Arbitration; Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act (EFAA) applicability; 9 USC § 402(a); CompuCredit Corp v Greenwood; Transaction involving commerce; §§ 1 & 2; Citizens Bank v Alafabco, Inc; Bernhardt v Polygraphic Co

The court held that the trial court erred by applying the EFAA without first determining whether the underlying arbitration agreement involved a transaction affecting interstate commerce under the Federal Arbitration Act. Plaintiff alleged that defendant inappropriately touched her during medical treatment and sued him and his employer, alleging claims including battery and sexual battery. Defendant moved for summary disposition, relying on an arbitration agreement plaintiff signed when she began treatment. The trial court denied the motion after concluding that § 402(a) invalidated the agreement even without any showing that the transaction involved interstate commerce. On appeal, the court held that the EFAA is not free-standing federal legislation that applies to every arbitration agreement. Rather, it operates as an exception within title 9’s existing framework, which by its own terms applies only to a “contract evidencing a transaction involving commerce.” The court explained that § 2 generally makes arbitration agreements enforceable, “save” as otherwise provided in chapter 4, and § 402(a) then qualifies that rule for sexual assault and sexual harassment disputes. The court noted that this reading also avoids constitutional difficulty because Congress may legislate only pursuant to an enumerated power, and the relevant source here is the Commerce Clause. Because the trial court never determined whether this agreement involved commerce under § 2, its ruling could not stand. Vacated and remanded.

The No-Fault Act (NFA); Action for payment of no-fault benefits; Attorney fees under MCL 500.3148(1); Ross v Auto Club Group; Coverage dispute related to domicile; Workman v DAIIE

The court held that the trial court did not err in declining to award plaintiff attorney fees under MCL 500.3148(1) because the record showed “a genuine and fact-intensive dispute” as to the injured person’s (W) “domicile at the time payment” of no-fault benefits was withheld. It noted that the dispositive question was not whether defendant-Progressive “was ultimately correct on the issue of coverage, but whether its position at the time payment was withheld was unreasonable, given that it appeared [W] was not living with—i.e., domiciled—with his parents when the accident occurred.” It further noted that the “concept of a person’s ‘domicile’” for NFA purposes “is not determined by a single factor.” Rather, it is determined considering “multiple indicia[.]” The court found that the record supported “Progressive’s position that its initial denial of payment was based on a bona fide factual uncertainty.” The evidence existing at the time “included sworn testimony that [W] had been formally evicted. His belongings were removed from his parents’ home, he did not stay in their home overnight, and [he] affirmatively stated that he did not intend to return. [W] further described himself as homeless and transient during the relevant period. These facts bore directly on the intent and physical presence factors relevant to the determination of his domicile.” And the court noted that “MCL 500.3148(1) does not require an insurer to conclusively establish a new domicile to rebut the presumption of unreasonableness.” In addition, although “a showing of bad faith is neither required nor dispositive under MCL 500.3148(1), the absence of bad faith does not undermine the [trial] court’s ruling where, as here, the insurer’s refusal to pay was supported by a bona fide factual uncertainty.” While the trial court ultimately resolved the domicile “question in plaintiff’s favor, MCL 500.3148(1) does not impose attorney-fee liability merely because the insurer’s position was unsuccessful.” Affirmed.

Employee Retirement Income Security Act (ERISA); Benefits for married plan participants; “Qualified joint & survivor annuity” (QJSA) plans; 29 USC § 1055(a)(1); Whether use of outdated mortality tables violated ERISA’s “actuarial equivalence requirement” (§ 1055(d)(1)(B)); Single life annuity (SLA); Joint & survivor annuity (JSA)

[This appeal was from the ED-MI.] The court reversed the dismissal of plaintiffs-pension plan participants’ ERISA-violation claims against defendants-Kellogg and FedEx, holding that plaintiffs successfully stated claims that defendants’ use of outdated mortality data to calculate their QJSA benefits violated ERISA’s actuarial equivalence requirement. Plaintiffs are retired married participants in the defendants’ employee defined benefit pension plans. They alleged that the plans violated ERISA’s actuarial equivalence requirement by using outdated mortality data to calculate their QJSA benefits, resulting in improperly decreased benefits. The district courts in both cases dismissed the actions, ruling that ERISA did not require that specific mortality tables or actuarial assumptions be used to calculate benefits for married participants. On appeal, the court noted that “§ 1055(d) specifies that a QJSA must be the ‘actuarial equivalent of a single annuity for the life of the participant.’” Because ERISA does not define the term “actuarial equivalence,” Congress conferred on the Treasury Department “the authority to interpret certain provisions of ERISA, including § 1055.” Plaintiffs argued that the use of outdated data failed to result in “JSAs that are actuarially equivalent to the SLAs they would otherwise receive, thereby denying them the QJSAs to which they are entitled under § 1055.” Defendants argued that the actuarial equivalence requirement does not place any “restrictions on the actuarial assumptions that a pension plan may use when calculating QJSAs.” The court held that “[e]quivalence in present value can only be achieved if the mortality assumptions used to convert the payment under the SLA to the payment under the QJSA reasonably reflect the ‘life of the participant’ who would otherwise receive the SLA.” This would require an accurate estimation of the participant’s lifespan and “necessarily requires the use of mortality data reasonably reflecting the life expectancy of a retiree living in the present day.” Plaintiffs alleged defendants “used mortality data from the 1960s and 1970s to calculate their benefits” so the JSAs offered “to married participants have lower present values than the SLAs” they would otherwise receive, meaning the JSAs do not meet the actuarial equivalence requirement. Accepting plaintiffs’ allegations as true, the court held that they plausibly alleged they “were denied a QJSA within the meaning of § 1055(d)(1)” and thus, they “stated plausible claims for violation of § 1055 and breach of fiduciary duty under ERISA.” Remanded.

The prosecution’s standing to bring charges; The trial court’s subject-matter & personal jurisdiction; Speedy trial right; People v Williams; Delay; Prosecutorial misconduct; Suppressing exculpatory evidence; Failure to correct perjured testimony

Finding no errors, the court affirmed defendant’s convictions of first-degree child abuse, armed robbery, first-degree home invasion, kidnapping, and unlawful imprisonment. He challenged personal and subject-matter jurisdiction, and asserted the prosecution lacked standing to bring the charges against him because the victim (his biological son) is not a U.S. citizen. He also contended “that the prosecution violated the 180-day rule, MCL 780.131(1), and committed misconduct” during the trial. The court held that “the prosecution has standing granted by law to prosecute criminal allegations, and defendant’s standing argument” lacked merit. The court was “similarly unpersuaded by his challenges to the [trial] court’s exercise of jurisdiction.” It found that the trial court “had personal jurisdiction over defendant because he was bound over for trial following a preliminary” exam. Further, “the trial court properly exercised subject-matter jurisdiction over the case because Michigan circuit courts have subject-matter jurisdiction over felony criminal cases, . . . and defendant was charged with multiple felonies.” The court also concluded that, on “balance, the factors set forth in Williams weigh against finding a speedy-trial violation.” Thus, defendant had “not established that the trial court erred by denying his motion to dismiss on that basis.” As to his prosecutorial misconduct claim alleging failure to correct perjured testimony, the court held that standing alone, defendant’s testimony established “only a credibility question; it does not establish that [a witness’s] testimony was false” Thus, defendant did not show “that the prosecutor erred by presenting that testimony.” In addition, absent “a showing that the original birth certificate was in some way material or exculpatory, defendant cannot establish that the prosecution improperly suppressed that evidence.”

Jury instruction on aggravated assault as a cognate lesser offense of AWIM; People v Haynie; Sentencing; Scoring of OV 8; MCL 777.38(1)(a); People v Allen

As defendant did not offer any binding authority supporting “that the trial court erred by failing to instruct the jury on the cognate lesser offense of aggravated assault” where he was charged with AWIM, the court held that he was not entitled to relief on this claim. It also held that the trial court properly scored OV 8 at 15 points. Thus, it affirmed his AWIGBH conviction and his 48 to 120-month sentence. The court noted that aggravated assault “contains an element that AWIM does not: that the victim sustained a serious or aggravated injury.” Thus, this offense “is a cognate lesser offense of AWIM for which defendant was not entitled to a jury instruction.” While he relied on a concurrence in Haynie, the court noted that concurring opinions “are not binding authority.” In addition, while both this case and Haynie involved “the charged offense of AWIM, defendant here sought an instruction on aggravated assault as a lesser offense, while the defendant in Haynie sought an instruction on assault and battery” as a lesser offense. As to the scoring of OV 8, the court held that the evidence established “that defendant used both physical restraint and psychological influence to hold the victim captive.”

Motion for relief from judgment; MCR 6.508(D); Juror intimidation; Admission of testimony from a victim’s mother; Ineffective assistance of counsel; Failure to object; Prejudice; Failure to call an alibi witness; Jury instructions; Failure to provide the elements of the charged offenses in the preliminary instructions; Distinguishing People v Duncan; People v Traver; Jurisdiction over the case; MCL 766.15(1); MCR 6.110(G); Newly discovered evidence; People v Cress

Finding no errors warranting relief, the court affirmed the trial court’s order denying defendant’s motion for relief from judgment. He was convicted of first-degree premeditated murder and AWIM. He argued, among other things, “that the trial court should have further investigated the claims of juror intimidation or declared a mistrial.” The court held that even “assuming exposure to extraneous influences here,” he did not show “actual prejudice, i.e., that a real and substantial possibility existed that the extraneous influences could have affected the jury’s verdict.” The record reflected “that the trial court immediately addressed the issue, assuring the jury that court security was very good and the jurors had no reason to be concerned. The trial court admitted that spectators ‘from one side or the other’ sometimes will look at jurors, but the look could be done innocently or inadvertently, without an intent to intimidate. [It] encouraged the jurors not to feel intimidated and, after the jury was dismissed,” it advised defendant and his codefendant “to encourage their supporters to stop looking at the jurors in any attempt to intimidate them.” The court also observed “that, had the jury actually been intimidated, it likely would not have convicted defendant.” Further, the court noted that “the trial court instructed the jurors that they should consider only the evidence and should not let sympathy or prejudice influence their decision.” Defendant’s second argument centered on the testimony from victim-W’s “mother, who testified for approximately six minutes on the second day of trial and shared her daughter’s age at the time of her death and a personal detail about her daughter.” The court rejected “defendant’s arguments that the testimony was irrelevant, not probative, and served no other purpose than to garner sympathy with the jury.” He failed to show “how the jury would have given undue weight to the testimony at issue, and the testimony was not particularly prejudicial in any aspect. Further, it was a very small portion of the overall trial testimony, and” he did not show that its admission “reasonably could have affected the outcome of trial.” The court also rejected his alternative ineffective assistance of counsel argument. Next, it rejected his claim “that the trial court committed structural error by neglecting to instruct the jury on the elements of the charged offenses during” the preliminary jury instructions. The court concluded “that the jury was properly instructed on the elements of the crimes before beginning deliberations. The trial court’s procedure did not amount to a complete failure to provide the elements of the crimes to the jury, as in Duncan. Rather, the jury was instructed on the elements of the charged crimes, but in a manner inconsistent with the applicable court rule, as in Traver. Defendant was not denied a basic protection, and when viewed as a whole, the jury instructions sufficiently protected [his] rights.”

Motion for relief from judgment; Good cause or actual prejudice; MCR 6.508(D)(3); Aiding-&-abetting instructions; Intent; Sufficiency of the evidence; False testimony; Due process; Ineffective assistance of counsel; Failure to object to identification; Failure to object to the cooperation agreement

The court held that because the claims underlying defendant’s motion for relief from judgment lacked merit, the trial court did not abuse its discretion by denying the motion. Nor did it err in concluding that he failed to establish good cause or actual prejudice under MCR 6.508(D)(3). Thus, the court affirmed the order denying defendant’s motion for relief from judgment. He was convicted of first-degree premeditated murder, AWIM, intentional discharge of a firearm at an occupied structure, and felony-firearm. The case arose out of violence between two rival gangs. First, defendant argued “that the trial court erred as a matter of law when it instructed the jury on aiding and abetting because the instructions allowed the jury to find him guilty of first-degree premeditated murder and AWIM even if he lacked the requisite intent to kill.” He argued “that the aiding-and-abetting instruction permitted the jury to convict him of first-degree murder and AWIM based on a lesser mens rea—mere knowledge—than that which is required by statute.” The court held that the “instruction given here was consistent with our caselaw and correctly set forth the elements of aiding and abetting. Indeed, our Supreme Court has expressly rejected the argument that an aiding-and-abetting conviction requires ‘the accomplice to have the identical intent as the principal.”’ Instead, a “defendant is liable for the offense the defendant intended to commit or intended to aid and abet.” The court concluded that because “the trial court properly instructed the jury, defendant cannot establish clear or obvious error. [Thus,] the trial court did not abuse its discretion by denying relief on this basis.” Second, he challenged the sufficiency of the evidence supporting an aiding-and-abetting instruction. The court found that the “trial court did not abuse its discretion in concluding that an aiding-and-abetting instruction was supported by the evidence.” It held that the evidence “supported a finding that multiple KMB members, including defendant, acted in concert to ambush 220 members in retaliation for [co-defendant’s] shooting. The trial court did not abuse its discretion in providing the aiding-and-abetting instruction or in denying relief on that basis.” Also, because defendant had “not shown plain error with respect to any of the alleged false testimony, he has failed to demonstrate that the trial court abused its discretion by denying his motion for relief from judgment on that basis.”

Employee Retirement Income Security Act (ERISA); Benefits for married plan participants; “Qualified joint & survivor annuity” (QJSA) plans; 29 USC § 1055(a)(1); Whether use of outdated mortality tables violated ERISA’s “actuarial equivalence requirement” (§ 1055(d)(1)(B)); Single life annuity (SLA); Joint & survivor annuity (JSA)

[This appeal was from the ED-MI.] The court reversed the dismissal of plaintiffs-pension plan participants’ ERISA-violation claims against defendants-Kellogg and FedEx, holding that plaintiffs successfully stated claims that defendants’ use of outdated mortality data to calculate their QJSA benefits violated ERISA’s actuarial equivalence requirement. Plaintiffs are retired married participants in the defendants’ employee defined benefit pension plans. They alleged that the plans violated ERISA’s actuarial equivalence requirement by using outdated mortality data to calculate their QJSA benefits, resulting in improperly decreased benefits. The district courts in both cases dismissed the actions, ruling that ERISA did not require that specific mortality tables or actuarial assumptions be used to calculate benefits for married participants. On appeal, the court noted that “§ 1055(d) specifies that a QJSA must be the ‘actuarial equivalent of a single annuity for the life of the participant.’” Because ERISA does not define the term “actuarial equivalence,” Congress conferred on the Treasury Department “the authority to interpret certain provisions of ERISA, including § 1055.” Plaintiffs argued that the use of outdated data failed to result in “JSAs that are actuarially equivalent to the SLAs they would otherwise receive, thereby denying them the QJSAs to which they are entitled under § 1055.” Defendants argued that the actuarial equivalence requirement does not place any “restrictions on the actuarial assumptions that a pension plan may use when calculating QJSAs.” The court held that “[e]quivalence in present value can only be achieved if the mortality assumptions used to convert the payment under the SLA to the payment under the QJSA reasonably reflect the ‘life of the participant’ who would otherwise receive the SLA.” This would require an accurate estimation of the participant’s lifespan and “necessarily requires the use of mortality data reasonably reflecting the life expectancy of a retiree living in the present day.” Plaintiffs alleged defendants “used mortality data from the 1960s and 1970s to calculate their benefits” so the JSAs offered “to married participants have lower present values than the SLAs” they would otherwise receive, meaning the JSAs do not meet the actuarial equivalence requirement. Accepting plaintiffs’ allegations as true, the court held that they plausibly alleged they “were denied a QJSA within the meaning of § 1055(d)(1)” and thus, they “stated plausible claims for violation of § 1055 and breach of fiduciary duty under ERISA.” Remanded.

Motion to intervene in Clean Water Act (CWA) litigation; FedRCivP 24; The “presumption of adequate representation”; Whether the presumption was rebutted; Whether an appellant demonstrated a substantial interest in the case that might be impaired by the relief plaintiffs sought

The court held in this CWA case that proposed intervenor defendants/appellants-agricultural industry groups (referred to as the Associations) established “that all four criteria for intervention of right” were met. But proposed intervenor defendant/appellant-Coalition’s motions to intervene of right and for permissive intervention were properly denied. The Associations and the Coalition sought to intervene in this case involving the CWA and the Total Maximum Daily Load (TMDL) for phosphorus in the Maumee River and connected waterways that empty into Lake Erie. The district court denied them both permissive and intervention of right, ruling “that neither had met the criteria for intervention of right, and that the relevant factors weighed against permissive intervention.” On appeal, the court first addressed intervention of right and explained the “presumption of adequate representation.” It rejected plaintiffs’ argument that the Associations waived or forfeited the issue of whether the presumption was rebutted, and held that they rebutted it where they intended to “raise relevant arguments that conflict with” defendant-U.S. EPA’s interests. But the court held that the Coalition, whose members have discharge permits, “failed to show that the existing parties will not adequately represent its members’ interest in maintaining those existing permits under the prevailing Maumee TMDL.” As to whether the Associations met the remaining prongs of the intervention of right test, the court chose not to remand for the district court to complete the analysis of whether the Associations “demonstrated a substantial interest in the case or that such an interest might be impaired by the relief” plaintiffs sought. Instead, it addressed these prongs and held that the Associations “met the second and third criteria.” Finally, as to the Coalition’s motion for permissive intervention, the court agreed with the district court’s finding “that the Coalition’s proposed legal defenses were not relevant to the case’s disposition.” It also agreed “that this consideration is appropriate in determining whether permissive intervention is warranted.” And the district court’s “weighing of the respective factors in favor of and against intervention places [its] decision in the heartland of Rule 24(a)’s zone of discretion.” The court reversed the denial of the Associations’ motion to intervene, affirmed the denial of the Coalition’s motion to intervene, and remanded.

The No-Fault Act (NFA); Action for payment of no-fault benefits; Attorney fees under MCL 500.3148(1); Ross v Auto Club Group; Coverage dispute related to domicile; Workman v DAIIE

The court held that the trial court did not err in declining to award plaintiff attorney fees under MCL 500.3148(1) because the record showed “a genuine and fact-intensive dispute” as to the injured person’s (W) “domicile at the time payment” of no-fault benefits was withheld. It noted that the dispositive question was not whether defendant-Progressive “was ultimately correct on the issue of coverage, but whether its position at the time payment was withheld was unreasonable, given that it appeared [W] was not living with—i.e., domiciled—with his parents when the accident occurred.” It further noted that the “concept of a person’s ‘domicile’” for NFA purposes “is not determined by a single factor.” Rather, it is determined considering “multiple indicia[.]” The court found that the record supported “Progressive’s position that its initial denial of payment was based on a bona fide factual uncertainty.” The evidence existing at the time “included sworn testimony that [W] had been formally evicted. His belongings were removed from his parents’ home, he did not stay in their home overnight, and [he] affirmatively stated that he did not intend to return. [W] further described himself as homeless and transient during the relevant period. These facts bore directly on the intent and physical presence factors relevant to the determination of his domicile.” And the court noted that “MCL 500.3148(1) does not require an insurer to conclusively establish a new domicile to rebut the presumption of unreasonableness.” In addition, although “a showing of bad faith is neither required nor dispositive under MCL 500.3148(1), the absence of bad faith does not undermine the [trial] court’s ruling where, as here, the insurer’s refusal to pay was supported by a bona fide factual uncertainty.” While the trial court ultimately resolved the domicile “question in plaintiff’s favor, MCL 500.3148(1) does not impose attorney-fee liability merely because the insurer’s position was unsuccessful.” Affirmed.

Motion to intervene in Clean Water Act (CWA) litigation; FedRCivP 24; The “presumption of adequate representation”; Whether the presumption was rebutted; Whether an appellant demonstrated a substantial interest in the case that might be impaired by the relief plaintiffs sought

The court held in this CWA case that proposed intervenor defendants/appellants-agricultural industry groups (referred to as the Associations) established “that all four criteria for intervention of right” were met. But proposed intervenor defendant/appellant-Coalition’s motions to intervene of right and for permissive intervention were properly denied. The Associations and the Coalition sought to intervene in this case involving the CWA and the Total Maximum Daily Load (TMDL) for phosphorus in the Maumee River and connected waterways that empty into Lake Erie. The district court denied them both permissive and intervention of right, ruling “that neither had met the criteria for intervention of right, and that the relevant factors weighed against permissive intervention.” On appeal, the court first addressed intervention of right and explained the “presumption of adequate representation.” It rejected plaintiffs’ argument that the Associations waived or forfeited the issue of whether the presumption was rebutted, and held that they rebutted it where they intended to “raise relevant arguments that conflict with” defendant-U.S. EPA’s interests. But the court held that the Coalition, whose members have discharge permits, “failed to show that the existing parties will not adequately represent its members’ interest in maintaining those existing permits under the prevailing Maumee TMDL.” As to whether the Associations met the remaining prongs of the intervention of right test, the court chose not to remand for the district court to complete the analysis of whether the Associations “demonstrated a substantial interest in the case or that such an interest might be impaired by the relief” plaintiffs sought. Instead, it addressed these prongs and held that the Associations “met the second and third criteria.” Finally, as to the Coalition’s motion for permissive intervention, the court agreed with the district court’s finding “that the Coalition’s proposed legal defenses were not relevant to the case’s disposition.” It also agreed “that this consideration is appropriate in determining whether permissive intervention is warranted.” And the district court’s “weighing of the respective factors in favor of and against intervention places [its] decision in the heartland of Rule 24(a)’s zone of discretion.” The court reversed the denial of the Associations’ motion to intervene, affirmed the denial of the Coalition’s motion to intervene, and remanded.

Domestic PPO standard; MCL 600.2950(1) & (4); Ex parte PPO; MCL 600.2950(12); “Reasonable cause” requirement; SP v BEK; “Positive finding” of prohibited behavior; Kampf v Kampf

The court held that the trial court did not abuse its discretion by denying petitioner’s request for a domestic PPO and did not err by denying an ex parte PPO because petitioner failed to show “reasonable cause” that respondent “may commit” an act listed in MCL 600.2950(1) and failed to show “immediate and irreparable injury” under MCL 600.2950(12). After petitioner filed for divorce, she sought an ex parte PPO alleging years of emotional abuse, a March 2024 incident involving respondent allegedly bruising his son’s face, alleged “hacking into accounts,” an August 2024 appearance at her father’s home, and recent online harassment of her employer. The trial court denied ex parte relief, then held a hearing and found petitioner credible regarding emotional abuse and PTSD but concluded “there’s not enough evidence here for the personal protection order,” emphasizing petitioner had no direct contact with respondent since August 2024 and lacked proof tying respondent to the alleged Facebook harassment because “anyone can create a Facebook page.” On appeal, the court rejected petitioner’s claim that venue drove the denial, explaining the trial court merely asked why the PPO was filed in a different county than the divorce case and suggested that a mutual no-contact order might be available in the divorce case, not that venue was improper. The court further held credibility findings about emotional abuse did not compel a PPO because the petitioner still had to establish conduct within the statute, and “the court must make a positive finding of prohibited behavior by the respondent before issuing a PPO.” Turning to ex parte relief, the court held petitioner’s allegations were largely “too stale” to show immediate harm, noting the last direct contact was over four months before filing and the Secretary of State address-change allegation did not show irreparable injury. It also held petitioner’s claim that respondent was “always prepared” to shoot another person was not tied to specific, imminent conduct toward petitioner. Affirmed.

Petition for children’s removal; Discovery; Children’s Advocacy Center (CAC) interview video recordings; MCR 3.922; Dismissal as a discovery sanction

The court affirmed the trial court's dismissal of "the case without prejudice on the basis that the DHHS violated MCR 3.922 when it did not produce the recordings" of forensic interviews of two of respondent-father's children to respondent. The DHHS argued “in the trial court and on appeal that it did not violate MCR 3.922 when it failed to produce the CAC interview recordings because (1) the recordings were not in its possession or control, and (2) petitioner, as a contract attorney, had no way to obtain possession of the recordings." The court found that “the trial court correctly acknowledged that the enforcement of MCR 3.922 is ‘a question of what you have in your possession.’” It concluded that a “review of the existing record makes clear that petitioner did not have possession of the video recordings in question. To the contrary, at the motion hearing, petitioner explained that it is the CAC’s policy not to release its recordings to the DHHS.” But the record supported “the trial court’s determination that law enforcement had possession of the recordings.” The court held that “the trial court did not abuse its discretion when it determined that law enforcement possessed the recordings, and the DHHS was therefore required to produce the recordings to respondent under MCR 3.922. It makes no difference that the DHHS used a contract attorney. The agency still must comply with its discovery obligations.” The DHHS next argued “that, to the extent that it violated MCR 3.922 and the trial court’s discovery order, the trial court abused its discretion when it ordered dismissal as a discovery sanction.” The court noted that the “trial court discussed on the record that the failure to produce the CAC videos was the only discovery violation. However,” it further “found that the DHHS had policies indicating that it was unable or unwilling to comply with the court rule, such that dismissal without prejudice was proper.” On this record, the court did “not conclude that the trial court’s decision to dismiss was ‘outside the range of reasonable and principled outcomes.’” The court found this was “particularly true when dismissal was made without prejudice, allowing the DHHS to refile its petition once it was able to produce the necessary CAC video recordings.”

Best interests; MCL 712A.19b(5); Relative placement factor; In re Gonzales/Martinez; Credibility determinations; In re HRC; Child safety/parenting ability; In re White

The court held that the trial court did not err by finding termination was in the children’s best interests, even though both children were placed with relatives, because the safety concerns and respondent-mother’s lack of parenting ability outweighed the relative-placement factor. After a KidsTALK interview, LUP reported sexual assaults by respondent’s former boyfriend and other men when LUP was between five and eight years old and stated respondent “was aware and present for some of the assaults” but did nothing to prevent them and later denied they occurred. LUP also reported respondent left both children home alone when they were very young, used alcohol and drugs, and once tried to suffocate her with a pillow. The DHHS sought termination at initial disposition, and respondent’s rights to three other children had already been terminated. The trial court found statutory grounds under §§ (b)(ii), (i), and (j) and then found by a preponderance that termination served both children’s best interests. On appeal, respondent did not challenge statutory grounds and argued only best interests, claiming the trial court overweighed the sexual-abuse allegations, underweighted relative placement, and failed to credit her recent efforts (housing, parenting classes, psychological evaluation, counseling). The panel rejected these arguments, emphasizing it could not disturb the trial court’s credibility determinations and that the abuse allegations “bear directly” on respondent’s ability to keep the children safe, especially where her denial showed she had not acknowledged or addressed the underlying risk. The court also held the trial court expressly considered the children’s placements with relatives as required, but relative placement is “not dispositive,” and the trial court could conclude it was outweighed by the serious safety concerns, lack of bond, and need for “permanency, stability, and finality.” Affirmed.