Hatcher, In re

Decision Date01 March 1993
Docket NumberDocket No. 94520,No. 11,11
Citation443 Mich. 426,505 N.W.2d 834
PartiesIn re James HATCHER, Jr. DEPARTMENT OF SOCIAL SERVICES, Petitioner, and James Hatcher, Jr., by his Guardian Ad Litem, Appellant, v. James HATCHER, Sr., Respondent-Appellee, and Revender Harris, Respondent. Calendar,
CourtMichigan Supreme Court
OPINION

MALLETT, Justice.

The dispositive issue in this case is whether the probate court's assumption of subject matter jurisdiction over a minor child may be challenged by the child's parent after a termination decision and, if so, whether the entire termination proceedings should be declared void ab initio. In the instant case, we find that the probate court properly assumed jurisdiction and that the parents' collateral attack on the court's subject matter jurisdiction was invalid. Therefore, we reverse the Court of Appeals decision and remand this case for consideration of the other issues that were not addressed.

I. Facts

James Hatcher, Jr., was born on November 7, 1988. On the day of the child's birth, the police arrested the father, James Hatcher, Sr., while he was attempting to visit the newborn in the hospital, for drunk and disorderly conduct and for possession of marijuana. Revender Harris, the child's mother suffered from a mental illness that made her unable to care for the infant.

The Department of Social Services was aware of the instability of the infant's family. Subsequently, the parents voluntarily placed the child with his paternal grandmother until June of 1989. At that time, doctors had medicated Revender Harris and had sufficiently stabilized her mental condition so that she could care for her child. By August, however, the mother stopped taking her medications and failed to keep her appointments at Muskegon Community Mental Health, and her mental condition gradually began to deteriorate. When her condition became critical, shortly after the infant's first birthday, the DSS petitioned for temporary wardship of the child.

The petition alleged that Revender Harris' chronic mental illness prevented her from properly caring for the child and that the father's drug and alcohol abuse problems rendered the child's home unfit. The petition also alleged that the father left the child alone with the mother even though he knew that she could not adequately care for the infant. 1

On November 15, 1989, the Muskegon Probate Court held a preliminary hearing on the petition. Neither parent attended the hearing, although both had received notice of it. During the hearing, the referee read the petition into record, and Rikki Harris, a DSS social worker, testified regarding the facts alleged in the petition. Gerald Gibbs, counsel for the child, testified that neither parent appeared fit to rear the child and recommended continued placement with the paternal grandmother. Considering the verified petition and the testimony, the referee authorized the filing of the petition with a finding of probable cause that the allegations were true. He also found that reasonable efforts had been made to avoid placement and that releasing the child to the parents would present a substantial possibility of harm to the infant. Finally, the referee approved continued temporary placement with the paternal grandmother.

The probate court held the initial trial on January 12, 1990. At this time, both the mother and the father stipulated that the infant should become a temporary ward of the court and that placement should change from the paternal to the maternal grandmother. The court proceeded by the parties' stipulation and did not take testimony from either parent, each of whom was represented by counsel. After the trial, review hearings were held on April 17, 1990, 2 July 10, 1990, 3 and October 30, 1990. 4 At no point during these proceedings did Hatcher challenge the jurisdiction of the court.

On January 28, 1991, the court conducted a permanency planning hearing. 5 The court received overwhelming evidence of the mother's mental illness and her incapacity to care for the infant. Testimony regarding the father revealed that Maurdell Harris, Revender's mother, had custody of Revender's and James' two older daughters, Angel and Shamier. Linda Harris, Revender's sister, and Maurdell testified that they had repeatedly received lewd telephone calls from the father in which he indicated that he wanted to "swap" custody of his infant son for his older daughter, Shamier. The father indicated he wanted custody of his nine-year-old daughter so that he could engage in sexual relations with her.

Testimony was also offered that the father admitted to using cocaine. A substance abuse therapist who examined the father testified that he was cooperative when questioned concerning his use of drugs and alcohol. The therapist noted, however, that he skirted a number of issues regarding his substance abuse assessment. The therapist opined that the father minimized his use of alcohol and recommended a four- to six-month out-patient therapy program. Although the father attended a few of these sessions, the therapist stated that he did not fully acknowledge the severity of his drug abuse problem.

Further testimony revealed that the father had done little to establish a parent-child relationship with James Hatcher, Jr. Although the case began in late 1989, the father did not begin cooperating with the DSS until January of 1991. A DSS worker testified that the father rarely visited the child. Often, visits were scheduled but later canceled. Finally, caseworkers testified that although Hatcher was aware of the mother's mental illness and inability to care for the infant, he nevertheless left the child alone with her.

In its ruling, the probate court terminated the parental rights of the mother and the father. Although the mother did not appeal, the father's appeal raised three issues. The Court of Appeals addressed one of these issues and reversed in an unpublished one-page per curiam opinion. The panel held that the termination proceedings were void ab initio, that the probate court never assumed valid subject matter jurisdiction over the child. Although the parties attempted to establish jurisdiction by stipulation, neither parent stipulated to facts that supported a statutory basis for jurisdiction. The panel indicated that it was bound by precedent to hold that the failure to establish a sufficient factual basis for probate subject matter jurisdiction renders subsequent proceedings void ab initio. See In re Waite, 188 Mich.App. 189, 208, 468 N.W.2d 912 (1991); In re Nelson, 190 Mich.App. 237, 241-242, 475 N.W.2d 448 (1991). The Court did not address respondent's remaining two issues. On August 7, 1992, the guardian ad litem for the child filed a delayed application for leave to appeal with this Court.

II

Michigan's Constitution vests probate courts with original subject matter jurisdiction over juvenile dependents, except as otherwise provided by law. Const. 1963, art. 6, § 15. The courts, by rule or otherwise, may not enlarge or diminish this jurisdiction. In re Kasuba Estate, 401 Mich. 560, 566, 258 N.W.2d 731 (1977). Moreover, subject matter jurisdiction cannot be conferred on the court by the consent of parties. Lehman v. Lehman, 312 Mich. 102, 106, 19 N.W.2d 502 (1945). The court must make its own determination regarding the existence of a statutory basis for jurisdiction.

M.C.L. § 712A.2(b)(2); M.S.A. § 27.3178(598.2)(b)(2) provides the probate court with "[j]urisdiction in proceedings concerning any child under 18 years of age found within the county ... [w]hose 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 the child to live in." Within the context of subsection (b)(2), the term "jurisdiction" refers to the probate court's authority to hear and decide a case on the basis of a finding of fact that the child belongs to the class of children over whom the court has the power to act. In short, a juvenile court must determine that the facts of a particular case place a child within the specific provisions of subsection (b)(2).

The analysis of whether a child falls within the juvenile court's jurisdiction begins with the court's preliminary proceeding. A petition forms the basis of any preliminary action by the court. It is the initial request for judicial action against a juvenile or for the protection of the child. 6 As defined in the Michigan Court Rules, a petition is a verified complaint or other written accusation. It is to be filed with the court and to set forth charges against a parent, custodian, or child with ample clarity and specificity to reasonably appraise them of the matters under consideration before the court. 7 If the petition does not request placement 8 of the child, the court may conduct a preliminary inquiry, as opposed to the preliminary hearing. MCR 5.962(A). The inquiry consists of an informal review of the petition by the juvenile court to determine an appropriate course of action. MCR 5.903(A)(17). A preliminary hearing is the formal review of the petition when the judge or referee considers authorizing the petition and placing the case on the formal calendar.

At the preliminary hearing, probate courts require a finding of probable cause to substantiate that the facts alleged in the petition are true and that if proven at trial would fall under subsection (b)(2). 9 When a court authorizes a petition for jurisdiction during the preliminary hearing, 10 generally, it will issue a preliminary order that specifies a plan for temporary placement. The adjudicative...

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