IN RE HOLM MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In re S.L.H., A.J.H., and V.A.H., Minors.
DEPARTMENT OF HUMAN SERVICES,
FOR PUBLICATION
January 24, 2008
9:10 a.m.
Petitioner-Appellee,
v
No. 276631
Clinton Circuit Court
Family Division
LC No. 06-019239-NA
Advance Sheets Version
MICHAEL HOLM,
Respondent-Appellant.
Before: Bandstra, P.J., and Zahra and Owens, JJ.
OWENS, J.
Respondent Michael Holm appeals as of right the February 12, 2007, orders taking
jurisdiction over his daughters, minors S.L.H., A.J.H., and V.A.H. Although we recognize the
heinous nature of the acts respondent allegedly committed against his daughters, the trial court
proceedings were so replete with error that we are compelled to vacate the court's orders and
reverse and remand for further proceedings consistent with this opinion.1
The Clinton County Department of Human Services (DHS) submitted a petition to the
trial court on October 24, 2006, alleging that S.L., A.J., and V.A., the children of Michael Holm
and K.S., came within the jurisdiction of the Family Division of the Clinton County Circuit
Court because of respondent's sexual abuse of S.L. and A.J. and criminality by respondent that
did not involve child abuse. The DHS requested that the trial court authorize the petition and
take jurisdiction over the children, but the petition did not include a request to remove the
children or the respondent from the home or a request to terminate the parental rights of either
the mother or respondent.
The petition contained four paragraphs. The first paragraph alleged: "That on or about
10/15/06, Respondent Mother woke up in the middle of the night and found Respondent Father
1
Although this case, involving allegations of abhorrent conduct by the respondent, presents a
substantial jurisdictional question, neither petitioner Clinton County Department of Human
Services nor the lawyer-guardian ad litem for the minor children filed a brief on appeal.
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having sex with [A.J.]. Respondent Father admitted to Respondent Mother that he had been
having sex with [A.J.]."
The second paragraph alleged a history of sexual abuse of A.J. by respondent. The third
paragraph alleged a history of sexual abuse of S.L. by respondent. The fourth paragraph alleged
that respondent had a criminal history, including two convictions of larceny in a building.
On October 25, 2006, the trial court held a preliminary hearing. The mother was present
and respondent (who was in jail awaiting trial on charges of criminal sexual conduct)
participated using two-way video equipment. The mother and respondent waived the reading of
the petition, an attorney was appointed to represent respondent and a lawyer-guardian ad litem
was appointed to represent the children.2 The children were ordered to remain with their mother,
the court noted that "at this point there is not a request to terminate parental rights," and the
preliminary hearing was adjourned until October 30, 2006. At the adjourned preliminary
hearing, respondent, who was present and represented by counsel, waived the probable-cause
determination. On the basis of that waiver, the court authorized the filing of the petition and set
the matter for a pretrial hearing on January 18, 2007.3
At the pretrial hearing, respondent, accompanied by counsel, and the mother,
unrepresented by counsel, were present in the courtroom. The court accepted a plea from the
mother in which she admitted the allegations in the first paragraph of the petition. Respondent
challenged the court's acceptance of her plea, claiming that because no allegations were made
against her, she was effectively testifying against respondent rather than entering a plea on her
own behalf. However, the court stated that "there's a suggestion there was a failure to protect
this child from inappropriate behavior from her father, it was something she witnessed, and an
admission he made to her which is allowable." The court then accepted her plea and orally
found that the children came within its jurisdiction. The court set the matter for a dispositional
hearing on February 8, 2007, and indicated that at that hearing it would consider, among other
matters, a request to terminate respondent's parental rights.4
Rather than issue an Order of Adjudication5 following the mother's plea, the court entered
an Order after Preliminary Hearing,6 finding that there was probable cause to believe that one or
2
The lawyer-guardian ad litem appointed to represent the children erroneously filed his
appearance on behalf of the "above-named Respondents," referring to the three minor children.
The children, of course, are not respondents. The only respondent is the father, Michael Holm.
MCR 3.903(C)(10).
3
The order following the preliminary hearing incorrectly stated that "the probable cause
determination was waived by all parties present." The mother, who was present but
unrepresented by counsel, did not, and was not asked to, waive the probable-cause
determination. Her waiver of the probable-cause determination was not required, however,
because there were no allegations in the petition against her.
4
The original petition did not contain a request to terminate respondent's parental rights, nor is
there an amended petition containing such a request in the trial court record.
5
SCAO form JC 49.
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more of the allegations in the petition were true and that reasonable efforts were made to prevent
removal of the children from the home. In apparent support of the finding of reasonable efforts,
the order stated, "Those efforts include: Respondent Mother admitted allegation #1."
At the February 8, 2007, dispositional hearing, the court considered termination of
respondent's parental rights. Because the court believed that it had jurisdiction solely on the
basis of the mother's purported plea, it recognized that legally admissible evidence would have
to be used to establish a statutory ground to terminate respondent's parental rights. MCR
3.977(E).
At the hearing, the mother testified that one night, as she passed her daughter's bedroom
on the way to the bathroom, she noticed respondent kneeling beside their daughter, A.J., who
was lying on the floor with a blanket wrapped around her. The mother testified that, after she
confronted respondent, he admitted that he was "having sex with his own daughter." On crossexamination, the mother testified that before the incident, she was unaware of any inappropriate
behavior between her daughters and respondent, and that after discussing his conduct with him,
she drove him to his parents' house to get him away from the girls.7 She further testified that
after the night she made this discovery, she never allowed respondent to have any contact with
their daughters. A.J. testified that she had been sexually abused the night of her mother's
discovery. She also stated that it had happened to her before, starting in the fifth grade. A.J.
testified that she had never told anyone about the abuse, including her mother.
The court found, on the basis of the testimony of the mother and A.J., grounds to
terminate respondent's parental rights under MCL 712A.19b(3)(b)(i). The court also concluded
that it was not clearly contrary to A.J.'s best interest to terminate respondent's parental rights.
The court made no findings regarding the termination of respondent's parental rights to S.L. and
V.A.
The court entered an Order of Disposition8 and an Order Terminating Parental Rights9 on
February 12, 2007, both of which recited that "an adjudication was held and the child(ren)
was/were found to come within the jurisdiction of the court." The Order of Disposition placed
the children in the temporary custody of the court and released them to their mother pending a
dispositional review hearing. The Order of Disposition also included a reference to respondent's
parental rights to his children having been terminated at the initial dispositional hearing.10
(…continued)
6
SCAO form JC 11a.
7
The mother admitted that she was aware that respondent had an alcohol problem and that there
was pornography on his computer. Neither of these issues was alleged in the petition.
8
SCAO form JC 17.
9
SCAO form JC 63.
In the Order Terminating Parental Rights entered on February 12, 2007, the court terminated
respondent's parental rights to all three children, notwithstanding that no findings were made
regarding two of the children.
10
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Respondent now appeals from the Order of Disposition and the contemporaneous Order
Terminating Parental Rights, both of which contain the first appealable finding of adjudication
that the children came within the jurisdiction of the court.
In his appeal, respondent argues that the trial court erred in taking jurisdiction over the
minor children solely on the basis of the plea of the mother, in which the mother admitted no
neglectful or abusive conduct on her part, but merely testified regarding the allegations against
respondent. Respondent further argues that if the finding of jurisdiction is reversed, the
subsequent order terminating his parental rights must necessarily be vacated. We agree.
Ordinarily, an adjudication cannot be collaterally attacked following an order terminating
parental rights.11 That is true, however, only when a termination occurs following the filing of a
supplemental petition for termination after the issuance of the initial dispositional order. If
termination occurs at the initial disposition as a result of a request for termination contained in
the original, or amended, petition for jurisdiction, then an attack on the adjudication is direct and
not collateral, as long as the appeal is from an initial order of disposition12 containing both a
finding that an adjudication was held and a finding that the children came within the jurisdiction
of the court.13
In order to find that a child comes within the court's jurisdiction, at least one statutory
ground for jurisdiction contained in MCL 712A.2(b) must be proven, either at trial or by plea.
The court obtains jurisdiction as a result of a plea if a respondent makes a plea of admission or of
no contest to the original allegations in the petition or to the allegations in an amended petition.14
"Except as provided in MCR 3.977(B) [proceedings in the dispositional phase to terminate
parental rights], 'respondent' means the parent, guardian, legal custodian, or nonparent adult who
11
"Matters affecting the court's exercise of its jurisdiction may be challenged only on direct
appeal of the jurisdictional decision, not by collateral attack in a subsequent appeal of an order
terminating parental rights." In re Gazella, 264 Mich App 668, 679-680; 692 NW2d 708 (2005).
12
An initial order of disposition (an order resulting from the initial dispositional hearing) may be
an Order of Disposition (if neither parent's rights are terminated), an Order Terminating Parental
Rights (if all parental rights are terminated), or both (if one parent's rights are terminated and the
other parent's rights are not terminated, as in this case).
13
Some, but not all, courts issue an Order of Adjudication following the plea or a trial at which
jurisdiction was found. Other courts, however, do not issue an Order of Adjudication but only
an order of disposition that includes the statement that "[a]n adjudication was held and the
child(ren) was/were found to come within the jurisdiction of the court." MCR 3.993(B) provides
that an Order of Adjudication may only be appealed by leave granted, whereas an initial order of
disposition is the first order appealable as of right. Accordingly, because an initial order of
disposition is the first order appealable as of right, an appeal of the adjudication following the
issuance of an initial dispositional order is not a collateral attack on the initial adjudication, but a
direct appeal, notwithstanding that a termination of parental rights may have occurred at the
initial dispositional hearing.
14
MCR 3.971(A).
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is alleged to have committed an offense against a child."15 An "'[o]ffense against a child' means
an act or omission by a parent, guardian, nonparent adult, or legal custodian asserted as grounds
for bringing the child within the jurisdiction of the court pursuant to the Juvenile Code."16
In this case, no trial was held, nor did respondent offer a plea. However, the children's
mother offered a plea admitting the first paragraph of the petition, which the court accepted and
found sufficient to establish jurisdiction. Respondent asserts that the court could not take a plea
from the mother because there were no allegations in the petition to which she could plead.
Stated differently, respondent notes that the petition makes no allegations that the mother had
committed an act or omission that would bring the children within the jurisdiction of the court
pursuant to MCL 712A.2(b). We agree.
The first paragraph of the petition provided: "That on or about 10/15/06, Respondent
Mother woke up in the middle of the night and found Respondent Father having sex with [A.J.].
Respondent Father admitted to Respondent Mother that he had been having sex with [A.J.]."
This paragraph alleges no wrongdoing, whether by act or omission, by the mother toward A.J.
The petition alleges that the mother found respondent having sex with A.J. and that he admitted
to her that he had been having sex with A.J. The petition does not allege that the mother
permitted, or failed to prevent, the alleged sexual abuse from occurring. Therefore, although the
mother was a "party" to the proceeding,17 by definition, she was not a respondent. Because only
a respondent may enter a plea18 and the mother was not a respondent,19 she could not enter a
plea.
Following the mother's plea, the judge stated:
"Well, as to whether I can take jurisdiction of the children based on that
one admission by respondent mother, I do believe and find that I can. And it is
against her interest to some extent because she had—there's a—there's a
suggestion there was a failure to protect this child from inappropriate behavior
from her father, it was something she witnessed, and an admission he made to her
which is allowable. So I do find I have jurisdiction of the children based on that
admission and will take jurisdiction of the children."
At trial, the mother certainly could testify regarding what she witnessed and the alleged
admission by respondent, but these could not be the basis for a plea, because they involve no
15
MCR 3.903(C)(10).
16
MCR 3.903(C)(7).
17
MCR 3.903(A)(18)(b).
18
MCR 3.971(A).
19
MCR 3.903(C)(10).
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wrongdoing by her. Although the failure of one parent to protect a child from abuse or neglect
by the other parent can be grounds for taking jurisdiction over the child, in this case the petition
did not allege that the mother failed to protect her daughters, and the court's belief that "there's a
suggestion there was a failure to protect this child from inappropriate behavior from her father"
is insufficient to serve as an allegation against the mother if it is not contained in the petition.
Only allegations contained in the original, or amended, petition can be the basis for jurisdiction.
The mother never admitted that she failed to protect her children in any way; to the contrary, the
evidence indicates that she protected the children by immediately removing respondent from the
home and by not letting the children have further contact with him.
Because no trial was held, respondent entered no plea, and the mother's purported plea
was invalid, the court never obtained jurisdiction over the children pursuant to MCL 712A.2(b).
As a result, the February 12, 2007, Order of Disposition and Order Terminating Parental Rights
are likewise invalid, because they recite, as the basis for the dispositional orders contained
therein, that "[a]n adjudication was held and the child(ren) was/were found to come within the
jurisdiction of the court."
Even if the petition had contained an allegation to which the mother could have pleaded,
the plea the court took from her was fatally defective. MCR 3.971(B) provides that, in order to
take a valid plea of admission or no contest, the court must advise the respondent:
(1) of the allegations in the petition;
(2) of the right to an attorney, if respondent is without an attorney;
(3) that, if the court accepts the plea, the respondent will give up the rights
to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a
preponderance of the evidence,
(c) have witnesses against the respondent appear and testify under oath at
the trial,
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes could
give testimony in the respondent's favor;
(4) of the consequences of the plea, including that the plea can later be
used as evidence in a proceeding to terminate parental rights if the respondent is a
parent.
In this case, the court failed to advise the mother that she had the right to an attorney.
The court also failed to advise the mother that if the court accepted her plea, she would give up
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the following rights: (1) the right to trial by a jury; (2) the right to have the petitioner prove the
allegations in the petition by a preponderance of the evidence; (3) the right to have witnesses
against the respondent appear and testify under oath at the trial; (4) the right to cross-examine
witnesses; and (5) the right to have the court subpoena any witnesses the respondent believes
could give testimony in the respondent's favor. The court further failed to advise the mother
regarding the consequences of her plea, including that the plea could later be used as evidence in
a proceeding to terminate her parental rights.
MCR 3.971(C) provides:
(1) Voluntary plea. The court shall not accept a plea of admission or of no
contest without satisfying itself that the plea is knowingly, understandingly, and
voluntarily made.
(2) Accurate Plea. The court shall not accept a plea of admission or of no contest
without establishing support for a finding that one or more of the statutory grounds
alleged in the petition are true, preferably by questioning the respondent unless the offer
is to plead no contest. If the plea is no contest, the court shall not question the
respondent, but, by some other means, shall obtain support for a finding that one or more
of the statutory grounds alleged in the petition are true. The court shall state why a plea
of no contest is appropriate.
Here, the court failed to establish support for a finding that one or more of the statutory grounds
alleged in the petition were true. The court merely read the first paragraph of the petition and
asked the mother, "do you admit that allegation?" to which the mother replied "yes, I do." This
exchange was clearly insufficient to establish a factual basis for the plea.
Respondent asserts that the order terminating his parental rights must be vacated if this
Court sets aside the adjudication. We agree. First, MCR 3.977(E) provides, in pertinent part,
that the necessary prerequisites for a court to consider termination of a respondent's parental
rights at the initial dispositional hearing are "(1) the original, or amended, petition contains a
request for termination; [and] (2) at the trial or plea proceedings, the trier of fact finds by a
preponderance of the evidence that one or more of the grounds for assumption of jurisdiction
over the child under MCL 712A.2(b) have been established." In this case, the trier of fact could
not find by a preponderance of the evidence that one or more of the grounds for the assumption
of jurisdiction over the child had been established by the mother's plea, because the plea was
invalid. Because the adjudication was invalid, the dispositional orders, including the order
terminating respondent's parental rights, are invalid.
In addition, a thorough examination of the trial court record reveals that neither the
original nor any amended petition contained a request for termination, notwithstanding that the
judge and the prosecutor asserted otherwise. Absent such a written request, the February 12,
2007, order terminating respondent's parental rights to his three daughters must be set aside.
Further, the court's findings at the initial dispositional hearing regarding the statutory grounds for
termination under MCL 712A.19b(3) and whether termination was clearly not in the child's best
interest only concerned A.J. However, in its February 12, 2007, order, the court terminated
respondent's parental rights to all three children. The court may terminate parental rights to a
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child only if at least one statutory ground is proven and there is not clear and convincing
evidence that termination is not in the best interest of the child. Because the court did not make
the necessary findings concerning S.L. and V.A., the order terminating respondent's parental
rights to S.L. and V.A. must be set aside.
The February 12, 2007, order of disposition finding that the children come within the
jurisdiction of the court and the February 12, 2007, order finding that the children come within
the jurisdiction of the court and terminating respondent's parental rights to his three children are
vacated. We reverse and remand for proceedings consistent with this opinion.20 We do not
retain jurisdiction.
/s/ Donald S. Owens
/s/ Richard A. Bandstra
/s/ Brian K. Zahra
20
We note from a review of the Michigan Department of Corrections' Offender Tracking
Information System that respondent was subsequently convicted by a jury of two counts of firstdegree criminal sexual conduct and sentenced to 30 to 60 years' imprisonment. Ordinarily in
such a case, a respondent's certificate of conviction would, at trial, be sufficient to establish the
statutory grounds for jurisdiction and, if termination at the initial disposition were requested in
the original, or amended, petition, would be sufficient to establish the statutory grounds for
termination of the respondent's parental rights.
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