Child pornography; Sentencing; Procedural reasonableness; USSG § 2G2.2(b)(7)(D) (image-count enhancement); Guideline commentary; Video-to-image conversion; 75:1 Rule; United States v Phillips; Kisor v Wilkie; Auer v Robbins; Loper Bright Enters v Raimondo; 18 USC § 3553(a) factors; Sentencing judge comments; Substantive reasonableness; Below-guidelines sentence; Sentencing disparities; § 3553(a)(6)

The court held that defendant-York’s below-guidelines 120-month child-pornography sentence was procedurally and substantively reasonable. He pled guilty after authorities found 99 images and 63 videos of child pornography. The district court applied the five-level enhancement under USSG § 2G2.2(b)(7)(D) by using the guideline commentary’s “75:1 Rule,” which treats each video as 75 images. On appeal, the court held that the district court properly calculated the guidelines range because Phillips remains binding and “embraced the 75:1 Rule,” while Loper Bright did not overrule the Sixth Circuit’s continued use of the Auer/Kisor framework for guideline commentary. The court next held that the district court sufficiently considered the § 3553(a) factors, noting that the court considered “the good, the bad, and the ugly,” including defendant’s lack of criminal history and acceptance of responsibility, as well as the “extremely serious” nature of videos depicting abuse of very young children and the “perpetual hurt and perpetual harm” to victims and the community. It also rejected defendant’s claim that the judge improperly referred to producers of child pornography because the remarks distinguished more and less egregious offense conduct and the comparison “seemed to help York.” Finally, the court held that the sentence was not “too long” because it was below the 151-to-188-month range and near average sentences for similarly situated defendants. Affirmed.

Child custody; Parenting time; Physical custody; Modification; Proper cause; Findings on the statutory best-interest factors (MCL 722.23); Pierron v Pierron; Failure to address all the factors; Change in the established custodial environment (ECE)

While the court concluded that the trial court’s finding of proper cause to revisit the prior custody and parenting time order was not against the great weight of the evidence, it held that failing to consider and weigh all the MCL 722.23 factors was clear legal error. Thus, it vacated the order modifying the parties’ parenting time and awarding defendant-father primary physical custody, and remanded. He sought modification on the basis that plaintiff-mother had allegedly failed to comply with a prior order related to her live-in boyfriend’s (H) contact with the children. In challenging the trial court’s proper cause finding, plaintiff characterized the allegations against H “as baseless and unsubstantiated, but” the court found that she “mischaracterized the reports. The CPS report notes that CPS would not pursue further investigation based upon its opinion that [H’s] alleged conduct did not rise to the level of sexual abuse, not because the CPS investigator found the children’s statements lacked veracity. The report’s notes indicate that the CPS investigator and a law enforcement officer characterized [H’s] behavior as ‘grooming,’ and he might have been testing the older child to see what he could get away with around her.” The court concluded that, overall, the record before it reflected “that the children were subjected to unwanted touching by [H] repeatedly and consistently while the prior order was in effect. The children having their bodily autonomy and boundaries repeatedly disregarded by an unrelated adult while at plaintiff’s residence directly bears on their mental well-being and calls into question whether it is a ‘stable, satisfactory environment’ under MCL 722.23(d).” But the court noted that because the trial court found that defendant’s motion would result in a change of the children’s ECE, it “was required to consider all of the best-interest factors.” Nonetheless, it “specifically declined to assess factors (g), (j), and (k) after determining that they were ‘otherwise irrelevant’ to” its ruling. A “trial court is only permitted to state that a factor is irrelevant if the motion would not change the” ECE.

Ineffective assistance of counsel; Custody proceeding; Haller v Haller

The court held that because this case was a custody proceeding, not a child protective proceeding, defendant-mother did not have a constitutional right to counsel and thus, could not obtain relief based on an ineffective assistance of counsel claim. The case began with a child protective proceeding involving defendant and her child. Plaintiff-father declared his paternity of the child, who was placed with him. He later filed a complaint under the Child Custody Act, seeking sole legal and physical custody. Defendant’s “appointed counsel filed an appearance in the custody matter” but did not file an answer. Eventually the trial court granted plaintiff’s “motion for entry of a default and entered the proposed custody and parenting time order[.]” On appeal, defendant argued that she received ineffective assistance of counsel and that she may bring that claim because this was a child protective proceeding. But while this “custody action arose from the child protective proceeding, mother does not challenge the outcome of that proceeding.” She also did not “challenge the trial court’s entry of a default or its award of custody to father. Her sole issue on appeal is a claim of ineffective assistance in her custody case. Haller held that a party does not have a due-process right to counsel in custody proceedings[.]” Affirmed.

Involuntary mental-health treatment; Mental Health Code; 60-day hospitalization; MCL 330.1472a(1)(a); Due process; Right to notice & presence; MCL 330.1453; Waiver of attendance; MCL 330.1455(1); Counsel consultation; MCL 330.1454(7)-(9); Foreign language interpreter; MCR 1.111(B)(1)

The court held that respondent’s due-process rights were not violated when the civil-commitment hearing proceeded in his absence and without the interpreter remaining after he refused to participate. Petitioner sought 60 days of involuntary mental-health treatment for respondent, who had schizophrenia and a history of hospitalization, and respondent’s counsel stated at the hearing that respondent did not want to appear. The trial court confirmed respondent was not present in the hospital videoconference room, dismissed the Korean interpreter, heard testimony from the attending psychiatrist, and ordered treatment. On appeal, the court held that respondent’s presence was waived under MCL 330.1455(1) because “counsel placed the waiver on the record ‘in open court at a scheduled hearing,’” and his presence was also “considered waived” because he received notice, had the required consultation with counsel, and did not attend. The court rejected respondent’s claim that the trial court had to investigate the reason for his absence or obtain a knowing and voluntary waiver because those procedures are not required by the Mental Health Code, which “satisfy a respondent’s due-process rights as a matter of law.” It also held that the interpreter was unnecessary once respondent was absent because no real-time translation was needed for him to “meaningfully participate.” Affirmed.

Governmental immunity; Gross negligence; MCL 691.1407(2); MCL 691.1407(8)(a); MCR 2.116(C)(7); Ambulance collision; Emergency vehicle exemptions in the Michigan Vehicle Code; MCL 257.603(3) & (4); Accident reconstruction evidence

The court held that the trial court properly denied defendant-paramedic’s (Baugh) renewed motion for summary disposition because genuine issues of material fact remained as to whether his ambulance operation amounted to gross negligence. Plaintiff-estate alleged that defendant was grossly negligent when the ambulance he was driving was struck in an intersection and rolled over while transporting the decedent, who later died. On appeal, the court noted that the earlier appeal had described the “evidence [as] rife with discrepancies,” and held that many of those factual disputes still affected the gross-negligence claim. The court reasoned that the record created factual disputes about “whether the ambulance lights were engaged, the speed of the ambulance, and whether Baugh ensured the intersection was clear before proceeding through it.” Although defendants relied on their expert’s conclusion that the ambulance was traveling only 22 to 24 mph, plaintiff’s expert disputed the assumptions behind that analysis, and the court held that such disputes were “for a trier of fact to consider.” The court also held that the emergency-vehicle provisions did not require summary disposition because disputed facts remained about whether the ambulance lights were activated, whether defendant exceeded the speed limit, and whether he slowed “as necessary for safe operation.” Affirmed.

Governmental immunity; Gross negligence; MCL 691.1407(2); MCL 691.1407(8)(a); MCR 2.116(C)(7); Ambulance collision; Emergency vehicle exemptions in the Michigan Vehicle Code; MCL 257.603(3) & (4); Accident reconstruction evidence

The court held that the trial court properly denied defendant-paramedic’s (Baugh) renewed motion for summary disposition because genuine issues of material fact remained as to whether his ambulance operation amounted to gross negligence. Plaintiff-estate alleged that defendant was grossly negligent when the ambulance he was driving was struck in an intersection and rolled over while transporting the decedent, who later died. On appeal, the court noted that the earlier appeal had described the “evidence [as] rife with discrepancies,” and held that many of those factual disputes still affected the gross-negligence claim. The court reasoned that the record created factual disputes about “whether the ambulance lights were engaged, the speed of the ambulance, and whether Baugh ensured the intersection was clear before proceeding through it.” Although defendants relied on their expert’s conclusion that the ambulance was traveling only 22 to 24 mph, plaintiff’s expert disputed the assumptions behind that analysis, and the court held that such disputes were “for a trier of fact to consider.” The court also held that the emergency-vehicle provisions did not require summary disposition because disputed facts remained about whether the ambulance lights were activated, whether defendant exceeded the speed limit, and whether he slowed “as necessary for safe operation.” Affirmed.

Involuntary mental-health treatment; Mental Health Code; 60-day hospitalization; MCL 330.1472a(1)(a); Due process; Right to notice & presence; MCL 330.1453; Waiver of attendance; MCL 330.1455(1); Counsel consultation; MCL 330.1454(7)-(9); Foreign language interpreter; MCR 1.111(B)(1)

The court held that respondent’s due-process rights were not violated when the civil-commitment hearing proceeded in his absence and without the interpreter remaining after he refused to participate. Petitioner sought 60 days of involuntary mental-health treatment for respondent, who had schizophrenia and a history of hospitalization, and respondent’s counsel stated at the hearing that respondent did not want to appear. The trial court confirmed respondent was not present in the hospital videoconference room, dismissed the Korean interpreter, heard testimony from the attending psychiatrist, and ordered treatment. On appeal, the court held that respondent’s presence was waived under MCL 330.1455(1) because “counsel placed the waiver on the record ‘in open court at a scheduled hearing,’” and his presence was also “considered waived” because he received notice, had the required consultation with counsel, and did not attend. The court rejected respondent’s claim that the trial court had to investigate the reason for his absence or obtain a knowing and voluntary waiver because those procedures are not required by the Mental Health Code, which “satisfy a respondent’s due-process rights as a matter of law.” It also held that the interpreter was unnecessary once respondent was absent because no real-time translation was needed for him to “meaningfully participate.” Affirmed.

Preliminary hearing; Emergency removal; MCR 3.963(B); Probable cause; Substantial risk of harm; Ineffective assistance of counsel; Right of autonomy; McCoy v Louisiana; People v Klungle; Traditional ineffective-assistance analysis; In re Lovitt; Futile objection; People v Isrow

The court held that respondent-mother was not denied the effective assistance of counsel or an asserted right of autonomy when counsel did not oppose the child’s continued removal, and that she could not show prejudice because emergency removal was supported under MCR 3.963(B). DHHS petitioned for removal after meth was found in the mother’s home, she continued testing positive for meth, she did not engage in offered services, and she could not be located when DHHS attempted to meet with her. At the initial preliminary hearing, the mother lacked notice and was absent, so counsel took no position, and the trial court ordered emergency removal. At the continued hearing, the mother appeared, stipulated to probable cause, and counsel agreed that DHHS’s recommendations were appropriate. On appeal, the court noted there was no published authority extending the criminal “right of autonomy to maintain innocence” to child-protective proceedings, and it declined to decide the issue because the mother did not address whether its extension was warranted. Applying traditional ineffective-assistance principles, the court held that there was no record support that counsel overrode any defense objective respondent expressed. It also held that counsel was not deficient where the child had already been removed and placed with his maternal grandmother, the mother stipulated to probable cause, and counsel sought alternative placements. In any event, the mother failed to show prejudice because the caseworker testified that the child faced a “substantial risk of harm” from the mother’s continued meth use, lack of a reported sober caregiver, unknown adults in the home, and the mother’s statement to her probation officer that she would “catch[] a charge” if DHHS tried to remove the child. Affirmed.

Children’s best interests; In re MJC; Challenge to termination under § 19b(3)(j) while not challenging termination under § 19b(3)(m)(i); Child sexually abusive material (CSAM); First-degree criminal sexual conduct (CSC I)

Holding that the trial court did not clearly err in finding that terminating respondent-father’s parental rights was in the children’s best interests, the court affirmed the termination order. The case arose after law enforcement executed a search warrant at respondent’s family home in response to a tip alleging he possessed and distributed CSAM. “Law enforcement located 14 images and 16 videos depicting CSAM on” his cell phone. He was arrested on federal charges for possessing and distributing CSAM. On appeal, he first argued that the trial court erred in finding clear and convincing evidence to terminate his rights under § (j). But it also found that clear and convincing evidence supported termination under § (m)(i), a finding he did not challenge. Thus, any error as to § (j) would not entitle him “to relief because the trial court need only find that one statutory ground” was proven by clear and convincing evidence. As to the children’s best interests, his 1997 CSC I “conviction evidenced a history of predation against children, and his possession and distribution of CSAM in 2024 demonstrated that his predatory conduct remained ongoing. Not only did that conduct expose the children to the risk of being sexually exploited, but it also exposed [them] to emotional harm.” One of the children acknowledged in a forensic interview that he saw “‘a lot of’ CSAM on” respondent’s cell phone, and he “estimated that the girls depicted in the CSAM were between the ages of 6 and 12 years old—an age range both children fell within at the time of termination.” A clinician’s opinion about the children’s impressionability “and the link between” behavior they had exhibited and respondent’s conduct further supported the trial court’s conclusion that his “behavior posed a risk of physical, mental, and emotional harm to the children.” Its conclusion was also supported by his “failure to accept responsibility for or appreciate the impact on his children of his conduct,” indicating he was “unlikely to refrain from harmful conduct in the future.” In addition, their “need for permanency, stability, and finality” supported termination.