Incarcerated Father’s Parental Rights Wrongly Terminated For Stepparent Adoption
The trial court erroneously held that, because the respondent-father had the ability to provide “consistent support though not ample support” for his children while he was incarcerated but did not do so, his parental rights should be terminated, the Michigan Court of Appeals has ruled.
The Shiawassee County Circuit Court found in In re LHH, Minor and In re HCH, Minor (Docket Nos. 365553 and 365554) that the conditions for a stepparent adoption in MCL 710.51(6)(a) were satisfied because the respondent-father, who was incarcerated, had the ability to pay support, even though it was only $1 a week. As a result, the trial court terminated the respondent’s parental rights so the stepparent adoption could proceed.
The Court of Appeals reversed and remanded.
“Because $1 a week, or $4 a month, is not a ‘substantial’ amount of money, respondent-father did not have ‘the ability to pay regular and substantial support,’” the Court of Appeals said. “This respondent’s sole avenue for providing support was his prison income. The trial court determined that this would not make a meaningful difference in the children’s lives. The trial court therefore could not terminate respondent-father’s parental rights under MCL 710.51(6).”
Judges Anica Letica, Noah P. Hood and Allie Greenleaf Maldonado were on the panel that issued the unpublished opinion.
Background
This case “originated from a stepparent adoption involving an incarcerated noncustodial parent.”
The petitioner-mother and the respondent married and had two children together, LHH and HCH. In 2017, the respondent pleaded guilty to third-degree criminal sexual conduct and accosting a child for immoral purposes after sexually assaulting the petitioner-mother’s minor sister, who was “around 13 to 14 years old” when the respondent started sexually abusing her. “The abuse included at least 20 instances of sexual penetration (by respondent-father’s estimation at his sentencing hearing), or as many as 50 instances (according to the victim’s claims).” The respondent’s earliest release date from prison is late October 2027.
The respondent and the petitioner-mother kept in contact for a few years after his imprisonment. The petitioner-mother divorced the respondent in 2021. The divorce judgment awarded the petitioner-mother sole legal and physical custody of LHH and HCH. The trial court did not order the respondent to pay support during his incarceration. Rather, in the judgment of divorce, the uniform child support order, and the child support deviation addendum, the trial court set his support at “$0.00” and directed him to contact the Friend of the Court when he was released from prison.
The petitioner-mother married the petitioner-stepfather in November 2021. Pursuant to the Michigan Adoption Code, the petitioner-mother and the petitioner-stepfather asked the trial court in June 2022 for a stepparent adoption to allow the petitioner-stepfather to adopt LHH and HCH. Accordingly, the petitioner-mother asked the trial court to terminate the respondent’s parental rights. In July 2022, the trial court signed the petitions for stepparent adoption, authorizing an investigation of the proposed adoptions.
In February 2023, the trial court held hearings on the petition to terminate the respondent’s parental rights. The respondent testified that, for various reasons, he had minimal contact with LHH and HCH while he was in prison. He also acknowledged that he did not provide any financial support for the children. He testified that he was unable to send money for their care or support because he was “legally not allowed to ….” Although he earned money while in prison, the respondent testified he could not earn more than $15 a month, and that he typically used $10 for phone calls and $5 for JPay “stamps.” He estimated that he had earned less than $200 since his incarceration and never kept more than $50 in his prison account.
The ultimate question, according to the trial court, was whether the respondent paid “any form of reasonable support having had the ability to do so[.]” The trial court noted the respondent “didn’t have the ability to pay what would have been owed under the guidelines” and that, regardless, he was “uncollectible” while in prison. The trial court also noted the respondent was “one of the higher earners” and that “two of the things to be a parent is consistency and sacrifice.” The trial court found “neither one of th[o]se here” and explained that under the statute, “you have to pay substantial support based on the ability to do so,” meaning “paying support based on the … greatest income you can receive which now is approximately [$15] a month.”
The trial court held the respondent had “the ability to pay some support,” despite recognizing the payments would “have been a very small flow of money that [would not] change their lifestyle but demonstrated [his] commitment.” The trial court further found there was no “substantial contact” between the respondent and his children after January 2020 and that he made no “great effort to maintain … contact with [his] kids.”
As a result, the trial court held, by clear and convincing evidence, the respondent “had the ability to provide consistent support though not ample support” and “had the ability to maintain some type of contact with the kids.” Accordingly, it terminated the respondent’s parental rights to LHH and HCH.
The respondent appealed.
‘Substantial’ Support
On appeal, the respondent argued the trial court improperly found the conditions of MCL 710.51(6)(a) were satisfied because he did not have the ability to pay “substantial” support.
“We agree,” the Court of Appeals said. “The purpose of MCL 710.51(6) is to foster stepparent adoptions in families where the natural parent had regularly and substantially failed to support or communicate and visit with the child and refuses to consent to the 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.”
The Court of Appeals acknowledged the child-support order set support at $0.00 and did not require the respondent to make payments during his incarceration. “On the surface, it appears that respondent-father complied with the support order,” the appeals court said. “But MCL 710.51(6)(a) provides, ‘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.’ When, as here, there is no support order in effect (or the order sets support at $0.00), MCL 710.51(6)(a) required petitioners to prove that respondent-father ‘had the ability to pay regular and substantial support but had neglected to do so for two or more years.’ … Respondent-father therefore must have had the ability to provide both regular and substantial support. He does not challenge the trial court’s finding that he could have paid regular support, but instead focuses on whether he could provide substantial support.”
The trial court held the respondent could not provide substantial support, the Court of Appeals observed. “It determined that respondent-father could have provided a dollar a week, or $3 to $4 per month, to his children. But the trial court explicitly recognized that this amount would not make a meaningful difference in the children’s lives. It would only demonstrate respondent-father’s commitment. Regardless, in concluding its findings, the trial court found ‘by clear and convincing evidence that [respondent-father] had the ability to provide consistent support though not ample support.’ This finding is at odds with In re SMNE, 264 Mich App [49 (2004)] and MCL 710.51(6)(a), which required petitioners to establish that respondent-father had the ability to provide regular and substantial support.”
The trial court erroneously believed the standard was whether the respondent paid “any form of reasonable support having had the ability to do so,” the Court of Appeal explained. “This is not the standard. … Accepting without concluding that respondent-father was able to send $4 out of the $15 he made per month in prison, one dollar per week or $3 to $4 a month is not ‘substantial’ support. The trial court recognized this when it found that the amount respondent-father could have provided was ‘not ample support.’ … The trial court incorrectly focused its inquiry on the father’s sacrificial or symbolic support, as opposed to the substantive impact on the children.”
The trial court “clearly erred” in finding that the petitioners satisfied the conditions in MCL 710.51(6)(a) because $1 a week is not a “substantial” amount of money,” the Court of Appeals held. “This conclusion should not be viewed as creating a carveout for any incarcerated respondent. Many incarcerated respondents still have available means of providing support beyond their income from prison labor, including family support, savings, and other assets and income.”
The respondent’s sole means for providing support was his income while in prison, the Court of Appeals said, and the trial court determined this would not make a “meaningful difference” in the children’s lives. “The trial court therefore could not terminate respondent-father’s parental rights under MCL 710.51(6). … We reverse and remand.”
