In Re Robins

R. B. Burns, P.J. This case has its roots in the tragic deaths of the biological parents of Jayson Robins. Jayson’s parents, L. V. and Penny Robins, were murdered in October, 1982, by Clifford Robins, L. V.’s fifteen-year-old son by a previous marriage. Also orphaned by the murder was Jayson’s fifteen-year-old sister, Carrie. 1 Following the Robinses’ deaths, petitions for guardianship over Jayson and Carrie were filed by Thomas and Joyce Plumhoff, L. V.’s sister and brother-in-law, Robert and Norma Weselo, L. V.’s *486 cousins, 2 and Mr. and Mrs. Willard A. Vincent, Penny’s brother and sister-in-law. The court subsequently granted the Weselos’ petition. Thereafter, both the Weselos and the Plumhoffs spught to adopt Jayson. Ultimately, the probate court granted the Weselos’ petition for adoption. The Plumhoffs now appeal to this Court. The first issue for our consideration is whether the probate court erred in permitting the Weselos, as Jayson’s guardians, to consent to the adoption where they were not related within four degrees of consanguinity. The Plumhoffs argue that, since Jayson was not related within the fourth degree of consanguinity, the Weselos, as guardians, could not consent to the adoption under MCL 710.43; MSA 27.3178(555.43). Rather, the Plumhoffs suggest that the Weselos can only release Jason for adoption, either to a child placement agency or to the Department of Social Services, under MCL 710.28; MSA 27.3178(555.28). Adoption is governed solely by statute. In re Kyung Won Kim, 72 Mich App 85, 88; 249 NW2d 305 (1976). The distinction between consent and release was briefly discussed in In re Nord, 149 Mich App 817, 820; 386 NW2d 694 (1986): The Michigan Adoption Code, MCL 710.21 et seq.; MSA 27.3178(555.21) et seq., provides for two basic methods by which biological parents may agree to their child’s being placed for adoption. The child may be released for adoption under § 28 and related sections, or the parents may consent to the adoption under § 43. The code provides in detail the circumstances under which release or consent is the appropriate method to employ. The fundamental distinction is that, under a release for adoption, the release is given to a child placement agency or to the De *487 partment of Social Services, while a consent to adoption is utilized where the prospective adoptive parent is related to the child within four degrees of affinity or consanguinity or is the child’s stepparent. The two procedures, although distinct, are similar in nature and purpose. [Footnotes omitted, emphasis in original.] MCL 710.43, subds (l)(a)(v) and (7); MSA 27.3178(555.43), subds (l)(a)(v) and 7, provides that a parent may not consent to an adoption unless the child is related to the petitioner within the fourth degree of consanguinity. Otherwise, as noted in Nord, the parent can only execute a release for adoption. However, contrary to the Plumhoffs’ argument, no such restriction applies to the execution of a consent by a guardian. MCL 710.43(l)(e); MSA 27.3178(555.43)(l)(e) requires a child’s guardian, if any, to consent. The only restriction on the child’s guardian is that the guardian must be authorized to execute the consent by the court which appointed the guardian. MCL 710.43(5); MSA 27.3178(555.43X5). In this case, there is no dispute that the Weselos, as Jayson’s first cousins once removed, were related to him in the fifth degree of consanguinity. 3 However, as noted above, the Weselos were only required to obtain the authorization of the probate court, which they apparently did. 4 We next turn to the question of whether the probate judge abused his discretion in granting the *488 Weselos’ adoption petition and denying the plaintiffs’ petition. A probate judge has discretion to grant or deny an adoption petition and this Court will not substitute its judgment for the trial court’s unless there has been a clear abuse of that discretion. In re Kyung Won Kim, supra. In his opinion, the probate judge stated: In several of the factors, either family could provide equally for the child. Both families exhibit love and affection for the child and are able to give him guidance, education, and foster religion. Both families are able to provide him with material needs. Both families possess moral fitness, mental, and physical health. In our review of this matter, we concur with the probate court that either couple would present an appropriate choice to adopt Jayson. Since the trial judge could reasonably have granted either petition, it was not an abuse of discretion to grant the Weselos’ petition. Affirmed. No costs. Footnotes [1] Carrie was Penny’s daughter by a previous marriage, but had been adopted by L. V. following his marriage to Penny. [2] Robert and L. V. were first cousins. [3] See the table of consanguinity that is provided in the commentary to CJI 20:2:06. Under that table, Jayson would be the "Person Deceased” and the Weselos would be the "First Cousins Once Removed” in the fourth column. [4] This is consistent with this author’s opinion in Nord, supra. Nord considered a situation where it was the parent who executed the consent, while the case at bar falls within the "other circumstances” referred to in footnote 4 of the Nord opinion.