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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Sanctions; Attorney fees & costs; MCR 1.109; MCR 2.625(A) & (F); MCR 2.626; MCL 600.2591; MCL 600.2405(6); Haliw v Sterling Hts; Keinz v Keinz; “Costs”; Dessart v Burak; Van Elslander v Thomas Sebold & Assoc, Inc; “Final order”; MCR 5.801(A); MCR 7.202(6)(a); Taxation of deposition fees; MCL 600.2549; VanAlstine v Land O’Lakes Purina Feeds, LLC; Portelli v IR Constr Prod Co, Inc; The probate court’s discretion to appoint a special fiduciary; MCL 700.1309(a); MCR 5.204; In re Shields Estate
Holding that the probate court erred by awarding attorney fees and deposition costs, but properly awarded other costs, the court affirmed in part, reversed in part, and remanded. The parties vigorously litigated the validity of a trust. The probate court eventually found appellees were entitled to recover various costs, including fees for deposition transcripts, as well as attorney fees. On appeal, the court agreed with appellant that the probate court erred by awarding attorney fees to appellees because the award was not authorized by statute or court rule. “Given the probate court’s conclusion that petitioners’ actions ‘in pursuing this matter were not frivolous,’ [its] award of attorney fees could not have been made under MCL 600.2591. Nor could the award of attorney fees have been granted under MCR 2.625(A).” In addition, “given MCR 1.109(E)(7)’s incorporation of MCR 2.625(A)(2), which, in turn, references MCL 600.2591, MCR 1.109 did not authorize the attorney fees awarded here.” Thus, the probate court “erred as a matter of law and abused its discretion in awarding attorney fees in this case.” Further, the probate court “improperly applied the ‘necessarily used’ language of MCL 600.2549 to award tax costs for the deposition transcripts.” However, because a probate court “has jurisdiction to settle a fiduciary’s accounts and determine a party’s ‘liability for the fiduciary’s expenses,’ it was not outside the range of principled outcomes" to order the special fiduciary fees.
Attorney lien on settlement proceeds; Determining a reasonable fee based on the attorneys’ relative contributions; Morris v Detroit
Concluding that the trial court failed to make sufficient findings of fact to allow for meaningful appellate review, the court vacated the postjudgment order directing defendant-Seva Law Firm (Seva) to pay $8,272.55 to appellee-Law Offices of Richard R. Mannausa, PLC (Mannausa), representing a portion of the attorney fees Seva received as a result of plaintiff’s settlement with defendant-Bristol West, and remanded. Seva did not dispute that Mannausa was entitled to a reasonable payment for its services rendered, but argued that “the trial court erred by determining that Mannausa was entitled to 40% of the settled attorney fee.” The court found that the record did “not reflect any analysis of the relative contributions of Seva and Mannausa, or of the factors addressed in Morris.” Further, by accepting Mannausa’s assertion that it was entitled to the 40%, the trial court appeared “to have accepted Mannausa’s argument that it should be compensated for its work on plaintiff’s probation violations and chiropractic licensure issue. Yet, the trial court did not address Seva’s argument that Mannausa’s work on those other issues was unrelated to plaintiff’s no-fault action.” In addition, there was no evidence offered regarding how Mannausa’s work as to the “other issues impacted plaintiff’s settlement; all the trial court had before it was Mannausa’s and Seva’s unsupported—and contradictory—arguments. Without any actual evidence in the record, or findings of fact made on the matter,” the court could not conclude whether it was proper to include this “work on the part of Mannausa in the determination of a reasonable fee under” quantum meruit. Further, the trial court failed to make any findings as to “what portion of Seva’s work on plaintiff’s case was duplicative of Mannausa’s work.” The court noted that although “Seva did not specifically draw the trial court’s attention to this question, the trial court could not properly allocate the settled attorney fee between Seva and Mannausa without considering it. Finally, the trial court provided no substantive analysis of the effect of Seva’s referral agreement upon the proper allocation of the settled attorney fee.”
Claim under the Construction Lien Act (CLA) to foreclose a lien for kitchen equipment fabricated & installed by plaintiff for use in a tenant’s restaurant on defendant’s real property; MCL 570.1107(1); Whether the lien attached to defendant’s real property; AFP Specialties, Inc v Vereyken; Norcross Co v Turner-Fisher Assoc; Rowen & Blair Elec Co v Flushing Operating Corp; “Improvement”; MCL 570.1104(6); Implied agency
Because “the trial court’s findings that the lease did not require the improvements installed by plaintiff and that no agency relationship was created between defendant and its tenant” were not clearly erroneous, the court affirmed the judgment of no cause of action for defendant-TM Partridge Creek Mall in this CLA case. Plaintiff sought to foreclose a lien under the CLA for kitchen equipment it fabricated and installed “for use in a tenant’s restaurant on defendant’s real property.” Plaintiff claimed that the trial court erred by finding that its lien did not attach to defendant’s real property. The court held that although the Supreme Court’s explanation of the implied agency theory in Rowen & Blair was dictum, the court’s holdings in Norcross and AFP Specialties clearly established the “applicability of the implied agency rationale to cases arising under the CLA.” Further, AFP Specialties, decided in 2014, was “binding under MCR 7.215(J)(1). In light of this precedent, the trial court correctly held that ‘either under the express terms of MCL 570.1107(1), or under the judicially created exception based on agency principles, the question becomes whether [defendant] required the improvements [plaintiff] provided.’” In addition, the court held that although the lease seemed to require that defendant-Karet “make improvements necessary to conduct the business operations for which the space was leased, the trial court’s finding that the lease did not require the improvements installed by plaintiff within the meaning of MCL 570.1107(1)” was not clearly erroneous. Finally, the court held that the trial court’s determination that no agency relationship existed between defendant and Karet was correct.
Wrongful death action arising from a construction site accident; Premises liability; Possession & control; Scola v JP Morgan Chase Bank, Nat’l Ass’n; Joint possession; Siegel v Detroit City Ice & Fuel Co; Loaning possession & control; Alter-ego theory; Dutton Partners, LLC v CMS Energy Corp; A design of the property that permits an invitee or person in control of the property to create a hazardous condition where none existed before; Jones v DaimlerChrysler Corp; The repairman rule; Open & obvious danger; Bredow v Land & Co; Notice; Lowrey v LMPS & LMPJ, Inc; Negligence & contractual duties; Fultz v Union-Commerce Assoc; Damages under the Wrongful-Death Act; MCL 600.2922; Personal representative (PR)
The court held that the trial court did not err by granting defendants-building owner and general contractor summary disposition of plaintiff-PR’s wrongful death action. The decedent died while performing demolition work as an employee of the third-party defendant-subcontractor on a construction project. Plaintiff sued defendants for wrongful death, alleging several claims. The trial court found that they lacked possession and control over the property, that the decedent was “not injured by a hazardous condition on the land but by his own actions, that any hazard was open and obvious, and that plaintiff’s negligence claim failed because it identified no duty separate and distinct from a contract.” It also granted the general contractor’s motion related to the foster children’s (adopted by the decedent’s wife after this death) ineligibility for damages. On appeal, the court first found that neither the owner nor the general contractor had possession and control of the property as required to maintain a claim for premises liability. Further, because plaintiff failed to make a showing of fraud, wrongdoing, or misuse, she could not prevail on an alter-ego theory of liability. In addition, neither defendant could be held liable under premises liability law for the decedent’s act—"or that of any of [the subcontractor’s] employees—that created a hazardous condition that did not previously exist.” Further, the repairman rule did not apply because the decedent was injured by his own actions, and the risk of falling joists and flooring was not a separate and distinct risk. They also owed “no duty to protect [the decedent] from the open and obvious hazard of a floor collapsing after two support columns were knocked down.” And because they lacked notice of the hazard, they could not be held liable under a premises-liability theory. The court also held that “[i]n the absence of a separate and distinct duty, the trial court did not err by dismissing plaintiff’s negligence claim premised on [the general contractor’s] breach of contractual duties.” Finally, given its conclusion that the trial court properly granted summary disposition to defendants, it was “unnecessary to reach” the question related to wrongful-death damages. Affirmed.
Standard of review; Failure to move for judgment of acquittal under Fed.R.Crim.P. 29; “Miscarriage-of-justice/devoid-of-evidence” standard; United States v. Price; Jackson v. Virginia; Sufficiency of the evidence
[This appeal was from the WD-MI.] Applying the miscarriage-of-justice/devoid-of-evidence standard of review for unpreserved sufficiency of the evidence challenges under Sixth Circuit precedent, the court held that under any standard, there was sufficient evidence for the jury to convict defendant-Burris. He challenged the sufficiency of the evidence for his convictions of conspiracy to possess and distribute meth, distributing meth on a specific date, and possessing with the intent to distribute meth on a subsequent date. During the execution of a search warrant, police officers saw Burris exiting the backdoor of the home and fleeing with something clutched to his chest. When he was apprehended, he was no longer carrying the object, but a black bag containing meth was recovered at the exact location where he was seen hopping over a fence. A digital scale was among the items recovered from his home. The court noted that while the denial of a motion for judgment of acquittal is generally reviewed de novo, the standard changes to miscarriage-of-justice/devoid-of-evidence when a defendant, such as Burris did here, fails to move for a judgment of acquittal under Rule 29. He argued that the miscarriage-of-justice/devoid-of-evidence standard conflicts with Jackson, which held that habeas “petitioners are entitled to relief if they can show that ‘no rational trier of fact could have found proof of guilt beyond a reasonable doubt.’” The court noted that even though it uses the Jackson standard for preserved sufficiency-of-the-evidence challenges, it has consistently used the miscarriage-of-justice/devoid-of-evidence standard to analyze unpreserved ones. While the court expressed concern about doing so, it left “reconsideration of the proper standard of review to apply to unpreserved sufficiency-of-the-evidence challenges” for another case because it concluded that Burris’s claim would fail under either standard. There was sufficient evidence that there was an “illicit agreement” between Burris and another individual to support the conspiracy count, and sufficient evidence that he delivered drugs from his pickup truck to support the distribution count. Testimony about his flight from a home clutching something to his chest and the discovery of drugs along his path provided sufficient circumstantial evidence for the jury to conclude that he possessed the meth with intent to distribute. Affirmed.
Plea agreements; Whether there was a factual basis for defendant’s guilty plea; Fed.R.Crim.P. 11(b)(3); “Competency”; 18 USC § 4241(a); Whether the plea agreement prohibited defendant’s challenge to the procedural reasonableness of his sentence
The court held that based on defendant-Pitts’s acknowledgement of his plea agreement, the PSR, and the affidavit attached to the criminal complaint, there was a factual basis in the record for his guilty plea. Further, he failed to show that the district court should have reconsidered the issue of his competency, and his valid plea agreement precluded him from challenging the procedural reasonableness of his sentence. He initially pled not guilty to attempting to provide material support or resources to a foreign terrorist organization, threatening the President, and threatening the President’s immediate family. He then changed his plea to guilty and received a below-the-Guidelines sentence of 168 months. He argued that the district court erred by accepting his plea, asserting that there was no factual basis for it. The court disagreed, holding that “[t]he operative change-of-plea proceedings, the PSR, and the affidavit attached to the criminal complaint” provided a factual basis for his plea. This evidence showed that he “intended to provide material support—including his personal efforts—to al-Qaeda, that Pitts knew al-Qaeda had engaged in terrorism, and that he had made substantial steps toward commission of the crime.” He acknowledged the district court’s narrative of his actions, and signed and initialed each page in the written plea agreement. This established the factual basis for his plea. In addition, excerpts of recorded conversations between Pitts and an undercover agent provided additional evidence of Pitts’s crimes. The court also rejected his claim that he was “incompetent to enter his plea” where he was evaluated for competency before his first arraignment, and he told the district court that he was “clear-headed.” There was nothing in the record that would have given “the district court ‘reasonable cause’ to consider Pitts incompetent.” His argument that he did not “knowingly enter his plea” and accept his appellate waiver failed where he was repeatedly asked if he understood the proceedings, the district court properly followed plea procedure, and where he signed and initialed the agreement. The court declined to consider his procedural reasonableness argument because the plea agreement prohibited him from appealing his agreed-to sentence. Affirmed.
Spoliation of evidence; Sanction; Offer of judgment rule; Interest of justice; MCR 2.405(D)(3); Statutory conversion; Replevin; Uniform Trade Secrets Act; “Misappropriation”; Breach of fiduciary duty
Holding that the trial court did not err in any respect, the court affirmed the trial court’s orders dismissing claims arising from an agreement as to confidential information, competition, and solicitation, and resolving a spoliation of evidence dispute. Plaintiff-Gen-Wealth claimed that the trial court should have granted judgment in its favor as a sanction for the loss of a hard drive. On cross-appeal, defendants-Freckman and Korhorn Financial argued that “the trial court erred when it reduced their award of actual costs under the offer-of-judgment rule equal to the reasonable costs and fees incurred by Gen-Wealth investigating and litigating the spoliation issue.” The court disagreed and affirmed “the trial court’s imposition of sanctions and the amount of the sanctions.” It noted that there “was evidence that Korhorn Financial failed to preserve the hard drive that was in the first laptop provided for Freckman’s use after he began working for Korhorn Financial.” The trial court heard evidence about the spoliation issue and specifically found that defendants “did not act with the intent to cause evidence to be destroyed.” After concluding that “the loss of the hard drive was not intentionally done to destroy evidence, the trial court still felt that it would be appropriate to fashion some sanction.” The court held that on the facts, “the loss of the hard drive would not warrant an extreme sanction. The undisputed evidence showed that the information-technology persons who handled the drive preserved all the user-generated files and associated metadata from Freckman’s original hard drive. Gen-Wealth’s own expert only opined that it was possible that some of the system artifacts and files were not transferred.” The court determined that given “the minimal evidentiary value of any lost artifacts, the trial court would have abused its discretion had it sanctioned Freckman and Korhorn Financial by entering judgment in Gen-Wealth’s favor.” It further concluded that even “assuming that the lost hard drive had artifacts on it that were not transferred to the hard drive that was actually examined, the inferences naturally arising from such artifacts could not have established the content of any file, who possessed such a file, and whether the file was disseminated to others. Given the complete absence of evidence that Freckman actually kept confidential files after his termination, the artifacts also could not have corroborated or lent weight to any evidence that could establish an essential element of Gen-Wealth’s claims.”
The Acknowledgment of Parentage (AOP) Act; Factual findings as to the sufficiency of the mother’s affidavit before deciding whether to revoke plaintiff’s AOP; The Revocation of Parentage Act; Consideration of the best-interest factors under MCL 722.1443(4); Jones v Jones; Helton v Beaman
The court vacated the trial court’s order revoking plaintiff’s AOP of the child, W, and order of filiation finding appellee-Lippenga to be the father, and remanded, concluding that the trial court erred by failing to consider the best-interest factors in MCL 722.1443(4) in deciding whether to revoke plaintiff’s AOP. The record indicated that defendant-mother “(and perhaps plaintiff) knew all along that Lippenga was” W’s biological father. Given his “newly discovered evidence, which could not have been found before the acknowledgment was signed, and the fact both plaintiff and defendant believed Lippenga to be” W’s biological father when they signed the AOP, Lippenga’s claims “of newly discovered evidence and misrepresentation were sufficient to support his action for revocation.” Further, his claim “of mistake of fact was also a sufficient basis to proceed with the revocation action.” The DNA test report supported his attestation that he is W’s biological father. Thus, his affidavit was “sufficient to allow the trial court to proceed to determine whether to revoke plaintiff’s [AOP], and the trial court’s failure to make explicit findings regarding the sufficiency of Lippenga’s affidavit was not a plain error that affected plaintiff’s substantial rights.” But the court agreed with plaintiff that the trial court erred by not considering “the best-interest factors under MCL 722.1443(4) in deciding whether to revoke” his AOP. It noted that the “trial court could not grant an order of filiation in favor of Lippenga unless it first revoked plaintiff’s” AOP. Plaintiff’s “status as the ‘acknowledged’ father changed because the trial court entered the order revoking” his AOP. And because it “entered the order, under Jones, the trial court did not need to articulate on the record its reasoning as to the best-interest factors under MCL 722.1443(4).” However, it still had to consider those factors “before granting the order revoking plaintiff’s [AOP], and if requested, receive evidence on that issue. The trial court erroneously stated, ‘But I’m not . . . —I may consider [the best-interest factors] but . . . I don’t even get down that far because I’m not refusing to enter the order. So, I don’t even get down that far.’” Contrary to Jones and Helton, it “did not believe it was required to consider the best-interest factors under MCL 722.1443(4), but those cases (and the statute) required the trial court to receive evidence regarding best interests;” it just did not have to address the factors “on the record unless it had refused to enter the order revoking plaintiff’s” AOP. The court retained jurisdiction.
Medical malpractice; Statute of limitations; MCL 600.5805(8); Accrual; MCL 600.5838a(1); Continued adherence to an initial diagnosis or treatment plan; Kincaid v Cardwell; The discovery rule; MCL 600.5838a(2); Distinguishing Jendrusina v Mishra; Tolling under MCL 600.2912b(1); Notice of intent (NOI)
Holding that plaintiffs’ medical malpractice action was filed outside the two-year statute of limitations in MCL 600.5805(8) and that the discovery rule did not save their claim, the court affirmed summary disposition for defendants. The trial court determined that the injury caused by defendant-Dr. Mendelson’s alleged malpractice occurred when he performed the total knee replacement surgery on 7/12/16. Plaintiffs essentially contended that he committed a new malpractice act each time he saw plaintiff-Trudy Mosley after the “surgery and failed to realize that the prosthetic had been improperly implanted.” Reviewing the complaint, the NOI, and plaintiffs’ response to defendants’ summary disposition motion, the court found that they simply “pled that Dr. Mendelson was negligent by adhering to his original mistaken diagnosis.” It appeared from their filings that he “initially diagnosed Mosley as suffering from normal post-surgical pain, and continued, throughout the relevant time period, treating Mosley as though her prosthetic had been correctly implanted but was nonetheless causing her pain. Even if this course of treatment was mistaken or negligent, it constitutes the sort of continued adherence to an initial diagnosis or treatment plan, under Kincaid, that does not result in separate accrual dates for separate individual acts of malpractice.” The court also rejected plaintiffs’ argument that the trial court erred in ruling they did not file “suit within the period during which the limitations period was tolled under MCL 600.5838a(2), when combined with the 182-day tolling period triggered by the filing of” the NOI under MCL 600.2912b. They contended that, “like the plaintiff in Jendrusina, Mosley did not receive sufficient information to become aware of her possible medical malpractice claim on the date the trial court fixed as the beginning of the limitations period.” However, the court found Jendrusina “significantly distinguishable.” In this case, Mosley knew that an improperly implanted prosthetic was a possible cause of her pain and swelling. “Mendelson invited her to get a second opinion” about his belief that it was properly implanted. When another doctor told her “he believed the prosthetic had been improperly implanted, Mosley was ‘equipped with the necessary knowledge to preserve and diligently pursue’ a medical malpractice claim.”
Action seeking declaratory & injunctive relief as to governance of an organization; Motion to dismiss under MCR 2.504(B)(1) & 2.313(B)(2)(c); General motion practice; MCR 2.119; Supplemental briefing; MCR 2.119(A)(2)(b); Kemerko Clawson, LLC v RXIV, Inc; Striking an untimely response; The trial court’s sanctioning authority; Maldonado v Ford Motor Co; Evidentiary hearing; In re Skotzke Estate; Violations of a stipulated discovery order; Enforcement of the order by dismissing the case with prejudice; Injunctive relief as to the disposition of funds
The court held that the trial court did not err by dismissing plaintiff-Tribe’s complaint with prejudice for failing to comply with a stipulated discovery order. Plaintiff is "an organization whose members own and fly Comanche airplanes.” It is a regional branch of defendant-Society’s membership. Defendant’s board revoked plaintiff’s Tribe Chief’s (nonparty-Stumpf) membership, leaving plaintiff without a Tribe Chief. The board then called for nominees for an election of the Tribe’s governing board to be conducted on its voting platform. Plaintiff sued, seeking to stop the election on the grounds that plaintiff already had a duly elected governing board, including Tribe Chief Stumpf, that defendant had no authority to conduct such an election, and that the election was conducted on the basis of purported bylaws that plaintiff never adopted. Meanwhile, a new Tribe Chief was elected. The trial court eventually conducted a hearing and found that plaintiff’s allegedly late disclosure of bylaws-related discovery, as well as an e-mail from Stumpf’s to defendant’s members, violated the stipulated order. Pursuant to the parties’ stipulation, it entered an order dismissing plaintiff’s complaint with prejudice. On appeal, the court rejected plaintiff’s argument that the trial court erred by considering defendant’s motion to dismiss because it was not brought at least 21 days before the hearing. Because defendant served and filed its motion to dismiss seven days before the scheduled hearing, “it complied with the applicable time requirements.” It also rejected plaintiff’s claim that the trial court abused its discretion by considering defendant’s supplemental brief, noting that although defendant “apparently skirted its duty to obtain permission from the trial court to file its supplemental brief, there was no evidence of surprise tactics, or even dilatory or negligent” conduct, and plaintiff could not show prejudice. As to the trial court’s decision to strike plaintiff’s response as untimely, while considering defendant’s supplemental brief, the court found its response was “clearly untimely because a response must be served and filed at least three days before the” hearing, and plaintiff “did not request any grace in the matter.” In addition, plaintiff failed to show that “a full evidentiary hearing was necessary to resolve credibility contests, . . . or that the outcome would have been different had an evidentiary hearing taken place[.]” The court further held that the trial court did not err by finding plaintiff failed to comply with the terms of the stipulated order, and that the trial court properly enforced it. Finally, absent a current controversy between the parties as to control and possession of plaintiff’s funds, a determination of their rightful ownership would be premature. Affirmed.
Tenant’s claim under MCL 554.139(1)(a) (landlord’s duty to ensure leased premises are fit for their intended use); Allison v AEW Capital Mgmt, LLP; Absence of bathroom grab bars; Distinguishing Hadden v McDermitt Apts, LLC & Martin v Milham Meadows I Ltd P’ship (Unpub); Americans with Disabilities Act (ADA)
Concluding that plaintiff-Paxton did not offer any evidence or law supporting that her apartment bathroom was unfit for its intended purpose due to the absence of grab bars, the court affirmed summary disposition for defendants-senior apartment complex (Oak Street) and management company on her MCL 554.139(1)(a) claim. She fell exiting the shower after becoming light-headed. She asserted that she could have prevented her fall if grab bars had been installed. The court noted that she “expressly indicated in her housing application that she did not require special accessibility features.” In addition, she failed to identify “a standard, law, regulation, or common-law principle supporting that bathrooms must have grab bars in order to qualify as fit for their intended use, even when foreseeably used by elderly apartment dwellers.” The U.S. Department of Housing and Urban Development regulation on which she relied was irrelevant as it required reinforced walls for grab bars and she did not assert “that Oak Street failed to have reinforced walls[.]” The court further noted that the fact Oak Street installed grab bars after her fall supported that her bathroom walls were adequately reinforced. She did not contend or produce evidence “that her bathroom’s design ran afoul of the ADA, . . . any building codes, or any federal regulations, or any Michigan law provisions.” She did not present an expert, or explain “why the bathroom was unfit for use as a bathroom in the absence of grab bars. This deficiency dooms her claim. Unlike the inherently slippery basement stairs at issue in Martin, or stairs coated with ice discussed in Hadden, Paxton’s bathroom was not inherently unusable as a bathroom.”
Children’s best interests; In re White
Holding that the trial court did not clearly err in determining that termination was in the children’s best interests given the history and length of the case, the court affirmed the order terminating respondent-father’s parental rights. It concluded that a preponderance of the evidence showed that he lacked the skills needed to provide for their special needs. One of the children, A, who was three and a half “years old at the time of termination, had been diagnosed with several medical conditions” due to the mother’s (S) substance use during her pregnancy. Respondent did not attend all of A’s medical appointments and, when he did, there were concerns that he “was ‘not engaging with the doctors’ by asking questions about” A’s medical care. The other child, C, was six and a half years old at the time termination and “suffered from trauma-related mental health issues.” C’s therapist testified that C “had attachment issues and required predictability, consistency, and stability. According to the therapist, when respondent failed to attend a therapy session” in 6/20, C was “devastated” and “shut down[.]” In addition, C “reacted negatively when respondent failed to attend scheduled parenting times. Despite this, respondent canceled a visit with the children in the days leading up to termination.” Respondent was also “unable or unwilling to put the children’s needs above his own. The caseworker testified that respondent struggled to comply with the case service plan and that he frequently missed substance screenings and tested positive for illegal substances 21 times during the proceeding.” Overnight, unsupervised visitations were revoked due to concerns about his substance abuse, and he continued his relationship with S for a majority of the case “despite the fact that the relationship was hindering his progress.” The children were doing well in their placement. Although they were likely to “have to be moved from their foster home to a pre-adoptive home” due to termination, the trial court did not clearly err by finding that termination would best serve their interests. Respondent was given many opportunities to show “stability, but he failed to do so during the lengthy proceeding.”
Termination under § 19b(3)(c)(i); Acceptance of a respondent’s admission to the petition’s allegations; Compliance with MCR 3.971(B)(4); Child’s best interests; Effect of a parent-child bond; Guardianship option; Reasonable reunification efforts
The court concluded that the trial court complied with MCR 3.971(B)(4) in accepting respondent-mother’s admission to the petition’s allegations, and that clear and convincing evidence supported termination of both respondents’ parental rights under § (c)(i). Further, the trial court did not clearly err in finding that termination was in the child’s best interests and that the DHHS made reasonable efforts to reunify the child with respondent-father. Thus, the court affirmed the orders terminating their parental rights. As to the mother’s MCR 3.971(B)(4) claim, at the preliminary hearing, the trial court inquired if she “had received an advice of rights form and whether she had reviewed it.” She indicated that she had received it and “it had been read to her. She also indicated that she understood her rights contained in the form.” In relevant part, it stated that “[i]f I am a parent of the child(ren), my plea can later be used as evidence in a proceeding to terminate my parental rights.” The form, signed by the mother, was in the record. It indicated that it “was read to her, that she received a copy of the form, and that she understood her rights.” At the continued preliminary hearing/adjudication hearing, the trial court again confirmed that she had reviewed the form and had signed it. She responded “no” when asked if she had any questions about it “that she needed to discuss with her attorney before she entered a plea.” As to a statutory ground for termination, the record showed that the conditions that led to the father’s “adjudication were criminality, domestic violence, substance abuse, and lack of parenting skills.” He had a long substance abuse history. He tested positive for meth and THC, “including in the days just before he was imprisoned, indicating that substance abuse remained a barrier to reunification.” The child was eight years old at the time of the termination hearing, and the caseworker testified that the father “was not close to rectifying any of the issues that led to the child being removed from his care[.]” The conditions that led to the mother’s adjudication “were mental illness, substance abuse, lack of parenting skills, lack of appropriate housing, and financial instability.” While she complied with some aspects of her treatment plan, she failed to benefit from the offered services. As a result, she “was still unable to parent the child without supervision or provide for the child at the time of termination.”