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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary

Includes summaries of two Michigan Court of Appeals published opinions under Constitutional Law and Contracts/Litigation.


Cases appear under the following practice areas:

  • Attorneys (1)

    Full Text Opinion

    This summary also appears under Family Law

    e-Journal #: 74252
    Case: Glomb v. Glomb
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Riordan, and Tukel
    Issues:

    Divorce; Spousal support; Berger v. Berger; MCL 552.23; Attorney fees; MCL 552.13(1); MCR 3.206(D)(1) & (2)(a); Loutts v. Loutts; Richards v. Richards

    Summary:

    Concluding that the trial court considered each of the relevant factors and did not assign disproportionate weight to any of them, the court affirmed its award of $1,500 a month in spousal support for 10 years to defendant-ex-wife. But it agreed with her that the trial court abused its discretion in denying her request for attorney fees without conducting a hearing or allowing her to support her request. Thus, it reversed as to the denial of attorney fees and remanded for development of the factual record and consideration of the request. As to spousal support, the court determined that the record did not support defendant’s argument that the trial court clearly erred in deciding not to weigh plaintiff-ex-husband’s “past relations and conduct against him.” Further, it did not consider future income defendant would receive from assets she was awarded in the divorce as a part of her income stream, as shown by its finding that her income was $22,000 for the purposes of the property division and determining spousal support. As to fault, the trial evidence “did not support that plaintiff caused the breakdown of the parties’ marriage and defendant” failed to show clear error by the trial court in “not considering or weighing marital fault in its determination of spousal support.” As to attorney fees, the court found that defendant’s request “was timely under MCL 522.13(1) because it was made during the pendency of the divorce proceeding and before the trial court gave its oral opinion regarding the divorce judgment, rather than after the entry of an order that resolved the last pending claims and closed the case.” It was likewise timely under MCR 3.206(D). In addition, there were facts in the record supporting her attorney fee request “on the basis of defendant’s inability to pay to defend the divorce proceeding and plaintiff’s ability to pay.” Yet the trial court did not give her “the opportunity to argue and allege sufficient facts to support her request . . . .” By failing to conduct a hearing or to permit her to support her request, it “did not render a decision on the basis of the particular facts and circumstances regarding the parties’ financial situations and the equities involved.”

    Full Text Opinion

  • Constitutional Law (1)

    Full Text Opinion

    e-Journal #: 74296
    Case: In re Schultz
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Shapiro, Gleicher, and K.F. Kelly
    Issues:

    Restoration of firearm rights; MCL 750.224f; MCL 28.424; Effect of the federal felon in possession (FIP) statute (18 USC § 922(g)); The Supremacy Clause of the U.S. Constitution (U.S. Const., art. VI, cl. 2); Preemption; Ter Beek v. Wyoming; The Gun Control Act (18 USC § 921 et seq.); § 927; § 921(a)(20); Unlawfully driving away an automobile (UDAA)

    Summary:

    Holding that the federal FIP statute (§ 922(g)) does not preempt restoration of firearm rights to felons under Michigan law, the court vacated the part of the circuit court’s order that limited the restoration of petitioner’s firearm rights, and remanded. He petitioned for restoration under MCL 28.424 after having been convicted of UDAA. While the circuit court determined by clear and convincing evidence that he met all the requirements, it concluded that its authority to restore his firearm rights was limited by § 922(g). As a result, it found that the restoration of his “rights was limited to arms that were excluded from the definition of firearm used in” that statute, and entered an order granting petitioner’s request “but limited his right of possession to pellet guns, muzzle loaders, and black powder guns that do not take a modern cartridge.” He argued that it erred in so limiting his rights because “MCL 750.224f and MCL 28.424 provide for complete relief from criminal liability under Michigan’s” FIP statute, regardless of potential liability under § 922(g). The court agreed. It first noted that “UDAA is not a specified felony under MCL 750.224(f)(10),” and as a result, petitioner’s “right to possess a firearm under Michigan law was restored by operation of law three years after he paid his fines and completed the terms of his probation.” But he nonetheless sought authorization under MCL 28.424. The court found that if the circuit court thought it would be unwise to fully restore his rights given that he could still be convicted under § 922(g), this concern was “irrelevant because MCL 28.424(4) requires the court to restore the petitioner’s firearm rights if it finds by clear and convincing evidence that the statute’s requirements were met, as was the case here.” If it found that the Michigan statutes were preempted by the federal statute, the court concluded that it erred. Considering whether the “restoration of firearm rights to felons under Michigan law is in ‘direct and positive conflict’ with” § 922(g), the court held that it was not, given that the Michigan statutes do not interfere with the federal government’s ability to enforce § 922(g) “or require, authorize, or excuse its violation.” Further, regardless of whether a state’s restoration of rights satisfies the exception in § 921(a)(20), “Congress clearly contemplated that states have that authority, notwithstanding the federal liability a felon may face under” § 922(g).

    Full Text Opinion

  • Contracts (2)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 74295
    Case: Barshaw v. Allegheny Performance Plastics, LLC
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Borrello, Boonstra, and Cavanagh
    Issues:

    Dismissal of a case pursuant to a contractual forum-selection clause; Robert A. Hansen Family Trust v. FGH Indus.,LLC.; Turcheck v. Amerifund Fin., Inc.; Fendi S.r.l. v. Condotti Shops, Inc. (FL App.); Forum non conveniens; Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp.; M/S Bremen v. Zapata Off-Shore Co.; Atlantic Marine Constr. Co., Inc. v. U.S. Dist. Court for W. Dist. of TX; MCL 600.745(3); Whether the forum-selection clause was permissive or mandatory; Golden Palm Hospitality, Inc. v. Stearns Bank Nat’l Ass’n (FL App.)

    Summary:

    Deciding a case of first impression, the court held that “a forum-selection clause may be considered separately from any choice-of-law provision that may also be in the contract, and in such cases, the Michigan court in which the action has been filed, shall apply Michigan law in determining the effect of the forum-selection clause.” It further held that the forum-selection clause here was “permissive under Michigan law. Because [it] was permissive and provided that Pennsylvania was one potential appropriate forum without excluding the use of other appropriate forums, the parties’ forum-selection clause did not prohibit plaintiff from filing this action in a Michigan court and” thus, the trial court was not required to dismiss the case under MCL 600.745(3). The court reversed the trial court’s order dismissing plaintiff’s contract claim based on the forum-selection clause and remanded. The trial court was asked to interpret an employment agreement that contained a choice of law clause and a forum-selection clause. It concluded that because Pennsylvania law controlled the issue of whether the forum-selection clause was permissive or mandatory, the contract “evidenced the parties’ agreement to litigate such a claim in Pennsylvania rather than Michigan.” As a result, it dismissed the case. In addressing “the question of whether a contractual forum-selection clause should be governed by the law of the state where the action was filed or, in the alternative, the law selected by the parties in the choice-of-law provision,” the court noted that “dismissing an action based on the enforcement of a contractual forum-selection clause is analogous to dismissing an action under the doctrine of forum non conveniens.” The question to be answered is “whether there is a sufficient reason that the action should be litigated in another forum rather than the one in which the plaintiff filed the action.” Due to the similarities between the operation of a forum-selection clause and the forum non conveniens doctrine in effect and underlying purposes, the court held “that analyzing the validity and effect of a forum-selection clause is also a threshold, nonmerits issue that the Michigan court in which the action has been filed may address first before considering other threshold issues.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 74201
    Case: Square Lake Hills Ass'n v. Garland
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Boonstra, Cavanagh, and Borrello
    Issues:

    Negligence & breach of contract claims; Res judicata; Adair v. Michigan; The “transactional” test; Washington v. Sinai Hosp. of Greater Detroit; Defamation; Ghanam v. Does; Kefgen v. Davidson; Smith v. Fergan; Qualified privilege as to communications on matters of shared interest between parties; 360 Constr. Co., Inc. v. Atsalis Bros. Painting Co. (ED MI); Timmis v. Bennett; Prysak v. R L Polk Co.; Unsworn statements; Liparoto Constr., Inc. v. General Shale Brink, Inc.

    Summary:

    The court held that the circuit court erred in granting plaintiff-condo association and third-party defendants summary disposition as to defendant/third-party plaintiff’s (Garland) claims for negligence and breach of contract based on res judicata. However, it properly granted third-party defendants summary disposition on his defamation claim. In the circuit court case, Garland’s claims for breach of contract and negligence against the association and third-party defendant-Highlander “were premised on those parties’ alleged failure to perform required repairs and maintenance on the building that housed his unit, which Garland alleged resulted in him being displaced from the unit and suffering damages. The association’s complaint in the district court, on the other hand, was based on” his forfeiture of the land contract by virtue of failing to make his payments as required on the contract, and also on his “failure to abide by certain bylaws, including illegally parking his boat. These claims involve different, tenuously related facts, and would not have formed a convenient trial unit.” His additional contract claim was based on the allegation that third-party defendant-Cornak “had made an oral promise to allow Garland to perform work on his carport to turn it into an enclosed unit (so that it would be suitable to store his boat), but that Cornak, Highlander, and [third-party defendant-] Sigler had not authorized or permitted Garland to perform the work. Although the existence of such a promise was arguably relevant to whether Garland had breached the association’s bylaws, the breach of that alleged promise arose out of an entirely different transaction than the association’s claims” as to his forfeiture under the land contract. Thus, the facts underlying his claims in the circuit court case “did not arise out of the same transaction or set of operative facts as the facts underlying the association’s claims in the district court.” As to the defamation claim, third-party defendants asserted a qualified privilege, and the only “evidence” Garland offered in response to their summary disposition motion was an affidavit that was “not signed under oath or notarized.” Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

  • Criminal Law (2)

    Full Text Opinion

    e-Journal #: 74233
    Case: People v. Garrison
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Stephens, Cavanagh, and K.F. Kelly
    Issues:

    Probable cause for bindover; Effect of a conviction at trial; People v. Green; The prosecutor’s charging discretion; In re Diehl; People v. Barksdale; Prosecutorial misconduct; People v. Unger; Opening statement & closing argument; People v. Moss; People v. Finley; Comment on the prosecution witnesses’ credibility; People v. Thomas; Expert testimony; MRE 702; Craig ex rel Craig v. Oakwood Hosp.; Cumulative error; People v. Bahoda

    Summary:

    On remand from the Supreme Court, the court held “that defendant was fairly convicted at trial,” and thus it declined to review whether there was probable cause to support the bindover decision. Further, it found no basis for concluding that the prosecutor abused his charging discretion, and it rejected defendant’s prosecutorial misconduct claims. Thus, it again affirmed his convictions of first-degree felony murder, second-degree arson, fourth-degree arson, FIP, and felony-firearm. In a prior appeal, the court rejected his claims as to the sufficiency of the evidence, ineffective assistance of counsel, “the issuance of the search and arrest warrants against him, his right to a speedy trial, and the cumulative effect of alleged trial errors” as well as other prosecutorial misconduct claims. The Supreme Court remanded the case for the court to consider two other issues from his Standard 4 brief – the district court’s bindover decision and the prosecution’s trial conduct. As to the former, the court noted that he “was found guilty beyond a reasonable doubt at trial.” It did not find in its prior opinion, or in this appeal, any error warranting reversal. As to defendant’s related claim that the prosecution “acted with ‘egregious misconduct’ in ‘bringing charges without probable cause[,]’” the court noted that he did not contend “he was subject to the charges for an unconstitutional, illegal or illegitimate reason.” Instead, he challenged the sufficiency of the evidence supporting the charging decision, which the court found was simply another attack on the sufficiency of the evidence at the preliminary exam. It also rejected his claims that the prosecution committed misconduct and denied him “a fair trial by (1) making statements in opening statement and closing argument that were not supported by the evidence, and (2) improperly vouching for a witness.” Finally, given that there were no actual errors, his cumulative effect claim also failed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 74220
    Case: United States v. Mukes
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Gibbons, Merritt, and Moore
    Issues:

    Sentencing; Application of a four-point enhancement for using or possessing a firearm in connection with another felony offense (USSG § 2K2.1(b)(6)(B)); § 2K2.1 cmt. n.14(A) & (C); Whether the state-court indictment by itself was sufficient evidence of “another felony”; § 6A1.3(a); United States v. Crowell; United States v. Maxon (Unpub. 6th Cir.); United States v. Lester (Unpub. 6th Cir.); Enhancement for “reckless endangerment during flight”; § 3C1.2; United States v. Dial; United States v. Brooks (Unpub. 6th Cir.); United States v. Howard (Unpub. 6th Cir.); United States v. May (Unpub. 6th Cir.); United States v. Stafford; United States v. Farrow (Unpub. 6th Cir.); United States v. Carter (Unpub. 6th Cir.); Sentence reduction for “acceptance of responsibility”; § 3E1.1

    Summary:

    The court held that the district court erred by applying a four-point enhancement for using or possessing a firearm in connection with another felony offense, and a two-point enhancement for reckless endangerment during flight, in sentencing defendant-Mukes. It also instructed the district court on remand to consider whether he was entitled to the two-point sentence reduction for acceptance of responsibility. He pled guilty to FIP and was sentenced to 120 months. He argued that the district court improperly calculated his guidelines range. He first challenged its application of § 2K2.1(b)(6)(B), which was based on a charge of reckless endangerment with a firearm in state court. He argued that the government failed to establish “another felony offense,” and the court agreed. It held that it was error for the district court to rely on the state court indictment alone to support the enhancement. There must be some evidence besides the allegations in an indictment to support it. The court also concluded that Mukes was not actually guilty of the state court offense where the offense required more than simply firing a gun into the air. Thus, the § 2K2.1(b)(6)(B) enhancement was applied in error. It also held that the district court erred by applying the two-point enhancement under § 3C1.2. To support this enhancement, the government was required to “‘link a specific aspect of the flight . . . with a specific risk.’” The district court was offered three different scenarios as to whether Mukes was in possession of the gun when he fled from police, but it did not determine where or when the gun was dropped in applying the enhancement. Further, the record was insufficient to establish that his dropping the gun presented a risk of it discharging. It was also insufficient to support the theory that “running away from a gun discarded in a public place created a substantial risk to another person.” Thus, the court held that the § 3C1.2 enhancement was improperly applied. In addition, it held that on remand, the government may not “‘get a second bite at the apple’” to try to support the enhancements, but the district court should consider whether Mukes was entitled to the reduction under § 3E1.1. The court vacated his sentence and remanded for resentencing on the existing record.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 74252
    Case: Glomb v. Glomb
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Riordan, and Tukel
    Issues:

    Divorce; Spousal support; Berger v. Berger; MCL 552.23; Attorney fees; MCL 552.13(1); MCR 3.206(D)(1) & (2)(a); Loutts v. Loutts; Richards v. Richards

    Summary:

    Concluding that the trial court considered each of the relevant factors and did not assign disproportionate weight to any of them, the court affirmed its award of $1,500 a month in spousal support for 10 years to defendant-ex-wife. But it agreed with her that the trial court abused its discretion in denying her request for attorney fees without conducting a hearing or allowing her to support her request. Thus, it reversed as to the denial of attorney fees and remanded for development of the factual record and consideration of the request. As to spousal support, the court determined that the record did not support defendant’s argument that the trial court clearly erred in deciding not to weigh plaintiff-ex-husband’s “past relations and conduct against him.” Further, it did not consider future income defendant would receive from assets she was awarded in the divorce as a part of her income stream, as shown by its finding that her income was $22,000 for the purposes of the property division and determining spousal support. As to fault, the trial evidence “did not support that plaintiff caused the breakdown of the parties’ marriage and defendant” failed to show clear error by the trial court in “not considering or weighing marital fault in its determination of spousal support.” As to attorney fees, the court found that defendant’s request “was timely under MCL 522.13(1) because it was made during the pendency of the divorce proceeding and before the trial court gave its oral opinion regarding the divorce judgment, rather than after the entry of an order that resolved the last pending claims and closed the case.” It was likewise timely under MCR 3.206(D). In addition, there were facts in the record supporting her attorney fee request “on the basis of defendant’s inability to pay to defend the divorce proceeding and plaintiff’s ability to pay.” Yet the trial court did not give her “the opportunity to argue and allege sufficient facts to support her request . . . .” By failing to conduct a hearing or to permit her to support her request, it “did not render a decision on the basis of the particular facts and circumstances regarding the parties’ financial situations and the equities involved.”

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 74295
    Case: Barshaw v. Allegheny Performance Plastics, LLC
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Borrello, Boonstra, and Cavanagh
    Issues:

    Dismissal of a case pursuant to a contractual forum-selection clause; Robert A. Hansen Family Trust v. FGH Indus.,LLC.; Turcheck v. Amerifund Fin., Inc.; Fendi S.r.l. v. Condotti Shops, Inc. (FL App.); Forum non conveniens; Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp.; M/S Bremen v. Zapata Off-Shore Co.; Atlantic Marine Constr. Co., Inc. v. U.S. Dist. Court for W. Dist. of TX; MCL 600.745(3); Whether the forum-selection clause was permissive or mandatory; Golden Palm Hospitality, Inc. v. Stearns Bank Nat’l Ass’n (FL App.)

    Summary:

    Deciding a case of first impression, the court held that “a forum-selection clause may be considered separately from any choice-of-law provision that may also be in the contract, and in such cases, the Michigan court in which the action has been filed, shall apply Michigan law in determining the effect of the forum-selection clause.” It further held that the forum-selection clause here was “permissive under Michigan law. Because [it] was permissive and provided that Pennsylvania was one potential appropriate forum without excluding the use of other appropriate forums, the parties’ forum-selection clause did not prohibit plaintiff from filing this action in a Michigan court and” thus, the trial court was not required to dismiss the case under MCL 600.745(3). The court reversed the trial court’s order dismissing plaintiff’s contract claim based on the forum-selection clause and remanded. The trial court was asked to interpret an employment agreement that contained a choice of law clause and a forum-selection clause. It concluded that because Pennsylvania law controlled the issue of whether the forum-selection clause was permissive or mandatory, the contract “evidenced the parties’ agreement to litigate such a claim in Pennsylvania rather than Michigan.” As a result, it dismissed the case. In addressing “the question of whether a contractual forum-selection clause should be governed by the law of the state where the action was filed or, in the alternative, the law selected by the parties in the choice-of-law provision,” the court noted that “dismissing an action based on the enforcement of a contractual forum-selection clause is analogous to dismissing an action under the doctrine of forum non conveniens.” The question to be answered is “whether there is a sufficient reason that the action should be litigated in another forum rather than the one in which the plaintiff filed the action.” Due to the similarities between the operation of a forum-selection clause and the forum non conveniens doctrine in effect and underlying purposes, the court held “that analyzing the validity and effect of a forum-selection clause is also a threshold, nonmerits issue that the Michigan court in which the action has been filed may address first before considering other threshold issues.”

    Full Text Opinion

  • Negligence & Intentional Tort (2)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 74201
    Case: Square Lake Hills Ass'n v. Garland
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Boonstra, Cavanagh, and Borrello
    Issues:

    Negligence & breach of contract claims; Res judicata; Adair v. Michigan; The “transactional” test; Washington v. Sinai Hosp. of Greater Detroit; Defamation; Ghanam v. Does; Kefgen v. Davidson; Smith v. Fergan; Qualified privilege as to communications on matters of shared interest between parties; 360 Constr. Co., Inc. v. Atsalis Bros. Painting Co. (ED MI); Timmis v. Bennett; Prysak v. R L Polk Co.; Unsworn statements; Liparoto Constr., Inc. v. General Shale Brink, Inc.

    Summary:

    The court held that the circuit court erred in granting plaintiff-condo association and third-party defendants summary disposition as to defendant/third-party plaintiff’s (Garland) claims for negligence and breach of contract based on res judicata. However, it properly granted third-party defendants summary disposition on his defamation claim. In the circuit court case, Garland’s claims for breach of contract and negligence against the association and third-party defendant-Highlander “were premised on those parties’ alleged failure to perform required repairs and maintenance on the building that housed his unit, which Garland alleged resulted in him being displaced from the unit and suffering damages. The association’s complaint in the district court, on the other hand, was based on” his forfeiture of the land contract by virtue of failing to make his payments as required on the contract, and also on his “failure to abide by certain bylaws, including illegally parking his boat. These claims involve different, tenuously related facts, and would not have formed a convenient trial unit.” His additional contract claim was based on the allegation that third-party defendant-Cornak “had made an oral promise to allow Garland to perform work on his carport to turn it into an enclosed unit (so that it would be suitable to store his boat), but that Cornak, Highlander, and [third-party defendant-] Sigler had not authorized or permitted Garland to perform the work. Although the existence of such a promise was arguably relevant to whether Garland had breached the association’s bylaws, the breach of that alleged promise arose out of an entirely different transaction than the association’s claims” as to his forfeiture under the land contract. Thus, the facts underlying his claims in the circuit court case “did not arise out of the same transaction or set of operative facts as the facts underlying the association’s claims in the district court.” As to the defamation claim, third-party defendants asserted a qualified privilege, and the only “evidence” Garland offered in response to their summary disposition motion was an affidavit that was “not signed under oath or notarized.” Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 74204
    Case: Sundberg v. Oberstar Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Sawyer, M.J. Kelly, and Swartzle
    Issues:

    Personal injury action; Fall into the basement of an office building after stepping through an unlocked door; Prima facie negligence case; Kosmalski v. St. John’s Lutheran Church; Premises liability; Open & obvious dangers; Hoffner v. Lanctoe; Lugo v. Ameritech Corp., Inc.; Special aspects; Abke v. Vandenberg; Woodbury v. Bruckner (On Remand); Ordinary negligence; Laier v. Kitchen; Kachudas v. Invaders Self Auto Wash, Inc.

    Summary:

    The court held that reasonable minds could disagree about whether the drop-off where plaintiff fell was open and obvious, and could also find that it was unreasonably dangerous. Further, the trial court erred by treating plaintiff’s claims as sounding only in premises liability. “Plaintiff, an invitee in an office building, opened and stepped through an unlocked door and fell from an unguarded precipice into an exposed basement below.” The trial court concluded that plaintiff pled claims sounding only in premises liability, and that her action was barred because there was no genuine factual dispute and the hazard was open and obvious and not unreasonably dangerous. The court noted that the trial court “required too much: a hazard is not open and obvious if the danger could be revealed upon casual observation; it is open and obvious if the danger would have been discovered by an average person upon casual inspection.” The court held that a genuine issue of material fact existed as to the open-and-obvious nature of the hazard, and the trial court erred in granting summary disposition to defendants on this ground. In addition, it concluded that “even if the drop-off was an open and obvious hazard,” a question of fact existed as to whether special aspects made it unreasonably dangerous. Finally, given that “plaintiff alleged a claim arising from the conduct of” defendant’s employee, the trial court also erred in concluding that her claims solely sounded in premises liability. Reversed and remanded.

    Full Text Opinion

  • Termination of Parental Rights (3)

    Full Text Opinion

    e-Journal #: 74216
    Case: In re Johnson/Rider
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Sawyer, M.J. Kelly, and Swartzle
    Issues:

    Termination under § 19b(3)(j); In re White; In re Ellis; In re Kaczkowski; Children’s best interests; Right to counsel; MCL 712A.17c; Attorney-client privilege; Reed Dairy Farm v. Consumers Power Co.

    Summary:

    The court held that § (j) existed, termination of respondent-mother’s parental rights was in the children’s best interests, any right to counsel error did not warrant reversal, and there was no attorney-client privilege violation. In 12/19, she started “living with a man who had recently been in prison for firearms charges. The foster-care worker assigned to respondent’s case ran a background check on the man, learned of his criminal background, and informed” her of it in 1/20. Yet, she was still living with the man as of the 3/4/20 termination hearing. The worker testified that the man “would not pass a background check for being appropriate for being around the children.” Like the respondents in White and Kaczkowski, “respondent knew about the criminal background of the man, but decided to live with him all the same. This living situation was itself evidence of a reasonable likelihood that the children would be harmed if they were returned to” her home. It also served as evidence that she was not complying with her case-service plan. The “worker testified that living with this man was a violation of respondent’s case-service plan, as respondent was required to obtain appropriate housing, refrain from having unapproved people in her home at night, and avoid associating with known criminals.” And before termination was initiated, she “failed to comply with terms of her service plan such as refraining from having alcohol and drugs in her home, submitting to drug screens, staying in contact with her foster care worker, and working to improve her parenting skills.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 74240
    Case: In re Petoskey
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, Meter, and Gadola
    Issues:

    Termination under §§ 19b(3)(c)(i), (g), & (j); Substance abuse; In re LaFrance Minors; Failure to comply with a service plan; In re White; Children’s best interests; MCL 712A.19b(5); In re Olive/Metts Minors; Reasonable reunification efforts; In re Frey; In re TK; Ineffective assistance of counsel; In re Martin; The trial court’s exercise of jurisdiction over the children; MCL 712A.2(b)(2)

    Summary:

    The court held that §§ (c)(i), (g), and (j) supported termination of respondents-parents’ parental rights, and that the trial court did not err in finding it was in the children’s best interests. Further, the DHHS made reasonable reunification efforts, and there was no merit to their ineffective assistance of counsel claims or their challenge to the trial court’s exercise of jurisdiction over the children. As to § (c)(i), the evidence supported the finding that respondents failed to rectify the conditions leading to adjudication. There was evidence that they did not “participate in the children’s medical and educational services, despite having an opportunity to do so. The children’s treatment providers testified about the children’s medical conditions, their autism, their serious developmental delays, and the extensive medical, educational, and emotional support services they required in order to progress. Respondents did little to nothing to address these issues before the children entered care, and apart from completing a general parenting class, neither respondent meaningfully participated in other services to allow them to address the children’s special needs.” While they asserted they were not timely notified of the appointments, the caseworker contradicted this. There also was no evidence they seriously tried "to otherwise become involved and engaged in the children’s treatments.” In addition, while their substance abuse was more relevant to the analysis of §§ (g) and (j), the trial court did not clearly err in “finding that substance abuse remained a barrier to reunification . . . .” The court also concluded that it “did not clearly err when it found that these conditions would not be rectified within a reasonable time. Respondents had made minimal progress during the 16-month period the children had been in foster care.” As to the children’s best interests, trauma assessments after their removal showed they “had suffered from trauma and had significant developmental delays.” One child’s therapist testified about the child’s strides in foster care. She “was well adjusted to her foster home, knew the routine, and seemed very satisfied in her day-to-day activities.” The other child’s therapist testified that his “behaviors had also improved in foster care” and he seemed bonded with his foster parents. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 74215
    Case: In re Smielewski
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Boonstra, Cavanagh, and Borrello
    Issues:

    Termination under § 19(b)(3)(c)(i); In re Frey; Children’s best interests; In re White; In re Moss Minors; Accuracy of a no-contest plea; MCR 3.971(A); MCR 3.971(D)(2); MCL 712A.2(b)(2); Criminality; People v. Tennyson; In re MU; Effect of agreeing with an issue in the trial court; Grant v. AAA MI/WIS, Inc. (On Remand)

    Summary:

    Determining that § (c)(i) existed, that termination of respondent-mother’s parental rights was in the children’s best interests, and that her no-contest plea was properly accepted, the court affirmed the termination order. The court concluded that the conditions that led to adjudication continued to exist. She “continued to use drugs throughout the case. She attended only 23 of 111 drug screens, and she tested positive for nonprescribed opioids in 11 of the 23 drug screens that she attended. Respondent also admitted to having an addiction to Adderall, and the caseworker believed that respondent may have been ‘shopping around’ for Adderall prescriptions. The caseworker testified that a doctor had informed her that he had stopped prescribing Adderall to respondent out of concern that she was abusing the medication.” She also tested positive for meth. A toxicologist testified at the termination hearing that meth “is rarely prescribed, and when it is it is usually prescribed as a medication known as Desoxyn. Respondent’s did not have a Desoxyn prescription. Although the positive drug screens could not distinguish between therapeutic or recreational drug levels of the drug for which she did have a prescription, there was evidence that respondent was abusing Adderall, that she had missed a significant number of her drug tests, and that she had tested positive for drugs for which she did not have a prescription.” Thus, the trial court properly found that “the drug use conditions continued and were unlikely to be rectified. Moreover, respondent never provided proof of a legal source of income to address her financial instability.”

    Full Text Opinion

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