In Re Brzezinski

Griffin, P.J.

(dissenting). I respectfully dissent. I agree with the majority that the probate court improperly construed MCL 712 A. 18(2); MSA 27.3178(598.18X2) as establishing an absolute, unqualified requirement that parents reimburse the state the entire cost of a child’s out-of-home care. However, in my view, the appropriate remedy for this error is a remand for a redetermination regarding the amount respondent must reimburse the state. I would not use the probate court’s error *674in establishing the amount of respondent’s debt to uphold a ruling of the circuit court that completely terminated respondent’s debt. Accordingly, I would reverse the circuit court order and remand the matter to the probate court with instructions to reevaluate the amount of respondent’s obligation to the state.

i

After respondent’s child was ordered into temporary state custody, the probate court ordered respondent and his ex-wife to completely reimburse the state for the costs it incurred for the care of the child. See MCL 712A.18(2); MSA 27.3178(598.18)(2). Recognizing respondent’s "inability to pay the whole amount” of this reimbursement obligation all at once, the probate court ordered the "delinquent” amount to be paid through $125 weekly installments. The probate court ordered that such payments must continue "until the balance is paid in full.” However, because respondent’s child remained in foster care when the reimbursement order was issued, the total amount of respondent’s reimbursement obligation was uncertain and not determined at that time!

Thereafter, the probate court gave respondent custody of his child. The probate court retained its jurisdiction over the case, however. The probate court also ordered respondent to continue making the weekly $125 payments until the reimbursement order was fully satisfied. The total amount of respondent’s reimbursement obligation was thereafter determined to be $16,000.

On appeal, the circuit court addressed the question "whether or not the Probate Court has the *675authority under [MCL 712 A. 18(2); MSA 27.3178(598.18)(2)] to order reimbursement even after the child is placed in the parent’s home.” In ruling that it did not, the circuit court concluded that MCL 712A.18(2); MSA 27.3178(598.18X2) clearly precludes a probate court from requiring respondent to continue making payments on the outstanding portion of a reimbursement order once he obtained custody of his child. The circuit court’s reasoning was largely premised on the fact that MCL 712A.18(2); MSA 27.3178(598.18X2) "only authorizes reimbursement during the period of time 'the child remains in care outside the child’s own home and under state or court supervision . . .

ii

Initially, I agree with the majority with respect to its holding that MCL 712 A. 18(2); MSA 27.3178(598.18)(2) does not establish an absolute, unqualified mandate that a parent repay the entire cost the state incurs in caring for that parent’s child. Thus, I agree that the probate court should have considered whether ordering respondent to fully reimburse the state is "reasonable.” Therefore, because the probate court appears to have premised the amount it ordered respondent to reimburse the state upon an erroneous assumption that it was obligated to force respondent to repay the entire amount incurred by the state, I would remand this case with instructions for the probate court to redetermine the amount respondent must reimburse the state. However, unlike the majority, I do not believe that the erroneous assumption upon which the amount of the debt was premised constitutes grounds to eliminate the entire debt, regardless of the amount, once the child is returned to the home of a parent.

*676Ill

The circuit court construed the phrase in MCL 712A.18(2); MSA 27.3178(598.18X2) that "[t]he reimbursement provision shall apply during the entire period the child remains in care outside of the child’s own home and under state or court supervision ...” as a limitation on the time when the probate court can collect the unpaid balance of a reimbursement order. Specifically, the circuit court ruled that MCL 712A.18(2); MSA 27.3178(598.18)(2) limits a court’s authority to order installment payments on the outstanding balance of a reimbursement order to those payments that come due during the period the child remains under state or court supervision.1 I conclude that the circuit court’s construction of MCL 712A.18(2); MSA 27.3178(598.18)(2) confuses the distinct issues of (1) the time during which the state’s accumulating expenses can be made part of respondent’s reimbursement obligation and (2) the time when respondent can be forced to repay the amount for which he has been found responsible to reimburse.

A

MCL 712A. 18(2); MSA 27.3178(598.18)(2) provides in part:

An order of disposition placing a child in or committing a child to care outside of the child’s own home and under state or court supervision shall contain a provision for reimbursement . . . for the cost of care or service.

There is no dispute that the purpose of this statute is to obligate parties to help shoulder the costs the *677state incurs during the period that a child is ordered into out-of-home placement. Also clear is the fact that the statute provides for the reimbursement order to be included in the order that originally places a child under state supervision. Thus, the court must order a party to reimburse the state’s expenses before it is aware how much the state will ultimately spend on a child. In my opinion, this is why the Legislature included the following provision:

The reimbursement provision shall apply during the entire period the child remains in care outside, of the child’s own home and under state or court supervision .... [MCL 712A.18(2); MSA 27.3178(698.18X2).]

I view this provision as a mechanism to ensure that a court considers the entire amount the state spent on a child before it determines a party’s total reimbursement obligation. I find this interpretation consistent with the stated purpose of MCL 712A. 18(2); MSA 27.3178(598.18X2). Therefore, I conclude that the circuit court erred in interpreting the quoted provision as a means to limit the period when the probate court may order a party to make payments on an outstanding reimbursement obligation. Consistent with this conclusion is the fact that MCL 712A.18(2); MSA 27.3178(598.18)(2) further provides:

The court shall provide for the collection of all amounts ordered to be reimbursed, and the money collected shall be accounted for and reported to the county board of commissioners. Collections to cover delinquent accounts or to pay the balance diie on reimbursement orders may be made after a child is released or discharged from care outside the child’s own home and under state or court supervision. [Emphasis added.]

*678In the instant case, the probate court ordered respondent to continue making payments on the outstanding balance of the amount he was ordered to reimburse the state. In other words, the probate court provided a means to collect the balance that was due under the terms of the reimbursement order. In my view, the circuit court erred in interpreting MCL 712A. 18(2); MSA 27.3178(598.18X2) as a limitation on the probate court’s ability to take this action. Aside from contradicting the plain language of MCL 712A.18(2); MSA 27.3178(598.18) (2), the circuit court’s conclusion, that only those payments that come due when the state has physical custody of a child may be the subject of reimbursement would inspire several unfortunate results. First, the clear legislative intent of having the state reimbursed for as much of its costs as is reasonable would be partially frustrated if the outstanding portion of the reimbursement obligation must be forgiven once the parents regain custody of their child. Second, the ruling would create a clear disincentive to a probate court’s use of an installment method in attempting to ease the burden an already struggling parent will face in complying with the reimbursement obligation. Third, the circuit court’s ruling could create a perception that, in order to achieve maximum reimbursement, the state might try to retain custody of a child until a greater amount of its foster care expenses are reimbursed.2

B

Further, I disagree with the majority’s conclusion that MCL 712A.18(2); MSA 27.3178(598.18)(2) *679precludes the probate court from deferring the final calculation of a parent’s total reimbursement obligation until after a child' is returned to in-home custody. Consistent with the lack of any authority or statutory language to forbid such a procedure, MCL 712A.18(2); MSA 27.3178(598.18) (2) provides that the reimbursement order (which must be included in the original order that places a child in state custody) consider the expenses incurred by the state throughout the "entire period” a child remains in state care. Implicit in the timing of this requirement is that a court will never be able to determine the full amount the state will spend on a child’s foster care until after the state has finished caring for the child. With this in mind, I see no reason why a decision regarding the ultimate amount of respondent’s reimbursement obligation — a decision that is already implicitly deferred — cannot be deferred until after a child is returned to parental custody. A contrary conclusion would partially defeat the purpose of the statute because some of the state’s costs would almost inevitably be omitted from the court’s final analysis of the amount the state must be reimbursed. Indeed, not only is a probate court never sure how long a child will remain in out-of-home care, but a final accounting of the amount the state will ultimately spend on a child will rarely, if ever, be completed at the instant the child is transferred from state care to parental care. Therefore, I would hold that the probate court did not err in deferring the final determination of the amount to be reimbursed until after the child was returned to respondent’s custody.

IV

Finally, I reject the circuit court’s conclusion *680that the probate court’s order should be invalidated on the basis that respondent’s continuing obligation would not be modifiable if he experienced hardship. First, this potentiality was inappropriately considered in this case because, here, the probate court retained jurisdiction over the case. Therefore, respondent would have been able to seek a modification of the judgment through MCL 712A.18(l)(b); MSA 27.3178(598.18)(l)(b); In re Macomber, 436 Mich 386; 461 NW2d 671 (1990). Second, even if the probate court had not retained jurisdiction, respondent would have been able to seek a modification of the judgment through MCR 2.612(C)(1)(f), which provides, in pertinent part, that a court may relieve a party of a final judgment for any "reason justifying relief from the operation of the judgment.”

For these reasons, I respectfully dissent. I would reverse the circuit court order and remand the matter to the probate court for a redetermination of the amount of respondent’s debt obligation.

The circuit court would limit any subsequent collections to any delinquent payment that came due during out-of-home care.

I do not suggest that either the state or any court would employ such logic in making a custody determination. I note the issue, however, only because I would seek to avoid any possibility that anyone would even consider making such a claim.