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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Action for a zoning ordinance violation; Whether an apartment on the property at issue was protected by the Right to Farm Act (RTFA) (MCL 286.471 et seq.); Northville Twp. v. Coyne; The RTFA as an affirmative defense; Lima Twp. v. Bateson; “Farm” defined; MCL 286.472(a); “Farm operation” defined; MCL 286.472(b); Defining “necessary” as used in the RTFA; Equitable estoppel; Howard Twp. Bd. of Trs. v. Waldo; Laches; Lyons Charter Twp. v. Petty
The court concluded that MCL 286.472(b) (not MCL 286.472(a)) was implicated here, and held that the use of the apartment as a second dwelling on the ranch property was not necessary in connection with the boarding of horses. Further, equitable estoppel and laches did not apply because defendants failed to factually support these affirmative defenses. Thus, the court affirmed summary disposition for plaintiff-township in this action seeking injunctive relief for an ordinance violation. The defendants-Kolenda are the principal owners of defendant-Sandalwood Ranch. “The property contains a house in which the Kolendas reside, and a building that contains a barn with 26 stalls and a riding arena.” The apartment was on a second floor of that building. Defendants argued that it was part of the arena building and that any use of the building fell within the definition of farm in MCL 286.472(a). The court disagreed. While the building itself was protected under this provision, that did not “mean that every activity within the building is necessarily shielded from local regulation.” The correct inquiry was whether the use of the apartment in connection with the horse-boarding business was a protected “farm operation” under MCL 286.472(b). The court noted the absence of any published case interpreting “the word ‘necessary’ as used in the RTFA.” It found that the evidentiary hearing testimony showed that “the use of the apartment as a second dwelling by a tenant, who can perform the 10 p.m. check on the horses, is not necessary to defendants’ horse-boarding business.” While it did not accept “plaintiff’s contention that ‘necessary’ should be read to mean ‘absolutely necessary,’” it was clear here that “the rental of the apartment was intended to induce a third party to perform work that defendants had performed in the past and for which they could hire workers without providing a rental apartment. The fact that having a person other than themselves perform the night check was of assistance in providing the Kolendas with a desirable degree of flexibility and time off does not mean that such a tenant is ‘necessary’ for farm operations under the RTFA.”
Friend of the Court (FOC) recommendation for modification of child support; Fisher v. Fisher; MCL 552.17; Kosch v. Kosch; Burba v. Burba; Imputing income to a parent; Ghidotti v. Barber; Whether plaintiff essentially waived or forfeited her right to challenge the imputed income; People v. Carines; Attorney fees; Reed v. Reed; MCR 3.206(C)(1) & (2); Enforcing an unambiguous contract provision; Wilkie v. Auto-Owners Ins. Co.; Change of school districts as an important educational decision; Pierron v. Pierron; Factors for determining the reasonableness of an attorney fee award; Smith v. Khouri; Michigan Child Support Formula (MCSF)
The court affirmed as to the trial court’s adoption of the referee’s finding that plaintiff-mother violated the divorce judgment, vacated as to the amount of attorney fees awarded to defendant-father, reversed as to the trial court’s adoption of the FOC-recommended child support order, and remanded. Plaintiff argued that the only issues before the referee related to her motion to change the children’s school district and defendant’s motion as to plaintiff’s violation of the divorce judgment and thus, the referee erred by addressing the child support issue. However, the record showed that virtually all of the orders leading up to the “hearing indicated that the issue of child support modification (which was initially raised by plaintiff’s motion) was to be resolved at that hearing; further, at the hearing, counsel for both parties and the referee clearly expected that the issue of child support would be resolved.” Plaintiff’s counsel questioned defendant about his income and stated that his “income was ‘relevant to the support that he’s paying.’ Plaintiff’s counsel did not object when the referee, after the settlement agreement was placed on the record, moved to the taking of testimony” about child support. The court found no basis for concluding that the referee improperly considered the issue of child support. However, neither the FOC recommendation nor the trial court’s “de novo opinion addressed whether a change of circumstances existed” warranting a modification of support. Also, “while imputation of income to a person receiving means-tested benefits is a deviation from the MCSF, neither the recommendation nor the de novo opinion made any of the specific findings necessary for a deviation from the MCSF; rather, the referee apparently based his decision on his observations of plaintiff in a courtroom for several hours; during which time plaintiff testified that she received SSI benefits, had been deemed unable to work by a physician, and was then ‘in a lot of pain.’” In adopting the recommendation, “the trial court failed to follow the necessary procedures it was required to follow when imputing income to plaintiff, and failed to explain the resulting deviation from the MCSF in any way.” Remand was required as to the attorney fee award for consideration of the Smith factors.
Sanctions; Costs & attorney fees based on a frivolous action; MCR 2.625(A)(2); MCL 600.2591(1); 1300 LaFayette East Coop., Inc. v. Savoy; In re Costs & Attorney Fees; Amount of costs & fees; MCL 600.2591(2); Reasonableness of costs & fees; Pirgu v. United Services Auto. Ass’n; Smith v. Khouri; Whether an action is frivolous; MCL 600.2591(3)(a); MCL 600.2591(3)(a)(ii) & (iii); Davids v. Davis; Ladd v. Motor City Plastics Co.; Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; Breach of constructive trust; In re Filibeck Estate; CPAN v. MCCA; Conversion; Tillman v. Great Lakes Truck Ctr.
The court held that the trial court did not err by granting defendant attorney fees and costs based on plaintiff’s frivolous action, but did abuse its discretion by failing to follow the proper framework for determining the reasonableness of the costs and fees. Thus, it affirmed the grant of costs and attorney fees, but vacated the amount awarded and remanded “for either an evidentiary hearing to determine reasonable attorney fees or for the trial court to articulate on the record how it determined the reasonableness of the fees awarded.” Plaintiff sued defendant for breach of contract, breach of constructive trust, and conversion. The trial court found plaintiff’s action frivolous and awarded defendant costs and attorney fees. On appeal, the court rejected plaintiff’s argument that the action was not frivolous. First, it noted that “because plaintiff failed to fulfill all of his obligations under the contract, his claim that it was defendant who breached the agreement . . . lacked a reasonable factual basis and was devoid of arguable legal merit.” Next, it found that “plaintiff’s breach-of-constructive-trust claim lacked factual and legal support” when he filed it. Finally, it held that “plaintiff had no basis to believe that the facts underlying his conversion claim were true . . . .” However, the court agreed with plaintiff that the trial court “was required to determine reasonable attorney fees . . . but wholly failed to engage in this mandatory analysis.”
Contractual waiver of the right to a jury trial; Mink v. Masters; MCR 2.509; Enforcing unambiguous contracts as written; Rory v. Continental Ins. Co.; Nexteer Auto Corp. v. Mando Am. Corp.; Claims for violation of the Michigan Builder’s Trust Fund Act (MBTFA) (MCL 570.151 et seq.); MCL 570.152 & 153; Livonia Bldg. Materials Co. v. Harrison Constr. Co.
The court held that the subcontracts written by defendant-Pro Services and signed by plaintiff-Egan unambiguously waived their rights to a jury trial. Thus, the trial court erred in refusing to enforce that provision. However, because genuine issues of fact existed as to whether Pro Services and defendant-VandeMaele (its CEO) violated the MBTFA, the trial court correctly denied Egan’s motion for JNOV as to VandeMaele’s liability. While Pro Services contended that VandeMaele’s presence in the case allowed “the trial court to exercise its discretion and order the entire case submitted to” a jury, the court concluded that no “case law, court rule, or other precedent supports that argument.” It found Mink distinguishable, noting that there “was no contractual jury trial waiver involved in Mink.” Pro Services and VandeMaele entered the action “on very different footings. VandeMaele was never bound by the contractual jury trial waiver, at least according to Egan. Had Egan only sued VandeMaele, the contractual waiver would have had no effect. But VandeMaele’s presence in the case as a codefendant could not have negated the subcontracts, and his jury demand did not magically erase the jury trial waiver that Pro Services had inserted in the parties’ agreements.” Further, the court rules did not provide any basis for nullifying the contract provision. As to the MBTFA, while Egan made out a prima facie case, Pro Services and VandeMaele presented “evidence that the pipe Egan supplied was defective and not delivered in a timely fashion, thereby rebutting Egan’s MBTFA claim.” Thus, there were factual disputes as to “Pro Services’ responsibility to pay Egan under the terms of their contracts, and reasonable minds could reach opposing conclusions as to whether Pro Services and VandeMaele violated the MBTFA.” The court affirmed the trial court’s judgment as to VandeMaele, reversed its decision to grant Pro Services’ demands for a jury trial, vacated the judgments as to Pro Services, and remanded.
Motion to withdraw plea; In re Carey; MCR 3.941(A) & (D); In re Zelzack; People v. Thew; MCR 3.941(C)(1)(a) – (c); MCR 3.941(C)(2)-(4); Failure to support a claim; Mudge v. Macomb Cnty.
Holding that respondent-juvenile did not show any error, plain or otherwise, in the trial court’s acceptance of his plea of admission, the court affirmed. He was originally charged as an adult with armed robbery. At the preliminary exam, the district court reduced the charge to unarmed robbery. The prosecution then charged him as a juvenile with unarmed robbery. Under a plea agreement, he entered a plea of admission to an added count of larceny from the person, in exchange for dismissal of the unarmed robbery charge. He claimed that he was entitled to withdraw his plea because it “was given through ignorance, fear or inadvertence.” However, the record showed that the trial court fully complied with the requirements of MCR 3.941(C). It endeavored to make sure his plea was “understandably made by advising him, in accordance with MCR 3.941(C)(1)(a) – (c), of the offense charged and the offense to which he was entering a plea, the different possible dispositions if the court accepts his plea, the consequences of waiving his right to trial and entering a plea, and the various rights he would be waiving by entering a plea.” In response to its questioning, “respondent acknowledged that he understood each of the matters.” The trial court also made sure that his plea was “voluntarily made by questioning respondent, in accordance with MCR 3.941(C)(2), to confirm the terms of the plea agreement, and by obtaining respondent’s agreement that he wanted to enter a plea in accordance with the plea agreement, that no promises or threats had been made to force him to enter a plea, and that he was entering a plea of his own free will.” Further, it made sure that his “plea was an accurate one, as required by MCR 3.941(C)(3), by questioning” him to establish factual support for a finding that he committed the offense of larceny from the person. Finally, the trial court established support for his “plea, in accordance with MCR 3.941(C)(4), by inquiring of his mother, who acknowledged that she saw no reason why the court should not accept respondent’s plea. Respondent’s counsel expressed satisfaction with the plea proceeding, including the factual basis for” the plea. There was no record support for his claim that his plea was given “through ignorance, fear or inadvertence.”
Sentencing; Scoring of OVs 4 & 13; MCL 777.34(1)(a) & (2); People v. White; MCL 777.43(1)(c); People v. Gibbs; Distinguishing People v. Carll; Whether defendant was entitled to resentencing; People v. McChester; Admission of an officer’s testimony about video surveillance footage; MRE 601 & 701; People v. Fomby; Plain error review; People v. Carines; Hearsay; MRE 801(c); Applicability of MRE 801(d)(1)(B); Ineffective assistance of counsel; People v. Armstrong; Failure to argue meritless motions; People v. Gist; Trial strategy; People v. Toma; Effect of the fact a strategy failed; People v. Stewart; Cumulative error; People v. Knapp
While the court concluded that the trial court properly scored OV 13, it held that scoring 10 points for OV 4 was error and that defendant was entitled to resentencing. However, it affirmed his convictions, holding that an officer’s (T) testimony about video surveillance footage and admission of the codefendant’s (C) statement were not grounds for reversal. It also rejected defendant’s ineffective assistance of counsel claims. He was convicted of armed robbery, conspiracy to commit armed robbery, carrying a deadly weapon with unlawful intent, unlawful imprisonment, and felony-firearm. The court upheld the scoring of 25 points for OV 13, noting that with “the two victims and the robbery and unlawful imprisonment, at least three separate acts occurred that were allowed to be scored under MCL 777.43(1)(c). Defendant was a participant in robbing each victim and in restraining their movements.” However, as to OV 4, one of the victims testified that he and the other victim “were in fear during the robbery.” But the record did not otherwise contain “any evidence to suggest that either victim suffered serious psychological injury requiring professional treatment. Because ‘evidence of fear while a crime is being committed, by itself, is insufficient to assess points for OV 4,’” the 10-point score for OV 4 was erroneous. Further, if it had been scored at 0 points, his “minimum guideline range would have decreased from 108 to 180 months to 81 to 135 months.” While some of T’s testimony may have been improper, the court found no basis for reversal in light of “the substantial other testimony and evidence demonstrating that defendant was the person in the video.” It also concluded that while C’s statement was not admissible under MRE 801(d)(1)(B) and was inadmissible hearsay, “defendant was not prejudiced by its admission because it did not affect the outcome of his trial. Most significantly,” the jury heard C’s preliminary exam “testimony in which he clearly and unambiguously implicated defendant.” It also had the victims’ testimony and the exhibits showing “defendant committing the crimes while wearing the distinctive clothing that he was wearing while arrested.” Remanded for resentencing.
Sentencing; United States v. Ramer; United States v. Kennedy; Whether defendant & his co-conspirators failed to complete all the acts necessary to commit the substantive offense entitling him to a three-level decrease under USSG § 2X1.1(b)(2); United States v. Soto (5th Cir.); United States v. Martinez-Martinez (9th Cir.); Harmless error; Molina-Martinez v. United States; United States v. Johnson; United States v. Davis; United States v. Gillis; United States v. Quinn
The court held that even though the district court erred by refusing to reduce defendant-Susany’s offense level under USSG § 2X1.1(b) when sentencing him for conspiracy to knowingly receive and transport explosive materials, his sentence was not “procedurally unreasonable,” and the error was harmless. Section § 2X1.1(b)(2) provides for a decrease where co-conspirators have not completed all the acts necessary to commit the substantive offense. At sentencing, the district court stated that it was “not comfortable” with a § 2X1.1(b)(2) reduction and instead granted Susany “a three-level downward variance based on the nature and circumstances of the offense,” reducing his base offense level and resulting in a within Guidelines 21-month sentence. The court considered whether Susany and his co-conspirators had “either completed all of the acts necessary to receive and transport explosives or were about to complete those acts but for their apprehension[,]” and concluded that they had not where they never actually secured a source for the explosives or identified a potential fence for the goods to be stolen. Thus, the court held that the district court erred by not granting Susany a sentencing reduction under § 2X1.1(b)(2). However, “had the district court properly applied the § 2X1.1 Guideline, Susany would have had a higher base offense level, yielding a higher advisory sentencing range.” Thus, his case fell “within a very unusual circumstance—the district court’s error resulted in a lower advisory sentencing range than would have resulted under the correct Guidelines calculation.” The court was also “persuaded that the district court indicated that it provided Susany a downward variance based on the nature and circumstances of the offense, giving him ‘what [he] asked for; in a different way.’” Accordingly, he was not prejudiced by the district court’s error, and remand was not necessary. Affirmed.
Dismissal of a case as a sanction for discovery abuses; Duray Dev., LLC v. Perrin; Thorne v. Bell; Bass v. Combs; Dimmit & Owens Fin., Inc. v. Deloitte Touche (ISC), LLC; Vicencio v. Ramirez; North v. Department of Mental Health; Welch v. J Walter Thompson, USA, Inc.; Kalamazoo Oil Co. v. Boerman
The court held that although the trial court erred by not considering other sanctions on the record, remand was not required because dismissal was the appropriate sanction. Plaintiff sought no-fault insurance benefits from defendant following an automobile accident. Shortly thereafter, intervening plaintiffs sought reimbursement for medical expenses plaintiff incurred through their care. Defendant denied plaintiff’s allegations. The trial court eventually dismissed plaintiff’s action for failure to participate in discovery and comply with court orders to do so. On appeal, the court agreed with plaintiff that the trial court “erred by failing to explain on the record its decision to dismiss plaintiff’s action in light of the other available sanctions.” However, it found that remand was not required. “[T]he record confirms that plaintiff’s silence was not the result of good-faith efforts or unavoidable conditions, but rather was the product of willful inaction in response to defendant’s numerous attempts to complete discovery.” A “lesser sanction would not have facilitated discovery” and “dismissal of plaintiff’s claims best served the interests of justice.” Affirmed.
Claim for uninsured motorist benefits; Whether the policy’s “actual physical contact” requirement was satisfied by the fact that the hit-&-run vehicle hit plaintiff’s vehicle & propelled it into him; Berry v. State Farm Mut. Auto. Ins. Co.; Adams v. Zajac; Lord v. Auto-Owners Ins. Co.; Hill v. Citizens Ins. Co. of Am.; McJimpson v. Auto Club Group Ins. Co.; Consulting a dictionary to define terms not defined in the policy; McNeel v. Farm Bureau Gen. Ins. Co. of MI; Actual defined; Insurance contract interpretation; McGrath v. Allstate Ins. Co.
Concluding that the phrase “actual physical contact” as used in the policy at issue was not synonymous with the phrase “direct physical contact” used in the policy in McJimpson, the court agreed with plaintiff-insured that the fact the hit-and-run vehicle hit his vehicle and propelled it into him satisfied the “actual physical contact” requirement in his policy’s definition of “hit and run auto.” Thus, the trial court erred by ruling otherwise as a matter of law. The court reversed the grant of summary disposition to defendant-insurer, and remanded for further proceedings. Plaintiff sought uninsured motorist benefits under his policy with defendant. The trial court found that McJimpson required dismissal of his claim under the specific policy language. However, the court concluded that the trial court “read McJimpson too broadly.” The result in that case “was based on the language of the insurance policy in that case, which contained the modifier ‘direct’ before the term ‘physical contact.’ Under those circumstances, reading the policy as permitting ‘indirect’ physical contact,” as prior cases had defined it, “would have failed to give effect to that modifier and been contrary to the plain language of the policy.” The court in McJimpson was “clear that its holding was based on the policy at issue.” The policy in this case contained a different modifier before the term “physical contact.” Here, the unidentified vehicle must have “caused plaintiff’s bodily injury by actual physical contact with plaintiff for the coverage to apply.” As the policy did not define actual, the court turned to dictionary definitions and concluded that “the physical contact must not have been merely ‘potential,’ as when a hit-and-run vehicle causes a plaintiff to swerve[.]” The words “actual” and “direct” are not synonymous “and should not be interpreted as essentially identical. At the very least, the policy language is ambiguous regarding whether direct or indirect (but actual and not potential) physical contact satisfies the coverage condition in the policy;” thus, the court construed the policy in favor of coverage.
Action under the Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(2); Odom v. Wayne Cnty.; Beals v. Michigan; The gravamen of an action; Norris v. Lincoln Park Police Officers; Gross negligence claims based on excessive tightness of handcuffs causing physical injury; Oliver v. Smith; Whether defendant’s acts were undertaken in good-faith & without malice; Lattis v. Phillips
The court held that the trial court erred by denying defendant-police officer’s motion for summary disposition based on governmental immunity. Plaintiff was arrested for reckless driving, but the charges were dismissed when it was discovered that defendant stopped the wrong vehicle. Plaintiff subsequently sued defendant alleging gross negligence, assault and battery and false arrest, and intentional infliction of emotional distress. The trial court denied defendant’s motion for summary disposition without giving any explanation for its reasoning. On appeal, the court first found that because he “based his claims against defendant purely on intentional rather than negligent conduct,” he only asserted claims of intentional tort. Thus, “the trial court erred by denying defendant’s motion for summary disposition on [the] gross negligence claim because this count should have been dismissed for failing to state a claim upon which relief could be granted.” It next found that there was “no genuine issue of material fact that defendant acted under a good-faith belief that he had probable cause to stop and arrest plaintiff, even though he later realized that he had made a mistake.” The court noted that “while plaintiff may dispute the precision of defendant’s various observations, plaintiff has not pointed to any evidence that contradicts the honesty of defendant’s belief that he held at the time of the arrest.” There simply was “no evidence of wanton or malicious conduct or a demonstrated reckless indifference to the common dictates of humanity.” As such, the “intentional tort claims are barred by governmental immunity because the fact that he was mistaken about plaintiff being the driver of the speeding car does not negate defendant’s good-faith belief at the time of the arrest that he had stopped the correct vehicle.” Reversed and remanded.
Trip & fall in a store; Premises liability; Benton v. Dart Props., Inc.; Duty; Moning v. Alfono; Hoffner v. Lanctoe; Breach; Boumelhem v. Bic Corp.; Distinguishing claims arising from ordinary negligence & claims premised on a condition of the land; Lymon v. Freedland; Whether a danger is open & obvious; Kennedy v. Great Atl. & Pac. Tea Co.; Lugo v. Ameritech Corp., Inc.
The court held that the trial court did not err by granting summary disposition for defendant in plaintiff’s premises liability action. Plaintiff sued defendant for injuries she sustained when she tripped on a “clear and/or translucent polyester strapping band” that was on the floor near a cash register in the store. The trial court granted defendant’s motion for summary disposition, finding that there was no question of material fact that the plastic strip was an open and obvious condition. On appeal, the court rejected plaintiff’s argument that a question of fact existed as to whether the plastic strip on the store’s floor was an open and obvious hazard. “Applying the objective standard, which calls for an examination of the ‘objective nature of the conditions of the premises at issue,’ and viewing the evidence in the light most favorable to plaintiff, the plastic strip was open and obvious.” Applying Kennedy, it concluded that the “potential hazard presented by the plastic strip could have been observed by an average person of ordinary intelligence upon casual inspection.” Because the condition was “open and obvious, the trial court correctly held that defendant had no duty to warn of or protect plaintiff from the potential hazard of the plastic strip on the floor.” Finally, because the court concluded that the plastic strip was an open and obvious condition, it declined “to reach plaintiff’s contention that defendant had notice of the hazard and therefore a duty to warn, which is relevant only if the plastic strip had not been open and obvious.” Affirmed.
Termination under §§ 19b(3)(g), (j), & (k)(iii); Principle that at least one statutory ground must be met; In re Moss Minors; In re HRC; Credibility of witnesses; In re Rood; Ineffective assistance of counsel in child protective proceedings; In re CR; In re Simon; People v. Trakhtenberg; Best interests of the child; In re Trejo Minors; In re Olive/Metts Minors; In re White
The court held that the trial court properly terminated the respondent-mother’s parental rights to the child where she was not prejudiced by her first counsel’s alleged deficient performance, § (j) supported termination, and it was in the child’s best interests. The DHHS sought termination on the basis of abuse allegations. After closing arguments, the trial court dismissed respondent’s counsel and appointed new counsel, who moved for a new trial. The trial court found that her first counsel’s performance was deficient, but concluded that she was not prejudiced because it had yet to make any findings. It then allowed respondent, represented by new counsel, “‘to reopen proofs in order to further examine witnesses and testify if she chooses.’” On appeal, the court rejected her argument that she should have been granted a new trial based on the ineffective assistance of her first counsel, noting she failed to show how she was prejudiced, and “failed provide any basis” for the court to conclude that “‘but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.’” It also rejected her claim that the trial court erred by finding that the DHHS established a statutory ground for termination, noting that, “based on the extensive history of abuse and respondent’s attempts to minimize her role in—and the severity of—the abuse,” the trial court did not err in finding “by clear and convincing evidence that there was a reasonable likelihood that [the child] would be harmed if returned to” her home. Given that it found at least one ground for termination existed, the court noted it was not required to consider the additional grounds upon which the trial court based its decision. Finally, it rejected her contention that the trial court erred by finding that termination was in the child’s best interests. “Given all this [] child has endured and, particularly, the significant risk of emotional and physical harm if left in respondent’s care,” the trial court did not err by finding “by a preponderance of the evidence that termination of respondent’s parental rights was in the child’s best interests.” Affirmed.
Termination under §§ 19b(3)(g) & (j); In re Mason; In re Martin; In re BZ; In re Moss Minors; In re White; Credibility of witnesses; In re Miller; Potential emotional harm; In re Hudson; Children’s best interests; In re Olive/Metts Minors; Reasonable reunification efforts; Housing instability; Whether the lengthy distance from the children’s foster care placement constituted a barrier to reunification; Respondent-father – Relative placement; Whether he was provided with necessary reunification services; In re Frey; Whether he was denied due process when the DHHS ended services; In re Plump
The court held that the trial court properly terminated both respondents-parents’ parental rights to the five children where the statutory grounds for termination were established by clear and convincing evidence and it was in their best interests. Respondent-mother argued that the trial court clearly erred when it found that she lacked stable housing because she had maintained a home in Michigan and she had acquired a home in Wisconsin. She contended that the trial court essentially terminated her parental rights because she could not budget. Her assertions lacked merit because the evidence supported the trial court’s findings about her housing instability, and her inability to budget was directly related to this issue. The issues with respondents’ housing stability preceded the children’s removal. At that time, the mother owed $3,305 in rent and had been evicted from another home for owing $8,400 in rent. She denied that she was evicted from the home, but acknowledged that she moved and that she did not pay rent on the home for four or five months. At the termination hearing, she testified that she had lived in a homeless shelter, temporary lodging, and two different houses in Wisconsin. Also, there was direct evidence that the lack of stable housing was harmful to the children. Additionally, the trial court did not terminate her parental rights because she could not budget. The court was not definitely and firmly convinced that the trial court made a mistake when it found that she could not provide the children with proper care and custody because she lacked stable housing. Respondent-father argued that the trial court erred by finding that he could not provide the children with proper care and custody because he had housing that was not evaluated as a potential placement. He also claimed that he was never given the opportunity to show that he could parent in a home-like setting. He was residing with his mother and her boyfriend, who had allegedly sexually abused one of the children. He himself had said “that his mother would not be a good placement option.” When he received his updated service plan, it clearly indicated that his residence would not be an appropriate placement for the children. Also, the DHHS evaluated and rejected placement with the father’s sister because she lacked room for all of the children. To the extent that he argued he was not given the opportunity to show he could parent in a home-like setting, this was attributable to his decision to live in an inappropriate home. Affirmed.