Harmsen v. Fizzell

Decision Date24 December 1957
Docket NumberNo. 48,48
Citation351 Mich. 86,87 N.W.2d 161
PartiesGordon L. HARMSEN, Plaintiff and Appellee, v. Deane FIZZELL, Theo Fizzell, William Johnston and Donna Johnston, Defendants and Appellants.
CourtMichigan Supreme Court

A. G. Preston, Jr., St. Joseph, for defendants-appellants William Johnston and Donna Johnston.

James L. Colman, Watervliet, for defendants-appellants Deane Fizzell and Theo Fizzell.

A. H. Lee, Benton Harbor, for plaintiff-appellee.

Before the Entire Bench.

SHARPE, Justice.

This is a habeas corpus proceedings brought by Gordon L. Harmsen, the father of David L. Harmsen and and Ruth Harmsen, following denial by the probate court of Berrien county of the father's petition for the restoration of his children by the probate court. The chain of events leading up to the application for writ of habeas corpus are as follows.

Gordon L. Harmsen and Marie Harmsen were married, and as a result of their marriage three children were born. On May 29, 1953, Mary Ash, a neighbor of the Harmsens, filed a petition in the Berrien county probate court, juvenile division, praying that the court take jurisdiction of the three children. Upon the filing of the petition the probate court entered an order directing the county agent to make a full investigation and report her findings to the probate court. On June 19, 1953, plaintiff was declared mentally incompetent by the Berrien county probate court and confined to the Kalamazoo State Hospital. His wife, Marie Harmsen, was appointed guardian of his person and estate by the Berrien probate court.

On May 20, 1954, Marie Harmsen filed a petition in the probate court of Berrien county praying for the juvenile division of probate court to take jurisdiction of the three Harmsen children. On the following day an order was entered in the probate court which reads as follows:

'In the matter of

Roger Allen Harmsen

David Leroy Harmsen

Ruth Etta Harmsen

A Juvenile

'To Frances M. Milton, County Agent for said County:

'Marie Harmsen having reported to this Court that said Roger, David and Ruth Harmsen is a juvenile within the meaning of Act 54, P.A.1944 Extra Session. You are hereby notified and required to inquire into and make a full examination of the parentage and surroundings of said child, and the facts and circumstances alleged by Marie Harmsen, and report the same to said Court.

'Dated this 21st day of

May A.D.1954.

'(s) Malcolm Hatfield

'Judge of Probate

'Filed May 21st 1954.'

It also appears that on May 20, 1954, Marie Harmsen signed certain forms consenting to the adoption of all three minor children. On May 28, 1954, two summonses were issued out of the probate court reciting Marie Harmsen's petition, and hearing was set for June 2, 1954. Proof of service of this summons appears for Gordon L. Harmsen, by service upon the Superintendent of Kalamazoo State Hospital, but with no personal service upon Marie Harmsen, the mother of the children.

On June 2, 1954, an assistant county welfare agent made a report wherein she recommended that all three children be committed to the Michigan Children's Institute for the purpose of adoption, and on the same day the probate judge entered an order 'that this case be adjourned indefinitely but that the children remain under the jurisdiction of this Court until further action is taken.' David Harmsen was placed in the custody of defendants, Deane Fizzell and Theo Fizzell, and Ruth Harmsen was placed in the custody of William Johnston and Donna Johnston. Roger Harmsen was placed with different people from time to time.

On June 30, 1955, plaintiff was declared competent by the Berrien probate court. On May 1, 1956, he petitioned the probate court for the custody of David and Ruth Harmsen. After an investigation was made the probate court dismissed plaintiff's petition for restoration of his two children. Subsequently defendants Fizzell and Johnston filed petitions in the probate court requesting orders be made committing David Harmsen and Ruth Harmsen to the Michigan Children's Institute for the purpose of adoption. A hearing on this petition was set for July 17, 1956, but before any hearing was held, plaintiff, on June 15, 1956, filed his petition in the Berrien circuit court for writ of habeas corpus and ancillary writ of certiorari. On June 15, 1956, plaintiff appealed from the order of the probate court dismissing his petition for restoration of his two children.

On July 6, 1956, an order was filed by the circuit judge restoring custody of David and Ruth Harmsen to plaintiff. On the hearing of plaintiff's petition for writs of habeas corpus and certiorari, the defendants, on June 22, 1956, moved for the dismissal of the writs of habeas corpus and certiorari for the reason that the children were under the jurisdiction of the juvenile division of the Berrien probate court, which jurisdiction was exclusive and original. This motion was denied and in an opinion the trial court stated:

'There is no question that the jurisdiction of the probate court under the juvenile act is original and exclusive in some respects. There is no question that habeas corpus cannot be substituted for a writ of error or to be made to serve the purpose of a writ of error; but in this case the probate court has never made an appealable order. There is an illegal detention, the very condition that gave rise to the original jurisdiction of the probate court having been removed when the father, Gordon Harmsen, was restored to health on June 30, 1955. The changed condition of the status of the children left nothing to justify any action whatsoever by the probate court, either on the father's petition for restoration of the children, which he filed, or otherwise; and nothing remained but to return the children to him. There being no order of any court to the contrary, the father, Gordon Harmsen, could have proceeded, had he so desired, to obtain his children without the process of any court. He saw fit, however, to request the cooperation of the probate court in the premises, which was denied him; nothing remained then for him to do but obtain the writ in the present proceedings, where the only question that could possibly be presented is that of his fitness as a father to have his children.

'All of the testimony in the habeas corpus proceeding demonstrates such fitness ever since June 30, 1955. Nothing whatsoever appears to the contrary. One of the children is in the home of and in the custody of Ruth Pearson, whom the father intends to marry as soon as the interlocutory period in divorce has been concluded, decree having been granted the father in this court, in chancery, on May 1, 1956. The Friend of the Court in the divorce proceedings definitely approves such home and so testified at this hearing. His present home is adequate.'

The principal issue in this case is whether the juvenile division of the probate court or the circuit court has jurisdiction over the custody of the two minor children. It is urged by defendants that the juvenile division of the probate court is exclusive and the trial court had no authority to issue writs of habeas corpus.

Probate courts are courts of limited jurisdiction and must comply with statutory requirements in order to obtain legal jurisdiction of minors. In MacKenzie v. Union Guardian Trust Co., 262 Mich. 563, 582, 247 N.W. 914, 921, we quoted with approval from Grady v. Hughes, 64 Mich. 540, 545, 31 N.W. 438, as follows:

"The probate court derives none of its jurisdiction or power from the common law, but must find the warrant for all of its doings in the statute. Its jurisdiction, powers, and duties are prescribed by law."

Under C.L.S.1954, § 712A.2 (Stat.Ann.1955 Cum.Supp. § 27.3178(598.2) 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

'(1) Whose parent or other person legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical or other care necessary for his health, morals or well-being, or who is abandoned by his parents, guardian or other custodian, or who is otherwise without proper custody or guardianship; or

'(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality or depravity on the part of a parent, guardian or other custodian, is an unfit place for such child to live in, or whose mother is unmarried and without adequate provision for care and support.'

We shall first discuss the Mary Ash petition to determine whether the probate court had jurisdiction to make an order relative to their custody. The Mary Ash petition was filed May 29, 1953, praying that the juvenile court take jurisdiction of the three children. Upon the filing of this petition the probate court entered an order directing the county agent to make an examination and report her findings to the court. The record fails to show that the probate court took any further action on this petition, hence the petition of Mary Ash needs no further consideration.

We now come to the petition of Marie Harmsen filed May 20, 1954. The petition states that she is the mother of the children, eight, seven, and four years of age respectively, and that they are residing with her in Berrien Springs and are under her custody and control. The petition further states:

'* * * Said children are beyond my control. I am not physically well enough to cope with them. I know that they would be better off were they placed in good adoptive homes. Their father is in Kalamazoo State Hospital, and I have been told that he is incurable. The children need security that I cannot give them.'

The following day, May 21, 1954, the probate court requested the county agent to investigate the matter. On May 28, 1954, two summonses were issued out of the probate court reciting Marie...

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9 cases
  • Mathers, In re
    • United States
    • Michigan Supreme Court
    • December 2, 1963
    ...among others, the abandonment and the unmarried mother provisions. The petition meets the test in the recent case of Harmsen v. Fizzell, 351 Mich. 86, 87 N.W.2d 161. Although in the cited case the lower court order was affirmed by an equally divided court, it seems clear that each opinion w......
  • Fritts v. Krugh
    • United States
    • Michigan Supreme Court
    • October 13, 1958
    ...about any other type of decision he renders.' 1 With some significant exceptions, this is a companion case to that of Harmsen v. Fizzell, 351 Mich. 86, 87 N.W.2d 161, rehearing granted March 4, 1958, in which this Court dealt with a petition for writ of habeas corpus in relation to two chil......
  • LaFlure, In re
    • United States
    • Court of Appeal of Michigan — District of US
    • July 23, 1973
    ...Supreme Court ordered young children returned to their natural parents after several years in foster care. See also Harmsen v. Fizzell, 351 Mich. 86, 87 N.W.2d 161 (1957), affirmance upheld on rehearing 354 Mich. 60, 92 N.W.2d 631 (1958), and In re Mathers, 371 Mich. 516, 124 N.W.2d 878, 12......
  • Martin, Matter of, Docket No. 99929
    • United States
    • Court of Appeal of Michigan — District of US
    • May 31, 1988
    ...MCR 3.302(B) [167 MICHAPP 733] and (D)(2); MCR 3.303; In re People v. Burton, 429 Mich. 133, 413 N.W.2d 413 (1987); Harmsen v. Fizzell, 351 Mich. 86, 93, 87 N.W.2d 161 (1957). The order of the probate court assuming jurisdiction over Ashley is affirmed; the order continuing her placement in......
  • Request a trial to view additional results

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