In Re JAGERS

568 N.W.2d 837 (1997) 224 Mich. App. 359

In the Matter of Kyle JAGERS and Rachel Jagers, Minors.
ALLEGAN COUNTY PROSECUTOR, Petitioner-Appellant,
v.
Janice JAGERS and Orrin Wells, Respondents-Appellees.

Docket No. 195683.

Court of Appeals of Michigan.

Submitted May 6, 1997, at Grand Rapids. Decided June 27, 1997, at 9:15 a.m. Released for Publication October 1, 1997.

Frederick Anderson, Prosecuting Atty., and Yvonne G. Dzialowski, Asst. Prosecuting Atty., for petitioner-appellant.

Before YOUNG, P J., and DOCTOROFF and MARK J. CAVANAGH, JJ.

MARK J. CAVANAGH, Justice.

The prosecutor appeals by leave granted the probate court order finding that the prosecutor did not have standing to file a child neglect petition under the Juvenile Code as a petitioner. Wereverser

On February 8, 1996, Allegan County Assistant Prosecutor Michael Buck filed a petition with the probate court alleging that minors Kyle and Rachel Jagers were suffering from various acts of abuse and neglect by their parents, respondents Janice Jagers and Orrin Wells.^[1] The petition, filed pursuant to MCR 5.961, was in the name of the People of Michigan. The prosecutor requested that the probate court accept jurisdiction over the minor children, place the children in licensed foster care or with a suitable relative, allow Janice Jagers to have supervised visitation, and order a physical examination of the children.

At a hearing on May 15,1996, the attorney for respondent Jagers argued that the prosecutor had no proper role in the proceedings, because he was not representing the Family Independence Agency (FIA). The FIA was also a party in this case but had expressly announced that it intended to retain other counsel. The probate court, relying on In re Hill, 206 Mich.App. 689, 522 N.W.2d 914 (1994), agreed that the prosecutor did not have standing to appear in this case independent of any representation of the FIA. The probate court further stated that it did not believe "that a petitioner can be a prosecutor because they [sic] are not verifying the information." The order incorporating this ruling was entered on May 28, 1996. On June 17, 1996, the probate court certified the question whether a prosecutor has standing to file a child neglect petition on behalf of the People of Michigan, and the prosecutor sought leave to appeal pursuant to MCR 5.993. On October 1, 1996, this Court granted the prosecutor's application for leave to appeal.

M.C.L. § 712A.11(2); M.S.A. § 27.3178(598.11)(2)^[2] provides:

Beginning June 1, 1988 and except as provided in subsection (3), if a person gives information to the juvenile division of the probate court that a child is within section 2(a)(2) to (6), (b), (c) or (d) of this chapter, a preliminary inquiry may be made to determine whether the interests of the public or of the child require that further action be taken. If it appears that formal jurisdiction should be acquired, the court shall authorize a petition to be filed. [Emphasis added.]

Statutory interpretation is a question of law subject to review de novo on appeal. The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. Nat'l Center for Mfg. Sciences, Inc. v. Ann Arbor, 221 Mich.App. 541, 545-546, 563 N.W.2d 65 (1997).

The Juvenile Code should be liberally construed in order to provide each child coming within the juvenile division's jurisdiction with such care, guidance, and control as will be conducive to the child's welfare and the best interest of the state. M.C.L. § 712A.1; M.S.A. § 27.3178(598.1); People v. Dunbar, 423 Mich. 380, 386, 377 N.W.2d 262 (1985).

We conclude that the probate court erred in finding that the prosecutor did not have standing to appear in this case independent of any representation of the FIA. Under the plain language of M.C.L. § 712A.11; M.S.A. § 27.3178(598.11), a petition may be filed by "a person" requesting the court to take action on behalf of a child because of parental abuse or neglect. A prosecutor or an assistant prosecutor assuredly qualifies as "a person." Moreover, the Supreme Court has stated:

The purpose and focus of a neglect or abuse proceeding in the juvenile division of the probate court is the protection of children. To this end, proceedings may be initiated by anyone who has information that a child is in need of the court's protection. [People v. Gates, 434 Mich. 146,161-162, 452 N.W.2d 627 (1990), cert den sub nom Gates v. Michigan, 497 U.S. 1004,110 S.Ct. 3238, 111 L.Ed.2d 749 (1990) (emphasis added).]

The probate court relied on Hill, supra. However, our review of Hill does not lead us to a different result. In Hill, the issue was whether the prosecutor had independent standing to proceed in child protective proceedings when the Department of Social Services (DSS) (now known as the FIA) requested and obtained representation from the office of the Attorney General. This Court stated:

We find the prosecutor, under certain circumstances, has standing to petition the probate court for the termination of a parent's parental rights and to appear at all child protective proceedings regardless of the Department of Social Services' position and representation by the Attorney General's office. Nonetheless, for the reasons set forth below, we find no error in the circuit court's affirmance of the probate court's ruling that the prosecutor had no standing with regard to the instant matters, in part because the prosecutor did not properly petition the court for termination. [Hill, supra at 691, 522 N.W.2d 914 (emphasis added).]

In Hill, unlike in the present case, the prosecutor did not file the original petition in the probate court. Moreover, the prosecutor was not acting on behalf of the DSS. Nevertheless, the prosecutor attempted to amend and supplement the original termination petition, which had been filed by the DSS. The Hill Court merely held that one party cannot amend or supplement another party's petition. See id. at 692, 522 N\W.2d 914.

The probate court relied on a statement in Hill that there are only three ways that a prosecutor can obtain standing in a child protective proceeding. See id. at 691, 522 N.W.2d 914. The statutes cited in Hill are those that specifically refer to prosecutorial involvement in a child protective proceeding. M.C.L. § 712A.17(4); M.S.A. § 27.3178(598.17X4) and MCR 5.914(A) require the prosecutor to appear at any child protective proceeding when requested by the court. M.C.L. § 712A.17(5); M.S.A. § 27.3178(598.17)(5) requires the prosecutor to serve as a legal consultant to the DSS/FIA at all stages of a child protective proceeding when requested to do so by the agency or its agent. M.C.L. § 712A.19b(l); M.S.A. § 27.3178(598.19b)(1) and MCR 5.974(A)(2) permit the prosecutor and certain other enumerated parties to file original, amended, and supplemental petitions for termination of parental rights after a child has remained in foster care or the custody of a guardian for a specified period.

However, there is no authority for the finding that the prosecutor may perform only those duties specifically assigned to him in the statutes and court rules. The powers and duties of the prosecuting attorney are provided by law. See Const 1963, art 7, § 4. Pursuant to M.C.L. § 49.153; M.S.A. § 5.751, a prosecuting attorney shall appear for the state or county and prosecute or defend in all the courts of the county all prosecutions, suits, applications, and motions, whether civil or criminal, in which the state or county may be a party or is interested. However, the prosecutor's powers and duties include not only those expressly set forth in the statute, but also such additional functions as may be necessarily implied from those specifically mentioned. Bloss v. Williams, 15 Mich.App. 228, 233, 166 N.W.2d 520 (1968).

We further conclude that the probate court erred in determining that the prosecutor could not verify the petition. M.C.L. § 712A.1K4); M.S.A. § 27.3178(598.11)(4) requires only that the petition "be verified and may be upon information and belief." MCR 2.114(B)(2) provides:

If a document is required or permitted to be verified, it may be verified by

(a) oath or affirmation of the party or of someone having knowledge of the facts stated; or

(b) except as to an affidavit, including the following signed and dated declaration: "I declare that the statements above are true to the best of my information, knowledge, and belief."

In the present case, the prosecutor declared that the statements in the petition were true to the best of his knowledge, information, and belief. Thus, the prosecutor fulfilled the statutory requirement that the petition be verified. If the prosecutor cannot support the allegations in the petition with evidence sufficient for the court to assume formal jurisdiction, the court will not authorize the petition to be filed. See M.C.L. § 712A.11(2); M.S.A. § 27.3178(598.11X2).

Moreover, we believe that public policy favors allowing prosecutors to act independently of the FIA. As the probate court noted at the hearing below, the prosecutor and the FIA do not always agree on how a particular case should be handled. When, as in the instant case, the prosecutor believes that a petition should be filed and the FIA, for whatever reason, is not persuaded, the prosecutor should not be precluded from taking any action. The state, and every county within it, has an interest in protecting children from abuse and neglect. See M.C.L. § 49.153; M.S.A. § 5.751.

Reversed. No taxable costs pursuant to MCR 7.219, a question of public policy being involved.

NOTES

[1] The father of Kyle Jagers is actually Patrick Jagers. Patrick Jagers is not a party to this appeal.

[2] This statute was amended by 1996 PA 409, § 1. The amendment becomes effective on January 1, 1998.