Father’s Parental Rights Properly Terminated, Step-Parent Adoption Can Proceed
The trial court in this step-parent adoption case correctly held that the statutory requirements were established for terminating the respondent-father’s parental rights, thereby allowing the petitioners’ adoption petition to proceed, the Michigan Court of Appeals has ruled.
The respondent-father and the petitioner-mother in In re NMO and PSO, Minors (Docket Nos. 373347 and 373350) divorced in 2017 and had two children together. After the divorce, the petitioner-mother obtained a personal protection order (PPO) against the respondent-father, which he “violated on multiple occasions.” In addition, the respondent-father “last visited, contacted, or communicated with the children in October 2019” and made “inconsistent child-support payments between 2019-2021 and ultimately stopped paying altogether in late 2021.”
A few years after the divorce, the petitioner-mother remarried and, along with the petitioner-stepfather, initiated separate step-parent adoption and termination of parental rights proceedings in the Wayne County Circuit Court. The trial court ruled that termination of the respondent-father’s rights was appropriate under the Adoption Code – specifically MCL 710.51(6) – because he failed to pay court-ordered child support and “regularly or substantially failed or neglected to visit, contact, or communicate with the children for a period of two years or more.”
The respondent-father filed a motion for a rehearing, arguing the trial court did not let him present evidence on whether he “had the ability to visit, contact or communicate with the children” (until this point, he was not represented by counsel). The trial court granted the motion, held a rehearing and issued its decision in October 2024. However, the record of that proceeding “was lost” and, two days later, the trial court entered an order affirming its original decision to terminate the respondent-father’s parental rights.
The respondent-father appealed, asserting the trial court’s decision was erroneous because he “lacked the ability to visit, contact, or communicate with the children” under MCL 710.51(6). In this regard, he specifically contended that “the suspension of his parenting time and petitioner-mother’s PPO prevented him from interacting with his children.” He also argued the trial court erred because it failed to make any factual finding about his ability to actually communicate with the children.
The Court of Appeals affirmed the trial court’s decision.
“[T]he record discloses here no good-faith attempt by respondent-father to visit or contact the children,” the Court of Appeals said. “Based on th[e] evidence, we cannot disturb the trial court’s factual finding that respondent father had the ability to contact or communicate with the children, but regularly and substantially failed to do so during the two-year period. Accordingly, the trial court did not err by affirming its original termination orders.”
Court of Appeals Judges Christopher M. Trebilcock, Thomas C. Cameron and Andrew J. Lievense were on the panel that issued the unpublished opinion.
Statutory Requirements Met
In its analysis, the Court of Appeals first examined MCL 710.51(6), noting that it governs the termination of a noncustodial parent’s rights in a step-parent adoption proceeding.
The sole issue “is whether the trial court correctly concluded that petitioners established by clear and convincing evidence that respondent-father had the ‘ability to visit, contact, or communicate’ with the children and ‘regularly and substantially failed or neglected to do so’ during the two-year period as required by MCL 710.51(6)(b),” the Court of Appeals said. “We agree with the trial court that petitioners satisfied their evidentiary burden.”
The respondent-father’s “last contact with the children was on October 31, 2019” and, during the statutory two-year lookback period, “he did not visit, contact, or speak with them,” the Court of Appeals pointed out. “He did not send any letters, cards, or birthday gifts, or reach out to either petitioner-mother’s attorney to request a phone call or correspondence with the children or the FOC [Friend of the Court] to obtain information on how to contact the children. When asked about his efforts, respondent-father testified that he hired counsel for assistance in pursuing his visitation rights, and attempted to settle the matter with petitioner-mother outside of court. That was not fruitful because (to his eyes) petitioner-mother sought to impose unreasonable terms on him. Accordingly, respondent-father did not follow through on his intent to establish contact with the children. He also testified that he hired counsel in early 2022 to pursue visitation but could not remember whether those efforts occurred within the two-year period. Otherwise, respondent-father did not make any other efforts to maintain contact or communication with the children. We discern no clear error in the trial court’s finding that respondent-father regularly and substantially failed to visit, contact, or communicate with the children during the two-year period.”
Next, the Court of Appeals reviewed the respondent-father’s claim that the suspension of his parenting time and the petitioner-mother’s PPO prevented him from interacting with the children.
Regarding parenting time, the Court of Appeals explained the respondent-father had filed a motion to set a parenting-time schedule. The trial court then suspended his parenting time in January 2022, “pending an evaluation and recommendation by the FOC.” After receiving that recommendation, “on May 27, 2022, the court ordered that respondent-father would receive ‘[n]o parenting time,’ and required him to undergo a psychological evaluation, update his mailing address with the FOC, and contact the FOC to schedule a parenting-time review appointment. According to respondent-father’s testimony, it is unclear whether he even knew his parenting time was suspended in 2022. When asked whether he was ‘aware … that the [FOC] recommended, and the Court ordered, that [his] parenting time be suspended,’ respondent-father stated that he ‘did not receive that paperwork,’ and had only skimmed the relevant documents before the October 8, 2024 rehearing. Having not received the order, he did not submit to the court-ordered psychological evaluation or make any other efforts to comply with the order. Respondent-father admitted, however, that he failed to update his mailing address with the FOC and would have received the order had he done so.”
As for the PPO, it was originally obtained in 2019, was extended in September 2022 and expired on September 23, 2023, the Court of Appeals observed. “The PPO prohibited him from contacting her except as it related to parenting time, which was to ‘be governed by the divorce case ….’ Below, respondent-father acknowledged that the PPO did not prohibit him from directly contacting or having third-party contact with his children but asserted that he felt unable to do so given that he was prohibited from contacting petitioner-mother. He testified that he was afraid of reaching out to petitioner-mother for the purpose of communicating with the children because he had previously been jailed for violating the PPO and believed it would happen again. But he ultimately conceded that he had the ability to establish some contact with his children, if necessary, based on his communications through counsel.”
Accordingly, the record established, “at the very least,” that the respondent-father “had the ability to contact and communicate with the children but regularly and substantially failed to do so,” the Court of Appeals said. “Respondent-father acknowledged that he had the ability to communicate with the children by coordinating with counsel. Despite the fact that he could not afford counsel during the two-year period, petitioner mother maintained the same counsel until the adoption and termination proceedings, and respondent-father did not reach out to petitioner-mother’s attorney to request any contact or communication with the children. … And while the PPO originally prevented him from personally attending the children’s school until September 2022, he was always free to attend virtual parent-teacher conferences. Additionally, in September 2023, the PPO expired altogether, and respondent-father failed to contact or communicate with the children thereafter.”
Further, “[w]e are not persuaded by respondent-father’s contention that In re Kaiser, 222 Mich App 619 … (1997), commands a different result because he was prevented from visiting or contacting the children,” the Court of Appeals said. Unlike Kaiser, the record “discloses here no good-faith attempt by respondent-father to visit or contact the children. Rather, he failed to inform the FOC about any change in his address, did not attempt to keep himself informed regarding the parenting-time proceedings that he initiated in December 2021, admitted that he stopped following through on his intent to contact the children, did not make any additional efforts to maintain contact or communication with them after early 2022, and apparently was not even aware that his parenting time was suspended in 2022.”
Therefore, “we cannot disturb the trial court’s factual finding that respondent-father had the ability to contact or communicate with the children, but regularly and substantially failed to do so during the two-year period,” the Court of Appeals said.
Fact Finding: Any Error Is ‘Harmless’
Next, the Court of Appeals addressed the respondent-father’s argument that the trial court failed to make a factual finding that he actually had the ability to communicate with his children.
“The lost recording and cursory description in the stipulation means we lack the full context of the trial court’s findings and reasoning,” the Court of Appeals noted. “But that does not mean there is an error requiring reversal.”
According to the Court of Appeals, the trial court in its October 25, 2024 order, “affirmed its original decision terminating respondent-father’s parental rights, and those orders included a finding that ‘[t]he other parent having the ability to visit, contact, or communicate with the child[ren], has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition.’ Therefore, the record does contain a written finding that respondent-father had the ability to communicate with his children.”
Further, “any error arising out of the lack of specific findings on the issue is harmless because the record clearly and convincingly establishes that respondent-father had the ability to communicate with the children,” the Court of Appeals explained. “Any purported impediment on respondent-father’s ability to contact the children ended seven months before the expiration of the two-year period.”
Therefore, “[b]ecause the record establishes that respondent-father had the ability to communicate with the children, the lack of specific findings on the matter does not warrant reversal,” the Court of Appeals held. “[W]e affirm the trial court’s judgment.”
