Trial Court Errors Were Not Harmless: Adjudication, Termination & Injunctive Orders Vacated

In this termination of parental right case, the trial court erroneously admitted an exhibit that contained hearsay and, as a result, the adjudication, termination order and injunctive order must all be vacated, the Michigan Court of Appeals has ruled.

The respondent-father in In re Stafford, Minor (Docket No. 360307) previously had parental rights to three of his children terminated. He also had criminal convictions for domestic violence. Given this history, the petitioner-Department of Health and Human Services (the DHHS) asked the Huron County Circuit Court to terminate his parental rights to the child in this case.

The respondent requested a jury trial at the adjudicative phase of the proceeding. Although the jury was deadlocked initially, it subsequently found there was a risk of harm to the child’s mental well-being. This finding allowed the trial court to assume jurisdiction over the child. The trial court ultimately terminated the respondent’s parental rights at his initial dispositional hearing after finding that clear and convincing evidence supported termination under MCL 712A.19b(3)(g), (i) and (j), and that doing so was in the child’s best interests. In addition, the trial court issued an injunction that “permanently and completely” enjoined the respondent from “having any direct and/or indirect contact with the child until such time as the child reaches the age of 18.”

The respondent appealed. He argued the trial court:

• erred by admitting an exhibit that contained hearsay during the adjudication phase.

• wrongly issued an injunction after terminating his parental rights.

The Court of Appeals agreed, vacated the trial court’s orders and remanded the case.

The trial court “abused its discretion by providing the jury with inadmissible documentary evidence that could have been easily separated from the document packet,” the Court of Appeals said, finding the trial court’s error was not harmless. “Because we are vacating the adjudication, the subsequent termination order must also be vacated” and the injunction “is also vacated given our ruling in this case.”

Judges David H. Sawyer, Douglas B. Shapiro and James Robert Redford were on the Court of Appeals panel that issued the unpublished opinion.

Not Harmless Error

In its analysis, the Court of Appeals first addressed the evidentiary issue and noted that MCR 3.972(C)(1) says: “Except as otherwise provided in these rules, the rules of evidence for a civil proceeding and the standard of proof by a preponderance of evidence apply at the trial, notwithstanding that the petition contains a request to terminate parental rights.”

Here, the DHHS sought to admit a packet of documents relating to the previous termination of the respondent’s parental rights, including: 1) a 2018 order dismissing the children as permanent wards of the court, 2) a 2015 order of termination and 3) a supplemental petition for termination, including the supporting allegations. Counsel for the respondent objected to admitting the petition allegations, claiming they constituted hearsay. The trial court then instructed the jury to consider only the first five pages of the packet, which included the orders and the petition cover sheet. The trial court explained to the jury that in the previous termination action “there were a lot of allegations made” and the jury was not trying those allegations.

According to the Court of Appeals, it was “unclear” whether the trial court determined the petition allegations were inadmissible hearsay or whether it was exercising its discretion to preclude the evidence under MRE 403. “What is clear, however,” the Court of Appeals continued, “is that the trial court determined that the petition allegations were not admissible evidence to be considered by the jury. Accordingly, the trial court should have ordered that the petition allegations, or better yet the petition itself, be unstapled from the packet containing the admissible court orders and not be given to the jury. Inexplicably, however, the trial court admitted the entire packet into evidence under the apparent conclusion that a limiting instruction for the jury not to consider the allegations was sufficient. Given that the evidence was plainly inadmissible and withholding the document from the jury presented no evidentiary or practical problems, submitting it to the jury was an abuse of discretion.”

The Court of Appeals rejected the DHHS’s argument that any error admitting the documents was harmless, given the limiting jury instruction. “[O]ur caselaw does not require us to affirm sufficiently serious, avoidable errors merely because they were accompanied by a limiting instruction. And we decline to adopt the view that any and all inadmissible evidence could be presented to the jury so long as the jury is instructed not to consider said evidence. This is inconsistent with the rules of evidence and substantial justice.”

The Court of Appeals also observed that this case initially had a deadlocked jury. “And petitioner does not dispute that the allegations from the prior case were highly prejudicial to respondent. Further, the court’s limiting instruct[ion] was possibly undermined by the child’s guardian ad litem (L-GAL) argument to the jury that how respondent treated one child was evidence of how he would treat other children.”

The trial court “abused its discretion by providing the jury with inadmissible documentary evidence that could have been easily separated from the document packet,” the Court of Appeals stated. “And given the magnitude of the error we will not presume that any prejudice was cured by the court’s limiting instruction. Further, there is a reasonable basis to conclude that respondent was in fact prejudiced by this error because this was a close case and the petition allegations were highly prejudicial. Under these circumstances, we conclude that failing to order a new adjudication trial ‘would be inconsistent with substantial justice.’”

Therefore, “we remand for respondent to be retried at the adjudicative stage,” the Court of Appeals concluded.

Because it vacated the adjudication, the Court of Appeals said that it also had to vacate the termination order. At the dispositional hearing, “the prosecutor moved to admit the petition portions of the record from respondent’s previous termination case. The trial court ruled that the records of the prior termination, including the petition allegations, were admissible at the dispositional proceeding. The trial court’s ruling was erroneous because, for the reasons discussed, the petition allegations were not ‘legally admissible evidence’ introduced at the adjudication trial. Accordingly, the trial court abused its discretion by admitting and relying on the prior petition allegations to terminate respondent’s parental rights at the initial dispositional hearing. Should this case again proceed to that stage, the trial court shall follow MCR 3.977(E) and only consider the evidence admitted at the adjudication.”

Injunction Unnecessary

Next, the Court of Appeals vacated the trial court’s injunction order, finding that “absent evidence-based findings that such a far-reaching order is in the best interests of the child,” an injunction may not be issued.

The Court of Appeals pointed out that MCL 712A.6 gives trial courts the authority to “make orders affecting adults as in the opinion of the court are necessary for the physical, mental, or moral well-being of a particular juvenile or juveniles under its jurisdiction. However, those orders must be incidental to the jurisdiction of the court over the juvenile or juveniles.”

The Court of Appeals then looked to the recent decision in In re Wilson (Docket No. 356370), which “reversed the automatic issuance of an injunction by this same trial court and remanded for the court to articulate a finding for why a similar injunction was necessary for the child’s well-being.” In Wilson, the appellate court explained that such an injunction can only be granted if “necessary for the physical, mental, or moral well-being of the child” and observed that “[t]he word ‘necessary’ is sufficient to convey to probate courts that they should be conservative in the exercise of their power over adults ….”

Although Wilson is an unpublished opinion, the Court of Appeals said it found the reasoning persuasive. “In this case, as in Wilson, the trial court articulated no reason for issuing so sweeping an injunction and appeared to issue the order as if it was routine in termination cases. ‘Such an “automatic” order is inconsistent with the statute’s authorization of orders that are “necessary” for a child’s well-being.’”

Based on the foregoing analysis, the Court of Appeals vacated the adjudication, termination order and injunctive order, and remanded the case for further proceedings.