Case Summary: In the Matter of Bennett, Docket No. 72151 (Mich. Ct. App. June 19, 1984)

Factual and Procedural Background

Respondent had been a temporary ward of the Ingham County Probate Court since July 8, 1979. The proceedings underlying this appeal arose from an alleged incident on May 7, 1983, for which a petition for rehearing (signed by a Lansing police detective) was filed on May 12, 1983, alleging the respondent committed larceny in a building by stealing items from a Lansing store. A preliminary hearing was held on May 24, 1983, before probate court referee Michele Bauer; by statute, no transcript was made of that hearing. A preliminary order dated May 24, 1983 authorized filing the petition and placed respondent in the temporary care of the Ingham County Shelter Home. A general order dated May 25, 1983, signed by Judge Robert Drake, stated that "a plea having been taken" at the preliminary hearing and directed that a dispositional hearing be conducted. At the dispositional hearing, referee Richard Kerbawy determined that respondent should be committed to the Michigan Department of Social Services, and Judge Drake entered an order to that effect on June 7, 1983. Respondent appealed, raising three assignments of error.

Legal Issues Presented

Whether alleged errors by the probate court referees at the preliminary and dispositional hearings amounted to a denial of respondent's right to due process.
Whether the probate court had a valid basis to exercise jurisdiction over respondent (respondent contended jurisdiction rested on an invalid confession).
Whether the referees erred by failing sua sponte to appoint counsel for respondent or to appoint a guardian ad litem.

Arguments of the Parties

Respondent's Arguments

That errors by the referees at the preliminary and dispositional hearings (separately or together) denied him due process.
That the probate court's exercise of jurisdiction was invalid because it was allegedly based on his involuntary or invalid confession of guilt regarding the alleged larceny.
That the referees should have appointed an attorney and a guardian ad litem for him sua sponte.

The opinion does not contain a detailed account of the people's (prosecuting authority's) opposing arguments beyond the court's descriptions and conclusions responding to respondent's contentions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Gault, 387 U.S. 1 (1967)	That due process requires a juvenile be advised of the right to retained or appointed counsel; recognizes that the right may be waived.	The court acknowledged Gault's holding that juveniles must be advised of the right to counsel but observed that Gault does not require an express on-the-record waiver of counsel. The court therefore declined to impose a rule requiring an express written or on-the-record waiver at preliminary hearings in the probate court context, while noting that requiring a signed waiver would be a better practice.

Court's Reasoning and Analysis

The court addressed each of respondent's three contentions in turn and applied the Juvenile Court Rules (JCR 1969) and relevant statutes (MCL/ MSA provisions) cited in the opinion.

1) Due process and referee procedures: The court reviewed the procedural steps taken at both the preliminary and dispositional hearings and found procedural compliance. It observed that the referees did not need consent of any party to hold the hearings because the matter was not on the consent calendar (citing JCR 1969, 4.3(C)). The preliminary referee recommended filing a petition and the probate judge entered an order authorizing the petition consistent with proceedings on the formal calendar (JCR 1969, 4.3(D)). The court found that respondent's mother was advised of the right to post bond and that respondent and his mother were informed of the right to counsel and the right to remain silent at the preliminary hearing in accordance with JCR 1969, 4.2(B)(9), MCL 712A.17; MSA 27.3178(598.17), and JCR 1969, 8.2(C) and (D). The court concluded that there was no reversible due process error from the referees' failure to repeat those advisements at the dispositional hearing because JCR 1969, 6.1(A) requires advising of the right to counsel at the first hearing and the dispositional hearing addressed only placement, not guilt or plea issues. The court also found that the referee did not ignore respondent's request for a judge: the transcript reflected an attempt to comply and that respondent withdrew his request.

2) Jurisdictional basis: The court rejected respondent's contention that jurisdiction was based on his confession. It explained that probate court jurisdiction over respondent was established prior to July 8, 1979, and that the court had continued to exercise jurisdiction through rehearings and placements culminating in the challenged commitment order. The court relied on MCL 712A.2a; MSA 27.3178(598.2a) to explain that jurisdiction continues for two years beyond the maximum age of jurisdiction when the probate court previously exercised jurisdiction under subdivisions (a) or (b) of § 2; it noted that respondent was 14 when the instant order was entered and thus well within statutory jurisdictional age limits (citing MCL 712A.2; MSA 27.3178(598.2)). The court concluded jurisdiction was a continuing one based on respondent's prior adjudicative history and past conduct, not a confession.

3) Appointment of counsel and guardian ad litem: With respect to counsel, the court described the relevant juvenile court rules: JCR 1969, 8.2(C) requires advising child and parent of right to counsel; JCR 1969, 6.3(A)(1) requires appointment of counsel when the child and those responsible for support are financially unable to employ counsel (or refuse) unless waived under JCR 1969, 6.2; and JCR 1969, 6.2 permits a voluntary and understanding waiver with parental concurrence. The court noted that preliminary hearings in probate court are not required by statute to be transcribed (MCL 712A.17; MSA 27.3178(598.17)) and declined to require that an express waiver of counsel appear in the record for preliminary hearings. The court acknowledged that In re Gault mandates advising juveniles of counsel rights but does not mandate an on-the-record express waiver; while stating that the better practice would be to have a signed waiver, the court found no reversible error in the referees' failure to obtain or record an express waiver in the circumstances of this case.

On the guardian ad litem issue, the court applied JCR 1969, 5, which requires appointment of a guardian ad litem when no parent, guardian, or custodian appears, or when "in the opinion of the court, the welfare of the child so requires." The preliminary referee (Bauer) determined a guardian ad litem was not necessary; the court found this decision was not an abuse of discretion because respondent's mother was present at the preliminary hearing, both parents attended the dispositional hearing, there was no evidence of prejudice to respondent's rights, and respondent had substantial prior experience in the probate court system. The court therefore found no abuse of discretion in declining to appoint a guardian ad litem sua sponte.

Holding and Implications

Holding: The court affirmed the probate court's order committing respondent to the custody of the Michigan Department of Social Services. The opinion's dispositive language is: Affirmed.

Implications: The direct effect is that the juvenile court's dispositional order committing respondent to the Department of Social Services remains in force. The court rejected respondent's claims of (1) denial of due process based on referee actions, (2) lack of jurisdiction based on an alleged confession, and (3) failure to appoint counsel or a guardian ad litem sua sponte. The opinion does not articulate or establish a new broad legal precedent; rather, it applies existing Juvenile Court Rules, statutory provisions governing probate/juvenile jurisdiction, and the Supreme Court's holding in In re Gault to the facts of this case and declines to require an express on-the-record waiver of counsel at preliminary hearings in probate court proceedings where the rules and statute do not mandate a verbatim transcript or an express waiver.

This summary strictly reflects the content and reasoning contained in the provided opinion and does not add or infer facts beyond that text.

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IN THE MATTER OF BENNETT

PER CURIAM.

Respondent appeals as of right from a juvenile court's order committing him to the custody of the Michigan Department of Social Services.

Respondent has been a temporary ward of the Ingham County Probate Court since July 8, 1979. The instant appeal arose out of an incident which was alleged to have occurred on May 7, 1983. A petition for rehearing was signed by a Lansing police detective on May 12, 1983, alleging that respondent had committed the crime of larceny in a building by stealing several items from a Lansing store. On May 24, 1983, a preliminary hearing was held before probate court referee Michele Bauer. In accordance with MCL 712A.17; MSA 27.3178(598.17), no transcript was made of the hearing. A preliminary order, dated May 24, 1983, authorized the filing of the petition against respondent and placed him in the temporary care of the Ingham County Shelter Home. A general order, dated May 25, 1983, signed by Probate Court Judge Robert Drake, provided that "a plea having been taken" at the preliminary hearing, a determination had been made to conduct a dispositional hearing. At the dispositional hearing, referee Richard Kerbawy determined that respondent should be committed to the Department of Social Services. An order to that effect was entered by Judge Drake on June 7, 1983.

Respondent raises three issues on appeal. He argues initially that the referees at the preliminary and dispositional hearings committed errors, which separately or together amounted to a denial of his right to due process. We have reviewed the alleged errors and find no denial of due process.

The referees were not required to obtain the consent of any party before holding the preliminary and dispositional hearing since the matter was not placed on the consent calendar. See JCR 1969, 4.3(C). The referee at the preliminary hearing recommended that a petition be filed. An order to that effect was entered the following day by the probate judge. The filing and authorization of the petition was consistent with proceedings on the formal calendar. See JCR 1969, 4.3(D). Respondent's mother was not denied the opportunity to post bond. The record of the preliminary hearing indicates that JCR 1969, 4.2(B)(9) and MCL 712A.17; MSA 27.3178(598.17) were complied with, since respondent's parent was advised of the right to post bond. Respondent and his mother were likewise informed of the right to counsel and the right to remain silent at the preliminary hearing, pursuant to JCR 1969, 8.2(C) and (D). Respondent contends that he should have been informed of these rights again at the subsequent dispositional hearing. JCR 1969, 6.1(A) requires only that the child and parent be advised of the right to counsel at the first hearing. Although JCR 1969, 8.5 requires the hearing referee to follow the procedures set forth in subrules 8.2(A) through 8.2(E), we find no reversible error here since respondent had already, in the presence of his mother, acknowledged and admitted to the correctness of the petition at the preliminary hearing, where he was advised of his right to counsel and to remain silent. The dispositional hearing concerned only the question of where respondent should be placed. Respondent's final allegation of error resulting in a denial of due process likewise is without merit. The referee did not ignore respondent's request to have his case heard by a judge. The transcript indicates that the referee made every attempt to comply, but that respondent unequivocally withdrew his request.

Respondent's second argument is that there was no valid basis for the probate court's exercise of jurisdiction. Respondent contends that jurisdiction was based on his invalid confession of guilt regarding the alleged larceny. Respondent misconstrues the basis for the probate court's jurisdiction here. Jurisdiction over respondent was obtained prior to July 8, 1979. The probate court continued to exercise its jurisdiction by conducting rehearings and placing respondent in various facilities up until the instant order committing respondent to the custody of the Michigan Department of Social Services. Under MCL 712A.2a; MSA 27.3178(598.2a), when the probate court, as here, has exercised jurisdiction over a child pursuant to subdivisions (a) or (b) of § 2 of the Juvenile Code, jurisdiction continues for a period of two years beyond the maximum age of jurisdiction conferred under § 2. Since respondent was 14 at the time the instant order was entered, he was well within the jurisdictional age discussed in the statute. See MCL 712A.2; MSA 27.3178(598.2). The probate court's jurisdiction here was not based on any confession obtained from respondent, but was a continuing jurisdiction based on respondent's past conduct.

Respondent's final contention is that the referees at the preliminary and dispositional hearings erred by failing sua sponte to appoint for him an attorney or a guardian ad litem. We find no error.

JCR 1969, 8.2(C) requires that the child and his parent be advised of the right to counsel as provided in JCR 1969, 7. JCR 1969, 6.3(A)(1) requires the court to appoint counsel for the child "when the child and those responsible for his support are financially unable to employ counsel, or though able, refuse to employ counsel" unless waived as provided by JCR 1969, 6.2. JCR 1969, 6.2 provides that "[a] child may voluntarily and understandingly waive the right to counsel" with the concurrence of a parent. Informal proceedings in probate court are not required to be transcribed. MCL 712A.17; MSA 27.3178(598.17). In light of the fact that no verbatim transcript need be made at preliminary hearings, we decline to impose the requirement requested by respondent that an express waiver of the right to counsel appear in the record. Such a requirement is not mandated by the Juvenile Code or by the Juvenile Court Rules. In re Gault, 387 U.S. 1, 42; 87 S Ct 1428, 1451; 18 L Ed 2d 527, 554 (1967), relied upon by respondent, states that due process requires that a juvenile be advised of his right to retained or appointed counsel, but recognizes that such right may be waived. The Court makes no finding that due process requires an express waiver of such right on the record. While we believe the better practice would be to require respondent and his parent or guardian to sign a waiver of counsel form, we decline to find error in the referees' failure to do so in this case.

Respondent has also failed to establish that the failure of the referees to appoint sua sponte a guardian ad litem was an abuse of discretion. JCR 1969, 5, requires the appointment of a guardian ad litem when no parent, guardian or custodian appears on behalf of the child, or where, "in the opinion of the court, the welfare of the child so requires". Referee Bauer determined at the preliminary hearing that the appointment of a guardian ad litem was not necessary. Respondent's mother was present at that hearing and both parents were present at the dispositional hearing. There is no evidence that respondent's rights were prejudiced by the referees' decision. In light of respondent's extensive experience in the probate court system and the presence of at least one parent at both hearings, we find no abuse of discretion.

Affirmed.

IN RE BENNETT