Appeals Court: Non-Resident May Seek Parental Consent Waiver To Abortion In Michigan | Speaker Law
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Appeals Court: Non-Resident May Seek Parental Consent Waiver To Abortion In Michigan

Posted on Wednesday, August 31, 2022

A trial court improperly held that it did not have jurisdiction over a petition for a waiver of parental consent to an abortion, the Michigan Court of Appeals has ruled in a published order.

The Wayne County Circuit Court in In re AST, Minor (Docket No. 362349) had dismissed the petition for a waiver of parental consent to an abortion under the Parental Rights Restoration Act (PRRA), MCL 722.901 et seq., because the petitioner did not reside in Michigan.

The Court of Appeals reversed and remanded, finding the Legislature “clearly contemplated” that non-residents may seek a waiver of parental consent to an abortion in Michigan.

“Had it intended otherwise, the Legislature would have no occasion to include MCL 722.906 in the PRRA,” the Court of Appeals explained. That section of the statute says, “The requirements of this act apply regardless of whether the minor is a resident of this state.”

“[W]e hold that, so long as petitioner is physically present in the county, the family division of that county’s circuit court has jurisdiction to consider the petition,” the Court of Appeals wrote.

Judge Michael J. Riordan, as presiding judge in the case, signed the five-page order. Judge Christopher M. Murray and Judge Kristina Robinson Garrett were also on the panel. All three judges issued separate concurrences.

County In Which Minor ‘Is Found’

In its order, the Court of Appeals pointed out the trial court had found it lacked jurisdiction because the petitioner did not reside in Michigan. “That conclusion is incorrect.”

The issue “boil[ed] down to” an interpretation of MCL 722.904(2)(b), the Court of Appeals observed. That statute says: “A minor may file a petition for waiver of parental consent in the probate court of the county in which the minor resides. For purposes of this act, the county in which the minor resides means the county in which the minor’s residence is located or the county in which the minor is found.”

According to the Court of Appeals, it had to follow the Legislature’s definition of the phrase “in which the minor resides.” Therefore, “the question is whether petitioner is either a resident of the county in which she filed her petition, or if she ‘is found’ in that county. The word ‘or’ is disjunctive, and generally connotates separation or alternatives.”

The Court of Appeals continued by explaining that the Legislature envisioned two circumstances where a minor may seek a waiver of parental consent in a county: 1) where the minor resides in that county or 2) where the minor “is found” in that county. “Further, this Court is require[d] … to give every word in a statute meaning and to avoid a construction that would render any part of the statute surplusage or nugatory. … The language ‘is found’ must mean something different than residence or else it would be mere surplusage.”

Next, the Court of Appeals examined the Michigan Supreme Court’s decision in In re Mathers, 371 Mich 516 (1963), where the high court interpreted another statute that uses the phrase “found within the county” and held that such language describes a person “who is physically present in the county.” The Mathers court also: 1) stated that had the Legislature meant “residence” it could have said so and 2) explicitly held that “when the [L]egislature used the word ‘found,’ it did not mean ‘resides’ or its equivalent.”

In the present case, it was clear the Legislature did not mean “residence” when it used the phrase “is found” in MCL 722.904(2)(b), the Court of Appeals said. “The circuit court erred by grafting a residency requirement into this portion of the statute where none exists.”

Moreover, if there is “any doubt” the Legislature intended non-residents to be able to seek a waiver of parental consent under the PRRA, such doubt is resolved by MCL 722.906, the Court of Appeals noted. The Legislature “clearly contemplated that out-of-state residents could seek a waiver in Michigan. … MCL 722.906 simply cannot be squared with the circuit court’s holding that it lacked jurisdiction because petitioner resides in a different state.”

In conclusion, the Court of Appeals held that, as long as the petitioner is physically present in the county, that county’s circuit court has jurisdiction to consider the petition under the PRRA. “We express no view on the merits of whether petitioner is actually entitled to such a waiver,” the appeals court added. “Rather, on remand, the circuit court shall follow the procedures of the PRRA … to determine whether a waiver is appropriate. We further express no view on the legality of abortions in Michigan. … Any consideration of such issues would be premature in this case ….”

The Court of Appeals further emphasized that its decision “is limited to a conclusion that, so long as a minor is physically present in a particular county, and regardless of her place of residence, the circuit court has jurisdiction to consider a petition brought under the PRRA. That holding is compelled by the plain language of the PRRA and binding precedent of the Supreme Court. Neither this Court nor the circuit court has authority to alter or amend the statutes enacted by the Legislature. … The matter is remanded for further proceedings consistent with this order.

Three Judges, Three Concurrences

In his concurrence, Judge Riordan explained the county in which the minor “is found” for the purposes of MCL 722.904(2)(b) refers to the county in which the minor is physically present. He also said the PRRA is one law “regulating the performance of abortions” and, as a result, its limitation that “’a person shall not perform an abortion on a minor without first obtaining the written consent of the minor and 1 of the parents or the legal guardian of the minor,’ MCL 722.903(1), remains in force.”

The PRRA, however, “does not create a right to an abortion,” Judge Riordan emphasized. “More importantly, the PRRA prohibits any abortion that is otherwise ‘prohibited by law.’ … Consequently, because MCL 750.14 remains valid law in Michigan, the PRRA prohibits any abortion that is prohibited by MCL 750.14. If the circuit court issues a waiver of parental consent pursuant to MCL 722.903(2) in this case – or any other case – in which the abortion is not ‘necessary to preserve the life of such woman,’ … the circuit court will have violated MCL 722.908(2) by permitting an abortion that is otherwise prohibited by MCL 750.14. This, the circuit court cannot do, as courts cannot aid a violation of the law.”

Although the Wayne County Circuit Court had jurisdiction to hear the petitioner’s request for a waiver, “granting the waiver would be a violation of MCL 722.908(2) unless the abortion would be permitted by MCL 750.14,” Judge Riordan wrote. “Because there is nothing in the petition to suggest that the abortion would be permitted by MCL 750.14, the circuit court would properly deny the petition on remand.”

In his concurrence, Judge Murray succinctly stated: “All the statute requires is that a minor be ‘found’ in the county, and she was physically present in the county in which she sought an abortion when the petition was filed. Thus, a remand for a determination on the merits is appropriate. However, as Judge Riordan notes, even if the waiver is granted, that does not confer on the minor a right to an abortion or deem the procedure legal to perform. … Those issues, if they arise on remand, would be issues to address in a subsequent appeal or other proceeding.”

Meanwhile, Judge Garrett said she concurred in judgment only and wrote separately for two reasons. First, she said that while the Court of Appeals order expressed “no view” on the legality of abortion in Michigan, the discussion of why it would be premature to address the issue was “unnecessary and unrelated” to the jurisdictional question at hand. Therefore, she emphasized that she did not join in this portion of the order.

“Second,” Judge Garrett continued, “fundamental principles of judicial restraint counsel that judges should refrain from addressing issues that neither the circuit court nor the parties have raised. … Yet, the Presiding Judge’s concurrence expresses a view on the legality of abortions in Michigan, an issue not before this Court. Under this concurrence’s view, MCL 750.14 remains valid law in Michigan. But the effect of MCL 750.14 has been enjoined and may not be enforced while the injunction remains in effect. … Furthermore, the Presiding Judge erroneously asserts that ‘because MCL 750.14 remains valid law in Michigan, the PRRA prohibits any abortion that is prohibited by MCL 750.14.’ … The Presiding Judge’s concurrence ignores that MCL 750.14 is currently unenforceable based on a binding court order finding that its enforcement violates a woman’s fundamental due-process right to bodily integrity.”

Judge Garrett concluded, “This Court’s current order should not be misunderstood. Under the existing status of the law, the circuit’s court review on remand is limited to the statutory factors for deciding a waiver of parental consent. Those two factors focus on the maturity of the minor and the minor’s best interests. MCL 722.904(3). The circuit court must also consider the petition with ‘sufficient expedition’ pursuant to MCL 722.904(2). With this clarification, I concur in the portion of the Court’s order remanding this matter to the circuit court to consider petitioner’s petition for a waiver of parental consent to an abortion.”

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