Emmons, Matter of

Citation165 Mich.App. 701,419 N.W.2d 449
Decision Date26 February 1988
Docket NumberDocket No. 95903
PartiesIn the Matter of Rachell EMMONS, Keith Emmons, Ricky Emmons, and Richard Emmons, Jr., Minors. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Richard EMMONS, Sr., Respondent-Appellant, and Josephine Rivard, Respondent. 165 Mich.App. 701, 419 N.W.2d 449
CourtCourt of Appeal of Michigan — District of US

[165 MICHAPP 702] William D. Bond, Pros. Atty., and Jo Ellen O'Connor, Chief Asst. Prosecutor, Caro, for petitioner-appellee.

Brian R. Schrope, Caro, for respondent-appellant.

Before WAHLS, P.J., and SAWYER and SIMON, * JJ.

SAWYER, Judge.

Respondent father appeals by leave granted from the order of the probate court which terminated his parental rights to four of his children, all minors. We affirm.

The juvenile court's involvement with the children began in April of 1979 when a petition was filed by petitioner which alleged that respondent had had sexual contact with three of his children. Respondent pled no contest to the allegation and the children were made temporary wards of the court. Ultimately, the court entered a dispositional order placing the children in the custody of their mother, Josephine Emmons (now Rivard); respondent and his wife were subsequently divorced. In 1981, the minor children were discharged as wards of the court.

In February of 1986, the instant petition was filed which alleged that respondent had sexually molested one of his children and that the remaining minor children suffered from emotional deprivation. The oldest child was not included in this petition since she had reached the age of majority by the time the petition had been filed.

At the adjudicative hearing, respondent testified [165 MICHAPP 703] that he had previously pled guilty to second-degree criminal sexual conduct arising from a November, 1985, incident involving one of his children. Respondent did not make any specific statements concerning the molestation of that child as he invoked his Fifth Amendment rights pursuant to advice of counsel. Respondent was sentenced on the CSC conviction to serve forty months to fifteen years in prison. A copy of the judgment of sentence, along with the information charging respondent with first-, second-, and third-degree criminal sexual conduct, was admitted into evidence without objection. Based upon the testamentary and documentary evidence, the juvenile court judge found that respondent had sexually molested the child as alleged in the petition and that there was a pattern of conduct by respondent of sexually molesting the other children and that that pattern sufficiently established that respondent had sexually abused and emotionally deprived the entire family. Following a dispositional hearing in July of 1986, the trial court terminated respondent's parental rights to all four of the minor children. The parental rights of respondent mother were not terminated and the children were placed in her custody. Accordingly, she is not involved in this appeal.

Respondent's sole issue on appeal is that the probate court improperly assumed jurisdiction over the minor children. We disagree.

We begin our review of this case by considering a conflict in this Court over the propriety of reviewing a question arising from an adjudicative hearing in an appeal to this Court. This Court in the cases of 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 (1984), held that, other than challenges to the petition itself, issues arising [165 MICHAPP 704] from the adjudicative hearing could only be appealed by way of direct appeal to the circuit court immediately following the adjudicative hearing. See M.C.L. Sec. 600.863; M.S.A. Sec. 27A.863. In the case of In re Ferris, 151 Mich.App. 736, 391 N.W.2d 468 (1986), a panel of this Court concluded that, since questions arising from the adjudicative hearing involve subject-matter jurisdiction, such issues may always be raised, even on collateral attack. Accordingly, the Ferris Court concluded that issues arising from the adjudicative hearing could be raised in an appeal to the Court of Appeals. We believe that the Ferris decision presents the better reasoned view. 1

Accordingly, we must inquire whether or not any error alleged by respondent to have occurred at the adjudicative hearing was "of such magnitude that, but for the error, there would have been an insufficient basis for the juvenile court to assume jurisdiction." Ferris, supra at 744, 391 N.W.2d 468. We...

To continue reading

Request your trial
5 cases
  • Adoption of Irwin, In re, 89-P-430
    • United States
    • Appeals Court of Massachusetts
    • January 3, 1990
    ... ... See Williams v. Department of Pensions & Sec., 460 So.2d 1348, 1350 (Ala.Civ.App.1984); Matter of Pima County Juvenile Action No. S-949, 134 Ariz. 442, 657 P.2d 430 (1982); In re Geoffrey G., 98 Cal.App.3d 412, 420-421, 159 Cal.Rptr. 460 ... Andrews, 54 Ill.App.2d 51, 62, 203 N.E.2d 160 (1964); G.E.Y. v. Cabinet For Human Resources, 701 S.W.2d 713, 716 (Ky.Ct.App.1985); In re Emmons, 165 Mich.App. 701, 705, 419 N.W.2d 449 (1988); In re Welfare of Scott, 309 Minn. 458, 461-462, 244 N.W.2d 669 (1976); In Interest of B.M.P., 704 ... ...
  • Care and Protection of Martha
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 10, 1990
    ... ... Court requesting that temporary legal and physical custody of the children be awarded to the department pending an investigation into the matter. After an emergency hearing, the Juvenile Court judge awarded custody to the department. Following a "seventy-two hour" hearing held on January 23, ... Andrews, 54 Ill.App.2d 51, 62 [203 N.E.2d 160] (1964); G.E.Y. v. Cabinet For Human Resources, 701 S.W.2d 713, 716 (Ky.Ct.App.1985); In re Emmons, 165 Mich.App. 701, 705 [419 N.W.2d 449] (1988); In re Welfare of Scott, 309 Minn. 458, 461-462 [244 N.W.2d 669] (1976); In re Interest of B.M.P., ... ...
  • Gass, Matter of, Docket No. 103392
    • United States
    • Court of Appeal of Michigan — District of US
    • January 31, 1989
    ...hearing involve subject-matter jurisdiction and, thus, may always be raised, even on collateral attack. In re Emmons, 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......
  • Waite, Matter of
    • United States
    • Court of Appeal of Michigan — District of US
    • April 1, 1991
    ...appeal of right from an order terminating parental rights. Subsequent decisions have adhered to the Ferris view. In re Emmons, 165 Mich.App. 701, 704, 419 N.W.2d 449 (1988); In re Gass, 173 Mich.App. 444, 446, 434 N.W.2d 427 Despite their contrary conclusions, an analysis of each of the for......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT