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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Student-on-student harassment; Title IX of the Education Amendments (20 USC § 1681 et seq.); Davis v. Monroe Cnty. Bd. of Educ.; Kollaritsch v. Michigan State Univ. Bd. of Trs.; Whether plaintiff established that defendant-university’s response to her accusations subjected her to further actionable sexual harassment in the “post-actual-knowledge period”; Stiles ex rel. D.S. v. Grainger Cnty.; “Deliberate indifference”; Doe v. Baum; Non-compliance with the university’s own administrative policies; Gebser v. Lago Vista Indep. Sch. Dist.
The court affirmed summary judgment for defendant-University of Kentucky (UK) in this Title IX case because plaintiff-Jane Doe did not state a Title IX deliberate indifference claim under Davis given that she did not show “any further actionable sexual harassment after UK took remedial action in the post-actual-knowledge period[.]” Doe alleged that she was sexually assaulted two different times by two different students. She sued the UK under Title IX, alleging that its “response to student-on-student harassment was clearly unreasonable because it caused a hostile educational environment and vulnerability to further harassment.” She also alleged that the school “demonstrated deliberate indifference by failing to follow its own policies throughout the investigation and hearing processes.” Under Title IX, a plaintiff must plead both “severe, pervasive, and objectively offensive” sexual harassment and a “deliberate-indifference intentional tort[.]” The school’s response is unreasonable where it “‘bring[s] about or fail[s] to protect against the further harassment.’” The court held that Doe’s rape allegations in the pre-actual-knowledge period were insufficient to show “actionable sexual harassment. The relevant inquiry is whether UK’s response to Jane Doe’s accusations subjected her to further actionable sexual harassment.” She failed to plead “any incident of actionable harassment in the post-actual-knowledge period.” The court held that her allegations that the accused students “stared at her,” followed her home, and sat next to her at the library did not constitute allegations of sexual harassment, and even if they could be considered sexually harassing, “Jane Doe failed to show that UK’s response was clearly unreasonable and that it caused the further harassment.” The court cited UK’s prompt investigation of her complaints, and found no evidence that UK took “insufficient action[.]” It rejected Doe’s claims that UK’s alleged non-compliance with its own administrative policies constituted deliberate indifference. “First, and most importantly,” she did not allege that this failure “caused her further harassment.” Second, courts should not second-guess school administrators’ disciplinary decisions. Third, in light of case precedent, the university hearing officer “reasonably determined that due process required the limited participation of” the attorneys for one of the accused students.
42 USC § 1983; Deliberate indifference to bodily integrity; U.S. Const. amend. XIV; Guertin v. Michigan; Boler v. Earley; Qualified immunity; Sutton v. Metropolitan Gov’t of Nashville & Davidson Cnty.; Ashcroft v. Al-Kidd; Whether plaintiffs sufficiently alleged that the individual defendants were deliberately indifferent to the fact that Flint residents were using contaminated water; County of Sacramento v. Lewis; Claybrook v. Birchwell; Range v. Douglas; Wesley v. Campbell; City official defendants; Butz v. Economou; Michigan Department of Environmental Quality (MDEQ) official defendants; Williams v. CitiMortgage, Inc. (Unpub. 6th Cir.); Claims against the former governor & state treasurer in their individual capacities; Lopez v. Foerster (Unpub. 6th Cir.); Brown v. Snyder (In re Flint Water Cases) (ED MI); Sovereign immunity; U.S. Const. amend XI; Mingus v. Butler; S&M Brands, Inc. v. Cooper; Monell v. Department of Soc. Servs.; Claims against the city; Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.; Claims against the new governor in her official capacity; Fed.R.Civ.P 25(d); Ex parte Young; Milliken v. Bradley; Lewis v. Clarke
[This appeal was from the ED-MI.] The court affirmed the district court’s rulings that defendants-City of Flint, its officials, and State of Michigan officials and employees were not entitled to qualified or sovereign immunity where plaintiffs-Flint residents adequately alleged “deliberate indifference” related to the Flint water crisis. The claim at issue in this appeal was plaintiffs’ substantive due process claim for deprivation of bodily integrity. The appeal concerned the district court’s denial of defendants’ motions to dismiss based on qualified and absolute immunity. The court affirmed the denial of qualified immunity as to all defendants, except former Treasurer Dillon, remanding as to whether he should be dismissed in light of Brown. It first found that there was “a ‘predictable harm set into motion by alleged decisions that ‘took place over a series of days, weeks, months, and years.’” The factors of whether “there was an involuntary relationship, and whether there was a legitimate government purpose” weighed against defendants here as they did in Guertin. Likewise defendants’ alleged actions here were “‘egregious.’” At this stage of the litigation, the court was required to “credit Plaintiffs’ allegation that the Defendant-Appellant City Officials had independent knowledge that the Flint River water was causing a public health crisis—regardless of what the MDEQ or the engineering firms reported.” It concluded that plaintiffs sufficiently alleged deliberate indifference on the part of the City of Flint’s Emergency Manager where they asserted defendant-Earley “forced the switch to Flint River water” when he knew that the water was contaminated and that the treatment plant was not prepared to treat it, and that he “directed City officials to lie to the public . . . .” The court also held that plaintiffs sufficiently alleged deliberate indifference by other City official defendants. Next, it accepted plaintiffs’ allegations that defendants-MDEQ officials and employees “rushed the switch to the Flint River knowing it would deliver contaminated water and that the decision-makers cared only about cost, not water quality. Their purported defense also does not explain why they failed to treat the water after they came under the EPA’s scrutiny, or why they lied to the EPA.” The court held that plaintiffs plausibly alleged a constitutional violation as to former Governor Snyder, noting that he had “himself coordinated the switch” to the Flint River and “evidently was unmoved” about the warnings he received from his staff and legal counsel. It held that the City of Flint was not entitled to sovereign immunity under Guertin. As to Governor Whitmer, who was automatically substituted as a party under Rule 25(d), plaintiffs could properly seek prospective injunctive relief to remediate ongoing harms.
Malicious prosecution; 42 USC § 1983; Sykes v. Anderson; Probable cause for the initial arrest; Wesley v. Campbell; Gerstein v. Pugh; Greene v. Reeves; Gardenhire v. Schubert; Ahlers v. Schebil; Fridley v. Horrighs; Yancey v. Carroll Cnty.; United States v. Hinojosa; United States v. Gillman (Unpub. 6th Cir.); Probable cause for the continued detention; Spurlock v. Satterfield; Gregory v. City of Louisville; Mills v. Barnard; Supervisor liability; S.L. ex rel. K.L. v. Pierce Twp. Bd. of Trs.; Bass v. Robinson; Shehee v. Luttrell; Hays v. Jefferson Cnty.; Municipal liability; Thomas v. City of Chattanooga; Ellis v. Cleveland Mun. Sch. Dist.; City of St. Louis v. Praprotnik; Jorg v. City of Cincinnati (Unpub. 6th Cir.); Whether a dismissal without prejudice constitutes a favorable termination for the purposes of a malicious prosecution action; Ohnemus v. Thompson (Unpub. 6th Cir.); Qualified immunity; Flint ex rel. Flint v. Kentucky Dep’t of Corr.; Harlow v. Fitzgerald; Johnson v. Moseley; Poe v. Haydon; Silberstein v. City of Dayton; Ashcroft v. al-Kidd; Thacker v. City of Columbus; Webb v. United States
The court reversed summary judgment for one of the defendants (Deputy Murray) on plaintiff-Jones’ malicious prosecution claim where genuine issues of fact remained “as to whether probable cause for Jones’ continued detention dissolved once Murray received the results of” a forensic exam of his cell phone, computer, and tablet. Jones sued Murray and defendants-County and Sheriff Perdue for malicious prosecution arising from an arrest for the suspected possession and sharing of child pornography. The district court granted all defendants summary judgment. The court first determined that Murray had probable cause to obtain a search warrant for Jones’ home where “Jones owned the router that [police] records indicated was used to upload child pornography and that the router was located in Jones’ apartment. . . . . If the nexus between an IP address and a suspect’s residence connecting him to the upload or transfer of child pornography justifies a search of that residence, then, depending upon the nature and existence of additional information turned up by the search, it might also justify an arrest of the residence’s occupant.” However, the record was clear that Murray knew by 1/11/14 “that there was no evidence of child pornography on Jones’ devices.” The court held that there was “a genuine dispute as to whether Murray falsely maintained probable cause for Jones’ continued detention by not informing the prosecutors that there was no forensic evidence connecting Jones to the illegal video.” Thus, the court reversed summary judgment for Murray. As for supervisor and municipal liability, there was no genuine dispute of material fact that Perdue, “through municipal policy, custom or official action, acted unconstitutionally.” Jones failed to set forth any facts indicating that Perdue “authorized or participated in Murray’s arguably unlawful conduct. As in Gregory,” at most the record indicated that Perdue “failed to review Murray’s work, not that Perdue lacked ‘a reasonable system’ to review subordinates work generally.” Jones likewise did not show a genuine dispute as to any material fact as to the County’s liability. The court also held that Murray was not entitled to qualified immunity where there were fact questions whether he violated Jones’ Fourth Amendment right to be free from malicious prosecution and the alleged behavior was “similar enough to the defendant officers and officials in cases like Gregory and Mills for Murray to ‘have known that his conduct violated [Jones’] right[.]’” Reversed as to Murray, affirmed as to the other defendants, and remanded.
Motion to correct an invalid sentence; Constitutionality of the subsequent addition of lifetime electronic monitoring to defendant’s judgment of sentence (JOS); MCL 750.520n(1); People v. Cole; People v. Jones; Whether this addition violated the Ex Post Facto Clauses of the U.S. & Michigan Constitutions; Const. 1963, art. 1, § 10; People v. Wiley
The court held that the addition of lifetime electronic monitoring to defendant’s original sentence was unconstitutional. Thus, it vacated the second JOS and remanded for reinstatement of the original JOS. He pled guilty to CSC I and II. At sentencing, the trial court informed him that at least one of his offenses would require lifetime electronic monitoring. However, it did not check the box for lifetime electronic monitoring. It subsequently amended the JOS, but only added a no-contact order that was mistakenly left off the original JOS. The box for lifetime electronic monitoring was again left unchecked. He then filed a motion for relief from judgment, asking the trial court to resentence him on the basis that his sentence was invalid because it failed to include lifetime electronic monitoring. The trial court agreed that the sentence was invalid, so it vacated his previous sentence and resentenced him to 9 to 40 years for the CSC I conviction and 5 to 15 years for the CSC II conviction, with credit for 1,966 days served, and the addition of lifetime electronic monitoring. The DOC notified the trial court that there was a possible issue with the sentence imposed. The trial court then sent defendant a letter explaining that although the imposition of lifetime electronic monitoring was an ex post facto violation because the offenses were committed prior to the amendment of the MCL 750.520n, it could not sua sponte correct the invalid sentence. It thus directed him to file a motion to correct an invalid sentence. On appeal, the court agreed with defendant, and the prosecution conceded, that the imposition of lifetime electronic monitoring violated the Ex Post Facto Clauses of the U.S. and Michigan Constitutions. “[A]dding lifetime electronic monitoring was an increase in [his] punishment for offenses that occurred prior to” the statute’s effective date, so this error prejudiced defendant. “And, although [he] invited this error through his motion for resentencing when he complained that his sentence was invalid because it did not include lifetime electronic monitoring,” the court found it was nevertheless within its “discretion to vacate his constitutionally deficient sentence.” Vacated and remanded for reinstatement of the original JOS.
Reformation of a spousal support settlement agreement; A settlement agreement as a contract; Walbridge Aldinger Co. v. Walcon Corp.; Mutual mistake; Casey v. Auto Owners Ins. Co.; Distinguishing Wolf v. Mahar; The fugitive disentitlement doctrine; Friend v. Friend; Abandoning an issue by failing to cite supporting authority; Hooker v. Moore
Concluding that Wolf was distinguishable and that the trial court clearly erred in finding a mutual mistake existed, the court reversed the order reforming the parties' spousal support settlement agreement (SA). Defendant-ex-husband asserted that he was not mistaken as to the SA’s terms – if there was any mistake, it was unilateral on the part of plaintiff-ex-wife and could not form the basis for reformation. The court agreed, finding that the trial court erred in relying on Wolf. The parties there “did not know about a state policy that effectively prevented them from achieving a stated purpose of the settlement.” This case was distinguishable because “unlike Wolf, there was no stipulation between plaintiff and defendant that a mutual mistake occurred. Essentially, plaintiff realized an unintended, and for her an undesirable, consequence of the settlement after the terms were placed on the record, i.e., drawing social security benefits at the earliest possible age would significantly reduce her share of defendant’s benefits.” He argued that the proposed order represented the agreement that was “reached, at least as he understood it.” Thus, plaintiff only showed a unilateral mistake. Second, the record did “not support the trial court’s finding that the intent of the settlement was to assure that plaintiff would not receive less than $750 per month until she could apply for full Social Security benefits. Defendant” denied this, and nothing in the record supported plaintiff’s assertion. During a hearing, the trial court asked them if “they understood that the settlement terms placed on the record were ‘intended to be a final settlement.’ Both parties responded affirmatively. Unlike Wolf, the mistake in this case did not defeat the parties’ shared intent in reaching the” SA. The court held that the trial court erred in determining that both were mistaken as there was no evidence defendant was mistaken. Plaintiff argued that the order should be affirmed on the alternate grounds of duress or severe stress. Because the court was “not suited to make factual determinations as required by” her claim, it remanded for the trial court to address whether the settlement should be set aside on these grounds. Finally, she was not entitled to relief on the basis of the fugitive disentitlement doctrine (which Michigan has not adopted), given that defendant was not a fugitive.
Sentencing; Scoring of OV 19; MCL 777.49; Whether defendant used force or threatened to use force when he interfered with the administration of justice; MCL 777.49(b); Reasonableness & proportionality; Principle that the court must affirm a within-guidelines sentence; MCL 769.34(10); Resentencing; People v. Sours; Mootness; People v. Richmond; Scope of appeal; MCR 7.205(E)(4)
The court held that defendant was not entitled to resentencing again. He pled guilty to 3 crimes in his 2017 cases, and nolo contendere to 11 crimes in his 2018 case. The trial court sentenced him as a fourth-offense habitual offender to terms of imprisonment for all of the crimes. On appeal, he argued that he was entitled to resentencing in the 2018 case because the trial court erred by scoring 15 points for OV 19. The court previously remanded for resentencing. On remand, the trial court found it should have assessed 10 points for OV 19 instead of 15 points, and then resentenced him to the same terms as his original sentences. In a supplemental brief, he claimed his sentences were not proportionate. The court held that he was properly resentenced and because he “received the relief he requested on appeal, the issue is now moot and [the court] need not consider whether OV 19 was properly scored.” Further, any other issue in his supplemental brief was not properly before the court. Nonetheless, it concluded that these issues were meritless. Affirmed.
Sentencing; Scoring of OVs 13 & 19; Mootness; People v. Jones; People v. Cathey; People v. Tombs; People v. Rutherford; People v. Richmond; Scope of appeals; People v. Kincade; People v. Gauntlett
Holding that defendant’s sentencing issue was moot and that his right of confrontation issue was not reviewable, the court affirmed his convictions and sentences. He was convicted of child sexually abusive activity (CSAA), using a computer to commit a crime (UCCC), and two counts of CSC II for conduct involving his daughter. In a prior appeal, the court affirmed, but remanded. The Supreme Court vacated the portion of the opinion as to his right of confrontation and remanded for consideration of this issue. On remand, the court vacated both CSC II convictions, affirmed his CSAA and UCCC convictions, and remanded for resentencing. The trial court on remand resentenced defendant to 65 months to 20 years for both CSAA and UCCC. In the present appeal, the court found that his argument that the trial court erred in scoring 25 points for OV 13 and 10 points for OV 19 was moot as he already served his minimum sentence. He also claimed that it should vacate his CSAA and UCCC convictions because his right of confrontation was violated when the trial court improperly permitted the victim’s preliminary exam testimony to be admitted at trial, and that, had he had the opportunity to cross-examine her, the jury may not have convicted him of these charges. However, the court noted his arguments were “outside the scope of the remand, and thus not reviewable . . . .” The most recent opinion in this case “limited the remand to resentencing, and thus, this appeal is limited to the resentencing proceeding.”
Right to a properly instructed jury; People v. Traver; People v. Kowalski; M Crim JI 11.34b; Plain error review; People v. Carines; Presumption juries follow their instructions; People v. Mette; Credibility determinations; People v. Unger; Sentencing; Scoring of PRV 7, OV 13, & OV 19; MCL 777.57(1)(a) & (b); MCL 777.57(2)(c); MCL 777.43(1)(d); Principle that crimes against public safety (MCL 777.16m) such as defendant’s carrying a concealed weapon (CCW) & felon in possession (FIP) convictions could not be considered in scoring OV 13; Consideration of his felony-firearm conviction; People v. Bonilla-Machado; Principle that conspiracy does not constitute a crime against a person or property; People v. Goodman; MCL 777.49(c); People v. Hershey; People v. Smith; People v. Eriksen; People v. Sours; Whether defendant was entitled to resentencing; People v. Francisco
Finding no error in the jury instructions and concluding that they were not confusing, the court affirmed defendant’s CCW, FIP, and felony-firearm convictions. But it held that remand for resentencing was required due to errors in scoring PRV 7 and OV 13. He argued that he “was denied his due process right to a properly instructed jury because” the trial court’s jury instructions failed to “make clear the differences between the elements of CCW,” FIP, and felony-firearm. However, the record showed that its oral instructions for these crimes comported with the written instructions given, “as well as the applicable statutes,” and the case law interpreting the statutes. The trial court’s oral instructions as to possession as an element of the felony-firearm charge also comported with its written instructions, M Crim JI 11.34b, and case law “explaining possession can be actual or constructive. Most importantly, however, the trial court explained that the CCW charge, the [FIP] charge, and the felony-firearm charge were separate and distinct charges, that each crime must be considered ‘separately in light of all the evidence in the case.’ A separate verdict form was prepared for each charge.” As to defendant’s sentencing challenges, while there was no error in scoring 10 points for OV 19, the prosecution conceded that the trial court erred in scoring 20 points for PRV 7. Given that the trial court could not consider his felony-firearm conviction in scoring this PRV, only his CCW and FIP convictions “qualified as enumerated felonies to be considered by the trial court.” Because his CCW conviction was concurrent to his FIP conviction, the trial court should only have scored 10 points for PRV 7. This lowered his PRV score to 87 points. While this by itself did not entitle him to resentencing, subtracting the 10 points erroneously scored for OV 13 did. As crimes against public safety, his CCW and FIP convictions could not be considered in scoring OV 13, and his felony-firearm conviction could also not be considered. As to his prior convictions within the past five years, the trial court erred in considering his conspiracy to commit larceny in building conviction. Correctly scoring OV 13 at 0 reduced his guidelines range.
Motion to vacate a judgment of divorce; Whether a full evidentiary hearing was required; MCR 2.517(A)(1); Timing of the motion; MCR 2.612(C)(1) & (2); Proposed judgment of divorce under the seven-day rule; MCR 2.602(B)(3); Damages for pursuing a vexatious appeal; MCR 7.216(C)
The court held that defendant-ex-husband was not entitled to relief from judgment, and that plaintiff-ex-wife was entitled to damages for his filing of this vexatious appeal. The trial court denied defendant’s motion for relief from the parties’ judgment of divorce, which was based on his claim that his objections to the original judgment of divorce were not properly resolved. On appeal, the court rejected his argument that the trial court erred by denying his motion. First, “MCR 2.517(A)(1) does not require a full evidentiary hearing on objections to the entry of judgment.” Because the matter was settled, “the trial court only needed to take the proofs necessary for the pro confesso hearing, which it did.” As for the objections, it “heard the arguments of the parties and took the matter under advisement, stating that it was going to review the transcript of the hearing at which the settlement was placed on the record. This would seem to be all that is typically necessary—determining whether the judgment conforms to the parties’ agreement, as reflected on the record or in a written agreement.” In addition, “defendant under oath stated that he agreed with the settlement.” Further, he failed to “point to anything in the judgment that was entered that is different from the agreement that was put on the record.” Moreover, not only was "there no basis for a relief from judgment, even if there were a basis to grant relief and we were incorrect in our analysis of the first three points, the time has long since passed for the court to act upon it.” Finally, the court agreed that plaintiff was entitled to damages based on the filing of a vexatious appeal. Affirmed, but remanded.
Personal injury protection (PIP) benefits; Fraud; Bahri v. IDS Prop. Cas. Ins. Co.; An affidavit “blatantly” contradicted by video evidence; Scott v. Harris; Consideration of persuasive federal case precedent on a federal rule similar to an MCR provision; Nowacki v. Department of Corr.; Principle that enlargement of the record on appeal is not permitted; Innovative Adult Foster Care, Inc. v. Ragin
Holding that the trial court did not err in finding that there was no genuine issue of material fact that plaintiff-Renald Powell and intervening plaintiff-Mona Powell “perpetrated fraud against” defendant-insurer to obtain PIP benefits, the court affirmed the order granting defendant summary disposition on reconsideration. The trial court initially denied defendant’s summary disposition motion, “but on reconsideration held that Renald was a participant in Mona’s fraud to recover benefits under the policy,” and thus that defendant’s obligation to indemnify him was limited to “the statutory minimum requirement of $20,000 per person” under MCL 257.520 and 500.3009. Mona submitted claims to defendant for PIP “benefits, including medical benefits, replacement services, and 24-hour attendant care provided by” among others H and F. “The trial court found that video surveillance evidence submitted by defendant showed that Mona’s claims for attendant care benefits were fraudulent because the evidence showed that care providers did not arrive at Mona’s house on several days on which she claimed they provided attendant care. Mona and Renald” asserted that there was a genuine issue of material fact because H “submitted an affidavit in which she explained why she was not seen on the video[.]” However, the trial court found that H’s “affidavit did not establish a question of fact because it was ‘blatantly’ contradicted by the video evidence.” In Scott, the U.S. Supreme Court “held ‘[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a’” summary judgment motion. Agreeing with this analysis, the court adopted it. It concluded that the video evidence here “blatantly contradicts the attendant care records Mona and Renald profess are accurate. The videos clearly show the front of the Powell house, the driveway, and the yard facing Outer Drive. . . . the only way for an individual to access the Powell house without being visible on the surveillance videos would have been to climb over hedges and sneak through” the neighbors’ yard. H averred that she entered and exited the home on the Outer Drive side. No such activity was seen on the videos, which also did not show F’s supposedly frequent visits to the house.
Termination under §§ 19b(a)(ii), (c)(i), (g), & (j); Request to overrule In re Marin; MCL 712A.19b(4); In re Medina; Special panel request; MCL 7.215(J)(3); The doctrine of stare decisis; Catalina Mktg. Sales Corp. v. Department of Treasury; Constitutional rights to the care, custody, & control of the child; The Child Custody Act; In re Sanders; In re Trejo Minors; Plain error review; In re TK; In re VanDalen; Interpretation of MCL 712A.l9b(1) in Marin; U.S. Const. amend. XIV; Const. 1963, art. 1, § 2; People v. Pitts; Child’s best interests; Failure to obtain the child’s view of the permanency plan; In re White; In re Olive/Metts Minors; In re Moss Minors; MCL 712A.19a(3); Failure to consider less restrictive alternatives to termination; Procedural defects; In re Utrera
The court held that respondent-mother’s claim that the trial court lacked “authority to terminate her rights under MCL 712A.19b(1) because the child was placed with her father and not in foster care, and because termination was not sought at the initial dispositional hearing,” had no merit. Further, her constitutional rights with respect to the child were not violated, and there was no plain error. Finally, any procedural defect in the trial court’s failure to obtain the child’s views on the permanency plan did not require setting aside the termination order because the trial court did not clearly err by finding that termination was in the child’s best interests. Respondent argued, among other things, that the trial court did not have authority to terminate her rights “because the plain language of MCL 712A.19b(1) bars a termination hearing when the child is living with a parent.” She argued that in Marin, the court “chose to ignore the plain language of the statute and affirmed the termination of the father’s parental rights even though the child was neither in foster care nor in the custody of a guardian and the termination was not filed at the initial dispositional hearing.” Respondent urged the court to convene a special panel under MCL 7.215(J)(3) to overrule Marin and restore the plain statutory language. The court addressed a similar argument in Medina, and concluded that the reasoning in Marin remained sound. The panel in Medina addressed the identical issue raised by respondent here and “found the reasoning of Marin legally sound in a published opinion issued after” 11/1/90. Thus, the court was bound to follow Medina. Respondent, citing MCL 712A.19b(4), tried to draw a distinction between the facts of Medina and the facts of this case because in Medina, “the DHHS sought termination at the initial dispositional hearing, but here the DHHS filed a supplemental petition to terminate respondent’s parental rights.” While that was true, it was “a distinction without consequence.” In this case, “the initial goal was reunification, not termination, and, therefore, the MCL 712A.19b(4) exception respondent references” was irrelevant here. Affirmed.
Termination under § 19b(3)(j); In re Utrera; In re Hudson; Review of a child’s best interests & the decision to terminate parental rights for clear error; MCR 3.977(K); In re Trejo Minors; In re Gonzales/Martinez; In re Olive/Metts Minors; In re Moss Minors; Jurisdiction; MCL 712A.2(b)(2); In re BZ; In re SLH; In re Ferranti; In re MU
Holding that § (j) existed, termination of respondent-father’s parental rights was in the child’s (C) best interests, and the trial court did not clearly err in exercising jurisdiction under MCL 712A.2(b)(2), the court affirmed. Respondent argued that the referee erred because no evidence was presented that C suffered harm or trauma, or that respondent acted inappropriately toward C. “However, having heard the testimony and viewed the DVD of the forensic interview, the referee had ample grounds for its finding that respondent sexually assaulted” another child while caring for C. “Even if respondent did not pose a threat of physical harm to [C], there was clearly a threat of emotional or psychological harm.” Thus, the referee did not clearly err in finding that there was a reasonable likelihood that C would be at a risk of harm if returned to respondent’s care.
Termination under § 19b(3)(c)(i); In re Moss Minors; Children’s best interests; In re Olive/Metts Minors; In re Laster; In re White; Reasonable reunification efforts; In re Mason; In re Miller; In re Hicks/Brown; In re Frey
Holding that § (c)(i) existed, termination of respondent-father’s parental rights was in the children’s best interests, and the DHHS made reasonable efforts to reunify him with them, the court affirmed. On 5/15/18, the order of disposition was entered. Thus, more than 182 days had passed when the trial court terminated his parental rights on 10/17/19. The conditions that led to the adjudication included his “lack of housing and an inability to obtain housing, as well as his failure to provide the children’s grandmother with means to care for his children when he left them with her.” The record supported the trial court’s finding that he “had failed to rectify his lack of housing or inability to provide for the children, and there was no reasonable expectation that he would be able to rectify the conditions in a reasonable time.” At the time his rights were terminated, he “remained homeless and did not avail himself of the resources provided to attempt to secure housing.” Respondent contended that the trial court failed to consider that he “would have received over $1,300 a month from the children’s survivor benefits and over $400 a month in food assistance. He submitted that those resources, coupled with his social security disability benefits and his fiancé’s income, would have allowed him to obtain housing and provide for” his children. The trial court correctly noted that his “appeal for social security disability benefits had been denied, and there was no evidence to support that respondent would have an ability to obtain housing in a reasonable time.” Thus, it “did not err in finding that the conditions that led to the adjudication continued at the time of termination.”
Effect of the child turning 18 years old before entry of the termination order; The Age of Majority Act (MCL 722.51 et seq.); RPF Oil Co. v. Genesee Cnty.; MCR 3.977(I)(1) & (3); Mootness; In re Smith; People v. Richmond; Gleason v. Kincaid; Principle that courts speak through their written orders & judgments not through oral rulings; In re KMN; Circumstances where an oral ruling may be deemed to have the same force & effect as a written order; Arbor Farms, LLC v. GeoStar Corp.; People v. Vincent
The court held that the issue of whether respondent-father’s parental rights should be terminated was moot when the trial court entered the termination order three weeks after the best interests hearing because the child (T) turned 18 shortly after the hearing. Thus, the court vacated the termination order. When the DHHS filed its petition requesting that the trial court exercise jurisdiction over T and terminate respondent’s parental rights, T was 17 years old. After a hearing, the trial court found that T “came within its jurisdiction and further found that statutory grounds existed to terminate respondent’s parental rights” under §§ (b)(i), (g), (j), and (k)(ii). It later conducted the best interests hearing, and ruled from the bench that it intended to terminate respondent’s parental rights. T turned 18 before the trial court entered its written termination order. The court noted that pursuant to the Age of Majority Act, “in Michigan, all persons at least 18 years old are adults of legal age for all purposes whatsoever.” Thus, while under MCL 712A.2a(1) the trial court continued to have jurisdiction over T at the time it entered the order, “the issue upon which it was ruling, being whether to terminate respondent’s parental rights, had become moot.” On the date that it entered the order terminating his parental rights to T, “those rights had already ceased to exist by virtue of” T attaining the age of 18. Put another way, while its jurisdiction over T “may have continued for 2 years beyond her 18th birthday, respondent’s parental rights did not. Instead, they terminated” when T turned 18, making “it impossible for the trial court to issue an order terminating those (nonexistent) rights.” The court noted the general rule that courts “speak through written orders and judgments, not through oral rulings.” While there are some circumstances where an oral ruling may be deemed to have the force and effect of a written order, “this case does not present those circumstances.”
Termination under §§ 19b(3)(c)(i), (g), & (j); In re Keillor; In re Williams; In re White; In re Ellis; Children’s best interests; In re Medina; In re Moss Minors; Hearsay; In re DMK; MCR 3.977(F)(1); MRE 801(c); In re Utrera; MRE 802; Ineffective assistance of counsel; Failure to raise a futile challenge to testimony; People v. Ericksen
The court held that §§ (c)(i), (g), and (j) existed and that termination of respondent-mother’s parental rights was in the children’s best interests. Also, because the hearsay statements were post-adjudication as to the allegations of the initial petition, the rules of evidence did not apply. As to § (c)(i), the children were removed from the mother’s care three times over the course of three years as a result of her neglect. She “lacked stable income, neglected the children’s medical and hygiene needs, failed to consistently ensure that the children attended school, failed to provide food and clothing for the children, and failed to supervise them.” Each time they were removed from her care, she “at least partially complied with the parent agency treatment plan. Each time she regained custody” of them, she “stopped participating in the services and failed to provide the children with proper care and supervision.” The result was that “respondent failed to accomplish any meaningful change in the conditions that led the trial court to assume jurisdiction of her children.” In sum, the court found that “more than 182 days had elapsed since the issuance of the initial disposition order and the conditions that led the trial court to assume jurisdiction of the children persisted.” Thus, it held that the trial court did not clearly err in finding that termination of the mother’s parental rights was proper under § (c)(i). This same evidence supported the trial court’s finding that termination of her parental rights was also warranted under §§ (g) and (j). Affirmed.