Colon, Matter of

• Decision Date: 11 December 1985
• Docket Number: Docket No. 75865
• Citation: 144 Mich.App. 805,377 N.W.2d 321
• Parties: In the Matter of Christina Marie COLON and Fran Esteban Colon, III, Mary Lou (Colon) RODRIGUEZ, Petitioner-Appellee, v. Fran Esteban COLON, II, Respondent-Appellant. 144 Mich.App. 805, 377 N.W.2d 321
• Court: Court of Appeal of Michigan — District of US

Page 321

377 N.W.2d 321

In the Matter of Christina Marie COLON and Fran Esteban

Colon, III, Mary Lou (Colon) RODRIGUEZ, Petitioner-Appellee, v. Fran Esteban COLON, II, Respondent-Appellant.

Docket No. 75865.

144 Mich.App. 805, 377 N.W.2d 321

Court of Appeals of Michigan.

Submitted Dec. 11, 1984,

Decided Aug. 19, 1985.

Release for Publication Dec. 11, 1985.

[144 MICHAPP 807] Juvenile Defender Office by Thomas M. Harp, Detroit, for minors.

Stone & Richardson, P.C., by Horace E. Stone, Detroit, for Fran E. Colon, II.

Before GRIBBS, P.J., and MacKENZIE and GAGE ^*, JJ.

MacKENZIE, Judge.

Respondent appeals as of right from a probate court order terminating his parental rights pursuant to the Michigan Adoption Code, M.C.L. Sec. 710.51(6); M.S.A. Sec. 27.3178 (555.51)(6). Respondent raises questions concerning statutory construction and his right to a jury trial at the adoption proceeding. We affirm.

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 [144 MICHAPP 808] children three to four times each in 1979 and 1980 and two to three times each in 1981 and 1982. He had sent Christmas gifts in 1979.

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, M.C.L. Sec. 710.51(6); M.S.A. Sec. 27.3178(555.51)(6). This section provides:

"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 order [144 MICHAPP 809] terminating 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 M.C.L. Sec. 710.51(6)(a) is an issue of first impression in this Court. When a statute is unambiguous on its face, statutory interpretation and construction is unnecessary. But where an ambiguity exists, the Court must determine and [144 MICHAPP 810] give effect to the legislative intent. Sullivan v. Gray, 117 Mich.App. 476, 324 N.W.2d 58 (1982), lv. den. 417 Mich. 1051 (1983). To resolve a perceived ambiguity, the Court will look to the object of the statute, and will apply a reasonable construction which best accomplishes the statute's purpose. Charter Twp of Pittsfield v. City of Saline, 103 Mich.App. 99, 302 N.W.2d 608 (1981).

We believe an ambiguity does exist in M.C.L. Sec. 710.51(6)(a). The statute may be read to support either the respondent's or the minors' position. However, looking to the purposes of the statute and the legal framework governing child support in Michigan, we find that the minors' interpretation is correct.

M.C.L. Sec. 710.51(6) was part of a 1980 amendment to the Michigan Adoption Code. See 1980 P.A. 509. Its primary purpose was to foster stepparent adoptions in families where the natural parent had regularly and substantially failed to support or communicate and visit with the child. The amendment was designed to redress the unfairness of prior law, which had required the natural parent's consent in all proposed adoptions. These objectives are revealed in the House Legislative Analysis of H.B. 5791 (September 19, 1980):

"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 stepparent [144 MICHAPP 811] may 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 interpretatin, 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 N.W.2d 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 N.W.2d 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 [144 MICHAPP 812] orders for child support upon a showing of a change in circumstances. M.C.L. Sec. 552.17; M.S.A. Sec. 25.97; Jacobs v. Jacobs, 118 Mich.App. 16, 324 N.W.2d 519 (1982). In fashioning a support order or a modification, the court must consider a number of factors, including the noncustodial parent's income and ability to pay. Vaclav v. Vaclav, 96 Mich.App. 584, 293 N.W.2d 613 (1980); Cochran v. Buffone, 137 Mich.App. 761, 359 N.W.2d 557, 559 (1984). Thus, ability to pay is already factored into a child support order, and it would be redundant to require a petitioner under the Adoption Code to prove the natural parent's ability to pay as well as that parent's noncompliance with...