Schmeltzer, Matter of

Decision Date28 April 1989
Docket Number107339,Docket Nos. 106724
Citation438 N.W.2d 866,175 Mich.App. 666
PartiesIn the Matter of Judith SCHMELTZER, a Minor. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Dale SCHMELTZER, Respondent-Appellant, and Billie Jo Schmeltzer, Respondent. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Billie Jo SCHMELTZER, Respondent-Appellant, and Dale Schmeltzer, Respondent. 175 Mich.App. 666, 438 N.W.2d 866
CourtCourt of Appeal of Michigan — District of US

[175 MICHAPP 668] Gary L. Walker, Pros. Atty., and Scott K. Hanson, Asst. Pros. Atty., Marquette, for the Dept. of Social Services.

Osstyn, Bays & Ferns by William B. Ferns, Marquette, Guardian ad Litem, for Judith Schmeltzer.

Steward, Peterson, Sheridan & Nancarrow by Paul A. Peterson, Ishpeming, for Dale Schmeltzer.

Kendricks, Bordeau, Adamini, Keefe, Smith & Girard, P.C. by Karen L. Alholm, Marquette, for Billie Jo Schmeltzer.

[175 MICHAPP 669] Before MAHER, P.J., and HOLBROOK and NOBLE, * JJ.

PER CURIAM.

On January 5, 1988, the Marquette County Probate Court entered an opinion and order terminating both respondents' parental rights in their minor daughter, Judith, born September 22, 1985, on the bases of mental illness, neglect, and cruelty. M.C.L. Secs. 712A.19a(c) and (e) and 712A.20; M.S.A. Secs. 27.3178(598.19a)(c) and (e) and 27.3178(598.20). From that order of termination, respondents filed separate appeals which were consolidated for consideration by this Court. We affirm.

I

The state's involvement in this case began on or about January 31, 1986, the date on which the Department of Social Services filed a petition with the Marquette County Probate Court, alleging abuse and neglect of Judith and requesting the court to assume jurisdiction over the child. This was not the state's first involvement with the subject family, however. Several years earlier, respondents' parental rights in their minor son, Aaron, had been

terminated on the basis of mental

illness. M.C.L. Sec. 712A.19a(c); M.S.A.

Sec. 27.3178(598.19a)(c). That action was affirmed by this Court. In re Schmeltzer, unpublished opinion per curiam, decided September 20, 1985 (Docket Nos. 78388, 78515).

The neglect and abuse petition filed by the DSS in the present action contained the following allegations:

"In the matter of Judith Schmeltzer, D.O.B.: 9/[175 MICHAPP 670] 22/85, the above named child comes within the provisions of MCLA 712A.

"Allegations: Whose home or environment by reason of neglect and cruelty on the part of her parents, is an unfit place for her to live in, to-wit:

"On December 3, 1985, Judith was seen by Dr. Pillotte who noted the presence of facial bruises. Neither parent could identify the cause of these injuries.

"On January 29, 1986, Protective Services worker Dan Forrester visited the Schmeltzer home and found Judith wedged into a corner of her crib with one leg pushed down between the mattress and a crib side; Dale Schmeltzer stated that he does this deliberately to prevent Judith from rolling onto her back as she cries whenever she is in that position.

"Mr. Forrester also noted the presence of bruises--one on her left temple and another behind her left ear; subsequent physical examination revealed a third bruise on her lower back. Neither parent could identify the cause of these injuries.

"Both parents suffer from mental illness which affects their ability to parent children and was the proximate cause of termination of their parental rights to their first child on May 7, 1984; neither of their respective mental conditions have improved substantially since then."

At a preliminary hearing conducted on January 31, 1986, the court found there was probable cause to authorize the petition and ordered that counsel be appointed for respondents and the child. An extended preliminary hearing was scheduled for February 5, 1986. In the interim, Judith was placed in temporary foster care.

At the extended preliminary examination, respondents denied the petition's allegations and requested a jury trial for the adjudicative stage of the proceedings. Judith was to continue in temporary foster care pending resolution of the matter.

[175 MICHAPP 671] On February 17, 1986, respondents filed a motion to disqualify the probate judge assigned to the case for the reason that he presided over the case that had resulted in the termination of the parental rights in Aaron. Because of this, respondents alleged that the judge was biased or prejudiced against them. Following a March 3, 1986, hearing, the probate judge denied the motion for disqualification. Respondents thereafter requested de novo review of that decision. A transcript of the motion hearing was ordered and another judge was assigned to review the motion. Before the review could be conducted, though, respondents, on April 10, 1986, withdrew the motion.

On April 28, 1986, the DSS filed a petition for termination of parental rights. The petition was meant to place respondents on notice that, should a jury decide at the adjudicative hearing that the probate court has jurisdiction over Judith, the state would seek termination of their parental rights at the initial dispositional hearing.

The adjudicative hearing was held on May 6-8, 1986. At the conclusion of the hearing, the jury found the petition's allegations to be true by a preponderance of the evidence and that such was sufficient to confer jurisdiction over Judith to the probate court. M.C.L. Sec. 712A.2(b)(2); M.S.A. Sec. 27.3178(598.2)(b)(2).

On May 30, 1986, the probate court conducted the dispositional hearing. The evidence presented at the hearing was the same as that presented at the adjudicative hearing; no new evidence was presented. Some of that evidence consisted of the testimony of the social worker-therapist assigned to respondents' case. By a written opinion dated July 11, 1986, the probate court found there was clear and convincing evidence to terminate respondents' parental rights because of mental illness [175 MICHAPP 672] and abuse. M.C.L. Secs. 712A.19a(c) and 712A.20; M.S.A. Secs. 27.3178(598.19a)(c) and 27.3178(598.20).

Respondents appealed the probate court's order of termination to this Court. In an unpublished, per curiam opinion, decided March 19, 1987 (Docket No. 94254), another panel of the Court held that the testimony of respondents' therapist was a violation of their social worker-client privilege, contrary to M.C.L. Sec. 339.1610; M.S.A Sec. 18.425(1610). Consequently, the Court reversed the order of termination and remanded the matter for further proceedings. The DSS, thereafter, filed an application for leave to appeal that decision with the Supreme Court, but it was denied. In re Schmeltzer, 428 Mich. 913 (1987).

On August 25, 1987, the DSS filed a second petition for termination of parental rights. At the hearing, which was held on October 19-20 and November 3, 1987, respondents were represented by separate counsel. All parties stipulated to the admission of evidence introduced during the termination proceedings as to Aaron. And, except for the testimony of respondents' therapist, the probate court considered all testimony and evidence previously admitted in the case. Additional testimony was taken from several witnesses, including both respondents and the protective services worker handling the case.

On January 5, 1988, the probate court issued a comprehensive and thorough written opinion and order, finding that there was clear and convincing evidence to terminate respondents' parental rights in Judith on the grounds of mental illness, neglect, and cruelty. M.C.L. Secs. 712A.19a(c) and (e) and 712A.20; M.S.A. Secs. 27.3178(598.19a)(c) and (e) and 27.3178(598.20).

Respondents filed separate appeals from that opinion and order, each raising several issues [175 MICHAPP 673] (some of which are identical and will be discussed jointly herein).

II

The first issue, which is raised only by respondent-father, is whether the probate judge erred in refusing to disqualify himself or, in the alternative, whether respondent-father was denied the effective assistance of counsel because his trial counsel failed to pursue the disqualification claim. These arguments must fail for a number of reasons.

Respondent-father, by withdrawing the motion for disqualification, implicitly acquiesced in the probate judge's presiding over the case. His failure to pursue the claim below should bar his attempt to assert error on appeal. See Beulah Missionary Baptist Church v. Spann, 132 Mich.App. 118, 124, 346 N.W.2d 911 (1984), lv. den., 419 Mich. 921 (1984). As to the ineffective assistance of counsel claim, that too has been waived. Respondent-father's failure to raise the claim below by way of a motion for new trial or an evidentiary hearing has precluded the development of a record sufficient for this Court to reach and decide the issue. People v. Ginther, 390 Mich. 436, 442-443, 212 N.W.2d 922 (1973); People v. Lawson, 124 Mich.App. 371, 373, 335 N.W.2d 43 (1983). Even if the issue was properly preserved, there is little merit to the claim that the probate judge was biased or prejudiced against him. The mere fact that a judge had previously conducted a proceeding involving the same party is not, by itself, a sufficient basis for requiring disqualification. Impullitti v. Impullitti, 163 Mich.App. 507, 514, 415 N.W.2d 261 (1987). The sole allegation of bias asserted by respondent-father is that the probate judge also presided over [175 MICHAPP 674] the case involving Aaron. Respondent-father can hardly claim this prejudiced the probate judge against him since he stipulated to the court's consideration of the evidence presented in that case to reach a decision in the instant case. Hence, had the case been assigned to a new probate judge, that judge would have been apprised of the same information already known by the judge who respondent-father sought to disqualify. Respondent has...

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