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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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The Persons With Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.); Peden v. Detroit; MCL 37.1212(1)(a)-(e); “Disability” defined (MCL 37.1103(d)); Whether the plaintiff-corrections officer’s (CO) disability was related to her ability to perform her job; MCL 37.1212(1)(l)(i); MCL 37.1202(1)(b); Chiles v. Machine Shop, Inc.; Town v. Michigan Bell Tel. Co.; Kerns v. Dura Mech. Components, Inc.; Fact-specific nature of the inquiry into the qualifications of an employee or applicant for a job; Rourk v. Oakwood Hosp. Corp.; Failure to accommodate claim; MCL 37.1102(2); Buck v. Thomas M. Cooley Law Sch.; MCL 37.1210(15); Whether the defendant-employer should have transferred plaintiff to an open position as an ordinary CO; Tranker v. Figgie Int’l, Inc.; Special Alternative Incarceration (SAI)
[Unpublished opinion.] The court held that the plaintiff did not establish a prima facie case under the PWDCRA because she failed to show a genuine issue of material fact that her disability was unrelated to her ability to perform her job. She also failed to show a genuine issue of material fact as to the defendant’s alleged failure to accommodate. Thus, the court reversed the trial court’s order denying defendant’s summary disposition motion, and remanded. Plaintiff was “separated” from her employment by defendant. Defendant argued on appeal that her disability prevented her “from performing the essential functions of her job, and her disability is related to her ability to perform her job as a SAI corporal.” The court concluded that there was no genuine issue of material fact as to “whether the SAI position required physical activity connected with running and training the prisoners” or that “plaintiff could not perform that job function. In fact, that was precisely the activity from which” she asked to be relieved. While she and the trial court “relied heavily on plaintiff’s work history, that is of little relevance considering her current medical restriction prevents her from performing required tasks of her job in the SAI position.” The trial court also erred in focusing on COs at large. “The proper inquiry is not whether plaintiff could perform the duties of any job at all, such as a general corrections officer, but whether she could perform ‘the duties of a particular job or position.’” The job she held “at the time of the alleged discrimination was that of a SAI corporal. ‘[T]he facts unequivocally demonstrate plaintiff could not perform the acts required for the’ SAI position.” Her condition rendered “her ‘unqualified to perform this particular job,’ which required such high intensity calisthenics.” As to her failure to accommodate claim, the “requested ‘accommodation’ plaintiff seeks is the elimination of essential responsibilities of the position, which is not an accommodation defendant is legally obligated to offer.” While she also contended that “defendant should have accommodated her by transferring her to an open position” as an ordinary CO, “‘the duty to accommodate does not extend to new job placement or transfers to other positions.’”
"Other acts" evidence; MRE 404(b); People v. VanderVliet; People v. Mardlin; People v. Sabin (After Remand); People v. Engelman; The notice requirement of MRE 404(b)(2); Whether there is a “res gestae exception” to MRE 404(b); People v. Delgado; People v. Sholl; People v. Kayne; United States v. Green (3rd Cir.); United States v. Boone (7th Cir.); State v. Ferrero (AZ); Harmless error; People v. Douglas; MRE 401 & 402; People v. Starr; MRE 403; People v. Crawford
Holding that there is no “res gestae exception” to MRE 404(b), the court agreed with the Court of Appeals that the challenged testimony was other acts evidence and the trial court erred in ruling otherwise, but it disagreed with the Court of Appeals majority that the testimony fell within a res gestae exception to the rule. However, the court concluded that the defendant’s convictions should be affirmed because the error in admitting the evidence “without reference to or compliance with MRE 404(b)” was harmless. Thus, while it vacated the portion of the Court of Appeals majority’s opinion dealing with a res gestae exception to MRE 404(b), it affirmed his convictions of six counts of CSC I. The “conduct at issue” here was the defendant-pastor’s charged CSC acts against the victim. His prior relationships with witness-P and another parishioner “plainly did not constitute, directly evidence, or contemporaneously facilitate the commission of this conduct.” Rather, P’s testimony “was offered to provide inferential support for the conclusion that the charged conduct did, in fact, occur as alleged, and that those allegations were not fabricated. Such evidence falls comfortably within the prevailing and established scope of ‘other acts’ contemplated by MRE 404(b), and the propriety of its inferential support is subject to scrutiny under that rule.” Based on the plain language of the rule, the court concluded that there is no res gestae exception from its coverage, and it did not read either Delgado or Sholl as creating one. However, while the admission of P’s testimony without applying MRE 404(b) was error, the court agreed with the Court of Appeals that defendant was not entitled to relief. The error did not result in the admission of substantively inadmissible other acts evidence against him. P’s testimony “was ‘logically relevant to a material fact in the case, as required by MRE 401 and MRE 402, and [was] not simply evidence of’” his character “‘or relevant to his propensity to act in conformance with his character.’” It was “offered for the proper, nonpropensity purpose of explaining the timing and circumstances” of P’s conversation with the victim, to counter defendant’s theory that the victim’s allegations were fabricated at P’s urging. It was also “tailored to its proper purpose, and did not delve into” unnecessary detail. While it was error for the prosecution not to comply with MRE 404(b)(2), defendant did not show that “this error ‘more probably than not . . . was outcome determinative.’” The other evidence of his guilt “was overwhelming.”
Interpretation of the Prison Escape Statute (MCL 750.193); People v. Sheets; People v. Armisted; Principle that a parolee remains in the custody of the Department of Corrections (DOC) even after he or she is released into the community; People v. Kern; Motion to quash; People v. Stone; Principle that it is an abuse of discretion to base a decision to quash on an error of law; People v. Duncan; Statutory construction; People v. Cunningham; Unlawful incarceration claim; Whether the defendant was entitled to a parole revocation hearing before he could be sent to & held at a Residential Re-Entry Program facility; In re Parole of Haeger; Jones v. Department of Corr.; Whether Michigan law recognizes a right to self-help to avoid unlawful imprisonment; Moses v. Department of Corr.; People v. Alexander; People v. Hamaker; People v. Hurst
Holding that the trial court erred in interpreting the last sentence of MCL 750.193(3) to provide immunity from prosecution under the statute to parolees whose escape also constitutes a violation of a condition of parole, the court reversed the trial court’s order dismissing the prison escape charge against the defendant, and remanded further proceedings. Defendant was released into the community on parole. Months later, he was picked up on suspicion that he violated the conditions of his parole, and the DOC placed him in a Residential Re-Entry Program facility (the Lake Facility). He later “went missing” from there, and after being arrested, was charged with prison escape in violation of MCL 750.193 and another offense. The trial court agreed with his claim that his “escape from the Lake Facility could not constitute a violation of MCL 750.193.” He argued that he could not be convicted of “prison escape for breaking out of the Lake Facility because he was assigned to the Lake Facility as a condition of parole and the violation of a condition of parole cannot constitute prison escape.” In the last sentence of MCL 750.193(3), the Legislature provided that a “person violating the conditions of parole is not an escapee under this act.” The court concluded it was “evident that the Legislature did not intend to provide persons who violate their parole with immunity from prosecution under MCL 750.193. Rather, it intended to preclude the prosecutor from relying on a violation of a condition of parole as the sole basis for a prosecution under MCL 750.193.” Because the prosecution “established the elements of prison escape without relying on the fact that the escape amounted to a violation of a condition of parole, the trial court necessarily abused its discretion” in granting his “motion to quash the charge of prison escape on the basis of its erroneous understanding of the law.” Defendant also argued that he could not be prosecuted for prison escape because his incarceration at the Lake Facility was unlawful due to the DOC’s failure to first conduct a parole revocation hearing. The court concluded that it did “not appear that his detention was unlawful” and assuming he had a common-law right to use self-help to avoid unlawful imprisonment, he would simply be entitled to present that defense at trial.
Sufficiency of the evidence to support the defendant’s convictions of conspiracy to possess with intent to deliver less than 50 grams of cocaine, keeping or maintaining a drug house, & receiving or concealing stolen property worth at least $1,000 but less than $20,000; People v. Hunter; MCL 333.7405(1)(d); People v. Bartlett; People v. Thompson; People v. Quinn; Witness credibility; People v. McGhee
[Unpublished opinion.] Holding that the evidence was sufficient to support the defendant’s convictions of conspiracy to possess with intent to deliver less than 50 grams of cocaine, maintaining a drug house, and receiving or concealing stolen property worth at least $1,000 but less than $20,000, the court affirmed his convictions. While in jail, defendant told A, who lived with him, “to sell cocaine that he purchased before his incarceration.” He told her “how much cocaine should be in the home, what she should do with it, and what she should do with the proceeds.” At the time of A’s arrest, “officers found her with a digital scale and other drug paraphernalia that was indicative of a delivery operation.” Defendant’s direction to her “clearly showed that he had the specific intent to deliver the cocaine and that he intended to combine with” A to deliver it. The fact that A admitted “that she sold drugs for defendant while he was in jail and that she was arrested with cocaine and a digital scale established that she had the same intent as defendant.” The amount of cocaine recovered was approximately 9.94 grams. Thus, “a rational trier of fact could have concluded beyond a reasonable doubt that defendant conspired to possess with intent to deliver less than 50 grams of cocaine.” There was also evidence that he “exercised control or management over the house that was used for selling drugs.” Officers recovered “mail in defendant’s room with his name on it,” leading to the inference that he “had some control over the premises.” Also, the evidence showed that he “lived in the home for eight or nine months and he kept his cocaine there.” A testified that he “directed her to sell drugs out of the house. In other words, defendant exercised control or management over the sale of drugs at that house, even after he was incarcerated. Further, there was sufficient evidence on the element of continuity.” Finally, the evidence established that A and defendant went to her brother’s home, and she stood watch while he took a television and two laptops. They took the items back to defendant’s home, and the unchallenged value of the property was $2,150.
[This appeal was from the ED-MI.] In an amended opinion (see e-Journal # 59445 in the 3/16/15 edition for the original opinion), the court again held that defendant-Soto could not establish the prejudice element of his ineffective assistance of counsel claim, that the joinder of defendant-Santana’s kidnapping and drug-trafficking counts was not error (let alone plain error), and that there was sufficient evidence to support all four defendants’ convictions. It again concluded that the district court did not abuse its discretion by determining that the evidence Soto argued counsel should have moved to suppress “would have been admitted under the good-faith exception” to the exclusionary rule. In the amended opinion, the court more extensively discussed Santana’s claim (raised for the first time on appeal) that the district court erred by trying the kidnapping and the drug-trafficking counts together. The government maintained that he “waived his right to challenge the district court’s decision” because he did not file a motion to sever before trial. The court reviewed the rules regarding waiver, and whether Santana’s failure to file a timely Rule 12(b)(3) motion resulted in a waiver of appellate review. It held that the new version of Rule 12(c)(3) intentionally eliminated the term “waiver,” and that “courts may no longer treat a party’s failure to file a timely Rule 12(b)(3) pretrial motion as an intentional relinquishment of a known right.” The court also held that plain-error review applies to claims of misjoinder raised for the first time on appeal, and concluded that joinder of the cocaine counts with the kidnapping counts did not prejudice Santana’s defense. There was also sufficient evidence that “Respardo-Ramirez participated in the conspiracy to distribute narcotics[,]” and it rejected his claim that there was a “variance” between the indictment and the evidence presented at trial that affected his substantial rights. The court rejected Santana’s and Soto’s claim of an Alleyne violation, concluding that “any alleged Alleyne error was harmless.” Affirmed.
The court held that the MERC did not err by dismissing the charging party-union’s ULP charge against the respondent-school district arising from respondent’s failure to hold a “bid-bump” meeting as set forth in the CBA. Respondent argued that “the enactment of MCL 423.215(3)(j) removed any duty to bargain over teacher-placement decisions and gave it unilateral authority to make decisions relating to teacher placement.” The ALJ agreed with respondent, holding that § 15(3)(j) “was clear and that it prohibited bargaining over any decision pertaining to teacher placement, including the bid-bump procedure.” MERC affirmed and dismissed the charge. On appeal, the court upheld the decision, finding that the plain meaning of § 15(3)(j) “demonstrates the intent of the Legislature to give public school employers discretion regarding a broad spectrum of teacher placement decisions. This broad discretion applies not only to placement decisions themselves, but also to any decision the employer makes in regard to how it decides to go about making those decisions. Any decision regarding teacher placement, which is a prohibited subject of bargaining, cannot be the subject of a collective-bargaining agreement.” Thus, it concluded that there were “no cogent reasons for overturning MERC’s interpretation of this statute.” The court also rejected the charging party’s remaining arguments. It found that its challenge to the sufficiency of the MERC’s factual findings was meritless, and that the MERC did not err by failing to hold an evidentiary hearing. Finally, it held that the MERC did not err by declining to hold oral argument. “Unlike a hearing before an ALJ, Rule 423.178 does not mandate oral argument; rather, it simply states that a party may request oral argument.” The “language employed in MCL 423.216 indicates that MERC has discretion over whether to grant oral argument after the matter has been heard by the ALJ. There is no merit to charging party’s contention that it is entitled to reversal because MERC found additional oral argument would be unnecessary to its review of the case.” Affirmed.
Retiree benefits; Labor-Management Relations Act (29 USC § 185 et seq.); Employee Retirement Income Security Act (29 USC § 1001 et seq.); Rehearing granted; M & G Polymers USA, LLC v. Tackett; UAW v. Yard-Man, Inc.
[This appeal was from the ED-MI.] In an order, the court granted the defendants’ motion for panel rehearing in light of the Supreme Court’s decision in Tackett, which overruled the court’s decision in Yard-Man. The court remanded the case to the district court for reconsideration, and further proceedings, if required. The court vacated its prior opinion in this case (see e-Journal # 56956 in the 4/29/14 edition).
Child support; Fraud; Whether defendant-Challa (who is the Ottawa County Friend of the Court (FOC)) was shielded from liability on the basis of quasi-judicial, absolute immunity; Diehl v. Danuloff; Martin v. Children’s Aid Soc’y; The Friend of the Court Act (MCL 552.501 et seq.); Johnson v. Granholm (6th Cir.); Maiden v. Rozwood; Couch v. Schultz; Obstruction of justice; MCL 750.483a(5); Derderian v. Genesys Health Care Sys.; Claim that plaintiff was not notified of the recusal by the judges of the Ottawa Circuit Court, or of the trial court’s assignment by SCAO; Harmless error; MCR 2.613(A); Judicial bias; MCR 2.003(C)(1)(a) & (b); In re Contempt of Henry; Claim that summary disposition was premature because discovery had not been completed; LiParoto Constr., Inc. v. General Shale Brick, Inc.
As to plaintiff-Denhof’s complaint surrounding the three counts of fraud, the trial court did not err in granting summary disposition in favor of defendant-Challa (who is the Ottawa County FOC), considering that she was shielded from liability on the basis of quasi-judicial immunity. As to the claim of obstruction of justice, Denhof failed to address a ground given by the trial court in support of summary dismissal of that count, and failed to state a claim for obstruction of justice. Denhof’s civil case against Challa alleged multiple counts of fraud and a single count of obstruction of justice associated with statements made and actions taken by Challa relative to family division proceedings as to Denhof’s payment of child support to his ex-wife. He started the case from prison, where he is serving a 14 to 75-year term of imprisonment for convictions on three counts CSC I after sexually abusing his young daughter. The court held that a FOC’s statutorily-based role “entails fact-finding, providing information, performing evaluations, preparing reports, making recommendations, and aiding the family court in separating truth from falsity, all as intimately related and essential to the judicial process and decision-making by the family court.” Challa pleaded the affirmative defense of immunity as required by MCR 2.111(F)(3)(a). Further, there could be no reasonable dispute that she was “acting within the scope of her authority or official duties” as to her conduct in addressing the family court in the 4/12 hearing and as to any communications that she may have had with Denhof’s counsel concerning the FOC file. The court held that she was “shielded from liability in regard to the fraud claims on the basis of quasi-judicial immunity tied to her position, role, and duties as the county FOC.” Challa’s statements to the family court in 4/12 with which Denhof took offense were “relevant, pertinent, and material,” and Denhof did not argue otherwise. Rather, he alleged that Challa’s statements to the family court “constituted misrepresentations and were fraudulent. However, falsity or malice does not abrogate the immunity or privilege.” Thus, “quasi-judicial immunity arising from the judicial-proceedings privilege also shielded Challa from liability” as to the fraud claims. Affirmed.
Third-party no-fault action; Affirmative defense based on the plaintiff’s intoxication pursuant to MCL 600.2955a; Admission of a toxicologist’s testimony; Woodard v. Custer; MRE 702; Surman v. Surman; MRE 703; Badiee v. Brighton Area Sch.; Challenges going to the weight rather than the admissibility of testimony; Lenawee Cnty. v. Wagley; The jury’s finding that plaintiff’s intoxication was a “proximate cause” of the accident; Distinguishing Piccalo v. Nix (On Remand) & Mallison v. Scribner; Attempt to “appeal from an error to which the aggrieved party contributed by plan or negligence”; Smith v. Musgrove; Comparative negligence; Placek v. Sterling Heights; Claim the jury was inconsistent in its award of past but not future economic damages; Kelly v. Builders Square; Denial of motion for a new trial on the basis the verdict was against the great weight of the evidence; Hill v. Henderson; Blood-alcohol level (BAL); Underinsured motorist (UIM) benefits
[Unpublished opinion.] Concluding that the toxicologist’s (M) opinion was based on facts in evidence and his expert qualifications, the court found “no abuse of discretion in the trial court’s admission of this evidence.” It also found that cases on which the plaintiff relied, Piccalo and Mallison, did not support her claim that the jury’s verdict was inconsistent, and concluded that the trial court did not err in denying her motion for a new trial. Plaintiff appealed the trial court’s judgment, following a jury trial, awarding her $70,192.80 in damages. “The judgment reduced the jury award of $116,988 by 40% in light of the jury’s finding, via special verdict form, that plaintiff’s comparative negligence amounted to 40% of the cause of the accident.” The case arose from a single vehicle accident. Plaintiff (the passenger) sued defendant-Curtis (the driver) for third-party no-fault benefits and asserted claims for UIM benefits against her own no-fault insurer. Defendants raised an affirmative defense based on plaintiff’s intoxication pursuant to MCL 600.2955a. She argued on appeal that M (the insurer’s expert) lacked an evidentiary foundation of the intoxication of plaintiff or Curtis, and thus should not have been permitted to opine as to their intoxication at the time she asked Curtis for a ride home. However, their BAL tests after the accident were admitted into evidence. The record showed that M “based his opinion on that evidence and his experience as a toxicologist.” Plaintiff was allowed to explore the assumptions M made in reaching his conclusions and elicited testimony that he “lacked direct evidence of plaintiff’s or Curtis’s alcohol consumption or visible intoxication on the night in question.” M agreed “at his deposition that he could not state with certainty that Curtis appeared intoxicated at the time plaintiff asked him for a ride, or that plaintiff was ‘legally intoxicated’ when she made her decision to accept that ride.” He did “not opine differently at trial; rather, given certain assumptions such as weight and gender, he gave his expert opinion” as to the lowest BAL they “could have had when they left the bar.” Plaintiff’s challenges to that testimony went to “its weight, not its admissibility.” Affirmed.
[Unpublished opinion.] The court vacated the trial court’s judgment holding that defendant-State Farm was in a higher order of priority for payment of no-fault benefits than plaintiff-Wolverine Mutual, and remanded for entry of an order finding that, as a matter of law, defendant-Shawnah-May Lucky Markle’s father’s (JM) State Farm policy did not provide coverage for the accident. On remand, the trial court may conduct further proceedings. The defendants-Adcocks (the husband was driving his motorcycle and his wife was a passenger on the motorcycle) sustained injuries in a collision with a car driven by J. The car was owned by, and registered to, his girlfriend, Shawnah-May. J did not have automobile insurance. Shawnah-May also did not have insurance for the car. When she obtained the car from JM in 2010, it was insured on his policy with State Farm. After moving out of her parents’ home, Shawnah-May moved into an apartment above the home of J’s parents (HP and KP). She and J later lived with her co-worker through the date of the accident. State Farm argued that the trial court erred when it granted plaintiff’s motion for summary disposition because there was no genuine issue of material fact and that Shawnah-May was not insured by JM’s State Farm policy. The court held that State Farm was not liable for payment of no-fault benefits under JM’s State Farm policy because she was not domiciled with her parents at the time of the accident. There was nothing in the record to support a finding that, as a matter of law, State Farm was liable for the payment of no-fault benefits under HP’s State Farm policy. Because these were “the only two policies on which the trial court could have found that State Farm was in a higher order of priority than plaintiff for payment of no-fault benefits arising out of the accident, the trial court erred when it granted plaintiff’s motion for summary disposition” and entered a declaratory judgment finding that State Farm was in a higher order of priority than plaintiff for the payment of no-fault benefits.
[Unpublished opinion.] The court affirmed the trial court’s termination of the respondent-mother’s parental rights to the child (ND), but reversed and remanded to “properly” determine the child’s best interests. The trial court properly terminated respondent’s parental rights under §§ (c)(i), (g), and (j). The DHS initially took custody of ND because of respondent’s abusive relationship with her live-in boyfriend. The boyfriend committed acts of domestic violence against her—and, at times, did so in front of ND. He also forced them to remain inside his apartment throughout the day. “Despite his continued physical and emotional abuse—and the fact that his behavior was a precipitating cause for the removal” of ND—she “remained in a relationship with this boyfriend throughout the proceedings.” Thus, the trial court correctly held that “(1) the conditions that led to the adjudication continued to exist; and (2) respondent’s living arrangements with a violent man put ND at risk of physical and emotional harm.” Moreover, the trial court also accurately found that she lacked the ability to “provide proper care or custody for” ND pursuant to § (g). She failed to attend the counseling and therapy sessions offered by the DHS, which might have convinced her to end the dangerous relationship with her boyfriend and begin an independent life. Despite the state’s efforts to assist respondent “in obtaining both a job and an apartment, she failed to follow up on the opportunities afforded to her by this assistance, and did not maintain a steady income or secure a residence separate from her abusive boyfriend.” She also evinced little interest in regaining custody of ND: she “did not attend either the termination or best interests hearing, missed many visitation times, and did not remain in contact with” the DHS.
[Unpublished opinion.] The court concluded that the trial court did not err in analyzing the respondent-father’s putative father status under MCL 710.39(1) instead of MCL 710.39(2). Also, because six of the eight applicable factors did not favor him, the trial court did not err in finding that granting custody to him was not in the child’s (MGG) best interests. Thus, the court affirmed the trial court’s order terminating his parental rights to MGG under the Adoption Code. Petitioner was the 17-year-old birth mother to MGG. Respondent, also 17-years-old, was the putative father. Petitioner determined early in her pregnancy that she wanted MGG to be adopted. Respondent, who was incarcerated at the time of the birth and during the trial court proceedings, would not consent. He challenged the trial court’s finding that he came within the provisions of § 39(1) and that termination of his parental rights was in MGG’s best interests. He did not dispute that he failed to establish a custodial relationship with MGG. He argued that if the trial court had analyzed the support and care obligation of § 39(2) in terms of his “ability to do so,” it should have found that he came within § 39(2) and not § 39(1). The court disagreed. The record as presented did not support a finding that he was a putative father under § 39(2) based upon his lack of support for the child. He argued that “his incarceration and the maternal grandmother’s decision to have MGG adopted unfairly prohibited him from being able to provide support or care for petitioner or MGG.” The court found no merit to either contention. There was “no record of respondent providing support to petitioner during her pregnancy or to MGG within 90 days after she was born. There was competent testimony from petitioner that she spoke to respondent” before MGG’s birth and that he was aware of the impending birth. The trial court rejected his argument that “he was prevented from providing support because of the interference of petitioner’s mother.” The rejection was supported by the record including the testimony of the petitioner, her mother, and grandmother. There was “evidence of gifts and other items provided after the birth” but there was “no evidence that respondent provided substantial and regular support in the months after her birth.” While he was incarcerated for a portion of MGG’s life, “he failed to use his funds before incarceration for the support of the child and instead utilized those funds to purchase a car.” The court has opined that § 39 “does not contain an incarcerated parent exception.”
Termination under §§ 19b(3)(c)(i) & (g); In re Moss Minors; In re White; In re Mason; In re Williams; The children’s best interests; In re Olive/Metts Minors; In re Frey; Residential substance abuse treatment program (RSAT)
[Unpublished opinion.] The trial court properly terminated the respondent-mother’s parental rights to the two children (BP and KP) where §§ (c)(i) and (g) were established by clear and convincing evidence and termination was in their best interests. She claimed the trial court “failed to consider the positive steps that she was taking to overcome her addiction and become reunited with the children.” She noted the testimony provided by a substance abuse counselor as to the success of the RSAT program and her “fair” prognosis; the testimony by KP’s paternal grandmother as to respondent’s written contact with KP, her “great love” for KP, and the grandmother’s opinion of respondent’s care of KP; the testimony by the DHS foster care case worker as to her care for KP while she was at a drug treatment program; and her own testimony, during which she “took full responsibility for her actions and described her improvement and activities during her incarceration.” However, despite this testimony, the record clearly showed that she “continued to struggle with unresolved substance abuse issues throughout the proceedings.” Because of her addiction to meth, “she was incarcerated numerous times, including at the time of the termination hearing.” It was apparent that she “was only able to control her substance abuse issues in structured environments, and she often relapsed shortly after being released from jail or a treatment program.” Because respondent was frequently incarcerated, she “failed to complete or participate in many of the services that were offered to address her parenting skills and ability to care for” BP and KP. She also never obtained stable housing or employment. Thus, the evidence supported the trial court’s finding that she was unable to provide proper care and custody for BP and KP. For the same reasons, it was also evident that “the conditions that led to adjudication, which included ongoing substance abuse and a related inability to adequately care and provide for” BP and KP, “continued to exist at the time of the termination hearing.” Further, the evidence indicated that there was no reasonable expectation that respondent would “be able to provide care and custody within a reasonable time considering” their young ages, and that “there [was] no reasonable likelihood that the conditions [that led to adjudication would] be rectified within a reasonable time” given their ages. Affirmed.