In re AGD

327 Mich.App. 332

933 N.W.2d 751

IN RE AGD, Minor.

No. 345717

Court of Appeals of Michigan.

Submitted March 6, 2019, at Detroit

Decided March 14, 2019, 9:05 a.m.

Speaker Law Firm, PLLC (by Liisa R. Speaker, Kalamazoo, and Andrea Muroto) for petitioners.

Gentry Nalley, PLLC (by Kevin S. Gentry, Whitmore Lake) for respondent.

Before: Borrello, P.J., and Swartzle and Cameron, JJ.

Cameron, J.

This dispute requires us to interpret the stepparent adoption statute, MCL 710.51(6), and to determine whether a parent in all cases must have custody according to a court order before a court can terminate the parental rights of the other parent. Petitioners are the mother and stepfather of the minor child, and they appeal the trial court’s order denying their request to terminate under MCL 710.51(6) the parental rights of respondent, the minor child’s legal father. On appeal, petitioners argue that the trial court erred by interpreting MCL 710.51(6) as requiring that petitioner-mother have court-ordered custody of her child before seeking termination of respondent’s parental rights. We disagree and therefore affirm the decision of the trial court.

I. FACTUAL AND LEGAL BACKGROUND

Petitioner-mother was unmarried when her child was born in 2015. Respondent is the child’s legal father by way of an affidavit of parentage. According to respondent, he has not seen the child since 2015, when the child was eight months old. Respondent has a history of heroin abuse, and he was in residential treatment for his addiction in 2017. While respondent’s work history is unclear from the record, he did have a job while in "sober living" and had been sober since March 15, 2017.

In April 2018, respondent filed a complaint seeking to reestablish contact with his child. Respondent requested parenting time and a child-custody determination, and he also requested entry of a child-support order. Two months later, petitioners filed their petition seeking consent from the court for the child’s stepfather to adopt the child. Petitioners also sought termination of respondent’s parental rights. In her supplemental petition and affidavit to terminate respondent’s parental rights, petitioner-mother represented that she had custody of her child according to a court order.¹ At a September 2018 hearing, however, the trial court found that neither a child-support order nor a custody order existed. On the basis of that evidence, the trial court held "that as a matter of law," petitioners had "failed to meet the threshold procedural requirement of MCL 710.51(6)." The trial court noted that MCL 710.51(6) had been amended by 2016 PA 143² effective September 5, 2016, and held, on the basis of the plain meaning expressed by the current statutory language, that the child’s mother was not entitled to petition for the termination of respondent’s parental rights because she did not have "custody of the child according to a court order." The trial court concluded that even if the parents were unmarried, and the father acknowledged paternity or was a putative father according to MCL 710.39(2), petitioner-mother was required to have custody "according to a court order" before seeking the termination of respondent’s parental rights in the context of stepparent adoption. MCL 710.51(6).

The trial court also held that even if petitioner-mother had been entitled to file her petition under MCL 710.51(6), the trial court nevertheless would have denied the requested relief, reasoning that petitioners had "failed to demonstrate by clear and convincing [evidence] that termination was warranted" or that "it would be in the best interest of the child[.]" The trial court further reasoned that because respondent had filed a complaint seeking parenting time and the establishment of a child-support order before petitioners had filed their petition under MCL 710.51(6), respondent expressed his desire to have contact with the minor child and to provide support for the child.

Therefore, the court reasoned, it would be premature to terminate respondent’s parental rights under MCL 710.51(6) before a ruling was made regarding custody, parenting time, and child support.

On appeal, petitioners argue that the trial court erred by (1) interpreting MCL 710.51(6) as requiring that the petitioning parent have custody of the minor child "according to a court order" in all cases, even when the biological parents were never married; (2) finding that petitioners had failed to present clear and convincing evidence to satisfy all the required elements for termination under MCL 710.51(6) ; (3) concluding that the best interests of the minor child were not relevant as part of the inquiry under MCL 710.51(6) ; and (4) finding that petitioners had failed to present clear and convincing evidence that termination of respondent’s parental rights was warranted.

II. STANDARD OF REVIEW

Questions of statutory interpretation are legal in nature, and thus they are reviewed de novo on appeal. In re Hill , 221 Mich. App. 683, 689, 562 N.W.2d 254 (1997). A trial court’s factual findings during a proceeding to terminate parental rights under the Adoption Code are reviewed for clear error. Id . at 691-692, 562 N.W.2d 254. "A finding is clearly erroneous if, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake was made." Id . at 692, 562 N.W.2d 254.

III. ANALYSIS

Petitioners first argue that the trial court improperly interpreted and applied MCL 710.51(6) of the Adoption Code, MCL 710.21 et seq. We disagree.

A. VERTICAL STARE DECISIS

As a preliminary matter, the parties have not addressed an essential threshold question: whether this Court is free to announce a new construction of MCL 710.51 in light of our Supreme Court’s decision in In re AJR , 496 Mich. 346, 852 N.W.2d 760 (2014), and the doctrine of vertical stare decisis.

MCL 710.51, as amended by 2016 PA 143, provides:

(6) 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 a parent having custody of the child according to a court order subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order 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. A child support order stating that support is $0.00 or that support is reserved shall be treated in the same manner as if no support order has been entered.

(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 doctrine of vertical stare decisis, as defined by Black’s Law Dictionary (10th ed.), p 1626, is "[t]he doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction." As the trial court correctly noted, in In re AJR , our Supreme Court interpreted the language of former MCL 710.51(6), as amended by 1996 PA 409, and held that "when consent to stepparent adoption has not or cannot be obtained, petitioners must follow the statutory procedures to obtain sole legal custody before seeking termination of the respondent-parent’s parental rights." In re AJR , 496 Mich. at 356, 852 N.W.2d 760 (emphasis added). Because MCL 710.51(6) was subsequently amended by 2016 PA 143, petitioners now ask this Court to disregard In re AJR and announce a new construction of MCL 710.51(6) based on the provision’s amended wording, which differs significantly from the language that our Supreme Court relied on when interpreting former MCL 710.51(6) in In re AJR . The parties cite no authority, however, for the proposition that In re AJR ’s construction of the statute is no longer binding on this Court.

"An elemental tenet of our jurisprudence, stare decisis, provides that a decision of the majority of justices of [the Supreme] Court is binding upon lower courts." People v. Mitchell , 428 Mich. 364, 369, 408 N.W.2d 798 (1987). "The obvious reason for this is the fundamental principle that only [the Supreme] Court has the authority to overrule one of its prior decisions." Paige v. Sterling Hts. , 476 Mich. 495, 524, 720 N.W.2d 219 (2006). "Until [it] does so, all lower courts and tribunals are bound by that prior decision and must follow it even if they believe that it was wrongly decided or has become obsolete ." Id . (emphasis added). Accord Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.").

In past published decisions of this Court, there has been disagreement about whether this Court can, after the Legislature amends a statutory provision, disregard past decisions of our Supreme Court construing the provision as it was formerly drafted. However, our Supreme Court recently addressed that question in Associated Builders & Contractors v. Lansing , 499 Mich. 177, 191-192; 880 N.W.2d 765 (2016), holding that this Court remains bound to follow the Supreme Court’s interpretation of a since-amended statute if the intervening amendment merely "undermined " the foundations of the Supreme Court’s prior decision, but not if the intervening amendment "clearly ... superseded" the...