Adjudicatory Hearing During a Sex Crime Investigation in Michigan
The trial is an opportunity to disprove the allegations contained in a Child Protective Services petition. Testimony, evidence, and arguments will be presented by both sides for the trier of fact to make determinations about the evidence. Child Protective Services has the burden of proving one or more of the allegations contained in the petition by a preponderance of the evidence.
If one or more allegations of abuse or neglect under MCL 712A.2 are proven by a preponderance of the evidence, then two determinations may generally follow. First, the trier of fact may determine that the child will come within the jurisdiction of the court. Second, the parent will be adjudicated as unfit and be subject to the dispositional authority of the court.
If the petitioner does not prove their burden, then the court finds that the child is not within the jurisdiction of the court and will dismiss the petition.
Family Court Jurisdiction: Personal Jurisdiction, Subject Matter Jurisdiction, and Exclusive Jurisdiction
There are two types of jurisdiction that a court must possess to lawfully adjudicate an issue in dispute. Proper jurisdiction requires both personal jurisdiction and subject matter jurisdiction. For family law cases involving protective custody and removal, personal jurisdiction over the child is obtained through physical presence of the child in the county where the circuit court sits. The county circuit court can also exercise valid personal jurisdiction over a child if the alleged offense giving rise to the petition for abuse or neglect took place in the same county the court sits.
Subject matter jurisdiction is the court’s authority to preside over a particular type of case. For example, statutory authority does not permit district courts to preside over criminal felony cases or civil disputes where the amount in controversy exceeds $25,000. The Family Division of the circuit court is granted exclusive jurisdiction over child protective proceedings by statutory authority under MCL 600.1021(1)(e). Further, for the courts exercise of statutory jurisdiction to be valid, the judge or referee must find probable cause to believe that the allegations contained within the petitions are true.
Occasionally, courts have “concurrent jurisdiction,” which is when more than one court can properly adjudicate a certain case. For example, state circuit courts and federal district courts often have concurrent jurisdiction over alleged criminal offenses. However, the Family Division of circuit court has exclusive jurisdiction over child protective proceedings, and therefore, it is the only court that can hear the case.
Lawyer Guardian Ad Litem Recommendation
Under MCR 3.972(D), The Lawyer Guardian ad Litem may make a recommendation to the trier of fact regarding whether one or more of the statutory grounds alleged in the petition have been proven at the conclusion of the proofs.
Trier of Fact and Trier of Law
A judge or referee is the trier of law, and a bench trial is when there is no jury and the judge or referee is both the trier of law and the trier of fact. A trier of fact is the person or party responsible for making fact-finding determinations, and ultimately deciding if the facts are sufficient to prove the petitioner’s burden of proof. In child protective proceedings there are three potential triers of fact. A judge or referee can preside over a bench trial, but only a judge can preside over a jury. The default child protective proceeding is a bench trial with a referee acting as the trier of fact.
Trial by Jury, Referee, Or Judge
A child protective adjudication hearing will be presided as a bench trial by a referee. A referee is not a judge, but is a licensed attorney who is similar to a magistrate and specializes in family law.
Under MCL 712A.17(2) and MCR 3.912(B), a parent or guardian has a right to a trial by jury. A demand for a jury trial must be made in writing within 14 days of the notice from the court of a right to a jury trial, or within 14 days of the notice to appear by the lawyer guardian ad litem, whichever is later, but it cannot be later than 21 days before trial. Juries in child protective proceedings contain six jurors, and require agreement by five jurors to reach a verdict.
A knowledgeable Child Protective Services attorney will understand the situation and help you make the right decision about which rights to invoke for your case.
Burden of Proof: Preponderance of Evidence
The petitioner, or Child Protective Services has the burden of proof at trial, and the rules of evidence for a civil proceeding do apply. The standard of proof for a protective custody adjudication is a preponderance of the evidence. Similarly, a Child Protective Services investigation for abuse and neglect of a child is also a preponderance of the evidence. A preponderance of the evidence means the fact in dispute is more than likely to be true, or is 51% likely to be true.
However, if the petition includes a request to terminate parental right, then the standard of proof for the adjudication is elevated to clear and convincing evidence. Consequently, if the petition includes a request to terminate parental rights, then the standard of proof is clear and convincing evidence. Clear and convincing evidence is when a fact in dispute is substantially more likely to be true than not.
Motion for Directed Verdict
MCR 2.516 provides that a motion for a directed verdict is appropriate at the close of evidence in a child protective custody adjudication. A directed verdict is when the judge takes the power to reach a verdict away from the jury and makes the decision for the final outcome of the case himself or herself, because the evidence so strongly indicates an outcome that a reasonable jury would not be able to find to the contrary.
A jury reaches a verdict in a child protective proceeding when five of the six jurors agree.
If the trier of fact finds that one or more of the allegations of abuse and neglect claimed in the petition are proven by a preponderance of the evidence, then the court will find the child is under the jurisdiction of the court. The court may also find that the parent is unfit and within the dispositional authority of the court.
Dispositional Hearings after Adjudication and Verdict
The dispositional hearing is an opportunity to revisit the courts jurisdiction over the child, foster care placement, and returning the child to their home. For more information about initial dispositional hearings and the potential subsequent dispositional review hearing, please visit our page on dispositional hearings.
Grabel & Associates Approach to Child Protective Proceedings and Adjudication
Grabel & Associates understands the necessary steps to obtain a favorable outcome during child protective proceedings. Our goal is to avoid convictions and prevent removal of a child from home by winning dismissal of the petition at the preliminary hearing. If the petition has already been authorized and your child has been removed from the home, then our focus shifts to preparing to win at trial by disproving Child Protective Services allegations of abuse and neglect.
Grabel & Associates has been specializing in the criminal defense of sex crimes and child protective proceedings for nearly 20 years, and we have the experience, knowledge, and winning track record to obtain a favorable outcome. Contact us online or call 1-800-883-2138 today for a free consultation and to begin developing a personalized, aggressive, and comprehensive legal defense strategy.