In re A.M.A.C.

• Decision Date: 24 January 2006
• Docket Number: Docket No. 263062.
• Citation: 269 Mich. App. 533,711 N.W.2d 426
• Parties: In the Matter of A.M.A.C., Minor. Department of Human Services, formerly known as Family Independence Agency, Petitioner-Appellee, v. Brandy Lee Cox, Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

711 N.W.2d 426

269 Mich. App. 533

In the Matter of A.M.A.C., Minor.

Department of Human Services, formerly known as Family Independence Agency, Petitioner-Appellee, v. Brandy Lee Cox, Respondent-Appellant.

Docket No. 263062.

Court of Appeals of Michigan.

Submitted January 10, 2006, at Detroit.

Decided January 24, 2006, at 9:15 a.m.

Released for Publication March 31, 2006.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Danielle Walton, Assistant Prosecuting Attorney, for the petitioner.

J. Douglas Otlewski, Rochester, for the respondent.

William Lansat, Birmingham, for the minor child.

Before: MARK J. CAVANAGH, P.J., and HOEKSTRA and MARKEY, JJ.

MARK J. CAVANAGH, P.J.

Respondent appeals as of right an order terminating her parental rights to the minor child, AMAC, under MCL 712A.19b(3)(b)(i) (child or sibling suffered abuse and reasonable likelihood child will be abused), (g) (failure to provide proper care or custody), (j) (reasonable likelihood of harm if child is returned to parent's home), (k)(vi) (parent abused child or sibling and abuse included murder or attempted murder), and (m) (parental rights to another child voluntarily terminated under child protective laws). We vacate the order terminating parental rights.

A petition requesting termination of respondent's parental rights was filed following the birth of AMAC, which primarily alleged that AMAC faced a risk of harm if released from the hospital to her mother, respondent, because respondent's parental rights to two other children were voluntarily terminated after she attempted to strangle them to death. After a preliminary hearing was conducted, the petition was authorized and the court took temporary custody of the child. A trial, also known as an adjudicative hearing, was scheduled and conducted over the course of three days. See MCR 3.972; In re CR, 250 Mich.App. 185, 200, 646 N.W.2d 506 (2002). During the course of the trial, reference to a possible, future "best interests" hearing was made by respondent's counsel, as well as the guardian ad litem. In fact, respondent's counsel indicated that certain witnesses would be called at a "best interests" hearing but not at the adjudicative hearing.

At the conclusion of the proofs, consistently with MCR 3.972(D), the guardian ad litem recommended to the court that the only statutory ground alleged in the petition that was proven was that of the prior terminations. He also indicated that termination was not recommended at that point and that a psychiatric evaluation of respondent would be of great import to future proceedings. The trial court closed the hearing with the statement that it would take the matter under advisement and render a written opinion. The written opinion setting forth the court's findings of fact and conclusions of law was issued about two months later, and included the statement that "[t]he court finds that the prosecutor has met their burden of proof by clear and convincing evidence and terminates mother's parental rights pursuant to MCL 712A.19b(3)(b)(i), 3(g), 3(j), 3(k)(vi) and 3(l)¹ of the Juvenile Code." An order terminating respondent's parental rights was entered accordingly. Respondent appeals.

Respondent first argues that she was entitled to a "best interests" hearing before her parental rights were terminated, the deprivation of which constituted a denial of due process and violations of MCL 712A.19b(5) and MCR 3.977. We agree in part. Constitutional questions and issues of statutory interpretation, as well as family division procedure under the court rules, are reviewed de novo. See In re MU, 264 Mich.App. 270, 276-277, 690 N.W.2d 495 (2004); In re CR, supra at 197, 200, 646 N.W.2d 506.

Child protective proceedings have long been divided into two distinct phases: the adjudicative phase and the dispositional phase. See MCR 3.972; MCR 3.973; see, also, In re PAP, 247 Mich.App. 148, 153, 640 N.W.2d 880 (2001); In re Nunn, 168 Mich.App. 203, 206-207, 423 N.W.2d 619 (1988); In re Frasier, 147 Mich.App. 492, 494-495, 382 N.W.2d 806 (1985). The adjudicative phase occurs first and involves a determination whether the trial court may exercise jurisdiction over the child, i.e., whether the child comes within the statutory requirements of MCL 712A.2(b). In re Brock, 442 Mich. 101, 108-109, 499 N.W.2d 752 (1993). During the adjudicative phase, a trial may be held to determine whether any of the statutory grounds alleged in the petition have been proven.² MCR 3.972(E). If a trial is held, the respondent is entitled to a jury determination of the facts, the rules of evidence for a civil proceeding apply, and the standard of proof is a preponderance of the evidence. MCR 3.911; MCR 3.972(C)(1); In re PAP, supra at 152-153, 640 N.W.2d 880. After the trial, "the verdict must be whether one or more of the statutory grounds alleged in the petition have been proven." MCR 3.972(E). That is, the verdict must be whether the child comes within the jurisdiction of the court. If the court acquires jurisdiction over the child, the dispositional phase follows.

The dispositional phase involves a determination of what action, if any, will be taken on behalf of the child. See In re Brock, supra at 108, 499 N.W.2d 752. MCR 3.973 applies to this phase and provides:

(A) Purpose. A dispositional hearing is conducted to determine what measures the court will take with respect to a child properly within its jurisdiction and, when applicable, against any adult, once the court has determined following trial, plea of admission, or plea of no contest that one or more of the statutory grounds alleged in the petition are true.

(B) Notice. Unless the dispositional hearing is held immediately after the trial, notice of hearing may be given by scheduling it on the record in the presence of the parties or in accordance with MCR 3.920.

Unlike the adjudicative hearing, at the initial dispositional hearing the respondent is not entitled to a jury determination of the facts and, generally, the Michigan Rules of Evidence do not apply, so all relevant and material evidence is admissible. MCR 3.911; MCR 3.973(E); MCR 3.977(A)(3); In re Brock, supra at 108, 499 N.W.2d 752. If permanent termination of parental rights is sought, the petitioner bears the burden of proving the statutory basis for termination by clear and convincing evidence. MCR 3.977(A)(3) and (E); In re Brock, supra at 111-112, 499 N.W.2d 752.

Termination of parental rights may be ordered at the initial dispositional hearing. MCR 3.977(E); see, also, MCL 712A.19b(4). However, several conditions must be met, including (1) that the original or amended petition requested termination, (2) that the trier of fact found by a preponderance of the evidence at the adjudicative hearing that the child came within the jurisdiction of the court, and (3) that at the initial dispositional hearing, the court finds by clear and convincing legally admissible evidence that had been introduced at the adjudicative hearing or the plea proceeding or that is introduced at the dispositional hearing that a statutory ground for termination is established, "unless the court finds by clear and convincing evidence, in accordance with the rules of evidence as provided in subrule (G)(2), that termination of parental rights is not in the best interests of the child." MCR 3.977(E).

In this case, there was an adjudicative hearing that concluded with the trial court rendering its written opinion and order terminating respondent's parental rights without a dispositional hearing either immediately following the trial or by proper notice after the trial. See MCR 3.973(B). We construe the plain and ordinary language of MCR 3.973(A) as requiring a dispositional hearing to be "conducted to determine what measures the court will take with respect to a child properly within its jurisdiction. . . ." See Hinkle v. Wayne Co. Clerk, 467 Mich. 337, 340, 654 N.W.2d 315 (2002) (rules of statutory interpretation apply to the interpretation of court rules). Clearly, the dispositional hearing is to be held after the adjudicative phase of the proceeding in which it was determined that the child was properly within the court's jurisdiction. See MCR 3.973(A). And the dispositional hearing must be held either immediately following the adjudicative hearing or after proper notice. See 3.973(B). Therefore, the trial court erred here in not affording respondent her right to a dispositional hearing. See In re PAP, supra at 153, 640 N.W.2d 880; In re Nunn, supra at 207-208, 423 N.W.2d 619.

Our holding is consistent with longstanding practice and is cognizant of the different purposes served by the two phases of child protective proceedings. The dispositional phase is particularly important when permanent termination of parental rights is sought and the respondent entered a plea of admission or a plea of no contest, or when one of the statutory grounds for termination is clearly and convincingly established during the adjudicative phase, because it provides the respondent with an opportunity to persuade the court that, although a statutory ground for termination is met, termination is not in the best interests of the child. See In re Trejo, 462 Mich. 341, 356, 612 N.W.2d 407 (2000). This case presents that situation. Here, there is no possibility of respondent prevailing with regard to at least one of the statutory grounds for termination, namely MCL 712A.19b(3)(m).³ As illustrated by clear and convincing evidence, including respondent's trial testimony, her parental rights to two other children were previously voluntarily terminated. Thus, the dispositional hearing will necessarily focus only on the best interests of the child because that remains the only dispositive disputed issue.⁴ Without a...