487 Mich. 730 | Mich. | 2010
Lead Opinion
We granted oral argument to consider whether evidence that a child was present in a home in which defendant was in possession of drugs and firearms is, by itself, legally sufficient to support defendant’s conviction under MCL 750.145 for doing an act that “tended to cause a minor child to become neglected or delinquent so as to tend to come under the jurisdiction of” the family division of the circuit court. We hold on the facts of this case — where there is no evidence that the child was aware of such drugs or firearms— that there is insufficient evidence to support defendant’s conviction under this statute. To decide otherwise would render a conviction under MCL 750.145 an increasingly routine appendage to a broad array of other criminal charges in instances in which a child is merely present in a home where evidence of a crime has been uncovered. Moreover, to decide otherwise would
I. PACTS AND HISTORY
On August 16, 2006, Detroit police executed a search warrant at defendant’s home. They found defendant sitting on a bed in one of the home’s two bedrooms. When one of the officers looked under the bed, he found a baggie of what he believed, based on his experience and training with narcotics, to be heroin on a plate with a razor blade and a coffee spoon. A second officer testified similarly, estimating that the amount recovered was approximately three grams, with a street value of about $700. The police also found two loaded firearms in a dresser drawer in the same bedroom. The bedroom contained both men’s and women’s clothing, while the other bedroom contained only children’s clothing.
At the time of the raid, there was a woman seated on the front porch and a 10-year-old boy on a couch in the living room. A third officer, Kathy Singleton, testified that she observed that the child, who was defendant’s stepson, was scared and crying when the officers entered. The woman, who was defendant’s wife and the child’s mother, was handcuffed and given a citation.
With respect to the latter charge, the prosecutor argued at trial that the child “being in that house is being subject to neglect and/or delinquency.” In its instructions, the trial court stated:
To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt: that the defendant acted or by any word, encouraged, contributed toward, caused or tended to cause any minor child under the age of 17 years to become neglected or delinquent.
The jury convicted defendant of all charges. At sentencing, the trial court imposed a suspended sentence of 45 days in jail for the misdemeanor of contributing to the delinquency of a minor. The court also told defendant that it would contact the Department of Human Services (DHS) to request that a petition be filed to terminate his parental rights, and that same day wrote to DHS requesting that it investigate possible child neglect and abuse by defendant.
The Court of Appeals affirmed defendant’s convictions and sentences. People v Tennyson, unpublished opinion per curiam of the Court of Appeals, issued October 16, 2008 (Docket No. 278826). Regarding defendant’s conviction under MCL 750.145, the Court noted that the statute “was aimed at prevent
Here, defendant’s actions, at the very least, placed [the child] directly in a home where illegal activity was occurring. It would be reasonable for the jury to infer that defendant knew [the child] was living in a house where heroin and loaded firearms were unlawfully kept. When considering the evidence in the light most favorable to the prosecutor, there was sufficient evidence for the jury to infer that defendant’s illegal activities could have subjected his son to the jurisdiction of the courts. Therefore, there was sufficient evidence to convict defendant of contributing to the neglect or delinquency of a minor. [Tennyson, unpub op at 4.]
This Court directed that oral argument be heard on the application for leave to appeal and specified that the parties must address whether the evidence was legally sufficient to sustain defendant’s conviction under MCL 750.145, People v Tennyson, 483 Mich 963 (2009), and argument was heard on November 4, 2009.
II. STANDARD OF REVIEW
This case presents an issue of statutory interpretation, which we review de novo. People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003). In determining whether the prosecutor has presented sufficient evidence to sustain a conviction, an appellate court is required to take the evidence in the light most favorable to the prosecutor. “[T]he question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” People v Hardiman, 466 Mich 417, 421; 646 NW2d 158 (2002).
A. MCL 750.145
We are called upon to construe MCL 750.145, which provides:
Any person who shall by any act, or by any word, encourage, contribute toward, cause or tend to cause any minor child under the age of 17 years to become neglected or delinquent so as to come or tend to come under the jurisdiction of the juvenile division of the probate court, as defined in [MCL 712A.2], whether or not such child shall in fact be adjudicated a ward of the probate court, shall be guilty of a misdemeanor.
This statute requires that the prosecutor prove beyond a reasonable doubt that defendant (1) by any act or word (2) “tend[ed] to cause” any minor
The statute also makes clear that “neglect” and “delinquency” are specifically defined by MCL 712A.2, and that an adjudication that the child is, in fact, a ward of the court is not a prerequisite to a conviction. These conclusions are compelled by the statute and were articulated by the Court of Appeals
Although it is clear that a prior adjudication of neglect or delinquency is not required for a conviction under MCL 750.145, the open question, which goes to the heart of this appeal, is what level of certainty is required in order for the fact-finder to determine that a defendant “tend[ed] to cause” a minor to become delinquent or neglected so as to “tend to come” under family court jurisdiction. The focal point in this inquiry is, of course, the statute’s twice-repeated use of the word “tend.” When reviewing a statute, “ ‘a word or phrase is given meaning by its context or setting.’ ” Koontz v Ameritech Servs, Inc, 466 Mich 304, 318; 645 NW2d 34 (2002) (citation omitted). This “tend” language provides an alternative ground for satisfying two of the statute’s critical elements — a person must “cause or tend to cause” a minor to “come or tend to come” under family court jurisdiction. The verbs “cause” and “come,” which immediately precede “tend” in each instance, require it to be shown that a person did in fact do something that caused a minor to fall within family court jurisdiction. However, “tend to cause” and “tend to come” require a lesser showing; each formulation lowers the threshold of proof required by “cause” and “come,” respectively, and each does not require the actual exercise of family court jurisdiction.
When reviewing a statute, all undefined “words and phrases shall be construed and understood according to the common and approved usage of the language[.]”
However, the fact that “tend” pertains to matters that cannot be assessed with absolute certainty, unlike matters that have already occurred, does not mean that the determination that a person is “disposed or inclined” toward something can be made arbitrarily. Instead, logic suggests that “tend” is commonly understood to express some level or gradation of certainty, for if a person is “disposed or inclined” to do one thing, he is obviously not “disposed or inclined” to do its opposite. Stated another way, although “tend” conveys possibilities along a continuum, logically, a person can only “tend” toward one end of that continuum at any given time. The term thus implies a level of certainty greater than 50 percent, to wit, that it is possible to conclude from the available information and circumstances that something is “more likely than not” to occur.
For several reasons, we believe that the purely directional meaning of “tend” is not what was intended by the drafters of MCL 750.145. First, the dictionary entry for “tend” emphasizes that when used in this sense, “tend” is often followed by “toward.” That is, “tend” tends to be followed by “toward.” However, the latter “companion” word is absent from MCL 750.145.
Second, the directional sense of “tend” does not accurately reflect the word’s specific placement in this statute. The statute pairs “tend to cause” and “tend to
Third, construing “tend” in its directional sense in this statute would result in a highly unreasonable and unworkable, if not potentially absurd, interpretation. If all that is required by “tend” is a determination that a child had been turned in the “direction” of neglect or delinquency — “toward” the “bad behavior” rather than “toward” the “good behavior” end of the spectrum, and without regard to whether the child had been moved closer to the “bad behavior” outcome than to the “good behavior” outcome, what other than prosecutorial discretion would prevent a parent from being charged with “contributing to the neglect and delinquency of their children” whenever they tell their children a lie, exceed the speed limit while children are in the car, nick another car in a parking lot where children are present and fail to take responsibility, use coarse language in front of their children, or engage in any other such behavior into which imperfect parents sometimes lapse? Each of these forms of less-than-admirable, but hardly extraordinary, behavior on the part of the parent might well “tend” to cause harm to a child in the purely
Accordingly, the statute’s first use of “tend” requires a determination that a defendant’s conduct has caused it to be more likely than not that a minor would “become neglected or delinquent.” Similarly, the statute’s second use of “tend” requires a determination that a defendant’s conduct caused it to be more likely than not that a minor would come under family court jurisdiction.
With this understanding of MCL 750.145, we next follow that statute’s directive and turn to MCL 712A.2, which sets forth the authority and jurisdiction of the family division of the circuit court. A minor may come under family court jurisdiction for either neglect or delinquency. MCL 712A.2(a) and (b).
The jurisdiction of the family division of the circuit court over a minor for delinquency is discussed in MCL 712A.2(a)(l), which grants that court “[e]xclusive original jurisdiction superior to and regardless of the jurisdiction of another court in proceedings concerning a juvenile under 17 years of age who . . . has violated any municipal ordinance or law of the state or of the United States.” This is a broad grant of jurisdiction, which notably may be exercised over a juvenile who “has violated any municipal ordinance or law of the state or of the United States.” (Emphasis added.)
The jurisdiction of the family court over a minor for neglect is discussed in MCL 712A.2(b). The first relevant basis for a finding of neglect is detailed in § 2(b)(1), which provides that the court has jurisdiction over a juvenile under 18
*745 [w]hose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship.
This provision sets forth multiple potential grounds for a finding of neglect. The most egregious form of neglect occurs where the child has been “abandoned by his or her parents” or is “without proper custody or guardianship.” Other grounds for a finding of neglect occur where the parent “neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals,” or where a child’s “mental well-being” is subject to a “substantial risk of harm .. . .”
The other relevant basis for a finding of neglect under MCL 712A.2 is set forth in § 2(b)(2), which provides that the court has jurisdiction over a juvenile under 18
[w]hose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.
For purposes of the instant case, this provision requires a finding that the home at issue constitutes an unfit place for the juvenile to live “because of” a parent’s criminal act. Criminality per se, or even criminality in a home per se, is insufficient to support a finding of neglect under § 2(b)(2).
C. STATUTES IN PARI MATERIA
Pursuant to the express terms of MCL 750.145, it is only through the application of the definitions of “ne
1. “DELINQUENCY”
When MCL 712A.2(a)(1)’s definition of “delinquency” is incorporated into MCL 750.145, conviction under MCL 750.145 requires proof that (1) a person’s “words or acts” (2) “tend[ed] to cause” any minor (3) to “become [a child who] violates any municipal ordinance or any state or federal law” (4) so as to “tend to come” under family court jurisdiction for delinquency.
These standards — and the interpretation of “tend” from which they derive — are consistent with those used by Michigan courts for almost a half-century where they have been asked to construe MCL 750.145. When Owens first addressed this statute, although it recognized that a prior adjudication is unnecessary to sustain a conviction under MCL 750.145, the Court nonetheless focused on the particular minor at issue and identified a particular act of delinquency that the defendant
Since Owens, there have been few cases addressing “sufficiency of the evidence” challenges to convictions under MCL 750.145 based on grounds of delinquency — a fact that suggests that the state’s justice system has arrived at a generally accepted equilibrium for prosecuting this crime.
These decisions reflect the existing, and proper, approach to understanding MCL 750.145 construed in pari materia with MCL 712A.2. The children at issue were at risk of committing identifiable acts of delinquency, and it was possible to conclude that they were more likely than not to become delinquent, and consequently more likely than not to come within family court jurisdiction.
2. “NEGLECT”
As noted above, MCL 712A.2(b) provides multiple definitions of “neglect,” which all must be read in conjunction with, and incorporated into, MCL 750.145. When this is done, conviction under MCL 750.145 requires proof that (1) a person’s “words or acts” (2) “tend[ed] to cause” any minor (3) to become a child: (i) who is abandoned by both parents or lacks proper custody; (ii) whose parents fail to provide the necessary care for his or her physical, educational, and moral needs; (iii) whose “mental well-being” is subject to a “substantial” risk of harm; or (iv) whose home is “unfit” “because of” a parent’s “criminality” (4) so as to “tend to come” under family court jurisdiction for neglect. Thus, a conviction based on for neglect requires proof allowing the fact-finder to conclude that, more likely than not, the child will fall under one of the definitions of “neglect” in MCL 712A.2(b), and thus, more likely than not, will fall within family court jurisdiction.
D. APPLICATION
The essential elements derived from construing MCL 750.145 in pari materia with MCL 712A.2 require us to determine whether, taking the evidence in the light most favorable to the prosecutor, a rational trier of fact could find that defendant’s actions “tended to cause” the child to become delinquent or neglected, such that the child “tended to come” under family court jurisdiction.
The prosecutor contends that defendant’s conviction can be sustained on grounds of delinquency.
As a threshold matter, we note this research was not part of the proofs considered by the jury. However, even if it had been, we find the prosecutor’s argument inapt under MCL 750.145. First, while this argument is purportedly focused on the child involved in this case, the research is based on the life experiences of other children.
While this Court is ill-equipped to assess the merits of the research cited by the prosecutor, as a reviewing court with the full record before us, we do possess the tools, and are charged with the duty, to ensure that the “sufficiency of the evidence” standard is met. Taking the evidence in the light most favorable to the prosecutor, we are unable to conclude that a rational juror could have determined that defendant’s actions “tended to cause” the child to become delinquent. By his presence in the home, the child did not violate, nor was he in danger of violating, any “municipal ordinance or law of the state or of the United States.” Nor does the record contain any evidence whatsoever that the child was “disposed or inclined” to abuse drugs, engage in criminality, or become a delinquent for any other reason. Quite simply, the prosecutor presented no evidence regarding the child’s education, behavioral history, relationships with his peers, or any other relevant fact that could support the conclusion that defendant’s
2. "NEGLECT”
The prosecutor also argues that defendant’s conviction can be sustained on grounds of neglect. Specifically, the prosecutor argued to the jury that the child “being in that house is being subject to neglect and/or delinquency.” Again, we conclude that the evidence is insufficient to allow a rational fact-finder to make such a finding. There was simply no evidence presented that the illegal drugs or firearms at issue had any impact on the child’s “mental well-being” or his “health and morals,” as there was no evidence at all that he was even aware of these items, much less of their illegality. The child’s awareness of the illegal items is critical, if not dispositive, in this case because the overall evidence is so very sparse. To review, the evidence indicated that the child was found on the couch in the living room; he had his own bedroom; drugs were found under the bed in the parents’ bedroom; the firearms were found in a dresser drawer in the parents’ bedroom; he started crying when the police entered his home; and his mother was handcuffed and given a citation. Everything the jury knew about this child was in relation to his presence in the home at the moment of the raid; the jury knew these facts and it knew nothing more. By resting her case on a theory that the child’s presence in the home plus illegal activity in the home amounts to a violation of MCL 750.145, the prosecutor made the
Here also, the absence of evidence that the child was aware of the possession of the drugs and firearms is largely dispositive.
Nor, in contrast to the home in Antjuan Owens, was there any indication that defendant’s home was a “drug-house,” subject to an influx of drug purchasers, or otherwise unsanitary or uninhabitable. Rather, the record established only that the house was a furnished two-bedroom home. There is nothing from the evidence that suggests that the physical condition of the home made it in any way “unfit” for a juvenile to live in. Taking this evidence in the light most favorable to the prosecutor, we conclude that a rational trier of fact could not reasonably find that defendant’s home was rendered an “unfit place” for the child to live “by reason of” defendant’s criminal conduct where there was no evidence at all that the child was even aware of this criminality.
Therefore, once again, no matter how favorably we interpret the evidence in the prosecutor’s favor, defendant’s conviction cannot be sustained under MCL
IV SLIPPERY SLOPE
In deciding this case, like all cases, we are conscious that our judicial duty is “to declare what the law is . . . .” Wilson v Arnold, 5 Mich 98, 104 (1858). In attempting to discharge this duty, we have relied on traditional tools of interpretation to determine what constitutes the most reasonable meaning of relevant statutory provisions. Accordingly, our holding rests on the conclusion that defendant’s conviction cannot be sustained in accordance with the most reasonable interpretation of MCL 750.145 construed in pari materia with MCL 712A.2.
However, we would be derelict if we did not comment further on the very steep slippery slope down which our legal system would be headed if this statute were to be . given the interpretation urged by the prosecutor and the dissents, and adopted by the lower courts. We have already commented upon the extraordinarily broad, and arguably absurd, applications of MCL 750.145 resulting from an unreasonable interpretation of “tend.” However, it is also incumbent on us to point out that another, equally steep, slippery slope would be created if we were to find that a criminal conviction, by itself, constitutes a basis for a neglect or delinquency conviction under MCL 750.145. And that is what is involved in this case: a “by itself” criminal conviction serving as a basis for a neglect or delinquency conviction. Although the dissents disagree, they do not identify any relevant evidence that was presented to the jury other than the fact of the child’s presence in a
The prosecutor and the dissents would also effectively read out of the statute language requiring a causal connection between a defendant’s “criminality” and a finding that his home is “unfit” for a juvenile. No further showing would be required in order to establish a violation of MCL 750.145 than that a crime occurred in a home and that a child was present. Such a predicate for a violation of this statute has never before been thought sufficient. Presumably, prescription drug abuse, tax fraud, unlicensed work, possession of illegal “numbers” tickets or gambling paraphernalia, computer “hacking,” check kiting, illegal possession of music downloads or “pirated” DVDs, the possession of unlawful fireworks, allowing the illegal consumption of alcohol at family gatherings, and countless other criminal offenses that occur within, or have an impact upon, the home could all serve as grounds for supplemental criminal charges of “neglect and delinquency,” if not, as occurred here, as a basis for triggering an inquiry into whether parental rights should be terminated.
V RESPONSE TO DISSENTS
In their dissents, Justices CORRIGAN and YOUNG take issue with our interpretation of the relevant statutes, our application of the law, and, most insistently, with the result that we reach. While we have addressed discrete points of disagreement throughout this opinion, it is necessary to respond more generally to our differing perspectives.
First, we respectfully disagree that this case is as “simple” as the dissenters would have it.
Second, unlike the dissents, we find it significant that a conviction under MCL 750.145 based on neglect — the only ground that the dissents discuss at all — is unprecedented in this state.
Third, we disagree with the dissents that it is we who misconstrue the “sufficiency of the evidence” standard. This standard makes clear that a reviewing court is required to take the evidence produced at trial in a light favorable to the prosecutor.
VI. CONCLUSION
We recognize that the facts here engender no sympathy for defendant. It is easy to understand, and even applaud, the admonition delivered by the trial court to defendant at sentencing, when it stated, “I’m not going to tolerate this kind of behavior by a parent of a child in this state.” As with the trial court and the dissents, we desire more for the children of this state than a parent who keeps contraband in the home. The fact remains that the evidence presented in this case cannot sustain
On the facts of this case, where the jury was presented with no evidence other than that a child was present in a home where criminal activity occurred, we hold that a rational fact-finder could not conclude beyond a reasonable doubt that defendant “tend[ed] to cause” the child to become delinquent or neglected so as to “tend to come” under family court jurisdiction, as those terms are defined by MCL 712A.2. To adopt the theory that a child’s presence in the home plus illegal activity in the home amounts to a violation of MCL 750.145 is inconsistent with the language of this statute, and incompatible with past judicial practice in this state. Moreover, it would transform MCL 750.145 into an increasingly routine appendage to other criminal charges, serving thereby as an increasingly routine trigger for the initiation of proceedings by the Department of Human Services for the termination of parental rights. We reverse in part the judgment of the Court of Appeals, vacate defendant’s conviction under MCL 750.145, and remand to the trial court for further proceedings. Defendant’s convictions for drug and firearm possession remain intact.
Alternatively, this element can be satisfied with proof that defendant “encouragefd], contributed toward, [or] caused” a minor to become neglected or delinquent. Like the prosecutor, we focus our analysis on the “tend[ed] to cause” alternative because it requires the lowest threshold of proof.
Alternatively, this element can be satisfied with proof that the minor child did, in fact, “come .. . under the jurisdiction of the probate court.” The instant analysis focuses on the “tend to come” alternative again because it requires the lowest threshold of proof.
Contrary to the assertions of the dissents, the fact that the violation of this statute constitutes a misdemeanor has no obvious bearing on this Court’s application of the “sufficiency of the evidence” standard, which is the same for a misdemeanor as for a felony. Both require evidence that would allow a reasonable fact-finder to find defendant guilty beyond a reasonable doubt.
This definition is similar to that relied upon by the prosecutor, which defines “tend” as meaning “to be apt or inclined.” Oxford Dictionary & Thesaurus, American Edition (1996).
This common understanding of “tend” is taken for granted in everyday speech. Thus, the statement “I tend to be an early riser” conveys that I tend not to be a late riser; and the statement “My son tends to be a well-behaved child” conveys that he tends not to be a poorly behaved child. From these statements, it can be said that, more likely than not, I will get up early and my son will behave well.
The absurd results rule “demonstrates a respect for the coequal Legislative Branch, which we assume would not act in an absurd way.” Pub Citizen v United States Dep’t of Justice, 491 US 440, 470; 109 S Ct 2558; 105 L Ed 2d 377 (1989) (Kennedy, J., concurring); “[I]t is a venerable principle that a law will not be interpreted to produce absurd results.” K Mart Corp v Cartier, Inc, 486 US 281, 324 n 2; 108 S Ct 1811; 100 L Ed 2d 313 (1988) (Scalia, J., concurring in part and dissenting in part); see also Cameron v Auto Club Ins Ass’n, 476 Mich 55, 79; 718 NW2d 784 (2006) (Markman, J., concurring) (“The ‘absurd results’ rule underscores that the ultimate purpose of the interpretative process is to accord respect to the judgments of the lawmakers.”).
We consider termination to be a potentially serious consequence of a conviction for contributing to a child’s delinquency or neglect under MCL 750.145, as is evidenced by the facts of this case in which the trial court in sentencing defendant for this crime expressly stated that defendant’s parental rights should be terminated, and initiated the process to do so by referring defendant to the Department of Human Services. Indeed, how could any trial court react differently to a criminal conviction for “delinquency or neglect” of a minor? And indeed how could the DHS react differently than by devoting its fullest resources to the investigation of such a referral? Our point, of course, is not to suggest that termination of parental rights might not constitute an appropriate response in individual cases involving parental criminality, but only that MCL 750.145 should not be radically transformed, and broadened, so as routinely to encompass criminal conduct in which a minor is merely present, and in which there is no evidence that the parent’s conduct actually “cause[d] or tend[ed] to cause” his or her child “to become neglected or delinquent so as to come or tend to come under the jurisdiction of the juvenile division of the probate court. ...” Criminal punishment should be the only routine consequence of criminal conduct, not the termination of parental rights.
Contrary to the repeated criticisms of the dissent, our consideration of the relationship between a MCL 750.145 conviction and the termination of parental rights does not misapprehend family court jurisdiction. We fully recognize that the termination of parental rights is only one of the outcomes that may result from the initial exercise of family court jurisdiction. Still, the fact that the termination of parental rights is not inevitable in every such case hardly makes it any less important for this Court to consider that when a petition alleging abuse or neglect is filed because of a conviction under MCL 750.145, the likelihood of termination becomes a serious and very real possibility.
Notwithstanding the dissenting justices’ characterization of this discussion as “confusing,” we do not think that lower courts will be confused by this standard, which requires only that courts apply a “more likely than not” analysis. Indeed, applying this standard should hardly be more difficult than applying the “ ‘more probable than not’ ” standard supported by each of the presently dissenting justices in People v Lukity, 460 Mich 484, 494; 596 NW2d 607 (1999).
The dissenting justices also consider this discussion “unnecessary,” and instead would employ their “straightforward approach” to discerning the proper meaning of “tend,” which basically consists of listing the word’s multiple definitions and then more or less arbitrarily inserting language found in one of these definitions into the statute with no explanation of why this particular definition is appropriate. As is evident to others who have considered MCL 750.145, including the prosecutor here and the Court of Appeals in Owens, 13 Mich App at 479, “tend” is the critical term in this statute. Depending on the meaning given to “tend,” the statute can produce widely varying interpretations, some reasonable, some not. Thus, we believe our discussion concerning the proper meaning of “tend” in the context of this statute to be quite necessary, and its absence in the dissents to be quite significant.
Justice Corrigan correctly notes that a “probable cause” stándard is used to authorize jurisdiction under MCL 712A.13a(2). However, the standard applicable to a petition before a family court cannot transform, and should not distract from, the “beyond a reasonable doubt” standard that jurors are compelled to apply in this or any other criminal matter.
The trial court did not provide the jury with the statutory definition of “neglect” or “delinquency” found in MCL 712A.2, as MCL 750.145 requires.
From the available caselaw, it appears that most convictions under MCL 750.145 have been unchallenged, and have arisen in cases in which the defendant has provided alcohol or drugs to a minor-victim, often as a prelude to the defendant’s criminal sexual conduct. See, e.g., People v Stokes, unpublished opinion per curiam of the Court of Appeals issued July 22,2008 (Docket No. 276839); People v Burster, unpublished opinion per curiam of the Court of Appeals, issued September 9,2008 (Docket No. 277473); People v Latta, unpublished opinion per curiam of the Court of Appeals, issued February 17, 2009 (Docket No. 281297).
Similarly, the trial court focused on delinquency as its rationale for how the child would “tend to come” under family court jurisdiction, stating at sentencing:
[Wje’ve got a situation where someone who’s committing criminal activity and has a young child in the house and that young child thinks, well, daddy does it, I can do it, too. You know, good grief. And it just gets — it just goes on and on and on and on. So that your life is not the only one that’s ruined, but all the people that you love as well.
Although both the prosecutor and the trial court concentrated on delinquency as the applicable grounds for defendant’s conviction, the dissents do not discuss this ground at all.
If, for example, social science research further suggested some correlation between exposure to violent video games and aggressiveness in children, or between divorce and behavioral problems, or even between poverty and delinquency, then could anything on the part of the parent contributing to these circumstances “tend” to contribute to a child’s delinquency?
Absent any evidence of the child’s awareness, the dissenting justices offer two largely irrelevant and distracting facts to sustain defendant’s conviction: (1) that the child’s mother was “arrested”; and (2) that the child started crying when the police raided defendant’s home. In doing this, the dissents do nothing more than reiterate their theory that the child’s presence plus illegal activity in the home amounts to a separate criminal violation. Concerning the “arrest,” while one officer testified that the mother was “arrested,” it appears that the officer used this phrase to explain only that the mother had been “forcibly restrained,” not that she was taken into custody. This is consistent with the testimony of another officer who, when asked if the mother was “arrested,” clarified that she had been written a “ticket.” That the officers ticketed the mother at the scene is confirmed by the police activity log. That neither officer indicated the mother was ever removed from the home explains why the prosecutor, unlike the dissenting justices, never pursued the argument that the child was ever left “without proper custody.”
Concerning the child’s crying, while Justice Corrigan is undoubtedly correct that an in-home arrest is “traumatic” to all concerned, especially to children, we do not believe that this evidence sustains a conviction under MCL 750.145. Raids, arrests, and incarcerations are unavoidable aspects of the criminal justice process, and for these to suffice to establish a separate criminal conviction would render an MCL 750.145 prosecution a nearly automatic appendage of every criminal offense in which a child is merely present in a home. Indeed, under the theory of the dissents, it would seem that MCL 750.145 could be triggered even where there is no contraband in the home and an arrest occurs there, even where the
Moreover, defendant’s criminality surrounding the firearms is predicated upon his status as a convicted felon. Absent this status, the firearms found in defendant’s bedroom are indistinguishable from those found in hundreds of thousands of homes in Michigan. A firearm is a firearm, and
Although Justice Corrigan attempts to limit the potentially sweeping scope of the rule she would adopt, in the end, under her interpretation, the only thing standing athwart a judicially created crime wave for “delinquency or neglect” will be the good judgment of prosecutors, and that cannot be the exclusive safeguard of the people. Despite the focus of MCL 712A.2(b)(1) on harm being done to a child’s “health or morals,” her dissent imposes its own limitation on the statute, whereby only crimes that involve “inherently dangerous items unsecured in the home” could act as the basis for a conviction under MCL 750.145. Under this self-created limitation, which has no basis in the statute, defendant’s illegal possession of unsecured firearms will invariably support a conviction.
Even more remarkably, Justice Corrigan expresses “no opinion concerning the circumstances under which a jury could convict a law-
Moreover, if, as the dissents necessarily argue, the mere presence of contraband is “inherently dangerous” to the child’s health, there is no principled reason why the mere presence of other contraband, such as false tax returns, would not be “inherently dangerous” to the child’s morals. Finally, by suggesting that this case would be different “if defendant had been arrested on the street and had kept his guns and drugs outside the home,” Justice CORRIGAN merely underscores the validity of our criticism that where contraband is not located “outside” the home, but “inside,” and a child is merely present, a criminal violation will routinely be established under her interpretation of MCL 750.145.
The dissenting justices criticize the analysis in this opinion as “lengthy,” “unnecessary,” and “confusing,” and avoid their own lengthiness, unnecessariness, and confusion largely by avoiding analysis at all. Concerning the critical term in question, “tend,” the dissents manage not to address the various meanings of this term, not to select among these meanings, and not to justify a preferred meaning. If it is the avoidance of a “lengthy” analysis that the dissents desire, they succeed with flying colors. When Justice Young states that “[o]nly a lawyer” could produce the result reached in this opinion, this appears to he shorthand for the promise that there will be no serious analysis of the law in his opinion, and he lives up to this promise.
From the absence of discussion of delinquency, we assume that the dissents recognize that there is no evidence in this record to sustain defendant’s conviction on this ground.
“One of the rightful boasts of Western civilization is that the (prosecution) has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure.” Irvin v Dowd, 366 US 717, 729; 81 S Ct 1639; 6 L Ed 2d 751 (1961) (Frankfurter, J., concurring) (emphasis added).
Again, the prosecutor argued that the child’s “being in that house is being subject to neglect and/or delinquency.”
Because of lack of evidence produced at trial, the dissents turn to evidence that was not presented at trial to sustain defendant’s conviction. In doing so, they forget that the prosecutor “has the burden of establishing guilt solely on the basis of evidence produced in court... .” Irvin, 366 US at 729 (Frankfurter, J., concurring) (emphasis added). For instance, Justice Young’s dissent places great weight on the fact that “the trial court did, in fact, recommend to the Department of Human Services that the court exercise jurisdiction over the child,” albeit on the basis of the same failure to assess the applicable law as the dissenting justices. Nonetheless, this fact was not in evidence because the trial court did not make this recommendation until sentencing. Likewise, the jury was not presented with evidence of defendant’s “open use of heroin,” as Justice Young suggests, or that defendant was a “repeat drug-offender,” as noted by Justice CORRIGAN. And, as already noted, the jury did not consider the social science research offered by the prosecutor on appeal.
Dissenting Opinion
(dissenting). I would affirm defendant’s misdemeanor conviction for contributing to the neglect or delinquency of a minor under MCL 750.145. The Court of Appeals correctly concluded that “there was sufficient evidence for the jury to infer that defendant’s
I. FACTS AND PROCEEDINGS
Defendant is a repeat drug offender. On August 16, 2006, officers with the Narcotics Section of the Detroit Police Department executed a warrant to search for drugs in defendant’s home. They knocked on defendant’s door and ultimately forced it open and entered the home. They found a small boy — defendant’s 10-
The officers discovered defendant sitting on a bed in one of the home’s two bedrooms. They observed a plastic bag filled with heroin on a plate under the bed. They also found a digital scale used for weighing narcotics and two loaded handguns in the drawer of his bedroom dresser. Finally, the officers confiscated cash that they believed was proceeds from narcotics sales. Both defendant and his wife, the boy’s mother, were arrested and handcuffed at the scene. A jury convicted defendant, as charged, of possession of less than 25 grams of heroin, MCL 333.7403(2)(a)(u), possession of a firearm during the commission of a felony, MCL 750.227b, unlawful possession of a firearm by a felon, MCL 750.224f, and contributing to the neglect or delinquency of a minor, MCL 750.145.
II. STANDARD OF REVIEW
When considering whether the evidence presented at trial was sufficient to support a conviction, a reviewing court must view the evidence in the light most favorable to the prosecution. People v Wright, 477 Mich 1121, 1122 (2007). “A reviewing court need not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Id., quoting Jackson v Virginia, 443 US 307, 319; 99 S Ct 2781; 61 L Ed 2d 560 (1979) (additional quotation marks and citation omitted). “Rather, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Wright, 477 Mich at 1122, quoting Jackson, 443 US at 319 (emphasis omitted).
A. MCL 750.145
MCL 750.145 provides:
Any person who shall by any act, or by any word, encourage, contribute toward, cause or tend to cause any minor child under the age of 17 years to become neglected or delinquent so as to come or tend to come under the jurisdiction of the [family] division of the [circuit] court, as defined in [MCL 712A.2], whether or not such child shall in fact be adjudicated a ward of the . .. court, shall be guilty of a misdemeanor.[2]
Significantly, the statute does not require the evidence to show that a defendant’s acts actually caused the child to come under the court’s jurisdiction. Rather, the text establishes a fairly low threshold, asking whether a defendant’s acts encouraged, contributed toward, caused, or tended to cause a child to come or tend to come under the court’s jurisdiction. And, crucially, the statute applies “whether or not such child shall in fact be adjudicated a ward” of the court.
First, as the majority opinion observes, the statute twice employs the word “tend.” “Tend” is a commonly used word that needs little explanation.
1. to be disposed or inclined in action, operation, of effect to do something .... 3. to lead or conduce, as to some result or condition.... 4. to be inclined to or have a tendency toward a particular quality, state or degree .... 5. (of a course, road, etc.) to lead or be directed in a particular direction....
Webster’s defines “tendency” in relevant part as follows: “1. a natural or prevailing disposition to move, proceed, or act in some direction or toward some point, end, or result. 2. an inclination, bent, or predisposition to something.” Id. Finally, Webster’s states that to “predispose” is “1. to make susceptible or liable: genetic factors predisposing us to disease. 2. to dispose beforehand; incline; bias.” Thus, MCL 750.145 essentially requires a jury to conclude that a defendant’s acts would naturally lead to, or make a child susceptible to, court jurisdiction.
Finally, the statute not only lacks any requirement that actual court jurisdiction be realized, it also does not require that the child become a ward of the court if the court does actually assume jurisdiction as the result of alleged abuse or neglect. As I explain further below, an order assuming court jurisdiction over a child is distinct from an order rendering the child a court ward. The court may take initial jurisdiction in order to ensure that a child is protected, but the child may never become a court ward; that is, he may not be removed from his parents’ care although conditions justifying initial jurisdiction are present. Further, even if the child becomes a court ward, this status does not necessarily lead to termination of parental rights; the child may simply become a temporary ward. MCL 712A.20. Because MCL 750.145 applies although the child may never even become a temporary ward of the court, the Legislature has signified that a misdemeanor conviction
B. MCL 712A.2
Because a jury must be able to conclude that a defendant’s acts affected a child’s tendency to come under the court’s jurisdiction as defined in MCL 712A.2, we must also address MCL 712A.2. The prosecutor here argued that defendant’s acts tended to cause court jurisdiction as a result of both delinquency and neglect. I focus on neglect because the evidence on this point is particularly strong.
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. ... [or]
*771 (2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in. [MCL 712A.2(b).]
A court may authorize a petition for jurisdiction under MCL 712A.2(b) “upon a showing of probable cause that 1 or more of the allegations in the petition are true and fall within the provisions of [MCL 712A.2(b)].” MCL 712A.13a(2). The probable cause standard “requires a quantum of evidence ‘sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief ” that the fact asserted is true. People v Yost, 468 Mich 122,126; 659 NW2d 604 (2003), quoting People v Justice (After Remand), 454 Mich 334, 344; 562 NW2d 652 (1997). Thus, the court takes jurisdiction on the basis of a reasonable belief that a child is subject to neglect at the time jurisdiction is sought. Significantly, this less rigorous standard permits protection of children in emergency situations but by no means automatically leads to the initiation of proceedings to terminate parental rights.
Indeed, an initial exercise of court jurisdiction may result in a wide array of outcomes. For example, the court may permit the child to remain with his parents “under reasonable terms and conditions necessary for either the juvenile’s physical health or mental well-being.” MCL 712A.13a(3). The court may also “order a parent, guardian, custodian, nonparent adult, or other person residing in a child’s home to leave the home and, except as the court orders, not to subsequently return to the home” under some circumstances. MCL 712A.13a(4). Finally, the court may place a child temporarily with relatives or foster care providers. See MCL 712A.13a(8) to (10), (13), and (14). This last option requires that the child be made a temporary court ward. See MCL 712A.19b(l); MCL 712A.19(3). As noted
This discussion highlights the normal threshold necessary for the court to establish jurisdiction over a child. However, important for my analysis here, I reiterate that the prosecution need not establish that there was actual jurisdiction over the child or that there was actual probable cause for such jurisdiction. The prosecution need only show that defendant’s actions were of such a kind or sort that they contributed to or tended to cause the child’s susceptibility to the court’s jurisdiction.
C. APPLICATION
Here the police found heroin
Accordingly, the evidence of unsecured drugs and two unsecured, loaded weapons was sufficient for a rational jury to conclude that defendant’s acts posed a danger to the child that would tend to result in or contribute toward court jurisdiction, particularly under MCL
IV ADDITIONAL RESPONSES TO THE MAJORITY
I respectfully suggest that the majority’s analysis is underpinned, to some degree, by a misunderstanding of
Here, for example, the court could have assumed initial jurisdiction because of the unsafe conditions discovered by the police at the time of the raid. But the court may well have immediately returned the child home conditioned on proof of the removal of all guns and drugs — and, indeed, perhaps on removal of defendant himself — from the home. My point is that the court still could have obtained jurisdiction over the child as an initial matter because of defendant’s criminal acts even if there were no grounds for termination and the child never became a court ward but was simply returned to his mother.
I further note, in response to the majority’s fears, that the low thresholds established by MCL 750.145 are arguably consistent with the nature of the crime. Contributing to the delinquency or neglect of a minor is a misdemeanor, MCL 750.145, and thus is not punishable by a prison sentence, MCL 750.6; MCL 750.7; MCL 750.8.
In any event, I disagree with the majority’s assertion that this case involves “a ‘by itself’ criminal conviction serving as a basis for a neglect or delinquency conviction.” To the contrary, as discussed above, defendant’s specific acts — keeping unsecured drugs and loaded weapons in the home and necessitating a police raid — were a sufficient basis on which to find probable cause justifying the court’s jurisdiction because the acts compromised the child’s health, morals, and mental well-being or rendered the home unfit for the child as a result of criminality. Therefore, this case is not comparable to the majority’s hypothetical cases in which, for example, a parent merely commits tax fraud, performs unlicensed work, or possesses items such as pirated DVDs or “scalped” football tickets in a home where a child is present. First, most of these supposed crimes do not involve keeping inherently dangerous items unsecured in the home. Second, the effect to a child of a parent’s unlawful activity cannot be ascertained without the surrounding facts of a particular case. For instance, the majority refers to parents who possess unlawful
In closing, a conviction under MCL 750.145 is proper if a jury can conclude beyond a reasonable doubt that the defendant’s acts tended to cause or contributed toward a child’s tendency to come under the court’s jurisdiction. A jury’s affirmative findings on these issues result only in a misdemeanor conviction. These findings do not cause court jurisdiction; indeed, the child need not necessarily come under the court’s jurisdiction at all. These findings also do not alter the significant protections afforded to parents appearing
For each of these reasons, I would affirm defendant’s misdemeanor conviction for contributing to the neglect or delinquency of a minor under MCL 750.145. A rational jury could — and, most importantly, did— conclude that defendant’s acts rendered his 10-year-old stepson susceptible to the court’s jurisdiction. The majority’s decision to the contrary — which I believe is motivated by unjustified fears and a misunderstanding of initial court jurisdiction — is disloyal to the plain text of MCL 750.145, MCL 712A.2(b), and MCL 712A.13a(2).
People v Tennyson, unpublished opinion per curiam of the Court of Appeals, issued October 16, 2008 (Docket No. 278826), p 4.
2 The statutory language has been altered to reflect the transfer of jurisdiction from the probate court to the family division of circuit court. See MCL 600.1021(l)(e); MCL 712A.l(l)(c). See also MCL 600.1009.
I find the majority’s lengthy discussion of “tend” unnecessary and confusing. The majority accuses me of “avoiding analysis at all” and failing “to address the various meanings of this term....” But this Court’s duty is to ascertain the plain, everyday meaning of non-technical statutory words. MCL 8.3a; Grievance Administrator v Underwood, 462 Mich 188, 194; 612 NW2d 116 (2000) (“[CJommon words must be understood to have their everyday, plain meaning____”). Justice Mahkman himself has observed that “[t]he ‘common understanding’ of most words is that they possess their plain and ordinary meanings.” Mich United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359, 397-398; 630 NW2d 297 (2001)
The majority focuses on the Legislature’s use of the word “tend” in MCL 750.145 “because it requires the lowest threshold of proof.” It is not immediately obvious to me that acts tending to cause delinquency or neglect require less proof than do acts encouraging or contributing toward delinquency or neglect.
A conviction under MCL 750.145 may be based on a defendant’s act or word that encourages, contributes toward, causes or tends to cause a child either to become “neglected or delinquent” so as to come or tend to come under court jurisdiction. MCL 750.145 (emphasis added). Accordingly, defendant’s conviction should be affirmed if there is sufficient evidence with regard to neglect or delinquency; proof related to only one of these potential grounds for court jurisdiction is adequate for conviction.
Heroin is classified in the highest, most harmful category of drugs; it is a schedule 1 controlled substance, MCL 333.7212(l)(b), with a “high potential for abuse” and no safe medical use, MCL 333.7211. Possession of any amount of heroin constitutes a felony. MCL 333.7401(2)(a).
Because the facts revealed multiple unsecured, loaded weapons within a child’s reach combined with similarly accessible heroin, defendant’s acts cannot be directly compared to those of a law-abiding gun owner. I address the majority’s fears concerning law-abiding gun owners later in this opinion.
This is to say nothing of the danger posed by defendant’s apparent drug-dealing, particularly if he engaged in drug transactions in the child’s home. The jury was not asked to decide whether the evidence showed that defendant engaged in drug sales although testimony by police officers at trial established that, during the raid, they confiscated a digital scale and money they believed was attributable to drug dealing. Arguably this evidence could cause a probate court to form a reasonable belief that defendant’s drug-dealing posed an additional danger to the child worthy of investigation.
Further, particularly with regard to the child’s mental well-being, the evidence shows that the child was scared and crying during the police raid. Defendant’s criminal acts were the direct cause of the police raid that traumatized the child. I express no opinion concerning whether a police raid caused by a defendant’s criminality could alone justify a conviction under MCL 750.145 as a result of the trauma suffered by a child during the raid, as discussed by the majority. But here defendant’s criminality compromised the child’s well-being and proper custody in multiple ways that the jury or a probate court could consider in aggregate.
I also note that, if both of the child’s caregivers were detained as a result of the police raid, the jury could have reached the alternative conclusion that the child was susceptible to the court’s jurisdiction because he was “without proper custody or guardianship.” MCL 712A.2(b)(l). Under this criterion for jurisdiction, even if the child was simply temporarily without proper custody because of the arrest of his caretakers, the court could take jurisdiction until the child’s return to his mother was appropriate or until other arrangements for his care were
See also People v Beasley, 370 Mich 242, 246; 121 NW2d 457 (1963) (observing that a felony in Michigan is distinguishable from a misdemeanor “by reason of the place and severity of punishment”); 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1:2, p 9 (“Misdemeanors ... include all crimes for which punishment is provided that do not amount to felonies, and all acts prohibited by statute where the statute imposes no penalty for the violation.”).
Clearly, mere gun ownership does not endanger children and will not lead to the court taking jurisdiction over a child. Further, legal gun ownership may not be said to render a home unfit for a child under MCL 712A.2(b)(2) due, as here, to criminality.
It is irrelevant that the judge who presided over defendant’s criminal trial stated at sentencing that he would contact the Department of Human Services to request that a petition be filed to “terminate” defendant’s parental rights. The judge actually — and properly— requested an investigation into possible neglect or abuse. Any resulting child protective proceedings against defendant would take place according the mandates and protections of the juvenile code; the criminal judge’s mention of “termination” is of no moment.
In 2009, for example, 6,975 child protection petitions alleging abuse or neglect were filed. Only 2,618 termination petitions were filed that year. See Michigan Supreme Court Annual Report 2009, p 45 <http://courts.michigan.gov/scao/resources/publications/statistics/2009/ 2009execsum.pdf> (accessed May 21, 2010).
Dissenting Opinion
(dissenting). This is really a very simple case. Defendant shared a home with his 10-year-old stepson. In that home, defendant used heroin and stored it on a plate under his bed; he also kept loaded firearms in an unlocked bedroom dresser. These acts precipitated a raid by the police and the arrest of defendant while the child was present.
Only a lawyer could come to the conclusion that defendant’s conduct does not constitute “criminality” that, in theory, allows the family division of the circuit court to take jurisdiction over defendant’s stepchild. And here we need not even engage in theoretical or fanciful speculation because the trial court did, in fact, recommend to the Department of Human Services that the court exercise jurisdiction over the child. Yet four justices of this Court have held that keeping heroin and illegal, loaded handguns in easily accessible locations in a home occupied by a 10-year-old boy were insufficient predicates for a jury to find defendant guilty of the misdemeanor of contributing to the delinquency or neglect of a minor.
The majority concludes that it would be “unreasonable” and “potentially absurd”
did not participate in the decision of this case in order to avoid unnecessary delay to the parties in a case considered by the Court before he assumed office by following the practice of previous justices in transition and participating only in those cases for which his vote would be result-determinative. His non-participation in this decision does not affect his eligibility to participate in deciding a motion for rehearing.
Ante at 737 (emphasis added).
The causation language of MCL 750.145 provides: “Any person who shall by any act, or by any word, encourage, contribute toward, cause or tend to cause . ...” It is hard to imagine how the Legislature could have chosen more expansive language of general application to capture conduct injurious to children.
Ante at 740.