Opinion
No. 340091
05-15-2018
In re D. T. DRONES, Minor.
UNPUBLISHED Muskegon Circuit Court Family Division
LC No. 2008-037021-NA Before: GLEICHER, P.J., and M. J. KELLY and CAMERON, JJ. CAMERON, J. (concurring in part and dissenting in part).
While I agree with the majority that remand and a new hearing are necessary, I respectfully disagree with its analysis of MCL 712A.19b(3)(k)(viii). Because I read the majority's opinion as, for practical purposes, barring petitioner from raising Subsection (3)(k)(viii) on the current evidence in the record, I concur in part and dissent in part.
Termination of parental rights under Subsection (3)(k)(viii) requires a finding that a child is abused. The majority correctly states that "abuse" is not defined in the Juvenile Code, MCL 712A.1 et seq. When there is no statutory definition available, courts must look to the dictionary and common law definitions of the term. People v Cathey, 261 Mich App 506, 517; 681 NW2d 661 (2004). Thus, the majority reasonably turns to the dictionary definition of "abuse," using Black's Law Dictionary (10th ed) and Webster's New World College Dictionary (5th ed), which require physical or emotional harm. Because respondent's repeated attempts to poison her child were thwarted, the majority concludes her conduct does not, as a matter of law, constitute "abuse" under the Juvenile Code.
I would follow a different approach. The Child Protection Law, MCL 722.621 et seq., defines "child abuse" in relevant part as "harm or threatened harm to a child's health or welfare that occurs through nonaccidental physical or mental injury, sexual abuse, sexual exploitation, or maltreatment, by a parent." MCL 722.622(g) (emphasis added). It is well settled that this Court may rely on definitions of terms found in other statutes only if they can be read in pari materia. See In re SMNE, 264 Mich App 49, 51-52, 55-56; 689 NW2d 235 (2004) (relying on the definitions of "support order" found in the Revised Uniform Reciprocal Enforcement Act, MCL 780.151 et seq. and the Support and Parenting Time Enforcement Act, MCL 552.601 et seq, when interpreting MCL 710.51(6)(a) of the Michigan Adoption Code for purposes of terminating parental rights).
In this case, I would apply the definition of child abuse found in the Child Protection Law to Subsection (3)(k)(viii) of the Juvenile Code because the statutes, at least with respect to child abuse, should be read in pari materia. This approach is not novel. In several prior unpublished opinions, this Court has relied on the definition of "child abuse" under the Child Protection Law in termination cases, as there is clear interplay with the Juvenile Code. For instance, the Child Protection Law is referenced throughout the Juvenile Code, children's statements involving "child abuse" as defined under MCL 722.622(g) is admissible in termination proceedings under MCR 3.972(C)(2), and the investigations of the Department of Health and Human Services are guided by the Child Protection Law under MCL 722.628. In fact, the two acts have similar purposes, which of course focus on the child's welfare. According to the Editor's Notes, the purpose of the Child Protection Law is "to prescribe the powers and duties of the state department of social services to prevent child abuse and neglect" and "to safeguard and enhance the welfare of children and preserve family life." Similarly, the Juvenile Code is to be construed in a manner that ensures "that each juvenile coming within the court's jurisdiction receives the care, guidance, and control, preferably in his or her own home, conducive to the juvenile's welfare and the best interest of the state." MCL 712A.1(3). When considering the aforementioned, I would read the statutes in pari materia and apply the definition of "child abuse" found in the Child Protection Law for purposes of Subsection (3)(k)(viii).
I acknowledge that unpublished opinions are not precedentially binding under the rule of stare decisis. MCR 7.215(C)(1). However, as stated more fully within, the better practice would be to use the definition of "child abuse" under the Child Protection Law, as this Court has previously done. --------
The majority does not address the definition of "child abuse" in the Child Protection Law, concludes that there is no evidence in the record of abuse, and rejects "petitioner's argument that we should find that respondent's parental rights should be terminated under MCL 712A.19b(3)(k)(viii)." I disagree. Respondent attempted to poison her infant child with bleach and cleaner, which could very well meet the definition of child abuse under MCL 722.622(g). Because I believe termination of parental rights may be viable under Subsection (3)(k)(viii) based on the definition of "child abuse" under MCL 722.622(g), I concur in part and dissent in part.
/s/ Thomas C. Cameron