In Re Ernst , 130 Mich. App. 657 ( 1983 )

130 Mich. App. 657 (1983) 344 N.W.2d 39

IN THE MATTER OF BARBARA A. ERNST

Docket No. 68562.

Michigan Court of Appeals.

Decided November 22, 1983.

Lennard & Graham (by W. Thomas Graham), for Annette Fain.

Czeryba, Dulany & Godfroy (by Joseph A. Costello, Jr.), for Pamela Ernst Monk.

James H. Davies, guardian ad litem, for Barbara A. Ernst.

Before: BRONSON, P.J., and T.M. BURNS and J.T. KALLMAN,^[*] JJ.

PER CURIAM.

Appellant, mother of the subject minor, appeals as of right from the probate court's order terminating her parental rights and placing the minor in the custody of appellant's mother, the minor's grandmother. On appeal, she raises four issues, none of which require reversal.

First, appellant urges that the probate court erred in permitting a noncertified court reporter to tape-record the proceedings at five of the eight hearings held below. We find no merit in this contention. The proceedings were recorded in compliance with JCR 1969, 8.4. There has been no allegation of any inaccuracy in the transcripts, let alone any showing of actual prejudice which might have resulted from the use of a noncertified, as opposed to a certified, reporter. Absent any demonstrable prejudice, we find no occasion to reverse the lower court on this issue. See Moskalik v Dunn, 392 Mich. 583, 588; 221 NW2d 313 (1974), where the Court found reversal inappropriate absent some showing that violation of a court rule may have caused prejudice.

Appellant next urges that the original neglect petition was void on its face because it indicated that the minor had been placed in the custody of a relative (i.e., appellee, the minor's grandmother) rather than having been abandoned or abused. This argument overlooks the fact that a neglect petition need only conform to the requirements of MCL 712A.11; MSA 27.3178(598.11) (that the petition show the name, birth date and residence of the minor, her parents, those having custody, and nearest relatives). This statute requires no initial allegation of abandonment or abuse. The petition filed by appellee did meet all of the requirements of the above-cited statute, setting forth the name, birth date and residence of the subject minor, the parents (to the extent that the latter's residences were known), nearest relatives, and those having custody (i.e., appellee). We conclude that the initial neglect petition met the statutory requirements and hence was not void on its face.

The third argument raised by appellant presents the closest issue on appeal. Appellant urges that the probate court erroneously assumed jurisdiction, because the court initially took the case based upon the father's negligence, without determining that appellant mother had also neglected the child. In support of her argument, appellant cites cases in which a parent has arranged with a relative to place her child in the custody of that relative, e.g., In re Weldon, 397 Mich. 225; 244 NW2d 827 (1976); In the Matter of Curry, 113 Mich. App. 821; 318 NW2d 567 (1982); In the Matter of Ward, 104 Mich. App. 354; 304 NW2d 844 (1981); In the Matter of Taurus F, 415 Mich. 512; 330 NW2d 33 (1982). We find the foregoing cases distinguishable and believe that appellant's reliance upon them is misplaced.

In each of the foregoing cases, the parent responsible for the subject child made an affirmative arrangement to place that child in the custody of a relative, usually for a finite period of time. For example, in Taurus F, supra, the mother arranged to leave the child with her sister during the period of the mother's incarceration. Three justices in that case found court intervention inappropriate given that the mother had arranged to entrust her child with the relative. The other three justices in Taurus F, supra, took the position that the lower court had properly taken jurisdiction because the mother had not specified the details of her arrangement to entrust the child to her sister. The crucial criterion for all of the justices was the existence of a verifiable, specific agreement to entrust the subject child to another's care. Accord, Curry, supra, where the mother was also incarcerated and arranged to entrust her child to its grandparents for the anticipated period of incarceration. See also Ward, supra, where the mother went beyond merely leaving the child in her relatives' care; in that case, the mother regularly provided support money for the child and eventually reclaimed custody of the child.

The present case is somewhat different. Although appellant did take the step of leaving the subject child with a relative (the child's grandmother, appellee), she did not make any arrangement which indicated either (1) that the grandparent's custody would be temporary, as opposed to indefinite, or (2) that appellant would take ultimate responsibility for the expenses of the child's care. More important, appellant failed to take the steps necessary to ensure that she would remain in contact with her child or with the relative to whom the child had been entrusted. Unlike the mothers in the above-cited cases, there was no effort to regularly correspond with the grandparent who was taking care of the child, let alone any arrangement to forward funds to provide for the child's care. Appellant's complete failure to remain in contact with, or accessible to, the custodial relative, presents the most significant distinction between the present case and those cited above. Given this distinction, we cannot agree with appellant's argument that the probate court erred in taking jurisdiction of the present case in any way analogous to the probate court's error in the cases cited above.

Given the foregoing, we conclude that the probate court acted properly in taking jurisdiction of the cases, even though it initially stated that it had done so on the basis of the neglect of the subject child's father, rather than that of the appellant. The court's determination that appellant was unable to provide proper care, together with its finding that appellant failed to make any specific arrangements for the care of her child, support the conclusion that the court took jurisdiction of the case based upon the neglect of both parents, not just that of the father. In concluding our review of this issue, we note that no demonstrable prejudice resulted from the court's initial failure to specify appellant's own neglect as a basis for assuming jurisdiction.

The fourth and final argument raised by appellant is that the probate court erred in failing to consider the "best interests of the child" factors set forth at MCL 722.23; MSA 25.312(3). Although some panels of this Court have suggested that the statutory "best interest" standards must be applied in probate court termination proceedings, In the Matter of Baby X, 97 Mich. App. 111; 293 NW2d 736 (1980); In re Franzel, 24 Mich. App. 371; 180 NW2d 375 (1970), we adopt the alternative viewpoint set forth in In the Matter of Atkins, 112 Mich. App. 528, 541; 316 NW2d 477 (1982). In Atkins, the Court held that the "best interest" standard need not apply, but that the proper standard instead is "whether the parent has been shown by clear and convincing evidence to be unfit and unable to become fit within a reasonable period of time", MCL 712A.19a; MSA 27.3178 (598a); Atkins, supra, p 541, fn 7. The probate court's decision was the proper result of applying the latter standard. Since the court based its decision upon its findings concerning appellant's fitness, as required by the foregoing statute, its failure to specifically weigh the "best interest" standards does not mandate reversal. See Atkins, supra, pp 541-542.

Affirmed.

J.T. KALLMAN, J. (dissenting).

The proper standard of review by this Court in cases involving termination of parental rights is somewhat unclear. This Court has applied both a de novo and a clearly erroneous standard of review on appeal in termination cases. In the Matter of Bailey, 125 Mich. App. 522, 527; 336 NW2d 499 (1983). Applying either standard, however, I must dissent from the majority's resolution of the issues raised in this case.

In my opinion, this matter must be reversed because the probate court improperly assumed jurisdiction over the minor child. The jurisdiction of the probate court over children is not inherent — the statutory requirements embodied in MCL 712A.2(b), subds (1) and (2); MSA 27.3178(598.2)(b), subds (1) and (2) must be complied with. See, also, In the Matter of Baby X, 97 Mich. App. 111, 113-114; 293 NW2d 736 (1980), and JCR 1969, 8.1(A) and (B).

In this case, the girl's mother testified that Barbara's father had left her when she was pregnant and he has not been heard from since this abandonment. At the conclusion of the jurisdictional hearing, the probate judge specifically found that there was insufficient evidence to establish that Barbara's mother had neglected her. Nonetheless, the judge assumed jurisdiction, declaring the child neglected due to her father's failure to pay support. The probate judge said:

"The Court is not convinced from the evidence that has been presented that mother has neglected the child sufficiently, under Michigan law, to establish that the child is neglected; however, it is clear to the Court that the father has, and, therefore, the finding of the Court is that Barbara is a neglected child within the meaning of the Michigan Probate Code and orders that she be made a temporary ward of the Court, and Barbara is continued in the custody of her maternal grandparents, pending further order of the Court."

The court's decision to assume jurisdiction based on the father's failure to pay support is erroneous under any possible standard of review applicable to this case. Barbara's mother, the custodial parent, is not obligated to bear responsibility for the actions of the girl's father whom she has not seen for six years. To allow jurisdiction to attach in this factual scenario could lead to hypothetically incredible results and, I believe, state interference with the family far beyond that which was contemplated by the Legislature. The majority opinion in effect sanctions state intervention and interference with a single parent's custodial rights based upon a lack of support from a missing or delinquent parent.

Jurisdiction over a child should only be assumed upon a showing of neglect by the custodial parent which impacts or bears on the child. There is nothing in this record to justify the assumption of jurisdiction based upon the failure of Barbara's father to provide support for her care. The custodial parent has provided for and made arrangements for the care of her child.

Despite the probate court's explicit statement to the contrary, the majority concludes that the probate court really took jurisdiction in this case based upon the neglect of both parents. I deem it to be highly inadvisable for an appellate court to look beyond what the judge has said on the record in resolving a dispute, particularly when that appellate court concludes that the judge did not really mean what he said. I am particularly struck by the majority's conclusion that the child's mother has failed to show any "demonstrable prejudice" flowing from the court's failure to specify her neglect as a basis for the assumption of jurisdiction. I find this to be an amazing assertion. Prejudice is manifest for the obvious reasons that the probate court was without legal authority to terminate the mother's parental rights in the absence of a finding at the jurisdictional phase of the proceedings that she had neglected her daughter's welfare.

Absent this showing of neglect by the custodial mother, the proper forum for the petitioner-grand-parent's action was the circuit court under the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq. Compare, Deel v Deel, 113 Mich. App. 556; 317 NW2d 685 (1982). See, also, In re Weldon, 397 Mich. 225; 244 NW2d 827 (1976). Basically, the grandparent desired to formalize and stabilize the arrangement made with her daughter concerning the custody of Barbara.

Probate court proceedings which involve the termination of parental rights are intended to evaluate the fitness of a parent. The termination of parental rights due to unfitness is permissible only upon a showing of clear and convincing evidence. JCR 1969, 8.3(B). In the Matter of LaFlure, 48 Mich. App. 377, 386; 210 NW2d 482 (1973), lv den 390 Mich. 814 (1973). Proceedings in circuit court under the Child Custody Act are intended to resolve custody disputes with the "best interest" of the child as the paramount concern. The proceedings in probate and circuit court are distinguishable in nature, scope and evidentiary standards. Barbara's mother should not have to bear the socially stigmatizing lable of "unfit parent" on the record in this case. Unlike a probate court's decision that parental rights should be terminated, a determination made in the "best interest" of the child by the circuit court under the Child Custody Act does not carry the same blot on the parent's good reputation. Moreover, parental rights are not completely terminated in a custody action brought under the Child Custody Act, and the non-custodial parent retains the right to visitation, to petition the court for a change of custody and to petition the court to vindicate the best interests of the child.

Barbara's grandmother may be correct in believing that she should be awarded her custody (an issue on which I reach no conclusion). Clearly, however, on this record, Barbara's grandmother is not entitled to custody and the complete termination of her natural mother's rights.

I would reverse, and I urge the appellant mother to seek leave to appeal to the Michigan Supreme Court.

NOTES

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