IN RE PAIGE EMILY GWYN MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JOHNATHAN MICHAEL
GWYN, Minor.
KATHLEEN LESLIE KALINOVIK,
UNPUBLISHED
December 23, 2003
Petitioner-Appellee,
v
No. 248220
Ontonagon Circuit Court
Family Division
LC No. 02-001067-NA
TRACY RAY GWYN,
Respondent-Appellant.
In the Matter of PAIGE EMILY GWYN, Minor.
KATHLEEN LESLIE KALINOVIK,
Petitioner-Appellee,
v
No. 248221
Ontonagon Circuit Court
Family Division
LC No. 02-001068-NA
TRACY RAY GWYN,
Respondent-Appellant.
Before: Smolenski, P.J., and Sawyer and Borrello, JJ.
PER CURIAM.
Petitioner and respondent are the biological parents of the minor children. In 1998,
respondent was convicted of sexually abusing one of the children, and, one year later, the parties
divorced with sole legal and physical custody awarded to petitioner. Petitioner subsequently
filed a petition to terminate respondent’s parental rights pursuant to MCL 712A.19b(3)(a)(ii),
(b)(i), (g), (j), and (n)(iii). Following a hearing, the court terminated respondent’s parental rights
to the children. Respondent appeals as of right. We reverse and remand.
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Respondent first argues that reversal is required because the trial court never conducted a
“jurisdictional adjudication” to find that the children came within the jurisdiction of the court.
Respondent also argues that this error was compounded by the fact that respondent was unable to
exercise his right to a jury trial at this phase. MCR 5.9721 provided that the trial court was
required to find, by a preponderance of the evidence, that the children were under the jurisdiction
of the court, as defined by MCL 712A.2(b). In re CR, 250 Mich App 185, 200-201; 646 NW2d
506 (2002).
Only one subsection of MCL 712A.2(b) is applicable to this case and it provides that the
court has jurisdiction over a juvenile:
(1) Whose parent or other person legally responsible for the care and
maintenance of the juvenile, when able to do so, neglects or refuses to provide
proper or necessary support, education, medical, surgical, or other care necessary
for his or her health or morals, who is subject to a substantial risk of harm to his
or her mental well-being, who is abandoned by his or her parents, guardian, or
other custodian, or who is without proper custody or guardianship.
Additionally, a parent does have a right to demand a jury trial at the adjudicative phase of child
protective proceedings. MCR 5.911(A); In re PAP, 247 Mich App 148, 153; 640 NW2d 880
(2001).
In this case, a trial date was set for October 3, 2002. Respondent was sent a notice of this
hearing, but did not respond. 2 Also, respondent was appointed counsel before the trial was
continued on December 19, 2002, yet he made no demand for a jury trial. Therefore, we find
that respondent waived this right. In re Hubel, 148 Mich App 696, 699-700; 384 NW2d 849
(1986).
In regards to the court’s failure to make findings regarding its jurisdiction over the
children, we find that this constituted error. “The procedural safeguards used in adjudicative
hearings protect parents from the risk of erroneous deprivation of their liberty interest in the
management of their children.” In re PAP, supra at 153. And the record in this case is devoid of
any evidence that the court made a finding as to its jurisdiction or was even aware that such a
finding was required. However, the harmless error rule, proscribed in MCR 2.613, applies to
child protective proceedings. MCR 5.902(A). MCR 2.613(A) provides that reversal is not
required unless a refusal to do so is inconsistent with substantial justice. If this was the court’s
only error, we might find that it was harmless given that the evidence established respondent had
1
The court rules governing child protective proceedings were amended and recodified as part of
new MCR subchapter 3.900, effective May 1, 2003. This opinion refers to the rules in effect at
the time of the trial court's decision.
2
We note that it appears that a preliminary hearing was scheduled for August 22, 2002. And
respondent was personally served on July 12, 2002, with a notice of this hearing. However, there
is no indication in the lower court file as to whether this proceeding occurred other than the fact
that the filing of the petition was authorized on the same day.
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been convicted of “taking indecent liberties” with one of the children, and that he had not had
contact with or given any financial support to the children during the previous two years. But, in
this case, we believe that the cumulative effect of this error and those we address below require
reversal of the court’s order terminating respondent’s parental rights. We believe to conclude
otherwise would be inconsistent with substantial justice.
Respondent also correctly asserts that the court erred in failing to appoint a guardian ad
litem for the children.3 Where termination of parental rights is sought and the court’s jurisdiction
over the children is pursuant to MCL 712A.2(b), MCL 712A.17c(7) provides that “the court
shall appoint a lawyer-guardian ad litem to represent the child,” and such assistance cannot be
waived. “Shall” is mandatory language. Roberts v Mecosta Co Hosp, 466 Mich 57, 65; 642
NW2d 663 (2002). On remand, the court must appoint the children a guardian ad litem if its
jurisdiction is grounded in MCL 712A.2(b).
The court further erred in failing to articulate the statutory bases for its order of
termination in accordance with MCR 5.974(G)(3). The trial court did state its findings of fact on
the record from which the specific bases for its order could be ascertained, but failed to cite the
statutory sections on the record or in its order.4 Additionally, it appears that the trial court
misunderstood the burden of proof with respect to the best interest analysis under MCL
712A.19b(5) when it stated that respondent “has failed to provide to the Court by any clear and
convincing evidence that termination of his parental rights would not be in the children’s best
interest.” Section 19(b) does not impose a burden on a parent to produce best interest evidence
opposing termination. In re Trejo, 462 Mich App 341, 352-354; 612 NW2d 407 (2000). It also
does not impose a further burden of proof on a petitioner once he has established one or more
statutory grounds for termination. Id. at 352. Rather, this subsection “permits the court to find
from evidence on the whole record that termination is clearly not in a child’s best interests.” Id.
at 353.
Accordingly, we hold that the cumulative effect of the above-mentioned errors in this
case warrants reversal of the trial court’s order terminating respondent’s parental rights. We do
not address respondent’s remaining appeal issues as they have been rendered moot by our
3
Because of our conclusion that this case must be remanded, we do not address whether
respondent has standing to raise this issue. See In re EP, 234 Mich App 582, 597-598; 595
NW2d 167 (1999) (respondent lacked standing to challenge alleged ineffectiveness of child’s
counsel), overruled in part on other grounds In re Trejo, 462 Mich App 341 (2000).
4
We do note, however, that standing alone, this error would not require reversal because a
specific articulation would not have facilitated appellate review. See In re Hensley, 220 Mich
App 331, 334; 560 NW2d 642 (1996).
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decision to remand this case for a new trial, beginning with the adjudicative hearing.
Reversed and remanded. We retain jurisdiction.
/s/ Michael R. Smolenski
/s/ David H. Sawyer
/s/ Stephen L. Borrello
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