The trial court erred by terminating the respondent-father’s parental rights for purposes of allowing a stepparent adoption because there was “no factual basis to clearly and convincingly” support that determination, the Michigan Court of Appeals has ruled.

The respondent in In re AGB, Minor (Docket No. 360670) appealed the St. Joseph County Circuit Court’s order terminating his parental right to the minor child, AGB, under MCL 710.51(6). The respondent argued that termination was improper because:

1. the trial court wrongly found that he had the ability to provide regular and substantial support in the two years before the stepparent adoption petition was filed, and

2. the trial court failed to appoint counsel for him at the termination hearing.

The Court of Appeals agreed with the respondent, finding the trial court did not consider the respondent’s “individual case” and, instead, “relied on general norms, particularly when it assumed respondent could earn and send money to mother while he was in prison.”

The trial court “clearly erred when it terminated respondent’s parental rights because the evidence was insufficient to clearly and convincingly show that respondent actually had the ability to provide support in the two years before the petition was filed,” the Court of Appeals wrote. “The order terminating respondent’s parental rights is vacated. Reversed and remanded for the trial court to enter an order denying the petition for stepparent adoption.”

Judges Mark J. Cavanagh, Colleen A. O’Brien and Michelle M. Rick were on the panel that issued the unpublished opinion.

Background

The petitioners, the mother and stepfather of AGB, filed a petition for stepparent adoption under MCL 710.51(6). AGB was born in April 2013 to the mother and the respondent, whom the mother was dating the time. The respondent and the mother signed an affidavit of parentage.

In March 2021, when AGB was 7 years old, the trial court granted the mother “initial sole legal custody and full physical custody.” In October 2021, the mother and the child’s stepfather filed a petition for the stepfather to adopt AGB. A supplemental petition to terminate the respondent’s parental rights was also filed.

The respondent remotely attended a February 22, 2022, hearing from prison. The mother’s testimony indicated that the respondent’s only source of income was through Social Security because of mental health issues. As a result, the respondent’s child-support obligation had been calculated at zero dollars, along with a note that support was reserved. The respondent reportedly gave the mother $100 and a box of diapers for support in winter 2014. Otherwise, the respondent reportedly did not provide any financial assistance. The stepfather agreed with the mother’s testimony.

The trial court did not ask the respondent whether he had questions for the mother or the stepfather. On direct examination, the respondent agreed with the mother’s testimony regarding his imprisonment and acknowledged that he was allowed to work up to approximately 20 hours a week while receiving Social Security benefits. The respondent indicated that everything the mother said about him “was the truth.” The respondent also testified that he wanted an opportunity to be a part of AGB’s life after he left prison and to “correct himself.” The respondent stated that he was willing to pay support if that was what it took to see AGB.

The trial court held that the respondent had not made contributions toward AGB’s material needs in the two years before the stepparent adoption petition was filed. The trial court made this ruling over the respondent’s objection that he could not have made contributions because he was imprisoned for that entire time and did not know the mother’s new address. The trial court also emphasized that, despite an order to have no direct contact with the mother, the respondent could have kept trying to provide support through a third party.

The trial court ultimately found the respondent had the ability to provide support for AGB during the two-year period before the adoption petition, but “regularly and substantially failed to do so.” Accordingly, the trial court terminated the respondent’s parental rights for the purposes of the stepparent adoption.

The respondent appealed.

Regular & Substantial Support

On appeal, the respondent asserted the trial court erred by finding that he had the ability to provide AGB support or assistance in the two years preceding the filing of the petition under MCL 710.51(6).

“We agree,” the Court of Appeals said.

Turning to MCL 710.51(6), the Court of Appeals explained this statute controls when a termination of a noncustodial parent’s rights is requested pending stepparent adoption. The statute says:

“If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father who meets the conditions in section 39(2) of this chapter, and if a parent having custody of the child according to a court order subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:

(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition. A child support order stating that support is $0.00 or that support is reserved shall be treated in the same manner as if no support order has been entered.

(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition.”

Here, the respondent’s appeal focused on subsection (a), which “addresses two independent situations: (1) where a parent, when able to do so, fails or neglects to provide regular and substantial support, and (2) where a support order has been issued and the parent fails to substantially comply with it,” the Court of Appeals said, citing In re Newton, 238 Mich App 486 (1999).

Under the plain language of the statute, “[a] child support order stating that support is $0.00 or that support is reserved shall be treated in the same manner as if no support order has been entered,” the Court of Appeals noted. “Therefore, even though a child support order for AGB was in place, because support from respondent was reserved, the analysis falls into the first situation identified in In re Newton: whether respondent failed or neglected to provide regular and substantial support when he had the ability to do so.”

In this case, the respondent did not contest that he provided no support to the mother or AGB in the two years before the petition was filed. “Rather, he argues that petitioners did not prove by clear and convincing evidence that respondent had the ability to provide or assist in providing support,” the Court of Appeals observed.

According to the Court of Appeals, evidence was presented about jobs the respondent held in 2014 and September 2019. However, “that is outside of the ‘two-year period immediately preceding the filing of the termination petition.’ … Respondent remained in prison for the entire two years before the petition was filed in October 2021. Although the trial court surmised that respondent could have sent even fifty cents or a dollar, it based that assertion from ‘cases on this when people are incarcerated and there are ways to make communication and to pay.’ Yet, no testimony was presented in this case regarding respondent’s option or ability to earn money while in prison. Indeed, during the trial court’s ruling, respondent interrupted, saying: ‘I couldn’t [make payments to mother]. Since I’ve been incarcerated this time, I don’t have no payment support out there. I’m doing this all on my own.’”

It was also unclear how the respondent would have been able to get payments to the mother because he was seemingly unable to make contact with her, the Court of Appeals observed. “The trial court reasoned that, despite that respondent was to have no direct contact with mother, he could have kept trying to provide support through a third party. However, respondent testified that when he asked his parents to contact mother, ‘my mom and them said that she was not responding back to them.’ This testimony was not refuted. Respondent also represented that he did not know mother’s or AGB’s new address, because when he tried to send AGB a birthday card in 2016, it was returned to respondent.”

In conclusion, the Court of Appeals ruled the trial court did not consider the respondent’s individual case and instead relied on “general norms,” especially when it presumed the respondent could earn and send money to the mother while he was in prison. “The trial court clearly erred when it terminated respondent’s parental rights because the evidence was insufficient to clearly and convincingly show that respondent actually had the ability to provide support in the two years before the petition was filed.”