Jacobs, In re, Docket Nos. 83035

Decision Date01 August 1989
Docket Number83116,Docket Nos. 83035
Citation444 N.W.2d 789,433 Mich. 24
PartiesIn re Jeffrey JACOBS, and Forest Jacobs, minors. (Two Cases) DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellant, v. Lorraine SMITH and Scott Jacobs, Respondents-Appellees.
CourtMichigan Supreme Court

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Patrick M. Shannon, Pros. Atty., Chippewa County by Mark Louis Dobias, Asst. Pros. Atty., Sault Ste. Marie, for Department of Social Services.

Paul M. Brewster by Lewinski & Brewster, P.C., Sault Ste. Marie, for appellee Lorraine Smith.

John W. Leudesdorff, Sault Ste. Marie, Guardian Ad Litem for minor children.

RILEY, Chief Justice.

We are asked in this case to decide whether a probate court may acquire jurisdiction over a child under the neglect provision of M.C.L. Sec. 712A.2(b)(2); M.S.A. Sec. 27.3178(598.2)(b)(2) without a finding that the neglect is culpable. In light of the plain language of Sec. 2(b) and established legislative purpose of the juvenile code, we hold that culpable neglect need not be shown to support an exercise of jurisdiction by a probate court under Sec. 2(b)(2).


Respondents Lorraine Smith and Scott Jacobs are the parents of the two minor children involved in this case, Jeffrey Jacobs, born June 4, 1984, and Forest Jacobs, born March 27, 1986.

In April of 1986, respondent Smith suffered an intracranial hemorrhage which caused, among other things, partial blindness, atrophy of the muscles in the extremities, and a serious impairment of motor skills.

In early October of that year, Ms. Smith and Mr. Jacobs returned from Wisconsin to Sault Ste. Marie, Michigan. At that point, the couple apparently separated. The children remained with their mother. Ms. Smith and the two children moved in with Smith's parents for approximately one week. The respondent then took her children to a domestic violence center. Because the center was not equipped to meet the needs of her children, Ms. Smith moved them to the Hiawathaland Home. When this relocation also proved unsuitable, the respondent contacted the Chippewa County Department of Social Services for assistance.

On October 10, 1986, the children were placed in temporary foster care. Three days later, the DSS petitioned the Chippewa County Probate Court to assume jurisdiction over the children on the ground of neglect under M.C.L. Sec. 712A.2(b)(1) or (2); M.S.A. Sec. 27.3178(598.2)(b)(1) or (2). Specifically, the petitioner alleged that the respondent's physical afflictions "limit her ability to provide direct care to her children" and that the respondent "is without adequate shelter arrangements for her children." 1

At a preliminary hearing, the respondent admitted the allegations in the petition. 2 Accordingly, the court ordered that the children remain in foster care pending a formal hearing on the matter.

A formal hearing was held on November 14, 1986. At this time, the court permitted the DSS to amend its petition due to "changed circumstances" 3 and ordered an adjudicative hearing on December 3, 1986.

At the adjudicative hearing, the respondent conceded many of the allegations in the amended petition. Specifically, the respondent admitted that her children are members of the Chippewa Tribe; that she suffered complications from a brain hematoma which has impaired her ability to provide proper or direct care to her children; that since her return to Sault Ste. Marie on October 3, 1986, she has lived in approximately seven residences including her parents' home, a domestic violence shelter, the Hiawathaland Home, and at least two adult foster care residences; and that she had visited her children regularly since their placement in foster care.

The respondent testified that she was currently living in her cousin's home and that the children could not be cared for there. The respondent explained, however, that she would be making arrangements later that day to rent a trailer where both she and the children could live. Ms. Smith admitted that because of her limp and the limited dexterity in her left hand, she was unable to care for the children herself. According to the respondent, she would require assistance in changing diapers and holding the children. The respondent further testified that she had arranged for a young woman to move in and help tend the children. 4

At the conclusion of the adjudicative hearing, the court assumed jurisdiction over the children on the basis of neglect pursuant to Sec. 2(b)(2), stating that it was "satisfied by clear and convincing evidence ... as a result of the admissions ... that these children are properly within the jurisdiction of the Court...."

Citing In re McDuel, 142 Mich.App. 479, 369 N.W.2d 912 (1985), counsel for the respondent asserted that the court's exercise of jurisdiction was improper because there had been no showing of blameworthiness on the part of the mother. According to counsel, "[the respondent's] physical incapacity does not constitute neglect." The court rejected this argument, explaining that culpability was required only in the dispositional phase of a termination proceeding and not in the adjudicative phase wherein a court merely decides whether or not to assume jurisdiction over the affected children. According to the court, McDuel was inapplicable because it involved the dispositional stage of a termination proceeding. The court then ruled that the children should remain in foster care and scheduled a dispositional hearing for December 29, 1986. 5

In a split decision, the Court of Appeals reversed the decision of the probate court, holding that "for purposes of subsection 2(b)(2), some culpability or blameworthiness must be established by a preponderance of the evidence in order to justify the exercise of jurisdiction by a probate court over a child under 17 years of age." In re Jacobs, unpublished opinion per curiam of the Court of Appeals, decided April 12, 1988 (Docket No. 97841), slip op, p. 5. 6 The majority reasoned:

"The two types of proceedings in juvenile court, adjudicative and dispositional, form a continuum at the end of which the parental rights of a respondent may be permanently terminated on the basis of a child's neglect as brought about through some blameworthy act or omission by the respondent. If, at the adjudicative phase of a proceeding, there is absolutely no requirement to show blameworthiness or culpability on the part of the respondent to support the petitioner's allegations of neglect under MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2), then probate courts will be free to assume jurisdiction over children in parental rights termination cases in which there is correspondingly absolutely no possibility at that time of terminating parental rights on the basis of neglect under MCL 712A.19a(e); MSA 27.3178(598.19a)(e). We do not believe that probate courts are permitted under the jurisdictional statute to assume jurisdiction over a child based on the non-culpable neglect of a respondent and then to conduct a judicial fishing expedition in search of some evidence of culpability to serve as a basis for the termination of the respondent's parental rights." Id., p. 7.

Visiting Judge T.K. Boyle dissented, stating that "the majority has seriously erred in reading into jurisdictional Sec. 2(b) the judicial interpretation of the term 'neglect' created in the context of terminating an individual's parental rights under the Michigan juvenile code." Id., p 1. 7

On June 22, 1988, we granted leave to appeal. 430 Mich. 892 (1988).


At the time of the adjudicative hearing in the instant case, M.C.L. Sec. 712A.2(b); M.S.A. Sec. 27.3178(598.2)(b) provided that the juvenile division of the probate court may acquire jurisdiction over any child under eighteen years of age found within the county:

"(1) Whose parent or other person legally responsible for the care and maintenance of the 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 or her health or morals, or who is deprived of emotional well-being, or who is abandoned by his or her parents, guardian, or other custodian, or who is otherwise without proper custody or guardianship.

"(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 the child to live in." (Emphasis added.) 8

"Neglect" is not defined in the juvenile code, although the term appears in both the jurisdictional provisions quoted above and the subsection governing the termination of parental rights, M.C.L. Sec. 712A.19a(e); M.S.A. Sec. 27.3178(598.19a)(e). 9 In our view, a comparison of these jurisdictional provisions sheds light on the proper construction of "neglect" in Sec. 2(b)(2).

According to Sec. 2(b)(1), jurisdiction may be conferred upon the probate court if a parent, "when able to do so," neglects or refuses to provide necessary support or care. This subsection, which uses "neglect" as a verb, is subjective on its face. By inserting "when able to do so," the Legislature has created a "built-in" culpability requirement.

Subsection 2(b)(2), on the other hand, uses "neglect" as a noun and speaks to the objective condition of the home. Jurisdiction may be conferred under this subsection if the home is in fact an unfit place for the child to live. This subsection, by its own terms, mandates an inquiry into the objective state of being neglected rather than an examination of the individual causes or reasons for the neglect. We agree with Judge Boyle that Sec. 2(b) contemplates the assumption of jurisdiction in both situations.

The respondent asserts that because "neglect" is not expressly defined in the act, the term should be given "its plain and ordinary meaning." According to Webster, the verb "neglect" means "to give little...

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  • Brock, In re
    • United States
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    ...627 (1990). The juvenile code is intended to protect children from unfit homes rather than to punish their parents. In re Jacobs, 433 Mich. 24, 41, 444 N.W.2d 789 (1989). Furthermore, the rules applicable in child protective proceedings also differ from those applicable in criminal cases. G......
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