In Re Ernst

344 N.W.2d 39, 130 Mich. App. 657

• Court: Michigan Court of Appeals
• Decided: November 22, 1983
• Docket: Docket 68562
• Status: Published

Opinions

Per Curiam.

Appellant, mother of the subject minor, appeals as of right from the probate court’s order terminating her parental rights and placing the minor in the custody of appellant’s mother, the minor’s grandmother. On appeal, she raises four issues, none of which require reversal.

First, appellant urges that the probate court erred in permitting a noncertified court reporter to tape-record the proceedings at five of the eight hearings held below. We find no merit in this contention. The proceedings were recorded in compliance with JCR 1969, 8.4. There has been no allegation of any inaccuracy in the transcripts, let alone any showing of actual prejudice which might have resulted from the use of a noncertified, as opposed to a certified, reporter. Absent any demonstrable prejudice, we find no occasion to reverse the lower court on this issue. See Moskalik v Dunn, 392 Mich 583, 588; 221 NW2d 313 (1974), where the Court found reversal inappropriate absent some showing that violation of a court rule may have caused prejudice.

Appellant next urges that the original neglect petition was void on its face because it indicated that the minor had been placed in the custody of a relative (i.e., appellee, the minor’s grandmother) rather than having been abandoned or abused. This argument overlooks the fact that a neglect petition need only conform to the requirements of MCL 712A.11; MSA 27.3178(598.11) (that the petition show the name, birth date and residence of the minor, her parents, those having custody, and nearest relatives). This statute requires no initial allegation of abandonment or abuse. The petition filed by appellee did meet all of the requirements of the above-cited statute, setting forth the name, birth date and residence of the subject minor, the parents (to the extent that the latter’s residences were known), nearest relatives, and those having custody (i.e., appellee). We conclude that the initial neglect petition met the statutory requirements and hence was not void on its face.

The third argument raised by appellant presents the closest issue on appeal. Appellant urges that the probate court erroneously assumed jurisdiction, because the court initially took the case based upon the father’s negligence, without determining that appellant mother had also neglected the child. In support of her argument, appellant cites cases in which a parent has arranged with a relative to place her child in the custody of that relative, e.g., In re Weldon, 397 Mich 225; 244 NW2d 827 (1976); In the Matter of Curry, 113 Mich App 821; 318 NW2d 567 (1982); In the Matter of Ward, 104 Mich App 354; 304 NW2d 844 (1981); In the Matter of Taurus F, 415 Mich 512; 330 NW2d 33 (1982). We find the foregoing cases distinguishable and believe that appellant’s reliance upon them is misplaced.

In each of the foregoing cases, the parent responsible for the subject child made an affirmative arrangement to place that child in the custody of a relative, usually for a finite period of time. For example, in Taurus F, supra, the mother arranged to leave the child with her sister during the period of the mother’s incarceration. Three justices in that case found court intervention inappropriate given that the mother had arranged to entrust her child with the relative. The other three justices in Taurus F, supra, took the position that the lower court had properly taken jurisdiction because the mother had not specified the details of her arrangement to entrust the child to her sister. The crucial criterion for all of the justices was the existence of a verifiable, specific agreement to entrust the subject child to another’s care. Accord, Curry, supra, where the mother was also incarcerated and arranged to entrust her child to its grandparents for the anticipated period of incarceration. See also Ward, supra, where the mother went beyond merely leaving the child in her relatives’ care; in that case, the mother regularly provided support money for the child and eventually reclaimed custody of the child.

The present case is somewhat different. Although appellant did take the step of leaving the subject child with a relative (the child’s grandmother, appellee), she did not make any arrangement which indicated either (1) that the grandparent’s custody would be temporary, as opposed to indefinite, or (2) that appellant would take ultimate responsibility for the expenses of the child’s care. More important, appellant failed to take the steps necessary to ensure that she would remain in contact with her child or with the relative to whom the child had been entrusted. Unlike the mothers in the above-cited cases, there was no effort to regularly correspond with the grandparent who was taking care of the child, let alone any arrangement to forward funds to provide for the child’s care. Appellant’s complete failure to remain in contact with, or accessible to, the custodial relative, presents the most significant distinction between the present case and those cited above. Given this distinction, we cannot agree with appellant’s argument that the probate court erred in taking jurisdiction of the present case in any way analogous to the probate court’s error in the cases cited above.

Given the foregoing, we conclude that the probate court acted properly in taking jurisdiction of the cases, even though it initially stated that it had done so on the basis of the neglect of the subject child’s father, rather than that of the appellant. The court’s determination that appellant was unable to provide proper care, together with its finding that appellant failed to make any specific arrangements for the care of her child, support the conclusion that the court took jurisdiction of the case based upon the neglect of both parents, not just that of the father. In concluding our review of this issue, we note that no demonstrable prejudice resulted from the court’s initial failure to specify appellant’s own neglect as a basis for assuming jurisdiction.

The fourth and final argument raised by appellant is that the probate court erred in failing to consider the "best interests of the child” factors set forth at MCL 722.23; MSA 25.312(3). Although some panels of this Court have suggested that the statutory "best interest” standards must be applied in probate court termination proceedings, In the Matter of Baby X, 97 Mich App 111; 293 NW2d 736 (1980); In re Franzel, 24 Mich App 371; 180 NW2d 375 (1970), we adopt the alternative viewpoint set forth in In the Matter of Atkins, 112 Mich App 528, 541; 316 NW2d 477 (1982). In Atkins, the Court held that the "best interest” standard need not apply, but that the proper standard instead is "whether the parent has been shown by clear and convincing evidence to be unfit and unable to become fit within a reasonable period of time”, MCL 712A.19a; MSA 27.3178 (598a); Atkins, supra, p 541, fn 7. The probate court’s decision was the proper result of applying the latter standard. Since the court based its decision upon its findings concerning appellant’s fitness, as required by the foregoing statute, its failure to specifically weigh the "best interest” standards does not mandate reversal. See Atkins, supra, pp 541-542.

Affirmed.