Adrianson, Matter of

Decision Date09 April 1981
Docket NumberDocket No. 52785
Citation306 N.W.2d 487,105 Mich.App. 300
PartiesIn the Matter of Kathren ADRIANSON and Purcell Adrianson. INGHAM COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Jan ROBBINS, Respondent-Appellant.
CourtCourt of Appeal of Michigan — District of US

Michael James Kistler, Lansing, for respondent-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Janis L. Blough, Asst. Pros. Atty., for petitioner-appellee.

Before CYNAR, P. J., and GILLIS and ALLEN, JJ.

CYNAR, Presiding Judge.

Respondent appeals by leave granted on November 25, 1980, after the Ingham County Circuit Court had affirmed a probate court order making two of her children permanent wards of the court.

Respondent is the mother of Kathren and Purcell (Butch) Adrianson and two other children, David Gibbs and James Adrianson. She is divorced, and her former husband's whereabouts are unknown.

On January 8, 1977, Joyce Lamar of the Department of Social Services filed a petition alleging neglect of the Adrianson children. The petition was authorized, and the children were removed from the home, pending final disposition of the case. At a hearing May 6, 1977, respondent admitted the allegations in the petition, and the three Adrianson children (Kathren, Purcell, and James) were adjudged temporary wards of the court. The court, on the same day, issued an order directing respondent to do several things, including cooperating with a therapist and finding a suitable apartment.

On May 19, 1978, respondent's Department of Social Services caseworker, Ellen McKay, petitioned for a rehearing, requesting that Purcell and Kathren be made permanent wards of the court.

A hearing was held on June 15 and 16, 1978. On the first day, David Rolfe, determined to be an expert in family dynamics, described his weekly meetings with the minor children and offered his opinion that the best interests of the children dictated that they be made permanent wards of the court. Elton Kirk, determined to be an expert in clinical psychology, described his counseling sessions with respondent. He indicated that she was unwilling to work with him and that it would be difficult for her to change her attitudes and home environment.

At the beginning of the second day of the hearing, the prosecutor announced that the parties had reached an agreement by which the respondent would admit the allegations in the petition for permanent wardship, but that an order for wardship would not take effect for 90 days, at the end of which respondent would have an opportunity to demonstrate compliance with 14 conditions. If she met that burden, the order for permanent wardship was to be set aside; if not, it was to take immediate effect.

Respondent was advised of her rights and pleaded "no contest". Ellen McKay took the stand and stated that the allegations in the petition were true to the best of her knowledge. The plea was accepted.

Respondent attempted to demonstrate compliance with the 14 conditions at a hearing held on November 22, 1978. She stated that she had done her best to comply with these conditions. Respondent testified that she had obtained adequate housing and had lived there alone. She described her work as an employee, then as a partner, in a trash-hauling business. Respondent said that she had paid her rent monthly, and she exhibited rent receipts. She indicated, however, that her caseworker had told her not to give the receipts to the caseworker.

Respondent testified that she had seen a credit counselor and had filled out a budget form and that the counselor had told her that future sessions were unnecessary. She said she had no outstanding debts and described business and personal savings accounts that she had established after the earlier hearing. She also testified that after her probation officer and her caseworker set up appointments with a psychotherapist, she kept all scheduled appointments. She produced a letter from her therapist.

Respondent said she had violated no laws and had received no nonparking traffic tickets. She said her contact with her children had been limited to written communication. She described her efforts to make regular contacts with her caseworker.

Respondent called as a witness her business partner, Melvin Cobb, who described their work and earnings.

The prosecution called McKay to the stand. She denied telling respondent that she would not accept rent receipts. She also said that respondent had not made weekly contacts. McKay's report of contacts with respondent was admitted into evidence.

The probate court reviewed the evidence and found that respondent had not complied with two conditions: that she give rent receipts to her caseworker and the condition regarding psychotherapy. The court found that respondent had complied, partly complied, or that there was no reason to believe she had not complied with the remaining conditions.

The order of permanent wardship went into effect under the agreement. Respondent appealed to the Ingham County Circuit Court, and, on July 14, 1980, the circuit court affirmed the order.

Respondent sought leave to appeal in this Court, apparently without notice to the prosecution. This Court granted leave in an order dated October 22, 1980.

On October 24, 1980, the prosecution filed several documents: (1) a motion for rehearing of respondent's delayed application for leave to appeal, (2) a motion for stay of the October 22 order of the Court of Appeals, (3) a motion to affirm the orders of the circuit and probate courts or to dismiss the appeal, (4) a motion for immediate consideration of its motions, (5) an answer to the delayed application for leave to appeal, (6) a brief in opposition to the late application for leave to appeal, and, (7) a brief in support of its motion to affirm.

This Court granted the motion for rehearing and application for delayed appeal, inviting the parties to brief the following issues:

"1. Did the probate court exceed its jurisdiction in ordering the children in its temporary wardship in 1971 (sic)? See, In re Kurzawa, 95 Mich.App. 346, 353 (290 N.W.2d 431) (1980).

"2. Did the probate court exceed its jurisdiction in terminating the parental rights of defendant-appellant in her children?"

We must first decide whether this Court has the authority to review the propriety of the probate court's 1977 decision to take the minors into temporary wardship after respondent admitted the allegations in the petition therefor, where respondent did not appeal that decision at any time and asserted that the probate court lacked jurisdiction only after this Court ordered the issue briefed.

One line of cases holds that an erroneous assumption of jurisdiction over a child renders the court's actions void ab initio and thus subject to attack at any time. In In re Kurzawa, 95 Mich.App. 346, 357, 290 N.W.2d 431 (1980), this Court found that the probate court had erred in assuming jurisdiction when no petitions that were filed alleged parental neglect. This Court held that the probate court proceedings were void ab initio. Similarly, in a habeas corpus action, our Supreme Court permitted a collateral attack on an order terminating parental rights on the ground that the probate court had erroneously assumed jurisdiction. Fritts v. Krugh, 354 Mich. 97, 92 N.W.2d 604 (1958). See also In re Plummer Estate, 42 Mich.App. 603, 607, 202 N.W.2d 429 (1972).

The strong dissents in Fritts point out a flaw in this analysis. Justices Smith and Black each applied the general law regarding jurisdictional matters to reach a result different from that arrived at by the majority. They recognized the distinction, discussed in Buczkowski v. Buczkowski, 351 Mich. 216, 88 N.W.2d 416 (1958), between the erroneous exercise of jurisdiction and the lack of jurisdiction, and they found that when a probate court errs in exercising its jurisdiction, the proceedings are not void ab initio, but are voidable by attacking the decision on direct appeal. The distinction between erroneous exercise of jurisdiction and lack of jurisdiction was best explained in a Corpus Juris passage quoted in Jackson City Bank & Trust v. Frederick, 271 Mich. 538, 545-546, 260 N.W. 908 (1935):

" 'Want of jurisdiction must be distinguished from error in the exercise of jurisdiction. Where jurisdiction has once attached, mere errors or irregularities in the proceedings, however grave, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void, and until set aside it is valid and binding for all purposes and cannot be collaterally attacked. Error in the determination of questions of law or fact upon which the court's jurisdiction in the particular case depends, the court having general jurisdiction of the cause and the person, is error in the exercise of jurisdiction. Jurisdiction to make a determination is not dependent upon the correctness of the determination made.' 33 C.J. pp. 1078, 1079."

This reasoning was applied in Buczkowski, supra, to bar a collateral attack on an erroneous exercise of jurisdiction. Similarly, in Harmsen v. Fizzell, 354 Mich. 60, 63, 92 N.W.2d 631 (1958), adopting the reasoning in an earlier opinion in the same case, 351 Mich. 86, 93-111, 87 N.W.2d 161 (1957), the Court found the erroneous exercise of jurisdiction over a child to be voidable, but not void, and not subject to collateral attack. See also Banner v. Banner, 45 Mich.App. 148, 152-155, 206 N.W.2d 234 (1973). We note that the Buczkowski-Harmsen analysis was not discussed in the recent case of In re Kurzawa, supra.

Petitioner suggests that the Fritts opinion is not precedent as the controlling statute was amended after Fritts was decided to provide that an application for delayed appeal from an order of the juvenile division shall be filed within six months after the...

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22 cases
  • Schmeltzer, Matter of
    • United States
    • Court of Appeal of Michigan — District of US
    • 28 Abril 1989
    ... ... 1 We would note there is currently a split among panels of this Court regarding whether an aggrieved parent may collaterally attack alleged errors occurring at the adjudicative hearing. Compare In re Dupras, 140 Mich.App. 171, 173, 363 N.W.2d 26 (1984), and In re Adrianson, 105 Mich.App. 300, 311, 306 N.W.2d 487 (1981) (not permitting collateral attack), with In re Ferris, 151 Mich.App. 736, 744, 391 N.W.2d 468 (1986), lv. den., 426 Mich. 856 (1986) (permitting collateral attack). However, all cases are in agreement that the legal sufficiency of the petition itself ... ...
  • Gass, Matter of, Docket No. 103392
    • United States
    • Court of Appeal of Michigan — District of US
    • 31 Enero 1989
    ...165 Mich.App. 701, 704, 419 N.W.2d 449 (1988); In re Ferris, 151 Mich.App. 736, 391 N.W.2d 468 (1986); but see In re Adrianson, 105 Mich.App. 300, 306 N.W.2d 487 (1981), and In re Dupras, 140 Mich.App. 171, 363 N.W.2d 26 Accordingly, our inquiry is whether any error alleged to have occurred......
  • Waite, Matter of
    • United States
    • Court of Appeal of Michigan — District of US
    • 1 Abril 1991
    ...concluded that errors during the adjudicative stage could only be challenged on direct appeal, not collaterally. In re Adrianson, 105 Mich.App. 300, 306 N.W.2d 487 (1981); In re Dupras, 140 Mich.App. 171, 363 N.W.2d 26 (1984). Subsequently, however, another panel decided In re Ferris, 151 M......
  • Martin, Matter of, Docket No. 99929
    • United States
    • Court of Appeal of Michigan — District of US
    • 31 Mayo 1988 this. Therefore, the case was remanded back to us for plenary consideration, as though on leave granted.2 In In re Adrianson, 105 Mich.App. 300, 311, 306 N.W.2d 487 (1981), this Court held:"We conclude that this Court has jurisdiction to examine the 1977 petition to determine only whethe......
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