Department of Social Services v. Smith

Levin, J.

(dissenting). We agree with the majority that § 2(b)1 does not provide for a finding of "culpable” neglect. It does, however,—absent a finding of "cruelty, drunkenness, criminality or depravity”—require a finding of "neglect.”2 A finding that the home or environment "is an unfit place for the child to live in” does not suffice to confer jurisdiction unless the home or environment is unfit "by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of the parent.”3

We would vacate the decision of the Court of *43Appeals and remand the cause to the Court of Appeals for further proceedings for the following reasons:

(1) Although there is no statutory requirement of "culpability” there is a statutory requirement of "neglect” under both subsection (1) and subsection (2) of § 2(b).4

(2) Although the jurisdictional allegation in the amended petition was grounded in § 2(b)(1), the judge found neglect on the basis of § 2(b)(2).

(3) There was no evidence that either of Lorraine Smith’s two children, who had been in foster care under the supervision of Protective Services for over six weeks when the amended petition was filed, were in fact neglected.

(4) While the judge found that jurisdiction was established under § 2(b)(2), he did not expressly find neglect or state how the children had been neglected or that Lorraine Smith’s physical limitations and multiple residences had resulted in neglect of the children.5

i

The amended petition was grounded on § 2(b)(1) and not § 2(b)(2).6_

*44Lorraine Smith admitted the allegations in the amended petition that (1) she had physical limitations which impaired her ability to provide proper or direct care to her children, Jeffrey Jacobs7 and Forest Jacobs,8 "to wit: complications from brain surgery which took place on or about April 19, 1986, to relieve a right temporal lobe hematoma;” (2) in the seven weeks between her return to Sault Ste. Marie in early October, 1986, and the filing of the amended petition in late November, 1986, she had lived in no less than seven residences including her parents’ home, a domestic violence shelter, a Hiawathaland Home, and in at least two adult foster home placements; (3) her children had been placed in foster care since October 10, 1986, one week after she returned to Sault Ste. Marie.

The amended petition alleged and Lorraine Smith "admitted” that she and her husband, Scott Jacobs, had made regular visits and contact with their children.

Lorraine Smith denied that she was currently without proper residence to establish adequate care for her children, and the probate judge said that testimony would be taken on that issue only.

Lorraine Smith testified at the December 3, 1986, adjudication hearing that she had lived for *45the two preceding weeks in the three bedroom home of her cousin, Alvin Menard, on Superior Street. She planned on renting a trailer at 4 o’clock in the afternoon on the day of the hearing from Howard Talentino at 508 West 24th Street and said that she had saved sufficient money to do so. She conceded that she could not care for her children at her cousin’s home, but said she had made arrangements with Evelyn Sasuchi9 to stay with her at the trailer twenty-four hours a day and that she could take care of the children with Evelyn Sasuchi’s assistance. Lorraine Smith said she needed assistance in changing diapers and holding the children because she had limited use of her left hand. Evelyn Sasuchi would be joining Lorraine Smith as soon as she had possession of the trailer.

There were no other witnesses and no other evidence. Our review is necessarily limited to the record made at the adjudication hearing. We may not properly consider anything else.

After both sides rested, the probate judge proceeded, without inviting argument by counsel, to announce that, on the basis of Lorraine Smith’s admissions of allegations in the petition and his finding that she "presently, at this point in time is without a proper residence along with her inability to care for her children,” the court would assume jurisdiction under § 2(b)(2), the language of which he then read into the record.

The judge continued that he was satisfied that he had jurisdiction by clear and convincing evidence and even "beyond a reasonable doubt that there is jurisdiction in this matter.”

When the judge finished announcing his decision, Lorraine Smith’s lawyer stated for the record *46his position "that the actions that Lorraine Smith has taken do not constitute neglect. Her physical incapacity does not constitute neglect.” He added that it was Lorraine Smith who "contacted the Department of Social Services asking for assistance in the placement of her children.”

The judge responded stating that the decision of the Court of Appeals, In re McDuel, 142 Mich App 479; 369 NW2d 912 (1985), relied on by Lorraine Smith’s lawyer, concerned termination of parental rights but did not have application at the adjudication phase for the purposes of "determining jurisdiction under neglect as defined” in § 2(b)(2).

ii

All the allegations in the amended petition concerned Lorraine Smith. None concerned her children.

There was no evidence concerning the relationship between Lorraine Smith’s physical limitations and multiple residences and the claim of neglect respecting the care of her children who had been in foster care under the supervision of Protective Services for over six weeks when the amended petition was filed. There was no evidence that Lorraine Smith’s physical limitations, that "impaired” her ability to provide "proper or direct care” to the children, or peripatetic residences, had resulted in neglect of the children, or that the children had been thereby affected in some manner that might be thought to amount to neglect. There was no evidence that the children were found in a state of neglect.

To be sure, Lorraine Smith had admitted that her physical affliction "impaired” her ability to provide proper or direct care for her children. It appears that she was without adequate shelter *47arrangements for her children in early October, 1986. Recognizing their plight, she sought the assistance of Protective Services who placed the children in foster care. The majority "commend[s]” her for coming forward.10 That was not neglect.

Except for the conclusory statement that "at this point in time” Lorraine Smith was "without proper residence,”11 the judge did not indicate why he had concluded — if he had so concluded — that the trailer Lorraine Smith had planned to rent would not be a proper residence.

Nor did the judge indicate on what basis he concluded — if he had so concluded — that Lorraine Smith would be unable, with the assistance of Evelyn Sasuchi, to diaper, hold and care for her children.

The judge did not explain the relationship between Lorraine Smith’s physical limitations and multiple residences and his conclusion that her children were within the jurisdiction of the court, i.e., neglected. Nor was there any finding that the children had in fact been neglected, or, to repeat, evidence that would have supported such a finding. The judge found only that Lorraine Smith had a physical impairment and did not at the time have a proper residence.

The need for specificity in allegation, evidentiary support and fact finding is demonstrated by the judge’s non sequitur conclusion that because Lorraine Smith had physical impairments and was without proper residence her children were within the jurisdiction of the court, i.e., neglected._

*48Ill

The majority states that the clause, "when able to do so,” in § 2(b)(1) — the only subsection in respect to which there are specific factual allegations in the amended petition — "created a 'built-in’ culpability requirement,” and then concludes, as to subsection 2(b)(2), that under that subsection jurisdiction may be conferred "if the home is in fact an unfit place for the child to live.” (Emphasis in original.) It is said that under this subsection the inquiry is "into the objective state of being neglected rather than an examination of the individual causes or reasons for the neglect,” and that neglect is "the condition of being neglected.” Ante, pp 33-34. There was no evidence in the instant case that the "condition” of the children was one of neglect or that they were found in a state of neglect.

The majority refers12 to a dictionary definition of "neglect,” "to give little attention or respect to; Disregard; to leave undone or unattended especially] through carelessness.” So defined, there was no neglect. Lorraine Smith did not give little attention or respect to, or disregard her children, or leave them unattended.

Another dictionary similarly states that neglect means, among other things, "to pay no attention or too little attention to; disregard or slight”; "to be remiss in the care or treatment of; to neglect one’s family; to neglect one’s appearance.”13 It also states, paralleling somewhat a statement in the majority opinion14 that it also means "the fact or state of being neglected; a beauty marred by neglect^_

*49Conceding that the term "neglect” may include a child who has been subjected to neglect, the question remains, what is neglect? To say in effect that it means a child whose home is in fact an unfit place without regard to whether there was neglect is to read the statutory standard out of the statute.

While the term "neglect” does not require a finding of culpability, it does require a finding of inattention, disregard, remiss, omission, through indifference or carelessness, a mischoice. Neglect comes from the Latin "legere,” "to gather (esp fruit), hence to collect, to assemble, hence to choose,” and thus, in the negative, "not to gather or assemble, hence to disdain, to neglect.”15

There was no evidence that Lorraine Smith made a choice to use whatever funds she had to purchase personal luxuries rather than to provide for her children. There was no indication that she did not do whatever she was able to do for her children. It appears that their needs were in fact attended to by Lorraine Smith, private agencies, and Protective Services.

There was no evidence or finding that the children were in a state of neglect. There was no evidence that at the time of the hearing the children were or had been without proper care. The evidence was to the effect that when Lorraine Smith found she could not adequately care for the children, she sought assistance from Protective Services rather than permit the children to be in a state of neglect. At the time of the hearing, they were in foster care and presumably had not been neglected.

There was no evidence that would have justified the judge in concluding that the children would be *50neglected if they were to have moved into the trailer with their mother and Evelyn Sasuchi. Accordingly, even under the majority’s construction of "neglect,” there was no evidence, let alone clear and convincing evidence, that the children were neglected or that their home or environment was an unfit place for them to live.

iv

The majority finds support for its construction of the statute in a 1988 amendment providing for termination of parental rights "without regard to intent,”16 stating:

If culpability or blameworthiness is not required for final disposition, it certainly would not be required at the initial adjudicative stage, where the court merely decides whether or not to assume jurisdiction over the affected children.[17]

The 1988 amendments, read as a whole, indicate that the Legislature intended a high threshold before there is judicial intervention or children are taken, even temporarily, from the custody of a parent.18 It appears that the Legislature intended *52by the 1988 amendments that there be a higher standard under § 2(b) than under former § 19a(e).19 To read the amendment of § 19a, eliminating the need for a finding of intent at the termination stage, as also lowering the standard for judicial intervention under § 2(b) is, with respect, a misreading of the 1988 amendments.20

Although the Legislature changed § 19a(e), it did not eliminate the limitations set forth in § 2(b) — it did not excise either "when able to do so, neglects or refuses to provide proper or necessary support” (§ 2[b][l]) or "by reason of neglect ... is an unfit place.” (Section 2[b][2]).

The probate court is a statutory court of limited jurisdiction, and not a court of general jurisdiction. This court is obliged to give meaning and content to the statutory limitations in § 2(b) on the probate court’s authority. Especially now that the Legislature has declared that the probate court has the authority to terminate parental rights "without regard to intent,” the initial decision that the probate court has jurisdiction becomes even more critical. The initial threshold that there be neglect cannot properly be ignored.

Lorraine Smith had a temporary physical handicap. She had only recently arrived in Michigan. She was separated from her husband. She turned to private agencies and then to Protective Services. The statute does not require that when Protective Services provides assistance that it seek probate court jurisdiction of the children and supervision of the parents._

*53Judicial intervention may be required where the parents are resistant, if they decline necessary services. In the instant case Lorraine Smith sought assistance. There was no need for judicial intervention.

A parent who is physically handicapped may need the assistance of a spouse, parent, grandparent, friend, domestic help, day worker, baby-sitter, in caring for a child. Lorraine Smith’s physical handicap was not neglect. There was no suggestion that she had the financial resources to provide more adequate shelter but nevertheless failed to do so.

There was no basis in the record for a finding that she was not a caring, concerned mother who wanted to provide for her children. Her action in taking her children to Protective Services for shelter was not neglect, nor were the children in an unfit home unless the home in which Protective Services placed them was an unfit home.

The probate court had no authority to assume jurisdiction of Lorraine Smith’s children and thereby empower itself at some future time to terminate her parental rights "without regard to intent,” simply because — rather than neglect her children — she turned to Protective Services for assistance in caring for her children.

v

If Lorraine Smith had become ill, lost the support of her spouse and her job, and was evicted for nonpayment of rent — a misfortune that might befall any person — and had then entrusted the care of her children to a relative, friend, or a private agency while she recovered from her illness and recouped her financial resources, there would surely have been no basis for a finding of neglect *54as long as the relative, friend, or agency cared properly for the children. A different result is not warranted simply because Lorraine Smith entrusted the care of her children to Protective Services.21

A probate court may not draw an inference of neglect on the basis that a parent resorted to Protective Services for assistance or on the basis that it provided assistance. If such an inference were warranted, then a parent who accepts assistance from the Department of Social Services— whether it be money for shelter, food, or medical care or takes some other form — for the care of his children is in jeopardy of a finding by a probate court that his children are neglected.

VI

Contrary to a statement in the majority opinion,22 the record does not indicate that any effort, let alone a "substantial” effort, was expended by "the state” "to improve the home situation and, if at all possible, to return the child to the custody of the parents.” (Emphasis added.) Lorraine Smith turned to Protective Services to provide shelter for her children. Because of her handicap, she also required assistance in changing diapers and holding the children. She had met an eighteen-year-old woman who was willing to assist her, and Lorraine Smith said she was making arrange*55ments to rent a trailer. If Protective Services had desired to improve her "home situation” and return the custody of the children to her, rather than to her husband and his mother who a Protective Service worker may have thought to be a more appropriate placement, it would have assisted her in renting the trailer or some such economical shelter and in obtaining the services of such a person to assist her in diapering and holding her children.

The placement plan23 was neither "fair” nor "workable.”24 It was a plan to return the children to her husband and his mother which was not workable — they were not prepared to assume that responsibility — and it was not fair to Lorraine Smith who went to Protective Services for assistance in caring for her children and not to transfer custody of her children to someone else.

Contrary to a statement in the majority opinion,25 there need not be a finding of neglect, culpable or otherwise, " 'before the state’s resources may be employed.’ ” There is nothing in the statute that requires judicial intervention before Protective Services can provide assistance. Indeed, the statute contemplates that the state’s resources shall be employed to provide necessary assistance, and that judicial intervention shall be deferred unless there is neglect and providing services, including in-home services, will not rectify the situation so that judicial intervention is then required.

We would remand this case to the Court of Appeals._

*56Cavanagh, J., concurred with Levin, J. Boyle, J., took no part in the decision of this case.

At the time this action arose, § 2(b) provided:

Except as otherwise provided in this section, the juvenile division of the probate court shall have:
* * *
(b) Jurisdiction in proceedings concerning any child under 17 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 as required by law, medical, surgical, or other care necessary for his or her health or morals, or who is deprived of emotional well-being, or who is abandoned by his or her parents, guardian, or other custodian, or who is otherwise 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. [MCL 712A.2; MSA 27.3178(598.2).]

Id. See subsection (2).

Id.

See n 1.

The judge said only:

Further, the Court finds that Lorraine Smith presently, at this point in time is without a proper residence along with her inability to care for her children. [Emphasis supplied.]

The amended petition alleged that Jeffrey and Forest Jacobs "come within the provisions of ... § 2(b)(1), (2)” on the following basis:

Allegations:
Whose parents or other persons legally responsible for the care and maintenance of such children, when able to do so, *44neglects to provide proper or necessary support or other care necessary for his or her health or well-being or who is abandoned by his or her parents, guardian, or other custodian, or is otherwise without proper custody or guardianship to wit: [there then followed the specific factual allegations regarding Lorraine Smith’s physical impairment, residences and other matters].

Although the amended petition stated that the children came within the provisions of both subsection (1) and subsection (2) of § 2(b), the foregoing is almost word for word the substance of subsection (1) thereby limiting the specific factual allegations thereafter following to a claim arising under § 2(b)(1). See n 1 for text of § 2(b).

Date of birth June 4, 1984.

Date of birth March 27, 1986.

She had met Evelyn, who was eighteen years old, at the domestic violence shelter on October 6.

Ante, p 41.

The judge said:

Further, the Court finds that Lorraine Smith presently, at this point in time is without a proper residence along with her inability to care for her children. [Emphasis supplied.]

Ante, p 34.

Random House Dictionary of the English Language: Unabridged Edition, 2d ed.

Id.

Partridge, Origins (New York: Macmillan Co, 1958), pp 345-346.

There is no need to review what the Court of Appeals has said in construing MCL 712A.19a(e); MSA 27.3178(598.19a)(e) in order to decide this case which arises under § 2(b).

Ante, p 37.

The statute as amended provides in part:

If a petition [alleging that a child comes within the provisions of § 2(b)] is authorized, the court may order placement of the child with someone other than a parent if the court after hearing determines that both of the following conditions exist:
(a) Custody of the child with a parent, guardian, or custodian presents a substantial risk of harm to the child’s life, physical health, or mental well-being and no provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from such risk.
*51(b) Conditions of custody of the child away from a parent, guardian, or custodian are adequate to safeguard the child’s health and welfare. [MCL 712A.13(a)(4); MSA 27.3178(598.13a)(4). Emphasis added.]
(1) If, in a proceeding under section 2(b) of this chapter, an agency advises the court against placing a child in the custody of the child’s parent, guardian, or custodian, the agency shall report in writing to the court what efforts were made to prevent the child’s removal from his or her home or the efforts made to rectify the conditions that caused the child’s removal from his or her home. The report shall include all of the following:
(a) If services were provided to the child and his or her parent, guardian, or custodian, the services, including in-home services, that were provided.
(b) If services were not provided to the child and his or her parent, guardian, or custodian, the reasons why services were not provided.
(c) Likely harm to the child if the child were to be separated from his or her parent, guardian, or custodian.
(d) Likely harm to the child if the child were to be returned to his or her parent, guardian, or custodian.
(2) Before the court enters an order of disposition in a proceeding under section 2(b) of this chapter, the agency shall prepare a case service plan which shall be available to the court and all the parties to the proceeding.
(3) The case service plan shall provide for placing the child in the most family-like setting available and in as close proximity to the child’s parents’ home as is consistent with the best interests and special needs of the child. The case service plan shall include, but not be limited to, the following:
(c) Efforts to be made by the agency to return the child to his or her home.
(d) Schedule of services to be provided to the parent, child, and if the child is to be placed in foster care, the foster parent, to facilitate the child’s return to his or her home or to facilitate the permanent placement of the child.
(4) The court shall consider the case service plan and the evidence offered bearing on disposition before the court enters an order of disposition. The order of disposition shall state whether reasonable efforts have been made to prevent the child’s removal from his or her home or to rectify the conditions that caused the child’s removal from his or her home. The court may order compliance with all or any part of the case service plan as the court considers necessary. [MCL 712A.18Í; MSA 27.3178(598.180. Emphasis added.]

Now MCL 712A.19a; MSA 27.3178(598.19a).

Under the 1988 amendments, foster care is to be a last resort. Because Protective Services cannot be relied on to provide necessary support services as a matter of course, the probate court must require that it demonstrate that it has provided necessary services, including in-home services, and that nevertheless the conditions requiring removal of the child from the parental home cannot be rectified.

It appears that Lorraine Smith was separated from her husband. The record at the adjudication hearing does not indicate whether she was ever employed or the sources of financial support for her and her children.

Some parents do not work. Spouses, family, friends, private agencies, and federal and state general welfare programs provide funds for their support and the support of their children. Parental failure to provide for their own support and the support of their children does not justify a finding that the parents neglected their children.

Ante, p 38.

This plan was presented after the probate court assumed jurisdiction, and hence has no materiality on the issue whether the probate court correctly decided to assume jurisdiction.

Ante, p 39.

Ante, p 39.