Weekly Case Digests – October 22 – October 26, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Martin Velazquez

Case No.: 18-1647

Officials: EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

Focus: Motion to Suppress Evidence Denied – Warrantless Search

Martin Velazquez was arrested after agreeing to sell twelve kilograms of cocaine to an undercover agent. He conditionally pled guilty to one count of possession with intent to distribute a controlled substance. He retained his right to appeal the district court’s denial of his motion to suppress the fruits of a warrantless search for the key evidence against him. That evidence was contained in a suitcase that he had placed in the bed of a pickup truck parked in the driveway of his home. We conclude that the search was supported by the officers’ good faith reliance on then-existing circuit precedent, and we affirm the conviction on that basis.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Laera D. Reed, et al. v. Charles Palmer

Case No.: 18-1429; 18-1438

Officials: FLAUM, MANION, and ROVNER, Circuit Judges.

Focus: Qualified Immunity

The State of Iowa declared Laera Reed and Paige Ray-Cluney delinquent youths and sent them to a juvenile institution in Wisconsin. Plaintiffs filed suit under 42 U.S.C. § 1983 against multiple Wisconsin officials and Charles Palmer, the Director of the Iowa Department of Human Services, alleging they suffered from the excessive use of isolation cells and excessive force. A district court in the Western District of Wisconsin dismissed plaintiffs’ claims against Palmer at the pleading stage on the basis of qualified immunity, and plaintiffs now appeal. For the reasons below, we reverse.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. William T. Burrows

Case No.: 17-3292

Officials: FLAUM, RIPPLE, and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines

William Burrows conditionally pleaded guilty to one count of receiving child pornography pursuant to 18 U.S.C. § 2252A(a)(2)(A). He argues that § 2252A(a)(2)(A) is void for vagueness as applied to him, and therefore, that his indictment should have been dismissed. Additionally, he maintains that the district court erred at sentencing by basing his sentence, in part, on the need for sex offender treatment. We disagree, and we affirm Burrows’s conviction and sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Darwin Ramirez v. Richard Young, et al.

Case No.: 15-3298

Officials: WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.

Focus: Statutory Interpretation – PLRA

Under the Prison Litigation Reform Act of 1995 (PLRA), “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner … until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added). This appeal concerns the availability of administrative remedies described to a prisoner by prison officials only in a language they knew he could not understand. We hold that this was not enough to render those remedies “available” to the prisoner. We therefore reverse the judgment dismissing Darwin Ramirez’s federal suit for failure to exhaust and remand for further proceedings.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Staci Harrington, et al. v. Nancy A. Berryhill

Case No.: 17-3179

Officials: KANNE, SYKES, and ST. EVE, Circuit Judges

Focus: Statutory Interpretation – Treasury Offset Program – Statutory Fee Awards

The Commissioner of Social Security separately denied benefits to Staci Harrington and Andrew Banks. Both individuals sought judicial review of those decisions. To that end, each separately engaged the services of The de la Torre Law Office LLC, which agreed to represent them in federal court. In exchange, the two plaintiffs assigned to counsel any legal fees to which they might be entitled under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). After successfully prosecuting their cases, the plaintiffs obtained the statutory fee awards.

But that was not the end of the story. The Treasury Department, which had the responsibility of processing the payments, determined that both litigants had outstanding debts to various government entities. Rather than paying out the fees directly, it reduced the litigants’ debts by equal amounts under the Treasury Offset Program, 31 C.F.R. § 285. The attorneys received nothing. In response, the parties brought these appeals, which we have consolidated because they pose the same legal questions. See Harrington v. Berryhill, 876 F.3d 889 (7th Cir. 2017). We believe it would be imprudent to entertain new administrative claims that are only minimally related to the judgments, so we decline to exercise ancillary jurisdiction over the plaintiffs’ collateral challenges to the regulations and instead affirm the district courts’ judgments.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Nicholas Webb v. Michael Frawley

Case No.: 18-1607

Officials: WOOD, Chief Judge, and FLAUM and HAMILTON, Circuit Judges.

Focus: Employment Contract – Wrongful Termination

Plaintiff-appellant Nicholas Webb sued defendant-appellee Michael Frawley for tortiously interfering with his employment contract and for knowingly misrepresenting company policy, both of which resulted in Webb’s termination. The district court granted Frawley’s motion to dismiss Webb’s claims. Webb appeals that decision. For the reasons that follow, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Robbie J. Perry, et al. v. Coles County, Illinois,

Case No.: 17-3615

Officials: FLAUM, MANION, and SYKES, Circuit Judges.

Focus: 14^th Amendment Violation – Commercial and Industrial Property Tax

Robbie J. Perry and James Rex Dukeman, on behalf of themselves and others similarly situated, sued Coles County, Illinois for placing a disproportionate tax on commercial and industrial properties in Mattoon Township in violation of the Equal Protection Clause of the Fourteenth Amendment. The district court dismissed plaintiffs’ claims based on the comity doctrine, and plaintiffs appeal. For the reasons stated below, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Barry Dayton v. Oakton Community College, et al.

Case No.: 18-1668

Officials: FLAUM, MANION, and SYKES, Circuit Judges.

Focus: Statutory Interpretation – ADEA

Traditionally, Oakton Community College employed retired state employees as part‐time and adjunct faculty. But in November 2014, Oakton changed its hiring practices so that as of July 1, 2015, Oakton would no longer employ retired state employees if they were also beneficiaries of the State University Retirement System. This decision affected eighty‐four individuals, including Barry Dayton. As a result, Dayton filed this lawsuit, on behalf of himself and a certified class of similarly‐situated part‐time and adjunct faculty, against Oakton and several individuals who were involved in adopting the policy, alleging claims under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623; 42 U.S.C § 1983; and Illinois law. The district court granted defendants’ motion for summary judgment. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: St. Augustine School, et al. v. Tony Evers, Superintendent of Public Instruction, et al.

Case No.: 17-2333

Officials: WOOD, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

Focus: 1^st Amendment Violation

St. Augustine School, along with Joseph and Amy Forro, sued Wisconsin’s Superintendent of Public Instruction and Friess Lake School District for refusing to provide school transportation (or equivalent cash benefits) to the Forros’ children. The school and family assert that the state denied them this benefit in violation of the Establishment and Free Exercise Clauses of the First Amendment.

The district court granted summary judgment for the defendants, and we now affirm. Contrary to the plaintiffs’ assertions, the record does not establish that the Superintendent or the school district furnished or withheld public benefits on the basis of non-neutral religious criteria. Nor does the evidence support the claim that public officials impermissibly determined the school’s affiliation on the basis of theology, ecclesiology, or ritual. Instead, it shows that public officials applied a secular statute that limits benefits to a single school affiliated with any sponsoring group—and, when St. Augustine declared itself to be Catholic, they took the school at its word.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jane Doe No. 55 v. Madison Metropolitan School District

Case No.: 17-1521

Officials: Barbara B. Crabb, Judge.

Focus: Petition for Rehearing

The petition for rehearing en banc is granted. The opinion and judgment entered by the panel are vacated. Oral argument will be heard on a date to be set by further order.

Granted in part. Vacated in part.

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7^th Circuit Court of Appeals

Case Name: Ameren Illinois Company v. International Brotherhood of Electrical Workers, Local Union 51

Case No.: 18-1591

Officials: KANNE, SYKES, and ST. EVE, Circuit Judges.

Focus: Collective Bargaining Agreement – Arbitrator’s Award

Brian Knox got into a heated argument with his supervisor at work. He allegedly made threatening remarks and was known to carry a concealed weapon either on his person or in his personal vehicle, which was parked in the company parking lot. In response, his employer terminated him for violating its Workplace Violence Policy.

Through his union, Knox brought a grievance under the collective bargaining agreement (“CBA”) then in force, and the parties opted for binding arbitration. The arbitrator determined that although Knox had technically violated the policy, the employer could not enforce the rule because it violated an Illinois statute. The arbitrator ordered Knox’s reinstatement, and the employer sought review by the federal district court and obtained a judicial order vacating the award on the ground that the arbitrator improperly applied external law to contradict the terms of the CBA. Because we believe that the text of the CBA permitted the arbitrator to look to external law in interpreting the agreement, we reverse the judgment of the district court and uphold the arbitrator’s award.

Reversed and Vacated

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7^th Circuit Court of Appeals

Case Name: Kenneth James Daugherty v. Richard Harrington, et al.

Case No.: 17-3224

Officials: KANNE, SYKES, and ST. EVE, Circuit Judges.

Focus: 1^st and 8^th Amendment Violations

Kenneth James Daugherty, an Illinois state prisoner, claims under 42 U.S.C. § 1983 that prison officials Richard Harrington and Kevin Page conspired to and did violate his First and Eighth Amendment rights while he was incarcerated at the Menard Correctional Center. The district court granted the defendants’ motion for summary judgment in its entirety. We affirm in part and reverse in part.

Affirmed in part. Reversed and Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Vicki Barbera v. Pearson Education, Inc.

Case No.: 18-1085

Officials: MANION and BARRETT, Circuit Judges, and GETTLEMAN, District Judge.

Focus: Title VII Claim

Vicki Barbera claims she did not get the same chance to resign with severance pay that three men got. She sued her former employer, Pearson Education, Inc. (“Pearson”) for Title VII sex discrimination and other claims. She also says Pearson lost a key email exchange. The magistrate judge cured this by barring Pearson from disputing her description of it, but declined to grant further sanctions. The district court overruled Barbera’s objection. Accepting her version of the missing emails, the district court granted summary judgment to Pearson because the proposed comparators were not similarly situated. They sought resignation with severance pay before circumstances materially changed, but Barbera sought resignation with severance pay after they changed. Barbera appeals the district court’s overruling her objection about the emails and granting Pearson summary judgment on the severance-pay discrimination claim. We affirm the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: B.G., et al. v. Board of Education of the City of Chicago, et al.

Case No.: 17-1806

Officials: BAUER, EASTERBROOK, and MANION, Circuit Judges.

Focus: Attorney Disciplinary Proceedings

This case was resolved on the merits last August. Our opinion left open the appropriate disposition of an attorney-discipline proceeding that the court had begun before the appeal was argued. Lee Ann Lowder, representing the defendants-appellees, filed her brief on March 30, 2018, a week late. One day after her brief was due, she had sought and received a fifth extension of time to file, even though Circuit Rule 26 requires all requests for extensions to be filed at least seven days before the brief is due.

Lee Ann Lowder is reprimanded for exercising insufficient care in preparing and revising the brief she filed in this appeal. The disciplinary proceeding is closed.

Closed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Badgerland Overhead Door, LLC,

Case No.: 2017AP714

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Court Error – Asset Purchase Agreement – Garnishment

Day Enterprises, LLC (Day) appeals an order denying its motion to reconsider the denial of a motion to surrender funds or, in the alternative, for relief from judgment pursuant to WIS. STAT. § 806.07 (2015-16).  Day also appeals a judgment holding Day liable, as garnishee, for $20,000 to Badgerland Overhead Door, LLC (Badgerland).

Regarding the denial of its motion to reconsider, Day contends that the circuit court erred by: (1) misinterpreting an asset purchase agreement between Day and Today’s Overhead Door, LLC (TOD); (2) improperly assessing successor liability to Day; (3) denying Day due process; and (4) concluding that evidence of fraud on the part of TOD did not warrant relief from judgment. As to the judgment holding Day liable, as garnishee, to Badgerland, Day contends the court erred by concluding that a $20,000 credit owed by Day to TOD was property subject to garnishment. We reject Day’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: Bethany H. Olson, et al. v. Wisconsin Mutual Insurance Company

Case No.: 2017AP1567

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Insurance Claim – Coverage

Jeffrey Keyes appeals a judgment dismissing his third party claims against Rural Mutual Insurance Company (Rural) and its agent, Lon Truax, Sr. Keyes asserts he is entitled to coverage for the claims of Bethany, Gunner and Emmajean Olson, all of whom were injured by Keyes’s operation of a personal automobile on a public road. Keyes also appeals an order denying his motion for reconsideration. Keyes seeks coverage under a farm umbrella endorsement attached to a farmowners policy he obtained from Rural through Truax. However, the endorsement contains an exclusion that specifically precludes coverage for the off-farm use of Keyes’s personal automobiles.

On appeal, Keyes asserts the circuit court improperly dismissed his claims for reformation of the farm umbrella endorsement and for agent negligence. He also asserts he is entitled to coverage because the umbrella endorsement is contextually ambiguous. We conclude the endorsement, and its applicable exclusion, unambiguously preclude coverage for the accident here. We also conclude Keyes’s reformation and agent negligence claims were properly dismissed because no reasonable factfinder could conclude, on this record, that Keyes asked Truax to provide him with umbrella coverage for the off-farm use of his personal automobiles. Importantly, Keyes admitted at his deposition that he made no specific request for such coverage at any time. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: Debra Tietjen v. Milwaukee County, et al.

Case No.: 2017AP2325

Officials: Brennan, Brash and Dugan, JJ.

Focus: Sufficiency of Evidence

Debra Tietjen, as administrator of the Estate of James L. Tietjen (Estate), appeals from an order of the circuit court which upheld the decision of the Milwaukee County Personnel Review Board (PRB) that had determined that James Tietjen was not a classified service employee at the time he was terminated from his employment with Milwaukee County. This determination affected his ability to claim retirement benefits from the County.

The Estate argues that the PRB acted contrary to law and outside of its jurisdiction in making its determination that Tietjen was an unclassified employee, and that its decision was not based on substantial evidence. In contrast, the County and the PRB assert that the PRB correctly applied the relevant law, that the PRB was within its jurisdiction in making the determination, and that there was sufficient evidence to support that determination. We agree and affirm.
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WI Court of Appeals – District II

Case Name: Suzanne Zielinski, et al. v. Thomas Zielinski

Case No.: 2017AP31

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Due Process Violation

Thomas Zielinski appeals from an order granting a four-year injunction against him naming his mother, Suzanne Zielinski, as the individual at risk and permitting him only supervised contact with her. Thomas contends his due process rights were violated because he was not given adequate notice and challenges certain evidentiary rulings and the sufficiency of the evidence in the injunction proceeding. We disagree and affirm the order.
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WI Court of Appeals – District II

Case Name: Winnebago County v. M.R.R.

Case No.: 2018AP273

Officials: HAGEDORN, J.

Focus: Guardianship and Protective Placement

The circuit court concluded that M.R.R. continued to be in need of guardianship of both his person and estate, and that his protective placement was still warranted. M.R.R. challenges these conclusions on the grounds that Winnebago County failed to provide sufficient evidence to prove the statutory standards were met. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Joseph Bruce Reinwand

Case No.: 2017AP163-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: 6^th Amendment Violation

Joseph Reinwand appeals a judgment convicting him of first-degree murder for the death of his wife Pamela Reinwand. See WIS. STAT. § 940.01(1) (1983-84). Reinwand asserts (but, as we explain below, fails to develop an argument) that he is entitled to a new trial because out-of-court statements made by a person who was unavailable to testify at trial as to those statements were erroneously admitted at trial in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. Reinwand also contends that the judgment of conviction should be amended to correct a clerical error. For the reasons discussed below, we affirm Reinwand’s conviction, but remand to the circuit court with directions to amend the judgment.

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WI Court of Appeals – District IV

Case Name: The Gage Corporation, Int., et al. Tamareed Company

Case No.: 2017AP881

Officials: Sherman, Blanchard, and Fitzpatrick, JJ.

Focus: Breach of Contract and Enrichment Claim

This is a contract dispute involving, on one side, a sales representative, Tamareed Company, and on the other, two manufacturers, The Gage Corporation, Int., and Mid-City Steel, Inc. Tamareed contends that Gage/Mid-City owes Tamareed approximately $1.2 million as a commission payment. This contention is based on Tamareed’s position that it fulfilled its contractual obligation to assist Gage/Mid-City in securing a contract to sell an architectural feature for a building project in Saudi Arabia. After the Saudi building project deal collapsed, Gage/Mid-City refused to pay Tamareed the $1.2 million commission it sought. This litigation followed.

Addressing summary judgment motions, the circuit court determined that Tamareed and Gage/Mid-City formed a contract through a series of letters and email messages. The court also determined, however, that this contract was ambiguous on the issue of what circumstances would trigger Tamareed’s entitlement to a commission, creating a jury issue. At trial, a jury found in Gage/Mid-City’s favor that Tamareed was not entitled to a commission. Based on those verdicts, the jury did not reach questions about the amount of commission owed or the potential for exemplary damages.

On appeal, Tamareed argues that the circuit court: (1) erred in concluding that the contract between Tamareed and Gage/Mid-City was ambiguous on the issue of what would entitle Tamareed to a commission because, according to Tamareed, case law resolves the ambiguity; (2) erred in dismissing Tamareed’s claim for unjust enrichment on the court’s stated ground that, if a contract covers the subject of an unjust enrichment claim, an allegedly aggrieved party cannot pursue both an unjust enrichment claim and a breach of contract claim; and (3) erroneously exercised its discretion in allowing certain expert testimony at trial and instructing the jury that it could consider the expert testimony. We reject each of Tamareed’s arguments and, accordingly, affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Sallie L. Rubenzer

Case No.: 2017AP1627-CR

Officials: Lundsten, P.J., Sherman, and Blanchard, JJ.

Focus: OWI – Motion to Suppress Evidence Denied

Sallie Rubenzer appeals a judgment convicting her of operating while intoxicated, as a fifth offense, contrary to WIS. STAT. § 346.63(1)(a) (2015-16).  Rubenzer argues that the circuit court erred by denying her motion to suppress evidence obtained pursuant to a warrantless entry into her garage. We affirm the judgment on the basis that the challenged evidence was admissible under the community caretaker exception to the warrant requirement.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Stephan I. Roberson

Case No.: 2017AP1894-CR

Officials: Lundsten, P.J., Blanchard and Fitzpatrick, JJ.

Focus: Suppression of Evidence

In this interlocutory appeal, the State argues that the circuit court, prior to trial, improperly suppressed evidence that a shooting victim identified a photo of defendant Roberson as the shooter. The State also argues that the circuit court relied on the taint of the pretrial identification using the photo to additionally and erroneously rule that the victim would not be allowed to identify Roberson in court. We agree with the State that these suppression rulings were in error. Accordingly, we reverse and remand for further proceedings.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Hector Rafael Rodriguez

Case No.: 2017AP1849-CR

Officials: Kessler, P.J., Brash and Dugan, JJ.

Focus: Court Error – Abuse of Discretion

Hector Rafael Rodriguez appeals a judgment convicting him of one count of second-degree sexual assault of a child under the age of sixteen. Rodriguez argues that the circuit court misused its discretion when it denied his pretrial motion to preclude the State from introducing at trial underwear worn by the victim. We affirm.

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WI Court of Appeals – District III

Case Name: Emil L. Wiesman v. Debra J. Wiesman

Case No.: 2017AP446

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Revocable Trust – Testamentary Capacity

Emil L. Wiesman (“Bud”) appeals a judgment, entered following a bench trial, voiding amendments made by his parents, Emil O. and Irma Wiesman, to their individual revocable living trusts. Bud argues the circuit court erred in finding that his parents lacked testamentary capacity when they amended their trusts in 2014. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ryan J. Hobbick

Case No.: 2017AP1400-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Court Error – Sufficiency of Evidence

Ryan Hobbick appeals a judgment, entered upon a jury’s verdict, convicting him of one count of burglary, as a party to the crime. He also appeals an order denying postconviction relief. Hobbick contends that: (1) the circuit court erroneously exercised its discretion by allowing the State to introduce “other acts” evidence at trial; (2) he was denied his due process right to a fair trial when the State failed to disclose a favorable plea agreement it had reached with his codefendant, Miles Gloss; and (3) his trial attorney provided ineffective assistance by failing to cross-examine Gloss about his plea agreement and by failing to request a cautionary jury instruction regarding the same. We reject Hobbick’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Conrad Kudelka, Jr.,

Case No.: 2017AP1476-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Sentencing Guidelines

Conrad Kudelka, Jr., appeals a judgment convicting him of one count of attempted child enticement. He also appeals an order denying his motion for postconviction relief. Kudelka argues, for several reasons, that the circuit court erroneously exercised its discretion when sentencing him.  We reject Kudelka’s arguments and affirm.

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WI Court of Appeals – District II

Case Name: Thomas C. Tefelske, et al. v. Metallurgical Associates, Inc., et al.

Case No.: 2018AP395

Officials: HAGEDORN, J.

Focus: Contempt of Court – Imposed Sanctions

Robert Hutchinson appeals after the circuit court found him in contempt and imposed sanctions for violation of court orders not to publicly disclose confidential customer information. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jason P. Robinson

Case No.: 2018AP675-CRNM

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: No-merit Report

Jason P. Robinson appeals from a judgment of conviction for repeated sexual assault of a child. His appellate counsel has filed a no-merit report pursuant to WIS. STAT. RULE 809.32 (2015-16), and Anders v. California, 386 U.S. 738 (1967). Robinson received a copy of the report and was advised of his right to file a response. He has elected not to do so. Upon consideration of the report and an independent review of the record, the judgment is summarily affirmed because there is no arguable merit to any issue that could be raised on appeal. See WIS. STAT. RULE 809.21.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kevin M. Williams

Case No.: 2017AP1074-CR

Officials: Lundsten, P.J., Sherman and Fitzpatrick, JJ.

Focus: Postconviction Motion Denied

Kevin Williams appeals a judgment of conviction and an order denying his motion for postconviction relief. We affirm.

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WI Court of Appeals – District IV

Case Name: Rock County Department of Human Services v. L.H.,

Case No.: 2018AP1308

Officials: KLOPPENBURG, J.

Focus: Termination of Parental Rights

L.H. seeks reversal of the order terminating her parental rights to S.H. L.H. argues that the circuit court erroneously determined that the Rock County Department of Human Services met its burden of proving that there was a substantial likelihood that L.H. would not meet the conditions for the safe return of S.H. within nine months because, as L.H. asserts, the court found that “[it] did not know whether L.H. would meet the conditions.” For the reasons stated below, the order is affirmed.

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