LaFlure, In re

Decision Date23 July 1973
Docket NumberNo. 3,Docket No. 13484,3
Citation48 Mich.App. 377,210 N.W.2d 482
PartiesIn the Matter of Gary Lee LaFLURE, Minor, Ann LaFlure McCaig, Appellant
CourtCourt of Appeal of Michigan — District of US

Paul N. Doner, Midland, for appellant.

Edward G. Durance, Pros. Atty., for appellee.

Before R. B. BURNS, P.J., and T. M. BURNS and PETERSON, * JJ.

R. B. BURNS, Presiding Judge.

On October 14, 1969, the Midland County Probate Court determined that Gary Lee LaFlure was a neglected child. The boy was made a temporary ward of the court and was placed in a foster home. He is still there. We do not have before us the record of the 1969 proceeding. However, from the record we do have before us we have managed to deduce the following: For some time prior to October, 1969, Gary's parents had been living apart. The boy was living with his mother, appellant herein, who worked as a cocktail waitress to support herself and her son. Late one evening the mother refused the babysitter's request to return home from work. The police were called. Gary's mother refused their plea to return. We do not know why the babysitter and police thought it necessary for appellant to return home. Finally, a police officer went to the home, found it in a filthy condition, and removed Gary therefrom. Subsequently, a petition was filed in probate court, alleging neglect. The boy's parents were eventually divorced. We know nothing of the whereabouts of Gary's father and of his interest, if any, in custody of his son.

On January 29, 1970, the probate court conducted a review hearing. The court retained temporary custody of Gary, but granted appellant visiting privileges of one afternoon a week. Another review hearing was conducted on August 20, 1970. Once again the court retained temporary custody of the boy. However, appellant's visiting privileges were expanded to alternate weekends in her own home.

On October 3, 1970, while visiting his mother for the weekend, Gary was accidentally burned when he stepped on a faulty floor radiator in the bathroom. Although the probate court was satisfied that the incident was an accident, appellant's visiting privileges were suspended, pending elimination of the radiator hazard. At the hearing on October 22, 1970, at which appellant's visiting privileges were suspended, the probate court indicated a willingness to return Gary to his mother's custody once the radiator hazard was eliminated. Another review hearing was scheduled for January 5, 1971. Before that hearing, appellant moved to another apartment, and married Mr. McCaig.

At the hearing on January 5, 1971, Gary was made a permanent ward of the probate court had appellant's parental rights were terminated. After a trial De novo, the Midland County Circuit Court affirmed. This Court granted appellant's application for leave to appeal. Appellant appeals only the order of termination of January 5, 1971. She does not challenge the determinations or orders made prior to that date.

This appeal raises questions about the proper scope of the various review hearings conducted by the probate and circuit courts and about the placement of the burden of proof in said hearings. The appeal also challenges the sufficiency of the findings used to justify termination of appellant's parental rights in Gary.


Whenever information is given to the juvenile division of a probate court alleging that a child is within the provisions of chapter 12A of the probate code (See M.C.L.A. § 712A.2; M.S.A. § 27.3178(598.2)), the court may, in its discretion, conduct a preliminary inquiry to determine whether further action is warranted. If the court determines that further action is warranted, it authorizes the filing of a petition. M.C.L.A. § 712A.11; M.S.A. § 27.3178(598.11). Once a petition has been filed, the probate court may, after such additional investigation as seems necessary, either dismiss the petition or issue a summons to those having custody or control of the child, ordering them and the child to appear. M.C.L.A. § 712A.12; M.S.A. § 27.3178(598.12). Should it then be determined that the child is within the provision of chapter 12A, the probate court may order such disposition as seems appropriate. See M.C.L.A. § 712A.18; M.S.A. § 27.3178 (598.18). Should the child be made a temporary ward of the court and placed in foster care, a hearing must be held within 6 months, at which hearing the child's parents or guardian must appear and 'show the efforts made by them to reestablish a home for the child'. If, after such a review hearing, the child remains in foster care in the temporary custody of the probate court, another hearing must be held within 1 year of the entry of the original order of disposition, at which hearing the child's parents or guardian must appear and 'show the further efforts made by them to reestablish a home for the child, and * * * Show why the child should not be placed in permanent custody of the court'. If, after this review hearing, the child continues in the temporary custody of the court, additional review hearings must be held at least annually. M.C.L.A. § 712A.19; M.S.A. § 27.3178(598.19). If a neglected child remains in foster care in the temporary custody of the court for 2 or more years, the court may assume permanent custody of the child if, after a hearing, the child's parents 'fail to Establish a reasonable probability' that they will be able to provide a fit home within the next year. M.C.L.A. § 712A.19a(f); M.S.A. § 27.3178(598.19a) (f). Any order of the juvenile division of a probate court may be appealed by any aggrieved party to the appropriate circuit court. If the case was commenced in probate court prior to January 1, 1971, appeal is by trial De novo. Cases commenced after January 1, 1971, are appealed on the written record. M.C.L.A. § 712A.22; M.S.A. § 27.3178(598.22); M.C.L.A. § 701.45a; M.S.A. § 27.3178(45.1) and 1970 P.A. 143. If parental rights are terminated, a petition for rehearing may be filed within 3 months. After rehearing, the court may enter any supplemental disposition it deems appropriate. M.C.L.A. § 712A.21; M.S.A. § 27.3178 (598.21).

In the instant case at the January 5, 1971 hearing the probate court placed on appellant the burden of proving that she had reestablished a fit home for Gary. The circuit court allowed the trial De novo to proceed on the assumption that the burden was on the state to justify termination of appellant's parental rights in Gary. However, the circuit judge expressed the personal opinion that the statutes cited above place the burden of proof on appellant. Appellant claims that she bears only the burden of going forward. We agree.

It is undisputed that a child may not be placed in the temporary custody of a probate court unless the state proves the need for such a custody arrangement. However, because a parent whose child is in the temporary custody of a probate court will lose all parental rights in that child unless he can 'show' that termination of such rights is not justified, it is our opinion that the probate code places on the parent in all review hearings the burden of proving that he or she is a fit parent. Statutes and court rules which require a party 'to show' a particular fact have long been interpreted as requiring that party 'to prove' that particular fact. Central G.R. Co. v. Clark Milling Co., 40 Ga.App. 113, 149 S.E. 77, 78 (1929); State v. Allen, 54 Idaho 459, 460, 34 P.2d 45, 46 (1934); Hughes v. Medendorp, 294 Ill.App. 424, 428, 13 N.E.2d 1015, 1017 (1938); Chumbley v. Courtney, 181 Iowa 482, 486, 164 N.W. 945, 946 (1917); Wimberly v. McElroy, 295 S.W.2d 597, 600 (Mo.App.1956); In re Lee, 41 Misc. 642, 647, 85 N.Y.S. 224, 227 (1903); In re Walker's Estate, 161 Ohio St. 564, 569, 120 N.E.2d 432, 435 (1954); Sears v. Birbeck, 321 Pa. 375, 184 A. 6, 9 (1936), and Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095, 1098 (1927). See also, Black, Law Dictionary (4th ed.), p. 1549; Bouvier, Law Dictionary (Rawle's ed.), p. 3067.

Similarly, because a neglected child who has been in the temporary custody of a probate court for 2 years may be placed in the court's permanent custody unless his parents 'establish' that a fit home will be available within a year, it is our conclusion that in a hearing pursuant to M.C.L.A. § 712A.19a(f); M.S.A. § 27.3178(598.19a)(f), a parent must prove the availability of a home within 1 year. 'Establish' means to prove. Black, Law Dictionary (4th ed.), pp. 642--643.

However, it is our opinion that such a shift in the burden of proof is unconstitutional.

In Fritts v. Krugh, 354 Mich. 97, 114, 122, 92 N.W.2d 604, 613, 617 (1958) our Supreme Court recognized a significant difference between evidence necessary to justify temporarily removing a child from the custody of its parents and evidence necessary to justify termination of parental rights. The Court held it a violation of due process to terminate parental rights on the basis of the former and lesser evidence. At first glance it would appear that the shift in the burden of proof at issue herein is contrary to the Fritts decision, for the temporary placement of a child in the custody of a probate court can become permanent without additional proof by the state. However, the Fritts decision does not control the instant case.

First of all, the Supreme Court cited no authority for its conclusion of constitutional law. We think that the Legislature, the legal profession and the juvenile authorities are entitled to an explained holding.

Second, the Fritts case is significantly distinguishable from the instant case. In Fritts parental rights were terminated on the basis of evidence insufficient to justify even temporary placement in the custody of the probate court. In the instant case the probate court's original finding of neglect and its assumption of temporary custody are not challenged. Furthermore,...

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