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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Expert testimony; FRE 702; Gass v. Marriott Hotel Servs., Inc.; Kumho Tire Co., Ltd. v. Carmichael; Daubert v. Merrell Dow Pharms., Inc.; Relevance; Berry v. City of Detroit; The Fair Housing Amendments Act (FHAA); Davis v. Echo Valley Condo. Ass’n; 42 USC § 3604(f); Maracich v. Spears; Jersey Heights Neighborhood Ass’n v. Glendening (4th Cir.); A Soc’y Without a Name v. Virginia (4th Cir.); Hollis v. Chestnut Bend Homeowners Ass’n; Vorchheimer v. Philadelphian Owners (3d Cir.); The Americans with Disabilities Act (ADA); 42 USC § 12132; Wisconsin Cmty. Servs. v. City of Milwaukee (7th Cir.); 28 CFR § 35.130(b)(7)(i); Roell v. Hamilton Cnty.; Smith v. City of Troy; Johnson v. City of Saline; Babcock v. Michigan; Frame v. City of Arlington (5th Cir.); Whether expert testimony was required to establish causation; Vaughn v. Konecranes, Inc. (Unpub. 6th Cir.); Kolesar v. United Agri Prods., Inc. (Unpub. 6th Cir.); Wallace v. McGlothan (7th Cir.); Shady Grove Orthopedic Assocs. P.A. v. Allstate Ins. Co.; Reliability; United States v. Farrad; "Multiple chemical sensitivity"; Summers v. Missouri Pac. R.R. Sys. (10th Cir.); Bradley v. Brown (7th Cir); Snyman v. W.A. Baum Co. (SD NY); Gabbard v. Linn-Benton Hous. Auth. (D OR); Coffey v. County of Hennepin (D MN); Coffin v. Orkin Exterminating Co., Inc. (D ME); Frank v. State of NY (ND NY); Sanderson v. International Flavors & Fragances Inc. (CD CA)
The court affirmed the district court, holding that plaintiffs’ FHAA and ADA claims for failure to accommodate one plaintiff’s multiple chemical sensitivity condition failed where expert testimony was required to establish causation and the district court did not abuse its discretion in excluding their experts’ opinions. Plaintiffs sued defendant-county engineer, seeking to stop road crews from using asphalt and instead use other material when repairing a road near their home. The district court dismissed the case based on the lack of causation—that asphalt in chip seal would result in harm to plaintiff-Cynthia Madej. The court expressed concern whether plaintiffs actually set forth a cognizable claim under the FHAA and Title II of the ADA, but agreed with the district court’s approach and considered “whether the doctors’ opinions were reliable enough to help answer this causation question for these federal claims.” The FHAA claim was based on defendant’s alleged failure to accommodate by using another form of road sealer that does not contain asphalt. The Title II ADA claim also involved the failure to accommodate. Both claims required plaintiffs to show that the asphalt in the chip seal would harm Cynthia. At oral argument, they conceded that they needed expert testimony to establish their claims. The issue then became the reliability of their experts. The court noted that “multiple chemical sensitivity ‘is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology.’” Cynthia’s physicians “acknowledged that the diagnosis remains unrecognized by the American Medical Association and unlisted in the World Health Organization’s International Classification of Diseases.” The court held that their testimony was based on “subjective belief” rather than “on an objective method that can be tested[,]” and that Cynthia’s primary-care physician’s “‘qualifications’ did not ‘provide a foundation . . . to answer’” the causation question. Thus, the absence of expert testimony warranted summary judgment for defendant.
“Fair-share” fees as “compelled speech”; 42 USC § 1983; U.S. Const. amend. I; Abood v. Detroit Board of Educ.; Janus v. AFSCME, Council 31; Janus v. AFSCME, Council 31 (7th Cir.) (Janus Remand); Whether Janus was retroactive; Danielson v. Inslee (9th Cir.); Agostini v. Felton; The “good faith” exception to retroactive application; Reynoldsville Casket Co. v. Hyde; Lugar v. Edmonson Oil Co.; Duncan v. Peck; Wyatt v. Cole (5th Cir.); “Equitable restitution” claim; Mooney v. Illinois Educ. Ass’n (7th Cir.); Montanile v. Board of Trs. of Nat’l Elevator Indus. Health Benefit Plan; Babb v. California Teachers Ass’n (CD CA)
The court affirmed the dismissal of plaintiff-Lee’s § 1983 claim based on the defendant-Union’s collection of “fair-share” fees, holding for the first time that a private party who acts under color of law may assert a “good-faith defense” to a § 1983 claim. Lee is an Ohio public school teacher. When she was hired, she agreed to pay a fair-share fee because she chose not to join the Union. These fees were constitutional under Abood. “Anticipating that the Supreme Court would overrule Abood,” Lee sued the Union, alleging that the fair-share fees violated her First Amendment rights. Two days later, the Supreme Court released Janus, which overruled Abood. The Union moved to dismiss, arguing that its prior collection of fair-share fees was proper under both state law and Supreme Court precedent, and that it acted in good faith at the time. The district court and the court both agreed. After assuming without deciding that Janus applies retroactively, the court concluded that “the good-faith defense constitutes ‘a previously existing, independent legal basis . . . for denying’ a retroactive remedy.” It then joined the Seventh and Ninth Circuits and held “that the good-faith defense precludes claims brought under § 1983 for a return of fair-share fees collected under the Abood regime." Thus, the Union’s “reliance on existing authority satisfied the good-faith defense as a matter of law.” The court rejected Lee’s argument that her claim was one for equitable restitution, noting that an award of damages would compensate her “for the dignitary harm she suffered from being forced to subsidize the Union’s speech, not to recoup fees which had been wrongfully taken—suggesting that her claim is legal in nature.” As it viewed her claim as one arising in law, it did not have to decide “whether the good-faith defense applies to equitable claims.” The district court did not err by dismissing the § 1983 claim.
Constitutional right to counsel; People v. Akins; Denial of a motion to adjourn the trial; People v. Coy; People v. Stinson; Docket concerns; People v. Williams; Plain error review; People v. Carines; Right of confrontation; Crawford v. Washington; “Hearsay”; MRE 801(c); Unavailable witness; MRE 804(a)(4); Testimony of an unavailable witness given at another hearing; MRE 804(b)(1); People v. Farquharson; People v. Meredith; People v. Garland; Similar motive to cross-examine at the preliminary exam; Exercise of due diligence to produce the witness; People v. Bean; Sufficiency of the evidence to support a conspiracy to commit armed robbery conviction; People v. Jackson; People v. Mass; Elements of armed robbery; MCL 750.529; People v. Chambers; Assault with intent to do great bodily harm less than murder (AWIGBH); People v. Brown; Ineffective assistance of counsel; People v. Armstrong; Matters of trial strategy; People v. Rockey; Decision whether defendant will testify; People v. Toma; People v. Martin; People v. Bonilla-Machado; Request for remand for a hearing pursuant to People v. Ginther; MCR 7.211(C)(1)
The court concluded that the trial court did not abuse its discretion in denying defendant’s motion for an adjournment where he was attempting to retain a particular attorney, and that his right to counsel of his own choice was not violated. It also held that his right of confrontation was not violated by the admission of the victim’s preliminary exam testimony, and that there was sufficient evidence to support his conspiracy to commit armed robbery conviction. Finally, the court rejected his ineffective assistance of counsel claim related to the decision that he not testify, and found that there was no basis to remand for a Ginther hearing. He was also convicted of armed robbery and AWIGBH. The court first found that even if his adjournment request “implicated his constitutional right to effective assistance of counsel and a fair trial, the record” showed he did not “establish that he was not negligent in the timing of his request.” Even though he was informed over “three months before trial that the trial court did not intend to adjourn trial, [he] did not retain new counsel. Rather, on the day of trial, [his] attorney asked for an adjournment because his client was ‘trying’ to retain a specific attorney.” The court also concluded that he did not show a legitimate reason for an adjournment. Although docket concerns by themselves “do not support the denial of an otherwise proper” adjournment request, defendant’s negligence together with his failure to show a legitimate need for an adjournment supported the trial court’s denial of his request. As to his right of confrontation, the issue was whether defendant had a similar motive to cross-examine the victim at the preliminary exam as he would have at trial. The court found that he did. In both proceedings, defendant “was motivated to show that he did not commit the charged crimes.” Given that the same issues were at stake in both the preliminary exam and the trial, he “had a substantially similar interest in those issues relative to the victim’s testimony in each of those proceedings.” As to the conspiracy conviction, the court held that it was reasonable for the jury to infer, based on the circumstances and the men’s acts, that they had entered into an agreement before the crime. Affirmed.
Sentencing of juveniles for first-degree murder; Consideration of the distinctive attributes of youth; Miller v. Alabama; People v. Meadows; Montgomery v. Louisiana; People v. Wines; People v. Snow; Individualized sentencing; People v. Steanhouse; People v. Milbourn; Consideration of updated information at resentencing; People v. Triplett
The court held that the trial court did not abuse its discretion in considering the attributes of youth in resentencing defendant for a first-degree premeditated murder committed when she was a juvenile, but rather, thoughtfully balanced “the circumstances surrounding the offender—both at the time of the offense and in the years since—and the offense.” She was originally sentenced to a mandatory life sentence without the possibility of parole. Almost a decade later, the U.S. Supreme Court decided Miller, ruling that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments.” In response, the Michigan “Legislature enacted MCL 769.25 and MCL 769.25a, which address life-without-parole offenses committed by minors and the option of imprisonment for a term of years.” Defendant claimed that the trial court failed to “adequately consider the distinctive attributes of youth, and that, in light of the many factors attributable to defendant’s status as a minor at the time of the murder, the resentencing judge should have been more lenient.” She specifically argued that “the resentencing judge placed too much emphasis on the statements contained in defendant’s allocution at resentencing rather than on the attributes and characteristics of youth.” However, the court noted that, while Wines “requires the trial court to ‘take into account the attributes of youth,’ it does not require the trial court to consider youthful attributes in a vacuum as a blanket award of leniency.” The court further noted that “a trial court is required to consider updated information at resentencing.” On the record here, it could not hold that “the trial court failed to consider the attributes of youth when sentencing defendant, or abused its discretion by failing to afford them adequate weight. Rather, the trial court did consider the attributes of youth but found that these attributes were not the basis for the crime and therefore did not warrant leniency during resentencing.” And where, as in this case, the offender did “not display the typical attributes of youth, the trial court is not required to treat the offense as a product of youth. More importantly,” the court agreed with the trial court that her “failure to express any remorse for her crime at the resentencing hearing indicated that her crime was not a product of any youthful characteristics; rather, the crime was an expression of innate character flaws which transcended defendant’s youth.”
Action for personal protection insurance (PIP) benefits under the No-Fault Act (MCL 500.3101 et seq.); MCL 500.3107; MCL 500.3157; Admire v. Auto-Owners Ins. Co.; “Allowable expense”; ZCD Transp., Inc. v. State Farm Mut. Auto. Ins. Co.; Cherry v. State Farm Mut. Auto. Ins. Co.; Healing Place at N. Oakland Med. Ctr. v. Allstate Ins. Co.; “Foster care”; MCL 400.704(8); “Adult foster care facility”; MCL 400.703(4); Licensing requirement; MCL 400.713(1); Healing Place, Ltd. v. Farm Bureau Mut. Ins. Co. of MI (Unpub.); Greentrees Civic Ass’n v. Pignatiello; Life Skills Vill., PLLC v. Nationwide Mut. Fire Ins. Co.
The court held that the trial court erred by denying defendant-insurer’s motion for summary disposition of plaintiff’s claim for PIP benefits. Plaintiff sued defendant alleging breach of contract and seeking a declaratory judgment as to defendant’s refusal to pay PIP benefits to his healthcare provider (ARCS). Defendant filed a motion for summary disposition arguing that the treatment provided was unlawfully rendered because it constituted foster care, and the provider was not a licensed adult foster care facility. On appeal, the court agreed with defendant that the trial court erred by denying its motion for summary disposition because regardless of who provided the personal care to plaintiff, the provision of that care rendered ARCS an adult foster care facility for which it had no license. “ARCS provided plaintiff with ‘supervision, personal care, and protection,’ and was not licensed as an adult foster care facility. The treatment it rendered was, for purposes of reimbursement under the” No-Fault Act, unlawful. Further, it was "undisputed that ARCS provided physical assistance to plaintiff through the weekly filling of his medication pillboxes.” Additionally, the trial court’s decision reviewed in Life Skills "was premised upon that portion of MCL 400.706(1) that states ‘that the development of both social and personal skills required to live in the least restrictive environment.’” Given that the clause in "MCL 400.706(1) is not at issue here, the ultimate conclusion in Life Skills" was distinguishable. Reversed and remanded.
Dismissal of a first-party action for personal protection insurance (PIP) benefits based on the failure to respond to discovery; Former MCR 2.313(D); Principle that dismissal is a drastic & disfavored sanction; Vicencio v. Ramirez; Frankenmuth Mut. Ins. Co. v. ACO, Inc.; Principle that the trial court must evaluate all available options on the record before imposing such a drastic remedy; Draggoo v. Draggoo; Thorne v. Bell; Dean v. Tucker; Duray Dev., LLC v. Perrin
The court held that the trial court abused its discretion by dismissing plaintiffs’ PIP claim without evaluating other available sanctions on the record. Plaintiffs sued defendant-insurer claiming it failed to timely pay PIP benefits for injuries they sustained in a car accident. The trial court dismissed their claim with prejudice after they failed to respond to discovery and failed to appear at a hearing on defendant’s motion to compel discovery or in the alternative to dismiss. It also denied their motion for reconsideration. On appeal, the court agreed with plaintiffs that the trial court erred by dismissing their claim. “The trial court had not previously entered any order regarding discovery, plaintiffs had not violated any other court order, and there is no indication that plaintiffs had a history of deliberate delay. While a court is not precluded from granting a dismissal for failure to respond to discovery, in the absence of a court order compelling discovery that is a particularly harsh result.” Although their “failure to respond to the motion or appear for the hearing contributed to” the trial court’s ruling, even under these “circumstances, a court may not ignore the well-established caselaw governing dismissals for discovery misconduct. Given that there had not been a court order compelling discovery and that this was the first time that [defendant] sought court intervention regarding discovery,” the trial court’s order dismissing their claim was an abuse of its discretion. Reversed and remanded.
Whether the doctrine of res ipsa loquitur applied; Issue preservation; Henderson v. Department of Treasury; Department of Envtl. Quality v. Morley; The “raise or waive” rule of appellate review; Walters v. Nadell; The court’s discretion to waive preservation rules; Smith v. Foerster-Bolser Constr., Inc.; Napier v. Jacobs
The court held that plaintiff waived appellate review as to the issue of whether res ipsa loquitur applied to the facts of her case because she failed to properly raise the issue in the trial court. She sued defendant for injuries she sustained when a speaker at defendant’s restaurant fell on her. On appeal, plaintiff argued that the trial court erred by granting summary disposition for defendant where the doctrine of res ipsa loquitur applied to the facts of this case. Despite her assertion to the contrary, the applicability of res ipsa loquitur to the facts of her “case was raised for the very first time in a timely motion for reconsideration of the trial court’s order granting” defendant summary disposition. “After the trial court summarily dismissed this case, plaintiff obtained new counsel, who filed a motion for reconsideration, arguing that the trial court had failed to ‘analyze or otherwise apply the’” doctrine. The trial court denied plaintiff’s motion for reconsideration. The court rejected her claim that “this issue was argued by her first counsel in the trial court; the doctrine was just not identified by name.” It noted that she did not offer “any record citations to where the theory was actually advanced. Indeed, in her response to defendant’s motion for summary disposition, plaintiff proceeded under a theory of premises liability, arguing that defendant had breached its duty to her, as a business invitee, by failing to inspect the speaker, and failing to warn plaintiff of any defect.” She further asserted “the foreseeability of injury resulting from a speaker that had been negligently erected. [Her] counsel argued consistently with plaintiff’s brief at a hearing on defendant’s” summary disposition motion. As such, it concluded that res ipsa loquitur was not raised before plaintiff’s motion for reconsideration. Finally, the court found there were no “exceptional circumstances” in this case that would have justified a waiver of preservation requirements. “Plaintiff could have raised this issue in a timely fashion, yet for whatever reason failed to do so.” Affirmed.
Claim under the Seller Disclosure Act (SDA) (MCL 565.951 et seq.); MCL 565.954(3) & (4); MCL 565.961; Roberts v. Saffell; Common-law fraud; Christy v. Prestige Builders, Inc.; M & D, Inc. v. McConkey; Foreman v. Foreman; Libralter Plastics, Inc. v. Chubb Group of Ins. Cos.; Silent-fraud; Lucas v. Awaad; Personal representative (PR)
The court held that the trial court did not err by granting summary disposition for defendants on plaintiffs’ claim under the SDA or on their claims for silent-fraud and common-law fraud. Plaintiffs sued defendants alleging violations of the SDA, common-law fraud, and silent-fraud claiming the PR failed to disclose a variety of issues with the home. The trial court granted summary disposition for defendants. On appeal, the court rejected plaintiffs’ argument that the trial court erred when it held the SDA did not create an independent cause of action, noting “the SDA does not create an independent cause of action but instead relies on common-law causes of action in fraud to operate as the SDA-enforcement mechanisms.” It also rejected their common-law fraud claim, noting the PR’s silence simply could not “be interpreted as a material representation, regardless of plaintiffs’ insistence otherwise.” Moreover, there were “several factual problems” with this claim. At best, “plaintiffs have demonstrated that [the PR] quickly and incompletely filled out the SDS without learning about conditions on the property . . . .” Finally, the court rejected their silent-fraud claim, noting it failed for the same reasons as their common-law fraud claim. They “failed to offer proof that [the PR] suppressed the truth about the conditions . . . with an intent to defraud plaintiffs.” It was clear from the PR’s affidavit “that she had lived out of state and knew practically nothing about the home.” Plaintiffs failed to depose her “and her affidavit remain[ed] uncontested.” Affirmed.
Assessment of residential property; “Normal repairs”; MCL 211.27(2); Effect of a transfer of ownership of the property; Uncapping; MCL 211.27a(3) & (4); Michigan Props., LLC v. Meridian Twp.; Reading statutes in pari materia; Bloomfield Twp. v. Kane; Const. 1963, art. 9, § 3; Toll Northville LTD v. Township of Northville; True cash value (TCV); Pontiac Country Club v. Waterford Twp.; The law of the case doctrine; Lenawee Cnty. v. Wagley; Whether the repairs had any bearing on the property’s TCV; Whether the Tax Tribunal (TT) had to calculate the TCV using a “before repairs” appraisal & an “after repairs” appraisal; Reliance on the State Tax Commission’s (STC) 2014 Bulletin No. 7; Whether the TT made its own independent determination of the TCV; Jones & Laughlin Steel Corp. v. City of Warren; Rejection of the purchase price as determinative of the TCV; MCL 211.27(6); Review of TT decisions; Briggs Tax Serv., LLC v. Detroit Pub. Sch.; Deference to the TT’s interpretation of statutes it is charged with administering & enforcing; Moshier v. Whitewater Twp.; Taxable value (TV); General Property Tax Act (GPTA)
Concluding that petitioner-property owner failed to show that the TT committed an error of law or that competent, material, and substantial evidence did not support its decision, the court affirmed the TCV and TV for the 2016 tax year established by the TT. The court previously remanded the case to the TT. Petitioner asserted that, pursuant to MCL 211.27(2), the TT should have determined the TCV “without regard to any ‘normal repairs’ he made to the property after he purchased it in” 8/15. However, the court agreed with the TT that MCL 211.27(2) did not preclude the assessor from considering the impact of any “normal repairs” on the TCV for the 2016 tax year because there was a transfer of ownership in 2015. Because petitioner purchased it in 2015, the TV of the property for the 2016 tax year “was to be determined by its actual assessed value as of [12/31/15], without regard to any capping limitations. While MCL 211.27(2) does not expressly provide that it does not apply to ‘normal repairs’ performed during a year when ownership of property is transferred (i.e., the [TV] becomes uncapped), the statute must be read in conjunction with other provisions of the” GPTA and the Michigan Constitution. The court concluded that “the restriction on consideration of ‘normal repairs’ for purposes of calculating increases in TCV is intended to apply only while property is owned by the same party, and thus would not apply to repairs performed during a year in which ownership of the property is transferred.” Given that petitioner purchased it in 8/15, the property’s TV became uncapped between 8/15 and 12/31/15, and for the 2016 tax year, the assessor had to determine the TCV as of 12/31/15. The court rejected his reliance on the law of the case doctrine, noting that it had not addressed the effect of the property’s 2015 transfer of ownership on the TT’s “consideration of ‘normal repairs’ under MCL 211.27(2) for purposes of the 2016 tax year” in the prior appeal. It also rejected his claim that the TT had to calculate the “TCV using a ‘before repairs’ appraisal and an ‘after repairs’ appraisal[,]” finding his reliance on the STC’s 2014 Bulletin No. 7 misplaced. It further found that the TT made an independent determination of the TCV, rather than simply automatically accepting respondent’s valuation.
Termination under §§ 19b(3)(b)(i), (g), & (j); The clear & convincing evidence standard; In re Trejo Minors; In re Martin; A definite & firm conviction that a mistake was made; In re Dearmon
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 71674 in the 11/19/19 edition), which had affirmed the trial court’s termination order. The record left the court “with a definite and firm conviction that a mistake” was made. The statutory grounds for terminating respondent-father’s parental rights “and the best-interest determination all turn on the factual finding regarding whether respondent sexually abused one of the children. That finding is based on a 3-year-old child’s response to two open-ended questions and one leading question asked by her aunt, and a 6-year-old child’s statement that respondent threatened a ‘whooping’ for discussing the allegations.” The court noted that, as to the initial statement, the child did not repeat it in the forensic interview. However, she “affirmatively responded to leading questions such as whether it was raining indoors and whether she was 10 years old.” While appellate courts give deference to trial courts’ ability to observe the witnesses, the trial court here “did not actually observe the statement characterized by the aunt as alleging abuse.” In addition, it appeared “to place the burden on respondent to disprove the statement. Finding respondent’s various theories on why a 3-year-old might make such a statement unsatisfactory, the trial court concluded it had to take the statement at ‘face value.’ In doing so, the court shifted the burden to respondent to disprove the statement.” As to the indication that he “threatened another child with a ‘whooping’ for discussing the allegations, these are hearsay accounts from a 6-year-old.” It was not clear from the record that whatever was said was an effort to thwart “an investigation rather than an inartfully phrased instruction about what topics of discussion are generally appropriate.” The court concluded that, even giving the “two pieces of evidence the most weight they might be due, we cannot see how any reasonable trier of fact could consider this evidence ‘so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’” It remanded to the trial court for further proceedings. While finding the majority’s decision was not unreasonable, the dissent could not concur in the ruling “that the trial court ‘clearly erred’” when it determined termination was supported by “clear and convincing” evidence. Among other things, the dissent noted that “it is highly atypical, and indicative of sexual abuse, for a three-year-old to spontaneously suggest an act of oral sex.” Further, responding to “her aunt’s nonleading and open-ended question as to who gave her the idea to kiss her doll goodnight on the ‘kitty,’” the child answered, “My Daddy.” For these and other reasons, the dissent was “not left with a ‘definite and firm’ conviction that the” trial court erred, and not convinced that respondent showed that “the Court of Appeals reached a ‘clearly erroneous’ decision in affirming the trial court.”
Termination under §§ 19b(3)(c)(i) & (j); Children’s best interests; In re White; In re Moss Minors; People v. Cross; In re Olive/Metts Minors; In re Frey
Holding that termination was in the children best interests, the court affirmed the order terminating respondent-mother’s parental rights. She pointed to testimony indicating both strong bonds and love between her and the children. Moreover, she argued that she did not medically neglect the children and that “the selected foster home was not a positive adoptive home.” In her view, this moved the trial court’s best-interest analysis in her favor. At the onset of the case, she “admitted to using both cocaine and crack cocaine.” The DHHS provided her with drug screening and programs intended to mitigate her substance abuse. However, she “failed to consistently attend these programs or participate.” Over the course of the case, she only completed 11 drug screens. Each one was positive for marijuana or cocaine. She missed or refused to participate in 107 drug screens. Her ongoing drug use and refusal to mitigate her substance abuse was indicative of her failure to participate in services. Moreover, although the mother argued that she neither neglected nor harmed the children, the record reflected that both of them “were medically obese upon entering the care of the trial court. The DHHS attempted to address this by referring [the mother] to a parenting class intended to remedy her parenting skills, and the trial court put in place a ‘no sugar rule’ to assist the” children in improving their health. However, she violated this rule by bringing brownies to the children during parenting time. When the DHHS confronted her, she became extremely upset and refused to address the issue. Thus, contrary to her claim that she appropriately cared for and provided stability to the children, the record supported the trial court’s finding that her parenting skills negatively impacted their health. Moreover, her claim that foster care was inappropriate or harmful for them was also without support. The “children were each behaviorally and cognitively deficient when brought into foster care, but improved significantly while in foster care because of therapy and counseling.” It was true that they were bonded with the mother and loved her. “The trial court explicitly recognized this. However, the trial court appropriately weighed this single factor favoring the maintenance of mother’s parental rights against the emotional, mental, and physical well-being of the” children. It did not clearly err by finding that their need for permanency and stability weighed in favor of termination.
Termination under §§ 19b(3)(b)(i), (j), & (k)(ii); In re Beck; In re Moss Minors; In re Ellis; In re Hudson; In re BZ; In re Miller; “Reasonable likelihood”; Child’s best interests; In re Olive/Metts Minors; In re White
Holding that the trial court did not clearly err in finding that §§ (b)(i), (j), and (k)(ii) were established, and termination was in the child’s (T) best interests, the court affirmed the order terminating respondent-father’s parental right. As to §§ (b)(i), (j), and (k)(ii), respondent’s argument was that “a reasonable likelihood of future harm was not proven, given that the sexual abuse happened three years earlier without any subsequent abuse by respondent, that respondent was now incarcerated, and that [T’s] mother divorced respondent and had sole custody of” T. The court noted that each of the “statutory grounds speaks of a reasonable likelihood of future harm or abuse if the child were to be returned to a respondent’s care or home.” Thus, the court rejected his claim that “the statutory provisions were unproven because he could not harm [T] in the future given his imprisonment and the divorce and custody arrangement; the statutory subsections presume a return to care. The notion that a reasonable likelihood of future harm cannot be established where a respondent would not have the physical opportunity to harm a child at a later date contravenes the plain language of” §§ (b)(i), (j), and (k)(ii). Regarding the apparent three-year lapse of time without additional sexual abuse allegations, the court held that the threat of harm to T “remained in light of the evidence of respondent’s manipulative and controlling behavior and the fact that respondent denied that he even sexually abused [T] in the first place despite his plea. Patently, the danger persisted. The mere passage of time absent additional sexual assaults did not equate to a diminishment of the danger posed to” T.
Termination under §§ 19b(3)(g) & (j); In re Beck; In re Hudson; In re BZ; In re Miller; In re Mason
Holding that the trial court did not clearly err in finding that §§ (g) and (j) were established, the court affirmed the order terminating respondent-father’s parental rights to the child (R). As to § (g), he asserted that he executed a power of attorney for his mother to care for R, “thereby providing proper care and custody for his daughter, that he participated in every service available to him in prison and that he had a plan to obtain a job and housing upon his release.” The trial court correctly determined that R’s “placement with her grandmother did not occur because respondent delegated his parental authority . . . .” Instead, R was placed with her grandmother “simply because the [DHHS] investigated the paternal grandmother and determined her to be an appropriate placement for” R. The trial court gave him credit “for not obstructing that placement, but it refused to credit him for [R’s] placement and care, an important distinction.” In addition, it “correctly acknowledged that incarceration alone could not support termination, but” noted that he had an “incredibly” extensive criminal history. He testified that he had 23 adult criminal convictions, and that before his incarceration he was using meth every day. Further, although he “had taken many classes in prison during the time affecting this matter, he had also taken classes and completed extensive treatment before the current proceedings. Yet, he once again fell into his old problematic patterns and did not demonstrate any effective, positive changes in his behaviors” as to parenting. The trial court also noted that his “feedback from his class instructors was that he would require 6 to 12 months of outpatient treatment for substance abuse after his release from prison.” The trial court noted that “the length of time that it would take respondent to be in a position to adequately parent [R] was unreasonably long considering [R’s] age even if respondent were released from prison at the earliest possible date.” Thus, it found that he failed to provide proper care and custody for R “and that there was no reasonable expectation that he would be able to do so within a reasonable time given her age.” Finally, considering his “very extensive criminal record, his substantial history of drug abuse, his involvement in operating a meth lab, his minimal communications with [R], and his prior terminations and associated parenting failures,” the trial court did not clearly err by finding that § (j) was also proven.