§ 19b(3)(k)(ii); Applicability of MRE 410(a) (inadmissibility of nolo contendere plea & any statements made during the plea hearing); Hearsay; Judicial review of the referee’s findings; First-degree criminal sexual conduct (CSC I)

The court held that the trial court erred by finding that statutory grounds to terminate respondent-father’s parental rights to the children (RD and FD) “existed by clear and convincing, legally admissible evidence under” § (k)(ii). Because termination was sought “at the initial dispositional hearing and because legally admissible evidence was required to establish that a statutory ground for termination existed, MRE 410(a) applied.” As a result, “respondent’s nolo contendere plea and any statements made during the plea hearing were inadmissible for the purpose of showing that” he sexually abused his adopted daughter (M). Further, even if the testimony of M’s therapist was considered admissible, it did not establish that § (k)(ii) existed. Respondent also asserted that § (m)(i) could not “serve as a statutory ground for termination because it was not specifically listed in the petition, which [] was filed before his criminal conviction occurred, and because DHHS failed to file an amended petition to allege that ground.” The court concluded “that any defect in failing to list the statutory grounds for termination in the petition before placing them on the record at the termination hearing was technical and did not erode respondent’s due process right to notice or his opportunity to be heard when the petition identified with specificity all the allegations of neglect to support termination under the alternate grounds offered by DHHS at the termination hearing.” Considering the basis for his “no contest plea to the adjudication, DHHS’s proposed witness and exhibit lists for the termination hearing, and respondent’s attorney’s statement that he had no objection to the admission of the sentencing transcript from [his] criminal case or to the trial court taking judicial notice of [his] criminal judgment of sentence, [he] could not claim surprise when DHHS sought to use his” CSC I conviction “to terminate his parental rights under § (m)(i).” The court noted that “neither the referee nor the trial court addressed DHHS’s alternate grounds for termination” and as the court is not a fact-finding court, it left “it to the trial court to address whether” an alternate ground offered by DHHS was “established by clear and convincing evidence with legally admissible evidence at the termination hearing.” Reversed and remanded.