Employee Retirement Income Security Act (ERISA); Claim for overpayment for recordkeeping & administrative services by a 401(k) Plan; “Duty of prudence”; 29 USC § 1104(a)(1)(B); Tibble v Edison Int’l; Smith v CommonSpirit Health

[This appeal was from the ED-MI.] In this putative class action, the court affirmed the district court’s dismissal of plaintiffs-401(k) Plan participants’ ERISA claim asserting defendant-DENSO violated the ERISA fiduciary “duty of prudence” where they failed to allege “the required ‘context specific’ facts[.]” Plaintiffs claimed that DENSO breached its duty of prudence under ERISA by overpaying for recordkeeping and administrative services for its 401(k) Plan. Based on a “comparison with other plans’ fees,” they alleged that the Plan’s contract with its recordkeeper (Empower) “led to ‘lower net returns’ because of ‘excessive’ and ‘objectively unreasonable’ recordkeeping fees to the tune of an extra $39 per participant per year, totaling over $3.4 million over the applicable period.” Plaintiffs contended that “‘a prudent plan fiduciary should be able to negotiate’” lower fees that would then increase the returns from their pensions. The court noted that for excessive-recordkeeping claims, plaintiffs “must ‘allege that the fees were excessive relative to the services rendered’ or establish ‘other factors relevant to determining whether a fee is excessive under the circumstances.’” The court concluded that, measured against the applicable “standards, nothing in plaintiffs’ complaint permits us to reasonably infer a breach of the duty of prudence.” The complaint did not provide any “details about the specific types or quality of services that the comparator plans received relative to those the DENSO plan received.” The court was unable to determine whether the fees were “‘excessive under the circumstances.’” It noted that many of its “sister circuits have found implausible similar complaints in which the plaintiffs ‘allege[d] next to nothing about the recordkeeping services provided by the Plan or by the . . . lower-priced comparators.’” The court further noted that the complaint lacked “specific allegation that Empower’s competitors could have stood in its shoes for less money.”

Jury instruction that self-defense is a defense to voluntary manslaughter; Ineffective assistance of counsel; Failure to request a self-defense instruction as to felony-firearm; People v Kilgore

The court concluded that the trial court denied defendant-Josey “his right to present a defense to the shooting when it denied his motion for a self-defense jury instruction regarding voluntary manslaughter. Trial counsel denied Josey his right to the effective assistance of counsel by failing to request a self-defense jury instruction regarding felony-firearm.” The court could not “conclude that the former error was harmless beyond a reasonable doubt or that the latter error did not prejudice Josey.” As such, it reversed his convictions for voluntary manslaughter and felony-firearm and remanded for a new trial. Josey first argued “that the trial court’s denial of his request to instruct the jury that self-defense is a defense to voluntary manslaughter denied him his right to present a defense.” The record evidence did “not support the trial court’s reason for determining that the omitted instruction was harmless.” Further, the court concluded that “the trial court’s failure to provide the instruction was not harmless. Because Josey presented evidence that he acted in self-defense, he was entitled to a self-defense jury instruction.” The court noted that “the trial court’s jury instructions informed the jury that it could conclude that Josey’s actions were justified with respect to murder, but not with respect to voluntary manslaughter.” Thus, the instructions denied him “his constitutional right to present a defense.” The court noted that “the jury may have determined that Josey acted in self-defense, but that self-defense was not a defense to voluntary manslaughter.” Josey next argued “that his trial counsel rendered ineffective assistance of counsel by failing to request a self-defense instruction with respect to felony-firearm.” The court held that it did “not appear that trial counsel’s failure to request a self-defense jury instruction with respect to felony-firearm constituted sound trial strategy.” It could not “envision a strategic reason for failing to request the instruction. Similar to Kilgore, defense counsel’s failure to request the instruction was objectively unreasonable given that Josey asserted a defense of self-defense at trial. Further, when combined with the trial court’s error regarding the voluntary manslaughter self-defense jury instruction, it is reasonably probable that the result of the proceeding would have been different.” The court could not “consider trial counsel’s error independently from the trial court’s error. Because Josey was entitled to a jury instruction informing the jury that self-defense was a complete defense to voluntary manslaughter, we must review [his] ineffective-assistance claim in light of that error. If properly instructed, the jury may have determined that [he] acted in self-defense and acquitted him of voluntary manslaughter. If it so concluded, it likewise may have acquitted him of felony-firearm.”

Right to a unanimous verdict; Specific unanimity instruction; People v Cooks; The collision element of third-degree fleeing & eluding; People v Feezel; Causation; Waiver; People v Spaulding; Ineffective assistance of counsel; Deficiency & prejudice; Trial strategy; Judicial bias; MCL 2.003(C)(1); People v McDonald; Presumption of judicial impartiality; People v Jackson; Whether a judge’s conduct pierces the veil of judicial impartiality; People v Stevens; Judicial questioning of witnesses; MRE 614(b); Right to present a complete defense; People v Aspy; Hearsay; Waiver of counsel at sentencing; MCR 6.005(D)

Finding no errors requiring reversal, the court affirmed defendant’s convictions. However, because of a defective waiver of counsel it vacated his sentences and remanded for resentencing. He was convicted of third-degree fleeing and eluding, operating a vehicle without security, operating a vehicle without registration, and assaulting, resisting, or obstructing a police officer, for leading police on a chase. The prosecution claimed there were two collisions resulting from the chase – one when defendant struck a tree and a second when two other vehicles were involved in an accident. On appeal, the court agreed with defendant that he was entitled to a specific unanimity instruction because the prosecution presented two different collisions to satisfy the sixth element of third-degree fleeing and eluding. “[M]aterially distinguishable evidence was required to establish each collision.” However, defendant waived this “argument because defense counsel expressly stated she had no objections to the jury instructions.” And although counsel’s performance was defective, it “did not result in prejudice due to the high-confidence evidence that [defendant] caused the second wreck.” The court next rejected his argument that the trial judge was biased and lacked impartiality because he appeared to favor the prosecutor during voir dire and throughout trial. It found he “did not overcome his burden of establishing the trial judge was biased or lacked impartiality.” Defendant failed to show that “the trial judge’s comments regarding defense counsel being new to the area, and the prosecutor being known at church, unduly influenced the jury.” And although “the trial judge’s guiding the attorneys was unorthodox, it did not pierce the veil of impartiality because his conduct was directed at both parties.” The court also rejected defendant’s claim that the trial court prevented him from presenting a complete defense because it did not permit him to relate the identity of his kidnapper, noting the trial court’s exclusion of the assailant’s name as inadmissible hearsay was not erroneous. Finally, the court agreed with defendant that he was entitled to resentencing because the trial court failed to comply with the basic requirements for waiver at his sentencing hearing. It noted the trial court erred “because it did not consider the additional factors required under MCR 6.005(D).”

Sufficiency of the evidence; Identity; People v Yost; Proving identity with circumstantial evidence; People v Xun Wang

The court held that the evidence was sufficient to support that defendant was the driver of the vehicle involved in the accident at issue. She was convicted of operating a motor vehicle under the influence causing serious injury, operating a motor vehicle with a suspended license, moving violation causing death or serious impairment of bodily function, and lying to a police officer after a crash in which she claimed she was not the driver. On appeal, the court rejected defendant’s argument that there was insufficient evidence to support that she was operating the vehicle when it crashed. She correctly noted that her girlfriend, M, “admitted to driving the car at first, meaning there was confusion as to who was driving.” But she overlooked “the fact that she later admitted to police that” M was not the driver. “This, in addition to the video evidence showing [M] as a pedestrian when the crash occurred, was enough for a rational trier of fact to find that [M] was not the driver, resolving any possible confusion in this respect.” In addition, “[v]iewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that there was no one seated in the passenger seat at the time of the crash.” Finally, the jury “weighed the evidence and found there was no third party who may have been the driver, and ‘it is simply not the task of an appellate court to adopt inferences that the jury has spurned.’” Affirmed.

Sentencing; Mootness; Collateral consequences

Because defendant had already fully served her sentence, the court found that her sentencing challenge on appeal was moot as it was impossible for it to fashion a remedy. After she failed to “successfully complete the terms of probation, the balance of her original sentence was not suspended and the [trial] court ordered her to serve the remaining 45 days of jail time.” On appeal, she argued “that the 45-day sentence was inappropriate and disproportionate.” But she had already served the sentence. The court noted that it generally refrains from deciding moot issues. While “there are exceptions where a party might remain affected by collateral legal consequences,” defendant did not identify any such consequences. Thus, it dismissed her appeal as moot.

“Compassionate release”; 18 USC § 3582(c)(1)(A); Whether the Sentencing Commission had the authority to issue policy statement USSG § 1B1.13(b)(6); The separation of powers; “Extraordinary & compelling reasons” for relief under § 1B1.13 cmt. n.1(A)-(D); Effect of a nonretroactive change in the law; United States v McCall; Whether the Commission has the authority to overrule a court’s interpretation of the Commission’s authority; Neal v United States; Whether the Commission can interpret § 3582(c)(1)(A)(i) to allow a court to reduce a sentence below the statutory mandatory minimum portion of the sentence

The court concluded that the Sentencing Commission exceeded its authority when it issued USSG § 1B1.13(b)(6), a “policy statement” about the compassionate release sentencing statute, where the policy statement was “unreasonable under the statute” and conflicted with the separation of powers. Thus, it held that “§ 1B1.13(b)(6) is invalid.” Defendants-Bricker, McKenry, and Orta sought compassionate release under § 3582(c)(1)(A), after the Sentencing Commission issued § 1B1.13(b)(6), a policy statement that would enable “old-timer” prisoners to obtain early release under the statute. In § 1B1.13(b)(6), “the Sentencing Commission announced that a nonretroactive change in the law can present an ‘extraordinary and compelling’ reason warranting a sentence reduction if (1) a prisoner has served at least 10 years (2) of ‘an unusually long sentence,’ (3) there is a ‘gross disparity’ between the actual sentence being served and a hypothetical sentence that would apply under the current law if any nonretroactive changes in the law since the original sentencing were given retroactive effect, and (4) the sentencing court has fully considered ‘the defendant’s individualized circumstances.’” The court noted that in McCall, “the full Sixth Circuit concluded: ‘Nonretroactive legal developments do not factor into the extraordinary and compelling analysis. Full stop.’” But within months, the Sentencing Commission promulgated the policy statement in § 1B1.13(b)(6). The court held that the Commission could not overrule the Sixth Circuit’s “holding by issuing a ‘policy statement’ that re-interprets” the statute. Under Neal, “once a court has interpreted the bounds of the Commission’s delegated authority as we did in McCall, the Commission does not have the authority to overrule that interpretation.” The court also addressed whether the Commission can “interpret § 3582(c)(1)(A)(i) to empower a court to reduce a sentence below the statutory mandatory minimum portion of the sentence[.]” It concluded that “§ 3582(c)(1)(A)(i)—which says nothing at all about statutory mandatory minimums—could never empower a court to reduce a sentence below the statutory minimum portion of that sentence.” Because the court declared § 1B1.13(b)(6) invalid, it reversed in Bricker’s case and affirmed in McHenry and Orta’s cases, denying compassionate release for all three defendants.

Employee Retirement Income Security Act (ERISA); Claim for overpayment for recordkeeping & administrative services by a 401(k) Plan; “Duty of prudence”; 29 USC § 1104(a)(1)(B); Tibble v Edison Int’l; Smith v CommonSpirit Health

[This appeal was from the ED-MI.] In this putative class action, the court affirmed the district court’s dismissal of plaintiffs-401(k) Plan participants’ ERISA claim asserting defendant-DENSO violated the ERISA fiduciary “duty of prudence” where they failed to allege “the required ‘context specific’ facts[.]” Plaintiffs claimed that DENSO breached its duty of prudence under ERISA by overpaying for recordkeeping and administrative services for its 401(k) Plan. Based on a “comparison with other plans’ fees,” they alleged that the Plan’s contract with its recordkeeper (Empower) “led to ‘lower net returns’ because of ‘excessive’ and ‘objectively unreasonable’ recordkeeping fees to the tune of an extra $39 per participant per year, totaling over $3.4 million over the applicable period.” Plaintiffs contended that “‘a prudent plan fiduciary should be able to negotiate’” lower fees that would then increase the returns from their pensions. The court noted that for excessive-recordkeeping claims, plaintiffs “must ‘allege that the fees were excessive relative to the services rendered’ or establish ‘other factors relevant to determining whether a fee is excessive under the circumstances.’” The court concluded that, measured against the applicable “standards, nothing in plaintiffs’ complaint permits us to reasonably infer a breach of the duty of prudence.” The complaint did not provide any “details about the specific types or quality of services that the comparator plans received relative to those the DENSO plan received.” The court was unable to determine whether the fees were “‘excessive under the circumstances.’” It noted that many of its “sister circuits have found implausible similar complaints in which the plaintiffs ‘allege[d] next to nothing about the recordkeeping services provided by the Plan or by the . . . lower-priced comparators.’” The court further noted that the complaint lacked “specific allegation that Empower’s competitors could have stood in its shoes for less money.”

Divorce; Motion to vacate a domestic-relations arbitration award on the basis of domestic violence; Waiver of objections to arbitration; Spousal support; Divorce settlement agreement limitation on an auto expense deduction in determining a party’s business & personal income; Calculation of a party’s effective tax rate

The court concluded the trial court properly denied plaintiff-ex-wife’s “motion to vacate the arbitration award on the basis of domestic violence.” Also, the trial court did not err “by failing to vacate or correct the substantive errors in the award related to the vehicle expense and defendant’s effective tax rate.” Plaintiff argued “that the trial court erred by denying her motion to vacate the arbitration award because she was not represented by counsel during the arbitration process and the arbitrator failed to implement appropriate safeguards and protections in light of the history of domestic violence.” The court noted that she “initiated the arbitration process to dispute the spousal support and property offset calculations, and she actively participated unrepresented by counsel. She retained counsel and sought to vacate the arbitration proceeding on the basis of domestic violence only after the clarified final opinion was entered.” The court also found no merit in her claim “that the arbitrator exceeded his authority because he failed to conduct the arbitration in a caucus-like format in which the parties were to remain in separate rooms. Although the 2020 arbitration agreement stated that ‘each party is in a separate room for these proceedings, and each party therefore does not feel threatened or intimidated by the other or by these proceedings,’ it also stated, ‘The parties specifically agree that [the Arbitrator] may hear testimony in separate rooms.’ This clear and unambiguous language leaves the issue of caucus-like arbitration proceedings to the arbitrator’s discretion.” There was “no evidence on the face of the award that the arbitrator violated the terms of the arbitration agreement, or that, but for any such alleged error, the award would have been substantially different.” Further, the court noted that “plaintiff fully and actively participated in the arbitration proceedings without raising any objections to the format of the proceedings, which constitutes a waiver.” Affirmed.

The No-Fault Act (NFA); Personal protection insurance (PIP) benefits; Scope of policy coverage; Mapp v Progressive Ins Co; Whether a policy provided greater benefits than required under the NFA; Insurance policy interpretation; Michigan Assigned Claims Plan (MACP)

The court held that there were genuine issues of material fact as to whether defendants-Progressive’s and Falls Lakes’ policies provided coverage to plaintiff. Thus, the trial court erred in granting them summary disposition on this basis. Plaintiff was injured when she was hit by a motor vehicle as a pedestrian. She did not have auto insurance. She “testified she lived with her mother and stepfather, neither of whom had” auto insurance. Thus, she applied for PIP benefits through the MACP, which assigned her claim to defendant-Farm Bureau. Farm Bureau discovered “that, while plaintiff primarily lived with her mother, she went back and forth between her parents’ home for years. She spent two nights and three days each week at her father’s house, where she had her own bedroom, kept some belongings, and performed household chores. She also had a key to the house. Her father lived with his brother, plaintiff’s uncle[.]” Progressive insured her father’s vehicle while Falls Lake insured her uncle’s vehicle. Farm Bureau argued “the trial court erred in granting summary disposition to Progressive and Falls Lake by concluding that domicile, not residency, controlled.” The court agreed. In Mapp, it held that a no-fault “‘policy may provide for greater PIP benefits than are required under the’” NFA. The question in this case, “as it was in Mapp, is whether ‘the policy at issue in this case does provide for greater benefits[.]’” The court noted that the policies here were “substantively similar in identifying who is eligible for PIP benefits” and that the policy “in Mapp similarly provided coverage for residents residing in the same household as a named insured.” As the court explained there, “the term ‘reside’ implies broader coverage than the term ‘domicile.’ . . . A domicile is ‘[a] place where a person lives or has his home,’ that is, a place which ‘is acquired by the combination of residence and the intention to reside in a given place[.]’ . . . By contrast, ‘the term “reside” can be understood as meaning living in a place for substantial time beyond mere transient physical presence.’” The court concluded there were “genuine issues of fact as to whether plaintiff ‘resided’ at her father’s and uncle’s home[.]” As a result, “a genuine issue of material fact existed as to whether Progressive’s and Falls Lakes’ policies covered [her], and summary disposition was inappropriate.” It found their attempts to distinguish Mapp unpersuasive. Reversed and remanded.

Subject-matter jurisdiction; Whether the Michigan State Housing Development Authority (MSHDA) had exclusive jurisdiction under 26 USC § 42(h)(6)(E)(i)(I); Tenant protection period (TPP)

The court held that the trial court did not err by finding it lacked jurisdiction over plaintiff’s claim. Plaintiff sued defendants seeking to enforce a regulatory agreement that allowed her to live in low-income housing for an extended period. The trial court granted summary disposition for defendants, finding that MSHDA, as the delegate of the Secretary of the United States Treasury, has exclusive jurisdiction under § 42(h)(6)(E)(i)(I) to determine whether defendant-Trillium’s acquisition of the property by a deed in lieu of foreclosure was part of an arrangement with defendant-Muskegon Redevelopment to terminate the property’s extended-use period. On appeal, the court rejected plaintiff’s argument that MSHDA does not have exclusive jurisdiction to determine whether defendants breached the regulatory agreement by engaging in a series of transactions to terminate the extended-use period and commitment to provide low-income housing. “The record does not contain any evidence that the Secretary or MSHDA concluded that Trillium’s acquisition of” plaintiff’s apartment building “was part of an arrangement with Muskegon Redevelopment to terminate the extended-use period. Unless the Secretary or MSHDA makes such a determination, the plain and unambiguous language of [§] 42(h)(6)(E)(i)(I) directs that the extended-use period ‘shall terminate . . . on the date the building is acquired by . . . [an] instrument in lieu of foreclosure . . . .’” The record reflects that “MSHDA, as the delegate of the Secretary, reviewed Trillium’s acquisition paperwork, concluded that the extended-use period terminated effective [5/26/17] (the date of execution of the deed in lieu of foreclosure), and, at the expiration of the TPP in 2020, recorded a ‘Release of Regulatory Agreement[’] with the register of deeds stating that the [11/23] regulatory agreement was ‘terminated and released.’” Affirmed.

Subject-matter jurisdiction; Whether the Michigan State Housing Development Authority (MSHDA) had exclusive jurisdiction under 26 USC § 42(h)(6)(E)(i)(I); Tenant protection period (TPP)

The court held that the trial court did not err by finding it lacked jurisdiction over plaintiff’s claim. Plaintiff sued defendants seeking to enforce a regulatory agreement that allowed her to live in low-income housing for an extended period. The trial court granted summary disposition for defendants, finding that MSHDA, as the delegate of the Secretary of the United States Treasury, has exclusive jurisdiction under § 42(h)(6)(E)(i)(I) to determine whether defendant-Trillium’s acquisition of the property by a deed in lieu of foreclosure was part of an arrangement with defendant-Muskegon Redevelopment to terminate the property’s extended-use period. On appeal, the court rejected plaintiff’s argument that MSHDA does not have exclusive jurisdiction to determine whether defendants breached the regulatory agreement by engaging in a series of transactions to terminate the extended-use period and commitment to provide low-income housing. “The record does not contain any evidence that the Secretary or MSHDA concluded that Trillium’s acquisition of” plaintiff’s apartment building “was part of an arrangement with Muskegon Redevelopment to terminate the extended-use period. Unless the Secretary or MSHDA makes such a determination, the plain and unambiguous language of [§] 42(h)(6)(E)(i)(I) directs that the extended-use period ‘shall terminate . . . on the date the building is acquired by . . . [an] instrument in lieu of foreclosure . . . .’” The record reflects that “MSHDA, as the delegate of the Secretary, reviewed Trillium’s acquisition paperwork, concluded that the extended-use period terminated effective [5/26/17] (the date of execution of the deed in lieu of foreclosure), and, at the expiration of the TPP in 2020, recorded a ‘Release of Regulatory Agreement[’] with the register of deeds stating that the [11/23] regulatory agreement was ‘terminated and released.’” Affirmed.

Sales-tax implications for medical marijuana providers; Michigan Medical Marihuana Act (MMMA); Medical Marihuana Facilities Licensing Act (MMFLA); General Sales Tax Act (GSTA); Catalina Mktg Sales Corp v Department of Treasury; “Costs associated with assisting”; MCL 333.26424(f); “Assisting,” “service,” & “costs”; “Sale at retail” or “retail sale”; MCL 205.51(1)(b); “Tangible personal property”; MCL 205.51a(r); Reliance on a 2011 letter from the then-Deputy Treasurer; Equal Protection Clauses in the Michigan & U.S. Constitutions; The Uniformity of Taxation Clause in the Michigan Constitution; Denial of plaintiff’s summary disposition motion

[This opinion was previously released as an unpublished opinion on 03/25/25.] The court found that the Court of Claims did not err when it held that the MMMA and MMFLA, together with the GSTA, made clear that plaintiff was required to pay sales tax. In addition, given “the plain terms of the MMMA and MMFLA, as well as the undisputed contents of the 2011 letter” from the then-Deputy Treasurer, plaintiff “failed to establish that it reasonably relied on the 2011 letter in deciding not to pay sales tax in 2017.” Further, defendant-Treasury Department did not violate the Equal Protection Clauses or the Uniformity of Taxation Clause. Finally, the court found that remand was unnecessary. The case concerned the sales-tax implications for medical marijuana providers. Plaintiff argued “that the Treasury and trial court misconstrued MCL 333.26424(f) to be a tax exemption for caregivers when it is, in fact, a decriminalization provision. According to plaintiff, there are no exceptions from, or other provisions pertaining to, sales tax under either the MMMA or MMFLA, and, because the statutes are silent on the issue, it is necessary to apply the test” in Catalina “to determine whether plaintiff is liable for such tax.” The court did not find this argument convincing. The Treasury Department “reasoned that, under the GSTA, MMMA, and MMFLA, ‘[t]he retail sales of marihuana and marihuana-derived products by a provisioning center are subject to sales tax[,]’ but that ‘[a]ny such compensation [received by a primary caregiver as a cost of assisting a patient under MCL 333.26424(f)] does not constitute the sale of controlled substances[,]’ and is thus ‘a non-taxable service and not subject to sales tax.’” The court saw “no cogent reason to overrule this interpretation.” It noted that “the Legislature has indicated that primary caregivers provide a nontaxable service, while provisioning centers do not.” Additional evidence of “intent can be found in the Legislature’s use of the word ‘cost.’ As such, the Court of Claims properly looked to the dictionary definition of the term for its plain and ordinary meaning.” Plaintiff also argued “primary caregivers ‘can charge whatever price they choose,’ and that, therefore, the MMMA ‘does not, in reality or intent, constrain caregivers to only recover out-of-pocket costs.’” However, the “statute permits primary caregivers to recoup costs—nothing more.” The court then turned “to whether the MMMA’s tax-exemption provision for primary caregivers applies to plaintiff.” It found that plaintiff’s “attempt to analogize its operations to those of primary caregivers does not change the fact that the Legislature did not provide a sales-tax exemption for provisioning centers. Therefore, plaintiff is not entitled to the tax exemption the MMMA provides to primary caregivers for recouping costs.”

Termination under §§ 19b(3)(a)(ii) (desertion) & (h) (parental imprisonment depriving the child of a normal home for more than two years); Child’s best interests; Relative placement

The court affirmed the trial court’s findings regarding the statutory grounds for termination but vacated its best-interests analysis and remanded for further consideration of the child’s (GAB) best interests in light of the relative placement. Respondent-father first argued that the trial court erred in finding statutory grounds under §§ (b) and (h). However, the trial court terminated his parental rights under §§ (a)(ii) and (h), not (b). Thus, his argument as to § (b) was unavailing. “Moreover, even if the trial court had erred in finding statutory grounds for termination under [§ (h)], that error would not provide a basis for reversal. A trial court only needs one statutory ground to support termination of parental rights under” § (3). The trial court found statutory grounds to terminate his parental rights under §§ (a)(ii) and (h), and he did not challenge the findings as to § (a)(ii) on appeal. “To the extent that the trial court clearly erred by finding statutory grounds to terminate under [§ (h)], that error was harmless because [he] does not dispute that termination was appropriate under [§ (a)(ii)].” Respondent next contended “that the trial court clearly erred by finding that termination was in the child’s best interests.” The court noted that in “determining that termination was in GAB’s best interests, the trial court considered that respondent-father had been incarcerated for all but eight or nine months of the child’s life and did not maintain contact with the child during his incarceration.” The trial court further noted that respondent “had little, if any, relationship with GAB and never provided support for him. However, the trial court did not explicitly address GAB’s placement with respondent-mother’s relatives when considering whether termination was in his best interests. As a result, the factual record is ‘inadequate to make a best-interest determination and requires reversal.’”

Petition to admit an amendment to a trust; The proper statutory legal standard in determining the validity of a trust amendment; Amending a revocable trust; MCL 700.7602(3)(a); Burden of proof; Preponderance of the evidence; Credibility determinations; Factual determinations; Distinguishing In re Guardianship of Gerstler; Reliance on MCL 700.7402(1) & 700.3407(1)(b)

Holding that the probate court did not abuse its discretion in ruling that a trust amendment was invalid, the court affirmed its order denying appellant-Goines’s petition to admit the amendment. The case concerned a family trust created by the decedent (Jerry W. Tippett) and his wife. The first amendment to the trust named their son (Jerry D.) as the beneficiary and first successor trustee, and decedent’s friend (L) as the alternate beneficiary and successor trustee. The second amendment reaffirmed this. Both were prepared by attorneys. “Goines and Jerry D. became engaged” and lived at the decedent’s home. Jerry D. passed away shortly before the decedent. The third amendment presented by Goines named her as the successor trustee. “No attorney was listed on the document.” Goines argued “the probate court failed to apply the proper statutory legal standard in determining the validity of the third amendment.” But she offered no evidence that it “incorrectly applied the preponderance of the evidence standard beyond her disagreement with” its decision. She seemed to assert that because it “did not explicitly state the standard, it failed to apply one. Given that that standard of proof was undisputed, we cannot conclude that the probate court’s failure to explicitly state the standard of proof was ‘outside the range of reasonable and principled outcomes.’” As to applying the standard, the “probate court expressly weighed the evidence and testimony, found that” the testimony of L and a forensic handwriting expert (H) “had more convincing force, and concluded that the third amendment was invalid. [Its] conclusion was based on [H’s] opinion that ‘with the highest degree of probability,’ the signature on the third amendment was not written by decedent.” It also questioned the credibility of one of Goines’s witnesses “based on her failure to notice (1) a glaring error in the notary block on the third amendment and (2) the untruthful statement in her declaration that she was still a notary.” And it questioned the credibility of Goines and her witnesses who “testified that the business relationship between decedent and [L] had ended. [It] found that ‘[t]he testimony . . . was clear that there’s [sic] still exist some business relationships.’” The court concluded “Goines’s arguments amount to an attack on the probate court’s credibility determinations” and noted that it defers to the probate court on those matters. It was “not definitely and firmly convinced that a mistake has been made.”