Attorney fees related to a request for modification of parenting time; MCR 3.215 (allowing family court referees to hear certain types of motions in domestic relations cases); Whether an objection to the referee’s recommendation was frivolous; Kostreva v Kostreva; Intent to harass; Arguable legal basis

Holding that the trial court erred in ruling that plaintiff-father’s second motion to modify parenting time and his objection to the referee’s recommendation denying it were frivolous, the court reversed the order awarding defendant-mother attorney fees. Defendant argued at the hearing on plaintiff’s objection to the referee’s recommendation that plaintiff’s motion and objection “were frivolous because they were intended to harass defendant, and plaintiff’s position was devoid of arguable legal merit. The trial court agreed that the objection was frivolous, but it did not specify the reasoning for this determination.” While the trial court found “that plaintiff was attempting to relitigate parenting time ‘literally, I mean five minutes after the judgment was entered,’ it did not conclude that he was doing so with an intent to harass, embarrass, or injure.” And the record did not indicate that his “motion or objection were filed for the improper purpose of harassment rather than a legitimate attempt to obtain the relief sought, i.e., a modification to his scheduled parenting time that would permit him to spend more time with his child.” The court determined that, “because the trial court did not articulate any findings of fact that would support a conclusion that plaintiff’s motion was filed with the improper purpose of harassment, to the extent that the award of attorney fees was made on this basis, it was an error.” In addition, plaintiff’s objection to the referee’s finding that he had not shown “a change of circumstances that would warrant a minor adjustment to his parenting time even though (1) he moved closer to the child, (2) his in-office work schedule changed, and (3) the child was no longer in daycare, was not so clearly devoid of legal merit that it rendered the objection frivolous. The mere fact that the trial court ultimately adopted the referee’s recommendation over plaintiff’s objection does not, in and of itself, render the objection frivolous.” The court also noted that, “contrary to the trial court’s observation at the hearing, the more modest request made by plaintiff in his second motion was not identical to his first motion for a modification.”

42 USC § 1983; Deliberate indifference to a pretrial detainee’s medical needs; Qualified immunity; Whether defendants-corrections officers “reasonably deferred” to medical staff who were treating the detainee; Grote v Kenton Cnty; Claim under Monell v Department of Soc Servs; Refusal to exercise supplemental jurisdiction over state-law claims

[This appeal was from the WD-MI.] The court affirmed summary judgment based on qualified immunity for defendants-jail corrections officers in this case involving claims of deliberate indifference to a pretrial detainee’s medical needs. It held that once medical professionals became involved in the detainee’s treatment, “the officers reasonably deferred to” them. Plaintiff-estate’s decedent, Joseph Hehrer, a detainee at the Clinton County jail, became ill. Medical “staff repeatedly evaluated him” but failed to discover “that he suffered from a previously undiagnosed condition: diabetes.” He was removed to a hospital, where he died from diabetes complications. At his first meeting with defendant-nurse, he denied having diabetes or any other medical conditions except a concussion. Plaintiff asserted deliberate indifference claims against several officers and a Monell claim against defendant-County for failure to adequately train them. It also brought several state-law claims against a company the County contracted with to provide medical care to inmates and company employees. The district court granted the County and its officers summary judgment and refused to exercise supplemental jurisdiction over the state-law claims. Treating Hehrer as a pretrial detainee under the Fourteenth Amendment, the court explained that “once inmates begin to receive care from a medical professional, officers typically act reasonably by following the ‘medical professional’s diagnosis or treatment.’” Although it noted that such deference “has its limits[,]” this case resembled “others in which we have held that corrections officers could ‘reasonably defer’ to the medical staff who were treating an inmate.” And the cases on which plaintiff relied did “not look anything like this one.” As to the Monell claim, the court concluded that even if it assumed plaintiff showed that the “County did not adequately train its officers, it has not established that the County acted with deliberate indifference.” Finally, the district court did not abuse its discretion by dismissing the state-law claims where this circuit’s “caselaw requires district courts to presume that they should decline [supplemental] jurisdiction if they have rejected all the federal claims before trial.”

42 USC § 1983; Deliberate indifference to a pretrial detainee’s medical needs; Qualified immunity; Whether defendants-corrections officers “reasonably deferred” to medical staff who were treating the detainee; Grote v Kenton Cnty; Claim under Monell v Department of Soc Servs; Refusal to exercise supplemental jurisdiction over state-law claims

[This appeal was from the WD-MI.] The court affirmed summary judgment based on qualified immunity for defendants-jail corrections officers in this case involving claims of deliberate indifference to a pretrial detainee’s medical needs. It held that once medical professionals became involved in the detainee’s treatment, “the officers reasonably deferred to” them. Plaintiff-estate’s decedent, Joseph Hehrer, a detainee at the Clinton County jail, became ill. Medical “staff repeatedly evaluated him” but failed to discover “that he suffered from a previously undiagnosed condition: diabetes.” He was removed to a hospital, where he died from diabetes complications. At his first meeting with defendant-nurse, he denied having diabetes or any other medical conditions except a concussion. Plaintiff asserted deliberate indifference claims against several officers and a Monell claim against defendant-County for failure to adequately train them. It also brought several state-law claims against a company the County contracted with to provide medical care to inmates and company employees. The district court granted the County and its officers summary judgment and refused to exercise supplemental jurisdiction over the state-law claims. Treating Hehrer as a pretrial detainee under the Fourteenth Amendment, the court explained that “once inmates begin to receive care from a medical professional, officers typically act reasonably by following the ‘medical professional’s diagnosis or treatment.’” Although it noted that such deference “has its limits[,]” this case resembled “others in which we have held that corrections officers could ‘reasonably defer’ to the medical staff who were treating an inmate.” And the cases on which plaintiff relied did “not look anything like this one.” As to the Monell claim, the court concluded that even if it assumed plaintiff showed that the “County did not adequately train its officers, it has not established that the County acted with deliberate indifference.” Finally, the district court did not abuse its discretion by dismissing the state-law claims where this circuit’s “caselaw requires district courts to presume that they should decline [supplemental] jurisdiction if they have rejected all the federal claims before trial.”

Whether adjudication was against the great weight of the evidence & based on insufficient evidence; People v Knepper

Holding that respondent-juvenile failed to show his CSC I “adjudication was against the great weight of the evidence or based on insufficient evidence[,]” the court affirmed. The arguments relied “on three inconsistencies or uncertainties in [victim-]JJ’s testimony, none of which undermine the adjudication below.” The court rejected respondent’s argument for several reasons. First, it was “true that JJ testified that respondent told him to move off the bed, yet stated at the Kids Talk interview that respondent physically moved him off the bed. But this Court recently rejected a great weight of the evidence argument based on a similar inconsistency, i.e., one which does not go to an element of the crime.” The court found as in Knepper, respondent did “not identify any ‘specific element’ of the adjudicated crime which JJ’s inconsistent statements negates. How JJ moved from the bed to the floor does not relate to the elements of CSC-I—sexual penetration of a victim under 13 years old.” The court found that the “specific inconsistency between JJ’s interview and the Kids Talk interview does not entitle respondent to a new trial.” Second, the court noted that “according to respondent, JJ claimed respondent’s assault ‘caused ongoing physical pain[,]’ but then admitted the pain went away within a few minutes.” This misstated the record. “JJ said the assault ‘hurt[,]’ but never testified it caused ongoing pain. [R] claimed JJ complained about ‘pain in his butt’ for about a year. Yet uncertainty about whether the assault caused JJ ongoing pain is also not a basis for vacating the trial court’s adjudication, as physical pain or injury is not an element of” CSC I. Respondent’s second argument was “factually unsupported and legally meritless.” Third, he briefly noted “that the witnesses were uncertain when the assault occurred.” The court concluded that uncertainty “as to what month or time of year the assault happened does not establish that respondent’s adjudication was against the great weight of the evidence.” Respondent next asserted “that the lack of corroboration of JJ’s testimony casts doubt on the reliability and fairness of the adjudication. However, a victim’s testimony need not be corroborated in a” CSC case. Respondent also argued “JJ’s failure to disclose respondent’s assault for three years undermines JJ’s credibility and the adjudication, but we generally will not interfere with the fact-finder’s credibility assessment.” Respondent had “not identified how the delay in reporting the assault is an exceptional circumstance to justify interfering with the trial court’s credibility determination.” Finally, he implied “the cumulative effect of the inconsistencies and lack of corroboration for JJ’s testimony entitle him to a new trial. Although the unfair prejudice of several actual errors can be aggregated to demonstrate cumulative error,” he had “not identified any actual errors.”

Motion to suppress; Standing; People v Mahdi

The court concluded that considering “the factors relevant to standing in the Fourth Amendment context, [defendant-]Mack did not have a reasonable expectation of privacy in the home.” Thus, the trial court properly found that he did not have standing to challenge the search. Mack argued the trial court erred in denying his motion to suppress. The court held that as found by the trial court, the record did “not establish that Mack intended to stay at the home that evening, only that he had spent the previous night there and had returned after work.” Because it was not clear that he “was an overnight guest, the trial court properly looked to several factors to determine whether Mack had a reasonable expectation of privacy in the home, and in particular [homeowner-F’s] bedroom and the attached bathroom or storage room.’” The court found that F’s “description of her relationship with Mack was ambiguous, describing him as a friend, sometimes lover, but not a boyfriend. She also testified that [he] worked on her home as a contractor.” The court held that the “ambiguous personal and professional relationship, as well as the fact that Mack did not own the home or claim it as his residence, suggest that he did not have standing.” Although he “exercised some control by closing the door on the officers when they first arrived, he ultimately deferred to [F] about allowing [them] inside and said nothing when she consented to searches of certain areas. Accordingly, [he] was not exercising control over the home.” The court noted that as “the trial court found, Mack repeatedly denied any possessory interest in the home or any particular area by stating that it was [F’s] house, ‘her’ bedroom, and ‘her stuff.’ [He] never objected to the search on his own behalf but argued only that the officers could not search ‘her stuff’ and gave his opinion on the scope of the parole search. Mack’s actions suggested that he did not have a subjective expectation of privacy or the ability to object to the search. Particularly with regard to the storage room, [he] failed to establish that he had any expectation of privacy in, or even used, that area.” Affirmed.

Sentencing for contempt; Guidelines range calculation; USSG § 2J1.1; Whether contempt for failing to report to prison as ordered should be treated as a felony or a misdemeanor for purposes of calculating the guidelines range; §§ 2X5.1 n 3 & 2X5.2; 18 USC § 401; § 3146; § 3553(a) factors

The court held that defendant-Owens’s contempt for failing to report to prison to serve her sentence on another conviction should be treated as a felony for purposes of calculating the guidelines and thus, the district court correctly calculated her guidelines range. The district court sentenced her to 12 months for conspiring to distribute controlled substances. It allowed her 60 days to make arrangements for her family and gave her a specified date to report to prison. She failed to report, and the district court later charged her with criminal contempt. At her combined plea and sentencing hearing, she pled guilty to contempt, and her counsel argued that she should be sentenced to 30 days. The government sought a four-month sentence. The district court calculated a guidelines range of 6-12 months and imposed a sentence of 11 months to be served consecutively with the 12 months for the conspiracy conviction. Owens argued on appeal that it miscalculated the guidelines range. The court first explained that although most federal offenses have an applicable sentencing guideline including the base-offense level for that offense and characteristics that can raise or lower that level, this is not true for the contempt guideline, § 2J1.1, which “simply provides: ‘Apply §2X5.1 (Other Offenses).’” Section 2X5.1 states “that, if the defendant’s offense is a felony without an express guideline, then we should ‘apply the most analogous guideline’ (if there is one). But if the defendant’s offense is not a felony, an application note tells us, then we should apply §2X5.2—which prescribes a base offense level of ‘6’ for Class A misdemeanors.” The court rejected the government’s argument that contempt is always a felony. Instead, it held that the determination must be made on a case-by-case basis. It found that Owens’s conduct was “identical to conduct that the code treats as felonious” – § 3146. Thus, it found that her contempt offense qualified as a felony for purposes of calculating her guidelines range. As a result. the district court correctly treated it as felonious and applied §2J1.6. The court also upheld the district court’s analysis of the § 3553(a) factors as “exemplary.” Affirmed.

Special assessment district (SAD) boundary confirmation timeliness; MCL 324.30707(5); In re Determination & Establishment of a Lake Level for the Waters of Stylus Lake (Unpub); Satutory construction; People v Yarema; Defined project, costs, proportionality & apportionment requirements; MCL 324.30711(1); In re Van Ettan Lake; Due process challenge to Part 307 procedures; In re Project Cost & Special Assessment Roll for Chappel Dam; Natural Resources & Environmental Protection Act (NREPA)

The court held that the trial court did not err by establishing and confirming the SAD boundaries for maintaining the level of Higgins Lake under Part 307 of NREPA. The case arose after petitioners-Roscommon and Crawford Counties sought to formally establish a SAD around Higgins Lake to support maintaining the court-determined lake level. The trial court held a hearing and entered an order the same day confirming the boundaries with amendments. It rejected objections that the petition was untimely and premature for lack of a defined project and cost, explaining the process was phased and that “there’s two parts: First, is establishing the boundaries of a [SAD] district which is why we’re here today. Once that’s done, if the county decides to go forward with the special assessment and assessing a tax . . . then an apportionment roll needs to be done; [f]urther hearings have to be held in that regard but that’s not why we’re here today.” On appeal, the court held the 60-day language in MCL 324.30707(5) was a directive to the trial court, not a jurisdictional bar, emphasizing “there is no express language within MCL 324.30707(5) precluding the [trial] court from confirming the [SAD] boundaries after those 60 days have passed.” It found the reasoning of an unpublished case (Stylus Lake) “persuasive and in line with the plain language of the statute and” adopted its reasoning. The court also held Part 307 does not require a defined project and costs before boundary confirmation, reasoning that “nothing requires the county board to identify a specific project and its costs before the creation or confirmation of boundaries,” and that proportionality and apportionment objections were “premature for purposes of this appeal.” The court finally held the due process argument was abandoned because respondents failed “to set forth the applicable legal principles,” and, even if considered, Part 307’s notice and hearing procedures provided a meaningful opportunity to be heard. Affirmed.

Attorney fees related to a request for modification of parenting time; MCR 3.215 (allowing family court referees to hear certain types of motions in domestic relations cases); Whether an objection to the referee’s recommendation was frivolous; Kostreva v Kostreva; Intent to harass; Arguable legal basis

Holding that the trial court erred in ruling that plaintiff-father’s second motion to modify parenting time and his objection to the referee’s recommendation denying it were frivolous, the court reversed the order awarding defendant-mother attorney fees. Defendant argued at the hearing on plaintiff’s objection to the referee’s recommendation that plaintiff’s motion and objection “were frivolous because they were intended to harass defendant, and plaintiff’s position was devoid of arguable legal merit. The trial court agreed that the objection was frivolous, but it did not specify the reasoning for this determination.” While the trial court found “that plaintiff was attempting to relitigate parenting time ‘literally, I mean five minutes after the judgment was entered,’ it did not conclude that he was doing so with an intent to harass, embarrass, or injure.” And the record did not indicate that his “motion or objection were filed for the improper purpose of harassment rather than a legitimate attempt to obtain the relief sought, i.e., a modification to his scheduled parenting time that would permit him to spend more time with his child.” The court determined that, “because the trial court did not articulate any findings of fact that would support a conclusion that plaintiff’s motion was filed with the improper purpose of harassment, to the extent that the award of attorney fees was made on this basis, it was an error.” In addition, plaintiff’s objection to the referee’s finding that he had not shown “a change of circumstances that would warrant a minor adjustment to his parenting time even though (1) he moved closer to the child, (2) his in-office work schedule changed, and (3) the child was no longer in daycare, was not so clearly devoid of legal merit that it rendered the objection frivolous. The mere fact that the trial court ultimately adopted the referee’s recommendation over plaintiff’s objection does not, in and of itself, render the objection frivolous.” The court also noted that, “contrary to the trial court’s observation at the hearing, the more modest request made by plaintiff in his second motion was not identical to his first motion for a modification.”

Involuntary mental health treatment; Person requiring treatment; MCL 330.1401; Due process; Jury instructions; Mental health records completeness; MCL 330.1141; Right to an independent clinical evaluation; MCL 330.1463; Waiver; Nexteer Auto Corp v Mando Am Corp; Ineffective assistance of counsel; Strickland v Washington; In re Londowski; Involuntary servitude claim; United States v Kozminski

The court held that respondent received due process and that the evidence supported the jury’s finding that he was a “person requiring treatment” under MCL 330.1401(1)(c), so the order continuing involuntary treatment was proper. The court concluded that there was no instructional error where the jury was told it could accept “all, part, or none” of the experts’ opinions and that arguments of counsel were not evidence, which cured any claimed bias in counsel’s comments. The court also found no abuse of discretion in denying a new trial because the psychiatrist and psychologist did not give false testimony. Their opinions were grounded in respondent’s schizophrenia diagnosis, his delusional belief that he owned the university, his refusal to eat due to fears of poisoning, and his admission that he would not take medication without a court order. The court further held that any failure by the hospital to file handwritten corrections did not render the medical record incomplete where an expert testified that such notes would not have changed his views and credibility was for the jury. It concluded that respondent waived his statutory right to an independent evaluation by affirmatively proceeding to trial, that counsel’s strategic choices were not deficient under Strickland, and that the treatment order did not impose “involuntary servitude” because it did not require compulsory work under threat of legal sanction. Affirmed.

Asylum; Jurisdiction; Whether the court could review the Board of Immigration Appeals’ (BIA) determination that petitioner failed to establish “extraordinary circumstances” related to an untimely asylum application; 8 USC § 1158(a)(2)(D); Wilkinson v Garland; Rahman v Bondi; The “safe harbor” provision (§ 1252(a)(2)(D)); Singh v Rosen; Whether petitioner abandoned a withholding-of-removal claim; Immigration judge (IJ)

Noting that it had not squarely resolved the issue of its jurisdiction to review the BIA’s “extraordinary circumstances” determination for untimely asylum applications, the court held that it did not have jurisdiction where this issue was within the Attorney General’s discretion. Thus, it lacked jurisdiction to review the BIA’s determination that petitioner-Osabas-Rivera failed to establish extraordinary circumstances warranting waiver of the deadline for his untimely asylum application. Petitioner, a native of Honduras, claimed in his credible-fear interview that he left his country because he had been threatened by a gang (MS). At a removal hearing, he was informed that he had one year after his arrival in the U.S. to file his asylum application. But he did not file it until 14 months after the statutory deadline. The IJ ruled that petitioner’s reasons for the late asylum filing, depression at being separated from his family, did not constitute extraordinary circumstances to support the untimely filing. The BIA affirmed the IJ’s decision. Petitioner argued that the BIA erred when determining the extent of his depression. But the court held that it lacked jurisdiction to consider the issue where it involved a “factual determination” that was not reviewable. And even more significantly, after Wilkinson, the extraordinary circumstances determination under § 1158(a)(2)(D) “lies within the discretion of the Attorney General.” The court noted that, under the statute, petitioner was “required to show ‘to the satisfaction of the Attorney General’ that his depression created an extraordinary circumstance sufficient to warrant waiver of the one-year application deadline.” The court concluded that just “as that language rendered the BIA’s extreme-hardship determination discretionary in Rahman, it signifies that the BIA’s conclusion on extraordinary circumstances is also discretionary.” Thus, the court lacked jurisdiction to review whether petitioner showed “extraordinary circumstances to justify filing his asylum application more than two years after arriving in the United States.” It also concluded that his challenge to the denial of withholding of removal was “forfeited” where he did not address or dispute “the IJ’s finding that he failed to establish that the Honduran government is unable or unwilling to protect him from MS” in his BIA brief. The court denied his petition for review in part and dismissed it in part.

Whether adjudication was against the great weight of the evidence & based on insufficient evidence; People v Knepper

Holding that respondent-juvenile failed to show his CSC I “adjudication was against the great weight of the evidence or based on insufficient evidence[,]” the court affirmed. The arguments relied “on three inconsistencies or uncertainties in [victim-]JJ’s testimony, none of which undermine the adjudication below.” The court rejected respondent’s argument for several reasons. First, it was “true that JJ testified that respondent told him to move off the bed, yet stated at the Kids Talk interview that respondent physically moved him off the bed. But this Court recently rejected a great weight of the evidence argument based on a similar inconsistency, i.e., one which does not go to an element of the crime.” The court found as in Knepper, respondent did “not identify any ‘specific element’ of the adjudicated crime which JJ’s inconsistent statements negates. How JJ moved from the bed to the floor does not relate to the elements of CSC-I—sexual penetration of a victim under 13 years old.” The court found that the “specific inconsistency between JJ’s interview and the Kids Talk interview does not entitle respondent to a new trial.” Second, the court noted that “according to respondent, JJ claimed respondent’s assault ‘caused ongoing physical pain[,]’ but then admitted the pain went away within a few minutes.” This misstated the record. “JJ said the assault ‘hurt[,]’ but never testified it caused ongoing pain. [R] claimed JJ complained about ‘pain in his butt’ for about a year. Yet uncertainty about whether the assault caused JJ ongoing pain is also not a basis for vacating the trial court’s adjudication, as physical pain or injury is not an element of” CSC I. Respondent’s second argument was “factually unsupported and legally meritless.” Third, he briefly noted “that the witnesses were uncertain when the assault occurred.” The court concluded that uncertainty “as to what month or time of year the assault happened does not establish that respondent’s adjudication was against the great weight of the evidence.” Respondent next asserted “that the lack of corroboration of JJ’s testimony casts doubt on the reliability and fairness of the adjudication. However, a victim’s testimony need not be corroborated in a” CSC case. Respondent also argued “JJ’s failure to disclose respondent’s assault for three years undermines JJ’s credibility and the adjudication, but we generally will not interfere with the fact-finder’s credibility assessment.” Respondent had “not identified how the delay in reporting the assault is an exceptional circumstance to justify interfering with the trial court’s credibility determination.” Finally, he implied “the cumulative effect of the inconsistencies and lack of corroboration for JJ’s testimony entitle him to a new trial. Although the unfair prejudice of several actual errors can be aggregated to demonstrate cumulative error,” he had “not identified any actual errors.”

Motion for costs under MCR 2.405(D); Whether the offers of judgment constituted “offers”; Knue v Smith; Applicability of McManus v Toler

The court held that “because the offers were not unconditional offers to stipulate to the entry of a judgment in a sum certain, the trial court did not err” in denying plaintiff-Petersen Financial’s motion for costs under MCR 2.405. But it urged “the Supreme Court to revisit the issue of whether MCR 2.405 can be applied to claims sounding in equity that cannot be resolved for a sum certain and instead require some other order declaring the rights of the parties.” Defendants relied on Knue “to argue that the offers were nonconforming under MCR 2.405 because” they contained language imposing “conditions in addition to an offer of judgment for a sum certain. The trial court found Knue to be controlling.” The court agreed. As “part of the 2017 offer, Petersen Financial offered to stipulate to an entry of a monetary judgment in favor of defendants of $100 in satisfaction of Count I of its complaint and a monetary judgment in favor of defendants of $150 in satisfaction of Count III of its complaint. However, it also included language requiring defendants to agree to the entry of a recordable order declaring that no additional amounts were due and that the ‘asserted recorded instruments’ were invalid against Petersen Financial’s property. Given the clear imposition of an additional condition, the trial court did not err by finding that the offer was nonconforming for purposes of MCR 2.405.” And under the terms of the 5/29/19 “offer of judgment, plaintiffs offered to stipulate to entry of judgment in favor of defendants in the amount of $30,000 in satisfaction of all of its claims against defendants. But, in a parenthetical, it added that [they] had to agree to extinguish ‘all asserted special assessments’ and to agree to the entry of a quiet title order in favor of Petersen Financial. Again, although [it] made an offer of judgment for a sum certain, it conditioned that offer upon defendants agreeing to the court’s entry of a quiet title order in Petersen Financial’s favor and their agreement to the extinguishment of the asserted special assessments. By conditioning acceptance of the offer on (1) an exchange of cash and (2) the defendants’ acceptance of a quiet title order entered in Petersen Financial’s favor, Petersen Financial did not make an offer for a sum certain under MCR 2.405.” While Petersen Financial directed the court to McManus, the court concluded that McManus did not apply here. Affirmed.

Special assessment district (SAD) boundary confirmation timeliness; MCL 324.30707(5); In re Determination & Establishment of a Lake Level for the Waters of Stylus Lake (Unpub); Satutory construction; People v Yarema; Defined project, costs, proportionality & apportionment requirements; MCL 324.30711(1); In re Van Ettan Lake; Due process challenge to Part 307 procedures; In re Project Cost & Special Assessment Roll for Chappel Dam; Natural Resources & Environmental Protection Act (NREPA)

The court held that the trial court did not err by establishing and confirming the SAD boundaries for maintaining the level of Higgins Lake under Part 307 of NREPA. The case arose after petitioners-Roscommon and Crawford Counties sought to formally establish a SAD around Higgins Lake to support maintaining the court-determined lake level. The trial court held a hearing and entered an order the same day confirming the boundaries with amendments. It rejected objections that the petition was untimely and premature for lack of a defined project and cost, explaining the process was phased and that “there’s two parts: First, is establishing the boundaries of a [SAD] district which is why we’re here today. Once that’s done, if the county decides to go forward with the special assessment and assessing a tax . . . then an apportionment roll needs to be done; [f]urther hearings have to be held in that regard but that’s not why we’re here today.” On appeal, the court held the 60-day language in MCL 324.30707(5) was a directive to the trial court, not a jurisdictional bar, emphasizing “there is no express language within MCL 324.30707(5) precluding the [trial] court from confirming the [SAD] boundaries after those 60 days have passed.” It found the reasoning of an unpublished case (Stylus Lake) “persuasive and in line with the plain language of the statute and” adopted its reasoning. The court also held Part 307 does not require a defined project and costs before boundary confirmation, reasoning that “nothing requires the county board to identify a specific project and its costs before the creation or confirmation of boundaries,” and that proportionality and apportionment objections were “premature for purposes of this appeal.” The court finally held the due process argument was abandoned because respondents failed “to set forth the applicable legal principles,” and, even if considered, Part 307’s notice and hearing procedures provided a meaningful opportunity to be heard. Affirmed.

Involuntary mental health treatment; Person requiring treatment; MCL 330.1401; Due process; Jury instructions; Mental health records completeness; MCL 330.1141; Right to an independent clinical evaluation; MCL 330.1463; Waiver; Nexteer Auto Corp v Mando Am Corp; Ineffective assistance of counsel; Strickland v Washington; In re Londowski; Involuntary servitude claim; United States v Kozminski

The court held that respondent received due process and that the evidence supported the jury’s finding that he was a “person requiring treatment” under MCL 330.1401(1)(c), so the order continuing involuntary treatment was proper. The court concluded that there was no instructional error where the jury was told it could accept “all, part, or none” of the experts’ opinions and that arguments of counsel were not evidence, which cured any claimed bias in counsel’s comments. The court also found no abuse of discretion in denying a new trial because the psychiatrist and psychologist did not give false testimony. Their opinions were grounded in respondent’s schizophrenia diagnosis, his delusional belief that he owned the university, his refusal to eat due to fears of poisoning, and his admission that he would not take medication without a court order. The court further held that any failure by the hospital to file handwritten corrections did not render the medical record incomplete where an expert testified that such notes would not have changed his views and credibility was for the jury. It concluded that respondent waived his statutory right to an independent evaluation by affirmatively proceeding to trial, that counsel’s strategic choices were not deficient under Strickland, and that the treatment order did not impose “involuntary servitude” because it did not require compulsory work under threat of legal sanction. Affirmed.

Termination under §§ 19b(3)(c)(i) & (c)(ii); Children’s best interests; Reasonable reunification efforts

The court held that (1) §§ (c)(i) and (c)(ii) were established by clear and convincing evidence, (2) terminating respondents’ parental rights was in their children’s best interests, and (3) the DHHS made reasonable reunification efforts. Thus, it affirmed the trial court’s order terminating respondents’ parental rights. As to § (c)(i), the 182 days or more requirement was met. The “conditions that led to adjudication were that their house was unclean and unsafe for the children to live, including that it had drug paraphernalia accessible to the children, and had several animals.” The court found that their “efforts in engaging in mental health treatment, completing the Foster Care Supervised Visitation program, removing most of the animals, and bringing their home up to habitability multiple times, were commendable. However, respondents were unable to sustain a safe home environment for their children or meaningfully benefit from any of the programming offered by DHHS in the almost four years since CPS became involved with the family. Each time [they] cleaned their home and their children were welcomed back in, their home would deteriorate to the same, if not worse, uninhabitable condition it was found in at the time of respondents’ plea.” They were also “given several safety plans to keep drug paraphernalia inaccessible to their children, but continued to disregard the” plans, posing “a risk of harm to the children.” The court determined that, in light of “the length of time and number of interventions tried across the board,” clear and convincing evidence supported the finding “that the home will not become clean and safe within a reasonable time.” As to the children’s best interests, the inadequate home environment, and respondents’ “failure to feed, bathe, or provide their children with clean clothes, presented significant safety and health issues and amounted to neglect.” Based on the record, the court saw “no clear error in the trial court’s findings that termination would provide the children stability and permanence, as well as a clean, safe environment to live.”