Father’s Rights Were Properly Terminated So Stepparent Adoption Could Proceed

A trial court did not err in terminating a father’s parental rights, thereby allowing a petition for stepparent adoption to proceed, the Michigan Court of Appeals has ruled.

In In re AMR (Docket No. 344560), the petitioner-mother and the respondent-father were never married and had one child, AMR, together in 2013. The respondent had executed an affidavit of parentage. The petitioner and the respondent went their separate ways and a child-support order was subsequently issued. When the petitioner married Adam Dizotell in 2017, she filed a petition to terminate the respondent’s parental rights so that Dizotell could adopt AMR.

The trial court granted the petitioner’s request to terminate the respondent’s parental rights. In so ruling, the trial court found the respondent had had no contact with AMR for the two years preceding the filing of the petition and had not substantially complied with the child-support order.

The Court of Appeals affirmed, looking to MCL 710.51(6)(a) and MCL 710.51(6)(b) of the Michigan Adoption Code.

“After the child-support order was entered, respondent-father did not make any child-support payments for at least eight of the seventeen months during which the child-support order was in effect …,” the Court of Appeals observed. Therefore, “[t]ermination of respondent-father’s parental rights under MCL 710.51(6)(a) was warranted.”

Moreover, the respondent had the ability to visit, contact or communicate with AMR, “but ‘regularly and substantially failed or neglected to do so for a period of two years or more before the filing of the petition,’” the Court of Appeals said. Accordingly, the trial court “did not clearly err by holding that termination of respondent-father’s parental rights under MCL 710.51(6)(b) was warranted.”

Petitions Filed

The trial court had entered a child-support order in July 2016 that required the respondent to pay $92 per month. The respondent made a partial payment in August 2016, full payments in September and October 2016, and a payment of less than $3 in November 2016. The respondent then stopped making payments.

The petitioner filed a motion to enforce the child-support order in March 2017. After a show-cause hearing, an updated child-support order was entered in April 2017 that increased the respondent’s support obligation to $138 per month. The respondent made partial payments in May, June and July 2017. The respondent did not make payments in August, September or October 2017. After a show-cause hearing in November 2017, the child-support obligation was increased to $141.50 per month. The respondent made partial payments in November and December 2017.

In the meantime, the petitioner had married Dizotell in April 2017. Although the respondent had never previously requested parenting time through the court, he filed a motion for parenting time in December 2017.

In January 2018, the petitioner filed a petition to terminate the respondent’s parental rights so that Dizotell could adopt AMR. At the hearing on the petition, the petitioner testified the respondent had had no contact with the child since February 2014 and the last time she had spoken to the respondent was in July 2015. The respondent, however, asserted that he had tried to contact the petitioner in 2015 to arrange a visit with AMR, but the petitioner “gave an excuse” for why AMR could not see him. The respondent indicated the petitioner had told him to “take [her] to court” if he wanted to visit AMR. The respondent acknowledged that in 2015 he stopped trying to contact the petitioner about seeing AMR. He claimed that he did not seek parenting time through a court action because he was “trying to be civil.”

Based on the evidence and testimony, the trial court held that the respondent: 1) had had no contact with AMR for the two years preceding the filing of the petition and 2) had not substantially complied with the child-support order, only making partial payments when threatened with jail time. Accordingly, the trial court terminated the respondent’s parental rights.

The trial court denied the respondent’s motion for reconsideration.

No Procedural Errors

On appeal, the respondent first argued the petition should have been dismissed because he was not served a copy of it. The Court of Appeals disagreed, finding the respondent had waived any defect in service of process.

The respondent “admits that he did receive notice of the hearing, that he appeared at the hearing, and that he understood the purpose of the hearing,” the Court of Appeals said. “Respondent-father represented himself and testified as a witness. We conclude that respondent-father had knowledge of the pending proceedings and intended to appear.”

The Court of Appeals also rejected the respondent’s assertion that the trial court erred by not announcing the evidentiary standard it was applying. “Respondent-father claims that because the trial court failed to state which evidentiary standard it was applying, we should infer that it applied an incorrect legal standard. However, respondent-father does not supply any legal authority in support of his argument. … We find no error requiring reversal resulting from the trial court’s failure to announce the evidentiary standard that it was applying to the case.”

Statutory Grounds Satisfied

Next, the respondent argued the statutory grounds for termination under MCL 710.51(6) had not been established. “We disagree,” the Court of Appeals said.

In reaching this conclusion, the Court of Appeals examined MCL 710.51(6)(a) and (b). This section of the Adoption Code says:

“(6) 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:

• 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.

• 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.”

Looking at MCL 710.51(6)(a), the Court of Appeals pointed out the petition was filed on January 10, 2018. “Therefore, the retrospective two-year statutory period reaches back to January 10, 2016. However, the child-support order did not enter until July 25, 2016. Therefore, respondent-father’s parental rights could not have been terminated solely for failure to comply with the child-support order, because the child-support order had not been in effect for the statutory two-year period as of the point in time that the petition was filed. Nonetheless, the trial court was permitted to determine that respondent-father had failed to provide regular and substantial support to AMR despite having the ability to do so.”

The Court of Appeals also noted the petitioner testified the respondent told her “multiple times in 2015” that he could not visit AMR because “he had to work” and that he was paying “almost no child support before the child-support order was entered.” Thus, there was “no evidence” the respondent had lost his job or otherwise became unable to pay support from January 10, 2016 until the child-support order was entered on July 25, 2016, the Court of Appeals observed. “[R]ather, record supports the conclusion that respondent-father, although employed, continued his usual practice of not providing for AMR during that period.”

Based on the foregoing, the trial court did not clearly err in finding that the respondent had the ability to provide some level of support to AMR from January 10, 2016 until July 25, 2016, but failed or neglected to do so, the Court of Appeals said, noting the respondent only met his full support obligation on two occasions. “Further, show-cause hearings and the threat of jail time were generally necessary to force even this level of compliance. The trial court did not clearly err by finding that respondent-father had failed to substantially comply with the child-support order.”

The Court of Appeals then turned to MCL 710.51(6)(b), noting the petitioner testified that the respondent had only seen AMR two to four times since his birth. “Although respondent-father claims that he did not have the ability to visit, contact, or communicate with AMR because mother prevented him from doing so, the record indicates that after she told respondent-father to ‘take her to court’ if he wanted to have parenting time with AMR, respondent-father took no further action until December 29, 2017, when he filed his first parenting-time request with the trial court,” the Court of Appeals wrote.

Moreover, the evidence showed the petitioner kept the Friend of the Court updated with her telephone number and address, and the respondent could have petitioned the trial court sooner, the Court of Appeals observed. “Respondent-father acknowledged that he did not ask mother to allow him to contact AMR or attempt court intervention before December 29, 2017. Nonetheless, respondent-father’s request for parenting time fell within the two-year period at issue. Although at the eleventh hour, we conclude that respondent-father’s petition for parenting time constituted a request for contact with AMR.”

Despite this, the Court of Appeals said it could not find that the trial court clearly erred in holding the respondent had the ability to visit, contact or communicate with AMR but did not do so for a period of two years or more before the petition was filed. “Unlike the respondent-father in [In re] ALZ, [247 Mich App 264 (2001)] … who possessed no legal right to visitation prior to filing his complaint for paternity, here respondent-father possessed the legal right to visitation or communication with AMR by virtue of his acknowledged paternity, but only made one attempt to exercise that right between July 2015 and January 2018.” Accordingly, “the trial court did not clearly err by holding that termination of respondent-father’s parental rights under MCL 710.51(6)(b) was warranted.”

In conclusion, the Court of Appeals also rejected the respondent’s argument that the trial court erred in finding that termination of the respondent’s parental rights was in AMR’s best interests and did so without explicitly considering the best interest factors in MCL 710.22(g). “The trial court has the discretion to issue an order terminating the rights of a parent under the adoption code if the requirements of MCL 710.51(6)(a) and (b) are met. The trial court is not required to explicitly consider the best-interest factors found in MCL 710.22(g), and its failure to do so was not an abuse of discretion.”