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### STATE OF MICHIGAN

COURT OF APPEALS

FOR PUBLICATION In re J. THOMPSON, Minor. December 15, 2016 9:20 a.m.

No. 333294 Genesee Circuit Court Family Division LC No. 14-130960-NA

Before: K. F. K ELLY , P.J., and G LEICHER and S HAPIRO , JJ.

P ER C URIAM

. A decade ago, this Court held that a parent’s rights to his or her child may only be terminated at the initial disposition if the circuit court first finds grounds to exercise jurisdiction over the child. Here, the circuit court conducted only a termi nation hearing and considered jurisdiction as an afterthought. Accordingly, we vacate the ad judicative and termination orders and remand to the circuit court to handle these proceedings in the manner and order dictated by law.

I. BACKGROUND
In September 2014, the circuit co urt terminated respondent-mot her’s rights to two children who were then nine and six years old, based on the 200 6 and 2013 deaths of the children’s infant siblings due t o unsafe sleeping conditions. Respondent hid from the court and the authorities that she was t hen pregnant with her fifth child

. JT was born on November 15, 2014, and the Department of Health and Human Services (DHHS) immediately filed a petition simultaneously seeking juri sdiction over the child and termination of respondent’s parental rights. The court authori zed the petition on November 19 and JT was placed in unrelated fos ter care upon his release fro m the hospital.

On January 23, 2015, the circuit court heard testimony from a Child Protective Services investigator, the foster care worker assigned to this case, and respondent-mother. At the close of testimony, attorneys for the DHHS and the minor child made clos ing arguments focused solely on the termination grounds. The court then iterated its findin gs and determined that termination of respondent’s parental rights was supported under several MCL 712A.19b(3) factors. The court also concluded that termina tion was in JT’s best interest s.-2- Only at the close of the court’s termination decision was juri sdiction considered. DHHS counsel queried, “Judge, will you make a record in terms of the findings as to jurisdiction[?]” The court replied:

I’m glad you did. Oftentimes with these cases, we already hav e jurisdiction, but we didn’t. H aving found clear and convincing evidence, I don’t think there’s much question that there is more than a preponder ance of evidence that the Court should take j urisdiction in this matter.

So, the Court will make a finding that the Court will, in fact , take jurisdiction over the minor child, [JT], in addition to my earl ier findings that there should be termination. . . .

Respondent now appeals. 1

II. ANALYSIS
The failure to adjudicate res pondent before proceeding to disp osition was a fatal flaw in these proceedings.

“Child protective proceedings h ave long been divided into two distinct phases: the adjudicative phase and the dispositional phase.” In re AMAC , 269 Mich App 533, 536; 711 NW2d 426 (2006). During the adj udicative phase, the court cons iders the propriety of taking jurisdiction over th e subject child. In re Sanders , 495 Mich App 394, 404; 852 NW2d 524 (2014). This can be done in two ways. First, a parent may ple ad to the allegations in a jurisdictional petition, thereby bringing the child under the c ourt’s protection. MCL 3.971; Sanders , 495 Mich at 405; AMAC , 269 Mich App at 536. Second, the parent may demand a trial (bench or jury) to contest the allegations. MCL 3.972; Sanders , 495 Mich at 405; AMAC , 269 Mich App at 536.

Respondent did not plead to jurisdictional grounds. A review of the hearing transcript reveals that no adjudication trial took place; rather the court skipped right to termination. It would be a mischaracterization to say that termination occurred at the initial disposition. In order to have an initial disposition, there must first be an adjudication. As described in AMAC
, 269 Mich App at 537-538:

Termination of parental rights may be ordered at the initial d ispositional hearing. MCR 3.977(E); see also MCL 712A.19b(4). However, sev eral conditions must be met, including (1) that the original or amen ded petition requested termination, (2) that the trier of fact f ound by a preponderance of the evidence at the adjudicative he aring that the child came within the jurisdiction of

1 Respondent challenges the delay to her appeal caused by the ci rcuit court misplacing her appellate claim and request for counsel. Counsel has been appo inted and this Court accepted respondent’s appeal as of right . There is no further relief th at can be granted in this regard.-3- the court , and (3) that at the initial di spositional hearing, the court finds by clear and convincing legally admissible evidence that had been introd uced at the adjudicative hearing or the plea proceeding or that is introduc ed at the dispositional heari ng that a statutory gr ound for termination i s established, “unless the court finds by clear and convincing evidence, in accordance with the rules of evidence as provided in subrule (G)(2), that termination of par ental rights is not in the best interests of the c hild.” MCR 3.977(E). [Emphasis ad ded.]

In AMAC , the circuit court conducted an adjudicative hearing and took jurisdiction over the child in relation to the res pondent-parent. But the court then proceeded to terminate the respondent’s parental rights without moving into the dispositio nal phase. This could not be done. This Court held that the dispositional hearing could be conducted “immediately following the adjudicative hearing” but t he two could not be converged su ch that there was no distinction. AMAC , 269 Mich App at 538.

Here, the melding happened in reverse. The circuit court fail ed to conduct an adjudicative trial. Instead, the court took evidence in one si tting and reached a termination decision before considering whet her jurisdiction was appropriat e. The court put the dispositional cart before the adjudicative hor se. This was procedurally unso und.

Accordingly, we must vacate and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Given this resolution , we need not reach respondent’s remaining appellate challenges.

/s/ Kirsten Frank Kelly /s/ Elizabeth L. Gleicher /s/ Douglas B. Shapiro