Dept. of Human Services v. J. D. L.

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 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED August 12, 2025 Plaintiff-Appellee, 1:56 PM v No. 356714 Saginaw Circuit Court ADAM FERGUSON, also known as ADAM LC No. 91-004624-FC FERGERSON, Defendant-Appellant. Before: YATES, P.J., and YOUNG and WALLACE, JJ. PER CURIAM. Following a remand from the Michigan Supreme Court, defendant, Adam Ferguson,1 appeals as on leave granted an order denying a successive motion for relief from judgment. 2 He contends that his sentences violated the United States and Michigan Constitutions, that his sentences for drug offenses were improper, and that his waiver into adult court was unconstitutional. Ferguson argues that the sentencing court needed to consider the mitigating factors of youth and that Ferguson was improperly given a de facto life sentence for crimes he committed as a minor. We remand for resentencing. I. FACTUAL BACKGROUND This Court, in its 1997 opinion issued after Ferguson’s direct appeal of his convictions, set forth the crimes Ferguson committed and the sentences imposed: Defendant received concurrent sentences of six years, eight months to ten years in prison on the assault with intent to do great bodily harm convictions, 1 As then-appellate counsel mentioned in the 1994 Motion for New Trial, Ferguson’s name is Adam Fergerson but to be consistent with the trial court, we use “Ferguson” throughout these proceedings as well. 2 See People v Ferguson, 511 Mich 1020; 991 NW2d 576 (2023). -1-  twenty-five to fifty years in prison each for the armed robbery, kidnapping and conspiracy to commit murder and/or extortion convictions, thirteen to twenty years for extortion, as well as twenty to forty years on the delivery conviction and twenty to forty years on the possession with intent to deliver conviction, twenty to forty years on the conspiracy to deliver conviction, and . . . the mandatory two-year term on the felony-firearm conviction. The sentences for the delivery, possession with intent to deliver, and conspiracy to deliver convictions were to be consecutive to the concurrent terms on the other sentences as well as with each other. As required by statute, the sentence on the felony-firearm conviction was also consecutive, to be served prior to the remaining sentences. [People v Ferguson, unpublished per curiam opinion of the Court of Appeals, issued May 10, 1996 (Docket No. 146333), p 1.] This Court affirmed Ferguson’s convictions but remanded for resentencing on one count, conspiracy to deliver less than fifty grams of cocaine. Id. at 4. At his earliest release date, Ferguson would be 74 years old.3 Ferguson was 17 years old when he committed the offenses at issue in this appeal. In 2020, after his first motion for relief from judgment was denied, Ferguson filed a successive motion for relief from judgment, asserting that his attorneys had been ineffective for failing to raise certain jurisdictional issues and also arguing that his sentences violated the constitutional protections against cruel and unusual punishment for juveniles; he cited Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US 190; 136 S Ct 718; 193 L Ed 2d 599 (2016).4 The trial court denied the motion for relief from judgment, concluding that Ferguson had not established a retroactive change in the law to allow for a successive motion for relief from 3 Ferguson contends that if disciplinary credits are not considered, his earliest release date will actually be when he is 84 years old. Whether to consider disciplinary credits in a constitutional analysis of a sentence is a live question in our courts, particularly given the outcome in People v Nard, ___ Mich App ___, ___; ___ NW3d___ (2025) (Docket No. 369185), in which defendant’s parole status, afforded in part due to good time credits, led the Court to conclude that a 60-year minimum sentence was not a de facto life sentence. Here, appellant’s reply brief addresses this issue thoroughly, but we conclude that whether we consider good time credits or not, People v Eads (On Remand), ___ Mich App ___; ___ NW3d ___ (2025) (Docket No. 357332) would control and we

158 June 4, 2025 No. 513 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., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. P., Appellant. Clackamas County Circuit Court 24JU01576; A185671 Todd L. Van Rysselberghe, Judge. Submitted April 30, 2025. Shannon Storey, Chief Defender, Juvenile Appellate Section, and Kyle Sessions, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Joyce, Judge, and Jacquot, Judge. JOYCE, J. Affirmed. Nonprecedential Memo Op: 341 Or App 158 (2025) 159 JOYCE, J. In this juvenile dependency case, father appeals from the juvenile court’s judgment asserting jurisdiction over his child A based, in part, on father’s mental health issues and pattern of impulsive behavior.1 Father raises three assignments of error, all of which reduce to the argu- ment that the Oregon Department of Human Services (ODHS) failed to prove that father exposed A to a nonspecu- lative threat of serious loss or injury as a result of father’s mental health issues and impulsivity. We affirm. Absent de novo review, which father does not seek, when reviewing the juvenile court’s assertion of jurisdiction, “[w]e view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favor- able to the juvenile court’s disposition and assess whether, when so viewed, the record was legally sufficient to permit the outcome.” Dept. of Human Services v. T. L. H. S., 292 Or App 708, 709, 425 P3d 775 (2018). Juvenile court depen- dency jurisdiction is authorized under ORS 419B.100(1)(c) when a child’s condition and circumstances expose them to a current threat of serious loss or injury that will likely be realized. Dept. of Human Services v. A. L., 268 Or App 391, 397-98, 342 P3d 174 (2015). ODHS bears the burden of prov- ing a nexus between the allegedly risk-causing conduct and probable harm to the child. Id. at 398. We conclude that the record before the juvenile court at the July 2024 jurisdiction trial was sufficient to sup- port its determination that then-four-month-old A would be exposed to a nonspeculative threat of serious loss or injury without dependency jurisdiction. Preceding A’s birth, ODHS and the juvenile court had already been involved with father’s family for about two years, in relation to parents’ older child J and two of moth- er’s other children. Father’s relationship with ODHS was contentious and combative, with father frequently sending rambling, hostile, and threatening messages to ODHS staff. The ODHS caseworker believed that father did not perceive 1 Mother did not appeal the jurisdiction judgment and is not a party to this appeal. 160 Dept. of Human Services v. M. P. reality like others, that he did not recognize the concerns that DHS had presented, and that he was unable to discuss his children’s needs. A was born prematurely, in March 2024, and was admitted to the neonatal intensive care unit (NICU) and placed on a CPAP machine to address his respiratory dis- tress. While spending time with A in the NICU, father’s behavior was “unusual,” with him making “strange hand and body movements” and talking rapidly to himself, the wall, or someone who was not there. When a doctor and nurses explained that A was in respiratory distress and needed the CPAP machine to assist him with breath- ing, father did not acknowledge what was being said and appeared to not understand, continuing to insist that the CPAP machine was not safe. Father attempted to remove the CPAP machine, but hospital staff stopped him, deter- mined that he should not be left alone with A, and reported the incident to ODHS. Father and mother did not visit A after he was discharged from the hospital into ODHS’s tem- porary custody in April 2024. There is also evidence in the record that the apart- ment where father and mother had been living was unsafe. There was garbage throughout the apartment, including rotting food and used feminine hygiene products, and a thick layer of sawdust from the pallets they broke down and burned for heat covered much of the kitchen. At the jurisdiction trial, father frequently inter- rupted the proceedings, reacting to arguments from the parties and the testimony of witnesses and speaking to him- self or t

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,

No. 512 June 4, 2025 153 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. S. C., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. R. C., Appellant. Douglas County Circuit Court 18JU01657; A183944 (Control) In the Matter of S. M. C., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. R. C., Appellant. Douglas County Circuit Court 18JU01658; A183945 Ann Marie Simmons, Judge. Submitted April 30, 2025. Aron Perez-Selsky and Michael J. Wallace filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Joyce, Judge, and Jacquot, Judge. 154 Dept. of Human Services v. R. C. JOYCE, J. Affirmed. Nonprecedential Memo Op: 341 Or App 153 (2025) 155 JOYCE, J. Father appeals from a judgment granting durable guardianship over his two children, S and A. He assigns error both to that determination and to the juvenile court’s denial of his motion to dismiss. We affirm. We begin with a threshold jurisdictional question, namely, whether the judgment establishing guardianship also constitutes a judgment denying father’s motion to dis- miss.1 It does. The judgment itself is entitled “Judgment Establishing Guardianship.” Yet the judgment incorporates the juvenile court’s letter opinion, which denies father’s motion to dismiss and grants the guardianship. “Generally speaking, incorporated writings are considered part of the writing in which they are incorporated.” State ex rel Juv. Dept. v. Brown, 175 Or App 1, 10 n 4, 27 P3d 502, rev den, 332 Or 558 (2001). Thus, the judgment—by incorporating the letter opinion addressing both the motion to dismiss and the motion to establish guardianship—disposes of both those issues and creates an appealable judgment with respect to both. We turn to the merits. Father contends that the juvenile court erred in denying his motion to dismiss juris- diction on the basis that the conditions that led to the chil- dren’s removal had been ameliorated. As the parties both note, in assessing a motion to dismiss, the court must first “determine whether the original bases for jurisdiction con- tinue to pose a current threat of loss or serious injury.” Dept. of Human Services v. T. L., 279 Or App 673, 685, 379 P3d 741 (2016). If they do, the court must then “assess the likeli- hood that that risk will be realized.” Id. Where, as here, the permanency plan is something other than reunification, “a parent seeking dismissal of dependency jurisdiction must prove that the bases for jurisdiction no longer pose a current threat of loss or harm to the child that is reasonably likely to be realized, thereby overcoming the presumption created by the permanency plan that the child cannot return safely to parents.” Id. at 690. 1 ODHS raises the question whether the juvenile court entered a judgment with respect to the denial of the motion to dismiss but does not take a position on that question. Father has simply assumed that we have jurisdiction. 156 Dept. of Human Services v. R. C. The juvenile court concluded that the conditions that led to the children’s removal and juvenile court jurisdiction— father’s anger control problem and physical discipline that resulted in an impairment of the children’s well-being and functioning—had not been ameliorated: “Father’s behaviors continue at an observable level. He expresses frustration at the agency, his [older child], the caseworkers, his previous treatment providers, etc. He speaks about anger control, without seeming to understand his behaviors speak otherwise. He denies certain behav- iors, deflects and minimizes others, and attempts to con- trol the narrative of both his treatment work and the court case. * * * [The children] have suffered severe trauma, have for the second time begun making progress, but are at high risk to experience further trauma. The court concludes that the original bases of jurisdiction for father continue to represent a very real risk of both further loss and further injury, in fact, based on father’s current behaviors the court concludes reunification after a dismissal would almost cer- tainly result in further trau

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 August 12, 2025 Plaintiff-Appellee, 1:56 PM v No. 356714 Saginaw Circuit Court ADAM FERGUSON, also known as ADAM LC No. 91-004624-FC FERGERSON, Defendant-Appellant. Before: YATES, P.J., and YOUNG and WALLACE, JJ. YATES, P.J. (concurring). Defendant was sentenced for a wide variety of crimes he committed in January 1991, when he was 17 years old. Defendant’s concurrent sentences for a collection of violent crimes were not especially lengthy, but his convictions for quotidian drug offenses resulted in consecutive terms of imprisonment that extended his earliest release date from prison to October 8, 2047. Because that aggregate term of imprisonment cannot withstand a challenge under the constitutional prohibition of “cruel or unusual punishment” in Const 1963, art 1, § 16, insofar as it is not “something that is reasonably possible for . . . defendant actually to serve,” People v Moore, 432 Mich 311, 329; 439 NW2d 684 (1989), I join my colleagues in affording relief to defendant. But I write separately to describe the perils of invoking the proscription of “cruel or unusual punishment” to set universally applicable limits on indeterminate sentences, which under established precedent must be tailored in each case to the offender and the offense. See, e.g., id. I. LEGAL BACKGROUND In most felony cases in Michigan, if incarceration is ordered, the sentencing court imposes either a jail term or an indeterminate prison sentence. To establish the lower and upper boundaries of an indeterminate prison sentence, the sentencing court must consider sentencing guidelines that our Legislature has prescribed in setting the minimum prison term, and then mechanically set the maximum term of imprisonment just as our Legislature has defined it. The minimum prison term selected by the sentencing court determines the defendant’s earliest release date from prison. Thus, the sentencing court has a great deal of latitude in choosing the minimum prison term, and thereby -1- dictating the defendant’s earliest release date, but virtually no discretion in setting the maximum term of imprisonment. A sentencing court does not have unfettered discretion in choosing a minimum prison term. First, a sentencing court must be informed by a correctly scored sentencing guidelines range, and an incorrect scoring decision on a sentencing guidelines variable ordinarily warrants resentencing. People v Francisco, 474 Mich 82, 89-91; 711 NW2d 44 (2006). Second, its sentence must satisfy the “principle of proportionality,” which mandates consideration of both the nature of the offense and the background of the offender. See People v Steanhouse, 500 Mich 453, 472-473; 902 NW2d 327 (2017). Third, because of a constitutional imperative, a sentencing court cannot impose a term of imprisonment that constitutes “cruel or unusual punishment.” See Const 1963, art 1, § 16. The universe of sentences characterized as “cruel or unusual punishment” expanded in the wake of the United States Supreme Court’s decision in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), which held that the imposition of a mandatory prison term of life without parole on a juvenile “violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Id. at 465. Ten years after the ruling in Miller, our Supreme Court combined that holding with an analysis of the Michigan Constitution’s ban on “cruel or unusual punishment” and its own opinion in People v Bullock, 440 Mich 15; 485 NW2d 866 (1992),1 to hold that a term of imprisonment of life with the possibility of parole for second-degree murder imposed on a juvenile constitutes “cruel or unusual punishment” in contravention of Const 1963, art 1, § 16. See People v Stovall, 510 Mich 301, 307-308; 987 NW2d 85 (2022). Significantly, however, those cases did not involve indeterminate sentences like the one at issue in the instant case. Relying on the ruling in Stovall, this Court recently decided that an indeterminate sentence of 50 to 75 years’ imprisonment for second-degree murder imposed upon a 16-year-old defendant was “invalid for two related but distinct reasons: it violates the Michigan Constitution’s prohibition of cruel or unusual punis