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The case of Ray v Swager, No: 322766, came to the Michigan Court of Appeals (MCOA) on remand from the Michigan Supreme Court. In the first appeal to the MCOA, Eric Swager appealed the trial court’s denial of his motion for summary disposition. The MCOA reversed the trial court’s decision and remanded for entry of summary disposition in Swager’s favor based on the conclusion that reasonable minds could not conclude that Swager was “the proximate cause” of plaintiff Ray’s injuries.

Ray appealed to the Michigan Supreme Court, and the Michigan Supreme Court announced a new framework to clarify the process for determining “the proximate cause” in the context of the Governmental Tort Liability Act (GTLA).

Facts:

On September 2, 2011, 13-year-old Ray, running with the Chelsea High School cross-country team, was struck by an automobile driven by Scott Platt. Swager—the team’s coach—was running with the team. As the team approached the intersection in question, they encountered a “red hand” on the pedestrian signal, indicating that pedestrians should not cross the road. Although the eyewitness accounts vary, there is evidence that Swager said something to effect of “let’s go,” and the team crossed the street. Ray, who was in the back of the group, ran into the road and was hit by Platt.

Procedural Background:

Following the accident, Ray filed suit against Swager and Scott Platt. Swager answered with a motion for summary disposition based on governmental immunity, arguing that, as a government employee, he was immune because he wasn’t “grossly negligent” and his conduct wasn’t the “proximate cause” of Ray’s injuries.

When the MCOA reversed the decision of the trial court and remanded for entry of summary disposition in favor of Swager, it concluded that his remark ‘let’s go’ could not be considered the proximate cause of Ray’s injuries since Ray ran in front of Platt’s car and Platt hit him.

Supreme Court framework for analyzing ‘proximate cause’ under GTLA:

The analysis under this framework begins by:

1. Determining whether the defendant's gross negligence was a cause in fact of the plaintiff's injuries,
2. If his gross negligence is a factual cause, then consider whether the defendant was a proximate or legal cause by addressing foresee-ability, and
3. Whether the actor may be held legally responsible for his or her conduct.

In addition to considering the governmental actor’s conduct, it must also be decided whether there are other proximate causes of the injury.

Determining if there are other proximate causes of the injury requires consideration of whether any other human person was negligent. The court stated: “only a human actor’s breach of a duty can be a proximate cause.” While natural forces may bear on the question of foreseeability and intervening causes when analyzing proximate cause, the court indicated that they can never be considered the proximate cause of a plaintiff’s injuries for the purposes of the GTLA.

Once all the proximate causes of the injuries have been determined, then, taking all those causes into account, the question is: was the government actor’s gross negligence the “proximate cause” of the injury. In an effort to clarify this position the court stated: “The relevant inquiry is not whether the defendant’s conduct was the immediate factual cause of injury, but whether, weighing the legal responsibilities of the actors involved, the government actor could be considered “the proximate cause.”

Using the analysis recommended by the Michigan Supreme Court, the MCOA wrote that “Because issues of material fact remain that preclude summary disposition, we affirm the trial court’s denial of Swager’s motion for summary disposition and remand for further proceedings.”

Concurring Opinion:

Hon. Mark T. Boonstra, while agreeing with the outcome of the majority, argued that the Supreme Court’s new method of analysis is so confusing that “it may be that trial courts will throw up their hands and simply allow everything to proceed to trial, even when circumstances may not warrant.” Because of this, Judge Boonstra urged the Legislature to state its intent, concluding that “…it is the Legislature that can avoid further and prolonged judicial wrangling over legislative intent, and further confusion in the trial courts, by restating its intent clearly and explicitly and perhaps, as the [MSCt] Dissent suggests, without reference to the much-maligned term, “proximate cause”.

                The Michigan Court of Appeals issued the very first decision (published or unpublished) under the Safe Delivery of Newborn Act (SDNA), MCL 712.1 et seq., which has existed since 2000.

                Under the SDNA, a parent can surrender a newborn to a hospital or emergency provider within 3 days of birth and, after certain procedures are followed, the parental rights of both surrendering parent and non-surrendering parent could be terminated and child could be adopted. The SDNA was enacted to reduce the number of newborns who were abandoned in dumpsters, public restrooms, and the like, and as a way to save those babies’ lives and to help them achieve permanency with a loving adoptive family. A majority of states have some form of SDNA.

                In In re Miller Minors, newborn twins were born at the hospital, where the mother surrendered them. As permitted by the statute, the mother (Surrendering Parent) did not identify the father. Pursuant to the statute, the hospital social worker attempted to learn as much as she could about both the surrendering parent and non-surrendering parent-again where the surrendering parent is not required to give any information. The hospital contacted an adoption agency, who placed the twins with prospective adoptive parents. 

                Without the name of the non-surrendering parent, the agency followed the statute and published notice in a newspaper within 28 days of the surrender, in the county where the twins were born. After 28 days of surrender and from notice, neither the surrendering parent nor the non-surrendering parent came forward to claim the children. Under the statute, the trial court must then terminate parental rights of both surrendering and non-surrendering parent so the children can be adopted.

                In Miller, more than 3 months after the time period for the agency to provide publication notice, the Department of Vital Records returned a birth certificate that named a “father” for the children. Presumably, the Department of Vital Records included that name because there was some record the surrendering parent had married this person, although it is unclear how the Department of Vital Records would have known if the couple had divorced in another state, whether the man died in another state, and so on. Notably, effective January 18, 2018, the Legislature amended the Vital Records Act so that birth certificates issued for safe surrenders would only identify the parents as “unknown” and the newborn as “Baby Doe.” The Vital Records Act was amended to increase surrendering parents’ use of the SDNA without fear of their name or the non-surrendering parents’ name appearing on the birth certificate– the idea being that more surrendering parents would safely surrender and thus save more lives.

                The trial court in this case, however, concluded that the SDNA did not apply to married parents because The Court of Appeals reversed and held that SDNA applied to any kind of surrendering or non-surrendering parent, whether married or not.

                A defendant must understand their plea before it can be entered in front of the court. With juveniles, MCR 3.941(C) says “the court shall tell the juvenile: the possible dispositions.” At a very basic level this means that the defendant must understand the consequences of what will come as a result of their plea. Also MCR 3.941(C) states “the court may not accept a plea of admission or of no contest without establishing support for a finding that the juvenile committed the offense: either by questioning the or by other means when the plea is a plea of admission.” Someone may not plea guilty to something if they cannot admit to doing some acts that would meet the elements of the crime they are being charged with. In re Jackson, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2017 (Docket No331632). The defendant accepted a plea deal. The plea was for fourth-degree criminal sexual conduct, the defendant attempted to withdraw his plea because he was not informed properly of the dispositions and also there was insufficient facts to convict of CSC-IV. Slip op at 1. The trial court denied the withdrawal, but the Court of Appeals remanded this case for further proceedings to determine on the record whether the defendant actually had to use force to overcome the victim, which would provide sufficient factual basis for the plea. Slip op at 6.

                The defendant must be aware of the possible dispositions, or consequences, that may be faced. MCR 3.941(C). The trial court will make the defendant aware of the dispositions by informing him, on the record, the possible outcomes associated with the plea. The trial court here informed the defendant very vaguely of the possibilities, “If you plead guilty and support those facts I’ll send you to a group of sociologists, psychologists, educational experts and others... They would test you in a variety of different ways... [I]f there were problems that I could not fix in the home then I’ll pull you out of the home.” Slip op at 3. Nonetheless, the Court of Appeals determined this to be sufficient to inform the juvenile of the consequences that could come as a result of this plea “we are not convinced that the trial court’s decision to deny respondent’s motion to withdraw his plea fell outside the range of principled outcomes.” Slip op at 3. Although vague, the trial court had sufficiently explained the possible outcomes to the juvenile. As for the “possible dispositions,” the Court of Appeals affirmed.

                The factual basis that was provided on the record was not enough according to the Court of Appeals. The factual basis must be able to be proven by all of the elements. The fact that the contact element is proven is not sufficient to provide a factual basis for the force or coercion element. “A factual basis to support a plea can be established if an inculpatory inference could be drawn to prove the underlying offense based on what respondent admits, even if an exculpatory inference could also be drawn.” Slip op at 4. Just because someone is touched does not mean that they were forced or coerced into that touching. This is not an inference that can be made.

                A court must protect the juveniles in such a way to make sure they have full understanding of the consequences, and that also the juveniles know what must be proven against them to convict on the charges. Juveniles generally do not have the basic knowledge of the legal system, which would allow them to truly understand what was happening. This makes the defense attorney and the judge especially important in these cases. The Judge and defense attorney need to make sure they take extra time allowing the defendant to fully understand everything that is happening, the juvenile understands what they are agreeing to, and why they are doing so. In a case like this when the court accepts the plea without providing a sufficient factual basis on the record it allows the juvenile to plea when there is the possibility that the factual basis is not actually proven allowing the juvenile to admit to a crime they may not have committed.

             In the case of In re Detmer/Beaudry, Minor, No.336348, the two minor children, AB and KD, and their mother are members of the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe) and thus, when AB was “removed” from his mother, the special protections of the Michigan Indian Family Preservation Act (MIFPA) applied. Because the trial court didn’t comply with those protections, the Michigan Court of Appeals (MCOA) vacated the court’s order and remanded for further proceedings.

FACTS:

            In September 2016, the Department of Health and Human Services (DHHS) petitioned the trial court to remove the minor children from their mother’s care due to the mother’s extensive history with Children’s Protective Services. At the preliminary hearing, KD was voluntarily placed with her father, but AB remained in the mother’s care. In November 2016, the trial court ordered that AB be placed with the father due to concern for his safety with the mother. The court declined to make any findings as to active efforts or risk of harm to AB since he was not “out of the home of a parent.”

            The mother appealed arguing that the placement of AB and KD violated the protections of MIFPA. When the matter came before the MCOA, the case below had been settled and the children returned to their mother. All parties agreed that the case was moot but asked the court to address the merits of the appeal because the case involved an issue of public significance that is likely to recur, yet evade appellate review. (In re Midland Publishing Co, Inc., 420 Mich 148, 152 n 2; 362 NW2d 580 (1984).

The Case is Moot but the Exception Against Deciding Moot Cases Applies:

When is child “removed” from a parent calling for the procedural protections of MIFPA to apply?

            Relying on language in MCL 712B.15(2), the mother argues that the trial court erred when it purportedly “removed” AB and KD without first making any findings as to active efforts or risk-of-harm. DHHS responds that the trial court did not “remove” either child and, accordingly, the provisions of MCL 712B.15(2) do not apply. Thus, to resolve this matter, we need to construe the meaning of “removed” under MIFPA.

            The statute doesn’t define “removed.” After a review of other statutes, case law and Black’s Law dictionary the court wrote, “Thus, we understand “removed” in MCL 719B.15(2) to mean the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution.”

            Based on this understanding, the MCOA stated, “it becomes clear that the trial court erred with respect to AB. Over mother’s objection, the trial court ordered that AB be physically placed with his father. AB had previously resided with his mother and spent every other weekend with his father. The trial court’s order moved AB’s residence to his father’s home and conditioned mother’s visitation on the discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court “removed” AB from respondent-mother.

            Because AB was removed from a parent, the trial court was required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether respondent-mother’s continued custody of AB posed a risk of emotional or physical harm to the child. MCL 712B.15(2). The trial court was required to hear testimony of a qualified expert witness concerning these matters. MCL 712B.15(2). The trial court made no such findings and heard no such testimony, and this was reversible error.”

            The trial court didn’t err with regard to KD since the placement was voluntary and not intended to be permanent. This is not “removal” but simply a mother making decisions regarding her child.

            In three consolidated cases, Hegadorn v DHHS, No. 329508, the court looked at the individual funding of long-term care under Medicaid deciding that assets placed by an institutionalized individual’s spouse into a “Solely for the Benefit of” Trust (“SBO Trust”) are countable assets for determining whether the institutionalized individual is eligible for Medicaid benefits.

FACTS:

            The facts in each case are identical. Mary Ann Hegadorn, Dorothy Lollar and Roselyn Ford began receiving long-term care at nursing homes. Within a short time after receiving care, their spouses established “Solely for the Benefit” (SBO) trusts. After the trusts were established, the women applied for Medicaid benefits. The Department of Health and Human Services (the Department) denied their applications determining that each had countable assets, including those placed in the SBO trusts, exceeding the applicable Medicaid benefits eligibility.

            Each appealed to an Administrative Law Judge and in each case, the ALJ affirmed the Departments initial asset assessment that because the assets of the parties were in existence when the women entered long-term care, they must be counted in determining eligibility.

            In each case, the plaintiffs appealed the ALJ’s decision to the circuit court. Livingston Circuit Judge Michael P. Hatty reversed the ALJ's decisions to affirm the Department’s denial of Mrs. Hegadorn’s and Mrs. Lollar’s applications. Judge Hatty explained that as of the date of the filing of the request for benefits, the assets placed in an SBO trust were not countable to the institutionalized spouse. Later, the Department made a change in policy which would include the assets, adversely affecting the parties. Relying on Hughes v McCarthy, 734 F.3d 473 at 480, he set aside the order of the ALJ on both files. Washtenaw Circuit Judge Timothy P. Connors, relying on Judge Hatty’s reasoning also reversed the ALJ’s decision in the third case.

            The MCOA concluded that the circuit courts did not apply the correct legal principles in these appeals, reversing the circuit court’s orders and reinstating the decisions reached by the ALJs.

ANALYSIS:

            According to the MCOA, each trust at issue in this case was a Medicaid trust. Using the guidance of Bridges Eligibility Manual which stated that the amount of the principal of a trust that is a countable asset depends on the terms of the trust.

            Thus, the issue before the court is whether “there is any condition under which the principal could be paid to or on behalf of the institutionalized person from an irrevocable trust.”

            After reviewing the sections of each trust title “Distribution of Assets,” the court concluded that the trust assets placed into each trust shortly before the Medicaid applications were filed are to be “use[d] up” during the husbands’ lifetimes. Similarly, all three trusts included language that instructs the trustees to distribute the assets “on an actuarially sound basis,” which means that the “spending must be at a rate that will use up all the resources during the party’s lifetime.”

            Thus, the court concluded, because there was a “condition under which the principal could be paid to or on behalf of the person from an irrevocable trust,” the assets in the trusts were properly determined to be countable assets by the Department.”

The MCOA disagreed with the plaintiff’s argument re: the following:

            The Department didn’t impermissibly change its policy—the change was a clarification of the way it had treated SBO trust assets for Medicaid-eligibility purposes, explaining that the change was required in order to comply with federal mandates, but that is not a change in law or policy.   

            Retroactive application---plaintiffs argue that the change was inapplicable to them because the change cannot be retroactively applied. The court disagreed. First, there could be severe consequences statutorily imposed on the Department should it choose not to comply with the federal requirements. Second, the plaintiffs and amicus do not cite, and we are unable to find, any authority to support the proposition that individuals who are not entitled to Medicaid benefits should nevertheless receive them based on an alleged change in interpretation of applicable state and federal authority.

            After a review of federal statutes and related administrative manuals, the court concluded that the clear legislative language that Congress intended that when making an initial eligibility determination, states are to consider assets held by the institutionalized spouses—in this case, the plaintiffs—and the community spouses—in this case, the plaintiffs’ husbands.

            Accordingly, the court held the assets were countable and reversed the circuit courts’ orders providing otherwise and reinstate the decisions reached by the ALJs.

            Keep watching—this matter has been appealed to the Michigan Supreme Court. We’ll keep you posted.