Petition for a writ of habeas corpus; The trial court’s jurisdiction; Lack of a probable cause conference; MCL 766.4; MCR 6.108; People v Stanley (Unpub); Comparison to the lack of a preliminary exam; People v Robinson

Holding that the lack of a probable cause conference does not create a jurisdictional defect, the court affirmed the circuit court’s dismissal of the petition for a writ of habeas corpus. Petitioner pled nolo contendere to armed robbery in 2016. In his petition, he argued that he was entitled to a writ because he did not receive a probable cause conference in his underlying criminal prosecution and this deprived the trial court of jurisdiction. On appeal, the court found it was unnecessary to determine whether a probable cause conference was actually conducted because petitioner failed to establish “that the failure to do so created any jurisdictional defects.” While he suggested that one was required to preserve his constitutional rights, he did not support his claim with legal authority. The court also found it instructive that the lack of a preliminary exam does not deprive a circuit court of subject-matter jurisdiction. “Although a judicial determination of probable cause is a prerequisite to keeping a suspect incarcerated following an arrest, neither a preliminary examination nor a probable cause conference is constitutionally required.” And the court rule concerning probable cause conferences, MCR 6.108, “gives no indication that its violation deprives a court of its prerogative to exercise jurisdiction.” A lack of subject-matter jurisdiction may not be waived. Given that “MCR 6.108 expressly permits the waiver of a probable cause conference, it stands to reason that a violation of that rule does not create a jurisdictional defect.” Thus, the court concluded that, assuming a probable cause conference was not held, its absence “does not deprive the district court of its continuing jurisdiction over the case. Relatedly, the absence of a probable cause conference does not affect the jurisdiction of the circuit court once a defendant has been bound over for trial.”

Sufficiency of the evidence; Third-degree fleeing & eluding (MCL 257.602a(3)(b)); Whether the initial stop was unlawful; Traffic violation; Parking in an area with a no-parking sign; Intent to flee; Assaulting, resisting, or obstructing an officer (MCL 750.81d(1)); Claim that the resistance was a lawful response to excessive force; Graham v Connor; Inapplicability of People v Moreno; Ineffective assistance of counsel; Failure to request jury instructions on the lawfulness of the officer’s conduct; Failure to move for a directed verdict; Failure to object to prosecutor comments; Prosecutorial error; People v Unger

The court held that there was sufficient evidence to support defendant’s convictions of third-degree fleeing and eluding and assaulting, resisting, or obstructing an officer. It rejected his ineffective assistance of counsel claims, and while “some of the prosecutor’s remarks went beyond what was directly relevant” it concluded defendant was not denied a fair trial. The court first found that his assertion he was not committing any traffic violations was incorrect – both the Michigan Vehicle Code (MVC) and a local ordinance “prohibit parking in an area with a no-parking sign.” While he contended his vehicle not “parked,” only “standing” or “stopping[,]” he failed to acknowledge that the MVC and the ordinances “define ‘parking’ as ‘standing a vehicle, whether occupied or not, upon a highway, when not loading or unloading except when making necessary repairs.’” And an officer’s body-camera “footage clearly showed that defendant’s vehicle was stopped and standing in a street with a no-parking sign[,]” supporting a determination, “beyond a reasonable doubt, that the officer had a legal basis to issue a traffic citation under both MCL 257.674(1)(n) and” the ordinance. Further, “ample evidence” supported the fleeing element. The officer told him twice to wait and that he was not free to leave. Yet defendant tried “to drive away, stopping only because the officer stood in front of his vehicle and told him to stop. Arguably, that action alone justified the fleeing element[.]” As to his resisting conviction, he asserted an excessive amount of force was used against him. The court reviewed the Graham factors. As to the severity of the crime, defendant escalated a minor parking infraction by trying “to drive away despite being told not to. By doing so, [he] satisfied the elements of third-degree fleeing and eluding,” a felony, and justified the use of force – grabbing him by the arm. He then “again escalated the situation by struggling with the officer. By doing so, [he] satisfied the elements of assaulting, resisting, or obstructing,” another felony. This justified taking him “down to the pavement and handcuffing him.” As to the threat he posed, his “actions demonstrated some threat potential.” The court determined that the facts and circumstances here did “not indicate that the amount of force used was unreasonable.” Thus, his “resistance was not a lawful response to excessive force.” Affirmed.

Restitution; MCL 769.1a(2); The Crime Victim’s Rights Act; MCL 780.766(2); Causation; People v Corbin

Holding that there was sufficient evidence to prove that defendant caused the alleged damages, the court affirmed the order requiring him to pay $16,977.71 in restitution. He pled guilty to second-degree home invasion. He did “not contest that the victim actually incurred $16,977.71 worth of damage.” Instead, he asserted “there was insufficient evidence to prove causation because the prosecution presented no witness testimony or forensic evidence demonstrating that he was the one who caused the damage.” However, he did not “identify any statute or caselaw showing that such evidence is required. Moreover, testimony from responding police officers and the victim indicated that: (1) the house was in good condition before the victim left town; (2) defendant was the only person found in the victim’s house; (3) defendant was found in the home a few hours after the victim’s neighbor alerted him of the break-in; and (4) the state of the house—i.e., open food, feces in the bathroom, and defendant’s medication—suggested that [he] had been there for an extended period of time.” The court noted that he “admitted he was in the house for a minimum of 9 to 12 hours.” Thus, it held that the trial court did not clearly err in “finding that defendant’s unlawful entry factually and proximately caused the claimed damage.” While he denied that he caused it, “the only evidence he presented to negate the officers’ and victim’s testimonies was his own. Thus, the question of whether there was sufficient evidence to satisfy the burden of proof hinged on the trial court’s credibility determination” and the court does not interfere with this.

Conservator removal; MCL 700.5414; Fiduciary duties; MCL 700.1212; MCL 700.5416; Prudent investor rule; MCL 700.1502; Attorney fees; Reasonableness; Smith v Khouri; Arbitration; Settlement agreement; Altobelli v Hartmann

The court held that the probate court did not err by denying appellant-former conservator’s request for arbitration and did not abuse its discretion by removing him as conservator for his mother. The protected individual’s adult children had entered a settlement agreement after arbitration that made appellant conservator and another sibling guardian. Later disputes arose over appellant’s accountings, delays in producing financial records, attorney fees paid from the estate, unequal gifts, and a $170,000 loan the protected individual had made to appellant. On appeal, the court first held that the arbitration clause did not require arbitration because it covered challenges to enforcement of the settlement agreement, and the agreement concerned appellant’s original appointment, not “future actions once appointed.” Thus, the probate court could not require a party “‘to arbitrate an issue which [she had] not agreed to submit to arbitration.’” The court next held that good cause supported removal because a conservator is a fiduciary and must act with “reasonable care, skill, and caution.” The court focused on appellant’s approval of the attorney’s (C) fee increase from $250 to $500 per hour. Although appellant relied on the State Bar economics survey, the court held that the survey was only one factor and that reasonableness required consideration of the “totality of special circumstances” applicable to the case. The probate court properly considered that the issues were not novel, C lacked probate-litigation experience, incurred no unusually large expenses, and was not prevented from handling other matters. It also found C’s work did not benefit the protected individual or the estate, but instead increased costs and helped appellant withhold information from other siblings. Because appellant failed to sufficiently investigate the reasonableness of the 100% fee increase, he breached his fiduciary duty, giving the probate court good cause to remove him. Affirmed.

Conservator removal; MCL 700.5414; Good cause; Conservator duties; MCL 700.5425(b); Fiduciary duties; MCL 700.5416; Notice; Waiver; In re Conservatorship of Murray; Estates & Protected Individuals Code (EPIC)

The court held that the probate court did not abuse its discretion by removing appellant as successor conservator for the protected individual (IL). After IL’s son was removed as conservator, the probate court appointed appellant as successor conservator and ordered the conservatorship bank account frozen while an auditor reviewed the prior conservator’s accounts. The probate court later learned that appellant’s staff had contacted the bank to lift the freeze without seeking relief from the court, and it scheduled an emergency hearing because there was concern whether IL’s needs were being met. Appellant did not appear at the hearing or tell the probate court he would not attend. On appeal, the court first explained that a conservator is a fiduciary under EPIC and has a duty to “expend or distribute money reasonably necessary for the support, education, care, or benefit of the protected individual.” The court then held that good cause supported removal because appellant did not have access to the frozen funds needed for IL’s care, failed to properly ask the probate court to lift the freeze, and then “demonstrated disregard for his duty to provide for IL’s welfare by failing to attend the hearing.” The court rejected appellant’s argument that he believed the hearing concerned only the audit of the prior conservator, as it failed to see how the conservator “could justifiably believe that a hearing addressing the frozen bank account needed to provide for IL’s welfare had nothing to do with him.” The court also rejected his claim that “the probate court used him as a scapegoat” or removed him because he sought the judge’s disqualification, finding nothing in the record showing animus or a coverup. Affirmed.

Removal of a guardian; In re Guardianship of Redd; The Estates & Protected Individuals Code (EPIC); MCL 700.5310; “Suitable”

Concluding that appellant-former guardian’s (Shelledy) “behavior provided a sufficient basis for her removal” as guardian by a preponderance of the evidence, the court affirmed the probate court’s order denying her request to be reinstated. She was one of the protected individual’s (IL) four adult children. “The siblings have a contentious relationship and split into essentially two factions:” appellant and her brother, and appellees-Haight and Boogren, their sisters. Appellant contended the probate court erred in removing her as IL’s guardian. The court noted that to “‘remove a guardian under MCL 700.5310, the probate court must find that the guardian is no longer suitable or willing to serve.’” A preponderance of the evidence must support such a finding. “EPIC does not define the term ‘suitable,’ but” the court held in Redd that “a ‘suitable’ guardian is one who is qualified and able to provide for the ward’s care, custody, and control.” The probate court removed appellant “after she continued to isolate IL from Haight and Boogren and withhold information from them.” Appellant asserted “that there was no evidence indicating that she was isolating IL from” them. But the court found this claim was “belied by the record, which is replete with instances of Shelledy keeping essential information regarding IL from Haight and Boogren and interfering with their ability to visit their mother. As the probate court noted, absent evidence that [they] were abusive or harmful to IL, Shelledy, as IL’s guardian, should have encouraged IL’s interaction with two of her four children. But Shelledy’s behavior isolated IL from her other daughters, demonstrating that [she] was either unable or unwilling to prioritize IL’s wellbeing and care over her hostility toward her sisters.”

Child protective proceedings; Jurisdiction; MCL 712A.2(b)(1); Proper care & custody; Domestic violence; Preponderance of evidence; In re Miller; Present circumstances; In re Leach

The court held that sufficient evidence supported the trial court’s exercise of jurisdiction over respondent-father’s child under MCL 712A.2(b)(1). The case arose from ongoing domestic violence between respondent and the child’s mother, including multiple CPS reports of verbal and physical altercations in the child’s presence and an emergency petition after the parents removed the child from the grandmother’s home and refused to disclose their location. On appeal, the court first held that the trial court properly applied the preponderance standard because jurisdiction requires proof that at least one statutory basis exists, and “‘the trial court must examine the child’s situation at the time the petition was filed because MCL 712A.2(b) speaks in the present tense.’” The court next rejected respondent’s argument that jurisdiction failed because the PPO obtained by the mother was not admitted and there was no conviction or proof of physical violence. The record “belies respondent’s claims” because he admitted pending domestic-violence charges involving the mother and acknowledged an active PPO, the caseworker testified to a pending criminal case, and the mother testified that she obtained a PPO. The court also held that the evidence supported a finding of physical violence because the mother claimed respondent strangled her in a parking lot and assaulted her while holding a knife, while respondent admitted the mother tried to hit him, scratched him with keys, ripped his clothing, and spit on him while the child was in the room. Because that evidence supported jurisdiction under MCL 712A.2(b)(1), the court did not address MCL 712A.2(b)(2). Affirmed.

Children’s best interests; Parent-child bond; In re White; Parenting ability; Failure to protect; Foster care placement; Adoption; Speculative evidence

The court held that the trial court did not clearly err by finding that termination of respondent-mother’s parental rights was in the children’s best interests. Respondent pleaded no contest to allegations supporting jurisdiction and statutory grounds after one child disappeared and was presumed dead, while a registered sex offender (B) whom respondent had allowed to live in the home was charged with first-degree murder and CSC I. On appeal, the court first held that respondent’s engagement with the caseworker and visits did not outweigh the evidence supporting termination. Although she was “communicative,” she “continually refused to take accountability for the abuse her children suffered,” and they did not want visits because “they were afraid of her.” The court next rejected respondent’s argument that there was no evidence of B’s conduct because the record “belies respondent’s claim,” including petition allegations that he abused children and that respondent ignored his status as a registered sex offender “as early as 2012.” The court also held that respondent’s prior approval as an adoptive parent did not establish present fitness because that fact did not “diminish” that she later knowingly allowed a registered sex offender to live with and have unsupervised contact with the children. Finally, the court rejected respondent’s reliance on a Kids Talk interview that was not admitted because her speculation about what it might show did not overcome other evidence, including reports that respondent “whooped” the children, that one child was hit hard enough to bleed, that another child reported repeated sexual abuse in the home, and that respondent “did nothing to stop it.” The court further emphasized that the children were doing well in foster care, had bonded with their caregivers, were receiving trauma-based services, and their foster parent was willing to adopt them. Affirmed.