Expert testimony; MRE 704; Human trafficking; MCL 750.462d(b); MCL 750.462f(1)(b); Drug-profile evidence; People v Murray; Ineffective assistance of counsel; Jury unanimity; CSC I; Personal injury; People v Asevedo; Sentencing; OVs 4, 7, 8, & 11; Resentencing

The court held that defendant’s convictions should be affirmed, but that resentencing was required on his CSC I conviction because OVs 7 and 8 were improperly scored. He was convicted of CSC I and III, human trafficking, accepting the earnings of a prostitute, and keeping a drug house. On appeal, the court first held that the addiction expert’s testimony was proper because he “limited his testimony to explaining a medical addiction to a controlled substance and its effects on a user’s brain,” and did not opine on defendant’s guilt or state of mind. Thus, the court also held that counsel was not ineffective for failing to object because ineffective assistance “cannot be predicated on the failure to make a frivolous or meritless motion.” The court next found that some of the sex-trafficking expert’s testimony was improper because it “blurred the line” between expert testimony and legal conclusion by comparing defendant’s conduct to a “typical pimp structure” and suggesting the force-or-coercion element was satisfied. But the error was not outcome-determinative because victim testimony, defendant’s admissions, evidence that he controlled drugs and movement, and Cash App evidence “strongly supported defendant engaged in trafficking.” The court also rejected defendant’s unanimity-instruction argument because, under Asevedo, “bodily injury and mental anguish are not alternative theories upon which a jury is required to make independent findings.” As to sentencing, the court upheld the OV 4 score because the victim testified to depression, anxiety, lack of safety around men, and medication use. The court also upheld the 25-point score for OV 11. But it found that OV 7 was improperly scored because the victim’s testimony did “not establish excessive brutality and savagery,” and OV 8 was improperly scored because there was no evidence the victim’s bedroom was “a place of greater danger” or that she was held captive beyond the time necessary for the sentencing offense. Because the 65-point reduction changed the guidelines range, defendant was entitled to resentencing. Affirmed in part, vacated in part, and remanded for resentencing for CSC I.

Sufficiency of the evidence; Felony murder; People v Gayheart; First-degree home invasion (MCL 750.110a(2)); “Without permission” (MCL 750.110a(1)(c))

The court held that there was sufficient evidence to support defendant’s first-degree home invasion conviction, the predicate for his felony murder conviction, and thus also sufficient evidence to support the latter conviction. He asserted there was not sufficient evidence to support the felony murder conviction because there was not sufficient evidence to prove that he entered the victims’ dwelling without permission. Victim-EJ shared a home with his elderly father, victim-ES. The home had a doorbell camera system. Defendant argued that there was no “evidence indicating that the victims did not want him in the home, and” contended ES gave him permission to enter after answering the door. But the record did not support this “assertion, particularly given the yelling and screaming heard in the camera footage almost immediately after defendant entered the home. Furthermore, a person who was speaking to EJ on the phone at the time of the offense testified that EJ yelled ‘Dad, no, or no, Dad, don’t let him in,’ after which there was a ‘cacophony of . . . sounds like a scuffle,’ as well as ‘[g]runts and moans and . . . stuff being knocked around’ before EJ stopped responding. Taken in the light most favorable to the prosecution, the evidence that defendant entered the home over the protests of the occupants, combined with the lack of any evidence that [he] was welcome in the home, was sufficient to permit the jury to find that defendant had entered the home without permission and was therefore guilty of first-degree home invasion beyond a reasonable doubt.” Affirmed.

Double jeopardy; CSC I; MCL 750.520b(1)(a); CSC II; MCL 750.520c(1)(a); People v Duenaz; Other acts evidence; MCL 768.27a; MRE 403; People v Watkins; Due process; Sentencing; Proportionality of a departure sentence; People v Steanhouse

The court held that defendant’s CSC convictions did not violate double jeopardy, that other-acts evidence was properly admitted, and that the trial court adequately justified his CSC I sentence above the mandatory minimum. He was convicted of sexually abusing a child. He challenged his CSC II conviction on the ground that it was based on the same act as his CSC I conviction. The court held that existing caselaw “clearly precludes this argument” because CSC I and CSC II each contain an element the other does not, and Duenaz held that “conviction and punishment for both” CSC I and CSC II “does not violate double jeopardy.” The court next held that the trial court did not abuse its discretion by admitting evidence of other alleged sexual misconduct involving minors under MCL 768.27a. Although the prosecution’s notice cited MRE 404(b), the court reasoned that MCL 768.27a “does not require that the notice be in writing or cite the statute,” and defendant already had records containing the substance of the expected testimony. Applying Watkins, the court held that the probative value was not substantially outweighed by unfair prejudice because the acts were substantially similar, temporally proximate, involved young girls living with defendant, and there was “a significant need for evidence beyond” the testimony of the victim and defendant in a case involving delayed disclosure and lack of direct corroboration. The court also rejected defendant’s due process claim because the evidence passed MRE 403 balancing and did not render the trial “fundamentally unfair.” Finally, the court held that the trial court adequately justified the 30-year CSC I minimum sentence because it expressly adopted the “same logic” used for the CSC II sentence, including defendant’s abuse of family trust and abuse of “young girls.” Affirmed.

Other acts evidence; MRE 404(b); People v VanderVliet; MRE 403; People v Mardlin; Lack of notice; People v Jackson; Plain error review; Prejudice; Ineffective assistance of counsel; Failure to request an involuntary manslaughter instruction & to object to the other acts evidence; People v Gillis; Sentencing; Proportionality; People v Milbourn; Within-guidelines sentence

The court held that defendant was not entitled to relief based on his challenge to the admission of other acts evidence or his ineffective assistance of counsel claims. And it rejected his proportionality challenge to his within-guidelines sentence. Thus, it affirmed his second-degree murder conviction and his 25 to 50-year sentence. Witness-D testified about two incidents that occurred the night of the murder – (1) defendant’s allegedly pulling a knife on D after losing two games of pool (the knife incident) and (2) his shooting and reloading a gun in front of D at defendant’s house (the gun incident). The court noted he “denied that he shot and killed the victim[.]” Both incidents rebutted his argument. The first showed his “motive for killing the victim and his state of mind at the time of the incident. Prior to the knife incident, [he] lost two games of pool to [D]. Defendant’s refusal to play a third game motivated [him] to pull a knife on [D], i.e., the embarrassment of having failed to beat [D] at pool motivated defendant to pull a knife on him.” And the trial testimony reflected “the victim laughing in response to defendant saying he would kill him caused” defendant to say, “[Y]ou don’t believe it,” in response to which “the victim laughed again, and being laughed at and ‘called out’ in this manner and the resulting embarrassment may have likewise motivated defendant to shoot.” The court also found that the gun incident showed his motive and state of mind. D’s “negative reaction to defendant firing the gun, i.e., [D] indicating that he was going to leave because of what defendant did, motivated defendant to shoot out [D’s] tire. Thus, later in the night, when the victim laughed at defendant, the gun incident is also relevant as evidence that, on the night of the incident, defendant was motivated to react with a weapon upon the most casual slight. Proof of motive is relevant to prove murder.” The gun incident also showed his identity. The court held that both incidents were “substantively admissible under MRE 404(b).” While the prosecution failed to give the required notice, the court concluded this plain error “did not affect defendant’s substantial rights.” D testified about the incidents at the preliminary exam, and the prosecution notified defendant of its intent to present D as a trial witness. Thus, there was no unfair surprise. Further, even absent D’s “testimony, the other evidence of defendant’s guilt was overwhelming.”

Divorce; Motion to transfer venue; Entry of a consent judgment; Mootness; In re Detmer/Beaudry; Stipulation that the consent judgment did not render this appeal moot; In re Estate of Finlay; Lack of any practical effect; Abstract issue of law; Gleason v Kincaid

Holding that the appeal of the denial of a motion to transfer venue in this divorce case was moot, the court dismissed it. After the court granted defendant’s motion for leave to appeal the ruling, the trial court entered a consent judgment of divorce. That judgment contained “unique provisions purporting to preserve the venue issue for appellate review and to condition the parties’ choice of venue for enforcement proceedings on the outcome of this appeal.” But despite those provisions, the court held that the case was moot for three reasons. One, it “was not bound by the parties’ stipulation that the” judgment did not render the appeal moot. Courts are not bound by parties’ stipulations of law. Two, it found that “rendering a decision on the venue issue would have no practical effect because the case no longer rests upon existing facts or rights[.]” The judgment provision stating that enforcement proceedings could be brought in the specified circuit or district court, “‘as applicable, subject to the ruling of the Court of Appeals on the pending venue issue,’” only created an illusion that the court’s ruling “would have any legal consequence.” Given that the “parties agreed to remain bound by the consent judgment as a settlement agreement even if defendant prevailed in this appeal,” the court’s decision would not affect the divorce’s outcome. And in the judgment, they effectively consented to the trial court’s “authority over enforcement or other postjudgment proceedings regardless of what” the court held. Third, the venue issue now presented “an abstract question of law” and such questions are moot. Finally, the court added that the limited exception to the mootness doctrine did “not apply because the venue issue will not evade judicial review.” Because a trial court or the court “may enter an order staying trial-court proceedings pending the outcome of an appeal . . . [a] similarly situated party who is successful in staying proceedings or willing to proceed through trial could bring the same issue to” the court in the future.

Change of domicile; Sole legal custody; MCL 722.31; MCR 3.211(C)(3); D’Onofrio factors; Spires v Bergman; Brecht v Hendry; Established custodial environment (ECE); Best interests; Brown v Loveman; Up-to-date information; Butters v Butters

The court held that the trial court erred by applying the change-of-domicile factors in MCL 722.31(4) where plaintiff-mother had sole legal custody of the child. Plaintiff sought to move the child’s domicile from Michigan to Texas. The trial court denied the motion after applying the D’Onofrio factors and best-interest factors. On appeal, the court held that MCL 722.31(2) controlled because it exempts cases where “the order governing the child’s custody grants sole legal custody to 1 of the child’s parents.” The court explained that, under Spires, “the language of the court rule does not require the family court to consider the D’Onofrio factors,” and MCL 722.31 “by its own language makes consideration of the D’Onofrio factors unnecessary when the relocating parent has sole legal custody.” The court also relied on Brecht, which states that “if a parent with sole legal custody wishes to move a child subject to a custody order out of this state, MCL 722.31 does not apply and the trial court may not consider the D’Onofrio factors.” But the court held that the trial court still had to determine whether the move would change the child’s ECE. If the relocation would “result in a change in parenting time so great as to necessarily change the” ECE, the trial court must then consider the best-interest factors, and plaintiff must prove by clear and convincing evidence that the move is in the child’s best interests. Reversed and remanded.

Motion for joint legal custody; MCL 722.26a(7)(b); Custody modification; Proper cause or a change of circumstances; Vodvarka v Grasmeyer; Motion to modify parenting time; Shade v Wright; Denial of request for appointment of a guardian ad litem (GAL); MCR 3.204(D); Established custodial environment (ECE)

The court held that the trial court did not err in denying plaintiff-father’s request for joint legal custody because his allegations failed to “meet the Vodvarka threshold required to permit further inquiry into whether the” prior custody order should be modified. As to parenting time, while the trial court erred in not considering “the proposed modification’s effect on the children’s custodial environment,” this error was harmless. Lastly, it did not abuse its discretion in not appointing a GAL as the record supported its decision. As to the custody ruling, the “trial court’s finding that there was ‘no change of circumstance pled to consider a referral to review the joint legal custody issue’ operated as a threshold determination that plaintiff’s allegations, even if accepted as true, did not meet the Vodvarka standard.” The court found the record supported that conclusion. Because the “allegations did not satisfy the Vodvarka threshold, the trial court did not err by denying plaintiff’s motion for joint legal custody without findings regarding the children’s [ECE] and the best-interest factors.” And to the extent its failure to address proper cause was erroneous, the court found the error harmless. Given that the record supported the trial court’s legal determination that plaintiff’s allegations did not meet the threshold requirements, it “lacked the authority to modify the previous custody order.” As to the request to modify parenting time, plaintiff “failed to show any change, let alone the normal life changes of the type seen in Shade, that would have given the trial court a reason to revisit the parenting-time schedule. Therefore, any procedural error that the trial court committed by failing to apply the Shade framework to” his request was harmless. Finally, the trial court denied his request for a GAL on the ground that it “was not ‘appropriate.’ MCR 3.204(D) does not require detailed findings explaining the exercise of that discretion.” The court found that this ruling “reflected a reasonable conclusion that appointment would not enhance the children’s welfare, given that plaintiff’s allegations did not satisfy the threshold requirements for a change in custody or modification of parenting time.” Affirmed.

Divorce; Motion to transfer venue; Entry of a consent judgment; Mootness; In re Detmer/Beaudry; Stipulation that the consent judgment did not render this appeal moot; In re Estate of Finlay; Lack of any practical effect; Abstract issue of law; Gleason v Kincaid

Holding that the appeal of the denial of a motion to transfer venue in this divorce case was moot, the court dismissed it. After the court granted defendant’s motion for leave to appeal the ruling, the trial court entered a consent judgment of divorce. That judgment contained “unique provisions purporting to preserve the venue issue for appellate review and to condition the parties’ choice of venue for enforcement proceedings on the outcome of this appeal.” But despite those provisions, the court held that the case was moot for three reasons. One, it “was not bound by the parties’ stipulation that the” judgment did not render the appeal moot. Courts are not bound by parties’ stipulations of law. Two, it found that “rendering a decision on the venue issue would have no practical effect because the case no longer rests upon existing facts or rights[.]” The judgment provision stating that enforcement proceedings could be brought in the specified circuit or district court, “‘as applicable, subject to the ruling of the Court of Appeals on the pending venue issue,’” only created an illusion that the court’s ruling “would have any legal consequence.” Given that the “parties agreed to remain bound by the consent judgment as a settlement agreement even if defendant prevailed in this appeal,” the court’s decision would not affect the divorce’s outcome. And in the judgment, they effectively consented to the trial court’s “authority over enforcement or other postjudgment proceedings regardless of what” the court held. Third, the venue issue now presented “an abstract question of law” and such questions are moot. Finally, the court added that the limited exception to the mootness doctrine did “not apply because the venue issue will not evade judicial review.” Because a trial court or the court “may enter an order staying trial-court proceedings pending the outcome of an appeal . . . [a] similarly situated party who is successful in staying proceedings or willing to proceed through trial could bring the same issue to” the court in the future.

Claims arising from plaintiff being struck by a stolen vehicle; Negligence claim against the vehicle driver; Ordinance applicability/interpretation; Effect of an ordinance violation; Sabbagh v Hamilton Psychological Servs, PLC; Davis v Thornton; Distinguishing Terry v Detroit; The owner-liability statute (MCL 257.401); Caradonna v Arpino; Respondeat superior & vicarious liability claims; Conduct outside the scope of employment; Hamed v Wayne Cnty

In this case arising from plaintiff being struck by a stolen vehicle, the court held that the trial court erred in dismissing his negligence claim against defendant-Teasley (who was driving it before it was stolen) on the ground that a city ordinance did not apply as a matter of law. But plaintiff failed to establish that defendants-vehicle owners “may be held liable under the owner-liability statute, respondeat superior, or any other theory of vicarious liability.” While driving the vehicle, “Teasley stopped at his apartment to drop off groceries. [He] left the truck idling and unattended.” Defendant-Harbin got in it, drove away, and later struck plaintiff. Plaintiff argued that Teasley violated Pontiac Ordinance § 114-243, which “constituted negligence per se, or at least evidence of negligence[.]” He asserted that the trial court erred in ruling that the ordinance only applied “to vehicles left unattended on a public street or highway.” The court agreed with plaintiff. “The trial court read the phrase ‘curb or side of the highway’ as limiting the entire ordinance to vehicles left unattended on a public highway. That reading is not supported by the text. The ordinance contains two related but distinct requirements. First, a person driving or in charge of a motor vehicle may not leave it ‘unattended without stopping the engine, locking the ignition, and removing the key[.]’ Second, when the vehicle is standing on a perceptible grade, the person must ‘effectively set[] the brake and turn the front wheels to the curb or side of the highway.’ The phrase ‘curb or side of the highway’ appears in the second requirement, which concerns vehicles standing on a perceptible grade. It modifies the requirement that the driver turn the front wheels. It does not modify the earlier requirement that the driver stop the engine, lock the ignition, and remove the key before leaving the vehicle unattended.” The court next noted that “a violation of an ordinance is only evidence of negligence, not negligence per se.” While there was no record evidence of the city’s purpose in adopting the ordinance, the court found the Supreme Court’s decision in Davis instructive. It concluded a reasonable juror could find “that leaving a running vehicle unattended with the keys inside created the opportunity for theft and that plaintiff’s injury was within the class of harms the ordinance was intended to prevent.” Affirmed in part, reversed in part, and remanded.

Fall from a bicycle on a city sidewalk; Governmental immunity; The highway exception; Notice specifying the exact location of the alleged defect; MCL 691.1404(1); Wigfall v City of Detroit; Plunkett v Department of Transp; Madbak v Farmington Hills; Whether a defective notice was cured; Information supplied after the statutory period; Thurman v Pontiac; Remand as to costs & attorney fees

Holding that plaintiff’s failure to timely provide notice of the correct location of the alleged sidewalk defect as required by MCL 691.1404(1) was fatal to his claims, the court reversed the denial of defendant-city’s summary disposition motion. The case arose from injuries plaintiff sustained falling from his bicycle on a city sidewalk. He alleged that he struck a hole or uneven portion of sidewalk. In his notice of claim, he identified the wrong location of the alleged defect. He asserted his “notice substantially complied with the statute because it was timely, included photographs of the correct defect, and allowed defendant to investigate the claim.” The trial court denied the city summary disposition and granted him leave to amend his complaint. On appeal, the court noted that “substantial compliance may be sufficient, and some ambiguity in one part of the notice may be clarified by other information contained in [it]. A timely supplemental notice may also cure an otherwise inadequate initial notice.” But the misidentification of the intersection where the alleged defect was located “was not a minor error in wording or a vague description of the correct area. The notice identified an entirely incorrect location. Because the statute required plaintiff to specify the exact location of the defect within 120 days of the injury, the notice did not comply with MCL 691.1404(1).” And his contention that “the defective notice was cured because he later supplied the correct location in an amended complaint” failed because “information supplied after the statutory period expires cannot cure a defective notice” and the amended complaint “was filed after the 120-day notice period expired.” Further, the photos he included with the notice did not resolve the incorrect location information because they did not specify the exact location. “They did not show street signs, addresses, intersections, or other identifying landmarks that would have allowed defendant to determine” the correct location. The court added that whether “defendant ultimately suffered prejudice from the defective notice does not excuse plaintiff’s failure to satisfy the statutory requirements.” It remanded for consideration of defendant’s request for costs and attorney fees, which the trial court had not addressed.

Premises liability; Constructive notice; Lowrey v LMPS & LMPJ, Inc; Open & obvious doctrine; Kandil-Elsayed v F & E Oil, Inc; Causation; Snow-removal practices; MCL 554.139(1)(a); Common areas; Allison v AEW Capital Mgmt, LLP

The court held that defendants were entitled to summary disposition on plaintiff’s common-law premises-liability and MCL 554.139 claims arising from her fall on ice in a townhome parking lot. Plaintiff alleged she slipped on ice near her vehicle, but she acknowledged that she did not know how long the ice had been present and that “it could have formed shortly before her fall.” On appeal, the court first held that plaintiff failed to establish constructive notice because “without evidence concerning how long the specific icy condition existed,” a jury could only speculate whether defendants had a reasonable opportunity to discover and remedy it. The court explained that “[g]eneral awareness that freezing temperatures were possible is not the same as notice of the particular patch of ice on which plaintiff fell.” The court next rejected plaintiff’s theory that defendants’ snow-removal practices created the hazard through runoff and refreezing because she offered no evidence connecting “those alleged runoff patterns to the precise location where she fell,” and speculation that the ice “could have resulted from defendants’ snow-removal practices” was insufficient to establish causation. Finally, the court found that plaintiff’s statutory claim failed because the evidence showed only “a localized patch of ice,” not that the parking lot was unusable for parking or ordinary access. The court emphasized that MCL 554.139(1)(a) does not require common areas to be “free from all snow or ice,” and plaintiff did not show the condition made the lot’s intended use “unavailable or effectively impossible[.]” Affirmed.

Claims arising from plaintiff being struck by a stolen vehicle; Negligence claim against the vehicle driver; Ordinance applicability/interpretation; Effect of an ordinance violation; Sabbagh v Hamilton Psychological Servs, PLC; Davis v Thornton; Distinguishing Terry v Detroit; The owner-liability statute (MCL 257.401); Caradonna v Arpino; Respondeat superior & vicarious liability claims; Conduct outside the scope of employment; Hamed v Wayne Cnty

In this case arising from plaintiff being struck by a stolen vehicle, the court held that the trial court erred in dismissing his negligence claim against defendant-Teasley (who was driving it before it was stolen) on the ground that a city ordinance did not apply as a matter of law. But plaintiff failed to establish that defendants-vehicle owners “may be held liable under the owner-liability statute, respondeat superior, or any other theory of vicarious liability.” While driving the vehicle, “Teasley stopped at his apartment to drop off groceries. [He] left the truck idling and unattended.” Defendant-Harbin got in it, drove away, and later struck plaintiff. Plaintiff argued that Teasley violated Pontiac Ordinance § 114-243, which “constituted negligence per se, or at least evidence of negligence[.]” He asserted that the trial court erred in ruling that the ordinance only applied “to vehicles left unattended on a public street or highway.” The court agreed with plaintiff. “The trial court read the phrase ‘curb or side of the highway’ as limiting the entire ordinance to vehicles left unattended on a public highway. That reading is not supported by the text. The ordinance contains two related but distinct requirements. First, a person driving or in charge of a motor vehicle may not leave it ‘unattended without stopping the engine, locking the ignition, and removing the key[.]’ Second, when the vehicle is standing on a perceptible grade, the person must ‘effectively set[] the brake and turn the front wheels to the curb or side of the highway.’ The phrase ‘curb or side of the highway’ appears in the second requirement, which concerns vehicles standing on a perceptible grade. It modifies the requirement that the driver turn the front wheels. It does not modify the earlier requirement that the driver stop the engine, lock the ignition, and remove the key before leaving the vehicle unattended.” The court next noted that “a violation of an ordinance is only evidence of negligence, not negligence per se.” While there was no record evidence of the city’s purpose in adopting the ordinance, the court found the Supreme Court’s decision in Davis instructive. It concluded a reasonable juror could find “that leaving a running vehicle unattended with the keys inside created the opportunity for theft and that plaintiff’s injury was within the class of harms the ordinance was intended to prevent.” Affirmed in part, reversed in part, and remanded.

Fall from a bicycle on a city sidewalk; Governmental immunity; The highway exception; Notice specifying the exact location of the alleged defect; MCL 691.1404(1); Wigfall v City of Detroit; Plunkett v Department of Transp; Madbak v Farmington Hills; Whether a defective notice was cured; Information supplied after the statutory period; Thurman v Pontiac; Remand as to costs & attorney fees

Holding that plaintiff’s failure to timely provide notice of the correct location of the alleged sidewalk defect as required by MCL 691.1404(1) was fatal to his claims, the court reversed the denial of defendant-city’s summary disposition motion. The case arose from injuries plaintiff sustained falling from his bicycle on a city sidewalk. He alleged that he struck a hole or uneven portion of sidewalk. In his notice of claim, he identified the wrong location of the alleged defect. He asserted his “notice substantially complied with the statute because it was timely, included photographs of the correct defect, and allowed defendant to investigate the claim.” The trial court denied the city summary disposition and granted him leave to amend his complaint. On appeal, the court noted that “substantial compliance may be sufficient, and some ambiguity in one part of the notice may be clarified by other information contained in [it]. A timely supplemental notice may also cure an otherwise inadequate initial notice.” But the misidentification of the intersection where the alleged defect was located “was not a minor error in wording or a vague description of the correct area. The notice identified an entirely incorrect location. Because the statute required plaintiff to specify the exact location of the defect within 120 days of the injury, the notice did not comply with MCL 691.1404(1).” And his contention that “the defective notice was cured because he later supplied the correct location in an amended complaint” failed because “information supplied after the statutory period expires cannot cure a defective notice” and the amended complaint “was filed after the 120-day notice period expired.” Further, the photos he included with the notice did not resolve the incorrect location information because they did not specify the exact location. “They did not show street signs, addresses, intersections, or other identifying landmarks that would have allowed defendant to determine” the correct location. The court added that whether “defendant ultimately suffered prejudice from the defective notice does not excuse plaintiff’s failure to satisfy the statutory requirements.” It remanded for consideration of defendant’s request for costs and attorney fees, which the trial court had not addressed.

Termination under § 19b(3)(b)(ii); Failure to prevent sexual abuse; Reasonable likelihood of future harm; In re Gonzales/Martinez; Anticipatory neglect; In re Mota; Children’s best interests; Relative placement; In re Atchley; Permanency & stability; In re White

The court held that clear and convincing evidence supported termination of respondent-mother’s parental rights under § (b)(ii), and that termination was in the children’s (JM and BH) best interests. The children were removed after allegations that the mother used meth and continued contact with JM’s father, whose parental rights had been terminated for sexually abusing JM. On appeal, the court first held that § (b)(ii) was established because “JM’s father sexually abused JM,” the mother knew of the abuse, and the record supported the trial court’s finding that she failed to prevent further risk. The mother allegedly took JM to see him, allowed FaceTime contact, stayed with him in a motel after removal, and was seen with him at BH’s sporting event. The trial court was entitled to “credit the contrary testimony” over the mother’s denials. The court further held that future harm was reasonably likely because the mother did not promptly sever the relationship, described the divorce as “forced,” and continued to emphasize that she could not control JM’s father’s actions. Relying on Gonzales/Martinez, the court reasoned that a parent’s decision to place a relationship with an abusive partner over the children’s needs can show the parent is likely to continue doing so, and under Mota, how a parent treats one child is “probative of how that parent may treat other children.” The court next held that the best-interest finding was not clearly erroneous. Although the mother identified a niece as a possible placement, the court reasoned that the niece “had not been approved as a placement,” and “the existence of a possible, unapproved relative placement” did not undermine the trial court’s finding. The court also held that termination served the children’s need for permanency and stability because they were doing well together in foster care, their needs were being met, and the trial court found they had “a safe and secure placement” with “consistent parenting.” Affirmed.