Chapter 12: Trials

In this chapter. . .

This chapter outlines the procedures for conducting a trial or adjudicative hearing in a child protective proceeding. It contains discussions on the purpose of a trial, time requirements, the standard of proof, and jury procedures.

This chapter also includes a discussion on the standards and procedures for granting or denying directed verdicts and motions for new trial or rehearing.

In an effort to provide trial courts with a quick practical guide through the process of adjudicatory hearings, the State Court Administrative Office (SCAO) developed the Toolkit for Judges and Attorneys:Adjudicatory Hearing (MCR 3.972). This toolkit is accessible at https://www.courts.michigan.gov/administration/offices/child-welfare-services/cws-toolkit/.

12.1Trials in Child Protective Proceedings

In the context of a child protective proceeding, a trial is “the fact-finding adjudication of an authorized petition[1] to determine if the minor comes within the jurisdiction of the court[, and also] . . . a specific adjudication of a parent’s unfitness to determine whether the parent is subject to the dispositional authority of the court.” MCR 3.903(A)(27).

It is the trial or adjudication phase of a child protective proceeding that “‘protects the parents’ fundamental right to direct the care, custody, and control of their children, while also ensuring that the state can protect the health and safety of the children.’” In re Ferranti, 504 Mich 1, 28 (2019), quoting In re Sanders, 495 Mich 394, 422 (2014). “The question at adjudication is whether the trial court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights.[2] . . . And ‘[w]hile the adjudicative phase is only the first step in child protective proceedings,[3] it is of critical importance because the procedures used in adjudicative hearings protect the parents from the risk of erroneous deprivation of their parental rights.’ The adjudication divests the parent of her constitutional right to parent her child and gives the state that authority instead.” Ferranti, 504 Mich at 15-16, quoting Sanders, 495 Mich at 405 (citations omitted).

The court may conduct the trial in an informal manner, but it must read the allegations in the petition at the beginning of a trial (unless waived) and make a record of the proceeding. MCL 712A.17(1); MCR 3.972(B)(2).

Note: Child protective proceedings are civil, not criminal, proceedings. MCL 712A.1(2). See also People v Ali, 328 Mich App 538, 548 (2019) (finding that child protective proceedings are fundamentally different than criminal proceedings).

If the factfinder concludes that the child is not within the jurisdiction of the court, the court must dismiss the petition. MCL 712A.18(1); In re Waite, 188 Mich App 189, 202 (1991).

If the factfinder concludes that the child is within the jurisdiction of the court, the court will generally hold a dispositional hearing. MCR 3.973(A). See Chapter 13 for information on dispositional hearings.

“[A] default cannot be entered in child protective proceedings” because “MCR 3.901(A)(1) sets forth the court rules that are applicable to child protective proceedings[, and] the rule pertaining to defaults, MCR 2.603, is not among the rules specifically incorporated into juvenile or child protective proceedings.” In re Collier, 314 Mich App 558, 569 (2016). Furthermore, “a default is not an adjudication[4] of [the] respondent’s fitness as a parent, and [the Michigan Court of Appeals] ha[s] not encountered any authority that a default can serve as a substitute for adjudication.” Id. at 570.

Although “courts may assume jurisdiction over a child on the basis of the adjudication of one parent[,]” procedural “due process requires that every parent receive an adjudication hearing before the state can interfere with his or her parental rights.” Sanders, 495 Mich at 407, 412-413 n 8, 415, 422-23 (finding unconstitutional the one-parent doctrine, which permitted the court to “enter dispositional orders affecting parental rights of both parents” once “jurisdiction [was] established by adjudication of only one parent”).5 See also In re Dixon (On Reconsideration), ___ Mich App ___, ___ (2023). In Dixon, the Court acknowledged the outcome in Sanders and discussed how “the court and the DHHS bypassed [the incarcerated] father’s right to direct the placement of his child by delaying his legal ability to assert that right.” Dixon, ___ Mich App at ___. According to the Court, “[t]here [was] no legitimate excuse for the DHHS’s failure to timely declare father a respondent,” and the delays caused by the DHHS’s failure to timely make the child’s father a respondent   “impinged on father’s constitutional right[]” to direct the care, custody, and control of his son before he himself was adjudicated.6 Id. at ___.

“[N]either the admissions made by [the adjudicated parent] nor [the unadjudicated parent’s] failure to object to those admissions constituted an adjudication of [the unadjudicated parent’s] fitness[.]” In re SJ Temples, unpublished opinion per curiam of the Court of Appeals, issued March 12, 2015 (Docket No. 323246)7 (finding that the trial court violated the unadjudicated parent’s “due process rights by subjecting him to dispositional orders without first adjudicating him as unfit[]”).

“Plowing forward with an adjudication hearing in the absence of both [the] respondent and an attorney who can represent [the] respondent offends due process.” In re Collier, 314 Mich App at 569-571 (finding the respondent-father “was effectively denied the adjudication to which he was entitled” where, on the day scheduled for the respondent’s adjudication bench trial, the hearing referee excused the respondent’s counsel from the case, entered a default against the respondent for failure to appear, and continued to conduct the hearing and receive the testimony of the petitioner’s witnesses; “the hearing referee denied [the] respondent his right to due process by entering a default against him for his failure to appear at the adjudication hearing and by infringing [on] his fundamental right to make decisions regarding the care and custody of his minor child”).

A.Judge or Referee as Factfinder

Unless a party has demanded a trial by judge or jury, a referee may conduct the trial. MCR 3.913(B). However, parties have the right to a judge at a hearing on the formal calendar, which includes a trial.8 MCR 3.912(B). A judge must conduct a jury trial. MCR 3.912(A).

In a bench trial, a party may demand that a judge preside rather than a referee by filing a written demand with the court. MCR 3.912(B). The demand must be filed within “(1) 14 days after the court gives notice of the right to a judge, 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 excuse a late filing in the interest of justice.” Id.9

B.Lawyer-Guardian ad Litem Recommendation

“At the conclusion of the proofs, the lawyer-guardian ad litem for the child may make a recommendation to the finder of fact regarding whether one or more of the statutory grounds alleged in the petition have been proven.” MCR 3.972(D).

C.Findings of Fact and Conclusions of Law by Factfinder

Subchapter 3.900 of the Michigan Court Rules does not have a specific court rule addressing required findings of fact and conclusions of law by a judge or referee in a nonjury trial.10 However, MCR 3.977(I), which sets out the requirements for findings and conclusions following hearings on the termination of parental rights, may be helpful:

“   (1)    General. The court shall state on the record or in writing its findings of fact and conclusions of law. Brief, definite, and pertinent findings and conclusions on contested matters are sufficient. . . .

   (2)    Denial of Termination. If the court finds that the parental rights of respondent should not be terminated, the court must make findings of fact and conclusions of law.

(3)    Order of Termination. An order terminating parental rights under the Juvenile Code may not be entered unless the court makes findings of fact, states its conclusions of law, and includes the statutory basis for the order.” MCR 3.977(I).

After trial, a referee must “make a written signed report to the judge containing a summary of the testimony taken and a recommendation for the court’s findings . . . .”11 MCL 712A.10(1)(c).

1    See Section 7.1(B) for a discussion of authorization for filing petitions.

2    For a discussion on dispositional hearings, see Chapter 13, and for a discussion on termination hearings, see Chapter 17.

3    “A child protective proceeding is a single continuous proceeding that begins with a petition, proceeds to an adjudication, and—unless the family has been reunified—ends with a determination of whether a respondent’s parental rights will be terminated.” Ferranti, 504 Mich at 23 (citations and quotation marks omitted).

4    See In re Sanders, 495 Mich 394, 422 (2014).

5    Where “a minor faces an imminent threat of harm, . . . the state may take the child into custody without prior court authorization or parental consent[;] . . . [s]imilarly, upon the authorization of a child protective petition, the trial court may order temporary placement of the child into foster care pending adjudication if the court finds that placement in the family home would be contrary to the welfare of the child.” In re Sanders, 495 Mich at 416-417 n 12 (limiting the requirement for adjudication over each parent to “the court’s exercise of its postadjudication dispositional authority”). See Chapter 3 for additional information on taking temporary protective custody over a child, and Chapter 8 for additional information on temporary placements pending adjudication.

6   A parent’s constitutional right to direct his or her child’s care and custody before the parent is adjudicated is not without limit; “[w]hen a child has been placed into care by an unchallenged order of the court, the state has a legitimate and important interest in protecting the child’s health and safety.” In re Dixon (On Reconsideration), ___ Mich App ___, ___ (2023) (court was permitted to continue the child’s placement in foster care until the DHHS could properly investigate placement of the child with a nonrelative as proposed by the child’s incarcerated father). If placing a child in the custody of an unadjudicated parent would require the court to order a change in the child’s custody and would terminate the state’s custody of the child, the state’s interest in protecting the child’s health and safety permits it to continue the child’s temporary placement with foster parents while an investigation takes place to determine whether the new placement is appropriate. Dixon, ___ Mich App at ___.

7    Unpublished opinions are not precedentially binding under the rule of stare decisis. MCR 7.215(C)(1).

8    MCR 3.903(A)(10) defines formal calendar as “judicial proceedings other than a delinquency proceeding on the consent calendar, a preliminary inquiry, or a preliminary hearing of a delinquency or child protective proceeding.”

9    See Section 9.1(B) for a discussion on a referee’s scope of authority, and Section 20.1 for a discussion on reviewing a referee’s recommendation.

10    MCR 2.517, the rule governing civil bench trials, is not applicable to proceedings under Subchapter 3.900. See MCR 3.901(A)(2).

11    See Section 9.1(B) for additional information on referees.