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.”
Labels: adjudication, Child Statement, Dispositional Hearing, Forensic Interviews, Inadmissible Evidence, Sexual Abuse, termination of parental rights, Wayne County