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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Motion to disqualify counsel; Representation of both a corporate entity & its member; MRPC 1.7 & 1.13
In this business dispute between brothers, the court vacated the trial court’s order disqualifying counsel from representing defendant-LLC (MSY) and remanded. Plaintiff-Gregory’s “motion to disqualify counsel was based on his contention that counsel could not represent both” the LLC and defendant-Christopher, a member of the LLC, “without violating MRPC 1.7 and 1.13 because counsel would actually be representing Christopher’s interests at the expense of MSY’s interests.” The court found that “the precise basis for the trial court’s ruling disqualifying counsel from representing MSY is unclear. The only thing the trial court made clear was its uncertainty on the record about who are the members of MSY. The trial court then proceeded to disqualify counsel based on the apparent confusion over the respective interests of the corporate entity in relation to Gregory and Christopher. However, confusion and speculation are not inherently equivalent to a conflict of interest. Although the parties would seemingly like this Court to adjudicate their respective interests in MSY (among other things), we do not have a sufficient factual basis from which we could render any decision in this matter, much less adjudicate the interests of the brothers relative to MSY.” Simply stated, the court had “no idea at this juncture what the rights and responsibilities are of any of the parties because the trial court failed to make any factual findings to allow for meaningful appellate review and as such, clearly erred.”
Interpretation of divorce settlement agreement; Smith v Smith
The court held that the parties’ divorce settlement agreement unambiguously required equal division and payment of their 2023 joint tax liability. Following entry of a judgment of divorce incorporating the parties’ settlement agreement, the parties disputed responsibility for a substantial 2023 tax liability generated in part by income from businesses awarded to defendant. The trial court concluded that certain business-related income should be excluded from the equal division of tax liability. On appeal, the court held that the agreement was unambiguous and that the paragraph requiring equal payment of 2023 taxes controlled because “courts must interpret and enforce the contract as written” when its terms are clear. The court further held that provisions assigning future tax consequences of awarded assets did not alter responsibility for tax liabilities incurred during the marriage, explaining that “just because the tax bill came after the parties entered into the settlement agreement does not mean defendant is solely liable for taxes arising before the division of assets.” The court concluded that the trial court improperly rewrote the agreement under the guise of interpretation. Reversed and remanded.
Successive motion threshold for new evidence; MCR 6.502(G)(2)(b); People v Lemons; Newly discovered evidence new-trial standard; MCR 6.508(D)(3); People v Cress; Credibility of recantation & new evidence; MCR 6.508(C); People v Johnson; Required findings on ineffective assistance claim; MCR 6.508(E); People v White
The court held that the trial court applied an incorrect legal framework when it “erroneously conflated” MCR 6.502(G)(2)’s gatekeeping requirement with the Cress test and MCR 6.508(D), so denial of defendant’s second motion for relief from judgment had to be vacated. He was convicted of second-degree murder and firearm offenses arising from a shooting, and he previously filed a motion for relief from judgment. On appeal, the court held that to clear the successive-motion threshold for a new-evidence claim, defendant need only show evidence “was not discovered before” filing the first motion, and Cress “does not apply to the procedural threshold of MCR 6.502(G)(2).” The court next found defendant met that threshold because the supporting materials, including subsequent affidavits were not in existence when the motion for relief from judgment was filed, and nothing showed he otherwise discovered their substance earlier, noting much of the evidence “did not yet exist at that time.” The court also instructed that on remand, credibility and prejudice analysis must ask whether “a reasonable juror could find the testimony credible on retrial,” and then evaluate it alongside evidence that would be admitted at a new trial. The court further held that the trial court erred by not addressing the ineffective-assistance claim, emphasizing it “shall set forth in the record its findings of fact and its conclusions of law.” Vacated and remanded.
In-court eyewitness identification reliability; People v Posey; Admission of prejudicial evidence; MRE 403; People v Gursky; Ineffective assistance of counsel at sentencing; Strickland v Washington
The court held that defense counsel rendered ineffective assistance at sentencing by failing to prepare a mitigation memorandum after obtaining an adjournment for that purpose, requiring resentencing. Defendant was convicted by a jury of open murder and felony-firearm arising from a fatal shooting during a marijuana transaction, supported by eyewitness identification, videos, photographs, and cell-phone location evidence. The trial court sentenced defendant without receiving the promised mitigation memorandum. On appeal, the court held that admission of the eyewitness’s in-court identification did not violate due process because, even applying Posey, the identification was reliable where the witness had a clear opportunity to observe defendant and “there were no material discrepancies between the description of the offender given by the victim’s girlfriend and the appearance of defendant.” The court also held that admission of a video depicting defendant discussing firearms was not unfairly prejudicial because its probative value outweighed any prejudice where defendant made statements that “could be interpreted as an admission,” and any error in admitting certain photographs was harmless given “more than ample other evidence admitted for the jury to convict defendant.” The court further held that sentencing counsel’s failure to submit a mitigation memorandum constituted deficient performance because “it is difficult to conceive of a circumstance where failing to prepare a mitigation memorandum would be a reasonable strategic decision,” and the omission was prejudicial where the trial court relied on an inaccurate understanding of defendant’s background that the mitigation report “directly counters.” Affirmed in part, vacated in part, and remanded for resentencing.
Restitution calculation; MCL 780.766(3)(b) & 769.1a(3)(b); Fair market value (FMV); In re White; Prosecutorial misconduct; False testimony; People v Thurmond
The court held that the trial court abused its discretion by failing to calculate restitution for the FMV of the truck involved in defendant’s conviction of passing false title to a motor vehicle. But it rejected her claim that the prosecution presented false testimony on a material issue. She was also convicted of larceny in a building. The trial court ordered her to pay $55,350 in restitution. The case arose from a dispute between defendant and a man (G) she had lived with. The truck was a semi-truck G purchased. After the relationship broke down and G asked her to move out of his home, she “took several possessions from him including the title and keys to the truck. Defendant then titled the truck in her own name.” The court noted that “to order monetary restitution under the relevant statutes, the trial court was required to first determine that the return of the property is ‘impossible, impractical, or inadequate.’” It did not make any finding as to whether this was so, “but in ordering defendant to return the title, the trial court impliedly found the return of property neither impossible nor impractical. Because it ordered additional restitution, [it] impliedly found the return of property inadequate.” Thus, it next had “to consider whether the ‘[FMV] of the property on the date of the damage, loss, or destruction’ or ‘on the date of sentencing’ was greater.” But it did not make any determination as to the truck’s FMV “on either date, and the prosecution did not present any evidence concerning the [FMV] of the truck. Instead, the trial court” found that G bought it “for $16,000 and the cost to make the vehicle road-ready was $35,000.” Neither amount was “the ‘amount of money that a ready, willing, and able buyer would pay for the asset on the open market’ either on the date of damage or on the date of sentencing.” The trial court also did not make any finding related to the alternative calculation provided by the statutes. As a result, “there was insufficient evidence to support” its restitution order. But defendant was not entitled to a new trial based on testimony related to whether G’s license was suspended. She did not meet her burden of showing that G’s “‘restricted’ status means that the prosecution used false testimony at trial.” The court affirmed her convictions but vacated the restitution order and remanded for the trial court to determine the restitution amount.
Sufficiency of the evidence; Second-degree home invasion; MCL 750.110a(3); Whether the structure entered was a “dwelling”; Waived issue as to jury instructions on separate counts of resisting or obstructing; Ineffective assistance of counsel; Failure to object to the resisting or obstructing instructions
Concluding that defendant (1) failed to show that there was insufficient evidence for his second-degree home invasion conviction, and (2) did not succeed on his ineffective-assistance-of-counsel claims, the court affirmed his convictions and sentences. He was also convicted of two counts of resisting or obstructing a police officer and making a false or misleading statement. But he only challenged the sufficiency of the evidence as to the home invasion conviction. He claimed that the structure he entered was not a dwelling. The court found that “there was sufficient evidence to find that the trailer, located on a residential property, could be considered a dwelling. At trial, the officer testified that defendant was located in a ‘substantially large,’ ‘probably 40 feet, at least,’ camper trailer with a front and rear door and slide-outs that provided even more space inside. The mere fact that the trailer was not occupied at the precise time that defendant entered it does not disqualify the structure as a dwelling; a structure that is used temporarily can still be considered a dwelling under MCL 750.110a(1)(a).” The court concluded that based “on the evidence that the parties introduced, a rational jury could find beyond a reasonable doubt that the trailer was a dwelling, and therefore find sufficient evidence to sustain defendant’s second-degree home invasion conviction.” He also argued “that he received ineffective assistance of counsel when his trial counsel allowed the jury instruction on resisting or obstructing.” At his Ginther hearing on his other ineffective-assistance “claims, defendant’s trial counsel explained that he did not object to the instruction because there were three separate incidents of defendant resisting or obstructing: one count for failing to follow the officers’ command to stop while chasing through the field, one count for failing to follow [their] commands to exit the trailer, and one count for failing to show his hands and get on the ground. As defendant’s counsel argued, the three counts were separate and distinct, such that double jeopardy principles were not offended.” The court’s review of the record confirmed “that there were indeed three separate incidents. Accordingly, defense counsel’s failure to object to the trial court’s instructions on double jeopardy grounds was not objectively unreasonable.”
Withdrawal of guilty plea; MCR 6.310; People v Pointer-Bey; Ineffective assistance of counsel; Prejudice
The court held that defendant failed to establish entitlement to withdrawal of his guilty plea because the plea was knowingly, voluntarily, and accurately entered. Defendant pled guilty to possession of meth after repeatedly being advised by the trial court that no plea agreement existed and that no sentencing promises were being made. After sentencing guidelines were calculated higher than defendant expected, he moved to withdraw his plea. On appeal, the court held that withdrawal was not warranted because the trial court made clear on the record that no plea deal was accepted and defendant confirmed that his plea was not induced by promises, threats, or misunderstandings, noting that “there is no absolute right to withdraw a guilty plea once the trial court has accepted it.” The court further held that defendant failed to establish ineffective assistance of counsel or prejudice where the trial court corrected any possible misunderstanding before accepting the plea. Affirmed.
Sentencing; Reasonable & proportionate; Presentence investigation report (PSIR)
Concluding that defendant’s sentences were reasonable and proportionate, the court affirmed. He claimed that “the sentencing guidelines did not adequately account for his mental health, substance abuse, and family history.” The court disagreed. His “sentences are within his guidelines range. Thus, [he] must overcome the rebuttable presumption that his sentences are proportionate.” He contended “that his family history, substance use, and mental health issues are mitigating factors not considered by the sentencing guidelines, and should have been given more weight by the trial court when crafting his sentences. But the trial court was not required to consider defendant’s mental health or substance abuse history when imposing his sentences.” Nor was it “required to expressly or explicitly consider mitigating factors at sentencing.” Even so, it was aware of his “family history, substance use, and mental health issues at sentencing. These problems were documented in [his] [PSIR], and defense counsel argued that defendant had substance use and mental health issues. The trial court even contacted the mental health court on defendant’s behalf during the sentencing hearing.” Moreover, the record belied “defendant’s claim that his sentences were unreasonable and disproportionate to his particular circumstances. [He] had an extensive criminal history spanning nearly two decades, and was resistant to services meant to assist him with his mental health and substance use issues.” Although he “expressed remorse for his actions at sentencing, the PSIR noted that defendant downplayed his actions and maintained that he was not guilty. Because the trial court was not required to consider [his] family history, substance use, or mental health issues when imposing his sentence, and the record clearly demonstrates [his] lack of remorse, potential for rehabilitation, and his long history of misconduct while in custody, defendant has failed to established that his sentences were unreasonable or disproportionate.” Thus, he was not entitled to resentencing.
Speedy trial; People v Williams; Denial of mistrial; People v Dickinson; Mandatory minimum sentencing; MCL 769.12; People v Benton
The court held that defendant was not denied his constitutional right to a speedy trial despite a three-year delay between arrest and trial. Defendant was convicted of armed robbery, AWIGBH, FIP, and felony-firearm arising from an armed convenience-store robbery and subsequent shootout with an off-duty police officer. The trial court denied defendant’s motion to dismiss based on speedy-trial grounds and later imposed mandatory minimum sentences under the habitual-offender statute. On appeal, the court held that although the delay was presumptively prejudicial, it did not violate defendant’s speedy-trial rights because “the vast majority of the delay was attributable to the [COVID-19] pandemic,” which is not chargeable to the prosecution, and defendant failed to show prejudice to his defense. The court also held that denial of a mistrial was proper after a police witness made an unsolicited reference to an MDOC photograph because the remark was isolated, unintentional, and cured by instruction, and “an unresponsive, volunteered answer to a proper question is not grounds for the granting of a mistrial.” The court further held that the mandatory 25-year minimum sentence imposed under MCL 769.12 did not constitute cruel or unusual punishment or violate separation of powers because the Legislature has authority to prescribe mandatory penalties, and such sentencing schemes have been upheld as constitutional. Affirmed.
Sentencing; Enhancement under USSG § 2D1.1(b)(12) for maintaining a drug premises; “Double counting”; Applying the enhancement to a sentence for operating a drug premises; Substantive reasonableness of defendant’s below-guidelines sentence; 18 USC § 3553(a); The district court’s attribution of the drugs found in a common area in the house to defendant; Whether the court should exercise its discretion to correct a “forfeited sentencing error”
The court held that the district court’s application of USSG § 2D1.1(b)(12)’s enhancement to defendant-Willis’s sentence for operating a drug premises did not constitute impermissible “double counting.” It also rejected his substantive reasonableness challenge to his below-guidelines sentence. Willis pled guilty to maintaining a drug premises and to two counts of aiding and abetting false statements during the purchase of a firearm. There was no written plea agreement. During his sentencing hearing, he objected to the two-point enhancement under § 2D1.1(b)(12) for maintaining a drug premises as double counting. He also claimed that some of the drugs did not belong to him. The district court varied downward from the range of 168–210 months, sentencing him to concurrent sentences of 135 months for each count. On appeal, Willis again raised his double counting argument. The court held that the enhancement’s text “permits double counting” where Congress “explicitly added an additional increase” to the penalty for maintaining a drug premises. It also rejected Willis’s argument that his below-guidelines sentence was substantively unreasonable. He again relied on the double-counting argument, and an assertion that drugs found in the common area of the premises were not his. But the court held that the district court “didn’t exceed the sentence necessary to achieve § 3553(a)’s purposes when it followed federal law . . . .” In addition, the district court did not abuse its discretion in attributing the drugs to Willis after hearing the testimony and seeing the evidence. Lastly, the government called the court’s attention to a sentencing error where “[t]he district court sentenced Willis to 135 months’ imprisonment and 36 months’ supervised release for each of three counts, running concurrently. But the two gun-related counts carry statutory maximums of 120 months.” Instead of sentencing Willis to three equal and concurrent sentences, it should have sentenced him to “one longer sentence (135 months for the drug-related count) and two shorter ones (120 months for each gun-related count).” But because the mistake had “no effects, let alone serious ones[,]” Willis’s substantial rights were not violated, and the court declined to exercise its “discretion to correct the forfeited error.” Affirmed.
Confidential Research & Investment Act’s (CRIIA) “intellectual property” exemption from the Freedom of Information Act (FOIA); MCL 390.1554(1)(a); MCL 15.243(1)(d); “‘Reasonable opportunity’ to ‘publish’ the ‘information’ ‘in a timely manner’ to the academic community”; Distinguishing People for the Ethical Treatment of Animals v Board of Supervisors of LA State Univ (LA) (PETA); State ex rel Physicians Comm for Responsible Med v Board of Trs of OH State Univ (OH); “Reasonable opportunity”; Discovery
The court held that because “the requested video records were not ‘published’ in the 2019 article and because defendant [board] established on this record that it had not yet had a ‘reasonable opportunity’ to publish the requested items ‘in a timely manner’ to the academic community,” the Court of Claims did not err in granting summary disposition to defendant under CRIIA’s intellectual property exemption from the FOIA. The court found “the 2019 article only contained an analysis of the data gathered from the videos, not the videos themselves.” Like the Court of Claims, it rejected “an interpretation of the CRIIA that would neutralize the intellectual property exemption merely because underlying data within a record sought for disclosure has been discussed or analyzed in a publication.” Because the court found that ‘“the information’ at issue is the videos themselves, and those videos were not published, plaintiff’s argument lacks merit.” Plaintiff’s reliance on PETA did not change the court’s conclusion. “Although at first glance PETA tends to support plaintiff’s argument for disclosure, upon closer examination we conclude that it is distinguishable.” It also found that “as with PETA, the Ohio decision is not squarely on point and offers only some illumination as to the issues before us. Instead, we are persuaded that, given the text and purpose of MCL 390.1554(1)(a) [], the information plaintiff seeks has not yet been ‘published.’” Next, as to plaintiff’s “argument that the records must be disclosed because a ‘reasonable opportunity’ had been provided for the videos to be published ‘in a timely manner[,]’” the court found “the inclusion of specific deadlines for the exemptions in MCL 390.1554(1)(b) and (c) and absence of any deadline for the exemption in MCL 390.1554(1)(d) supports an inference that the Legislature intended the duration of the intellectual property exemption in MCL 390.1554(1)(a) to be case-dependent.” Also, in “light of the purpose and language of the timing requirement, we conclude that the statute requires an opportunity to publish that is reasonable and timely for the field of study and type of intellectual property in question.” Plaintiff argued “that defendant has already made the information public.” The court rejected this argument, noting the statute does not “allow for such a bright-line rule.” Instead, the “standard is flexible according to the nature of the intellectual property at issue.” The court found that “defendant demonstrated that it had not yet had a ‘reasonable opportunity’ to publish the videos in a timely manner because its researchers were continuing to use them for research for three more years.” The court disagreed with plaintiff that its “conclusion will allow universities to self-determine the extent and duration of the exemption.”
The No-Fault Act; Attendant care charges; MCL 500.3107(a)(1); Reasonableness; Spectrum Health Hosps v Farm Bureau Mut Ins Co of MI
Concluding that no genuine issue of material fact existed as to the reasonableness of plaintiff-provider’s charges for attendant-care services, the court affirmed summary disposition for defendant-insurer. Plaintiff provided the services to defendant’s insured (N). The court noted that the relevant statute, MCL 500.3107(1), does not define what “constitutes a ‘reasonable charge’ for such services.” But the court and the Michigan “Supreme Court have explained that determining the reasonableness of charges is a fact-specific inquiry, which requires evidence of the actual costs incurred and whether the charges align with marketplace rates.” Plaintiff in this case “pointed to a number of costs that no doubt had some bearing on the $58.80 per hour rate charged to clients for attendant-care services. However, plaintiff’s burden was to show why $58.80 was a reasonable rate to charge for [N’s] attendant-care services in particular.” It failed to do so, relying solely on the deposition testimony of one of its owners (M) about “the rates that plaintiff charges its clients in general, which lacked supporting documentation or evidence to substantiate the reasonableness of the $58.80 hourly rate charged for attendant care services.” The court noted that M “admitted that the charged rate was not based on market comparisons or profit margin calculations, and was instead determined subjectively as a ‘fair’ rate.” But the court ruled in Spectrum that a “‘medical provider’s typical price cannot be deemed reasonable unless it reflects an amount that is actually being charged in the marketplace[.]’” M testimony, in the absence of corroborating evidence, did “not meet the evidentiary standard required to create a genuine issue of material fact as to the reasonableness of plaintiff’s rate for attendant-care services.”
Governmental immunity; The proprietary-function exception (MCL 691.1413); Herman v Detroit; Dextrom v Wexford Cnty; Gross negligence; MCL 691.1407(8)(a); Bellinger v Kram; “The proximate cause;” MCL 691.1407(2); Ray v Swager (Ray I); Detroit Animal Care & Control (DACC)
The court held that plaintiff sufficiently pled the proprietary-function exception to governmental immunity as to defendants-city and DACC. Further, as to the gross negligence claims against defendants-individual employees, plaintiff properly alleged that they “were both a factual cause and the proximate cause of the fatal dog attack” that gave rise to this case. Thus, the court affirmed the trial court’s denial of defendants’ summary disposition motion on the basis it was premature. The court found that, “taken as true and construed in a light most favorable to plaintiff,” the allegations in the complaint “set forth sufficient facts to justify the application [of] the proprietary-function exception to governmental immunity.” Plaintiff essentially “alleged that DACC conducted its animal-control functions ‘primarily for the purpose of producing a pecuniary profit,’ prioritizing the agenda and interests of private donors to increase its revenues at the expense of public health and safety.” The court rejected defendants’ broad arguments in their summary disposition motion, concluding “the mere fact that animal care and control, writ large, may be a governmental function does not mean that the proprietary-function exception cannot apply to how that function is—or is not—being performed in this case.” Considering their reply brief in support of their motion, the court agreed with the trial court that the evidence they presented was “insufficient to entitle defendants to summary disposition at this time.” It noted that “whether DACC actually generates a profit or instead operates at a loss may well be relevant to whether the proprietary-function exception applies, but it is not alone dispositive.” The court concluded that defendants “failed to show that they are, at this juncture, entitled to judgment as a matter of law” as to the proprietary-function exception. As to the individual employees, it held that plaintiff “sufficiently pleaded the gross-negligence exception in the complaint, and the trial court did not err in deeming summary disposition premature as to this exception.” The court rejected their argument that plaintiff did not sufficiently plead “that they were ‘the proximate cause’ of [the decedent’s] fatal injuries, as required by MCL 691.1407(2).”
Tortious interference with a business expectancy; Defamation; Gravamen of an action; Dismissal based on the statute of limitations; The National Practitioner Data Bank (NPDB)
Agreeing with the trial court that plaintiff’s claims for defamation and tortious interference with business expectancies were virtually indistinguishable, the court affirmed summary disposition for defendant based on the statute of limitations. Plaintiff, a physician, sued defendant for tortious interference with business expectancies and defamation. Defendant successfully moved for summary disposition under MCR 2.116(C)(7) on the basis the claims were barred by the statute of limitations. On appeal, plaintiff argued the trial court incorrectly ruled that the gravamen of his tortious interference claim “was defamation, and therefore erred by concluding that the claim was barred by the one-year statute of limitations applicable to a claim of defamation rather than the three-year statute of limitations applicable to a” tortious interference with a business expectancy claim. The court disagreed. While “the elements of the two claims differ,” plaintiff alleged the same facts as to both claims – that “defendant made a false statement about him, then intentionally published the statement to the NPDB knowing that the statement was false and knowing that the statement would be read by prospective employers who would then decline to hire him in the future. Reading plaintiff’s complaint as a whole to determine the true nature of the claim, and focusing on the type of interest allegedly harmed,” the court determined that the gravamen of his “claim of tortious interference with business expectancies is defamation. Because the true nature of the claim is defamation, the period of limitations applicable to defamation controls and in this case bars plaintiff’s claim labeled as tortious interference with business expectancies.” Thus, the trial court did not err in granting defendant summary disposition under MCR 2.116(C)(7).
Quiet title; MCL 600.2932; Plaintiff’s burden to show a prima facie case of title; Validity of a deed; Forgery; Groth v Singerman; Witness credibility; Unjust enrichment claim & request to reopen the proofs raised for the first time in a motion for reconsideration; MCR 2.119(F)(3)
The court held that the trial court did not clearly err in ruling that plaintiff-Calloway’s signature, and thus the entire deed in question, were invalid and void. As a result, the court affirmed the trial court’s order quieting title in Calloway’s favor. The trial court started its analysis “with the fundamental requirement that deeds must be properly notarized under Michigan law. The evidence clearly established that Calloway’s signature was never notarized.” A notary unequivocally testified that she only notarized defendant-Green’s “signature, as evidenced by her notation ‘for Shalonda Green’ above her notary signature and the absence of Calloway’s name in her notary log.” In addition, an expert’s (S) “handwriting analysis testimony strongly supported the trial court’s conclusion. [S’s] methodology involved comparing the questioned signature to thirteen known signature samples spanning timeframes before and after the questioned document. His conclusion that it was ‘highly probable’ the signature was not genuine represents a high degree of certainty. Finally, Calloway’s consistent denial that he signed the document, combined with his testimony that he first saw the 2014 deed in 2022, supported the [trial] court’s finding that he did not sign the 2014 deed.” The court held that, having “established that the deed was not properly acknowledged and the signature was forged, the trial court correctly concluded that the deed is void.” it also rejected defendants’ contention “the trial court abused its discretion by refusing to reopen proofs or hold an evidentiary hearing to compute offsets for unjust enrichment.” They first raised this claim and request in their motion for reconsideration. The court concluded that they “could have raised this claim at any point prior to the trial court’s entry of a judgment in favor of Calloway, but elected not to do so. On this record, the trial court did not abuse its discretion in denying defendants’ motion for reconsideration.”
Children’s best interests; Relative placement
Concluding that the record supported the trial court’s finding that termination of respondent-mother’s parental rights was in the children’s (EAD and JDD) best interests, the court affirmed. “EAD was hospitalized for poor weight gain, and was under the first percentile for weight. At the hospital, doctors discovered that EAD had a liver laceration from nonaccidental trauma and scratches on both sides of her face that did not match respondent’s explanations. To rectify these conditions, the trial court ordered respondent to comply with her service plan.” She, however, “failed to comply with or benefit from her service plan. She did not follow up on the recommendations from her psychological evaluation, failed to complete several court-ordered services, and sporadically attended parenting time visits. Although there was evidence of a bond between respondent and her children, the children more often sought comfort from their caregivers—their grandmother and great-grandmother— instead of respondent during parenting visits. The trial court acknowledged this, stating that the relationship between the children and their caregivers more closely resembled a parental bond.” This makes sense, given that they “had been in the care of their grandmother and great grandmother almost their entire lives. [They] were doing well in their great-grandmother’s care, and EAD’s failure-to-thrive condition had improved. Further, the children’s great grandmother expressed a willingness to adopt them.” These facts demonstrated “that termination was in the children’s best interests. Respondent contends that the trial court failed to adequately consider that the relative placement weighed against termination. But the trial court explicitly stated that the children’s placement weighed against termination. Regardless, it found that this was nonetheless outweighed by respondent’s failure to rectify the conditions that led to adjudication, as demonstrated by her failure to comply with her service plan and irregular visits with the children.” Respondent also argued “that the trial court did not consider if guardianship was a viable option.” But the record belied this assertion. “The trial court expressly determined that guardianship was not in the children’s best interests, stating that ‘guardianship would do nothing but leave these children in the exact same position we have now.’”
Termination under § 19b(3)(b)(i); Children’s best interests
Holding that § (b)(i) existed and that it was in the children’s best interests to terminate respondent-mother’s rights, the court affirmed. There was no dispute that her “acts caused physical abuse of one of the children, who was a sibling of the other child.” Indeed, she pled “guilty to child abuse on two different occasions.” Despite the physical abuse, she argued “that the trial court erred by failing to infer from her progress in her services that there was no reasonable likelihood either child would be harmed in her home in the future.” The argument was without merit. Respondent argued “that she was making progress and availing herself of all available services while incarcerated. But, this was the same pattern she displayed during the previous removal: respondent made rapid progress while being monitored, was reunited with her children, and then relapsed and abused one of the children. The trial court could reasonably extrapolate that pattern to the future,” and she had “not shown that there was a realistic probability that she would break the pattern this time.” Respondent argued “that it was speculative whether she would be unable to benefit from her services in light of the progress she made, but her history shows the converse—it would be speculative whether she could benefit from services and remain free from substances.” Further, the court found that “because her previous relapse occurred less than a year after the first reunification, the trial court found that, until respondent could prove lasting sobriety, it was reasonably likely that the children would be harmed in the foreseeable future if returned to her care. Under the circumstances and in light of [her] history, that finding was not clearly erroneous.”
Petition to take jurisdiction over the child; Adequate notice of a preliminary hearing; Notice by text message; MCR 3.965; Distinguishing In re Brown & In re Andeson; MCR 3.961(B)(6)
Because the petition to take jurisdiction over the child did not specifically notify respondent-mother “that the child was not going to be placed with her, and the proceedings did not comply with MCR 3.961(B)(6),” the court vacated the order authorizing the petition to take jurisdiction over the child, VLT, and removing the child from the mother’s care after the preliminary hearing, and remanded. The mother alleged “that she should have been served with a summons before the preliminary hearing, and that the failure to do so was a violation of her due-process rights.” The court disagreed because she “was provided notice of the hearing in a text message that she received, which satisfies the requirements of MCR 3.920(D)(2)(b) and MCR 3.965(B)(1).” The court noted that the cases respondent cited “do not stand for the proposition that her due-process rights were violated because she was not served with a summons before the preliminary hearing.” At the preliminary hearing here, “the referee heard testimony regarding the physical and sexual abuse allegedly perpetrated by father, and that [the] mother had not visited or provided financial support to VLT in over a year and that she had abandoned VLT. The referee ultimately concluded that authorization of the petition was warranted due to both father’s waiver of the probable cause determination and the testimony that supported a finding of probable cause. Under the court rules, the referee was permitted to conduct this probable cause inquiry without [the] mother present as long as the attempts to notify [her] of the hearing were ‘reasonable.’” However, the court vacated “because the proceedings did not comply with MCR 3.961(B)(6)[.]” It found that because “the petition stated twice that [the DHHS] did not object to placing the child with [the] mother, it is reasonable to conclude that [the] mother could have based her decision not to attend the preliminary hearing in part on these statements in the petition. At best, the petition was confusing regarding whether [the DHHS] sought removal of the child from” the mother. While she “received notice of the hearing, she was not notified that the requested relief changed. Because [she] was not adequately notified regarding the specific relief requested in the petition, she did not receive all the process she was due before the preliminary hearing according to MCR 3.961(B)(6).”