Trial Court Did Not Properly Assume Jurisdiction, Termination Of Parental Rights Vacated

The termination of the respondents’ parental rights must be vacated because the trial court did not properly conduct the adjudication hearing in the case, the Michigan Court of Appeals has ruled.

The respondent-father in In re G Mauk, Minor (Docket Nos. 363245, 363246 and 363247) appealed the termination of his parental rights to the minor children, GM and MH, under the following sections of MCL 712A.19b(3):

• (k)(ii) (parent abused the child or a sibling of the child and the abuse included criminal sexual conduct involving penetration).

• (k)(ix) (parent sexually abused a child or a sibling of the child).

• (m)(i) (parent convicted of first-degree criminal sexual conduct (CSC-I)). 

Meanwhile, the respondent-mother also appealed the termination of her parental rights to MH under the following sections of MCL 712A.19b(3):

• (a)(ii) (parent has deserted the child for 91 or more days).

• (c)(i) (conditions that led to the adjudication continue to exist). 

“[W]e conclude that the trial court erred by failing to distinguish between the adjudicative and dispositional phases of the termination proceeding in violation of the court rules governing termination proceedings and Michigan caselaw,” the Court of Appeals said. “Accordingly, we vacate the trial court’s termination orders and remand for further proceedings ….”

Judge Kathleen A. Feeney, Judge Michelle M. Rick and Judge Noah P. Hood were on the panel that issued the unpublished opinion.

Background

The Department of Health and Human Services (the DHHS) filed the initial petition for termination of parental rights after MH alleged the respondent-father had sexually abused her over a period of two years. The petition also alleged the respondent-mother failed to protect MH from the abuse and requested the termination of both respondents’ parental rights. 

Upon reviewing the petition, the Iosco County Circuit Court gave the respondent-father the opportunity to challenge the criminal charges filed against him arising out of MH’s claims of abuse (at the time, he had not been criminally convicted of the alleged abuse). The trial court also found that the respondent-mother’s parental rights should not be terminated immediately, pointing out that she only had supervised visitation rights with MH when the alleged abuse occurred. The trial court believed the respondent-mother “was not in a position to protect MH from father’s abuse” and took temporary jurisdiction over both children pursuant to MCL 712A.2(b). The trial court continued that jurisdiction in subsequent orders.

The DHHS filed an amended petition in November 2021, alleging the respondent-mother had deserted MH. The respondent-father was later convicted of 13 counts of CSC-I for his sexual assaults on MH. However, the DHHS was unable to serve the respondent-mother with a copy of the amended petition.

In June 2022, the DHHS filed a second amended petition that reiterated the allegations against the respondent-mother and included evidence of the respondent-father’s convictions. Again, the DHHS was unable to serve the respondent-mother with a copy of the petition. Therefore, the trial court allowed the DHHS to serve her with notice via publication.

The respondents stipulated facts that would establish grounds for termination. Following a combined adjudication and termination hearing, the trial court held that termination was in the children’s best interests. 

The respondents appealed.

‘Cart Without A Horse’

On appeal, the respondent-mother argued that her plea to the trial court’s jurisdiction at the combined adjudication and termination hearing was invalid because the trial court 1) did not advise her of her rights under MCR 3.971(B) and 2) otherwise failed to properly assume jurisdiction over the children.

“We agree, and find that the orders terminating both mother’s and father’s parental rights must be vacated,” the Court of Appeals said.

At the outset, the Court of Appeals addressed the respondent-mother’s argument that she was not given adequate notice of the second amended petition. “Notice of the petition was given by publication because mother could not be located for a lengthy period during the termination proceedings below,” the appeals court wrote. “A review of the record and relevant law belies mother’s claim on this point. … Contrary to mother’s assertion, a copy of a notarized affidavit of publication is contained in the record.” As a result, the appeals court found that notice was properly given.

“However,” the Court of Appeals continued, “we agree with mother that the trial court failed to properly conduct an adjudication hearing in this case, and that remand is therefore necessary.”

The respondent-mother argued the trial court held a combined adjudication and termination proceeding that did not adequately differentiate between the adjudicatory and dispositional phases. “Mother further contends the court failed to advise her of her rights under MCR 3.971,” the Court of Appeals noted. “Relatedly, she argues that her stipulation to certain facts at the combined hearing did not constitute a plea of admission to confer jurisdiction on the trial court.  We agree.”

According to the Court of Appeals, the adjudication phase must precede the dispositional phase “and although a dispositional hearing may immediately follow an adjudication, they may not be combined to the extent that there is no distinction between them.”

The respondent-mother’s argument primarily focused on the adjudication process and compliance with MCR 3.971, the Court of Appeals observed. “Because parents have the right to direct the care, custody, and control of their children, an adjudicatory plea must be knowingly, understandingly, and voluntarily made before a trial court may accept it. … The trial court must advise the respondent of his or her rights on the record or in writing, as provided in MCR 3.971(B)(1) through (8), before the court may accept the plea. The advice of rights must specifically include an admonition that the ‘respondent may be barred from challenging the assumption of jurisdiction in an appeal from the order terminating parental rights if they do not timely file an appeal of the initial dispositional order ….’ … It is apparent from the record that none of the foregoing steps took place at the combined adjudication and termination hearing.”

The Court of Appeals explained the trial court made numerous “serious errors that irreparably tainted” the proceedings. “It is clear that the trial court was not taking mother’s plea of admission for purposes of establishing its jurisdiction. It instead elected to relieve the DHHS of its responsibility to establish grounds for termination by clear and convincing evidence by asking mother to stipulate to a number of incriminating facts without expressly explaining to her that the purpose of doing so was to establish facts supporting termination, rather than facts relevant to an adjudicatory plea, which never took place. Additionally, the trial court specifically referred to the DHHS’s burden to establish the facts by clear and convincing evidence, which is the burden of proof for termination, not for adjudication. And instead of asking whether mother knew that her stipulations could be used in a later termination hearing under MCR 3.971(B)(4), the court simply asked if she understood that her stipulation would result in the termination of her parental rights.”

It was “apparent from the record” that the trial court “completely skipped the adjudicatory phase of the termination proceedings,” the Court of Appeals said. “In the process, the trial court also failed to advise mother that by agreeing to the stipulations made on the record, she was giving up her right to a jury trial, her right to subpoena witnesses, and her right to cross-examine witnesses.  … Thus, the trial court never properly exercised jurisdiction in this case.”

Moreover, the trial court “did not accurately advise mother of her appellate right to challenge the trial court’s attempt to exercise jurisdiction on appeal,” the Court of Appeals said. “Specifically, the court stated that mother could appeal, but made no distinction between an appeal of the court’s jurisdiction and an appeal related to a dispositional order. Nothing in the record suggests that mother understood that there was a difference.”

Looking at case precedent, the Court of Appeals said this case was “more akin” to In re Thompson, 318 Mich App 375 (2016), instead of In re Mota, 334 Mich App 300 (2020). “The record in this case does not indicate that the trial court simply made errors in failing to distinguish the adjudication of jurisdiction from the termination. Rather, the trial court did not address jurisdiction at all. It did not engage in anything that could be remotely identified as an adjudication. Although the trial court said the word ‘jurisdiction’ while discussing father’s stipulations, the trial court never stated that the stipulations amounted to a plea of admission for jurisdictional purposes, and it never mentioned the court’s assumption of jurisdiction in its ruling. If the In re Thompson Court concluded that making jurisdiction an ‘afterthought’ was putting the cart before the horse, … the trial court’s failure to rule on the issue of jurisdiction in this case amounts to a cart without a horse.”

The question of jurisdiction is “critically important” because the procedures put in place protect parents from the risk of error in the deprivation of their parental rights, the Court of Appeals emphasized. “Had the trial court made the distinction between adjudication and disposition by following MCR 3.971, this case would certainly have proceeded differently. But the trial court’s failure to conduct the adjudicative phase of the child protective proceeding before it made its dispositional ruling is not one that can be overlooked.”

Although the respondent-father did not raise this issue on appeal, “the order as to father’s parental rights was issued after the same hearing and is thus tainted by the same procedural errors,” the Court of Appeals held. “Accordingly, reversal is warranted as to both parties.”