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Michigan Supreme Court Lansing, Michigan

Opinion
SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GEORGE WALTER TENNYSON, Defendant-Appellant.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway Alton Thomas Davis

FILED SEPTEMBER 7, 2010 STATE OF MICHIGAN

No. 137755

BEFORE THE ENTIRE BENCH (except DAVIS, J.) MARKMAN, J. We granted leave to appeal to consider whether evidence that a child was present in a home in which defendant was in possession of drugs and firearms is, by itself, legally sufficient to support defendant's conviction under MCL 750.145 for doing an act that "tended to cause a minor child to become neglected or delinquent so as to tend to come under the jurisdiction of" the family division of the circuit court. We hold on the facts of this case-- where there is no evidence that the child was aware of such drugs or firearms-that there is insufficient evidence to support defendant's conviction under this statute. To

decide otherwise would render a conviction under MCL 750.145 an increasingly routine appendage to a broad array of other criminal charges in instances in which a child is merely present in a home where evidence of a crime has been uncovered. Moreover, to decide otherwise would have considerable implications for the process by which parental rights are terminated in this state, for, as the facts of this case demonstrate, a conviction under MCL 750.145 would almost certainly constitute a trigger at least for the initiation of the termination process by the Department of Human Services. Because this result has never before been reached by courts of this state, and because we believe that such result was never intended by the Legislature, we reverse in part the judgment of the Court of Appeals, vacate defendant's conviction under MCL 750.145, and remand to the trial court for proceedings consistent with this opinion. Defendant's drug and firearms

convictions, which the Court of Appeals has affirmed, are not affected by this decision. I. FACTS AND HISTORY On August 16, 2006, Detroit police executed a search warrant at defendant's home. They found defendant sitting on a bed in one of the home's two bedrooms. When one of the officers looked under the bed, he found a baggie of what he believed, based on his experience and training with narcotics, to be heroin on a plate with a razor blade and a coffee spoon. A second officer testified similarly, estimating that the amount recovered was approximately three grams, with a street value of about $700. The police also found two loaded firearms in a dresser drawer in the same bedroom. The bedroom contained both men's and women's clothing, while the other bedroom contained only children's clothing. 2

At the time of the raid, there was a woman seated on the front porch and a 10year-old boy on a couch in the living room. A third officer, Kathy Singleton, testified that she observed that the child, who was defendant's stepson, was scared and crying when the officers entered. The woman, who was defendant's wife and the child's

mother, was handcuffed and given a citation. Defendant was charged with possession of less than 25 grams of heroin, MCL 333.7403(2)(a)(v), being a felon in possession of a firearm, MCL 750.224f, possession of a firearm during the commission of a felony, MCL 750.227b, and contributing to the neglect or delinquency of a minor, MCL 750.145. The information for the latter violation stated that defendant had contributed to the neglect or delinquency of the child by "exposing him to the use and sale of narcotics." With respect to the latter charge, the prosecutor argued at trial that the child "being in that house is being subject to neglect and/or delinquency." In its instructions, the trial court stated: To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt: that the defendant acted or by any word, encouraged, contributed toward, caused or tended to cause any minor child under the age of 17 years to become neglected or delinquent. The jury convicted defendant of all charges. At sentencing, the trial court imposed a suspended sentence of 45 days in jail for the misdemeanor of contributing to the delinquency of a minor. The court also told defendant that it would contact the

Department of Human Services (DHS) to request that a petition be filed to terminate his

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parental rights, and that same day wrote to DHS requesting that it investigate possible child neglect and abuse by defendant. The Court of Appeals affirmed defendant's convictions and sentences. People v Tennyson, unpublished opinion per curiam of the Court of Appeals, issued October 16, 2008 (Docket No. 278826). Regarding defendant's conviction under MCL 750.145, the Court noted that the statute "was aimed at preventing conduct `which would tend to cause delinquency and neglect as well as that conduct which obviously has caused delinquency and neglect.'" Id. at 4, quoting People v Owens, 13 Mich App 469, 479; 164 NW2d 712 (1968) (emphasis in original). Here, defendant's actions, at the very least, placed [the child] directly in a home where illegal activity was occurring. It would be reasonable for the jury to infer that defendant knew [the child] was living in a house where heroin and loaded firearms were unlawfully kept. When considering the evidence in the light most favorable to the prosecutor, there was sufficient evidence for the jury to infer that defendant's illegal activities could have subjected his son to the jurisdiction of the courts. Therefore, there was sufficient evidence to convict defendant of contributing to the neglect or delinquency of a minor. [Tennyson, unpub op at 4.] This Court directed that oral argument be heard on the application for leave to appeal and specified that the parties must address whether the evidence was legally sufficient to sustain defendant's conviction under MCL 750.145, People v Tennyson, 483 Mich 963 (2009), and argument was heard on November 4, 2009. II. STANDARD OF REVIEW This case presents an issue of statutory interpretation, which we review de novo. People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003). In determining whether

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the prosecutor has presented sufficient evidence to sustain a conviction, an appellate court is required to take the evidence in the light most favorable to the prosecutor. "[T]he question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v Hardiman, 466 Mich 417, 421; 646 NW2d 158 (2002). III. ANALYSIS A. MCL 750.145 We are called upon to construe MCL 750.145, which provides: Any person who shall by any act, or by any word, encourage, contribute toward, cause or tend to cause any minor child under the age of 17 years to become neglected or delinquent so as to come or tend to come under the jurisdiction of the juvenile division of the probate court, as defined in [MCL 712A.2], whether or not such child shall in fact be adjudicated a ward of the probate court, shall be guilty of a misdemeanor. This statute requires that the prosecutor prove beyond a reasonable doubt that defendant (1) by any act or word (2) "tend[ed] to cause" any minor1 (3) to "become neglected or delinquent" (4) so as to "tend to come" under what was then probate court jurisdiction, which has since been transferred to the family division of circuit court, or "family court."2
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Alternatively, this element can be satisfied with proof that defendant "encourage[d], contribute[d] toward, [or] cause[d]" a minor to become neglected or delinquent. Like the prosecutor, we focus our analysis on the "tend[ed] to cause" alternative because it requires the lowest threshold of proof. Alternatively, this element can be satisfied with proof that the minor child did, in fact, "come . . . under the jurisdiction of the probate court." The instant analysis focuses on the "tend to come" alternative again because it requires the lowest threshold of proof.
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The statute also makes clear that "neglect" and "delinquency" are specifically defined by MCL 712A.2, and that an adjudication that the child is, in fact, a ward of the court is not a prerequisite to a conviction. These conclusions are compelled by the statute and were articulated by the Court of Appeals over 40 years ago in People v Owens, 13 Mich App at 475-476, 479.3 Although it is clear that a prior adjudication of neglect or delinquency is not required for a conviction under MCL 750.145, the open question, which goes to the heart of this appeal, is what level of certainty is required in order for the fact-finder to determine that a defendant "tend[ed] to cause" a minor to become delinquent or neglected so as to "tend to come" under family court jurisdiction. The focal point in this inquiry is, of course, the statute's twice-repeated use of the word "tend." When reviewing a statute, "`a word or phrase is given meaning by its context or setting.'" Koontz v Ameritech Servs, Inc, 466 Mich 304, 318; 645 NW2d 34 (2002) (citation omitted). This "tend" language provides an alternative ground for satisfying two of the statute's critical elements-- a person must "cause or tend to cause" a minor to "come or tend to come" under family court jurisdiction. The verbs "cause" and "come," which immediately precede "tend" in each instance, require it to be shown that a person did in fact do something that caused a minor to fall within family court jurisdiction. However, "tend to Contrary to the assertions of the dissents, the fact that the violation of this statute constitutes a misdemeanor has no obvious bearing on this Court's application of the "sufficiency of the evidence" standard, which is the same for a misdemeanor as for a felony. Both require evidence that would allow a reasonable fact-finder to find defendant guilty beyond a reasonable doubt.
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cause" and "tend to come" require a lesser showing; each formulation lowers the threshold of proof required by "cause" and "come," respectively, and each does not require the actual exercise of family court jurisdiction. When reviewing a statute, all undefined "words and phrases shall be construed and understood according to the common and approved usage of the language[.]" MCL 8.3a. To determine the ordinary meaning of undefined words in the statute, a court may consult a dictionary. People v Stone, 463 Mich 558, 563; 621 NW2d 702 (2001). "Tend" is a non-technical word that is not defined by the statute, which according to the dictionary's first entry for the word means "to be disposed or inclined . . . to do something."4 Random House Webster's College Dictionary (1997). As this definition indicates, "tend" is a forward-looking word that assesses possibilities and does not pertain to the absolute certainty of things that are past and completed. However, the fact that "tend" pertains to matters that cannot be assessed with absolute certainty, unlike matters that have already occurred, does not mean that the determination that a person is "disposed or inclined" toward something can be made arbitrarily. Instead, logic suggests that "tend" is commonly understood to express some level or gradation of certainty, for if a person is "disposed or inclined" to do one thing, he is obviously not "disposed or inclined" to do its opposite. Stated another way, although "tend" conveys possibilities along a continuum, logically, a person can only "tend"

This definition is similar to that relied upon by the prosecutor, which defines "tend" as meaning "to be apt or inclined." Oxford Dictionary & Thesaurus, American Edition (1996).

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toward one end of that continuum at any given time. The term thus implies a level of certainty greater than 50 percent, to wit, that it is possible to conclude from the available information and circumstances that something is "more likely than not" to occur.5 However, "tend" is not always used to convey gradations of certainty. The last dictionary entry for "tend" defines it as "to lead or be directed in a particular direction." Random House Webster's College Dictionary (1997). While this definition is also

consistent with the word's forward-looking quality, in this purely directional sense, it does not compel the conclusion that a person is closer to one end of a continuum than the other. Instead, in this sense, "tend" can mean that a person has, perhaps for just an instant, been turned "toward" a "particular direction." Thus, a determination that a person "tends" toward something in this sense could be made where there is only a 5 percent or 1 percent or 0.3 percent chance that a particular result will occur. That is, even though a person remains far closer to one end of the "good behavior-bad behavior" spectrum, if he is turned "toward" the other end even momentarily, it can be said by the purely directional understanding of the term that such person "tends" toward that direction. Because this understanding does not necessitate a comparison of possible outcomes or alternatives, a determination that a person "tends" toward something in this

This common understanding of "tend" is taken for granted in everyday speech. Thus, the statement "I tend to be an early riser" conveys that I tend not to be a late riser; and the statement "My son tends to be a well-behaved child" conveys that he tends not to be a poorly behaved child. From these statements, it can be said that, more likely than not, I will get up early and my son will behave well.

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directional sense can be based on what is merely a snapshot of information from a single or discrete moment in time. For several reasons, we believe that the purely directional meaning of "tend" is not what was intended by the drafters of MCL 750.145. First, the dictionary entry for "tend" emphasizes that when used in this sense, "tend" is often followed by "toward." That is, "tend" tends to be followed by "toward." However, the latter "companion" word is absent from MCL 750.145. Second, the directional sense of "tend" does not accurately reflect the word's specific placement in this statute. The statute pairs "tend to cause" and "tend to come" with "cause" and "come," respectively. The difference between each of these pairings is essentially one of degree, not kind. However, an interpretation of "tend" that is based merely on direction bears no conceptual connection to actually "causing" neglect or delinquency or actually "com[ing] under" family court jurisdiction, the alternative violations with which the "tend" violations are paired. Thus, instead of establishing pairings of violations in which apples are compared with apples-- in which the magnitude of the certainty or likelihood of the harm is what distinguishes the violations-- the directional understanding establishes pairings of violations in which apples are compared with oranges-- in which there is no coherent relationship within each pairing. Third, construing "tend" in its directional sense in this statute would result in a highly unreasonable and unworkable, if not potentially absurd, interpretation. If all that is required by "tend" is a determination that a child had been turned in the "direction" of neglect or delinquency-- "toward" the "bad behavior" rather than "toward" the "good 9

behavior" end of the spectrum, and without regard to whether the child had been moved closer to the "bad behavior" outcome than to the "good behavior" outcome, what other than prosecutorial discretion would prevent a parent from being charged with "contributing to the neglect and delinquency of their children" whenever they tell their children a lie, exceed the speed limit while children are in the car, nick another car in a parking lot where children are present and fail to take responsibility, use coarse language in front of their children, or engage in any other such behavior into which imperfect parents sometimes lapse? Each of these forms of less-than-admirable, but hardly

extraordinary, behavior on the part of the parent might well "tend" to cause harm to a child in the purely directional sense of the term because each such dereliction in parental behavior could hardly be expected to have a positive impact upon the child, and therefore could only be understood to have a negative impact. This reasoning would be

particularly applicable with regard to a younger child. That is, rather than being pointed in a positive direction along the continuum of bad to good behavior, such parental breaches could only, however slightly or imperceptibly, point the child toward the wrong end of the behavioral continuum. Because we cannot imagine that it was within the Legislature's contemplation that violations of MCL 750.145 be predicated on what might be momentary lapses in parental conduct rather than on an overall assessment of the child and his or her circumstances, and because we cannot imagine that the only check upon such prosecutions would be the good judgment of the prosecutor, we believe that "tend" is far more appropriately defined by its primary definition, which focuses on whether a particular result, in this case a minor coming under the jurisdiction of the family court for 10

reasons of neglect and delinquency, is "more likely than not" to occur. "[S]tatutes must be construed to prevent absurd results . . . ." Rafferty v Markovitz, 461 Mich 265, 270; 602 NW2d 367 (1999).6 By applying the more reasonable and appropriate definition of "tend" in this context as being "disposed or inclined . . . to do something," everyday lapses in parental behavior would not ordinarily suffice to lay a foundation for criminal charges that would trigger at least the initiation of the parental rights termination process, just as they have never before sufficed in this state to establish criminal charges under MCL 750.145.7

The absurd results rule "demonstrates a respect for the coequal Legislative Branch, which we assume would not act in an absurd way." Pub Citizen v United States Dep't of Justice, 491 US 440, 470; 109 S Ct 2558; 105 L Ed 2d 377 (1989) (Kennedy, J., concurring); "[I]t is a venerable principle that a law will not be interpreted to produce absurd results." K Mart Corp v Cartier, Inc, 486 US 281, 324 n 2; 108 S Ct 1811; 100 L Ed 2d 313 (1988) (Scalia, J., concurring in part and dissenting in part); see also Cameron v Auto Club Ins Ass'n, 476 Mich 55, 79; 718 NW2d 784 (2006) (MARKMAN, J., concurring) ("The `absurd results' rule underscores that the ultimate purpose of the interpretative process is to accord respect to the judgments of the lawmakers."). We consider termination to be a potentially serious consequence of a conviction for contributing to a child's delinquency or neglect under MCL 750.145, as is evidenced by the facts of this case in which the trial court in sentencing defendant for this crime expressly stated that defendant's parental rights should be terminated, and initiated the process to do so by referring defendant to the Department of Human Services. Indeed, how could any trial court react differently to a criminal conviction for "delinquency or neglect" of a minor? And indeed how could the DHS react differently than by devoting its fullest resources to the investigation of such a referral? Our point, of course, is not to suggest that termination of parental rights might not constitute an appropriate response in individual cases involving parental criminality, but only that MCL 750.145 should not be radically transformed, and broadened, so as routinely to encompass criminal conduct in which a minor is merely present, and in which there is no evidence that the parent's conduct actually "cause[d] or tend[ed] to cause" his or her child "to become neglected or delinquent so as to come or tend to come under the jurisdiction of the juvenile division of
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Rather, "tend" properly takes into consideration the totality of the parent's conduct, and the overall impact of that conduct upon the child. While sociologists can debate the impact of countless types of parental behavior upon the child, and doubtless many such types of behavior can be characterized as either beneficial or detrimental to the child's upbringing, those debates do not define the proper judicial inquiry under the statute. Once again, it is not whether the parent has engaged in behavior that can be described as "tending" toward the wrong end of the behavioral spectrum, but whether the parent's overall behavior has made the harm that the statute was intended to prevent more likely than not to occur. Accordingly, the statute's first use of "tend" requires a determination that a defendant's conduct has caused it to be more likely than not that a minor would "become neglected or delinquent." Similarly, the statute's second use of "tend" requires a

the probate court . . . ." Criminal punishment should be the only routine consequence of criminal conduct, not the termination of parental rights. Contrary to the repeated criticisms of the dissent, our consideration of the relationship between a MCL 750.145 conviction and the termination of parental rights does not misapprehend family court jurisdiction. We fully recognize that the termination of parental rights is only one of the outcomes that may result from the initial exercise of family court jurisdiction. Still, the fact that the termination of parental rights is not inevitable in every such case hardly makes it any less important for this Court to consider that when a petition alleging abuse or neglect is filed because of a conviction under MCL 750.145, the likelihood of termination becomes a serious and very real possibility.

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determination that a defendant's conduct caused it to be more likely than not that a minor would come under family court jurisdiction.8 B. MCL 712A.2 With this understanding of MCL 750.145, we next follow that statute's directive and turn to MCL 712A.2, which sets forth the authority and jurisdiction of the family division of the circuit court. A minor may come under family court jurisdiction for either neglect or delinquency. MCL 712A.2(a) and (b).9 Because the prosecutor's theory of this case at trial was that the child "being in [the] house [was] being subject to neglect

Notwithstanding the dissenting justices' characterization of this discussion as "confusing," we do not think that lower courts will be confused by this standard, which requires only that courts apply a "more likely than not" analysis. Indeed, applying this standard should hardly be more difficult than applying the "`more probable than not'" standard supported by each of the presently dissenting justices in People v Lukity, 460 Mich 484, 494; 596 NW2d 607 (1999). The dissenting justices also consider this discussion "unnecessary," and instead would employ their "straightforward approach" to discerning the proper meaning of "tend," which basically consists of listing the word's multiple definitions and then more or less arbitrarily inserting language found in one of these definitions into the statute with no explanation of why this particular definition is appropriate. As is evident to others who have considered MCL 750.145, including the prosecutor here and the Court of Appeals in Owens, 13 Mich App at 479, "tend" is the critical term in this statute. Depending on the meaning given to "tend," the statute can produce widely varying interpretations, some reasonable, some not. Thus, we believe our discussion concerning the proper meaning of "tend" in the context of this statute to be quite necessary, and its absence in the dissents to be quite significant. Justice CORRIGAN correctly notes that a "probable cause" standard is used to authorize jurisdiction under MCL 712A.13a(2). However, the standard applicable to a petition before a family court cannot transform, and should not distract from, the "beyond a reasonable doubt" standard that jurors are compelled to apply in this or any other criminal matter.
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and/or delinquency," we must consider whether any of the definitions of "neglect" and "delinquency" set forth in MCL 712A.2 are pertinent here. The jurisdiction of the family division of the circuit court over a minor for delinquency is discussed in MCL 712A.2(a)(1), which grants that court "[e]xclusive original jurisdiction superior to and regardless of the jurisdiction of another court in proceedings concerning a juvenile under 17 years of age who . . . has violated any municipal ordinance or law of the state or of the United States." This is a broad grant of jurisdiction, which notably may be exercised over a juvenile who "has violated any municipal ordinance or law of the state or of the United States." (Emphasis added.) The jurisdiction of the family court over a minor for neglect is discussed in MCL 712A.2(b). The first relevant basis for a finding of neglect is detailed in

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