In re RFF
Docket No. 221581
Michigan Court of Appeals
Submitted April 5, 2000, at Lansing. Decided August 15, 2000
242 Mich. App. 188
Leave to appeal denied, 463 Mich 894.
A petition was filed in the Family Division of the Bay Circuit Court to determine whether LAF was the father of RFF and, if LAF was found to be the father of RFF, to determine whether LAF‘s parental rights should be terminated. RFF was born out of wedlock to BJF, who had consented to giving up her parental rights to RFF so that the child could be placed for adoption. LAF and BJF were high school students when BJF became pregnant. On several occasions during the winter and early spring of 1999, BJF told LAF, in response to his questions, that she was not pregnant. However, on April 14, 1999, BJF told LAF that she was pregnant, that he was the father of the child, and that she planned to put the baby up for adoption. LAF seemed to be in agreement with the adoption plan at that time, as he seemed to be again about two weeks later when BJF called him to find out if he had received the paperwork from the adoption agency. On May 10, 1999, LAF and his mother went to the adoption agency with the intent to sign the papers necessary to consent to the adoption; however, upon learning that the child had been born the previous day, LAF became upset and left without signing the adoption consent papers. A few days later, LAF met with a worker for the adoption agency and expressed a wish to see the baby. LAF saw RFF when the child was eight days old and, thereafter, informed the agency of his desire to keep his son. LAF testified that while the adoption agency worker initially seemed to indicate a willingness to assist him in getting custody of the child, telling him that he did not need a lawyer and the medical costs were not an issue because the prospective adoptive parents were paying all the bills, the worker‘s demeanor changed once LAF indicated a desire to keep RFF. It was undisputed that LAF did not send any money to support BJF during the pregnancy or to support either BJF or RFF after the birth of RFF. Following an evidentiary hearing, the court, Karen A. Tighe, J., held that this matter should be decided under the provisions of subsection 1 of § 39 of the Adoption Code,
The Court of Appeals held:
1. LAF asserts that the court erred in deciding this matter under the provisions of subsection 1 of § 39, rather than the provisions of subsection 2 of § 39,
2. In In re Dawson, 232 Mich App 690 (1998), the Court considered whether a father‘s rights should be determined under subsection 39(2) where a mother thwarts a putative father‘s participation in the pregnancy by the concealment from the father of the fact of the pregnancy and the father‘s attendant obligations. Although expressing concern that under the statute as written a father was denied the protections afforded by subsection 39(2) under circumstances where the father was not given a reasonable opportunity to satisfy the care or support conditions set forth in that subsection, the Dawson Court nevertheless held that the determination of the putative father‘s parental rights under such circumstances were controlled by the provisions of subsection 39(1).
3. LAF argues that the September 18, 1998, amendment by 1998 PA 94 of subsection 39(2), which added the language that the support or care was to be “regular and substantial” and “in accordance with the putative father‘s ability to provide such support or care,” made the holding of the Dawson Court concerning the intent and operation of subsection 39(2) before its amendment inapposite in this case. There is nothing in the legislative history of 1998 PA 94 to suggest that the Legislature considered the situation presented in the present case or intended by the amended language to create an exception to the care or support requirement of subsection 39(2) where a father has been deceived about a pregnancy. Accordingly,
4. Following the evidentiary hearing, the trial court made findings with respect to the relavent factors set forth in
5. LAF asserts that he was denied equal protection of the law because he, as the putative father of a child that was subject to adoption, had his parental rights terminated under the provisions of the Adoption Code on the basis of a finding that the termination was in the best interests of the child, while a father of a child that was not subject to adoption would have had his parental rights terminated under the provisions of the Juvenile Code only on a finding of neglect or abuse. Because LAF never established a custodial, personal, or financial relationship with his child, LAF does not possess the fundamental right of parenthood that will evoke a strict scrutiny review of his equal protection claim. Rather, his equal protection claim is subject to the rational basis standard of review.
6. A rational basis exists for providing an expeditious means of determining and terminating the parental rights of putative fathers under the Adoption Code: the need to provide prompt legal proceedings to assure that an adoptee is free for adoptive placement at the earliest possible time. Although the Adoption Code provides for termination of a putative father‘s parental rights upon a finding that the termination is in the best interests of the child, the termination of parental rights is available on that basis only where the putative father has contributed neither care nor support. There is a legitimate reason to treat fathers who have contributed care or support differently from those who have not. Accordingly, the equal protection claim on this basis must fail.
7. A rational basis exists for treating the termination of the parental rights of a mother of a child born out of wedlock differently from the termination of the parental rights of a putative father who has provided neither care nor support. Accordingly, the gender-based classification created by § 39 of the Adoption Code is substantially related to the Adoption Code‘s legitimate objective and creates no valid gender-based equal protection challenge.
WILDER, P.J., dissenting, stated that language of the 1998 amendment of subsection 39(2) by the addition of the language that the required care or support be “in accordance with the putative father‘s ability to provide such support or care” evidences a clear legislative intent to ameliorate the care or support requirement of subsection 39(2) in cases like this where concealment and faulty advice may have contributed to the putative father‘s failure to provide care or support. The matter should be remanded to the trial court for a determination whether the circumstances in this case prevented the putative father from providing care or support. Moreover, even if this matter were properly decided under the best interests standard of subsection 39(1), the decision in this matter should be reversed because the trial court failed to consider certain relevant facts and, accordingly, clearly erred in its determination that the termination of the putative father‘s parental rights was in the best interests of the child.
- PARENT AND CHILD — TERMINATION OF PARENTAL RIGHTS — ADOPTION — PUTATIVE FATHERS — SUPPORT OR CARE.
Neither the concealment from a putative father of the fact of a pregnancy nor faulty advice to a putative father by an adoption agency concerning the need of the putative father to provide care or support for the mother or the child will relieve a putative father from the care or support requirement of subsection 2 of § 39 of the Adoption Code; if a putative father does not provide care or support to the mother or the child during or after the birth of the child, even if the failure to provide such care or support is the result of the concealment of the pregnancy or misinformation concerning the need to provide such care or support, the determination of the parental rights of the putative father, including the determination whether to terminate the putative father‘s parental rights, is to be made pursuant to the best interests of the child standard of subsection 1 of § 39 of the Adoption Code (
MCL 710.39[1] ,[2] ;MSA 27.3178[555.39][1] ,[2] ). - PARENT AND CHILD — TERMINATION OF PARENTAL RIGHTS — ADOPTION CODE — EQUAL PROTECTION.
A putative father who has never established a custodial, personal, or financial relationship with his child does not possess the fundamental right of parenthood; any equal protection challenge by such a putative father is reviewed under the rational basis test rather than the strict scrutiny test; the determination whether to terminate the parental rights of a putative father who has provided neither care nor support of either a mother or her child pursuant to
subsection 39(1) of the Adoption Code on the basis that the termination of parental rights is in the best interests of the child does not deny the putative father equal protection of the law either with respect to other fathers not so situated or with respect to the mothers of children born out of wedlock ( MCL 710.39[1] ;MSA 27.3178[555.39][1] ).
Lynch, Gallagher, Lynch & Martineau, P.L.L.C. (by Jennifer M. Galloway), for LAF, putative father.
Kemp, Klein, Umphrey & Endelman, P.C. (by Lauran F. Howard) and Currie Kendall Polasky Meisel, PLC (by Julia Close), for BJF, mother.
Before: WILDER, P.J., and MCDONALD and DOCTOROFF, JJ.
MCDONALD, J. Appellant, LAF, appeals as of right the trial court‘s order terminating his parental rights to his son, RFF, pursuant to § 39 of the Adoption Code,
This case is troubling. We set forth the complete factual context to emphasize the numerous issues we believe the Legislature should consider in examining the statute at issue.
The child involved in this case was conceived out of wedlock while the parties were in high school. The parties dated for approximately a year, beginning in the fall of 1997. Their dating relationship ended in September 1998. According to appellant, in November 1998 appellee, BJF, told him that she had failed to have a menstrual period. Appellee recalled this disclosure being made in January 1999. In any event, appellee admits that she lied to appellant several times when he confronted her about rumors at school that she was pregnant. Several times she adamantly denied that she was pregnant. However, on April 14,
RFF was born May 9, 1999, and was immediately turned over to the prospective adoptive parents.1 Appellant was not informed about the birth at that time. He claimed that he did not know when the baby was due.
Appellant and his mother went to the adoption agency the day after the baby was born. They were going to the agency with plans for appellant to sign the papers necessary to consent to the adoption. However, when appellant learned that the baby had been born the previous day, he became upset and changed his decision. Appellant refused to sign the consent, and he and his mother left the agency. A few days later appellant contacted the adoption agency and arranged another meeting. At the meeting, he told
On June 25, 1999, the trial court held a hearing on the petition to identify the father and determine or terminate his rights. After determining that appellant was the father of the child,2 the trial court found that appellant had not provided “substantial and regular support or care” for the purposes of subsection 39(2) of the Adoption Code.3 The trial court acknowledged
Appellant first argues the trial court erred in applying subsection 39(1) rather than subsection 39(2) of the Adoption Code. This is a question of law, which we review de novo. In re Lang, 236 Mich App 129, 135-136; 600 NW2d 646 (1999).
(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 substantial and regular support or care in accordance with the putative father‘s ability to provide such support or care for the mother during 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 [
MCL 710.51(6) ;MSA 27.3178(555.51)(6) ] or section 2 of chapter XIIA [MCL 712A.1 et seq. ;MSA 27.3178(598.1) et seq. ]. [Emphasis added to reflect amendment by 1998 PA 94, effective September 1, 1998.]
As the Court explained in In re 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.
In this case, it is undisputed that appellant has not established a custodial relationship with RFF. It is also undisputed that appellant did not provide any support or care to appellee during her pregnancy or after RFF‘s birth. Appellant further admits that he has not provided any support or care to RFF since his birth. However, appellant argues that because of the
This Court has previously considered the issue whether the father‘s rights should be determined under subsection 39(2) where a mother thwarts his participation in the pregnancy in In re Dawson, 232 Mich App 690; 591 NW2d 433 (1998). In Dawson, the mother told the father she planned to have an abortion, later told him he was not the child‘s father, and then did not inform him the child was born. Id. at 692, 695. This Court held that “because § 39, as written, does not account for such a situation, we must conclude in the instant case that [the father] did not satisfy subsection 39(2).” Id. at 696. Accordingly, this Court held the father‘s rights were properly determined under subsection 39(1). Id. at 695.
However, the Legislature amended subsection 39(2) effective September 1, 1998, and in Dawson, this Court was interpreting the previous version of the statute. At the time this Court decided Dawson, subsection 39(2) provided:
If the putative father has established a custodial relationship with the child or has provided support or care for the mother during 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. [See Dawson, supra at 693.]
The amended statute provides that to come within subsection 39(2), a father must provide “substantial and regular support or care in accordance with the putative father‘s ability to provide such support or care.”
Appellant argues the statute was amended to address the problem in this case. We disagree.
Statutory interpretation is a question of law that this Court reviews de novo. In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998), Dawson, supra at 696. The starting point for determining the Legislature‘s intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993); Dawson, supra at 696. The Legislature is presumed to have intended the meaning it plainly expressed, and when the statutory language is clear and unambiguous, judicial construction is neither required nor permitted. Rowell v Security Steel Processing Co, 445 Mich 347, 353; 518 NW2d 409 (1994); Dawson, supra at 696. Where the language employed by the Legislature is susceptible to more than one interpretation, judicial construction is justified. Rowell, supra at 353. When construing a statute, the court must use common sense and should construe the statute to avoid unreasonable consequences.
Appellant argues that the Legislature intended to include fathers who have been deceived about a pregnancy under subsection 39(2) when it added the phrase “in accordance with the putative father‘s ability to provide such support or care” to the statute. This language does not clearly address the situation presented in this case. At best, the language may be susceptible to multiple meanings. The language could simply address a putative father‘s financial ability to provide substantial and regular support and care to the mother during pregnancy. The phrase might also be interpreted in a broader sense to encompass the situation in this case. However, even if we view the language as ambiguous, we do not believe the Legislature intended to create a deceived father exception to the requirement that a father provide substantial and regular care and support to the mother during pregnancy in order to come within subsection 39(2).
The legislative history reveals that the Legislature did not consider the situation presented in this case when it amended subsection 39(2). Instead, it appears the statute was amended to raise the amount of support required for a father to have his rights determined under subsection 39(2). The rationale for the amendment was identified as follows in the Senate Legislative Analysis, SB 415, August 26, 1998:
Some people believe that the standard of providing “support or care” is too low for a putative father to receive a hearing on the termination of his parental rights because even a minimal amount of support or care could be used to justify not having parental rights terminated without a hear-
ing. They contend that, to earn the right to a hearing on his parental rights, a putative father should have to provide “regular and substantial” support or care for the mother during pregnancy or for the mother or the child after the birth.
This sentiment is continued in the arguments supporting the amendment of the bill. Id. The arguments opposing the amendment also reflect that the Legislature did not intend to create an exception where a father has been deceived about the pregnancy:
While the bill‘s objective may be laudable, it raises concerns about the elimination of the due process rights of a person who made little or no effort to exercise his responsibility of support. The parental rights of such a person may be automatically terminated under the bill because a mother has decided to terminate her parental rights. Sometimes, a father may not know in advance of a birth that he is about to become a parent. [Id. (emphasis added).]
Accordingly, we disagree with appellant that the statute was amended in order to address the situation presented in this case.
We believe the trial court properly found that appellant‘s rights should be determined under subsection 39(1). In reaching this holding, we note that the trial court did consider the fact that appellant was deceived about the pregnancy, but found that it could not assume that if appellant had known of the pregnancy earlier, he would have supported the mother. We agree that the statute does not allow such an assumption to be made. We also note that once appellant knew that he was the father and that RFF had been born, he did not provide support or care to the baby. Although appellant argues that he made an effort to be involved and decide what was best for
While we believe that the statute requires the result we have reached in this case, we repeat the concern expressed by this Court in Dawson, supra at 695-696. We believe that the Legislature should reexamine § 39 and evaluate under which of the existing subsections, subsection 39(1) or subsection 39(2), it is most appropriate to place a father who has been deceived about a pregnancy and whether it is more appropriate to create a third subsection to address this specific problem. While this Court may feel that it is unfair to consider such a father under subsection 39(1), the Legislature is the appropriate forum for making these types of policy choices.
Next, appellant argues the trial court erred in finding that it was in the best interest of RFF to terminate his parental rights. This Court reviews the trial court‘s findings of fact for clear error. In re Cornet, 422 Mich 274, 277; 373 NW2d 536 (1985); Lang, supra at 139.
After hearing testimony on this issue, the trial court made findings on the relevant factors set forth in
Under factor i, the trial court found there were no true emotional ties between appellant and RFF in light of the fact that they only had one brief meeting. The trial court also noted that appellant had not expressed love for the child during his testimony and
Factor ii addresses the capacity of the putative father to give the child “love, affection, and guidance, and to educate and create a milieu that fosters the religion, racial identity, and culture” of the child.
Factor iii assesses the putative father‘s capacity and disposition to provide the child with “food, clothing, education, permanence, medical care . . ., and other material needs.”
Under factor v, the trial court found that the permanence of appellant‘s home was unknown because his plans after graduation from high school were not yet established. The trial court also indicated that appellant‘s parents had “already contemplated that they may keep the baby if [appellant] moves out.”
The trial court relied heavily on its lengthy findings under factor xi, “[a]ny other factor considered by the court to be relevant.”
Upon considering all the relevant factors, the trial court found that it was not in the best interest of the child to award custody to appellant. The trial court indicated that the arrangement of allowing the grandparents to be primary custodians until appellant was ready to assume the responsibility did not provide permanency and that if appellant was viewed independently of his parents, the factors did not favor awarding him custody of the baby.
While we disagree with some of the trial court‘s findings, we are not left with a definite and firm conviction that the trial court made a mistake. Accordingly, we find no clear error on this record. Overall v Overall, 203 Mich App 450, 454; 512 NW2d 851 (1994). The facts of this case are substantially different than those of In re Barlow, supra, which appellant cites in support of his position. There, although the appellant was young and unmarried, the record in that case did not “disclose the kind of lack of maturity that would support a finding that [the] appellant [was] unable to properly care for his child.” In re Barlow, supra at 231. The appellant in Barlow had finished school, was working full time, and had his own house. Moreover, appellant‘s reliance on Ireland v Smith, 451 Mich 457; 547 NW2d 686 (1996), is misplaced. Appellant‘s plan regarding his parents’ involvement in the child‘s life extended beyond merely arranging for day care for the baby. Here, appellant‘s parents were also going to support him financially and help him make decisions. In this difficult case, we defer to the trial court, which was in a better position to view the witnesses.
Appellant next raises two equal protection challenges to § 39 that he did not raise below. This Court ordinarily will not consider issues raised for the first time on appeal. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). However, we will consider appellant‘s unpreserved constitutional claims in this case because no questions of fact exist and it is in the interest of justice to do so. Great Lakes Division of Nat‘l Steel Corp v Ecorse, 227 Mich App 379, 426; 576 NW2d 667 (1998).
Appellant first claims that subsection 39(1) violates the Equal Protection Clauses of the Michigan and United States Constitutions because it allows his
Statutes are presumed to be constitutional and must be construed as such unless it is clearly apparent that the statute is unconstitutional. In re Hamlet (After Remand), 225 Mich App 505, 521; 571 NW2d 750 (1997). Equal protection of the law is guaranteed by the federal and state constitutions.
Michigan‘s Adoption Code was enacted for the following general purpose:
(a) To provide that each adoptee in this state who needs adoption services receives those services.
(b) To provide procedures and services which will safeguard and promote the best interests of each adoptee in need of adoption and which will protect the rights of all parties concerned. If conflicts arise between the rights of the adoptee and the rights of another, the rights of the adoptee shall be paramount.
(c) To provide prompt legal proceedings to assure that the adoptee is free for adoptive placement at the earliest possible time. [
MCL 710.21a ;MSA 27.3178(555.21a) (emphasis added).]
Section 22 defines the term “best interests of the adoptee” as “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 . . . .”
We also find that the difference in treatment of unwed fathers whose children are subject to adoption and unwed fathers whose children are not subject to adoption is rationally related to the state‘s legitimate interests in providing for the welfare of children. The difference in treatment is based on different circumstances. When a child is born out of wedlock and there is a dispute regarding whether the child may be placed for adoption, there is an urgent need to determine the parental rights of the unwed father that is not present where adoption is not being considered. We agree with appellee that if § 39 were not available, and trial courts were required to follow
Moreover, subsection 39(2) represents a careful accommodation of the competing interests at stake. Where a putative father meets the requirements of subsection 39(2), he is treated exactly the same as an unwed father whose child is not subject to adoption, i.e., his rights may not be terminated except pursuant
Finally, appellant argues the Adoption Code violates the Equal Protection Clauses of the federal and state constitutions because it treats biological mothers and fathers differently before their parental rights are terminated. If a biological mother wants custody of a child, there is no inquiry into the best interest of the child, and absent abuse or neglect, the child would be returned to her upon her filing a petition for return of the child from the temporary placement. In contrast, appellant contends he is treated much differently under the Adoption Code despite the fact that, according to appellant, he “demonstrated that he has the ability to provide food, clothing, shelter and medical care for the child.”
Appellant incorrectly asserts that the statute should be subject to strict scrutiny. Gender-based classifications are subject to intermediate scrutiny and, to withstand an equal protection challenge, must serve important governmental objectives and be substantially related to achievement of those objectives. Lehr v Robertson, supra at 266; Caban v Mohammed, 441 US 380, 388; 99 S Ct 1760; 60 L Ed 2d 297 (1979); Craig v Boren, 429 US 190, 197; 97 S Ct 451; 50 L Ed 2d 397 (1976). Gender-based classifications will be upheld when men and women are not actually similarly situated in the area covered by the legislation in question and the statutory classification is realistically based on the differences in their situations. Parham v Hughes, 441 US 347, 354; 99 S Ct 1742; 60 L Ed 2d 269 (1979).
Appellant‘s argument fails to recognize that the true distinction created by the statute is the difference between the categories of putative fathers. Once again, we look to subsection 39(2) and the opportunity it provides to putative fathers to have their parental rights terminated only pursuant to
In short, mothers and fathers of children born out of wedlock are not similarly situated. Parham, supra at 355. There are several differences between mothers and fathers of out of wedlock children, including that the identity of the mother of a child born out of wedlock is rarely in question and that “only a father can by voluntary unilateral action make an illegitimate child legitimate.” Id. Moreover, the mother of a child born out of wedlock has made the decision to give birth to the child rather than have an abortion and, as
Affirmed.
DOCTOROFF, J., concurred.
WILDER, P.J. (dissenting). I respectfully dissent from the majority opinion affirming the trial court‘s termination of appellant‘s parental rights to his son, RFF, pursuant to subsection 39(1) of the Adoption Code,
The Adoption Code,
(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 substantial and regular support or care in accordance with the putative father‘s ability to provide such support or care for the mother during 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.
At issue in this case is whether the trial court erred, first, in concluding that appellant‘s parental rights should be evaluated under subsection 39(1) and, second, in concluding that it was in the best interests of RFF that appellant‘s parental rights be terminated. I would hold that the trial court erred in finding that under the circumstances of this case appellant did not come within the provisions of subsection 39(2).
Amendment of subsection 39(2) was one of the July 1996 recommendations of Lieutenant Governor Binsfeld‘s Children‘s Commission. The commission contended that a putative father who had not established a custodial relationship with the child should have provided “substantial and regular” care or support to the child in order to be accorded subsection 39(2) status in a proceeding to terminate parental rights. The commission objected that the term “support” might be broadly interpreted so as to apply to circumstances where no child support was paid by the putative father until the Family Independence Agency (FIA) sought to establish paternity, or to cir
Senate Bill 415 was introduced in the Michigan Senate in April 1997, reflecting this recommended change to subsection 39(2). The bill passed the Senate in June 1997, 1997 Journal of the Senate 917 (No. 53, June 11, 1997), and was immediately thereafter referred to the Michigan House Judiciary Committee, 1997 Journal of the House 1211 (No. 55, June 12, 1997). The bill was amended in the House Judiciary Committee on March 10, 1998, with the insertion of the language “IN ACCORDANCE WITH THE PUTATIVE FATHER‘S ABILITY TO PROVIDE SUCH CARE OR SUPPORT,” qualifying the “substantial and regular” language added to the statute by the Senate. 1998 Journal of the House 410 (No. 23, March 10, 1998). The amended bill passed the House 106 yeas and 0 nays and returned to the Senate, 1998 Journal of the House 605 (No. 32, March 31, 1998), which concurred in the House amendment 31 yeas, 0 nays, 5 excused, 1 not voting, 1998 Journal of the Senate 569 (No. 30, April 15, 1998). Contrary to the conclusion reached by the majority, I would conclude that the House amendment effectively codified the multifactor approach for determining case by case whether the putative father has provided reasonable care and support under the circumstances of the case set forth in In re Gaipa, 219 Mich App 80; 555 NW2d 867 (1996).
The majority relies on the Senate Fiscal Agency‘s analysis found in Senate Legislative Analysis, SB 415,
First, the bill analysis states on its face that it “was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.” Thus, while the analysis may constitute legislative history, it cannot be considered evidence of legislative intent sufficient to satisfy our duty to interpret legislative enactments in accordance with the plain meaning of specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547; 495 NW2d 539 (1993). Second, the August 26, 1998, bill analysis, completed after the bill was enrolled, is nearly identical to a bill analysis completed on June 20, 1997, just after the bill first passed in the Senate, but well before the House amendment of the bill. See Senate Legislative Analysis, SB 415, June 20, 1997. Nothing in the bill analysis relied on by the majority acknowledges or gives any meaning to the statutory language added by the House that requires inquiry into the putative father‘s ability to provide support or care.
Third, to the extent legislative analysis reports should be considered by this Court in determining legislative intent, all the legislative analysis concerning SB 415 should be considered. The House Legislative Analysis Section prepared an addendum to the June 20, 1997, Senate Fiscal Agency analysis of SB 415, which states in relevant part:
The House Judiciary committee amended the bill to require that the assessment of whether a putative father‘s support or care was “substantial and regular” be measured in accordance with his ability to provide support or care. [House Legislative Analysis, SB 415, March 11, 1998.]
Nothing in the language of the statute or the available legislative analysis suggests that a judicial determination that a putative father who, because he is unaware of the birth mother‘s pregnancy is unable to provide support or care, is inconsistent with the legislative intent behind the amendment of subsection 39(2). The House legislative analysis lends credence to the idea that the House amendment was intended to address the due process concerns identified in the Senate Fiscal Agency analysis. The fact that no legislators voted against SB 415 at final passage further supports this notion. Indeed, in construing a statute, courts should presume that every word has some meaning and should avoid any construction that would render a statute, or any part of it, surplusage or nugatory. Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992). The construction I urge gives meaning to the phrase added by the House amendment, is consistent with common sense, and avoids unreasonable consequences. In re Dawson, 232 Mich App 690, 696; 591 NW2d 433 (1998).
The trial court found that appellee‘s concealment of the pregnancy and the type and quality of counseling received from the counseling agency was irrelevant to appellant‘s ability to provide support.1 I would reverse and remand for specific factual findings regarding
Even if appellant does not come within the provisions of subsection 39(2), I would still reverse the trial court‘s order. While I generally agree with the statement of the facts set forth in the majority opinion, several significant facts not mentioned by the majority lead me to the firm and definite conviction that the trial court made a mistake. The record establishes that appellant and his parents were quite shocked to learn that appellant was soon to be a father and that appellee had made plans to place the baby for adoption. When appellee advised appellant that she was pregnant and would be placing RFF for adoption, she told appellant that her motivation in placing RFF for adoption was her intention to attend college in the fall. Appellant did respond by indicating that he had planned to attend the Marine Corps boot camp that summer, but the record reflects that appellant stated this in a sarcastic manner and not in an apparent acquiescence to appellee‘s adoption decision. Nevertheless, appellant and his parents worked to gather information that would enable him to make a reasonably informed decision about whether to agree to appellee‘s plan under the circumstances.
Terry Budek, the pregnancy counselor with Family and Children‘s Service of Midland (the adoption agency handling the adoption), sent a letter to appellant before RFF‘s birth in which she described her position as one “to support all members of the birth family.” The letter further stated that she was there to provide services including advice about “birthparent rights and choices . . . free of charge.” Appellant also
When appellant went to the adoption agency to consent to the adoption, Ms. Budek was not in the office. A volunteer working at the reception desk in the office connected appellant and his mother with Ms. Budek by telephone. Ms. Budek told appellant‘s mother during this telephone contact that RFF had been born, and appellant‘s mother relayed this information to him. When appellant learned through this telephone contact that RFF had been born, he became upset and began to cry. Appellant acknowledged that he refused to sign the adoption consent at that time, but the complete record establishes that his refusal was at the behest of the agency receptionist who suggested that appellant go home and think about his decision further.
In deciding it was not in the best interests of RFF to grant custody to appellant, the trial court relied heavily on its determination that appellant was not sufficiently mature to raise RFF and would be heavily relying on his parents for up to several years. Significantly, however, the trial court consistently sustained on the basis of relevancy objections to testimony from appellant‘s dentist, aunt, and pastor about their observations and knowledge of appellant‘s maturity and ability to handle responsibility, even though they had known appellant for long periods. I believe this was error that prevented appellant from making a complete record about his ability to parent RFF under the difficult circumstances presented here.
I agree wholeheartedly with this sentiment and believe it applies in this case. “‘The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents....‘” In re Boursaw, 239 Mich App 161, 176; 607 NW2d 408 (1999), quoting Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). This Court reviews hundreds of cases annually in which parental rights have been terminated only after multi
For the reasons stated above, I would reverse.
Notes
The trial court‘s written opinion concerning the best interests findings, dated July 22, 1999, refers to In re Dawson, supra at 690, in which this Court concluded that subsection 39(2) as written before the amendment at issue in this case did not account for a situation in which the mother conceals the pregnancy from the putative father, and then states “[t]his court reached the same conclusion....”I find that it‘s not appropriate for the Court to make the giant leap that had he known he would have provided the support. Or had he gotten better counseling from the adoption agency, he would have put in for confinement expenses or whatever. I don‘t think the law permits the Court to make that kind of leap. . . . He certainly had the ability to contribute something had he wanted to do that, even if it was only care and concern and a ride to the doctor or something. He wasn‘t able to do that, and he didn‘t do it. [T]he court, therefore, finds that we can‘t make the leap that he‘s a Section 2 father because there was no support, and for whatever reason, I don‘t believe he qualifies under Section 2.