Opinion
SC: 165956 COA: 363762
01-03-2024
IN RE IWR, Minor.
Emmet CC Family Division: 22-001551-AY
Order
On order of the Court, the application for leave to appeal the June 22, 2023 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Bolden, J. (dissenting).
I respectfully dissent from this Court’s denial of respondent-mother’s application for leave to appeal in this case, which concerns termination of parental rights under MCL 710.51(6), the provision for stepparent adoptions. Rather than denying leave, I would have granted the application for leave to appeal because it is the first opportunity for this Court to address the Court of Appeals’ interpretation and application of MCL 710.51(6)(a) and (b) and because I believe respondent-mother has raised important issues about whether she substantially complied with a child support order and whether she had the ability to visit the child under MCL 710.51(6). Specifically, I believe this Court should review the meaning of "substantially comply" as it pertains to child support orders under MCL 710.51(6)(a). Additionally, this Court should consider whether termination under MCL 710.51(6) requires a factual finding regarding a parent’s financial ability to support a child similar to the findings required to terminate parental rights in child protective proceedings under the juvenile code, MCL 712A.1 et seq. I therefore respectfully dissent.
This Court has only once opined on MCL 710.51(6): in In re AIR, 496 Mich. 346, 365, 852 N.W.2d 760 (2014), in which the Court held that stepparent adoption under MCL 710.51(6) "is only available to the spouse of ‘the parent having legal custody of the child,’ meaning the parent with sole legal custody," and that "the statute does not apply to situations … in which the parents share joint legal custody of the child."
Petitioners in a stepparent adoption proceeding have the burden of establishing by clear and convincing evidence that termination of the noncustodial parent’s parental rights is warranted. In re Hill, 221 Mich App 683, 691, 562 N.W.2d 254 (1997). MCL 710.51(6), the stepparent adoption provision, states:
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. [Emphasis added].
"[I]n applying MCL 710.51(6), courts are to look at the two-year period immediately preceding the filing of the termination petition." In re TALH, 302 Mich App 594, 597-598, 840 N.W.2d 398 (2013) (emphasis added).
I. BACKGROUND
In this case, respondent-mother sought leave to appeal the Court of Appeals’ decision affirming the trial court’s termination of her parental rights to her minor child under MCL 710.51(6). In re IWR, unpublished opinion of the Court of Appeals, issued June 22, 2023, 2023 WL 4142839 (Docket No. 363762), p. 1.
In 2012, the trial court entered an initial custody and support order, granting respondent-mother custody and ordering petitioner-father to pay child support. In early 2019, the parents were awarded equal parenting time. Id. On December 5, 2019, petitioner-father filed an ex parte motion to temporarily modify custody. He alleged, among other things, that respondent-mother was using methamphetamine, that she had left the child in his custody for more than two weeks and had not returned, and that she was homeless. The trial court granted the ex parte motion, placing the minor child in the "sole care and custody" of petitioner and suspending respondentmother’s parenting time until further order of the court. Additionally, respondent was ordered to pay $238 in monthly child support. Id.
On June 30, 2020, respondent was ordered to show cause why she should not be held in contempt of court for failing to pay child support, given that she owed $1,479 at the time. By November 6, 2020, respondent’s arrearage had increased to $1,755, an income-withholding order was entered, and the show-cause proceeding was dismissed. Id. On January 4, 2021, respondent was again ordered to show cause for being $1,866 in arrears on her child-support payments. Id. at 2. A bench warrant for her arrest was issued because she did not appear. By February 15, 2022, respondent owed $4,971.08 in child support. At this time, the bench warrant was discharged, and the show-cause proceedings were adjourned for monitoring because respondent had a new job and had made a payment. On March 23, 2022, a new income-withholding order was entered, and the show-cause proceedings were again adjourned to allow further monitoring. The show-cause proceedings were dismissed on June 23, 2022, because of the income-withholding payments; respondent owed $1,681.18 in past-due support. Id. at 2.
On July 5, 2022, respondent-mother filed a motion to establish parenting time, asserting that she had completed drug treatment, had been sober for eight months, was employed, and had a suitable home with her parents. However, just two weeks later, petitioner-father and his wife filed a petition for stepparent adoption and later filed a supplemental petition in which they sought to terminate respondent’s parental rights. The trial court adjourned respondent’s motion for parenting time pending the results of the stepparent adoption proceedings. Id. at 2.
In the stepparent adoption proceedings, the trial court terminated respondent’s parental rights, concluding that petitioner had established by clear and convincing evidence that, for at least two years, respondent had not substantially complied with a child-support order and had failed to pay any support for extended periods of time and accumulated substantial arrearages, including a child-support arrearage of more than five months at the time the petition was filed. The trial court also found that, despite being able to do so and respondent’s assertions to the contrary, respondent had not regularly and substantially visited, contacted, or communicated with the child. Id. at 2.
The Court of Appeals affirmed the termination of respondent’s parental rights, concluding that the trial court did not clearly err by finding that petitioner had established both prongs of MCL 710.51(6) by clear and convincing evidence. Id. at 5.
II. MCL 710.51(6)(a)
In In re SMNE, 264 Mich App 49, 53, 689 N.W.2d 235 (2004), the Court of Appeals addressed whether courts are required to inquire into a respondent’s ability to pay child support for the purposes of an analysis under MCL 710.51(6)(a). That panel relied on In re Colon, 144 Mich App 805, 811, 377 N.W.2d 321 (1985). In Colon, the respondent argued that a "stepparent who wishes to adopt must prove both that the divorced natural parent has not complied with a support order, and that the parent had the ability to comply." Id. The Colon court concluded that there was no such requirement, reasoning that the "ability to pay is already factored into a child support order, and it would be redundant to require a petitioner under the Adoption Code to prove the natural parent’s ability to pay as well as that parent’s noncompliance with a support order." Id. at 812, 377 N.W.2d 321 (emphasis added).
"Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1), they nevertheless can be considered persuasive authority." Redmond v Heller, 332 Mich App 415, 431 n 7, 957 N.W.2d 357 (2020) (quotation marks and citation omitted).
The Colon court also determined that requiring a stepparent to prove that a respondent had the ability to pay "would tend to frustrate the purposes of [MCL 710.51(6)] in cases where the divorced par- ent is so remote from the child and the court proceedings that the parent’s inability to support cannot be proven" and "would place a virtually impossible burden on the stepparent seeking adoption precisely where the termination of parental rights would be most warranted." Id. at 811, 377 N.W.2d 321. Thus, In re SMNE, 264 Mich App at 53-54, 689 N.W.2d 235, reaffirmed Colon, holding:
A court in deciding a termination and adoption case must follow the original determination regarding the respondent’s ability to support the child in the support order as a matter already settled by a judgment. In situations where the support order no longer accurately reflects such ability to pay, either parent may petition the court for modification of the order.
While the Court of Appeals has addressed the issue, this Court has never opined on whether a petitioner in stepparent termination of parental rights proceedings is required to establish that the respondent, in fact, has the ability to pay child support.
However, when terminating parental rights in child protective proceedings under the juvenile code, MCL 712A.1 et seq., a trial court is required make a factual finding that a respondent-parent has the financial ability to provide proper care and custody of the child before finding that a statutory ground exists for termination. For example, under MCL 712A.19b(3)(g), a court may terminate parental rights if it finds by clear and convincing evidence that "[t]he parent, although, in the court’s discretion, financially able to do so, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age." (Emphasis added). Similarly, under MCL 712A.19b(3)(f), a court may terminate parental rights if it finds by clear and convincing evidence that the child has a guardian and both
In cases involving termination under MCL 712A. 19b(3)(f), the Court of Appeals has relied on its published decisions interpreting MCL 710.51(6), the stepparent adoption provision, because the provisions share similar statutory language. See In re Jerelos, unpublished opinion of the Court of Appeals, issued February 10, 2022, 2022 WL 413987 (Docket No. 358334), pp. 2-3 (affirming termination of parental rights under MCL 712A. 19b(3)(f) and relying on prior decisions interpreting MCL 710.51(6)(a) and (b)). This Court has never opined on MCL 712A. 19b(3)(f).
(i) The parent, having the ability to support or assist in supporting the minor, has failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of 2 years or more before the filing of the petition 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.
(ii) The parent, having the ability to visit, contact, or communicate with the minor, has regularly and substantially failed or neglected, without good cause, to do so for a period of 2 years or more before the filing of the petition. [Emphasis added.]
Although termination in the instant case was ordered pursuant to the Adoption Code, the same constitutional rights—those that are implicated when terminating parental rights to one’s child—are at stake. See Santosky v Kramer, 455 U.S. 745, 752-754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (recognizing that natural parents have a fundamental liberty interest in the care, custody, and management of their children); Colon, 144 Mich App at 813, 377 N.W.2d 321. This Court should consider whether the factual findings required to establish statutory grounds for termination under child protective proceedings should similarly apply to terminating parental rights in stepparent adoption proceedings.
Additionally, I believe this Court should also address the meaning of "substantially comply" under MCL 710.51(6)(a), which has never been decided by this Court. The Court of Appeals has recently held that under MCL 710.51(6)(a), "a parent substantially complies with a child support order when they have made a considerable quantity of the payments required by the order." In re NRC, — Mich App —, —, — N.W.2d ——, 2023 WL 2542458 (March 16, 2023) (Docket No. 362915); slip op. at 4.
In In re NRC, the Court of Appeals held that the respondent-father had substantially complied with his child support order for the two years preceding the petition. Id. at —; — N.W.2d — slip op. at 5. There, the respondent-father had paid $0 in child support for 11 out of 24 months, causing him to accrue arrearages. Id. The respondent-father had made lump-sum child support payments to reduce his arrearages, and, at the time the petition was filed, the respondent-father was $146 in arrears. Id. The Court of Appeals reasoned that while "[the respondent’s] payments were often untimely, and he did not always pay his arrearage amount …, the standard does not require absolute compliance; rather, it requires substantial compliance, which necessitates a party to have made a considerable quantity of payments." Id.
In the instant case, respondent-mother argues that the trial court clearly erred by finding that she had not substantially complied with the child support order because most of her child support arrearage was paid at the time the petition was filed. Respondent asserts that she had paid $6,522 of the $7,378 support obligation, including a large, lump-sum payment.
In concluding that the trial court did not clearly err by finding that the requirements of MCL 710.51(6)(a) had been established by clear and convincing evidence, the Court of Appeals distinguished the instant case from In re NRC. In the instant case, the panel noted that respondentmother was ordered to pay $238 per month during the applicable two-year period and had made only 11 of the 24 monthly child support payments. In re IWR, 2023 WL 4142839, at 2-3. In contrast, the respondent in In re NRC was only $146—approximately one week—in arrears, and had paid child support for 13 months of the applicable two-year period. Id. at 2. Further, the panel opined, unlike the respondent in In re NRC, respondent-mother here did not often make large payments to reduce or eliminate the arrearage. Id. at 3. The panel noted that respondent-mother made only one large payment of $3,173 in May 2022, which was applied to her past- due support obligation, and at the time the petition was filed she was $1,245.19—more than five months—in arrears. Id. Thus, in applying In re NRC’s interpretation of "substantially comply," the panel concluded that the trial court did not clearly err by finding that the requirements of MCL 710.51 (6)(a) had been established by clear and convincing evidence.
I would have granted the application to address whether the Court of Appeals correctly interpreted and applied MCL 710.51(6)(a), including whether In re NRC correctly interpreted "substantially comply," and whether the provision requires a petitioner to establish that a respondent has the ability to pay child support.
III. MCL 710.51(6)(b)
This case is also an opportunity for the Court to consider MCL 710.51(6)(b). In fact, this Court has never addressed the meaning of "ability to visit, contact, or communicate" under MCL 710.51(6)(b). See In re ECH, 510 Mich 865, 977 N.W.2d 554 (2022) (denying application for leave); see also id. (Clement, J., joined by McCormack, C.J., dissenting). In the instant case, there are factual disputes related to respondent-mother’s ability to contact her child. Moreover, respondent-mother had filed a motion to reestablish parenting time only weeks before the termination petition was filed. However, that motion was adjourned pending the results of the stepparent adoption proceedings. Given the record, I would grant the application so this Court could also consider whether the Court of Appeals correctly determined that respondent had the "ability" to communicate with her child under MCL 710.51(6)(b).
In sum, I believe this case presented an opportunity for this Court to consider MCL 710.51(6) and the related Court of Appeals decisions interpreting and applying the statutory language resulting in the termination of parental rights. Because the application raises arguments that this Court has yet to opine on, I respectfully dissent.
Cavanagh and Welch, JJ., join the statement of Bolden, J.