Nelson, In re, Docket No. 131524

Decision Date09 July 1991
Docket NumberDocket No. 131524
Citation475 N.W.2d 448,190 Mich.App. 237
PartiesIn re NELSON, minor. DEPARTMENT OF SOCIAL SERVICES and Connie Nelson, Petitioners-Appellees, v. Renee Nelson PARKER a/k/a Renee Marie Nelson, Respondent-Appellant. 190 Mich.App. 237, 475 N.W.2d 448
CourtCourt of Appeal of Michigan — District of US

[190 MICHAPP 237] Zerafa Law Offices, P.C. by Richard J. Zerafa, Elk Rapids, for petitioners-appellees.

McKay & McKay by Joan Swartz McKay, Frankfort, for respondent-appellant.



Respondent appeals as of right [190 MICHAPP 238] from a June 6, 1990, order terminating her parental rights to her minor child, Nickolas Nelson. We reverse.

Respondent was twenty-one years old and unmarried at Nickolas' birth on May 25, 1985. When the child was approximately two months old, respondent left him in the care of her mother, Connie Nelson, hereafter petitioner, so that respondent could attend out of town training courses for employment with the State of Michigan. Although the parties dispute whether respondent attempted to regain custody of the child before March 1988, there is no dispute that respondent and petitioner remained in contact and discussed respondent's circumstances and stability in reference to her ability to regain custody of the child. Additionally, although respondent did not provide monetary support for the child, she did maintain some contact with him in the form of birthday and Christmas presents and the provision of odds and ends like car seats and shoes.

After petitioner failed to relinquish the child in March 1988, and upon the advice of an attorney, respondent sought the help of the Benzie County Sheriff's Department in late 1988 to regain physical custody of the child. Shortly after this attempt failed, on September 1, 1988, petitioner filed a petition requesting the probate court to assume jurisdiction over the child pursuant to M.C.L. Sec. 712A.2(b); M.S.A. Sec. 27.3178(598.2)(b). The petition alleged that respondent abandoned the child on July 1, 1985, when she moved to Holland, Michigan, and left him in petitioner's care, that respondent failed to make regular or substantial efforts to communicate with the child, that she failed to provide support for the child, and that she was mentally unstable and unable to provide a stable environment for the child.

[190 MICHAPP 239] At a November 16, 1988, adjudication hearing, petitioner's counsel contended that the probate court had jurisdiction over the matter based on respondent's failure to provide support and alleged failure to communicate with the child for a period of at least six months after leaving the child in petitioner's care. This, it was argued, evidenced abandonment as set forth in M.C.L. Sec. 712A.19a(b); M.S.A. Sec. 27.3178(598.19a)(b) at the time the petition was filed, and vested the court with jurisdiction. In contrast, while respondent's counsel conceded that respondent allowed her child to remain with petitioner without providing monetary support, she refuted that this vested the court with jurisdiction over the child. The court, apparently accepting petitioner's arguments, exercised jurisdiction over the child and made him a ward of the court.

On appeal, respondent claims the probate court erred in assuming jurisdiction over her child. We agree. A probate court is a court of limited jurisdiction, deriving its powers solely from the constitution and from statutes. In re Waite, 188 Mich.App. 189, 468 N.W.2d 912 (1991). At the time the petition in the instant case was filed, M.C.L. Sec. 712A.2(b); M.S.A. Sec. 27.3178(598.2)(b), the statute authorizing a probate court's assumption of jurisdiction over a child, conferred jurisdiction to the probate court in proceedings concerning a child who lived within the county, was under seventeen years of age, and

(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 [190 MICHAPP 240] 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.

Examining the September 1 petition, it appears both statutory bases for the assumption of jurisdiction by the probate court were alleged. However, before assumption of jurisdiction by the probate court, there must be an adjudicative hearing, at which the...

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4 cases
  • In re Ferranti
    • United States
    • Michigan Supreme Court
    • June 12, 2019
    ... 504 Mich. 1 934 N.W.2d 610 IN RE FERRANTI, Minor. Docket No. 157907 Supreme Court of Michigan. Decided June 12, 2019 Argued October 10, 2018 McCormack, ... App. 189, 208, 468 N.W.2d 912 (1991) ; In re Nelson , 190 Mich. App. 237, 241-242, 475 N.W.2d 448 (1991). We reversed. We held that the fathers claim ... ...
  • Hatcher, In re
    • United States
    • Michigan Supreme Court
    • March 1, 1993
    ... ... James HATCHER, Sr., Respondent-Appellee, ... Revender Harris, Respondent ... Docket No. 94520 ... Calendar No. 11, March Term, 1993 ... Supreme Court of Michigan ... Argued ... See In re Waite, 188 Mich.App. 189, 208, 468 N.W.2d 912 (1991); In re Nelson, 190 Mich.App. 237, 241-242, 475 N.W.2d 448 (1991). The Court did not address respondent's ... ...
  • Toler, Matter of
    • United States
    • Court of Appeal of Michigan — District of US
    • April 6, 1992
    ...exists and that the allegations contained in the petition were proven by a preponderance of the evidence. In re Nelson, 190 Mich.App. 237, 240, 475 N.W.2d 448 (1991). Since jurisdiction is statutory, it cannot be conferred by consent of the parties. In re Youmans, 156 Mich.App. 679, 684, 40......
  • Bechard, In re
    • United States
    • Court of Appeal of Michigan — District of US
    • May 23, 1995
    ...of the petitions. This would have set the stage for appointment of counsel and an eventual trial. Id.; In re Nelson, 190 Mich.App. 237, 240, 475 N.W.2d 448 (1991); In re Nunn, 168 Mich.App. 203, 207-208, 423 N.W.2d 619 (1988). Accordingly, we vacate the order terminating respondent's parent......

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