In re Lang

• Decision Date: 01 October 1999
• Docket Number: Docket No. 214175.
• Parties: In the Matter of James Robert LANG, Minor. Carrie M. Scarcliff and Robert J. Scarcliff, Petitioners-Appellees, v. James Bernard Lang, Family Division Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

600 N.W.2d 646

236 Mich. App. 129

In the Matter of James Robert LANG, Minor.

Carrie M. Scarcliff and Robert J. Scarcliff, Petitioners-Appellees, v. James Bernard Lang, Family Division Respondent-Appellant.

Docket No. 214175.

Court of Appeals of Michigan.

Submitted March 10, 1999, at Grand Rapids.

Decided June 8, 1999, at 9:10 a.m.

Released for Publication October 1, 1999.

Charlotte L. Allen, Midland, for the petitioners.

Karen E. Flores, East Lansing, for the respondent.

Before: GAGE, P.J., and WHITE and MARKEY, JJ.

PER CURIAM.

Respondent appeals by right from an order of the Family Division of the Midland Circuit Court terminating his parental rights and granting a petition for adoption pursuant to § 39 of the Adoption Code, M.C.L. § 710.39; MSA 27.3178(555.39). We affirm.

I

On October 1, 1985, Beth Scarcliff, petitioners' daughter, gave birth to a son, James Robert Lang, who was fathered by respondent, her live-in boyfriend. On March 22, 1987, respondent shot and killed Beth. He was subsequently convicted and imprisoned for the crime.¹ On the date that his mother was killed, James went to live with petitioners, his maternal grandparents, and has lived with them continuously since then. Petitioners became James' guardians, and in May 1998 filed a petition to adopt James. A hearing was held on the petition on June 29, 1998.

During the hearing, petitioner Carrie Scarcliff testified that James had just finished sixth grade and had earned all A's and B's and a variety of academic and athletic awards. She testified that respondent maintained contact with James from 1990 to 1994, but respondent had not sent any cards, letters, or financial support since October 1994, when he sent James a $25 check for his birthday.² She further testified that there had been no telephone calls from respondent. Petitioner testified that nothing had been done to prevent contact by respondent with James. Carrie Scarcliff admitted that in 1991 she advised respondent that James had said he did not want to talk with respondent or to correspond with him at that time, but she testified that she never told respondent that his calls or letters were unwelcome. Scarcliff stated that her family remained in contact with respondent's parents until his mother died. She identified a May 1998 letter from respondent's mother asking the Scarcliffs to adopt James.

Respondent testified that he did not want petitioners to adopt James because he loved him, he tried to be a good father, and he hoped to rebuild their relationship upon his release from prison.³ He asserted that he did everything he could do to stay in contact with James but that petitioners blocked communication between him and James because they hated him for killing their daughter. He testified that he had sent James three letters since October 1994 and got no response, with the last letter being sent in November or December 1994. Respondent stated his belief that petitioners should have made a conscious effort to talk to James to encourage him to write to respondent in prison. He explained that he had not tried to call James since October 1994 because petitioners moved and had told him that they would get in contact with him. He admitted that his relatives had petitioners' telephone number, but he did not ask them for it. Respondent testified that he earned $11 a month in prison but, after purchasing personal items, had nothing left to send for James' support. However, he stated that the birthday check he sent James in 1994 was money that he had saved. Respondent admitted that he had a criminal history dating back to when he was fourteen and had prior convictions of assault with intent to commit great bodily harm, malicious destruction of property, joyriding, and disorderly conduct.

The judge spoke to James in chambers and off the record. The court issued an opinion from the bench that termination of respondent's parental rights was in the best interests of the minor child.⁴ Although the statutory basis for the termination was not cited, the court apparently terminated respondent's parental rights under subsection 39(1) of the Adoption Code. Petitioner Carrie Scarcliff executed a form releasing her rights as guardian and consenting to the adoption of James. The court then entered an order terminating respondent's parental rights⁵ and placed James with petitioners.

II

If a child is born out of wedlock and the biological father does not voluntarily release his parental rights or consent to adoption, the child may not be placed for adoption until the father's parental rights are terminated by the court as provided in § 37⁶ or § 39 of the Adoption Code or as provided under chapter XIIA of the Juvenile Code. M.C.L. § 710.31(1); MSA 27.3178(555.31)(1). At the time of the instant proceedings and entry of the court's order terminating respondent's parental rights, § 39 provided, in relevant 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) [⁷] of [the Adoption Code] or section 2 of chapter XIIA [the neglect provisions of the Juvenile Code]. [MCL 710.39; MSA 27.3178(555.39) (emphasis added).]⁸

The above provisions create two categories of putative fathers: those who have a custodial relationship with, or provide support for, their child and those who do not. In re Barlow, 404 Mich. 216, 229, 273 N.W.2d 35 (1978). Pursuant to subsection 39(2), the parental rights of the former can be terminated only under § 51(6) of the Adoption Code or chapter XIIA of the Juvenile Code, while pursuant to subsection 39(1), those of the latter may be terminated upon an examination of the father's fitness and ability to properly care for the child and a finding that termination is in the child's best interests.

Respondent claims that the family court erroneously applied subsection 39(1) in determining whether respondent's parental rights should be terminated. Respondent, however, admits that he did not provide monetary support for his son; consequently, subsection 39(2) would apply only if he had established a custodial relationship with his son. Respondent argues that subsection 39(2) was applicable because respondent tried to maintain a custodial relationship with his son, but petitioners thwarted him.

We note that respondent did not assert below that subsection 39(2), rather than subsection 39(1), of the Adoption Code was applicable in this case, and the court did not address this question. Therefore, this issue is not preserved for our review. McCready v. Hoffius, 222 Mich.App. 210, 218, 564 N.W.2d 493 (1997), rev'd on other grounds 459 Mich. 131, 586 N.W.2d 723 (1998). However, because the issue is one of law, this Court may address it if all the necessary facts are before the Court. Poch v. Anderson, 229 Mich.App. 40, 52, 580 N.W.2d 456 (1998). On our review of the record in this case, we disagree with respondent's claim that the family court should have applied subsection 39(2) in determining whether to terminate his respondent's parental rights. We conclude that the court correctly proceeded under subsection 39(1) of the Adoption Code and did not err in terminating respondent's parental rights under that statutory provision.

The statute does not define the term "custodial relationship" and this Court has not had occasion to consider what constitutes a custodial relationship within the meaning of subsection 39(2) of the Adoption Code.

The interpretation of a statute is a question of law that we review de novo on appeal. In re Dawson, 232 Mich.App. 690, 696, 591 N.W.2d 433 (1998). The primary goal of judicial interpretation of a statute is to ascertain and give effect to the intent of the Legislature. Id. The first criterion in determining intent is the specific language of the statute. Id. In construing a phrase, a court is to use common sense and apply a reasonable construction that best accomplishes the purpose of the statute. In re Gaipa, 219 Mich.App. 80, 84, 555 N.W.2d 867 (1996). The fair and natural import of the terms employed, in view of the subject matter of the law, should govern, and dictionary definitions may be consulted. In re Wirsing, 456 Mich. 467, 474, 573 N.W.2d 51 (1998); Popma v. Auto Club Ins. Ass'n, 446 Mich. 460, 470, 521 N.W.2d 831 (1994). In enacting the Adoption Code, the Legislature sought, inter alia, to establish procedures to safeguard and promote the best interests of the adoptee and to provide for speedy resolution of disputes concerning a putative father's rights where placement of a child for adoption is sought. MCL 710.21a; MSA 27.3178(555.21a); In re Barlow, supra at 228-229, 273 N.W.2d 35. Because the Adoption Code is in derogation of the common law, its provisions are narrowly construed. In re Dawson, supra at 696, 591 N.W.2d 433.

Random House Webster's College Dictionary (1992) defines custodial as "of or pertaining to custody" and "providing protective supervision and guardianship rather than seeking to improve or cure: custodial care." (Emphasis in original.) It defines custody as "keeping; guardianship; care" and as "the right of determining the residence, care, schooling, etc., of a child or...