42 USC § 1983; Substantive due process; Fourteenth Amendment; State-created danger; DeShaney v Winnebago Cnty Dep’t of Soc Servs; Noncustodial suicide; Wilson v Gregory; Affirmative act; Deliberate indifference; Qualified immunity; Conspiracy to violate constitutional rights; Monell v Department of Soc Servs; Municipal liability; Intentional infliction of emotional distress (IIED); Michigan governmental immunity; Odom v Wayne Cnty

[This appeal was from the ED-MI.] The court held that defendants were entitled to qualified immunity on plaintiff’s state-created-danger claim and to Michigan governmental immunity on the IIED claim. Fourteen-year-old JPZ was suspended after a school-bus altercation, questioned by a school resource officer and told about a purported “Three Strike” law, became visibly distraught, and later died by suicide at home. His father sued the school district, principal, school resource officer, and Macomb County. The district court denied defendants’ motions to dismiss most claims on immunity grounds. On appeal, the court held that the state-created-danger claim failed because plaintiff did not allege an affirmative act that made JPZ more likely to be exposed to “private acts of violence by a third party.” It explained that the Sixth Circuit has “‘not . . . extended the state-created-danger exception to . . . instances of suicide by someone not in official custody,’” and that suicide is not “a harm inflicted by a third party.” The court also held that plaintiff failed to allege deliberate indifference because neither the principal nor the officer knew JPZ was at substantial risk of suicide, and knowledge of his ADHD diagnosis alone did not show a specific suicide risk. The court further held that the conspiracy and Monell claims failed because there was no underlying constitutional violation. Finally, the court held that the principal and officer were entitled to governmental immunity on the intentional-tort claim because the allegations showed, at most, that they used scared-straight tactics and seclusion to correct future school behavior, not that they acted with malice or callous disregard for JPZ’s safety. Reversed and remanded.

Claim under the Fifth Amendment’s Takings Clause; “Regulatory taking”; Due process claims; Ripeness; Constitutional ripeness; Prudential ripeness; Distinct rule for “land-use cases”; Catholic Healthcare Int’l, Inc v Genoa Charter Twp; Finality requirement; Pakdel v City & Cnty of San Francisco

Holding that plaintiff-SW Nashville’s takings and due process claims were ripe, the court reversed the district court’s dismissal order and remanded. Plaintiff wants “to develop an uninhabited parcel that it owns in” Nashville. Defendant-Metropolitan Government (Metro) has refused to process its building-permit “application in the normal course[,]” maintaining a development hold on the property while evaluating broader area infrastructure plans. What was at issue on appeal was “the district court’s threshold dismissal of” plaintiff’s claims on ripeness grounds. The court held that the claims were “both constitutionally and prudentially ripe.” As to the former, “Metro’s decision to impose the development hold—a hold that in turn precluded SW Nashville’s desired development of its property— occurred years ago. SW Nashville also has no trouble showing that it is ‘threatened with imminent injury in fact.’ Indeed, it has already suffered a ‘classic pocketbook injury,’ in the form of sunk carrying costs, ‘sufficient to give [it] standing.’” As to prudential ripeness, “‘land-use cases’ come with their own distinct rule for addressing ripeness” – the necessity of a definitive land-use decision, referred to as the “finality requirement.” Applying that framework, the court concluded “that Metro’s development hold on SW Nashville’s property is sufficiently final for ripeness purposes.” As to definitiveness, in “2022, Metro ‘committed to a position’ on SW Nashville’s permit application. That decision was to block SW Nashville from ‘undertaking any construction or development’ by ‘prohibit[ing] review’ of [its] application indefinitely.” And Metro has continued to adhere to this “definitive” decision. The court found that plaintiff showed “Metro’s commitment to a decision that bars SW Nashville from developing its property. And SW Nashville now seeks to challenge that decision. ‘[N]othing more’ is required for ‘de facto finality.’” The court noted that plaintiff had “no means to alter Metro’s no-development decision[,]” which it asserted had “rendered its property ‘undevelopable and unsellable.’ Metro’s affirmative choice to freeze any development of SW Nashville’s parcel was thus a property-use decision made, not a decision delayed. That is all prudential ripeness requires.”

Bindover; Preliminary exam; Probable cause; People v Henderson; CSC I; Person under 13; MCL 750.520b(1)(a); Sexual penetration; MCL 750.520a(r); Sexual contact; MCL 750.520a(q); Sexual purpose; People v Levran; People v Nyx; People v Lemons; Statutory interpretation; Fair import of penal code; MCL 750.2; Ejusdem generis; People v Burkman; Bona fide medical treatment or hygienic care by parent; Vagueness & overbreadth; Fundamental right to care for child; In re Sanders; Jury instruction; People v Jarman

The court held that sexual purpose is not an element of CSC I based on sexual penetration of a child under 13, but a parent’s bona fide medical treatment or hygienic care of a child is not sexual penetration. Defendant was charged with two counts of CSC I and child abuse after his infant twin sons were found with severe anal and rectal injuries, and he asserted that he had inserted wipes into their rectums to treat constipation. The district court bound him over on the CSC I counts and the circuit court denied his motion to quash. In this interlocutory appeal, the court first held that the prosecutor was not required to prove a sexual purpose. It reasoned that the definition of sexual penetration contains “no purpose-based limiting principle,” especially when contrasted with the immediately preceding definition of sexual contact, which expressly requires contact done for sexual arousal, “for a sexual purpose, or in a sexual manner.” The court next held that the catchall phrase in MCL 750.520a(r) does not cover every possible intrusion into a genital or anal opening. Applying ejusdem generis, it concluded that any “other intrusion” must be of the same “class or type” as sexual intercourse, cunnilingus, fellatio, and anal intercourse, meaning the intrusion must be “in some sense, a sexual intrusion.” Thus, a parent who provides “bona fide, age-appropriate medical treatment or hygienic care” to a child does not violate the CSC I statutes merely because that care requires an intrusion into a genital or anal opening. This construction defeated defendant’s vagueness and overbreadth challenge because the statute did not criminalize a parent’s fundamental right and duty to care for a child. Finally, the court held the bindover was supported by probable cause because the nurse practitioner testified that the infants’ injuries were consistent with blunt-force penetrative trauma and that defendant’s claimed medical-care explanation was not consistent with the medical findings. Affirmed.

Sentencing proportionality; Within-guidelines sentence; People v Posey; People v Brcic; Unusual circumstances; People v Ventour; People v Snow factors; Felony-firearm; MCL 750.227b; Consecutive sentencing; Predicate felony; FIP; MCL 750.224f; CCW; MCL 750.227; People v Smith; People v Clark; Judgment of sentence correction

The court held that defendant failed to overcome the presumption that his within-guidelines sentences were proportionate, but that the judgment of sentence had to be corrected because the felony-firearm sentence could not run consecutive to the CCW sentence. Defendant was acquitted of second-degree murder and one felony-firearm count, but convicted of FIP, felony-firearm predicated on FIP, and CCW. The trial court sentenced him as a fourth-offense habitual offender to concurrent 4-to-10-year terms for FIP and CCW, preceded by the two-year felony-firearm sentence. On appeal, the court first held that defendant’s within-guidelines sentences were presumptively proportionate, and he failed to identify “unusual circumstances” to rebut that presumption. The trial court was not required to expressly discuss each Snow factor or explain why a within-guidelines sentence was reasonable, and the record showed it calculated the guidelines and did not impose the discretionary maximum life sentence. The court next held that the trial court erred by making the felony-firearm sentence consecutive to both FIP and CCW. A felony-firearm sentence may run consecutively only to the predicate felony, and MCL 750.227b expressly excludes CCW as a possible predicate offense. Thus, the felony-firearm sentence must run consecutive only to FIP and concurrent with CCW. Affirmed and remanded for correction of the judgment of sentence.

Self-defense & defense of others; People v Dupree; MCL 780.972(1)(a); Credibility; Sentencing; Scoring of OVs 3 & 5; People v Houston; MCL 777.35(1)(a); People v Baskerville; People v Felton; Waiver; Ineffective assistance of counsel; Failure to object

The court held that the record showed beyond a reasonable doubt that defendant did not act in lawful self-defense or defense of others. As to his sentencing challenges, Houston controlled as to the scoring of OV 3, OV 5 was correctly scored at 15 points, and defense counsel was not ineffective for failing to object. Defendant was convicted of second-degree murder, felony-firearm, CCW, and resisting or obstructing a police officer for the shooting and death of victim-J. Defendant contended “that he acted in self-defense and in the defense of others because” J was choking defendant’s friend (B), and he feared for his and B’s lives. But the court held that the prosecution presented sufficient evidence for a rational trier of fact to reject his self-defense claim. While he testified that he was scared for B’s “life when he fired his gun twice, this was contrasted by the testimony from one witness that the fight between [J] and [B] was not serious. Neither [J] nor [B] had a weapon. Defendant and one witness stated that [B] was choked during the fight. There was no indication as to how long [B] was choked or if he lost consciousness at any point. Defendant acknowledged that he did not know where he was aiming and could have hit [B]. A rational juror could have found that [he] was not reasonably afraid for his” or B’s lives when he fired. The court also noted that he “did not mention being afraid for his life or [B’s] life when speaking with the police.” It concluded that the evidence showed “there was not an imminent risk of death or great bodily harm to [B] or defendant, and [his] use of deadly force was unnecessary. Additionally, by returning to the apartment after being asked to leave, defendant was no longer in a place where he had the legal right to be, as required for self-defense under MCL 780.972(1).” As to the scoring of OV 5, the statements of J’s family at sentencing were more than sufficient to show that they “experienced serious psychological injury that may require professional treatment beyond the grief caused by losing a family member. There was discussion of the generational impact this will have on [J’s] family, including his three young children.”

Motion for relief from judgment; MCR 6.508(D)(3); Good cause; Ineffective assistance of trial & appellate counsel; Felony murder jury instructions; Aiding & abetting; Failure to request a specific unanimity instruction; People v Cooks; People v Smielewski; Opinion testimony from a first responder & a paramedic; Interplay between MRE 701 & 702; People v Dobek

Rejecting defendant’s ineffective assistance of trial and appellate counsel claims, the court affirmed the denial of her motion for relief from judgment. She was convicted of first-degree felony murder, torture, first-degree child abuse, and possession of marijuana in a joint trial with her husband for the death of her three-year-old stepdaughter, P. Defendant asserted that her trial counsel was ineffective as to the felony murder jury instructions. The court first found that her claims an “instruction created a judicial presumption that she had already been determined to have caused death and that this fault allowed her to be convicted of this crime without a jury finding of causation are refuted by the plain and clear language of the instructions.” The trial court clearly stated that the prosecution had the burden to prove that defendant caused P’s death “beyond a reasonable doubt and, also, that defendant had to have, either directly or by aiding and abetting, caused” her death. Defendant also asserted that M Crim JI 16.4b should have been given. The court concluded that because the unrebutted evidence showed there was no dispute as to what act caused P’s death, defendant could not “show how she was denied a fair trial by failing to specify the alleged act causing [P’s] death in the jury instructions themselves because the jury was plainly aware of this. The jury instructions, taken as a whole, ‘fairly presented the issues to be tried and sufficiently protected the defendant’s rights.’” Any objection to them by trial counsel would have been futile. The court also held that no special unanimity instruction was warranted, so trial counsel was not ineffective for failing to request one. As to the testimony of a paramedic and assistant fire chief/first responder, given their extensive experience, they “were qualified to opine on how [P’s] condition was distinguishable from the other patients to whom they have responded.” Thus, even if trial counsel had objected that their testimony was inadmissible under MRE 701, it would have been admissible under MRE 702. Finally, appellate counsel was not ineffective for failing to raise meritless arguments on direct appeal.

Self-defense; MCL 780.972; Credibility; Ineffective assistance of counsel; Failure to investigate & present additional witnesses; Factual predicate

The court held that the prosecution disproved defendant’s self-defense claim beyond a reasonable doubt, and that he failed to show how his trial counsel was ineffective as to the investigation and presentation of witnesses. Thus, it affirmed his bench-trial felonious assault and felony-firearm convictions arising from an altercation between apartment building tenants. The victim (S) testified that after defendant closed his apartment door, S “began walking away and going down the building’s stairs. Seconds later, defendant opened his apartment door and fired his shotgun toward” S. After seeing damage caused by the bullet, S “believed that if he had not stepped aside a moment earlier while on the stairs, it would have struck him.” Two other witnesses (B and G) corroborated this sequence of events. While there was evidence of S’s “shoeprint on defendant’s apartment door, suggesting that he kicked [it], the apartment door was intact and showed no signs of damage. Simply put, defendant left his position of safety within his apartment to open his door and discharge his shotgun in” S’s direction. This belied his “claim that he acted in self-defense.” Defendant challenged G’s credibility due to their prior history and her noise complaints. G admitted they had “previously made noise complaints against each other, but she denied that they had an adversarial relationship. Regardless, the trial court did not rely solely on” her testimony – it also heard testimony from S and B. As to defendant’s ineffective assistance claim, the court noted that he failed to identify “a specific witness that defense counsel should have investigated and presented at trial, much less the potential testimony of that witness. Thus, defendant has failed to sustain his burden of showing ineffective assistance.”

Sentencing; OV 10; Exploitation of vulnerable victim; “Predatory conduct”; MCL 777.40(1)(a) & (3)(a); People v Cannon; People v Huston; OV 12; Contemporaneous felonious criminal acts; MCL 777.42(1)(b); Kidnapping; MCL 750.349(1)(c); CSC III; MCL 750.520d(1)(b); OV 19; Interference with administration of justice; MCL 777.49(1)(c); Resentencing; People v Francisco; De novo resentencing; People v Lampe

The court held that defendant was entitled to resentencing because OV 19 had to be reduced and the guidelines range changed, while OV 12 was properly scored at least 10 points. Defendant pled guilty to extortion and no contest to attempted CSC III after threatening to falsely accuse her former boyfriend, a parolee, of molesting her granddaughter unless he had sex with her. The trial court scored OV 10 at 15 points, OV 12 at 10 points, and OV 19 at 25 points, producing a 51-to-85-month minimum guidelines range. On appeal, the court first accepted the prosecution’s concession that OV 19 should have been scored at 10 points because defendant did not threaten the security of a court or penal institution, but instead attempted to interfere with justice by making a false police report. Because that change reduced the range, resentencing was required. The court also held that the trial court erred in its OV 10 reasoning because defendant’s threats based on the victim’s parolee status were not “preoffense conduct” but were instead the very acts of extortion. However, because resentencing is de novo, the trial court may consider the prosecution’s alternate luring theory on remand. The court next held that OV 12 was properly scored at a minimum of 10 points because defendant committed two contemporaneous felonious acts against a person by kidnapping the victim and coercing him to perform cunnilingus, beyond the conduct underlying the attempted CSC III conviction. Vacated and remanded.

Substitution of appointed counsel; Sixth Amendment; Good cause; People v Strickland; Prosecutorial error; Vouching; People v Dobek; Ineffective assistance of counsel; Failure to object to improper commentary; People v Douglas; Sex Offenders Registration Act (SORA); Cruel or unusual punishment; Const 1963, art 1, § 16; Eighth Amendment; People v Kardasz; Lifetime electronic monitoring (LEM); Fourth Amendment; People v Hallak

The court held that defendant was not entitled to relief on his substitute-counsel, prosecutorial-error, ineffective-assistance, SORA, or LEM claims. Defendant was convicted of CSC I and CSC II after the victim testified that he sexually assaulted her during car rides when she was a young child, and the jury also heard that he admitted touching her vagina and touching her in an “uncomfortable” manner. Before trial, defendant said he wanted to “fire” his appointed attorney, but he proceeded to trial with that attorney. On appeal, the court first held that the trial court did not abuse its discretion by failing to inquire further or appoint substitute counsel because defendant “failed to adequately articulate a basis for substitution” and gave no legitimate reason suggesting a breakdown in the attorney-client relationship. The court next held that the prosecutor did not elicit improper vouching from the victim’s aunt or uncle because they testified only about behavioral changes, not the victim’s truthfulness. Although the mother’s volunteered statement that the victim “doesn’t lie” may have been improper, any error was not prejudicial because the statement was brief, the victim’s testimony was corroborated, and defendant’s own explanation for the touching was “simply implausible.” The court also held that counsel was not ineffective for failing to object or for conceding that delayed disclosure can be common. Finally, the court held that Kardasz foreclosed defendant’s facial SORA challenge and his as-applied challenge failed because he committed “the most elevated registrable offense,” while Hallak foreclosed his cruel-or-unusual and Fourth Amendment challenges to LEM. Affirmed.

Admission of a federal agent’s testimony about recorded jail calls; FRE 702; United States v Glenn; Plain error review; Admission of a video of a controlled drug buy; The Confrontation Clause; Whether any of the statements in the video were hearsay; FRE 801(d)(2) & (c)(2); Sentencing; Procedural reasonableness; Reliance on acquitted conduct; USSG § 1B1.3(c); “Overlapping conduct”; § 1B1.3 cmt n 10

The court held that defendant-Barber failed to show plain error in a federal agent’s testimony about her recorded jail calls, and that the admission of a video of a controlled buy did not violate the Confrontation Clause. Finally, her sentence was not procedurally unreasonable because the district court considered “overlapping conduct” in calculating the amount of drugs attributable to her. She was convicted of drug conspiracy, distribution, and possession counts and of using a phone to facilitate a drug felony. The district court calculated “a Guidelines range of 262 to 327 months” and sentenced her to 150 months. On appeal, the court first concluded that “the agent was qualified to translate the coded language in Barber’s calls” and that he “properly applied his experience to explain the slang used in” them. While some of his testimony was “a closer call[,]” because Barber failed to object, the court did not “know for sure whether the agent was merely interpreting ordinary English or applying his specialized knowledge. That means any errors in admitting this testimony aren’t clear or obvious.” Further, even if they were, “they still wouldn’t warrant reversal because they didn’t affect Barber’s substantial rights.” As to the video, because it “didn’t include any hearsay, its admission didn’t violate the Confrontation Clause.” As to sentencing, Barber noted “the jury found that her crimes involved lower amounts than those charged[.]” She argued that the district court’s use of the higher drug quantities in the PSR to calculate her Guidelines range constituted improper reliance on acquitted conduct. The court concluded that even if it was, she “still wouldn’t be entitled to resentencing.” The Guidelines allow “district courts to consider conduct that ‘also establishes, in whole or in part, the instant offense of conviction’” – overlapping conduct. The jury convicted her of distributing meth “and conspiring to possess with intent to distribute” meth, heroin, cocaine, and fentanyl. So even if it “acquitted her of the aggravated charges involving the higher drug quantities, the same drugs underlying those greater offenses ‘establish[], in whole or in part,’ the lesser-included offenses of conviction.” As a result, “§ 1B1.3(c) didn’t bar the district court from considering the higher drug amounts.” Affirmed.

Petition to modify a child’s guardianship; Parenting time; MCL 712A.19a(14); In re Ballard; Factual findings; Credibility; Annual reviews of a guardianship; Standard of review applicable to the trial court’s decision; Pickering v Pickering; Distinguishing In re COH

Noting that trial courts are authorized, but not required, to order parenting time in a juvenile guardianship, the court held that the trial court’s decision not to do so here must be affirmed under the applicable highly deferential standard of review. The guardianship was established in 2021 after child protection proceedings were initiated. The court noted that the trial court’s decision to deny petitioner-mother’s petition must be affirmed unless its “factual findings ‘were against the great weight of the evidence,’ or either a clear legal error or a ‘palpable abuse of discretion’ occurred.” It found that none of these factors were present on the record. The trial court denied the “petition because it concluded that LNW was not ready for contact with petitioner and, therefore, an order of parenting time at this annual review was not appropriate. This finding is factual in nature and is not against the great weight of the evidence and will not be overturned on appeal.” The court noted that if the trial court had denied the “request outright and not left open the likelihood that it would be considered again at the next annual review hearing, such a finding may likely have been reversed.” But that was not the case. The “trial court summarized testimony from three mental health professionals who agreed that it would be inappropriate, if not detrimental, to suddenly order parenting time given LNW’s age, maturity, and the status of the relationship between the adults in her life. While all agreed that contact between LNW and petitioner will take place at some juncture,” the experts also agreed it should begin after “a gradual process facilitated by therapists and with LNW’s needs in mind.” The only one who had personally counseled LNW “testified that she did not believe LNW was emotionally mature enough for such contact to begin now.” The court noted the trial court’s “decision must be evaluated utilizing the highly deferential standard of review that [it] has previously applied to requests for parenting time with children subject to a juvenile guardianship under MCL 712A.19a” and that was not the standard applied in COH. Affirmed.

Claim under the Fifth Amendment’s Takings Clause; “Regulatory taking”; Due process claims; Ripeness; Constitutional ripeness; Prudential ripeness; Distinct rule for “land-use cases”; Catholic Healthcare Int’l, Inc v Genoa Charter Twp; Finality requirement; Pakdel v City & Cnty of San Francisco

Holding that plaintiff-SW Nashville’s takings and due process claims were ripe, the court reversed the district court’s dismissal order and remanded. Plaintiff wants “to develop an uninhabited parcel that it owns in” Nashville. Defendant-Metropolitan Government (Metro) has refused to process its building-permit “application in the normal course[,]” maintaining a development hold on the property while evaluating broader area infrastructure plans. What was at issue on appeal was “the district court’s threshold dismissal of” plaintiff’s claims on ripeness grounds. The court held that the claims were “both constitutionally and prudentially ripe.” As to the former, “Metro’s decision to impose the development hold—a hold that in turn precluded SW Nashville’s desired development of its property— occurred years ago. SW Nashville also has no trouble showing that it is ‘threatened with imminent injury in fact.’ Indeed, it has already suffered a ‘classic pocketbook injury,’ in the form of sunk carrying costs, ‘sufficient to give [it] standing.’” As to prudential ripeness, “‘land-use cases’ come with their own distinct rule for addressing ripeness” – the necessity of a definitive land-use decision, referred to as the “finality requirement.” Applying that framework, the court concluded “that Metro’s development hold on SW Nashville’s property is sufficiently final for ripeness purposes.” As to definitiveness, in “2022, Metro ‘committed to a position’ on SW Nashville’s permit application. That decision was to block SW Nashville from ‘undertaking any construction or development’ by ‘prohibit[ing] review’ of [its] application indefinitely.” And Metro has continued to adhere to this “definitive” decision. The court found that plaintiff showed “Metro’s commitment to a decision that bars SW Nashville from developing its property. And SW Nashville now seeks to challenge that decision. ‘[N]othing more’ is required for ‘de facto finality.’” The court noted that plaintiff had “no means to alter Metro’s no-development decision[,]” which it asserted had “rendered its property ‘undevelopable and unsellable.’ Metro’s affirmative choice to freeze any development of SW Nashville’s parcel was thus a property-use decision made, not a decision delayed. That is all prudential ripeness requires.”

Transfer of Jurisdiction Over Highways Act; County-to-city transfer; MCL 247.852; County Road Law; MCL 224.18; Supersession; MCL 247.861; Highway authority; Geographic restriction; Acer Paradise, Inc v Kalkaska Cnty Rd Comm’n; Declaratory judgment

The court held that the Transfer Act, not MCL 224.18, governed the 2006 transfer of jurisdiction over the disputed road section from the county road commission to plaintiff-City. The City sued after defendants placed a chain across a short section of Old Pinckney Road, asserting the section had been abandoned and belonged to them. The trial court ruled that MCL 224.18 barred the City from acquiring jurisdiction because the disputed section was outside the City’s municipal boundary. It granted defendants partial summary disposition on the City’s declaratory-judgment claim. On appeal, the court held that the trial court applied the wrong statute. Under Acer Paradise, the Transfer Act applies to transfers “from a county to a city or village,” while MCL 224.18 applies to transfers from a county to a township. Because the transferee here was a city, “the Transfer Act—not MCL 224.18—governs this case.” The court further held that the Transfer Act contains no geographic restriction requiring the transferred highway to be within the transferee’s municipal boundary, and courts cannot read such a restriction into the statute. Thus, the City stated a viable claim that it had jurisdiction over the disputed section, and defendants’ counterclaim based on MCL 224.18 failed as a matter of law. Reversed and remanded.

Transfer of Jurisdiction Over Highways Act; County-to-city transfer; MCL 247.852; County Road Law; MCL 224.18; Supersession; MCL 247.861; Highway authority; Geographic restriction; Acer Paradise, Inc v Kalkaska Cnty Rd Comm’n; Declaratory judgment

The court held that the Transfer Act, not MCL 224.18, governed the 2006 transfer of jurisdiction over the disputed road section from the county road commission to plaintiff-City. The City sued after defendants placed a chain across a short section of Old Pinckney Road, asserting the section had been abandoned and belonged to them. The trial court ruled that MCL 224.18 barred the City from acquiring jurisdiction because the disputed section was outside the City’s municipal boundary. It granted defendants partial summary disposition on the City’s declaratory-judgment claim. On appeal, the court held that the trial court applied the wrong statute. Under Acer Paradise, the Transfer Act applies to transfers “from a county to a city or village,” while MCL 224.18 applies to transfers from a county to a township. Because the transferee here was a city, “the Transfer Act—not MCL 224.18—governs this case.” The court further held that the Transfer Act contains no geographic restriction requiring the transferred highway to be within the transferee’s municipal boundary, and courts cannot read such a restriction into the statute. Thus, the City stated a viable claim that it had jurisdiction over the disputed section, and defendants’ counterclaim based on MCL 224.18 failed as a matter of law. Reversed and remanded.

42 USC § 1983; Substantive due process; Fourteenth Amendment; State-created danger; DeShaney v Winnebago Cnty Dep’t of Soc Servs; Noncustodial suicide; Wilson v Gregory; Affirmative act; Deliberate indifference; Qualified immunity; Conspiracy to violate constitutional rights; Monell v Department of Soc Servs; Municipal liability; Intentional infliction of emotional distress (IIED); Michigan governmental immunity; Odom v Wayne Cnty

[This appeal was from the ED-MI.] The court held that defendants were entitled to qualified immunity on plaintiff’s state-created-danger claim and to Michigan governmental immunity on the IIED claim. Fourteen-year-old JPZ was suspended after a school-bus altercation, questioned by a school resource officer and told about a purported “Three Strike” law, became visibly distraught, and later died by suicide at home. His father sued the school district, principal, school resource officer, and Macomb County. The district court denied defendants’ motions to dismiss most claims on immunity grounds. On appeal, the court held that the state-created-danger claim failed because plaintiff did not allege an affirmative act that made JPZ more likely to be exposed to “private acts of violence by a third party.” It explained that the Sixth Circuit has “‘not . . . extended the state-created-danger exception to . . . instances of suicide by someone not in official custody,’” and that suicide is not “a harm inflicted by a third party.” The court also held that plaintiff failed to allege deliberate indifference because neither the principal nor the officer knew JPZ was at substantial risk of suicide, and knowledge of his ADHD diagnosis alone did not show a specific suicide risk. The court further held that the conspiracy and Monell claims failed because there was no underlying constitutional violation. Finally, the court held that the principal and officer were entitled to governmental immunity on the intentional-tort claim because the allegations showed, at most, that they used scared-straight tactics and seclusion to correct future school behavior, not that they acted with malice or callous disregard for JPZ’s safety. Reversed and remanded.

Termination under § 19b(3)(c)(i); Reasonable reunification efforts; In re Atchley; Children’s best interests

The court held that the trial court did not err in finding that (1) reasonable reunification efforts were made, (2) § (c)(i) was proven by clear and convincing evidence, and (3) terminating respondent-mother’s parental rights was in the children’s best interests. She was offered mental-health and substance-abuse counseling, assistance with finding suitable housing and rehabilitation facilities, and supervised parenting time. But the record indicated that she was uncommunicative with the DHHS “and did not meaningfully participate in the reunification services offered until more than six months after the” children were removed from her care. She “then was denied access to a rehabilitation facility” due to lack of adequate insurance but did not accept the DHHS’s offer of help in obtaining Medicaid. Her only request for additional services was for housing resources, which the DHHS provided. As to § (c)(i), 182 or more days passed between the initial dispositional order and termination. The conditions that led to the adjudication were her “unsuitable housing, substance abuse, mental health, lack of resource management, and lack of parenting skills[.]” Those conditions generally continued throughout the case. While she completed a drug rehabilitation program, by the time of the termination hearing, she “had no housing or income” and these issues were unlikely “to be resolved until she was released from jail, at which point the children would have been in foster care for well over a year.” As to their best interests, she “was largely noncompliant with her case-service plan and had only been sober for a short time. It also was unlikely that [they] would be able to return to her care in the foreseeable future. The three oldest children had special needs and did not show a strong bond with respondent and, while the youngest child did” so, the trial court did not err in concluding that it “did not outweigh the factors” favoring termination. And the children “were in a preadoptive foster care placement where their needs were being met, which showed a clear advantage over respondent’s home environment.” Affirmed.