In Re Snyder

328 Mich. 277 (1950) 43 N.W.2d 849

In re SNYDER.
MASON
v.
JOHNSON.

Docket No. 12, Calendar No. 44,771.

Supreme Court of Michigan.

Decided September 11, 1950.

Robert A. Carr, Jr., for intervenors Mason.

George D. Stribley, for Vera Johnson.

BUTZEL, J.

The juvenile division of the probate court for the county of Muskegon adjudicated Caren Yuvone Snyder, a minor, to be without proper custody or guardianship under the provisions of CL 1948, § 712A.2 (a6) (Stat Ann 1949 Cum Supp § 27.3178 [598.2 (a6)]), and entered an order placing her in the permanent custody of the court and committing her to the Muskegon Children's Home with power to consent to adoption. Some time later upon appeal by Vera Johnson, the child's maternal grandmother, the order was set aside by the circuit court. The intervenors by leave in the circuit court proceedings, to whose petition for adoption the Muskegon Children's Home had consented, have appealed to this Court.

Caren was born on November 16, 1944, to Hazel Snyder, a single woman, and became an orphan upon the death of her mother in July of the following year. From the time of her birth until the probate order of June 10, 1946, Caren resided in the home of her maternal grandmother in Whitehall, Michigan, except for intervals when she was in the care of the intervenors, who are the aunt and uncle of her putative father. Since October, 1946, she has continuously lived in the intervenors' home in Hart, Michigan.

From the probate determination on June 10, 1946, Mrs. Johnson filed an appeal on July 12, 1946. On June 15, 1946, the intervenors filed a petition to adopt Caren. As the record contains no specific order of the circuit court suspending the probate order, that order remained effective during the pendency of the appeal. CL 1948, § 712A.22 (Stat Ann 1949 Cum Supp § 27.3178[598.22]). However, the validity of any adoption proceedings taken under the probate order would depend upon the final affirmance of such order.

Mrs. Johnson's counsel filed a default on February 14, 1947. The circuit court set the default aside on April 24th of the same year and held a hearing on the merits. The court filed an opinion for reversal of the probate determination and entered an order to that effect. This particular order was thereafter stayed.

The Muskegon Children's Home consented to Caren's adoption by the intervenors on June 17, 1947, and the probate court for the county of Oceana immediately entered an order terminating the rights in loco parentis of that institution.

Subsequently the chief probation officer of the probate court for the county of Muskegon and the intervenors filed separate petitions to intervene in the circuit court proceedings and leave was granted by an order of June 23, 1947. Two additional hearings were held and proofs taken as to whether Caren was without proper custody or guardianship while in the home of her maternal grandmother. On February 15, 1949, the circuit court entered an order setting aside the probate order and returning Caren to the custody of Mrs. Johnson. The intervenors appeal to this Court.

We cannot sustain the contention that the intervenors were without right to appeal. They were made parties to the action by the circuit court and were aggrieved by its order which would terminate their parental rights under any adoption proceedings which were instituted in accordance with the original order of the probate court for the county of Muskegon.

While the record shows that the intervenors would be excellent parents and provide a fine home for Caren, that is not the consideration presently before this Court. We are solely concerned with the question of whether the child was without proper custody or guardianship at the time of the probate adjudication.

The testimony shows that Mrs. Johnson had 6 of her children and 4 boarders living in her 4-bedroom house; that her 6-year-old daughter had shared a bedroom with an adult male boarder; that 4 of her children occupied another bedroom; that she was involved in marital difficulties and had filed a bill for divorce; that she required and received welfare assistance for a short period after the separation from her husband; that she felt she could provide for Caren if her husband provided for his children; that Hazel was not the only member of the family to become pregnant while unmarried and living at home; that Caren had a fever at the time of her commitment to the Muskegon Children's Home; and that Caren also had bruises and discolorations on her body at that time, apparently from a fall.

The record also contains testimony that a daughter was allowed to engage in illicit relations in the Johnson home and that Mrs. Johnson has conducted herself improperly with a named man. These particular charges were denied, and we shall not consider them in reaching our decision.

Mrs. Johnson was shown to be a hard working woman who was very much occupied in the support and maintenance of her family and home. However, we are impressed that with her many duties in and outside her home, she would be unable to devote the time and attention necessary to properly look after this child of tender years, who has a congenital disease and a history of poor health while very young. It appears that Mrs. Johnson would not be able to provide the care, guidance and control that the child requires.

The best interests of the child have been the paramount consideration in habeas corpus proceedings (In re Goldinger, 207 Mich. 99; In re Leu, 240 Mich. 240; Liebert v. Derse, 309 Mich. 495), and in chancery cases (Smith v. Ritter, 292 Mich. 26; Foxall v. Foxall, 319 Mich. 459) involving the custody of minors. The jurisdiction and powers of the juvenile division of the probate court are governed by chapter 12a of the probate code (People v. Tillard, 318 Mich. 619), which provides that it shall be liberally construed to the end that the child will receive the care, guidance and control that will be conducive to its welfare and the best interests of the State. CL 1948, § 712A.1 (Stat Ann 1949 Cum Supp § 27.3178 [598.1]). In this proceeding which was brought under section 2, subsection (a6) of this statute, we apply similar considerations to those which govern other custody cases. The inquiry is not limited merely to whether the child is fed and clothed, but also extends to whether it is being provided proper support, education, medical and surgical care and other care necessary for its health, morals and wellbeing. The wholesomeness of the surroundings is a material element in determining whether the child is receiving proper care, guidance and control.

In applying the foregoing to the case at bar, we are convinced that the probate court made a proper adjudication and that the order of the circuit court is against the great weight of the evidence. The cause is remanded to the circuit court to enter a judgment affirming the order of the probate court. No costs will be allowed.

BOYLES, C.J., and REID, NORTH, DETHMERS, CARR, BUSHNELL, and SHARPE, JJ., concurred.