In re Dearmon

303 Mich. App. 684
CourtMichigan Court of Appeals
DecidedJanuary 14, 2014
DocketDocket Nos. 314459 and 316653
StatusPublished
Cited by76 cases

This text of 303 Mich. App. 684 (In re Dearmon) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dearmon, 303 Mich. App. 684 (Mich. Ct. App. 2014).

Opinion

PER CURIAM.

These consolidated appeals present procedural due process issues that arose during an adjudication trial and respondent-mother’s challenge to the circuit court’s subsequent termination decision. One due process issue relates to personal jurisdiction. Respondent argues that the circuit court’s failure to serve her with two amended petitions seeking immediate termination of her parental rights divested the court of power to conduct the proceedings. We conclude that personal jurisdiction attached with proper service of the original summons and petition seeking immediate termination and need not have been reestablished during the proceedings.

The more difficult due process question is whether evidence obtained after a petition has been filed and served may be presented at an adjudication. We hold that evidence relevant to prove or defend a statutory ground for termination is potentially admissible at an adjudication despite that the evidence involves postpe[688]*688tition facts. The evidence must conform to the rules of evidence, and the parties must have notice of the evidence. Here, the evidence presented satisfied those conditions. Because we further find that the circuit court’s termination decision was not clearly erroneous, we affirm.1

I. BACKGROUND

On July 17, 2012, Children’s Protective Services (CPS) investigator Courtni Adamec received a report that respondent and her boyfriend, Desmond Long, had engaged in domestic violence two days earlier in the presence of Long’s four-year-old daughter, ML. Adamec’s initial investigation revealed that respondent had a “significant CPS history involving a prior termination of parental rights.” Adamec called respondent and requested an opportunity to verify the well-being of respondent’s young children, JD and AHD. Respondent said that she would call back and hung up the phone. During their second conversation respondent informed Adamec that she would “ship her children off” if CPS and the courts “get involved.” Adamec visited the children the next day. She observed that the children appeared healthy and well fed, but respondent had two black eyes and a swollen face. Respondent initially refused to answer Adamec’s questions. Later, respondent claimed that she had obtained a personal protection order (PPO) against Long, planned to press charges for the assault, and had changed the locks on her doors. Respondent adamantly denied that her children had been present during Long’s assault.

[689]*689Adamec found no record of a PPO. Instead she discovered that Long had been arrested a month earlier for assaulting respondent and that a condition of his bond required that he refrain from contact with her. Next, Adamec conducted a forensic interview of ML. ML recounted that Long and respondent had fought in respondent’s apartment and that both combatants had wielded knives. During the altercation, ML and respondent’s children attempted to hide behind a mattress. ML recalled that respondent had been bleeding.2

Adamec then spoke with the property manager of respondent’s apartment complex, who expressed belief that respondent and Long lived together throughout the summer. Adamec concluded that the children had been present during the July 15 brawl and that respondent and Long had continued to cohabitate despite the no-contact bond condition from June 2012. On August 7, 2012, Adamec signed a petition requesting that the circuit court take jurisdiction of the children involved and terminate respondent’s parental rights.3 The court authorized the petition, and the parties agree that it was properly served on respondent.

The petition’s factual allegations set forth the dates of the previous terminations of respondent’s parental rights and described the information that came to light during Adamec’s investigation. On October 12, 2012, petitioner filed an amended petition substantially similar to the original. The October amended petition was never authorized by the court or served on respondent. Petitioner prepared a second amended petition that was [690]*690authorized on December 12, 2012, but again was never served on respondent.4 The December petition corrected date errors in the first petition and added that (1) Long had been convicted of domestic violence arising from the July 15, 2012 assault and (2) domestic violence had marred respondent’s relationship with the father of her children. Otherwise, the third petition’s factual allegations echoed those of the first. All three petitions stated the same statutory grounds for jurisdiction.

Respondent exercised her right to an adjudication trial, which commenced on January 7, 2013. Before empaneling the jury, the circuit court read aloud to the venire the factual allegations within the December 12, 2012 amended petition. At the time, none of the parties realized that the December petition had not been served on respondent.

In her opening statement, the prosecutor asserted that “[t]his case is very simply about [respondent’s] on-going domestic violence and assaultive history and how it places [the children] at a substantial risk of harm in her care and makes their home environment unfit.” Respondent’s counsel told the jury that respondent was “a victim” of domestic violence who “was doing everything pro-actively to prevent this from happening again. She wanted to prosecute the man who did this.” Respondent further contended that the children were not present during the July 15, 2012 altercation.

Adamec described her investigation to the jury and explained her decision to file a petition seeking jurisdiction. The testimony of several other witnesses sup[691]*691ported that ML and respondent’s children had been present during the July 15 assault. Law enforcement personnel testified about two other episodes of domestic violence between respondent and Long predating the July 15 fight. A sheriffs deputy opined that respondent had initiated the first assault by striking the first blow. The second assault led to Long’s prosecution for domestic violence despite respondent’s refusal to cooperate. By brawling with respondent on July 15, Long violated a bond condition imposed when he was charged with the second of the three assaults.

On the third day of the adjudicative trial, petitioner sought to introduce audiotaped conversations obtained in September 2012, while Long was lodged in the Kent County Correctional Facility. Over respondent’s vigorous objection, the circuit court permitted the jury to listen to the tapes. Although the tapes were not transcribed for this Court’s review, subsequent transcript references suggest that the calls reflected respondent’s desire to maintain a close relationship with Long.5 The court ruled that respondent’s counsel had opened the door to the introduction of the tapes by asserting through his questioning that respondent had separated from Long and had no voluntary contact with him after the first of the three assaults in the summer of 2012.

When the fourth day of trial commenced, the court notified the parties that it had erroneously read aloud from the December 2012 amended petition rather than the original August petition. After entertaining lengthy argument, the court denied respondent’s motion for a mistrial. During the court’s final instructions to the [692]*692jury, the court read the factual allegations from the August petition.

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Cite This Page — Counsel Stack

Bluebook (online)
303 Mich. App. 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dearmon-michctapp-2014.