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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Legal malpractice; Discovery; Principle that an arbitrator cannot be compelled to testify or otherwise answer on matters of decision-making; MCL 691.1694; Tomasik v State; Standing; Whether a party is “aggrieved”; League of Women Voters of MI v Secretary of State; Principle that orders of a court must be obeyed even if clearly wrong unless & until vacated or reversed by a higher court; In re Contempt of Dudzinski; Effect of a failure to request a transcript that does not exist; MCR 7.210(B)(1)(a)
The court held that the trial court abused its discretion by asking the arbitrator in the underlying arbitration whether she meant to award plaintiff-appellant the monetary amount stated in the arbitration award. In the underlying action, plaintiff sued his former employer for wrongful termination and received a large monetary award in arbitration. The award stated he should receive compensation as calculated by one chart, but then listed the lower amount from a second chart. Defendant (his attorney in the underlying action) “apparently did not notice the discrepancy and confirmed the award[.]” The case was then dismissed. Plaintiff later filed this legal malpractice action against defendant. During discovery, the trial court sent “a question to the arbitrator to determine whether the arbitrator meant to award” plaintiff the amount stated in the arbitration award. Plaintiff claimed any such inquiry would be improper because “arbitrators, just like judges, cannot be asked to explain their decisions after the fact.” The trial court disagreed and ordered the parties to send the question to the arbitrator. On appeal, the court rejected defendant’s argument that it should not even address the merits of the appeal because plaintiff lacked standing and he failed to order the transcript for a trial court hearing. He had “standing because if the arbitrator stated that the monetary award is accurate it would be adverse to” his malpractice case against defendant. Also, defendant’s contention that the trial court’s order did not compel the arbitrator to answer was “clearly belied by the plain language of the order itself: the order does not offer the arbitrator a choice, and orders of a court must be obeyed even if clearly wrong unless and until vacated or reversed by a higher court.” As for the hearing, plaintiff presented evidence it “was not recorded and, therefore, no transcript exists.” As such, he could not “be faulted for failing to comply with MCR 7.210(B)(1)(a).” As to the merits of his appeal, “[b]y asking the arbitrator to explain what she meant to do with her award, the trial court asked her, in effect, to give evidence as a witness and, therefore, to testify about the amount of money she awarded [plaintiff]. This was improper. The arbitrator could have been asked to clarify the factual question at issue in this case before the arbitration award was finalized and that underlying case was dismissed. But to ask the arbitrator a factual question now, in a separate proceeding, would violate MCL 691.1694(4).” Reversed and remanded.
Public nuisance claim under the Aeronautics Code related to trees near an airport; MCL 259.156; Whether state or federal standards should be used to determine the approach protection area (APA); Whether a hearing was required on the issue of whether the trees were a public nuisance; MCR 3.601; “Unclean hands”; Whether the trial court properly addressed the validity of the original easement; Brighton Airport Association (BAA)
The court held that under the public nuisance provision at issue, MCL 259.156 (part of the Aeronautics Code), “the state-defined APA controls, not the area defined by federal regulations.” It also concluded the evidence established a genuine issue of material fact as to whether trees on plaintiff-Yopek’s “property encroached on the state-defined APA.” Thus, it reversed the partial grant of summary disposition to defendant-BAA and remanded. It instructed the trial court on remand to address plaintiff’s “claim that BAA acted with ‘unclean hands’ by expanding or otherwise modifying its landing area.” But the trial court should not “consider whether the original easement was valid unless the parties agree to place that issue before” it. The court agreed with plaintiff that “she was entitled to a hearing on the issue of whether her trees constituted a public nuisance,” but it noted that a trial court in such an action “may grant summary disposition under MCR 2.116(C)(10) if there is no genuine issue of material fact, as in any other civil action.” As the trial court did so in this case, the court turned to the question of whether it erred in rejecting plaintiff’s contention “that state standards for identifying APAs apply, and instead applied federal standards.” It agreed with plaintiff that the trial court erred in using the federal standards. The court found that on its face, MCL 259.156 “references only the state plan for approach protection areas. It does not reference federal regulations at all.” The court noted that the “Legislature was free to include federal regulations, or otherwise not limit the statute to the state plan for protection areas, in the language of MCL 259.156. It did not do so.” Rather, the statutory language “unambiguously states that a public nuisance is determined by whether an obstacle encroaches on ‘any approach protection area determined by the Michigan aeronautics commission in the state plan for approach protection areas.’” As a result, under MCL 259.156, “only structures or plantings that encroach on APAs as defined by our state Aeronautics Commission constitute a nuisance.” Given this clear language, judicial construction is not permitted, and expanding “MCL 259.156 to include encroachments according to federal regulations, in addition to those specifically identified as contrary to the Aeronautics Code, is impermissible.”
Uninsured/underinsured motorist (UM/UIM) benefits; Independent medical examination (IME); Waiver of examination under oath (EUO); “Reasonably”; Breach of the insurance contract; No-fault PIP benefits
As to plaintiff-Gueye’s UM/UIM claim, the court affirmed the “portion of the trial court’s order of dismissal because the insurance contract governs this coverage and requires compliance with a requested EUO and IME before filing suit.” But it remanded for determination as to whether dismissal should be with or without prejudice. As to his no-fault claim, the court vacated the trial court’s order of dismissal and remanded “for further proceedings under the proper analysis for dismissing a case under MCL 500.3153.” The case arose out of an auto accident. Gueye filed a claim with defendant-State Farm, his auto insurer. State Farm argued that his “failure to attend the EUO and the IME—prerequisites to recovery under the applicable policy—precluded him from collecting UM/UIM benefits. State Farm also contended that Gueye’s failure to appear for an IME justified dismissal of the claim for PIP” benefits. Because UM/UIM benefits are not required by the No-Fault Act, the terms of the insurance contract control any potential entitlement to these benefits. The trial court correctly observed that the contract unambiguously provided that “[p]laintiff’s submission to both an [IME] and an [EUO] are required as conditions precedent to” filing suit. This was a valid and enforceable contract provision, and it was “undisputed that Gueye failed to submit to both the IME and EUO that State Farm requested. Therefore, the trial court did not err in dismissing Gueye’s claim for UM/UIM benefits because there was no genuine issue of material fact that Gueye violated a contractual requirement that was a necessary condition precedent to filing suit.” Gueye asserted “that State Farm ‘tacitly’ waived the EUO requirement through its correspondence with Gueye’s counsel and thus” could not rely on this policy provision. This argument misconstrued the facts and the law. “Gueye failed to establish that State Farm expressly agreed to waive its contractual rights or made a declaration that inferred an intent to waive strict performance of the contract. Gueye repeatedly claims State Farm admitted the EUO was unnecessary, but a review of the e-mail communications” revealed no such admission. And contrary to his argument, its final e-mail response did “not qualify as silence. It was merely a question about Gueye’s potential lawsuit.”
Damages caused by the introduction of a substance (Lascadoil) into animal feed; The economic loss doctrine; Whether the case involved the sale of goods for commercial purposes, or the sale of products for use by consumers; Motion to amend the complaint to include a claim for breach of an implied warranty of merchantability; Disclaimer; MCL 440.2316(2); Unconscionability; MCL 440.2302(1)
The court concluded the trial court did not err by holding that the economic loss doctrine barred plaintiffs’ negligence claim. Also, their claim for breach of an implied warranty of merchantability was futile, and the trial court did not abuse its discretion by denying their motion to amend to add a futile claim. Finally, the court found that plaintiffs’ unconscionability claim lacked merit. They contended, among other things, that the trial court erred in granting defendant-Zoetis’s summary disposition motion based on the economic loss doctrine. The first issue was whether the case involved “the sale of goods for commercial purposes, or the sale of products for use by consumers.” Plaintiffs sought “to recover for economic losses related to the sale of goods between commercial entities for commercial purposes.” While they emphasized on appeal that they were “not in privity with Zoetis, there was nevertheless a chain of commercial transactions in which each commercial purchaser had the ability to negotiate terms and protect itself from economic losses related to the product.” In short, the economic loss doctrine applied to the facts here. Plaintiffs contended that the doctrine did “not apply because plaintiffs’ claims did not arise from a sale of goods but from a contract for services—specifically waste management services—between Zoetis and” defendant-Heritage. While plaintiffs were “correct that the economic loss doctrine does not apply when ‘the claim emanates from a contract for services,’” they were mistaken in their contention that their claims arose from a service contract. The primary purpose of the transaction “was the sale of Lascadoil for profit, and any waste collection or waste transportation services were merely incidental to this primary purpose of selling goods.” This case involved the sale of goods subject to the economic loss doctrine. Plaintiffs also asserted that the “doctrine should not apply because the case does not involve a mere contractual disappointment or minor defect in quality, but instead constitutes a ‘disaster outside of a contract’ for which plaintiffs should be allowed to recover in tort.” Fundamentally, their claim was that “they received animal feed unsuitable for animal consumption. Claims that relate to suitability and quality of a product, which result in purely economic losses, are properly redressed through contract.” Thus, the trial court did not err by holding that the economic loss doctrine barred their negligence claim. Affirmed.
Ineffective assistance of counsel; Failure to object; Prejudice; Strickland v Washington; People v Trakhtenberg
In an order in lieu of granting leave to appeal, the court vacated the part of the Court of Appeals judgment (see e-Journal # 76513 in the 11/30/21 edition) that concluded defendant did not suffer any prejudice from “trial counsel’s deficient performance in failing to object when the defendant’s son impermissibly opined on the defendant’s credibility[.]” It remanded the case to the Court of Appeals for reconsideration of this ineffective assistance of counsel claim, concluding that while “the Court of Appeals cited the correct standard for assessing prejudice” under Strickland, it did not apply this standard. Defendant “was not required to show that, but for counsel’s deficient performance, there was insufficient evidence to sustain his convictions. Rather, prejudice is established where a defendant shows that ‘but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.’” The court directed the Court of Appeals on remand to resolve defendant’s claim under this standard. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
Request to file a notice of insanity & for an exam at the Center for Forensic Psychiatry; MCL 768.20a(2); MCL 768.21a(1)
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 76262 in the 10/8/21 edition), the court vacated two trial court orders and remanded the case to that court. It directed the trial court on remand to reconsider “defendant’s request to file a notice of insanity and his request for an examination at the Center for Forensic Psychiatry pursuant to MCL 768.20a(2) and MCL 768.21a(1).” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
Ineffective assistance of counsel for failing to object to expert testimony; Admissibility; MRE 702; Vouching for the complainant’s credibility; Distinguishing People v Thorpe; Sentencing; Scoring of OVs 13 & 19; Constitutionality of MCL 768.27a; Separation of powers doctrine; Propensity evidence; Due process
The court held that defendant’s trial counsel was not ineffective for failing to object to expert testimony, that there were no errors in scoring OVs 13 and 19, and rejected defendant’s challenges to the constitutionality of MCL 768.27a. Thus, it affirmed his CSC I conviction and sentence as a second-offense habitual offender to 15 to 25 years with credit for 207 days served. He argued, among other things, that “his trial counsel provided ineffective assistance by failing to object to the testimony of licensed social worker and child sexual abuse therapist” C. Defendant argued that C’s “testimony was not scientifically valid and thus could not assist the jury in understanding victim behavior.” In his motion for a new trial, he “submitted an affidavit of a psychologist that stated that there was ‘no scientific consensus, let alone empirical research, to support’ many of [C’s] statements. The affidavit further asserted that research in the area had some deficits, and did not fully support [C’s] assertions regarding delayed disclosure of abuse, victims’ fears about being believed or separated from their families, victims’ memories, and victims’ recantations.” The court concluded that while defendant’s affiant may disagree with several of C’s claims, his affidavit did “not establish that the totality of [C’s] testimony lacked reliability or admissibility. [C] defined the parameters of his knowledge base, which were adequate to qualify him. Defense counsel had opportunity to thoroughly cross-examine [C] and challenge any of his testimony but did not interrogate [C] about research or studies that either supported or contradicted his opinions. Defendant failed to establish any ground for doubting [C’s] reliability.” The court found that C’s “testimony provided a general explanation of sexual-assault victims’ behavior following an assault. [C] gave testimony regarding a wide range of many aspects of such behavior. His expert testimony properly gave a general explanation of ‘the common postincident behavior of children who are victims of sexual abuse.’” Also, his testimony did not vouch for the complainant’s credibility. Defendant’s claim that his trial counsel was ineffective for failing to object to the other expert’s (Dr. S) “testimony about the treatment she prescribed for the complainant, on the ground that [S] thus vouched for the complainant’s credibility,” also failed. Distinguishing Thorpe, the court held that S “did not provide any diagnosis, gave no opinion regarding the complainant’s statements, and testified that she directed follow-up care for testing for sexually transmitted disease infection from contact with bodily fluids. [S] gave no testimony respecting whether the complainant had been sexually abused.”
Sentencing; Scoring of OV 10 (exploitation of a vulnerable victim); MCL 777.40(1)(b); “Exploit” (MCL 777.40(3)(b)); People v Yarbough; People v Wilkens; Operating while intoxicated (OWI)
Holding that under MCL 777.40(3)(b), the “definition of ‘exploitation’ intrinsically establishes an element of intent: any manipulation must have been done with a goal of accomplishing something selfish or unethical[,]” the court found the trial court erred in scoring 10 points for OV 10. Because subtracting these points would change defendant’s guidelines, it vacated her sentence and remanded for resentencing. She pled no contest to possession of a controlled substance analogue, OWI (occupant under 16 years of age), and second-degree child abuse after being involved in a single-vehicle accident with her 6-year-old child in the vehicle. She appealed her sentences, challenging only the scoring of OV 10. The court agreed with defendant that there was “no evidence of ‘exploitation’ for purposes of OV 10. Within the meaning of the statute, exploitation requires manipulation of the victim ‘for selfish or unethical purposes.’” The court determined it did not have to “consider the definition of ‘manipulate.’” It presumed for purposes of resolving this appeal, but expressly did not decide or imply, “that defendant’s conduct constituted ‘manipulation.’” The court reviewed cases in which it found “the definition of being ‘for selfish or unethical purposes’” was satisfied, and concluded that “for purposes of OV 10, ‘exploitation’ means the defendant intended to gain something from the manipulation of the victim at some kind of cost to the victim. In contrast, an apt analogy to this case would be a situation in which a parent with a child at home turns on a gas stove, gets drunk, and falls asleep, only for the gas to explode thereafter, injuring the child. Defendant’s conduct here was grossly irresponsible, and she certainly should be imputed the knowledge that her conduct was grossly irresponsible.” But based on the record, the court could not find any evidence she placed her child in the vehicle “and drove drunk for the purpose of gaining something from” the child at a cost to the child. The court could not “conclude that OV 10 was intended by the Legislature to extend to mere irresponsibility, no matter how egregious and no matter how vulnerable the victim. The sentencing court certainly may take into account how defendant’s irresponsible misconduct harmed her child; however, the facts of this case do not fit OV 10.”
PIP benefits; Claims through the Michigan Assigned Claims Plan (MACP)/Michigan Automobile Insurance Placement Facility (MAIPF); MCL 500.3173a(4) (governing fraudulent insurance acts made to the MAIPF or to insurers assigned by the MACP); Candler v Farm Bureau Mut Ins Co of MI; “Claim”; Griffin v Trumbull Ins Co; “Action”; Haydaw v Farm Bureau Ins Co
The court held “that the second element of a ‘fraudulent insurance act’ under MCL 500.3173a(4) as discussed in Candler—whether the statement supports a ‘claim’ for no-fault benefits—refers to statements offered to the MAIPF or an assigned insurer during the prelitigation claims process. Statements made for the first time during discovery cannot form the basis of a fraudulent insurance act under MCL 500.3173a(4).” Thus, as there was no dispute the attendant care and replacement service forms at issue “were submitted in response to a discovery request and not in support of the initial claim for benefits to the MAIPF or” defendant-AAA (the assigned insurer), the trial court erred in granting AAA summary disposition and dismissing plaintiff-Estate’s claims. Plaintiff’s decedent sued AAA for refusing to pay PIP benefits, and plaintiff proceeded with the case after he passed away. In successfully moving for summary disposition, AAA argued “the Estate was ineligible for PIP benefits because it committed a fraudulent insurance act by submitting false statements in a discovery response to interrogatories.” Plaintiff argued on appeal that the “forms were not statements made in support of a claim for no-fault benefits because they were produced during discovery.” In determining “the proper interpretation of the word ‘claim’ in MCL 500.3173a(4)” the court considered the Supreme Court’s analysis in Griffin of its use in MCL 500.3114. The court concluded the “Legislature’s consistent use of the word ‘claim’ to describe a request for insurance benefits and use of the word ‘action’ to describe a lawsuit later filed to recover those benefits is presumed to be an intentional choice . . . .” The court noted that “MCL 500.3173a(4) exclusively uses the word ‘claim’ to describe a fraudulent insurance act that bars an individual from receiving PIP benefits through the MACP.” Thus, the court held that “statements submitted during discovery, after an action for recovery has been filed, are not statements offered in support of a claim to the MAIPF or the assigned insurer.” Although Haydaw involved a no-fault policy’s fraud provision, while this case involved an assigned claim “under the MACP and is governed exclusively by statute . . . . much of” Haydaw’s rationale was persuasive here, and applying its “holding in this context is consistent with the plain language of MCL 500.3173a(4).” Reversed and remanded.
Medical malpractice; Statute of limitations (SOL); MCL 600.5805(8); Tolling upon service of an amended notice of intent; MCL 600.2912b(3); MCL 600.5856(c); Extended tolling during the COVID-19 pandemic; Administrative Order 2020-3; Additional tolling to add defendants; Charpentier v Young; Due diligence; Faberberg v LeBlanc; Whether Charpentier is precedentially binding; Dykes v William Beaumont Hosp; Restrictions on equitable tolling since Charpentier; Distinguishing Bryant v Oakpointe Villa Nursing Ctr, Inc, Devillers v Auto Club Auto Ass’n, & Trentadue v Gordon
The court held that the trial court erred by finding plaintiff-patient failed to act with due diligence where he filed his motion to amend the complaint to add defendants-additional medical providers within the applicable SOL. Based on the general tolling period, and the extended tolling period during the pandemic, defendants calculated the expiration of the SOL as 1/6/21, and sought summary disposition. Plaintiff claimed that because defendants did not consider that the SOL was tolled for 9 extra days while his motion to amend the complaint to add defendants was pending pursuant to Charpentier, the SOL did not expire until 1/15/21. Defendants countered that Charpentier was not binding, and even if it were, the SOL was not tolled as plaintiff failed to act with due diligence. The trial court agreed with defendants and granted their motion. On appeal, the court rejected defendants’ position on Charpentier, noting it was a “final Supreme Court disposition” of an application, contained “a concise statement of the applicable facts,” and explained the “reasons for the decision.” Based on the facts and reasoning cited in the order, “the Supreme Court held that the [SOL] was tolled while the motion to amend was pending. Charpentier meets all the requirements to be precedentially binding . . . .” In addition, none of the cases cited by defendants “overrule the specific principle outlined in Charpentier—that the [SOL] is tolled while a motion to amend a complaint to add defendants is pending.” And the court had “no authority to reconsider or overrule Supreme Court precedent. Charpentier remains good law until the Supreme Court decides it isn’t.” Further, Charpentier’s precedential value was “not negated simply because” the court had not “expressly cited it in a published opinion in recent years.” Finally, the court found that plaintiff used due diligence in seeking to add defendants to the lawsuit. He “filed his motion to file an amended complaint within the statutory limitations period and tolled the running of that period until the [trial] court made its decision. [He] then filed his amended complaint before the [SOL] expired. This was due diligence and . . . defendants were not entitled to the dismissal of the claims against them.” Vacated and remanded.
Quiet title action; Principle that a cotenant may only convey their own interest in property; Whether defendants were granted “affirmative relief” when they only requested dismissal; “Power of appointment”
The court held that the trial court did not err in granting an order to dismiss (which required that three deeds be recorded) because this was consistent with a valid and enforceable 1993 judgment and order. It rejected plaintiff-Catherine Braun's assertion that the trial court granted defendants unrequested affirmative relief. But it concluded the trial court erred in inappropriately limiting her power of appointment. Thus, the court affirmed in part, reversed in part, and remanded “for an order indicating that Catherine’s power of appointment is limited to either her children or the individuals named in her will.” Catherine and defendant-William Fishbeck are siblings. Defendants-Harriet and Murray Fishbeck are their deceased parents. In 1993, the probate court entered an order resolving a dispute between the parties over the disposition of property. The court later affirmed. In “2019, Catherine conducted a title search and decided that the interests in the property had not been properly recorded.” She filed this action for quiet title and declaratory judgment, asking the trial court “to enter an order modifying the property’s title to be consistent with the 1993 judgment.” Defendants successfully moved for summary disposition. On appeal, the parties disputed whether the court’s use of the word “farm” in its prior opinion meant the whole property, or whether the prior litigation only included the property within a trust estate. The court noted that while the parties asked it “to scrutinize the language of documents dating back nearly 50 years, the resolution of this issue rests on the simple premise in property law that a cotenant may only convey their own interest in property.” The court noted that a “presently existing interest” is required for a valid conveyance. “At the time of their deaths—Murray’s in 1981, and Harriet’s in 1990—William already owned 1/3 of the property. Indeed, the interest was conveyed to him on [2/13/81], with the creation of the tenancy in common. Thus, Catherine can only have access to 1/2 of 2/3 of the property, because Harriet and Murray’s trusts could not include the 1/3 owned by William.” Thus, the trial court did not err – its ruling granting the order to dismiss was consistent with the 1993 judgment and order. In addition, given that consistency, there was no affirmative relief granted to defendants.
A former property owner’s entitlement to surplus proceeds where the proceeds from a tax foreclosure sale exceed the amount owed; Rafaeli, LLC v Oakland Cnty; Constitutionality of allowing the foreclosing government unit to retain surplus proceeds pursuant to the General Property Tax Act (GPTA); Retroactivity; Pohutsky v Allen Park; Devillers v Auto Club Ins Ass’n; Whether the decision clearly established a new principle of law, resulting from overruling case law that was clear & uncontradicted; Adams v Department of Transp; Whether Rafaeli applies retroactively; Proctor v Saginaw Cnty Bd of Comm’rs
The court held that the trial court did not err by finding Rafaeli applied retroactively. Plaintiffs-property owners claimed defendants-county and treasurer foreclosed on their property under the GPTA because of delinquent taxes, unpaid assessments, fees, penalties, and/or interest. Following the foreclosures, the properties were sold at auction. According to plaintiffs, the sale prices exceeded the taxes, fees, penalties, and interest they owed, which resulted in a surplus of funds. They alleged entitlement to receive the excess funds under the holding of Rafaeli. The trial court denied defendants’ request to dismiss plaintiffs’ claims, finding that because Rafaeli did not establish a new rule of law it applied retroactively. On appeal, the court rejected defendants’ argument that the trial court erred because Rafaeli should only apply prospectively or with limited retroactivity, and therefore, it did not apply to plaintiffs’ claims. “Proctor did not presume to address every possible case and circumstance nor did it limit its retroactivity to only the matters before” the court in that case. To remove uncertainty, the court held that “Rafaeli did not announce a new rule of law but returned the law to that which was recognized at common law and by the ratifiers of the Michigan Constitution . . . and should be given full retroactive effect.” Further, Rafaeli applied to this case “even if not given full retroactive effect because the instant case was filed after Rafaeli was decided.” The parties were “under the misconception that Rafaeli would need retroactive effect in order to apply to the instant case, apparently because the foreclosure sale at issue in the instant case occurred before our Supreme Court’s Rafaeli decision. But for the purposes of this analysis, the relevant date is when plaintiffs filed their complaint commencing the case, not when the underlying conduct at issue in the complaint occurred.” Thus, because they filed this "case after Rafaeli was issued, Rafaeli applies regardless of whether that judicial decision is applied retroactively or prospectively.” Affirmed.
Termination under § 19b(3)(j); Likelihood of harm; Comparing In re Hudson; Effect of incarceration; Distinguishing In re Mason
Holding that § (j) was met, and that respondent-father’s parental rights were not terminated solely on the basis of his incarceration, the court affirmed termination of his parental rights. The court rejected his argument that the trial court impermissibly terminated his parental rights solely on the basis of his present incarceration. “While respondent had made progress in the case while in prison, the trial court nevertheless concluded that there was a reasonable likelihood, based on [his] past conduct, that [they] would be subjected to emotional harm if returned to” his care. The trial court did not err in terminating his rights under § (j) “given the extensive trauma that the children had already suffered in [his] care and the lifelong implications of that trauma (such as the need for ongoing counseling), as well as, particularly, the fact that the children expressed considerable fear at the mere thought of returning to” his care. The court disagreed with respondent that this case was similar to Mason, and instead compared it to Hudson. Unlike in Mason, “respondent here did not provide for the children before his incarceration, and the children were forced to live in conditions so detrimental to their emotional well-being that several of them were diagnosed with PTSD, and all were in counseling.” Meanwhile, like in Hudson, “respondent’s behavior here has ‘already deprived the children of several years of a normal home with’ him. His behavior also ‘will have lifelong and profound effects on [the] children . . . .’” Most importantly, like Hudson and unlike in Mason, “‘incarceration was not the sole reason for termination in this case.’” The court concluded that respondent’s rights “were not terminated solely because he could not presently care for the children due to his incarceration, nor solely due to his criminal history. Rather, the trial court terminated [his] parental rights because it found by clear and convincing evidence that there was a reasonable likelihood, based on [his] conduct, that the children would suffer emotional harm if returned to his care.”