Ferris, Matter of, Docket No. 84900

Decision Date15 August 1986
Docket NumberDocket No. 84900
Citation391 N.W.2d 468,151 Mich.App. 736
PartiesIn the Matter of Dean Edward FERRIS, Minor. CATHOLIC SOCIAL SERVICES, Petitioner-Appellee, v. Kevin FERRIS, Respondent-Appellant, and Tammy Kyes, Respondent. 151 Mich.App. 736, 391 N.W.2d 468
CourtCourt of Appeal of Michigan — District of US

[151 MICHAPP 737] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., and Robert D. Ebersole, Chief Appellate Atty., for the People.

Norman M. Gaffney, Jr., Lansing, Guardian Ad Litem, for Dean Edward Ferris.

Robert Browning, Lansing, for Kevin Ferris.

Before R.B. BURNS, P.J., and BRONSON and TIMMS *, JJ.

R.B. BURNS, Presiding Judge.

In this case, the probate court entered an order terminating respondents' parental rights in their minor child. Respondent father now appeals. His only issue on appeal concerns an evidentiary ruling during the adjudicative hearing.

The guardian ad litem filed a motion to affirm, which was joined by petitioner, arguing that respondent may not raise issues arising from the adjudicative hearing on an appeal of right to this Court following the order of termination. Rather, petitioner and the guardian argue, respondent should have raised such an issue on direct appeal to the circuit court immediately following the adjudicative hearing. M.C.L. Sec. 600.863; M.S.A. Sec. 27A.863. We denied the motion in order to give this issue full consideration.

[151 MICHAPP 738]


Petitioner's position is supported by this Court's decision in In the Matter of Adrianson, 105 Mich.App. 300, 306 N.W.2d 487 (1981). The Adrianson decision was followed by this Court in the recent case of In the Matter of Dupras, 140 Mich.App. 171, 363 N.W.2d 26 (1984). If we were convinced that Adrianson is correct, we could summarily dispose of this case, concluding that this Court lacks jurisdiction over the issue on appeal. Dupras, supra, p. 174, 363 N.W.2d 26. However, upon careful review, we conclude that Adrianson was incorrectly decided.

Our analysis of this issue begins with In the Matter of Kurzawa, 95 Mich.App. 346, 290 N.W.2d 431 (1980). In Kurzawa, the jurisdiction of the probate court was invoked under the delinquency provisions of M.C.L. Sec. 712A.2(a); M.S.A. Sec. 27.3178(598.2)(a) rather than under the neglect provisions of M.C.L. Sec. 712A.2(b); M.S.A. Sec. 27.3178(598.2)(b). Some two years later, a caseworker petitioned the probate court to terminate parental rights in the minor child. That petition, like the previous petitions, did not allege neglect. Parental rights were terminated based upon "emotional neglect". 95 Mich.App. 353. The Court noted that termination proceedings must be based upon the neglect provisions of Sec. 2(b) rather than the delinquency provisions of Sec. 2(a).

The Kurzawa Court then went on to conclude that none of the petitions filed in the probate court invoked the neglect jurisdiction of the court. Id., p. 356, 290 N.W.2d 431. The Court then concluded that the probate court erred in assuming jurisdiction and held that the probate orders were void ab initio. Id., p. 357, 290 N.W.2d 431.

The Adrianson Court rejected the holding in Kurzawa, concluding that the Kurzawa- The Adrianson Court drew a distinction between the erroneous exercise of jurisdiction and the lack of jurisdiction. Adrianson concluded that the existence of irregularities in the adjudicative hearing constitutes an erroneous exercise of jurisdiction. According to Adrianson, only a deficiency in the petition to invoke the probate court's jurisdiction constitutes a lack of jurisdiction. This analysis was followed in Dupras, supra, with the Court concluding that error related to the adjudicative hearing cannot be raised in a subsequent appeal to this Court from the termination order.

                Court "may have painted with too broad a brush".   Adrianson,[151 MICHAPP 739]  supra, p. 310, 306 N.W.2d 487.  Relying on In re Mathers, 371 Mich. 516, 528-529, 124 N.W.2d 878 (1963), the Adrianson Court concluded that the legal sufficiency of the allegations in a petition may be challenged by either direct or collateral attack.  Adrianson, supra, p. 311, 306 N.W.2d 487.  However, the Court then concluded that issues arising from the adjudicative hearing could only be attacked on direct appeal.  Id

The distinction between the two concepts, and the difficulties caused by the failure to make the distinction, was discussed by our Supreme Court in Buczkowski v. Buczkowski, 351 Mich. 216, 221-222, 88 N.W.2d 416 (1958):

" 'The failure to distinguish between "the erroneous exercise of jurisdiction" and "the want of jurisdiction" is a fruitful source of confusion and errancy of decision. In the first case the errors of the trial court can only be corrected by appeal or writ of error. In the last case its judgments are void, and may be assailed by indirect as well as direct attack. * * * The judgment of a court of general jurisdiction, with the parties before it, and with power to grant or refuse relief in the case presented, though (the judgment is) contrary to law as expressed in the decisions of the supreme [151 MICHAPP 740] court or the terms of a statute, is at most only an erroneous exercise of jurisdiction, and as such, is impregnable to an assault in a collateral proceeding.' [Quoting LaPresto v. LaPresto, 285 S.W.2d 568, 571 (Mo.,1955), which quoted an earlier opinion.]

"The loose practice has grown up, even in some opinions, of saying that a court had no 'jurisdiction' to take certain legal action when what is actually meant is that the court had no legal 'right' to take the action, that it was in error. If the loose meaning were correct it would reduce the doctrine of res judicata to a shambles and provoke endless litigation, since any decree or judgment of an erring tribunal would be a mere nullity. It must constantly be borne in mind, as we have pointed out in Jackson City Bank & Trust Co. v. Fredrick, 271 Mich. 538, 544 [260 N.W. 908 (1935) ], that:

" 'There is a wide difference between a want of jurisdiction, in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial court is not void although it may be subject to direct attack on appeal. This fundamental distinction runs through all the cases.' "

In Buczkowski, the plaintiff sued for separate maintenance. The trial court entered a "Decree from Bed and Board" (i.e., separate maintenance), which contained a provision for a property settlement. The defendant subsequently brought a collateral attack on the decree, arguing that property settlements may not be entered in separate maintenance actions. The Court found that the trial court had subject matter jurisdiction (i.e., jurisdiction over separate maintenance actions), though it may have been erroneous to grant a property settlement. However, that would be an erroneous exercise of jurisdiction and, as such, could not be collaterally attacked. Buczkowski, supra, pp. 222-223, 88 N.W.2d 416.

[151 MICHAPP 741] We now turn to Fritts v. Krugh, 354 Mich. 97, 92 N.W.2d 604 (1958). In Fritts, the Court allowed a collateral attack on a termination order by way of a writ of habeas corpus. The circuit court granted the writ and returned the children to their natural "In our instant case, at the time of hearing, the probate judge had before him no evidence of neglect, either of long duration in the past, or from which any reasonable prediction of future neglect of permanent duration could be made. The order taking permanent custody of these children clearly exceeded the statutory authority of the court and was void.

parents. Although the Court concluded that the initial petition sufficiently alleged the jurisdictional facts of neglect and the probate court had subject matter jurisdiction, it concluded that the subsequent factual development deprived the probate court of jurisdiction. Absent evidence of neglect, the probate court lacked jurisdiction to take permanent custody of the children:

"Even where, as here, a court has jurisdiction of the persons and the subject matter, an order affecting personal liberty which clearly exceeds the court's statutory authority may be attacked by habeas corpus.

"We hold that the orders entered by the probate judge taking permanent custody of these children were void for want of proof of essential jurisdictional facts of neglect." Fritts, supra, pp. 114-115, 92 N.W.2d 604 (citations omitted).

Adrianson, supra, considered Fritts and drew a narrow interpretation, relying on Fritts only for the proposition that an insufficient petition may be collaterally attacked. Adrianson, supra, pp 310-311, 306 N.W.2d 487. However, Adrianson appears to look to the dissenting opinions in Fritts in its erroneous exercise[151 MICHAPP 742] of jurisdiction analysis. 1 We conclude, however, that Adrianson takes an overly narrow reading of the Fritts majority.

We note the areas in which we are in agreement with Adrianson. We certainly agree with Adrianson 's holding that the legal sufficiency of the petition itself is always subject to attack, even collaterally. See Adrianson, supra, p. 311, 306 N.W.2d 487. Furthermore, we believe that Adrianson 's reading of Buczkowski, supra, is correct in that an erroneous exercise of jurisdiction 2 is not subject to a collateral attack. Rather, our disagreement with Adrianson and Dupras centers around the question of whether the probate court's assumption of jurisdiction following the adjudicative hearing is subject to collateral attack. We conclude that it is.

The juvenile court's jurisdiction over neglected children is provided for by M.C.L. Sec. 712A.2; M.S.A. Sec. 27.3178(598.2):

"Except as otherwise provided in this section, the juvenile division of the probate court shall have:

* * *

"(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county"


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