Elliott-Larsen Civil Rights Act (ELCRA) limitations; Court of Claims jurisdiction; Subject-matter jurisdiction; MCL 600.6419; Boler v Governor; Exhaustion of administrative remedies; Huggett v Department of Natural Res; Failure to state claim; MCR 2.116(C)(8); El-Khalil v Oakwood Healthcare, Inc; Statutory interpretation; MCL 600.5805(2); Dine Brands Global, Inc v Eubanks; Revised Judicature Act (RJA)

The court held that the Court of Claims had subject-matter jurisdiction over plaintiff-city’s declaratory and injunctive action against the defendant-Department, but that the city failed to state a claim because the three-year limitations period in the RJA does not apply to administrative ELCRA charge proceedings. The dispute arose from multiple discrimination complaints filed with the Department against the city’s police department and the Department’s continuing investigations and charging decisions under ELCRA. The Court of Claims granted the Department summary disposition under MCR 2.116(C)(4) and (C)(8), concluding the circuit court had exclusive jurisdiction over agency “appeals” and that MCL 600.5805(2) did not apply to the Department’s administrative process. On appeal, the court found the case was not an appeal from a final agency decision and therefore fell within the Court of Claims’ exclusive jurisdiction over equitable and declaratory claims against a state department under MCL 600.6419(1)(a). It explained that plaintiff’s claim was “an action for declaratory judgment and injunctive relief from an administrative agency of this State.” It also held exhaustion was excused because the “expense and inconvenience” of ongoing proceedings was the precise harm the city sought to avoid and the issue was a “solely” legal question of statutory interpretation requiring no agency fact-finding or expertise. The court next held that dismissal under MCR 2.116(C)(8) was proper because the phrase “all actions to recover damages” in MCL 600.5805(2) refers to court actions, not nonjudicial administrative proceedings, relying on the RJA’s stated purpose and the ordinary meaning of “action,” and citing authority that “action” typically “refers to a lawsuit commenced in a court.” It further rejected the city’s absurd-results argument, noting the administrative rules require complaints be filed within 180 days, provide notice upon filing, and do not impose a charging deadline, and it declined to “impose a statute of limitations where one is not applicable.” Affirmed in part and reversed in part.

Motion to suppress evidence seized as a result of a traffic stop; Use of preliminary exam testimony to assess the reliability of a 911 tip; Reasonable suspicion to stop

Although the court found that the circuit court erred when it used 911-caller-B’s preliminary exam testimony to assess the reliability of her tip, it agreed with the prosecution only regarding the reliability of the tip and not as to reasonable suspicion to stop defendant-Anderson. A tip stated two “men were about to depart the fairgrounds on motorcycles and were intoxicated.” Michigan State trooper F was dispatched and stopped Anderson, based only on B’s “tip, without observing any traffic violation.” Anderson was, as B “surmised, driving while intoxicated. Anderson was charged with operating a vehicle while intoxicated, third offense[.]” The court noted that he “successfully moved in the circuit court to suppress evidence seized as a result of the traffic stop.” The prosecution argued that B’s “911 call established both that she was reliable as well as reasonable suspicion for [F] to stop Anderson.” To begin, the court agreed “with the circuit court’s observation that [B’s] testimony at the preliminary exam[] contradicted her statements made in the 911 call,” but it disagreed that those contradictions made B “legally unreliable for the purposes of” its Fourth Amendment analysis. “Thus, when assessing the reliability of a tip, the focus is exclusively on the information provided to dispatch and ultimately relayed to the trooper.” When B “made the initial report in this case, she called 911 and gave her name and phone number. This [was] at least partially indicative of reliability.” B informed “the operator that she watched Anderson and his companion drink ‘at least six beers,’ that the two men were asked ‘multiple times’ not to drink on the fairground, that they were about to leave on motorcycles, and that they may have had beers in their cooler on the motorcycles.” Because B “claimed eyewitness knowledge of an alleged crime, and because she called 911 close in time to her observations, her tip [was] entitled to further weight.” B also “provided physical descriptions of the two men and their motorcycles and told the operator the direction the men were heading.” When F “spotted the two men, they and their motorcycles matched the information she received from dispatch. The men were also traveling in the direction stated in [B’s] call and the corroborated information indicates [B’s] reliability as a tipster.” Thus, the court concluded that “at the time the call was placed, [B] was reliable.” Next, the circuit court had to determine whether the information B “provided established reasonable suspicion for [F] to stop Anderson.” Critically absent from B’s tip was “any information [suggesting] Anderson was engaging in crime, beyond [B’s] own conclusions. Moreover, after five minutes of following Anderson and observing his operation of his motorcycle, [F] observed nothing.” Because B’s “tip failed to communicate sufficient information suggesting Anderson was operating a vehicle while intoxicated, [F] had no reasonable suspicion that a crime was afoot.” Affirmed.

Time limitation on jury selection; Batson v Kentucky challenge; Whether the race-neutral explanations were pretextual

The court concluded “that the trial court did not err by finding that the reasons for dismissing the three prospective jurors were legitimate and did not demonstrate purposeful racial discrimination.” Thus, defendant-Carswell was not entitled to relief on this basis. Further, reversal was not warranted on the basis the trial court limited voir dire to 30 minutes of questions per party. Carswell was convicted of CSC III. He argued “that, by limiting his lawyer’s time to conduct voir dire, the trial court prevented him from developing a factual basis regarding the jurors’ attitudes toward allegations of sex offenses with a minor.” The court disagreed. Given the record here, the trial “court’s decision to limit voir dire to 30 minutes of questions per party did not prevent the development of a factual basis for the parties to exercise preemptory challenges.” Carswell next argued “that the prosecution’s preemptory exclusion of three prospective African-American jurors was racially motivated.” The sole issue on appeal was “whether the trial court clearly erred by determining that the race-neutral explanations were not pretextual.” Carswell argued “that the prosecutor’s explanation for the strikes was based upon the prospective jurors’ demeanors.” The court noted that the “prosecutor elected to strike Juror One based upon his belief that his friend was wrongfully convicted. That decision was based upon Juror One’s answer to the questions, not upon his demeanor and nonverbal conduct. The trial court found that the prosecutor’s reason for the strike was not a pretext for discrimination and that it was instead a legitimate reason for striking the prospective juror. That finding was not clearly erroneous given the record before” the court. It next noted that “Juror Ten stated that her nephew was in prison for criminal sexual conduct. The prosecutor stated that she had struck her from the jury for that reason. The decision to strike was not based upon any nonverbal conduct or demeanor. Rather, it was based upon her familial relationship with someone who had been convicted of the same class of offense as Carswell was charged with committing. The trial court found that the reason for striking the juror was legitimate and was not pretextual.” In light of the record, the court concluded that this finding was not clearly erroneous. Finally, “Juror Twelve informed the [trial] court that he had been convicted of ‘bouncing’ a check when he was a teenager. He stated that he had not been treated fairly.” Given that it was “reasonable to infer from the juror’s response that he felt some crimes were less important, the prosecutor’s stated reason is supported by the record.” The court did “not find clearly erroneous the trial court’s finding that the reasons stated [were] legitimate and not a pretext for discrimination.” Affirmed.

Police witness testimony; Lay witness opinion testimony; MRE 701; Whether the testimony invaded the province of the jury; People v Fomby; Sufficiency of the evidence for a first-degree premeditated murder conviction; People v Oros; Premeditation; People v Unger

Holding that a police detective’s challenged testimony was admissible under MRE 701 and that there was sufficient evidence to support defendant’s first-degree premeditated murder conviction, the court affirmed. Video footage showed “defendant reach toward his waistband and throw something[.]” The detective testified “he believed defendant had removed a handgun from the right side of his waistband and tossed it to the back of the gas station.” Because this “testimony was rationally based on his observations of the surveillance footage, and was helpful to determine what object defendant tossed, his testimony was admissible under MRE 701. Moreover, because the testimony involved the identification of an object, and the detective never offered an opinion regarding defendant’s guilt or innocence, his testimony did not invade the province of the jury.” The court also found that all four Unger factors supported the jury’s finding of premeditation. “First, testimony from defendant’s friend and the victim’s mother demonstrated that defendant had a close prior relationship with the victim. Second, surveillance footage from the hotel” showed defendant and his codefendant (W) “waiting in the parking lot for an extended period of time before the victim came out. They arranged their vehicles to be close to one another, and defendant admitted to calling the victim when he arrived.” Third, defendant and W “led the victim behind a stairwell wall where he was then shot off-camera about nine seconds later.” The ME testified “the victim was shot twice; one of the gunshot wounds to [his] back was described as a contact wound, meaning that the barrel of the gun was pressed up against [his] body. Finally, after the shooting,” W and defendant fled. The surveillance footage showed “defendant hiding a backpack and discarding an object from his waistband, which the detective believed was a handgun.” The court noted that defendant “lied to first responders by telling them that he gave his sister the backpack. All these actions, viewed in a light most favorable to the” prosecution, supported “the jury’s finding that defendant thought about killing the victim beforehand[.]”

The Whistleblowers’ Protection Act (WPA); MCL 15.362; Legitimate reasons for an adverse employment action; Debano-Griffin v Lake Cnty; Pretext; Operative date for determining whether an electronically filed complaint complied with the statute of limitations (SOL); MCR 1.109(G)(5)(b); Jones v Kreis Enderle Hudgins & Borsos PC (Unpub)

Noting the absence of any published cases interpreting MCR 1.109(G)(5)(b), the court adopted the reasoning in an unpublished case (Jones) and held that “the operative filing date is the date a document is electronically submitted so long as the document is accepted by the clerk of the court.” And because plaintiff’s defect-free complaint was filed and accepted after the limitations period expired, his WPA claim against defendant-McAllister was time-barred. It also held that his WPA claims against the other defendants failed because he offered nothing beyond a temporal connection as evidence of pretext. Thus, it affirmed summary disposition for all defendants. Plaintiff alleged retaliation under the WPA. As to his claim against McAllister, plaintiff did “not challenge the clerk of the court’s decision to reject his” initial nonconforming complaint (the 9/6/22 complaint) for filing. Rather, relying on MCR 1.109(G)(5)(b), he argued that 9/6/22 should “be considered the operative filing date for determining whether he timely filed his complaint.” He essentially claimed that the court rule’s language allowed “his untimely, defect-free complaint” (filed and accepted on 9/7/22) “to relate back to the date that he filed his initial, defective complaint.” The court noted that it rejected this argument in Jones, where it “held that the clerk’s acceptance of a complaint established the operative date for determining whether an electronically filed complaint complied with the” SOL. It further held in Jones that because the defective complaint was rejected, “plaintiff’s subsequent defect-free complaint could not relate back to [the] filing date of the rejected complaint.” The court here adopted “this persuasive reasoning given the plain language of the court rule.” As a result, McAllister was properly granted summary disposition based on the SOL. As to plaintiff’s claims against the other defendants, because they “provided legitimate reasons for their adverse actions, the burden shifted to” him to show those “reasons were pretextual.” But his only argument on appeal was that they must be “given the time line of events in this case. Nowhere does plaintiff even claim that defendants’ proffered reasons had no basis in fact or that his report was a motivating factor for the decisions he challenges.” Further, he did not “offer any evidence demonstrating pretext before the trial court.”

Divorce; Evidence about the legality of the marriage; Attempt to assert an ineffective assistance of counsel claim; Haller v Haller; Motion for reconsideration; Dispensing with oral argument; MCR 2.119(E)(3)

Noting that defendant-ex-husband could “not seek relief on the basis that he was denied the effective assistance of counsel[,]” the court also concluded that the trial court did not err in denying his motion for reconsideration or in dispensing with oral argument. Thus, it affirmed the divorce judgment. Defendant first asserted that the trial court erred in failing “to consider evidence that the parties were not legally married. But the trial court did not ignore defendant’s evidence without reason. It ruled that [he] was judicially estopped from challenging the legality of the marriage because, two years earlier, he had filed for divorce himself and alleged in his complaint that the parties were legally married.” As he did not challenge the imposition of judicial estoppel, the court found that he “failed to allege any actual error by the trial court.” As to his ineffective assistance of counsel claims, pursuant to Haller, “a party in a divorce proceeding may not assert a claim of ineffective assistance of counsel.” The trial court treated his motion for reconsideration as a motion for a new trial. The motion was based “on his contention that he was denied the effective assistance of counsel.” Because he “could not raise such a claim in this civil proceeding” the trial court did not err in denying the motion. Further, under MCR 2.119(E)(3), “it had the discretion to dispense with oral argument on” the motion. Because the “claims in his motion failed as a matter of law, the trial court did not abuse its discretion in refusing to hear his arguments when he was not entitled to the relief sought in his motion.”

Municipal referendum; Marshall Charter §§ 5.01 & 5.04; Mandamus; Taxpayers for MI Constitutional Gov’t v Michigan; Appropriations by ordinance & the title-object rule; Marshall Charter § 4.02(a); Enbridge Energy, LP v Michigan; Notice of ordinance hearing; Marshall Charter § 4.02(b); North Burns Park Ass’n v Ann Arbor; Act 425 agreement authority; MCL 124.26(c); Distinguishing Clam Lake Twp v Department of Licensing & Regulatory Affairs

The court held, on remand, that plaintiff-Committee was not entitled to mandamus or declaratory relief because defendant-City’s Ordinance 2023-08 was exempt from referendum as an appropriation ordinance, complied with the City Charter’s title-object and notice requirements, and did not violate the land transfer agreement at issue (the Master 425 Agreement). The City adopted Ordinance 2023-08 rezoning a specific parcel to the City’s I-3 classification and appropriating “$40,000 for site plan review services and $250,000 for building inspection services” for a proposed industrial project. The City Clerk rejected the Committee’s referendum petition as insufficient because the ordinance contained appropriations and because the signature count was inadequate. The trial court granted summary disposition on all counts. The court, in the original appeal, held that the Committee had standing but it affirmed dismissal of the mandamus count because the Committee lacked “a clear legal right” to a referendum under the City Charter and because the Charter provided an “adequate remedy at law” through judicial review. The court rejected the claim that the Charter prohibited appropriations by ordinance, and it held that the ordinance did not violate the Charter’s title-object rule. The court also treated the weekly newspaper notice as published “continuously” through the next issue date and concluded the summary adequately notified the public where the Charter did not require more detail. On remand “for reconsideration in light of Clam Lake Twp,” the court again held that while the Committee had standing it was not entitled to mandamus, the trial court did not err in ruling “that the City could include the appropriations in Ordinance 2023-08[,]” and that the title-object and notice claims lacked merit. As to the claim that Ordinance 2023-08 violated the Master 425 Agreement, in Clam Lake Twp the Supreme Court considered MCL 124.26(c), which permits “participating local units” to bargain over ordinances, including zoning. The court distinguished this case because the alleged recipient of zoning authority was the Joint Planning Commission (JPC), which is not a “local unit” under the Act’s definition, and thus any attempt to transfer zoning power to the JPC would be unenforceable. But the court held “that the City did not contract out its zoning power to the JPC” under the Master 425 Agreement. Schedule A of the Agreement required the JPC to administer land “pursuant to” the City’s or Township’s zoning acts and did not prevent the City from amending the zoning map. The court also dismissed the cross-appeal for lack of jurisdiction because the cross-appellants were not “aggrieved parties” given that intervention was denied. Affirmed.

The Whistleblowers’ Protection Act (WPA); MCL 15.362; Legitimate reasons for an adverse employment action; Debano-Griffin v Lake Cnty; Pretext; Operative date for determining whether an electronically filed complaint complied with the statute of limitations (SOL); MCR 1.109(G)(5)(b); Jones v Kreis Enderle Hudgins & Borsos PC (Unpub)

Noting the absence of any published cases interpreting MCR 1.109(G)(5)(b), the court adopted the reasoning in an unpublished case (Jones) and held that “the operative filing date is the date a document is electronically submitted so long as the document is accepted by the clerk of the court.” And because plaintiff’s defect-free complaint was filed and accepted after the limitations period expired, his WPA claim against defendant-McAllister was time-barred. It also held that his WPA claims against the other defendants failed because he offered nothing beyond a temporal connection as evidence of pretext. Thus, it affirmed summary disposition for all defendants. Plaintiff alleged retaliation under the WPA. As to his claim against McAllister, plaintiff did “not challenge the clerk of the court’s decision to reject his” initial nonconforming complaint (the 9/6/22 complaint) for filing. Rather, relying on MCR 1.109(G)(5)(b), he argued that 9/6/22 should “be considered the operative filing date for determining whether he timely filed his complaint.” He essentially claimed that the court rule’s language allowed “his untimely, defect-free complaint” (filed and accepted on 9/7/22) “to relate back to the date that he filed his initial, defective complaint.” The court noted that it rejected this argument in Jones, where it “held that the clerk’s acceptance of a complaint established the operative date for determining whether an electronically filed complaint complied with the” SOL. It further held in Jones that because the defective complaint was rejected, “plaintiff’s subsequent defect-free complaint could not relate back to [the] filing date of the rejected complaint.” The court here adopted “this persuasive reasoning given the plain language of the court rule.” As a result, McAllister was properly granted summary disposition based on the SOL. As to plaintiff’s claims against the other defendants, because they “provided legitimate reasons for their adverse actions, the burden shifted to” him to show those “reasons were pretextual.” But his only argument on appeal was that they must be “given the time line of events in this case. Nowhere does plaintiff even claim that defendants’ proffered reasons had no basis in fact or that his report was a motivating factor for the decisions he challenges.” Further, he did not “offer any evidence demonstrating pretext before the trial court.”

Elliott-Larsen Civil Rights Act (ELCRA) limitations; Court of Claims jurisdiction; Subject-matter jurisdiction; MCL 600.6419; Boler v Governor; Exhaustion of administrative remedies; Huggett v Department of Natural Res; Failure to state claim; MCR 2.116(C)(8); El-Khalil v Oakwood Healthcare, Inc; Statutory interpretation; MCL 600.5805(2); Dine Brands Global, Inc v Eubanks; Revised Judicature Act (RJA)

The court held that the Court of Claims had subject-matter jurisdiction over plaintiff-city’s declaratory and injunctive action against the defendant-Department, but that the city failed to state a claim because the three-year limitations period in the RJA does not apply to administrative ELCRA charge proceedings. The dispute arose from multiple discrimination complaints filed with the Department against the city’s police department and the Department’s continuing investigations and charging decisions under ELCRA. The Court of Claims granted the Department summary disposition under MCR 2.116(C)(4) and (C)(8), concluding the circuit court had exclusive jurisdiction over agency “appeals” and that MCL 600.5805(2) did not apply to the Department’s administrative process. On appeal, the court found the case was not an appeal from a final agency decision and therefore fell within the Court of Claims’ exclusive jurisdiction over equitable and declaratory claims against a state department under MCL 600.6419(1)(a). It explained that plaintiff’s claim was “an action for declaratory judgment and injunctive relief from an administrative agency of this State.” It also held exhaustion was excused because the “expense and inconvenience” of ongoing proceedings was the precise harm the city sought to avoid and the issue was a “solely” legal question of statutory interpretation requiring no agency fact-finding or expertise. The court next held that dismissal under MCR 2.116(C)(8) was proper because the phrase “all actions to recover damages” in MCL 600.5805(2) refers to court actions, not nonjudicial administrative proceedings, relying on the RJA’s stated purpose and the ordinary meaning of “action,” and citing authority that “action” typically “refers to a lawsuit commenced in a court.” It further rejected the city’s absurd-results argument, noting the administrative rules require complaints be filed within 180 days, provide notice upon filing, and do not impose a charging deadline, and it declined to “impose a statute of limitations where one is not applicable.” Affirmed in part and reversed in part.

Municipal referendum; Marshall Charter §§ 5.01 & 5.04; Mandamus; Taxpayers for MI Constitutional Gov’t v Michigan; Appropriations by ordinance & the title-object rule; Marshall Charter § 4.02(a); Enbridge Energy, LP v Michigan; Notice of ordinance hearing; Marshall Charter § 4.02(b); North Burns Park Ass’n v Ann Arbor; Act 425 agreement authority; MCL 124.26(c); Distinguishing Clam Lake Twp v Department of Licensing & Regulatory Affairs

The court held, on remand, that plaintiff-Committee was not entitled to mandamus or declaratory relief because defendant-City’s Ordinance 2023-08 was exempt from referendum as an appropriation ordinance, complied with the City Charter’s title-object and notice requirements, and did not violate the land transfer agreement at issue (the Master 425 Agreement). The City adopted Ordinance 2023-08 rezoning a specific parcel to the City’s I-3 classification and appropriating “$40,000 for site plan review services and $250,000 for building inspection services” for a proposed industrial project. The City Clerk rejected the Committee’s referendum petition as insufficient because the ordinance contained appropriations and because the signature count was inadequate. The trial court granted summary disposition on all counts. The court, in the original appeal, held that the Committee had standing but it affirmed dismissal of the mandamus count because the Committee lacked “a clear legal right” to a referendum under the City Charter and because the Charter provided an “adequate remedy at law” through judicial review. The court rejected the claim that the Charter prohibited appropriations by ordinance, and it held that the ordinance did not violate the Charter’s title-object rule. The court also treated the weekly newspaper notice as published “continuously” through the next issue date and concluded the summary adequately notified the public where the Charter did not require more detail. On remand “for reconsideration in light of Clam Lake Twp,” the court again held that while the Committee had standing it was not entitled to mandamus, the trial court did not err in ruling “that the City could include the appropriations in Ordinance 2023-08[,]” and that the title-object and notice claims lacked merit. As to the claim that Ordinance 2023-08 violated the Master 425 Agreement, in Clam Lake Twp the Supreme Court considered MCL 124.26(c), which permits “participating local units” to bargain over ordinances, including zoning. The court distinguished this case because the alleged recipient of zoning authority was the Joint Planning Commission (JPC), which is not a “local unit” under the Act’s definition, and thus any attempt to transfer zoning power to the JPC would be unenforceable. But the court held “that the City did not contract out its zoning power to the JPC” under the Master 425 Agreement. Schedule A of the Agreement required the JPC to administer land “pursuant to” the City’s or Township’s zoning acts and did not prevent the City from amending the zoning map. The court also dismissed the cross-appeal for lack of jurisdiction because the cross-appellants were not “aggrieved parties” given that intervention was denied. Affirmed.

Probate jurisdiction; MCL 700.1302; Constructive trust authority; MCL 700.1303; In re Filibeck Estate; MCL 700.1308; Kammer Asphalt Paving Co, Inc v East China Twp Schs; Accounting of agent under a Power of Attorney (POA)

The court held that the probate court had statutory and equitable authority to maintain a constructive trust restraining funds distributed to respondent as a beneficiary pending resolution of intertwined estate, trust, and fiduciary-duty allegations. After the death of the parties’ mother, the parties disputed whether real property was ever properly transferred into a revocable trust and whether respondent, while holding their mother’s POA, diverted or misused the mother’s financial-account funds and manipulated beneficiary designations before distributions were made. The original probate court ordered respondent to provide an accounting and ordered a constructive trust. After a change of venue, the new probate court denied respondent’s motion to lift the restraint on the disputed funds, treating the request as reconsideration of the earlier order and maintaining the constructive trust while discovery proceeded in the consolidated proceedings and a related case. On appeal, the court held that the probate court’s jurisdiction under MCL 700.1302 and its concurrent legal and equitable authority under MCL 700.1303 permitted it to “determine a property right or interest,” “impose a constructive trust,” and “require, hear, or settle an accounting of an agent under a” POA. The court also reiterated that a constructive trust may be imposed when necessary “‘to do equity or to prevent unjust enrichment’” and where the holder of legal title “‘may not in good conscience retain the beneficial interest.’” It concluded the restraint served to preserve potentially recoverable assets while the probate court determined whether respondent breached fiduciary duties and whether the assets properly belonged to the estate or trust. Affirmed.

Exception to the reasonable reunification efforts requirement; Aggravated circumstances; In re Rippy; MCL 712A.19a(2)(a); MCL 722.638(2); Child’s best interests

The court held that the trial court did not err in finding that aggravated circumstances warranted terminating respondent-mother’s parental rights without reasonable reunification efforts, and that terminating her rights was in the child’s (DBH) best interests. The trial court found that she “placed DBH at an unreasonable risk of harm by failing to take steps to eliminate the risk posed by his low weight.” The record supported this finding. When he “was admitted to the hospital, DBH was below the first percentile for weight and was at risk of imminent death. Respondent admitted that she had noticed DBH losing weight, but did not seek medical care” for him until 5/24, when he “was near death. [She] did not follow through with referrals for services aimed at helping her care for the child. Moreover, [she] did not take the reasonable step of adequately feeding” him. She pled “guilty to attempted second-degree child abuse and acknowledged that she failed to feed DBH adequately. It was medically determined that DBH’s failure to thrive was caused by lack of nutrition, not by an underlying condition.” The court rejected her contention that termination was unwarranted because there was no showing that her neglect was intentional. “MCL 722.638(2) provides that aggravated circumstances include when the parent ‘is suspected of placing the child at an unreasonable risk of harm due to the parent’s failure to take reasonable steps to intervene to eliminate that risk,’ without reference to the intent underlying the parent’s actions.” As to the child’s best interests, a preponderance of the evidence supported the trial court’s finding that DBH’s “need for safety and fundamental basics, such as adequate food and medical care, necessitated termination of respondent’s parental rights. [Her] lack of parenting ability resulted in DBH being hospitalized for malnutrition[.]” She did not follow his pediatrician’s medical advice, and “appeared to lack either understanding or concern that her failure to provide basic care for the child led to [his] severe lack of development and nearly caused the child’s death. After [he] was placed in foster care, he began to gain weight, to improve in health, and to make progress on developmental milestones. In addition, his foster parents expressed interest in adopting him.” Affirmed.

Children’s best interests; Relative placement; Custody

Holding that the trial court did not clearly err in finding that termination of respondent-father’s parental rights was in the children’s (KIO and NRO) best interests, the court affirmed. He pled no contest to CSC II and was sentenced to 300 days in jail and 5 years’ probation. He claimed that alternative custody arrangements other than the mother were available. There was “no dispute that the children were in a relative placement with their mother. The trial court expressly acknowledged this placement and stated that it weighed against termination. Accordingly, the trial court satisfied its obligation to consider the relative-placement factor.” Father further asserted “that the trial court should have considered an alternative custody arrangement, such as granting sole legal and physical custody to the children’s mother while allowing father limited parenting time with KIO.” The record reflected “that the trial court found that father posed an ongoing risk of harm to both children, including the risk of future sexually abusive behavior. The court emphasized the significant emotional harm already suffered by KIO and NRO and the potential for additional harm if father’s parental rights were not terminated. Under these circumstances, the trial court acted within its discretion in concluding that termination, rather than an alternative custody arrangement, best served the children’s interests.” Father also argued “that termination was contrary to KIO’s best interests because KIO expressed a desire to maintain a relationship with [him]. The trial court carefully considered KIO’s preference, noting his age and emotional state, but concluded that he lacked the maturity to fully appreciate the long-term implications of continued contact.” The trial “court expressed concern that KIO might fail to report unsafe conditions in the future and that maintaining the relationship with father could strain KIO’s relationships with NRO and their mother.” Thus, the record demonstrated “that the trial court meaningfully considered KIO’s wishes and reasonably determined that they were outweighed by the risk of harm.” Finally, father contended “that he demonstrated strong parenting abilities and that he posed a low risk of reoffending, particularly in light of his claimed sobriety.” However, the trial court found his “parenting ability to be compromised by alcohol abuse, sexual abuse, and inappropriate sleeping arrangements. [It] emphasized that father failed to participate in treatment or services recommended to him following a psychological evaluation and largely minimized his potential risk of reoffending. Although the trial court acknowledged father’s financial support of the children as a factor weighing against termination, it reasonably concluded that this consideration was outweighed by the remaining factors.”

Probate jurisdiction; MCL 700.1302; Constructive trust authority; MCL 700.1303; In re Filibeck Estate; MCL 700.1308; Kammer Asphalt Paving Co, Inc v East China Twp Schs; Accounting of agent under a Power of Attorney (POA)

The court held that the probate court had statutory and equitable authority to maintain a constructive trust restraining funds distributed to respondent as a beneficiary pending resolution of intertwined estate, trust, and fiduciary-duty allegations. After the death of the parties’ mother, the parties disputed whether real property was ever properly transferred into a revocable trust and whether respondent, while holding their mother’s POA, diverted or misused the mother’s financial-account funds and manipulated beneficiary designations before distributions were made. The original probate court ordered respondent to provide an accounting and ordered a constructive trust. After a change of venue, the new probate court denied respondent’s motion to lift the restraint on the disputed funds, treating the request as reconsideration of the earlier order and maintaining the constructive trust while discovery proceeded in the consolidated proceedings and a related case. On appeal, the court held that the probate court’s jurisdiction under MCL 700.1302 and its concurrent legal and equitable authority under MCL 700.1303 permitted it to “determine a property right or interest,” “impose a constructive trust,” and “require, hear, or settle an accounting of an agent under a” POA. The court also reiterated that a constructive trust may be imposed when necessary “‘to do equity or to prevent unjust enrichment’” and where the holder of legal title “‘may not in good conscience retain the beneficial interest.’” It concluded the restraint served to preserve potentially recoverable assets while the probate court determined whether respondent breached fiduciary duties and whether the assets properly belonged to the estate or trust. Affirmed.