Order

On order of the Court, the application for leave to appeal the April 7, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

Clement, J. (dissenting).

I would reverse the decision of the Court of Appeals. I have no views on whether the trial court's decision is correct or not, but I do not believe the Court of Appeals properly applied the standard of review, and I would reverse on that basis.

Appellant is the father of two children. He and the mother of the children were divorced in 2017, and the judgment of divorce conferred joint legal custody on the divorcing parents and physical custody on his ex-wife. It also included a parenting-time schedule, but this went unenforced. His ex-wife subsequently remarried, and in 2021, she and her husband petitioned for a stepparent adoption. Under the Michigan Adoption Code, MCL 710.21 et seq. , they were required to prove that appellant, "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," MCL 710.51(6)(b), in order to terminate his parental rights and confer those rights on the children's stepfather. The trial court held that the statute could not be satisfied because appellant "made regular and substantial communications with mom to be involved with the kids, communicate with them, visit them," while their mother "frustrate[d] those attempts or den[ied] those attempts on a lot of requests," which meant that the petitioners could not show that the father had "the ability to visit, contact, or communicate with" the children.

Petitioners then appealed in the Court of Appeals, which reversed and directed that the petition advance to an evaluation of whether the adoption would be in the best interests of the children. It held that respondent had the ability to "visit, contact, or communicate with" his children because the judgment of divorce that was entered when his marriage to his wife ended provided him with a right to parenting time that he did not seek to enforce judicially. In re ECH , unpublished per curiam opinion of the Court of Appeals, issued April 7, 2022 (Docket Nos. 358205 and 358206), p. 4, 2022 WL 1051921. In doing so, it noted that the Court had previously held in In re S.M.N.E. , 264 Mich.App. 49, 51, 689 N.W.2d 235 (2004), that—in the context of a stepparent adoption—a parent to whom a court has awarded parenting time in a judgment has the ability to see their children under MCL 710.51(6)(b). ECH , unpub. op. at 4. The Court of Appeals also held here that "the evidence does not support that petitioner blocked respondent from visiting the children or speaking to them through Facetime or phone" because "[s]everal of respondent's requests for visits were last-minute or otherwise not consistent with" the conditions set out in the divorce judgment for exercising parenting time, and in any event, respondent "never mailed the children birthday or holiday cards or presents." Id. at 4-5. Respondent now appeals in this Court.

Unless a legal parent's parental rights have been terminated for some other reason, to grant a stepparent adoption, one legal parent's rights must be terminated. "A petitioner in an adoption proceeding must prove by clear and convincing evidence that termination of parental rights is warranted," with "findings of fact [reviewed] under the clearly erroneous standard." In re Hill , 221 Mich App 683, 691-692, 562 N.W.2d 254 (1997). We have held that a factual finding "is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Tuttle v Dep't of State Hwys. , 397 Mich. 44, 46, 243 N.W.2d 244 (1976) (quotation marks and citation omitted).

I do not believe this standard of review has been properly applied here. Under the Court of Appeals’ interpretation of SMNE , a divorcee who does not resort to litigation to enforce parenting-time rights they may enjoy under a court judgment apparently waives any objection to a stepparent adoption they might otherwise lodge under MCL 710.51(6)(b). I disagree with this reading of both SMNE and the statute. In S.M.N.E. , 264 Mich App at 51, 689 N.W.2d 235, the trial court held that the petitioning parents had satisfied the statute, and the Court of Appeals affirmed because, in light of the respondent's "legal right to visit with the child under the terms of the divorce judgment," "she should have sought assistance from the friend of the court or the divorce court ...." But in light of the deferential standard of review, I believe there is a significant difference between an appellate court affirming a trial court's decision to hold that the statute has been satisfied on this basis and reversing a trial court's decision because of the existence of a parenting-time judgment. A trial court that invokes the existence of parenting-time rights is likely doing so in response to its implicit evaluation that it saw enforcing those rights as a realistic and not merely theoretical option for the parent—i.e., considering the parent's resources, experience with the legal system, and relationship with the other parent. Indeed, SMNE itself gestures toward such an evaluation, since the Court said that the respondent "should have sought assistance from the friend of the court or the divorce court, as she had done in the past. " Id. (emphasis added). Where there is no such past history, there may be a reason for it—such as the respondent parent's desire to avoid conflict with their former spouse for the sake of the children. In construing what qualifies as a parent's "ability" to be in contact with their children under the statute, it would seem to me to be poor public policy to essentially require the parties to resort to preemptive litigation in order to avoid waiving any objection under MCL 710.51(6)(b). I similarly disagree that an appellate court can be "left with the definite and firm conviction that a mistake has been committed" because respondent did not send his children cards and gifts. While a reasonable fact-finder could certainly identify that as a reason to hold that a parent had not been in adequate contact with their children, a reasonable fact-finder could also find that young children in the twenty-first century would not find cards or letters to be a meaningful form of contact; and, if the custodial parent obstructed the noncustodial parent's ability to be in touch with the children, that other parent may not have a sense of what to spend their potentially limited resources on as a gift.

I would not construe SMNE as holding that a parent's failure to enforce the terms of a judgment of divorce is a per se waiver of any objection to a stepparent adoption that parent may have under MCL 710.51(6)(b). And with reasonable ways of construing the facts in favor of both sides of this case, I believe the Court of Appeals was obliged to affirm under the "clearly erroneous" standard of review. I would therefore reverse that Court and affirm the trial court's decision to dismiss this petition.

McCormack, C.J., joins the statement of Clement, J.