Bechard, In re

Decision Date23 May 1995
Docket NumberDocket No. 171636
Citation535 N.W.2d 220,211 Mich.App. 155
PartiesIn re Jeannette L. BECHARD, Tina M. Bechard, Theresa L. Bechard, David V. Bechard, Joshua J. Bechard, and Joseph V. Bechard, Minors. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Vincent J. BECHARD, Respondent-Appellant.
CourtCourt of Appeal of Michigan — District of US

Thomas P. Sarrine, Lexington, for respondent.

Before TAYLOR, P.J., and RICHARD ALLEN GRIFFIN and SCHMA, * JJ.

TAYLOR, Presiding Judge.

Respondent appeals by leave granted the probate court order terminating his parental rights to six children. The termination proceedings followed respondent's guilty plea to a charge of criminal sexual conduct, second-degree, M.C.L. § 750.520c; M.S.A. § 28.788(3), involving his daughter. His rights were terminated on the basis of M.C.L. § 712A.19b(3)(h); M.S.A. § 27.3178(598.19b)(3)(h) (incarceration for two or more years/inability to provide a normal home life). We set aside the order terminating respondent's parental rights and remand the case for further proceedings.

This matter was initiated in the probate court on February 10, 1993, by the filing of petitions requesting the termination of respondent's parental rights. At the first proceeding, on February 11, 1993, the court failed to state the nature of the hearing it was conducting; however, we conclude that the proceeding constituted a preliminary inquiry, governed by MCR 5.962. 1 Thus, at the February 11, 1993, proceeding, the court had three options regarding how it could proceed. Pursuant to MCR 5.962, the court could have (1) dismissed the complaint or denied authorization of the petition, (2) referred the case to alternative services, or (3) authorized the petition. From statements made by the court it is clear that the court declined to proceed under the first two options and must have decided to authorize the petition. In order to authorize the petition, the court must have found probable cause to believe that one or more of the allegations in the petition, as filed, were true. MCR 5.962(B)(3). Evidently, to that end, the court informed respondent of his constitutional rights, and also informed him that he could plead admission or no contest, in which case his right to trial would be waived. MCR 5.971. Rather than enter either plea, respondent requested that an attorney be appointed for him.

The court then received testimony from a Department of Social Services worker who was familiar with the facts of the case. Subsequently, after a brief recess, the court stated:

[Anita Bechard (the childrens' mother) is] agreeable to giving the court jurisdiction, but she wants an attorney for the disposition.

* * * * * *

Okay. Now it's my understanding Mr. Bechard will want a lawyer, but since one parent has given jurisdiction, the court then does have jurisdiction and we will proceed with the disposition phase of it.

The import of these remarks was that an adjudication on the merits, i.e., proof of the charge by a preponderance of the evidence, had taken place, and that at the next proceeding the court would make its disposition, i.e., decide whether respondent's rights with regard to the children should be terminated. The order entered on February 11, 1993, which covers the court's activities on that day, is puzzling in light of the judge's oral statements, but by its terms it does no more than indicate that the court authorized the filing of the petition.

In spite of the limited holding in the order, the judge next acted in accordance with his oral statements rather than his written order, and held the dispositional hearing on July 15, 1993. At the hearing, the respondent, now represented by counsel, brought a motion objecting to the fact that the court's assumption of jurisdiction based on Mrs. Bechard's consent denied respondent his right to trial. The court denied the motion and, following testimony, the court terminated respondent's parental rights with regard to all of his children. The written order of August 3, 1993, covering the events on July 15, 1993, makes reference only to the fact that this hearing was for purposes of disposition. On November 4, 1993, respondent requested a rehearing, which the probate court denied. Respondent claims on appeal that he was deprived of his right to a trial in this matter. We agree.

Petitioner argues that respondent waived appellate review of this issue by failing to timely pursue his appeal. In particular, it is argued that the claimed error in the February 11, 1993, proceeding should have been appealed immediately following that proceeding and that failure to do so precludes later appeal. It is an argument that sounds in collateral estoppel with authority from the recent Supreme Court decision in In re Hatcher, 443 Mich. 426, 505 N.W.2d 834 (1993). While we recognize that Hatcher stands for the proposition that the probate court's exercise of its jurisdiction is not subject to collateral attack, we conclude on the basis of the circumstances in this case that Hatcher does not preclude this Court from reviewing the issues raised by respondent on appeal.

The collateral estoppel bar of Hatcher can only be raised if, at the adjudicatory stage, there was a written order from which respondent could appeal. That is, that during the adjudicatory stage of the proceedings, an order must have been entered taking jurisdiction or no duty to appeal can arise following that phase. Specifically, the Hatcher opinion states, "Our ruling today severs a party's ability to challenge a probate court's decision years later in a collateral attack where a direct appeal was available." Id. at 444. In this case, there was no order expressly taking jurisdiction, and thus, no direct appeal was available. Indeed, the most that can be said is that the probate court's dispositional order of August 3, 1993, the last order of the probate court, must have implicitly encompassed, because no other order did, the necessary finding that Mr. Bechard was responsible for the allegations contained in the petitions and that the children came within the probate court's jurisdiction. 2 Thus, not until August 3, 1993, did the right to appeal the adjudicatory stage arise. Accordingly, it must be held that respondent directly appealed from the only order that possibly covered the adjudication. Therefore, no collateral estoppel bar can be invoked and this matter can be considered on the merits.

The February 11, 1993, proceeding was not, and could not have been, an adjudicative hearing or trial. Pursuant to MCR 5.903(A)(17), all that the preliminary inquiry could accomplish was to determine an appropriate course of action with regard to the petitions. Hatcher, supra at 434. Accordingly, the most that the social worker's testimony and Anita Bechard's "consent to jurisdiction" could have accomplished was to establish probable cause to justify authorization of the petitions. This would have set the stage for appointment of counsel and an eventual trial. Id.; In re Nelson, 190 Mich.App. 237, 240, 475 N.W.2d 448 (1991); In re Nunn, 168 Mich.App. 203, 207-208, 423 N.W.2d 619 (1988). Accordingly, we vacate...

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  • In re AMB
    • United States
    • Court of Appeal of Michigan — District of US
    • January 25, 2002
    ... ...          43. Alternatively, the respondent may enter a plea of admission or a no contest plea to the allegations in the petition, making a full trial unnecessary. See MCR 5.971 ...          44. In re Bechard, 211 Mich.App. 155, 158, 535 N.W.2d 220 (1995) ...          45. See n 41, supra ...          46. See MCR 5.972(C)(1); In re Snyder, 223 Mich.App. 85, 88-89, 566 N.W.2d 18 (1997) ...          47. See Brock, supra at 108-109 , 499 N.W.2d 752 ... ...

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