Porter v. Hill

• Decision Date: 11 June 2013
• Docket Number: Docket No. 306562.
• Citation: 836 N.W.2d 247,301 Mich.App. 295
• Parties: PORTER v. HILL.
• Court: Court of Appeal of Michigan — District of US

301 Mich.App. 295

836 N.W.2d 247

PORTER

v.HILL.

Docket No. 306562.

Court of Appeals of Michigan.

Submitted Oct. 9, 2012, at Lansing.

Decided June 11, 2013, at 9:00 a.m.

Dill & Brady (by Colin M. Dill), for plaintiffs.

Susan J. Tarrant, for defendant.

Before: FITZGERALD, P.J., and METER and BOONSTRA, JJ.

METER, J.

Plaintiffs appeal as of right the trial court's order granting summary disposition to defendant. Plaintiffs argue that the trial court erred by ruling that they did not have legal standing to seek a grandparenting-time order. We affirm.

Defendant is the biological mother and sole legal parent of two children. The biological father of the children is defendant's ex-husband, Russell Porter, the biological son of plaintiffs. Russell's parental rights were involuntarily terminated as a result of physical abuse, and Russell and defendant subsequently divorced. Russell paid child support until his death.

Following their son's death, plaintiffs sought an order of grandparenting time. Defendant moved for summary disposition, arguing that plaintiffs did not have standing to pursue such an order, because their son's parental rights had been terminated. The trial court granted defendant's motion.

“Whether a party has standing is a question of law that we review de novo.” Manuel v. Gill, 481 Mich. 637, 642, 753 N.W.2d 48 (2008) (citation and quotation marks omitted). We also review de novo a trial court's decision regarding a motion for summary disposition. Jimkoski v. Shupe, 282 Mich.App. 1, 4, 763 N.W.2d 1 (2008).

Michigan's Child Custody Act, MCL 722.21 et seq., “is the exclusive means for pursuing” orders of parenting time. Van v. Zahorik, 460 Mich. 320, 328, 597 N.W.2d 15 (1999). MCL 722.27b(1) provides that “[a] child's grandparent may seek a grandparenting time order under 1 or more of the following circumstances: ... (c) The child's parent who is a child of the grandparents is deceased.” The term “parent” is defined as “the natural or adoptive parent of a child[,]” MCL 722.22(h), and the term “grandparent” is defined as “a natural or adoptive parent of a child's natural or adoptive parent,” MCL 722.22(e).

At the time of his death, Russell was not a legal parent of the children. He had no right to have any input regarding matters in their lives; in fact, to do so would have violated a court order. Plaintiffs, as Russell's parents, derived their rights as grandparents through him. Russell's death had no effect on his rights or those of plaintiffs, and there is no authority for plaintiffs' contention that “natural” as used in MCL 722.22 is merely a substitute for “biological.” The recent case of People v. Wambar, 300 Mich.App. 121, 831 N.W.2d 891 (2013), is instructive. At issue in Wambar was whether a man whose parental rights to a child had been terminated on the basis of abuse or neglect and who then attempted to unlawfully take the child could be convicted under the general child-taking statute, MCL 750.350, or whether the defendant should have been charged under the parental-kidnapping statute, MCL 750.350a. 300 Mich.App. at 123–124, 831 N.W.2d 891. The general statute states that “[a]n adoptive or natural parent of the child shall not be charged with and convicted for a violation of this section.” MCL 750.350(2). The defendant argued that “natural parent” meant “biological parent” and encompassed him to the extent that he could not be convicted under MCL 750.350. Wambar, 300 Mich.App. at 124, 831 N.W.2d 891.

This Court upheld the defendant's conviction under the general statute, emphasizing that the defendant's status as a parent had been terminated in a legal proceeding, id. at 126, 831 N.W.2d 891, and that the phrase “natural parent” is not automatically equivalent to the phrase “biological parent,” id. at 125 n. 5, 831 N.W.2d 891. This Court stated that “[i]t would be anomalous for the Legislature to authorize a court to terminate a person's parental rights but to protect ¹ that same person if he or she attempted to take the child away from a person with legal rights to the child.” Id. at 126, 831 N.W.2d 891.

Similarly, with respect to the present case, it would be anomalous for the Legislature to authorize a court to terminate a person's parental rights on the basis of abuse but then to somehow “revive” those rights for purposes of grandparent visitation. Accordingly, for purposes of the present case, Russell was not a legal parent,² plaintiffs are not legal grandparents, and they have no basis on which to seek an order of grandparenting time.

Plaintiffs argue that because their son continued to pay child support and thus met his parental responsibilities, they are entitled to grandparenting time, i.e., visitation, an express parental right. However, in In re Beck, 488 Mich. 6, 8, 793 N.W.2d 562 (2010), the Michigan Supreme Court observed that, under Michigan's statutory scheme, parental rights are distinct from parental obligations. The Beck Court held that while an order terminating parental rights terminates a parent's “liberty interest in ‘the care, custody, and control of their children[,]’ ” see id. at 11, 793 N.W.2d 562, quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), a termination order does not eliminate the parental obligation to support a child, Beck, 488 Mich. at 15, 793 N.W.2d 562. A parent whose parental rights have been terminated “retains absolutely no rights with respect to the children and no right to interpose himself in the lives of his children.” Beck, 488 Mich. at 16 n. 23, 793 N.W.2d 562 (emphasis added). “In the absence of statutory authority, the terminated parent may not claim any right to see or contact the children attendant to the payment of child support.” Id.

Plaintiffs also emphasize that defendant claimed Social Security benefits for the children through Russell Porter; however, such benefits relate to the support obligation that continues, as noted, even after parental rights are terminated. Similarly, even if the children are entitled to inherit from Russell, such rights of the children to financial benefits do not somehow revive the parental rights of the parent.

Finally, plaintiffs cite MCL 722.27b(5), which provides:

If 2 fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court shall dismiss a complaint or motion seeking an order for grandparenting time filed under subsection (3). This subsection does not apply if 1 of the fit parents is a stepparent who adopted a child under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandparent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or whose parental rights have been terminated.

We acknowledge that the second sentence of MCL 722.27b(5) appears to lend support to plaintiffs' argument in that it mentions a situation in which a grandparent seeks to visit a child even though the child's parent has had his or her parental rights terminated. However, the circumstances outlined (e.g., a stepparent adoption) are not present here, and thus MCL 722.27b(5) does not advance plaintiffs' case. As noted by defendant, it is likely that the Legislature included the termination-of-rights language in this statute in order to accommodate a situation in which a parent has voluntarily released his or her parental rights merely to allow for a stepparent adoption. We strongly urge the Legislature to amend this statute to clarify that the second sentence of MCL 722.27b(5) does not apply in cases where parental rights have been involuntarily terminated on the basis of neglect or abuse or in cases where parental rights have been relinquished following the initiation of child-protective proceedings.

Affirmed.

FITZGERALD, P.J., concurred with METER, J.

BOONSTRA, J. (dissenting).

I respectfully dissent, for the reasons that follow.

I. BASIC FACTS AND PROCEDURE

At issue in this case is whether the plaintiff grandparents of two minor children have a right to seek grandparenting time under the Child Custody Act, MCL 722.21 et seq. Of particular significance in the context of this case are the facts that (a) the children's biological father, Russell Porter, who is plaintiffs' son, is deceased, and (b) before Russell's death, his parental rights were terminated by court order. Following Russell's death, plaintiffs sought grandparenting time. That request was opposed by defendant, the children's biological mother, who moved for summary disposition, contending that because of the termination of Russell's parental rights, plaintiffs did not have standing to seek grandparenting time.

The trial court granted summary disposition in favor of defendant, albeit grudgingly, stating:

I'm going to make it real simple. This matter is going to go up on appeal no matter who wins or losses [sic]. I am going to keep it simple for appeal, because it's something that the appellate courts should decide.

It's the Court's—and I am not making any determination on these grandparents. They appear to be fine people. But I am going to have to rule that under the Child Custody Act your rights come through those of your child. And I'm ruling that the Child Custody Act does not allow, when somebody's parental rights are terminated, for the grandparents to seek visitation.

As I said, I hope the Court of Appeals reverses me on this issue. And I have kept it real simple so it can be taken up on appeal. But I think it's something that the Court of Appeals needs to decide, and it hasn't yet. And I'm ruling for summary judgment on behalf of the mother, and that the parental rights have been terminated. And, therefore, right to grand parenting visitation, in my view under the Child Custody Act, I don't see any legal support for it. [Emphasis added.]

The trial court thus concluded in its order granting defendant's motion for summary disposition that “Plaintiffs do not have...