In the Matter of Schejbal , 131 Mich. App. 833 ( 1984 )

131 Mich. App. 833 (1984) 346 N.W.2d 597

IN THE MATTER OF SCHEJBAL

Docket No. 67680.

Michigan Court of Appeals.

Decided February 7, 1984.

Robert L. Kaczmarek, Prosecuting Attorney, and Kay F. Pearson, Assistant Prosecuting Attorney, for petitioner.

David F. Deming, Jr., for the minor children.

Brady & Allen, P.C. (by William F. Allen), and Thomas J. Bleau, of counsel, for respondent.

Before: DANHOF, P.J., and BRONSON and W.R. PETERSON,^[*] JJ.

W.R. PETERSON, J.

This is an appeal as of right from an order of the probate court terminating the parental rights of respondent-appellant. He contends that the probate court used an incorrect standard of proof and that the evidence was legally insufficient to sustain the findings of the probate court.

As to the first point, appellant argues that the probate judge erroneously terminated his rights based on a standard of the best interests of the children rather than by requiring clear and convincing evidence of his parental unfitness. The probate judge said:

"The court has found that the children are within the jurisdiction of the court and must now enter an order for disposition. The court must receive clear and convincing evidence in order to consider the recommended termination of parental rights (JCR 8.3[B]). The court's decision is to be guided by the best interests of the children."

We find that to be a most appropriate statement of the duty of the probate court in such cases.

It is true that the Child Custody Act,^[1] which seeks to resolve claims of competing parties to custody of a child according to the best interests of the child, is not applicable to proceedings in the juvenile division of the probate court. In re Maria S Weldon, 397 Mich. 225; 244 NW2d 827 (1976). But, even in cases not falling within the Child Custody Act, the concept of the best interests of the child has long been the polar star for judicial guidance in cases involving children. Corrie v Corrie, 42 Mich. 509; 4 N.W. 213 (1880); In re Ernst, 373 Mich. 337; 129 NW2d 430 (1964). As noted in In the Matter of Baby Boy Barlow, 404 Mich. 216, 236; 273 NW2d 35 (1978), a case involving the Adoption Code:

"We find the factors comprising the best interests of the child contained in the Child Custody Act to be ones which the Legislature, case law and common sense would indicate ought likewise to be relevant in cases arising under § 39(1) of the Adoption Code."

So, too, the best interests of the child are relevant in proceedings under the juvenile code. That is not to say that the probate court can take jurisdiction of a child for the child's best interests absent the statutory basis under MCL 712A.2; MSA 27.3178(598.2); In the Matter of John C. Kurzawa, Jr, 95 Mich. App. 346; 290 NW2d 431 (1980). Nor can the best interests of the child justify a termination of parental rights and a permanent custody order under § 19a, MCL 712A.19a; MSA 27.3178(598.19a), without clear and convincing proof of the statutory grounds therein, JCR 8.3(B); In the Matter of LaFlure, 48 Mich. App. 377; 210 NW2d 482 (1973); In the Matter of Atkins, 112 Mich. App. 528; 316 NW2d 477 (1982).

But once the statutory grounds justifying a permanent custody order have been established by clear and convincing evidence, the question remains as to whether such an order should enter and what disposition should be made as to the children. Entry of a permanent order is not mandatory. Section 19a says:

"the court may make a final determination and order placing the child in the permanent custody of the court, if it finds, etc. * * *." (Emphasis added.)

In the exercise of this discretionary power, and in making dispositional orders under § 20 of the juvenile code, MCL 712A.20; MSA 27.3178(598.20), the best interests of the child are to be considered by the probate court. In re Franzel, 24 Mich. App. 371; 180 NW2d 375 (1970); In the Matter of Rebecca Oakes, 53 Mich. App. 629; 220 NW2d 188 (1974); In the Matter of Sharpe, 68 Mich. App. 619; 243 NW2d 696 (1976); In the Matter of Baby X, 97 Mich. App. 111; 293 NW2d 736 (1980). The opinion of the probate judge shows a clear understanding of these requirements.

That opinion reached an appropriate conclusion from the evidence. Our review is de novo, the proceedings of the juvenile division of the probate court representing an exercise of chancery power. In re Maria S Weldon, supra. In the course of that review, we do not set aside the findings of the trial judge unless they are clearly erroneous, giving recognition to the special opportunity of the trial court to judge the credibility of witnesses. GCR 1963, 517.1.^[2]

A review of the evidence herein shows clear and convincing evidence of acts of neglect and abuse of his three children by appellant. The probate judge below found that the parents were unable to provide a fit home for the children by reason of neglect, MCL 712A.19a[e]; MSA 27.3178 (598.19a[e]), and that, after the children had been placed in foster care, they had been abandoned, MCL 712A.19a(b); MSA 27.3178(598.19a[b]).

Our review of the evidence convinces us that those findings are not clearly erroneous but are, rather, clearly correct. The order terminating parental rights, on those facts, is appropriate.

Affirmed.

BRONSON, J., concurred.

DANHOF, C.J. (concurring).

I agree with the majority's affirmance of the termination of the parental rights of the respondents in this case. I write separately because I am as yet unconvinced that our review is de novo in parental termination matters. I find this issue unnecessary to the decision in this case, however, since I believe the termination of parental rights is properly affirmed under either standard.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] MCL 722.21 et seq.; MSA 25.312(1) et seq.

[2] Some recent decisions of this Court have assumed an inconsistency between de novo review and the "clearly erroneous" rule, and expressed doubt as to which should apply to review of orders terminating parental rights. See In the Matter of Mudge, 116 Mich. App. 159; 321 NW2d 878 (1982); In re Bailey, 125 Mich. App. 522; 336 NW2d 499 (1983); In re Arntz, 125 Mich. App. 634; 336 NW2d 848 (1983).

That they are not inconsistent, see Papin v Demski, 383 Mich. 561; 177 NW2d 166 (1970); United States v United States Gypsum Co, 333 U.S. 364, 395; 68 S. Ct. 525, 542; 92 L. Ed. 746 (1948), and 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 595-597.