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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Admission of a CSC victim’s birth certificate; MRE 902(3); MRE 901(a)
The court held that the trial court did not abuse its discretion in admitting the victim’s (D) birth certificate under MRE 902(3) in this CSC case. Further, even if it had, the certificate was authenticated under MRE 901(a). Thus, the court affirmed defendant’s CSC III convictions. D was murdered before the trial. The jury found defendant guilty under MCL 750.520d(a) (victim between 13 and 15 years of age). In order to determine “whether a foreign public document is self-authenticating under the first part of MRE 902(3), the court must ascertain if [it] purports ‘to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation.’” D’s birth certificate was “signed by the Chief Registrar of Sierra Leone’s Ministry of Health and Sanitation, who attested in his official capacity that the document certifying [D’s] birth was registered on Page 155, Number 0155 of the Register of Births of the Republic of Sierra Leone on” 4/12/05. Thus, the first requirement was met. The next requirement is “that the document be ‘accompanied by a final certificate as to the genuineness of the signature and official position (A) of the executing or attesting person . . . .’” The court noted that the rule does not require “that the exact phrase ‘final certification of genuineness’ appear in order for the foreign public document to be considered self-authenticating.” Rather, there must be something on it certifying “that both the signature and official position of the attesting (or executing) person is genuine.” The attesting person here was the Chief Registrar, whose official position was identified on the “certificate below his signature. In addition, the official seal of the Office of the Registrar of Births and Deaths is affixed to the document. The presence of the seal certifies the genuineness of the signature and official position of the” Chief Registrar. Thus, the second requirement was also met. In addition, the document was properly authenticated under MRE 901(a) where D’s mother and her maternal aunt both identified it as D’s official birth certificate. “Their testimony came from personal knowledge that the birth certificate was, in fact, what” it was purported to be.
Sentencing; Scoring of OV 3; MCL 777.33(1)(c); Evaluating the severity of the victim’s injuries; People v. McFarlane; People v. Rosa; Clerical or typographical errors in the PSIR; People v. Harmon
Holding that the trial court did not clearly err in scoring 25 points for OV 3, the court affirmed defendant’s sentence. However, it remanded for the ministerial task of addressing any alleged clerical inaccuracies in her PSIR. She was convicted of assault with a deadly weapon, felony-firearm, and CCW. She argued that the trial court erred in scoring 25 points for OV 3 “because the victim’s injuries were not life-threatening or incapacitating.” The court disagreed. Noting that “gunshot wounds are not necessarily life-threatening,” it reviewed recent cases to “provide focus for evaluating the severity of the victim’s injuries” here. A 25-point score for OV 3 was upheld in McFarlane “when a victim suffered brain injuries—including ‘significant subdural bleeding, repeated seizures, and retinal hemorrhage’— and was transported to a second hospital as part of their treatment.” In Rosa, it concluded “that profuse bleeding can support a determination that a victim’s injuries were life-threatening.” The evidence showed that the victim in this case “was shot in the side of the head, resulting in likely subdural hemorrhaging, bone fractures, and excessive scalp swelling. Although the exact reasons remain unclear, the victim’s injuries also required his transfer to a second hospital. There was also testimony that the victim was bleeding profusely, had tunnel vision, and was going into shock before the ambulance arrived. Therefore, the trial court did not clearly err when it found by a preponderance of the evidence that the victim’s injuries were life-threatening.”
Sufficiency of the evidence; People v. Nowack; People v. McFarlane; Self-defense; People v. Stevens; Deadly force; MCL 780.972(1)(a); People v. Guajardo; Nondeadly force; MCL 780.972(2); Accident defense; People v. Hess; Intent; Credibility; People v. Dunigan; Sentencing; Scoring of OV 3 (injury to victim); MCL 777.33(1)(c); “Life threatening”; People v. Chaney; Scoring of OV 9 (number of victims); MCL 777.39(1)(c); People v. Sargent; People v. McGraw; Harmless error; People v. Witherspoon
The court held that there was sufficient evidence to support defendant’s convictions, and that she was not entitled to resentencing. She was convicted of FIP, two counts of felony-firearm, AWIGBH, and felonious assault for shooting her housemate during a dispute. The trial court sentenced her to 4 to 10 years for AWIGBH, 1 to 4 for felonious assault, 1 to 5 for FIP, and 2 years for each felony-firearm conviction. On appeal, the court rejected her argument that the evidence showed she acted in self-defense. Although she claimed the victim “was the one to introduce the gun into the situation, the trial court found much of defendant’s testimony illogical and improbable, which had a damaging effect on her overall credibility.” Further, she “had called the police earlier in the evening in response to her altercations with” another housemate. However, she “did not call the police to seek [the victim’s] removal from the home after their physical altercation. And according to both” the victim and defendant’s daughter, “there was no struggle over the gun that could have resulted in an accidental discharge.” In addition, “the initial physical altercation—along with any reasonable belief defendant may have held regarding her need to act in self-defense—had clearly ceased before defendant retrieved the gun, shot [the victim], or brandished the gun at” her daughter. There was sufficient evidence from which the trial court could find that defendant “was not acting in self-defense and did not accidently discharge or brandish the gun.” The court also rejected her claim that she was entitled to resentencing as the trial court erred in scoring OVs 3 and 9. As to OV 3, it noted that, given the evidence of substantial blood loss, the trial court did not err by finding the victim’s “gunshot wound was, by nature, life threatening for purposes of OV 3, even though [she] received prompt medical attention.” As to OV 9, it found that, in light of defendant’s daughter’s “close proximity to the muzzle of the gun when it was fired, the trial court did not err by treating [her] as a victim placed in danger of physical injury for purposes of scoring OV 9.” Affirmed.
Divorce; Property division; Hodge v. Parks; Distinguishing Reeves v. Reeves; Presumption that income earned during the marriage is marital property; Cunningham v. Cunningham; Award of 401(k) accounts; MCL 552.18(1); Distinguishing McNamara v. Horner
The court disagreed with the trial court to the extent it considered the value of appreciation that accrued to defendant-ex-husband’s 401(k) as his separate property on the basis “it was ‘passive appreciation’ that occurred without efforts from either party; it was part of the marital estate.” But it held that under the circumstances, the award of each party’s “own appreciated 401(k) plan was fair and equitable.” Thus, it affirmed the divorce judgment. Plaintiff-ex-wife argued that “she was entitled to a portion of the appreciation that accrued to defendant’s 401(k) account during their two-year marriage.” Reeves, on which defendant relied, was distinguishable as it concerned real property, not a 401(k) plan, and “financial contributions were made to the 401(k) plan with income earned by defendant during the marriage—income which is presumed to be marital property.” The court noted that these “contributions certainly impacted the amount of appreciation that accrued. Thus, the growth of defendant’s 401(k) plan was not achieved in a ‘wholly passive’ manner. It was achieved with contributions from marital property. But more importantly, MCL 552.18(1) specifically mandates that vested retirement benefits accrued during the marriage must be considered part of the marital estate.” But the statute does not prohibit a trial “court from awarding each party their own 401(k) accounts during the division of the marital estate—which would include the amount of appreciation that accrued to each” account during the marriage. And as noted by the trial court, they both contributed $18,500 a year “toward their respective 401(k) accounts during the marriage. The fact that” his grew more than hers “was simply because he had substantially more in his account before” they were married. There was no evidence either of them “did anything else to cause the significant growth of defendant’s 401(k) account. In other words, it would have achieved the same growth even if” they were not married. And her account “also appreciated during the marriage though the use of the exact same amount of marital funds. The amount of appreciation to their respective 401(k) accounts was in proportion to the value each had as premarital assets.”
Transfer of venue; MCR 2.223(B)(2); Failure to pay the costs related to change of venue; “Must”; Great Lakes Gas Transmission Ltd. P’ship v. Markel; Motion for relief from judgment under MCR 2.612(C)(1)(a) & (f); Failure to support the motion; “Extraordinary circumstances”; Rose v. Rose
In this case dismissed for failure to pay the costs related to change of venue, the court affirmed the denial of plaintiff’s motion for relief from judgment due to plaintiff’s failure to factually support the motion. After filing its action for first-party no-fault benefits against defendant in another county, plaintiff agreed that venue was proper in Wayne County. The order changing venue stated that plaintiff would pay all related required costs pursuant to MCR 2.223(B)(2). But plaintiff failed to do so, and the circuit court dismissed the case under the court rule after 56 days. The court noted that at the time the order was entered, the rule did not envision any “exercise of discretion. Dismissal for failure to pay the transfer fee was a mandatory sanction.” In moving for relief from judgment under MCR 2.612(C)(1)(a) and (f), plaintiff only asserted “that its ‘failure to pay the transfer fee was due to an oversight and was not deliberate.’” Although the court was confident that this was so, it was “troubled by plaintiff’s failure to support that assertion with any evidence—such as an affidavit explaining why plaintiff’s neglect should be deemed ‘excusable.’” It suspected that the “circuit court judge noticed the same omission. And although the plaintiff is certainly prejudiced by dismissal, plaintiff has not substantiated any ‘extraordinary circumstances’ mandating that” this judgment be set aside. Reviewing the denial of relief from judgment for an abuse of discretion, the court noted that absent “any facts explaining or supporting plaintiff’s request for relief from judgment, we are hard pressed to find the circuit court’s decision unreasonable or unprincipled.”
Wrongful death; MCL 600.2922; Proximate cause; Skinner v. Square D Co.; Craig ex rel Craig v. Oakwood Hosp.; Personal representative (PR)
Finding the evidence insufficient to show an issue as to proximate cause, the court affirmed the trial court’s order granting defendant-Hope Network summary disposition in this wrongful death case. Plaintiff, PR of his son’s (Riahi) estate, filed this action against Hope Network. Riahi was living in an adult foster-care home operated by Hope Network. “Plaintiff alleged that Riahi’s cardiac arrest was ‘caused by Hypovolemic shock which had caused his organs to shut down.’” He claimed “that Hope Network was the proximate cause of Riahi’s death because its agents negligently failed to have Riahi transported by ambulance to the hospital emergency department, ‘where he required and would have received electrolyte replacement by IV to restore fluids and prevent hypovolemic shock, and death.’” On appeal, plaintiff argued that the trial court erroneously ignored Dr. A’s expert testimony as to causation, and thus erred by granting summary disposition to Hope Network. A “reviewed the progress notes of Hope Network’s agents from the weekend before Riahi’s death and familiarized himself with the fact that Riahi had an indwelling catheter, which prevented his body from reabsorbing liquids if he became dehydrated. [A] also spoke with Riahi’s father, who reported that during a telephone conversation with Riahi that weekend Riahi had stated he was thirsty.” The court held that A’s “testimony amounted to nothing more than speculation." The court noted that expert "testimony must be supported by facts in evidence, and while the evidence need not negate all other possible causes, the causation evidence must exclude other reasonable hypotheses with a fair amount of certainty.” In this case, A’s testimony did “not exclude other reasonable hypotheses with a fair amount of certainty. Instead, it amounts to 'a mere possibility or a plausible explanation,' which is insufficient to establish causation." The court held that “just because dehydration can result from vomiting and diarrhea does not mean that it did so in this case.” On this record, like A, “the fact-finder can only guess that there is a cause and effect relationship between Riahi’s diarrhea and vomiting and his death. Because ‘we cannot permit the jury to guess,’” summary disposition was warranted.
Termination under § 19b(3)(h) (parental incarceration); A parent’s significant liberty interest in the care & custody of his or her children; In re JK; Principle that a trial court may not terminate a parent’s parental rights solely on the basis of parental incarceration; In re Mason; Principle that only one statutory ground must be met; In re Olive/Metts Minors; In re Powers Minors
Holding that § (h) was met, the court affirmed termination of respondents-parents’ parental rights. Their parental rights were terminated based on their criminal convictions and lengthy prison sentences. On appeal, the court rejected their argument that the DHHS did not prove they would be unable to care for the child within a reasonable period of time because they had pending appeals. “At the time of the termination hearing, respondents were each incarcerated and had been sentenced to serve” 30 years. As such, “at the time of the termination, the condition requiring that a parent ‘is imprisoned . . . for a period exceeding 2 years . . .’ was met.” It also rejected respondent-mother’s claim that § (h) did not apply in her case because it was reasonably likely that her imprisonment would end within 9 to 14 months. “The trial court appropriately considered whether [her] appeal was reasonably likely to be resolved in a reasonable time given the child’s age.” The court further rejected respondent-father’s contention that the trial court erred by finding an appeal would necessarily take too long when he could have received the results of his appeal within three to six months. “The trial court appropriately considered the entire length of time it would take for [his] criminal case to be resolved when determining whether it was reasonably likely that [he] would be able to provide the child with proper care and custody within a reasonable time.”
Removal of a child from a mother’s care & returning the child to the care of the father; Decision on a request for rehearing; In re Burns; Legal error; In re AP; Distinguishing In re Sanders
Holding that the trial court abused its discretion when it entered the order after rehearing removing respondent-mother’s child (K) from her care and returning K to her father’s care because it misapplied the law, the court vacated and remanded. K was removed from respondent and placed with the father when the DHHS filed a petition to terminate respondent’s parental rights. Respondent substantially complied with her treatment plan and a referee ordered K returned to her care. But the father requested “review of the referee’s recommendation, which the trial court treated as a request for a rehearing under MCR 3.992(A). After a hearing,” it entered the order challenged on appeal. The court found that the trial court’s reliance on the Supreme Court’s opinion in Sanders to support its order removing K from respondent’s care and returning her to the father’s care was misplaced. In this case, K was initially placed in the father’s care on a temporary basis after K was removed from respondent’s care. The trial court did not order the father to comply with a case service plan and K was returned to respondent’s care only after she “successfully completed her case service plan.” Thus, the trial court did not infringe on the “father’s constitutionally protected parent-child relationship without a specific adjudication of” the father’s fitness. The trial court’s reason for returning K to the father’s care was legally incorrect.
Termination under § 19b(3)(j); In re White; In re Schadler; In re Frey; Children’s best interests; In re Olive/Metts Minors; Reasonable reunification efforts; In re Utrera; In re Hicks/Brown; In re Fried
Holding that § (j) existed, termination of respondent-mother’s parental rights was in her five children’s best interests, and the trial court did not plainly err by determining that the DHHS made reasonable efforts to preserve and reunify the family, the court affirmed. “Respondent has a history of severe anxiety and depression, which causes her to ‘shut down’ and makes it difficult for her to fulfill her responsibilities.” The individual who performed her “psychological evaluation testified that based on her mental health issues, it was very likely that she would not be able to manage taking care of the children and that they would have to be removed from her care again.” As the trial court stated, they “came into care because of the severe medical neglect of [D], and the children would ‘require significant services moving forward.’” They participated "in a variety of speech, behavioral, physical, and occupational therapy services. However, the caseworker testified that respondent had ‘not shown any initiative’ in engaging with these services as she never attended these sessions or even asked about the children’s progress with these services.” Given her “continuing mental health issues and lack of interest in the children’s developmental needs, the trial court reasonably concluded that [they] would either suffer additional, possibly more serious, medical neglect or come back into the child protection system.”
Termination under §§ 19b(3)(b)(i), (j), (k)(ii), & (k)(ix); Admission of the child’s statement under MCR 3.972(C)(2); In re Archer; Trustworthiness; Sexually transmitted infections (STIs)
The court affirmed the trial court’s order terminating respondent-father’s parental rights and its underlying decision to admit the child (R’s) statement under MCR 3.972(C)(2). The case arose out of allegations that he sexually abused R. He argued the trial court abused its discretion when it admitted R’s out of court statements through the testimony of D, an employee of Children’s Services, under MCR 3.972(C)(2). Specifically, respondent argued that the circumstances concerning the statements were unreliable because D did not have training to conduct forensic interviews of children. But D was not interviewing R when R made the statement. D specifically stated she had not asked R “any questions or otherwise prompted [R] to make any type of statements.” Rather, D was reading R “a book that explained the differences between appropriate and inappropriate touching. While reading that it was inappropriate to be touched in the ‘swimsuit area,’ [R] stated ‘that her daddy touched her down there,’ and gestured to her vaginal area.” Thus, D’s interaction with R was not an interview because D was not actually asking R any questions. As a result, respondent’s argument was unconvincing because D was not interviewing R, and R’s “statement was unprompted and not elicited through questioning.” The record also established that R’s mental state during her meeting with D “supported the trustworthiness of her statement.” Other than speculation, respondent did not produce any evidence that R “was influenced, coached, or intimidated.” Further, R’s statements were supported by other trial evidence. After R “was diagnosed with chlamydia and herpes, her primary caregivers were tested for STIs. Only respondent tested positive for herpes and chlamydia. [Dr. S], a board-certified child abuse pediatrician, explained that chlamydia is transmitted by sexual contact. She further testified that she had never seen a case of chlamydia that was transmitted in a nonsexual manner. Although it is possible for a fetus to contract chlamydia if the mother has chlamydia,” given that R was diagnosed with chlamydia at the age of three, S opined that she “contracted the STI through penile penetration and not at birth.” Further, R’s mother “did not test positive for chlamydia.” Finally, respondent’s half-sisters “testified that respondent sexually abused them when they were children.”
Termination under § 19b(3)(g); In re VanDalen; In re HRC; Reasonable reunification efforts; In re Frey; Children’s best interests; In re White; In re Medina; In re Trejo Minors; In re CR; In re Olive/Metts Minors
Holding that § (g) was established, rejecting respondent-mother’s argument that the DHHS failed to make reasonable reunification efforts, and deciding that the trial court did not clearly err by finding that termination was in the children’s (R, T, S, and X) best interests, the court affirmed. She was unable to provide proper care and custody for the elder children when they were taken into care in 2018 “because she was unemployed and was essentially homeless.” Specifically, she “and the elder children moved from one person’s house to another and the house from which the elder children were removed was described as ‘deplorable.’” Also, she was not ensuring that R’s rheumatoid arthritis was properly treated. When X was taken into care in 2019, “respondent continued to be without stable housing and employment and had unresolved substance abuse issues.” She never resolved the unemployment issue. Also, at the beginning of the case, she tested positive for meth and amphetamines, and she was not receiving services for her substance abuse at the time of the termination hearing. Although she “completed a parenting class and supportive visitation services during the” case, she never showed “that she was able to independently parent the children and her visitations with the elder children were always supervised.” Further, there was no evidence that she “would have been able to provide proper care and custody within a reasonable time given” the children’s ages. She displayed “poor judgment and a lack of commitment to her sobriety and to regaining custody of the” children during the case. Given the lack of evidence that she “could maintain her sobriety, stable housing, and employment, it is unlikely that she would do so within a reasonable time.” At the time of termination, R was 5 years old, T was 3 years old, S was 21 months old, and X was 9 months old. The elder children had been in care for 14 months, and X had been “for a majority of his life. The children required consistency and permanency, and [R] required a caregiver who would ensure that her medical issues were being monitored and treated.”