In re Toler

Michigan Court of AppealsApr 6, 1992
193 Mich. App. 474 (Mich. Ct. App. 1992)
193 Mich. App. 474484 N.W.2d 672

Docket No. 134420.

Decided April 6, 1992, at 10:00 A.M.

David J. Clark, for George Toler.


Respondent George Toler appeals as of right from an order of the Wexford Probate Court terminating his parental rights to three minor children.

Respondent argues on appeal that the trial judge erred, since he failed to specify the statutory basis for termination of respondent's rights and the court's assumption of jurisdiction. He asserts error also in the judge's failure to find that termination was in the best interest of the children. We affirm.

The Department of Social Services sought the involuntary termination of respondent's parental rights pursuant to § 19b(3) of the juvenile code. MCL 712A.19b(3); MSA 27.3178(598.19b)(3). The petition alleged that respondent physically and sexually abused his children.

After 3 1/2 days of testimony at the initial dispositional hearing, the parties entered into an agreement. Respondent stipulated to the jurisdiction of the probate court. In addition, he agreed to termination of his parental rights in exchange for dismissal of first- and second-degree criminal sexual conduct charges then pending against him. Tiana agreed to file for divorce and to include in the divorce judgment a provision preventing respondent from entering Wexford County, where she lived with the children. The probate judge asked respondent if he understood that his parental rights would be terminated if he agreed to the stipulation. Respondent answered that he understood and agreed. The probate judge found sufficient evidence on the record to establish jurisdiction and entered an order terminating respondent's parental rights.

Respondent filed a motion for rehearing or continuation of trial. At the hearing on the motion, he presented no new evidence. The judge refused to set aside the order, finding that it was in the best interest of the children and that respondent had voluntarily and understandingly agreed to it. He did refuse, however, to enforce the provision in the settlement mandating that Tiana divorce respondent.

Probate court jurisdiction over termination proceedings is derived solely from statutes and the constitution. In re Prater, 189 Mich. App. 330, 333; 471 N.W.2d 658 (1991). After a petition is authorized, the probate court must hold a hearing to determine whether the child is within the court's jurisdiction. In re Nunn, 168 Mich. App. 203, 207; 423 N.W.2d 619 (1988). To obtain jurisdiction, the judge must find that a statutory basis for jurisdiction exists and that the allegations contained in the petition were proven by a preponderance of the evidence. In re Nelson, 190 Mich. App. 237, 240; 475 N.W.2d 448 (1991). Since jurisdiction is statutory, it cannot be conferred by consent of the parties. In re Youmans, 156 Mich. App. 679, 684; 401 N.W.2d 905 (1986). On appeal, our inquiry is whether the error alleged was of such magnitude that, but for it, there was an insufficient basis for the probate court to assume jurisdiction. In re Gass, 173 Mich. App. 444, 446; 434 N.W.2d 427 (1988).

Here, although respondent stipulated to the court's jurisdiction, the probate judge also found sufficient evidence to authorize the assumption of jurisdiction. However, no statutory basis was given either on the record or in the order. Although the order is not a model of specificity, we believe it makes clear that the basis relied on for jurisdiction was § 2(b)(1) and (2). MCL 712A.2(b)(1) and (2); MSA 27.3178(598.2)(b)(1) and (2).

Before parental rights may be terminated under the juvenile code, the court must make findings of fact, state conclusions of law and identify the statutory basis for the order. MCR 5.974(G). In this case, the judge failed to articulate the statutory basis for the termination and instead relied on the agreement between the parties. We determine that a respondent can consent to termination of his parental rights under the juvenile code, in which case the judge need not announce a statutory basis for it.

Respondent does not argue that his consent was involuntary. Rather, he suggests that the termination of his parental rights in exchange for dropping criminal charges pending against him is contrary to public policy. We will not further address this issue, as respondent failed to provide us with any supporting authority. Goolsby v Detroit, 419 Mich. 651, 655, n 1; 358 N.W.2d 856 (1984). A party may not merely announce his position and leave it to us to discover and rationalize the basis for his claim. Sargent v Browning-Ferris Industries, 167 Mich. App. 29, 32-33; 421 N.W.2d 563 (1988).

We also reject respondent's argument that termination was inappropriate here, since the proceeding was not properly brought and concluded under either the adoption code or the juvenile code. MCL 710.21 et seq.; MSA 27.3178(555.21) et seq.; MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq.; In re Buckingham, 141 Mich. App. 828; 368 N.W.2d 888 (1985). In Buckingham the action to terminate the respondent's parental rights was brought under the juvenile code. However, at the first pretrial hearing on permanent wardship, the probate court raised the option of voluntary release of parental rights. Buckingham, 831. The respondent then orally released her rights to her children. We found that error resulted, since the release did not comply with the requirements of the adoption code.

Unlike the judge in Buckingham, the judge in this case did not suggest that respondent voluntarily release his parental rights. It was 3 1/2 days into the trial that respondent agreed to the termination. He conceded in effect that the court would be able to find statutory authorization for the termination and that termination would be in the best interest of the children. Respondent's decision to consent to the termination of his parental rights does not transfer the proceeding from the juvenile code to the adoption code. Further, unlike Buckingham, during the hearing to set aside the agreement and continue trial, the judge specifically found that the termination was in the best interest of the children. We determine that the judge's failure to incorporate this finding into the termination order is harmless error.

Finally, we reject respondent's argument that the probate court erred in refusing to grant a petition for rehearing or to set aside the agreement. A petition for rehearing will not be considered, unless it presents a matter not previously presented which, if true, would cause the court to reconsider its decision. In re Johanson, 156 Mich. App. 608, 611; 402 N.W.2d 13 (1987). A probate judge's refusal to grant a rehearing will be reversed only for an abuse of discretion. Johanson, 611. Respondent has failed to bring forward evidence which establishes that denial of the motion was an abuse of discretion.