                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                   UNPUBLISHED
In re J. R. BELL-SMITH, Minor.                                     August 2, 2016

                                                                   No. 331586
                                                                   Wayne Circuit Court
                                                                   Family Division
                                                                   LC No. 15-520184-NA


Before: SHAPIRO, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Respondent-father, Lataurus Bell, appeals as of right a circuit court order terminating his
parental rights to the minor child, J.R.B.S., pursuant to MCL 712A.19b(3)(b)(i), (g), and (k)(ix).
Due to the trial court’s material evidentiary and procedural errors that compromised its
determination regarding both jurisdiction and the statutory grounds for termination, we reverse
and remand.

                          I. FACTS AND PROCEDURAL HISTORY

       On June 25, 2015, the minor child made a disclosure during a forensic interview with
Loren Schiener, a forensic interviewer at the Child Guidance Center, that she had been sexually
abused by her father, respondent. Petitioner subsequently filed a petition for permanent custody
of the child in regards to respondent, which the court authorized, releasing the child to her
mother.

       Petitioner sought termination of respondent’s parental rights at the initial dispositional
hearing, MCR 3.977(E), based on the child’s recent disclosure of sexual abuse following an
extended visit to respondent’s home. On December 4, 2015, the trial court held a hearing
pursuant to MCR 3.972(C) to determine the admissibility of the child’s statements contained on
the DVD recording of the forensic interview. That rule, which governs the admission of
evidence at trial, provides in relevant part:

               (2) Any statement made by a child under 10 years of age . . . regarding an
       act of child abuse, child neglect, sexual abuse, or sexual exploitation, as defined
       in MCL 722.622(f), (j), (w), or (x), performed with or on the child by another
       person may be admitted into evidence through the testimony of a person who
       heard the child make the statement as provided in this subrule.



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              (a) A statement describing such conduct may be admitted regardless of
       whether the child is available to testify or not, and is substantive evidence of the
       act or omission if the court has found, in a hearing held before trial, that the
       circumstances surrounding the giving of the statement provide adequate indicia of
       trustworthiness. This statement may be received by the court in lieu of or in
       addition to the child’s testimony.

Following the evidentiary hearing, the trial court determined that the DVD recording was
admissible and used the child’s statements contained within it during the subsequent trial, held
on January 28, 2016, to determine both jurisdiction over the child and to establish statutory
grounds for termination. The trial court entered an order termination respondent’s parental rights
pursuant to §§ 19b(3)(b)(i), (g), and (k)(ix).

                                           II. ANALYSIS

        The trial court erred in two detrimental ways; first, it admitted the wrong evidence at the
hearing conducted on January 28, 2016; second, that hearing was a combined adjudicative and
dispositional hearing, rather than two separate hearings, as required by law.

        “MCL 712A.17b(5) requires a trial court to admit videorecordings of a child’s forensic
interview,” however, a witness’s recorded forensic interview it is not admissible during the
adjudicative phase of a child protective proceeding. In re Brown/Kindle/Muhammad Minors,
305 Mich App 623, 632; 853 NW2d 459 (2014). Working in tandem with MCL 712A.17b,
“MCR 3.972(C)(2)(a) forces petitioner to produce at [adjudicative hearings] any witnesses
claiming that a child victim made statements of abuse heard by the witness if petitioner wishes to
rely on such statements in the case.” In re Martin, __ Mich App __; __ NW2d__ (2016) (Docket
No. 330231); slip op at 4. Rather than admitting the testimony of those persons who heard the
child disclose the sexual abuse, such as the child’s mother, grandmother, or the forensic
interviewer, the trial court admitted the child’s own statements regarding the abuse made during
a forensic interview by way of the DVD recording. While the trial court was required under law
to admit this evidence during the preliminary hearing, commonly referred to as the tender-years
hearing, and during the dispositional hearing, if the court was found to have jurisdiction, its
consideration of this evidence at the adjudicatory hearing was improper. Due to the fact that
petitioner presented no evidence apart from the recorded interview to establish that abuse
occurred, thus bringing the child within the court’s jurisdiction, and that evidence was
inadmissible for that purpose, the trial court erred in finding that it had jurisdiction over the child
under MCL 712A.2(b).

        Secondly, the trial court compounded that error by failing to conduct separate
adjudicative and dispositional hearings as required by law. This Court explained a decade ago
that child protective proceedings are “divided into two distinct phases: the adjudicative phase
and the dispositional phase.” In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006).
“The adjudicative phase occurs first and involves a determination whether the trial court may
exercise jurisdiction over the child, i.e., whether the child comes within the statutory
requirements of MCL 712A.2(b).” Id. If the trial court finds that it has jurisdiction, “the
dispositional phase follows” to determine “what action, if any, will be taken on behalf of the
child.” Id. at 536-537. Even where termination is sought at the initial dispositional hearing,

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separate hearings must be held, although the dispositional hearing may be held “immediately
following the adjudicative hearing . . . ” Id. at 538. The trial court here did not follow In re
AMAC and conducted a combined adjudicative and dispositional hearing.

        The only evidence of sexual abuse offered at the combined hearing was the child’s
statements of sexual abuse in the recording of the forensic interview, which were used to
establish both a basis for the assumption of jurisdiction and to prove the statutory grounds for
termination. MCR 3.977(E)(3) requires that the statutory grounds for termination be proved by
legally admissible evidence “that had been introduced at the trial . . . or that is introduced at the
dispositional hearing[.]” As previously discussed, the DVD was not legally admissible evidence
for purposes of the adjudicative phase, and although the DVD was arguably legally admissible
for purposes of the dispositional phase and the trial court could have made its findings regarding
the statutory grounds based on evidence at the dispositional hearing, it did not conduct a separate
dispositional hearing. It thus appears that the trial court made its determination regarding the
statutory grounds on the evidence “that had been introduced at the trial,” which was not
admissible. Therefore, the trial court erred in finding that the statutory grounds for termination
had been proved by clear and convincing legally admissible evidence.

        For these reasons, we reverse the trial court’s order of termination and remand this case
to the trial court. Because we are reversing the trial court’s order, it is not necessary to address
respondent’s arguments regarding the child’s best interests.

        Reversed and remanded for further proceedings not inconsistent with this opinion. We
do not retain jurisdiction.

                                                              /s/ Douglas B. Shapiro
                                                              /s/ Joel P. Hoekstra
                                                              /s/ Amy Ronayne Krause




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