9.6Demand for Jury Trial or Trial by Judge
MCR 3.911(A) states that “[t]he right to a jury in a juvenile proceeding exists only at the trial.”1 Once a child protective petition2 is filed against a parent, “[t]he respondent[-]parent can either admit the allegations in the petition or plead no contest to them[,] MCR 3.971[,] . . . [or] the respondent[-parent] may demand a trial (i.e., an adjudication) and contest the merits of the petition[,] MCR 3.972. If a trial is held, the respondent[-parent] is entitled to a jury, MCR 3.911(A)[.]”3 In re Sanders, 495 Mich 394, 405 (2014) (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”).4
Further, “MCL 712A.17(2) affords the [unadjudicated parent] the statutory right to demand a jury because a parental-fitness hearing qualifies as a noncriminal hearing under the juvenile code.” In re Sanders, 495 Mich 394, 418 n 15, 422 (2014).
“Once a court assumes jurisdiction over a child [after adjudication], the parties enter the dispositional phase[, and u]nlike the adjudicative phase, . . . the respondent[-parent] is not entitled to a jury determination of facts[ under] MCR 3.911(A).”5 In re Sanders, 495 Mich at 406.
B.Demand or Waiver of Jury Trial
A party who is entitled to a trial by jury may demand a jury trial by filing a written demand with the court. MCR 3.911(B). The demand must be filed 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 excuse a late filing in the interest of justice.” Id.
MCL 712A.17(2) allows an interested person to demand a jury trial, or the court, on its own motion, to order a jury trial in noncriminal trials.
C.Demand for Judge to Preside at Hearing
Parties have the right to a judge at a hearing on the formal calendar.6 MCR 3.912(B). A judge must preside at a jury trial. MCR 3.912(A)(1).
Note: The right to have a judge sit as factfinder is not absolute. A party who fails to make a timely demand for a judge to serve as factfinder at a bench trial may find that a referee will conduct all further proceedings, and that the right to demand a judge has been waived. See Section 9.6(D) for information on referees.
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.
Unless a party has demanded a trial by judge or jury, a referee may conduct the trial and further proceedings through the dispositional phase.7 MCR 3.913(B).
1 However, this is not a constitutional right. McKeiver v Pennsylvania, 403 US 528, 545 (1971). But see In re Sanders, 495 Mich 394, 418 n 15, where the Michigan Supreme Court “express[ed] no opinion about whether the jury guarantee in MCL 712A.17(2) is constitutionally required.”
2 See Chapter 7 for a detailed discussion of child protective petitions.
3 See Chapter 10 for additional information on pleading to allegations in the child protective petition, and Chapter 12 for additional information on trials.
4 For additional information on the procedural due process rights of the unadjudicated parent, see Section 4.3(C)(2). For a discussion on the dispositional phase of child protective proceedings, see Chapter 13.
5 See Section 4.3 for a discussion on taking jurisdiction of a child, and Chapter 13 for a discussion on the dispositional phase of child protective proceedings.
6 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.”
7 See Section 9.1(B) for a more detailed discussion of referees.