The right to receive a “free & appropriate public education” under the Individuals with Disabilities Education Act (IDEA); Parent’s right to sue; 20 USC § 1415(i)(2)(A); Whether parents can bring a suit under the IDEA without first pursuing an administrative hearing; Failure to exhaust the IDEA’s administrative remedies; § 1415(l); Exceptions; Whether there is a “systemic violations” exception to the exhaustion requirement; “Futility” exception

[This appeal was from the ED-MI.] In this putative class action, the court reversed the district court’s denial of defendant-Hamtramck school district’s motion to dismiss based on plaintiffs’ failure to exhaust the IDEA’s administrative remedies because without a failed due-process hearing, there is no cause of action under the IDEA. Plaintiffs are the parents of children with special needs who contend that the school district violated their children’s “‘right to receive a free and appropriate public education’ under the IDEA.” They turned to defendant-Michigan Department of Education, which put a corrective-action plan in place. None of the parents engaged in the IDEA’s “due process complaint process.” Instead, they sued the school district, the county education agency, and the Department under the IDEA, the Americans with Disabilities Act, the Rehabilitation Act, and Michigan law. They also sought injunctions under all the federal statutes, requesting “‘corrective measures’” and a special monitor. Defendants argued that plaintiffs failed to exhaust the IDEA’s administrative remedies where they did not request a due process hearing. The district court ruled that “the exhaustion requirement does not apply to ‘systemic’ failures by a school district—such as the inadequate resources and staffing alleged here—to comply with the IDEA.” The court disagreed, holding that the “existence of a due process hearing ‘decision’ is . . . the necessary preamble of a lawsuit brought under the IDEA. Without the injury created by a failed due process hearing, no cause of action under the IDEA exists.” Further, none of the few exceptions to the general rule existed in this case. No one claimed “the school district refused to provide a due process hearing for the parents. The parents do not deny that the IDEA claim is the crux of this lawsuit. And [they] seek injunctive relief in this case, a form of relief that the IDEA provides.” The court found that nothing in the text of the IDEA supported the proposed “sweeping ‘systemic violations’ exception—or for that matter class action exception—to the due process hearing requirement.” It also concluded its precedent did not support application of a “‘futility’ exception here.”

Bindover; Probable cause; MCL 766.13; People v Anderson; Resisting & obstructing; MCL 750.81d(1); People v Vandenberg; Lawful arrest; Disorderly conduct; Disturbing the peace; MCL 750.170; First Amendment; Content-neutral restriction; Holeton v City of Livonia

The court held that the district court did not abuse its discretion by binding defendant over because there was probable cause that he committed resisting and obstructing following a lawful arrest, and his First Amendment rights were not violated. Defendant was arrested after repeatedly yelling at officers around 2:00 am during a domestic-violence investigation and refusing commands to enter a police vehicle. On appeal, the court held that probable cause existed to arrest defendant for disturbing the peace and violating a local noise ordinance because officers testified that defendant yelled loudly enough to disturb the neighborhood. The court next held that the arrest was lawful because a warrantless arrest is permitted when a misdemeanor or ordinance violation occurs in an officer’s presence. It further held that the video evidence was sufficient to support a reasonable belief he violated the resisting-and-obstructing statute because defendant repeatedly failed to comply with lawful commands and physically resisted placement in the police vehicle while knowing the officers were police. The court also rejected defendant’s First Amendment argument, explaining that he was arrested for his conduct of creating a loud disturbance in a residential area at 2:00 am, not for the content of his speech, making the restriction content-neutral and constitutionally permissible. Affirmed.

Sentencing; Proportionality; Effect of a within-guidelines sentence; People v Posey (Posey I); Whether remand was required for rearticulation; People v Posey (On Remand)

The court held that the “trial court did not violate the principle of proportionality, impose an unreasonable sentence, or otherwise err” in imposing a top of the guidelines sentence in resentencing defendant. She was originally sentenced to 37-1/2 to 60 years for second-degree murder, 2 years for felony-firearm, and 2 to 5 years for CCW. The court previously remanded for correction of certain PRV and OV scores altering her guidelines range. The trial court resentenced her to the same sentences. She now argued that her sentence for the murder conviction was disproportionate, and that remand was required for rearticulation or resentencing because the trial court did not state sufficient reasoning for its sentence. The court disagreed. As to proportionality, her sentence was within the guidelines. Thus, she had the burden to rebut the presumption it was proportionate. The court held that she “failed to do so. There are no particular, unusual mitigating facts concerning the crime or defendant herself to suggest that the 37½-year minimum sentence for second-degree murder is unreasonable or disproportionate. Rather, this case involved a senseless murder about a parking space that could have been avoided with a minimal amount of reflection or self-control.” While she asserted “the trial court should have expressly considered her relative lack of criminal history and her institutional record,” the court noted “that ‘trial courts are not required to expressly or explicitly consider mitigating factors at sentencing.’” It also noted that “rebutting the presumption of proportionality requires something more compelling than the mere absence of aggravating facts concerning the offense or the offender.” It further found that no remand was required. A sentencing court does not need “‘to expressly explain why a within-guidelines sentence is reasonable and proportionate.’” In addition, “the trial court stated on the record that it reviewed its earlier sentencing and its comments, which indicates that it was incorporating the original sentencing to that extent. Thus, by doing so and by referencing the underlying facts of the crime during resentencing, [it] sufficiently explained why it imposed its within-guidelines sentence.” Affirmed.

Child custody; De novo hearing; MCL 552.507; Live evidence; MCR 3.215(F)(2); Butters v Butters; Child’s best interests; MCL 722.23; Pierron v Pierron; School placement; Legal custody; Parental cooperation; Plachta v Plachta; Future custody motions; Proper cause or change of circumstances; MCL 722.27(1)(c); Psychological evaluations; Filing precondition; Mildenberg v Mildenberg (Unpub)

In an issue of first impression, the court held that the trial court erred by requiring psychological evaluations before either party could file future custody or parenting-time motions. But it did not reversibly err in its evidentiary rulings or best-interest determinations. After plaintiff-mother moved for sole legal custody, a school change, and related parenting-time changes, the referee recommended that defendant-father have sole legal custody, that the child remain in the original school, and that both parties undergo psychological evaluations before future motions. The trial court “denied plaintiff’s objections and adopted the referee’s recommendation as its order.” On appeal, the court first held that the trial court did not reversibly err by limiting live evidence at the de novo hearing because MCR 3.215(F)(2) allows courts to control evidence “in the interest of judicial economy,” and any exclusion of additional weight-gain evidence was harmless given the “significant evidence regarding the child’s weight” already presented. The court next held that keeping the child in the original school was not against the great weight of the evidence because plaintiff’s attempted “interference with the child’s counselor cautioned against” placing the child where plaintiff had more influence, and there was insufficient evidence the child would be better situated in the new school. The court also upheld sole legal custody for defendant because the parties’ coparenting was “toxic[],” plaintiff showed an unwillingness to compromise, and defendant testified he would continue to consult plaintiff. But the court held that the psychological-evaluation precondition conflicted with MCL 722.27(1)(c), which permits modification upon “proper cause” or “change of circumstances.” The court explained that the trial court improperly placed “an obstacle before its doors” by adding a filing condition beyond the statute. Affirmed in part, reversed in part, and remanded.

Child custody; De novo hearing; MCL 552.507; Live evidence; MCR 3.215(F)(2); Butters v Butters; Child’s best interests; MCL 722.23; Pierron v Pierron; School placement; Legal custody; Parental cooperation; Plachta v Plachta; Future custody motions; Proper cause or change of circumstances; MCL 722.27(1)(c); Psychological evaluations; Filing precondition; Mildenberg v Mildenberg (Unpub)

In an issue of first impression, the court held that the trial court erred by requiring psychological evaluations before either party could file future custody or parenting-time motions. But it did not reversibly err in its evidentiary rulings or best-interest determinations. After plaintiff-mother moved for sole legal custody, a school change, and related parenting-time changes, the referee recommended that defendant-father have sole legal custody, that the child remain in the original school, and that both parties undergo psychological evaluations before future motions. The trial court “denied plaintiff’s objections and adopted the referee’s recommendation as its order.” On appeal, the court first held that the trial court did not reversibly err by limiting live evidence at the de novo hearing because MCR 3.215(F)(2) allows courts to control evidence “in the interest of judicial economy,” and any exclusion of additional weight-gain evidence was harmless given the “significant evidence regarding the child’s weight” already presented. The court next held that keeping the child in the original school was not against the great weight of the evidence because plaintiff’s attempted “interference with the child’s counselor cautioned against” placing the child where plaintiff had more influence, and there was insufficient evidence the child would be better situated in the new school. The court also upheld sole legal custody for defendant because the parties’ coparenting was “toxic[],” plaintiff showed an unwillingness to compromise, and defendant testified he would continue to consult plaintiff. But the court held that the psychological-evaluation precondition conflicted with MCL 722.27(1)(c), which permits modification upon “proper cause” or “change of circumstances.” The court explained that the trial court improperly placed “an obstacle before its doors” by adding a filing condition beyond the statute. Affirmed in part, reversed in part, and remanded.

Negligence related to a bounce house; Standard of care; Industry standards; Schultz v Consumers Power Co; Breach; Business invitee; Lane v B & J Theatres, Inc; Cause in fact; Proximate cause; Ray v Swager

The court held that plaintiff raised jury-submissible questions of breach and causation in his negligence action arising from a bounce-house injury. Plaintiff, an adult visitor at defendant’s indoor play facility, entered a Scooby-Doo bounce house with a child, performed one backflip successfully, then injured his neck while attempting a second one. The trial court granted summary disposition to defendant, concluding that plaintiff could not establish breach or proximate cause. On appeal, the court held that plaintiff was a business invitee and that defendant owed him a duty to exercise reasonable care for his protection. The court next held that a genuine issue of material fact existed as to breach because plaintiff presented industry standards requiring an inflatable amusement device to be supervised by a trained operator or attendant, and “‘custom and industry practices are relevant to the issue of due care[.]’” Although those standards were not negligence per se, they were evidence of the applicable standard of care. The court also held that plaintiff created a factual question on causation through his affidavit stating that, had an employee blown a whistle and told him flips were not allowed after the first flip, he would not have attempted the second. Because the injury was the general type of harm risked by failing to supervise and intervene, summary disposition was improper. Reversed and remanded.

The right to receive a “free & appropriate public education” under the Individuals with Disabilities Education Act (IDEA); Parent’s right to sue; 20 USC § 1415(i)(2)(A); Whether parents can bring a suit under the IDEA without first pursuing an administrative hearing; Failure to exhaust the IDEA’s administrative remedies; § 1415(l); Exceptions; Whether there is a “systemic violations” exception to the exhaustion requirement; “Futility” exception

[This appeal was from the ED-MI.] In this putative class action, the court reversed the district court’s denial of defendant-Hamtramck school district’s motion to dismiss based on plaintiffs’ failure to exhaust the IDEA’s administrative remedies because without a failed due-process hearing, there is no cause of action under the IDEA. Plaintiffs are the parents of children with special needs who contend that the school district violated their children’s “‘right to receive a free and appropriate public education’ under the IDEA.” They turned to defendant-Michigan Department of Education, which put a corrective-action plan in place. None of the parents engaged in the IDEA’s “due process complaint process.” Instead, they sued the school district, the county education agency, and the Department under the IDEA, the Americans with Disabilities Act, the Rehabilitation Act, and Michigan law. They also sought injunctions under all the federal statutes, requesting “‘corrective measures’” and a special monitor. Defendants argued that plaintiffs failed to exhaust the IDEA’s administrative remedies where they did not request a due process hearing. The district court ruled that “the exhaustion requirement does not apply to ‘systemic’ failures by a school district—such as the inadequate resources and staffing alleged here—to comply with the IDEA.” The court disagreed, holding that the “existence of a due process hearing ‘decision’ is . . . the necessary preamble of a lawsuit brought under the IDEA. Without the injury created by a failed due process hearing, no cause of action under the IDEA exists.” Further, none of the few exceptions to the general rule existed in this case. No one claimed “the school district refused to provide a due process hearing for the parents. The parents do not deny that the IDEA claim is the crux of this lawsuit. And [they] seek injunctive relief in this case, a form of relief that the IDEA provides.” The court found that nothing in the text of the IDEA supported the proposed “sweeping ‘systemic violations’ exception—or for that matter class action exception—to the due process hearing requirement.” It also concluded its precedent did not support application of a “‘futility’ exception here.”

Termination under § 19b(3)(c)(i); Reasonable reunification efforts; MCL 712A.18f; Parenting time; Americans with Disabilities Act (ADA) accommodations; In re Hicks/Brown; Children’s best interests; Relative placement & guardianship; In re Olive/Metts

The court held that the trial court did not err in finding that § (c)(i) supported termination, that reasonable reunification efforts were made, and that termination was in the children’s best interests. The DHHS sought termination after repeated removals stemming from respondent-mother’s physical abuse and ongoing mental-health and substance-abuse issues, and respondent-father’s failure to provide care or engage in services. On appeal, the court held that § (c)(i) was established because “the conditions that led to the adjudication continued to exist” and there was “no reasonable likelihood” of rectification within a reasonable time. It emphasized respondent-mother’s lack of emotional regulation and the psychologist’s finding that she “showed no empathy” and was “not recommended” as a custodial parent. The court next held that reasonable efforts were made, explaining that the DHHS’s approach to parenting time (allowing the children discretion) was appropriate where it was found that forced contact would be harmful. Further, the mother failed to show she “would have fared better if other services had been offered,” including regarding her alleged reading disability and cancer-related limitations. Finally, the court held that termination was in the children’s best interests, noting their weak or deteriorating bonds with respondents, their need for “permanency, stability, and finality,” and that their relative placement was meeting all needs and “willing to adopt.” In this case, the relative placement did not weigh against termination. Affirmed.

Due process; In re Rood; Proper service of the summons & notice of the combined hearing; MCL 712A.12; Personal service; In re Dearmon; In re Brown; MCR 3.920(B)(4); Alternative method when personal service is impracticable; MCL 712A.13; Waiver under MCR 3.920(H)

The court held that because respondent-mother “was not served in accordance with the statutory mandates, the trial court lacked jurisdiction and thus plainly erred by proceeding with the adjudication trial and termination hearing. The lack of jurisdiction renders all trial court proceedings void.” Thus, it vacated the trial court’s order of adjudication and order terminating her parental rights, and remanded. There was no evidence that she “was personally served with notice of the petition and the time and place for hearing. The proof of service reflects that the summons was delivered to and signed for by [her] grandmother at the address that respondent last reported to the trial court as her residence. The trial court accepted the DHHS’s argument that service was proper because the documents were signed by an adult residing at the same address as respondent. But service of a summons and notice of a termination proceeding on a parent is governed by MCL 712A.12, which requires that the parent be personally served.” Further, there was “no evidence that the DHHS moved for alternate service or that the trial court determined that personal service on respondent would be impracticable.” And she did not execute “a written waiver of service of process or notice of hearing.” The court rejected DHHS’s assertion that her “appearance at the adjudication trial and termination hearing and failure to raise objections” about a specific service defect constituted a waiver. A “‘probate court’s jurisdiction over children is derived solely from the state constitution and statutes.’ MCL 712A.12 plainly states that a parent must be personally served with notice of a termination proceeding hearing. Although the statute states that personal service may be waived in writing, it does not state that a person’s appearance and participation in a hearing constitutes a waiver of any defects in service unless objections regarding the specific defect are made. Thus, there is a conflict between MCL 712A.12 and MCR 3.920.” Although the “Supreme Court has the exclusive authority to determine rules of practice and procedure . . . it ‘is not authorized to enact court rules that establish, abrogate, or modify the substantive law.’ Because the issue of service is a jurisdictional one, MCL 712A.12 prevails.”

Challenges to the referee’s actions; Preliminary hearing reading of the allegations requirement; MCR 3.965(B)(4); Plain error review; In re MJC; Requirement to advise the parties of the right to judicial review; MCR 3.913(C)(1); Ineffective assistance of counsel; Prejudice; Due process; Unilateral suspension of parenting time by the DHHS; MCL 712A.13a(13); Children’s best interests

The court concluded that no plain error occurred related to respondents’ challenges to the referee’s actions, and rejected their ineffective assistance of counsel claims. While a plain error occurred when the DHHS unilaterally suspended respondent-father’s parenting time, it found that reversal was not warranted under the plain-error doctrine. Finally, it held that the trial court did not clearly err in finding that termination was in the children’s best interests. Respondent-mother asserted “the referee erred by failing to read the petition at the preliminary hearing and” several times by failing “to advise the parties that they could seek judicial review of the referee’s findings and decision.” The court noted that MCR 3.965(B)(4) deals with preliminary hearings and “the actual preliminary hearing did not occur on either of” two of the dates cited by the mother. As to the actual preliminary hearing, no “allegation was ever made in this case that respondents were unable to read. Throughout the case, [the] mother was zealously represented by counsel, and she later made multiple pleas of admission to allegations read by the court. Under these circumstances, no outcome-determinative plain error” was apparent as to the referee’s failure “to actually read the petition out loud or obtain a waiver of such a reading.” As to advising respondents of the right to judicial review, a plan error did occur in this regard at the preliminary hearing but the mother failed to show “how her substantial rights were affected.” She did not “explain what she would have argued in her request for judicial review and why such a request would likely have been successful.” As to the suspension of the father’s parenting time, he failed to show “an impact on his substantial rights such that reversal is required. This case took place over almost two years, and the unauthorized suspension of the video visitations lasted a little over a month before the [trial] court issued its proper findings. Moreover, and significantly, [he] participated minimally even when the video visitations were occurring. This was consistent with his sporadic attendance during the in-person visitations” early in the case. As to the children’s best interests, they “were doing very well in their foster home, and the foster parents wanted to adopt them. The children who were old enough to express an opinion wanted to stay in the foster home.” Affirmed.