(dissenting). The issue presented is whether an indigent noncustodial parent has the right to appointed counsel on appeal as of right from a probate court order terminating parental rights pursuant to the stepparent adoption provision of the Michigan Adoption Code, MCL 710.51(6); MSA 27.3178(555.51X6). In its order granting leave to appeal, this Court directed the parties to brief
whether in a case involving the involuntary termination of parental rights under the Michigan Adoption Code an indigent parent has the right to appointed appellate counsel guaranteed by the state or the federal constitution and whether counsel in such a case may be appointed pursuant to JCR 6.3(A)(2)(b).[1]
A right to appointed counsel is not mentioned in the Adoption Code or in the Probate Court Rules applicable to adoption proceedings. The appointment of counsel provision in the Juvenile Court Rules, JCR 1969, 6.3(A)(2)(b), does not apply to Adoption Code proceedings. The Juvenile Court Rules apply to proceedings in the juvenile division of the probate court, JCR 1969, 1.2. 2 Stepparent adoption proceedings under the Adoption Code are governed by the Probate Court Rules, PCR 11.2.3
*773The Michigan Court Rules, effective March 1, 1985, have continued this distinction. MCR 5.750 states:
Except as modified by MCR 5.751-5.755 [the adoption subchapter], adoption proceedings are governed by the rules generally applicable to probate proceedings.
The "rules generally applicable to probate proceedings,” referred to in MCR 5.750, do not include the specific provisions applicable to proceedings in the juvenile division of the probate court. A separate subchapter, 5.900, covers proceedings in the juvenile division. **4
The mandatory and discretionary appointment of counsel provisions of JCR 1969, 6.3(A)(2)(b), are applicable only to hearings conducted under the Juvenile Code or the Juvenile Court Rules.5 Because of the absence of a statutory provision or applicable court rule authorizing the appointment of counsel in stepparent adoption proceedings, determination of the issue presented in this appeal depends on whether the appointment of appellate counsel is required by either the United States or Michigan Constitution.
The majority sidesteps this constitutional ques*774tion, stating: "[0]ur disposition of this case makes it unnecessary to decide whether the Michigan Constitution requires appointment of counsel in all stepparent adoption proceedings.”6
Instead, in reversing the decision below and ordering the appointment of appellate counsel, the majority analogizes terminations of parental rights pursuant to the stepparent adoption provision of the Adoption Code to terminations of parental rights under the Juvenile Code. The majority determines, however, that unlike in termination proceedings pursuant to the Juvenile Code, appointment of counsel in termination proceedings pursuant to the Adoption Code is discretionary not mandatory. In making this determination, the majority notes the policy concerns for procedural fairness to noncustodial parents and for prompt proceedings to promote the best interests of adop-tees in need of adoption, reflected in the Adoption Code and rules.
I am persuaded that the majority’s reasoning is tenuous and does not support its decision. First, the termination of parental rights pursuant to § 51(6) of the Adoption Code is both substantively and procedurally distinguishable from terminations of parental rights under the Juvenile Code.7 *775Second, the potential for conflict between the policy concerns for procedural fairness to the noncustodial parent and for prompt proceedings to promote the best interests of adoptees in need of adoption is diminished in stepparent adoption proceedings. ******8
*776Relying on the Court’s authority to interpret the court rules, the majority holds that an indigent noncustodial parent is entitled to assigned appellate counsel for an appeal as of right from a probate court order terminating parental rights under the Adoption Code in cases in which trial counsel was provided, absent "some change in circumstances.” In reaching this holding, the majority decides that the probate court has discretionary authority, "under the Probate Court Rules and the residuary authority of the Juvenile Court Rules,” to appoint trial counsel in cases under the stepparent adoption provisions of the Adoption Code. The majority’s effort to base its decision in this appeal on the Court’s authority to interpret the court rules is strained; the Court cannot interpret a court rule that does not exist. Cf. Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976) (opinion of Coleman, J.). The majority’s decision is, essentially, administrative rule-making in an opinion. Whether the Adoption Code or the court rules applicable to proceedings thereunder should be amended is not the issue.
Because no right to appointed appellate counsel is granted by statute or applicable court rule, the constitutional issue is controlling in this case. Therefore, I respectfully dissent.
Ryan and Brickley, JJ., concurred with Riley, J.In re Sanchez, 419 Mich 934 (1984). Briefs were submitted by appellant Sanchez, and amicus curiae University of Michigan Law School Child Advocacy Law Clinic. No brief was submitted by appellee.
JCR 1969, 1.2 reads:
".2 Scope. The Procedure in the Juvenile Division of the Probate Court shall be governed by these rules.” See also MCR 5.901(A).
PCR 11.2 reads:
"These rules govern the practice in the probate courts in all *773proceedings other than proceedings in the juvenile division of the probate court.”
See also PCR 750; MCR 5.750.
See MCR 5.001, and the note thereto. See also MCR 5.901(A).
The phrase "these rules” in the discretionary appointment of counsel provision of JCR 1969, 6.3(A)(2)(b), can only be interpreted as referring to the Juvenile Court Rules.
Amicus curiae University of Michigan Law School Child Advocacy Law Clinic, correctly asserts that JCR 6.3(A)(2)(b) cannot serve as authority for the appointment of trial and appellate counsel in stepparent adoption proceedings, and that "[tjhfe authority for appointment of trial and appellate counsel to indigent parents in stepparent adoption proceedings must come directly from . . . the United States and Michigan Constitutions.”
Although the majority does not directly decide the constitutional issue, it must be noted that its decision in this case — that appointment of counsel is discretionary and thus not required in all cases— can only be supported, constitutionally, if the Michigan Constitution does not require appointment of counsel in all stepparent adoption proceedings. While the court rules may be interpreted as affording rights that are not required by the constitution, they may not be interpreted as denying rights that are constitutionally required.
There are fundamental differences in nature between proceedings brought by the state to terminate parental rights under the Juvenile Code and proceedings initiated by a stepparent (a private individual), whose spouse is the custodial parent of the prospective adoptee, under the Adoption Code. Proceedings brought by the state in the juvenile division of the probate court, for example, must first meet the jurisdictional requirements set forth in MCL 712A.2(b); MSA *77527.3178(598.2)(b). The termination of parental rights under the Juvenile Code may not be considered until the court’s jurisdiction has been established. See In re Taurus F, 415 Mich 512; 330 NW2d 33 (1982); In re Baby X, 97 Mich App 111; 293 NW2d 736 (1980); In re Griffin, 88 Mich App 184; 277 NW2d 179 (1979). With regard to proceedings involving the termination of parental rights, the juvenile division of the probate court has jurisdiction in proceedings concerning any child under seventeen years of age found within the county
"(1) Whose parent or other person legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, education as provided 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; [or]
"(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 such child to live in . . . .” MCL 712A.2(b); MSA 27.3178(598.2)(b).
Furthermore, the substantive provisions applicable to the disposi-tional phase of proceedings to terminate parental rights under the Juvenile Code differ, both in terms of the required findings and in nature, from terminations in stepparent adoption proceedings. See MCL 712A.19a(b); MSA 27.3178(598.19a)(b). Cf. MCL 710.51(6); MSA 27.3178(555.51)(6).
Unlike in other adoption proceedings, when the petitioner for adoption is married to the parent having legal custody of the child, the child is not a ward of the court before, nor after, the termination of the rights of the noncustodial parent. MCL 710.51(3); MSA 27.3178(555.51)(3). The policy concern for prompt proceedings to assure that adoptees are free for adoptive placement, therefore, is not implicated in stepparent adoption proceedings.
I agree that the best interests of an adoptee may conflict with the interests of a noncustodial parent in stepparent adoption proceedings. But, this potential for conflict is not any greater than in terminations pursuant to the Juvenile Code.
It may be that public policy favors a discretionary appointment-of-counsel rule for stepparent adoption proceedings, but not for the reasons asserted by the majority. More compelling reasons supporting a discretionary appointment-of-counsel rule, as opposed to the mandatory rule in Juvenile Code termination proceedings, concern the more private nature of stepparent adoption proceedings under the Adoption Code. In any event, the appropriate method by which to promulgate *776such a rule is not through the adjudication of this particular legal dispute by asserting the power of judicial review.