Hatmaker v. Michigan Children's Aid Society

Smith, J;

Preface.

• This case has 2 parts. Part 1 is an appeal from an order of disposition terminating parental rights and placing the minor child in permanent custody of the court. The order was entered by the circuit court after jury trial on the issue of whether or not the mother had neglected the child. The matter was in circuit court.on appeal by the mother from probate court, juvenile division.

Part 2 of the case constitutes a review of the final report of the circuit judge to this Court on the question of whether damages should be assessed against appellant’s attorney for rule violations in the preparation of the appendix?.

Part 1.

Paula Marie Mathers, born October 21, 1953, is a child of Pearl Jean Mathers Hatmaker, appellant. The mother was not married at the time of Paula’s birth. Appellee, Michigan Children’s Aid Society, a nonprofit corporation, is a licensed child welfare agency. Appellees, Mr. and Mrs. Edward Furlong, received physical custody of the child from the Society on January 3, 1955, and have maintained custody ever since. An agent of the Society filed the neglect petition in probate court. The Furlongs were permitted to intervene and participate fully.

This lawsuit has a long and tortuous history, commencing shortly after the birth of the child in 1953. Paula Marie Mathers was born in Detroit. Her mother was 22 years of age at the time, and previously had been married and divorced. The decree, which became final March 14, 1952, was awarded her on grounds of extreme cruelty and nonsupport. She was given custody of 2 small children born of the marriage.

Shortly after the birth of Paula, the mother entered into a written boarding agreement with the Society by which she obligated herself to pay for the boarding care of the child. The mother also signed a medical permit for the Society to provide necessary medical care. About 4 weeks after the birth of the child, the Society placed her in a boarding home near Milan in Washtenaw county. It is undisputed that the mother never signed a release for adoption, although there is testimony tending to show that at the time she had adoptive intent.

At the close of 1953, the child was in the boarding home near Milan and the mother was out of the maternity hospital, living with her other children and a sister. During the year 1954, the mother had several contacts with Society personnel about visiting her child in the boarding home, but either as a result of Society policy or the mother’s indifference, or both, the child was not visited by the mother during this time. A social worker for the Society testified that on 2 occasions when she saw the mother during the year 1954, the mother asked to see the child. The social worker claims that she telephoned the Society central office and obtained the address of the boarding home and mailed it to the mother. The mother denies having received it. Although it was considered normal practice to make a copy of such a letter, there was none in the files. However, it was admitted by the social worker that more than 1 year later a copy was “reconstructed” and placed in the files.

Without the mother’s knowledge or consent, the Society placed the child in the Furlong home on January 3, 1955. At that time, there was no order terminating parental rights, nor had a neglect petition been filed. On Febraary 1, 1955, the social worker in charge of the case went to the home of the mother to talk to her about obtaining a release of the child for adoption. It is admitted that the mother did not know that the child had been placed in a private home for eventual adoption, nor was she. told of this fact at that time. The mother advised the social worker that she wanted the child returned to her. This desire either was not communicated to the Society, or if it were, then not acted upon. At any rate, the child was not returned to the mother. During the visit of February 1st, the social worker found the Hatmaker home “clean and neat”. Testimony of a Society witness was that “At that time the mother not only indicated that she wanted the child back, but told me her husband was agreeable to her having it back.” The husband referred to is Mr. Hatmaker to whom the mother was married at some point during the spring of 1955. It should be pointed out that he is not the child’s father.

On April 12,1955, the records of the social worker indicated that the Hatmakers had retained counsel. On the following day, April 13th, the worker filed a petition in probate court for Gratiot county (where the mother had once lived) to have the child declared neglected. The petition was later dismissed upon request of'the Society.

May 10, 1955, an important conference was held between personnel of the Society and its attorneys and Mr. and Mrs. Hatmaker and their attorney. Mrs. Hatmaker offered to pay the Society for the care of the child and again demanded return of the child. At the meeting, the Society asked Mrs. Hatmaker to furnish proof of her second marriage and also a statement from her physician regarding her ability to care for an additional child. Apparently, the Society sought to judge thereby whether, in its opinion, the child should be returned to the mother.

In the meantime, the Society was having difficulty with the Furlongs. They are a childless couple, seeking to adopt a child through the good offices of the Society. They took the child January 3, 1955, not knowing, however, that the Society had no legal authority to proceed with the placement. The Society realized that having placed the child in an unlicensed home, it was in an untenable position. The Furlongs were told by the Society that either they must obtain a boarding home license or the child would have to be returned. The Furlongs did neither. These were happenings during the summer of 1955.

On September 27, 1955, the superintendent of the Society filed a petition in the probate court for Washtenaw county, juvenile division, alleging that Paula was a neglected child “on or about, to wit, the 25th day of April, A.D. 1955.” The disparity between the date of neglect and the filing date of the petition was never adequately explained. The Furlongs entered their appearance in probate court, but were later dismissed as parties on motion of the mother’s attorney. The Furlongs appealed the dismissal to circuit court. While the appeal was pending, the Society filed a petition for writ of habeas corpus alleging “that the restraining of said child, Paula Marie Mathers, by Mr. and Mrs. Edward H. Furlong is illegal.” The mother was also named in the proceeding. On July 24, 1956, the circuit court reversed the probate court and ordered the Furlongs retained as parties. In the same order the court held the habeas corpus proceedings in abeyance. From this order, the mother filed general appeal in this Court. The Furlongs filed a motion to dismiss appeal on the sole ground that the order appealed from was “not a final order, but is merely an interlocutory order.” The appeal was dismissed by this Court on that ground. The stage was then set for further proceedings below.

After full hearing on the Society’s petition in probate court, an order was entered August 15, 1957, making the child a permanent ward of the court and terminating parental rights. On the same day as the probate court order, the Furlongs filed a petition to adopt the child. On the same day, the probate judge signed an order consenting to the adoption. However, the circuit court suspended the adoption order, pending outcome of this appeal.

On August 20, 1957, the mother filed an appeal to circuit court and demanded a trial by jury on the petition. Later she moved to dismiss the case prior to jury trial, contending that the petition was fatally defective and that the order of the probate court was not in accordance with law. The motion was denied without prejudice to its renewal at the close of proofs. The mother also moved in a separate motion, prior to trial, to dismiss the Furlongs as parties. The motion was denied.

At trial in circuit court during the month of April, 1958, all sides contested the matter vigorously. Some 30 witnesses testified. At the conclusion of proofs, the Furlongs, the Society, and the mother moved for a directed verdict. The mother’s motion was made subject to the express reservation “that the jury shall be allowed to determine any questions of fact that the court decides are questions of fact presented by the proofs, and return a general verdict,” citing Arnold v. Krug, 279 Mich 702. The court refused to direct a verdict. Numerous requests for instructions were made and granted; some were denied, including the mother’s written request to submit 5 special questions to the jury. The jury returned a verdict finding the child neglected. On September 9, 1958, the circuit court entered an order of disposition affirming the order of probate court, making the child a permanent ward of the court and terminating parental rights. From this order, appellant has taken general appeal.

Appellant mother contends there were numerous errors in the proceedings. She contends that the Washtenaw county probate court had no jurisdiction over the child because said child was legally a resident of Wayne county, the county of the mother’s residence. Further, the mother contends that the neglect petition did not set forth facts sufficient to bring the child within jurisdiction of the court. The mother also claims that the Furlongs were not proper parties in interest, that on the jury trial it was improper to permit them to introduce evidence as to the suitability of their home and themselves as prospective parents for the child. The mother also argues that the court had no jurisdiction to compel her to submit to a physical and mental examination by a doctor appointed by the court for the purpose of having said doctor testify at the trial as a witness for the court. She complains also that the trial court erred in denying her motion for a directed verdict at the close of proofs. Certain other questions are raised about the admissibility of evidence, requests to charge, and finally whether the facts adduced support the order terminating parental rights. Both the Society and the Furlongs accept the statement of questions set forth by appellant.

Decision.

A. What is meant by “Found within the county.”

The mother argues that because the child was born in Wayne county which remained the county of the mother’s residence, the child’s legal residence was in Wayne county and therefore the Washtenaw county probate court had no jurisdiction. The Society contends on the other hand that the statutory language employed, that is, “found”, is simply the law dictionary definition that “a person is said to be found within a State when actually present therein.” Black’s Law Dictionary (3d ed), p 808. The Society argues that the legislature is well acquainted with the use of words such as residence and domicile and that had it intended such meaning it would have clearly said so. The Furlongs answer appellant by saying that the question is not jurisdictional, but involves a question of venue, which, they say was not seasonably raised by appellant.

The statutory language reads as follows:

“Sec. 2. Except as provided herein, the juvenile division of the probate court shall have: ** * *

“(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county.” CLS 1956, § 712A.2 (Stat Ann 1962 Rev § 27.3178 [598.2] ).

It seems clear that the legislature intended probate court to have jurisdiction over a child so described as to age and condition, et cetera, who is physically present in the county. If it had meant jurisdiction to be based upon the residence of parents, the legislature would likely have employed such terms. We agree that the word “residence” is an oft-used and perhaps well understood term. In fact, in the same section of the statute in question, the word “residence” is used in such a distinctive way as to require the conclusion that when the legislature used the word “found”, it did not mean “resides”, or its equivalent.²

B. Was petition sufficient to confer jurisdictionf ■

The petition in question was filed by the superintendent of the Society on September 27, 1955. In part, allegations were made as follows:

“I further represent that said Paula Marie Mathers is a resident of the city of Ypsilanti in Washtenaw county and is now residing with and under the custody and control of Michigan Children’s Aid Society and she was born on October 10 [sic 21], 1953.

“I further represent upon information and belief that said child, on or about, to-wit, the 25th day of April, A. D. 1955, in said county of Washtenaw is a neglected child in that she has been in boarding care of the Michigan Children’s Aid Society since November 18, 1953, during which time no payment has been made for her care by natural parent or parents; that said child has not been visited by her parents during the entire time, and further that suitability of the natural mother’s home is doubtful based on question of the mother’s willingness and physical and emotional ability to assume care of said child.”

Chapter 12A of the probate code deals with current major problems of juvenile delinquency and child neglect. It is provided, inter alia, that the juvenile division has exclusive jurisdiction in any proceedings concerning any child under 17 years found within a county:

“Sec. 2 * * * (b) (1) Whose parent or other person legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical or other care necessary for his health, morals or well-being, or who is abandoned by his parents, guardian, or other custodian, or who is otherwise without proper custody or guardianship; or

“(2) Whose home or environment by reason of neglect, cruelty, drunkenness, criminality or depravity on the part of the parent, guardian or custodian is an unfit place for such child to live in, or whose mother is unmarried and without adequate provision for care and support.” CLS 1956, § 712A.2 (Stat Ann 1962' Rev §27.3178 [598.2]).

The statute requires that a petition “set forth plainly the facts which bring said child within the provisions” of the applicable section of the chapter, in this case, the neglect section cited above. Appellant’s chief complaint, in this connection, is that the petition fails to allege that the mother was able to pay the Society for boarding care of the child. Undoubtedly, it would have been better practice to have made such allegation in the petition. The failure, however, was not fatal. The allegation that the child was neglected in that she had been placed in care of an agency such as the Society (a child placement agency) without a visit from “her parents” for over a year, and without any payment having been made by the mother, the person responsible therefor, was sufficient to give the court jurisdiction. As weighed in terms of the neglect section of the statute, the allegations of facts in the petition might have been descriptive of 1 of the several kinds of neglect covered in this section, including, among others, the abandonment and the unmarried mother provisions.

The petition meets the test in the recent case of Harmsen v. Fizzell, 351 Mich 86. Although in the cited case the lower court order was affirmed by an equally divided court, it seems clear that each opinion would approve of the petition herein in question. Justice Sharpe was critical of the petition in Harm-sen because, as he wrote (p 92), “the petition does not allege that the' children were neglected; that' the parents failed or refused to provide them necessary-support; that the children were abandoned, or that the home was unfit or improper by reason of cruelty or drunkenness, criminality or depravity as required by statute.” Justice Edwards in his opinion held that the petition recited (p 95) “ample facts under the juvenile code for a valid order assuming jurisdiction.” The petition, by the mother in Harmsen, alleged that the children were beyond her control and that she was not physically well enough to cope with them; that their father was in a mental hospital, and that the children needed security which she could not give. The petition in the instant case alleged neglect, as required by Justice Sharpe, and also it alleged specific facts constituting possible neglect, as approved by the opinion of Justice Edwards.

C. The participation of the Furlongs.

Appellant has contended vigorously throughout these proceedings thát the Furlongs were not proper parties. Appellant also contends that it was error to permit the Furlongs to introduce evidence as to suitability of their home and themselves as foster parents because, she claims, the sole issue was that •of neglect. As to whether the Furlongs were proper parties, several points ought to be noted. First,-thé statute provides that a summons may he issued reí quiring persons who have the custody or control of a child to appear personally, et cetera. CL 1948J § 712A.12 (Stat Ann 1962 Eev § 27.3178 [598.12]). Although the Furlongs had only hare physical custody of the child — there was no release from the mother nor had the court terminated parental rights —it was proper for them to have been served with summons and to have appeared as parties, subject, however, to certain limitations. It was necessary to have brought them within jurisdiction of the court so as to have them amenable to court order concerning the child. In re Baby Betty, 224 Mich 675.

The real question, insofar as the Furlongs are concerned, is what Avas the nature of their testimony and that of witnesses produced in their behalf. Over objection of appellant’s counsel, 20 Furlong witnesses were presented, including the Furlongs themselves. In the trial before the jury in circuit court, these witnesses were permitted to testify to the suitability of the Furlongs as foster parents, care given by them to the child, and in the case of a medical witness, the traumatic effect of returning the child to her mother. The medical witness was permitted to testify, over objection, that as a psychiatrist he had examined the Furlongs and found them suitable prospective parents. However, the sole issue before the jury was whether the child was within the provisions of chapter 12A of the probate code by reason of the alleged neglect of the mother. Although such evidence may have been relevant to an order of disposition, it was clearly prejudicial to permit such testimony to be presented to the jury on the issue of neglect. This Court said in Fritts v. Krugh, 354 Mich 97, 115:

“It is totally inappropriate to weigh the advantages of a foster home against the home of the natural and legal parents. Their fitness as parents and the question of neglect of their children must be' measured by statutory standards without reference to any particular alternative home which may be offered the children.”

Although the trial judge informed the jury that there were 2 parts to the case, the part the jury had to decide, and that which the court had to decide, it is impossible to believe that the jury was not strongly influenced in its decision by the more than substantial array of witnesses and testimony in support of the Furlongs as suitable adoptive parents. Within this context we note also that the trial court at the request of the Furlongs gave substantial instructions to the jury relevant to their suitability and stability, and their affection for the child. We note, too, in this context that appellees conveniently placed in juxtaposition to the Furlongs’ wholesomeness, certain lapses in conduct of the child’s mother, about which we shall say more.

D. Province of judge and jury in chapter 12A proceedings.

As the learned circuit judge noted in his instructions to the jury, there are 2 parts to such a trial. For the jury, the issue of fact was neglect. In the language of the statute, this requires a finding of whether or not the child is within the provisions of the chapter. The second part is the sole province of the judge. It concerns what order is to be entered upon the findings. The statute, chapter 12A, § 18, of the probate code, reads, in part, as follows:

“If the court shall find that a child, concerning whom a petition has been filed, is not within the provisions of this chapter, he shall enter an order dismissing said petition.' If, however, the court shall find that a child is within the provisions of this chapter, he may enter an order of disposition which shall be appropriate for the welfare of said child and society in view of the facts so proven and ascertained, as follows:” (Thereafter follows an enumeration of possible dispositional orders.) CLS 1956, § 712A.18 (Stat Ann 1962 Eev §27.3178 ,[598.18]).

Inasmuch as a jury trial is specifically authorized by the statute, when a jury is employed its use is limited to the conventional jury function, that of fact finding. Therefore, in construing the statute we hold that if the jury should find that a child is not within the provisions of the chapter (in this case, not neglected) then, by the language of the statute an order dismissing the petition is mandatory. If, however, the jury finds that a child is within the provisions of the chapter, then the court may enter an appropriate order of disposition, within the policy and provisions of the chapter. The chapter provides a wide range of dispositional orders, including, but not limited to, termination of parental rights.

When a jury trial is held in such proceedings, it is necessary to keep the 2 parts separate, otherwise, as here, confusion will result. The jury should only be concerned with requisite statutory proofs contained in section 2 of chapter 12A as may be invoked in a proper petition. If proofs are permitted before the jury, bearing upon what disposition ought to he made, the error is patent. Even in the usual case where the matter is tried to the court, it is better practice to keep these 2 parts procedurally separate. See Downs, Commentary on the Michigan Juvenile Code, p 55.

In making an order of disposition, a judge may find it necessary or desirable to receive additional evidence other than that required to sustain a finding that a child is within the provisions of the chapter. This is not to suggest, however, that the dis-positional aspect of the case is entirely separate from the fact finding, insofar as the judge is concerned. Ilis disposition should be made upon all the evidence. He must weigh the nature and quality of proofs on the question of neglect along with ■sociological, medical, and other available data, in order..to make a proper disposition. All of this must be viewed within the frame of reference of legislative policy.

E. Facts do not support the order.

In the case of In re Snyder, 328 Mich 277, this Court decided, as a procedural matter, that a circuit court order of disposition could be set aside if against the great weight of evidence. Likewise, in this case, the order of disposition must be set aside, not only because it is against the great weight of evidence, but also because it is not consonant with basic statutory policy emphatically enunciated by the legislature.

First, we take up the matter of legislative policy. Even without statutory guidance so manifest here, it is the policy of the law to keep children with their natural parents, where at all possible. The statute merely emphasizes that policy. Section 1, chapter 12A of the probate code, reads in part as follows:

“This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the court shall receive such care, guidance and control, preferably in his own home, as will be conducive to the child’s welfare and the best interest of the State and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to the care which should have been given to him by them.” CL 1948, § 712A.1 (Stat Ann 1962 Rev § 27.3178 [598.1]).

Throughout the chapter, this legislative policy is evident. It is re-emphasized perhaps most strongly in section 19, which we quote in part as follows:

“Provided, That in all cases in which the child is placed in foster care, the court shall, at intervals of not more than 6 months after the most recent order of disposition, require the county agent to submit reports based on investigation conducted by his office or by a probation officer or on information submitted by a suitable public or private family service or child caring agency approved by the court, regarding the situation of the child’s family and close relatives and the possibility of their re-establishing a home for the child, such reports to continue as long as the child is under the jurisdiction of the court.” CLS 1956, § 712A.19 (Stat Ann 1962 Rev § 27.3178 [598.19]).

The legislature thus, in clear and unmistakable language, has affirmed the ancient policy of law and society of keeping children with their natural parents; further, if a child is temporarily removed from such custody to return it to its family whenever feasible.

Our view of the evidence shows a conclusive case for restoring the child to its mother. The record shows a mother married and divorced at an early age, left with 2 children to support. Unquestionably, she has been guilty of certain misconduct, but such misconduct does not constitute legal justification for permanently severing parental rights. When for reasons best known to them, the natural mother and father of the child did not seek to provide it a home, the natural mother did what, at the time, appeared to be best. By boarding agreement, the child was placed with the Society, apparently with eventual adoption in mind. Later, she changed her mind about the possible adoption, after re-establishing a home with a man who showed every evidence of being a considerate husband and father. Although the mother, during the year 1954, exhibited no unusual effort to see the child, the evidence is plain that the Society did not make visiting an easy undertaking, possibly in pursuit of established policies. All of the expense and grief of this litigation might have been avoided shortly after February 1, 1955, when the mother made it abundantly clear that she desired the return of her child. It is recognizable that this posed an awkward situation for the Society because it had, without authority, placed the child with the Furlongs. However, the Furlongs had Paula only about 1 month when the mother made her demand. The Furlongs apparently were angry with the Society, and either upon their own determination, or upon bad advice, sought to fight for a privilege which was neither legally nor morally theirs. The Society then felt compelled to make regular its position, and thereupon a petition claiming neglect was filed. The use of neglect proceedings to circumvent the adoption code cannot be countenanced. See In re Kronjaeger, 166 Ohio St 172 (140 NE2d 773).

At the time of adjudication, the mother had long since re-established a suitable home and surroundings appropriate to her child’s needs. Fritts v. Krugh, supra. See, also, People v. New York Foundling Hospital, 17 App Div 2d 122 (232 NYS2d 479). Assuming neglect was shown from the date of birth to the time alleged in the petition, this had long been erased by her conduct subsequent to this period and prior to the adjudication. During the latter period, she sought vainly the return of her child, which under the circumstances, can hardly be grounds for an order of disposition permanently severing parental rights.

How can it be said that a mother who rehabilitates herself and then wages an 8-year battle for her own flesh and blood has committed some unpardonable sin which now makes the State master of her destiny and that of her child? Even more unjust would it be for us to say that because 8 years have-been necessary to litigate the matter, the door is now barred because mother and child thusly have been too long separated.

In view of the above considerations, we are constrained to reverse and remand for the entry of an order of disposition placing the' child in permanent custody of her natural mother. We do so with these instructions. The order is to be carried out with care, sensitivity, and reasonable promptness. Every effort shall be made to minimize the emotional impact of the child’s transfer. Sensible transfer procedures should be devised, employing all necessary resources of the court.

Part 2.

This part constitutes a review of the final report and recommendations of the circuit judge in proceedings held under Court Rule No 70, § 5 (1945).⁵ This portion of the case was submitted in the January term, 1963, although it, too, has a long and not illustrious history as the principal case discussed in Part 1.

After appellant filed her appendix consisting of 447 pages in the principal case in October, 1959, attorneys for the Furlongs filed a motion to dismiss the appeal, or in the alternative, refer the matter bach to the circuit court for findings. The motion consisted of 68 pages. The Society followed with its own motion in February, 1960, consisting of 37 pages. Both appellees claim appellant violated Court Rule No 67, §6 (1945)⁶ by failure to make a fair presentation in appellant’s appendix as required by this rule. We denied the motion to dismiss ■and remanded to circuit court “to ascertain whether or not the submitted appendix complies with the rules relating thereto, and, if not, to recommend to this Court (a) the measures to be taken with respect thereto, (b) the periods of time during which same should be taken, particularly with reference to such extensions of time as may be reasonable under the circumstances, and (c) recommendations, should any be warranted, with respect to action by this Court under Rule No 70, § 5.”

In May, 1960, we received the first recommendations from the circuit court. That court advised that it found not all of the record urged to be included in behalf of appellees would be necessary. However, it did find that appellant’s “omissions in the appendix are so gross, numerous and material as to compel the finding of this court that the submitted appendix does not comply with the rules of the Supreme Court relating thereto.” The circuit court rejected the idea of amending the appendix as being “burdensome and fruitless.” The recommendation was made that a bill of exceptions be prepared substantially in accordance with former Court Rule No 66 (1945). It withheld recommendations as to whether any action should be taken under Court Rule No 70, § 5, until such time as this Court indicated approval of its recommendation that a bill ■of exceptions be required.

Appellant objected to the circuit court’s recommendations that bill of exceptions be prepared. She asked that appellees be ordered to file their own appendicesand further that special permission be granted for oral argument. In a brief order, filed July 1, 1960, we approved tbe report and recommendations of the circuit court and ordered it to proceed to a final report and recommendations. Oral argument was permitted in the January, 1963, term.

In said final report, the circuit court found actual damages and expenses of the 2 attorneys for the Society amounting to $4,954.49. As for the 2 attorneys representing the Furlongs, the amount was $8,350.03. The court said that the appendix proceeding raised serious question in the “court’s mind as to the purpose or basis actuating appellant’s counsel.” However, the court advised that it “stops short of making the finding that appellant’s counsel acted in bad faith.” It suggested appellant’s counsel apparently had some misunderstanding of Court Rule No 67, § 6 (1945).

As we approach a determination of this issue we are mindful of holdings in prior cases, particularly Greenough v. Greenough, 354 Mich 508; Harden v. Widovich, 361 Mich 422; and Daley v. Gruber,. 362 Mich 366.⁷ These and other cases have established a principle that, in applying sanctions authorized by the rule, this Court will exercise its discretion, on final review, as the totality of facts and circumstances may require.

It has often been observed that nothing surcharges a case with emotion as much as a fight over a child. Perhaps it is because each participant instinctively identifies with 1 of the emotional symbols ever present in such proceedings. Unfortunately, in this case, emotions have triggered advocacies bordering on the unethical. The hostilities fairly leap from the pages. It is a good example of how not to handle a custody case.

After many hours spent going between assertions in briefs and appendices, on the 1 hand, and a voluminous record of testimony and exhibits, on the other (an effort made necessary by many sharp contradictions), it appears that there are deficiencies and defalcations on all sides. Appellant’s omissions from the original appendix fall into 2 general categories : (1) large amounts of colloquy between court and counsel; and (2) substantial quantities of testimony incompetent or irrelevant in view of our decision on the merits. On the other side of the ledger, we have been somewhat less than edified by the appellees’ performances. Much time and space were wasted on an item-by-item critique of appellant’s statements. In some instances, proper advocacy seems to have given way to positive litigiousness. Therefore, we exercise our discretion in this manner : in view of the multi-faceted proceedings, occasioning error, culpable and otherwise, on the part of the several participants, we do not invoke the sanctions requested. Our decision is to refuse the assessment of damages and costs as to all parties.

Relief.

An order of disposition shall be entered in accordance with the holding in Part 1. The habeas corpus proceedings, held in abeyance, are dismissed. All motions inconsistent with this opinion are denied.

No costs to either party for reasons already given.

Carr, C. J., and Dethmers and Kelly, JJ., concurred with Smith, J. Kavanagh, J., concurred in result.

2 “(d) * * * If any child is brought before the juvenile division of the probate court in a county other than that in which said child resides, said court may enter an order prior to hearing transferring the jurisdiction of such matter to the court of the county of residence, * * * with the consent of the judge of probate of said county of residence.” CLS 1956, § 712A.2 (Stat Ann 1962 Rev § 27.3178 [598.2] ).

5 See 347 Mich xxx, or Honigman, Michigan Court Rules Annotated, 1959 Pocket Part, p 212.

“See. 5. The Court may, upon its own motion, or the motion of any party, dismiss an appeal, assess punitive damages or take other disciplinary action when it has been determined that an appeal or any of the proceedings therein was vexatious by reason:

“(a) That the appeal was taken for purposes of hindrance or delay or without any reasonable basis for belief that there was a meritorious issue to be determined on appeal; or

“(b) That any motion, argument, petition, brief or appendix filed in the cause was grossly lacking in the requirements of propriety or grossly disregarded the requirements of a fair presentation of the issues to the Court.

“Punitive damages as herein provided shall not exceed an amount equivalent to actual damages and expense incurred by the opposing party, including reasonable attorney’s fees, and an added' amount not exceeding 10% of any judgment for money damages awarded in the lower court or tribunal.”

6 See 347 Mich xxii, 355 Mieli xiv, and Honigman, Michigan Court, Hules Annotated, 1959 Pocket Part, p 195.

7 See valuable summary of eases in 38 University of Detroit Law Journal p 343.

2 It has been repeated many times since. See, inter alia, In re Stockman, 71 Mich 180; Greene v. Walker, 227 Mich 672; 678; Sawyer v. Sawyer, 312 Mich 524; Johnson v. Johnson, 318 Mich 21; In re Seeney, 330 Mich 55; In re Brown, 343 Mich 69.