Nunn, Matter of, Docket No. 96956

Decision Date08 June 1988
Docket NumberDocket No. 96956
Citation168 Mich.App. 203,423 N.W.2d 619
PartiesIn the Matter of Gene Allan NUNN, Tina Marie Nunn, James Pemberton, and Lynn Marie Jansen, Minors. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Ruth Ann JANSEN, Respondent-Appellant, and James Pemberton, Respondent-Appellee, and Ralph Nunn and Michael Johnson, Respondents. 168 Mich.App. 203, 423 N.W.2d 619
CourtCourt of Appeal of Michigan — District of US

[168 MICHAPP 204] Lynn B. Dunbar, Pros. Atty., and Richard E. Noble, Asst. Pros. Atty., West Branch, for Ogemaw County Dept. of Social Services.

Jennings and Turkelson, P.C. by William P. Jennings, Jr., West Branch, for Ruth A. Jansen.

Before WAHLS, P.J., and MAHER and BOYLE, * JJ.

PER CURIAM.

Ruth Ann Jansen (hereinafter respondent)[168 MICHAPP 205] appeals as of right from a November 7, 1986, order of the Ogemaw County Probate Court which terminated her parental rights to her four minor children: Gene Allan Nunn, born September 25, 1977; Tina Marie Nunn, born May 26, 1979; Lynn Marie Jansen, born October 23, 1982; and James Pemberton, born April 4, 1984. We reverse and remand.

On July 16, 1986, petitions were filed by a social worker employed by the Ogemaw County Department of Social Services, alleging that respondent's children came within the provisions of M.C.L. Sec. 712A.2(b); M.S.A. Sec. 27.3178(598.2)(b), due to neglect, requesting that the juvenile division of the probate court take jurisdiction of the children. Following a preliminary hearing conducted on July 18, 1986, before a probate court referee at which several witnesses testified, the petitions were authorized and the children were made temporary wards of the court. On August 18 and 26, 1986, and October 6, 7 and 17, 1986, an adjudicative hearing was held in the probate court at which numerous witnesses testified, including social workers, mental health workers, a clinical psychologist, teachers, a school counselor, police officers, respondent's neighbors, respondent's mother, brother and husband, and respondent herself. On November 7, 1986, an opinion and order was issued terminating the parental rights of respondent, the mother of the four minor children, of Michael Johnson, the putative father of Lynn Jansen, of Ralph Nunn, the father of Gene Nunn and Tina Nunn, and of James Pemberton, the father of James Pemberton.

On appeal, respondent argues that error mandating reversal occurred when the trial court failed to denominate or identify a portion of the hearing as dispositional, thus terminating her parental[168 MICHAPP 206] rights after completing only the adjudicative phase of the proceeding. We agree.

MCR 5.908(A) describes the two phases--adjudicative and dispositional--which comprise a juvenile court proceeding:

"(A) Phases of Hearing. A juvenile court hearing on the formal calendar consists of an adjudicative phase and a dispositional phase.

"(1) Adjudicative Phase.

"(a) The adjudicative phase determines whether the child comes within the court's jurisdiction under the juvenile code as alleged in the petition. There is a right to jury trial.

"(b) Unless adjourned for good cause, the adjudicative phase must be heard within 42 days after the conclusion of the preliminary hearing, if the child has been detained.

"(2) Dispositional Phase.

"(a) The dispositional phase 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.

"(b) The interval between the adjudicative phase and the dispositional phase, if any, is within the court's discretion, but may not be more than 28 days after the adjudicative hearing without the parties' consent or without good cause, if the child is taken into custody and not released to a parent, guardian, relative, or other proper custodian."

Respondent, emphasizing that the probate court issued its order terminating parental rights at the conclusion of the adjudicative phase of the proceeding, contends that MCR 5.908(A) clearly envisions a procedure whereby a respondent is advised of the court's determination after the adjudicative phase and then is given an opportunity to present proofs opposing an unfavorable dispositional order. [168 MICHAPP 207] Petitioner, on the other hand, argues that the dispositional phase merely establishes the measures to be taken by the court once it has determined in the adjudicative phase that the child comes within the statutory jurisdiction of the court.

In the present case, petitions were filed on July 16, 1986, requesting the juvenile division of the probate court to take jurisdiction of respondent's four minor children, not to terminate respondent's parental rights. An exhaustive adjudicative hearing was subsequently conducted. The purpose of the adjudicative phase of a juvenile court hearing is to determine "whether the child comes within the court's jurisdiction under the juvenile code as alleged in the petition." MCR 5.908(A)(1)(a); M.C.L. Sec. 712A.2; M.S.A. Sec. 27.3178(598.2). However, no dispositional hearing followed. In In re Frasier, 147 Mich.App. 492, 496, 382 N.W.2d 806 (1985), this Court recognized that a probate court's termination of parental rights prior to the holding of a dispositional hearing constitutes error. Such conclusion seems particularly justified in light of the statement in the relevant court rule that a juvenile court hearing consists of "an adjudicative phase and a dispositional phase." (Emphasis added.) MCR 5.908(A). At no time in the instant case did the probate judge indicate that the adjudicative phase of the hearing had concluded and the dispositional phase had begun. Moreover, petitioner at no time sought by proper petition the termination of respondent's parental rights.

The fact that evidence admitted at any hearing in the probate court proceeding may be considered as evidence in all subsequent hearings, In re LaFlure, 48 Mich.App. 377, 391, 210 N.W.2d 482 (1973), lv. den. 390 Mich. 814 (1973), does not thereby empower the probate court simply to conflate[168 MICHAPP 208] all required hearings into one proceeding. The dispositional phase was clearly intended to occur subsequent to, and not simultaneously with, the adjudicative phase. And although the court rule permits the interval between the two phases, "if any," to be "not more than 28 days" without the parties' consent or good cause shown if the child is taken into custody, both phases still must be completed prior to the termination of parental rights. MCR 5.908(A)(2)(b).

In reaching our conclusion that error mandating reversal occurs where a probate court fails to conduct a dispositional hearing prior to the termination...

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