D. R. H. v. Holbrook

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED June 24, 2025 10:20 AM In re CD, Minor. No. 371098 Crawford Circuit Court Family Division LC No. 21-004622-NA Before: MARIANI, P.J., and MALDONADO and YOUNG, JJ. PER CURIAM. Respondent-mother appeals by right the order terminating her parental rights to the minor child, CD, under MCL 712A.19b(3)(j) (reasonable likelihood child will be harmed if returned to parent’s home). In a scant, two-paragraph argument on appeal, respondent-mother asserts only that the trial court erred by taking judicial notice of a separate personal protection order (PPO) case between herself and CD’s father, who was not a respondent in this matter, and that there was no need to terminate her parental rights because she was jailed for violating the PPO. We affirm. I. BACKGROUND This case was commenced approximately a month after respondent-mother’s home was raided by a police drug taskforce following three controlled purchases of prescription drugs from respondent-mother, during which the police found and confiscated a dangerous butane-based THC extraction lab from her garage. The minor child, CD, was placed in the care of his father in an ex parte custody order entered in a custody case between the father and respondent-mother. The father was simultaneously granted a PPO against respondent-mother. The same judge presided over this case, the custody case, and the PPO proceedings.1 The trial court took judicial notice of the PPO proceedings in a contempt hearing in this case without objection by respondent-mother’s 1 The trial court also issued another PPO against respondent-mother while this case was pending. -1- attorney. Respondent-mother also was charged criminally, and a different judge presided over her criminal cases. Almost three years after the raid and more than two years after the order of adjudication, the trial court issued a lengthy written opinion that summarized the voluminous testimony in this case. The trial court found that respondent-mother’s noncompliance with petitioner, continued impulsivity and history of defiance, and lack of benefit from services showed that CD would likely be harmed if returned to her care. The trial court then found that respondent-mother’s dishonesty, lack of insight, lack of accountability, and questionable judgment in recently marrying a felon showed that termination was in CD’s best interests. The trial court noted that it had no assurance that CD would be kept safe through custody orders in the parallel custody proceeding because respondent-mother’s conduct throughout this case and as reflected in the PPO case showed that she could not be trusted to follow any such orders. II. PRESERVATION OF ISSUES A respondent must object in the trial court to the trial court’s use of evidence. In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011). Respondent-mother expressly declined to do so when the trial court directly asked if she had any objection to the trial court taking judicial notice of the PPO matters at a contempt hearing in this case. Waiver does not require any particular language, but it “must be explicit, voluntary, and made in good faith.” In re MJC Minor, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 365616); slip op at 3. A party waives an issue by expressly declining a trial court’s invitation to object to a matter. People v Carter, 462 Mich 206, 214-215; 612 NW2d 144 (2000); People v McDonald, 293 Mich App 292, 295; 811 NW2d 507 (2011). If an issue is waived, there is no right to appeal. People v Flores, 346 Mich App 602, 608; 13 NW3d 668 (2023). However, “[o]ut of an abundance of caution,” we will treat this issue “as merely forfeited rather than affirmatively waived.” See Flores, 346 Mich App at 608-609. III. STANDARD OF REVIEW An unpreserved error in a termination-of-parental-rights case is reviewed for plain error affecting substantial rights. In re Ferranti, 504 Mich 1, 29 & n 13; 934 NW2d 610 (2019). Under that standard, a clear or obvious error must have occurred, the error must have affected the outcome of the

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00031-CV ___________________________ IN THE INTEREST OF E.T., A.T., AND E.T., CHILDREN On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231-745808-24 Before Kerr, Birdwell, and Wallach, JJ. Memorandum Opinion by Justice Wallach  MEMORANDUM OPINION Father appeals from the trial court’s judgment terminating his parental rights to his minor children on the grounds that Father had “executed before or after the suit [wa]s filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Chapter 161” of the Texas Family Code and that termination was in the children’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (b)(2). We affirm. Father’s appointed appellate counsel filed an Anders brief stating that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77 (Tex. App.—Fort Worth 2003, order) (holding that Anders procedures apply in cases terminating parental rights), disp. on merits, No. 2-01-349-CV, 2003 WL 2006583, at *1–3 (Tex. App.—Fort Worth May 1, 2003, no pet.) (per curiam) (mem. op.). The brief meets the Anders requirements by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced on appeal. Further, Father’s counsel (1) provided Father with a copy of the Anders brief, (2) informed Father of his right to file a pro se response, and (3) advised Father of his right to access the appellate record and provided to him a form motion for effectuating that purpose. 1 1 Father’s counsel did not inform Father of his pro se right to seek discretionary review of our opinion should we declare his appeal frivolous, a function that an appointed lawyer who files an Anders brief must fulfill in a criminal appeal. See Tex. R. App. P. 48.4; Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). An appointed 2 Father did not file a response, and the Texas Department of Family and Protective Services declined to file a brief. When an Anders brief is filed, we must independently examine the record to determine if any arguable grounds for appeal exist. In re C.J., 501 S.W.3d 254, 255 (Tex. App.—Fort Worth 2016, pets. denied). Our examination should consider the record, the briefs, and any pro se response. In re L.B., No. 02-19-00407-CV, 2020 WL 1809505, at *1 (Tex. App.—Fort Worth Apr. 9, 2020, no pet.) (mem. op.). After careful review, we agree with Father’s counsel that there are no arguable grounds for appeal in this case. We affirm the trial court’s judgment terminating Father’s parental rights. Father’s counsel remains appointed in this case through any proceedings in the Supreme Court unless otherwise relieved of these duties. See Tex. Fam. Code Ann. § 107.016; In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016) (order). /s/ Mike Wallach Mike Wallach Justice Delivered: June 19, 2025 appellate attorney in a termination appeal has no such obligation, however, because his representation does not end in our court. See In re C.W., No. 02-21-00340-CV, 2022 WL 1155908, at *2 n.3 (Tex. App.—Fort Worth Apr. 19, 2022, pet. denied) (mem. op.). 3

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 17, 2025 Plaintiff-Appellant, 3:38 PM v No. 370663 Wayne Circuit Court LORENZO JEROME MONTGOMERY, JR., LC No. 23-005497-01-FH Defendant-Appellee. Before: MALDONADO, P.J., and M. J. KELLY and RIORDAN, JJ. PER CURIAM. In this domestic violence action, the prosecution appeals by leave granted1 the trial court’s order excluding as inadmissible statements made by the victim to law enforcement regarding her alleged assault by defendant, Lorenzo Jerome Montgomery, Jr. The trial court held that the victim’s statements were testimonial, making them inadmissible under the Sixth Amendment’s Confrontation Clause, US Const, Am VI. We reverse and remand. I. BACKGROUND Defendant is charged with first-degree home invasion, MCL 750.110a(2); intentionally discharging a firearm at a building, MCL 750.234b(1); assault with intent to do great bodily harm less than murder or by strangulation, MCL 750.84; second-degree child abuse, MCL 750.136b(3); carrying a firearm during the commission of a felony, MCL 750.227b; and domestic violence, 1 People v Montgomery, unpublished order of the Court of Appeals, entered April 26, 2024 (Docket No. 370663). This Court also granted a stay of the trial court proceedings pending this appeal. See id. -1- MCL 750.81(2);2 stemming from an altercation between defendant and the victim during a custody exchange of their three-year-old child, BM. Defendant went to the victim’s home as agreed to retrieve BM, and on arrival, became upset because there was another male inside the home. Defendant began to bang and pound on the windows and doors until the victim opened the side door, handed BM to defendant, and closed the door. After the victim gave BM to defendant, defendant broke through the side door with a handgun, placed the victim in a chokehold, and dragged her into a bedroom. BM ran back into the house, and defendant picked up BM before firing his gun into the ceiling. Defendant carried BM outside to his vehicle, firing his gun a second time into the air from the front porch, before leaving with BM. Shortly after, the victim called her mother, Estella Hardy, crying, at which point Hardy drove to the victim’s home, arriving about 10 minutes after the telephone call. Hardy saw a contusion on the side of the victim’s head and asked the victim where BM was located. Hardy told the victim that they should call the police, and officers arrived in less than 15 minutes. Officer Drew Macaechren received a dispatch for a possible home invasion and domestic dispute. The victim gave Officer Macaechren defendant’s cellular phone number, and dispatch contacted defendant’s phone carrier service to locate defendant. Defendant was taken into custody at his home, and BM was located in an upstairs room. The victim did not testify at defendant’s preliminary examination; however, Officer Macaechren and Hardy testified about the events and statements made by the victim. After defendant was bound over, the prosecution moved to admit the victim’s statements to Officer Macaechren under MCL 768.27c (admissibility of statement by declarant relating to infliction or threat of physical injury). Defendant objected, arguing that the statements were testimonial and admitting them would violate his confrontation right under the Sixth Amendment. Relying on the preliminary examination testimony, the trial court found that the victim’s statements to Officer Macaechren were not made to assist with an ongoing emergency but rather were made to assist with prosecuting defendant, and as such, were testimonial. Accordingly, the trial court denied the motion. The prosecution then moved for a stay in the proceedings under MCR 6.126 (decision on admissibility of evidence), which the trial court denied on the basis that “an appeal would be frivolous because legal precedent is clearly against the prosecutor’s position.” This appeal followed. II. DISCUSSION The Supreme Court has identified several factors that courts should consider when determining if statements to police are testimonial: The existence of an emergency or the parties’ perception that an emergency is ongoing is among the most important circumst

206 June 4, 2025 No. 524 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of A. P. N. M., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. U., Appellant. Polk County Circuit Court 23JU00969; A185938 (Control) In the Matter of A. L. W. M., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. U., Appellant. Polk County Circuit Court 23JU00970; A185939 Rafael A. Caso, Judge. Argued and submitted April 30, 2025. George W. Kelly argued the cause and filed the brief for appellant. Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Solicitor General. Before Tookey, Presiding Judge, Joyce, Judge, and Jacquot, Judge. Nonprecedential Memo Op: 341 Or App 206 (2025) 207 PER CURIAM Affirmed. 208 Dept. of Human Services v. M. U. PER CURIAM Mother appeals judgments terminating her paren- tal rights to two of her children, AL and AP. In four assign- ments of error, mother contends that the juvenile court erred in finding that she knew about and aided father’s sex- ual abuse of her stepchild, M, in determining that she was unfit to parent AL and AP, and in concluding that it would be in AL’s and AP’s best interests to terminate mother’s parental rights. We review de novo, ORS 19.415(3)(a), ORS 419A.200(6), and affirm.1 A parent’s rights can be terminated when a court finds by clear and convincing evidence that the parent is “unfit by reason of conduct or condition seriously detrimen- tal to the child,” that “integration of the child * * * into the home * * * is improbable within a reasonable time due to con- duct or conditions not likely to change[,]” and that termina- tion is in the “best interests” of the child. ORS 419B.500(1); ORS 419B.504; ORS 419B.521(1); State ex rel SOSCF v. Stillman, 333 Or 135, 144-46, 36 P3d 490 (2001). “Evidence is clear and convincing when it makes the existence of a fact highly probable or when it is of extraordinary persuasive- ness.” Dept. of Human Services v. R. K., 271 Or App 83, 88, 351 P3d 68, rev den, 357 Or 640 (2015) (internal quotation marks omitted). In her first assignment of error, mother argues that the juvenile court erred in finding that she knew about and aided father’s sexual abuse of M. But mother reported father’s sexual abuse of M to police in April 2018, and, at the termination of parental rights (TPR) trial, M testified that mother knew about father’s sexual abuse. The detailed nature of mother’s report to the police supports its verac- ity. At the TPR trial, mother testified that her report to the police was false, but her account of why she lied to the police is implausible. In addition, the juvenile court found that mother’s testimony was not credible, and that some of M’s testimony about sexual abuse was corroborated and credi- ble. Even on de novo review, we give “considerable weight” 1 Also decided today is Dept. of Human Services v. M. D. M., 341 Or App 201, (Jun 4, 2025), in which we affirm judgments terminating father’s parental rights to the same two children. Nonprecedential Memo Op: 341 Or App 206 (2025) 209 to demeanor-based credibility findings, because the juve- nile court judge “had the opportunity to observe the wit- nesses and their demeanor in evaluating the credibility of their testimony.” Dept. of Human Services v. T. L. B., 294 Or App 514, 516, 432 P3d 343 (2018), rev den, 365 Or 556 (2019) (internal quotation marks omitted). Having reviewed the record de novo and giving due weight to the juvenile court’s demeanor-based credibility findings, we reject mother’s first assignment of error. In her second and third assignments, mother argues that the juvenile court erred in determining that she was unfit to care for AL and AP because she has kept father away from the farm for six years, she intends to continue doing so, and her other children will ensure that father has no contact with AL and AP. However, at the time of the TPR trial, mother was pregnant with her seventh child, and she acknowledged that father was the father. Reviewing the record de novo, it shows that mother is unable or unwill- ing to understand that father is a danger to the children. In addition, mother has not participated in services since 2021, she remains married to and dependent on father, and we

188 June 4, 2025 No. 520 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of W. O. A. IV, aka B. B. E., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. E., Appellant. Washington County Circuit Court 24JU03934; A185889 Michele C. Rini, Judge. Submitted April 30, 2025. Aron Perez-Selsky filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Stacy M. Chaffin, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Joyce, Judge, and Jacquot, Judge. JACQUOT, J. Reversed. Nonprecedential Memo Op: 341 Or App 188 (2025) 189 JACQUOT, J. In this juvenile dependency case, mother appeals from the juvenile court’s judgment asserting jurisdiction over her infant son, W.1 She asserts that “the juvenile court erred in finding that [her] ‘pattern of criminal activities’ and ‘history of and current substance abuse’ posed a cur- rent threat of serious loss or injury warranting jurisdiction.” Specifically, mother asserts the juvenile court erred, because (1) there was no evidence that mother’s past criminal activi- ties involved children or evinced harm to children; (2) there was no evidence that W has been exposed to controlled sub- stances or that mother used controlled substances around him; (3) there was no evidence, even if mother had recently used controlled substances, that her use impaired her abil- ity to meet W’s basic needs; and (4) at the time of the juris- dictional hearing, mother was not as risk of incarceration while in Oregon. Consequently, in mother’s view, the Oregon Department of Human Services (ODHS) did not prove that she exposed her child to a nonspeculative threat of serious loss or injury stemming from her criminal activities and substance abuse.2 ODHS responds that the court properly asserted jurisdiction because “mother’s substance abuse was active at the time of the trial, intertwined with her criminal activity, and combined with the use and possession of firearms, all of which posed a current and non-speculative risk to [W].” Because evidence presented at the time of the juris- dictional hearing did not support a conclusion that mother posed a current and nonspeculative risk to W under ORS 419B.100(1)(c), as further explained below, we reverse. For a juvenile court to take jurisdiction over a child, ODHS must present evidence “sufficient to support a con- clusion that the child’s condition or circumstances expose the child to a current threat of serious loss or injury that is likely to be realized.” Dept. of Human Services v. J. H., 292 Or App 733, 737, 425 P3d 791 (2018) (internal quotation 1 Father is deceased. 2 At the time of trial, W took the same position and asked that the case be dismissed. He does not appear on appeal. 190 Dept. of Human Services v. M. E. marks omitted). Specifically, ODHS “must establish the type, degree, and duration of the harm at issue,” and it must “establish a nexus between the allegedly risk-causing conduct and the harm to the child.” Id. (internal quotation marks omitted). The risk of harm must be “nonspecula- tive”; that is, “there must be a reasonable likelihood that the threat will be realized.” Id. (internal quotation marks omitted). No party asks for de novo review, nor do we find this to be an exceptional case warranting it. In the absence of a de novo review, in reviewing a juvenile court’s determina- tion of jurisdiction in juvenile dependency proceedings, we: “(1) assume the correctness of the juvenile court’s explicit findings of historical fact if these findings are supported by any evidence in the record; (2) further assume that, if the juvenile court did not explicitly resolve a disputed issue of material fact and it could have reached the disposition that it reached only if it resolved that issue in one way, the court implicitly resolved the issue consistently with that disposition; and (3) assess whether the combination of (1) and (2), along with nonspeculative inferences, was legally sufficient to permit the trial court to determine that ORS 419B.100(1)(c) was satisfied.” Dept. of Human Services v. N. P., 257 Or App 633, 639-40, 307 P3d 444 (2013). In considering this case, we note that the juvenile court made adverse credibility findings against mother. Those findings are supported by the record, and we do not disturb them. Dept. of Human Services v. A. J. G., 304 Or App 221, 230, 465 P3d 293,