Opinion
Docket Nos. 66483, 68860.
Decided January 17, 1984.
Walz, Jordan Stanton, P.C. (by John A. Braden), for Kalvan Smith.
David L. Porteous, P.C. (by James R. White), for Paul Smith.
Paul B. Newman, for Bridgette Smith.
The present appeals arise from the attempt of appellant, Bridgette Smith, to acquire legal custody of her stepson, Kalvan J.R. Smith. On March 13, 1979, Kalvan's natural parents, Paul Robert Smith and Theresa Elaine Smith, were divorced in Mecosta County Circuit Court. Custody of Kalvan was awarded to Paul. Appellant began living with Paul and Kalvan in January, 1980, and appellant and Paul were married on February 14, 1982. On approximately February 24, 1982, Paul was arrested and charged with criminal sexual conduct involving appellant's natural daughter from a previous marriage. Paul pled guilty on April 22, 1982, and was sentenced to from 3 to 15 years imprisonment.
On April 2, 1982, appellant and Paul petitioned the Mecosta County Probate Court to adopt Kalvan. The petition was thereafter rejected because of Paul's conviction for criminal sexual conduct.
On June 10, 1982, a petition for termination of the parental rights of Paul and Theresa was filed pursuant to MCL 712A.2(b), subds (1), (2); MSA 27.3178(598.2)(b), subds (1), (2). Since appellant had physical custody of Kalvan after Paul's imprisonment, she was ordered to appear and bring Kalvan to the adjudication hearing on the petition scheduled for August 19, 1982. Appellant's attorney filed an appearance on her behalf in the probate proceedings and requested postponement of the adjudication hearing on the basis that the probate court only had jurisdiction to enter temporary orders regarding Kalvan since the circuit court had continuing jurisdiction over the child due to the divorce proceedings.
On August 6, 1982, the prosecutor obtained an ex parte order from the circuit court waiving jurisdiction over Kalvan. The order was filed with the probate court on August 10, 1982, and appellant's attorney was informed of the order by letter.
On August 16, 1982, appellant filed two motions in the circuit court: a motion to intervene and amend the judgment of divorce and a motion to set aside the order waiving jurisdiction. These motions were heard on December 9, 1982, and both were denied by the circuit judge.
The parental rights termination hearing was held on August 19, 1982. Appellant's request for an adjournment, due to her attorney's inability to be present because of a trial in a previously scheduled matter, was denied, the probate judge finding that appellant was not a party to the proceeding and had no standing to be heard. After a hearing, the judge ordered that the parental rights of Paul and Theresa be terminated and that Kalvan be made a permanent ward of the court.
Appellant presently appeals from the probate court's order terminating the rights of Paul and Theresa and from the circuit court's orders denying her motion to intervene and her motion to set aside the order waiving jurisdiction. The matters were consolidated on appeal.
The first issue to be resolved is whether appellant has standing to appeal either the circuit court orders or the probate court order terminating the parental rights of Paul and Theresa Smith. GCR 1963, 209.1 provides for intervention of right:
"(1) when a statute of this state or a court rule confers an unconditional right to intervene; or
"(2) by stipulation of all the parties; or
"(3) upon timely application when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant may be bound by a judgment in the action; or
"(4) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or officer thereof."
We believe that subsection (3) applies to the present case. Appellant's motion to intervene was timely, as it was filed on August 16, 1982, prior to the August 19, 1982, date set for the hearing on the termination petition in probate court. Appellant was informed of the impending court proceeding on July 26, 1982, only three weeks before her motion to intervene in the prior circuit court proceeding was filed.
In order for subsection (3) to apply, appellant must also show that the representation of her interest by existing parties is or may be inadequate, and that she may be bound by a judgment in the action. D'Agostini v Roseville, 396 Mich. 185; 240 N.W.2d 252 (1976). Although the facts in this case are atypical and we have located no other cases discussing this issue under similar facts, we believe that appellant has shown that the representation of her interest by the existing parties may be inadequate and that she may be bound by a judgment. Although appellant's husband, the child's natural father, expressed a desire during a portion of the proceedings to have appellant continue physical custody of Kalvan, his representation of her position was minimal. Although appellant had no legally recognizable relationship to Kalvan, she did have an interest in the proceedings because she had physical custody of him. She was bound by the circuit court and probate court orders because her relationship with the child was terminated. The term "bound" in the court rule does not require that the appellant be bound in the res judicata sense. D'Agostini, supra, p 190. Although we find it to be a close question, we believe that the circuit court erred by denying appellant's motion to intervene.
The basis for the circuit court's order must be further examined, however. The motion to intervene was denied because the circuit court judge had already waived jurisdiction of the child to the probate court. In fact, the motion was not heard until after the probate court had terminated the parental rights of Paul and Theresa Smith.
A circuit court having jurisdiction pursuant to divorce proceedings may waive its jurisdiction over a minor child in accordance with MCL 552.16; MSA 25.96:
"Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them, shall remain: Provided, That the court is hereby authorized to waive jurisdiction of any minor children under the age of 17 in the decree of divorce, or after the decree of divorce, to the probate court of the county to be governed by the laws of this state with respect to dependent and neglected children under the age of 17 years".
Jurisdiction over minor "dependent and neglected children" may also be waived by the circuit court during the pendency of divorce proceedings. MCL 552.15; MSA 25.95. In order to effectively waive jurisdiction to a probate court, this Court has held that the circuit court must make a preliminary finding that the child is dependent and neglected. Moses v Oakland Circuit Judge, 14 Mich. App. 265; 165 N.W.2d 497 (1968); Foy v Foy, 22 Mich. App. 514; 177 N.W.2d 681 (1970); Krajewski v Krajewski, 125 Mich. App. 407; 335 N.W.2d 923 (1983). An invalid proceeding in a circuit court regarding waiver of jurisdiction to the probate court is a jurisdictional defect which renders the circuit court's order void and open to attack at any time. Jernigan v Jernigan, 344 Mich. 511; 73 N.W.2d 910 (1955).
The circuit court judge here entered an ex parte order waiving jurisdiction to the probate court. Appellant received no notice of this order, even though her attorney had filed an appearance in the probate proceeding. No hearing was held to determine whether Kalvan was a "dependent and neglected child" under the statute and the court's order makes no finding in that regard. We therefore hold that the circuit court's order waiving jurisdiction to the probate court was void.
Since a probate court has only the jurisdiction to issue "temporary orders" which are "deemed advisable or necessary for the protection of such child" when another court has continuing jurisdiction, the probate court's order permanently terminating the parental rights of Paul and Theresa Smith was invalid. MCL 712A.2(b); MSA 27.3178(598.2)(b); Rozelle v Dora, 103 Mich. App. 607; 303 N.W.2d 43 (1981).
The order of the circuit court waiving jurisdiction is reversed and the case is remanded to that court. A hearing shall forthwith be held to determine if jurisdiction should be waived to the probate court. The probate court order terminating the parental rights of the child's natural parents is also reversed, that court being without jurisdiction to enter such order.
If the circuit court determines, upon a prima facie showing of neglect, that jurisdiction may properly be waived to the probate court, the probate court must assume jurisdiction under some portion of MCL 712A.2; MSA 27.3178(598.2). In the event that jurisdiction is waived by the circuit court, we direct the probate court to consider the application of our decision in In re Carlene Ward, 104 Mich. App. 354; 304 N.W.2d 844 (1981), and the Supreme Court's recent decision in In re Taurus F., 415 Mich. 512; 330 N.W.2d 33 (1982).
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. Costs to appellant.