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In Re Kyle

Court: Michigan Supreme Court
Date filed: 2008-04-04
Citations: 746 N.W.2d 302
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Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  April 4, 2008                                                                        Clifford W. Taylor,
                                                                                               Chief Justice

  135465                                                                             Michael F. Cavanagh
                                                                                     Elizabeth A. Weaver
                                                                                            Marilyn Kelly
                                                                                       Maura D. Corrigan
  In re WILLIAM KYLE, Minor.                                                         Robert P. Young, Jr.
                                                                                     Stephen J. Markman,
  _________________________________________/                                                        Justices

  DEPARTMENT OF HUMAN SERVICES,

          Petitioner-Appellee, 

  v        	                                               SC: 135465     

                                                           COA: 271320      

                                                           Wayne CC Family Div:

                                                           06-454281 

  ROBIN H. KYLE and LISA KYLE, 

            Respondents-Appellants. 


  _________________________________________/

          On the order of the Court, the application for leave to appeal the October 2, 2007
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
  lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and
  REMAND this case to the Wayne Circuit Court – Family Division for a trial on the
  petition pursuant to MCR 3.972 and MCL 712A.17. The circuit court is permitted to
  conduct a “preliminary inquiry” off the record “[w]hen a petition is not accompanied by a
  request for placement of the child and the child is not in temporary custody.” MCR
  3.962(A). The permissible actions following a preliminary inquiry are limited to granting
  or denying authorization to file the petition, or referring the matter to “alternative
  services.” See MCR 3.962(B)(1)-(3). Granting permission to file the petition is merely a
  determination that the petition is sufficient to be “delivered to, and accepted by, the clerk
  of the court.” See MCR 3.903(A)(20) (defining “Petition authorized to be filed”) and
  MCR 3.903(A)(9) (defining when a petition is deemed “filed”). Referring the matter to
  “alternative services” does not include granting the only relief sought by the petition.
  Although the Court of Appeals was aware that a medical examination “was the sole focus
  of the petition and the only demand sought by petitioner,” it concluded that the circuit
  court was in “compliance” with MCR 3.962(B)(2) and (3) when it ordered the medical
  examination without a trial on the petition. The Court of Appeals erred in concluding
  that the preliminary inquiry procedure provided authority for granting the relief sought by
  the petition without a trial pursuant to MCR 3.972 and MCL 712A.17. Accordingly, we
                                                                                                              2

REVERSE the judgment of Court of Appeals and REMAND this case to the Wayne
Circuit Court – Family Division for further proceedings consistent with this order.

      We do not retain jurisdiction.

      CAVANAGH, J., would deny leave to appeal.

      KELLY, J., would grant leave to appeal.




                        I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        April 4, 2008                       _________________________________________
       p0401                                                                Clerk