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Remand for a Different Jurist due to Repeated Procedural Error

Posted on Tuesday, May 8, 2018

For the second time and on identical issues, the matter of In reJones, Minors, No. 336836, came before the Michigan Court of Appeals (MCOA) on the father’s appeal of a circuit court order terminating his parental rights. The MCOA again reversed and remanded for further proceedings, this time before a different jurist.

Facts: The basic facts are the same for both appeals. The two children, NAJ and NNJ accused the father of sexually abusing NAJ. In the first hearing (In re Jones, Minors, No.332616) recordings of the children’s forensic interviews were admitted into evidence at a combined adjudicative and dispositional hearing. Based on this evidence, the trial court found it had jurisdiction over the children and that the statutory grounds for termination had been proved by clear and convincing legally admissible evidence. This procedure was repeated when the case came back to the trial court and was heard by the same referee.

Trial Court Commits Two Fundamental Errors

First, the court didn’t conduct separate adjudicative and dispositional hearings. As explained in a 2006 case, the adjudicative phase occurs first and determines whether the child comes within statutory requirements of MCL. 712A.2 (b) giving the court jurisdiction. The disposition follows to determine what needs to be done on behalf of the child.

Second, the court based its decision to terminate parental rights at the first disposition on legally inadmissible evidence. The rules provide that hearsay evidence of a child’s statement of sexual abuse can be admitted if brought through the testimony of person who heard the statements. This was not done at adjudication. To use this testimony, the court must determine the trustworthiness of the statements by viewing the forensic interview and then allow a witness to the child victim’s statements to testify. The forensic interviews alone are admissible at all hearings except adjudication.

Because the court made its determinations to take jurisdiction on legally inadmissible evidence and then to terminate on the same evidence, which are fundamental procedural and evidentiary errors, the court reversed and remanded.

Errors Repeated at Remand: New Jurist Ordered

When the matter came back to the court, it was heard by the same jurist. The same procedure was used as in the first case and, therefore, the same errors were committed. The Court of Appeals’ impatience is revealed in its statement:

“Because of these fundamental procedural and evidentiary errors, we again reverse the trial court’s order terminating respondent’s parental rights and remand this case to the trial court for a new hearing. Because the referee has shown an inability to follow this Court’s instructions, the case shall be assigned to a judge or another referee on remand to preserve the appearance of justice.”

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