Federal Communications Commission (FCC) data breach reporting requirements under § 222 of the Telecommunications Act (47 USC § 222); “Customer proprietary network information” & “personally identifiable information”; Whether the FCC’s 2024 Order exceeded its statutory authority; § 201(b); “Practice”; Global Crossing Telecomms, Inc v Metrophones Telecomms, Inc; Whether the FCC had the authority under §§ 225(a)(3) & (d)(1)(A) to impose the reporting requirements on “telecommunications relay services” providers; Whether the 2024 Order violated the Congressional Review Act

In an order, the court voted for rehearing en banc, vacated its prior decision and judgment (see eJournal # 84183 in the 8/28/25 edition), stayed the mandate, and restored the case to the docket as a pending appeal.

Americans with Disabilities Act (ADA); Retaliation; 42 USC § 12203(a); McDonnell Douglas Corp v Green; Summary judgment; FedRCivP 56(a); Pretext; Honest-belief rule; AC ex rel JC v Shelby Cnty Bd of Educ; Judgment as a matter of law; Rule 50(b); New trial; Rule 59(a); Failure to accommodate; § 12112(b)(5)(A); Medical documentation; Kirilenko-Ison v Board of Educ of Danville Indep Sch; Intentional discrimination; § 12112(a); Jury instructions; Rule 51(d)(2); “Undue hardship”; § 12111(10)(B); Relief from judgment; Rule 60(a) & 60(b)(3); Fraud; Waiver; Jones v Illinois Cent RR Co

[This appeal was from the ED-MI.] The court held that the district court properly granted defendant-employer (the City) summary judgment on plaintiff-appellant Wortham’s ADA retaliation claim, and that the jury’s verdict for the City on her failure-to-accommodate and intentional-discrimination claims did not warrant posttrial relief. Wortham, a Detroit police officer with physical restrictions, sued after the City terminated her for failing to report to work or provide updated medical documentation. The district court granted summary judgment on retaliation before the remaining ADA claims proceeded to a defense verdict. On appeal, the court first held that she failed to show pretext because the City had a legitimate reason for termination: she repeatedly did not report for duty and did not provide the requested documentation. The court reasoned the City made a “reasonably informed and considered” decision based on the information then available, and the honest-belief rule barred reliance on later-submitted medical forms. The court next held that a reasonable jury could reject the failure-to-accommodate claim because the ADA does not require accommodation until the employee provides a proper diagnosis and requests a specific accommodation. Wortham “failed to heed the City’s request for medical documentation,” and without verification, she did not properly initiate the accommodation process. The court also upheld the jury’s rejection of intentional discrimination because the pretext analysis overlapped with retaliation, and the jury could find she was fired for failing to submit current medical forms rather than because of disability. The court further rejected her jury-instruction challenge because she failed to identify a flawed instruction, and the undue-hardship instruction correctly stated the ADA defense. Finally, it rejected her fraud-based request for relief because Rule 60(a) covers clerical mistakes, Rule 60(b)(3) fraud was not raised below, and she could not “bet on the jury” and seek relief only after losing. Affirmed.

Allegedly nonconforming structure in a subdivision; Deed restrictions; Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham; Belated request for post-construction approval; Whether a deed provision was void & unenforceable for vagueness; A homeowners association’s authority to pursue litigation; Tuscany Grove Ass’n v Peraino; Applicability of a voter-approval requirement

The court held that while the deed provision at issue, Section 15, was not void and unenforceable for vagueness, Article XII, Section 2 of plaintiff-Homeowners Association’s Bylaws prohibited this litigation because plaintiff failed to obtain co-owner voter approval for its cost. Thus, it affirmed the trial court’s dismissal of plaintiff’s action for declaratory relief concerning an allegedly nonconforming structure defendants built in their backyard without the required pre-approval of plaintiff. Plaintiff first asserted that the trial court erred in “ruling that defendants cured their failure to obtain approval” by requesting it after construction was complete. The court agreed “with plaintiff that such reasoning would have been erroneous,” but it did not find that the trial court engaged in that reasoning. And “the question of precisely when defendants sought approval of the structure now is irrelevant, as the only remaining issue to decide is whether the structure should be removed because it violates Section 15.” Next, the court agreed with plaintiff that the trial court erred in “ruling that Section 15 of the Warranty Deed is void and unenforceable” for lack of sufficient standards. The court held that the provision included “sufficient standards governing whether approval of a structure is warranted by plaintiff.” Further, the “mere fact that Section 15 seemingly allows plaintiff unilateral authority to grant or deny approval for a structure is not a basis for voiding” it. But defendants, as an alternate ground for affirmance, argued that the case had to “be dismissed because plaintiff did not obtain voter approval for these litigation expenses, contrary to Article XII, Section 2 of the Bylaws[.]” The court concluded that an “expense for litigation such as the instant case is not an ordinary and recurring operating expenditure. Rather, it is a non-recurring ‘nonoperating expenditure’ of plaintiff” and thus, subject to Article XII, Section 2’s voter-approval requirement. Because plaintiff did not obtain this approval, it did not have the authority to maintain this litigation.

Juvenile offender; Parolable life; Resentencing; People v Stovall; Departure sentence; Proportionality; Youth as mitigating factor; People v Boykin; People v Parks; People v Copeland; People v Snow; Post-parole release convictions; Consecutive sentencing; Extent of the departure; People v Dixon-Bey; People v Smith

The court held that the trial court considered defendant’s youth and the relevant sentencing factors, and properly considered his later convictions, but failed to adequately explain the extent of the upward departure sentences. Defendant committed armed robbery and five AWIMs at age 17, and originally received parolable life. He was resentenced under Stovall to 25 to 30 years for armed robbery and 30 to 45 years for AWIM, each five years above the recommended maximum minimum range. On appeal, the court first held that the trial court considered the Snow factors and youth as mitigating because it addressed “reformation of the offender” and “protection of society,” discussed defendant’s developing brain, childhood, family, and substance abuse, and expressly stated that it was taking those circumstances into account. The court next held that the trial court could rely on defendant’s later convictions while on parole because “‘conduct beyond the sentencing offense can be considered’” for departure, and his post-parole release CSC-related convictions and drug use were relevant to rehabilitation and public safety. But the court held that remand was required because the trial court did not explain why five-year departures were proportionate. It reasoned that a sentencing court must explain “why the sentence imposed is more proportionate” than a different sentence, and “the connection between the reasons given for departure and the extent of the departure” was unclear. Remanded for further articulation or resentencing.

Prosecutorial error; Vouching; Ineffective assistance of counsel; Advice as to the right to testify; Ginther hearing; Trial strategy; Failure to object to witness testimony; Lay opinion testimony; MRE 701; Expert testimony; MRE 702; Failure to object to the prosecution’s closing argument

The court held that defendant was not entitled to a new trial on his prosecutorial-error and witness-testimony claims, but remand was required for a Ginther hearing limited to counsel’s advice that he not testify because of his “background.” Defendant was convicted of CSC III involving his former girlfriend’s teenage daughter, and the trial court denied his motion for a new trial without holding a Ginther hearing. On appeal, the court first held that the prosecutor did not improperly vouch for the victim because the challenged closing argument relied on her courtroom demeanor, emotion, and testimony rather than “personal knowledge,” and the prosecutor was “using evidence from trial to argue that the victim was worthy of belief.” The court next held that counsel was not ineffective for failing to object to family members’ testimony that the victim’s behavioral changes made sense after disclosure because the testimony was based on their “individual perceptions” and did not discuss “the typical behavior of sexual abuse victims” or opine that the victim was truthful. But the court held that a Ginther hearing was warranted on the right-to-testify issue because, if counsel advised defendant not to testify solely because of his “background,” and that meant his limited criminal history, the advice “may have been objectively unreasonable.” The court also found factual development could matter because defendant would have denied the assaults, challenged the alleged locations, and offered testimony contradicting the victim. Affirmed in part and remanded with jurisdiction retained.

Self-defense; MCL 780.972; People v Dupree; Admission of testimony under MCL 768.27c; MRE 403; MRE 801(d)(1)(B) (prior consistent statement); Harmless error; Sentencing; Presumptive proportionality of a within-guidelines sentence; “Unusual circumstances”

The court held that the prosecution presented sufficient evidence to disprove defendant’s self-defense claim beyond a reasonable doubt, and it rejected his challenge to the admission of a police witness’s testimony about the victim’s disclosures. Concluding that he failed to show “unusual circumstances,” the court found that the trial court did not abuse its discretion in imposing a within-guidelines sentence. He was convicted of AWIGBH, felonious assault, and domestic violence. He was sentenced to concurrent prison terms of 3 to 10 years for AWIGBH and 2 to 4 years for felonious assault, with a 90-day jail sentence for domestic violence. As to his self-defense claim, while he “and the victim provided significantly different versions of the assault, the jury decides credibility.” The court noted that her “testimony was corroborated by the prosecution’s other witnesses, as well as the number and locations of” her stab wounds. As to the police witness’s testimony under MCL 768.27c, because it “presented relatively minimal unfair prejudice and had some probative value, the trial court did not plainly err by admitting it notwithstanding MRE 403.” But the court noted “MRE 801(d)(1)(B), and the various other hearsay exceptions under the rules of evidence, are not intended to allow admission of all prior consistent statements.” It found the testimony here was used “to reinforce the victim’s testimony, not necessarily to rebut a charge of recent fabrication, influence, or motive, as contemplated by MRE 801(d)(1)(B).” However, given that “MCL 768.27c is a substantive rule of evidence that supersedes the otherwise-applicable hearsay rules enacted by” the Supreme Court, the trial court correctly ruled that the “testimony was admissible under MCL 768.27c notwithstanding MRE 801 and 802.” The court added that, even if it was inadmissible, any error was harmless given the victim’s testimony and a neighbor’s corroborating testimony. Finally, defendant’s minimum sentence was near the low end of the guidelines, and the court did not believe that, in this case, his “advanced age, medical conditions, and lack of criminal history” were unusual circumstances warranting a downward departure. Affirmed.

Sentencing; Firearm enhancement; USSG § 2D1.1(b)(1); United States v Brown; Withdrawal from conspiracy; United States v Cox; Clear-improbability showing; United States v Minter; Zero-point offender reduction; USSG § 4C1.1(a); Firearm in connection with offense; § 4C1.1(a)(7); United States v Tajwar; Burden of proof; Safety-valve provisions; 18 USC § 3553(f); § 5C1.2; United States v Reinberg; Substantive reasonableness; § 3553(a); United States v Rayyan; Within-Guidelines sentence; United States v Owen; Codefendant sentencing disparity; United States v Bass

[This appeal was from the WD-MI.] The court held that the district court properly applied the firearm enhancement, properly denied the zero-point offender reduction, and imposed a substantively reasonable within-guidelines sentence. Defendant pled guilty to conspiring to distribute and possess with intent to distribute cocaine after investigators intercepted mailed cocaine packages and later found cocaine and three firearms in his mother’s home. The district court applied USSG § 2D1.1(b)(1), denied the § 4C1.1(a) reduction, and sentenced him to 96 months in prison. On appeal, the court first held that defendant possessed firearms during relevant conduct. It reasoned the conspiracy continued beyond the last mailed package because evidence showed a co-conspirator traveled to Texas after the home search, and defendant failed to prove withdrawal because “mere cessation of . . . activity” does not establish withdrawal without “affirmative action to defeat or disavow” the conspiracy. The court also held that defendant failed to show it was “clearly improbable” the firearms were connected to the offense where photos on his phone showed a firearm, drugs, and package receipts, and cocaine was found in the same home as the firearms. The court next held that defendant bore the burden to establish entitlement to the zero-point reduction, reasoning the guideline applies only if “the defendant meets all of the . . . criteria,” and § 4C1.1(a)(7) parallels safety-valve provisions where defendants bear the burden. He did not meet it because the record showed at least a “minimal” connection between the firearms and the cocaine conspiracy. Finally, the court held that the sentence was substantively reasonable because the district court considered the § 3553(a) factors, weighed defendant’s lack of convictions, upbringing, education, and role in a serious cocaine conspiracy, and reasonably rejected his codefendant-disparity argument where the codefendant received reductions and had different personal circumstances. Affirmed.

Federal Communications Commission (FCC) data breach reporting requirements under § 222 of the Telecommunications Act (47 USC § 222); “Customer proprietary network information” & “personally identifiable information”; Whether the FCC’s 2024 Order exceeded its statutory authority; § 201(b); “Practice”; Global Crossing Telecomms, Inc v Metrophones Telecomms, Inc; Whether the FCC had the authority under §§ 225(a)(3) & (d)(1)(A) to impose the reporting requirements on “telecommunications relay services” providers; Whether the 2024 Order violated the Congressional Review Act

In an order, the court voted for rehearing en banc, vacated its prior decision and judgment (see eJournal # 84183 in the 8/28/25 edition), stayed the mandate, and restored the case to the docket as a pending appeal.

Americans with Disabilities Act (ADA); Retaliation; 42 USC § 12203(a); McDonnell Douglas Corp v Green; Summary judgment; FedRCivP 56(a); Pretext; Honest-belief rule; AC ex rel JC v Shelby Cnty Bd of Educ; Judgment as a matter of law; Rule 50(b); New trial; Rule 59(a); Failure to accommodate; § 12112(b)(5)(A); Medical documentation; Kirilenko-Ison v Board of Educ of Danville Indep Sch; Intentional discrimination; § 12112(a); Jury instructions; Rule 51(d)(2); “Undue hardship”; § 12111(10)(B); Relief from judgment; Rule 60(a) & 60(b)(3); Fraud; Waiver; Jones v Illinois Cent RR Co

[This appeal was from the ED-MI.] The court held that the district court properly granted defendant-employer (the City) summary judgment on plaintiff-appellant Wortham’s ADA retaliation claim, and that the jury’s verdict for the City on her failure-to-accommodate and intentional-discrimination claims did not warrant posttrial relief. Wortham, a Detroit police officer with physical restrictions, sued after the City terminated her for failing to report to work or provide updated medical documentation. The district court granted summary judgment on retaliation before the remaining ADA claims proceeded to a defense verdict. On appeal, the court first held that she failed to show pretext because the City had a legitimate reason for termination: she repeatedly did not report for duty and did not provide the requested documentation. The court reasoned the City made a “reasonably informed and considered” decision based on the information then available, and the honest-belief rule barred reliance on later-submitted medical forms. The court next held that a reasonable jury could reject the failure-to-accommodate claim because the ADA does not require accommodation until the employee provides a proper diagnosis and requests a specific accommodation. Wortham “failed to heed the City’s request for medical documentation,” and without verification, she did not properly initiate the accommodation process. The court also upheld the jury’s rejection of intentional discrimination because the pretext analysis overlapped with retaliation, and the jury could find she was fired for failing to submit current medical forms rather than because of disability. The court further rejected her jury-instruction challenge because she failed to identify a flawed instruction, and the undue-hardship instruction correctly stated the ADA defense. Finally, it rejected her fraud-based request for relief because Rule 60(a) covers clerical mistakes, Rule 60(b)(3) fraud was not raised below, and she could not “bet on the jury” and seek relief only after losing. Affirmed.

Failure to respond to a request; Densmore v Department of Corr; Crooker v U.S. State Dep’t (DC Cir); “Public body”; MCL 15.232(h)(iii) & (iv); Request for declaratory judgment; Applicability of res judicata or collateral estoppel; Davis v Garrett (Unpub); Lack of documentary evidence that a defendant possessed alleged reports; Department of Wayne County Clerk (WCC); Wayne County Board of Commissioners (WCBC); Wayne County Employees’ Retirement System & Wayne County Retirement Commission (the retirement defendants)

The court held that defendant-WCC is a distinct public body under the FOIA and because it received plaintiff’s request, it had to respond “even if it did not possess the requested documents.” But as to plaintiff’s request for a declaratory judgment ruling that the WCC is the clerk of defendant-WCBC, res judicata or collateral estoppel barred him from relitigating this issue. Lastly, absent any “evidence that the retirement defendants possessed or maintained” the reports he sought, they were entitled to summary disposition. Thus, the court found that the trial court erred in granting the WCC’s and the WCBC’s motions for reconsideration, but properly declined to enter a declaratory judgment as “to the WCC being the clerk of the WCBC and properly dismissed the claim against the retirement defendants.” In one FOIA request, emailed to multiple recipients, plaintiff sought certified copies of a county ordinance and any amendments. In a request to the retirement defendants, he sought documents explaining the retirement benefits a specific employee will receive. As to the ordinance request, “the trial court relied on Densmore for the proposition that the WCC did not have to provide a separate response to plaintiff’s FOIA request because he already had received a response from the WCBC.” But the court found that Densmore and the federal case on which it relied were distinguishable and did not control here. It also rejected the WCBC’s apparent argument “that the WCC is not a distinct ‘public body’ from Wayne County under the FOIA[,]” concluding that even if “MCL 15.232(h)(iii) is inapplicable, MCL 15.232(h)(iv) is.” As to plaintiff’s request for declaratory judgment, the same issue was decided in a final judgment in a prior action involving the same parties or their privies. Finally, his “mere allegation that the retirement defendants possessed ‘regular reports’ that they should have disclosed is insufficient.” He needed to present “documentary evidence to support his assertion, and” he did not do so.

The No-Fault Act (NFA); Personal protection insurance (PIP) benefits; Ineligibility due to constructive ownership of the uninsured vehicle involved in the accident; MCL 500.3113(b); “Owner” (MCL 500.3101(3)(l)(i)); Abdulla v Progressive SE Ins Co; “Having the use” of the vehicle; Ardt v Titan Ins Co; Twichel v MIC Gen Ins Corp; Healthcare providers' recovery; MCL 500.3112; Mota-Peguero v Falls Lake Nat’l Ins Co

The court held that there was no genuine issue of material fact that the injured individual (other party-Simpson) was an “owner” of the uninsured vehicle involved in the accident and thus, ineligible to recover PIP benefits for his injuries. It also found no genuine issue of material fact that plaintiffs-healthcare providers were “not entitled to recover PIP benefits for the treatment” they provided him. Thus, it affirmed summary disposition for defendant-insurer. The vehicle was purchased by his live-in girlfriend (B) shortly before the accident. Apart from “pointing to Simpson’s use of the vehicle for less than 30 days and the absence of a written agreement, plaintiffs” failed to present any proofs below supporting their position that he “was not an ‘owner’ within the meaning of MCL 500.3101(3)(l)(i). Defendant’s offered proofs, meanwhile, uniformly demonstrated that Simpson had a ‘right to use the vehicle’ that was ‘possessory or proprietary in a manner that comports with ownership.’” Even viewed in the light most favorable to plaintiffs, those proofs showed “that, pursuant to an arrangement between Simpson and [B], Simpson had a ‘regular pattern of unsupervised usage’ of the vehicle such that he was its owner under” that statutory provision. This “made him ineligible under MCL 500.3113(b) to receive PIP benefits for his injuries resulting from the” accident. The court also concluded that plaintiffs could not maintain a direct claim under MCL 500.3112 here. The case on which they relied, Mota-Peguero, concerned post-accident rescission of a policy. The vehicle here was uninsured and Simpson had no auto insurance policy at the time of the accident. “Given that there was no insurance policy at issue in this case,” the court failed to see how Mota-Peguero would control plaintiffs’ entitlement to PIP benefits. Because Simpson’s injuries were not covered under the NFA, plaintiffs were not “a provider that ‘render[ed] treatment to an injured person for an accidental bodily injury covered by’” PIP.

The No-Fault Act (NFA); Personal protection insurance (PIP) benefits; Ineligibility due to constructive ownership of the uninsured vehicle involved in the accident; MCL 500.3113(b); “Owner” (MCL 500.3101(3)(l)(i)); Abdulla v Progressive SE Ins Co; “Having the use” of the vehicle; Ardt v Titan Ins Co; Twichel v MIC Gen Ins Corp; Healthcare providers' recovery; MCL 500.3112; Mota-Peguero v Falls Lake Nat’l Ins Co

The court held that there was no genuine issue of material fact that the injured individual (other party-Simpson) was an “owner” of the uninsured vehicle involved in the accident and thus, ineligible to recover PIP benefits for his injuries. It also found no genuine issue of material fact that plaintiffs-healthcare providers were “not entitled to recover PIP benefits for the treatment” they provided him. Thus, it affirmed summary disposition for defendant-insurer. The vehicle was purchased by his live-in girlfriend (B) shortly before the accident. Apart from “pointing to Simpson’s use of the vehicle for less than 30 days and the absence of a written agreement, plaintiffs” failed to present any proofs below supporting their position that he “was not an ‘owner’ within the meaning of MCL 500.3101(3)(l)(i). Defendant’s offered proofs, meanwhile, uniformly demonstrated that Simpson had a ‘right to use the vehicle’ that was ‘possessory or proprietary in a manner that comports with ownership.’” Even viewed in the light most favorable to plaintiffs, those proofs showed “that, pursuant to an arrangement between Simpson and [B], Simpson had a ‘regular pattern of unsupervised usage’ of the vehicle such that he was its owner under” that statutory provision. This “made him ineligible under MCL 500.3113(b) to receive PIP benefits for his injuries resulting from the” accident. The court also concluded that plaintiffs could not maintain a direct claim under MCL 500.3112 here. The case on which they relied, Mota-Peguero, concerned post-accident rescission of a policy. The vehicle here was uninsured and Simpson had no auto insurance policy at the time of the accident. “Given that there was no insurance policy at issue in this case,” the court failed to see how Mota-Peguero would control plaintiffs’ entitlement to PIP benefits. Because Simpson’s injuries were not covered under the NFA, plaintiffs were not “a provider that ‘render[ed] treatment to an injured person for an accidental bodily injury covered by’” PIP.

Failure to respond to a request; Densmore v Department of Corr; Crooker v U.S. State Dep’t (DC Cir); “Public body”; MCL 15.232(h)(iii) & (iv); Request for declaratory judgment; Applicability of res judicata or collateral estoppel; Davis v Garrett (Unpub); Lack of documentary evidence that a defendant possessed alleged reports; Department of Wayne County Clerk (WCC); Wayne County Board of Commissioners (WCBC); Wayne County Employees’ Retirement System & Wayne County Retirement Commission (the retirement defendants)

The court held that defendant-WCC is a distinct public body under the FOIA and because it received plaintiff’s request, it had to respond “even if it did not possess the requested documents.” But as to plaintiff’s request for a declaratory judgment ruling that the WCC is the clerk of defendant-WCBC, res judicata or collateral estoppel barred him from relitigating this issue. Lastly, absent any “evidence that the retirement defendants possessed or maintained” the reports he sought, they were entitled to summary disposition. Thus, the court found that the trial court erred in granting the WCC’s and the WCBC’s motions for reconsideration, but properly declined to enter a declaratory judgment as “to the WCC being the clerk of the WCBC and properly dismissed the claim against the retirement defendants.” In one FOIA request, emailed to multiple recipients, plaintiff sought certified copies of a county ordinance and any amendments. In a request to the retirement defendants, he sought documents explaining the retirement benefits a specific employee will receive. As to the ordinance request, “the trial court relied on Densmore for the proposition that the WCC did not have to provide a separate response to plaintiff’s FOIA request because he already had received a response from the WCBC.” But the court found that Densmore and the federal case on which it relied were distinguishable and did not control here. It also rejected the WCBC’s apparent argument “that the WCC is not a distinct ‘public body’ from Wayne County under the FOIA[,]” concluding that even if “MCL 15.232(h)(iii) is inapplicable, MCL 15.232(h)(iv) is.” As to plaintiff’s request for declaratory judgment, the same issue was decided in a final judgment in a prior action involving the same parties or their privies. Finally, his “mere allegation that the retirement defendants possessed ‘regular reports’ that they should have disclosed is insufficient.” He needed to present “documentary evidence to support his assertion, and” he did not do so.

Termination of parental rights; Indian Child Welfare Act (ICWA); Michigan Indian Family Preservation Act; ICWA notice; Conditional reversal; § (b)(ii) (failure to protect from sexual abuse); MCR 3.977(E); Initial dispositional hearing; Best interests; Relative placement

The court held that conditional reversal was required because the record lacked ICWA-notice documentation, but it rejected respondent-mother’s challenges to statutory grounds and best interests. The trial court terminated respondent’s parental rights under § (b)(ii) after finding she failed to protect the children from sexual abuse by their maternal grandfather. On appeal, the court first held that conditional reversal was required because the lower court file did not include copies of notices or return receipts showing notice to possible tribes. The court reasoned ICWA requires “‘certain documents be included in the record,’” and without them the error could not be deemed harmless. The court next held that the trial court could terminate at the initial disposition on an amended petition because MCR 3.977(E) “clearly contemplates” an amended petition requesting termination. It also held that § (b)(ii) was established because witnesses credibly testified respondent was told in 2021 that one child (JW) had disclosed sexual abuse, yet she later returned the children to the abuser’s home, and the court was not “definitely and firmly convinced” that the trial court erred in finding she placed them at risk and failed to eliminate the risk. The court further held that the trial court did not improperly rely on anticipatory neglect as to the other child (GW) because § (b)(ii) applies when “the child or a sibling” suffered sexual abuse. Finally, the court upheld the best-interests findings because the trial court considered the children’s separate bonds, relative placement, and need for permanency. Conditionally reversed and remanded for ICWA notice compliance.

Allegedly nonconforming structure in a subdivision; Deed restrictions; Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham; Belated request for post-construction approval; Whether a deed provision was void & unenforceable for vagueness; A homeowners association’s authority to pursue litigation; Tuscany Grove Ass’n v Peraino; Applicability of a voter-approval requirement

The court held that while the deed provision at issue, Section 15, was not void and unenforceable for vagueness, Article XII, Section 2 of plaintiff-Homeowners Association’s Bylaws prohibited this litigation because plaintiff failed to obtain co-owner voter approval for its cost. Thus, it affirmed the trial court’s dismissal of plaintiff’s action for declaratory relief concerning an allegedly nonconforming structure defendants built in their backyard without the required pre-approval of plaintiff. Plaintiff first asserted that the trial court erred in “ruling that defendants cured their failure to obtain approval” by requesting it after construction was complete. The court agreed “with plaintiff that such reasoning would have been erroneous,” but it did not find that the trial court engaged in that reasoning. And “the question of precisely when defendants sought approval of the structure now is irrelevant, as the only remaining issue to decide is whether the structure should be removed because it violates Section 15.” Next, the court agreed with plaintiff that the trial court erred in “ruling that Section 15 of the Warranty Deed is void and unenforceable” for lack of sufficient standards. The court held that the provision included “sufficient standards governing whether approval of a structure is warranted by plaintiff.” Further, the “mere fact that Section 15 seemingly allows plaintiff unilateral authority to grant or deny approval for a structure is not a basis for voiding” it. But defendants, as an alternate ground for affirmance, argued that the case had to “be dismissed because plaintiff did not obtain voter approval for these litigation expenses, contrary to Article XII, Section 2 of the Bylaws[.]” The court concluded that an “expense for litigation such as the instant case is not an ordinary and recurring operating expenditure. Rather, it is a non-recurring ‘nonoperating expenditure’ of plaintiff” and thus, subject to Article XII, Section 2’s voter-approval requirement. Because plaintiff did not obtain this approval, it did not have the authority to maintain this litigation.

Termination of parental rights; Indian Child Welfare Act (ICWA); Michigan Indian Family Preservation Act; ICWA notice; Conditional reversal; § (b)(ii) (failure to protect from sexual abuse); MCR 3.977(E); Initial dispositional hearing; Best interests; Relative placement

The court held that conditional reversal was required because the record lacked ICWA-notice documentation, but it rejected respondent-mother’s challenges to statutory grounds and best interests. The trial court terminated respondent’s parental rights under § (b)(ii) after finding she failed to protect the children from sexual abuse by their maternal grandfather. On appeal, the court first held that conditional reversal was required because the lower court file did not include copies of notices or return receipts showing notice to possible tribes. The court reasoned ICWA requires “‘certain documents be included in the record,’” and without them the error could not be deemed harmless. The court next held that the trial court could terminate at the initial disposition on an amended petition because MCR 3.977(E) “clearly contemplates” an amended petition requesting termination. It also held that § (b)(ii) was established because witnesses credibly testified respondent was told in 2021 that one child (JW) had disclosed sexual abuse, yet she later returned the children to the abuser’s home, and the court was not “definitely and firmly convinced” that the trial court erred in finding she placed them at risk and failed to eliminate the risk. The court further held that the trial court did not improperly rely on anticipatory neglect as to the other child (GW) because § (b)(ii) applies when “the child or a sibling” suffered sexual abuse. Finally, the court upheld the best-interests findings because the trial court considered the children’s separate bonds, relative placement, and need for permanency. Conditionally reversed and remanded for ICWA notice compliance.