Cornet, Matter of

• Decision Date: 26 August 1985
• Docket Number: Docket No. 75881
• Citation: Cornet, Matter of, 373 N.W.2d 536, 422 Mich. 274 (Mich. 1985)
• Parties: In the matter of Patricia Ann CORNET, et al, minors, BETHANY CHRISTIAN SERVICES, Petitioner-Appellee, v. Betty CORNET, Respondent-Appellant, and Prentiss Cornet, Respondent.
• Court: Michigan Supreme Court

Page 536

373 N.W.2d 536

422 Mich. 274

In the matter of Patricia Ann CORNET, et al, minorsBETHANY CHRISTIAN SERVICES, Petitioner-Appellee, v.Betty CORNET, Respondent-Appellant and Prentiss Cornet, Respondent.

Docket No. 75881.

Supreme Court of Michigan.

Aug. 26, 1985.

David H. Sawyer, Pros.Atty., and David R. Gersch, Asst. Pros.Atty., Grand Rapids, for the minor children.

Farley & Chase(by William R. Farley), and Legal Aid of Western Michigan (by Leslie C. Curry), Grand Rapids, for respondent.

PER CURIAM.

Probate court orders terminating parental rights may be appealed to the Court of Appeals.M.C.L. Sec. 600.861(c)(ii);M.S.A. Sec. 27A.861(c)(ii).The issue in this case is whether the Court of Appeals must use a clearly erroneous standard of review or, alternatively, whether de novo review is appropriate.In the present case, the Court of Appeals used the clearly erroneous standard and affirmed the probate court's decision to terminate the respondents' parental rights.In adopting that standard, it also certified, pursuant to Administrative OrderNo. 1984-2, that its choice of review standards conflicted with Bahr v. Bahr, 60 Mich.App. 354, 230 N.W.2d 430(1975), lv. den.394 Mich. 794(1975).RespondentBetty Cornet has also filed an application for leave to appeal in which she seeks review of that issue and others.We resolve the certified conflict by holding that the Court of Appealspanel in this case chose the correct standard of review.

I

In October of 1981, the respondents' three young children were temporarily placed in foster homes on the basis of allegations of neglect and sexual abuse.An adjudicative hearing was scheduled for December 7, 1981.On that date, the respondents stipulated that the amended petition stated sufficient grounds to establish probate court jurisdiction over the children.M.C.L. Sec. 712A.2(b);M.S.A. Sec. 27.3178(598.2)(b).In lieu of the anticipated adjudicative phase hearing, the trial court then conducted the dispositional phase hearing.SeeJCR 8.1.

After hearing the witnesses, the trial judge determined that the children should be made temporary wards of the court.He referred them to the Kent County Department of Social Services, which placed them in a supervised foster home.The court further ordered the respondents to begin treatment programs.

Over the next two years, at least two review hearings were held and several others were scheduled but adjourned by agreement of the parties.During that time, the respondents separated, and the father left the state and moved to Mississippi.The mother, the only appellant in this case, remained in Michigan and participated in the treatment programs.Though she made some progress, all persons who evaluated her were convinced that she would be unable to properly care for these children.¹Seeing no significant progress after more than two years of temporary wardship, the petitioner asked the probate court to terminate the respondents' parental rights.

A hearing on that petition was held on March 5, 1984.After hearing the evidence, the trial judge granted the petition on the basis of M.C.L. Sec. 712A.19a(f);M.S.A. Sec. 27.3178(598.19a)(f).²The judge made detailed findings as required by JCR 14.Further, as required by JCR 8.3(b), he found that the allegations in the petition had been established by "clear and convincing evidence."

The respondentmother appealed that decision to the Court of Appeals, which affirmed the termination in an unpublished per curiam opinion.Before reaching the merits, however, the Court of Appeals addressed an issue not directly raised by the respondent.It acknowledged a split in decisions by the Court of Appeals on the question whether parental rights cases should be reviewed de novo or by a clearly erroneous standard of review.It opted for the latter standard and cited as authority In re Irving, 134 Mich.App. 678, 352 N.W.2d 295(1984).However, it also certified that its reliance on Irving placed it in conflict with Bahr v. Bahr, supra.

II

We hold that the appropriate standard of review is the clearly erroneous standard used in this case and in Irving.Subsequent Court of Appeals decisions have interpreted Bahr as requiring de novo review when a parent appeals a probate court decision to terminate parental rights.See, e.g., In re Mudge, 116 Mich.App. 159, 321 N.W.2d 878(1982), lv. den.417 Mich. 963(1983), andIn re Schejbal, 131 Mich.App. 833, 346 N.W.2d 597(1984).To eliminate any possible confusion, we hold that, in the absence of any statute requiring de novo review, a probate judge's findings in proceedings to terminate parental rights must be reviewed under the clearly erroneous standard.

This holding is consistent with the general rules for appeals from probate court to the Court of Appeals.

M.C.L. Sec. 600.866(1);M.S.A. Sec. 27A.866(1) provides:

"All appeals from the probate court shall be on a written transcript of the record made in the probate court or on a record settled and agreed to by the parties and approved by the court.An appeal shall not be tried de novo."

Of course, there is a difference between a de novo trial and a de novo review.Therefore, the quoted statute does not necessarily require the use of a clearly erroneous review standard in all appeals from probate court.However, use of the clearly erroneous standard is also suggested by M.C.L. Sec. 600.866(3);M.S.A. Sec. 27A.866(3), which provides:

"Except as otherwise provided in sections 861 to 866, ³ appeals from the probate court or a judge thereof shall be governed by supreme court rule."

We adopted new court rules while this appeal was pending.Both the former and present rules provide that findings of fact by a trial judge may not be set aside unless the findings are clearly erroneous.See former GCR 1963, 517.1 and present MCR 2.613(C).⁴

Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244(1976), explained the proper application of the clearly erroneous review standard.

"[A]n appellate court will set aside the findings of fact of a trial court sitting without a jury when such findings are clearly erroneous.In construing comparable 'clearly erroneous' language in Rule 52(a) of the Federal Rules of Civil Procedure, the United States Supreme Court has stated that '[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'... Appropriately, the 'judicial sieve' with which we have sifted the evidence in this...