Powers, In re

• Decision Date: 06 February 1995
• Docket Number: Docket No. 170851
• Citation: 528 N.W.2d 799,208 Mich. App. 582
• Parties: In re Kayla Marie POWERS, Minor. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Rodney POWERS, Respondent-Appellant, and Nikki Lynn Strayer, Respondent.
• Court: Court of Appeal of Michigan — District of US

Page 799

528 N.W.2d 799

208 Mich.App. 582

In re Kayla Marie POWERS, MinorDEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v.Rodney POWERS, Respondent-Appellant and Nikki Lynn Strayer, Respondent.

Docket No. 170851.

Court of Appeals of Michigan.

Submitted Oct. 19, 1994, at Grand Rapids.

Decided Feb. 6, 1995, at 9:55 a.m.

Released for Publication March 21, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol.Gen., Larry Hachman, Pros.Atty., Andrea A. Evanski, Asst. Pros.Atty., for Dept. of Social Services.

Arney E. Mustonen, Greenville, for Rodney Powers.

Thomas L. Wilson, Carson City, for Kayla M. Powers.

Before MURPHY, P.J., and ALLEN^* and BEACH, ^** JJ.

ALLEN, Judge.

In this casethe parties ask us to determine whether the Dittrick doctrine, as set forth in In re Dittrick, 80 Mich.App. 219, 263 N.W.2d 37(1977), applies only to parents who abuse or neglect their own children.The issue raised is one of first impression.We conclude that the principle of anticipatory neglect (or abuse) should be extended to a live-in boyfriend who has abused a sibling of a child, and affirm the decision of the probate court.

RespondentRodney Powers appeals as of right the July 1, 1992, order of the Montcalm County Probate Court determining jurisdiction and the October 26, 1993, order of that court terminating parental rights to respondent's daughter, Kayla Marie Powers(born June 29, 1992).The court's termination of parental rights was based on M.C.L. § 712A.19b(3)(b)(i);M.S.A. § 27.3178(598.19b)(3)(b)(i)(a sibling of the child has suffered physical injury caused by a parent), M.C.L. § 712A.19b(3)(c)(i);M.S.A. § 27.3178(598.19b)(3)(c)(i)(the conditions that led to the adjudication continue to exist and there is no reasonable likelihood that they will be rectified within a reasonable time), and M.C.L. § 712A.19b(3)(g);M.S.A. § 27.3178(598.19b)(3)(g)(the parent, without regard to intent, fails to provide proper care or custody and there is no reasonable expectation that the parent will be able to do so within a reasonable amount of time).

Respondent, the live-in boyfriend of Nikki Lynn Strayer, lived with Strayer and her infant son, Aaron Strayer(born March 19, 1991) from the date Aaron was five or six months old until Aaron was removed from Strayer's care on December 26, 1991, by order of the Montcalm County Probate Court.The grounds for Aaron's removal were Strayer's inability to care properly for Aaron and respondent Powers' violent conduct toward Aaron resulting in severe injuries to Aaron's leg when Powers removed Aaron from his crib.¹

Following Aaron's removal, respondent continued to live with Strayer, who some six months later, on June 29, 1992, gave birth to Kayla Marie Powers.It is undisputed that Johnnie Lee Archer is the father of Aaron, and that respondent Powers is the father of Kayla.It is also undisputed that Strayer was not married to either Archer or Powers.

On July 1, 1992, the Department of Social Services petitioned the Montcalm County Probate Court for jurisdiction over Kayla.The petition alleged, inter alia, that Strayer could not be and was not a suitable parent for Aaron, that Strayer was neglectful or abusive to Aaron, and that Kayla would be subjected to the same improper care that was given to Aaron.

At the conclusion of the hearing on July 1, 1992, the probate court found that in light of the severe injuries to Aaron, coupled with Strayer's lack of readiness to care for Kayla, there was a substantial risk of harm to Kayla should she remain with Strayer.However, the court made no specific findings regarding respondent Powers.The probate court authorized the petition, placed Kayla with the DSS, and ordered supervised visitation of Kayla by Strayer and Powers.

On August 4, 1992, the DSS amended its petition to include allegations against respondent Powers that Powers was cruel to Aaron in that he had picked up the child in a harsh manner when he knew Aaron's leg was caught in the side of the crib.It was also alleged that Strayer had stated that respondent can be violent.The DSS further alleged that pursuant to the Dittrick doctrine, the care of one child may be imported to all children living in the household.SeeDittrick, supra at 222, 263 N.W.2d 37.

On August 19, 1992, a jury trial was held in the probate court to determine whether the allegations in the amended complaint were true, and whether the probate court should take jurisdiction over Kayla with respect to respondent Powers.At the close of the prosecution's proofs, respondent Powers moved for a directed verdict on the ground that M.C.L. § 712A.19b(3)(b)(i);M.S.A. § 27.3178(598.19b)(3)(b)(i) did not apply to him.Powers argued that the statute does not apply to a person who is not a parent of the abused or neglected sibling (i.e., Aaron) or was not a party to the proceedings involving the abused or neglected sibling.The court ruled that respondent Powers was Aaron's custodian, and in such role acted as a surrogate father.The court ruled that Powers was a "parent" to Aaron under MCR 5.903(12).The court further found that because Powers was a parent to Aaron, the Dittrick doctrine did apply to him.

On August 20, 1992, after less than one hour of deliberations, the jury returned with a finding of probate court jurisdiction over Kayla with respect to both Strayer and Powers.On August 25, 1992, the probate court ordered Kayla placed under its jurisdiction and placed her with the DSS.

On September 14, 1992, a dispositional hearing was held in the probate court, and all parties agreed that to encourage bonding and appropriate parenting, respondent Strayer and Kayla would be placed in the same foster care home, and respondent Powers would be given weekly visitation rights.However, at a probate court review hearing held on March 8 and 11, 1993, proofs disclosed that Strayer had moved out of the foster care home and was again living with Powers.Review hearings conducted on May 5 and June 16, 1993, continued to disclose that neither Strayer nor Powers was making more than "very minimal" progress in correcting the conditions that led to probate court jurisdiction, and that Powers appeared "barely able to care for himself let alone a child."On July 28, 1993, the DSS petitioned for termination of Strayer's and Powers' parental rights to Kayla.

At an October 6, 1993, hearing on the petition, extensive testimony was presented by all parties.On October 26, 1993, the probate court terminated respondent Powers' parental rights to Kayla.Respondent Powers raises three grounds for reversal.

I

Respondent first argues that the July 1, 1992, order of the probate court taking jurisdiction was in error.However, respondent's brief contains no citation in support of such a claim.All that is offered to support respondent's first argument is the flat statement that "at no point in the transcript does it state that there is probable cause to authorize the petition against Rodney Powers."

We find that the allegations set forth in the DSS' petition and the testimony in support of those allegations (in particular the testimony of witness Patricia Kuhn) more than sufficiently established probable cause for the court's jurisdiction.

Further, a probate court's jurisdiction in parental rights cases can be challenged only on direct appeal, not by a collateral attack.In re Hatcher, 443 Mich. 426, 439, 505 N.W.2d 834(1993).In the instant case, respondent neither directly appealed the probate court's exercise of jurisdiction nor requested a rehearing of this issue during the time the court had jurisdiction over the child or within twenty days after the order terminating parental rights was entered.M.C.L. § 712A.21;M.S.A. § 27.3178(598.21);Hatcher, supra at 436, 505 N.W.2d 834.Accordingly, respondent no longer has the ability to challenge the probate court's exercise of jurisdiction.Id. at 444, 505 N.W.2d 834.

II

Respondent argues that the probate court erred in applying the Dittrick doctrine because: (1) the doctrine applies only to change of custody situations, not to probate court jurisdiction, and (2)respondent was not a party to the proceedings involving Aaron and was not the parent, custodian, or caretaker of the child (Aaron) who was actually abused and neglected.

Respondent cites no case law or other authority in support of his first argument.Consequently, the issue is effectively abandoned.People v. Hunter, 202 Mich.App. 23, 27, 507 N.W.2d 768(1993).However, this Court need not rely on abandonment because respondent's first argument lacks substantive merit.The Dittrick doctrine stems from In re Dittrick, supra, and related cases² standing for the proposition that how a parent treats one child is certainly probative of how that parent may treat other children.The doctrine and supporting case law is otherwise known as anticipatory neglect.This jurist was the author of In re Dittrick. At80 Mich.App. pages 222-223, 263 N.W.2d 37, that opinion squarely provides that "probate court jurisdiction in such matters" is acquired pursuant to statute when any child under age seventeen is found within the county:

(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 such child to live in.[M.C.L. § 712A.2(b)(2);M.S.A. § 27.3178(598.2)(b)(2).Emphasis added.]

Consistent with Dittrick, we find that the principle of anticipatory neglect (or, in this case, anticipatory abuse) may provide an appropriate basis for invoking probate court jurisdiction.³

We find respondent's second argument, that Dittrick does not apply because he was "not a party to" the proceedings involving Aaron, to be disingenuous.Respondent became tangentially involved in those proceedings when he was cited as the person responsible for Aaron's injuries.Proofs in the case of In re Strayer, unpublished...