Nash, Matter of

Decision Date26 February 1988
Docket NumberDocket No. 86576
Citation165 Mich.App. 450,419 N.W.2d 1
PartiesIn the Matter of Deborah, Samantha, Heather and Rosina NASH, minors. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Cheri NASH, Respondent-Appellant. 165 Mich.App. 450, 419 N.W.2d 1
CourtCourt of Appeal of Michigan — District of US

[165 MICHAPP 451] John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div. Research, Training and Appeals, and Kim D. Johnson, Asst. Pros. Atty., for petitioner-appellee.

Ina Zeemering, Detroit, for the minor children.

Carolyn A. Blanchard, Detroit, for respondent-appellant.

Before WAHLS, P.J., and J.H. GILLIS and SIMON *, JJ.

PER CURIAM.

Following a May 15, 1985, hearing in Wayne County Probate Court, four minor children of respondent, Cheri Nash, were made temporary wards of the court. Respondent's petition for review was subsequently denied by the probate court, and this appeal was filed as of right. We affirm.

First, respondent argues that the probate court erred in finding that sufficient evidence was presented to support the conclusion that the children were within the jurisdiction of the probate court. [165 MICHAPP 452] The court based its exercise of jurisdiction in this case on M.C.L. Sec. 712A.2(b); M.S.A. Sec. 27.3178(598.2)(b), which provides, in pertinent part:

"Except as otherwise provided in this section, the juvenile division of the probate court shall have:

* * *

(b) Jurisdiction in proceedings concerning any child under 17 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."

In the report and recommendation of the probate court referee transcribed eight days after the May 15, 1985, hearing, it was concluded that the allegations of neglect which appeared in petitions filed on December 27, 1984, and November 2, 1984, were sufficiently substantiated to permit the court to exercise its jurisdiction under the above statutory provision, and respondent's four children were accordingly made temporary wards by the probate court on May 28, 1985. In the referee's report, several findings of fact were set forth, including the following:

"It is a further finding that on [October 25, 1984], the Protective Services worker visited the mother's [165 MICHAPP 453] home and the mother appeared to be under the influence of narcotics and stated that she was going to kill the child, Deborah.

It is a further finding that the mother has a prior record with Protective Services and with the Court for child neglect.

It is a further finding that the mother is frequently absent from the home for one or two weeks at a time and that the mother has a history of drug abuse and has been hospitalized several times for drug rehabilitation.

With regard to the child, Rosina, it is the finding of the Court that on December 11, 1984 a report of actual or suspected abuse was filed indicating the child had tremors and poor feeding which was due to withdrawal symptoms. That the child's urine was tested and found to be positive for phenobarbital dilatin and benzobiazepine [sic].

It is the further finding that the mother did not have an appropriate plan for the child and was not sure where she would live. It is the further finding that the mother has no home of her own and she lives from place to place. The mother is temporarily living with the maternal grandmother who is unable to provide adequate care for the child.

It is a further finding that the mother has a history of psychiatric problems and has been hospitalized several times for psychiatric care.

* * *

It is the further finding that placement of the children in the home would be contrary to the welfare and reasonable efforts were made to prevent or eliminate the need for removal of the children from the home and these efforts have been unsuccessful and reasonable efforts were made to reunite the family and these efforts have not been successful."

The conclusion that the children in this case fall within the court's jurisdiction under the probate code was made as a result of the evidence presented at the May 15, 1985, hearing conducted [165 MICHAPP 454] during the adjudicative phase of the child-protection proceeding. MCR 5.908(A)(1); In re Youmans, 156 Mich.App. 679, 682, 401 N.W.2d 905 (1986). During the adjudicative phase of a child-protection hearing, the applicable standard of proof is a preponderance of the evidence. MCR 5.908(C)(1); In re Frasier, 147 Mich.App. 492, 494-495, 382 N.W.2d 806 (1985). Our review of the record in this case convinces us that the evidence presented in support of the exercise of the court's jurisdiction over respondent's four minor children established well beyond a preponderance of the evidence that the children were neglected by respondent. Each of the findings of fact set forth above is strongly supported by the evidence adduced at the May 15, 1985, adjudicative hearing.

At the May 15, 1985, hearing, respondent herself was not present, although her attorney was. At that hearing, one police officer and three social workers from the Department of Social Services testified. Detroit Police Officer Jerry Savin testified that on October 25, 1984, he accompanied two social workers to respondent's home for the purpose of removing three of respondent's children. He stated that respondent, who appeared to be pregnant, was "extremely drunk" and that the house was "a shambles." Alice Johnson, a DSS protective services worker, testified that on October 25, 1984, she went to respondent's home in response to a report that respondent was beating her children, Deborah, Samantha, and Heather, and was threatening to kill them. According to Johnson, respondent appeared to be under the influence of drugs or alcohol, was verbally abusive toward the children, and threatened to kill her daughter Deborah. The children requested to leave with Johnson, and respondent indicated that she did not care whether the children were taken. [165 MICHAPP 455] Johnson also stated that the home was cluttered and there was "practically no food" in the house, observing that there was only "some cheese and sausage and a couple cans of beans."

Kevin Houser, another DSS protective services worker, testified that after the children were placed in temporary care at the end of October, 1984, respondent moved from place to place, maintaining no stable address. Charles Miller, a DSS foster care worker, testified that when he began working on respondent's case in 1984, respondent was pregnant with her youngest child, Rosina. He stated that when Rosina was born with symptoms of drug overdose, a petition to remove the child from the hospital and place her in foster care was filed. Miller further testified that the children's maternal grandmother, with whom respondent would sometimes live, had not expressed to him an interest in caring for the children. When Rosina was born, respondent admitted to Miller that she had no stable residence at that time. Respondent's medical records, which have not been included in the file on appeal, were also admitted into evidence without objection by respondent's attorney. A DSS form signed by a medical doctor and apparently included in respondent's medical records indicates that at birth Rosina experienced tremors and poor feeding due probably to the withdrawal effect of drugs taken by respondent during pregnancy, and that Rosina tested positive for the presence of phenobarbital, dilatin, and benzodiazepine.

Moreover, the finding that respondent has a prior history with protective services and with the probate court regarding child neglect is certainly substantiated by the record. Respondent's involvement with neglect proceedings reaches back to at least 1981, when a petition was filed regarding [165 MICHAPP 456] three of the children involved in the present case and a fourth child, David O'Quinn. Following a May 24, 1982, hearing, the probate court took temporary custody of...

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