in Re Smith Minors

Order Michigan Supreme Court
Lansing, Michigan
April 2, 2021 Bridget M. McCormack,
Chief Justice
161525 Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
In re SMITH, Minors. SC: 161525 Elizabeth M. Welch,
COA: 351095 Justices
Kalamazoo CC Family Division:
18-000053-NA
_______________________________________/
On Thursday, March 4, 2021, the Court heard oral argument on the application for
leave to appeal the April 30, 2020 judgment of the Court of Appeals. On order of the
Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave
to appeal, we REVERSE the judgment of the Court of Appeals, and REMAND this case
to the Kalamazoo Circuit Court Family Division for further proceedings not inconsistent
with this order. MCL 712a.2(b)(1) provides that a court may assume jurisdiction over a
juvenile if his or her parent “when able to do so, neglects or refuses to provide proper or
necessary . . . education . . . .” Subsection (B) specifies that “neglect” is defined as it is in
MCL 722.602. That provision defines “neglect” as “harm to a child’s health or welfare
by a person responsible for the child’s health or welfare that occurs through negligent
treatment . . . .” MCL 722.602(1)(d). Therefore, there must be a showing of harm in
order for a court to assume jurisdiction over a juvenile under the “neglects” clause of
MCL 712A.2(b)(1).1 Here the children attended school 75% of the time and had several
tardies. While that is a greater number of absences than the 85% average attendance rate
of their school, the only testimony presented regarding the children’s academic
performance was from BS, Jr.’s teacher. She testified that he was performing at grade
level. Though she also said that she struggled to get a complete picture of his progress
and that she feared he would not be able to maintain his academic level in the future, such
testimony is speculative and does not show by a preponderance of the evidence that BS,
1
The Court of Appeals relied on In re Nash, 165 Mich App 450, 455-456 (1987), for the
proposition that a “child’s chronic absence from school is a sufficient basis for the trial
court to assume jurisdiction on the ground of educational neglect as contemplated by the
statute.” In re Smith, Minors, unpublished opinion of the Court of Appeals, issued April
30, 2020 (Docket Nos. 351095 and 351178), p 2. But Nash did not involve chronic
absences without a showing of harm. There, in addition to the children’s absences from
school, the respondent had no stable residence and one of the children was born with
symptoms of a drug overdose. Nash, 164 Mich App at 455.
2
Jr., was actually harmed so as to have been neglected under the statutory definition. See
In re Ferranti, Minor, 504 Mich 1, 15 (2019). Because there was no showing of harm
caused by the children’s absences, we agree with Judge Riordan’s dissent that the circuit
court erred by assuming jurisdiction on that ground alone.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 2, 2021
t0330
Clerk