Stick to the Rules in Child Protective Proceedings

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 In Re Jones, unpublished per curiam, issued November 8, 2016 (Docket No. 332616).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.