Waite, Matter of
| Decision Date | 01 April 1991 |
| Docket Number | Docket No. 126249 |
| Citation | 188 Mich.App. 189,468 N.W.2d 912 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | In the Matter of Bruce Allen WAITE, Minor. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Melinda WAITE, Respondent-Appellant. 188 Mich.App. 189, 468 N.W.2d 912 |
[188 MICHAPP 190] Bruce E. Basom, Pros. Atty., Stanton, for petitioner-appellee.
Thomas L. Wilson, Carson City, Guardian ad litem of Bruce A. Waite.
Donald R. Hemingsen, Stanton, for respondent-appellant.
Before NEFF, P.J., and MAHER and HOOD, JJ.
Respondent appeals as of right from a January 16, 1990, probate court order terminating her parental rights pursuant to M.C.L. Sec. 712A.19b(3)(b)(ii) and (c)(i); M.S.A. Sec. 27.3178(598.19b)(3)(b)(ii) and (c)(i). Respondent raises issues on appeal relating both to the initial adjudicative hearing and to the [188 MICHAPP 191] hearing terminating her parental rights. We reverse.
On August 31, 1988, a petition was filed with the Montcalm County Probate Court alleging that respondent's son, who was born on July 19, 1988, had been hospitalized on August 30, 1988, and was diagnosed as having several bruises and a fracture of the right femur, suggesting the use of excessive force. At a hearing on August 31, respondent explained that on August 27, 1988, she brought her son to the house of Kim Smith, a friend of hers, where Smith took care of him until August 29, when respondent returned and noticed that his leg was swollen. He was taken to the hospital later that evening. The trial court, indicating, "I don't know what we got [sic] here," adjourned further proceedings until September 15, 1988, so that further investigation could be conducted and an attorney could be appointed for respondent. In the meantime, the court entered a temporary order prohibiting the child's removal from the hospital without prior court approval.
On September 15, 1988, respondent waived further proceedings and agreed to offer an admission to count one of a two-count petition alleging that respondent's son came within the provisions of M.C.L. Sec. 712A.2(b); M.S.A. Sec. 27.3178(598.2)(b). Respondent, who was represented by an attorney, was advised of her rights, and, after the court took her testimony, her plea of admission was accepted. The court then entered its order adjudging respondent's son a temporary ward of the court and placing him in foster care.
Several review hearings were held subsequent to the court's assumption of jurisdiction over respondent's son, and he was continued as a ward of the court. After a hearing on November 13, 1989, the court authorized the filing of a petition seeking [188 MICHAPP 192] permanent termination of respondent's parental rights, and a termination hearing was held on December 19, 1989, following which respondent's parental rights were terminated.
Respondent first argues that reversal of the order terminating her parental rights is required because of error during the initial adjudicative stage. Specifically, respondent argues that she was not adequately advised of her rights at the September 15, 1988, hearing and, further, that her testimony was insufficient to support the trial court's finding that her son came within the provisions of M.C.L. Sec. 712A.2(b)(1); M.S.A. Sec. 27.3178(598.2)(b)(1). After first discussing the merits of each of these claims, we will discuss the propriety of allowing such claims to be challenged collaterally during an appeal as of right from an order terminating parental rights.
Concerning respondent's first argument, respondent contends that her plea of admission was defective because she was not advised of her right to have the court subpoena witnesses in her favor. MCR 5.971(B)(3)(e). The record reveals that respondent, who was also represented by counsel, was specifically advised that she had the right to "cross-examine all the witnesses called" and to "call witnesses on [her] own behalf." She specifically acknowledged her understanding of these rights. Applying a standard analogous to that used in reviewing the adequacy of advice of rights during criminal guilty pleas, see People v. Gren, 152 Mich.App. 20, 24, 391 N.W.2d 508 (1986), we are satisfied from the record before us that respondent understood both the nature of the proceedings and that, by offering her plea, she was knowingly and voluntarily giving up her right to a trial and the rights incident thereto. Thus, we conclude that respondent's plea of admission was an understanding[188 MICHAPP 193] one and, therefore, was not defective on the basis of inadequate advice of rights.
Regarding respondent's second argument, MCR 5.971(C)(2) provides in relevant part:
The court shall not accept a plea of admission or of no contest without establishing support for a finding that the child comes within the jurisdiction of the court.
In this case, the essence of the allegations in the petition were that respondent either caused the injuries to her son or negligently allowed them to occur through the selection of inappropriate persons to care for her child.
In eliciting respondent's plea of admission, the probate court questioned respondent about her son's injuries. Respondent explained that she didn't know how the injuries occurred but that they apparently occurred while her son was being cared for by her friend, Kim Smith, sometime between August 27 and 30. The court asked respondent if she knew whether Smith could properly take care of children, and respondent replied that she thought so because Smith had two children of her own. Thereafter, the court asked respondent's attorney for help with other facts. Respondent was asked if she acknowledged that placing the child with Kim Smith may have been a mistake. Although respondent replied "um huh," when she was asked why this was the case, she responded: The court then asked respondent, "Do you think you were negligent?" and respondent replied, "Yeah." However, respondent did not explain why she thought this was so. The court also asked whether anybody else helped take care of [188 MICHAPP 194] the child, and respondent merely indicated that another friend, Margie, sometimes came over and helped when she had trouble getting her son to sleep.
M.C.L. Sec. 712A.2; M.S.A. Sec. 27.3178(598.2) provides, in pertinent part:
The juvenile division of the probate court shall have the following authority and jurisdiction:
* * * * * *
(b) Jurisdiction in proceedings concerning any child under 18 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, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is 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.
Although the petition in this case originally alleged that respondent's son came within the provisions of both subsections (b)(1) and (2), all allegations pertaining to subsection (b)(2) were dismissed before acceptance of respondent's plea. The probate court then found that respondent's son came within the provisions of subsection (b)(1) pursuant to the language relating to neglect or the refusal to provide proper or necessary care. Specifically, it was the court's finding that respondent [188 MICHAPP 195] "did neglect to provide proper care" because she allowed her child "to be taken care of by other persons and the injuries did result."
On the basis of this record, we are unable to conclude that sufficient facts were established to support a conclusion that respondent's son came within the provisions of M.C.L. Sec. 712A.2(b)(1); M.S.A. Sec. 27.3178(598.2)(b)(1) because of neglect or a refusal to provide proper or necessary care. The mere fact that an injury resulted does not necessarily establish that the injury was attributable to a failure to provide proper care. The facts in this case merely showed that respondent entrusted the temporary care of her son to a friend who she thought could take proper care of her child inasmuch as this friend had two children of her own. The testimony did not indicate that, at the time respondent entrusted her son to her friend's temporary care, she had any basis to believe that her friend either would not or could not provide proper care. Indeed, the court was unable to find whether respondent's friend, or any other person for that matter, was in fact inappropriate, as reflected by the court's statement: "I'm not so sure able [sic] or maybe they are able--I have no idea--But I'll accept the admission at this time." Additionally, the record shows that when respondent did return and notice that her son was injured, she took him to the hospital later that same day. Although we note that respondent did acknowledge being "negligent," she did so only in response to the court's leading question regarding this conclusion. The fact remains, however, that the record is devoid of underlying facts establishing a basis for such a conclusion.
Accordingly, on the basis of the record before us, we conclude that the trial court erred in finding that respondent's son came within the provisions [188 MICHAPP 196] of subsection 2(b)(1). Nevertheless, the question remains whether this error at the adjudicative stage may be properly attacked in the instant appeal.
In this case, a direct appeal was available from the probate court's order of...
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