IN RE PALLAS BELLA MULLINS MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of P.M., Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
March 16, 2010
Petitioner-Appellee,
v
No. 291874
Berrien Circuit Court
Family Division
LC No. 2008-000103-NA
SHAE MULLINS,
Respondent-Appellant.
Before: Talbot, P.J., and Whitbeck, and Owens, JJ.
OWENS, J. (dissenting).
I respectfully dissent. I would affirm on both the issue of the adequacy of the trial court’s
finding of jurisdiction and on the issue not dealt with by the majority, the trial court’s denial of
the untimely jury request.
While there was conflicting evidence presented at trial, there was sufficient evidence
from which the trier of fact could find by a preponderance of the evidence that the child came
within the court’s jurisdiction pursuant to MCL 712A.2(b)(1) and/or (2). The trial judge was in a
far better position than we to evaluate the credibility of the witnesses who appeared before him
and to determine the weight to be accorded their testimony. Unlike the trial judge, we do not
have the benefit of observing the demeanor of the witnesses as they testify. Of course, trial courts
can err; when that error is clear and not harmless, we must correct the error by reversing. I do not
believe clear error in the finding of jurisdiction occurred in this case, however.
Since the majority reversed on the jurisdiction issue, it did not reach the jury trial issue.
Respondents in cases under MCL 712A.2(b) have the right to a trial by jury, a right which we
zealously guard. However, the right is not unlimited; one must request it in a timely fashion or
show why the interest of justice should excuse a late request. In this case, the respondent mother
was given abundant notice of the trial date and that a jury request would have to be made within
14 days of the date summons was served on her. She was personally served with a summons on
November 20, 2008 for trial on January 28, 2009. The summons recited that she must make a
jury request within 14 days. She did not comply. In fact, the jury request was apparently
received by the prosecutor on the morning of trial; the judge appeared unaware of whether the
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request had been received by the court as of the time the trial was commenced. The mother’s
attorney admitted the request was filed late but asked the court to exercise its discretion to grant
the untimely request. The prosecutor, counsel for the father, and the lawyer-guardian ad litem
for the child all objected to the untimely request. In my opinion, the court’s denial of the jury
request, apparently filed the day of trial and after almost 10 weeks’ advance notice, did not
constitute an abuse of discretion.
/s/ Donald S. Owens
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