. His due process claim was premised on the restrictions “vagueness,” and his “bare assertions” that the restrictions were vague were insufficient to support the claim. The Monell claim failed where there was no underlying constitutional violation. This also held true regarding Officer Young’s qualified immunity. Affirmed.
Other acts evidence; MCL 768.27a; MRE 403; People v Watkins; Ex post facto challenge to MCL 768.27a; Exclusion of psychological reports on the victim; People v Stanaway; Extrinsic impeachment evidence; People v Jenkins; Ineffective assistance of counsel; Failure to impeach witnesses’ credibility; Failure to object to prosecutorial error & testimony about defendant’s prior incarceration
The court upheld the admission of other acts evidence under MCL 768.27a and rejected defendant’s ex post facto challenge to the statute. It also concluded the trial court did not err in not admitting two psychological reports on the victim (AK), and rejected defendant’s ineffective assistance of counsel claims. He was convicted of CSC I. Defendant objected to the admission of evidence about his prior conviction for CSC against another minor (BG). The court held that the “trial court did not err by determining that defendant’s sexual acts with BG and subsequent conviction for CSC-III were admissible pursuant to MCL 768.27a. Regarding the MRE 403 analysis, both AK and BG were minors at the time, the incidents occurred in 2002 and 2010, and in both cases defendant was friends with the victims’ parents. While [his] assault of AK constituted a single incident whereas his sexual relations with BG comprised approximately four incidents, the sexual assaults of the victims had sufficient temporal proximity and similarity, favoring admission of the evidence.” In addition, “neither assault required proof beyond the victim’s testimony to support a conviction, . . . but other witnesses testified about the nude images that were shared between defendant and BG, which bolstered the ‘reliability of the evidence supporting the occurrence of the other’ act.” The court concluded that despite “the trial court’s failure to engage in MRE 403 analysis, when weighing ‘the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect,’” there was no abuse of discretion in the trial court’s admission of the evidence under MCL 768.27a. As to the exclusion of the psychological reports, among other things “AK’s conversion disorder diagnosis (or its validity) is immaterial to the determination of whether defendant sexually assaulted AK.” As to AK’s alleged “prior inconsistent statement, the report containing [it] was written by a mental-health professional, rather than AK.” Further, defendant did not furnish “a proper foundation for the admission of the report” or identify an applicable hearsay exception. The court also rejected his claims that his trial counsel was ineffective for failing to impeach the credibility of BG and AK, and for failing to object to testimony about defendant’s prior incarceration and to prosecutorial error. Affirmed.
Sentencing; Reasonableness; Snow factors; People v Snow
The court held that there were more than adequate reasons justifying departure, and defendant’s sentence was reasonable considering all the Snow factors. He claimed “his 2- to 5-year sentence for using and possessing a card-skimming device” was unreasonable. He claimed “that the trial court did not sufficiently justify its upward departure.” The court could not agree. Defendant did “not dispute his involvement in a Romanian based conspiracy dedicated to stealing and using consumers’ bank information.” The court saw “no abuse of discretion in the trial court’s determination that the sentencing guidelines neither properly accounted for the breadth of his crimes (one need only have been convicted of two concurrent felonies to receive the 20 point-maximum under PRV 7), nor that they could have captured his extensive pattern of criminal behavior during his short time in the United States. The trial court also discussed the significant risk that defendant would continue the illicit activities until Immigration and Customs Enforcement could act on its detainer.” Affirmed.
Sufficiency of the evidence; Receiving & concealing a stolen motor vehicle; Prosecutorial error; Special investigations unit (SIU)
Holding the evidence was sufficient to support defendant’s convictions, and his claims of prosecutorial error lacked merit, the court affirmed. He was convicted of receiving and concealing a stolen motor vehicle and felony-firearm. He argued that “he was merely present and did not assist [R] in stealing the Challenger. To the contrary, the prosecution presented sufficient evidence for the jury to conclude that defendant aided [R] in stealing the Challenger with knowledge that it was stolen. [R] did not park the Escape at the dealership. Rather, he parked the vehicle in a lot next to the dealership and positioned the vehicle to avoid it being seen on the dealership’s surveillance cameras. Several SIU officers identified defendant as the person driving the Escape after [R] left the dealership driving the Challenger. Defendant closely followed the Challenger to conceal the fact that the Challenger did not have a license plate. In the LA Fitness parking lot, defendant maneuvered the Escape so that it was parked rear-bumper-to-rear-bumper with the Challenger to again conceal the fact that the Challenger did not have a license plate. Defendant appeared to act as a lookout as [R and B] examined the Challenger and [R] removed the dealership sticker. Afterward, defendant drove the Escape and parked it at a residence while [R] parked the Challenger in a garage.” R and B “then walked toward the Escape, and SIU officers immediately apprehended and arrested defendant and [B] while [R] fled. The officers recovered a window-punch tool near the driver’s seat of the Escape as well as a firearm with the word 'Hellcat' written on it. The officers also recovered several blank key fobs from defendant’s person. Accordingly, the evidence and reasonable inferences drawn from the evidence were sufficient for a rational trier of fact to conclude that defendant was not merely present and aided in the theft and concealment of the Challenger. The prosecution therefore presented sufficient evidence to support defendant’s conviction of receiving and concealing a stolen motor vehicle.”
Change of custody standard of review; MCL 722.28; Vodvarka v Grasmeyer; Best-interest factors analysis; MCL 722.23; Fletcher v Fletcher; Admissible evidence requirement in custody hearings; Brugel v Hildebrant
The court held that the trial court did not commit reversible error in awarding joint physical custody after properly finding a change of circumstances and weighing the statutory best-interest factors on admissible evidence. After plaintiff relocated the child from Jackson to Lake Orion and disputes intensified over school, parenting time, and plaintiff’s conflicts with school personnel, the trial court found a sufficient change in circumstances to revisit custody, evaluated each factor under MCL 722.23, and concluded defendant proved by clear and convincing evidence that modifying physical custody to a week-on week-off arrangement served the child’s best interests. On appeal, the court upheld the exclusion of plaintiff’s medical letters and records about allergy care because plaintiff failed to lay a proper foundation and the materials were hearsay, reaffirming that custody determinations must rest on admissible evidence. The court also held the trial court’s findings on contested factors were supported, including that continuity and the child’s school record favored defendant given the established stability in Jackson and plaintiff’s conduct toward school personnel, and that the ability to facilitate the other parent’s relationship favored defendant based on evidence that plaintiff obstructed school events and parenting time. The court deferred to the trial court’s credibility assessments and rejected the due-process claim premised on personal protection orders because the trial court’s reasoning focused on plaintiff’s admitted conduct described in testimony subject to cross-examination. The court also rejected ineffective-assistance claims because that doctrine has not been extended to custody cases of this type. Affirmed.
Mental health treatment; Person requiring mental health treatment; “Hearsay data”; In re MAT; MRE 1101(b)(10); Scope of assisted outpatient treatment (AOT)
The court held that “the probate court did not clearly err by finding, by clear and convincing evidence, that respondent continued to be a person requiring treatment because she was unable to attend to her basic physical needs, such as housing and medication, as a result of her mental health conditions.” It also did not plainly err in allowing a psychiatrist (Dr. K) “to partially testify on the basis of statements in respondent’s records.” Finally, it found that “the probate court did not abuse its discretion in ordering a modest AOT plan that complied with the statutory requirements.” As to the person requiring treatment finding, respondent “continued to struggle with paranoia and accepting her schizophrenia diagnosis, despite having a diagnosis for at least three years. Respondent further informed Dr. [K] that she did not need her medication, and she struggled to find stable housing in the month leading up to the hearing.” Respondent argued “that the probate court plainly erred by permitting Dr. [K] to testify, in part, on the basis of hearsay data in the form of the statements in respondent’s mental health records.” The court rejected her “argument that MRE 1101(b)(10) does not permit hearsay data in this type of mental health proceeding.” The court noted that “MAT clarifies that under MRE 1101(b)(10), an examining physician may testify about documents containing hearsay data that formed the basis for his or her opinions, even when the hearsay data is the primary basis for the expert’s opinion. Dr. [K] personally examined respondent on [1/17/25], thus meeting the requirement of MCL 330.1561(1). While Dr. [K] relied substantially on respondent’s records, he also explained that respondent made concerning statements to him during her interview, including that she stopped taking her medications and did not accept her diagnosis.” Affirmed.
Healthcare provider’s efforts to collect no-fault benefits; Real party in interest; C-Spine Orthopedics, PLLC v Progressive MI Ins Co (C-Spine I & II); Effect of counterassignments
On remand from the Supreme Court, the court held that while plaintiff-healthcare provider (C-Spine) may be a real party in interest in this action for no-fault benefits by virtue of counterassignments, “it was not the real party in interest when it filed its complaint[.]” As in C-Spine II, whether it could still cure that “‘defect in this case in the trial court may be addressed on remand.’” Thus, the court again reversed the trial court’s order granting defendant-insurer’s summary disposition motion, and remanded the case to that court for further proceedings. The “material facts of, and issues presented by, this case” were virtually identical to those in C-Spine I, a decision that was appealed to the Supreme Court, which issued C-Spine II. The “Supreme Court then remanded this case back to” the court for reconsideration in light of C-Spine II. In this case, which had facts materially identical to those of C-Spine II, “C-Spine transferred all of its rights and interests in” an injured driver’s (G) “accounts receivable to third-party factoring companies, so it was not the real party in interest when it filed its complaint. But during the litigation below, C-Spine produced counterassignments in which the factoring companies purported to assign their rights and interests in [G’s] accounts receivable back to C-Spine after this litigation was commenced. If those counterassignments are valid, then C-Spine is the real party in interest in this litigation. Even if valid, however, the existence of the counterassignments alone is not dispositive. As explained in C-Spine II, C-Spine must still file an amended complaint ‘reflecting the counter-assignments or take some other action that would have allowed the trial court to consider their effect.’” As a result, the court remanded the “case to the trial court so that C-Spine can take appropriate action to allow the [trial] court to consider the legal effect of the purported counterassignments.”
Mandatory future-damages periods on verdict; MCL 600.6305(1)(b); Menard, Inc v City of Escanaba; Reduction of future damages to gross present cash value; MCL 600.6306(1)(e); Labor Council v Detroit; Waiver of unpreserved civil issues; Tolas Gas & Oil Exploration Co v Bach Servs & Mfg, LLC
The court held that plaintiff was not entitled to appellate relief from the trial court’s present-value reduction of a defective lump-sum future noneconomic damages award because she failed to preserve objections to the verdict form and the trial court’s use of actuarial tables. After a two-day slip-and-fall trial, the jury awarded $50,000 in future noneconomic damages on a verdict form that did not specify the years over which the damages would accrue even though the statute requires the trier of fact to find future damages “and the periods over which they will accrue” on an annual basis. Because future noneconomic damages must be reduced to “gross present cash value,” the trial court used actuarial life-expectancy tables to treat the award as spreading over the remainder of plaintiff’s expected life and reduced the $50,000 to $8,696.28. On appeal, the court held plaintiff waived relief by failing to object to the “improper verdict form at trial” and by failing to object when the trial court used the actuarial tables at judgment, explaining that unpreserved civil issues are waived and that plaintiff did not show defendant affirmatively approved the form. The court reasoned the trial court faced a statutory mandate to reduce future damages while lacking the statutorily required accrual periods, and that using actuarial tables was a reasonable solution most likely to approximate the jury’s intent while complying with the reduction requirement. The court declined to create a rule granting a windfall to a party who also failed to correct the defective form and concluded plaintiff was “stuck” with the trial court’s resolution of the parties’ shared error. Affirmed.
Negligence; Duty for contractor’s undertaking; Loweke v Ann Arbor Ceiling & Partition Co, LLC; Public nuisance creation or control; Cloverleaf Car Co v Phillips Petroleum Co
The court held that summary disposition was proper because plaintiff failed to present evidence creating a genuine issue that defendant-JMAC miscalibrated the sprinklers during the spring startup and therefore failed to show breach for negligence or that JMAC created the alleged public nuisance. Plaintiff was struck at night after stepping into the curb lane to avoid sprinklers spraying over the sidewalk and into the roadway. Plaintiff sued JMAC, a landscaping contractor that serviced the sprinkler system, asserting negligence and public nuisance based on the theory that the contractor’s technician misaligned the heads during the spring startup months earlier. Applying the contract-tort framework, the court recognized that a contractor is “not relieved of its preexisting common-law duty to use ordinary care” in performing its undertaking. But it held the record did not support plaintiff’s theory that the contractor created the hazard because the technician testified he would have adjusted or replaced any heads spraying into the street and was “confident” the system was not spraying into the street when he finished the startup. The court concluded plaintiff’s reliance on photos and observations made the day after the crash did not bridge the four-month gap and amounted to speculation where “any number of things” could have caused misalignment during the season, including damage, dirt, age, or being run over. The court also rejected reliance on the limited credibility-exception for summary disposition because the alignment issue was not “exclusively within the knowledge” of the contractor’s witness and plaintiff could have developed evidence from other sources. As to the nuisance claim, the court held plaintiff failed to create a fact question that the contractor “create[d] the alleged nuisance,” which was the only viable nuisance theory on this record, and therefore affirmed summary disposition.
Injury from a fireworks display; Factual causation
The court concluded that plaintiff had “established a genuine issue of material fact concerning whether a ‘dud firework,’ or debris related to fireworks exhibition, was the object that impacted him” at a student event. Thus, the trial court’s order granting summary disposition to defendant-Black Diamond Fireworks was reversed and remanded. In his deposition testimony, plaintiff’s roommate, W “asserted that plaintiff’s injury transpired approximately 10 minutes into the fireworks presentation, and Detective [I] expressed that she saw various debris falling from the sky as she was standing on the field during the fireworks display.” Plaintiff’s girlfriend (H), Sergeant L, and MSU Department of Public Safety Sergeant M “further corroborated that the fireworks were exploding at a low altitude, in close proximity to spectators, and with debris. Medical documentation additionally indicated that both the paramedics and hospital staff believed that there was debris in plaintiff’s eye, which” plaintiff’s expert witness “affirmed was consistent with an injury arising from a dud firework, specifically fireworks featuring 2 or 3-inch aerial shells.” Defendant argued in the trial court, and continued “to argue on appeal, that there was ‘no evidence to present to the jury to determine whether he was struck by a firework, a rock, a ball, a fist, a bottle, an elbow, a shoe, anything.’ But a ‘plaintiff is not required to produce evidence that positively eliminates every other potential cause.’ Rather, the plaintiff’s evidence is sufficient if it ‘establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible [theories], although other plausible theories may also have evidentiary support.’” While defendant characterized “plaintiff’s causation theory as mere speculation, the aforementioned testimony delineates a sequence of events—from the deployment of the fireworks to plaintiff’s injury—such that there was a reasonable likelihood of probability a stray firework or shell may have struck plaintiff.” Moreover, the court found that “despite defendant’s contentions to the contrary, the discrepancies between the testimonies of defendant’s employees and [W] concerning the exact type of fireworks used during the subject exhibition and the proper minimum safety zone constituted conflicts in evidence that should not be resolved on summary disposition.”
Ownership of a strip of beachfront land; Plat dedication & validity of deeds; Little v Hirschman; Adverse possession; Use of private subdivision roads; Easement by necessity; Trespass; Joinder of necessary parties
The court held that the trial court correctly ruled “that defendants collectively own the strip of land known as Parcel H; they have an easement by necessity to use the Sunset Beach subdivision’s roads to access Indian Lake via that strip of land; and plaintiffs and intervening plaintiffs likewise have an easement over Parcel H to access Indian Lake.” These consolidated appeals arose out of a dispute between the residents of two platted subdivisions as to the use of private roads to access the “Lake as well as ownership of a 15-foot-wide strip of beachfront land on that lake called ‘Parcel H.’” The Michigan Supreme Court ruled in Little “that where a 1913 plat dedicated the private use of two parks to subdivision lot owners, other lot owners were ‘estopped from claiming exclusive rights in the parks,’ because the lot owners did not own the parks.” Similarly, here the “Sunset Beach subdivision plat at issue was recorded in 1946, which means that the Sunset Beach lot owners hold an irrevocable easement, not a fee interest, in Parcel H.” Further, the court held that “the plat dedication language ‘to the use of’ supports the trial court’s interpretation that the lot owners held an easement over Parcel H and not fee ownership.” The undisputed facts in the record reflected “that the 1946 plat granted a nonexclusive irrevocable easement to the Sunset Beach subdivision lot owners, and actual fee ownership of Parcel H was properly conveyed to defendants.” Thus, the court rejected “intervening plaintiffs’ arguments that they or other lot owners were entitled to exclusive use of Parcel H, that conveyance of Parcel H to defendants violated the terms of the plat, and that defendants’ deeds required reformation to strike the language conveying their ownership interest in that property. The trial court” properly granted summary disposition as to those issues. The court also rejected intervening plaintiffs’ claim “that they own Parcel H through adverse possession.” Turning to the use of the roads issue, the court concluded that the record was “clear that Parcel H and the Sunset Beach subdivision land were both previously owned by the Indian Lake Company, Parcel H is landlocked, and the only way to access [it] is through the Sunset Beach subdivision’s private roads. Therefore, the trial court did not err by determining that defendants held an easement by necessity over those roads.” Given the lack of any material disputes of fact on this issue, “summary disposition was appropriate.” Also, the court found that there was “no evidence that defendants’ activities on the Sunset Beach subdivision roads go beyond the reasonable exercise of the use granted by their easement.” Thus, plaintiffs’ trespass claim was properly dismissed. Finally, the court concluded that “the remaining Sunset Beach subdivision lot owners are not necessary parties. Accordingly, the trial court did not abuse its discretion by denying plaintiffs’ motion to compel defendants to join them as counterdefendants in the action.” Affirmed.
Termination under § 19b(3)(c)(i); Child’s best interests; Relative placement; Guardianship; Delay of proceedings; MCR 3.977(I)(1); 70-day rule
The court held that (1) § (c)(i) existed, (2) the trial court did not err when it found that terminating respondent-father’s parental rights was in the child’s (BB) best interest, and (3) he did not provide the court “with a reason to believe that a timely decision would have resulted in a different outcome.” Clear and convincing evidence supported “the trial court’s determination that the conditions that led to adjudication continued to exist and there was no reasonable likelihood that the conditions would be rectified given BB’s age. BB came under the trial court’s jurisdiction following two police raids conducted on respondent’s residence within the span of a year, which the trial court found traumatized BB since BB was present for those raids. The trial court identified the primary barrier for reunification as respondent’s substance abuse disorder and his cycle of reincarceration. Although [he] engaged in substance abuse therapy in between and during incarcerations, he showed no substantial progress. Any progress he did achieve was immediately thwarted by his relapse into meth[] abuse. Admirably, [he] was able to complete a seven-month long in-patient rehabilitation program. However, this progress was achieved at the end of the proceedings and must be considered in light of respondent’s multiple prior relapses into drug use and subsequent incarceration.” The court noted that by “the time the termination proceedings had ended, the trial court calculated that BB had been in foster care for 595 days, 421 of which had elapsed since the issuance of the initial disposition hearing related to respondent. Even assuming that respondent was released from jail in [1/25], it would not have been reasonable for the trial court to conclude that [he] could rectify the conditions that led to adjudication given his history of conduct, the uncertainty surrounding how much more time he needed to fully address the barriers to reunification, and, most importantly, how much time BB had already waited for respondent to” show progress. While the trial court violated “the statutory 70-day rule and” MCR 3.977(I)(1), reversal was not warranted in this case. Affirmed.
Best-interests determination; MCL 712A.19b(5); In re Moss; Anticipatory neglect inference; In re LaFrance; Relative placement weighing; In re Olive/Metts
The court held that the trial court did not err in finding that termination was in the children’s best interests given respondent-father’s sexual abuse of a teen in the home, his lack of accountability and rule-violations, and the mother’s inability to protect. The DHHS petitioned at initial disposition after respondent sexually assaulted his 16-year-old stepdaughter in the family home, and respondent pled no contest to jurisdiction and to statutory grounds, leaving only best interests for dispute. The trial court found termination was in the children’s best interests, emphasizing that respondent denied wrongdoing during the best-interest evaluation despite his criminal plea, claiming he pled guilty based on counsel’s advice, and that he violated protective court orders by bringing items to the children outside of supervised visitation. The trial court also found the mother could not protect the children because she questioned whether the abuse occurred and was not seeking a divorce. On appeal, the court rejected respondent’s claim that the trial court improperly relied on anticipatory neglect, noting that how a parent treats one child is “certainly probative” of how the parent may treat others, and that the trial court relied on the broader record, including respondent’s lack of responsibility and disregard of safety-based court orders. The court also acknowledged the children’s placement with their mother but held the placement did not preclude termination where the trial court found termination best served safety and well-being. The court concluded it was not “definitely and firmly convinced” the trial court made a mistake and affirmed.