In re Wilson

This is a step-parent adoption case.  The mother appealed the termination of her parental rights pursuant to a step-parent adoption petition filed by her ex-husband and his new wife.

Respondent and the petitioner-father were divorced in January 2005. Petitioner was granted legal and physical custody of the child. In November 2007, he and his new wife, petitioner-C.W., filed a petition to terminate respondent’s parental rights for purposes of stepparent adoption. Since the judgment of divorce reserved the issue of child support, the trial court had to determine by clear and convincing evidence if respondent had the ability to pay support under the first clause of MCL 710.51(6) that the mother had the ability to support the child, but failed to regularly and substantially do so.

The trial court found she had the ability to pay support.  Although respondent faced difficulties because of her drug addiction and criminal charges, she admitted she earned $300 to $400 a week working as a maid. Her attorney represented she performed this work from November 2005 to December 2006. She also testified she worked at a restaurant some time in 2007.

The trial court also found respondent failed to provide regular and substantial support for the child. She admitted she never paid the father any support, and while she bought gifts for the child, most of them were never delivered.

Finally, the trial court found respondent had the ability to visit, contact, or communicate with the child, but she regularly and substantially failed to visit with her. The evidence showed she had frequent contact with the child for two weeks in January 2005, contact once every few months during the rest of 2005, a few visits during the first half of 2006, one unauthorized visit in April 2007, and one chance meeting in September 2007.  This did not constitute regular and substantial visitation.  Further, although the mother filed two motions to compel visitation, neither were heard by the trial court.

In an unpublished decision, the Court of Appeals reviewed the trial court’s findings for clear error and affirmed.  Step-parent adoptions are governed by MCL 710.51(6), which states:

(6) 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 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 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.

(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 petitioners in an adoption proceeding must prove both subsections (a) and (b) by clear and convincing evidence before termination can be ordered. In re ALZ, 247 Mich App 264, 272; 636 NW2d 284 (2001). The trial court’s findings of fact are reviewed for clear error. In re Hill, 221 Mich App 683, 691-692; 562 NW2d 254 (1997).

In order to terminate parental rights of the non-custodial parent in a step-parent adoption, the court must find by clear and convincing evidence both a failure to support the child for a period of two years or more prior to the filing of the petition and a failure to regularly and substantially visit, contact or communicate with the child for a period of 2 years or more before the filing of the petition.  With respect to the first prong of the statute, usually there is a support order in place and all the petitioner is required to show is a failure to pay support.  In this case, because child support was reserved, petitioner had to show both an ability to pay support and a failure to do so.  With respect to the second prong of the statute, petitioners have far more difficulty showing a failure to visit, contact or communicate with the child.  In many cases, regular Christmas cards and holiday visits have been construed as contact sufficient for the respondent to meet this burden.  In this case, the Court found that respondent’s sporadic contact with the child over a period of 3 years was not regular and substantial and petitioner was able to prevail despite some contact within the two years.

Most courts take the termination of parental rights very seriously, particularly in the context of a step-parent adoption.  Many courts are reluctant to terminate if there is any support paid within the two years prior to the petition or if the respondent has any contact with the child during the two year period.  In this case, the mother had so completely failed to come even close under either prong that the court was not willing to give her any latitute.

Click here to download and view the opinion: In re Wilson