The trial court abused its discretion when it failed to hold an evidentiary hearing.

In Cieslinski v Cieslinski, Unpub Per Curiam Opin of the Court of Appeals, (#319609, 11/13/2014) the trial court abused its discretion when it failed to hold an evidentiary hearing after one party in essence alleged that the other party fraudulently obtained the consent judgment. 

A consent judgment is the product of an agreement between the parties.  Generally, a party may obtain relief from a settlement agreement for mutual mistake, fraud, unconscionable advantage, or ignorance of a material term of the settlement agreement. MCR 2.612(C)(1)(c) allows a party to move the trial court to invalidate a judgment of divorce that was obtained on the basis of fraud. A party alleges fraud when he or she alleges (1) that the charged party made a material misrepresentation; (2) that it was false; (3) that when he or she made it he or she knew it was false, or made it recklessly, without any knowledge of its truth as a positive assertion; (4) that he or she made it with the intention that is should be acted upon by the other party; (5) that the other party acted in reliance upon it; and (6) that the other party thereby suffered injury.

In Kiefer v Kiefer, 212 Mich App 176, 183 (1995) this Court held that the trial court abuses its discretion when a party alleges fraud in a consent judgment but the trial court fails to hold an evidentiary hearing. The existence of a consent judgment does not, in and of itself, preclude the existence of fraud.  An evidentiary hearing is necessary to determine whether sufficient evidence of fraud exists.

8th Circuit Montcalm County Probationers Achieve Success with Structure Manual for Success

Introduction/Eligibility

The 8^th Circuit Probationers Achieve Success with Structure (P.A.S.S.) Specialty Court is for people who have been convicted of a crime with circumstances suggesting a need for comprehensive supervision and/or expanded services. Unless agreed by the parties, the court does not get involved unless and until a defendant is convicted by trial or plea of a criminal offense.  All pre-conviction proceedings remain as otherwise allowed by statute, case law or Supreme Court directive; and during the P.A.S.S. Specialty Court process the people and defendant retain all rights allowed under state and federal law.

The P.A.S.S. Specialty Court program is accessible regardless of race, religion, sex, gender status, ethnic origin, sexual orientation, marital status, age, mental or physical disability.

The purpose of the Probationers Achieve Success with Structure (P.A.S.S.) Specialty Court is to promote individual success, while maintaining compliance with probation rules and expectations by providing treatment, educational, social and employment services to probationers, increased supervision, and immediate, consistent, and predictable sanctions to at-risk probationers while reducing recidivism and maintaining community safety. 

PROGRAM DESCRIPTION

The P.A.S.S. is modeled in part after the Georgia Justice Project, Hawaii’s Opportunity Probation with Enforcement program, the Michigan Specialty Court concept and Prison Re-Entry Program to provide treatment, educational, social and employment services to probationers, increased supervision and swift and sure sanctions. 

Too often probation officers do not have the resources and tools to address the individual needs of their probationers.  Too often the missing component is education, employment and alternatives to criminal behavior.  The social services aspect would endeavor to provide probationers the social resources needed to regain positive control in their lives.  It may include weekly meetings, individual counseling, drug testing and any other programs necessary to help the client.  The educational and employment support services’ component would partner with other governmental entities, the educational and business community to provide education and training, assist with resume writing, employment interview preparation, providing contacts and working with the above entities to provide actual job opportunities. 

The wrap around approach will be complemented by the Department of Corrections and other local and state entities working with local law enforcement to ensure maximum supervision, including home visits, drug testing and role modeling.  Court involvement will provide any necessary sanctions, and incorporate the techniques utilized by the specialty courts. 

The program is not designed for mass implementation, but for probationers committed to changing their lifestyle and becoming productive members of the community.  Enrollment requires a fairly intensive interview process and a provisional trial period.

The P.A.S.S. Specialty Court has as its core two concepts:  1) Swift & Sure Sanctions (SSS) and 2) Adult Intensive Probation (AIP).  Both are specialty court concepts for probationers in need of more intensive supervision while on regular probation.  The idea being to achieve compliance with probationary terms, thereby enhancing the success of the probation process and, ultimately, reducing recidivism within the community and maintaining community safety.  Both concepts provide the following:

 

• A tailored, even-handed approach to praise and sanction as necessary;
• The expectation of compliance through quick, immediate and predictable sanctions;
• The expectation of well-timed, positive feedback and reinforcement from the Judge, Probation, P.A.S.S. team members and service/other entities for compliance;
• The use of incentives to encourage continued probation compliance and growth;
• A collaborative effort between the probation department, Judge, State and community entities, P.A.S.S. team members and local law enforcement, attorneys, and the county correction system to provide educational, social and employment services, and early intervention, while promoting safety in the community.

The SSS’s primary focus is compliance, with expedited sanctions for non-compliance. Probationers with drug or alcohol related offenses and/or have an identified drug or alcohol issue must submit to random drug and alcohol testing.  The AIP concept in conjunction with the Swift & Sure Sanction approach contemplates increased supervision of the probationer, with sanctions tailored individually to each situation and probationer to make the most impact. 

All terms and expectations of probation, including reporting and any other expectations, are subject to P.A.S.S. team assessment and review.  The probationer is required to attend in- court sessions, as requested by probation/judge/the P.A.S.S. team.   Law enforcement, educational, social, community and business representatives work together to provide supervision, educational, social and employment services and opportunities for P.A.S.S. probationers.  A goal being even to continue services during any incarceration. 

CONFIDENTIALITY

Probationers will be required to sign a release of information which allows treatment providers, employers, educators, other state and local entities to communicate/give information to the P.A.S.S. Specialty Court Team.  P.A.S.S. Team members will have regular contact with the above entities to discuss progress and compliance.  This lack of confidentiality/open communication allows for maximum, effective and consistent guidance.  It remains, however, the objective of this program to protect the privacy of  P.A.S.S. probationers to maintain the integrity and safety of the group.  Whenever possible personal issues discussed within the P.A.S.S. Specialty Court groups and Hearings should be kept private.

ADMISSIONS/ELIGIBILITY CRITERIA

 Probationers referred for the P.A.S.S. Program must meet the following criteria at the time of sentencing into the program:

• Probationer must be at least 17 years of age and sentenced on a felony offense.
• Probationers must have a high risk to reoffend; difficulty cooperating with authority; or history of two (2) or more probation failures due to noncompliance of probation or like history of two or more instances in school, work or family demonstrating a need for intensive supervision.
• Probationer must reside in Montcalm County or be able to be supervised by the P.A.S.S. Specialty Court.
• Probationer must have a demonstrated need for services (substance abuse, mental health, counseling, transportation, education, medical, employment, supervision, etc.) or other special circumstances.

REFERRAL PROCESS

 

A P.A.S.S. Program Referral Form must be completed by the referring Probation Agent/Officer, Attorney, Family member or other community representative.  The completed referral form, and the most recent Pre-Sentencing Investigation Report (PSI), Sentencing Information Report (SIR) and current Probation Order, is then forwarded to the P.A.S.S. team for screening.   Individual interviews may be requested.

If placed into the program, the probationer will be ordered to comply with all the rules, regulations, and expectations of the program, including all terms of probation and any special conditions…,” via amended probation order. 

 

ADULT INTENSIVE PROBATION (A.I.P.) SUPERVISION REQUIREMENTS

 

The following Adult Intensive Probation (A.I.P.) Supervision provisions shall apply to P.A.S.S. probationers:

In Person                              One per week

Home Visits                          Contact may be with the defendant and/or a resident   
                                               of his/her household.  Two (2) contacts per month.

Employment Status             Discuss with probationer one time per week.
                                               Collateral contact with employer or training provider, 
                                               or paystub verification per pay period received as
                                               soon as possible, after probationer obtains or enrolls,
                                               if appropriate.

LEIN Check                         Every other month, including driving record check.

                                               Five (5) days prior to discharge from Swift and Sure
                                               Probation Program date.

Restitution Review               Discuss with probationer during report day

Payment Review                   Discuss with probationer during report day

MAPS (Michigan                  As needed

Automated Prescription
System)                                  

In Court Sessions                  As needed            

Drug                                      As needed

Alcohol testing                                

Scram/tether                         As needed  

REPORT DAYS

Participants in the P.A.S.S. Specialty Court are expected to report to Probation on the assigned day and time.  P.A.S.S. probationers must bring any treatment, testing, employment, residence, community service, or self-help verification requested by the Probation Officer.  Any changes in the probationer’s life, such as address, roommates, employment, medication, etc., must be disclosed to your Probation Officer at report.

EMPLOYMENT AND/OR EDUCATION

 Participants in the P.A.S.S. Specialty Court may be required to obtain/maintain employment or enroll in an educational program to the best of one’s ability.  Probationers may also be required to perform community service.

PBT’s AND URINE SCREENS

Participants in the P.A.S.S. Specialty Court cannot use or possess alcohol or any controlled substance or substance for hallucinatory purposes without a court order, and may be required to submit to PBT’s and/or urine screens while in this program.   Any altered samples or diluted samples will be considered positive.  The issue of a missed PBT or urine screen will be addressed at the next review hearing.  A positive PBT/urine screen may result in immediate jail. 

P.A.S.S. TEAM EXPECTATIONS

P.A.S.S. team members are expected to abide by the following rules while in any Courtroom, in the Courthouse, or when dealing with probationers:

• Do not discuss any confidential information in public areas, hallways, or off-record in the Courtrooms.  If you must discuss client/confidential information, you must do so in a conference room.  It is unacceptable to do so while sitting in the gallery of a Courtroom.
• Present professionally at all times.
• Disclose any conflicts or possible conflicts immediately when known or believed to be possible.
• Educate the community and stake holders about the program.
• Assure program success internally and externally through team building.
• Stay abreast of service providers and programs they offer.
• Attend Team meetings.
• Assist with probationer resources, including but not limited to housing, transportation, treatment or other programs/needs as requested by the judge or probation agent.
• Assist with Community Service coordination, placement and tracking as requested.
• Provide consistent, verbal praise and recognition to probationers who comply with probation.
• Review and recommend sanctions consistent with the program’s philosophy for violations.

P.A. 200, effective June 24, 2014, changes the state's mental health laws to include substance abuse as a possible cause for involuntary treatment.

P.A. 200, effective June 24, 2014, changes the state's mental health laws to include substance abuse as a possible cause for involuntary treatment. A person's family member or a health professional can petition a court for involuntary treatment. The person would be guaranteed an independent expert evaluation and legal counsel. A judge could order treatment for up to 72 hours or until a hearing.

--------------------------------------------------------

CONTENT

The bill amends Chapter 2A (Substance Abuse Disorder Services) of the Mental Health Code to allow a court to order involuntary treatment for an adult who had a substance use disorder, under particular circumstances. The legislations allows for the following:

 --    Establish procedures and criteria for a person's spouse, family member, or guardian, or a health professional to petition a court to initiate proceedings for involuntary treatment.

 --    Require a petition to include a certified statement of a health professional who had examined the respondent to the petition (the person with the alleged disorder) or a statement that the respondent refused to undergo an examination.

 --    Require a court to examine a petitioner under oath, and schedule a hearing if it found probable cause to believe the respondent could reasonably benefit from treatment.

 --    Specify that a respondent could retain counsel or, if indigent, have court-appointed counsel at public expense.

 --    Allow a respondent to have an independent expert evaluation of his or her physical and mental condition conducted for the court hearing.

 --    Allow the court to order involuntary treatment if it found by clear and convincing evidence that the respondent had a substance use disorder; he or she presented an imminent danger or threat of danger to self, family, or others, or there was a substantial likelihood of the threat of danger in the near future; and he or she could reasonably benefit from treatment.

 --    Allow the court to order involuntary treatment for up to 72 hours or until a hearing.

 --    Require a person's release from involuntary treatment immediately when the court-ordered period expired.

 --    Specify that a respondent who failed to undergo and complete ordered treatment would be in contempt of court.

 --    Prohibit a respondent from being held in jail pending transportation to a program or evaluation unless the court previously found him or her in contempt of court for failure to undergo treatment or to appear at an ordered examination.

 --    Prescribe a misdemeanor penalty for certain violations related to filing a petition.

 --    Require a community mental health entity designated by the Department of Community Health to give the court a list of programs that were able and willing to take respondents ordered held for treatment.

Conclusory allegations insufficient to creat a genuine issue of material fact.

In Wiedyk v Poisson, __ Mich __ (#149431, 10/22/2014) the Supreme Court reversed the judgment of the Court of Appeals and reinstated the Circuit Court’s judgment for the defendants. The trial court was not required to expressly rule on whether the plaintiff’s attempt to expand the record on remand with his affidavit was proper.  Even if the affidavit was considered by the trial court, it did not err in determining that summary disposition for the defendants was warranted. When considered in light of the record developed in this case, the affidavit’s conclusory allegations regarding the extent of the plaintiff’s injuries and impairments, nearly all of which the plaintiff suffered prior to the accident in question, were insufficient to create a genuine issue of material fact as to whether the plaintiff’s ability to lead his pre-accident lifestyle was impacted by the 2005 accident. Quinto v Cross & Peters Co, 451 Mich 358, 362, 371-372 (1996); McCormick v Carrier, 487 Mich 180, 202 (2010); see also Bergen v Baker, 264 Mich App 376, 389  (2004).

Jurisdiction is with the Circuit Court for interlocutoy appeals of a probate court interlocutory order.

In Button v Oakland Livingston Human Service Agency, Unpub Per Curiam Opinion of the Court of Appeals, (#314952, 8/14/2014) the Court of Appeals held that the circuit court had jurisdiction to decide OLHSA’s application for leave to appeal the probate court order denying defendants’ motions for summary disposition. The order that OLHSA sought to appeal to the circuit court was an interlocutory order. See Mossing v Demlow Prods, Inc, 287 Mich App 87 780 (2010) (stating that an order denying summary disposition “is inherently interlocutory.).

 

The court rules governing probate court proceedings contain a subchapter on appeals, 5.800. MCR 5.801(D) addresses appeals from interlocutory orders of the probate court, and provides in pertinent part: An interlocutory order, such as an order regarding discovery; ruling on evidence; appointing a guardian ad litem; or suspending a fiduciary for failure to give a new bond, to file an inventory, or to render an account, may be appealed only to the circuit court and only by leave of that court. . . . [Emphasis added.]  The court rules governing appeals to the circuit court similarly provide that the circuit court has appellate jurisdiction over interlocutory orders of the probate court. MCR 7.103(B)(1)(a) provides that a “circuit court may grant leave to appeal from . . . a judgment or order of a trial court when . . . no appeal of right exists.” (Emphasis added; paragraph structure omitted). For the purposes of subchapter 7.100, “trial court” is defined as “the district, probate, or municipal court from which the ‘appeal’ is taken.” MCR 7.102(9).

the permissible use of two-way video technology

In People v Shaw, Unpub Per Curiam Opinion of the Court of Appeals (#314865, 8/21/2014) the Court held that the plain language of MCR 6.006(A) indicates that a trial court may not use a video conference to secure a defendant’s appearance when sentencing him for felony offenses rather than misdemeanor offenses.  Unless MCR 6.006(A) specifically allows for the hearing to be conducted via two-way interactive video technology, defendant must expressly agree to appear via video or (s)he has a right to be personally present at the hearing

 

“The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant . . . the right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Tennessee v Lane, 541 US 509, 523; 124 S Ct 1978 (2004) (quotation marks omitted). This right applies to the sentencing hearing, as well as the trial itself. People v Mallory, 421 Mich 229, 247 (1984); People v Palmerton, 200 Mich App 302, 304 (1993). The Michigan Court Rules further provide that a trial court may use two-way interactive video technology to conduct the following proceedings between a courtroom and a prison, jail, or other location: initial arraignments on the warrant or complaint, arraignments on the information, pretrial conferences, pleas, sentencings for misdemeanor offenses, show cause hearings, waivers and adjournments of extradition, referrals for forensic determination of competency, and waivers and adjournments of preliminary examinations. [MCR 6.006(A) (emphasis added).] “[W]e interpret court rules using the same principles that govern the interpretation of statutes.” People v Buie, 491 Mich 294, 304 (2012) (quotation marks omitted).

 

“It is a basic principle of statutory construction that the express mention of one thing implies the exclusion of other similar things.” People v Oswald, 208 Mich App 444, 446 (1995); see also People v Carruthers, 301 Mich App 590, 604 (2013). Thus, the plain language of MCR 6.006(A) indicates that a trial court may not use a video conference to secure a defendant’s appearance when sentencing him for felony offenses rather than misdemeanor offenses. Here, defendant was being sentenced for his felony convictions. MCL 750.224f(5); MCL 750.227b(1). Therefore, absent a defendant’s express agreement to appear via video, see People v Carter, 462 Mich 206, 217-218 (2000) (noting that a party can waive a “broad array of constitutional and statutory provisions”), a trial court must secure the defendant’s physical appearance at sentencing.

The reasonable preference of the child.

In Kubicki v Sharpe, Jr, __ Mich App __ (#317614, 8/28/2014) the Court of Appeals held that the circuit court legally and harmfully erred by failing to consider the child’s wishes when it made its best-interest determination.

In regard to factor i, the court stated, “The parties did not want the [c]ourt to interview the child. Therefore, his preference has not been considered by the [c]ourt.” Regardless whether the parties wished for an interview, the court was affirmatively required to consider the child’s preference.

 

“One of the . . . factors a trial judge must consider in a custody dispute is the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.” Bowers v Bowers, 190 Mich App 51, 55 (1991) (quotation marks and citation omitted). “Children of six, and definitely of nine, years of age are old enough to have their preferences given some weight in a custody dispute, especially where there was a prior custody arrangement.” Id. at 55-56.

 

At the time of the evidentiary hearing, the child was 10 years old, and as such, was “definitely . . . old enough to have [his] preference[] given some weight . . . .” Id. “The trial court’s failure to interview the child[] was error requiring reversal.” Id. at 56.
 

Because the circuit court did not consider DLS’s preference, we must vacate the circuit court’s order, and remand for a new custody hearing.