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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Dispute over an arbitration award; Judicial review of an arbitrator’s decision; Scope of an arbitrator’s authority; A trial court’s discretion to vacate an award where the arbitrator exceeded his or her authority; MCL 691.1703(1)(d); MCR 3.602(J)(2)(c); Radwan v Ameriprise Ins Co; Unconscionability of a contract; Rory v Continental Ins Co; Relief; MCL 440.2808(1) & (3); Liquidated damages clause; Barclae v Zarb; Contractual attorney fees; Pransky v Falcon Group, Inc; Reasonableness; Zeeland Farm Servs, Inc v JBL Enters, Inc; Sufficiency & great weight of the evidence; Fette v Peters Constr Co; Modification of an award based on a mathematical miscalculation; MCL 691.1704(1)(a); MCR 3.602(K)(2)(a); Nordlund & Assoc, Inc v Hesperia
The court held that the trial court did not err by confirming an arbitration award in favor of plaintiff and against defendants. The parties had a rental agreement under which plaintiff delivered certain supplies to defendants each week. Defendants stopped accepting the deliveries sometime after the initial 36-month term had expired without notice from either party as to cancellation of the automatic renewal provision. Plaintiff initiated arbitration proceedings seeking liquidated damages, replacement damages, monies for unpaid accounts and finance charges, litigation costs, and attorney fees. On appeal, the court rejected defendants’ argument that the arbitration award should have been vacated because the arbitrator made errors of law by enforcing unconscionable contract terms and ignoring their arguments as to that defense. “[U]nless the arbitrator’s implicit rejection of Bronson defendants’ unconscionability argument involved a legal error apparent on the face of the award, the [trial] court was without authority to disturb the arbitrator’s decision on unconscionability grounds.” That was not the case here. “Because there was no legal error on the face of the arbitration award with respect to the question of unconscionability, the” trial court did not err by confirming it. The court also rejected defendants’ argument that the arbitration award should have been vacated because the liquidated-damages clause represented an unenforceable penalty. “The arbitrator recognized the controlling law, and the face of the arbitration award does not reflect a plainly recognizable legal error. As such, the arbitrator’s award of liquidated damages is not a valid basis for disturbing the arbitration award.” It further found that while the award reflected an error of law as to the attorney fees, the trial court did not err by confirming the award of attorney fees because defendants “cannot demonstrate that a substantially different award would have been rendered but for the error.” Finally, the court rejected defendants’ contention that the award contained two obvious mathematical errors that the trial court should have corrected. Because proper analysis of this claim of error would require the court “to engage in prohibited review of the arbitrator’s factual findings, Bronson defendants have not established an evident mathematical miscalculation that required correction.” Affirmed.
Sovereign immunity; Applicability to a state official sued in her official capacity; Standing to sue a subcontractor for damages; Injunctive relief; Declaratory judgments; Due process claim under 42 USC § 1983; Whether plaintiff was deprived of “liberty” when her foster children were taken away; Renfro v Cuyahoga Cnty Dep’t of Human Servs; Tennessee Department of Children’s Services (TDCS)
The court held that although plaintiff-Mikel had standing to seek attorney’s fees and damages from defendant-Omni Visions, defendant-TDCS’s subcontractor that removed her foster children from her home, she lacked standing to seek injunctive or declaratory relief against Omni or the Department’s current Commissioner (defendant-Quin). It also found for Omni on her due process claim because a family’s foster relationship does not create a constitutional liberty interest. Mikel sued for monetary, declaratory, and injunctive relief, claiming that TDCS, through its subcontractor, Omni, removed her two foster children without due process. The district court granted defendants’ motions to dismiss based on sovereign immunity, improper service of process, and failure to state a claim under § 1983. The court upheld the district court’s dismissal of TDCS based on sovereign immunity. However, sovereign immunity did not bar her claim against Quin in her official capacity because Mikel only sought declaratory and injunctive relief as to that claim and because her claim “allege[d] an ongoing violation of federal law[]” where the children remained outside Mikel’s custody. The court held that Mikel had standing to sue Omni for attorney fees where she had the standing to sue it for damages. As for the injunctive relief, it held that losing custody of the foster children was “not an injury that either of Mikel’s proposed injunctions against Quin and Omni could redress.” Enjoining removal of future foster children and prohibiting “defendants from ‘assisting in’ any adoption of the” children would in no way “create[] even ‘some possibility’ of returning” them to Mikel. The court also rejected her requests for declaratory judgments because declaring the contract between Omni and the TDCS “void” would not redress any of her alleged injuries and she lacked “a legally cognizable interest that could support an award of prospective relief.” Likewise, as to a declaration of a violation of § 1983, she again did “not explain how a declaratory judgment of this sort would offer her redress.” As to the merits of her due process claim against Omni, the court considered “only whether Omni deprived Mikel of ‘liberty’ when it took” her foster children away. The court relied on Sixth Circuit precedent (Renfro) that held “the family’s foster relationship did not create a constitutional liberty interest.” Affirmed.
Judgment of possession under the Summary Proceedings Act (SPA); Day v Lacchia; Standing; Effect of equitable title; Graves v American Acceptance Mtg Corp (On Rehearing); Landlord-tenant lease; Minnis v Newbro-Gallogly Co; Abandonment of a land contract; MCL 600.5726; MCR 4.202; Dundas v Foster; Remedy; MCL 600.5750
The court held that the circuit court erred by affirming the district court’s judgment of possession under the SPA. Plaintiff purchased the property at issue on a land contract from non-party Small (now deceased), who later rented it to defendants. As part of the SPA litigation, the district court denied defendants’ motions for summary disposition, for relief from judgment, and for determination of an interest in land. On appeal, the court first rejected defendants’ contention that plaintiff could not pursue a possession judgment because he was not the legal titleholder of the property. It then found, however, that the issue of abandonment was never decided in the lower courts. “As the circuit court noted, the district court observed that Small had never instituted legal proceedings to have the land contract forfeited. That observation does not appear to be a ruling on abandonment, and if it were so intended, it would be in error because a land contract can be deemed abandoned regardless of whether a land contract forfeiture action was instituted.” The court noted that “[a]lthough there was the semblance of an evidentiary hearing in the district court,” a trial is the appropriate manner “to fully develop and squarely address the issue of abandonment that does not appear to have actually been decided by the district court.” For purposes of remand “and to avoid any confusion, the issue of abandonment of the land contract need not be judged solely at the time defendants entered into the rental agreement . . . .” Rather, if plaintiff “abandoned the land contract and thus his equitable title at any point before commencing the action for possession under the SPA, he would lack standing to obtain a possession judgment.” Reversed and remanded.
Motion to quash a bindover; Probable cause; People v Yost; Possession with intent to deliver between 50 & 449 grams of fentanyl; MCL 333.7401(2)(a)(iii); People v Wolfe; Possession; People v Cohen; Dominion or control; People v Flick; Inferring intent to deliver; People v Morrison
The court held that the circuit court erred by quashing defendant’s bindover because the district court’s decision was not outside the range of reasonable and principled outcomes. The district court bound him over on the charge of possession with intent to deliver 50 grams or more but less than 450 grams of fentanyl. However, the circuit court granted his motion to quash the charge and dismissed it. On appeal, the court agreed with the prosecution that the circuit court erred by quashing the bindover, noting that although it “credited testimony suggesting that the fentanyl was not plainly visible, there was also evidence supporting an inference that it was plainly visible.” An officer testified that “he ‘did not have to lift [the armrest]’ to see it. Instead, he saw the bag because it was ‘sitting right underneath it. It’s a nice size gap in between [the armrest and the seat].’” As such, “whether the bag of fentanyl was in plain view is a factual question for the jury. Moreover, considering the entirety of the record, an ordinary prudent person could reasonably infer that [defendant] knew of the presence and character of the fentanyl and that he had the right of control over it.” The officers found “185.27 grams of fentanyl under the armrest next to” defendant in the backseat of the vehicle. “The fentanyl was wrapped in plastic and was compressed into a square shape that was larger than a bar of soap.” Defendant had a “stack of cash that was bound together with rubber bands. An ordinary prudent person could reasonably believe that the quantity of fentanyl and the manner in which it was packaged (compressed into a square and wrapped in plastic) suggests that the fentanyl was intended to be delivered to someone else.” In addition, given there was probable cause to believe defendant “constructively possessed the fentanyl and he actually possessed a sizable ‘wad’ of money, there was probable cause that he was the one who intended to deliver it.” Reversed and remanded to the circuit court for reinstatement of the charge.
Sufficiency of the evidence; Maintaining a drug house; MCL 333.7405(1)(d); Ineffective assistance of counsel; Introduction of evidence of defendant’s prior conviction of possession with intent to deliver; Failure to object when the prosecution made a propensity argument during closing; Necessarily included lesser offense of simple possession jury instruction; Sentencing; The two-thirds rule
The court concluded that there was sufficient evidence to support defendant-Ford’s maintaining a drug house conviction. Also, he was not denied the effective assistance of counsel. Further, given the lack of evidence supporting simple possession, the court could not conclude he was actually prejudiced by the instructional error. Finally, the two-thirds rule did not apply here and the trial court did not err in imposing sentence. Ford contended the prosecution presented insufficient evidence to support his conviction for maintaining a drug house. “The phrase ‘keep or maintain’ implies usage with some degree of continuity that can be deduced by actual observation of repeated acts or circumstantial evidence, such as perhaps a secret compartment or the like, that conduces to the same conclusion.” Ford contended “there was no evidence of continuity of either the selling or use of controlled substances.” He emphasized “the prosecution presented no evidence that anyone had come to the home to purchase drugs, not even through a ‘controlled buy.’” However, the evidence presented did “support a continuity of ‘keeping . . . controlled substances.’” The court noted that “Ford testified that he had lived in the home with [his girlfriend] for eight months before the search. He admitted ownership of the controlled substances in his safe and in and on the cabinet, as well as of the scale and the discarded packaging. The state of the cabinet suggested regular storage of a significant quantity of narcotics as fentanyl had been spilled onto the shelves.” The court concluded that as “Ford denied using fentanyl, the only reasonable explanation for the fentanyl in the cabinet was to cut into other substances that would be offered for sale. Ownership of the digital scale is also more reasonably explained as a tool for measuring drugs for sale, not purchase.” From this evidence, the jury could infer that he “kept or maintained a house ‘used for keeping . . . controlled substances.’” Ford further contended he could not “be convicted of maintaining a drug house because the primary purpose of the residence was habitation, not keeping or using controlled substances.” The court determined that the “prosecution presented sufficient evidence from which the jury could infer that a substantial purpose of this house was to keep controlled substances. Ford kept controlled substances for sale in the house, along with the means of protecting his wares. That the house was also used as a residence for the keeper of those substances does not negate the evidence.” Affirmed.
Consecutive sentencing; Scoring of 25 points for OV 1; Use of acquitted conduct in scoring the OVs; People v Beck; People v Brown
While the court concluded the trial court did not abuse its discretion by imposing a consecutive sentence, it held that the trial court erred by assessing 25 points for OV 1. Thus, it vacated defendant’s sentences for first-degree home invasion and safe-breaking and remanded for resentencing. He argued the “trial court’s reasons for imposing a consecutive sentence involved factors that were already accounted for by the sentencing guidelines—predatory conduct, leadership role, and his guilty plea to a charge of second-degree home invasion arising from a similar transaction less than a month before this one.” The court held that defendant “failed to identify any authority suggesting that” what is true in the context of a sentencing departure “is also true in the context of a consecutive sentence.” Thus, to the extent he argued the trial “court erred by relying on factors that were already considered in the sentencing guidelines as a basis for imposing a consecutive sentence,” the court held that this argument lacked merit. The trial court “created a thorough and thoughtful record; in doing so, it articulated particularized reasons which demonstrated a reasonable belief that the strong medicine of consecutive sentencing was warranted.” Defendant also argued the trial court erred in scoring 25 points for OV 1. The jury found him “not guilty of murder, armed robbery, and carjacking. When the rational-jury approach described in Brown is applied to the facts of this case, it is clear that the jury’s verdict was predicated on its conclusion that the prosecution failed to prove beyond a reasonable doubt that defendant bore any responsibility for [a former codefendant’s] conduct with the gun.” The court noted that the “jury acquitted defendant of all of the offenses that involved the use of a weapon.” The court concluded the “jury’s verdicts made it clear that it found that the prosecution failed to prove that defendant possessed a firearm, and the facts do not establish that he possessed another type of weapon.” Thus, the trial court’s “assessment of 25 points for OV 1 was based on its impermissible consideration of acquitted conduct.” Defendant satisfied the requirements of plain error review, and his sentences must be vacated.
Joinder; MCR 6.120(B) & (C); People v Williams; Other acts evidence; MRE 404(b)(1) & 403; Probative value; Unfair prejudice; Whether there was a violation of People v D’Angelo as to defendant’s testimony at a pretrial entrapment hearing; Brady v Maryland; Entrapment; People v Johnson; Ineffective assistance of counsel; Claims as to defense counsel’s mental health; Decisions as to calling witnesses; Prosecutorial error; Sixth Amendment right to counsel; Massiah v United States; Brewer v Williams; Extraneous influence on the jury; People v Fletcher; People v Jackson; Bindover; Harmless error; Miranda v Arizona; Custody; Howes v Fields; Sentencing; Scoring of OV 6 for solicitation-to-murder; MCL 777.36(1)(a); MCL 777.22(1); Scoring of OVs 4 & 10; MCL 777.34(1)(a) & (2); MCL 777.40(1)(a); “Predatory conduct”; People v Cannon; Restitution; Fees, fines, & costs; MCL 750.157b; MCL 28.176(3)
The court held that joinder of defendant’s aggravated stalking and solicitation-to-murder charges was appropriate, and he did not show error in the admission of other acts evidence. It rejected his claims that Brady and the qualified privilege as to his pretrial entrapment hearing testimony were violated. It found that his entrapment claim failed in accordance with Johnson, and that there was no violation of his right to counsel. The court also rejected his ineffective assistance of counsel and prosecutorial error claims, and found he set forth no basis for reversal as to his extraneous influence on the jury claim. Further, he was not in custody for purposes of Miranda. The court upheld the scoring of OVs 6, 4, and 10, and the order of restitution. But it found his fine for solicitation-to-murder was not authorized by statute and that he was improperly assessed two DNA fees. Thus, the court vacated the $100 fine and the $60 DNA fee in one of these appeals but otherwise affirmed. He argued he was deprived of a fair trial due to the joinder of the two cases for trial and “that evidence of prior stalking activities unfairly prejudiced the solicitation charges such that they should have been excluded . . . .” However, the court concluded “a logical relationship existed between the stalking and the solicitation to commit murder offenses as well as overlapping proofs[.]” It noted that the stalking charge was based on conduct that took place during the timeframe that he called victim-EM “and engaged in certain computer-related activities such as hacking into EM’s online accounts. These incidents were part of defendant’s continued harassment of EM, which culminated in his solicitation of her murder. The various acts undertaken by defendant and charged by the prosecutor in the two lower court cases at issue here were indeed a ‘series of connected acts[.]’” The court further noted the evidence as to “each charge was not particularly complex, and defendant has not established that considerations under MCR 6.120(B)(2) warranted severance.” The record did not support his assertion the charges resulted in jury confusion. As to his other acts evidence argument, his “prior instances of stalking were highly, not marginally, probative.” The court concluded the trial court did not abuse its discretion by giving “the jury a full picture of the dealings between defendant and EM and” in determining the probative value of that “full picture was not substantially outweighed by the danger of unfair prejudice.”
Spousal support; Whether deferral of Social Security benefits should be considered a “prudent investment strategy” that should not be imputed as income; Distinguishing Clarke v Clarke & Moore v Moore; Application of the spousal-support payments retroactively; Change in circumstance (CIC)
The court affirmed the trial court’s order that plaintiff-ex-husband’s “spousal-support payment would be reduced to $400 per month, and it was retroactive to when plaintiff filed for the termination of spousal support and stopped paying spousal support.” The record supported plaintiff’s retirement was a CIC that necessitated a modification of the spousal support. Plaintiff’s main argument was “his deferral of Social Security benefits should be considered a 'prudent investment strategy' that should not be imputed as income.” He relied on Clarke and Moore, which were inapplicable. “In this case, the needs of defendant were calculated in the consent judgment of divorce and plaintiff’s Social Security benefit payments were not considered even though defendant’s Social Security benefits were already counted as income for her. Simply put, it is not outside the range of principled outcomes for the trial court to consider plaintiff’s deferred Social Security benefits as income when it was also considering defendant’s Social Security benefits as income for her.” Plaintiff also argued “the trial court erred when applying the spousal-support payments retroactively.” His argument was misplaced. It was “not outside the range of principled outcomes for the trial court to determine that defendant was entitled to payments, and to enforce those payments retroactively to the last date that they were not paid while plaintiff initiated this suit.” Lastly, he argued “the trial court imputed the wrong amount of deferred Social Security benefits retroactively because the trial court used the payment that he would get if he had applied for Social Security benefits at the time of the hearing and not the amount that he would have gotten if he had applied for those benefits at the time he retired.” This argument, however, was also without merit. “Plaintiff did not provide how much he would have received if he had taken the benefit payments on the day that he retired. Instead, plaintiff supplied to the trial court that the $2,397 amount was the lesser amount that he was deferring, and now argues that it was the incorrect amount to impute without stating what the correct amount would be.”
Insurer dispute over the settlement of a tort case; Whether defendant waived its right to assert policy no-action clauses by breaching its duty to defend; Reimbursement for a settlement payment made in the underlying suit
In this dispute between insurers over the settlement of an underlying tort case, the court held that defendant-AMCO was “entitled to reimbursement, but only to the extent that the settlement payment was reasonable and made in good faith,” a determination that had to be made in the trial court. The ultimate issue was whether plaintiff-Home-Owners “must reimburse AMCO for the $980,000 settlement payment that AMCO made” to the injured party in the underlying suit. Home-Owners insured the father of the driver of a vehicle involved in the accident leading to the tort case. The driver was driving a car rented from an auto dealership that AMCO insured. The court did not find “determining whether Home-Owners waived the no-action clauses by failing to comply with its duty to defend” was the relevant inquiry here. It concluded “the no-action clauses were not enforceable under the particular circumstances of this case; therefore, the question whether Home-Owners complied with its duty to defend need not be reached. But we do not leave Home-Owners unprotected and without recourse.” The court determined that looking “at the specific language of the no-action clauses contained in the Home-Owners’ insurance policies, we believe they can be reasonably construed as absolutely requiring Home-Owners’ agreement to a settlement payment before AMCO would be entitled to file an action against Home-Owners under subrogation principles.” The court acknowledged its “ruling does not honor the contractual no-action clauses in Home-Owners’ insurance policies, but we emphasize that a ruling in favor of Home-Owners and enforcing the no-action clauses results in AMCO’s incurring liability in direct contradiction to the plain language of its insurance policies as construed by” a previous panel of the court. To give Home-Owners some protection, the court found that the proper approach was “to reverse the trial court’s ruling, declare that AMCO may be entitled to reimbursement, and remand for proceedings to determine the proper reimbursement amount, if any, under criteria measuring whether the $980,000 settlement was reasonable and made by AMCO in good faith.” It concluded that “AMCO’s entitlement to contribution from Home-Owners depends on the answers to these two questions.”
Admissions; MCR 2.312(B)(1) & (D)(1); Use of the admissions as a basis for summary disposition; Janczyk v Davis; Absence of a motion to amend or withdraw
Noting that there was no motion to amend or withdraw defendant’s admissions, the court held that the trial court did not abuse its discretion in ruling that Janczyk did not apply. Further, in light of the admissions, no genuine issue of material fact existed as to whether defendant breached a contract to repay a loan to plaintiff and the amount of plaintiff’s damages as a result. Thus, the court affirmed summary disposition for plaintiff. Plaintiff’s requested admissions were deemed admitted when defendant did not timely respond. Defendant acknowledged “its answers to plaintiff’s requests for admissions were late,” and there was no motion from defendant in the record requesting “additional time to answer plaintiff’s request or to amend or withdraw the admissions already admitted. Accordingly, those admissions were properly deemed admitted under MCR 2.312(B)(1) and conclusively established under MCR 2.312(D)(1).” Defendant instead contended the trial court erred in “using the admissions as the basis for the summary disposition because defendant should have been allowed to amend or withdraw the admissions under Janczyk, even though defendant made no motion to amend or withdraw.” The court found this argument “misplaced. The clear language of MCR 2.312(D)(1) states that admissions that are admitted under this rule are ‘conclusively established unless the court on motion permits withdrawal or amendment of an admission.’” In addition, given defendant’s “admissions, there was no genuine issue of material fact that defendant had a contract to repay a loan to plaintiff, defendant breached that contract because it did not make any payments on the promissory note’s schedule, and plaintiff sustained damages in the amount of $115,000 plus interest and late fees.”
Denial of an opportunity to amend the complaint; MCR 2.118(A)(2); MCR 2.116(I)(5); Prejudice; Futility; The leash law (MCL 287.262); Effect of violating the statute; Cassibo v Bodwin; Negligence claim for injuries caused by a dog; Trager v Thor; Consideration of a statement constituting a party admission at the summary disposition stage; MCR 2.116(G)(6)
The court held that allowing plaintiff-Radcliffe to amend her “complaint to add claims for statutory and ordinance violations would not have been futile, and would not have prejudiced” defendants-Herdmans. It also concluded the trial court erred in dismissing her general negligence claim for injuries caused by their dog. Thus, the court reversed summary disposition for defendants and remanded. Their dog Zelda escaped into plaintiff’s “backyard trailing a 15-foot-long leash. The dog ran in circles around Radcliffe and the leash wrapped around Radcliffe’s ankle.” When defendant-John Herdman yelled for the dog, “the leash ‘snapped.’ Zelda’s momentum swept Radcliffe off her feet” and she was injured when she fell. The court first held that the trial court plainly erred in denying plaintiff’s request to amend the complaint. It noted no evidence supported “that Radcliffe’s counsel unduly delayed the request to amend, or that it was made in bad faith or to unduly prolong the proceedings.” As to whether defendants would be prejudiced, the “court rule contemplates that a motion to amend may be denied only when the prejudice is undue. Undue prejudice ‘must stem from the fact that the new allegations are offered late, not that they might cause a party to lose on the merits.’” The court found that there “was no ‘undue’ prejudice here.” It further determined that the amendment would not be futile. As to the dismissal of the negligence claim, the court concluded that a “reasonable jury could find that based on Zelda’s puppy-like characteristics and behavioral history, the standard of care required John Herdman to exercise greater caution when removing Zelda’s leash from the stake and freeing her to roam.” The court noted that plaintiff testified that defendant-Allan Herdman told her “husband that the dog had knocked him down twice in a similar fashion.” While this statement was hearsay, its exclusion “from consideration at the summary disposition stage was improper because the statement would be admissible at trial if Radcliffe’s husband testified at a trial that Allan Herdman had made the statement to him.” Allan’s statement qualified as a party admission. The court found that at this point, plaintiff’s “deposition testimony combined with Allan Herdman’s admission establishes the grounds for a common-law negligence claim.”
Termination under §§ 19b(3)(i) & (j); Requirements for terminating parental rights under the Indian Child Welfare Act (ICWA) & the Michigan Indian Family Preservation Act (MIFPA); In re JL; “Active efforts” to prevent the breakup of the family; MCL 712B.3a(i)-(xii); MCL 712B.15; Success of prior rehabilitative efforts; In re Gach; Whether continued custody of the child by the parent or Native American custodian is likely to result in serious emotional or physical damage to the child; MCL 712B.15(4); MCR 3.977(G)(2); Foster care; 25 CFR § 23.121; Principle that evidence of the treatment of one child is probative of how the parent may treat the child’s siblings; In re AH; Guardian ad litem (GAL)
Holding that §§ (i) and (j) were met, and that the DHHS made active efforts to prevent the breakup of the family under the ICWA and MIFPA, the court affirmed termination of respondent-mother’s parental rights. The trial court terminated her rights upon finding that active efforts to preserve the family had been expended, that she lacked stable housing and was unable to manage her finances, that she continued to struggle with substance abuse, and that she would not be able to provide permanency and stability for the child within a reasonable time considering his age. On appeal, the court rejected her argument that the DHHS failed to prove a statutory ground for termination. As to § (i), it noted the “DHHS and the tribe attempted to provide services to respondent when she was pregnant to prevent a repetition of harm to her subsequent children. However, [she] did not participate or benefit from this attempt at rehabilitation. Although the trial court did not specifically characterize the prior efforts as ‘rehabilitation,’ the trial court noted that respondent failed to participate in recommended services such as inpatient treatment and Early On services.” As to § (j), it found “‘the evidence concerning respondent’s past conduct established that she was an unfit parent in the past, and the current evidence revealed that she continued to make choices that demonstrated a lack of maturity and ability to care for a child.’” The court also rejected her claim that the DHHS failed to make active efforts to prevent the breakup of the family, noting the caseworker’s testimony that she “‘prioritized sleep over caring for” the child as he cried next to her, and had “‘an overall lack of knowledge of providing care to a newborn baby.’” Further, at the hospital, she “was given a referral to Early On for [the child] but failed to follow through.” And it was “of particular significance that the tribal expert was in support of termination and concluded that respondent had received many active efforts since 2012.” The expert “stated that the tribe had ‘met and read through this case,'” and were in support of terminating her parental rights, as was the GAL.