This action originally came before the Berrien County Circuit Court on motion of the prosecutor to waive jurisdiction over a child, Theresa Krajewski, to probate court where proceedings based on neglect were pending. The child, through her guardian ad litem, then brought a motion in circuit court for a declaratory judgment that a waiver of circuit court jurisdiction was not a prerequisite to probate court jurisdiction. Plaintiff appeals from the circuit court’s determination that no waiver of circuit court jurisdiction was necessary. * 1
The custody of Theresa and her brother Edward was originally placed in plaintiff mother, Edna Krajewski, by a judgment of divorce granted in 1974. Subsequently, Theresa and Edward became temporary wards of the probate court under neglect proceedings. Probate jurisdiction over *410 Theresa was terminated in 1978. Shortly thereafter the circuit court order was modified to place custody of Theresa in defendant father, Gerhard Krajewski.
In 1979, a neglect petition based on the father’s failure to deal with Theresa’s school problems was filed in probate court. The child was, after due hearing, made a temporary ward of the probate court and placed in a foster home under the supervision of the department of social services. The mother appeared at this hearing and requested an opportunity to prove that she was a suitable person to take custody of her daughter because the pending petition contained no allegations of neglect on her part. While the action was pending, the question arose as to whether a waiver was necessary from circuit court because of this Court’s decision in
Rozelle v Dora,
The probate court has no inherent powers. Its jurisdiction over children is derived solely from the Michigan Constitution and statutes.
Fritts v Krugh,
MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2) grants the probate court jurisdiction over neglect proceedings and further provides:
"If a petition is filed in any probate court alleging that a child is within the provisions of paragraphs (1) or (2) of subdivision (b), and the custody of such child shall be subject to the prior or continuing order of another court of record of this state, the court in which such petition is filed shall forthwith cause notice of the filing of such petition to be served upon the prosecuting attorney for the county in which such other court is situated, personally or by registered mail. Immediately upon receiving such notice, the prosecuting attorney shall prepare and file such pleadings, petitions, notices or orders as may be necessary to bring the matter before such other court for hearing and such disposition, consistent with the powers of such court, as may be for the best interests of such child. Pending action by such other court in regard to the matter, the probate court with which such petition has been Sled shall have jurisdiction to make any temporary orders pertaining to care of custody which may be deemed advisable or necessary for the protection of such child.” (Emphasis added.)
PCR 111.2 incorporates by reference GCR 1963, 724.1(5), which provides:
"(5) Proceedings Affecting the Person of a Minor; Orders of Prior and Subsequent Courts of Record. Whenever any order, judgment, or amended order or judgment of any court of record of this state has provided or should have provided for continuing jurisdiction over the person of any minor; and during such continuing jurisdiction, proceedings are commenced in another court of record of this state having separate jurisdictional grounds provided by law affecting the *412 person of the same minor, no waiver or transfer of jurisdiction is required for the full and valid exercise of jurisdiction of the subsequent court.
"All original pleadings shall indicate prior continuing jurisdiction of another court of record, if such fact is known to the petitioner.
"When a minor is known to be subject to the continuing jurisdiction of a prior court, written notice of the proceedings in the subsequent court shall be mailed to the clerk or register, the friend of the court or juvenile officer, and the prosecuting attorney of the county wherein such prior court is located. Such notice shall be mailed at least 20 days prior to the date set for hearing unless the minor is not then known to be subject to such continuing jurisdiciton in which case such notice shall be given immediately upon such fact becoming known. Notice is not jurisdictional, and shall not preclude the subsequent court from entering interim orders prior to the expiration of said 20-day period if best interests of the child so require.” (Emphasis added.)
Rozelle v Dora, supra, presented this Court with the procedural converse of the present case. In Rozelle, the issue was whether the circuit court, having continuing jurisdiction over the child pursuant to a divorce decree, could entertain a motion for visitation rights after the probate court had permanently terminated the rights. The Court concluded that the circuit court could exercise jurisdiction under MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2), reasoning:
"The critical language is that contained in the second paragraph of subsection 2 above. This section provides that where the custody of a child is within the continuing jurisdiction of one court, a probate court later presented with a petition regarding custody is required to provide notice of the petition to the prosecutor in the county of the first court. That prosecuting attorney is then required to prepare pertinent pleadings or other documents so as to bring the custody-related matter *413 before the court with continuing jurisdiction. The only authority of the probate court to act in regards to a person over whom the prior court has continuing jurisdiction is that 'temporary orders’ may be issued which are 'deemed advisable or necessary for the protection of such child’.
"In this case, the child was subject to the continuing jurisdiction of the Ingham County Circuit Court, based upon a prior paternity action brought therein against the defendant. Further, at no time did the Ingham Circuit Court fully waive its jurisdiction. Where the child was under the continuing jurisdiction of the Ingham Circuit Court, the jurisdiction of the Ionia Probate Court was statutorily limited to the issuance of temporary orders pending further circuit court action. Therefore, the Ingham Circuit Court correctly found itself with jurisdiction to hear the plaintiffs petition.”103 Mich App 610 -612.
The Court also noted that under the procedural posture of the case GCR 1963, 724.1(5) did not conflict with MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2). While we agree with that conclusion, in the procedural setting of the present case, a clear conflict between the statute and rule arises.
When addressing a question of statutory meaning, this Court must first review the specific language of the disputed provision.
Lamphere Schools v Lamphere Federation of Teachers,
As noted in Rozelle, the terms of MCL *414 712A.2(b)(2); MSA 27.3178(598.2)(b)(2) are clear and unambiguous. The statute provides that where an allegedly neglected child is subject to the continuing jurisdiction of a circuit court, the probate court shall notify the prosecuting attorney that neglect proceedings have been initiated. The prosecuting attorney is then required to file such pleadings as may be necessary to bring the mátter before the circuit court for hearing and disposition. In the meantime, the probate court has jurisdiction to make temporary orders only. Full jurisdiction cannot be exercised in probate court until the circuit court has waived its jurisdiction. GCR 1963, 724.1(5), however, provides that the subsequent court (here, the probate court), when it has a separate ground for jurisdiction (here, neglect proceedings) may, after 20 days, exercise jurisdiction regardless of the existence of a waiver from the prior court.
Where there is a conflict between a statute and court rule, the rule prevails if it governs practice or procedure. Const 1963, art 6, § 5; MCL 600.223; MSA 27A.223; GCR 1963, 16. However, a rule cannot enlarge or restrict the constitutionally and legislatively defined jurisdiction of a court.
In re Kasuba Estate,
Though the distinction between procedure and substantive law is not always clear, the Supreme Court may indicate "how” an action is to be brought, whereas the Legislature must specify "what” action may be brought.
Clemons v Detroit Dep’t of Transportation,
"* * * the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial. Richardson v Ruddy,15 Idaho 488 , 494, 495;98 P 842 (1908).” Joy v Two-Bit Corp,287 Mich 244 , 253-254;283 NW 45 (1938).
The present case involves a prerequisite to the probate court’s abstract authority to hear a case. We conclude that MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2) is a jurisdictional statute that cannot be altered by court rule. Notwithstanding this conclusion, we must also decide whether it is within this Court’s power to grant the relief sought by plaintiff.
Const 1963, art 6, § 5 grants the Supreme Court the sole authority to "establish, modify, amend and simplify the practice and procedure in all courts of this state”. Clearly, this Court cannot refuse to give force to a court rule because of a dispute over the wisdom of the rule. However, this Court is bound by the same constitutional principles that bind the Supreme Court. See
People v Redmon,
The decision of the circuit court is reversed and the cause remanded. The circuit court shall, forthwith, hold a hearing to determine if jurisdiction should be waived. Upon a prima facie showing of neglect by the prosecutor, the trial judge, with due consideration for the relative expertise of the two forums, shall determine if jurisdiction shall be waived. See
Fritts v Krugh, supra,
p 113;
Foy v Foy,
Reversed and remanded.
Notes
The circuit court correctly determined that the action was improperly styled as one for declaratory judgment. The court, in effect, treated the matter as a motion for a waiver of jurisdiction. We express no opinion as to whether the circuit court’s ruling constituted a final order within the meaning of GCR 1963, 806. Assuming that the ruling was not a final order, we treat plaintiffs claim of appeal as an application for leave to appeal, and grant leave. GCR 1963, 820.