In Re Halbert

552 N.W.2d 528 (1996) 217 Mich. App. 607

In re Buddy Brodie HALBERT, Jr., Minor.
Verda O'BERRY and Wayne O'Berry, Petitioners-Appellees,
v.
Buddy Duwaine HALBERT, Sr., Respondent-Appellant.

No. 190462.

Court of Appeals of Michigan.

Submitted June 5, 1996, at Grand Rapids. Decided July 19, 1996, at 9:05 a.m. Released for Publication September 4, 1996.

Swaney, Thomas and Moritz, P.C. by Holly F. Underwood, Holland, for petitioners.

Daniel J. Fojtik, Grand Haven, for respondent.

Before O'CONNELL, P.J., and SAWYER and G.R. CORSIGLIA,^[*] JJ.

O'CONNELL, Presiding Judge.

In this appeal as of right, respondent challenges the validity of a probate court order terminating his parental rights to his soon-to-be sixteen-year-old son Buddy pursuant to M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6). The termination of respondent's parental rights cleared the way for Buddy's adoption by his stepfather, petitioner Wayne O'Berry. We reverse.

I

Respondent and petitioner Verda O'Berry (hereinafter O'Berry) are the birth parents of Buddy and Brandy Halbert. The status of respondent's parental rights with regard to Brandy are not at issue in this appeal.

Respondent and O'Berry divorced in 1984. Under the terms of the divorce judgment, O'Berry received physical custody of the children; both parents shared legal custody. Respondent was afforded visitation and required to pay child support.

O'Berry married Wayne O'Berry on June 12, 1984.

The circuit court amended the judgment of divorce in 1988 after respondent and O'Berry agreed to transfer physical custody of Brandy to respondent. Additionally, the amendment relieved respondent of his weekly child support obligation.

By mid-1990, respondent's relationship with Buddy had so deteriorated that respondent ceased physical contact with his son. Respondent ceased all communication with Buddy in December 1990.

In October 1992, Brandy disclosed to O'Berry that respondent had sexually molested her. Respondent was imprisoned, thereafter, as a result of his sexual abuse of Brandy.

On August 8, 1995, the O'Berrys filed a petition for stepparent adoption pursuant to M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6), seeking authorization for petitioner Wayne O'Berry to adopt Buddy on the grounds that respondent had failed to provide support for Buddy and had failed to visit or contact Buddy for a period of two years or more. The O'Berrys also filed that same day a petition seeking the termination of respondent's parental rights with regard to Buddy pursuant to M.C.L. § 710.51(6); M.S.A. § 27.3178(551.51)(6).

The trial court conducted a termination hearing on October 13, 1995. At the close of the parties' proofs, the court explained from the bench that it "normally" looks to the two-year period that immediately precedes the filing of the termination petition, as required by M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6), to determine whether the grounds for termination exist. The court then concluded that respondent had been incarcerated during the two-year period immediately preceding the filing of the petition and, consequently, lacked the ability either to provide support for Buddy or to visit Buddy. Rather than deny the O'Berrys' petitions, however, the court determined that a noncustodial parent's incarceration "tolls the running of the statute, and ... you look at the period of time immediately preceding the incarceration, not the two-year period of time immediately preceding the filing of the petition." The court reached this conclusion in reliance upon this Court's decision in In re Colon, 144 Mich.App. 805, 377 N.W.2d 321 (1985). The court thereafter looked to the two-year period immediately preceding respondent's incarceration and determined that it had been established by clear and convincing evidence that respondent made no visits to and paid no support for Buddy, despite respondent's ability to do both. The court then terminated respondent's parental rights with respect to Buddy.

II

Respondent's parental rights were terminated under the Michigan Adoption Code pursuant to M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6), which provides in pertinent part:

If the parents of a child are divorced,... and if the parent having legal custody of the child subsequently marries and the 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, ... 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.

At issue in the present case is whether, in the case of an incarcerated respondent, the court looks to the two-year period preceding incarceration and, if not, whether an incarcerated respondent may be considered to have the ability to support his child while incarcerated, thereby opening the door for termination of his rights under this statute. Respondent argues that the phrase clearly and unambiguously requires a trial court to look to the two-year period immediately preceding the filing of the termination petition to determine if the grounds for termination exist. The O'Berrys argue that the legislative intent behind the enactment of M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6) is better honored if the statute is construed to allow the trial court to look to the two-year period falling immediately before the commencement of a noncustodial parent's incarceration, rather than the two-year period immediately preceding the filing of the petition, when the noncustodial parent is incarcerated at the time of the filing of the petition. What construction, if any, we are to afford the statute presents a question of first impression.^[1] We conclude that respondent advances the correct interpretation of the statute at issue.

Where the language employed in a statute is plain, certain, and unambiguous, the statute must be applied as written without interpretation. Grand Rapids v. Crocker, 219 Mich. 178, 182, 189 N.W. 221 (1922); Wayne Co v. Dep't of Corrections Director, 204 Mich.App. 712, 714, 516 N.W.2d 535 (1994). This literal application of the statute is mandated because the Legislature is presumed to have intended the meaning it plainly expressed. Frasier v. Model Coverall Service, Inc., 182 Mich.App. 741, 453 N.W.2d 301 (1990).

We conclude that the phrase "for a period of 2 years or more before the filing of the petition" is plain, certain, and unambiguous. A bare reading of the statute reveals that the two-year statutory period must commence on the filing date of the petition and extend backwards from that date for a period of two years or more. Accordingly, we determine that the statute is satisfied and a petition for termination may be granted where the grounds for termination have been shown to exist for at least two years immediately preceding the filing of the termination petition.

In the instant case, the trial court refused to apply the statute as written, opting instead to interpolate a "tolling" provision into the statute on the basis of this Court's decision in In re Colon, supra. We are unpersuaded that our decision in In re Colon compels us to afford the statutory phrase at issue any meaning other than its plain meaning.

In In re Colon, supra, pp. 808-812, 377 N.W.2d 321, this Court was asked to determine whether M.C.L. § 710.51(6)(a); M.S.A. § 27.3178(555.51)(6)(a) required a stepparent who wished to adopt his stepchildren to prove both that the noncustodial parent had failed to comply with a support order and that the noncustodial parent had the ability to comply with the order. After engaging in statutory construction, we opined:

For the above reasons, we hold that, in cases where a child support order has been entered, MCL 710.51(6)(a) [M.S.A. § 27.3178(555.51)(6)(a) ] may be satisfied by a showing that the natural parent has "failed to substantially comply with the [support] order, for a period of 2 years or more before the filing of the petition." Such a showing was clearly made in the case at bar where the probate court found that the relevant time period was two years preceding respondent's incarceration. [In re Colon, supra, p. 812, 377 N.W.2d 321.]

This Court was also asked to determine whether the evidence sustained the probate court's finding that the respondent had the ability to visit, contact, or communicate with his children, as required by M.C.L. § 710.51(6)(b); M.S.A. § 27.3178(555.51)(6)(b). In re Colon, supra, p. 813, 377 N.W.2d 321. We rejected the respondent's argument that he lacked the ability to visit his children, opining:

In the instant case, the probate court specifically recognized that proof by clear and convincing evidence was necessary, and that a showing of ability to visit was required under MCL 710.51(6)(b) [M.S.A. § 27.3178(555.51)(6)(b) ]. The court found that respondent had not been welcome inside petitioner's home but had been permitted to take the children on his visitations. Despite this, he had visited only eight to eleven times in 2-½ years. The court termed this visitation "minimal" and found that respondent had failed regularly and substantially to visit, contact, or communicate with the children for two years preceding his incarceration.

We cannot say that the findings of the probate court are clearly erroneous. Repsondent's [sic] visits were sporadic, and his claim that petitioner effectively blocked his efforts to see the children more frequently is not convincing. Petitioner testified that respondent was aware of the children's whereabouts and telephone number at all times. He did not request a change in the visitation order (which provided for "reasonable visitation") or complain to the Friend of the Court about being denied visitation. With this evidence on the record, we reject respondent's argument that he did not have the "ability to visit" within the meaning of MCL 710.51(6)(b) [M.S.A. § 27.3178(555.51)(6)(b) ]. [In re Colon, supra, pp. 813-814, 377 N.W.2d 321.]

The trial court's reliance on In re Colon, is misplaced. In In re Colon, we neither were asked to decide nor did decide how the two-year statutory period was to be calculated for purposes of M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6). To the extent that we favorably described the "two years preceding respondent's incarceration" as the relevant statutory period, our description constitutes, at most, obiter dictum. We conclude, therefore, that In re Colon does not provide meaningful authority for the proposition that a noncustodial parent's incarceration "tolls the running of the statute, and [requires the trial court to] look at the period of time immediately preceding the incarceration." Accordingly, our resolution of the question presented must be guided solely by the time-honored principles of statutory construction.

Guided by those time-honored principles, we are persuaded that the trial court committed an error of law when it refused to apply M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6) as written and, correspondingly, when it refused to look to the two-year period immediately preceding the filing of the petition to determine whether termination was warranted.

The O'Berry's argue that, under the circumstances of this case, it is unfair to Buddy and his stepfather to enforce M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6) as written. Although we sympathize with the O'Berrys, we are unpersuaded that any unfairness perceived by the O'Berrys is the direct consequence of any deficiency in the drafting of the statute or in our adherence to the certain and unambiguous language and plain meaning of the statute. Rather, our inability to resolve the issue placed before us in a manner desired by the O'Berrys is a consequence of the O'Berrys' invocation of a statute under which their desired end may not be attained.

The primary purpose of M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6) is to allow a stepparent who provides the material and emotional support to a child that would be expected of the child's legal parent to adopt the child of a noncustodial parent who has essentially abandoned the child and who has refused to, or is unavailable to, consent to the adoption. In re Colon, supra, pp. 810-811, 377 N.W.2d 321. This purpose may be effectuated only where the noncustodial parent is situated in circumstances whereby that parent can earn a living and acquire the wherewithal to support a child, where the noncustodial parent has ignored or abandoned the natural obligations owed a child by a parent, and where the noncustodial parent has refused, or intentionally has become unavailable, to consent to the adoption. Respondent's lengthy incarceration before the filing of the petitions for termination of his parental rights and for adoption—and, hence, his inability to earn a living and acquire the wherewithal to provide support for Buddy— take respondent outside the intended scope of M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6).

Reversed. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Although several panels of this Court have looked to the two-year period immediately preceding the filing of a termination petition when evaluating whether trial courts had correctly ordered termination pursuant to M.C.L. § 710.51(6); M.S.A. § 27.3178(555.51)(6), see, e.g., In re DaBaja, 191 Mich.App. 281, 291, 477 N.W.2d 148 (1991); In re Meredith, 162 Mich.App. 19, 24, 412 N.W.2d 229 (1987); In re Martyn, 161 Mich.App. 474, 482, 411 N.W.2d 743 (1987), and although another panel of this Court looked to the two-year period immediately preceding the noncustodial parent's commencement of incarceration and not the two-year period immediately preceding the filing of the petition, In re Colon, 144 Mich.App. 805, 812, 814, 377 N.W.2d 321 (1985), no panel of this Court has ever specifically addressed the issue presented in this case.