In Re Colon
- Reporters:
- ,
- Before:
- MacKenzie
Respondent appeals as of right from a probate court order terminating his parental rights pursuant to the Michigan Adoption Code,
On May 12, 1982, petitioner Mary Lou Rodriguez petitioned to have the parental rights of respondent/natural father terminated so that the stepfather, Jony Rodriguez, could adopt respondent’s two children. Petitioner had been granted legal custody of the children, Christina, born July 17, 1976, and Fran, III, born October 6, 1977, in a divorce judgment entered April 27, 1979. Subsequently, Mr. Rodriguez had filed a petition under the Adoption Code to adopt the children. Mary Lou Rodriguez’s petition for termination of parental rights alleged that respondent had failed to provide regular and substantial support for four years, and had substantially failed to visit, contact, or communicate with the children for three years.
A hearing was held on Mr. Rodriguez’s petition on December 8, 1983. Testimony revealed that the default judgment of divorce required respondent to pay $50 per week in child support. As of July 21, 1983, respondent had paid a total of $920 and was $10,265.50 in arrears. Respondent had visited his
Respondent did not testify at the hearing. The evidence showed that respondent had been employed from March, 1980, to September, 1980. He had made most of the child support payments in 1980; he had also paid $110 to the Friend of the Court in 1981. In addition, respondent had made two direct payments to petitioner. In September, 1981, respondent was incarcerated. He was subsequently convicted of arson and four counts of first-degree murder, and sentenced to four natural life terms and one 12- to 20-year term of imprisonment.
The probate court found that respondent had regularly and substantially failed to support or visit his children for two years or more preceding his incarceration. The court entered an order terminating respondent’s parental rights on December 12, 1983. On appeal, a brief was filed on behalf of the minors.
Respondent’s first claim is that the probate court committed reversible error in shifting the burden of proof to him to show an inability to provide support. Respondent assumes that his ability to support was a relevant factor under the statute governing stepparent adoptions,
“If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father who meets the conditions in section 39(2) of this chapter, and if the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an orderterminating the rights of the other parent if both of the following occur:
“(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.
“(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition.”
The attorney for the minors contends that this provision does not require any showing regarding the natural father’s ability or inability to support in cases where a support order has been entered. The minors argue that subsection (6)(a) should be read as two independent parts:
(1) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child, for a period of 2 years or more before the filing of the petition; or
(2) The other parent, if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.
Under this construction, the minors argue, petitioner satisfied her burden of proof because the evidence clearly showed that respondent had failed to substantially comply with the child support order in the divorce judgment.
Interpretation of
We believe an ambiguity does exist in
“Under the Michigan Adoption Code, if parents of a child are divorced and the parent having legal custody of the child subsequently remarries, that parent’s new spouse may not adopt the child unless given the consent of the other living parent. This presents problems in cases where the parent who does not have legal custody of the child cannot be located, or fails to support or communicate with the child but has not allowed his or her parental rights to be terminated. In such instances, even though the child’s stepparent may be providing the material and emotional support which would be expected of the child’s legal parent, that stepparentmay not adopt the child or act in a legal capacity as the child’s parent, such as to give consent to treatment in a medical emergency. Given the inherent unfairness to the stepparent, the parent having legal custody, and the child, of allowing a parent who does not support or communicate with his or her child to block the adoption of that child by a loving, caring stepparent, some feel that the law should be changed to permit the termination of parental rights under such circumstances, so as to enable the stepparent to adopt the child.”
Under the respondent’s interpretation, a stepparent who wishes to adopt must prove both that the divorced natural parent has not complied with a support order, and that the parent had the ability to comply. However, this interpretation would tend to frustrate the purposes of the amendment in cases where the divorced parent is so remote from the child and the court proceedings that the parent’s inability to support cannot be proven. Thus, respondent’s interpretation would place a virtually impossible burden on the stepparent seeking adoption precisely where the termination of parental rights would be most warranted. We do not believe the Legislature would have intended such a result. Statutes are to be construed to avoid unreasonable or absurd results. In the Matter of Karen Marable, 90 Mich App 7; 282 NW2d 221 (1979), lv den 407 Mich 871 (1979).
Finally, the minors’ construction of the statute comports with Michigan laws concerning child support. The Legislature is presumed to know of and legislate in harmony with existing law.
Rochester Community Schools Bd of Ed v State Bd of Ed,
104 Mich App 569, 578; 305 NW2d 541 (1981). In Michigan a parent who cannot comply with a child support provision in a divorce decree may petition the circuit court for a modification. The circuit court is statutorily empowered to modify
For the above reasons, we hold that, in cases where a child support order has been entered,
“[T]he court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur * * (Emphasis added.)
Respondent’s argument is lacking in merit. In proceedings to terminate parental rights under the Juvenile Code, the state must show by clear and convincing evidence that the termination is warranted.
In the Matter of Bidwell,
129 Mich App 499; 342 NW2d 82 (1983);
In the Matter of Moore,
134 Mich App 586; 351 NW2d 615 (1984). We believe petitioner must shoulder the same burden of proof in Adoption Code proceedings under
A conflict exists in this Court as to the proper standard of review on appeal from an order terminating parental rights. We need not decide whether the correct standard is de novo as stated in Bahr v Bahr, 60 Mich App 354, 360; 230 NW2d 430 (1975), lv den 394 Mich 794 (1975), or the “clearly erroneous” standard followed in In the Matter of Irving, 134 Mich App 678; 352 NW2d 295 (1984), as we reach the same decision under either standard.
In the instant case, the probate court specifically recognized that proof by clear and convincing evidence was necessary, and that a showing of ability to visit was required under
We cannot say that the findings of the probate court are clearly erroneous. Repsondent’s visits were sporadic, and his claim that petitioner effectively blocked his efforts to see the children more frequently is not convincing. Petitioner testified that respondent was aware of the children’s whereabouts and telephone number at all times. He did not request a change in the visitation order (which provided for “reasonable visitation”) or complain to the Friend of the Court about being denied visitation. With this evidence on the record, we reject respondent’s argument that he did not have the “ability to visit” within the meaning of
Respondent’s final claim is that the probate court commited reversible error in denying his request for a jury trial. Respondent relies on Const 1963, art 1, § 14, which states in part:
“The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.”
Respondent also relies on a comparison between provisions for parental termination in the Juvenile Code and the Adoption Code.
The minors do not address respondent’s arguments because they assert that respondent failed to demand a jury trial. This claim is clearly lack
The question of whether there is a right to jury trial in proceedings under
Another Adoption Code provision,
Parental termination under the Juvenile Code consists of two parts: adjudicative and dispositional. The adjudicative part is jurisdictional.
The dispositional part follows establishment of jurisdiction.
In the present case, respondent argues that the parental termination hearing under
We disagree. The parental rights termination hearing under the Adoption Code is analogous to the dispositional phase of a Juvenile Code hearing. The findings of fact that the court must make under the Adoption Code,
“Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the Court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
“(b) The child is left with intent of desertion and abandonment by his parent or guardian in the care of another person without provision for his support or without communication for a period of at least 6 months. The failure to provide support or to communicate for a period of at least 6 months shall be presumptive evidence of the parent’s intent to abandon the child. If, in the opinion of the court, the evidence indicates that the parent or guardian has not made regular and substantial eiforts to support or communicate with the child, the court may declare the child deserted and abandoned by his parent or guardian.”
In both provisions the court makes findings concerning the parent’s support of and communication with the child for designated lengths of time. See
Boughan, supra.
As a jury trial is precluded in the Juvenile Code dispositional phase, it follows that there is no right to a jury trial in hearings under
Respondent also argues that he is constitutionally entitled to a jury trial under Const 1963, art 1, § 14. The validity of this assertion depends on application of the following standards from Conservation Dep’t v Brown, 335 Mich 343, 346-347; 55 NW2d 859 (1952):
“[T]he right to trial by jury is preserved in all cases where it existed prior to adoption of the Constitution. * * * The constitutional guaranty applies to cases arising under statutes enacted subsequent to adoption of the Constitution, which are similar in character to cases in which the right to jury trial existed before the Constitution was adopted. * * * The right to trial byjury, in cases where it existed prior to adoption of the Constitution, may not be defeated by enactment of a statute providing for trial on the chancery side of issues formerly triable in proceedings at law. * * * Where there are questions of fact to be determined and the issues are such that at common law a right to jury trial existed, that right cannot be destroyed by statutory change of the form of action or creation of summary proceedings to dispose of such issues without jury, in the absence of conduct amounting to waiver.” (Citations omitted.)
The Court in Brown held that defendants had no right to a jury trial because “these proceedings are not under a cause of action known to the common law, but are under a new cause of action, created by statute, which was unknown to the legal system of this State when the Constitution was adopted”. 335 Mich 349-350.
Applying the Brown standards, this Court in Meyer v Treasury Dep‘t 129 Mich App 335, 339; 341 NW2d 516 (1983), found that a hearing before the Michigan Tax Tribunal was not a proceeding that existed at common law before adoption of the Michigan Constitution of 1835, and thus there was no right to jury trial.
In the case at bar, the relevant statutory provision was incorporated into the Adoption Code by 1980 PA 509. Since this postdated the Michigan Constitution, under Brown, respondent’s entitlement to a jury trial depends on whether this case is “similar in character” to cases affording a jury trial before the Constitution was adopted. In addition, we must look to whether the instant proceeding involves a cause of action “known to the common law”. Brown, supra; Meyer, supra.
In general, before the Constitution was adopted, there was a right to jury trial at law but not in equity.
Wolfenden v Burke,
69 Mich App 394, 399;
When the Michigan Legislature passed the custody of infants act, 1873 PA 192, providing that the mother could be granted custody, and later amended the act to recognize that courts of chancery could issue decrees regarding child custody (which had always been the rule), it was clear child custody matters were equitable in nature. Sovereign, supra; In re Mark T, supra.
Consequently, we reject respondent’s argument that he was entitled to a jury trial under Const 1963, art 1, § 14 in this Adoption Code proceeding.
Having found respondent’s arguments lacking in merit, we affirm the probate court’s order terminating respondent’s parental rights.
Affirmed.