in Re Agd Minor

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

FOR PUBLICATION

In re AGD, Minor. March 14, 2019

9:05 a.m.

No. 345717

Genesee Circuit Court

Family Division

LC No. 18-017888-AY

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

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 the parental rights of respondent, the minor child’s legal father, under MCL 710.51(6).

On appeal, petitioners argue the trial court erred in its interpretation of MCL 710.51(6) that

petitioner mother was required to have custody of her child according to a court order 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 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 between June 2016 and June 2017, he was in residential treatment for his addiction.

While respondent’s work history is unclear from the record, he did have a job while in “sober

living” and had not used drugs for the 19 months after his child was born.

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

the 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

-1-

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. Based on 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 and held that, based on the plain meaning expressed by the current statutory

language, the child’s mother was not entitled to relief by petitioning 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, petitioner mother

was required to have custody “according to a court order” before seeking 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 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 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 if the biological parents were never married; (2) finding that petitioners

had failed to present clear and convincing evidence to satisfy all of 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

1

Petitioner mother checked a box on the SCAO form indicating she had custody according to a

court order.

2

The trial court concluded that the recent amendment to MCL 710.51(6) superseded In re AJR,

496 Mich 346; 852 NW2d 760 (2014) (interpreting MCL 710.51(6), as amended by 1996 PA

409, and holding 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 under” former MCL 710.51(6)) (emphasis

added). In reaching its conclusion, the court observed that legislative history materials suggested

that 2016 PA 143 had been enacted in direct reaction to our Supreme Court’s decision in In re

AJR.

-2-

failed to present clear and convincing evidence that termination of respondent’s parental rights

was in the minor child’s best interests.

II. STANDARD OF REVIEW

Questions of statutory interpretation are legal in nature, and thus they are reviewed de

novo. In re Hill, 221 Mich App 683, 689; 562 NW2d 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. “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.

III. ANALYSIS

Petitioners first argue that the trial court improperly interpreted and applied MCL

710.51(6) of the Adoption Code. We disagree.

A. VERTICAL STARE DECISIS

As a preliminary matter, the parties have not addressed an essential threshold question of

whether this Court is free to announce a new construction of MCL 710.51(6) in light of our

Supreme Court’s decision in In re AJR, 496 Mich 346; 852 NW2d 760 (2014), and the doctrine

of vertical stare decisis.

MCL 710.51(6), as amended by 2016 PA 143, provides:

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), 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

-3-

under that provision, “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 (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 upon 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 NW2d 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 City of Sterling Hts, 476 Mich 495, 524; 720 NW2d 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 US 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 City of Lansing,

499 Mich 177, 191-192 & n 32; 880 NW2d 765 (2016) (Associated Builders), 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 Supreme Court’s

interpretation. The Supreme Court acknowledged that this can be a thorny inquiry:

Although one can determine with relative ease whether a case was

overruled by this Court, we acknowledge that it is not always so easy to determine

whether a case has been “clearly overruled or superseded” by intervening changes

in the positive law. At one end of the spectrum are situations in which the

Legislature has entirely repealed or amended a statute to expressly repudiate a

court decision. In such situations, lower courts have the power to make decisions

without being bound by prior cases that were decided under the now-repudiated

previous positive law. [Id. at 191 n 32.]

“The other end of the spectrum is harder to define,” but as a general rule, where the operative

statutory language interpreted by the Supreme Court in the previous case remains the same after

amendment, the intervening amendment of the statute does not clearly overrule or supersede the

Supreme Court’s prior interpretation. See id.

-4-

Under the framework delineated in Associated Builders, we conclude that this Court is

not bound to follow In re AJR’s construction of former MCL 710.51(6) here because that

construction was clearly superseded by 2016 PA 143. Importantly, 2016 PA 143 directly

amended the operative statutory language that our Supreme Court relied upon in deciding In re

AJR—the phrase “the parent having legal custody of the child”—changing it to “a parent having

custody of the child according to a court order[.]” (Emphasis added.) As held in In re AJR, 496

Mich at 348-349, the former version of MCL 710.51(6) required the parent to have “sole legal

custody” of the child. However, the new language is clear that only “a” parent, rather than “the”

parent, has to have custody according to a court order—a much broader requirement.

Consequently, 2016 PA 143 clearly superseded In re AJR’s construction of MCL 710.51(6), and

this Court is therefore no longer bound to follow that construction.

While we agree with the trial court’s interpretation of the statute, we are not persuaded by

its reliance on legislative history to support its holding. While it is true that several legislative

bill analyses support the trial court’s conclusion that the proposed amendment to 2016 PA 143

was intended to counter In re AJR’s holding and change the meaning that courts would ascribe to

MCL 710.51(6), such “legislative analyses should be accorded very little significance by courts

when construing a statute.” In re Certified Question from US Court of Appeals for Sixth Circuit,

468 Mich 109, 115 n 5; 659 NW2d 597 (2003). Legislative bill analyses, which are nothing

more than the summaries and interpretations of unelected employees of the legislative branch,

have been described by our Supreme Court as “a feeble indicator of legislative intent and is

therefore a generally unpersuasive tool of statutory construction.” Frank W Lynch & Co v Flex

Technologies, Inc, 463 Mich 578, 587; 624 NW2d 180 (2001). We similarly conclude that

legislative bill analyses provide neither authoritative nor persuasive insight into whether an

intervening amendment to a statute supersedes prior Michigan Supreme Court interpretations.

Because the amended language of the statute unambiguously supersedes In re AJR’s construction

of the statute, no further analysis is permitted.

B. STATUTORY ANALYSIS

We are now tasked with determining whether the trial court properly interpreted MCL

710.51(6), as amended by 2016 PA 143. We conclude that it did.

As our Supreme Court explained in Sun Valley Foods Co v Ward, 460 Mich 230, 236-

237; 596 NW2d 119 (1999):

The rules of statutory construction are well established. The foremost

rule, and our primary task in construing a statute, is to discern and give effect to

the intent of the Legislature. This task begins by examining the language of the

statute itself. The words of a statute provide the most reliable evidence of its

intent[.] If the language of the statute is unambiguous, the Legislature must have

intended the meaning clearly expressed, and the statute must be enforced as

written. No further judicial construction is required or permitted. Only where the

statutory language is ambiguous may a court properly go beyond the words of the

statute to ascertain legislative intent.

-5-

In interpreting the statute at issue, we consider both the plain meaning of

the critical word or phrase as well as its placement and purpose in the statutory

scheme. As far as possible, effect should be given to every phrase, clause, and

word in the statute. [Quotation marks and citations omitted.]

“A provision of a statute is ambiguous only if it irreconcilably conflicts with another provision or

is equally susceptible to more than a single meaning.” Bedford Pub Sch v Bedford Ed Ass’n

MEA/NEA, 305 Mich App 558, 565; 853 NW2d 452 (2014).

“Statutes that relate to the same subject or that share a common purpose are in pari

materia and must be read together as one law, even if they contain no reference to one another

and were enacted on different dates.” Walters v Leech, 279 Mich App 707, 709-710; 761 NW2d

143 (2008). “The object of the in pari materia rule is to give effect to the legislative intent

expressed in harmonious statutes. If statutes lend themselves to a construction that avoids

conflict, that construction should control.” Id. at 710 (citations omitted).

We disagree with petitioners’ suggestion that the pertinent language in MCL 710.51(6) is

ambiguous. Petitioners assert that the language of MCL 710.51(6) is ambiguous because it is

unclear whether all parents petitioning for stepparent adoption must have custody “according to a

court order” or whether this applies only to the first clause of the sentence and is therefore

limited to divorced parents. Specifically, petitioners first posit that under the “last antecedent”

rule of statutory construction, the statute is ambiguous because it is unclear whether the phrase

“according to a court order” applies only to a divorced parent who later remarries and files a

petition seeking stepparent adoption under MCL 710.51(6), or also applies to the putative father

situation addressed by the statutory language. Under those same principles of grammar and

statutory interpretation, we find no ambiguity.

As this Court recently noted in In re Brody Trust (On Remand), ___ Mich App ___, ___;

___ NW2d ___ (2018) (Docket No. 330871), lv pending; slip op at 8-9:

“Because the Legislature is presumed to know the rules of grammar, statutory

language must be read within its grammatical context unless something else was

clearly intended.” Niles Twp v Berrien Co Bd of Comm’rs, 261 Mich App 308,

315; 683 NW2d 148 (2004). “Proper syntax provides that commas usually set off

words, phrases, and other sentence elements that are parenthetical or

independent.” Dale v Beta-C, Inc, 227 Mich App 57, 68-69; 574 NW2d 697

(1997). Moreover, “[i]t is a general rule of grammar and of statutory construction

that a modifying word or clause is confined solely to the last antecedent, unless a

contrary intention appears.” Sun Valley Foods Co v Ward, 460 Mich 230, 237;

596 NW2d 119 (1999).

The “last antecedent” of a given term or phrase is “the last word, phrase,

or clause that can be made an antecedent without impairing the meaning of the

sentence[.]” People v English, 317 Mich App 607, 614; 897 NW2d 184 (2016)

(opinion of WILDER, P.J.), quoting 2A Singer & Singer, Sutherland Statutory

Construction (7th ed), § 47:33, pp 494-497.

-6-

In this circumstance, the last antecedent rule does not support petitioners’ argument that

the statute is ambiguous. The last word, phrase, or clause that can be made an antecedent of the

modifying phrase “according to a court order”—without impairing the meaning of the

sentence—is the phrase, “custody of the child.” Put differently, the phrase “according to a court

order” modifies the immediately preceding phrase “custody of the child.” Its meaning is

clarified by reading the whole as one unit—i.e., “custody of the child according to a court order.”

Thus, we do not find the last antecedent rule particularly helpful, and it certainly does not render

the statute ambiguous.

We similarly disagree that other rules of grammar render the statute ambiguous. The

provision at issue can be broken down as follows. Before the colon that introduces the two

subsections of the provision at issue, i.e., MCL 710.51(6)(a) and (b), there is a single complete

sentence, which consists of four comma-separated clauses: (1) “If the parents of a child are

divorced, (2) “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,” (3) “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,” (4) “the court upon notice and hearing may issue an order

terminating the rights of the other parent if both of the following occur: . . . .” Petitioners insist

that rules of grammar dictate that the second clause, which involves unmarried parents, is an

independent clause that stands alone; therefore, unmarried parents are not subject to the court-

order requirement. Petitioners argue that, because the phrase “according to a court order”

appears in the third clause of the sentence, and is separated from the first two clauses by

commas, that phrase should be interpreted as applying only to the first clause. Petitioners

support this argument by asserting that the sentence’s second clause “is an independent clause,

since it is set off by commas.” This argument is unpersuasive.

A basic principle of grade-school grammar is that an independent clause is one that can

stand alone as a complete sentence. In other words, an independent clause is a complete thought

that stands by itself as a simple sentence or is part of a complex sentence in which there is at

least one dependent clause. By contrast, dependent clauses are clauses in a complex sentence

that cannot stand alone as complete sentences. Thus, contrary to petitioners’ assertion, a clause

is not independent just because it is separated by commas.

In this case, the second clause at issue here—“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”—is a dependent clause because it is not a complete thought and cannot

stand alone as a grammatically correct sentence. The independent clause is the fourth one, which

can stand alone as a complete sentence: “[T]he court upon notice and hearing may issue an order

terminating the rights of the other parent if both of the following occur[.]” Therefore, the

operative clause at issue here is a dependent clause, making up part of the complex sentence

overall.

Accordingly, petitioners’ proposed construction of MCL 710.51(6) is unpersuasive on its

grammatical merits. In context, it is clear that the commas that set off the first three dependent

clauses of the sentence from the fourth independent clause are parenthetical in nature. The basic

sentence structure is a logical construct—if x, then y—with a few disjunctive uses of “or”

providing alternative options. The meaning that is plainly expressed by the grammatical context

-7-

is as follows: (1) “If [(a)] the parents of a child are divorced, or if [(b)] the parents are unmarried

but the father [(i)] has acknowledged paternity or [(ii)] is a putative father who meets the

conditions in section 39(2) of this chapter, and [(2)] if [(a)] a parent having custody of the child

according to a court order subsequently marries and [(b)] that parent’s spouse petitions to adopt

the child, [then] the court upon notice and hearing may issue an order terminating the rights of

the other parent if [(3)] both of the following occur . . . .”

To arrive at petitioners’ contrary interpretation, one is forced to ignore the plain meaning

that is expressed by the Legislature’s decision to use the disjunctive use of “or” and the

conjunctive use of “and” at different times, particularly in concert with the word “if.” Put

simply, petitioners’ construction of the sentence does not afford distinct meanings to the phrases

“and if” and “or if.” “As this Court has previously recognized, the words ‘and’ and ‘or’ are not

interchangeable and their strict meaning should be followed when their accurate reading does not

render the sense dubious and there is no clear legislative intent to have the words or clauses read

in the conjunctive.” Coalition Protecting Auto No-Fault v Mich Catastrophic Claims Ass’n (On

Remand), 317 Mich App 1, 14; 894 NW2d 758 (2016) (citation omitted). In this sentence,

affording those words their respective conjunctive and disjunctive meanings does not render the

provision unintelligible, nor is there any clear legislative intent that would require a different

interpretation. For those reasons, we reject petitioners’ attempt to inject ambiguity into the

statute.

Petitioners also argue that the trial court’s construction of the statute would render part of

MCL 710.51(6) nugatory because there would never be a scenario where a mother, who has

custody according to a court order, could petition to terminate the parental rights of a putative

father.3 In support, petitioners argue that under MCR 3.903(A)(24), a putative father is defined

as one who has never obtained a court order to establish legal fatherhood. Thus, if a mother

obtains a court order granting her custody, then that order would also change the status of the

putative father to a legal father. Therefore, according to petitioners, “if all mothers are required

to obtain a custody order before petitioning for stepparent adoption [under MCL 710.51(6)], then

it would be impossible to petition for stepparent adoption against a putative father because there

could never be a putative father under the Trial Court’s interpretation.” (Emphasis added.) This

argument is without merit. Among other things, petitioners’ argument ignores several

contemporary legal and societal realities, such as the fact that there can be more than one

putative father, that children born out of wedlock may have only putative fathers, that the

custodial parent need not be the mother, that a child’s legal parents can differ from the child’s

biological parents, and that the parent petitioning for termination under MCL 710.51(6) need not

be the mother. In other words, petitioners’ argument rests on oversimplification and on the tacit

assumption that MCL 710.51(6) will only be applied in cases involving traditional familial

arrangements.

3

See Sun Valley Foods Co v Ward, 460 Mich at 237 (“As far as possible, effect should be given

to every phrase, clause, and word in the statute.”).

-8-

Petitioners’ view of MCL 710.51(6)’s operation is also inconsistent with the fundamental

principle that MCL 710.51(6) must, as part of the Adoption Code, be construed in pari materia

with several other acts that also relate to child custody and the rights of, among others, biological

parents, adoptive parents, “presumed” fathers, “acknowledged” fathers, “genetic” fathers, and

putative fathers generally, including the Child Custody Act, MCL 722.21 et seq., the

Acknowledgment of Parentage Act, MCL 722.1001 et seq., the Paternity Act, MCL 722.711 et

seq., the Revocation of Paternity Act, MCL 722.1431 et seq., the Genetic Parentage Act, MCL

722.1461 et seq., and the Summary Support and Paternity Act, MCL 722.1491 et seq. As these

acts demonstrate, this state has an extensive statutory scheme governing paternity disputes. See,

e.g., Jones v Jones, 320 Mich App 248; 905 NW2d 475 (2017) (construing the Revocation of

Paternity Act); In re KH, 469 Mich 621, 624-625; 677 NW2d 800 (2004) (discussing the

“presumption of legitimacy” and the Paternity Act). A proper construction of MCL 710.51(6)

cannot be reached without considering the statute’s operation within this complex scheme.

Viewed through that statutory lens, we disagree with the meaning the petitioners suggest

should be afforded to the phrase “putative father” in MCL 710.51(6). Petitioners attempt to use

the definition from MCR 3.903(A)(24)—“ ‘Putative father’ means a man who is alleged to be the

biological father of a child who has no father as defined in MCR 3.903(A)(7)”—to render the

trial court’s interpretation of MCL 710.51(6) nugatory. To begin with, however, the phrase

“putative father” was added to MCL 710.51(6) by 1982 PA 72, roughly three decades before

MCR 3.903 was adopted (in 2003). See In re AJR, 469 Mich at 360 n 29 (discussing the

statutory history of MCL 710.51). As a matter of logic, our 1982 Legislature could not have

intended for the phrase “putative father” to be construed by reference to a definition that was first

set forth in a court rule in 2003. See id. at 359 (“Our inquiry is the intent of the Legislature that

in 1980 added the provision”).

More importantly, petitioners take the phrase “putative father” out of context. The full

relevant phrasing is “putative father who meets the conditions in section 39(2) of this chapter,”

i.e., MCL 710.39(2).4 (Emphasis added.) Thus, instead of importing a definition for “putative

father” from MCR 3.903(A)(24), this Court must look to MCL 710.39(2) to decide who qualifies

as a “putative father” for purposes of MCL 710.51(6).

As this Court recognized in In re BKD, 246 Mich App 212, 215; 631 NW2d 353 (2001),

in the context of adoption proceedings, MCL 710.39 acts to determine the parental rights of a

4

MCL 710.39(2) provides:

If the putative father has established a custodial relationship with the child

or has provided substantial and regular support or care in accordance with the

putative father’s ability to provide 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 [MCL

710.51(6)] or [MCL 712A.2].

-9-

putative father “[w]hen the parents of a child are unmarried[.]” This is necessary because,

although a putative father is one who, by definition, has not legally established his paternity, see

In re MKK, 286 Mich App 546, 558; 781 NW2d 132 (2009),5 “the Due Process and Equal

Protection Clauses bar the state from terminating the parental rights of the father of an

illegitimate child without the same showing of unfitness that would be necessary to terminate the

rights of a mother or a married father,” In re BKD, 246 Mich App at 222. “However, where the

father of an illegitimate child has not taken steps to establish a custodial or supportive

relationship, the state may constitutionally terminate his parental rights through procedures and

standards that are less stringent than those required to terminate the parental rights of a mother or

a married father.” Id.; see also In re MKK, 286 Mich App at 561 (noting that it remains an

unsettled question in this state whether a putative father who has not established a custodial or

supportive relationship has any cognizable liberty interest in the child).

This separation of putative fathers into two distinct categories, in compliance with federal

constitutional law, is precisely what MCL 710.39(1) and (2) accomplish. In re MKK, 286 Mich

App at 559-560 & n 5. “[B]ecause proceedings under the Adoption Code routinely take

precedence over separate paternity actions,” In re MGR, 323 Mich App 279, 286; 916 NW2d 662

(2018), lv gtd 503 Mich 877 (2018), without MCL 710.39, there would be a distinct risk that a

biological father’s protected liberty interests in his child could be impinged by an order of

adoption that was entered while the father’s duly instituted paternity action remained pending.

For instance, without MCL 710.39, which protects the interests of putative fathers as if they are

legal fathers, a child whose unmarried mother had consented to the termination of her parental

rights might be placed with and adopted by an unrelated couple before the biological father was

ever afforded an opportunity to establish his paternity. Indeed, after considering such

constitutional implications, in In re MKK, 286 Mich App at 562, this Court held that,

notwithstanding the protections afforded by MCL 710.39(1) and (2), a paternity action instituted

by a putative father can represent “good cause” justifying the adjournment of pending adoption

proceedings, at least under certain circumstances.

With this legal backdrop in mind, petitioners’ argument is logically unsound. Petitioners

contend that under the trial court’s construction of MCL 710.51(6), which would require a

petitioning parent to have custody of the involved child “according to a court order,” it would be

“impossible” for a petitioning parent to petition for the termination of the rights of a putative

father. Although this argument has facial appeal at first blush, it is ultimately incorrect. We will

not list every factual scenario that may arise in the context of a putative father where the mother

of the child has custody by way of a court order. However, we could certainly imagine a

scenario where the mother was unmarried when the child was born, and has never been divorced,

but nevertheless has custody of the minor child according to a court order and has petitioned to

5

Recently, in In re MGR, 503 Mich 877 (2018) (In re MGR II), the Supreme Court granted leave

to appeal this Court’s decision in In re MGR, 323 Mich App 279; 916 NW2d 662 (2018), which

relied on In re MKK as binding precedent. One of the issues to be addressed by the Supreme

Court in In re MGR is whether In re MKK “should be overruled.” In re MGR II, 503 Mich at

877.

-10-

have the parental rights of the child’s putative father terminated. Therefore, the trial court’s

construction of MCL 710.51(6) does not render the phrase “putative father” nugatory and is

plainly reflected in the statutory language. Thus, the trial court properly determined that a parent

is only entitled to petition for termination under MCL 710.51(6) if the petitioning parent, at the

time of the petition, has custody of the child who is at issue according to a court order.6

Lastly, petitioners argue the trial court erred in its application of MCL 710.51(6) to the

facts of this case. We need not reach this issue.

There is no dispute that petitioner mother, although she had custody of the child, did not

have custody according to a court order when petitioners filed their petition under MCL

710.51(6) and when the trial court ruled on that petition. Therefore, dismissal of the disputed

petition was appropriately granted, and this Court need not consider or decide the other claims of

error raised by petitioners on appeal because they are moot. See Garrett v Washington, 314

Mich App 436, 449; 886 NW2d 762 (2016) (“[a] matter is moot if this Court’s ruling cannot for

any reason have a practical legal effect on the existing controversy”) (quotation marks and

citation omitted).

Affirmed.

/s/ Thomas C. Cameron

/s/ Stephen L. Borrello

/s/ Brock A. Swartzle

6

It seems that petitioners have misdirected their policy arguments concerning why the law ought

to be different. “Arguments that a statute is unwise or results in bad policy should be addressed

to the Legislature.” Proctor v White Lake Twp Police Dep’t, 248 Mich App 457, 462; 639

NW2d 332 (2001). See also In re AJR, 496 Mich at 365 (“[T]o the extent that petitioners are

dissatisfied with the remedy available to them in light of their circumstances, they may seek

recourse from the Legislature.”).

-11-