In Re Slis

144 Mich. App. 678 (1985) 375 N.W.2d 788

IN THE MATTER OF SLIS

Docket No. 75198.

Michigan Court of Appeals.

Decided August 6, 1985.

John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Olga Agnello-Raspa, Assistant Prosecuting Attorney, for Department of Social Services.

Juvenile Defender Office (by William E. Ladd), for Marie E. Slis, Appellee.

Robert T. Kinzer, for respondent.

Before: HOOD, P.J., and V.J. BRENNAN and R.M. MAHER, JJ.

PER CURIAM.

Respondent, Judy Slis, is appealing as of right from an October 24, 1983, order entered by Judge Y. Gladys Barsamian, Wayne County Probate Court, Juvenile Division, which terminated respondent's parental rights as to her minor daughter, Marie Elizabeth Slis, MCL 712A.19a(c), (e) and (f); MSA 27.3178(598.19a)(c), (e) and (f).

Respondent's first claim is that the petition did not provide her with proper notice of the termination hearing.

The petition in question is dated May 18, 1983, and it is captioned "Petition for Rehearing". Although the petition fails to specifically name the mother (respondent), she is also referred to as the mother of two other named children. It refers to her as the mother of Marie Elizabeth Slis in ten counts substantiating neglect. Respondent now claims that she was not properly provided with notice of the hearing.

The first hearing date on the petition was June 17, 1983. Respondent was present at the hearing and she informed the prosecuting attorney that she had talked to her attorney, Mr. Homeier, and that he had told her the date and the time of the hearing. Mr. Homeier, however, had failed to appear the first morning of the hearing and the trial judge decided not to proceed without him.

The prosecuting attorney stated that he presumed respondent had a copy of the May 18, 1983, petition because she had received a letter from her attorney. He wanted to be certain she had a copy of the petition. Later, he stated that he understood she had not been served and that she had signed a waiver of notice. The prosecuting attorney also asked if a waiver of service would be possible for the next hearing.

Judge Barsamian indicated that Mrs. Slis was being advised in court that the next hearing would be on June 21 and that such was adequate notice.

Respondent stated on the record that she did not receive a copy of the petition. The prosecuting attorney served her with a copy of the May 18, 1983, petition on the record in court. The trial judge noted that no subpoena or summons had ever been requested for respondent and that it would be appropriate to get a waiver of service from her. Respondent signed the waiver of service in court. The court indicated that what happened was that everyone assumed respondent wanted to be in court since it was at her action that the matter came back. Finally, the prosecutor noted that the petition did not contain Mrs. Slis's name. The court amended the petition to contain her name in paragraph M.

Respondent is correct that she is entitled to notice of the charges against her. See MCL 712A.11; MSA 27.3178(598.11); MCL 712A.12; MSA 27.3178(598.12); and MCL 712A.13; MSA 27.3178(598.13); JCR 1969, 4.1 and 7.2.^[1] These notice requirements are mandated by due process.

The mother's voluntary appearance in court and the signature in the waiver satisfied the notice requirement under the statute and the court rule. See MCL 712A.12, supra; JCR 1969, 7.2(D).^[2] According to MCL 712A.12, any party who voluntarily appears in the proceedings may, by writing, waive service of process or notice of hearing.

We believe that the requirements of due process were met by the procedure followed herein. Due process requires that there be jurisdiction over the defendant and the subject matter of the litigation and that defendant be afforded notice of the nature of the proceedings and an opportunity to be heard. Krueger v Williams, 410 Mich 144, 157-159; 300 NW2d 910 (1981), app dis 452 US 956; 101 S Ct 3102; 69 L Ed 2d 967 (1981). A party who enters a general appearance and contests a cause of action on the merits submits to the jurisdiction of the court and waives service of process objections. See Cross v Dep't of Corrections, 103 Mich App 409, 413; 303 NW2d 218 (1981), lv den 411 Mich 1063 (1981), citing Wright v Estate of Treichel, 36 Mich App 33, 38; 193 NW2d 394 (1971). When respondent appeared and signed a waiver of service form, four days before the trial actually commenced on June 21, 1983, the juvenile code's jurisdictional requirements were satisfied. See MCL 712A.12, supra, and MCL 712A.13, supra.

Finally, respondent was not surprised by her involvement with the court in the instant trial. She had previously been involved in a termination of parental rights case against her, which she had successfully appealed. She may not reasonably argue that she was unaware of any of the allegations against her.

The petition of May 18, 1983, while it did not include respondent's name and did not cite the specific statutory bases for the prayer for permanent custody, did not violate respondent's right to due process. The petition was amended on the record to contain her name. Amendment of the petition may be made at any stage of the proceedings as the ends of justice may require. See MCL 712A.11. While the specific statutory bases were not cited, the petition was for neglect. It listed with specificity all the allegations of neglect against respondent. These defects, in our opinion, were technical and they did not erode the fact of the actual notice.

Respondent's next claim is that the trial court committed error in considering the best interests of the child when deciding to terminate parental rights.

Recently, this Court considered the argument of whether a probate judge erroneously terminated a parent's rights based on the best interests of the child standard, rather than by requiring clear and convincing evidence of parental unfitness. In In the Matter of Schejbal, 131 Mich App 833, 835; 346 NW2d 597 (1984), this Court opined that the best interests of the child are relevant in proceedings under the juvenile code. Id., 836. However, the best interests of the child may not justify termination of parental rights without clear and convincing proof of the statutory grounds for the custody order. See also In the Matter of Kenyetta Brown, 139 Mich App 17; 360 NW2d 327 (1984); JCR 1969, 8.3(B); In the Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973); In the Matter of Atkins, 112 Mich App 528; 316 NW2d 477 (1982), lv den 413 Mich 912 (1982). Once clear and convincing evidence has established the statutory grounds justifying a permanent custody order, the court may consider the best interests of the child. Schejbal, supra, 836; Brown, supra, 20.

Any consideration of the best interests of the child does not require reversal by this Court because the trial judge based her determination on clear and convincing evidence of neglect. She made extremely detailed findings of fact and conclusions of law. The court summarized the family's entire involvement with community service agencies and detailed the mother's failed attempts to send her children to school, to adequately clean her house, and to care for her children. The court terminated the mother's rights, finding there was no likelihood that in the next 24 months or 48 months there would be a change in the mother's situation. Judge Barsamian considered the best interests of the child only after making her findings of fact using the clear and convincing standard about the mother's neglect.

Any reference made by the trial court as to the best interests of the child in this case was entirely proper.

The respondent also claims that the state did not sustain its burden of proving by clear and convincing evidence that termination of her parental rights was warranted.

The Supreme Court recently clarified the standards of appellate review in a parental rights termination case. In re Cornet, 422 Mich 274; 373 NW2d 536 (1985), provides for review under the clearly erroneous standard.^[3]

In In the Matter of Harmon, 140 Mich App 479, 481-482; 364 NW2d 354 (1985), the court explained what the probate court may look at when determining whether to terminate parental rights:

"At a dispositional hearing, a probate court may apprise itself of all relevant circumstances and, in its discretion, may admit evidence of such circumstances or may consult the records of the original and all subsequent hearings on the custody of the child. In the Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973). The party petitioning for termination of parental rights bears the burden of proving by clear and convincing evidence that termination of parental rights is warranted. Id. See also JCR 1969, 8.3(b) [sic]. Thus, it must be shown by clear and convincing evidence that the parents are unfit and uable to become fit within a reasonable period of time. In the Matter of Adkins [sic], 112 Mich App 528, 541; 316 NW2d 477 (1982), lv den 413 Mich 912 (1982)."

The statutory hearing is held to determine whether the parent has managed to "reestablish" a fit home or is likely to do so in the future. LaFlure, supra, p 390. All circumstances which prompted placing the child in temporary custody of the court should be considered. Id., 390.

In Fritts v Krugh, 354 Mich 97, 113; 92 NW2d 604 (1958), the Court fashioned guidelines for determination of whether a permanent custody order should issue. A permanent custody order "must be based upon testimony of such a nature as to establish or seriously threaten neglect of the child for the long-run future". 354 Mich 114. The advantages of a foster home should not be weighed against the home of the natural, legal parents. Id., 115. The rights of the natural parents should not be terminated because of a short marital dispute or because of a temporary period of desertion by one of the parents. Id., 116. "There must be real evidence of long-time neglect, or serious threats to the future welfare of the child, to overthrow permanently the natural and legal right of parents." 354 Mich 116.

Defendant's parental rights were terminated under MCL 712A.19a(e) and (f), which provide:

"Sec. 19a. Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:

* * *

"(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.

"(f) The child has been in foster care in the temporary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months."

The trial court's findings were not clearly erroneous. Our review leads us to conclude, as did the trial court, that the state presented clear and convincing evidence to establish that respondent was unfit and unable to become fit within a reasonable time. The evidence was sufficient, indeed, to support a determination of neglect.

Respondent's next claim is that the trial judge's order erroneously cites MCL 712A.19a(c) as one of the bases of termination of the mother's rights. MCL 712A.19a(c) provides:

"(c) A parent or guardian of the child is unable to provide proper care and custody for a period in excess of 2 years because of a mental deficiency or mental illness, without a reasonable expectation that the parent will be able to assume care and custody of the child within a reasonable length of time considering the age of the child."

We beleive that the recitation of subsection (c) as one of the bases for termination does not require reversal. Petitioner admits that there was no basis on the record for such a finding, because the petition of May 18, 1983, did not mention mental deficiency or illness of the mother. No direct evidence was presented on the issue, petitioner says, and neither the petitioner nor counsel for the child argued such as a basis for terminating parental rights. In the court's findings of fact, no mention of the mother's mental disability was made to support the finding of termination, petitioner argues.

While we agree with petitioner that the petition does not refer to subsection (c) as one of the grounds for terminating the mother's rights and that it makes no mention of mental deficiency or illness of the mother, such a finding could have been based on Dr. Shorenstein's testimony that Mrs. Slis suffered from a "dependent personality" which made it impossible for her to adequately care for a child. He told the court that she has an "attachment disorder" which renders her unable to bond with her child. He believed that her focus in life is the gratification of her own needs and that this would render her inadequate in caring for Marie.

We note first that the evidence overwhelmingly supported termination of the mother's rights based upon neglect. The court's recitation of subsection (c) was harmless error. This Court will not reverse where the lower court reaches the right result for the wrong reason. See In the Matter of Bailey, 125 Mich App 522, 529; 336 NW2d 499 (1983). Reversal is not required, regardless of whether we consider Dr. Shorenstein's testimony as probative of the mother's mental deficiency or whether it is considered as probative of her continuing neglect.

Finally, respondent states that the child was placed under temporary custody of the juvenile court for only ten months prior to the first finding of permanent custody in December of 1980. This, however, does not foreclose a finding of permanent custody.

Judge Barsamian found that Marie first became a ward of the court in 1974, but was allowed to remain in her mother's home under the supervision of the DSS. In 1975, Marie was removed from her mother's home and placed in foster care. In December, 1975, she was returned to her mother. Again, in February, 1980, Marie was removed from her mother's home due to neglect. The court ordered in December, 1980, that the parental rights to Marie be permanently terminated, but the order was set aside and a new hearing ordered by Judge William Leo Cahalan on November 29, 1982. The DSS then filed a petition requesting permanent custody of Marie and Judge Barsamian granted the petition in the instant case.

Respondent claims that the probate court's jurisdiction is limited by MCL 712A.19a(f). However, respondent's interpretation is erroneous. Subsection (f) does require that the child be in temporary custody for two years before permanent custody may be taken if the foster care is the only grounds for termination. Respondent ignores the other clearly listed grounds of (a) through (e). Respondent's argument is without merit.

Affirmed. We retain no further jurisdiction.

NOTES

[1] JCR 1969, 4.1 has been superseded by MCR 5.904(A) and JCR 1969, 7.2 has been superseded by MCR 5.907(B).

[2] JCR 1969, 7.2(D) has been superseded by MCR 5.907(B).

[3] When the parties received our original opinion, that opinion pointed out that there was a split in the Court of Appeals involving the standard of review of parental rights termination cases. Some panels followed the de novo standard, while others used the clearly erroneous standard. See In the Matter of Harmon, supra. Prior to the publication of the instant opinion in the bound volume, but after it was released in a slip opinion to the parties involved in this appeal, the Michigan Supreme Court released In re Coronet, which resolved the split.