Stepparent Adoption is a Hot Topic in Michigan's Family Law Appeals

Over the past several months Michigan's appellate courts have turned their attention to stepparent adoption cases. These appeals have focused on the application of the statute, MCL 710.51(6), in terminating the rights of natural parents, as well as issues involving statutory interpretation and legislative intent. In re AJR, -- Mich App -- ; -- NW2d -- (2013), was the first such case, involving the termination of a respondent-father’s rights to his child after the petitioner-mother and petitioner-stepfather filed for a stepparent adoption. The petitioners alleged, in a nutshell, that the respondent had failed to visit the child for more than two years, while also failing to financially support the child. The petitioner-mother maintained sole physical custody of the child after her divorce from the respondent, yet the parties shared joint legal custody of the child. The trial court, after hearing two days of testimony regarding the father’s care and connection with the child, approved the stepparent adoption and terminated the respondent’s parental rights. On appeal the respondent argued that termination under MCL 710.51(6) was not appropriate because he maintained joint legal custody of the child, and the language of the statute provides that: “If the parents of a child are divorced, . . . and if the parent having legal custody of the child 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 . . . .” MCL 710.51(6). The respondent argued that the phrasing indicated that subsection six was only applicable to a parent that has sole legal custody, because the statute uses the phrase “the parent having legal custody” not “a parent having legal custody.” The Court of Appeals agreed, finding that “ the Legislature wants to refer to something particular, not general, it uses the word ‘the,’ rather than ‘a’ or ‘an’” meaning that one particular parent would need to have sole legal custody for the statute to be applicable.

In re AJR was followed by other statutory interpretation challenges, including In re Besok, unpublished opinion issued May 21, 2013 (Docket 313092), which alleged that the respondent-father did not have the ability to visit with his children within the previous two years. This challenge was less successful, as the Court of Appeals found in an unpublished opinion that the statute specified the respondent “visit, contact, or communicate,” as opposed to “and,” meaning that, since the respondent had not communicated at all with the children, termination was proper. Similarly, in In re CLJ, unpublished opinion issued June 18, 2013 (Docket 312778), the Court of Appeals affirmed the trial court’s discretionary decision not to terminate the father’s right, even though the petitioners provided sufficient evidence that the conditions in 51(6)(a) and (b) had been met, noting that the statutory language “the court upon notice and hearing may issue an order terminating the rights of the other parent” allowed the trial court to decline to terminate the father’s rights.