In Re Bedwell

¶1(concurring in part and dissenting in part). I concur in the judgment of the Court because, as the majority initially notes, proper procedures for the termination of parental rights were not followed here. Termination is a grave step; the procedural failures alone here are sufficient for me to set aside the termination of respondent-mother’s parental rights. Moreover, absent a proper petition alleging "emotional neglect,” I have serious reservations as to whether the probate court ever had jurisdiction over the children subsequent to the August 24, 1983, adjudicative hearing.

¶2I respectfully dissent, however, from that portion of the Court’s opinion which holds there was not clear and convincing evidence of neglect sufficient to support a termination of parental rights under MCL 712A.19a(e); MSA 27.3178(598.19a)(e). I think it unnecessary to reach this issue in order to reverse the judgment of the probate court, but inasmuch as the Court has spoken on the matter, I *178am constrained to say that, in my view, if the jurisdiction of the probate court had been properly invoked and proper proceedings conducted, the evidence of the parental neglect of these children is certainly ample to support termination of rights.

¶3I would further note that I am troubled by the statutory term "neglect” as it has recently come to be construed. The term neglect, as the majority notes, is now construed as requiring "some degree of culpability requiring a respondent to have committed an act or omission which is blameworthy.” This requirement, as nearly as I can determine, was first enunciated in In re Bailey, 125 Mich App 522, 527; 336 NW2d 499 (1983), where it was stated:

Neglect per se is defined neither in Michigan’s statute nor case law. In general, however, MCL 712A.2(b); MSA 27.3178(598.2)(b) provides the basis for the assumption of jurisdiction by the juvenile division of the probate court. This statute would seem to support appellants’ argument that a termination for reasons of neglect requires a finding of some intent or culpability. Jurisdiction over a child may be assumed when a parent who is "able to do so” fails to properly care for the child. [Emphasis added.]

¶4However, MCL 712A.2(b); MSA 27.3178(598.2)(b) provides in pertinent part that the juvenile division of the probate court shall have:

(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county:

(1) Whose parent or other person legally responsible for the care and maintenance of the child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical, or other care necessary *179for his or her health or morals, or who is deprived of emotional well-being, or who is abandoned by his or her parents, guardian, or other custodian, or who is otherwise without proper custody or guardianship.

(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 the child to live in. [Emphasis added.]

¶5Thus, it would appear that the phrase "when able to do so,” which refers to parental ability to care for children, is not applicable to a finding of emotional neglect, which is phrased in the disjunctive in the statute.1

¶6Nowhere to my knowledge has the Supreme Court stated that presence of "intent or culpability” is a requirement for neglect. Moreover, one wonders if "culpability” isn’t more of a policy judgment in the eye of the beholder on ad hoc facts than a legal test. These problems are, I think, the result of a creaky and often confusing statute, enacted in 1939, extensively revised in 1944, and amended piecemeal since that time. Compare, e.g., In re Sharpe, 68 Mich App 619; 243 NW2d 696 (1976) (§ 19a enumeration of causes for termination of parental rights is not exclusive), *180with In re McDuel, 142 Mich App 479; 369 NW2d 912 (1985) (§ 19a enumeration of causes is exclusive).

¶7Be that as it may, I think there is in the record "real evidence of long-time neglect, or serious threats to the future welfare of the child,” Fritts v Krugh, 354 Mich 97, 116; 92 NW2d 604 (1958), such as could be sufficient to justify termination of parental rights.

¶8Additionally, even measured under the "culpability-blameworthy” standard, I am of the view that respondent bears some culpability or blame. When a parent leaves three children all under the age of three years unattended by an adult, where one of them is eating a stick of deodorant when discovered by an adult, some blameworthiness attaches in my view. This was the condition encountered by one of petitioner’s caseworkers visiting the cabin of respondent-mother in order to persuade respondent to follow through with medical treatment for one of the children.

¶9The record here shows respondent-mother is "emotionally disturbed” and incapable of providing emotional warmth and love to these children. Her condition may well not be her "fault” to a treating psychologist in that her condition had its origins in childhood circumstances she could not control. But is not the same true for a character-disordered abuser of children? Is such a person then without fault or culpability in juvenile court proceedings? Cannot the juvenile court act in the fact of serious threats to the future welfare of the child where there is a real evidence of long-term neglect — as measured by the needs of the child? I would so measure neglect — more by the needs of the child and less by the fault, culpability or blameworthiness of the parent. The very lack of emotional disturbance in the mother was one of *181the factors relied upon by the Court in In re Moore, 134 Mich App 586; 351 NW2d 615 (1984), in reversing an order of termination. Now the Court relies on its presence in order to set aside a termination.