Interstate Horseracing Act (IHA); Whether the IHA preempts the Michigan Horse Racing Law (MHRL); Preliminary injunction; Likelihood of success on the merits; Conflict-preemption theory; Horseman’s Benevolent & Protective Ass’n-OH Div, Inc v DeWine; Whether the MHRL “interferes with” the IHA; Whether Michigan targeted the federal scheme; Whether the IHA permits states where bets are placed to determine whether interstate wagering is permitted; “Irreparable injury,” “other harms” & “public interest” factors

[This appeal was from the WD-MI.] The court affirmed the district court’s grant of a preliminary injunction to plaintiff enjoining defendant-Michigan Gaming Control Board from revoking plaintiff’s electronic wagering platform’s (TwinSpires) horse race wagering license where TwinSpires was likely to succeed on the merits of its conflict-preemption claim. TwinSpires, which is based in Oregon, is a business unit of plaintiff-Churchill Downs that accepts interstate wagers on horseraces. Under the IHA, it is required to obtain consent from state regulators and the racetrack’s racing association. Michigan determined that TwinSpires fell out of compliance with the MHRL and revoked its license under the MHRL. Plaintiff sued, arguing that “Michigan’s enforcement of the MHRL is inconsistent with the IHA.” The district court agreed and issued the preliminary injunction. The court reviewed the requirements for an injunction and held that TwinSpires was “likely to succeed on a conflict-preemption theory.” It concluded that the MHRL “interferes with the IHA's methods to reach the objectives of ‘prevent[ing] interference by one State with the gambling policies of another’ and ‘ensur[ing] States . . . cooperate . . . in the acceptance of legal interstate wagers.’” Further, the court found that “Michigan targets the federal scheme by bolting on an additional consent for wager acceptances.” The court noted that the “Supreme Court has disapproved of states tailoring regulation to target federal schemes, at least in the context of field preemption.” While the court agreed that “the state where the bet is placed can put some legality restriction on placing the bet[,] . . . what Michigan has done is impose a specific restriction on the out-of-state entities that accept the bets.” The court held that “Michigan can’t condition the legality of interstate wagers on state requirements that add to the IHA’s consent scheme.” It also held that TwinSpires established “irreparable injury” where it asserted “it might ‘lose access to its 18,000 Michigan users’ if forced to shut down, and that Michigan’s ‘accusations of illegal gambling activity have hurt its reputation and caused a loss of customer goodwill.’” In addition, the court found that the “‘merged’ other harm and public interest factors favor TwinsSpires because enjoining the enforcement of a law that violates constitutional rights ‘is always in the public interest.’”

Fifth Amendment challenge to Michigan’s Uniform Unclaimed Property Act (UUPA); Policy of withholding interest; Standing; Kemerer v Michigan; Insufficient record for further review

[This appeal was from the ED-MI.] The court held that plaintiff-Hendershot had standing to challenge Michigan’s unclaimed property program’s policy of withholding interest in some circumstances when returning property, but it was unable to determine more than that based on the existing record. Hendershot claimed that the State of Michigan holds between $200 and $600 of her money, providing a screenshot of its abandoned property website. She sued defendants-administrative manager and the administrator of Michigan’s unclaimed property program in their official capacities, alleging that the policy of withholding interest violates the Fifth Amendment. On behalf of a putative class, she sought declaratory and injunctive relief that would require defendants to pay her interest on her unclaimed property when returned. The district court ruled that Hendershot lacked standing to sue where she lacked a property right to any interest and thus, failed to show an injury. On appeal, the court held that her complaint met Article III’s standing requirement. She alleged that Michigan had earned interest that was rightfully hers, and asked the court’s “help to get it back. Her complaint thus alleges a classic pocketbook injury caused by the defendants and redressable by her requested relief.” The court noted it ordinarily could convert the motion to dismiss for lack of subject-matter jurisdiction to one to dismiss for failure to state a claim, and “then ‘proceed to address whether [Hendershot’s] allegations state a claim.’” But the record did not allow it to convert the motion. The court found that her “bare bones” complaint, along with the screen shot, did not provide sufficient information to assess the merits of her claim. It could not determine if the “account was interest bearing when it was delivered into Michigan’s custody.” In addition, defendants’ briefing was “too perfunctory to affirm on alternate grounds in the record.” It also found that the district court did not do enough for the court “to treat its standing opinion as a merits conclusion.” It failed to “address the text of the UUPA or Michigan’s common law of abandonment,” and relied on an intermediate state court opinion, Kemerer. Intermediate “court opinions aren’t binding in federal court” and the court found there was “ample reason to doubt that either of Kemerer’s holdings accurately reflects the Michigan Supreme Court’s views.” Reversed and remanded.

Right of confrontation; Admission of blood-alcohol content (BAC) results; Lack of testimony from the lab technician who prepared the samples for testing; Distinguishing People v Lonsby & People v Dendel; Right to present a defense; Denial of request for a special jury instruction on potential inferences the jury could draw from defendant’s BAC results; Operating while intoxicated (OWI); Operating with a suspended driver’s license (OWSL)

Distinguishing this case from Lonsby and Dendel, the court held that defendant’s right of confrontation was not violated by the admission of his BAC results when the lab technician who prepared the samples for testing (N) did not testify but the forensic scientist who analyzed them (F) did. Further, he was not deprived of his right to present a defense by the trial court’s denial of his request for a special jury instruction. Thus, the court affirmed his OWI, OWSL, and having an open alcohol container in a vehicle convictions. The court noted the lab report itself was “testimonial in nature, serving as a declaration of the fact of defendant’s BAC at the time of his operation of the vehicle, and this evidence was presented at trial through [F’s] testimony. But [N’s] role in the preparation of [F’s] report was not testimonial. [F’s] report indicates that [N] merely catalogued the blood samples upon receiving them and checked the vials for breakage; [N] did not form, or participate in the forming of, any conclusions regarding defendant’s BAC. Unlike the reports at issue in Lonsby and Dendel, [F] was the sole author of the report admitted at trial and was available for defendant to cross-examine.” Further, F testified “that she had reexamined the samples of defendant’s blood herself to make sure they had been stored and labeled properly.” Thus, he was able to cross-examine F “on the issue of the proper handling and storage of his blood samples; cross-examination of [N] on that issue would have been unnecessary to preserve defendant’s right of confrontation.” He also contended “that his right to confront all individuals involved in the analysis of his blood sample is all the more important because of the closeness of his BAC result to the legal limit.” But he offered “no authority for the proposition that when a defendant’s BAC is near the legal limit, his right of confrontation extends to every person involved in the collection and processing of his blood samples, regardless of how tangentially they were involved.” The court also found no error in the jury instructions, concluding defendant failed to show “that instructional error occurred when the trial court instructed the jury according to the standard jury instruction” (M Crim JI 15.5).

Brady disclosure obligations; Brady v Maryland; Sufficiency of evidence; Inconsistent verdicts; MCL 750.227b; People v Putman; Double jeopardy; Multiple punishments; MCL 750.529; People v Miller

The court held that defendant was not entitled to relief on his Brady and sufficiency challenges but that his conviction for assault and battery violated double jeopardy, so it vacated that conviction, affirmed the remaining convictions, and remanded for correction of the judgment. Defendant and an acquaintance went to buy marijuana from the victim, and defendant pulled a gun, demanded the marijuana, and shot the victim twice, leading to convictions of armed robbery, assault and battery, and felony-firearm. The trial court denied his post-trial Brady motion based on a Facebook exchange in which the victim initially wrote that the acquaintance shot him but seconds later clarified that someone in the car with her shot him. On appeal, the court held that, viewed as a whole, the exchange was not material Brady evidence because it largely corroborated the trial testimony, explaining that “the Facebook conversation overall corroborates trial testimony about the shooting, there is no reasonable probability that its disclosure to the defense would have affected the outcome of the case, and its absence from trial does not undermine confidence in the trial verdict.” Addressing sufficiency, the court rejected defendant’s argument that the split felony-firearm verdicts were inconsistent or showed a failure of proof, emphasizing that the second felony-firearm count could not stand once the jury reduced the underlying assault charge to a misdemeanor and that “it was not inconsistent for the jury to convict on the first felony-firearm count while acquitting on the second, and the evidence was sufficient to support defendant’s convictions.” Finally, applying the abstract legal elements test, the court concluded that assault and battery is a lesser offense inherent in armed robbery because the robbery statute requires an assault, stating that “it is impossible to commit armed robbery without also committing assault and battery, and it is not the case that each offense has an element that the other does not,” so the remedy was to vacate the lower assault and battery conviction and leave the higher armed robbery conviction in place.

Sufficiency of the evidence of possession for FIP & felony-firearm convictions; People v Minch; Allowing a witness to exercise her Fifth Amendment privilege; People v Steanhouse; People v Dyer; Right to present a defense; Right to a fair trial; Right of confrontation; Admission of a 911 call; Whether the statements in the call were testimonial; Davis v Washington

The court held that the prosecution presented sufficient circumstantial evidence for a reasonable jury to find that defendant possessed a firearm. Further, the trial court did not abuse its discretion in allowing defendant’s mother to exercise her Fifth Amendment privilege, and doing so did not deny him his rights to present a defense, to a fair trial, and to confrontation. Finally, his right to confrontation was not violated by the admission of a 911 call as his ex-girlfriend’s statements in the call were nontestimonial. Thus, the court affirmed his convictions of FIP of a firearm and ammunition, felony-firearm (second offense), and assaulting, resisting, or obstructing a police officer. As to his sufficiency of the evidence argument, in the 911 call, his “ex-girlfriend told the dispatcher that he was ‘beatin[g] at the door with a gun’ and that she knew it was a nine-millimeter handgun. Two MSP troopers testified to hearing a ‘metal-on-metal’ sound during the chase, and the firearm was recovered in the same location where they heard this noise about 15 minutes later.” The court added that the gun was “visible on body-worn camera footage taken about three minutes after the troopers started chasing defendant.” As to the prosecution’s failure to submit “the firearm for DNA or fingerprint testing” the court noted that defendant pointed “to no authority showing that DNA, fingerprint, or other forensic testing is necessary to find that a defendant possessed a firearm.” The court next concluded “that the trial court did not err when it allowed defendant’s mother to invoke her Fifth Amendment right not to testify.” The trial court was not required to question her “or explicitly state that her privilege was legitimate,” and the court saw no reason to doubt that she “legitimately invoked the privilege.” It further noted that “the jury did not know why she did not testify” and that she “was not a witness against defendant” as she was a defense witness. Finally, the court found that the ex-girlfriend’s 911 call statements “were nontestimonial because her primary purpose was to seek help with an ongoing emergency.”

Search & seizure; Motion to suppress evidence; Whether a traffic stop was “unreasonably prolonged”; Illinois v Wardlow; Whether an officer’s retention of the driver’s license “coerced” the driver into consenting to a search of the car; Whether defendant was “unreasonably searched”; Minnesota v Dickerson

[This appeal was from the WD-MI.] The court affirmed the district court’s denial of defendant-Santos’s motion to suppress evidence, holding that the trooper who conducted the traffic stop did not unreasonably prolong the stop by asking the driver to exit the vehicle and asking “‘forty seconds’ worth of questions.” Santos was a passenger in a car that was stopped for an expired registration. The trooper learned during the stop that Santos “was a convicted felon known to be potentially armed and dangerous. In the course of removing the driver and Santos from the car, the trooper found that Santos had a gun[,]” leading to his indictment for FIP. He moved to suppress the gun, arguing that it was obtained in violation of the Fourth Amendment. The district court denied the motion. Santos argued on appeal that the trooper’s decision to question the driver outside of the car unreasonably prolonged the traffic stop and thus, the authority for the search had ended. While it was unclear “whether the trooper’s questions of the driver outside the car measurably extended the” stop, all the questions “were within the scope of the stop because they helped ensure officer safety.” Additionally, the court found that “Santos’s furtive behavior about his cross-body bag added another red, or at least maroon, flag to the encounter.” The court held that “the trooper permissibly asked the driver forty seconds’ worth of questions and did not unreasonably prolong the stop. The ‘collective weight’ of” the various “factors ‘justified’ the trooper’s conduct.” It rejected Santos’s argument that the trooper’s retention of the driver’s license “coerced” the driver into consenting to a search of the car. He did not offer any “cases from this circuit for the proposition that retaining a driver’s license throughout the completion of a valid traffic stop coerces her consent to a search.” Lastly, the court considered his argument that the search of his person was unreasonable, and held that by that “point in the encounter, the trooper already had reasonable suspicion that Santos had a weapon. That justified his request to frisk” him.

FOIA privacy exemption/personal nature prong; MCL 15.243(1)(a); ESPN Inc v Michigan State Univ; FOIA privacy exemption/public interest balancing; MCL 15.231(2); Rataj v City of Romulus; Sufficiency of agency explanation & need for in camera review; MCL 15.235(5); State News v Michigan State Univ; State Appellate Defender’s Office (SADO)

The court held that defendant-city properly invoked FOIA’s privacy exemption to redact the identifying information of witnesses in certain police reports and that the trial court correctly granted partial summary disposition. SADO requested all reports, memos, and logs from 2006 to 5/08 for a particular address in an effort to locate potential exculpatory material for a murder client. Defendant produced 23 police reports but redacted names, addresses, contact information, and similar data for individuals mentioned in the reports, citing the privacy exemption. The trial court identified 10 reports involving gunshots or a stolen vehicle, found that the privacy exemption covered the witness identifiers in those reports, and granted defendant partial summary disposition while the parties later stipulated to dismiss the remaining claims to allow an appeal. On appeal, the court applied the two step privacy analysis and first held that the redacted information was of a personal nature because the names were linked to serious criminal incidents, concluding that “the trial court did not err by finding that the identifying information of witnesses in the police reports in this case constituted information of a personal nature because the police reports associate the witnesses with criminal incidents.” The court rejected SADO’s arguments that its own benign motives or status reduced the privacy interest, reiterating that requester identity and intended use are irrelevant under FOIA. On the second prong, the court held that disclosing the witness identifiers would not meaningfully advance public understanding of governmental operations because the underlying narratives, officer names, and general descriptions were already released, and that “the identifying information in this case is simply information on private citizens accumulated in government files that reveal little to nothing about the inner working of government,” so disclosure would be a clearly unwarranted invasion of privacy. Finally, the court concluded that defendant’s explanation in its denial letter was sufficiently specific and that an in camera review or amendment opportunity would have been futile, noting that “the explanation in its letter meets these requirements” and that SADO’s proposed amendments would not change the privacy balancing analysis. Affirmed.

Interstate Horseracing Act (IHA); Whether the IHA preempts the Michigan Horse Racing Law (MHRL); Preliminary injunction; Likelihood of success on the merits; Conflict-preemption theory; Horseman’s Benevolent & Protective Ass’n-OH Div, Inc v DeWine; Whether the MHRL “interferes with” the IHA; Whether Michigan targeted the federal scheme; Whether the IHA permits states where bets are placed to determine whether interstate wagering is permitted; “Irreparable injury,” “other harms” & “public interest” factors

[This appeal was from the WD-MI.] The court affirmed the district court’s grant of a preliminary injunction to plaintiff enjoining defendant-Michigan Gaming Control Board from revoking plaintiff’s electronic wagering platform’s (TwinSpires) horse race wagering license where TwinSpires was likely to succeed on the merits of its conflict-preemption claim. TwinSpires, which is based in Oregon, is a business unit of plaintiff-Churchill Downs that accepts interstate wagers on horseraces. Under the IHA, it is required to obtain consent from state regulators and the racetrack’s racing association. Michigan determined that TwinSpires fell out of compliance with the MHRL and revoked its license under the MHRL. Plaintiff sued, arguing that “Michigan’s enforcement of the MHRL is inconsistent with the IHA.” The district court agreed and issued the preliminary injunction. The court reviewed the requirements for an injunction and held that TwinSpires was “likely to succeed on a conflict-preemption theory.” It concluded that the MHRL “interferes with the IHA's methods to reach the objectives of ‘prevent[ing] interference by one State with the gambling policies of another’ and ‘ensur[ing] States . . . cooperate . . . in the acceptance of legal interstate wagers.’” Further, the court found that “Michigan targets the federal scheme by bolting on an additional consent for wager acceptances.” The court noted that the “Supreme Court has disapproved of states tailoring regulation to target federal schemes, at least in the context of field preemption.” While the court agreed that “the state where the bet is placed can put some legality restriction on placing the bet[,] . . . what Michigan has done is impose a specific restriction on the out-of-state entities that accept the bets.” The court held that “Michigan can’t condition the legality of interstate wagers on state requirements that add to the IHA’s consent scheme.” It also held that TwinSpires established “irreparable injury” where it asserted “it might ‘lose access to its 18,000 Michigan users’ if forced to shut down, and that Michigan’s ‘accusations of illegal gambling activity have hurt its reputation and caused a loss of customer goodwill.’” In addition, the court found that the “‘merged’ other harm and public interest factors favor TwinsSpires because enjoining the enforcement of a law that violates constitutional rights ‘is always in the public interest.’”

Superintending control jurisdiction; MCR 3.302(D); In re Hague; Existence of an adequate legal remedy; Clear legal duty versus discretionary judicial acts; MCR 4.201; Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp; In re Gosnell; Adequate alternative remedy through judicial discipline

The court held that although the circuit court erred in treating the availability of other remedies as a jurisdictional bar, petitioners were not entitled to an order of superintending control because they failed to show either a violation of a clear legal duty or the absence of an adequate alternative remedy. Petitioners, a landlord entity and its management company, sought superintending control over respondent-district court judge based on alleged practices in summary eviction proceedings, including failure to enter defaults, refusal to enforce conditional dismissals, delays in signing eviction orders, adjournments that favored tenants, surprise questioning, and poor docket control, which they characterized as intentional bias against landlords. The circuit court granted respondent’s motion for summary disposition, reasoning that petitioners had an adequate legal remedy. On appeal, the court first clarified that MCR 3.302(D) is procedural rather than jurisdictional, explaining that “the availability of an appeal does not deprive a court of the subject-matter jurisdiction to issue an order of superintending control; rather, the subrule is ‘a procedural requirement to be met before relief can be granted[,]’” so the circuit court cited the wrong subrule. But the court determined that it reached the correct result. The court concluded that many of petitioners’ complaints involved discretionary judicial functions such as scheduling, adjournments, and questioning of parties, and that they had not shown violation of a ministerial duty. It was “not convinced that respondent owed petitioners a clear legal duty to, for example, refrain from asking them certain questions when they appear before him, or to schedule or refrain from scheduling hearings in a manner that best suits them.” For allegations that touched on broader patterns or possible bias, the court held that petitioners had an adequate remedy through the Judicial Tenure Commission’s investigatory and disciplinary powers. “Petitioners’ complaints can be resolved without resorting to the extraordinary relief of an order of superintending control,” and therefore summary disposition was properly granted even though the circuit court relied on an incorrect jurisdictional ground. Affirmed.

Superintending control jurisdiction; MCR 3.302(D); In re Hague; Existence of an adequate legal remedy; Clear legal duty versus discretionary judicial acts; MCR 4.201; Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp; In re Gosnell; Adequate alternative remedy through judicial discipline

The court held that although the circuit court erred in treating the availability of other remedies as a jurisdictional bar, petitioners were not entitled to an order of superintending control because they failed to show either a violation of a clear legal duty or the absence of an adequate alternative remedy. Petitioners, a landlord entity and its management company, sought superintending control over respondent-district court judge based on alleged practices in summary eviction proceedings, including failure to enter defaults, refusal to enforce conditional dismissals, delays in signing eviction orders, adjournments that favored tenants, surprise questioning, and poor docket control, which they characterized as intentional bias against landlords. The circuit court granted respondent’s motion for summary disposition, reasoning that petitioners had an adequate legal remedy. On appeal, the court first clarified that MCR 3.302(D) is procedural rather than jurisdictional, explaining that “the availability of an appeal does not deprive a court of the subject-matter jurisdiction to issue an order of superintending control; rather, the subrule is ‘a procedural requirement to be met before relief can be granted[,]’” so the circuit court cited the wrong subrule. But the court determined that it reached the correct result. The court concluded that many of petitioners’ complaints involved discretionary judicial functions such as scheduling, adjournments, and questioning of parties, and that they had not shown violation of a ministerial duty. It was “not convinced that respondent owed petitioners a clear legal duty to, for example, refrain from asking them certain questions when they appear before him, or to schedule or refrain from scheduling hearings in a manner that best suits them.” For allegations that touched on broader patterns or possible bias, the court held that petitioners had an adequate remedy through the Judicial Tenure Commission’s investigatory and disciplinary powers. “Petitioners’ complaints can be resolved without resorting to the extraordinary relief of an order of superintending control,” and therefore summary disposition was properly granted even though the circuit court relied on an incorrect jurisdictional ground. Affirmed.

Dismissal of a complaint under MCR 2.116(C)(7); Whether pleadings were sufficient to raise a fraud claim; MCR 2.111(B)(1); Due process; Res judicata; Whether summary disposition was warranted under MCR 2.116(C)(8); Maiden v Rozwood

While the court concluded the trial court erred in dismissing plaintiff-Schuler’s complaint under MCR 2.116(C)(7), it held that dismissal was warranted under (C)(8). Thus, it affirmed dismissal of the complaint. Before addressing the merits of his claim on appeal, the court rejected his argument “the trial court erred by dismissing his claim because the small claims court dismissed his earlier case for lack of jurisdiction based upon the small claims court finding that there was fraud.” Apart from the fact the record did not support his “assertion that the small claims division found ‘fraud’” to the extent he sought “to raise a fraud claim in the circuit court, his pleadings were wholly deficient.” As to the merits, the court agreed with Schuler that dismissal of his complaint under (C)(7) based on res judicata was improper. At “least any intentional torts raised in the earlier claim are not precluded by res judicata because, under MCL 600.8424, such claims could not have been raised in the earlier action in the small claims court. Moreover, the third element of res judicata cannot be determined on the present record. Rather, because Schuler’s complaint made no allegations of fact and pleaded no causes of action, it is impossible to determine whether the matter in this case could have been resolved in the prior case.” The court noted that “when no claims are raised in the second action, no analysis of” the third res judicata element is possible. Thus, the trial court erred in “summarily dismissing the claim under MCR 2.116(C)(7).” But the court held that “summary disposition was undeniably warranted under MCR 2.116(C)(8).” It found that “Schuler made no well-pleaded factual allegations. Having alleged no claims, Schuler’s complaint failed to state a claim upon which relief could be granted and summary disposition should have been granted under MCR 2.116(C)(8). Accordingly, despite the court’s incorrect dismissal under MCR 2.116(C)(7), [it] reached the proper result.”

Fifth Amendment challenge to Michigan’s Uniform Unclaimed Property Act (UUPA); Policy of withholding interest; Standing; Kemerer v Michigan; Insufficient record for further review

[This appeal was from the ED-MI.] The court held that plaintiff-Hendershot had standing to challenge Michigan’s unclaimed property program’s policy of withholding interest in some circumstances when returning property, but it was unable to determine more than that based on the existing record. Hendershot claimed that the State of Michigan holds between $200 and $600 of her money, providing a screenshot of its abandoned property website. She sued defendants-administrative manager and the administrator of Michigan’s unclaimed property program in their official capacities, alleging that the policy of withholding interest violates the Fifth Amendment. On behalf of a putative class, she sought declaratory and injunctive relief that would require defendants to pay her interest on her unclaimed property when returned. The district court ruled that Hendershot lacked standing to sue where she lacked a property right to any interest and thus, failed to show an injury. On appeal, the court held that her complaint met Article III’s standing requirement. She alleged that Michigan had earned interest that was rightfully hers, and asked the court’s “help to get it back. Her complaint thus alleges a classic pocketbook injury caused by the defendants and redressable by her requested relief.” The court noted it ordinarily could convert the motion to dismiss for lack of subject-matter jurisdiction to one to dismiss for failure to state a claim, and “then ‘proceed to address whether [Hendershot’s] allegations state a claim.’” But the record did not allow it to convert the motion. The court found that her “bare bones” complaint, along with the screen shot, did not provide sufficient information to assess the merits of her claim. It could not determine if the “account was interest bearing when it was delivered into Michigan’s custody.” In addition, defendants’ briefing was “too perfunctory to affirm on alternate grounds in the record.” It also found that the district court did not do enough for the court “to treat its standing opinion as a merits conclusion.” It failed to “address the text of the UUPA or Michigan’s common law of abandonment,” and relied on an intermediate state court opinion, Kemerer. Intermediate “court opinions aren’t binding in federal court” and the court found there was “ample reason to doubt that either of Kemerer’s holdings accurately reflects the Michigan Supreme Court’s views.” Reversed and remanded.

Disability accommodations under the Americans with Disabilities Act (ADA); Ineffective assistance of counsel; Child’s best interests; Relative placement

The court rejected respondent-mother’s claim that the trial court and the DHHS erred by failing to afford her a number of accommodations under the ADA. As to her ineffective assistance of counsel claim, it found that she failed to show “a reasonable probability that any of her attorneys’ alleged errors in her case affected the outcome of the proceedings against her.” Finally, the trial court did not err by finding termination was in the child’s best interests. The court found that even if it considered the materials she provided that were outside the record, and assuming that she “demonstrated that she requested certain accommodations from the trial court and” the DHHS, she did not show that the trial court and the DHHS “failed to reasonably accommodate her. Although not every hearing was conducted via teleconferencing software, the record shows that [the mother] was able to attend several hearings remotely.” Further, the record reflected “that an ‘ADA advocate’ and an unspecified support person attended some hearings, indicating that the trial court never prohibited [her] from bringing a support person to hearings.” She was also never “prohibited from taking breaks during proceedings—in fact, the trial court explicitly told her that she could take a break to confer with her attorney during her testimony at the termination hearing.” As to her claim “that she was denied a reasonable accommodation by being asked to attend certain hearings in person rather than via teleconferencing software, the record does not show that [she] framed her requests to attend remotely as a necessary accommodation for a disability.” The larger issue with her “entire accommodations argument is that [she] never identifies any reasonable accommodations that DHHS or the trial court failed to make that would have enabled to her to comply with her case service plan and benefit from the services provided to her.” Whether or not she “was denied reasonable accommodation regarding remote attendance at hearings or the availability of breaks would not appear to have impacted [her] ability to refrain from using illegal drugs, which the record shows was the primary condition that led to adjudication and, overwhelmingly, the condition that led to termination.” The mother failed to show “that any failure on the part of DHHS or the trial court to provide the accommodations she requested (assuming for the sake of argument that they were clearly and timely requested) had any impact on her ability to access and benefit from services aimed at helping her attain and maintain sobriety.” The court found “no plain error requiring reversal on this issue.” Affirmed.

Jurisdiction over the children; Postponements of the adjudication; MCR 3.972(A); Motion for a continuance; Due process; Mathews v Eldridge; Mathews balancing test; Termination under §§ 19b(3)(g) & (j); Children’s best interests

The court found that “given that all the postponements occurred with respondent-mother’s approval,” and considering that she did not show that the “erroneous postponements affected the outcome of the proceeding or resulted in a fundamentally unfair proceeding,” the ones that constituted error did not require reversal. The court also held that the trial court did not violate her due-process rights by denying her motion for a continuance. Finally, it concluded that (1) §§ (g) and (j) existed and (2) “the trial court did not clearly err by finding by a preponderance of the evidence that termination of respondents’ parental rights was in the children’s best interests.” The court rejected the mother’s argument as to the denial of a continuance given that proofs were closed and her “presence at the ruling could have no effect on the trial court’s ruling, and considering that continuing the termination proceeding until an unknown time would have created an unwarranted administrative burden[.]” As to statutory grounds for termination, the trial court concluded that § (g) applied to both respondents. The court found that throughout the “case, whether from the effects of substance abuse, mental-health issues, or poor parenting skills, respondents made choices that threatened the emotional well-being of their children. They violated the trial court’s placement order and supervised parenting-time order” by, among other things, absconding with two of the children. The court concluded that at the time of the termination hearing, they “had yet to address any of these issues in a meaningful way.” On this record, the court could not “say that the trial court was ‘more than maybe or probably wrong’ by finding that clear and convincing evidence established [§] (g) as a statutory basis for the termination of respondents’ parental rights.” It also found that some “of these same circumstances established grounds for termination under” § (j). Affirmed.