Mathers, In re
| Citation | 371 Mich. 516,124 N.W.2d 878 |
| Decision Date | 02 December 1963 |
| Docket Number | No. 38,No. 39,J,38,39 |
| Parties | In the Matter of the Petition Concerning Paula Marie MATHERS, Minor. Pearl Jean Mathers HATMAKER, Natural Mother, Appellant v. MICHIGAN CHILDREN'S AID SOCIETY, Petitioner, and Mr. and Mrs. Edward Furlong, Appellees. an. Term,une Term 1962. |
| Court | Supreme Court of Michigan |
Lawrence, Ulrich, Tripp & Barense, Ypsilanti, for appellees Mr. and Mrs. Edward Furlong.
Franklin C. Forsythe, Ann Arbor, James O. Kelly, Ann Arbor, of counsel, for Michigan Children's Aid Society.
Before the Entire Bench, except O'HARA, J.
This case has two parts. Part I is an appeal from an order of disposition terminating parental rights and placing the minor child in permanent custody of the court. The order was entered by the circuit court after jury trial on the issue of whether or not the mother had neglected the child. The matter was in circuit court on appeal by the mother from probate court, juvenile division.
Part II of the case constitutes a review of the final report of the circuit judge to this court on the question of whether damages should be assessed against appellant's attorney for rule violations in the preparation of the appendix.
Paula Marie Mathers, born October 21, 1953, is a child of Pearl Jean Mathers Hatmaker This lawsuit has a long and tortuous history, commencing shortly after the birth of the child in 1953. Paula Marie Mathers was born in Detroit. Her mother was 22 years of age at the time, and previously had been married and divorced. The decree, which became final March 14, 1952, was awarded her on grounds of extreme cruelty and nonsupport. She was given custody of 2 small children born of the marriage.
appellant. The mother was not married at the time of Paula's birth. Appellee, Michigan Children's Aid Society, a nonprofit corporation, is a licensed child welfare agency. Appellees, Mr. and Mrs. Edward Furlong, received physical custody of the child from the Society on January 3, 1955, and have maintained custody ever since. An agent of the Society filed the neglect petition in probate court. The Furlongs were permitted to intervene and participate fully.
Shortly after the birth of Paula, the mother entered into a written boarding agreement with the Society by which she obligated herself to pay for the boarding care of the child. The mother also signed a medical permit for the Society to provide necessary medical care. About 4 weeks after the birth of the child, the Society placed her in a boarding home near Milan in Washtenaw county. It is undisputed that the mother never signed a release for adoption, although there is testimony tending to show that at the time she had adoptive intent.
At the close of 1953, the child was in the boarding home near Milan and the mother was out of the maternity hospital, living with her other children and a sister. During the year 1954, the mother had several contacts with Society personnel about visiting her child in the boarding home, but either as a result of Society policy or the mother's indifference, or both, the child was not visited by the mother during this time. A social worker for the Society testified that on 2 occasions when she saw the mother during the year 1954, the mother asked to see the child. The social worker claims that she telephoned the Society central office and obtained the address of the boarding home and mailed it to the mother. The mother denies having received it. Although it was considered normal practice to make a copy of such a letter, there was none in the files. However, it was admitted by the social worker that more than one year later a copy was 'reconstructed' and placed in the files.
Without the mother's knowledge or consent, the Society placed the child in the Furlong home on January 3, 1955. At that time, there was no order terminating parental rights, nor had a neglect petition been filed. On February 1, 1955, the social worker in charge of the case went to the home of the mother to talk to her about obtaining a release of the child for adoption. It is admitted that the mother did not know that the child had been placed in a private home for eventual adoption, nor was she told of this fact at that time. The mother advised the social worker that she wanted the child returned to her. This desire either was not communicated to the Society, or if it were, then not acted upon. At any rate, the child was not returned to the mother. During the visit of February 1, the social worker found the Hatmaker home 'clean and neat'. Testimony of a Society witness was that 'At that time the mother not only indicated that she wanted the child back, but told me her husband was agreeable to her having it back.' The husband referred to is Mr. Hatmaker to whom the mother was married at some point during the Spring of 1955. It should be pointed out that he is not the child's father.
On April 12, 1955, the records of the social worker indicated that the Hatmakers had retained counsel. On the following day, April 13th, the worker filed a petition in probate court for Gratiot county (where the mother had once lived) to have the child declared neglected. The petition was later dismissed upon request of the Society.
May 10, 1955, an important conference was held between personnel of the Society and its attorneys and Mr. and Mrs. Hatmaker and their attorney. Mrs. Hatmaker offered to pay the Society for the care of the child and again demanded return of the child. At the meeting, the Society asked Mrs. Hatmaker to furnish proof of her second marriage and also a statement from her physician regarding her ability to care for an additional child. Apparently, the Society sought to judge thereby whether, in its opinion, the child should be returned to the mother.
In the meantime, the Society was having difficulty with the Furlongs. They are a childless couple, seeking to adopt a child through the good offices of the Society. They took the child January 3, 1955, not knowing, however, that the Society had no legal authority to proceed with the placement. The Society realized that having placed the child in an unlicensed home, it was in an untenable position. The Furlongs were told by the Society that either they must obtain a boarding home license or the child would have to be returned. The Furlongs did neither. These were happenings during the summer of 1955.
On September 27, 1955, the superintendent of the Society filed a petition in the probate court for Washtenaw county, juvenile division, alleging that Paula was a neglected child 'on or about, to wit, the 25th day of April, A.D. 1955.' The disparity between the date of neglect and the filing date of the petition was never adequately explained. The Furlongs entered their appearance in probate court, but were later dismissed as parties on motion of the mother's attorney. The Furlongs appealed the dismissal to circuit court. While the appeal was pending, the Society filed a petition for writ of habeas corpus alleging 'that the restraining of said Child, Paul Marie Mathers, by Mr. and Mrs. Edward H. Furlong is illegal * * *.' The mother was also named in the proceeding. On July 24, 1956, the circuit court reversed the probate court and ordered the Furlongs retained as parties. In the same order the court held the habeas corpus proceedings in abeyance. From this order, the mother filed general appeal in this Court. The Furlongs filed a motion to dismiss appeal on the sole ground that the order appealed from was 'not a final order, but is merely an interlocutory order.' The appeal was dismissed by this Court on that ground. The stage was then set for further proceedings below.
After full hearing on the Society's petition in probate court, an order was entered August 15, 1957, making the child a permanent ward of the court and terminating parental rights. On the same day as the probate court order, the Furlongs filed a petition to adopt the child. On the same day, the probate judge signed an order consenting to the adoption. However, the circuit court suspended the adoption order, pending outcome of this appeal.
On August 20, 1957, the mother filed an appeal to circuit court and demanded a trial by jury on the petition. Later she moved to dismiss the case prior to jury trial, contending that the petition was fatally defective and that the order of the probate court was not in accordance with law. The motion was denied without prejudice to its renewal at the close of proofs. The mother also moved in a separate motion, prior to trial, to dismiss the Furlongs as parties. The motion was denied.
At trial in circuit court during the month of April, 1958, all sides contested the matter vigorously. Some 30 witnesses testified. At the conclusion of proofs, the Furlongs, the Society, and the mother moved for a directed verdict. The mother's motion was made subject to the express reservation 'that the Jury shall be allowed to determine any questions of fact that the Court decides are questions of fact presented by the proofs, and return a general verdict,' citing Arnold v. Krug, 279 Mich. 702, 273 N.W. 322. The court refused to direct a verdict. Numerous requests for instructions were made and granted; some were denied, including Appellant mother contends there were numerous errors in the proceedings. She contends that the Washtenaw county probate court had no jurisdiction over the child because said child was legally a resident of Wayne county, the county of the mother's residence. Further, the mother contends that the neglect petition did not set forth facts sufficient to bring the child within jurisdiction of the court. The mother also claims that the Furlongs were not proper parties in interest, that on the jury trial it was improper to permit them to introduce evidence as to the suitability of their home and themselves as prospective parents...
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