STATE OF
MICHIGAN
COURT OF APPEALS
__________________________________________
In the Matter of BABY GIRL DAWSON, Minor
CHRISTINE DAWSON, FOR PUBLICATION
November 24, 1998
Petitioner-Appellant, 9:05 a.m.
v No. 210641
Ottawa Circuit Court
00-000923
ROBERT EMERSON,
Respondent-Appellee.
Before: Corrigan, C.J., and Doctoroff and Fitzgerald, JJ.
DOCTOROFF, J.
Petitioner appeals as of right from an order of the Ottawa
Circuit Court, Family Division, denying her petition to terminate
respondent's parental rights pursuant to § 39 of the Adoption
Code, MCL 710.39; MSA 27.3178(555.39). We affirm.
Petitioner and respondent began a dating relationship in
March-April, 1997. They planned to live together, and began
looking for a house. Soon thereafter, petitioner learned that she
was pregnant. They discussed abortion, but decided to have, and
raise, the child. In August, 1997, respondent applied for a
mortgage, which was later approved. However, just before they were
to close on the house, petitioner decided to have an abortion. By
this time, respondent opposed the abortion, and wanted petitioner
to have the baby. Due in part to this difference of opinion,
petitioner ended the relationship. As a result, respondent decided
not to purchase the house. In September, 1997, petitioner decided
to place the baby for adoption. She falsely told respondent that
he was not the father. In December, 1997, the adoption agency
notified respondent that petitioner had named him as the father.
In January, 1998, respondent filed a notice of intent to claim
paternity. The baby was born on February 6, 1998, and was
immediately turned over to the prospective adoptive parents.
Petitioner did not inform respondent that the baby had been born.
Petitioner then filed a petition for a hearing to terminate
respondent's parental rights, conditioning the release of her
parental rights on the termination of respondent's parental rights.
The hearing was held on February 27, 1998. The trial court found
that, under the circumstances of this case, respondent's filing of
the notice of intent to claim paternity constituted "support or
care" for the purposes of § 39(2). The trial court went on to
find that, even if respondent did not fall within § 39(2),
pursuant to § 39(1), he was fit and able to properly care for
his child, and it was in the best interests of the child to grant
custody to him. Accordingly, the trial court denied the petition
to terminate respondent's parental rights.
Petitioner first argues that the trial court erred in ruling
that a putative father's filing of a notice of intent to claim
paternity constitutes the provision of "support or care" for the
purpose of MCL 710.39(2); MSA 27.3178(555.39)(2). We agree, but
conclude that the error was harmless. This issue presents a
question of law, which we review de novo on appeal. In re
Hamlet (After Remand), 225 Mich App 505, 521; 571 NW2d 750
(1997).
MCL 710.39; MSA 27.3178(555.39) provides, in part:
(1) If the putative father does not come within the
provisions of subsection (2), and if the putative father
appears at the hearing and requests custody of the child,
the court shall inquire into his fitness and his ability
to properly care for the child and shall determine
whether the best interests of the child will be served by
granting custody to him. If the court finds that it
would not be in the best interests of the child to grant
custody to the putative father, the court shall terminate
his rights to the child.
(2) If the putative father has established a custodial
relationship with the child or has provided support or
care for the mother during the pregnancy or for either
mother or child after the child's birth during the 90
days before notice of the hearing was served upon him,
the rights of the putative father shall not be terminated
except by proceedings in accordance with section 51(6) of
this chapter or section 2 of chapter XIIA. [Footnotes
omitted.]
As the Court stated in In the Matter of Barlow, 404
Mich 216, 229; 273 NW2d 35 (1978):
Section 39 of the Code creates two categories of putative
fathers and provides different standards for termination
of the rights of each. Putative fathers who have
established no custodial relationship with the child, and
who have provided no support for the mother or child
prior to the notice of hearing, may have their parental
rights terminated if the court finds, after examining the
father's fitness and ability to properly care for the
child, "that it would not be in the best interests of the
child to grant custody" to him. The parental rights of
the second group, those who have established some kind of
custodial or support relationship prior to the notice of
hearing, are subject to termination only by proceedings
under the general jurisdictional provisions of Chapter
12A of the Probate Code.
The test to determine whether a putative father has provided
"support or care" for the mother or child is whether the father
provided reasonable care under the circumstances of the case.
In re Gaipa, 219 Mich App 80, 86; 555 NW2d 867 (1996). In
determining whether the father has provided reasonable care under
the circumstances, the court should consider factors such as the
father's ability to provide support or care, the needs of the
mother, the kind of support or care provided, the duration of the
support, whether the mother impeded the father's efforts to provide
her with support, and any other significant factors. Gaipa,
supra, 219 Mich App 86. The support or care must be "more than
an incidental, fleeting, or inconsequential offer of support or
care," but need not rise to the level of "regular and substantial"
support in all cases. Id. at 85.
The trial court determined that "[g]iven these unusual facts
where the mother tells the father he is not the father and then
names him as the father in the Notice to Putative Father and
Custody Statement (MCL 710.37), and he responds by filing the
Section 33 Notice of Intent to Claim Paternity, we hold that the
father comes within Subsection (2) of MCL 710.39 as construed by
Gaipa Supra." The filing of a notice of intent to claim
paternity is not "support or care" for the purposes of MCL
710.39(2); MSA 27.3178(555.39)(2). A notice of intent to claim
paternity merely creates a rebuttable presumption of paternity for
the purposes of the Paternity Act[1] and
dependency or neglect proceedings under MCL 712A.1 et seq;
MSA 27.3178(598.1) et seq. MCL 710.33(2); MSA
27.3178(555.33)(2). Nothing in § 33 or § 39 reflects
that the Legislature intended the filing of a notice of intent to
claim paternity to constitute support or care for the purposes of
§ 39(2).
Although the trial court erred in determining that
respondent's filing of the notice of intent to claim paternity was
sufficient evidence of "support or care" to satisfy § 39(2),
the error was harmless because the trial court further found that,
even if respondent did not fall within § 39(2), pursuant to
§ 39(1), respondent was fit and able to properly care for the
child, and that it was in the child's best interest to grant
custody to respondent.
Nevertheless, we feel compelled to express our concern that
§ 39 treats a putative father unfairly where, as in the
instant case, the mother's actions prevent the putative father from
providing support or care for the mother during the pregnancy or
establishing a custodial relationship with the child. Here,
petitioner told respondent that she planned to abort the child,
later told him that he was not the father of the child, and then
did not inform him when she gave birth to the child. In such a
situation, we do not believe the putative father should be placed
in the category of putative fathers who fall within § 39(1).
However, because § 39, as written, does not account for such
a situation, we must conclude in the instant case that respondent
did not satisfy § 39(2).
Petitioner next argues that the trial court erred in ruling
that, when determining the best interests of the child under
§ 39(1), the court should only examine the circumstances of
the putative father, and should not compare the putative father to
the prospective adoptive parents. We disagree. The interpretation
of a statute is a question of law, which we review de novo on
appeal. In re Schnell, 214 Mich App 304, 310; 543 NW2d 11
(1995).
The primary goal of judicial interpretation of statutes is to
ascertain the intent of the Legislature. Schnell, supra,
214 Mich App 309. The first criterion in determining intent is
the specific language of the statute. Id. at 310. The
Legislature is presumed to have intended the meaning it plainly
expressed, and when the language of a statute is clear and
unambiguous, judicial construction is neither required nor
permitted. Id. However, if a statute is ambiguous and
reasonable minds can differ as to the meaning of the statute,
judicial construction is permitted. Id. at 311. When
construing a statute, the court must use common sense and should
construe the statute so as to avoid unreasonable consequences.
Gaipa, supra, 219 Mich App 84-85. Because the Adoption Code
is in derogation of the common law, it must be strictly construed.
Schnell, supra, 214 Mich App 310.
Section 39(1) clearly indicates that, when a putative father
does not fall within the provisions of subsection (2), the court
must "inquire into his fitness and his ability to
properly care for the child." Section 39(1) further provides that
the court must determine whether it is in the best interests of the
child to grant custody to the putative father. According to the
adoption Code:
"Best interests of the adoptee" or "best interests of the
child" means the sum total of the following factors to be
considered, evaluated, and determined by the court to be
applied to give the adoptee permanence at the earliest
possible date:
(i) The love, affection, and other emotional ties
existing between the adopting individual or individuals
or, in the case of a hearing under section 39 of this
chapter, the putative father and the adoptee.
(ii) The capacity and disposition of the adopting
individual or individuals or, in the case of a hearing
under section 39 of this chapter, the putative father to
give the adoptee love, affection, and guidance, and to
educate and create a milieu that fosters the religion,
racial identity, and culture of the adoptee.
(iii) The capacity and disposition of the adopting
individual or individuals or, in the case of a hearing
under section 39 of this chapter, the putative father, to
provide the adoptee with food, clothing, education,
permanence, medical care or other remedial care
recognized and permitted under the laws of this state in
place of medical care, and other material needs.
(iv) The length of time the adoptee has lived in a
stable, satisfactory environment, and the desirability of
maintaining continuity.
(v) The permanence as a family unit of the proposed
adoptive home, or, in the case of a hearing under section
39 of this chapter, the home of the putative father.
(vi) The moral fitness of the adopting individual or
individuals or, in the case of a hearing under section 39
of this chapter, of the putative father.
(vii) The mental and physical health of the adopting
individual or individuals or, in the case of a hearing
under section 39 of this chapter, of the putative father,
and of the adoptee.
(viii) The home, school, and community record of the
adoptee.
(ix) The reasonable preference of the adoptee, if
the adoptee is 14 years of age or less and if the court
considers the adoptee to be of sufficient age to express
a preference.
(x) The ability and willingness of the adopting
individual or individuals to adopt the adoptee's
siblings.
(xi) Any other factor considered by the court to be
relevant to a particular adoption proceeding, or to a
putative father's request for child custody. [MCL
710.22(f); MSA 27.3178(555.22)(f).]
Before § 22(f) was amended by 1994 PA 222, it did not
mention § 39. The amendment's addition of the language
"or, in the case of a hearing under section 39 of this
chapter," clarified the apparent legislative intent, that the
putative father's circumstances be examined alone, without
comparison to the prospective adoptive parents, when determining
the best interests of the child under § 39. The factors
containing the language referring to § 39 indicate that the
court is to consider those factors with respect to the adopting
individual or individuals, "or, in the case of a hearing
under section 39 of this chapter," the court is to consider the
factor with respect to the putative father. The references in
§ 22(f) to the adopting individual or individuals are only
relevant when the "best interests of the adoptee" are being
considered for purposes other than § 39. Nothing in the
language of § 39 or § 22(f) indicates that the putative
father is to be compared to the adopting individual or individuals
when evaluating the best interests of the child under § 39.
If the Legislature had intended such a comparison it could have
easily stated that the putative father is to be compared with the
prospective adoptive parents. We also note that the interpretation
urged by petitioner cannot be applied in cases where adoptive
parents have not yet been found.
Moreover, to require a comparison between the putative father
and the prospective adoptive parents would be unfair and
unreasonable. Where a putative father appears in court desiring
custody of his child, and is found to be fit and able to properly
care for his child, he should not be required to compete with
individuals who wish to adopt his child. Specifically, in the
instant case, where it was petitioner's conduct that kept
respondent from his child, we do not believe that respondent should
have to compete with the prospective adoptive parents.
Accordingly, we conclude that if the court determines that the
father is fit and able to raise his child, the court should then
determine, by considering the father's situation alone, whether the
best interests of the child are satisfied by placing the child with
the father, or by terminating the father's parental rights and
placing the child for adoption.
Petitioner relies on In re Ballard, 219 Mich App 329,
336-337; 556 NW2d 196 (1996), in which this Court stated that
§ 22(f) directs a court to compare the putative father with
the adopting person or persons to determine the best interests of
the child under § 39. The relevant issue in Ballard
was whether a putative father's provision of custody and care
by relatives while he was in prison could be considered under
§ 39 and § 22 of the Adoption Code. Ballard, supra,
219 Mich App 336. In Ballard, the hearing to terminate
the respondent's parental rights was held before the effective date
of the amendment of § 22 by PA 1994 222, and the probate
court's decision specifically referred to the statute as it existed
before the amendment. Id. at 330. Therefore, the current
version of § 22(f) was not before this Court. Although this
Court referred to § 22(f) in its opinion, it was actually the
current § 22(f)'s predecessor, the former § 22(b), that
was before this Court in Ballard. Accordingly, we are not
bound to follow Ballard.
Affirmed.
/s/ Martin M. Doctoroff
/s/ Maura D. Corrigan
/s/ E. Thomas Fitzgerald
Footnote
1 MCL 722.711; MSA 25.491 through MCL 722.730;
MSA 25.510.