Legal malpractice; Tribal sovereign immunity; Lewis v Clarke; Contract interpretation; Forum-selection clause; Franlink Inc v BACE Servs, Inc; Dismissal; Without prejudice; Turcheck v Amerifund Fin, Inc

The court concluded that plaintiff’s legal malpractice lawsuit “is not barred by tribal sovereign immunity, and further development of the record is required to determine whether the forum-selection clause requires plaintiff to bring this suit in tribal court.” Thus, it reversed the trial court’s judgment in part, vacated it in part, and remanded. Plaintiff is a wholly owned instrumentality of the Sault Ste. Marie Tribe of Chippewa Indians, defendant-law firm was the Tribe’s general counsel, and the individual defendants were attorneys at the firm who provided legal services under that arrangement. The trial court ruled that plaintiff’s suit was barred by tribal sovereign immunity because defendants, as general counsel, were agents of the Tribe, and alternatively ruled that a forum-selection clause in the general counsel agreement required dismissal of the action. The court held that when a party seeks summary disposition on grounds of tribal sovereign immunity, the motion may be brought under MCR 2.116(C)(4) in addition to or instead of MCR 2.116(C)(7). But it further held that sovereign immunity did not apply here because plaintiff was “not seeking relief from the sovereign but instead from defendants in their nonsovereign capacities for actions they took or failed to take in the scope of their work as counsel.” If plaintiff succeeds, the judgment will not operate against the Tribe or disturb tribal property. Thus, under Lewis, the real parties in interest were defendants, not the Tribe. As to the forum-selection issue, the court adopted the closely related doctrine as a matter of first impression and held that further development of the record was needed for the trial court to determine in the first instance whether plaintiff was sufficiently closely related to the Tribe to be bound by the forum-selection clause. The court also held that plaintiff’s argument under MCL 600.745, without more, did not meet its heavy burden of showing the clause should not be enforced. Finally, the court ruled that if dismissal is later based on the forum-selection clause, it must be without prejudice, not with prejudice.

Motion for a preliminary injunction against former franchisees; Denial based on the “unclean hands” doctrine; The “irreparable harm” factor; Temporary restraining order (TRO)

[This appeal was from the ED-MI.] The court affirmed the district court’s ruling granting in part and denying in part plaintiff-Fetch! a motion for a preliminary injunction, concluding there was clear corroborated evidence that by “‘aggressively recruiting’” defendants-franchisees while failing to fully disclose “the true and full nature of the business and expected financial performance, Fetch! exhibited unclean hands.” Fetch! sued several of its former franchisees for allegedly attempting to exit their franchise agreements, and steal trade secrets and customers. Defendants argued that Fetch! “deceived them” regarding the types of franchises available, and cited issues with customer-service, professionalism, and availability, among other things. They asserted they learned that Fetch! had bought back other unprofitable franchises that could not make royalty payments, paying only “‘pennies on the dollar’” for them. Eventually, Fetch! shut defendants out of its system without notice. The district court granted in part and denied in part Fetch!’s motion for a TRO, allowing defendants to continue to operate their competing businesses with certain restrictions. It later denied in part and granted in part the motion for a preliminary injunction, reiterating “what its TRO had ordered: that defendants-appellees stop using Fetch!’s trademarks and cease further communication with any existing Fetch! franchisee.” The court held that the “district court’s application of unclean hands was within the bounds of its discretion.” It found that Fetch!’s actions could “fairly ‘be said to transgress equitable standards of conduct.’” This was enough for the district “court to deny Fetch! equitable relief.” Further, based on the district court’s findings, it concluded the same was true as to “Fetch!’s decision to cut the 1.0 franchisees off from its system . . . .” The court explained that its decision was based on the unclean hands doctrine and that it disagreed with the district court’s analysis of the “irreparable injury” factor. Clarifying its precedent, it held that it was error to require “a heightened showing of irreparable harm when a movant seeks a preliminary injunction on claims that shall ‘be resolved in a pending arbitration.’” It also held that the district court erred by applying the “clear-and-convincing standard to show irreparable harm.” Rather, district courts “should adhere to the federal standard[,]” which requires a movant to “show that ‘irreparable injury is likely in the absence of an injunction.’” Further, it erred in ruling “that Fetch!’s harms were either in the past or too speculative.” The court “has consistently held that competitive injuries like those alleged here qualify as irreparable harm precisely because they are ‘difficult to calculate.’”

Race discrimination & retaliation claims under the Elliott-Larsen Civil Rights Act (ELCRA); Prima facie case of discrimination; Hazle v Ford Motor Co; Prima facie case of retaliation; El-Khalil v Oakwood Healthcare, Inc; Opportunity to amend the complaint under MCR 2.116(I)(5); Failure to offer a written amendment; MCR 2.118(A)(4); The Court of Claims (COC); Michigan State Police (MSP)

Holding that the COC properly dismissed plaintiff-MSP employee’s race discrimination and retaliation claims under the ELCRA and did not abuse its discretion in denying his request to amend his complaint, the court affirmed. Plaintiff, a white male who was previously a member of MSP’s canine division, “offered statements that purportedly reflected racial discrimination.” In 2019, defendant-Gasper (then the head of the MSP) “reportedly told command officers that the MSP was ‘too white’ and ‘too male.’ Plaintiff did not present an affidavit or deposition testimony from an individual that directly heard” the comment. Even if the court assumed “without deciding that these statements constituted admissions by a party-opponent,” plaintiff failed to “address the factors to determine whether the statements should be deemed stray remarks or reflected a pattern of bias. Analyzing the circumstances, Gasper’s comment was a stray remark.” He did not offer “evidence that a year after Gasper’s purported remark that he conducted the investigation into plaintiff.” Further, even if the court assumed “that Gasper performed the investigation into plaintiff’s canine incident, it was the prosecutor who had the discretion to charge plaintiff with a crime.” The court added that the comment about “the composition of the MSP reflected a position on the gender and race of the then-current demographics of the MSP. Plaintiff” offered no evidence as to whether the “MSP subsequently commenced recruitment efforts to reflect community populations addressing gender or race or took discriminatory action to eliminate white male police officers from MSP by contriving criminal charges against them and hiring nonwhite police officers in their stead.” Further, the “comment occurred before plaintiff’s [11/20] use of the canine.” As to his retaliation claim, he offered evidence that defendant-Grady (the current MSP director) “told another officer that plaintiff’s actions with his canine were reflective of the abusive treatment of black citizens by white police officers in the 1960s.” Even if the court assumed without deciding that the “statement was admissible and constituted direct evidence of retaliation, plaintiff did not present evidence that he was qualified to regain the position of trooper or canine handler.” Finally, the court noted that “he failed to submit a proposed amended complaint in writing.”

Discovery; Sanction for violation; MCR 3.922 & MCR 2.313; People v Dickinson; Dismissal factors; MCR 2.313; Vicencio v Ramirez

The court held that the trial court did not abuse its discretion by dismissing only the assault-by-strangulation count, rather than all counts, as a sanction for the prosecution’s discovery violations. Respondent, a juvenile, was charged in a delinquency petition with assault by strangulation and misdemeanor domestic violence arising from assaults on BC during their dating relationship. Before trial, the trial court found a discovery violation regarding the prosecution’s expert disclosures and limited the expert’s testimony, and during trial it learned that police photographs and a police recording of BC’s interview had not been disclosed. On appeal, the court held that trial courts have authority to impose sanctions for discovery violations, including dismissal, but such sanctions must be “proportionate and just” and dismissal is a “harsh remedy” to be used “only in extreme situations.” The court next found that the undisclosed materials were most prejudicial to the strangulation count because the recording captured BC’s account close in time to that incident and the police photographs documented injuries from that event. As to the two domestic-violence counts, however, the court found no indication that the undisclosed material was actually exculpatory or materially useful for impeachment, noting that Sergeant S testified BC gave him “the same information she shared in court” and that the disclosed police report already contained the allegations used to cross-examine her. The court also noted the violations were not shown to be willful and the prosecution proposed a recess to cure the problem. Affirmed.

Motion to dismiss; Search & seizure; Traffic stop; Reasonable suspicion. Kansas v Glover; People v Pagano; Distinguishing Navarette v California & People v Christie; Probable cause; MCL 257.648 (turn signal use); MCL 257.602 (failing to obey an officer’s directions); Speeding; Applicability of the exclusionary rule; Unreasonable interpretation of the law; People v Lucynski

Holding that the traffic stop leading to the charge against defendant was not supported by reasonable suspicion or probable cause, and that the exclusionary rule applied, the court reversed the trial court’s denial of her motion to dismiss. It determined that this case was “distinguishable from Navarette and Christie. Defendant took only two actions that indicated that she might have been driving while intoxicated: she drove straight through multiple intersections with her turn signal on, and she approached Officer [Z’s] cruiser from behind so quickly that he felt the need to change lanes. She may have scared another driver, but there was no erratic swerving or driving over lane markers as in Christie, . . . and defendant did not run anyone off the road like in Navarette.” And while the defendant in Christie also used his turn signal too long, the officer in that case saw the defendant activate it “early and eventually make a turn[,]” which indicated poor judgment or spatial orientation, “consistent with intoxication.” Here, Z saw “that defendant’s turn signal was already on when she was behind him, and she never made a turn before the traffic stop. There are plenty of sober explanations for this behavior[.]” And in Christie, the extended turn signal use was just one of several factors. Finding the facts in Pagano a closer match, the court held that “the extended use of a turn signal alone is not enough to establish reasonable suspicion that a driver is intoxicated and warrant the stop of a vehicle.” Thus, reasonable suspicion did not justify the stop. It also concluded there was no probable cause to believe that defendant committed any of the traffic violations suggested by the prosecution. “Neither MCL 257.648 nor any other statute addresses when a person must shut off the signal or refrain from using it.” MCL 257.602 did not apply because Z “was on a routine road patrol and was not directing traffic” when he conducted the stop. There also “was no evidence that defendant refused to comply with any of his orders.” In addition, “there was not probable cause to believe that [she] was not driving at a careful and prudent speed. Accordingly, there was not probable cause that [she] committed any traffic violations justifying the traffic stop.” And the exclusionary rule applied because Z’s “general inexperience as a police officer and unfamiliarity with traffic law resulted in honest but objectively unreasonable mistakes.” Remanded.

Habeas corpus; 28 USC § 2254; Whether petitioner waived his right to counsel on direct appeal; Whether his waiver was “knowing & intelligent”; Whether trial counsel was ineffective for failing to object to statements made during the prosecution’s closing argument; Procedurally defaulted claim; Cause; Whether the claim was “substantial”; Prejudice

The court held that petitioner-Gaither knowingly and intelligently waived his right to appellate counsel on direct appeal where he repeatedly expressed his wish to proceed pro se, and he was adequately informed of the consequences of his decision. Further, he procedurally defaulted his ineffective assistance of trial counsel claim. A state jury convicted Gaither of murder and kidnapping. All his post-conviction appeal efforts failed. He pursued his state-court appeal pro se but claimed that he actually did not waive his right to counsel on direct appeal. The court assumed that he had not procedurally defaulted on this claim, considered it on the merits, and held that he waived his right to appellate counsel. Over a span of several months, “Gaither ‘fervently and repeatedly asserted his right to represent himself’ in his filings[.]” The state also made him aware of the risks of self-representation. The Department of Public Advocacy “encouraged him to get a lawyer in a detailed letter that explained the many dangers of pro se appeals.” The court held that the Kentucky courts didn’t violate his constitutional rights by giving him “exactly what he wanted. And the district court didn’t err when it found that Gaither’s waiver of counsel was ‘knowing and intelligent.’” It then turned to his claim that his trial counsel was ineffective for failing to challenge statements made during the prosecution’s closing argument. It was “undisputed that Gaither procedurally defaulted on this claim.” And the court found that he could not overcome the default. The issue of cause came down to whether his ineffective assistance claim was “substantial.” The court agreed with the lower courts that it was not “because it ‘has no merit.’” It concluded the claim had no basis in fact or law. As his underlying claim lacked merit, he could not “show ‘cause’ for his default.” And the court also determined that he could not “show ‘actual prejudice’ either.” Thus, it affirmed the district court’s dismissal of his habeas petition.

Race discrimination & retaliation claims under the Elliott-Larsen Civil Rights Act (ELCRA); Prima facie case of discrimination; Hazle v Ford Motor Co; Prima facie case of retaliation; El-Khalil v Oakwood Healthcare, Inc; Opportunity to amend the complaint under MCR 2.116(I)(5); Failure to offer a written amendment; MCR 2.118(A)(4); The Court of Claims (COC); Michigan State Police (MSP)

Holding that the COC properly dismissed plaintiff-MSP employee’s race discrimination and retaliation claims under the ELCRA and did not abuse its discretion in denying his request to amend his complaint, the court affirmed. Plaintiff, a white male who was previously a member of MSP’s canine division, “offered statements that purportedly reflected racial discrimination.” In 2019, defendant-Gasper (then the head of the MSP) “reportedly told command officers that the MSP was ‘too white’ and ‘too male.’ Plaintiff did not present an affidavit or deposition testimony from an individual that directly heard” the comment. Even if the court assumed “without deciding that these statements constituted admissions by a party-opponent,” plaintiff failed to “address the factors to determine whether the statements should be deemed stray remarks or reflected a pattern of bias. Analyzing the circumstances, Gasper’s comment was a stray remark.” He did not offer “evidence that a year after Gasper’s purported remark that he conducted the investigation into plaintiff.” Further, even if the court assumed “that Gasper performed the investigation into plaintiff’s canine incident, it was the prosecutor who had the discretion to charge plaintiff with a crime.” The court added that the comment about “the composition of the MSP reflected a position on the gender and race of the then-current demographics of the MSP. Plaintiff” offered no evidence as to whether the “MSP subsequently commenced recruitment efforts to reflect community populations addressing gender or race or took discriminatory action to eliminate white male police officers from MSP by contriving criminal charges against them and hiring nonwhite police officers in their stead.” Further, the “comment occurred before plaintiff’s [11/20] use of the canine.” As to his retaliation claim, he offered evidence that defendant-Grady (the current MSP director) “told another officer that plaintiff’s actions with his canine were reflective of the abusive treatment of black citizens by white police officers in the 1960s.” Even if the court assumed without deciding that the “statement was admissible and constituted direct evidence of retaliation, plaintiff did not present evidence that he was qualified to regain the position of trooper or canine handler.” Finally, the court noted that “he failed to submit a proposed amended complaint in writing.”

Domicile change; MCL 722.31(4)(a); Rains v Rains; Great weight of the evidence; Parenting time preservation; MCL 722.31(4)(c); Mogle v Scriver; Domestic violence; MCL 722.31(4)(e); Vodvarka v Grasmeyer; Evidence; Motion in limine; Judicial disqualification; MCR 2.003(C); Cain v Michigan Dep’t of Corrs

The court held that the trial court properly denied plaintiff-mother’s motion to move the children’s domicile from Michigan to Texas because she did not prove that the statutory relocation factors supported the move. Plaintiff, who had primary physical custody, sought to relocate the parties’ two children to Houston after receiving a job offer there. She asserted that the move would improve her finances, provide better schools and services, and give her a stronger support network. The trial court denied the motion after hearing testimony about the Texas job, the parties’ parenting-time history, and plaintiff’s proposed relocation plan. It later denied reconsideration. On appeal, the court held that the trial court’s findings under MCL 722.31(4)(a) were not against the great weight of the evidence because, while the job would improve plaintiff’s quality of life, she did not present evidence showing that the move had the capacity to improve the children’s quality of life. The court noted that plaintiff did not identify what needed services the children lacked, offered only limited proof of better schooling, and did not substantiate the claimed Houston support system. The court next held that MCL 722.31(4)(c) did not favor relocation because the trial court reasonably doubted plaintiff’s future compliance with a long-distance parenting-time plan in light of her earlier “reluctant” compliance and prior contempt. The court also held that plaintiff did not show error in the trial court’s treatment of domestic violence under MCL 722.31(4)(e), or the denial without prejudice of her motion in limine. Finally, it rejected her judicial-bias claim, explaining that adverse rulings and clerical misattributions did not overcome the strong presumption of impartiality. Affirmed.

Discovery; Sanction for violation; MCR 3.922 & MCR 2.313; People v Dickinson; Dismissal factors; MCR 2.313; Vicencio v Ramirez

The court held that the trial court did not abuse its discretion by dismissing only the assault-by-strangulation count, rather than all counts, as a sanction for the prosecution’s discovery violations. Respondent, a juvenile, was charged in a delinquency petition with assault by strangulation and misdemeanor domestic violence arising from assaults on BC during their dating relationship. Before trial, the trial court found a discovery violation regarding the prosecution’s expert disclosures and limited the expert’s testimony, and during trial it learned that police photographs and a police recording of BC’s interview had not been disclosed. On appeal, the court held that trial courts have authority to impose sanctions for discovery violations, including dismissal, but such sanctions must be “proportionate and just” and dismissal is a “harsh remedy” to be used “only in extreme situations.” The court next found that the undisclosed materials were most prejudicial to the strangulation count because the recording captured BC’s account close in time to that incident and the police photographs documented injuries from that event. As to the two domestic-violence counts, however, the court found no indication that the undisclosed material was actually exculpatory or materially useful for impeachment, noting that Sergeant S testified BC gave him “the same information she shared in court” and that the disclosed police report already contained the allegations used to cross-examine her. The court also noted the violations were not shown to be willful and the prosecution proposed a recess to cure the problem. Affirmed.

Legal malpractice; Tribal sovereign immunity; Lewis v Clarke; Contract interpretation; Forum-selection clause; Franlink Inc v BACE Servs, Inc; Dismissal; Without prejudice; Turcheck v Amerifund Fin, Inc

The court concluded that plaintiff’s legal malpractice lawsuit “is not barred by tribal sovereign immunity, and further development of the record is required to determine whether the forum-selection clause requires plaintiff to bring this suit in tribal court.” Thus, it reversed the trial court’s judgment in part, vacated it in part, and remanded. Plaintiff is a wholly owned instrumentality of the Sault Ste. Marie Tribe of Chippewa Indians, defendant-law firm was the Tribe’s general counsel, and the individual defendants were attorneys at the firm who provided legal services under that arrangement. The trial court ruled that plaintiff’s suit was barred by tribal sovereign immunity because defendants, as general counsel, were agents of the Tribe, and alternatively ruled that a forum-selection clause in the general counsel agreement required dismissal of the action. The court held that when a party seeks summary disposition on grounds of tribal sovereign immunity, the motion may be brought under MCR 2.116(C)(4) in addition to or instead of MCR 2.116(C)(7). But it further held that sovereign immunity did not apply here because plaintiff was “not seeking relief from the sovereign but instead from defendants in their nonsovereign capacities for actions they took or failed to take in the scope of their work as counsel.” If plaintiff succeeds, the judgment will not operate against the Tribe or disturb tribal property. Thus, under Lewis, the real parties in interest were defendants, not the Tribe. As to the forum-selection issue, the court adopted the closely related doctrine as a matter of first impression and held that further development of the record was needed for the trial court to determine in the first instance whether plaintiff was sufficiently closely related to the Tribe to be bound by the forum-selection clause. The court also held that plaintiff’s argument under MCL 600.745, without more, did not meet its heavy burden of showing the clause should not be enforced. Finally, the court ruled that if dismissal is later based on the forum-selection clause, it must be without prejudice, not with prejudice.

Motion for a preliminary injunction against former franchisees; Denial based on the “unclean hands” doctrine; The “irreparable harm” factor; Temporary restraining order (TRO)

[This appeal was from the ED-MI.] The court affirmed the district court’s ruling granting in part and denying in part plaintiff-Fetch! a motion for a preliminary injunction, concluding there was clear corroborated evidence that by “‘aggressively recruiting’” defendants-franchisees while failing to fully disclose “the true and full nature of the business and expected financial performance, Fetch! exhibited unclean hands.” Fetch! sued several of its former franchisees for allegedly attempting to exit their franchise agreements, and steal trade secrets and customers. Defendants argued that Fetch! “deceived them” regarding the types of franchises available, and cited issues with customer-service, professionalism, and availability, among other things. They asserted they learned that Fetch! had bought back other unprofitable franchises that could not make royalty payments, paying only “‘pennies on the dollar’” for them. Eventually, Fetch! shut defendants out of its system without notice. The district court granted in part and denied in part Fetch!’s motion for a TRO, allowing defendants to continue to operate their competing businesses with certain restrictions. It later denied in part and granted in part the motion for a preliminary injunction, reiterating “what its TRO had ordered: that defendants-appellees stop using Fetch!’s trademarks and cease further communication with any existing Fetch! franchisee.” The court held that the “district court’s application of unclean hands was within the bounds of its discretion.” It found that Fetch!’s actions could “fairly ‘be said to transgress equitable standards of conduct.’” This was enough for the district “court to deny Fetch! equitable relief.” Further, based on the district court’s findings, it concluded the same was true as to “Fetch!’s decision to cut the 1.0 franchisees off from its system . . . .” The court explained that its decision was based on the unclean hands doctrine and that it disagreed with the district court’s analysis of the “irreparable injury” factor. Clarifying its precedent, it held that it was error to require “a heightened showing of irreparable harm when a movant seeks a preliminary injunction on claims that shall ‘be resolved in a pending arbitration.’” It also held that the district court erred by applying the “clear-and-convincing standard to show irreparable harm.” Rather, district courts “should adhere to the federal standard[,]” which requires a movant to “show that ‘irreparable injury is likely in the absence of an injunction.’” Further, it erred in ruling “that Fetch!’s harms were either in the past or too speculative.” The court “has consistently held that competitive injuries like those alleged here qualify as irreparable harm precisely because they are ‘difficult to calculate.’”

Termination under § 19b(3)(b)(i); “Indian child” status; Indian Child Welfare Act (ICWA); In re Fried; Tender-years statements; MCR 3.972(C)(2); In re Martin; Best interests; Anticipatory neglect; In re Mota; Michigan Indian Family Preservation Act (MIFPA)

The court held that the trial court properly terminated respondent-mother’s parental rights because the ICWA and MIFPA did not apply, clear and convincing evidence supported that § (b)(i) warranted termination, and termination was in the child’s (LAL) best interests. Respondent previously lost her rights to two older children. After one of those children, ABIM, came back into her care, ABIM disclosed that respondent physically abused her, including dragging her by the hair, injuring her in a bathtub, and telling her to lie about a black eye. The court first held that neither ICWA nor MIFPA applied because, at the time of the termination proceedings, the Lumbee Tribe of North Carolina was not a federally recognized tribe and thus, not an “Indian tribe” under either statute. The court next held that the referee properly relied on ABIM’s forensic-interview statements admitted under MCR 3.972(C)(2), together with medical records showing injuries “consistent with physical abuse,” to find that respondent physically abused a sibling of LAL and that there was a reasonable likelihood LAL would be injured or abused if returned to her care. On best interests, the court noted that ABIM reported respondent hit LAL “really hard.” It held that although respondent and LAL shared a bond, the other factors weighed in favor of termination, including respondent’s poor parenting ability, evidence of abuse, emotional instability, and LAL’s need for safety and stability. The court also pointed to respondent’s inappropriate behavior during visits and the evidence that LAL was doing well in foster care while his father worked toward reunification. Affirmed.

Statutory redemption period; Setting aside a foreclosure sale; Bryan v JPMorgan Chase Bank; Sweet Air Inv, Inc v Kenney

The court held that “plaintiffs lacked standing to challenge the validity of the foreclosure sale of the property, so the trial court did not err by granting defendant summary disposition under MCR 2.116(C)(10).” It also clarified that the expiration of the redemption period implicated standing, not legal capacity to sue. On appeal, plaintiffs argued that a foreclosure sale can be set aside even after expiration of the statutory redemption period if there is a showing of fraud or a substantial irregularity, and they contended that Bryan supported that position. The court disagreed, noting that “Bryan merely suggests that equity permits the extension of the statutory redemption period upon a clear showing of fraud or irregularity. Michigan precedent supports that proposition.” But no "decision has gone so far as to establish that equity permits the revival of the statutory redemption period. Beyond that, plaintiffs clearly stated in the trial court that they wanted relief even more drastic than revival of the statutory redemption period. As plaintiffs’ counsel put it: ‘[W]e’re not asking to revive the redemption period. We’re asking for the foreclosure to be set aside entirely.’ Significantly, no" cited authority “even contemplates such drastic relief.” Plaintiffs correctly observed that, in Sweet Air, “this Court ruled that ‘an excessive claim for the amount due warrants setting aside a foreclosure sale . . . if it is significantly excessive or in bad faith and an attempt was made to redeem the property.’” Plaintiffs focused “solely on the reference to a claim being ‘excessive or in bad faith,’ while entirely ignoring the separate requirement that plaintiffs attempted to redeem the property. Even if plaintiffs’ claim of a substantial irregularity were true, ‘it would not warrant setting aside the foreclosure sale because no effort was made to redeem’ the property.” The parties agreed “that the redemption period expired on” 7/11/24. The parties further agreed “that plaintiffs filed their complaint on [8/15/24], which was after the expiration of the redemption period. Therefore, because plaintiffs failed to exercise their right of redemption within the statutory redemption period, their rights in and to the property were extinguished, and they lacked standing to challenge the foreclosure sale.” Affirmed.

Termination at initial disposition without reasonable reunification efforts; In re Barber/Espinoza; “Aggravated circumstances”; MCL 712A.19a(2)(a); MCL 722.638(1) & (2); “Serious physical harm” (MCL 750.136b(1)(f)); “Child abuse” (MCL 722.622(g)); Claimed improper supervision & unfit home environment; Plain error review

In this case arising from one child accidentally shooting another with an unsecured gun in the home, the court held that the trial court plainly erred in terminating respondents’ parental rights at initial disposition without reasonable reunification efforts. None “of the statutory exceptions excusing such efforts were properly found to exist.” Thus, the court vacated the termination order and remanded. Respondents’ 21-month-old child (M) was shot by his then-six-year-old cousin while in respondents’ care. The court noted that parental rights may be terminated at initial disposition without reasonable reunification efforts “‘only in rare circumstances provided by statute.’” The trial court here “indicated in its written order following the preliminary hearing that it found aggravated circumstances under MCL 722.638(1) and (2) existed such that DHHS was not required to make reasonable efforts toward reunification. But [it] never articulated the factual basis for that apparent conclusion or how any such factual basis met the clear-and-convincing-evidence standard.” It failed to “mention or purport to address ‘aggravated circumstances’ at the preliminary hearing” and the DHHS “did not cite to MCL 712A.19a(2)(a) or MCL 722.638 in its petition requesting termination at initial disposition.” The written “order listed ‘[i]mproper supervision’ and ‘unfit home’ as the circumstances relieving DHHS of its duty to make reasonable efforts toward reunification. But neither of these circumstances is expressly listed as a basis for a judicial determination of aggravated circumstances under MCL 722.638(1)(a).” The court added that it was “not apparent how, in this case,” the underlying reasons for those findings “would constitute ‘abuse’ within the meaning of the statute.” It concluded that while M “may have suffered ‘serious physical harm,’ the trial court made no finding—and the present record does not indicate—that [M’s] injuries were ‘included’ in any ‘abuse’ of him or his siblings by respondents (or any other listed individual), as required by MCL 722.638(1)(a).” The court directed the DHHS on remand to “prepare a case service plan for each respondent and” that the trial court order “reasonable efforts be made toward reunification, unless or until a determination is properly sought and made on the record that such efforts are excused by law.”

Termination under § 19b(3)(b)(i); “Indian child” status; Indian Child Welfare Act (ICWA); In re Fried; Tender-years statements; MCR 3.972(C)(2); In re Martin; Best interests; Anticipatory neglect; In re Mota; Michigan Indian Family Preservation Act (MIFPA)

The court held that the trial court properly terminated respondent-mother’s parental rights because the ICWA and MIFPA did not apply, clear and convincing evidence supported that § (b)(i) warranted termination, and termination was in the child’s (LAL) best interests. Respondent previously lost her rights to two older children. After one of those children, ABIM, came back into her care, ABIM disclosed that respondent physically abused her, including dragging her by the hair, injuring her in a bathtub, and telling her to lie about a black eye. The court first held that neither ICWA nor MIFPA applied because, at the time of the termination proceedings, the Lumbee Tribe of North Carolina was not a federally recognized tribe and thus, not an “Indian tribe” under either statute. The court next held that the referee properly relied on ABIM’s forensic-interview statements admitted under MCR 3.972(C)(2), together with medical records showing injuries “consistent with physical abuse,” to find that respondent physically abused a sibling of LAL and that there was a reasonable likelihood LAL would be injured or abused if returned to her care. On best interests, the court noted that ABIM reported respondent hit LAL “really hard.” It held that although respondent and LAL shared a bond, the other factors weighed in favor of termination, including respondent’s poor parenting ability, evidence of abuse, emotional instability, and LAL’s need for safety and stability. The court also pointed to respondent’s inappropriate behavior during visits and the evidence that LAL was doing well in foster care while his father worked toward reunification. Affirmed.

§ 19b(3)(k)(ii); Applicability of MRE 410(a) (inadmissibility of nolo contendere plea & any statements made during the plea hearing); Hearsay; Judicial review of the referee’s findings; First-degree criminal sexual conduct (CSC I)

The court held that the trial court erred by finding that statutory grounds to terminate respondent-father’s parental rights to the children (RD and FD) “existed by clear and convincing, legally admissible evidence under” § (k)(ii). Because termination was sought “at the initial dispositional hearing and because legally admissible evidence was required to establish that a statutory ground for termination existed, MRE 410(a) applied.” As a result, “respondent’s nolo contendere plea and any statements made during the plea hearing were inadmissible for the purpose of showing that” he sexually abused his adopted daughter (M). Further, even if the testimony of M’s therapist was considered admissible, it did not establish that § (k)(ii) existed. Respondent also asserted that § (m)(i) could not “serve as a statutory ground for termination because it was not specifically listed in the petition, which [] was filed before his criminal conviction occurred, and because DHHS failed to file an amended petition to allege that ground.” The court concluded “that any defect in failing to list the statutory grounds for termination in the petition before placing them on the record at the termination hearing was technical and did not erode respondent’s due process right to notice or his opportunity to be heard when the petition identified with specificity all the allegations of neglect to support termination under the alternate grounds offered by DHHS at the termination hearing.” Considering the basis for his “no contest plea to the adjudication, DHHS’s proposed witness and exhibit lists for the termination hearing, and respondent’s attorney’s statement that he had no objection to the admission of the sentencing transcript from [his] criminal case or to the trial court taking judicial notice of [his] criminal judgment of sentence, [he] could not claim surprise when DHHS sought to use his” CSC I conviction “to terminate his parental rights under § (m)(i).” The court noted that “neither the referee nor the trial court addressed DHHS’s alternate grounds for termination” and as the court is not a fact-finding court, it left “it to the trial court to address whether” an alternate ground offered by DHHS was “established by clear and convincing evidence with legally admissible evidence at the termination hearing.” Reversed and remanded.

Child protective proceeding; Reasonable efforts; MCL 712A.19a(2); In re Hicks/Brown; Statutory grounds; MCL 712A.19b(3)(c)(i); In re Atchley; Children’s best interests; MCL 712A.19b(5); In re Sanborn

The court held that DHHS made reasonable reunification efforts, that clear and convincing evidence supported termination, and that termination was in the children’s best interests. Respondent-mother’s children were removed 6/23 after allegations of neglect and improper supervision, domestic violence in the home, and the youngest child’s birth positive for multiple illegal substances with withdrawal symptoms after the mother admitted using meth, cocaine, and marijuana during pregnancy. The trial court assumed jurisdiction in 1/24 and later terminated the mother’s parental rights after she continued to struggle with substance abuse despite services. On appeal, the court held that the DHHS made reasonable efforts because it provided a substance-abuse assessment, drug screens, parenting classes, domestic-violence treatment, and mental-health services, and the mother failed to show what additional bipolar-disorder services would have changed the outcome. The court noted it was “left to speculate” what other services the DHHS could have offered and that the mother had to both participate and benefit. It next held that the conditions of adjudication continued to exist because the mother made only minimal progress on substance abuse, repeatedly tested positive for multiple substances, stopped regular screening, and failed to complete recommended inpatient treatment. The court finally held that termination served the children’s best interests despite their bond with the mother and relative placement because the children needed permanence, had been in family care for most of the case, were bonded with their great aunt, and adoption was available. Affirmed.

§ 19b(3)(j); “Harm”

The court concluded that “the trial court did not commit clear error by finding a ground for termination of” respondent-mother’s parental rights to the child (WH) under § (j). Also, although she had “not challenged on appeal the trial court’s finding that termination of [her] parental rights was in the best interests of WH, a careful review of the record reveals that the trial court did not commit clear error in its finding on the best interests of WH.” The trial court decided that the mother’s “history of violent outbursts and derogatory comments regarding WH’s [Down Syndrome] condition would likely result in harm to him if he were returned to her care.” It described the mother as “actually violent.” Her behavior reflected “a recurring pattern of violence that did not improve by participating in services offered by the DHHS. Her communications with” H, the father of another child, suggested that mother “understood that she presented a risk of harm to her children.” The court held that because “of the likely impact of reunification on WH’s physical and mental health, we conclude that the trial court did not clearly err by finding that a statutory ground for termination existed under” § (j). Affirmed.