In re Brettschneider
| Decision Date | 07 April 2022 |
| Docket Number | 357318 |
| Parties | In re N.M. BRETTSCHNEIDER, Minor. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Monroe Circuit Court Family Division LC No. 19-024914-NA
Before: Gadola, P.J., and Borrello and M. J. Kelly, JJ.
Respondent-father appeals as of right the trial court's order terminating his parental rights to his minor child, NMB, under MCL 712A.19b(3)(j) and (k)(ii). We affirm.
Respondent and Andrea Brettschneider married in 2009, when they learned that Andrea was pregnant with respondent's daughter, NMB. During the marriage, respondent and Andrea lived with their daughter NMB, and Andrea's two older children from a prior marriage, SP and SP2. In October 2019, respondent filed for divorce. During the pendency of the divorce action respondent remained in the family home. The trial court terminated respondent's parental rights to NMB on the basis of its findings that he sexually abused his stepdaughter, SP. During an adjudication trial that was delayed for more than 15 months because of COVID-19 pandemic restrictions, SP testified that when she was between the ages of 8 and 14, respondent sexually abused her on multiple occasions in the family's two homes and on family vacations in South Carolina. Respondent denied sexually abusing SP, and several friends and family members testified among other things, that respondent was known to be a truthful individual. At the conclusion of the adjudicative trial, the trial court found that NMB came within its jurisdiction under MCL 712A.2(b)(1) and (2).
At the dispositional phase of the proceedings the parties offered additional testimony related to NMB's best interests. At the conclusion of the best interests hearing the court considered the evidence offered at the adjudication trial as well as the dispositional hearing, and found that petitioner had established the statutory grounds for termination by clear and convincing evidence, and that termination of respondent's parental rights was in NMB's best interests. This appeal followed.
On appeal respondent asserts that the trial court erred by denying his request for a jury trial at the adjudicative stage. We disagree. A trial court's decision whether to grant an untimely request for a jury trial is reviewed for an abuse of discretion. In re Hubel, 148 Mich.App. 696 697-701; 384 N.W.2d 849 (1986). An abuse of discretion occurs when the trial court's decision is outside the range of reasonable and principled outcomes. Hecht v. Nat'l Heritage Academies, Inc, 499 Mich. 586, 604; 886 N.W.2d 135 (2016). This Court reviews de novo questions involving the interpretation and application of court rules. In re Sanders, 495 Mich. 394, 404; 852 N.W.2d 524 (2014). "When called upon to interpret and apply a court rule, this Court applies the principles that govern statutory interpretation." In re Mota, 334 Mich.App. 300, 311; 964 N.W.2d 881 (2020) (quotation marks and citation omitted). "Court rules should be interpreted to effect the intent of the drafter, the Michigan Supreme Court." Id. (Quotation marks and citation omitted). Further, clear and unambiguous language should be given its plain meaning and enforced as written. Id.
A party is entitled to a jury trial only at the adjudicative phase of a child protective proceeding. MCR 3.911(A); In re Sanders, 495 Mich. at 405. Under MCR 3.911(B), a party who is entitled to a trial by jury may file with the court a written demand for a jury trial within "(1) 14 days after the court gives notice of the right to jury trial, or (2) 14 days after an appearance by an attorney or lawyer-guardian ad litem, whichever is later, but no later than 21 days before trial." The court may also "excuse a late filing in the interest of justice." MCR 3.911(B). In this case, respondent's jury demand was untimely and the interest of justice did not require the trial court to excuse the late filing.
In the summons and order to appear that accompanied the initial petition filed in December 2019, respondent was advised in writing of his right to a trial by jury and the requirement under the court rule that if he desired a trial by jury he must file a written request with the court within 14 days after receiving the notice, or 14 days after an appearance by an attorney, whichever is later, but no later than 21 days before trial. At the preliminary hearing on December 10, 2019, consistent with the requirements of MCR 3.965, the court orally advised respondent, again, that he had a right to a trial by jury and that he would be required to file a jury demand in a manner consistent with the requirements of MCR 3.911(B). At the conclusion of the December 10, 2019 preliminary hearing, respondent was provided an advice of rights form that again advised him of his right to a jury trial and the manner in which a demand was to be made. Respondent signed this document acknowledging its receipt. Further, the court requested that respondent's attorney review the advice of rights with his client.
On December 19, 2019, respondent was appointed substitute counsel. That same day, he was advised of the original scheduled trial date of March 2, 2020. The adjudication trial was thereafter adjourned and rescheduled multiple times. In late May 2020, the trial date was ostensibly scheduled for July 23, 2020. It was only at this point that respondent appeared to take any action. On June 16, 2020, he filed a demand for a jury trial. In this demand, respondent admitted that the request was untimely, but he asserted that the interest of justice required that he be granted a trial by jury. At a June 23, 2020 hearing, respondent once again admitted that the jury demand was untimely, but continued to assert that his motion should be granted in the interest of justice. Finding respondent's position unpersuasive, the trial court denied the motion for a jury trial.
Thereafter, the adjudication trial was adjourned and rescheduled several times because of high COVID-19 infection rates, COVID-19 restrictions, and respondent's request that SP and NMB testify in person. After one of the last adjournments, respondent again filed a demand for a jury trial. Respondent argued that MCR 3.911 expressly allowed for the late filing of a jury demand so long as it was filed more than 21 days before trial. He then reasoned that in light of the most recent adjournment of the trial date, his demand was timely. At a January 19, 2021 hearing, the court denied respondent's motion for a jury trial and scheduled the bench trial for March 18, 2021. The adjudication trial ultimately began on that date, more than 16 months after the filing of the petition.
Considering the foregoing chronology, the trial court did not abuse its discretion when it denied, on two occasions, respondent's request for a jury trial. Applying the plain language of MCR 3.911(B), respondent's demands for a jury trial were untimely. Respondent was informed of his right to a jury trial and the proper method by which to preserve that right at the December 10, 2019 preliminary hearing. Then on December 19, 2019, respondent was appointed substitute counsel. On that same day, he was advised of the original scheduled trial date of March 2, 2020. Applying the plain language of the court rule, respondent could have filed a demand for a jury trial up to February 10, 2020. Respondent did not file a demand within the time prescribed and, accordingly, his later demands, filed on June 16, 2020 and November 30, 2020, were untimely.
Further, it is of no moment that the date of the adjudication trial was repeatedly adjourned. Respondent asserts on appeal that his last demand for a jury trial was timely because it was made more than 21 days in advance of the March 18, 2021 trial date. However, there is no support for respondent's suggestion that each time an adjudication trial is adjourned, the clock for filing a jury demand would restart such that a demand would be timely so long as it was made 21 days before the newly scheduled trial. Indeed, such an interpretation is inconsistent with the plain language of MCR 3.911(B) and would render nugatory nearly the entire court rule.
We also note that respondent conceded, on many occasions, that his demand for a jury trial was untimely. He cannot now advance a different theory. "A party may not take a position in the trial court and subsequently seek redress in an appellate court that is based on a position contrary to that taken in the trial court." Holmes v. Holmes, 281 Mich.App. 575, 587-588; 760 N.W.2d 300 (2008) (quotation marks and citation omitted). That is, "[a] party cannot stipulate [to] a matter and then argue on appeal that the resultant action was error." Id. at 588 (quotation marks and citation omitted). To allow a respondent to assign "error on appeal [to] something that [he] deemed proper in the lower court" would "permit [a] respondent to harbor error as an appellate parachute." In re Hudson, 294 Mich.App. 261, 264; 817 N.W.2d 115 (2011).
Respondent correctly notes that even if he failed to make a timely jury demand, the court may excuse the late demand "in the interest of justice." MCR 3.911(B). This is a discretionary decision and, after reviewing the record, we conclude that the trial court did not abuse its discretion when it declined to excuse the late request. Respondent made no mention of a jury trial within the requisite time. When he was given notice that the adjudication would be by bench trial in February 2020, he did nothing. NMB, whose well-being constituted the focus of this child protective proceeding, had already waited an inordinate amount of time for finality due not only to emergency orders related to the COVID-19 pandemic, but also requested adjournments. The...
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