Gaipa, In re
| Decision Date | 24 September 1996 |
| Docket Number | Docket No. 188514 |
| Citation | 555 N.W.2d 867,219 Mich.App. 80 |
| Parties | In re Brianna Marie GAIPA, Minor. Milissa Mae GAIPA, Petitioner-Appellant, v. Kenneth JOHNSON, Respondent-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Oosterhouse, Kravitz & Witte by Norman K. Kravitz and Donald F. Oosterhouse, Grand Rapids, for petitioner-appellant.
Kristan A. Newhouse, Wyoming, for respondent-appellee.
Before MacKENZIE, P.J. and MARKEY and J.M. BATZER, * JJ.
Petitioner, the biological mother of minor Brianna Marie Gaipa, appeals by leave granted from a probate court order finding that respondent putative father comes within the provisions of § 39(2) of the Adoption Code, M.C.L. § 710.39(2); M.S.A. § 27.3178(555.39)(2), because he provided support or care for the mother during pregnancy. We vacate the order and remand the case.
Petitioner became aware that she was pregnant in mid-May 1994. It is undisputed that respondent is the child's father. Petitioner soon moved in with respondent and his mother at his mother's house. According to petitioner, she began receiving general assistance payments in June; respondent did not provide her with money for rent, food, or medical costs. Respondent became unemployed in July or August. Petitioner indicated that, at roughly the same time, she and respondent moved into the home of one of respondent's friends with the arrangement that petitioner would give the friend all her food stamps and pay half the rent. Petitioner testified that she left the relationship in October 1994 because respondent physically abused her. From that time forward, respondent sent her no assistance and petitioner lived in a series of domestic violence shelters.
Respondent testified that he paid rent to his mother and purchased groceries, and that once he and petitioner moved to his friend's house, he paid rent and bought groceries during the period he was employed. Respondent further indicated that he took petitioner to restaurants, drove her to appointments, and provided her with the use of his automobile.
Petitioner elected to release her parental rights to the child and to have the child adopted. Consequently, shortly after Brianna's birth on February 2, 1995, petitioner petitioned the probate court for a hearing to identify respondent as Brianna's father and to terminate his parental rights pursuant to § 39 of the Adoption Code. That statute, M.C.L. § 710.39; M.S.A. § 27.3178(555.39), provides in pertinent 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 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 [the adoption code] or section 2 of chapter XIIA []. [Emphasis added.]
In In re Barlow, 404 Mich. 216, 229, 273 N.W.2d 35 (1978), the Court described the operation and significance of these provisions as follows:
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.
At issue in this case is whether respondent falls within the first group of putative fathers--those with no established custodial or support relationship and whose rights may be terminated under § 39(1) upon a finding that it would not be in the child's best interest to be placed in the father's custody--or whether he instead falls within Barlow 's second group of putative fathers, that is, those who have an established relationship and whose rights may be terminated only under the neglect provisions of the Juvenile Code pursuant to § 39(2).
The probate court found that respondent fell into the second category. In reaching this conclusion, the court first recognized an ambiguity in the requirement of § 39(2) that the putative father "provided support or care for the mother during pregnancy." Specifically, the court noted that the statute "does not elaborate on the definition of support or care, nor does it state a quantitative level of support or care that must be provided." The court then determined that the appropriate approach was to construe the statute as requiring "some contribution" to the mother's support or care. On the basis of this standard, the court concluded that because respondent made some contribution to petitioner's rent and groceries and let her use his car during the first four months of her pregnancy, the requirements of § 39(2) were satisfied.
On appeal, petitioner contends that the probate court erred in interpreting § 39(2) as requiring a putative father to provide the mother with merely "some" or "any" support at some point during her pregnancy. We agree.
Because the quantum of "support or care for the mother during pregnancy" necessary for a putative father to come within the provisions of § 39(2) is unclear, judicial construction is appropriate. See Dep't of Social Services v. Brewer, 180 Mich.App. 82, 84, 446 N.W.2d 593 (1989), and compare In re Schnell, 214 Mich.App. 304, 543 N.W.2d 11 (1995). The court must use common sense and apply a reasonable construction that best accomplishes the statute's purpose. See Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994). Furthermore, the statute should be construed so as to avoid unreasonable consequences. ACCO Industries, Inc. v. Dep't of Treasury, 134 Mich.App. 316, 321, 350 N.W.2d 874 (1984).
As indicated by the Supreme Court in Barlow, supra, the group of putative fathers that comes within the provisions of § 39(2) do so because they have established some sort of custodial or support relationship with the child or mother. It seems clear that, in demanding such an established relationship, the Legislature must have intended more than an incidental, fleeting, or inconsequential offer of support or care and therefore must have intended more than "any" contribution by the putative father. Conversely, the Legislature's failure to require "substantial" or total support during the pregnancy--especially where other sections of the Adoption Code specifically contain such a "regular and substantial support" requirement, see, e.g., M.C.L. § 710.51(6)(a); M.S.A. § 27.3178(555.51)(6)(a)--strongly suggests that the Legislature also did not intend that elevated standard to be applied in all cases and under all circumstances. See Farrington v. Total Petroleum, Inc., 442 Mich. 201, 210, 501 N.W.2d 76 (1993).
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