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Opinion No. 5325

June 30, 1978


Informal juvenile delinquent hearings

A juvenile court may offer the services of the court to children without the necessity of a petition but, when such informal procedure is employed, the authority of the juvenile judge is limited to referring the matter to a public or private agency providing protective and supportive services; the juvenile judge may not order a commitment or change of custody as a method of disposition of such cases.

A juvenile court may not accept jurisdiction of a juvenile delinquent for the purposes of ordering a commitment if the form of the petition is actually a waiver of right to counsel, right to jury trial, or right to adjudicative hearing.

John T. Dempsey


Michigan Department of Social Services

300 S. Capital Avenue

Lansing, Michigan 48926

You have requested my opinion regarding the legality of certain informal probate court procedures.

An example of such a procedure is illustrated by the forms being used in Otsego County for the purpose of placing children under the protective custody of the probate court without benefit of a hearing. Two of the forms are labeled 'Protective Custody Petition.' One is for a child and one is for the child's parents. In essence, these forms are waivers. In each, the petitioner 'represents' that jurisdictional facts exist for the probate court to take jurisdiction over the child. Further, the child's form purports to be a waiver of the filing of a petition or complaint, right to counsel, all adjudicative hearings, and all formal procedures. The parents' form constitutes a waiver of the filing of a petition or complaint, and all 'adjudicative process,' including right to counsel, trial by jury, and formal process.

The third form is a court order which, after reciting that the parents and child have waived formal process, further states:

'And It Appearing to the Court that the best interest of said child and the public will be sub-served by entering a disposition order as requested.


1. That said child be and is hereby made a temporary ward of this Court

2. That said child be placed in such foster or shelter homes as may be from time to time appropriate in the judgment of the County Juvenile Officer

3. That said child not be placed in any detention facility or state institution by any person whomsoever without the express consent of this Court

4. The Court reserves the right to amend, alter or rescind this order at any time and to terminate wardship at any time without further notice and without any hearing, until further order of this Court.'

Chapter XIIA of the Probate Code, 1939 PA 288, MCLA 712A.1 et seq; MSA 27.3178(598.1) et seq, is commonly known as the juvenile code. Section 11 of the juvenile code states:

'Whenever any person gives information to the juvenile division of the probate court that a child is within the provisions of this chapter, a preliminary inquiry may be made to determine whether the interests of the public or of the child require that further action be taken. If it appears that formal jurisdiction should be acquired, the court shall authorize a petition to be filed.

If it appears that the services of the court can be utilized in the prevention of delinquency without formal jurisdiction, the court may offer the services of the court to children without a petition being authorized as provided in subdivision (e) of Section 2 of this chapter.' MCLA 712A.11; MSA 27.3178(598.11)

Section 2 of the Juvenile Code states:

'Except as provided herein, the juvenile division of the probate court shall have:

(e) Authority to establish or assist in the development of a program or programs within the county to prevent delinquency and provide services to act upon reports submitted to the court related to behavior of children who do not require formal court jurisdiction but otherwise fall within subdivision (a) of this section. Such services shall be used only if they are voluntarily accepted by the child and his parents, guardian or custodian.' MCLA 712A.2; MSA 27.3178(598.2)

Section 2(a) referred to in Section 2(e), supra, grants the juvenile division of the probate court exclusive jurisdiction in all proceedings involving juvenile delinquents. Section 2(e), therefore, authorizes the juvenile division to provide services to juvenile delinquents without invoking the formal jurisdiction of the court.

When formal jurisdiction over the juvenile is taken by the court, the court may enter any order of disposition included in Section 18 of the juvenile code. MCLA 712A.18; MSA 27.3178(598.18). Included in these types of orders are placement in foster care homes and commitment to detention facilities and state institutions.

The sequence of all proceedings in juvenile court is governed by the Juvenile Court Rules of 1969. JCR 1969, 4.3 states:

'Following preliminary inquiry, which shall not require a preliminary hearing in case of detention as noted in .2 above, the court shall (1) deny the complaint or petition, (2) refer the matter to a protective service, or proceed on (3) the consent, or (4) formal calendar as follows:

'(a) If it appears that the charge is unfounded, or the best interests of the child and the public will be served, the court shall not authorize the filing of a petition.

'(b) If it appears services of a protective and supportive nature are available and will serve the best interests of the child, and of society, the court may refer the matter to a public or private agency providing such service.

'(c) If it appears protective and supportive action by the court will serve the best interests of the child and of society, the court may, upon authorizing the filing of the petition, and with consent of the child and all interested parties proceed informally to hear the matter. No commitment, or change of custody may be ordered as a part of a disposition of cases on the consent calendar . . .

'(d) If it appears formal jurisdiction is required, a petition shall be authorized.'

Thus, when a petition has not been filed, JCR 4.3(b) in conjunction with Section 2(e) of the juvenile code, supra, vests the probate court only with power to initiate proceedings not on the consent or formal calendars. When acting without a petition, the court can suggest that the child undertake counseling or other supportive services such as those offered by the Department of Social Services. Section 2(e) of the juvenile code, supra, requires that the services may only be accepted voluntarily by the child and his parents, guardian or custodian.

Inasmuch as the probate court order referred to above is in fact a waiver rather than a petition, its terms exceed the allowable range of powers given to the court under JCR 4.3(b), supra, and section 2(e) of the juvenile code, supra, when a petition has not been filed with the court. Its terms also include some of the dispositional orders that a probate court can issue only under Section 18 of the juvenile code, after the filing of a formal petition. The order in question therefore violates the provisions of the juvenile code which establish specific procedures for the type of dispositions mentioned in the order.

The Department ordinarily may not refuse to accept children committed to it by a probate court. 1939 PA 280, Sec. 14(c), MCLA 500.14(c); MSA 16.414(3) provides: 'The department shall assume responsibility for all children committed to it by the juvenile division of the probate court . . .' The validity of a court order otherwise valid on its fact may not be inquired into by the Department. However, the Department might incur liability if it has actual knowledge of the legal insufficiency of the order, Reinecke v Sheehy, 47 Mich App 250; 209 NW2d 460 (1973), and in such case the order is invalid on its face and consideration should be given to seeking judicial review of the order.

Frank J. Kelley

Attorney General