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Remand for a Different Jurist due to Repeated Procedural Error

Posted on Thursday, November 16, 2017

             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.”

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Stick to the Rules in Child Protective Proceedings

Posted on Monday, November 21, 2016
The Court of Appeals recently reversed a trial court’s decision terminating parental rights based on the lack of jurisdiction and inadmissible evidence during the child protective proceedings. In Re Jones, unpublished per curiam, issued November 8, 2016 (Docket 332616). In Jones, the trial court relied on recordings of the children’s forensic interviews during a combined adjudicative and dispositional hearing. Id. The Court of Appeals found the trial court in Jones made two critical errors: (1) failure to conduct a separate dispositional and adjudicative hearing, and (2) fully relying on the legally inadmissible evidence of the recordings to find sexual abuse and to terminate parental rights.


Child protective proceedings must be separated into an adjudicative and dispositional proceeding. In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006).  First, the adjudicative proceeding happens in order to determine if the courts has jurisdiction over a child under MCL 712A.2(b). Id. During the adjudicative proceeding, hearsay evidence of a child’s statement is legally admissible under MCR 3.972(C)(2). In re Archer, 277 Mich App 71, 82; 744 NW2d 1 (2007). The Court of Appeals in Jones noted the trial court can view a recorded forensic interview during a separate tender-years evidentiary hearing in order to determine if hearsay testimony is allowed, but not admit the recorded interview itself. However,“a recorded forensic interview is admissible at all proceedings except the adjudication stage instead of the live testimony of the witness.” MCL 712A.17b(5) (emphasis added). If the trial court finds that it does have jurisdiction over the child after the adjudication proceeding, the parties continue to a dispositional hearing to determine what action to take for the child.  AMAC, 269 Mich App at 536-537. The court can terminate parental rights if it “finds on the basis of clear and convincing legally admissible evidence” during a dispositional hearing. MCR 3.977(E).

The trial court in Jones relied on the recorded forensic interview itself instead of non-hearsay evidence to establish jurisdiction over the children during a combined adjudicative and dispositional hearing. If the trial court in Jones had conducted a separate dispositional hearing, the forensic interview would be admissible evidence that could be a basis for parental termination. However, the fact that the evidence was used to establish jurisdiction during a combined adjudicative and dispositional hearing instead of relying on witness testimony during a separate adjudicative hearing, the trial court erred under MCL 712A.2(b) and MCR 3.972(C)(2). Therefore, the trial court committed grave procedural and evidentiary errors leading to an unfairness of Respondent-Father’s parental rights being terminated.

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