11.11Postpetition Evidence

“Ultimately, the question presented to an adjudication jury is whether a respondent’s actions or inactions created an unfit environment for the children. If relevant^[1] to a fact of consequence flowing from that question and otherwise admissible, a fact-finder may consider evidence gathered after the events cited in the petition.” In re Dearmon/Harverson-Dearmon, 303 Mich App 684, 698 (2014). Accordingly, “evidence relevant to prove or defend a statutory ground for termination is potentially admissible at an adjudication trial despite that the evidence involves postpetition facts. The evidence must conform to the rules of evidence and the parties must have notice of the evidence.” Id. at 687-88. (postpetition evidence of “[the r]espondent’s recorded [jailhouse telephone] conversations with [her boyfriend]” were admissible at trial where the recorded jailhouse telephone conversations “related to [the respondent’s] credibility and to whether she had [voluntarily] severed her relationship with [her boyfriend after the first assault and] before the third assault” and where “[the] respondent had notice of the existence of the [recorded] tapes”). “Fundamentally, evidence gathered postpetition should be shared with the opposing party to avoid unfair prejudice[, and a]dherence to the rules governing discovery embodied in MCR 3.922 should avoid prejudice to either party’s due process rights.” In re Dearmon/Harverson-Dearmon, 303 Mich App at 699.

Note: In In re Dearmon/Harverson-Dearmon, 303 Mich App at 698-699, the Court highlighted “the important distinction between evidence of an event supporting jurisdiction that was not alleged in a petition, and evidence obtained after the petition was filed” and emphasized that “due process safeguards apply during the adjudicative phase of a child protective proceeding.”