Doe v. Oettle

• Decision Date: 23 April 1980
• Docket Number: Docket No. 78-5271
• Citation: 97 Mich.App. 183,293 N.W.2d 760
• Parties: Jane DOE (M.A.G.) for herself and as mother of Jean Doe (J.G.) and Pauline R. Rothmeyer as guardian ad litem for Robert Poe (R.M.) and for all others so situated in Washtenaw County, Plaintiffs-Appellants, v. Kenneth OETTLE, personally and as Director of Washtenaw D.S.S., Washtenaw Commissioners, Community Mental Health Board and its Director Saul Cooper and Washtenaw County, Defendants- Appellees. 97 Mich.App. 183, 293 N.W.2d 760
• Court: Court of Appeal of Michigan — District of US

Page 760

293 N.W.2d 760

Jane DOE (M.A.G.) for herself and as mother of Jean Doe (J.G.) and Pauline R. Rothmeyer as guardian ad litem for Robert Poe (R.M.) and for all others so situated in Washtenaw County, Plaintiffs-Appellants, v. Kenneth OETTLE, personally and as Director of Washtenaw D.S.S., Washtenaw Commissioners, Community Mental Health Board and its Director Saul Cooper and Washtenaw County Defendants- Appellees.

Docket No. 78-5271.

97 Mich.App. 183, 293 N.W.2d 760

Court of Appeals of Michigan.

April 23, 1980.

Released for Publication July 11, 1980.

[97 MICHAPP 184] Pauline R. Rothmeyer, Ann Arbor, for Jane Doe and Rothmeyer.

Paul R. Berry, Ann Arbor, for Susan Doe.

Frances Prevas, Ann Arbor, for defendants-appellees.

Before MacKENZIE, P. J., and BASHARA and RILEY, JJ.

PER CURIAM.

Plaintiffs, Jane Doe, an unmarried teen-age mother whose child has been removed from her custody, her daughter, Jean Doe, Robert Poe, an infant who has been placed in foster care away from his mother, and Pauline Rothmeyer, guardian ad litem for Robert Poe, and "all others similarly situated in Washtenaw County", brought [97 MICHAPP 185] suit on November 9, 1979, claiming a constitutional and statutory right to treatment as family units. Plaintiffs alleged that they were being deprived of equal protection and due process because no group home for single parents and their children has been established in Washtenaw County. The court granted defendants' motion for summary judgment stating that the jurisdiction to terminate parental rights rests solely with the probate court and that there were no constitutional or statutory rights violated based on the lack of a group home. We affirm.

We agree with the lower court that if plaintiffs wanted to challenge the probate order denying them custody of their children, the proper procedure would be to timely appeal the probate court's decision. See GCR 1963, 701; M.C.L. § 712A.22; M.S.A. § 27.3178(598.22). Since another court of competent jurisdiction has dealt with the custody issue, the circuit court's jurisdiction cannot properly be invoked. See Jewell v. Grand Traverse County Probate Judge, 51 Mich.App. 134, 214 N.W.2d 717 (1974).

Plaintiffs claim that their due process rights have been violated. Michigan does recognize the right to procedural due process before family ties are severed, specifically, the right to counsel and transcripts. See Reist v. Bay Circuit Judge, 396 Mich. 326, 241 N.W.2d 55 (1976); People v. Brown, 49 Mich.App. 358, 212 N.W.2d 55 (1973). However, plaintiffs have not alleged any procedural violation. What is asserted is a broader right of substantive due process; a claimed absolute right to protection of the family unit.

While parents' custodial rights are protected by the Fifth and Fourteenth Amendments, May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 [97 MICHAPP 186] (1953), they are not absolute rights and may be terminated. In the Matter of LaFlure, 48 Mich.App. 377, 386-387, 210 N.W.2d 482 (1973). The Sixth Circuit has refused to recognize an absolute substantive due process right "to live together as a family". In Huynh Thi Anh v. Levi, 586 F.2d 625 (CA 6, 1978), a Vietnamese grandmother and uncle sought custody of their relatives' children who had been placed in Michigan foster homes during "Operation Baby-Lift". While the Court recognized that, in the absence of natural parents, alien relatives might be better entitled to the children than foster parents, it noted that this is "a matter of family law, not of substantive due process". Id., 632. The Second Circuit similarly rejected any substantive family integrity right in Black v. Beame, 550 F.2d 815 (CA 2, 1977). We too must agree that the right of substantive due process does not encompass a right to preservation of the family unit.

Plaintiffs further contend that they are being deprived of equal protection because of poverty. There is no denial of equal protection when a law or course of procedure would be similarly applied to any other persons under the same circumstances or conditions. Moore v. Spangler, 401 Mich. 360, 370, 258 N.W.2d 34 (1977). The instant plaintiffs have failed to show how they have been treated any differently than any other teen-age mothers, regardless of their financial status.

Social legislation will be upheld if the challenged classification has a rational basis. Dandridge v. Williams, 397 U.S. 471, 484-485, 90 S.Ct. 1153, 1161-1162, 25 L.Ed.2d 491 (1970). Here the classification (neglectful parents) and the means (removing a child from custody) are reasonably related to the objective of acting in the best interest of the child. [97 MICHAPP 187] See M.C.L. §...