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            In In re LMB (Docket No. 338169), the Court of Appeals held that entry of an order of filiation while an adoption appeal was pending mooted the adoption appeal.

            The adoption case involved a putative father who had undisputedly neither provided any support to the child or the birth mother, nor had any custodial relationship with the child. The adoption trial court refused to terminate the putative father’s rights to the child, but its own opinion was highly critical of the putative father. The prospective adoptive parents appealed the decision of the trial court, questioning both the trial court’s choice of standard of proof, and whether custody with the putative father was truly in the child’s best interests given the copious evidence of immaturity, irresponsibility, and instability.

            After the Section 39 hearing under the Adoption Code had begun, the putative father filed a paternity action. While the adoption appeal was pending, the paternity trial court entered an order of filiation making the putative father the legal father of the child. The prospective adoptive parents attempted to stay the paternity case and prevent entry of an order of filiation prior to resolution of their adoption appeal, but the paternity trial court refused to stay the case, and the Court of Appeals dismissed the adoption appeal as moot.

            In re LMB brings to light important issues with respect to the interplay of the Paternity Act and the Adoption Code. The Court of Appeals’ decision, with no concurrent policy that paternity courts stay their proceedings pending adoption matters, creates real problems in the area of adoption law. The ability to moot an adoption appeal simply by obtaining a DNA test and an order of filiation effectively eliminates the ability of prospective adoptive parents or birth mothers to appeal any adoption case denying termination of parental rights, which eliminates appellate review of any adoption decision favoring a putative father. The ability to actively prevent appellate review through a concurrent paternity proceeding will lead to poor and inconsistent application of the law and unpredictability for prospective adoptive parents in any case in which a putative father may emerge seeking the child.

            An application for leave to appeal is now pending in the Michigan Supreme Court in LMB, as well as an application to the Court of Appeals of the related paternity case—in the hopes of obtaining a decision that will preserve prospective adoptive parents’ right to appeal and adoptees’ rights to a placement based on their best interests.

             For the second time and on identical issues, the matter of In reJones, Minors, No. 336836, came before the Michigan Court of Appeals (MCOA) on the father’s appeal of a circuit court order terminating his parental rights. The MCOA again reversed and remanded for further proceedings, this time before a different jurist.

FACTS:

            The basic facts are the same for both appeals. The two children, NAJ and NNJ accused the father of sexually abusing NAJ. In the first hearing (In re Jones, Minors, No.332616) recordings of the children’s forensic interviews were admitted into evidence at a combined adjudicative and dispositional hearing. Based on this evidence, the trial court found it had jurisdiction over the children and that the statutory grounds for termination had been proved by clear and convincing legally admissible evidence. This procedure was repeated when the case came back to the trial court and was heard by the same referee.

Trial Court Commits Two Fundamental Errors:

            First, the court didn’t conduct separate adjudicative and dispositional hearings. As explained in a 2006 case, the adjudicative phase occurs first and determines whether the child comes within statutory requirements of MCL. 712A.2 (b) giving the court jurisdiction. The disposition follows to determine what needs to be done on behalf of the child.

            Second, the court based its decision to terminate parental rights at the first disposition on legally inadmissible evidence. The rules provide that hearsay evidence of a child’s statement of sexual abuse can be admitted if brought through the testimony of person who heard the statements. This was not done at adjudication. To use this testimony, the court must determine the trustworthiness of the statements by viewing the forensic interview and then allow a witness to the child victim’s statements to testify. The forensic interviews alone are admissible at all hearings except adjudication.

            Because the court made its determinations to take jurisdiction on legally inadmissible evidence and then to terminate on the same evidence, which are fundamental procedural and evidentiary errors, the court reversed and remanded.

Errors Repeated at Remand: New Jurist Ordered

            When the matter came back to the court, it was heard by the same jurist. The same procedure was used as in the first case and, therefore, the same errors were committed. The Court of Appeals’ impatience is revealed in its statement:

“Because of these fundamental procedural and evidentiary errors, we again reverse the trial court’s order terminating respondent’s parental rights and remand this case to the trial court for a new hearing. Because the referee has shown an inability to follow this Court’s instructions, the case shall be assigned to a judge or another referee on remand to preserve the appearance of justice.”