Rule 3.985 Preliminary Hearing

(A) Time.

(1) Commencement. If the respondent was apprehended or arrested for violation of a minor personal protection order or was apprehended or arrested under a court order, and the respondent is taken into court custody or is jailed, the preliminary hearing must commence no later than 24 hours after the minor was apprehended or arrested, excluding Sundays and holidays, as defined in MCR 8.110(D)(2), or the minor must be released. Otherwise, the preliminary hearing must commence as soon as practicable after the apprehension or arrest, or the submission of a supplemental petition.

(2) General Adjournment. The court may adjourn the hearing for up to 14 days:

(a) to secure the attendance of witnesses or the minor's parent, guardian, or custodian, or

(b) for other good cause shown.

(B) Procedure.

(1) The court shall determine whether the parent, guardian, or custodian has been notified and is present. The preliminary hearing may be conducted without a parent, guardian, or custodian provided a guardian ad litem or attorney appears with the minor.

(2) Unless waived by the respondent, the court shall read the allegations in the supplemental petition, and ensure that the respondent has received written notice of the alleged violation.

(3) Immediately after the reading of the allegations, the court shall advise the respondent on the record in plain language of the rights to:

(a) contest the allegations at a violation hearing;

(b) an attorney at every stage in the proceedings, and, if the court determines it might sentence the respondent to jail or place the respondent in secure detention, the fact that the court will appoint an attorney at public expense if the respondent wants one and is financially unable to retain one;

(c) a nonjury trial and that a referee may be assigned to hear the case unless demand for a judge is filed pursuant to MCR 3.912;

(d) have witnesses against the respondent appear at a violation hearing and to question the witnesses;

(e) have the court order any witnesses for the respondent's defense to appear at the hearing; and

(f) remain silent and to not have that silence used against the respondent, and that any statement by the respondent may be used against the respondent.

(4) The court must decide whether to authorize the filing of the supplemental petition and proceed formally, or to dismiss the supplemental petition.

(5) The respondent must be allowed an opportunity to deny or otherwise plead to the allegations. If the respondent wishes to enter a plea of admission or of nolo contendere, the court shall follow MCR 3.986.

(6) If the court authorizes the filing of the supplemental petition, the court must:

(a) set a date and time for the violation hearing, or, if the court accepts a plea of admission or no contest, either enter a dispositional order or set the matter for dispositional hearing; and

(b) either release the respondent pursuant to subrule (E) or order detention of the respondent as provided in subrule (F).

(C) Notification. Following the preliminary hearing, if the respondent denies the allegations in the supplemental petition, the court must:

(1) notify the prosecuting attorney of the scheduled violation hearing;

(2) notify the respondent, respondent's attorney, if any, and respondent's parents, guardian, or custodian of the scheduled violation hearing and direct the parties to appear at the hearing and give evidence on the charge of contempt.

Notice of hearing must be given by personal service or ordinary mail at least 7 days before the violation hearing, unless the respondent is detained, in which case notice of hearing must be served at least 24 hours before the hearing.

(D) Failure to Appear. If the respondent was notified of the preliminary hearing and fails to appear for the preliminary hearing, the court may issue an order in accordance with MCR 3.983(D) authorizing a peace officer or other person designated by the court to apprehend the respondent.

(1) If the respondent is under 17 years of age, the court may order the respondent detained pending a hearing on the apprehension order; if the court releases the respondent it may set bond for the respondent's appearance at the violation hearing.

(2) If the respondent is 17 years of age, the court may order the respondent confined to jail pending a hearing on the apprehension order. If the court releases the respondent it must set bond for the respondent's appearance at the violation hearing.

(E) Release of Respondent.

(1) Subject to the conditions set forth in subrule (F), the respondent may be released, with conditions, to a parent, guardian, or custodian pending the resumption of the preliminary hearing or pending the violation hearing after the court considers available information on

(a) family ties and relationships,

(b) the minor's prior juvenile delinquency or minor personal protection order record, if any,

(c) the minor's record of appearance or nonappearance at court proceedings,

(d) the violent nature of the alleged violation,

(e) the minor's prior history of committing acts that resulted in bodily injury to others,

(f) the minor's character and mental condition,

(g) the court's ability to supervise the minor if placed with a parent or relative,

(h) the likelihood of retaliation or violation of the order by the respondent, and

(i) any other factors indicating the minor's ties to the community, the risk of nonappearance, and the danger to the respondent or the original petitioner if the respondent is released.

(2) Bail procedure is governed by MCR 3.935(F).

(F) Detention Pending Violation Hearing.

(1) Conditions. A minor shall not be removed from the parent, guardian, or custodian pending violation hearing or further court order unless:

(a) probable cause exists to believe the minor violated the minor personal protection order; and

(b) at the preliminary hearing the court finds one or more of the following circumstances to be present:

(i) there is a substantial likelihood of retaliation or continued violation by the minor who allegedly violated the minor personal protection order;

(ii) there is a substantial likelihood that if the minor is released to the parent, with or without conditions, the minor will fail to appear at the next court proceeding; or

(iii) detention pending violation hearing is otherwise specifically authorized by law.

(2) Waiver. A minor respondent in custody may waive the probable cause phase of a detention determination only if the minor is represented by an attorney.

(3) Evidence; Findings. At the preliminary hearing the minor respondent may contest the sufficiency of evidence to support detention by cross-examination of witnesses, presentation of defense witnesses, or by other evidence. The court shall permit the use of subpoena power to secure attendance of defense witnesses. A finding of probable cause under subrule (F)(1)(a) may be based on hearsay evidence which possesses adequate guarantees of trustworthiness.

(4) Type of Detention. The detained minor must be placed in the least restrictive environment that will meet the needs of the minor and the public, and conforms to the requirements of MCL 712A.15 and 712A.16.

(G) Findings. At the preliminary hearing the court must state the reasons for its decision to release or detain the minor on the record or in a written memorandum.

(H) Out-of-County Violation. When a minor is apprehended for violation of a minor personal protection order in a jurisdiction other than the one that issued the personal protection order, and the apprehending jurisdiction conducts the preliminary hearing, if it has not already done so, the apprehending jurisdiction must immediately notify the issuing jurisdiction that the latter may request that the respondent be returned to the issuing jurisdiction for enforcement proceedings.