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147522 - In re AJR, Minor

In re AJR, Minor.
Scott G. Bassett
Cynthia S. Harmon
(Appeal from Ct of Appeals)
 (Kent – Feeney, K.)    
Vivek Sankarin
Trish Oleksa Haas


Pierre Roustan and Susan Merrill had one child, AJR, during their marriage.  When the two divorced, the family court awarded Merrill sole physical custody of the child, with both parents sharing legal custody.
After Merrill remarried, she and her husband filed a petition for the termination of Roustan’s parental rights, which would allow Merrill’s husband to adopt AJR.  They proceeded under the stepparent adoption statute, MCL 710.51(6), which states: 
If the parents of a child are divorced, . . . 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 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.
Following an evidentiary hearing, the family court terminated Roustan’s parental rights.  The judge found that Roustan had substantially failed to provide support for AJR during the two years before the petition was filed, and that Roustan had substantially failed to visit or communicate with AJR during this two-year period.
Roustan appealed to the Court of Appeals, raising for the first time an argument that the stepparent adoption statute did not apply to this situation, where both he and the Merrill shared joint legal custody of AJR.  He contended that the statute only acts to terminate the rights of those parents who do not have legal custody of their child.
The Court of Appeals agreed, reversing the trial court’s termination of Roustan’s parental rights in a published opinion.  Although Roustan had not preserved the argument for appeal, the appellate court said would review the issue in the interests of justice, noting that the issue was a purely legal one and that all of the necessary facts were presented.  The Court of Appeals explained that the statute’s use of the phrase “the parent having legal custody of the child” must be construed as requiring the parent initiating the termination proceedings to be the only parent having legal custody.  In other words, “the Legislature’s use of the word ‘the’ rather than ‘a’ controls the question” before the court.  Given the language used by the Legislature in MCL 710.51(6), the Court of Appeals held that the rights of a parent who maintains joint legal custody are not properly terminated under MCL 710.51(6).  “Thus, because the mother did not have sole legal custody, the trial court erred when it terminated respondent’s rights under MCL 710.51(6), regardless of the fact that it found that both of the conditions in subdivisions (a) and (b) were satisfied.”
The Merrills appealed.  On October 23, 2013, the Supreme Court granted leave to appeal to consider:  (1) whether the Court of Appeals properly interpreted the statutory phrase “the parent having legal custody of the child” in the stepparent adoption statute, MCL 710.51(6), as necessarily referring to “the” sole parent with legal custody; (2) whether the phrase “legal custody” in § 51(6) is synonymous with the concept of joint custody in the Child Custody Act, MCL 722.26a(7)(b), whereby “the parents share decision-making authority as to the important decisions affecting the welfare of the child”; and (3) if the Court of Appeals did not err in interpreting the statute, what, if any, remedy is available to the petitioners in this case that is consistent with the general purposes of the Adoption Code, MCL 710.21a.