Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Dispute over a “construction lien” under the Construction Lien Act (CLA); MCL 570.1103; Limitations period for recording a construction lien; MCL 570.1111(1); Limitations period for enforcing a construction lien; 570.1107(1); Principle that a payment bond may supplant a construction lien; MCL 570.1116(1); Limitations period for a surety bond; MCL 600.5807(8); E R Zeiler Excavating, Inc v Valenti Trobec Chandler, Inc; Notice; MCL 570.1116(2)
The court held that the trial court properly granted summary disposition as to plaintiff-electrical equipment supplier’s action to foreclose the construction lien, and as to its payment bond claim. Plaintiff sued defendants-general contractor, subcontractor, and developers alleging several claims, including foreclosure of a construction lien and reliance on payment bond, after its request for payment for electrical supplies it had provided defendants was denied. It subsequently filed an amended complaint to add defendant-surety (Western). The trial court initially entered a default against Western, but later set it aside and eventually granted Western summary disposition on the basis that plaintiff failed to timely file its claim and that Western complied with the terms of the bonds. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting summary disposition because it misapplied the CLA. First, the trial court “correctly concluded that the payment bond did not extend the period of limitations for the construction lien; it supplanted the construction lien claim altogether. To the extent any construction lien claim continued to exist, [plaintiff] failed to record its lien within the 90-day threshold period of limitations or bring suit to foreclose on the lien within one year.” Second, plaintiff did not timely record the lien. To the extent its construction lien was not supplanted by the bond, its “right to a construction lien had expired. The question of whether the one-year or six-year limitations period applies is, therefore, irrelevant.” The court also rejected plaintiff’s claim that the trial court erred by granting summary disposition of its payment bond claim finding it was time-barred. Plaintiff “did not provide an affidavit or other evidence to support its claim that it did not receive notice of the bond.” And it failed to “cite authority in support of its proposition that the purportedly imperfect notice either nullifies or extends the contractual limitations period provided in the bond.” Finally, as to plaintiff’s contention that the trial court abused its discretion by granting Western’s motion to set aside the default, the court found the issue to be moot. Affirmed.
Validity of a land contract; Opportunity to amend the answer; Futility
The court held that the trial court correctly ruled defendant-Suzanne’s answer failed to state a valid defense to plaintiff’s claims and correctly denied her motion to amend her answer because doing so would have been futile. Thus, the court affirmed the trial court’s order granting plaintiff summary disposition and denying defendants’ motion to file an amended answer and affirmative defenses. Suzanne, defendant-Stephen, and plaintiff, their son, executed a land contract agreement that identified plaintiff as buyer and Suzanne and Stephen as sellers. Suzanne argued that “the land contract was not fully integrated and its terms so unusual that ¶ ¶ 2 and 3 make no sense, such that, it should have been held ambiguous requiring the trial court to allow defendant to explain its meaning with parol evidence.” The court found that the “terms of the land contract do not specify that plaintiff had to pay interest on the principal, nor did it provide for an early payoff penalty or restrict plaintiff from paying the contract price fully before it ultimately came due.” The document also made “no reference to any other negotiations, transactions, or agreements between the parties contemporaneous with the formation and execution of the parties’ land contract agreement.” The record reflected that Suzanne “failed in her answer to state any valid defense to plaintiff’s claims. She did not deny the allegations set forth in plaintiff’s complaint or state any response to the allegations that could reasonably be interpreted as stating a defense. Further, she failed to timely oppose plaintiff’s motion.” The record reflected that “the trial court properly considered and analyzed Suzanne’s answer and based upon the pleading determined that she failed to state a valid defense to plaintiff’s claims.” The record indicated that “the trial court accepted as true her well-pleaded factual assertions in her answer and appropriately concluded that they failed to state a valid defense. The trial court did not err because her answer was ‘so clearly untenable that as a matter of law no factual development could possibly deny plaintiff’s right to recovery.’” In addition, her arguments for amendment had no “merit and her proposed amended pleading would present a futile defense.”
Search & seizure; Motion to suppress evidence seized during an extended traffic stop; Rodriguez v United States; People v Kavanaugh; Effect of a statement made after a Terry v Ohio pat-down
Holding that the officers unlawfully prolonged a completed traffic stop until a K-9 unit arrived, the court reversed the trial court’s order denying defendant’s motion to suppress evidence seized during the stop. Defendant was charged with meth possession. The prosecution contended that when preexisting information about narcotics surveillance was considered together with his “behavior and statements during the traffic stop, there was a reasonable suspicion” he was engaged in narcotics activity. But the court concluded the new information obtained during the stop did not “support a reasonable suspicion of criminal activity.” The prosecution relied on (1) the fact “defendant stopped his vehicle in the roadway, (2) [he] was allegedly ‘very confrontational’ with” the officer (W) who had been behind him, and (3) he “admitted to delivering marijuana to a friend at the apartment being surveilled by the narcotics unit. Assuming” he committed a traffic violation, the court found that his “decision to stop his truck was not so evasive or erratic as to support a reasonable suspicion of criminal activity.” As for his behavior, while he could “fairly be described as irritated by the traffic stop, he at no time exhibited aggressive behavior toward the officers or even raised his voice. To the contrary, he complied with their commands while engaging in a rational discussion with” them about what was going on and why. As to his statement about delivering marijuana, the prosecution did “not explain how the marijuana or defendant’s statement support a reasonable suspicion of criminal activity. It is clear that the officers were not investigating the trafficking of marijuana, which became legal in Michigan in 2018. And” a police detective (M) testified defendant appeared to possess “a legal amount of marijuana. Perhaps more importantly,” the statement was made well into his “detention while the officers waited for the K-9 unit to arrive, and information obtained after the officers decided to prolong the stop cannot retroactively establish a reasonable suspicion.” The court noted M ordered the K-9 unit before he approached defendant and W. The “officers immediately moved from a traffic stop into a drug investigation, and” the court knew of no case law supporting this course of action. The new information they obtained “provided weak, if any, indicia of criminal activity, and was mostly obtained after” M ordered the K-9 unit. Remanded.
Sufficiency of the evidence; Felony-firearm; FIP; Constructive possession
Holding that there was sufficient evidence to permit the reasonable inference defendant constructively possessed the firearm, the court affirmed his felony-firearm and FIP convictions. He argued that “the prosecution did not present sufficient evidence to support a finding that he possessed the gun that officers found on top of the rear-passenger tire of the SUV.” The FIP charge was the underlying felony for purposes of the felony-firearm charge. It was “clear that the gun was located near where the officers found defendant. And the evidence introduced at trial was sufficient for a jury to find that defendant had control over the revolver. The police testimony describing defendant’s movement to the rear-passenger side of the SUV, reaching toward his waistband and sweatshirt pocket, ignoring the officer’s commands to stop, and the discovery of the gun on the rear-passenger tire of the SUV gave rise to reasonable inferences that defendant not only knew the location of the gun but had in fact placed it there.” Moreover, the police officers “did not notice anyone other than defendant near the rear-passenger tire of the SUV, and the vehicle did not move while the officers were observing it.” Defendant noted that “no fingerprints were developed from the gun and that it was not submitted for DNA analysis, but circumstantial evidence and reasonable inferences drawn from that evidence can be sufficient for a jury to convict.”
Violations of the Fair Labor Standards Act (FLSA); Overtime & recordkeeping violations; 29 USC §§ 207(a)(1) & 211(c); Applicability of 29 CFR § 778.309; Statute of limitations for “willful violations”; Dole v Elliot Travel & Tours, Inc; Herman v Palo Group Foster Home, Inc; Liquidated damages; § 216(b); Department of Labor (DOL)
The court held that judgment for defendant-KDE Equine on plaintiff-DOL’s claims for willful violations and liquidated damages was inappropriate where factual issues remained “as to whether KDE willfully failed to pay its employees in compliance with the FLSA.” It affirmed judgment for the DOL on the overtime claims. The DOL alleged KDE violated the FLSA’s minimum wage, overtime, and recordkeeping requirements. The payment claims involved “hotwalkers” who work approximately 44.25 hours per week and “grooms” who typically work between 48.5 and 52.5 hours per week. The FLSA requires that an employer “compensate employees at one and one-half times their regular rate for each hour worked in excess of 40 hours per week.” At issue here was “whether KDE’s payment practices for the grooms and hotwalkers met the recordkeeping and overtime requirements under either of the three salary plans: (1) a salary plan that includes an overtime premium for employees who regularly worked overtime hours, (2) a ‘Fluctuating Work Week’ salary plan, or (3) ‘lump-sum’ payments for additional tasks.” The court held that they did not. It then addressed whether the § 207 violations were willful. Willful violations have a three-year limitations period and if a willful violation is established, an employer is liable to affected employees for the “amount of their unpaid minimum wages or overtime compensation, plus an equal amount as liquidated damages.” The court noted that “like the employers in Elliot Travel & Tours and Palo Group Foster Home, KDE (1) had previously been investigated and found in violation of the FLSA, (2) was enjoined by a district court from continuing to violate the statute and ordered to pay unpaid overtime compensation, and (3) made assurances that it would comply in the future.” The court did not read those cases “as establishing that an employer’s violation of the FLSA is per se willful whenever undisputed evidence of these three factual circumstances exists.” But it found that “the presence of such undisputed evidence . . . does strongly suggest that the employer had actual notice of the requirements of the FLSA, upon which a finder of fact could reasonably infer that an employer ‘either knew or showed reckless disregard for the matter of whether its conduct was prohibited.’” Affirmed in part, vacated in part, and remanded.
Guardianship dispute; Standing; MCL 722.26b(1); Guardianship based on a parent’s permission; MCL 700.5204(2)(b); Deschaine v St Germain; Guardianship based on a judgment of divorce suspending a parent’s rights; MCL 700.5204(2)(a); Harmless error; Effect of a guardianship order; Hunter v Hunter; Custody; In re AJR; Children’s best interests; MCL 722.23; Presumption that custody with a parent is in the child’s best interests; MCL 722.25(1); Third-party custody; Parenting time; MCL 700.5204(5); Presumption that having a strong parental bond is in a child’s best interests; MCL 722.27a(1); Special circumstances or needs of the child; MCL 722.27a(7)(a); Consideration of a parent’s frequent failure to exercise reasonable parenting time; MCL 722.27a(7)(g); Friend of the Court (FOC)
The court held that appellees had standing to seek custody of the children, and that the trial court did not abuse its discretion by granting them guardianship or by granting appellant-father limited parenting time. Appellees (the children’s brother and sister-in-law) were appointed as the children’s guardians after the death of their mother. On appeal, the court rejected appellant’s argument that appellees did not have statutory standing to file a petition for guardianship and that, because there was no basis to grant a guardianship, they did not have standing to seek custody of the children. “MCL 722.26b(1) explicitly provides that a guardian has standing to bring a custody action. Because the trial court did not err by appointing appellees as the guardians of the children, appellees would have standing to initiate a custody action as the children’s guardians. Appellees, however, pursued a guardianship after the mother’s death, and it was appellant that filed a custody motion in the divorce action.” The court also rejected his claim the trial court erred by granting a guardianship to appellees without granting him a parental fitness hearing. He “was entitled to a presumption in his favor regardless of his fitness as a parent.” The record showed the trial court awarded “him that presumption by expressly considering his constitutional rights to raise his children, by characterizing the parental presumption as ‘strong’ and stating that he was ‘on elevated footing because he is a parent,’ and by requiring appellees to establish that, by clear and convincing evidence, it was in the children’s best interests to grant custody to a nonparent.” In addition, “any errors or outdated statements in the FOC’s report are harmless because the trial court, not the FOC, determined the children’s best interests.” It concluded that the trial court “properly determined that appellees had presented clear and convincing evidence to overcome the presumption that custody with appellant was in the children’s best interests.” Finally, as to the limited parenting time of four hours a week, the court was “not convinced that the [trial] court’s decision was grossly violative of fact and logic.” The trial court’s findings were primarily based “on the children’s recent tragedy and the general absence of appellant from [their] lives before the accident. Regardless of the reasons, [he] did not have much of a relationship with [them] and had not previously exercised his parenting time on a regular basis. Indeed, the older children who were not required to engage in parenting time attended the visits at the request of their younger siblings to provide support.” Affirmed.
Action seeking personal injury protection (PIP) benefits; Dismissal as a sanction for discovery violations; MCR 2.313(B)(2)(c); Kalamazoo Oil Co v Boerman; Failure to submit to an independent medical examination (IME); Muci v State Farm Mut Auto Ins Co; Factors a trial court must consider before dismissing a case; Gueye v State Farm Mut Auto Ins Co
The court held that the trial court did not err by dismissing plaintiff’s case as a sanction for repeated discovery violations. Plaintiff sued defendant, his assigned insurer, seeking additional PIP benefits for injuries he allegedly sustained in a car accident. The trial court eventually dismissed his case after multiple discovery violations, noting his “failure to attend multiple scheduled IMEs, despite court orders compelling him to attend two of them.” On appeal, the court rejected his argument that the trial court abused its discretion when it dismissed the case as a discovery sanction. “[T]he trial court considered each of the relevant factors and provided clear reasoning for its decision to dismiss the case.” Given plaintiff’s “repeated failure to timely comply with discovery obligations, attend any of the three IMEs scheduled, or pay court-ordered sanctions, it cannot be said that the trial court’s decision to dismiss fell outside the range of principled outcomes.” Overall, he “repeatedly failed to pursue his lawsuit, prejudicing” defendant. Though he “was warned that dismissal might result from his continued failure to comply with discovery obligations, he continued to violate court orders and other discovery obligations. The trial court stated it effectively had no other choice but to dismiss the case because [plaintiff] repeatedly refused to comply with lesser sanctions. Dismissal was a permissible and appropriate sanction.” Affirmed.
No-fault insurance dispute; MCL 500.3112 defense; Protection against making a double payment; Henry Ford Health Sys v Everest Nat’l Ins Co; Requirement of a “good faith” payment by the insurer; Penalty interest; MCL 500.3142; “Overdue”; Attorney fees; MCL 500.3148(1); Bronson Methodist Hosp v Home-Owners Ins Co; Procedures for entering an order under MCR 2.602(B); Dismissal of a third-party complaint; Denial of leave to amend the complaint without providing a particularized reason; MCR 2.116(I)(5); Futility
The court concluded that defendant-insurer (Farm Bureau) failed to show any errors as to entry of the trial court’s final order under MCR 2.602(B) warranted appellate relief. Further, it held that MCL 500.3112 did not apply and the trial court did not err in granting plaintiff-home care provider (Husinka) summary disposition. However, it vacated the award of penalty interest and attorney fees to Husinka and remanded as to those issues. And it instructed the trial court on remand to either permit Farm Bureau to amend its third-party complaint or give a particularized reason for not allowing it. Farm Bureau paid third-party defendant-TheraSupport Rehabilitation (which provides “supported independent living”) $900 a day for services rendered to an individual injured in an auto accident, T. “Husinka provided services to TheraSupport’s residents,” including T, and sought payment for attendant-care services provided to T. On appeal, the court first found that while “the procedures used were not a perfect example of the application of the seven-day rule, ultimately, the trial court signed the proposed” final order as written. As to Farm Bureau’s MCL 500.3112 defense, the court found its “mere assumption about what was included in its $900 a day payment to TheraSupport does not provide a basis for discharging Farm Bureau’s liability to” T or Husinka as to Husinka’s services. It noted that “MCL 500.3112 only discharges the insurer’s liability to the extent of the payments. And the evidence—that Farm Bureau failed to rebut—is that the $900 payment extended only to cover services provided by TheraSupport. As written, MCL 500.3112 does not discharge liability for services provided beyond those covered by the payments made by an insurer.” In the absence of evidence Farm Bureau was “being double-billed for Husinka’s services, and absent evidence of an agreement or a settlement to the effect that there was a per diem covering all attendant-care services, Farm Bureau’s payments to TheraSupport did not discharge its liability for separate services provided by Husinka, and” thus the defense failed. But as to penalty interest and attorney fees, there were fact questions about “when the benefits payable for Husinka’s services became ‘overdue’” and there was no basis in the record “on which the trial court have determined a reasonable amount of attorney fees.” Affirmed in part, vacated in part, and remanded.
Rescission of a no-fault policy; Michigan Spine & Brain Surgeons, PLLC v Esurance Prop & Cas Ins Co (Unpub); Fraud; Intent; Right result reached for the wrong reason
While the court concluded the trial court erred in relying on Michigan Spine and in stating that fraud could only be determined by the fact-finder, it held that a genuine issue of material fact as to intent precluded summary disposition for defendant-insurer. Defendant’s insured (nonparty-A) was injured in an auto accident. Plaintiff treated her injuries and sought payment from defendant. Defendant denied the claim and rescinded A’s policy based on its conclusion that her no-fault insurance application “contained material misrepresentations.” The trial court denied defendant’s summary disposition motion. As to its reliance on Michigan Spine, there was “no defense based on res judicata in this case, and there is no information to conclude that a previous case had been brought by the policyholder for the same claims.” As to a finding of fraud, the court noted that it and the Michigan Supreme Court have upheld “summary disposition for the defendant when the plaintiff committed fraud in the procurement of the contract.” But the court determined there was a genuine issue of material fact as to whether A made the “misrepresentations with the intent that they should be acted on by defendant. Nothing was provided to describe why” she made them. And while “defendant submitted emails describing that it would not have provided [A] policy coverage if it had known about these misrepresentations,” the limited record here left a genuine issue of material fact about whether they “were material to the application and whether defendant suffered an injury by relying on those misrepresentations. Ordinarily, defendant stating that it would not have issued the policy given its underwriting guidelines would amount to a demonstration of injury since the actual risk of providing the insurance was not fully contemplated.” However, defendant’s evidence did “not substantiate that it would not have offered [A] a policy, at that premium, if it had known that her son was living with her, or that her husband owned other uninsured vehicles, or that her license was suspended.” The court added that defendant did not present anything confirming A knew, “or should have known, that her license had previously been suspended and, thus, misrepresented that her license was in good standing during her” application. Affirmed and remanded.
Premises liability; Landowners’ duty; Dangerous condition; Proximate cause; Admissions in the answer to the complaint; Failure to comply with MCR 2.111(C) & (E)(1)
Concluding plaintiff-Reif could not establish that her injuries were caused by a dangerous condition on defendants-Renzes’ property they failed to warn her about, the court affirmed summary dismissal of her premises liability claim. It concluded that “either the Renzes’ statements in response to paragraphs 15 through 17 of Reif’s complaint were sufficient to constitute explicit admissions under MCR 2.111(C)(1) or, because the allegations were not denied, they must be treated as admitted under MCR 2.111(E)(1).” However, although the trial court erred by holding that, contrary to the Renzes’ admissions, Reif was a licensee, the error was not dispositive. The court found that the trial court also “erred by limiting its analysis of the allegedly dangerous condition to the lake bottom and the depth of the water.” But it did not err by holding that Reif did not present any “evidence that the allegedly hazardous condition on the Renzes’ land was a cause in fact or a proximate cause of Reif’s injuries.” The court concluded there was “no evidence that the Renzes’ actions or inactions caused Reif’s injuries. Rather than willingly or intentionally confronting the allegedly hazardous condition, Reif was injured when she was pushed into the lake by” defendant-Morrell. Reif posited that, “if Morrell had been aware of the allegedly hazardous condition, he would not have pushed her.” In support, she directed the court to a statement by her expert. However, the expert’s statement was “nothing more than speculation.” Instead, the record allowed “for a reasonable inference that Morrell’s decision to push Reif would not have been impacted by either a ladder or a warning sign. Morrell was undisputedly aware of the allegedly hazardous condition. He testified at his deposition that he knew that the water was approximately four feet deep at the end of the dock, and he described that, just before he pushed Reif, the water reached the ‘chest area’ on her six-foot tall boyfriend who was standing in the lake in front of the dock.” Morrell grew up visiting the lakefront property. He indicated he was fairly familiar with the dock, and “stated that a ‘lot’ of people would usually jump off it in order to swim in the lake. Despite his awareness of the shallow depth of the water, Morrell never advised anyone not to jump off the edge of the dock or warned them not to do so.” Further, even after the incident, “he viewed what happened to Reif to be a ‘freak accident.’” Thus, the record did “not support a reasonable inference that Reif would not have been injured but for the Renzes’ failure to install a ladder and post a warning sign.”
Trip & fall; Premises liability; Distinguishing between premises liability & ordinary negligence; Duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land; Lugo v Ameritech Corp; Whether an average user with ordinary intelligence would have been able to discover the danger & the risk presented upon casual inspection; Open & obvious danger; Joyce v Rubin; Effect of distractions; Kennedy v Great Atl & Pac Tea Co; Special aspects; Notice; Lowrey v LMPS & LMPJ, Inc
The court held that the trial court did not err by denying defendant-hotel management company’s motion for summary disposition of plaintiff’s premises liability action. Plaintiff sued for injuries she sustained when she tripped and fell on a metal grid at defendant’s hotel. The court rejected defendant’s argument that the trial court erred by denying its motion because there was no question of fact as to whether the grid on which plaintiff tripped was an open and obvious hazard without any special aspects. “Upon review of the photograph of the grid and carpet, a reasonable person in [plaintiff’s] position may not have noticed the grid as being different from the carpet pattern upon a casual inspection. The grid was a dark bluish color with a gray-silver border. The carpet was predominantly dark blue and teal with accents of gray, white, and cream. The grid was a square shape, and the carpet patterns appear to be arranged in square quadrants.” As a result, “because the color and pattern of the grid reasonably blended in to the surrounding carpet (especially in a room with dim lighting), . . . an average person of ordinary intelligence may not have immediately identified the grid, including its upturned corner, as a hazard upon a casual inspection.” The court also rejected defendant’s contention there was no question of material fact as to whether it had notice of the grid and its upturned corner, noting it was “reasonable to infer that the electrical grids in the ballroom had ongoing safety concerns.” And rather than proactively examining them before “inviting its invitees to traverse the ballroom, [defendant] adopted a protocol wherein it would conduct no inspections and instead would take corrective action only after a hazard had been reported.” It was also “reasonable to infer that the defect existed prior to” plaintiff’s fall. “She presented photographs of the upturned corner of the grid. She also testified that her foot caught on something. She did not know if the grid’s corner had been upturned to the same degree as shown in the photograph” before her fall. However, it was “reasonable to infer that if the corner had been securely affixed to the floor, the contact between her foot and the edge of the grid would not have led to a significant upturn to the corner.” Under the circumstances, “a jury could reasonably infer that the nature of the condition was such that” defendant should have been aware of the defect before plaintiff’s fall. Affirmed.
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); In re Williams; Failure to comply with a court-ordered treatment plan; In re Trejo Minors; Children’s best interests; MCL 712A.19b(5); In re Olive/Metts Minors; Personal jurisdiction over a respondent; Order permitting alternative service if personal service is impracticable; MCL 712A.13; MCR 3.920(B)(4)(b); Waiver; In re Gillespie
The court held that the trial court did not clearly err in terminating respondent-mother’s parental rights under §§ (c)(i), (c)(ii), (g), and (j) or in finding that doing so was in her children’s best interests. It also concluded that respondent-father waived his right to appellate review of his claim the trial court lacked personal jurisdiction over him. Further, it found that the trial court properly obtained personal jurisdiction over him via service by publication. Thus, the court affirmed the order terminating respondents’ parental rights. The mother’s “treatment plan included random drug screening, individual therapy, and substance abuse counseling.” While there was testimony she voluntarily participated in services “through a methadone clinic that she had been treating at for several years[,]” there was no evidence she “benefited from these services. The evidence established that [she] continued to test positive for cocaine and other illegal substances.” The court further noted the trial court gave her “an inordinate amount of time to benefit from services. During the nearly four years that the children were in nonrelative foster care, the trial court twice denied permanent-custody petitions,” giving her more time to overcome her issues. The evidence showed that she “squandered this opportunity. There was also clear and convincing evidence that” she failed to improve her parenting skills. Additionally, the evidence established “that the children would be at risk of harm if returned to” her care. As to their best interests, the court concluded terminating her rights “was the best avenue by which the children could achieve stability, permanence, and finality.” It rejected the father’s only claim on appeal, a challenge to the trial court’s personal jurisdiction. “The trial court did not explicitly state that personal service was impractical, but the record supports that it was impractical considering the unsuccessful efforts at personal services, and there is no requirement in MCL 712A.13 that the trial court explicitly state on the record that personal service is impractical before substituted service may be ordered.” In addition, it was “apparent from the record that the trial court found personal service to be impractical.” The court added that later events in the case confirmed he “actually received notice of the proceeding, an opportunity to be heard, and was personally served with a copy of the petition” at least twice.
Termination under § (j); Reasonable reunification efforts; Children’s best interests; Parent-Agency Treatment Plan (PATP)
Concluding § (j) existed, DHHS made reasonable efforts to reunify respondent-father with his children, and termination was in their best interests, the court affirmed. “Whether respondent benefited from his parenting services and his attendance at parenting time were major concerns throughout these proceedings. Respondent was aware of, and agreed to, the parenting requirements of the PATPs.” The record showed DHHS repeatedly stressed to him “the importance of timely and regular attendance at parenting time, of bringing the necessary supplies, and of actively engaging his children.” The record also suggested he “had one-on-one assistance. The Parent Partner reinforced the PATP requirements, the DHHS caseworker and the foster-care mother provided respondent with instructions and aids to help him succeed during parenting time, and the parenting-time supervisor and others modeled how to interact with the children.” Nevertheless, he “was unable to substantially comply with his PATPs by regularly attending parenting time and showing that he benefited from parenting classes.” Tellingly, he never showed that “he could have unsupervised, overnight parenting time with his children.” Because his “failure to comply with the terms of his PATP is evidence that the children will be harmed if returned to his home,” the court agreed with “the trial court’s decision that a ground for termination under [§ (j)] was proven by clear and convincing evidence.” Additionally, in “light of respondent’s tacit admission that the services he received were sufficient to help him overcome the barriers to reunification with his children, his failure to identify any way in which the services were deficient or, having been assessed at Detroit Wayne Integrated Health Network, to identify services that would have been more appropriate, given the results of his psychological evaluation, we conclude that the trial court did not clearly err by finding [DHHS] made reasonable efforts to reunify respondent with his children.”