Gass, Matter of, Docket No. 103392

Decision Date31 January 1989
Docket NumberDocket No. 103392
Citation173 Mich.App. 444,434 N.W.2d 427
PartiesIn the Matter of Kevin Del GASS, Minor. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Tamera Lou GASS, Respondent-Appellant. 173 Mich.App. 444, 434 N.W.2d 427
CourtCourt of Appeal of Michigan — District of US

[173 MICHAPP 445] Gerald L. White, Pros. Atty., and Stephen E. Durance, Asst. Pros. Atty., Midland, for petitioner-appellee.

Peter A. Poznak, Midland, for respondent-appellant.

Before KELLY, P.J., and SULLIVAN and SHAMO, * JJ.

SULLIVAN, Judge.

Respondent, Tamera Lou Gass, appeals as of right from an August 31, 1987, probate court order terminating her parental rights as to her son Kevin Del Gass, born June 19, 1985. We affirm.

On November 22, 1985, the Department of Social Services filed a petition requesting the probate court to assume jurisdiction over Kevin on the basis of neglect.

Following an adjudicatory hearing in January, 1986, the court assumed jurisdiction and Kevin was made a temporary ward of the court.

On June 17, 1987, the DSS filed a petition to terminate respondent's parental rights, alleging mental illness or deficiency. A hearing was held in [173 MICHAPP 446] July and August, 1987, after which the court issued its written opinion and order terminating respondent's parental rights.

Respondent suffers from a severe seizure disorder dating back to when she was about eighteen months old. Although the etiology is unknown in her case, epilepsy is an organic illness of the brain. At the time of trial, respondent had not had a seizure since about February, 1987.

On appeal, respondent asserts (1) lack of probate court jurisdiction over the minor child and (2) insufficient factual support for a finding of mental deficiency or mental retardation and a finding that respondent would be unable to provide proper care within a reasonable period of time.

Respondent initially challenges the propriety of the probate court's assumption of jurisdiction over the minor child. We find no merit to this claim.

We begin our analysis by first addressing a conflict in this Court over the propriety of reviewing an issue arising from an adjudicative hearing in an appeal to this Court. We are of the opinion that questions arising from the adjudicative 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 In re Dupras, 140 Mich.App. 171, 363 N.W.2d 26 (1984).

Accordingly, our inquiry is whether any error alleged to have occurred at the adjudicative hearing was of such a magnitude that, but for the error, there would have been an insufficient basis for the probate court to assume jurisdiction. Ferris, supra, 151 Mich.App. at 744, 391 N.W.2d 468. We find no such error.

We have thoroughly reviewed the record and conclude that the allegations contained in the [173 MICHAPP 447] petition were proven by a preponderance of the evidence. Thus, the court's assumption of jurisdiction over the minor child was proper. MCR 5.908.

In this case, the court found that respondent suffers from a mental illness and a mental deficiency which is substantial, prolonged and adversely affects parenting. The court's basis for termination was M.C.L. Sec. 712A.19a(c); M.S.A. Sec. 27.3178(598.19a)(c), which provides:

"Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:

* * *

"(c) A parent or guardian of the child is unable to provide proper care and custody for a period in excess of 2 years because of a mental deficiency or mental illness, without a reasonable expectation that the parent will be able to assume care and custody of the child within a reasonable length of time considering the age of the child."

In termination cases, we review the probate court's finding under the clearly erroneous standard. In re Cornet, 422 Mich. 274, 277, 373 N.W.2d 536 (1985). Even if there is evidence to support them, findings are considered clearly erroneous when, on the basis of all the evidence, the reviewing court develops the definite and firm conviction that a mistake has been made. Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976); In re Smebak, 160 Mich.App. 122, 408 N.W.2d 117 (1987).

First, respondent relies on the case of In re Youmans, 156 Mich.App. 679, 401 N.W.2d 905 (1986), lv. den. 428 Mich. 871 (1987), and argues that [173 MICHAPP 448] the probate court erred by terminating her parental rights prior to the two years mentioned in the statute. M.C.L. Sec. 712A.19a(c); M.S.A. Sec. 27.3178(598.19a)(c). Although we are mindful of the conflict in this Court on this issue, we believe that the two-year provision is not a jurisdictional time limit on the probate court's authority to terminate respondent's parental rights if the court anticipates that two years will elapse and there will be no change in the parent's ability to care for the child. In re Kellogg, 157 Mich.App. 148, 403 N.W.2d 111 (1987); In re Smebak, supra; In re Bailey, 125 Mich.App. 522, 336 N.W.2d 499 (1983); In re Brown, 139 Mich.App. 17, 360 N.W.2d 327 (1984). But see In re Youmans, supra; In re Bidwell, 129 Mich.App. 499, 505, 342 N.W.2d 82 (1983).

Respondent also argues that insufficient evidence was presented to establish that she suffered from mental deficiency or mental illness as those terms are used in M.C.L. Sec. 712A.19a(c); M.S.A. Sec. 27.3178(598.19a)(c). We disagree.

In In re McDuel, 142 Mich.App. 479, 369 N.W.2d 912 (1985), this Court used the term "mental deficiency" synonymously with low intelligence or mental retardation. Id. at 486-487, 369 N.W.2d 912. The Court additionally noted that the Legislature has elsewhere defined "mental illness" as a "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life." M.C.L. Sec. 300.1400a; M.S.A. Sec. 14.800(400a). We find ample evidence to support the court's findings that respondent was mentally deficient and that she suffered from a mental illness which interfered with the care of her child, and that there is no reasonable expectation that respondent will be able to assume the care and custody of Kevin [173 MICHAPP 449] within a reasonable length of time considering the age of the child.

After evaluating respondent, clinical psychologist Dr. Thomas Marks concluded that she was either mentally retarded or borderline retarded and, in addition, suffered from a severe personality disorder which he described as a disorder of thought and mood which significantly impairs judgment, behavior and capacity to recognize reality or ability to cope with the ordinary demands of life. He also found respondent to have a learning disability and pronounced intellectual deficits.

Dr. Kamal Sadjadpour, a board-certified neurologist, treated respondent from 1974 to 1981 and then again in 1986. In his opinion, respondent has a severe seizure disorder which is organic in nature, is emotionally unstable and is slightly retarded.

Dr. Janusz Zielinski specializes in psychiatry and neurology with a subspecialty in epileptology. After evaluating her in May, 1986, Dr. Zielinski diagnosed respondent as having temporal lobe epilepsy in addition to having other manifestations of brain involvement which constitute very mild, but still, borderline normal intellectual capacity. Respondent also suffers from an organic personality syndrome. In his opinion, her organic personality problems and her epilepsy are the result of underlying damage to the brain.

Finally, psychologist Dr. Martin Shindeling, who had conducted a neuropsychological examination of respondent on April...

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3 cases
  • Waite, Matter of
    • United States
    • Court of Appeal of Michigan — District of US
    • 1 Abril 1991
    ...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 (1988). Despite their contrary conclusions, an analysis of each of the foregoing decisions reveals agreement with respect to ......
  • Toler, Matter of
    • United States
    • Court of Appeal of Michigan — District of US
    • 6 Abril 1992
    ...of such magnitude that, but for it, there was an insufficient basis for the probate court to assume jurisdiction. In re Gass, 173 Mich.App. 444, 446, 434 N.W.2d 427 (1988). Here, although respondent stipulated to the court's jurisdiction, the probate judge also found sufficient evidence to ......
  • Gass, Matter of
    • United States
    • Michigan Supreme Court
    • 28 Febrero 1989
    ...Petitioner-Appellee, v. Tamera GASS, Defendant-Appellant. No. 84889. Supreme Court of Michigan. Feb. 28, 1989. Prior report: 173 Mich.App. 444, 434 N.W.2d 427. ORDER On order of the Court, the certification by the Court of Appeals pursuant to Administrative Order 1984-2 that its decision in......

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