Middleton, In re, Docket No. 150129

Decision Date02 February 1993
Docket NumberDocket No. 150129
PartiesIn re Jackie MIDDLETON. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellant, v. Marge MIDDLETON, Respondent-Appellee, and Lyle Purvis, Respondent.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Norman W. Donker, Pros. Atty., and Gordon J. Stryker, Asst. Pros. Atty., for Dept. of Social Services.

Karen E. McNutt, Midland, for Marge Middleton.

Before SAWYER, P.J., and HOOD and JANSEN, JJ.

PER CURIAM.

This is a termination of parental rights case. Petitioner Department of Social Services appeals by leave granted from the probate court's dismissal of its petition. We reverse.

Respondent mother is a developmentally disabled adult and is under plenary guardianship. After the petition was filed, the probate court appointed an attorney to represent the mother's interests. That attorney filed a motion to dismiss the petition. The mother's guardian, although present, took no position on the record regarding the petition. 1

The issue on appeal is whether respondent mother's status as a developmentally disabled adult under plenary guardianship automatically gives the probate court jurisdiction over the child. Apparently, the petition alleged no facts regarding the mother's condition that would have otherwise justified an assertion of jurisdiction.

Among other things, the Probate Court grants the probate court jurisdiction over any minor who "is subject to a substantial risk of harm to his or her mental well-being ... or who is without proper custody or guardianship." M.C.L. Sec. 712A.2(b)(1); M.S.A. Sec. 27.3178(598.2)(b)(1). Culpable neglect need not be shown for the court properly to exercise jurisdiction. In re Jacobs, 433 Mich. 24, 37, 444 N.W.2d 789 (1989). Jurisdiction can be established by a preponderance of the evidence. In re Nash, 165 Mich.App. 450, 453-454, 419 N.W.2d 1 (1987); MCR 5.972(C)(1).

In this case, the parties stipulated that respondent mother is developmentally disabled and is under plenary guardianship following proceedings in the probate court. Under the Mental Health Code, a developmentally disabled person cannot have a plenary guardian appointed unless the probate court finds "by clear and convincing evidence that the respondent is developmentally disabled and is totally without capacity to care for himself or herself or the respondent's estate." M.C.L. Sec. 330.1618(5); M.S.A. Sec. 14.800(618)(5) (emphasis added). If "respondent is developmentally disabled and lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or the respondent's estate, ... the court shall not appoint a plenary guardian." M.C.L. Sec. 330.1618(4); M.S.A. Sec. 14.800(618)(4) (emphasis added).

A "developmental disability" is "an impairment of general intellectual functioning or adaptive behavior" which "has continued since its origination or can be expected to continue indefinitely" and which "constitutes a substantial burden to the impaired person's ability to perform normally in society" and which "is attributable to ... [m]ental retardation, cerebral palsy, epilepsy or autism," or to any other condition producing a similar impairment, or to dyslexia resulting from any of the above. M.C.L. Sec. 330.1600(e); M.S.A. Sec. 14.800(600)(e). A "plenary guardian" is "a guardian who possesses the legal rights and powers of a full guardian of the person, or of the estate, or both." M.C.L. Sec. 330.1600(i); M.S.A. Sec. 14.800(600)(i). A plenary guardian has responsibility for the ward's custody and has the "duty to make provision ... for the ward's care, comfort, and maintenance" and also for the ward's "training, education, medical, and psychological services, and social and vocational opportunity as are appropriate." M.C.L. Sec. 330.1631(1); M.S.A. Sec. 14.800(631)(1).

We agree with petitioner that, given that respondent mother has apparently been shown, 2 by clear and convincing evidence, to be "totally without capacity to care for ... herself," her status, by itself, gives rise to an inference that her newborn daughter is at "substantial risk of harm to ... her mental well-being" and "is without proper custody or guardianship." This presumption, if unrebutted, is sufficient to find by a preponderance of the evidence...

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  • Ramsey, In re
    • United States
    • Court of Appeal of Michigan — District of US
    • April 14, 1998
    ...risk of harm to his or her mental well-being...." M.C.L. § 712A.2(b)(1); M.S.A. § 27.3178(598.2)(b)(1); In re Middleton, 198 Mich.App. 197, 199, 497 N.W.2d 214 (1993). For this Court to find, as the probate court did, that a father who attempted to kill his 1 1/2-year-old daughter does not ......

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