First Amendment claim under 42 USC § 1983; Prior restraint; Coercive government threat; National Rifle Ass’n of Am v Vullo; School Social Media Policy; Speech ban; School Communication Policy; Time, place & manner restriction; Fourteenth Amendment; Vagueness; Title IX standing; Supplemental jurisdiction

[This appeal was from the WD-MI.] The court held that plaintiff plausibly alleged that defendant-School District’s Social Media Policy violated the First Amendment as a prior restraint and speech ban, but the Communication Policy did not violate the First Amendment, and her Fourteenth Amendment and Title IX claims were properly dismissed. Plaintiff, whose children attended the District, frequently criticized its curriculum and employees on social media. After one post, a principal sent her a letter requesting that she “cease and desist” from referring to District employees on social media and warning that failure to comply could result in “all available legal remedies.” The letter separately directed her not to contact District staff without prior administrative permission. On appeal from dismissal under Rule 12(b)(6), the court concluded that the threatened legal consequences plausibly transformed the nominal request concerning social media into coercion. “The invocation of ‘legal remedies’ for using officials’ names in her posted complaints recontextualizes this nominal ‘request.’ What initially appeared as an attempt to convince now more closely resembles an intent to coerce.” Applying Vullo’s guidance, the policy’s legalistic tone, plaintiff’s allegation that she stopped speaking publicly in response, and the express reference to adverse consequences supported a plausible claim even though the District lacked direct regulatory authority over her social-media activity. Her criticism of public-school officials was protected speech, and at the pleading stage her allegations that the District used coercive threats to suppress it were sufficient. By contrast, the Communication Policy was “not a gag but a funnel.” It merely required plaintiff to direct communications through designated administrators and constituted a reasonable content-neutral time, place, and manner restriction. The Fourteenth Amendment vagueness claims failed because the challenged policies were sufficiently clear, while the principal’s public comments were not themselves a policy and another claim was forfeited. Plaintiff also lacked standing to assert Title IX violations on her own behalf because she was neither a District student nor suing as next friend of one. Because the First Amendment claim survived, the district court may reconsider the state-law claims on remand. Affirmed in part, reversed in part, and remanded.

Prohibition on a person who has been adjudicated as a mental defective or committed to a mental institution possessing a firearm (18 USC § 922(g)(4)); Second Amendment facial challenge; NY State Rifle & Pistol Ass’n v Bruen; District of Columbia v Heller; Wolford v Lopez; United States v Rahimi; United States v Williams; United States v Gore; Sentencing; Procedural reasonableness; The straw-purchaser enhancement (formerly USSG § 2K2.1(b)(5)(B)(iii); now § 2K2.1(b)(6)(B)(iii)); Circumstantial evidence; Substantive reasonableness; Denial of a downward variance; Within-guidelines sentence presumption

Rejecting defendant-Laykovich’s facial Second Amendment challenge to the statute prohibiting someone who has been adjudicated as a mental defective or committed to a mental institution from possessing a firearm (§ 922(g)(4)), the court affirmed his conviction. It also rejected his sentencing challenges, holding that (1) “‘overwhelming circumstantial evidence’” supported application of the straw-purchaser enhancement, and (2) he failed to overcome the presumption that his within-guidelines sentence was reasonable. A state court had previously committed Laykovich “because his mental illness made him a serious public-safety risk.” He pled guilty to violating § 922(g)(4) after he was stopped “on his way to Fort Knox in full body armor with enough firearms to inflict mass casualties.” With the application of the two-level enhancement under then-§ 2K2.1(b)(5)(B)(iii) on the basis he induced his girlfriend (H) to buy him guns, he had a guidelines range of 46 to 57 months. The district court sentenced him to 48 months. On appeal, the court concluded that Laykovich’s “facial challenge collapses at Bruen’s second step.” It found that “laws detaining the mentally ill have been ‘open, widespread, and unchallenged.’ They thus count as one of the ‘old legal rules’ that represent the ‘best evidence’ of the Second Amendment’s meaning.” The court then considered “whether the challenged statute is ‘relevantly similar’ to this” historical analogue. It determined that “§ 922(g)(4) has a similar ‘purpose and operation’ when compared to the historical analogue of civil confinement for the group of individuals whose mental illness rendered them dangerous. So it passes Bruen’s test—at least as a facial matter.” As to his sentencing arguments, the court first held that circumstantial evidence showed “the district court plausibly found that Laykovich convinced [H] to buy guns for him.” Finally, the district court’s refusal to grant him a downward variance did not render his sentence substantively unreasonable. It “thoughtfully balanced the competing factors in play” when it imposed “a sentence at ‘the lower end’” of the guidelines. Affirmed.

Quiet-title action; MCL 600.2932(1); MCR 3.411(F); Easement; “Finding of title”; Value of improvements; Bad faith; Contractual indemnification; Equitable indemnification

The court held that the trial court’s determination that plaintiffs had no enforceable easement constituted a “finding of title” triggering MCR 3.411(F), that plaintiffs did not make the improvements in bad faith, and that defendants were not entitled to contractual or equitable indemnification from the former owners. Plaintiffs and the former owners of defendants’ lakefront property verbally agreed to construct and share a boardwalk and dock, mistakenly believing the improvements straddled the property line when they were actually located entirely on the former owners’ property. After defendants purchased the property, a dispute arose over plaintiffs’ continued use. The trial court found no enforceable easement because the agreement was not written, but awarded plaintiffs $55,750 under MCR 3.411(F) for their contribution to the property’s increased value. On appeal, defendants argued that the no-easement determination was not a “finding of title” under the rule. The court disagreed. Because defendants had to possess title to the property allegedly encumbered by the easement and expressly counterclaimed to quiet title, “the trial court necessarily made a finding of full title in defendants’ favor before determining no enforceable easement existed. That finding was sufficient to trigger MCR 3.411(F)’s provision.” The court also upheld the finding that plaintiffs acted without bad faith. They and the former owners mutually constructed and maintained the improvements, defendants initially permitted their continued use and even assisted with maintenance, and “[w]e see nothing in the record indicating a lack of good faith in these actions by plaintiffs.” Defendants’ contractual-indemnification claim likewise failed because “it is inconsistent to argue on the one hand that plaintiffs did not have an easement for want of a written document and on the other hand to claim a right to indemnity for failing to disclose a phantom easement.” Their equitable-indemnification theory also failed where the former owners disclosed that the dock was shared and defendants knew of the arrangement when purchasing the property. Affirmed.

Prisoner litigation; Leave to proceed in forma pauperis (IFP); The Prison Litigation Reform Act (PLRA); The three-strikes rule (28 USC § 1915(g)); Coleman v Tollefson; Prior dismissal based on Eleventh Amendment immunity; Crump v Blue; Applicability of issue preclusion

[This appeal was from WD-MI.] Holding that the three-strikes rule (§ 1915(g)) did not preclude plaintiff-state prisoner (Henderson) from proceeding IFP in this action, the court vacated the district court’s ruling denying him leave to do so, and remanded. Henderson’s action asserted constitutional claims against defendants-County and sheriff. He argued on appeal that “two of his purported strikes were actions that included claims dismissed on Eleventh Amendment immunity grounds.” Under Crump, dismissal of an action in which the complaint included claims dismissed on those grounds “does not generally count as a strike[.]” The first prior action at issue was referred to as County of Kent I. There, the “district court dismissed the damages claims because the prosecutors were state agents, and the state was immune from such claims in federal court under the Eleventh Amendment. It did not find that Henderson frivolously or maliciously ignored this immunity defense.” Thus, County of Kent I did “not count as a strike under the PLRA.” The County asserted that the district court’s dismissal of the “official-capacity claims also bore traces of ‘failure-to-state-a-claim reasoning,’ so the action can still count as a strike. But the district court unequivocally dismissed the damages claims solely on Eleventh Amendment grounds, and we look only to what the dismissing court did, not what it could have done.” The second prior action, referred to as Conrad, also involved “official-capacity claims for damages against a state prosecutor” and the district court ruled that the Eleventh Amendment barred the suit. It also again “did not find that Henderson frivolously or maliciously ignored this immunity defense.” The court rejected the County’s argument that a statement the district court made “set out alternative holdings, with the latter making Conrad a strike notwithstanding the former.” Given that the Eleventh Amendment is a jurisdictional bar, “after the district court concluded that [it] barred Henderson’s official-capacity claims for damages, it no longer had jurisdiction over them.” The court held that Conrad did “not count as a strike under the PLRA either.” It also rejected the County’s claim that two other actions offered “‘independent bases to establish Henderson as a three-strike litigant’” and concluded that issue preclusion did not prevent him “from challenging whether County of Kent I and Conrad count as strikes now.”

Sufficiency of the evidence for an AWIM conviction; People v Anderson; Intent to kill; People v Kenny; Sentencing; Presumption that a within-guidelines sentence is proportionate; People v Posey; Unusual circumstances; People v Bowling

Holding that there was sufficient evidence of defendant’s intent to kill to support his AWIM conviction, and that the trial court did not abuse its discretion in sentencing him within the recommended range, the court affirmed his convictions and sentences. He was also convicted of felony-firearm, and was sentenced to 9 to 30 years for AWIM and 2 years for felony-firearm. As to his AWIM conviction, the court found that he “placed others in reasonable apprehension of receiving an immediate battery because he arrived at the park, immediately exited the vehicle, and began running toward” two individuals (CB and LB) with a gun. CB “feared that he would be hit by gunfire and testified that he observed defendant aiming his gun at him. Moreover, the surveillance footage shows at least 15 people scattering across the park after defendant fired the gun, which only further demonstrates the level of apprehension of fear that [he] caused multiple people that day.” The court next concluded that he “had the intent to kill.” His argument that he did not have such intent “because he fired a warning shot rather than aimed to kill is contrary to the video surveillance and testimony presented at trial. The video shows defendant” and two other individuals “arrive at the park in a truck and immediately head toward the playground area on foot.” While CB and LB did not have weapons, defendant sought out CB “and chased him with a gun. Considering the factual circumstances, an intent to kill can be inferred from defendant’s actions depicted on video.” As to his AWIM sentence, he did not “articulate unusual circumstances that would render his presumptively proportionate sentence disproportionate.” While the trial “court did not articulate each proportionality factor specifically, it did not have an obligation to do so.” It determined that the 9- to 30-year sentence was “reasonable ‘based upon deterrence and punishment.’ The [trial] court considered the offense and the offender because [it] acknowledged defendant’s minimal criminal history and a fact pattern that included going to a public park, ‘getting out of the car and going after someone and pointing a gun and shooting it.’”

Prohibition on a person who has been adjudicated as a mental defective or committed to a mental institution possessing a firearm (18 USC § 922(g)(4)); Second Amendment facial challenge; NY State Rifle & Pistol Ass’n v Bruen; District of Columbia v Heller; Wolford v Lopez; United States v Rahimi; United States v Williams; United States v Gore; Sentencing; Procedural reasonableness; The straw-purchaser enhancement (formerly USSG § 2K2.1(b)(5)(B)(iii); now § 2K2.1(b)(6)(B)(iii)); Circumstantial evidence; Substantive reasonableness; Denial of a downward variance; Within-guidelines sentence presumption

Rejecting defendant-Laykovich’s facial Second Amendment challenge to the statute prohibiting someone who has been adjudicated as a mental defective or committed to a mental institution from possessing a firearm (§ 922(g)(4)), the court affirmed his conviction. It also rejected his sentencing challenges, holding that (1) “‘overwhelming circumstantial evidence’” supported application of the straw-purchaser enhancement, and (2) he failed to overcome the presumption that his within-guidelines sentence was reasonable. A state court had previously committed Laykovich “because his mental illness made him a serious public-safety risk.” He pled guilty to violating § 922(g)(4) after he was stopped “on his way to Fort Knox in full body armor with enough firearms to inflict mass casualties.” With the application of the two-level enhancement under then-§ 2K2.1(b)(5)(B)(iii) on the basis he induced his girlfriend (H) to buy him guns, he had a guidelines range of 46 to 57 months. The district court sentenced him to 48 months. On appeal, the court concluded that Laykovich’s “facial challenge collapses at Bruen’s second step.” It found that “laws detaining the mentally ill have been ‘open, widespread, and unchallenged.’ They thus count as one of the ‘old legal rules’ that represent the ‘best evidence’ of the Second Amendment’s meaning.” The court then considered “whether the challenged statute is ‘relevantly similar’ to this” historical analogue. It determined that “§ 922(g)(4) has a similar ‘purpose and operation’ when compared to the historical analogue of civil confinement for the group of individuals whose mental illness rendered them dangerous. So it passes Bruen’s test—at least as a facial matter.” As to his sentencing arguments, the court first held that circumstantial evidence showed “the district court plausibly found that Laykovich convinced [H] to buy guns for him.” Finally, the district court’s refusal to grant him a downward variance did not render his sentence substantively unreasonable. It “thoughtfully balanced the competing factors in play” when it imposed “a sentence at ‘the lower end’” of the guidelines. Affirmed.

Overtime wages; Fair Labor Standards Act (FLSA); “Computer employee” under 29 USC § 213(a)(17); 29 CFR § 541.400; “Primary duty”; § 541.700(a) & (b); “Computer system or program”; Distinguishing Martin v. Indiana MI Power Co; Department of Labor (DOL); Interactive voice response technology (IVR)

Holding that plaintiff-employee (Bennink) was exempt under the FLSA’s computer employee exemption, the court affirmed summary judgment for defendant-employer on his claim for failure to pay him overtime wages in violation of the FLSA. The court held that defendant “met its burden to show that [his] responsibilities were intimately intertwined with the design, development, and documentation of [its] IVR system, making him an exempt computer employee.” The court noted that the statute does not contain “any requirement of a particular degree, level of education, or job title. That textual absence is a meaningful one.” The court focused on “the employee’s ‘primary duty.’” The DOL determines this “by looking for those tasks and responsibilities that are the ‘principal, main, major or most important duty that the employee performs,’ based on ‘the character of the employee’s job as a whole.’” Much of plaintiff’s work revolved around defendant’s “IVR system. Although the statute does not define ‘computer system or program[],’” the court had “little trouble concluding that an IVR system is one. [It] is complex and technical.” Further, many of his responsibilities related to it fell within several of the duties included in “§ 213(a)(17)(B), namely, ‘documentation,’ ‘design,’ and ‘development.’” Among other things, he “extensively documented the IVR system, mapping out where and how [it] routed callers based on their needs.” In addition, his documentation responsibilities “bled over into ‘design’ and ‘development.’” By gathering “inputs and proposing the flow of the IVR, Bennink was designing and developing the system.” The court noted that while “no other circuits have conducted an in-depth analysis of the current version of the exemption, several district courts have similarly distinguished between IT employees who merely follow predetermined steps to resolve technological issues and those who contribute to decisions about how pieces of a system should work together.” Although not all of his “work fell cleanly within the exemption[,]” because his IVR-related responsibilities were so central to his hiring and workload, the court concluded “they were his primary duty.”

Prisoner litigation; Leave to proceed in forma pauperis (IFP); The Prison Litigation Reform Act (PLRA); The three-strikes rule (28 USC § 1915(g)); Coleman v Tollefson; Prior dismissal based on Eleventh Amendment immunity; Crump v Blue; Applicability of issue preclusion

[This appeal was from WD-MI.] Holding that the three-strikes rule (§ 1915(g)) did not preclude plaintiff-state prisoner (Henderson) from proceeding IFP in this action, the court vacated the district court’s ruling denying him leave to do so, and remanded. Henderson’s action asserted constitutional claims against defendants-County and sheriff. He argued on appeal that “two of his purported strikes were actions that included claims dismissed on Eleventh Amendment immunity grounds.” Under Crump, dismissal of an action in which the complaint included claims dismissed on those grounds “does not generally count as a strike[.]” The first prior action at issue was referred to as County of Kent I. There, the “district court dismissed the damages claims because the prosecutors were state agents, and the state was immune from such claims in federal court under the Eleventh Amendment. It did not find that Henderson frivolously or maliciously ignored this immunity defense.” Thus, County of Kent I did “not count as a strike under the PLRA.” The County asserted that the district court’s dismissal of the “official-capacity claims also bore traces of ‘failure-to-state-a-claim reasoning,’ so the action can still count as a strike. But the district court unequivocally dismissed the damages claims solely on Eleventh Amendment grounds, and we look only to what the dismissing court did, not what it could have done.” The second prior action, referred to as Conrad, also involved “official-capacity claims for damages against a state prosecutor” and the district court ruled that the Eleventh Amendment barred the suit. It also again “did not find that Henderson frivolously or maliciously ignored this immunity defense.” The court rejected the County’s argument that a statement the district court made “set out alternative holdings, with the latter making Conrad a strike notwithstanding the former.” Given that the Eleventh Amendment is a jurisdictional bar, “after the district court concluded that [it] barred Henderson’s official-capacity claims for damages, it no longer had jurisdiction over them.” The court held that Conrad did “not count as a strike under the PLRA either.” It also rejected the County’s claim that two other actions offered “‘independent bases to establish Henderson as a three-strike litigant’” and concluded that issue preclusion did not prevent him “from challenging whether County of Kent I and Conrad count as strikes now.”

Trespass; Surface-water runoff; Material increase; Intentional intrusion; Wiggins v City of Burton; Boylan v Fifty Eight LLC

The court held that plaintiff failed to create a genuine issue of material fact that defendants’ replacement walkway materially increased water runoff onto his property or that defendants knew or should have known the walkway would cause such an intrusion, defeating his trespass claim. The parties own neighboring lakefront properties. Plaintiff alleged that defendants’ replacement of a walkway with a higher and wider one increased water flowing onto his property and flooded his carriage house. On appeal, the court noted that while “the ‘unauthorized act of causing excess waters to flow onto another person’s property constitutes a trespass,’ the increase in water must be material” and the intrusion must be intentional. Plaintiff relied on his expert’s opinion that the walkway changes “resulted in additional stormwater volume and velocity onto” plaintiff’s property and his own testimony that flooding began after defendants made landscaping changes. But the expert did not quantify the increase, and plaintiff produced no evidence of the baseline amount of runoff before the walkway was replaced. Thus, his testimony about the timing of the flooding created “at best . . . a speculative connection between the walkway improvements and the alleged increase in water runoff,” and absent the missing “evidence, he cannot demonstrate a fact issue as to whether the alleged increase in water runoff was material.” Summary disposition was also proper on an independent ground. Plaintiff presented no evidence that defendants “knew or should have known, at the time of their walkway replacement, that the changes would increase the amount of runoff water onto” his property. His complaints before construction related to other property conditions, while his complaints about increased runoff came only after the walkway was completed. Affirmed.

Quiet-title action; MCL 600.2932(1); MCR 3.411(F); Easement; “Finding of title”; Value of improvements; Bad faith; Contractual indemnification; Equitable indemnification

The court held that the trial court’s determination that plaintiffs had no enforceable easement constituted a “finding of title” triggering MCR 3.411(F), that plaintiffs did not make the improvements in bad faith, and that defendants were not entitled to contractual or equitable indemnification from the former owners. Plaintiffs and the former owners of defendants’ lakefront property verbally agreed to construct and share a boardwalk and dock, mistakenly believing the improvements straddled the property line when they were actually located entirely on the former owners’ property. After defendants purchased the property, a dispute arose over plaintiffs’ continued use. The trial court found no enforceable easement because the agreement was not written, but awarded plaintiffs $55,750 under MCR 3.411(F) for their contribution to the property’s increased value. On appeal, defendants argued that the no-easement determination was not a “finding of title” under the rule. The court disagreed. Because defendants had to possess title to the property allegedly encumbered by the easement and expressly counterclaimed to quiet title, “the trial court necessarily made a finding of full title in defendants’ favor before determining no enforceable easement existed. That finding was sufficient to trigger MCR 3.411(F)’s provision.” The court also upheld the finding that plaintiffs acted without bad faith. They and the former owners mutually constructed and maintained the improvements, defendants initially permitted their continued use and even assisted with maintenance, and “[w]e see nothing in the record indicating a lack of good faith in these actions by plaintiffs.” Defendants’ contractual-indemnification claim likewise failed because “it is inconsistent to argue on the one hand that plaintiffs did not have an easement for want of a written document and on the other hand to claim a right to indemnity for failing to disclose a phantom easement.” Their equitable-indemnification theory also failed where the former owners disclosed that the dock was shared and defendants knew of the arrangement when purchasing the property. Affirmed.

Trespass; Surface-water runoff; Material increase; Intentional intrusion; Wiggins v City of Burton; Boylan v Fifty Eight LLC

The court held that plaintiff failed to create a genuine issue of material fact that defendants’ replacement walkway materially increased water runoff onto his property or that defendants knew or should have known the walkway would cause such an intrusion, defeating his trespass claim. The parties own neighboring lakefront properties. Plaintiff alleged that defendants’ replacement of a walkway with a higher and wider one increased water flowing onto his property and flooded his carriage house. On appeal, the court noted that while “the ‘unauthorized act of causing excess waters to flow onto another person’s property constitutes a trespass,’ the increase in water must be material” and the intrusion must be intentional. Plaintiff relied on his expert’s opinion that the walkway changes “resulted in additional stormwater volume and velocity onto” plaintiff’s property and his own testimony that flooding began after defendants made landscaping changes. But the expert did not quantify the increase, and plaintiff produced no evidence of the baseline amount of runoff before the walkway was replaced. Thus, his testimony about the timing of the flooding created “at best . . . a speculative connection between the walkway improvements and the alleged increase in water runoff,” and absent the missing “evidence, he cannot demonstrate a fact issue as to whether the alleged increase in water runoff was material.” Summary disposition was also proper on an independent ground. Plaintiff presented no evidence that defendants “knew or should have known, at the time of their walkway replacement, that the changes would increase the amount of runoff water onto” his property. His complaints before construction related to other property conditions, while his complaints about increased runoff came only after the walkway was completed. Affirmed.

First Amendment claim under 42 USC § 1983; Prior restraint; Coercive government threat; National Rifle Ass’n of Am v Vullo; School Social Media Policy; Speech ban; School Communication Policy; Time, place & manner restriction; Fourteenth Amendment; Vagueness; Title IX standing; Supplemental jurisdiction

[This appeal was from the WD-MI.] The court held that plaintiff plausibly alleged that defendant-School District’s Social Media Policy violated the First Amendment as a prior restraint and speech ban, but the Communication Policy did not violate the First Amendment, and her Fourteenth Amendment and Title IX claims were properly dismissed. Plaintiff, whose children attended the District, frequently criticized its curriculum and employees on social media. After one post, a principal sent her a letter requesting that she “cease and desist” from referring to District employees on social media and warning that failure to comply could result in “all available legal remedies.” The letter separately directed her not to contact District staff without prior administrative permission. On appeal from dismissal under Rule 12(b)(6), the court concluded that the threatened legal consequences plausibly transformed the nominal request concerning social media into coercion. “The invocation of ‘legal remedies’ for using officials’ names in her posted complaints recontextualizes this nominal ‘request.’ What initially appeared as an attempt to convince now more closely resembles an intent to coerce.” Applying Vullo’s guidance, the policy’s legalistic tone, plaintiff’s allegation that she stopped speaking publicly in response, and the express reference to adverse consequences supported a plausible claim even though the District lacked direct regulatory authority over her social-media activity. Her criticism of public-school officials was protected speech, and at the pleading stage her allegations that the District used coercive threats to suppress it were sufficient. By contrast, the Communication Policy was “not a gag but a funnel.” It merely required plaintiff to direct communications through designated administrators and constituted a reasonable content-neutral time, place, and manner restriction. The Fourteenth Amendment vagueness claims failed because the challenged policies were sufficiently clear, while the principal’s public comments were not themselves a policy and another claim was forfeited. Plaintiff also lacked standing to assert Title IX violations on her own behalf because she was neither a District student nor suing as next friend of one. Because the First Amendment claim survived, the district court may reconsider the state-law claims on remand. Affirmed in part, reversed in part, and remanded.

Termination under §§ 19b(3)(c)(i) & (c)(ii); Children’s best interests; In re Moss; The DHHS’s failure to file an appellate brief

The court held that while the trial court erred in terminating respondent-father’s parental rights under § (c)(ii), the record supported its ruling under § (c)(i). Further, it did not clearly err in finding that termination was in the children’s best interests. Thus, the court affirmed the termination order. As an initial matter, it expressed its “disappointment in this case, as in others,” that the DHHS failed to file an appellate brief. Turning to respondent’s challenge to the statutory grounds for termination, “the operative supplemental petition did not request termination under” § (c)(ii). Thus, terminating his rights under this provision did not ensure compliance with his due process rights, given “that he lacked sufficient notice to rectify the conditions. But” only one ground had to be established and § (c)(i) supported termination. “Domestic-violence issues, substance abuse, financial instability, and homelessness were the issues that led to respondent’s adjudication. He had not obtained ‘independent housing’ at the time of the trial and had moved in with his new girlfriend, but had secured employment. While his employment was a positive development, DHHS and the [trial] court were concerned with his living conditions because his girlfriend had a history of violence towards her children and [he] remained indifferent to her background.” As to substance abuse, a DHHS caseworker testified that, while “he had been ‘testing clean’ since [3/25], he was not engaging with a ‘positive support system, the rehab prevention plan,’ and that she was concerned he ‘has not shown a plan to maintain his sobriety long term or what he’s going to do if he was to relapse.’” As to the best interests issue, the court concluded that “the trial court properly focused on the children’s interests rather than respondent’s interests.” Although the record showed that he loved them and wanted to have a healthy relationship with them, two witnesses testified that his “parenting time negatively affected” them. The infant mental-health specialist also “testified that respondent ‘just lacks the capacity to kind of create that structured environment that the kids need . . . .’” The record also showed that “the children presented great improvement during parenting-time suspension and then regressed and displayed severe physical and emotional reactions upon resumption.”