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Sufficiency of Plea in Juvenile Cases

Posted on Tuesday, January 9, 2018

                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 In re Jackson, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2017 (Docket No331632).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.

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Court of Appeals Hold that Adoption is Moot After Order of Filiation Entered

Posted on Monday, November 20, 2017

            In In re LMB (Docket No. 338169), the Court of Appeals held that entry of an order of filiation while an adoption appeal was pending mooted the adoption appeal.
            The adoption case involved a putative father who had undisputedly neither provided any support to the child or the birth mother, nor had any custodial relationship with the child. The adoption trial court refused to terminate the putative father’s rights to the child, but its own opinion was highly critical of the putative father. The prospective adoptive parents appealed the decision of the trial court, questioning both the trial court’s choice of standard of proof, and whether custody with the putative father was truly in the child’s best interests given the copious evidence of immaturity, irresponsibility, and instability.

            After the Section 39 hearing under the Adoption Code had begun, the putative father filed a paternity action. While the adoption appeal was pending, the paternity trial court entered an order of filiation making the putative father the legal father of the child. The prospective adoptive parents attempted to stay the paternity case and prevent entry of an order of filiation prior to resolution of their adoption appeal, but the paternity trial court refused to stay the case, and the Court of Appeals dismissed the adoption appeal as moot.
            In re LMB brings to light important issues with respect to the interplay of the Paternity Act and the Adoption Code. The Court of Appeals’ decision, with no concurrent policy that paternity courts stay their proceedings pending adoption matters, creates real problems in the area of adoption law. The ability to moot an adoption appeal simply by obtaining a DNA test and an order of filiation effectively eliminates the ability of prospective adoptive parents or birth mothers to appeal any adoption case denying termination of parental rights, which eliminates appellate review of any adoption decision favoring a putative father. The ability to actively prevent appellate review through a concurrent paternity proceeding will lead to poor and inconsistent application of the law and unpredictability for prospective adoptive parents in any case in which a putative father may emerge seeking the child.
            An application for leave to appeal is now pending in the Michigan Supreme Court in LMB, as well as an application to the Court of Appeals of the related paternity case—in the hopes of obtaining a decision that will preserve prospective adoptive parents’ right to appeal and adoptees’ rights to a placement based on their best interests.

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Remand for a Different Jurist due to Repeated Procedural Error

Posted on Thursday, November 16, 2017

             For the second time and on identical issues, the matter of In reJones, Minors, No. 336836, came before the Michigan Court of Appeals (MCOA) on the father’s appeal of a circuit court order terminating his parental rights. The MCOA again reversed and remanded for further proceedings, this time before a different jurist.
FACTS:
            The basic facts are the same for both appeals. The two children, NAJ and NNJ accused the father of sexually abusing NAJ. In the first hearing (In re Jones, Minors, No.332616) recordings of the children’s forensic interviews were admitted into evidence at a combined adjudicative and dispositional hearing. Based on this evidence, the trial court found it had jurisdiction over the children and that the statutory grounds for termination had been proved by clear and convincing legally admissible evidence. This procedure was repeated when the case came back to the trial court and was heard by the same referee.
Trial Court Commits Two Fundamental Errors:
            First, the court didn’t conduct separate adjudicative and dispositional hearings. As explained in a 2006 case, the adjudicative phase occurs first and determines whether the child comes within statutory requirements of MCL. 712A.2 (b) giving the court jurisdiction. The disposition follows to determine what needs to be done on behalf of the child.
            Second, the court based its decision to terminate parental rights at the first disposition on legally inadmissible evidence. The rules provide that hearsay evidence of a child’s statement of sexual abuse can be admitted if brought through the testimony of person who heard the statements. This was not done at adjudication. To use this testimony, the court must determine the trustworthiness of the statements by viewing the forensic interview and then allow a witness to the child victim’s statements to testify. The forensic interviews alone are admissible at all hearings except adjudication.
            Because the court made its determinations to take jurisdiction on legally inadmissible evidence and then to terminate on the same evidence, which are fundamental procedural and evidentiary errors, the court reversed and remanded.
Errors Repeated at Remand: New Jurist Ordered
            When the matter came back to the court, it was heard by the same jurist. The same procedure was used as in the first case and, therefore, the same errors were committed. The Court of Appeals’ impatience is revealed in its statement:
“Because of these fundamental procedural and evidentiary errors, we again reverse the trial court’s order terminating respondent’s parental rights and remand this case to the trial court for a new hearing. Because the referee has shown an inability to follow this Court’s instructions, the case shall be assigned to a judge or another referee on remand to preserve the appearance of justice.”

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2 Trial Judges + Same Facts = Opposite Orders - Which Controls?

Posted on Monday, October 2, 2017

MCR 2.613(B) sets out the limitations on error-correction by one judge of the orders of
another judge and provides the following:

A judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act. If the judge who entered the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be entered by a judge otherwise empowered to rule in the matter.

Morrissette v Doe, (DocketNo. 331941), (a no-fault case) is an interlocutory appeal concerning a procedural issue, namely, a reversal by one judge of the orders of another under MCR 2.613(B)
FACTS:
            Defendant State Farm Mutual Automobile Insurance Company (State Farm) appealed by leave the orders of Wayne Circuit Judge Susan L. Hubbard which granted motions to quash State Farm’s re-notice of the taking of depositions on non-parties Lawrence Falzon and Clem Barney.
            The case was originally assigned to Wayne Circuit Judge Lita M. Popke, but, when she took on the business court docket, her civil docket was reassigned to Judge Hubbard. Judge Popke had ordered Falzon to appear for a deposition, but Judge Hubbard concluded that the deposition was irrelevant and granted Falzon’s motion to quash the taking of his deposition. Judge Hubbard also granted Barney’s motion to quash on the same grounds. Judge Popke had not expressly ordered Barney to appear for a deposition but she had ruled that his role in the case was relevant.
            The only question raised on appeal is whether Judge Hubbard had the authority to reverse or rescind Judge Popke’s earlier orders.
            The Michigan Court of Appeals (MCOA) said “yes” concluding that Judge Hubbard did indeed possess such authority.
Standard of Review:
            The interpretation and application of court rules and the scope of a court’s powers are
questions of law subject to de novo (anew) review. A trial court’s decision regarding discovery is reviewed for an abuse of discretion. The motion to quash the taking of Falzon’s deposition is a motion to reconsider Judge Popke’s earlier order granting State Farm’s motion to show cause; in that context, the trial court’s decision to grant the motion is reviewed for an abuse of discretion.
Analysis:
            The MCOA began its discussion stating the purpose of MCR 2.613(B) is “to ensure that the motion at hand is before the judge most qualified to rule and to prevent so-called “judge shopping,” which “ ‘would obviously detract from the dignity and stability of judicial action . . . .’ ” Clemons v Detroit Dep’t of Transp, 120 Mich App 363, 364. The court concluded that because the parties had no impact on the re-assignment of Judge Popke’s cases, there was no evidence of “judge shopping.”
            Considering the issue of whether a judge can change an order, the MCOA cited MCR 2.119(F)(3) which gives the trial court, until a final order is issued, the discretion to reconsider a prior decision and determine it was mistaken. In this case, the order is not final and thus can be reconsidered.
            The MCOA also wrote that because “Judge Popke’s entire civil docket was transferred to another judge or judges, it is reasonable to conclude that Judge Popke was “absent or unable to act,” thus satisfying the requirements of MCR 2.613(B).
            The court concluded that Judge Hubbard, as successor to Judge Popke through reassignment, had “authority to revisit and reverse the earlier order issued by Judge Popke because no
appellate court had affirmatively ruled on Judge Popke’s order and because the case was still
pending with no final order issued.”
Affirmed.

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Michigan Supreme Court Holds that Summary Disposition Was Improper Where Plaintiff Suffered Injuries While Unloading Personal Items from his Truck

Posted on Tuesday, June 27, 2017
           
                 On June 15, 2017, the Michigan Supreme Court decided Kemp v Farm Bureau General Insurance Company of Michigan (Docket No. 151719), a case concerning a plaintiff’s claim for personal injury benefits when he was injured while unloading items from his vehicle. The Supreme Court first addressed whether the plaintiff satisfied the parked vehicle exception for lowering property from the vehicle, MCL 500.3106(1)(b). The Court found that the plaintiff was lowering property from his vehicle, and there was a question of fact as to whether he was injured as a “direct result” of that process. It was for the jury to decide whether the plaintiff’s property was “of sufficient size and weight to cause plaintiff’s injury.” Id., slip op. at 9. 
               Next, the Supreme Court considered whether the plaintiff had satisfied the transportational function requirement. The Supreme Court held that conveyance of one’s personal belongings is closely related to the transportational function of a motor vehicle and overruled the Court of Appeals decision in Shellenberger v Ins Co of North America to the contrary. The plaintiff had satisfied the test as a matter of law.
               Finally, the Court held that because the plaintiff had created a question of fact as to whether his injury was the direct result of lowering property from his vehicle, the plaintiff had also created a question of fact as to whether the causal relationship between his use of the motor vehicle as a motor vehicle and his injury was more than incidental, fortuitous, or but-for. The Supreme Court reversed the Court of Appeals and remanded for further proceedings.

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Failure to Call Key Witness Held Ineffective Assistance of Counsel

Posted on Friday, June 2, 2017

In this case of consolidated appeals, People v Thomas, No. 329448 and People v Gordon, No. 329449, the Michigan Court of Appeals affirms the case against Clifford Thomas but vacates Jasmine Gordon’s conviction and remands for a new trial due to the ineffective assistance of Gordon’s counsel.
FACTS:
At age 22 months, Jamila, Gordon’s daughter was evaluated because she couldn’t walk, talk or stand without support. It was discovered that she had a brain malformation resulting in 30% loss of her brain. Jamila continued to have numerous medical problems throughout her short life.
Gordon and Jamila’s father separated in March 2014. Several months later, Gordon and Thomas began living together. Gordon was the breadwinner of this new family unit. While Gordon worked, her sister and father sometimes cared for her children. At other times, Thomas was in charge. Over time, Thomas became Jamila’s regular caregiver.
On September 18, 2014, Thomas called Gordon at work to tell her that something was wrong with Jamila and to come outside her work where he was waiting in Gordon’s car with Jamila who was in backseat and unresponsive. Gordon did CPR on her as they drove to the hospital. Jamila couldn’t be resuscitated. She was declared dead at the hospital.

The Trial:
The defendants were tried together with separate juries. Gordon’s jury convicted her of child abuse and involuntary manslaughter while Thomas’s jury convicted him of involuntary manslaughter and resisting and obstructing a police officer, finding him not guilty of child abuse.
Dr. Kilak Kesha, a forensic pathologist employed by the Wayne County Medical Examiner’s Office, performed an autopsy on Jamila. At the trial, Kesha testified that Jamila’s “lacerated pancreas caused the sepsis, which caused the pneumonia, which killed the decedent.” Dr. Kesha said Jamila’s multiple injuries indicated she was the victim of child abuse. He ruled her death a homicide.
Dr. Ljuvisa Dragovic, the chief forensic pathologist and chief medical examiner for Oakland County, testified only on Thomas’s behalf. Dr. Dragovic did not testify for Gordon. His opinion departed from Dr. Kesha’s in several important ways. In Dr. Dragovic’s view, Jamila did not have sepsis. Rather, she had bronchial pneumonia which caused her death. He emphasized that had he performed the autopsy, he would not have called Jamila a victim of child abuse.
Gordon’s Appeal:
Gordon contends that her trial counsel’s performance was constitutionally deficient, leading to her convictions. Gordon preserved this issue by successfully moving in this Court for remand to conduct a hearing on this issue.
For an ineffective assistance of counsel claim, appellant must show:
1.      That counsel’s performance was deficient; that it fell below an objective standard of reasonableness under “prevailing professional norms,” and
2.      That the deficient performance prejudiced the defense—that there is a reasonable probability that but for counsel’s errors, the result of the proceedings would have differed.
The MCOA ordered a Ginther hearing at which John McWilliams, Gordon’s attorney, testified. McWilliams theory of the case was that Jamila died due to “natural causes from a congenital birth defect.” His theory that Jamila’s 2014 pancreatic laceration was related to the 2013 “failure to thrive” diagnosis or to her brain malformation was unsupported by any medical expert. More importantly, the court noted, McWilliams knew his theory was scientifically bankrupt before he decided to employ it, but he rested Gordon’s defense on it nonetheless.
At the trial, McWilliams told Gordon’s jury in his opening statement that the medical examiner for an “adjoining county” would testify as a defense expert witness. The doctor was not called.
Counsel’s performance was deficient:
First, several courts have held that that a defense attorney’s decision to break a promise made during opening statement to a jury may qualify as ineffective assistance of counsel. He knew what Dr. Dragovic had to say and that Dr. Kesha’s autopsy was incorrect in other respects. Nothing changed during the trial, other than McWilliams’ failure to elicit any concessions supporting his theory from Dr. Kesha. Nor did McWilliams ever explain what had happened to the expert he promised to produce. “But McWilliams’ broken promise, standing alone, would not require us to reverse Gordon’s conviction.”
Second, the failure to call to the stand Dr. Ljuvisa Dragovic, who had been retained by McWilliams as support for an exculpatory theory of the child’s death was ineffective. “McWilliams’ strategic decision to forego the expert and instead present an unsupportable medical theory through his argument and cross-examination constituted ineffective performance.” It was said to be a “fundamentally unsound theory strategy and constitutionally ineffective.”
Conclusion:
The court concluded that but for McWilliams deficient performance there is a reasonable probability that the outcome of Gordon’s trial would have been different. A jury that heard both Drs. Kesha and Dragovic apparently rejected Dr. Kesha’s view of the cause of death. In light of their verdict, Dragovic’s absence during Gordon’s trial raises a reasonable probability of her acquittal and undermines confidence in the jury’s guilty verdict.
The verdict in Gordon’s case is vacated and remanded for a new trial.

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Unsigned Will May Sometimes Be Admitted to Probate

Posted on Wednesday, December 14, 2016

The probate Court can admit an unsigned will to probate if the proponent of the will establishes, by clear and convincing evidence, that the decedent intended the document to be his or her will. The Michigan Court of Appeals (MCOA) reached this decision in a published opinion (In re Estate of Sabry Mohamed Attia).

Facts: Sabry Attia, father of 4 children, died on Sept. 11, 2014. Attia executed a will on July 8, 1986 and two codicils to the will, one on February 17, 2009 and the other on February 1, 2013. Appellee Mayssa, personal representative, filed a petition to probate the July 1986 will and two codicils. Appellant, Marvat, filed an objection to the probate of the July, 1986 will and codicils and a petition to admit an unsigned will to probate.

Marvat claimed the decedent directed his attorney, to draft a new will and arranged to sign it on September 11, 2014, the day he died. Marvat argues that although MCL 700.2502 requires a will to be signed, MCL 2503 provides an exception to the signature requirement if the supporter of the will shows by clear and convincing evidence that the decedent intended for the document to be his will.

The Wayne County Probate Court granted Mayssa’s Motion for Summary Disposition stating “I think that the language in 2503, relates to a document which is executed but is flawed in the execution. So, I think it’s a bright line rule in Michigan and I certainly welcome the Court of Appeals to address it.”

The COA did address it stating,

1. MCL 700.2503 permits the probate of a will that doesn’t meet the requirements of MCL 700.2502.
2. One of the requirements is that the will be signed by testator or a person chosen by the testator, in the testator’s presence and at his direction. (MCL 700.2502(1)(b)
3. Thus, section 2503 allows admission of a will that doesn’t meet the signature requirement in section 2502 as long as the proponent establishes by clear and convincing evidence that the decedent intended the document to be a will.

The COA didn’t find a Michigan case on point, but did find persuasive a Superior Court of New Jersey, Appellate Division, decision concluding that a New Jersey statute containing nearly identical language to Michigan permits the probate of a will without a signature, but with clear and convincing evidence that the testator intended the document to be a will.


The COA reversed the lower court and sent the matter back for further proceedings. 

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Supreme Court Opinion Questioned

Posted on Monday, October 3, 2016
The Supreme Court (SCt.), after granting leave and taking full briefing and arguments in Black v Shafer, (149516), reversed the Michigan Court of Appeals (312379) and reinstated Wayne County Circuit Order granting Summary Disposition in favor of the defendant Anthony Shafer. The SCt decided the case on proximate cause, which was not an issue it asked the parties to address.

The Facts are of interest. Plaintiff, as Next Friend of 16-year-old Jessica Bitner, sued Bitner’s boyfriend, Ian Gearhart, after Bitner was accidentally shot in the leg by Gearhart while they were social guests at Anthony Shafer’s grandparents’ home. Shafer, 30 years old, invited Bitner, Gearhart and friend, Stephanie Sutton, to come to his grandparent’s home, situated near a lake for an evening of swimming. Alcohol was supplied by Gearhart and Shafer. The group was partying in the den, a converted garage. William kept a short barrel shotgun, loaded with two shells was leaning against the wall. Shafer knew of its existence and that it was loaded.

Gearhart, who was drinking, became curious about the gun. When he picked it up, Shafer took it from him, checking to be sure it was unloaded. With the safety off, he handed it to Gearhart who examined it and then put it back in the corner. At one point the women went home but, invited back by the two men, returned. The group drank alcohol and went swimming. Gearhart and Bitner returned to the den. Bitner saw Gearhart pick up the shotgun. The gun discharged and Bitner was shot in the leg.

Wayne County Circuit Court held for defendant, finding that there was no special relationship between plaintiff and defendant, that the shooting was unforeseeable and that the defendant didn’t breach the limited duties owed to licensees.

The COA disagreed. In the majority opinion, the court reversed the trial court stating that defendant owed plaintiff a duty of ordinary care as a general matter and because a “special relationship” existed between the parties. A special relationship was established because Shafer 1) invited and picked up Bitner, 2) provided her with alcohol he purchased and 3) allowed the intoxicated Bitner and intoxicated Gearhart into his garage with a loaded, displayed shotgun with its safety off.




COA Judge Kathleen Jansen wrote a dissent. Arguing that Bitner, a social guest of Shafer, was a licensee and, as such, was entitled to expect that she be informed of any dangerous condition such as the shotgun. Because, she opined, the gun was in plain sight, the danger was readily apparent. Judge Jansen went on to argue that since Bitner, a minor, was illegally consuming alcohol, no special relationship existed between the parties and thus there was no duty to protect by Shafer.

I disagree with the Supreme Court decision in this case.

The court said that reasonable minds could not differ that the shooter was an intervening cause that broke the chain of proximate cause from the guy who left the shotgun at the party.  I think most definitely it is a fact issue and that reasonable minds could differ. There was a time gap between the time Gearhart, the shooter, first handled the gun and when the shooting happened, but it was not days, but mere hours.  And, where there is a loaded gun at a party where drinking is occurring, it is, in my mind, reasonably foreseeable that someone will decide to shoot it.

The case, in my opinion, should, as ordered by the COA, be reversed and returned to the trial court for further proceedings.

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Named Insured Can Have An Insurable Interest In Property It Does Not Own

Posted on Friday, September 23, 2016
In A B Petro Mart, Inc v Prime One Ins, 317 Mich App 290 (2016) Docket 327481, an insurance coverage action, the Michigan Court of Appeals held that a corporate Plaintiff had an insurable interest in the property at issue, despite the fact that it did not own the property. In Petro Mart, the Plaintiffs sought coverage for damage to a gas pump at their gas station. The facts revealed that the corporate Plaintiff owned the gas station, but that the actual gas pumps were owned individually by the co-Plaintiff, Aref Bazzi, who was the sole owner of the corporation. The pumps were insured under a policy issued by the Defendant insurance company to the corporate Plaintiff only. Mr. Bazzi was not a named insured. As a result, the insurance company argued that the corporate Plaintiff had no insurable interest in the damaged gas pump and could not make a claim under the policy. The Trial Court agreed and granted summary disposition in favor of the insurance company.


The Court of Appeals reversed the Trial Court and held that the corporate Plaintiff had a sufficient legal interest in the gas pump such that it could insure it and receive an indemnity payment for the damage. In so doing, the Court of Appeals clarified the law with respect to the type of interest sufficient to allow a person or entity to insure a given property. The Court held that “an insured’s pecuniary interest in the insured property is sufficient to constitute an insurable interest.” Thus, regardless of the fact that the corporate Plaintiff was not the legal owner of the gas pump, its operation of the gas station was dependent upon the gas pump, which gave rise to a sufficient legal interest such that the corporate Plaintiff could insured the pump. The Court held that an “insurable interest” is not synonymous with “ownership,” but rather, that a showing that the insured would “suffer a direct, pecuniary loss from the property’s destruction” is sufficient.

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Misapplication of Preclusion Principles Sends Guardianship Back to Probate Court

Posted on Friday, July 1, 2016
The Court of Appeals (COA) reversed the decision of the probate court, confirmed by the circuit court, because of the incorrect application of preclusion principles to the Petitioner’s Petition for a change of Guardianship.  The matter was returned to the Probate Court for further proceedings.

This case (In re Guardianship of Alexander VictorBibi and Nadia Francis Wallace, also known as Nadia Bibi, Minors. No. 327159) began in Canada. The Canadian case was started by the Windsor-Essex Children’s Aid Society because of the neglect of the parents. The grandmothers, Bibi and Wallace, agreed to a consent judgment, which placed the children with Wallace for a period of 6 months. The following spring, the father died and the mother was incarcerated.

The children and their grandmothers moved to Michigan. Bibi petitioned the probate court, asking it to appoint her as the children’s full guardian. The probate court denied her request finding that Bibi’s petition was barred by the preclusion principles of collateral estoppel and res judicata. In other words, the matter had been fully decided by the Canadian Court. Wallace remained as guardian. Bibi appealed to the Circuit Court.

The Circuit Court upheld the probate court decision stating that Bibi failed to establish proper cause or a change of circumstances sufficient to reopen the guardianship decision of the Ontario Court.

The Court of Appeals analysis.

1) The Court of Appeals (COA) first looked at whether the Michigan or Canadian law governed the effect of the Canadian consent judgment. While, generally, the interpretation of a contract is governed by the state in which it is created, there is an exception when the ultimate decision is not final. The COA concluded Michigan law applied since Canadian law sees preclusion principles as flexible and discretionary, not final.
2)  The Canadian court, in answer to a query by the Probate Court, stated it had nothing pending in the matter and would terminate its jurisdiction as soon as the probate court assumed jurisdiction.
3)   Collateral Estoppel. Bibi argued that the probate court was wrong when it applied collateral estopped to bar her petition. The COA agreed. While collateral estoppel is a flexible rule designed to bring finality to decisions, for it to bar further action, the decision must be final and fully argued. The consent agreement in Canada was not a final decision but merely an agreement between parties creating a temporary placement for the children.
4)   Res Judicata, as applied by the Probate Court, didn’t apply because the consent agreement left open more decisions when it placed the children with Wallace until further Order of the Court. And, the situation of the children’s parents had changed drastically. The father had died and the mother was incarcerated thus neither was available for their children.
5)  The Circuit Court, when considering Bibi’s appeal, used alternative grounds for upholding the Probate Court’s decision. It decided that Bibi’s failure to establish proper cause or changed circumstances under the Child Custody Act (CCA) was a valid reason for supporting the Probate Court. The COA noted that the CCA applies to child custody actions and allows guardians to bring custody actions as long as the probate judge acts as circuit judge for those child custody actions. In this case, there was no circuit court custody decision regarding the children and thus, the probate court order couldn’t modify an order from the circuit court. The Circuit Court was in error.
6)    The COA denied Bibi’s request to assign the case to a different judge on remand. While agreeing that some of the probate judge’s remarks were inappropriate, the COA stated they didn’t rise to the level of reassignment.

The COA reversed the decisions of both the Probate and the Circuit Courts and sent the matter back to the Probate Court for a consideration of the Petitions on the Merits. 

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DHHS and Courts Must Actively Assist Intellectually, Cognitively or Developmentally Impaired Parents

Posted on Wednesday, June 8, 2016
The Court of Appeals (COA) vacated a trial court’s order terminating the parental rights of a cognitively impaired young woman due to the repeated failure of the DHHS to make reasonable efforts to reunify the family.

The facts of this case (In re Hicks/Brown, Minors (No. 328870) are disturbing. 

The mother/respondent (MR) of the Hicks/Brown children is cognitively impaired. She lived with her grandmother and her mother, also cognitively impaired, and her siblings. Grandmother died and when MR gave birth to her first child (DH), her mother threatened to evict her. In April, 2012, MR sought help from DHHS. The worker (Cordell Huckaby) spent time with the young mother trying to find relatives to provide a home, reporting that he thought respondent had some “untreated mental health issues.” The Department of Health and Human Services (DHHS) placed the child DH into care on an emergency basis.

Over the course of the next three years, the following occurred:

1. Due to the CPS and DHHS errors, MR was denied parenting time with her child until December, 2012; no services were provided.

2. In January, 2013 an adjudication trial was held and a service plan requiring MR to be psychologically evaluated, participate in therapy and parenting classes, visit her child 3 hours a week, earn her GED and find employment and a home was provided.  

3. The mother gave birth to her son, EB, on February 7, 2013. The hospital recommended MR should live in adult foster care. This was not done and MR moved to homeless shelter.

4. Psychological testing revealed the mother had a Full Scale IQ of 70, however, DHHS continued to provide services geared for a parent of average cognitive abilities.

5. MR moved to Cleveland to live with a relative

On June 18, 2015, more than three years after DH was placed in care, a supplemental petition seeking termination was filed. The petition cited the mother had not benefited from the services and could not parent her children. Despite the pleas of the mother’s attorney that reasonable efforts had not been made and that Mother’s current residence in Cleveland with a relative was not permanent, the court terminated the Mother’s parental rights.


Legal Background

The COA noted that parents have a “fundamental liberty interest in the care, custody and management of their children.” Courts have ruled that this right doesn’t evaporate simply because they haven’t been model parents. A court can terminate a parent’s rights, however, prior to that decision the DHHS must use reasonable efforts to keep the child in the parent’s care. Reasonable efforts are defined as those provided through a case service plan. Matters become more complicated when a parent is disabled, which can call into play the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act.

The ADA directs that disabilities be reasonably accommodated and if not done, then “it cannot be found that reasonable efforts were made to reunite the family.” According to the DHHS services manual, reasonable accommodations must be provided in each case and should be tailored to the individual needs of the parents and the children in each case. The COA reviewed Michigan case law, federal and state law and regulations and a number of expert opinions to clarify what courts and the DHHS must do when working with a parent of “known or suspected intellectual, cognitive or developmental impairment.”

It found that the DHHS must:

1. Provide evaluations to determine the extent of disability,

2. Secure recommendations for services needed to reunite the family,

3. Find the agencies that can provide the services,

4. If no agencies exist, those available must modify their programs to help the parent, and

5. If the parent needs a supportive environment in order to raise the children, a placement for the      whole family with relatives or friends must be found.

Courts, said the COA, must order compliance if the DHHS shirks its duties and if there is a delay in providing services or the evidence suggests the parent needs more time to learn to safely parent, the court won’t be required to order the filing of a termination petition simply because the child has been in foster care for 15 out of the past 22 months.


In re Hicks/Brown, Minors

The Court of Appeals (COA) vacated the termination decision in this case, stating that the DHHS didn’t fulfill its duties and the court failed to recognize that shortcoming. The COA reviewed the many failings of DHHS and the trial court in this case. Recognizing that MR may never be able to overcome her disabilities and parent her children, it still required that the matter be reopened and proper services be provided with the hope that the family could one day be reunited.

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Appellate Delay Disturbing in Custody/Parenting Time Matter

Posted on Wednesday, May 4, 2016
In Teruya v Burgan, Docket No. 325126, issued April 7, 2016, a Michigan mother and Californian father of three children, who were conceived by in vitro fertilization insemination, disputed rights regarding parenting time and the father filed a complaint for paternity in Wayne Circuit Court. The court found that the father established paternity and then issued an order that promised a future order of filiation and support. The father then filed a motion for specific parenting and communication time with the children, which the court granted and issued a second parenting time order. The defendant/mother appealed this order on November 16, 2014, contending that the circuit court had wrongly granted parenting time before it entered an order of filiation or before it made a determination of the best interests of the children.  However, less than a month later, the parties stipulated to an order regarding filiation, child custody, parenting time and child support. Due to the stipulated order, on April 7, 2016, the Court of Appeals issued its opinion that the case was moot.

The mother argued that, though her specific case may be moot, her questions were of public interest and capable of repetition while evading judicial review. While the Court stated that it will hear such cases of public interest, this case did not meet those requirements and there was no relief the Court of Appeals could provide.

However, the disturbing aspect of this case is that it took well over a year from briefing for the Court of Appeals to issue an opinion. The Appellant-Mother’s application for leave was granted on December 26, 2014, her brief filed on January 23, 2015, no Appellee’s brief was filed, the Court of Appeals received the trial record on March 23, 2015, and finally, the case was submitted to panel on April 05, 2016, with the opinion issued April 7, 2016. MCR 7.213(C) states that child custody cases are given priority on the session calendar. While this case was determined moot, and therefore not overwhelmingly concerning by itself, a parenting time case still concerns the custody of a child and should be given priority on the calendar as such. It is alarming that a case may be presented to the Court that alleges that an individual received parenting time without formal recognition as the child’s parent, or without having the child’s best interest factors addressed, and it may not reach the Court until a year later. Although it is possible that the case was not “flagged” by the attorney as a priority case, the Court of Appeals docket clearly indicates that the order appealed from relates to “parental time” and the Court of Appeals decided the Application on an emergency basis (granting leave ten days after the Application was filed).

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Attorney Sanctioned for Violating Order Before It Had Been Entered

Posted on Wednesday, May 14, 2014
On December 10, 2013, in an unpublished opinion, the Michigan Court of Appeals upheld sanctions for the violation of a consent order that was entered after the discovery deadline had already passed. In HTC Global Services, Inc. v. Asher (Docket No. 304096), the appellant, the defendant’s attorney below, was sanctioned for failing to respond to discovery requests by the agreed upon deadline. According to the Court of Appeals, evidence indicated that the appellant had agreed with the plaintiff to answer discovery requests by September 13, 2010. The Trial Court’s consent order was not entered until September 15, 2010, after the deadline had passed, but the agreement was made between the parties on August 31, 2010. The Court of Appeals held that the appellant was properly sanctioned for violating the order, even though it was violated before the order was actually entered, because both parties had prior knowledge of the deadline. The law with respect to this issue seems somewhat unclear, and the Michigan Court of Appeals cited no authorities with respect to this issue in its HTC Global opinion. Previously, in Bass v Combs, 238 Mich App 16 (1999), the Court of Appeals mentioned without disapproval that the trial court had ordered from the bench that discovery responses be submitted by April 16, 1997, and did not enter a written order stating the same until June 9, 1997, after the deadline had passed. However, in HTC Global, there is not even any mention of a bench ruling—only of an agreement between the parties. Furthermore, in Stevenson v. Nizzi, unpublished opinion per curiam, issued January 10, 2006 (Docket No. 255973), the Court of Appeals stated that “all orders must be in writing” and that the fourteen-day deadline in that case began when the written order was entered.

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COA remands termination case due to incomplete findings as to which person abused child

Posted on Wednesday, November 13, 2013
The Court of Appeals in an unpublished per curiam opinion reversed and remanded the Circuit Court order in a termination of parental right case. The Court of Appeal held that Circuit Court failed to identify any statutory basis for terminating respondent’s parental rights, In re Cheeks, October 15, 2013 (Docket No. 315523). The Petitioner alleges that the child was sexually abused and sought to terminate respondent-mother’s parental rights under MCL 712A.19b(3)(i), (g), and (j). The Circuit Court terminated respondent’s parental rights in part, because mother maintained contact with her boyfriend. The Court of Appeals reasoned that, while certain evidence tends to indicate that the boyfriend abused the child, there is also an indication that the child’s father could have abused the child. The Circuit Court did not state the statutory ground upon which it relied to terminate mother’s parental rights. It was unclear from the record who abused the child -- the child’s father or the mother’s boyfriend. However, the Court of Appeals noted that if the boyfriend abused the child, then respondent-mother would certainly be in a position to protect the child from the alleged abuse and, in that instance her rights would be justifiably terminated. The question that remains is what reasonable steps could respondent-mother have taken to prevent the abuse from the child’s father.

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Lower court's register of actions vexes the Court of Appeals

Posted on Monday, September 16, 2013
Appellate attorneys frequently wrestle with the lower courts register of actions. Sometimes it answers your questions, sometimes it raises more. In a published opinion, Bellevue Ventures, Inc. v. Morang-Kelly Investment, Inc. (Docket 309743), the Michigan Court of Appeals remanded a case to the lower court for an evidentiary hearing because of deficiencies and irregularities in the record and register of actions. In April 2010 the plaintiff filed a complaint alleging breach of contract and unjust enrichment. The plaintiff-appellee, in the lower court, sought to strike the defendant-appellants counter complaint, amended answers, and amended affirmative defenses because all of them failed to appear on the register of actions and in the physical case file. The defendant-appellant, at that time, presented all the documents, which were time stamped by the Wayne County Clerk’s office. Defendant proved that the third party summons had been sent by the clerk. However, the lower court struck the pleadings due to “defendant’s failure to ensure that they had been filed with the clerk pursuant to MCR 2.107(G).” The plaintiff prevailed and was awarded a substantial sum. On appeal, the defendant-appellant claimed the lower court erred by, “striking defendant’s counter-complaint, amended answers and amended affirmative defenses,” and that the court erred by "proceeding with a bench trial rather than a jury trial.” The Court of Appeals found that “proof of filing with the clerk and not proof of filing by the clerk is sufficient to establish compliance with MCR 2.107(G).” In other words, you can give your pleadings to the clerks, but you cannot, and do not have to ensure what they do with them. Lastly, the defendant-appellant argued that the trial court erred by “…proceeding with a bench trial rather than a jury trial.” The Court of Appeals first found, “…the record insufficient to determine this issue.” However noting, that the bench trial was objected to by the defendant, who “… asserted that the plaintiff had filed a jury demand on which defendant had relied.” While it is reflected that the plaintiff paid a jury fee and filed a jury demand “no jury demand appears in the lower court record.” The Court of Appeals vented its frustration with the deficiencies and irregularities in the record and the register of actions. Given the mess the clerk’s office made, the Court of Appeals could not make a ruling and remanded the issue to the trial court for an evidentiary hearing. “Then, and only then, can a final determination be made as whether or not defendant was entitled to a jury trial.”

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Third party custody decisions sets the trial court straight

Posted on Wednesday, May 2, 2012
The Court of Appeals in Frowner v Smith, published opinion of the Court of Appeals, issued April 26, 2012 (Docket 305704), addressed whether a parent has to satisfy the Vodvarka threshold to change custody from a third party custodian. The Trial Court very clearly believed that it knew the law on this issue, and in fact, chastised the parent for challenging the third party custodian: "The child is already in an established custodial environment with the [third party custodians] and you have parenting time, pursuant to the last Court order. . . That’s the law in Michigan. And you should consult with a lawyer if you think it’s anything different than that. Trust me, I’m well versed in it."

　

In a published opinion, the Court of Appeals confirmed what the Michigan Supreme Court has stated in Hunter v Hunter 484 Mich 247, 263; 771 NW2d 694 (2009) – that when there are competing presumptions between a third party custodian with whom a child has an established custodial environment and a biological parent who does not have custody of the child, the latter presumption (of the parent) trumps the third party custodian. Accordingly, the Frowner court held the trial court clearly erred by holding that a parent has to demonstrate the Vodvarka threshold of proper cause or change of circumstances in order for a trial court to evaluate whether it can change custody from the third party custodian to the parent. Instead, under MCL 722.25(1), the third party custodian has to demonstrate by clear and convincing evidence that it is not in the child’s best interest to have custody in the parent. "[D]ue regard for Smith’s parental rights requires that the circuit court presume him to be the proper caretaker of his child. Enforcing this presumption requires that any opposing presumption, shielding the child from a custodial change absent a showing of proper cause or changed circumstances, must yield."

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COA: No Seal of Approval for Sealing Court Orders

Posted on Thursday, October 28, 2010
In a published opinion, the Michigan Court of Appeals held that MCR 8.119(F)(5) does not give a trial court the discretion to seal prior court orders. Jenson v Puste arose out of a 2006 divorce case where the plaintiff wife obtained a PPO against her ex-husband. The PPO lasted for a year. In 2009, the ex-husband sought an order vacating the PPO. He argued that the court had discretion to seal the order for good cause. To support the motion he cited difficulty obtaining employment as a result of the PPO on his record.

The COA declined to read MCR 8.119(F)(5) as discrtionery. To the contrary, it held that the court rule only allows discretion to seal court records -- and specifically prohibits a court from sealing orders and opinions. Defendant's proposed interpretation of the rule ignores the rule's purpose of granting public access to court records -- whether those records inhibit employment prospects or not. The lesson: to gain an employer's "seal of approval" don't participate in activity that would generate court records that cannot be sealed.

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Tennyson "tends to" Clarify Application of Criminal Child Neglect Statute

Posted on Thursday, September 9, 2010
In People v Tennyson, the MSC held that the possession of drugs and firearms, by itself, was not legally sufficient to support the defendant's conviction under MCL 750.145 for doing an act that "tended to cause a minor child to become neglected or delinquent so as to tend to come under the jurisdiction of the family division of the circuit court."

In Tennyson, the prosecutor presented evidence that: the defendant's home was raided by police; the defendant had drugs under his bed; the defendant kept loaded firearms in his dresser drawer; and, that the defendant's stepson was present in the home at the time of the raid in another room. Citing the lack of evidence regarding whether the child knew of the drugs or guns in the house or whether there was a causal relationship between the defendant's criminality and any child neglect or delinquency, the majority concluded that the statute was not satisfied.

Interpreting the Legislature's intent, the majority analyzed the phrase "tend to" as used in the statute. In doing so, the majority reasoned that the phrase was not intended to be used as a directional phrase, whereby the statute could be satisfied if the defendant's acts led the child toward delinquency or neglect. Instead, it concluded that the Legislature intended the phrase to mean that the defendant's acts have caused it to be more likely than not that a minor child would "become neglected or delinquent" and that the defendant's conduct caused it to be more likely than not that a minor child would come under family court jurisdiction (as defined by MCL 712A.2(b)(1) and (2).

The Court's opinion is interesting, yet there is some dispute as to whether the holding will make its way into child protective proceedings. For now, it provides the defense bar with some clarity on proper application of this particular statutory provision.

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COA Holds City Not Entitled to Immunity from Residents' Waste Woes

Posted on Friday, March 26, 2010
In Dybata v Wayne County, a published opinion, the COA held that the county was not entitled summary disposition based on governmental immunity because the sewage exception to immunity applied even where the plaintiffs failed to expressly comply with notice requirements. The plaintiffs filed suit against the city and county to recover damages resulting from a sewage back-up after after heavy rainfall. The Defendants filed motions for SD claiming governmental immunity based on plaintiffs' failure to follow notice provisions. Both the district and circuit courts denied the SD, reasoning that plaintiffs' notice of the "event" was sufficient to meet the statutory standard of filing a notice of intent to file a "claim."

The Court of Appeals affirmed for different reasons. The COA concluded that the list of names and addresses of those who had property damage, which plaintiffs provided to the county, was insufficient to meet the notice requirements of the statutory exception to governmental immunity. However, the COA pointed to the Defendant's obligations under the statute, finding that once the county received notice of the "event," it was required to provide the residents with notice of where and how to file notice of intent to file claims against the city and county. Because the residents' failure to provide notice of their claims to the county was the direct result of the county's failure to provide them with information on how to do so, as required by statute, the residents were not barred from filing claims against the city and county.

Accordingly, the county was not protected by governmental immunity because the sewage exception applied. The lower court reached the right result when it denied Defendant's summary disposition, albeit for the wrong reason, and the COA sent Defendant's argument swirling down the drain.

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COA Offers Brief Berating

Posted on Thursday, November 19, 2009
To an attorney who does not make a living writing briefs, the recent COA decision in In re D.A.S., Minor, will almost surely go unnoticed. Yet those of us who toil in the appellate arena should see it as a glaring reminder that the quality of our representation is judged almost solely on our briefing........and it better be good!

Although the panel in D.A.S. found no reversible error, the opinion lambasted the work of the relatively experienced appellate attorney (the attorney was listed as lead counsel on at least 14 appeals and has been practicing for a number of years). The Court’s language warrants a long post here:

Although the trial court did not err when it terminated both respondents’ parental rights to De’Zyre, we feel compelled to express our concerns regarding the quality of the brief filed on behalf of respondent Javon Frederick Martin. This case, like all cases regarding the termination of parental rights, involves serious allegations of abuse and neglect leading to the termination of parental rights. The termination of parental rights involves one of the more severe actions that the State can take against an individual, and implicates an individual’s fundamental liberty interest in raising one’s child. See Santosky v Kramer, 455 US 745, 758-759; 102 S Ct 1388; 71 L Ed 2d 599 (1982). Thus, there is an important constitutional right at issue in every such appeal. Adding to that already important feature, in this case the trial court heard significant expert and medical testimony regarding the circumstances surrounding Hunter Sims’ death.

Also at issue is which of the two respondents actually inflicted these injuries on Hunter. Despite the detailed facts and important legal principles, the brief filed on behalf of Mr. Martin was deficient in all respects. For one, the statement of facts comprised no more than a page and a quarter of respondent’s brief. Not that length is always necessary or encouraged, but after seven days of trial and numerous lay and expert witnesses on the cause of death, one would expect something more than just over a page of essentially conclusory statements and procedural comments. The court rules certainly require more. See MCR 7.212(C)(6).

Additionally, the brief’s argument section failed to comply with MCR 7.212(C)(7). There was not a single citation to a statute or case, no citations to the record, and the three arguments, including headings, comprised approximately one page. Indeed, the entirety of respondent’s second argument, which challenged whether there was clear and convincing evidence that it was in the best interests of the child to have her father’s rights terminated, simply states, “father Javon Martin was bonded to his daughter . . . and it was not in her best interest to have his parental rights Terminated (sic).” In the next and final argument, which was entitled “[w]as the court’s decision clearly erroneous,” respondent simply argued that one of the witnesses testified that the death could have been caused by an accident and that no evidence attributed the injuries to the father. Again, these are merely conclusory statements made without any citation to law or fact.

This is unacceptable, and counsel is advised to either submit any forthcoming briefs to this Court in full compliance with our court rules, or face further action.1
This opinion should remind us that we work in a genre where there is little opportunity for a “do-over.” Although turning in one bad brief may not change the course of our day to day lives, it is important to remember that the same my not be true for the effect of one bad brief on the life of the client we represent.

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