in Re Pederson Minors ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
In re PEDERSON, Minors. February 13, 2020
No. 349881
Presque Isle Circuit Court
Family Division
LC No. 17-000007-NA
Before: CAMERON, P.J., and SHAPIRO and SWARTZLE, JJ.
SWARTZLE, J. (concurring)
I join in full the well-reasoned majority opinion by Judge CAMERON. I write separately to
emphasize the point that respondents did not challenge the trial court’s advice of rights set out in
MCR 3.971(B)(3). Had they done so, this would have been a much different appeal. The trial
court did not, for instance, explain to respondents that witnesses would have to testify “under
oath,” that respondents could cross-examine witnesses, or that petitioner would be required to
prove allegations in the petition “by a preponderance of the evidence.” These are crucial aspects
of the “due-process protections” of a jury trial at the adjudication stage, as identified by our
Supreme Court in In re Ferranti, 504 Mich 1, 30; 934 NW2d 610 (2019). We need not consider,
however, whether omission of these rights from the advice of rights resulted in reversible error,
unlike the situation in Ferranti. Id. at 30-31.
Similarly, had the trial court relied solely on MCL 712A.19b(3)(c)(i) as a ground for
terminating respondents’ parental rights, this would have been a much different appeal.
Respondents were not adequately advised of the consequences of their pleas, specifically that their
admissions could “later be used as evidence in a proceeding to terminate parental rights.” MCR
3.971(B)(4). Given this omission, it is questionable whether any of respondents’ plea admissions,
or even any independent evidence developed at the time of the pleas that supported the admissions,
could have been subsequently used as evidence to terminate their parental rights. While the trial
court concluded that (c)(i) did support termination, the trial court also found that there were
sufficient other grounds, distinct from those to which respondents admitted at the adjudication
stage, that supported termination. This further distinguishes the present case from Ferranti, 504
Mich at 9-13 (noting that termination in that case occurred under MCL 712A.19b(3)(c)(i) and (g),
and the allegations to which respondents pleaded were those that supported termination).
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Finally, this case serves as a useful illustration that Ferranti should not be read as drawing
a bright-line rule that any omission of the advice of rights identified in MCR 3.971(B) is a ground
for automatic reversal. The omission in Ferranti was total; the omission here was partial. When
the omission is partial, a careful, facts-and-circumstances approach is needed. If courts were
instead to read Ferranti as establishing a bright-line rule of automatic reversal whenever any right
in MCR 3.971(B)(3) or (4) is omitted, then the very real, practical concerns with respect to kids,
foster parents, and adoptive parents identified by Justice MARKMAN in his dissent would be fully
realized. Id. at 48-50 (MARKMAN, J., dissenting). I do not read Ferranti as drawing a bright-line
rule and, accordingly, I concur in full with the majority opinion.
/s/ Brock A. Swartzle
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