Very interesting Court of appeals opinion overturning a stepparent adoption

[CSO286]

What is the name of your state (only U.S. law)? Michigan

Check it out: http://jeannehannah.typepad.com/files/in-re-ajr.pdf

What a difference a word makes.....

 

[Ohiogal]

Makes sense to me. It is about every word in the statute. And caselaw.

 

[LdiJ]

What is the name of your state (only U.S. law)? Michigan

Check it out: http://jeannehannah.typepad.com/files/in-re-ajr.pdf

What a difference a word makes.....

It will be interesting to see if its further appealed...I suspect that it will be. That ruling could potentially put a lot of stepparent adoptions at risk in MI. I suspect that more than just the losing party in that appeal will want to see the MI Supreme Court weigh in on it. I see at least one potential problem in the ruling, and that is that the father never raised the issue at the trial court level.

 

[Silverplum]

It will be interesting to see if its further appealed...I suspect that it will be. That ruling could potentially put a lot of stepparent adoptions at risk in MI. I suspect that more than just the losing party in that appeal will want to see the MI Supreme Court weigh in on it.

I don't see how this ruling would risk other stepparent adoptions in MI, unless they've all been illegal.

I see at least one potential problem in the ruling, and that is that the father never raised the issue at the trial court level.

The justices covered that.

 

[ecmst12]

And suddenly, the failure to support and failure to visit doesn't matter? That's ok because he had joint legal custody which he did nothing to exercise for 2 years?

 

[LdiJ]

I don't see how this ruling would risk other stepparent adoptions in MI, unless they've all been illegal.


The justices covered that.

Joint legal custody is the norm these days...and many parents who have been assigned joint legal custody abandon their children at some point. Of course, clever adoption attorneys will recommend a "work around" to the situation, by suggesting that their clients file for sole legal and physical custody first, get that ordered, and then proceed with a termination of parental rights/stepparent adoption...however its quite problematic to suggest that parental rights can never be terminated on the basis of abandonment if a court has assigned joint legal custody. However, I can just about guarantee that their have been other stepparent adoptions in MI that were done on the basis of abandonment, where parents technically had joint legal custody. This ruling puts those adoptions at risk. You are assuming that because of this ruling those adoptions are illegal.

Yes, the justices covered that, but that is not a guarantee that it would stand up under further appeal. Lots of trial court cases get overturned at the appellate level and then get reconfirmed by a higher court.

I really don't have an opinion morally on this case. I don't know the parties or the details. I just see problems in this ruling and won't be surprised at all if its further appealed.

If it ends up standing, then I can just about guarantee that the MI legislature will change that "the" to "a".

 

[justalayman]

And suddenly, the failure to support and failure to visit doesn't matter? That's ok because he had joint legal custody which he did nothing to exercise for 2 years?

sure it matters. I do not know if there is a section of law that would have allowed for the termination on the same basis but the bottom line is:

it is irrelevant. The decision on the adoption was made in error because of the statute cited as the controlling statute was not applicable. It means nothing more and nothing less than than where there are situations of joint legal custody, that statute is not applicable in attempting to terminate the rights of either parent.


as to this being or causing a problem? I don't see it. It is clarification of that specific statute so if anything, it would prevent future problems. Of course, any similar situation is not subject to being overturned but that is where the: in the best interest of the child thing comes into play. If it has been an excessive amount of time, the courts are not likely to rescind the adoption simply due to the injury to the child possibility.

 

[LdiJ]

sure it matters. I do not know if there is a section of law that would have allowed for the termination on the same basis but the bottom line is:

it is irrelevant. The decision on the adoption was made in error because of the statute cited as the controlling statute was not applicable. It means nothing more and nothing less than than where there are situations of joint legal custody, that statute is not applicable in attempting to terminate the rights of either parent.

No, the appellate court ruled that the statute was not applicable due to one word. Again, the appellate court isn't the final arbiter of an interpretation of a statute. If no one challenges the ruling and no one further appeals it, it will stand, at least until someone else takes it further. However I really suspect that this case will go further.

Again, I don't have a moral opinion on this case since I don't know that background, but that ruling is not cast in concrete yet.

 

[justalayman]

LdiJ;3167441]No, the appellate court ruled that the statute was not applicable due to one word.

Um, ya, and? One word or a dozen; it is still not applicable.

Again, the appellate court isn't the final arbiter of an interpretation of a statute. If no one challenges the ruling and no one further appeals it, it will stand, at least until someone else takes it further. However I really suspect that this case will go further.

No one? You do realize who has standing to challenge that ruling is limited to the mother, right?

Personally, I agree with the decision. If the legislature doesn't like it, they can amend the law to use the term "a" instead of "the". The legislators must be extremely careful when writing a law. If they had a different intent, they should have written it differently.

Again, I don't have a moral opinion on this case since I don't know that background, but that ruling is not cast in concrete yet.

this has nothing to do with moral issues or the parties' backgrounds. This is a decision based purely on legal concerns.

 

[LdiJ]

Um, ya, and? One word or a dozen; it is still not applicable.



No one? You do realize who has standing to challenge that ruling is limited to the mother, right?

Personally, I agree with the decision. If the legislature doesn't like it, they can amend the law to use the term "a" instead of "the". The legislators must be extremely careful when writing a law. If they had a different intent, they should have written it differently.

this has nothing to do with moral issues or the parties' backgrounds. This is a decision based purely on legal concerns.

No, standing is not limited to the mother. The adoptive father has an equal right to challenge the ruling...in fact, the adoptive father has more standing than the mother. He could challenge the ruling even if she chose not to participate.

You didn't get what I was talking about when I mentioned "others" challenging the ruling. Case law, on an appellate level stands until some case challenges it and takes it further. If the mother AND adoptive father in this case choose not to challenge it further, it doesn't mean that another set of parents, in another case, won't challenge the interpretation of the law further...heck somebody could take it all the way to the USSC if they were so inclined.

This ruling was incredibly simplistic...and the father never raised the issue at the trial court level. I don't see it standing for the long term. I can almost guarantee that there will be an adoption attorney, sometime, who will fight to see this ruling overturned...even if its not the attorney in this case.

 

[Ohiogal]

No, the appellate court ruled that the statute was not applicable due to one word. Again, the appellate court isn't the final arbiter of an interpretation of a statute. If no one challenges the ruling and no one further appeals it, it will stand, at least until someone else takes it further. However I really suspect that this case will go further.

Again, I don't have a moral opinion on this case since I don't know that background, but that ruling is not cast in concrete yet.

Wrong. The appellate court ruled that THAT SPECIFIC statute was not applicable. There most likely is another statute that IS applicable. Do you have any caselaw to back up what you are saying? That ruling prevails in that appellate court district until said time as it is overturned. Until it is overturned, it is BINDING precedent for that part of the state. And why do you suspect that this case will go further? Why do you believe that the Michigan Supreme Court HAS to take a look at this case? Is there a conflict between districts?

 

[Ohiogal]

No, standing is not limited to the mother. The adoptive father has an equal right to challenge the ruling...in fact, the adoptive father has more standing than the mother. He could challenge the ruling even if she chose not to participate.

You didn't get what I was talking about when I mentioned "others" challenging the ruling. Case law, on an appellate level stands until some case challenges it and takes it further. If the mother AND adoptive father in this case choose not to challenge it further, it doesn't mean that another set of parents, in another case, won't challenge the interpretation of the law further...heck somebody could take it all the way to the USSC if they were so inclined.

This ruling was incredibly simplistic...and the father never raised the issue at the trial court level. I don't see it standing for the long term. I can almost guarantee that there will be an adoption attorney, sometime, who will fight to see this ruling overturned...even if its not the attorney in this case.

What would get this case to the USSC? What federal question or right is invoked? What guarantee is it that the case would get to the STATE supreme court to begin with? Why would the Michigan Supreme Court HAVE to take this case? Cases to the Michigan Supreme Court are NOT appeals of right.

As for dad not bringing it up, google PLAIN ERROR.
In addition, there are other statutes under Michigan law that would have allowed for the adoption of the child. Just not the specific one that the judge found.

 

[justalayman]

LdiJ;3167453]No, standing is not limited to the mother. The adoptive father has an equal right to challenge the ruling...in fact, the adoptive father has more standing than the mother. He could challenge the ruling even if she chose not to participate.

How so? The mother was the only party with standing to sue to terminate the fathers paternity. How does the adopting father magically become entwined with that? He was joined to the action simply due to the associated adoption application.

You didn't get what I was talking about when I mentioned "others" challenging the ruling. Case law, on an appellate level stands until some case challenges it and takes it further. If the mother AND adoptive father in this case choose not to challenge it further, it doesn't mean that another set of parents, in another case, won't challenge the interpretation of the law further...heck somebody could take it all the way to the USSC if they were so inclined.

challenges to involuntary termination. For some reason I'm not seeing a ton of the affected parent jumping up on that bandwagon. Could it happen? Sure. I'll let you keep track of that though as I don't expect it will be anytime soon.

T

his ruling was incredibly simplistic...and the father never raised the issue at the trial court level. I don't see it standing for the long term.

that's why it becomes such a dependable decision: simplicity. One issue, which was addressed quite well. Of course you realize that you don't get to just file and your appeal will be heard. You have to have a basis for your appeal to be accepted. Care to elucidate as to just what one present to counter the clear and unambiguous reasoning of the appeals court justices?



the lack of raising the argument previously was addressed:

Respondent did not raise this issue at the trial court, thus failing to preserve the issue for
appellate review. In re VanDalen, 293 Mich App 120, 135; 809 NW2d (2011). However, “[t]his
Court may overlook preservation requirements if the failure to consider the issue would result in
manifest injustice, if consideration is necessary for a proper determination of the case, or if the
issue involves a question of law and the facts necessary for its resolution have been presented.”
Nuculovic v Hill, 287 Mich App 58, 63; 783 NW2d 124 (2010). Here, the issue presented is
strictly an issue of law–statutory interpretation–and all of the requisite facts have been presented.
Thus, in the interests of justice, we will review the issue.

Can the mother appeal that basis? Sure but getting it heard based on that isn't likely to happen. She would have to argue that the courts must allow the injustice to stand simply because of the father had not presented the argument previously. It gets really hard to argue: your decision is correct but you cannot make the decision because of the rules don't allow it.

I can almost guarantee that there will be an adoption attorney, sometime, who will fight to see this ruling overturned...even if its not the attorney in this case.

best of luck to them but I do not see them winning. The chatter concerning a and the was quite clear.

On top of that, this really seals the deal:

Our interpretation of MCL 710.51(6) is further strengthened by the rules of statutory
construction that every word and phrase in a statute is to be given effect, if possible, and that this
Court should not ignore the omission of a term from one section of a statute when that term is
used in another section of the statute. See Farrington, 442 Mich at 210. Notably, the preceding
section in the statute, MCL 710.51(5), uses the phrase “a parent” to refer to whom that particular
section applies. Contrastingly, MCL 710.51(6) refers to “the parent.” We presume that the
Legislature intended to use the more general phrase “a parent” to refer to either of the child’s
parents in MCL 710.51(5) and that the omission of such a general article in MCL 710.51(6) was
intentional. Id.; see also Robinson, 486 Mich at 14 n 13, quoting MCL 8.3a (reviewing courts
“must follow these distinctions between ‘a’ and ‘the’ because the Legislature has directed that
‘[a]ll words and phrases shall be construed and understood according to the common and
approved usage of the language . . . .”).

 

[Ohiogal]

I note you answered NONE of my questions and they were pertinent to the matter at hand. Appeal to the Supreme Court of a state is NOT an appeal of right. The Supreme Court gets to choose whether to accept the appeal thus making it discretionary. And if the state supreme court does not accept it, it has NO chance of going to the USSC. Also there is no FEDERAL right at issue here so why would the USSC even look at it? You didn't answer either of those but apparently you think it is possible because you said it was a possibility. Please, educate the rest of us.

 

[Ohiogal]

Is that the best ya got? Seriously, I can see you arguing with me but to take on somebody that spent more than a few minutes studying law in such a manner as to be qualified to stand for another in a court is just a bit over the top. Recall when you called me arrogant? Well, pot, meet kettle.

Ld never backs up anything. She doesn't quote caselaw and she doesn't post statute. She refuses to support any of her arguments with anything or admit when she is wrong. Pretty much all of the other seniors have admitted when they are wrong (including me, and no one can argue that I haven't and be anywhere near correct). But LD knows everything about the law and makes sure that everyone knows she can speak to any family case in any state because her neighbor, cousin, sister, goldfish was in that situation. This is case in point for LD. What I stated was the truth. And yet if LD would take the time to back up what she says with caselaw/statute and admit when she was wrong and not just blather on, she could be a great resource. Instead she refuses to be an asset and instead comes across as ignorant and arrogant -- a dangerous combination. If you prove her wrong, her automatic response to an OP is -- HIRE AN ATTORNEY and don't listen to an internet board. You almost have to feel sorry for LD because she just doesn't get it. Almost.