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IN RE DITTRICK INFANT
Factual and Procedural Background
On December 17, 1976, the Bay County Probate Court issued an order granting the Bay County Department of Social Services temporary custody of an unborn child expected by Gary and Carol Dittrick. The child was born on February 2, 1977, 45 days after the order was entered. The Department filed the petition prior to the child's birth without notifying the defendants. The defendants appealed the probate court's order to the Bay County Circuit Court, which dismissed the appeal and remanded the matter to the probate court for further hearings. The defendants then appealed by leave granted to the Michigan Court of Appeals. The background also includes that the defendants’ parental rights over their first child were terminated in May 1976 due to allegations of physical and sexual abuse, and criminal charges related to those allegations were pending.
Legal Issues Presented
- Whether the probate court had jurisdiction to enter an order of temporary custody over an unborn child.
- Whether the probate court could find neglect and order a change of custody based on abuse allegations involving a different child (the defendants’ first child).
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In the Matter of LaFlure, 48 Mich. App. 377, 210 N.W.2d 482 (1973) | Permits a finding of anticipated future neglect of a second child based on prior findings of neglect of that child. | The court rejected the defendants' attempt to distinguish LaFlure, holding that its reasoning applies even without a prior neglect finding for the second child, supporting the possibility of intervention based on neglect of a sibling. |
| Reist v Bay Circuit Judge, 396 Mich. 326, 241 N.W.2d 55 (1976) | Recognition that parental rights are constitutionally protected under due process clauses of Michigan and U.S. Constitutions. | The court acknowledged the constitutional magnitude of parental rights but found no violation in the present case that had not been remedied by its ruling. |
Court's Reasoning and Analysis
The court first addressed the jurisdictional issue, concluding that the probate court lacked jurisdiction to issue a custody order for an unborn child. Although the statutory term "child" could arguably include unborn persons, other statutory provisions—such as the requirement that a petition state the birthdate of the child—indicate that the Legislature did not intend to extend jurisdiction to unborn children. The court declined to judicially expand jurisdiction beyond legislative intent.
Regarding the neglect issue, the court rejected the defendants’ argument that custody could not be changed based solely on abuse of a different child. Citing In the Matter of LaFlure, the court found that anticipated future neglect could justify intervention even absent a prior finding of neglect as to the child in question.
Despite ruling that the probate court lacked jurisdiction, the court recognized that the Department's actions were in the best interests of the child. To avoid immediate disruption, the court ordered that the temporary custody arrangement remain in effect for 60 days following the opinion’s release, allowing time for proper jurisdictional procedures to be pursued if necessary.
Holding and Implications
The judgment of the lower courts is REVERSED. The probate court did not have jurisdiction to enter the original custody order concerning the unborn child. However, the court ordered that temporary custody remain with the Bay County Department of Social Services for 60 days after the release of this opinion to permit further proper proceedings.
The decision directly affects the custody status of the child involved, maintaining the status quo temporarily while recognizing jurisdictional limits. No new precedent expanding probate court jurisdiction to unborn children was established, and the court suggested that any such change should come from legislative amendment.
ALLEN, J.
On December 17, 1976, the Bay County Probate Court issued an order directing that the plaintiff, Bay County Department of Social Services, take temporary custody of the child of defendants Gary and Carol Dittrick. The situation presented is novel because the child was not born until February 2, 1977, 45 days after the order was issued. This appeal challenges the plaintiff's asserted authority to act in this manner and the probate court's asserted jurisidiction to issue the challenged order. The appeal comes to this Court following circuit court affirmance of the preliminary probate court order.
The record shows that the defendants' parental rights over defendant Carol Dittrick's first child were permanently terminated in May of 1976, following allegations of continuing physical and sexual abuse. Criminal charges against both defendants are now pending as a result of those abuse allegations.
Shortly before the parental rights over the first child were terminated, defendant Carol Dittrick became pregnant with the child who is the subject of the present litigation.
Believing that the birth of this present child was imminent, the plaintiff filed a petition in probate court on December 17, 1976, seeking an order of temporary custody pending further hearings. JCR 1969, 2.1; MCLA 712A.11; MSA 27.3178(598.11). The defendants were not notified of the filing of this petition. The requested order was entered the same day and was served on the defendants on December 30, 1976. After some initial procedural maneuvering, the defendants appealed the order to the Bay County Circuit Court which dismissed their appeal and remanded the proceedings to the probate court for the required preliminary and (possibly) formal hearings. JCR 1969, 4, 7, 8; MCLA 712A.11-19a; MSA 27.3178(598.11)-(598.19a). The defendants appeal from that order.
The preceding procedural history has been greatly simplified. In fact, the contested preliminary hearing has been held and a formal hearing has been ordered — all this pursuant to the circuit court's order which is belatedly being challenged by this appeal. This confusion exists because the defendants waited until after the preliminary hearing had been held before requesting a clarification of the original circuit court order and then appealing from that clarification.
The defendants have raised multiple statutory and constitutional issues. We address only two of those issues; the remainder are without merit and, in any event, are made moot by our rulings on the first two.
Defendants first argue that the probate court could not find neglect and order a change of custody based on allegations that they had abused defendant Carol Dittrick's first child. In the Matter of LaFlure, 48 Mich. App. 377; 210 N.W.2d 482 (1973), properly answers and rejects this argument. Defendants attempt to distinguish LaFlure by arguing that it only permits a finding of anticipated future neglect of a second child where a finding of past neglect of the second child has already been made. We reject that distinction because we believe that the reasoning of LaFlure is sound, even when applied to a situation where no prior determination of neglect has been made.
However, we are persuaded by the defendants' alternative argument that the probate court did not have jurisdiction to enter the contested order because it could not acquire jurisdiction over an unborn child. The probate court jurisdiction in such matters is defined by MCLA 712A.2; MSA 27.3178(598.2). Subsection (b) of that statute provides that the probate court has:
"Jurisdiction in proceedings concerning any child under 17 years of age found within the county
* * *
"(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."
We recognize that the word "child" could be read as applying even to unborn persons. However, our reading of other sections of Chapter XIIA of the Probate Code convinces us that the Legislature did not intend application of these provisions to unborn children. For example, MCLA 712A.11; MSA 27.3178(598.11), requires that a petition for change of custody state the birthdate of the subject child. This was obviously impossible in the present case. Nothing in the Juvenile Court Rules of 1969 expands the jurisdiction granted by the statutory provisions.
The Legislature may wish to consider appropriate amendments to the Probate Code. Indeed, the background of the present case has convinced us that such amendments would be desirable. However, the Code as now written did not give the probate court jurisdiction to enter its original order in the present case. We decline by judicial amendment to do that which, at the time of enactment, the Legislature did not contemplate.
Although the plaintiff Bay County Department of Social Services and the probate court acted without proper authority, we nevertheless believe that their actions were "correct" in the sense that the best interests of all concerned required that the defendants' infant not be left in defendants' custody. While we have ruled in the defendants' favor on the legal question raised, we do not intend to cause an immediate change of custody back to the defendants. We therefore order that the present custody arrangement shall remain in effect until 60 days after the release date of this opinion. GCR 1963, 820.1(1), (7). This will allow sufficient time for a proper invocation of probate court jurisdiction in the event that plaintiff Bay County Department of Social Services believes that the parental home is still an unfit residence.
The defendants' remaining arguments are without merit and most are rendered moot by the preceding analysis.
The defendants raised a number of constitutional arguments. Michigan has recognized that parental rights are of constitutional magnitude and are protected by the due process clauses of the Michigan and United States constitutions. In the Matter of LaFlure, supra, Reist v Bay Circuit Judge, 396 Mich. 326; 241 N.W.2d 55 (1976) (opinion of LEVIN, J.). But we see no violation of these rights in the present case which has not been remedied by this opinion.
The judgment below is reversed. Temporary custody is continued for 60 days by order of this Court.
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