in Re a C-M Barnes Minor ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re A C-M BARNES, Minor. November 4, 2014
No. 321322
Washtenaw Circuit Court
Family Division
LC No. 2013-000072-NA
Before: METER, P.J., and WHITBECK and RIORDAN, JJ.
PER CURIAM.
Respondent father appeals as of right the trial court order assuming jurisdiction over the
minor child under MCL 712A.2(b)(1) (abandonment), and the termination of respondent’s
parental rights pursuant to MCL 712A.19b(3)(l) (prior termination).1 We vacate the trial court’s
order.
I. ADJUDICATION
A. STANDARD OF REVIEW
Respondent contends that the trial court improperly assumed jurisdiction over the minor
girl. “Jurisdiction must be established by a preponderance of the evidence.” In re BZ, 264 Mich
App 286, 295; 690 NW2d 505 (2004). We review a trial court’s decision to exercise jurisdiction
for clear error. Id. We review de novo questions of statutory interpretation. In re MU, 264 Mich
App 270, 276; 690 NW2d 495 (2004).
B. ANALYSIS
At issue in this case is the court’s exercise of jurisdiction over the minor girl, who was
born in May 2004. Respondent had not cared for the minor child since September 2004, when
she was placed in a guardianship with petitioners. In 2013, petitioners moved to terminate
respondent’s parental rights. In the initial petition, petitioners requested that the trial court
assume jurisdiction over the minor child pursuant to MCL 712A.2(b)(1) (abandonment), (4)
(failure to comply with court-structured plan), and (5) (failure to support and visit when has the
1
Respondent mother is not a party to this appeal.
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ability to do so). They also requested termination at the initial dispositional hearing.2 However,
in the jurisdictional phase, the trial court only ruled on § (b)(1).
At the onset of the joint adjudication trial and termination hearing, the trial court
reviewed the jurisdictional grounds, and confirmed with the parties that a guardianship was in
place as was a court-structured plan. The court concluded that, as agreed to by the parties, the
jurisdictional grounds were met. At the conclusion of the proceeding, the trial court made more
specific findings regarding the jurisdictional ground of MCL 712A.2(b)(1) (abandonment). This
section provides:
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found
within the county:
(1) Whose parent or other person legally responsible for the care and
maintenance of the juvenile, 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. . . .
(B) “Without proper custody or guardianship” does not mean a
parent has placed the juvenile with another person who is legally
responsible for the care and maintenance of the juvenile and who is
able to and does provide the juvenile with proper care and
maintenance.
The court took note of respondent’s criminal record, the threats he made to petitioners, and his
lack of stable employment. However, the trial court improperly assumed jurisdiction pursuant to
MCL 712A.2(b)(1).
“The statute speaks in the present tense, and, therefore, the trial court must examine the
child’s situation at the time the petition was filed.” In re MU, 264 Mich. App. 270, 279; 690
NW2d 495 (2004). At the time the petition was filed, the minor was well cared for, happy, doing
well in school, and regularly attending medical and dental appointments. She was living in a
stable and appropriate environment with her guardians. There was no indication that she was
without proper custody or guardianship, that she was at a substantial risk for harm, or that her
guardians had abandoned her. Thus, the trial court erred in assuming jurisdiction under MCL
712A.2(b)(1).
While petitioners focus on the alternate jurisdictional grounds, and there is evidence in
the record of (b)(4) (failure to comply with court-structured plan) and (b)(5) (failure to support
2
Because termination occurred at the initial disposition, respondent’s challenge is not a collateral
attack. In re VanDalen, 293 Mich. App. 120, 133 n 2; 809 NW2d 412 (2011).
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and visit when has the ability to do so), the trial court did not make any findings regarding
allegations in the petition relevant to these grounds. Nor did the trial court make an overarching
finding that there was probable cause to believe all the allegations contained in the petition were
true. As our Supreme Court has clarified: “The valid exercise of the probate court’s statutory
jurisdiction is established by the contents of the petition after the probate judge or referee has
found probable cause to believe that the allegations contained within the petitions are true.” In
re Hatcher, 443 Mich. 426, 437; 505 NW2d 834 (1993).
II. CONCLUSION
Therefore, we vacate the trial court’s order assuming jurisdiction under MCR
712A.19b(1), and remand for the court’s findings regarding the alternate grounds of (b)(4)
(failure to comply with court-structured plan), and (5) (failure to support and visit when has the
ability to do so). We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ William C. Whitbeck
/s/ Michael J. Riordan
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