Divorce; Physical custody; Findings on the statutory best-interest factors (MCL 722.23); Factors (b), (d), (f), (j), & (l); Setting aside a settlement agreement; The Child Custody Act (CCA) requirement that the circuit court independently determine the custodial arrangement that serves children’s best interests; Harvey v Harvey; Attorney fees; MCR 3.206(D); Richards v Richards; Reed v Reed; Sexually transmitted disease (STD)

Concluding that the trial court’s factual findings and assessment of the MCL 722.23 factors were not against the great weight of the evidence, the court affirmed its custody ruling in this divorce case. Defendant-father was not entitled to any appellate relief on the basis that the trial court set aside the parties’ settlement agreement, or in regard to the award of attorney fees to plaintiff-mother. He challenged the trial court’s findings on best-interest factors (b), (d), (f), (j), and (l). He “conceded that he made two inappropriate statements” about plaintiff in the children’s presence, but contended “the trial court erred by assigning undue weight to these two statements and by applying them to multiple best-interest factors.” The court rejected his argument, noting the “trial court found that defendant’s persistent disparagement of plaintiff in the presence of the children was the primary cause of the deterioration of [her] relationship with the two older children. Significantly, [it] determined that no credible evidence supported defendant’s claims that plaintiff engaged in extramarital affairs, transmitted an STD to defendant, or attempted to harm [him] by providing improper medical care during his illness with COVID-19.” And although he only admitted to “two such statements, the evidence overwhelmingly established a pattern of frequent disparagement by defendant, or encouragement of the children to disparage plaintiff and to regard her as an unfit parent and person. Accordingly, the trial court’s factual findings regarding defendant’s conduct were not against the great weight of the evidence.” In addition, contrary to his assertion that it “erred by considering this conduct under multiple best-interest factors, the law recognizes that certain best-interest factors may overlap, and a single fact or circumstance may properly be considered under more than one factor.” As to his argument about the settlement agreement, under the CCA, a trial “court is not permitted to adopt parental stipulations without independently determining the child’s best interests.” Finally, as to the attorney fee award, substantial record evidence supported “the trial court’s finding of misconduct by defendant in relation to the alienation of the children from plaintiff” and it did not clearly err in finding that he engaged in misconduct related to a parcel of real property. Affirmed.

42 USC § 1983; Eighth Amendment “deliberate indifference” to inmates’ serious medical needs claim; Qualified immunity; Whether there was a violation of a “clearly established right”; “Conditions of confinement” Eighth Amendment claim; Gross negligence claims under Michigan law; Immunity under Michigan’s Government Tort Liability Act (GTLA); “Proximate cause”; MCL 691.1407(2)(c)

[This appeal was from the ED-MI.] The court held that defendants-prison officials (MDOC Officials) were entitled to qualified immunity on plaintiffs-current and former inmates’ Eighth Amendment claims because plaintiffs failed to cite a single case with similar circumstances to support that defendants had violated “a clearly established” constitutional right related to plaintiffs’ medical needs. But it found that plaintiffs “adequately pleaded that these officials were the proximate cause of their injuries under Michigan law.” Plaintiffs suffered from scabies while in a Michigan prison. Contractors (the Corizon Defendants) responsible for the health and disease prevention told prison officials that it was not scabies. However, “an outside dermatologist found that these providers had misdiagnosed the women and that scabies had spread through the prison.” The named plaintiffs in this class action were four inmates incarcerated during this time. They sued under § 1983 seeking “damages not just from the medical providers but also from various prison officials who did not treat them.” They asserted claims for deliberate indifference to their serious medical needs and for gross negligence under Michigan law. The district court denied defendants qualified immunity on the Eighth Amendment claims and state-law immunity on the negligence claims. As to the denial of qualified immunity, the court held that plaintiffs were unable to cite a case “with similar enough facts that it would have alerted the defendants that their ‘specific conduct was unlawful.’” Prison officials could not be “vicariously liable simply because the Corizon Defendants allegedly mistreated” plaintiffs’ scabies. They failed to allege that any of the prison officials were “‘personally involved in the allegedly inadequate medical care’” plaintiffs received. The court held that the MDOC Officials and another group of defendants (the Wayne State Officials) were entitled to qualified immunity. As to plaintiffs’ conditions of confinement claim, they again identified “no ‘case’ that would have ‘clearly established’ for the MDOC and Wayne State Officials that they had a duty to overturn the Corizon practitioners’ efforts to combat the rashes.” As to the Michigan negligence claims, the court found the MDOC Officials’ proximate cause argument premature, concluding discovery was needed. Reversed in part, affirmed in part, and remanded.

Fourth Amendment claim under 42 USC § 1983; Mootness; Opportunity to amend

Although the court “may agree with plaintiff’s arguments on appeal that the trial court erred in its Fourth Amendment analysis,” it nonetheless concluded “that plaintiff failed to state a claim on which relief can be granted.” Thus, it affirmed the trial court’s grant of summary disposition, vacated the portion of the trial court’s order that found plaintiff’s claim was moot, and remanded. The case arose “out of nuisance abatement actions taken by defendant.” The court held that “the nuisance-abatement complaint, and the dismissal of that action, could not be used when analyzing whether plaintiff’s complaint was legally sufficient.” Moreover, it also agreed “with plaintiff that the trial court made at least one mistake of law when concluding that the warrantless search of private property does not violate the Fourth Amendment because ‘it is not unreasonable to search a property when the proceedings are civil in nature.’” Thus, it concluded that “the trial court’s analysis, which relied heavily on the idea that there could be no Fourth Amendment violation in the nuisance-abatement context, was erroneous. However, turning to the issue of whether plaintiff failed to state a claim on which relief could be granted, plaintiff sought to enforce his constitutional right to be free from unreasonable search and seizure under” § 1983. Apart from “an allegation that a warrantless search of his property occurred, plaintiff makes no specific factual allegations to support his claim that defendant was ‘regularly’ conducting such warrantless searches of private properties or that warrantless searches as part of defendant’s nuisance-abatement program were a widespread custom with the force of law. Thus, even assuming that there was a Fourth Amendment violation, the allegations in the complaint assert no more than impermissible vicarious liability for the actions of one investigator.” Also, the court agreed “that plaintiff’s action for damages under § 1983 was not moot.” It found that even “assuming plaintiff may not have suffered actual damages in this instance due to the nature of the constitutional violation, plaintiff’s claim would still not be moot.” Finally, the court expressed no opinion on whether plaintiff was entitled to amendment of the complaint but agreed “that the trial court was required to consider plaintiff’s request.”

Divorce; Physical custody; Findings on the statutory best-interest factors (MCL 722.23); Factors (b), (d), (f), (j), & (l); Setting aside a settlement agreement; The Child Custody Act (CCA) requirement that the circuit court independently determine the custodial arrangement that serves children’s best interests; Harvey v Harvey; Attorney fees; MCR 3.206(D); Richards v Richards; Reed v Reed; Sexually transmitted disease (STD)

Concluding that the trial court’s factual findings and assessment of the MCL 722.23 factors were not against the great weight of the evidence, the court affirmed its custody ruling in this divorce case. Defendant-father was not entitled to any appellate relief on the basis that the trial court set aside the parties’ settlement agreement, or in regard to the award of attorney fees to plaintiff-mother. He challenged the trial court’s findings on best-interest factors (b), (d), (f), (j), and (l). He “conceded that he made two inappropriate statements” about plaintiff in the children’s presence, but contended “the trial court erred by assigning undue weight to these two statements and by applying them to multiple best-interest factors.” The court rejected his argument, noting the “trial court found that defendant’s persistent disparagement of plaintiff in the presence of the children was the primary cause of the deterioration of [her] relationship with the two older children. Significantly, [it] determined that no credible evidence supported defendant’s claims that plaintiff engaged in extramarital affairs, transmitted an STD to defendant, or attempted to harm [him] by providing improper medical care during his illness with COVID-19.” And although he only admitted to “two such statements, the evidence overwhelmingly established a pattern of frequent disparagement by defendant, or encouragement of the children to disparage plaintiff and to regard her as an unfit parent and person. Accordingly, the trial court’s factual findings regarding defendant’s conduct were not against the great weight of the evidence.” In addition, contrary to his assertion that it “erred by considering this conduct under multiple best-interest factors, the law recognizes that certain best-interest factors may overlap, and a single fact or circumstance may properly be considered under more than one factor.” As to his argument about the settlement agreement, under the CCA, a trial “court is not permitted to adopt parental stipulations without independently determining the child’s best interests.” Finally, as to the attorney fee award, substantial record evidence supported “the trial court’s finding of misconduct by defendant in relation to the alienation of the children from plaintiff” and it did not clearly err in finding that he engaged in misconduct related to a parcel of real property. Affirmed.

The court’s jurisdiction; Appeal as of right under MCR 7.203(A)(1); “Final order”; MCR 7.202(6)(a)(i) & (iv); Declining to treat a claim of appeal as an application for leave to appeal

The court held that appellants improperly filed their appeal as one as of right rather than filing an application for leave to appeal, and it declined to treat the claim of appeal as such an application under the circumstances. They represented defendant in the trial court. After they twice unsuccessfully moved for summary disposition in lieu of an answer, plaintiff successfully moved for sanctions. The trial court made the “sanctions award joint and several between defendant and appellants.” The same day, it granted their request to withdraw. “While plaintiff’s case against defendant continued, appellants filed this appeal as of right.” They asserted the court had jurisdiction “under MCR 7.203(A)(1) because the order granting plaintiff’s request for sanctions was final ‘as to counsel.’ But a ‘final order’ under MCR 7.202(6)(a)(i) must dispose ‘of all the claims . . . of all the parties,’ and the order granting plaintiff’s request for sanction did not dispose of plaintiff’s claims against defendant.” As a result, “regardless of whether that order was final ‘as to counsel,’ it was not a final order under MCR 7.202(6)(a)(i).” In addition, it was “not a ‘final order’ under MCR 7.202(6)(a)(iv) because it is a prejudgment order, and MCR 7.202(6)(a)(iv) concerns postjudgment orders.” The court declined to exercise its discretion to treat the claim of appeal as an application for leave because their “failure to file the proper type of appeal is a continuation of appellants’ conduct that led to this appeal in the first place. The trial court sanctioned appellants under MCL 600.2591 for taking legal positions devoid of arguable legal merit, and the first thing appellants do in this Court is file the incorrect type of appeal in direct contravention of our court rules. While there are times when mistakes like this are understandable, this is not one of them[.]” Dismissed.

Fourth Amendment claim under 42 USC § 1983; Mootness; Opportunity to amend

Although the court “may agree with plaintiff’s arguments on appeal that the trial court erred in its Fourth Amendment analysis,” it nonetheless concluded “that plaintiff failed to state a claim on which relief can be granted.” Thus, it affirmed the trial court’s grant of summary disposition, vacated the portion of the trial court’s order that found plaintiff’s claim was moot, and remanded. The case arose “out of nuisance abatement actions taken by defendant.” The court held that “the nuisance-abatement complaint, and the dismissal of that action, could not be used when analyzing whether plaintiff’s complaint was legally sufficient.” Moreover, it also agreed “with plaintiff that the trial court made at least one mistake of law when concluding that the warrantless search of private property does not violate the Fourth Amendment because ‘it is not unreasonable to search a property when the proceedings are civil in nature.’” Thus, it concluded that “the trial court’s analysis, which relied heavily on the idea that there could be no Fourth Amendment violation in the nuisance-abatement context, was erroneous. However, turning to the issue of whether plaintiff failed to state a claim on which relief could be granted, plaintiff sought to enforce his constitutional right to be free from unreasonable search and seizure under” § 1983. Apart from “an allegation that a warrantless search of his property occurred, plaintiff makes no specific factual allegations to support his claim that defendant was ‘regularly’ conducting such warrantless searches of private properties or that warrantless searches as part of defendant’s nuisance-abatement program were a widespread custom with the force of law. Thus, even assuming that there was a Fourth Amendment violation, the allegations in the complaint assert no more than impermissible vicarious liability for the actions of one investigator.” Also, the court agreed “that plaintiff’s action for damages under § 1983 was not moot.” It found that even “assuming plaintiff may not have suffered actual damages in this instance due to the nature of the constitutional violation, plaintiff’s claim would still not be moot.” Finally, the court expressed no opinion on whether plaintiff was entitled to amendment of the complaint but agreed “that the trial court was required to consider plaintiff’s request.”

Motion for reconsideration of the issuance of a PPO; Harmless error; Amendment of the allegations supporting the petition at the MCR 3.705 hearing; Due process; Notice; “Stalking”; MCL 750.411h, 411i, & 411s

The court affirmed the trial court’s issuance of a PPO to petitioner-SWB following a hearing and the subsequent denial of respondent-KJP’s timely motion for reconsideration. On appeal, respondent contended “the trial court: (1) abused its discretion in denying its authority to consider respondent’s motion for reconsideration of the issuance of the PPO; (2) violated respondent’s right to due process in permitting petitioner to amend the allegations supporting his petition at the MCR 3.705 hearing; and (3) abused its discretion by granting a PPO where petitioner did not allege facts that constitute ‘stalking’ as defined by MCL 750.411h.” The court first held that respondent was correct that “the trial court erred in finding that motions for reconsideration are not permitted in personal protection proceedings under subchapter 3.700 of the” MCRs. As to whether this error required any substantive relief, it turned to the harmless error rule, MCR 2.613(A). It held that given “the trial court’s explication of its resolution of the matter at the PPO hearing and the” court’s own “analysis of respondent’s arguments,” respondent would not “have been entitled to relief on a motion for reconsideration had it been substantively considered by the trial court.” Thus, it found the trial court’s error “in failing to substantively consider the motion for reconsideration was harmless and that allowing that order to stand is not inconsistent with substantial justice.” The court also concluded “the procedural due process and notice requirements for the issuance of a PPO under the Michigan court rules were satisfied in this case.” Finally, it found “no abuse of discretion in the trial court’s finding that . . . three separate instances of conduct by respondent ‘constitute stalking as defined in’” MCL 750.411h or 411i, or conduct prohibited under MCL 750.411s.

Auto negligence; Serious impairment of body function; MCL 500.3135; McCormick v Carrier; Causation; Motor vehicle accident injury; Wilkinson v Lee; Causation; Cause in fact; Craig ex rel Craig v Oakwood Hosp; Summary disposition; MCR 2.116(C)(10); Patrick v Turkelson

The court held that although plaintiff created a question of fact on whether her condition affected her general ability to lead her normal life, defendants were still entitled to summary disposition because she failed to present evidence causally connecting her claimed impairments to the accident. Plaintiff was rear-ended in 4/23, declined treatment at the scene, and went to the hospital two days later complaining of neck and shoulder pain. Her records showed normal x-rays and a diagnosis of cervicalgia, and later providers noted tendinosis, disc bulges, and a mild spinal curvature. The trial court granted summary disposition after concluding that she had not satisfied the third prong of the serious-impairment test. On appeal, the court held that the trial court erred on that point because plaintiff’s testimony that she missed a month of work, had chronic pain, needed more breaks, struggled with lifting and pushing at her nursing job, and could no longer fully enjoy activities like weightlifting and playing basketball with her son created a factual question under McCormick about whether her general ability to lead her normal life was affected. The court next held, however, that plaintiff still could not recover because she failed to prove causation. It noted that she reported no injury at the scene, the emergency-room records did not identify objective impairments from the crash, and none of the later providers linked the slipped discs, bulging discs, spinal curvature, or tendinosis to the accident. The court also emphasized that a temporal relationship alone is insufficient and that the independent medical examiner stated her complaints were “unrelated to the accident in question.” Affirmed.

42 USC § 1983; Eighth Amendment “deliberate indifference” to inmates’ serious medical needs claim; Qualified immunity; Whether there was a violation of a “clearly established right”; “Conditions of confinement” Eighth Amendment claim; Gross negligence claims under Michigan law; Immunity under Michigan’s Government Tort Liability Act (GTLA); “Proximate cause”; MCL 691.1407(2)(c)

[This appeal was from the ED-MI.] The court held that defendants-prison officials (MDOC Officials) were entitled to qualified immunity on plaintiffs-current and former inmates’ Eighth Amendment claims because plaintiffs failed to cite a single case with similar circumstances to support that defendants had violated “a clearly established” constitutional right related to plaintiffs’ medical needs. But it found that plaintiffs “adequately pleaded that these officials were the proximate cause of their injuries under Michigan law.” Plaintiffs suffered from scabies while in a Michigan prison. Contractors (the Corizon Defendants) responsible for the health and disease prevention told prison officials that it was not scabies. However, “an outside dermatologist found that these providers had misdiagnosed the women and that scabies had spread through the prison.” The named plaintiffs in this class action were four inmates incarcerated during this time. They sued under § 1983 seeking “damages not just from the medical providers but also from various prison officials who did not treat them.” They asserted claims for deliberate indifference to their serious medical needs and for gross negligence under Michigan law. The district court denied defendants qualified immunity on the Eighth Amendment claims and state-law immunity on the negligence claims. As to the denial of qualified immunity, the court held that plaintiffs were unable to cite a case “with similar enough facts that it would have alerted the defendants that their ‘specific conduct was unlawful.’” Prison officials could not be “vicariously liable simply because the Corizon Defendants allegedly mistreated” plaintiffs’ scabies. They failed to allege that any of the prison officials were “‘personally involved in the allegedly inadequate medical care’” plaintiffs received. The court held that the MDOC Officials and another group of defendants (the Wayne State Officials) were entitled to qualified immunity. As to plaintiffs’ conditions of confinement claim, they again identified “no ‘case’ that would have ‘clearly established’ for the MDOC and Wayne State Officials that they had a duty to overturn the Corizon practitioners’ efforts to combat the rashes.” As to the Michigan negligence claims, the court found the MDOC Officials’ proximate cause argument premature, concluding discovery was needed. Reversed in part, affirmed in part, and remanded.

Motion for reconsideration of the issuance of a PPO; Harmless error; Amendment of the allegations supporting the petition at the MCR 3.705 hearing; Due process; Notice; “Stalking”; MCL 750.411h, 411i, & 411s

The court affirmed the trial court’s issuance of a PPO to petitioner-SWB following a hearing and the subsequent denial of respondent-KJP’s timely motion for reconsideration. On appeal, respondent contended “the trial court: (1) abused its discretion in denying its authority to consider respondent’s motion for reconsideration of the issuance of the PPO; (2) violated respondent’s right to due process in permitting petitioner to amend the allegations supporting his petition at the MCR 3.705 hearing; and (3) abused its discretion by granting a PPO where petitioner did not allege facts that constitute ‘stalking’ as defined by MCL 750.411h.” The court first held that respondent was correct that “the trial court erred in finding that motions for reconsideration are not permitted in personal protection proceedings under subchapter 3.700 of the” MCRs. As to whether this error required any substantive relief, it turned to the harmless error rule, MCR 2.613(A). It held that given “the trial court’s explication of its resolution of the matter at the PPO hearing and the” court’s own “analysis of respondent’s arguments,” respondent would not “have been entitled to relief on a motion for reconsideration had it been substantively considered by the trial court.” Thus, it found the trial court’s error “in failing to substantively consider the motion for reconsideration was harmless and that allowing that order to stand is not inconsistent with substantial justice.” The court also concluded “the procedural due process and notice requirements for the issuance of a PPO under the Michigan court rules were satisfied in this case.” Finally, it found “no abuse of discretion in the trial court’s finding that . . . three separate instances of conduct by respondent ‘constitute stalking as defined in’” MCL 750.411h or 411i, or conduct prohibited under MCL 750.411s.

Best interests; MCL 712A.19b(5); In re Johnson; Reasonable efforts; MCL 712A.19a(2); In re Rippy

The court held that the trial court did not err by finding termination was in the child’s (AM) best interests and that the DHHS was not required to provide reunification services. After respondent-father was convicted of CSC I and child abuse involving AM’s sibling, he pled no contest to jurisdiction and stipulated to statutory grounds, leaving only best interests. The court emphasized AM’s need for “finality and permanence” given respondent’s incarceration and AM’s expressed wishes. It noted AM told the caseworker he “wanted to move on” and that respondent admitted he “no longer had any bond” with AM. The panel rejected respondent’s argument that his prison term eliminated danger, explaining that long incarceration still supports termination because a child needs stability, citing Johnson. It also relied on evidence of the home environment and risk, including a psychological report concluding that no child “would be safe in the care of respondent,” that respondent had a “high risk for sexual offensive recidivism,” and that the family lived in an “environment of fear.” On reasonable efforts, the court held the issue failed under MCL 712A.19a(2) because aggravated circumstances applied where respondent was convicted of CSC involving penetration against AM’s sibling, and it noted that such findings “amount to a judicial determination” excusing services, citing Rippy. It also noted reunification efforts were excused because respondent was ordered to comply “with Sex Offender Registration.” Affirmed.

Adjudication; MCL 712A.2(b)(1); Plea; MCR 3.971(B) & (D); Reasonable reunification efforts; A respondent’s “commensurate responsibility” to participate in the offered services; Due process; Notice of what was expected of respondent

The court upheld the trial court’s exercise of jurisdiction, concluded that the DHHS made reasonable reunification efforts, and found no merit in respondent-father’s claim that ‘he lacked notice of what was expected of him in the” proceedings. Thus, it affirmed the trial court’s order exercising jurisdiction and its later order terminating his parental rights. As to the adjudication, the court concluded that because “the referee complied with the relevant portions of MCR 3.971(B) and (D) to ensure the plea was voluntarily and knowingly made, the manner in which the trial court assumed jurisdiction did not violate” respondent’s due-process rights. As to the trial court’s decision to exercise jurisdiction, respondent’s admissions supported “that, when able to do so, he neglected or refused to provide proper or necessary support for the minor child under MCL 712A.2(b)(1). [He] admitted he was aware of the child protective proceedings.” But as of 3/26/24, “he had not communicated with ‘the assigned worker’ to address the” child’s needs since 7/14/23. Respondent also admitted, on 11/1/23, that he established himself as the “child’s legal father through an affidavit of parentage.” As of 3/26/24, he “admitted that he lacked income and housing that was appropriate for his and the” child’s needs. The court held that these “admissions established, by a preponderance of the evidence” that the child needed more care than respondent could provide. It determined that the trial court’s finding was “consistent with ‘the underlying purpose of the statutory scheme,’ which ‘is to protect children from an unfit homelife.’” The court next held that the trial court did not err in finding that respondent “was provided with services to aid in reunification.” Contrary to his appellate arguments, “he was provided sufficient time to participate in, and benefit from, services. However, he failed to uphold his ‘commensurate responsibility’ to participate in the services offered by DHHS.” Further, there was no indication he “would have fared better if DHHS had offered other services, or accommodations, to assist him.” Finally, the court found that the DHHS did not fail to notify respondent “of what was required in order to preserve his parental rights. He was not deprived of the fundamental fairness required for due process.”