Right to counsel; Sixth Amendment; Defendant’s autonomy to maintain innocence; McCoy v Louisiana; Concession of guilt; Structural error; Distinguishing Florida v Nixon; Failure to consult; Lack of a contemporaneous objection; Preservation; Resisting or obstructing a police officer; Lawfulness of arrest; People v Moreno

The court held that trial counsel violated defendant’s Sixth Amendment right of autonomy by conceding his guilt of trespassing during closing argument without consulting him, where defendant had consistently maintained his innocence. Defendant was charged with trespass and resisting or obstructing officers after he refused to leave a home he believed he had a right to occupy, despite an eviction order. The court first held that McCoy applies outside capital cases because “the Sixth Amendment principles from the decision are not so limited,” and a defendant’s right to maintain innocence applies “in all criminal prosecutions.” Applying McCoy, the court held that counsel could not concede guilt because defendant’s “expressed pretrial defense objective was to maintain his innocence,” counsel knew defendant “would not admit to wrongdoing,” and defendant testified that he did not believe he was trespassing. The court rejected reliance on Nixon because that case applies when counsel consults the defendant about a concession strategy and the defendant remains unresponsive, while here “consultation never happened.” The court also rejected the view that defendant needed to contemporaneously object, explaining that “the right of autonomy to maintain innocence is not lost simply because a client fails to contemporaneously object,” especially where counsel first conceded guilt at closing and the trial court did not allow defendant to speak afterward. Finally, the court held that the structural error required reversal of all convictions because the trespass and resisting-or-obstructing charges were “interconnected,” and conceding trespass “necessarily undermined” any challenge to whether the officers acted lawfully in arresting him. The court reversed the Court of Appeals judgment, vacated defendant’s convictions, and remanded.

Right to counsel; Sixth Amendment; Defendant’s autonomy to maintain innocence; McCoy v Louisiana; Concession of guilt; Structural error; Distinguishing Florida v Nixon; Failure to consult; Lack of a contemporaneous objection; Preservation; Resisting or obstructing a police officer; Lawfulness of arrest; People v Moreno

The court held that trial counsel violated defendant’s Sixth Amendment right of autonomy by conceding his guilt of trespassing during closing argument without consulting him, where defendant had consistently maintained his innocence. Defendant was charged with trespass and resisting or obstructing officers after he refused to leave a home he believed he had a right to occupy, despite an eviction order. The court first held that McCoy applies outside capital cases because “the Sixth Amendment principles from the decision are not so limited,” and a defendant’s right to maintain innocence applies “in all criminal prosecutions.” Applying McCoy, the court held that counsel could not concede guilt because defendant’s “expressed pretrial defense objective was to maintain his innocence,” counsel knew defendant “would not admit to wrongdoing,” and defendant testified that he did not believe he was trespassing. The court rejected reliance on Nixon because that case applies when counsel consults the defendant about a concession strategy and the defendant remains unresponsive, while here “consultation never happened.” The court also rejected the view that defendant needed to contemporaneously object, explaining that “the right of autonomy to maintain innocence is not lost simply because a client fails to contemporaneously object,” especially where counsel first conceded guilt at closing and the trial court did not allow defendant to speak afterward. Finally, the court held that the structural error required reversal of all convictions because the trespass and resisting-or-obstructing charges were “interconnected,” and conceding trespass “necessarily undermined” any challenge to whether the officers acted lawfully in arresting him. The court reversed the Court of Appeals judgment, vacated defendant’s convictions, and remanded.

Reckless driving causing death; MCL 257.626; Willful or wanton disregard; People v Carll; Intoxication evidence; People v Marshall; Blood test refusal; MCL 257.625a(9); Prosecutorial error; Ineffective assistance of counsel; Sentencing; Proportionality; People v Posey; Blood alcohol content (BAC)

The court held that sufficient evidence supported defendant’s reckless-driving-causing-death conviction, that counsel was not ineffective for failing to object to references to defendant’s blood-test refusal, and that his within-guidelines sentences were reasonable. He was convicted after driving his neighbor’s convertible while intoxicated, losing control, and killing his passenger. The court first held that the jury could find willful or wanton disregard because the prosecution presented “a plethora of evidence that defendant was speeding and neglected to stop at a stop sign,” including eyewitness testimony that the car “flew right through the stop sign,” black-box evidence showing 63 mph shortly before impact, and defendant’s admissions that he drove about 65 mph. The court also reasoned that intoxication supported recklessness because alcohol affects perception and is relevant to whether defendant “proceeded in the face of known danger,” while his BAC was 0.18, more than twice the legal limit. The court next held that the prosecutor did not err by referencing defendant’s refusal to submit to a blood draw because the refusal was used to show “that defendant was offered such a test,” and the trial court instructed the jury that the evidence was “not evidence of guilt.” It also held counsel was not ineffective because counsel used the video to support a theory that the investigation was “missing critical evidence.” Finally, the court found that defendant failed to rebut the presumption that his within-guidelines sentences were proportionate because he cited no authority showing his veteran status, public service, or remorse constituted “unusual circumstances,” and the trial court considered “the seriousness of the offense,” defendant’s history, deterrence, rehabilitation, and protection of society. Affirmed.

Motion for relief from judgment; MCR 6.508(D)(3); Ineffective assistance of trial & appellate counsel; Prejudice

The court held that defendant could not establish the prejudice element of his ineffective assistance of trial and appellate counsel claims and thus, could not show the good cause required for his motion for relief from judgment. He pled guilty to first-degree child abuse and first-degree child abuse in the presence of another child. The trial court denied his motion for relief from judgment. On appeal, the court concluded that even if it accepted his claims “that trial counsel’s failure to object to the plea-taking process or the factual basis underlying his guilty plea, as well as appellate counsel’s failure to raise the issue in the prior appeal, was objectively unreasonable,” he failed to show he was prejudiced. He did not contend “on appeal that, had he been read his rights or had counsel objected to the trial court’s factual bases, he would not have” pled guilty. Instead, he asserted these errors required “reversal to give him the opportunity to revoke his plea or ‘allow it to stand’ in other words, defendant has not claimed that he would actually revoke his plea even if he was granted the relief he seeks.” Given that he “was not prejudiced by trial counsel’s failure to object to the trial court’s alleged errors, he cannot show that he was denied the effective assistance of counsel.” Further, because he failed to show “that trial counsel was ineffective, his appellate counsel’s failure to challenge the alleged defects in the plea proceedings was not objectively unreasonable.” As a result, he could not “establish good cause for failing to raise such grounds in his direct appeal[,]” and the trial court did not abuse its discretion in denying his motion. Affirmed.

Sentencing; Scoring of OV 14; MCL 777.44(1)(a) (leader in a multiple offender situation); People v Baskerville

Holding that the trial court did not err in scoring 10 points for OV 14 in sentencing defendant, the court affirmed. He pled guilty to larceny and illegally selling or using a financial transaction device after purchasing and using stolen credit card numbers. He was sentenced to concurrent terms of 28 months to 7.5 years for the larceny and 21 months to 6 years for the financial-transaction-device conviction. His only argument on appeal was that the trial court erred in scoring 10 points for OV 14. The court disagreed, concluding the trial court reasonably determined “that the unknown person who sold defendant the credit-card numbers was also an offender. This individual was clearly an offender because he or she could have also been charged with illegally selling a financial transaction device.” In addition, considering the whole “criminal transaction, the trial court reasonably concluded that as between defendant and the unknown seller, defendant was the leader. [He] was the one who actually used the credit-card numbers to commit the larceny; the seller simply enabled the crimes by offering the card numbers for sale. Defendant directed when, where, and how much to charge each card. In other words, [he] was the ‘primary causal’ agent in this crime, and it was defendant’s use of the card numbers that actually defrauded the victims.” Considering the whole criminal transaction, the court concluded that the trial court did not clearly err in finding “by a preponderance of the evidence that defendant was the leader in a situation involving multiple offenders.”

Sufficiency of the evidence for convictions of CSC I under MCL 750.520b(1)(a) & CSC II under MCL 750.520c(1)(b)(i); People v Bailey; People v Eisen; Credibility; People v Unger

Holding that there was sufficient evidence to support defendant’s CSC I and II convictions, the court affirmed. He was convicted of CSC I under MCL 750.520b(1)(a) (sexual penetration of a victim less than 13 years of age) and CSC II under MCL 750.520c(1)(b)(i) (sexual contact with a victim between the ages of 13 and 16 within the same household). The victim was his stepdaughter. At trial, his “daughter also testified to experiencing similar sexual contact defendant.” On appeal, he challenged his convictions based on the reliability of their testimonies. He claimed “that their memories were unreliable, and that they had reasons to fabricate the allegations against him.” He further asserted that their “statements were undermined by his expert witness testimony regarding inaccurate memories of sexual assault victims. But these arguments seek to undermine the credibility of the witnesses and do not address whether the witness testimony provided a sufficient evidentiary basis upon which the jury could find defendant guilty.” In addition, the court held that sufficient evidence supported both convictions. It is well-settled “‘that a complainant’s testimony regarding a defendant’s commission of sexual acts is sufficient evidence to support a’” CSC I conviction. And a victim’s testimony about “their age during the criminal sexual acts is also sufficient evidence to support the age element of a CSC conviction.” In this case, the “stepdaughter testified that defendant digitally penetrated her sometime after her 12th birthday but before she turned 13 years old. She also testified that [he] digitally penetrated her again after she turned 13 years old. Taken together, this testimony provided sufficient evidence from which the jury could conclude that defendant’s conduct satisfied the elements of MCL 750.520b(1)(a) and” 750.520c(1)(b)(i). The court noted that it will not interfere with a jury’s determinations as to the weight of the evidence and witness credibility.

Sentencing; Scoring of PRV 7; MCL 777.57(1)(b) (offender has 1 subsequent or concurrent felony conviction); MCL 777.57(2)(a); People v Jarvi; Michigan Sentencing Guidelines Manual (MSGM); Dictionary definitions

Holding that the trial court correctly scored PRV 7 at 10 points (although for the wrong reason), the court affirmed. There were two cases involved in this appeal – a 2021 case and a 2023 case. The charges in the 2021 case were still pending when defendant was charged in the 2023 case. He pled guilty to various charges in both cases the same day. He argued that the trial court erred in scoring “PRV 7 at 10 points in the 2023 case because: (1) [it] impermissibly relied on dismissed charges in the 2023 case as a concurrent conviction to support the score; and (2) his 2021 felony conviction was not concurrent with his 2023 conviction.” But the court found “no indication in the record that the trial court relied on any of the dismissed charges in the 2023 case as a concurrent conviction for purposes of scoring PRV 7 at 10 points. Rather, at the hearing on the motion to correct invalid sentence and for resentencing, [it] explicitly stated that it assessed PRV 7 at 10 points in sentencing on the 2023 case because it viewed defendant’s conviction in the 2021 case as a concurrent conviction.” PRV 7 is scored at “10 points where ‘[t]he offender has 1 subsequent or concurrent felony conviction.’” Based on language from Jarvi and definitions from the MSGM as well as both legal and lay dictionaries, the court found “that, if the defendant has one other felony conviction arising out of the same course of conduct as the sentencing offense, i.e., one ‘concurrent felony conviction,’ then PRV 7 is scored 10 points. Here the 2021 felony conviction for possession with intent to deliver less than 50 grams of cocaine” arose from conduct that occurred on or about 3/27/21, while his 2023 FIP “conviction arose from unrelated conduct that occurred on or about” 2/8/23. But “at the time of sentencing, the 2021 conviction was clearly a ‘subsequent felony conviction.’ MCL 777.57(2)(a) provides: ‘Score the appropriate point value if the offender was convicted of multiple felony counts or was convicted of a felony after the sentencing offense was committed.’” Given that he “was convicted of the 2021 offense after he committed the 2023 offense . . . pursuant to MCL 777.57(1)(b), 10 points should have been scored for PRV 7.”

Sentencing; Scoring of OV 19; MCL 777.49(c); People v Steele; People v Smith; Departure sentence; Reasonableness & proportionality; People v Steanhouse; Relevant factors; People v Dixon-Bey

The court held that the trial court did not err in scoring 10 points for OV 19, and that defendant's upward departure sentence was reasonable and proportionate. He pled no contest to embezzlement of $100,000 or more. He was resentenced to 60 to 240 months. As to the OV 19 score, “after the sentencing offense of embezzlement was completed and before resentencing, defendant’s wife engaged in a series of actions designed to intimidate the family members and employees of” the corporation from whom he had embezzled. She used “social media, robocalls, and podcasts to convey that her family was victimized and further alleged that [the corporation] engaged in criminal activity, violated federal law, and essentially engaged in a conspiracy with the prosecution and the court. In jail phone calls with defendant, she shared her plans and played the robocalls for him. [He] generally responded affirmatively to” her actions and encouraged her to continue. The court noted that he “learned that the robocalls were harassing his former coworkers. Yet, he did not seek to stop this conduct for the benefit of his former coworkers or for his own resentencing. The harassing conduct that [he] did not try to stop, but rather encouraged, caused the [] corporation to be publicly maligned. It occurred to such an extent that the corporation” changed its position from not seeking his incarceration to supporting “a lengthy term of imprisonment.” Given the extensive “calls and the trial court’s finding that defendant’s role was one of encouragement and, in essence, delight,” the court could not find that the trial court clearly erred as to OV 19. It also concluded that the trial court adequately explained why the 60-month minimum “was more proportionate than a different sentence within the guidelines range.” It specifically “noted that the guidelines ‘underscored’ white-collar crime, that [they] did not consider a corporation to be a victim, and that the exploitation of the corporation and the effect on its costs to consumers were not factored into the guidelines.” It further noted “that the duration of the embezzlement (nearly six years) and the amount taken (nearly $565,000) was not adequately considered.” Under the circumstances, the court could not conclude that the trial court abused its discretion. Affirmed.

Personal protection insurance (PIP) benefits; The No-Fault Act (NFA); MCL 500.3101(3)(l)(i); Twichel v MIC Gen Ins Corp; Ardt v Titan Ins Co; Chop v Zielinski; Security requirement; MCL 500.3101(1); Exclusion from receiving benefits under MCL 500.3113; Effect of the vehicle being titled in the name of a limited liability company (LLC)

The court held that plaintiff’s usage of the tractor-trailer involved in the accident made him an owner under MCL 500.3101(3)(l)(i). Because he lacked the security required by the NFA, he was precluded from receiving PIP benefits. The tractor was registered in Michigan, and the title was issued to a nonparty-LLC (Tornado Trucking), which was solely owned by plaintiff. “The title for the trailer was issued to” another LLC (Land Trucking), which leased Tornado Trucking’s tractor. “Tornado Trucking transported cargo for Land Trucking. Plaintiff was the only person who drove the tractor.” He sued multiple insurers after the accident, alleging one of them was first in priority to pay PIP benefits. In the trial court, defendant-Auto Club moved for summary disposition on the basis “plaintiff qualified as an ‘owner’ of the tractor, as defined in MCL 500.3101(3)(l)(i)[.]” The trial court denied the motion. The Court of Appeals, in a split, published decision, affirmed that ruling. On appeal, the court noted that, as “the sole member and agent of Tornado Trucking, plaintiff operated the tractor regularly and exclusively for at least six months before the accident.” It concluded that the facts established he “had the right to use the tractor in a manner that comported with ownership for a period of 30 days or more, thus coming within the definition of ‘owner’ under MCL 500.3101(3)(l)(i).” The court found that the Court of Appeals majority erred in focusing on his “actual use of the tractor—his business use—instead of analyzing the scope of his right to use the tractor. Nothing in MCL 500.3101(3)(l)(i) requires an owner to have ‘individual’ or ‘personal’ use of a vehicle, nor does [it] include any other qualifying or limiting language on the phrase ‘having the use’ thereof.” The court concluded that the Court of Appeals also erred in relying on the fact the tractor was titled and registered in the LLC’s name. While LLCs are separate legal entities, the LLC statutes cannot overcome the NFA’s specific language, “which prioritizes function over form by employing the broader language of ‘[a] person . . . having the use of a motor vehicle, under a lease or otherwise,’ without qualification.” The court reversed the Court of Appeals judgment in part and remanded the case to the trial court.

Motion to set aside a default & default judgment; MCR 2.603(D)(1); Affidavit requirements; Failure to conduct an evidentiary hearing as to damages; Jackson v Bulk AG Innovations, LLC

The court held that the trial court did not abuse its discretion in denying defendant-Gross’s motion to set aside the default and default judgment or in not conducting an evidentiary hearing as to damages. Plaintiff sued “defendant and others to recover unpaid property taxes and demolition costs that arose in 2014, 2015, and 2016” related to auctioned properties for which he was allegedly the winning bidder. As to setting aside the default, a “deputy submitted an affidavit of due diligence reflecting that he attempted to serve defendant at his last known address in Franklin on three different occasions.” The court noted that this address was among the properties for which alternate service was permitted under a court order. The “trial court’s order for alternate service required the deputy to tack or affix the pertinent documents to the door. And the deputy’s averment expressly stated that he posted the documents in accord with the trial court’s order.” Thus, the record did not support defendant’s “contention that it was unclear whether the deputy had complied with the” order. While defendant proffered his own affidavit, it “failed to delineate his residential address, whether he resided at the last known address when the deputy attempted service on three occasions, and whether he received the summons and complaint through the first-class mailing to his residential address in Franklin. Additionally, although [he] disputed his ownership of ‘most’ of the properties and thereby challenged responsibility for the taxes and demolition costs, he did not identify in the affidavit the specific properties that were transferred, to whom [they] were transferred, and documentation showing his lack of ownership interest.” As to the lack of an evidentiary hearing, “plaintiff submitted an itemized chart identifying each property, the outstanding taxes, the impact of subsequent auctions proceeds, and demolition offsets. Defendant’s response to the default judgment amount primarily addressed whether [he] was the responsible party. He continued to dispute an ownership interest at the pertinent time-period and whether plaintiff was in privity with” him. Under the circumstances, the court could not “conclude that the trial court clearly erred in its damage award.” Affirmed.

Dental malpractice; Statute of limitations; MCL 600.5805(8); Accrual; MCL 600.5838a; Notice of intent (NOI); MCL 600.2912b; Tolling; MCL 600.5856(c); Electronic filing; MCR 1.109(G)(5)(b); Rejected filing; Goff v Vitti

The court held that plaintiff’s dental-malpractice complaint was barred by the statute of limitations because her accepted complaint was filed too late. She alleged that defendant-dentist negligently placed dental implants on 3/28/22, served an NOI on 3/26/24, and filed a complaint that was accepted on 10/4/24. The court first held that the two-year limitations period applied because a medical-malpractice claim “accrues at the time of the act or omission” forming the claim, and absent tolling, plaintiff’s claim would have expired on 3/28/24. The court next found that the NOI tolled the limitations period, but only left plaintiff two days after the 182-day notice period expired on 9/24/24, meaning she had to file by 9/26/24. The court rejected plaintiff’s argument that her later complaint related back to attempted earlier e-filings because her original submissions were rejected after she forgot her password and filed documents with defects. Relying on Goff, the court 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 a rejected filing leaves “nothing in the record for the subsequent filing to relate back to.” The court further noted that plaintiff failed to show the late filing was not attributable to her own conduct because the trial court found her e-filing problems were “self-inflicted.” Affirmed.

Conservatorship; Common-law conversion; Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc; Waiver of statute of limitations affirmative defense; MCR 2.111(F); MCR 5.001(B)(2); Attorney Gen ex rel Dep’t of Envtl Quality v Bulk Petroleum Corp; Right result/wrong reason; Credibility

The court held that the probate court properly ordered respondent to return $87,406.53 transferred from his mother’s bank account into an account belonging to him. Respondent’s sister, acting as conservator, alleged respondent converted funds from their mother’s account, while respondent claimed the money was a gift. On appeal, the court first held that respondent waived his statute-of-limitations defense because it is an affirmative defense that “must be raised in a party’s first responsive pleading or by motion filed not later than [that] responsive pleading,” and he raised it for the first time at the evidentiary hearing. Although the probate court relied on tolling to reject the defense, the court affirmed because it “will not reverse when the probate court has reached the right result, even if it has done so for the wrong reasons.” The court next held that the probate court did not err by finding common-law conversion. It explained that conversion is “any distinct act of dominion wrongfully exerted over another’s personal property,” and the evidence showed someone transferred the funds from the mother’s account into respondent’s account (which also bore his mother’s name). The court reasoned that testimony from the conservator and a longtime friend undermined respondent’s gift theory, and the deposit slip bore respondent’s handwriting and listed his fiancée’s address. The probate court expressly found respondent’s testimony “not credible” and “self-serving.” Deferring to that credibility finding, the court found no basis to disturb the order requiring respondent to return the funds. Affirmed.

Dental malpractice; Statute of limitations; MCL 600.5805(8); Accrual; MCL 600.5838a; Notice of intent (NOI); MCL 600.2912b; Tolling; MCL 600.5856(c); Electronic filing; MCR 1.109(G)(5)(b); Rejected filing; Goff v Vitti

The court held that plaintiff’s dental-malpractice complaint was barred by the statute of limitations because her accepted complaint was filed too late. She alleged that defendant-dentist negligently placed dental implants on 3/28/22, served an NOI on 3/26/24, and filed a complaint that was accepted on 10/4/24. The court first held that the two-year limitations period applied because a medical-malpractice claim “accrues at the time of the act or omission” forming the claim, and absent tolling, plaintiff’s claim would have expired on 3/28/24. The court next found that the NOI tolled the limitations period, but only left plaintiff two days after the 182-day notice period expired on 9/24/24, meaning she had to file by 9/26/24. The court rejected plaintiff’s argument that her later complaint related back to attempted earlier e-filings because her original submissions were rejected after she forgot her password and filed documents with defects. Relying on Goff, the court 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 a rejected filing leaves “nothing in the record for the subsequent filing to relate back to.” The court further noted that plaintiff failed to show the late filing was not attributable to her own conduct because the trial court found her e-filing problems were “self-inflicted.” Affirmed.

Conservatorship; Common-law conversion; Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc; Waiver of statute of limitations affirmative defense; MCR 2.111(F); MCR 5.001(B)(2); Attorney Gen ex rel Dep’t of Envtl Quality v Bulk Petroleum Corp; Right result/wrong reason; Credibility

The court held that the probate court properly ordered respondent to return $87,406.53 transferred from his mother’s bank account into an account belonging to him. Respondent’s sister, acting as conservator, alleged respondent converted funds from their mother’s account, while respondent claimed the money was a gift. On appeal, the court first held that respondent waived his statute-of-limitations defense because it is an affirmative defense that “must be raised in a party’s first responsive pleading or by motion filed not later than [that] responsive pleading,” and he raised it for the first time at the evidentiary hearing. Although the probate court relied on tolling to reject the defense, the court affirmed because it “will not reverse when the probate court has reached the right result, even if it has done so for the wrong reasons.” The court next held that the probate court did not err by finding common-law conversion. It explained that conversion is “any distinct act of dominion wrongfully exerted over another’s personal property,” and the evidence showed someone transferred the funds from the mother’s account into respondent’s account (which also bore his mother’s name). The court reasoned that testimony from the conservator and a longtime friend undermined respondent’s gift theory, and the deposit slip bore respondent’s handwriting and listed his fiancée’s address. The probate court expressly found respondent’s testimony “not credible” and “self-serving.” Deferring to that credibility finding, the court found no basis to disturb the order requiring respondent to return the funds. Affirmed.

Juvenile guardianship; MCL 712A.19a(9)(c); Reasonable reunification efforts; MCL 712A.18f; Parenting time; MCL 712A.13a(13); Aggravated circumstances; MCL 722.638; Failure to benefit from services; In re Frey; Best interests; In re COH; Child Custody Act; MCL 722.23

The court held that the trial court did not err by finding reasonable reunification efforts and did not abuse its discretion by establishing a guardianship for the child with her biological maternal grandmother. The child was removed after hospital staff determined that her injuries and severe malnutrition were caused by abuse rather than self-injury. The court first held that the record supported aggravated circumstances because the child was subjected to “battering, torture, and other severe physical abuse,” and respondents’ starvation of the child caused malnutrition “so severe as to be life-threating.” But it also found that the DHHS made reasonable efforts because it provided Families First, community resources, family team meetings, parenting classes, therapy, counseling, domestic-violence and anger-management classes, and counseling for the child. The court reasoned that respondents failed to benefit because they “persisted in the fiction” that the child injured herself and lied about the abuse. The court next held that the trial court properly suspended parenting time and family therapy because MCL 712A.13a(13) permits suspension when even supervised parenting time may harm the child, and the record showed contact would have been “damaging to [the child’s] mental health.” Finally, the court found that guardianship was in the child’s best interests because she was thriving with her grandmother, doing well in school, and the trial court found guardianship served “stability,” “guidance,” and “schooling.” It also emphasized the child was “really, really thriving” without contact with respondents or siblings (contact that she refused). Affirmed.

Termination at initial disposition; Reasonable efforts; Aggravated circumstances; MCL 712A.19a(2)(a); MCL 722.638(1)(a)(ii); In re Simonetta; Termination under § 19b(3)(k)(ii); Anticipatory neglect; In re Kellogg; Children’s best interests; Relative placement; In re Olive/Metts

The court held that the trial court did not err by terminating respondent-father’s parental rights at the initial disposition without requiring reasonable reunification efforts. Respondent sexually abused the children’s half-sibling, PR. The court explained that reasonable efforts are not required when aggravated circumstances exist, including “criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.” The court deferred to the trial court’s credibility finding that PR testified credibly and respondent was “just simply not credible,” noting the trial court had “no doubt” respondent “groomed” PR and carried on a sexual relationship with her “for a long period of time.” The court next held that § (k)(ii) supported termination because PR gave “extensive testimony concerning respondent’s sexual penetration of her,” and the trial court found “the risk that one or both of these children could also be sexually abused” was “unreasonably high.” Relying on anticipatory neglect, the court reasoned that a parent’s treatment of one child is “probative of how that parent may treat other children.” Finally, the court held that termination was in the children’s best interests because the trial court considered their bond with respondent, safety, relative placement, future risk, and excitement about reunification with their mother. The court also rejected respondent’s relative-placement argument because the trial court expressly found placement with the mother, even though she was a relative, did not “work against” termination. Affirmed.

Worker’s Disability Compensation Act (WDCA); Retaliatory discharge; MCL 418.301(13); Prima facie case; Cuddington v United Health Servs, Inc; Causation; West v General Motors Corp; McDonnell Douglas Burdine framework; Pretext; Feick v Monroe Cnty; Summary disposition

The court held that genuine issues of material fact existed as to whether defendant terminated plaintiff in retaliation for exercising rights under the WDCA. Plaintiff injured his shoulder at work, filed a worker’s compensation claim, continued working under restrictions, later scheduled surgery, and was terminated after defendant cited documentation errors. The court first held that plaintiff presented enough evidence of causation to survive summary disposition because he showed “more than merely a coincidence in time” between protected activity and termination. The court reasoned that defendant knew of plaintiff’s surgery and leave, that upper management was not alerted to the errors until after the HR manager texted that plaintiff “had to have the repair so he is off for 4 weeks,” and that a jury could find the worker’s compensation claim was “a motivating factor.” The court next found that factual issues existed as to pretext because defendant identified different numbers of documentation errors at different times, creating “a genuine issue of material fact as to what errors defendant actually relied on” and whether the errors “were not the actual motivation” for termination. The court also held that a jury could question whether plaintiff’s 4/23 final warning for intentional falsification was comparable to the later documentation mistakes because the record conflicted as to whether general omissions were treated as seriously as falsification. Because a rational factfinder could infer that the stated reasons were insufficient or not the actual reason for termination, summary disposition was improper. Vacated and remanded.