Frasier, Matter of

• Decision Date: 21 March 1986
• Docket Number: Docket No. 81165
• Citation: 382 N.W.2d 806,147 Mich.App. 492
• Parties: In the Matter of Jennifer and Michelle FRASIER, Minors. WASHTENAW COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Charlotte FRASIER and Michael Frasier, Respondents-Appellants. 147 Mich.App. 492, 382 N.W.2d 806
• Court: Court of Appeal of Michigan — District of US

Page 806

382 N.W.2d 806

In the Matter of Jennifer and Michelle FRASIER, MinorsWASHTENAW COUNTY DEPARTMENT OF SOCIAL SERVICESPetitioner-Appellee, v.Charlotte FRASIER and Michael FrasierRespondents-Appellants.

Docket No. 81165.

147 Mich.App. 492, 382 N.W.2d 806

Court of Appeals of Michigan.

Submitted Oct. 9, 1985.

Decided Dec. 3, 1985.

Released for Publication March 21, 1986.

[147 MICHAPP 493]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., William I. Delhey, Pros.Atty., and Larry Burgess, Asst. Pros.Atty., Ann Arbor, for Dept. of Social Services.

Joseph Cutro, Ann Arbor, for respondents-appellants Charlotte and Michael Frasier.

Howard Grodman, Ann Arbor, for the minor children.

Before J.H. GILLIS, P.J., and CYNAR and EVANS, ^* JJ.

PER CURIAM.

Respondents, the legal parents of Jennifer Frasier, born in 1975, and Michelle Frasier, born in 1977, appeal from an order terminating their parental rights.

The Michigan Department of Social Services(DSS) became aware of a problem with the children based on an allegation of physical abuse as to Jennifer Frasier.On March 14, 1984, following the filing of an emergency petition, the children were removed from the custody of respondents and placed in foster care.After petitions were filed on March 21, 1984, hearings were held on March 26, 1984, and respondents pled no contest to the allegations.The court continued placement in foster care.On June 27, 1984, petitions for termination of respondents' parental rights were filed.The petitions alleged that respondents had sexually abused their children and had failed to protect their children from sexual abuse by others.On July 16, 1984, at a plea hearing held on the petitions, respondents contested the allegations.A pretrial conference was set for August 8, 1984.At the pretrial conference, a hearing on respondents' [147 MICHAPP 494]motion to withdraw the no contest pleas to the emergency petitions was set for August 28, 1984, and a non-jury trial was set for October 9-10, 1984.On August 28, 1984, the respondents' motion to withdraw their pleas of no contest was denied; however, the court ruled that the pleas of no contest could not be mentioned or referred to in the petition to terminate parental rights.On October 9-10, 1984, a non-jury trial was held, and the trial court order termination of parental rights and set the dispositional hearing for October 29, 1984.Respondents' parental rights were terminated at the conclusion of the dispositional hearing.

Respondents submit two issues for appellate consideration, neither of which require reversal.

In the first issue respondents infer that the trial court found that the standard of proof in a termination action is by a preponderance of the evidence and not clear and convincing evidence.The record does not support this position.

The juvenile court rules divide child protection proceedings into two phases--adjudicative and dispositional.JCR 1969, 8.1(now MCR 5.908[A] ) provided:

"(a) Adjudicative Phase.The adjudicative phrase determines whether the child comes within the court's jurisdiction under M.C.L.A. Sec. 712A.1 et seq.;M.S.A. Sec. 27.3178(598.1) et seq., as alleged in the petition.There is a right to jury trial.

"(b) Dispositional Phase.The dispositional phrase determines measures to be taken by the court with respect to the child and adults properly within its jurisdiction if the court has determined at the adjudicative phase that the child comes within the statute.There is no right to jury trial."

The primary differences between the two phases is [147 MICHAPP 495] the type of evidence that may be introduced and the standard of proof.

"(a) Adjudicative Phase.Absent a valid plea in confession, only competent, relevant, and material evidence is admissible at the adjudicative phase.In a case involving an offense by a child the rules of evidence for a criminal proceeding and the standard of proof beyond a reasonable doubt apply.In a case involving an offense against a child, the rules of evidence for a civil proceeding and the standard of proof by a preponderance of the evidence apply.

"(b) Dispositional Phase.In the dispositional phase only relevant and material evidence may be considered.Clear and convincing evidence is required to terminate parental rights."JCR 1969, 8.3(now MCR 5.908[C] ).

On October 10, 1984, at the conclusion of the petitioner's proofs, defense counsel exercised her right to make an opening statement which she had previously reserved.At the commencement of defense counsel's statements, an exchange took place between defense counsel and the trial judge.A fair reading of the record at this point indicates some lack of communication.All the same, it is clear, the trial judge recognized that in cases involving termination of parental rights, the standard of proof is "by a preponderance of the evidence" in the adjudicative phase and, in the dispositional phase, the standard is "clear and convincing evidence".The trial judge's expressions indicate that he considered the October 9th and 10th hearings as adjudicative.

At the conclusion of the proofs and arguments, the trial judge noted the standard required was preponderance of the evidence, although the proofs were much stronger, being clear and convincing.The trial court felt that because of the parents' neglect, there was no alternative but to terminate [147 MICHAPP 496] and accordingly ordered the parental rights terminated.The trial court set a dispositional hearing for October 29th, on which date the parents were to be afforded an opportunity to present testimony.The trial court reserved a final ruling on the termination of parental rights pending the October 29th dispositional hearing, disposition to be based on clear and convincing evidence.

Since the trial court recognized the hearings on October 9th and 10th as adjudicative, we are forced to conclude that the court's termination of parental rights was in error;...