Kurzawa, Matter of

• Decision Date: 06 February 1980
• Docket Number: Docket No. 43901
• Citation: Kurzawa, Matter of, 290 N.W.2d 431, 95 Mich.App. 346 (Mich. App. 1980)
• Parties: In the Matter of John Casmere KURZAWA, Jr., dependent minor. LENAWEE COUNTY, Plaintiff-Appellee, v. John KURZAWA, Sr. and Frances Kurzawa, Defendants-Appellants. 95 Mich.App. 346, 290 N.W.2d 431
• Court: Court of Appeal of Michigan — District of US

Page 431

290 N.W.2d 431

In the Matter of John Casmere KURZAWA, Jr., dependentminorLENAWEE COUNTY, Plaintiff-Appellee, v.John KURZAWA, Sr. and Frances KurzawaDefendants-Appellants.

Docket No. 43901.

95 Mich.App. 346, 290 N.W.2d 431

Court of Appeals of Michigan.

Feb. 6, 1980.

Released for Publication April 4, 1980.

Martin J. Beres, Detroit, for Kurzawa, Sr.

Dan Robert Bruggeman, Clarke F. Baldwin, Adrian, for Kurzawa, Jr.

Before BRONSON, P. J., and RILEY and QUINNELL, ^* JJ.

QUINNELL, Judge.

[95 MICHAPP 347]This case comes to us after a series of hearings culminating in the termination of the parental rights of appellantsJohn Kurzawa, Sr. and Frances Kurzawa in their son John Casmere Kurzawa, Jr.("Cass"), by order of the Probate Court for Lenawee County on April 5, 1978.The Circuit Court for Lenawee County affirmed the same without conducting a trial de novo.We granted leave to appeal.

Cass, born February 27, 1970, is the only child of the Kurzawas.Mr. Kurzawa is a teacher of the blind and is himself totally blind and Mrs. Kurzawa[95 MICHAPP 348] has had some vision impairment, a condition that has apparently improved while this case has been in the courts.Mr. Kurzawa's handicap has been a factor of some unknown significance.

The matter first came to the attention of the probate court when the Kurzawas signed the following petition:

" * * * (Cass) who is without proper custody and guardianship, to-wit: John Kurzawa, Jr., is not controlled by his parents.On Tuesday, 6/17/75, he hit his mother in the head with a rock.He also threw a butcher knife at her on 6/17/75.On 6/18/75, John, Jr., hit a neighbor girl in the head with a rock.He also tried to stab his mother on that day.In April, 1975, John, Jr., attempted to burn the neighbor's barn.During this same day he threw baby rabbits out and watched them die, threw a duck into a German shepherd dog's pen and watched the dog kill the duck and was continually hurting neighbor children.

"John Kurzawa, Sr., is totally blind and unable to administer effective discipline to the boy.Frances Kurzawa indicates she cannot control the child.Both parents request temporary placement in foster care and this is supported by Mrs. Brenda Pincheon, therapist at the mental health unit."

The factual allegations in this initial petition by the Kurzawas clearly refer to the delinquency provisions of the probate code, M.C.L. § 712A.2(a);M.S.A. § 27.3178(598.2)(a), and not the neglect portions, M.C.L. § 712A.2(b);M.S.A. § 27.3178(598.2)(b).Apparently some sort of hearing was conducted on June 19, 1975, but no transcript of this proceeding exists.In any event, the Kurzawas were in probate court on July 25, 1975.The Kurzawas waived counsel and a guardian ad litem appeared in behalf of Cass.The court informed the Kurzawas that they could admit or deny the allegations of [95 MICHAPP 349] the petition, a petition they themselves had initiated.Mr. Kurzawa's response was enigmatic.He explained: "The charges aren't true, of course, we made them ourselves because we had gone through that experience", but he later positively responded when the court asked him if the petition was true.The Kurzawas maintained throughout the later proceedings that they initiated the petition in order to receive temporary assistance from the Department of Social Services(DSS) while moving into a new home in Hillsdale County.The Kurzawas believed Cass was being improperly influenced by their neighbor's children and that his behavior would improve with a more salubrious environment and thought DSS could provide a temporary home for the child during their brief period of dislocation.Mr. Kurzawa, however, did not clearly explain this at the hearing.The court made Cass a temporary ward of the court and ordered him into foster care.

The court conducted a review hearing, M.C.L. § 712A.19;M.S.A. § 27.3178(598.19), on January 8, 1976.Since the previous hearing, Cass had run into difficulties with his foster parents and had been placed in the Yorkwoods Center for Psychological Evaluation in Ypsilanti by an ex parte order on August 16, 1975.The Kurzawas, in the meantime, had moved into a new home in Jerome, Michigan, which is in Hillsdale County.The Kurzawas arranged for Cass to start public school in Jerome.Frances Rich, a social worker from the Lenawee County DSS, recommended that Cass be returned to his parents and continue treatment at Yorkwoods on an outpatient basis.Ms. Rich noted that there were no particular behavioral problems with Cass.Upon Ms. Rich's recommendation, the court ordered the child continued as a temporary ward [95 MICHAPP 350] of the court and further ordered that he be returned home on a trial basis.

The next review hearing was held July 13, 1976.The Kurzawas were the only witnesses and testified that Cass's behavior had improved markedly since his return home, that he was doing well in school, and that there were no particular problems with the child.The court order the continued wardship of the boy in his parents' home.

It is somewhat difficult to understand what happened next.Joan Mueller, a DSS social worker, filed the following petition on August 6, 1976:

"John 'Cass' Kurzawa, Jr. is not able at this time to function in the home of Mr. and Mrs. John C. Kurzawa, parents.Mother is having problems controlling John's behavior.On 8-4-76 conference with Mrs. Kurzawa, I was told that John had taken a puppy's leg and put it in a spinning bicycle tire.He had also taken stones, etc., and put them in the gas tank of his mother's car.I had a conference with Sue Cooley, Yorkwoods Center, on 8-4-76 and 8-6-76.She and I both believe it is in John's best interest that he be removed from the family home and placed temporarily in foster care."

The petition seems to have been granted ex parte since Cass was already in the Children's Psychiatric Hospital (CPH)¹ in Ann Arbor when the hearing was conducted on August 17, 1976.Mr. Kurzawa, now represented by counsel, was the only witness at that hearing.He denied in part and explained the allegations of misbehavior on Cass's part, allegations stemming from a discussion between Mrs. Kurzawa and Ms. Mueller.He explained that he had contacted Ms. Mueller through the auspices of a Yorkwoods social [95 MICHAPP 351] worker, Susan Cooley, only to have Cass placed in a summer camp through DSS.Somehow, the petition resulted.Mr. Kurzawa did, however, testify that he would cooperate with the court and with CPH.Ms. Mueller, the petitioner, did not testify.

The Kurzawas petitioned the court for the return of their child on February 22, 1977.The rehearing was conducted before a different probate judge on March 30, 1977.The guardian ad litem functioned as prosecutor and the Kurzawas were represented by counsel.The guardian ad litem presented testimony from Ms. Mueller, Dr. Purza Onate, a resident in psychiatry from CPH, and Dr. Kay Tooley, Dr. Onate's supervisor.Their testimony was to the effect that Cass was an aggressive child in need of close supervision and psychotherapy.Dr. Onate had met the Kurzawas on only two occasions while Dr. Tooley had observed neither the parents nor the child.Susan Cooley testified on behalf of the Kurzawas.She had been Cass's social worker while she was at Yorkwoods and had supervised his case until his commitment to CPH.She recommended that he be returned home.In her opinion, the Kurzawas were capable of rearing the child but were in need of some counseling.Robert Gaberdiel, the principal of the school Cass had attended in Jerome, testified that the child had behaved well in school and had no unusual problems.Mr. Kurzawa testified that he was willing to cooperate with the school and work with Ms. Cooley for the benefit of his child.On the basis of the testimony, the court reached the following conclusion:

"Now, it appears obvious that this Court is called upon pretty much to make a medical decision here as opposed to a judicial or legal decision because what is best for Cass is the is what this Court is all about.I'm[95 MICHAPP 352] confronted with the dispute between people, both of whom are sincere in their professional opinions.By that I'm referring to the doctors who have testified and also to Miss Cooley.I'm also impressed with the fact that Mr. and Mrs. Kurzawa are they love their child.They feel that there's some the Court is saying something here, somebody's saying something here about their ability as parents and that's not what's at issue here at all.The issue is what is good for Cass.THis (sic )Court finds Cass to be a sick young boy, and that he needs some help.THat (sic )he's mentally disturbed, and that if we do not do something for him and if the treatment is not continuous and if he's not closely supervised in an institutional atmosphere at least at this time, that perhaps we'll loose (sic ) what we have accomplished this far.Based on that, it is the judgment of this Court in view of all of the evidence and all of the good intentions on everybody's part that Cass will be continued at the Children's Psychiatric Hospital.Therefore, it is hereby ordered, that John Cashmere Kurzawa, Jr. be and is by this order made a temporary ward of the Court and is placed at the Children's Psychiatric Hospital under the supervision of the State Department of Social Services."(Emphasis added.)

The Kurzawas obtained new counsel.They moved for a change of venue on September 12, 1977, which motion was denied.

On November 30, 1977, Ms. Mueller filed the following petition for the termination of the Kurzawas' parental rights:

"John Kurzawa, Jr., was placed in foster care on September 28th, 1977, and placed there upon recommendation of Dr. Kay Tooley, psychologist, Children's Psychiatric Hospital, Ann Arbor, Michigan.Mr. and Mrs. John Kurzawa have had agency intervention since 1974.John 'Cass' Kurzawa, Jr., has been removed from the home of Mr. and Mrs....