Book-Gilbert v. Greenleaf

840 N.W.2d 743, 302 Mich. App. 538
CourtMichigan Court of Appeals
DecidedSeptember 26, 2013
DocketDocket No. 308755
StatusPublished
Cited by48 cases

This text of 840 N.W.2d 743 (Book-Gilbert v. Greenleaf) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Book-Gilbert v. Greenleaf, 840 N.W.2d 743, 302 Mich. App. 538 (Mich. Ct. App. 2013).

Opinion

Per Curiam.

Heather McCallister, the minor child’s paternal grandmother, appeals by leave granted the family court order denying her motion for grandparent visitation, MCL 722.27b. We reverse and remand for proceedings consistent with this opinion.

When the minor child was three years old, his mother died. The father of the minor child was homeless and later placed in prison for failing to register as a sex offender. A foster care worker with the Department of Human Services (DHS) interviewed McCallister to determine her eligibility for visitation. McCallister was employed as a licensed adult-foster-care worker. In the course of the interview, McCallister did not disclose that DHS had previously investigated allegations concerning her home. The foster care worker opined that McCallister was not forthright regarding the investigations. The minor child was placed in the care of Angela Tyndall, a relative of the minor child’s deceased mother, in March 2009. The minor child was able to visit with [540]*540McCallister until August 2009. In August 2009, Tyndall was named guardian of the minor child. After she became the minor child’s guardian, DHS gave Tyndall the right to determine whether grandparent visitation would continue. Tyndall refused to allow further visitation.

McCallister subsequently moved for grandparent visitation under MCL 722.27b.1 At the time of the hearing on the motion, McCallister had not visited or seen the minor child in nine months. The trial court opined that McCallister should have visitation if it was not detrimental to the child. Accordingly, the court appointed a guardian ad litem for the minor child and scheduled the matter for an evidentiary hearing. Two evidentiary hearings were held within a year. At the conclusion of the second evidentiary hearing, the parties agreed to adjourn the matter in order to have a therapist interview McCallister and the minor child and allow a visit if it was deemed appropriate. Although McCallister presented the testimony of an expert, this individual had never interviewed the minor child and testified that he was offering an opinion premised on theory. The trial court noted that without an evaluation of the minor child, all parties were “guessing” what was best for the minor child. However, at the next hearing, it was learned that the evaluation had not occurred, the minor child’s therapist had left her employment, and Tyndall's family had moved to a different city because of a job change. It was determined that the evidentiary case would continue, and two additional evidentiary hearings were held. At the conclusion of those addi[541]*541tional hearings, the trial court ruled that Tyndall, although only a guardian, was entitled to the fit-parent presumption of MCL 722.27b(4)(b), and that McCallister had failed to overcome the presumption. As a result of this ruling, the court did not address the best-interest factors of MCL 722.27b(6), and denied McCallister’s motion. We granted McCallister’s delayed application for leave to appeal.2

McCallister alleges that the trial court erred by allowing Tyndall, the guardian, to use the fit-parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation. We agree.

The interpretation and application of a statute presents a question of law that the appellate court reviews de novo. Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). The judiciary’s objective when interpreting a statute is to discern and give effect to the intent of the Legislature. Id. First, the court examines the most rehable evidence of the Legislature’s intent, the language of the statute itself. Id. “When construing statutory language, [the court] must read the statute as a whole and in its grammatical context, giving each and every word its plain and ordinary meaning unless otherwise defined.” In re Receivership of 11910 South Francis Rd, 492 Mich 208, 222; 821 NW2d 503 (2012). Effect must be given to every word, phrase, and clause in a statute, and the court must avoid a construction that would render part of the statute surplusage or nugatory. Johnson v Recca, 492 Mich 169, 177; 821 NW2d 520 (2012). “If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted.” Whitman, 493 Mich at 311. “Generally, when language is included in one section of a statute but omitted from [542]*542another section, it is presumed that the drafters acted intentionally and purposely in their inclusion or exclusion.” People v Peltola, 489 Mich 174, 185; 803 NW2d 140 (2011). The courts may not read into the statute a requirement that the Legislature has seen fit to omit. In re Hurd-Marvin Drain, 331 Mich 504, 509; 50 NW2d 143 (1951); Mich Basic Prop Ins Ass’n v Office of Fin & Ins Regulation, 288 Mich App 552, 560; 808 NW2d 456 (2010). “When the Legislature fails to address a concern in the statute with a specific provision, the courts cannot insert a provision simply because it would have been wise of the Legislature to do so to effect the statute’s purpose.” Mich Basic Prop Ins Ass’n, 288 Mich App at 560 (quotation marks and citation omitted). Statutes that address the same subject matter or share a common purpose are in pari materia and must be read collectively as one law, even when there is no reference to one another. Maple Grove Twp v Misteguay Creek Intercounty Drain Bd, 298 Mich App 200, 212; 828 NW2d 459 (2012). The trial court’s factual findings are reviewed for clear error, and its legal conclusions are reviewed de novo. In re Receivership, 492 Mich at 218. Application of the law to the facts presents a question of law subject to review de novo. Miller-Davis Co v Ahrens Constr, Inc, 285 Mich App 289, 299; 777 NW2d 437 (2009) rev’d on other grounds 489 Mich 355 (2011).

MCL 722.27b governs grandparenting time and provides in relevant part:

(1) A child’s grandparent may seek a grandparenting time order under 1 or more of the following circumstances:
(a) An action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court.
(b) The child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled.
[543]*543(c) The child’s parent who is a child of the grandparents is deceased.
(d) The child’s parents have never been married, they are not residing in the same household, and paternity has been established by the completion of an acknowledgment of parentage under the acknowledgment of parentage act, 1996 PÁ 305, MCL 722.1001 to 722.1013, by an order of filiation entered under the paternity act, 1956 PA 205, MCL 722.711 to 722.730, or by a determination by a court of competent jurisdiction that the individual is the father of the child.
(e) Except as otherwise provided in subsection (13), legal custody of the child has been given to a person other than the child’s parent, or the child is placed outside of and does not reside in the home of a parent.

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Cite This Page — Counsel Stack

Bluebook (online)
840 N.W.2d 743, 302 Mich. App. 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/book-gilbert-v-greenleaf-michctapp-2013.