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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Breach of contract; Motion to set aside a default judgment under MCR 2.603(D)(1); Good cause; Proper service; MCR 2.105(H); “Person in charge of an office”; Doctrine of noscitur a sociis; Meritorious defense; Motion for reconsideration; MCR 2.612(C)(1)(a)
In this breach-of-contract case, the court held that defendants established good cause to set aside the default judgment. Also, “the trial court’s denial of the motion under MCR 2.612(C)(1)(a) was not outside the range of principled outcomes and the trial court did not abuse its discretion by not setting aside the default judgment pursuant to MCR 2.612(C)(1)(a).” Thus, it reversed in part the trial court’s order denying defendants’ motion to set aside the default judgment and denying reconsideration under MCR 2.603(D)(1) and MCR 2.612(C), and remanded. Defendants argued that the trial court erred by denying their motion to set aside the default judgment under MCR 2.603(D)(1) as they had established good cause and a meritorious defense. As to defendant-Legend Health (a professional limited-liability company), plaintiff contended that he served the company via his process server in accordance with MCR 2.105(H)(2). “Because a ‘person in charge of an office’ is one with some authority to make decisions on behalf of an office, plaintiff’s service of process through” a medical assistant (M) to defendants was deficient. The court held that while “plaintiff mailed a copy of the summons and complaint to Complete Care’s [a professional corporation] principal office as required by the court rule, because [M] is not a ‘person in charge of an office,’ plaintiff did not properly serve defendants.” Thus, defendants established good cause to set aside the default judgment. However, this satisfied “only one prong of MCR 6.03(D)(1) as defendants must also establish they have a meritorious defense to plaintiff’s allegations.” The court concluded that “under MCR 2.603(D)(1), Legend Health presents sufficient facts in its affidavit to support its meritorious defense which arguably would afford it a defense against plaintiff’s claim.” However, it held that “because Complete Care did not present sufficient facts in the affidavit in support of the meritorious defense, it has not satisfied MCR 2.603(D)(1).”
Accord & satisfaction; MCL 440.3311(1)(i)-(iii); “Good faith”; ”Conspicuous”; MCL 440.3311(2); MCL 440.1201; Fraud in the inducement; Failure to order defendants to produce a transcript of a phone call; Waiver; Uniform Commercial Code (UCC)
The court concluded there was no genuine issue of material fact whether an accord and satisfaction was created. And plaintiff’s fraudulent inducement argument failed because she did not establish, by clear and convincing evidence, that defendants-Calcotes’ insurer intentionally made a false representation. Finally, she waived her claim that the trial court abused “its discretion by not entering an order compelling defendants to produce a transcript of” a phone call between plaintiff and their insurer. Plaintiff filed this auto negligence suit after cashing a check from the Calcotes’ insurer. The trial court granted defendants summary disposition, finding an “Advice of Payment accompanying the check was adequate to create a valid accord and satisfaction.” On appeal, the court held that all the requirements of MCL 440.3311(1) were met. Notwithstanding the factors were met, plaintiff argued “that there was, at least, a genuine issue of material fact concerning whether her claim was discharged.” She contended that the check and the Advice of Payment were “insufficient to establish an accord and satisfaction.” She further claimed there was “no accord and satisfaction because there was no ‘meeting of the minds’ in that plaintiff did not know or intend that the check would serve as a settlement of her claims.” The court found that her arguments were contrary to the UCC. Plaintiff was “correct that the check itself contains no language indicating that it is a full and final settlement of plaintiff’s claims. However, MCL 440.3311(2) explicitly states that a claim can be validly discharged if it is accompanied by a written communication with a conspicuous statement that the tender is in full satisfaction of the claim.” The court concluded “that the Advice of Payment contained such a conspicuous statement.” It determined “that the statement in the Advice of Payment was ‘set off from surrounding text by symbols or other marks’ such that a reasonable person ought to have noticed it, and therefore meets the definition of ‘conspicuous’ under MCL 440.1201(j).” Further, it found that the Advice of Payment contained “sufficiently detailed language to satisfy MCL 440.3311(2).” Given that “the Advice of Payment accompanying the check contains sufficient information to discharge plaintiff’s claim under MCL 440.3311(2), the trial court did not err by finding that an accord and satisfaction had been created.” Affirmed.
Motion for relief from judgment; Right to self-representation; People v Dunigan; Acceptance of a plea; MCR 6.302(B); People v Jaworski; People v Al-Shara; Sufficient factual basis; MCR 6.302(D); Whether “without justification or excuse” is an element of second-degree murder; Whether coercion was applied in taking the plea; People v Killebrew
Holding that “without justification or excuse” is not an element of second-degree murder, the court concluded “the trial court did not violate MCR 6.302(B) or Jaworski when accepting defendant’s guilty plea, and that the plea did not lack a sufficient factual basis under MCR 6.302(D).” It further found that he was not denied his right to self-representation, and that there was no Killebrew violation. Thus, it affirmed the denial of his motion for relief from judgment. He sought to withdraw his guilty plea to second-degree murder and felony-firearm. The court first found that he “never unequivocally requested to represent himself, so the trial court did not abuse its discretion by ‘failing’ to address this request or by otherwise ‘denying’ self-representation.” As to his claim the trial court did not comply with MCR 6.302(B) and Jaworski in taking his plea, the court concluded “the trial court substantially complied with MCR 6.302(B), including conducting the necessary inquiry regarding Jaworski rights. While [it] only explicitly questioned defendant on the record regarding one Jaworski right in confirming that [he] understood that he would forego his right to a jury trial by pleading guilty, explicit questioning on each Jaworski right is not always necessary.” The trial court discussed his “written acknowledgment of rights on the record when confirming not only that [he] signed the plea acceptance form that referenced all of the rights allegedly omitted by the trial court, but also discussed its contents with his attorney[.]” The court determined that following “Al-Shara, this colloquy is a proper method for accepting defendant’s guilty plea in substantial compliance with MCR 6.302 and Jaworski.” As to his claim his plea did not have a sufficient factual basis under MCR 6.302(D), he was correct that he “was never asked whether the shooting was unjustified or unexcused.” Thus, the question was “whether the failure to affirmatively establish that the shooting was not justified or excused, at least with respect to self-defense, constitutes a failure to establish an element of second-degree murder.” Reviewing the historical development of the crime, the court concluded “that ‘without justification or excuse’ is not a true element of second-degree murder. Instead, it is part of the ‘cluster of ideas’ about the act of murder that our Legislature adopted in 1846 by enacting the homicide statutes.” Finally, it found that “the trial court did not create impermissible coercion as contemplated by Killebrew."
Search & seizure; Motion to suppress evidence; Decision to not conduct a Franks v Delaware hearing; People v Martin; Sentencing; Proportionality; Effect of a within-guidelines sentence; MCL 769.34(10); People v Posey; Cruel & unusual punishment; Reliance on Solem v Helm; Harmelin v Michigan
The court held that the trial court did not err in declining to conduct a Franks hearing and in determining that defendant abandoned his motion to suppress. As to his sentencing challenges, (1) his within-guidelines sentence for meth possession was not subject to review for reasonableness, (2) he failed to overcome the presumption that it was proportionate, and (3) a proportionate sentence is not cruel or unusual. He was convicted of meth possession, FIP, possession of less than 25 grams of heroin and fentanyl, possession of less than 25 grams of cocaine, resisting and obstructing a police officer, and felony-firearm. He was sentenced to concurrent prison terms of 9 to 20 years for meth possession, 2 to 5 years for FIP, 4 to 8 years for possession of cocaine and possession of heroin and fentanyl, and 16 to 24 months for resisting and obstructing, all to be served consecutively to the statutory 2-year term for felony-firearm. Although he “filed a motion to suppress and a demand for an evidentiary hearing under Franks, defendant repeatedly failed to make a preliminary showing that the search warrant affidavit contained any statements that were knowingly or intentionally false, or that were made with reckless disregard for the truth. [He] filed his motion to suppress but failed to include any supporting affidavit. [His] motion did not state which specific portions of the warrant affidavit were allegedly false and did not state how any allegedly false statements in the warrant affidavit were necessary for a finding of probable cause. Defendant failed to include any supporting argument with his motion or any offer of proof for his assertions.” The court concluded his “conclusory statement that the search warrant ‘included claim[ed] events which were a deliberate falsehood or of reckless disregard for the truth,’ was insufficient to make a preliminary showing of falsity.” Further, the record showed “the trial court granted multiple adjournments to” give him more time to support his motion. At the plea hearing five days before trial, he “again asked the trial court to adjourn the hearing on his motion to suppress, yet he still had not provided the trial court with an affidavit in support of his motion. Because the request was made ‘on the eve of trial’ and defendant had had months to submit an offer of proof, the trial court properly denied [his] motion and considered it abandoned.” Affirmed.
Requests for a writ of mandamus & declaratory relief seeking to remove judicial candidates certified to appear on the election ballot; Alleged failure to comply with MCL 168.558’s affidavit requirements; Laches; “Unclean hands”; Mootness; Issues of public significance that are likely to recur yet evade judicial review; Affidavit of identity (AOI)
The court held that the trial court did not err in applying laches to preclude plaintiff’s requests for a writ of mandamus and declaratory relief even though it found certain judicial candidates did not submit AOIs that complied with MCL 168.558(2). It further concluded that he did not meet his burden of proof to show that the challenged candidates failed to submit two copies of their AOIs as required by MCL 168.558(1). Finally, the court rejected plaintiff’s claim that a candidate’s use of “N/A” on her AOI instead of stating “no party affiliation” failed to satisfy MCL 168.558(2). He sought to remove judicial candidates certified by defendant to appear on the 11/22 general election ballot, alleging they failed to comply with MCL 168.558’s affidavit requirements. The trial court found that he did not “establish some of his claimed instances of noncompliance, and although he did prove others, he failed to timely commence suit, such that relief was barred by” laches. The court addressed the merits of the case on appeal because it presented a “classic example of an issue that the courts will nevertheless review as matters of public significance that are likely to recur yet evade judicial review.” It upheld the trial court’s laches ruling, finding plaintiff failed to show “defendant engaged in the kind of misconduct that would constitute ‘unclean hands’” or that defendant’s conduct hindered his ability to bring this case sooner. The court determined that “plaintiff misapprehends what ‘unclean hands’ means, and the trial court did not err by refusing to apply it to preclude defendant from availing itself of the” laches doctrine. While he also argued laches could not apply because equitable doctrines do not apply where there is a statutory remedy, the court noted “‘the Michigan Election Law does not set forth any explicit procedure for resolving challenges to AOIs.’” In addition, given that mandamus and declaratory relief are “equitable in nature, there is no sound basis for concluding that equitable defenses, including laches, should not apply.” As to his MCL 168.558(1) claim, there was no indication “he inquired of or sought from defendant an affidavit by its employees attesting to the number of AOIs each challenged candidate submitted and whether they complied with” the statute. Lastly, the court found that “the plain language of MCL 168.558(2) did not require any specific terms be utilized to satisfy the criteria.” Affirmed.
Third-party (grandparents) child custody action; Established custodial environment (ECE); Vodvarka v Grasmeyer; Proper cause or a change of circumstances; The statutory best-interest factors; MCL 722.23; Best-interest factors (a), (b), (c), (e), (j), & (k); Presumption of parental fitness; MCL 722.25(1); Harmless error; MCR 2.613(A); Parenting time; Transcripts
The court held that the trial court did not err by granting plaintiffs-maternal grandparents sole legal and physical custody of defendant-father’s child, DM. The probate court found that 11 of the best-interest factors weighed in plaintiffs’ favor. It held that DM had an ECE with plaintiffs, that the presumption of parental fitness was rebutted by clear and convincing evidence, that custody with defendant was not in DM’s best interests, and that he was entitled to “reasonable parenting time.” The trial court entered a judgment consistent with the probate court’s opinion, granting plaintiffs sole physical and legal custody of DM. It also adopted the parenting time order by reference, and stated that defendant “shall be entitled to reasonable parenting time upon the hearing on a motion regarding the same.” He argued that the probate court erred by failing to consider whether proper cause or a change of circumstances existed before changing DM’s custody, and that it abused its discretion by awarding plaintiffs sole physical and legal custody. The court concluded “ample evidence demonstrated that [the mother’s] death and related circumstances constituted a change of circumstances that warranted revisiting the existing custody order, and any error by the probate court in this respect was harmless.” Further, the probate court “correctly applied the law and did not abuse its discretion in holding that sole custody of DM by plaintiffs was in DM’s best interests.” The court found the probate court’s findings that each of the challenged best-interest factors “weighed heavily in favor of plaintiffs” were not against the great weight of the evidence. Finally, it rejected defendant’s contention that the probate court violated his right to due process by refusing to consider parenting time before terminating its jurisdiction, and that his due process rights were violated because portions of the custody hearings could not be transcribed and there was a delay in the production and filing of the transcripts. “The probate court’s opinion was not silent as to parenting-time; rather, [it] held that the existing parenting-time order would continue unless a party sought to change it.” Further, it did “not appear the probate court heavily relied on the missing testimony.” Moreover, while defendant was “correct there was a delay in locating the transcripts and in the transcripts being filed, we fail to see how this can be attributed to the probate court.” Affirmed.
Delivery of medical records to third parties under the Health Information Technology for Economic & Clinical Health Act (the HITECH Act); 42 USC §§ 17935(e)(1) & (3); Ciox Health, LLC v Azar (D DC); The 30-day requirement for delivery of documents; 45 CFR § 164.524(b)(2)(i); Preemption of the Michigan Medical Records Access Act (MRAA); In re Schultz; Fees a health care provider or medical records company may charge for medical record requests; MCL 333.26269(1), (2), & (6); “The Patient Rate”; Alleged withholding of medical records in violation of the Michigan Consumer Protection Act (MCPA); MCL 445.903(1)(n), (q), & (z); Slobin v Henry Ford Health Care
The court held that the HITECH Act’s 30-day requirement preempts the MRAA’s prepayment provision. But the trial court correctly applied state law in determining the proper fee defendant-medical records provider (MRO) could charge, although it erred when it found MRO charged plaintiff an appropriate fee. It also held that the trial court properly dismissed plaintiff’s MCPA claim. Plaintiff sent a medical-record request to defendant-hospital, asking that the records be sent to his attorney. MRO handled the request and indicated to the attorney that it would charge a higher fee for records sent to a third party, and that prepayment was required. The attorney replied to MRO that it failed to provide the records within 30 days, and that it could not charge the higher fee. Plaintiff later sued defendants. The trial court granted defendants summary disposition. On appeal, the court agreed with plaintiff that defendants failed to comply with the 30-day requirement in the HITECH Act, noting they did not comply with either prong of § “164.524(b)(2)(i), which requires that a covered entity either grant the request and provide the access requested, . . . or deny the request and provide the individual with a written denial[.]” It also agreed with plaintiff that “the requirement that a request for records be granted or denied within 30 days under federal law is inconsistent with the language in MCL 333.26269(2) allowing health care providers or medical record companies to condition transmission of records on prepayment of the applicable fee.” Defendants failed to act on his request “within 30 days, as they were required to under the HITECH Act and related regulations, because they believed that MCL 333.26269(2) allowed them to withhold” the records until he paid the applicable fee. As that “prepayment provision conflicts with the 30-day requirement under the HITECH Act,” the MRAA’s prepayment provision is preempted. Next, while the trial court did not err by finding state law applied for purposes of determining the fee that could be imposed for providing copies of his records, it “erred in finding the fee charged based on pages printed was appropriate.” As to his MCPA claim, under “Slobin, when an individual seeks records for litigation purposes, a claim under the MCPA cannot be sustained.” Affirmed in part, reversed in part, and remanded.
The Michigan Zoning Enabling Act; “Aggrieved party” under MCL 125.3605 & 125.3606(1); Saugatuck Dunes Coastal Alliance v Saugatuck Twp; Jurisdictional time limit for filing an appeal in the circuit court; MCR 7.104(A)(1); MCL 125.3606(3); Exhaustion of administrative remedies; Standing to challenge zoning ordinance changes; Demand for a writ of mandamus or superintending control; As-applied constitutional challenges; Vagueness challenge; Failure to support a claim; Whether the planning commission’s decision was legislative or administrative; Zoning board of appeals (ZBA); Neighborhood Node (NN)
The court held that the circuit court did not err in granting defendant-city summary disposition and in dismissing plaintiff-Stafa’s amended complaint. He did not have standing to challenge the changes to § 5.06 of the city’s zoning ordinances. His claims as to the denial of a “site plan application should have been timely appealed to the circuit court. An order of superintending control was not appropriate because an appeal was available.” He argued that his amended complaint “was a permissible original action challenging various” city actions and not an untimely appeal of the ZBA’s decision, which denied his appeal from the planning commission’s denial of his site plan application. The complaint made demands for declaratory relief that fit into two categories – (1) declaratory relief as to § “5.06, the new zoning ordinance describing NN Districts; and (2) declaratory relief from the planning commission’s denial of Stafa’s site plan, and the ZBA’s denial of his appeal.” The court first determined that he lacked standing to challenge the changes to § 5.06, which “was amended after the ZBA denied Stafa’s appeal and there is no evidence the newly-enacted language of the ordinance was ever adversely applied to” him. As to his other request for declaratory relief, he “generally contested the planning commission’s and the ZBA’s assessments and decisions related to his site plan application.” As his claims were directly related to the ZBA’s denial of his appeal, he could have pursued them “in an appeal to the circuit court. Because Stafa did not timely appeal these claims to the circuit court, the circuit court correctly concluded these claims were time-barred under MCL 125.3606(3) and [it] lacked jurisdiction to consider them.” As to his request for a writ of mandamus, an order of superintending control replaces such a writ “‘when directed to a lower court or tribunal.’” And given that he “was a party aggrieved by the ZBA’s decision, and an appeal of the ZBA’s decision was available in the circuit court, the circuit court did not err by dismissing his request for an order of superintending control.” Further, his as-applied constitutional challenges could have been addressed in such an appeal. “As such, the circuit court did not err by applying the standards under MCL 125.3604(1) and MCL 125.360, or by relying on the” exhaustion of administrative remedies doctrine in granting the city’s motion to dismiss. Affirmed.
Child placement; MCL 712A.2(b)(1)(C); Modification of placement; MCR 3.966(A)(1); Removal; MCL 712A.2(b); Principle that a parent may entrust the care of his or her children for extended periods of time to others “without court interference by the state as long as the child is adequately cared for”; In re Weldon; Parental fitness; Neglect; MCL 722.602; Authorization of a petition for jurisdiction; MCL 712A.13a(2); Due process; In re Sanders; In re Eldridge; Guardian ad litem (GAL)
The court held that although the DHHS’s delays in this case were “deeply troubling,” the trial court reasonably determined that the fictive kin suggested by respondent-father was an inappropriate placement. Within days after the child’s birth, the DHHS petitioned for his removal from his mother and for the termination of her parental rights. It knew that respondent was the child’s likely father. Respondent, who was incarcerated, expeditiously established his paternity. But the DHHS neglected to file a petition naming him as a respondent for 15 months after his child was placed in foster care. During this time, respondent urged the trial court to place his son with PM, fictive kin. The trial court rejected this option, and ordered the child’s removal. On appeal, the court noted that he “was not immediately available to ensure that his selected custodian could adequately care for” the child, who “was already in foster care by that time, as ordered by the [trial] court when the child was removed from his mother’s care. And although [respondent] quickly designated PM as his son’s custodian, evidence submitted . . . by both the DHHS and the GAL supported that PM would not adequately care for the child.” The majority disagreed with the dissent’s contention that once respondent directed that the child be placed with PM, the trial court had no legal authority to leave the child in foster care. Respondent’s “incarceration and his absence at the child’s birth put him in the unenviable position of being unable to directly place his child without DHHS input. When he was able to direct [the child’s] placement, the child was 5½ months old and living in a stable foster family placement.” Balancing the interests pursuant to Eldridge, the court concluded the trial court did not err by initially refusing to transfer the child’s custody. But it noted “the evidentiary basis for this refusal was not well fleshed out, and on remand [directed] that the DHHS conduct a home study of PM forthwith.” Despite the “ongoing violation of father’s constitutional rights, the [trial] court ultimately properly took jurisdiction over the child in relation to father.” When the trial court allowed him more “time, he could name no other possible placement for the child.” This left the child “‘without proper custody or guardianship’ supporting jurisdiction.” Further, the petition outlined his “history of violent and drug-related crimes . . . ,” the most recent of which resulted in his present imprisonment until at least 10/23 “and possibly as late as 2028. [He] cannot personally provide a home for his child ‘by reason of . . . criminality.’ Absent a suitable alternate placement, the [trial] court was bound to take jurisdiction over” the child in relation to respondent. “Going forward, the [trial] court and the DHHS must tread carefully to avoid repeating their mistakes.” Affirmed.
Termination under §§ 19b(3)(i) & (j); Reasonable reunification efforts; MCL 712A.19a(2)(c); Children’s best interests
Concluding that respondent-father was not entitled to reunification efforts before his parental rights were terminated, §§ (i) and (j) existed, and termination of his rights was in the children’s best interest, the court affirmed. “The facts showed that respondent’s parental rights had been terminated to his child from another mother because he had sexually abused a half-sibling of that child. The seven-year-old victim had testified that respondent ‘made her suck his penis, view pornographic photos, view pornographic videos, and tried to stick his penis in her anus.’” She further testified that he “threatened to hit her if she told her mother.” This was clear and convincing evidence to support the first part of § (i). Respondent argued “that the trial court should have found that he did not sexually abuse the victim because both he and the mother testified that the mother of the victim had lied about the sexual abuse, he continued to deny any sexual abuse, and he was not criminally charged.” There was no merit to this argument. “There could be many reasons, other than lack of guilt, why respondent was not criminally charged. For one, perhaps the parents and the prosecutor did not want to put the young victim through a second trial on the criminal charges after she had testified at the termination hearing. In addition, both respondent and the mother gave so many conflicting stories about the domestic violence situation, it is very likely the trial court found their testimony not to be credible.” Further, as to the second part of § (i), “failure to rectify, the trial court found that, because respondent had denied both the sexual abuse and the need for therapy, the conditions that led to the termination still existed and had not been rectified. The trial court did not clearly err. Respondent’s failure to accept responsibility, his continual denial that the sexual abuse ever occurred, and his claim that the mother of the victim had lied, gave the trial court clear and convincing evidence to conclude that respondent had failed to rectify the conditions that led to the prior termination.” Although it was not necessary to address another statutory ground for termination, the court also concluded that there was clear and convincing evidence to support termination under § (j). “The facts of the prior termination, respondent’s extensive criminal history, and the more recent domestic violence, was clear and convincing evidence that there was a reasonable likelihood, based on respondent’s conduct and capacity, that there was a risk that the children would be harmed if returned to respondent’s home.”
Termination under § 19b(3)(c)(i); Guardianship; MCL 722.873(c); In re TK; Reasonable reunification efforts; MCL 712A.18f(3)(b) & (c); In re Hicks; MCL 712A.19a(2); A parent’s responsibility to participate in the offered services; In re Frey; Best interests of the children; In re White
The court held that the trial court did not abuse its discretion by failing to consider guardianship in lieu of termination of respondent-mother’s parental rights. It also held that the trial court did not err by directing the DHHS to no longer provide efforts toward reunification or abuse its discretion by suspending respondent’s parenting time. Finally, it held that the trial court did not err by finding that § (c)(i) existed or that termination was in the child’s best interests. The trial court found that, “throughout this case, reasonable efforts to reunify the family had been unsuccessful and respondent never demonstrated the ability to properly care for” her child. On appeal, the court rejected her argument that the trial court erred by terminating her rights because it failed to consider guardianship options and concluded that reasonable efforts to reunify were no longer necessary. While she claimed “guardianship was appropriate because the child was placed with relatives, the issue of guardianship was not brought up before the trial court and” was, thus, unpreserved. Further, respondent failed in her “duty to participate in, and benefit from, the offered services.” The court found she raised “no valid challenge to the reasonableness of the DHHS’s efforts. The DHHS offered respondent numerous services aimed at removing the barriers to reunification, but [she] did not substantially participate in and benefit from the services offered throughout this case.” Contrary to her contention, the trial court did not err “by directing the DHHS to no longer provide efforts toward reunification after the goal was changed to termination.” In addition, it “did not abuse its discretion by suspending respondent’s parenting time.” The court also rejected her argument that the DHHS failed to prove a statutory ground for termination. “[B]ased on respondent’s drug use and failure to comply with the parenting plan, the trial court concluded that the conditions leading to adjudication continued to exist with no reasonable likelihood of change in the foreseeable future given the child’s age and respondent’s conduct throughout the case.” Given the circumstances, it did not err when it terminated her parental rights under § (c)(i). Finally, the court rejected her claim that termination was not in the child’s best interests. “The failure to benefit from the case-service plan alone was enough to indicate that terminating respondent’s parental rights was in the child’s best interests based on the risk of harm to the child if placed in respondent’s care and custody.” Further, she never showed she could provide a stable home for the child. Affirmed.