People v. Brown, Docket No. 15341

• Decision Date: 06 September 1973
• Docket Number: No. 2,Docket No. 15341,2
• Citation: 212 N.W.2d 55,49 Mich.App. 358
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mae BROWN et al., Defendants, and Eunice Salem and Arlene Smith, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 55

212 N.W.2d 55

49 Mich.App. 358

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mae BROWN et al., Defendants and Eunice Salem and Arlene Smith, Defendants-Appellants.

Docket No. 15341.

Court of Appeals of Michigan, Division No. 2.

Sept. 6, 1973.

Released for Publication Nov. 20, 1973.

William J. Hayes, Hayes & Kittendorf, Flint, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Martin E. Clements, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and McGREGOR and VanVALKENBURG,* JJ.

McGREGOR, Judge.

In this child custody case, appellants raise two substantial issues: (1) whether the appellants have been denied their parental rights without due process of law, and (2) whether the statute giving the probate court jurisdiction over neglected children is void for vagueness.

The initial proceedings in this matter were instituted in probate court under M.C.L.A. § 712A.2; M.S.A. § 27.3178(598.2) by petitions alleging that the children involved fell within the jurisdiction of the court under section (b) (2) of the act, which provides that the probate court shall have jurisdiction over any child in the county '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 such child to live in.'

There are two sets of children involved in this case, the Smith children and the Brown children. According to the allegations in the petitions, the home was rendered unfit because the mothers were living together in a state of lesbianism which created an immoral atmosphere. A hearing was held on May 13, 1970, at which it was represented to the court that the families were no longer living together. The probate judge indicated that he believed that the court should take jurisdiction but he continued custody with the mothers on the condition that they live apart. The written order of the court omitted the condition that the women live apart.

On June 5, 1970, another hearing was held, at which an officer of the Michigan State Police testified that on June 3, 1970, he was called to the Smith home where there had been some kind of a fight, and that Mrs. Brown had tried to kill herself. Unfortunately, the trooper's testimony is almost entirely subject to objections, either as hearsay evidence or that the trooper lacked personal knowledge of the facts to which he was testifying. At the conclusion of this hearing the probate court ordered the children placed in foster boarding homes.

By an order entered on June 20, 1970, the custody of the Brown children was awarded to the maternal grandparents. After a hearing on July 15, 1970, custody of the Smith children was awarded to their father.

A hearing involving only the Brown children was held on August 5, 1970, at which Mrs. Brown was represented by court-appointed counsel, and at which it was indicated that Mrs. Brown consented that the grandparents have custody of her children. At another hearing on June 22, 1971, it developed that the grandparents were unable to continue their custody of the children because of illness, and the court restored custody of the children to their mother.

On December 30, 1970, a hearing concerning only the Smith children was held, at which it was shown that Mrs. Smith had taken her children to her home. After a subsequent hearing on February 9, 1971, the court restored custody of the Smith children to their mother.

On October 29, 1971, a hearing was held involving both sets of children, at which both women were represented by the same attorney. When it was shown that the families were again living together, the court ordered that the children be placed in foster homes. This probate order was appealed to the circuit court, which affirmed the order, after hearing the matter on the probate court record. Mrs. Smith and Mrs. Brown appeal to this Court on leave granted.

Appellants first submit that they were deprived of their parental rights without due process of law. A more specific statement of appellants' contentions in this regard appears in their brief, as follows:

'Three subjacent facets of 'due process' are proposed for the court's consideration, viz.:

'1. Were the respondents entitled to counsel at the determinative proceedings of May 13, 1970?

'2. Were the allegations propounded by the prosecutor proven?

'3. Was the order of the probate court terminating custody the appropriate consequence of the proceedings?'

The answer to the first question is clear. The mothers were entitled to counsel at the May 1970 hearing.

'The child, his parents, guardian, or custodian shall have a right to retained counsel and also to court-appointed counsel as provided in this rule; it shall be the duty of the court to so advise them at the first hearing before the court.' JCR 1969, 6.1.

With regard to Mrs. Smith, no right-to-counsel problem exists; she was represented. Mrs. Brown had been represented by the same attorney but, at the hearing, he stated that he was withdrawing as Mrs. Brown's counsel and was representing only Mrs. Smith. The court did not inform Mrs. Brown of her right to appointed counsel, if indigent. Since she later was represented by appointed counsel, it seems likely that she was indigent at that time. There was no waiver of counsel as provided in JCR 1969, 6.2 and JCR 1969, 6.3(a)(2) (b):

'Unless waived as provided by Rule 6.2, counsel shall be appointed on the court's own motion to represent the parents, guardian, or custodian of the child charged with offense against the child at hearings which may involve termination of their rights when legal aid or public defender counsel is not available, and they are financially unable to employ counsel to represent themselves.'

It seems clear that Mrs. Brown was denied her rights under the court rule and that Mrs. Smith was not.

Concerning the question of whether the prosecutor proved his case, appellants stress the fact that there was no testimony that the women were observed in homosexual activity. In evaluating this contention, the two-step nature of these proceedings is of some importance....