Stepparent Adoption Dismissed Because Mother Didn’t Have A Custody Order

A stepparent adoption petition was properly dismissed, according to the Michigan Court of Appeals, because the mother did not have a court order establishing that she had custody of the child – something that is currently required before a father’s parental rights can be terminated to allow a stepparent adoption to proceed.

In In re AGD, Minor (Docket No. 345717), the petitioner-mother and the respondent-father were never married and in 2015 had one child together, AGD. The respondent established paternity by affidavit of parentage. However, he had not seen AGD in several years, reportedly because he was in and out of rehab. In the meantime, the petitioner married another man.

The respondent filed an action in Genesee County Circuit Court in 2018, seeking to re-establish contact with AGD and enter a child support order, while the petitioner and her husband filed an action to terminate the respondent’s parental rights and proceed with a stepparent adoption. The petitioner represented that she had custody of the child.

Relying on MCL 710.51(6) - specifically the language that says “a parent having custody of a child according to a court order” – the trial court found no evidence of a custody order in the petitioner’s favor. As a result, the trial court ruled the respondent’s parental rights could not be terminated, dismissed the stepparent adoption petition and told the petitioner that she had to get a custody order before the adoption could move forward.

The petitioner appealed, arguing the language of MCL 710.51(6) was ambiguous.

The Court of Appeals disagreed. “There is no dispute that petitioner mother, although she had custody of the child, did not have custody according to a court order when petitioners filed their petition under MCL 710.51(6) and when the trial court ruled on that petition. Therefore, dismissal of the disputed petition was appropriately granted, and this Court need not consider or decide the other claims of error raised by petitioners on appeal because they are moot.”

Judge Thomas C. Cameron wrote the published decision, joined by Judges Stephen L. Borrello and Brock A. Swartzle.

No Ambiguity

On appeal, the petitioner’s arguments centered on the language of MCL 710.51(6), which 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 petitioner asserted the first sentence of MCL 710.51(6) was unclear as to whether all parents must have custody “according to a court order” or whether this applied only to divorced parents.

“In this circumstance,” the Court of Appeals said, “the last antecedent rule does not support petitioners’ argument that the statute is ambiguous. The last word, phrase, or clause that can be made an antecedent of the modifying phrase ‘according to a court order’ - without impairing the meaning of the sentence - is the phrase, ‘custody of the child.’ Put differently, the phrase ‘according to a court order’ modifies the immediately preceding phrase ‘custody of the child.’ Its meaning is clarified by reading the whole as one unit - i.e., ‘custody of the child according to a court order.’ Thus, we do not find the last antecedent rule particularly helpful, and it certainly does not render the statute ambiguous. We similarly disagree that other rules of grammar render the statute ambiguous.”

Statute Not Rendered “Nugatory”

The Court of Appeals also dismissed the petitioner’s claim that the trial court’s interpretation of MCL 710.51(6) would render this part of the statute nugatory because there would never be a scenario where a mother could petition to terminate the parental rights of a putative father.

This argument, the Court of Appeals said, was an “oversimplification” and presumed that MCL 710.51(6) would “only be applied in cases involving traditional familial arrangements.”

Further, the Court of Appeals noted the petitioner’s view of MCL 710.51(6) was inconsistent with the fundamental principle that the statute must, as part of the Adoption Code, be construed in pari materia with other laws relating to child custody and parental rights, such as the Child Custody Act, the Acknowledgment of Parentage Act and the Paternity Act.

In particular, the Court of Appeals said it disagreed with the meaning the petitioners suggested should be given to the phrase “putative father” in MCL 710.51(6). “As a matter of logic, our 1982 Legislature could not have intended for the phrase ‘putative father’ to be construed by reference to a definition that was first set forth in a court rule in 2003. … More importantly, petitioners take the phrase ‘putative father’ out of context.”

According to the Court of Appeals, the petitioner’s arguments were “logically unsound” and the trial court’s construction of MCL 710.51(6) did not render the phrase “putative father” nugatory. “Thus, the trial court properly determined that a parent is only entitled to petition for termination under MCL 710.51(6) if the petitioning parent, at the time of the petition, has custody of the child who is at issue according to a court order.”

Legislative Fix Proposed

Since the release of the In re AGD decision, both the Probate Judges Association and the Adoption Committee of the State Bar of Michigan Family Law Section has proposed an amendment to MCL 710.51 that will assist petitioners in hastening stepparent adoptions.

According to the proposal, a parent with sole legal custody and a signed acknowledgment of parentage from the other parent may seek involuntary termination of the other parent’s rights after two years has passed since the other parent 1) had contact and communication with the child or 2) provided support for the child, despite being able to do so.

At the State Bar Family Law Section Council meeting on May 4, 2019, the Council’s Legislative Committee voted 14-1 to support the proposal.