In Re Toth

577 N.W.2d 111 (1998) 227 Mich. App. 548

In the Matter of David Michael TOTH, Jr., a Minor.
David Michael TOTH, Jr., a Minor, Appellant,
v.
Frank TOTH, Wanda Toth and Barbara Toth, Appellees.
David Michael TOTH, Jr., a Minor, Appellee/Cross-Appellant,
v.
Frank Steven TOTH, Jr., and Wanda Taylor Toth, Appellees/Cross-Appellees, and
Barbara Toth, Appellant/Cross-Appellee.
David Michael TOTH, Jr., a Minor, Appellee/Cross-Appellant,
v.
Frank TOTH, Wanda Toth and Brandi Sanson, Appellees/Cross-Appellees, and
Barbara Toth, Appellant/Cross-Appellee.

Docket Nos. 189176, 189203 and 189810.

Court of Appeals of Michigan.

Submitted April 10, 1997, at Lansing. Decided January 27, 1998, at 9:05 a.m. Released for Publication April 30, 1998.

Joanne Vallarelli, Lansing, guardian ad litem for David M. Toth, Jr.

Gerald V. Mailing, Greenville, for Frank and Wanda Toth.

Michael A. Mixer, Ann Arbor, for Barbara Toth.

Before MICHAEL J. KELLY, P.J., and WAHLS and GAGE, JJ.

PER CURIAM.

The two appellants, Barbara Toth and the guardian ad litem to the minor child, appeal as of right from the probate court order confirming the adoption of the child by appellees Frank and Wanda Toth. In addition, appellants appeal as of right from the circuit court orders that (1) denied their respective motions to stay the adoption proceedings and assume full jurisdiction of the case, (2) dismissed the guardian ad litem, and (3) terminated the prior visitation order.

This case involves what appears to be an issue of first impression in Michigan: the right of a grandparent with court-ordered visitation to intervene in adoption proceedings pursuant to M.C.L. § 710.24a(1); M.S.A. § 27.3178(555.24a)(1). We find that the appellant grandmother, Barbara Toth, did not have standing to intervene, and we therefore affirm the orders of the probate and circuit courts in that respect.

The facts of this case are unusual. Barbara Toth and Frank Toth, divorced in 1988, are the parents of David Toth, Sr. Frank Toth is currently married to Wanda Toth, who is the mother of Brandi Sanson. David Toth, Sr., and Brandi Sanson are the biological parents of David Michael Toth, Jr., the minor child at issue in the proceedings herein. Frank and Wanda Toth are therefore both the adoptive parents and the child's paternal grandfather and maternal grandmother respectively. Following his birth on September 5, 1990, the child lived with Barbara Toth, his paternal grandmother, for approximately ten weeks. From that time forward, the child has lived with Frank and Wanda Toth.

The first case involving the child was filed in the Montcalm Circuit Court in October 1990, when David Toth, Sr., petitioned for physical custody of the child. Barbara Toth intervened in that action, seeking grandparent visitation and consideration for possible placement if the parents of the minor child were deemed unfit. Frank and Wanda Toth later intervened with their own request for custody of the child. Following a trial, the circuit court granted custody to Frank and Wanda Toth and reserved the right to limit or extend Barbara Toth's visitation. Relying on In re Clausen, 442 Mich. 648, 656, 502 N.W.2d 649 (1993), and Bowie v. Arder, 441 Mich. 23, 43, 490 N.W.2d 568 (1992), this Court upheld the circuit court's decision, finding that Barbara Toth had no standing to challenge the custody order. Toth v. Toth, unpublished opinion per curiam of the Court of Appeals, issued December 8, 1993 (Docket No. 158467).

In April 1993, David Toth, Sr., and Brandi Sanson filed a consent in the Mecosta County Probate Court to Frank and Wanda Toth adopting the child pursuant to M.C.L. § 710.43; M.S.A. § 27.3178(555.43) and M.C.L. § 710.44; M.S.A. § 27.3178(555.44). Following the consent, the probate court terminated their parental rights. Frank and Wanda Toth then filed an adoption petition in the probate court. Barbara Toth filed a competing petition, along with a motion to stay the probate court proceedings. During the probate court proceedings, the circuit court had continued to issue visitation orders concerning the child. Moreover, after all parties agreed that it would be in the child's best interests, the circuit court appointed a guardian ad litem who had been selected and whose fees continued to be paid by Barbara Toth. In July 1995, the probate court granted Frank and Wanda Toth's adoption petition. The circuit court subsequently terminated Barbara Toth's visitation rights and the guardian ad litem's appointment.

I

Barbara Toth and the guardian ad litem first argue that the circuit court erred in declining to stay the adoption proceedings in the probate court and assume full jurisdiction of the case. We disagree. The probate court and the circuit court had concurrent jurisdiction over the minor child. MCR 3.205(A); M.C.L. § 722.27(1)(c); M.S.A. § 25.312(7)(1)(c), M.C.L. § 710.24; M.S.A. § 27.3178(555.24). See also In re DaBaja, 191 Mich.App. 281, 288-289, 477 N.W.2d 148 (1991). The probate court was not required to obtain a waiver of jurisdiction by the circuit court before exercising its own jurisdiction. MCR 3.205; Krajewski v. Krajewski, 420 Mich. 729, 733-734, 362 N.W.2d 230 (1984); DaBaja, supra. There is no statute that requires the circuit court to assume full jurisdiction in such circumstances. The circuit court therefore did not err in declining to do so. Moreover, it is apparent from a reading of the circuit court opinions that the two judges had discussed the case, and the circuit court was comfortable with the confirmation decision.^[1]

II

Barbara Toth and the guardian ad litem next argue that the circuit court erred in terminating Barbara Toth's visitation with the minor child following the probate court's confirmation of the adoption.^[2]

The effect of M.C.L. § 710.60(1); M.S.A. § 27.3178(555.60)(1) is to make the adopted child, as much as possible, a natural child of the adopting parents, and to make the adopting parents, as much as possible, the natural parents of the child. Bikos v. Nobliski, 88 Mich.App. 157, 162, 276 N.W.2d 541 (1979). The Michigan adoption scheme expresses a policy of severing, at law, the prior, natural family relationship and creating a new and complete substitute relationship after adoption. Id. at 162-163, 276 N.W.2d 541; In re Adams, 189 Mich.App. 540, 544-545, 473 N.W.2d 712 (1991). Once a child has a new, complete family as evidenced by adoption, the grandparent visitation statute, M.C.L. § 722.27b; M.S.A. § 25.312(7b), ceases to apply. Bikos, supra.

Ordinarily, the circuit court's termination of the visitation order would, without question, be proper. In this very unusual instance, however, there seems to be ongoing relationships with all of the child's biological family, except with the paternal grandmother, Barbara Toth. While we sympathize with her desire for continued visitation with the minor child, the language of M.C.L. § 722.27b(1); M.S.A. § 25.312(7b)(1)—which states that a grandparent can seek visitation only if a child custody dispute is pending or if the grandparent's child is deceased—seems to preclude the option of continued visitation. The circuit court therefore did not err in terminating Barbara Toth's visitation. Furthermore, because a child custody dispute was not pending before the probate court, see M.C.L. § 722.27b(2); M.S.A. § 25.312(7b)(2); Frame v. Nehls, 452 Mich. 171, 178-179, 180-181, 550 N.W.2d 739 (1996), the probate court could not have granted Barbara Toth grandparent visitation with the minor child either.

III

In what appears to be an issue of first impression, Barbara Toth also claims that the probate court erred in determining that even though she was a grandparent with court-ordered visitation rights, she did not have standing to intervene in the adoption proceedings. We disagree with her position.

In Michigan, adoption proceedings are governed entirely by statute. Roberts v. Sutton, 317 Mich. 458, 467-468, 27 N.W.2d 54 (1947). Section 24a(1) of the Adoption Code, M.C.L. § 710.24a(1); M.S.A. § 27.3178(555.24a)(1), specifically enumerates who is considered an interested party in adoption proceedings.

(1) Interested parties in a petition for adoption are all of the following:

(a) The petitioner.

(b) The adoptee, if over 14 years of age.

(c) A minor parent, adult parent, or surviving parent of an adoptee, unless 1 or more of the following apply:

(i) The rights of the parent have been terminated by a court of competent jurisdiction.

(ii) A guardian of the adoptee, with specific authority to consent to adoption, has been appointed.

(iii) A guardian of the parent, with specific authority to consent to adoption, has been appointed.

(iv) The rights of the parent have been released.

(v) The parent has consented to the granting of the petition.

(d) The department or a child placing agency to which the adoptee has been, or for purposes of subsection (3) is proposed to be, released or committed by an order of the juvenile division of the probate court.

(e) A parent, guardian, or guardian ad litem of an unemancipated minor parent of the adoptee.

(f) The juvenile division of the probate court with permanent custody of the adoptee.

(g) A court with continuing jurisdiction over the adoptee.

(h) A child placing agency of another state or country that has authority to consent to adoption.

(i) The guardian or guardian ad litem of an interested party.

Section 24a(6) of the Adoption Code also provides, "In the interest of justice, the court may require additional parties to be served." M.C.L. § 710.24a(6); M.S.A. § 27.3178(555.24a)(6).

In interpreting a statute, courts may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. In re Schnell, 214 Mich.App. 304, 310, 543 N.W.2d 11 (1995). Here, the statute is clear so judicial construction is unnecessary. Id. A grandmother, even one with visitation rights, is not enumerated as an interested party in the statute. Accordingly, the probate court correctly determined that Barbara Toth lacked standing to object to the adoption.

Furthermore, although a guardian ad litem had been appointed for the minor child by the circuit court, the guardian ad litem was not granted any specific authority by the circuit court and certainly was not granted the specific authority to consent to an adoption of the child. Therefore, under the statute, the probate court did not err in its refusal to recognize the authority of the guardian ad litem during the adoption confirmation proceedings.

The probate court also properly refused to consider Barbara Toth's adoption petition. The natural parents of the minor child filed a consent to Frank and Wanda Toth adopting the child in April 1993 pursuant to M.C.L. § 710.43; M.S.A. § 27.3178(555.43) and M.C.L. § 710.44; M.S.A. § 27.3178(555.44). All investigations were then directed toward the appropriateness of this placement. Barbara Toth correctly notes that once the parents' rights were terminated, the child became a ward of the court. M.C.L. § 710.51(3); M.S.A. § 27.3178(555.51)(3). She also is correct in noting that if the court had found adoption by Frank and Wanda Toth was not in the child's best interests, it could have returned "the child to the parents or original custodian and restore their rights, or make a disposition appropriate for the welfare of the ward... by an ex parte order entered in the court." M.C.L. § 710.62; M.S.A. § 27.3178(555.62). It does not follow, however, that simply because this event could have happened the court was required to accept her petition before making a determination regarding Frank and Wanda Toth's petition.

This Court reviews a probate court's decision to grant or deny a petition for adoption for an abuse of discretion. In re Kyung Won Kim, 72 Mich.App. 85, 88, 249 N.W.2d 305 (1976). Two investigative reports were prepared in this case, and each addressed the required best interests of the child analysis. M.C.L. § 710.22(f); M.S.A. § 27.3178(555.22)(f). In both, the investigator recommended, albeit with some reservations, that the adoption petition be approved. From the reports, the case file, and the circuit court's prior custody opinion, the probate court was very familiar with the history of this case and all parties. The probate court did not abuse its discretion in granting the adoption petition of Frank and Wanda Toth.

IV

Finally, the circuit court did not abuse its discretion by dismissing the guardian ad litem after the probate court confirmed the adoption of the minor child. The guardian ad litem was selected by Barbara Toth, who paid all her fees. She was appointed by the circuit court after a hearing conducted by the circuit court referee during which the other parties somewhat reluctantly agreed that a neutral party acting in the child's best interests might expedite the resolution of these matters. Her authority was never specifically delineated. Once the adoption was final, any reason for the guardian ad litem's appointment was clearly concluded, and her dismissal was therefore appropriate.

Affirmed.

NOTES

[1] We further note that the Legislature has addressed and resolved this issue for future cases by the creation of the family division of the circuit court, effective January 1, 1998, which will have sole and exclusive jurisdiction over adoption and child custody matters. M.C.L.§ 600.1021; M.S.A. § 27A.1021.

[2] We note for purposes of this determination that we are not persuaded by Barbara Toth's equal protection arguments. Our only concern is with the best interests of the minor child who is the subject of this litigation.