In re CW – Section 45 Hearings

I always image the MCI Superintendent like the Wizard of Oz – an all-powerful man behind the curtain.  The MCI Superintendent “has the power to make decisions on behalf of” children who are wards of the state, MCL 400.203(2), including the authority to consent to adoption. MCL 400.209(1).  If the superintendent denies a petitioner’s request for consent to adopt, the petitioner may file a motion with the court alleging that the superintendent’s decision was arbitrary and capricious. MCL 710.45(2).  The court must determine whether the petitioner has shown by clear and convincing evidence that the decision was arbitrary and capricious. MCL 710.45(7) & (8); In re Cotton, 208 Mich App 180, 185-187 (1994).  Because the MCI Superintendent has such broad discretion and the standard for review is so high, most Section 45 motions are denied and appellate courts  generally uphold that denial.

In In re CW, the children were placed in the care of the Martins for three years.  After the parents’ parental rights were terminated, the Martins began the process to adopt the children.  The adoption was cut short because of an incident in which it was alleged that a developmentally disabled adult that lived with the Martins abused one of the children.  Based on the allegations, the children were removed from the Martins’ care and placed with the Rabers.  Due to the allegations, the adoption was halted.  After approximately a year of administrative wrangling, it was ultimately determined that the abuse allegations were unfounded and the Martins did not fail to protect the child.

After the Martins were cleared of any abuse or neglect, the LGAL requested that the boys be returned to the Martins, but the boys remained with the Rabers and the MCI Superintendent had already granted consent for the Rabers to adopt them.  While it appeared he would reconsider his decision, he ultimately stuck with his decision to consent to adoption by the Rabers.  Essentially, the MCI Superintendent found “it was not in the children’s best interests to be removed from the Rabers’ home where they had lived and formed stable connections since June 2007,” among other reasons.

The Martins moved for court review of the Superintendent’s decision under MCL 710.45, arguing that his decision was based on inaccurate and incomplete information and alleging that he had blindly deferred to the recommendations of local DHS officials.  The Martins made an offer of proof outlining additional testimony that the Superintendent ignored significant evidence in their favor as well as evidence refuting his positive findings about the Rabers.  The trial court refused to admit the proffered evidence and dismissed the Martins’ petition for review.  The trial court opined that the court could not consider whether the Superintendent’s decision was right or wrong, or even whether it was based on “bad” information given to him. Rather, the court could only consider whether the decision seemed “reasoned.”

The Martins appealed.  The majority affirmed the trial court’s dismissal holding the proffered evidence “was insufficient for the trial court to have concluded that there were no good reasons for [the Superintendent] to have withheld consent.”  Judge Shapiro Dissented.  Judge Shapiro found that the court’s duty required it to evaluate whether the Superintendent’s articulated reasons were made with consideration for the children’s individual circumstances and thus whether his reasons were valid in light of the facts of the case.  Judge Shapiro further concluded that the excluded evidence could have changed the outcome.

The Martins filed an application for leave to appeal to the Supreme Court.  In lieu of granting leave to appeal, the Supreme Court issued an order reversing the trial court’s dismissal of the Martin’s motion, adopting Judge Shapiro’s dissenting opinion.   Justice Corrigan concurred in the Order, but wrote that the lower courts have misapplied the standard for reviewing the MCI Superintendent’s consent to an adoption under Section 45.  She held that courts have established an almost impossible burden.  She held that the accuracy and completeness of facts underlying a Superintendent’s decision are necessary for court review under MCL 750.145.

Based on this decision, it is appropriate to explore whether the MCI Superintendent’s determination was based on 1) a full and complete record regarding the facts and circumstances surrounding the child and 2) an accurate set of facts.  There appear to be some cracks in the nearly impossible standard at Section 45 hearings.

You can download the Supreme Court’s Order here: In re CW (Supreme Ct)

You can download the Court of Appeals’ majority opinion here: In re CW (Majority)

You can download the Court of Appeals dissenting opinion here: In re CW (Dissent)

Amendments to the Safe Delivery of Newborns Act Moving

I just received word that Senate Bills 1118-1120 have moved from Senate Committee to the full Senate for a vote.  These bills would amend the Safe Delivery of Newborns Act to modify the provisions under which the family court may terminate parental rights to a surrendered newborn.  Specifically, they would  eliminate the court’s ability to terminate parental rights when a parent petitions for custody within 28 days after surrendering the newborn.  Instead, the court could order the child placing agency to petition for jurisdiction under the juvenile code.

I have been unable to find much on the internet regarding these bills and I was not able to find any case law that might serve as a call to action to modify the Act.  The legislation does have bipartisan support.  The policy behind the legislation may be to create a bigger incentive parents to safely bring newborn infants to an emergency service provider by eliminating the risk of a termination of parental rights if they have  a change of heart and seek custody.  The bill does not preclude the filing of a supplemental petition to terminate parental rights if services are not effective.

Under the current law,  a parent may surrender a newborn infant to an emergency service provider, which must take temporary protective custody of the child. If the surrendering parent wants custody of the newborn, he or she must file a petition with the family court within 28 days. If the parent does not do so, he or she is presumed to have knowingly released his or her parental rights to the newborn, and a child placing agency immediately must file a petition with the court to determine whether the court will enter an order terminating the rights of the surrendering parent.

If the court finds that the surrendering parent has knowingly released his or her parental rights and that reasonable efforts were made to locate the nonsurrendering parent, the court must enter an order terminating the parental rights of the surrendering parent and the nonsurrendering parent.

If a custody action is filed, the court must determine custody of the newborn based on his or her best interest, considering the factors set forth in MCL 712.14. Based on these findings, under MCL 712.15 the court may issue an order that does one of the following:

• Grants legal and/or physical custody of the newborn to the parent, and retains or relinquishes jurisdiction.
• Determines that the best interests of the newborn are not served by granting custody to the petitioner parent, and terminates his or her parental rights and gives a child placing agency custody and care of the newborn.
• Dismisses the petition.

Finally, under MCL 712.19b(3)(a)(iii), the Court may terminate parental rights if the parent voluntarily surrendered the child to an emergency service provider under the Safe Delivery of Newborns Law and did not petition the court to regain custody within 28 days.

Under Senate Bill 1118, a court would not be required to terminate parental rights of the surrendering and nonsurrendering parent if a custody action has been filed within 28 days pursuant to MCL 712.10.

Under Senate Bill 1119, following a custody hearing, instead of terminating the petitioner’s parental rights and giving a child placing agency care and custody, bill would allow the court to order a child placing agency to petition the court for jurisdiction under the juvenile code, if the court found that granting custody to the parent would not serve the newborn’s best interests.

Senate Bill 1120 would eliminate surrender of a child under the Safe Delivery of Newborns Act as a ground for termination under 712.19b.  However, .

Finding Families for Foster Children

The New York Times featured an article this weekend about programs that aim to place older, hard-to-adopt children in adoptive placements.  The article features an agency in St. Louis that hires a former police detective to track down long-lost relatives of teenagers languishing in foster care.  The idea is to look for suitable relatives that would be willing to serve as adoptive caregivers for children.  In many cases the relatives of parents that abuse and neglect their children and consequently have their parental rights terminated may not know where the children are, or even that they exist.  The agency finds that,  “lost relatives are a largely untapped resource for adoption.”  The St. Louis agency is funded by a grant from Wendy’s Wonderful Kids, created by the founder of the fast food chain.

The article also acknowledges a nonprofit in Washington State that uses computer databases to locate relatives of children in foster care.

The article addresses the hardships faced by older children in foster care, who are typically some of the most difficult to find adoptive placements.  These children face rejection and disappointments from being bounced around to different foster homes, the isolation and loneliness of living in a group home and a number of other difficulties.  All of these can make it difficult to transition into a permanent adoptive home.

In Michigan, agencies such as Bethany Christian Services and Spaulding for children, who receives grants from the Dave Thomas Foundation,  work to place older and special needs children in adoptive homes.

It is nice to see this issue getting some attention.  You can read the New York Times Article here:  A Determined Quest to Bring Adoptive Ties to Foster Teenagers.

Alternatives to Termination of Parental Rights

I was in the process of cleaning up my office and burning up my document scanner when I came across some seminar materials on Alternatives to Termination of Parental Rights, presented by Bill Bartlam of the Oakland County Circuit Court.  These materials cover each of the permanency goals for children in foster care:

• Reunification with family,
• Adoption, following termination of parental rights,
• Permanent Guardianship,
• Permanent Guardianship with Fit and Willing Relatives, and
• APPLA and APPLA-E or Another Planned Permanent Living Arrangement

I am providing these materials for all of you to enjoy.

You can view or download them here: Alternatives to Termination of Parental Rights

In Re MKK

When you have a putative father attempting to file for paternity during the pendency of an adoption, which should come first?  This  issue was addressed by the Court of Appeals in In re MKK.

The putative father filed a paternity action seeking an order of filiation at or around the same time the child’s maternal aunt and uncle filed a petition to adopt the child.  The trial court denied putative father’s motion to stay the adoption proceedings and stayed the paternity action pending the conclusion of the adoption proceedings.

Paternity tests revealed a 99.99% probability he was the natural father.  Ultimately, the trial court concluded that it was not in the child’s best interests to grant custody to putative father under MCL 710.39(1).  The trial court also concluded that placement with the uncle and aunt was not in the child’s best interests and denied the adoption petition in light of the fact that the parents live nearby in a small community. Both parties appealed.

Naturally, father wanted the paternity action heard first because once an order of filiation was entered and he is considered a parent, termination of his parental rights can generally only be accomplished in cases of neglect or abuse under MCL 712A.19b.  See In re LE, 278 Mich App 1, 19, 22; 747 NW2d 883 (2008).   It is far easier to terminate parental rights of a putative father under MCL 710.39 in the Adoption code.

Putative father argued that he was denied both procedural and substantive due process by his application of the Adoption Code and decision to stay his paternity action until the completion of the adoption.  The Court of Appeals framed its analysis in terms of statutory construction rather than constitutional considerations.  The Court acknowledged that adoption proceedings must be completed as quickly as possible and, in general, be given priority on the court’s docket.  MCL 710.21a(c) and (d); MCL 710.25(1).  However, the Court also noted that under MCL 710.25(2) “an adjournment or continuance of a proceeding under this chapter shall not be granted without a showing of good cause.”  Thus, there may be circumstances in which a putative father may be able to present good cause to delay the adoption proceedings.  The court wrote, “in cases such as this, where there is no doubt that respondent is the biological father, he has filed a paternity action without unreasonable delay, and there is no direct evidence that he filed the action simply to thwart the adoption proceedings, there is good cause for the court to stay the adoption proceedings and determine whether the putative father is the legal father, with all the attendant rights and responsibilities of that status.  Upon a motion to stay adoption proceedings, the trial court must make a good cause determination based on the particular circumstances of the case.”

The Court was very careful to state that they were not creating a bright line test that would lead to a “‘race to the courthouse,’ where a paternity takes precedence over an adoption proceeding merely because the paternity action was filed first.”  This gives the court some discretion in the good cause finding.

The Court also reasoned that the general presumption that it is in the child’s best interests to be in the custody of their natural parent or parents allows the court to give priority to a paternity action over an adoption.

You can view or download the opinion here: In re MKK

In Re MAJ – Previous termination under the Adoption Code

In this case, the trial court terminated Respondent Mother’s parental rights to her son pursuant to MCL 712A.19b(3)(l) which states: “[t]he parent’s rights to another child were terminated as a result of proceedings under § 2(b) of this chapter or a similar law of another state.”  Previous proceedings had been initiated seeking temporary jurisdiction over Respondent Mother’s daughter.  Following an adjudication, the child became a temporary court ward.  Later, a supplemental petition was filed seeking to terminate her parental rights.  Facing possible involuntary termination of their rights, Respondent Mother and the father instead voluntarily released the child to the Department of Human Services under the Michigan adoption code on June 20, 2007.  In an effort to beat a dead horse, following that termination, the trial court on July 3, 2007 attempted to again terminate their rights to their daughter, make the child a permanent ward of the court, and commit the child to the Department of Human Services, this time under the Michigan juvenile code, giving as the legal reason the parents’ voluntary release of their parental rights to her under the adoption code.  The Court of Appeals found that this subsequent termination under the juvenile code was invalid because the parents had no rights to terminate after they voluntarily released their parental rights under the adoption code.

The Court held MCL 712A.19b(3)(l) only applies to a prior involuntary termination under the Michigan juvenile code or a similar law of another state. It does not apply to a voluntary termination under the Adoption Code.  While the Court found that the trial court erred in terminating parental rights under 712A.19b(3)(l), it found that error harmless because termination would have been proper under MCL 712A.19b(3)(m) which states: “[t]he parent’s rights to another child were voluntarily terminated following the initiation of proceedings under § 2(b) of this chapter or a similar law of another state.”  The termination under the Adoption Code was held to be a voluntary termination  that qualified under 712A.19b(3)(m).

The Court went on to affirm the best interest findings of the trial court.  The Court also addressed the trial court’s decision to allow a foster care agency worker to offer an opinion regarding the risk that a person infected with HIV (human immunodeficiency virus) could transmit it to another person (Mom was HIV positive).  The Court’s ruling on this issue is  a little difficult to understand, but it found the trial court did not abuse its discretion in allowing the testimony because it was admitted for a very narrow purpose and the error would be harmless in any event because there was ample testimony that termination was in the child’s best interests.

All in all this case does not tell us much we didn’t already know: basically, any termination, whether it be voluntary or involuntary, can lead to termination of parental rights.  Just be sure you cite the proper section in your petitions and orders of termination.

You can view or download the case here: In re MAJ

In re Handorf – A Guardian’s Authority to Consent to Adoption

The Court of Appeals recently released a published opinion regarding the authority of guardians to consent to an adoption.  Petitioners are the guardians of the minor child at issue.  They petitioned the probate court for authority as guardians to consent to their own adoption of the child.  Dad consented to the adoption.  Mother did not.  The trial court ruled that it could only grant their request if the child’s parents’ parental rights were first terminated and, unless the parents’ consented, it lacked authority under the guardianship code to allow the guardians to consent to adoption if parental rights are intact.  Petitioners appealed the trial court’s ruling.

Citing the adoption code, the court wrote: “a child shall not be placed in a home for the purpose of adoption until an order terminating parental rights has been entered pursuant to [the Michigan Adoption Code] or [the Michigan Juvenile Code] and the court has formally approved the placement under [MCL 710.51].”  MCL 710.41(1).  Unless there is parental consent to the adoption, an adoption petition must be accompanied by, among other things, “a copy of each release or order terminating parenal rights over the child having a bearing upon the authority of a person to execute the consent to adoption.” MCL 710.26(1)(a).  The Court concluded that the first prerequisite for adoption is termination of the parents’ parental rights (in the absence of parental consent).  Thus, before a guardian may petition the court to consent to an adoption under MCL 700.5215(e),  they must either have parental consent or an order terminating parental rights.

This was always my understanding of the state of the law, but it is nice to have some case law.

You can view or download the case here: In re Handorf

In Re KCS – Adoption – MCL 710.37(1)(a)

The following case summary is from an unpublished opinion from the Court of Appeals issued June 2, 2009.

This matter was before the court on birth father’s appeal as of right from an order that terminated his parental rights to the minor child pursuant to MCL 710.37(1)(a) of the Adoption Code, which states:

(1) If the court has proof that the person whom it determines pursuant to section 36 to be the father of the child was timely served with a notice of intent to release or consent pursuant to section 34(1) or was served with or waived the notice of hearing required by section 36(3), the court may permanently terminate the rights of the putative father under any of the following circumstances:

(a) The putative father submits a verified affirmation of his paternity and a denial of his interest in custody of the child.

The birth mother, together with the adoptive parents, petitioned to identify the birth father and terminate his parental rights.  They submitted a SCAO form in which birth father expressly disclaimed any interest in the child. The file also contained a “Family Medical History Form” in which birth father stated that “[t]he decision to allow an adoption was relatively easy because I know that me and the mother would not have been able to give the child any kind of life and also I would never have been able to support the child fairly,” as well as paperwork from the Michigan Central Adoption Registry, in which the birth father indicated that he did not give consent to have his name or address released to the child.

Although the trial court mistakenly stated that notice of the petition had been served on birth father, it had not been, and he did not appear.  At the hearing, birth mother and a social worker from Catholic Social Services testified regarding the circumstances under which the SCAO form was executed and that birth father had read it.   Based on the file documents and this testimony, the trial court granted the petition and terminated the birth father’s parental rights.

The birth father filed a timely petition for rehearing pursuant to MCL 710.64(1) and MCR 3.806(B).  The birth father filed the petition himself and indicated that “[a]fter much soul searching I cannot live with giving my child up for adoption.” Vincent’s petition explained that, at the time he made his “foolish decision” to give up his parental rights, “I had not talked with my family about the matter” and that, “after informing my family of the situation we have come to the conclusion that we will be able to take care of” the child.

MCL 710.64(1) provides that upon the filing of a petition in court within 21 days after entry of any order under this chapter, and after due notice to all interested parties, the judge may grant a rehearing and may modify or set aside the order.  Rehearings under MCL 710.64(1) are governed by MCR 3.806, which states:

(A) Filing, Notice and Response. A party may seek rehearing under MCL 710.64(1) by timely filing a petition stating the basis for rehearing. Immediately upon filing the petition, the petitioner must give all interested parties notice of its filing in accordance with MCR 5.105. Any interested party may file a response within 7 days of the date of service of notice on the interested party.

(B) Procedure for Determining Whether to Grant a Rehearing. The court must base a decision on whether to grant a rehearing on the record, the pleading filed, or a hearing on the petition. The court may grant a rehearing only for good cause. The reasons for its decision must be in writing or stated on the record.

(C) Procedure if Rehearing Granted. If the court grants a rehearing, the court may, after notice, take new evidence on the record. It may affirm, modify, or vacate its prior decision in whole or in part. The court must state the reasons for its action in writing or on the record.

(D) Stay. Pending a ruling on the petition for rehearing, the court may stay any order, or enter another order in the best interest of the minor.

After he filed this petition, the birth father retained counsel and filed a brief in which he claimed that he was coerced into disclaiming his rights to the child by the birth mother under the threat that she would tell his Catholic family.  He claimed he had extreme reading comprehension difficulties despite being a student at the University of Michigan, where he attends under an athletic scholarship.  He claimed the SCAO form he signed was blank when he signed it.  Finally, he claimed he believed it would be an “open adoption” in which hw would be able to see the child.  The birth father argued that the above factors rendered the child custody statement invalid.  The trial court denied the petition for rehearing, concluding that the birth father had merely expressed a change of heart.

Under MCR 3.806(B), the trial court was only authorized to grant a rehearing upon good cause.  The Court of Appeals affirmed the trial court’s finding that the birth father had waived his right to notice of the proceedings by executing the Notice to Father and Custody Statement.  Thus, the fact that the birth father was not given notice of the hearing was not good cause.

The Court also held that the trial court did not abuse its discretion in concluding that Vincent had a change of heart and this was the real reason for requesting a rehearing.  A change of heart is not a sufficient grounds to warrant a rehearing. In re Koroly, 145 Mich App 79, 87; 377 NW2d 346 (1985).

Finally, the birth father made an equal protection argument because he was treated differently than the birth mother.  The Court points out that this argument was previously rejected in In re RFF, 242 Mich App 188, 210; 617 NW2d 745 (2000):

In short, mothers and fathers of children born out of wedlock are not similarly situated. There are several differences between mother and fathers of out of wedlock children, including the identity of the mother of the child born out of wedlock is rarely in question and that “only a father can by voluntary unilateral action make an illegitimate child legitimate.” Moreover, the mother of a child born out of wedlock has made the decision to give birth to the child rather than have an abortion and, as a result of that decision, has carried the child in her womb for nine months. Accordingly, the gender-based classification created by [section] 39 is substantially related to the achievement of the Adoption Code’s legitimate objective. Appellant’s equal protection claim is without merit. [Citations omitted.]

The Court of Appeals concluded with a nice summary of the case:

In sum, the record here demonstrates that [the birth father] and his family ultimately concluded that he should father the child. We have no reason to doubt that, as he claimed in his petition for rehearing, [the birth father] would be a good father. Nonetheless, while we sympathize with his situation, we cannot overlook the concerns and interests of the birth mother, the adoptive parents and, of course, the child. The statutory scheme that we apply here was established to fairly accommodate the interests of all involved interested parties, in a process that is orderly and predictable. That process cannot be undermined simply because, as the trial court correctly determined was the case here, one of the parents has a change of heart regarding a decision to terminate parental rights.

It was fairly obvious to the Court of Appeals, and it should be obvious to anyone reading this opinion, that the birth father told his Catholic parents about this child and the adoption and they freaked out.  He filed a petition and was honest in that pleading.  It was not until an attorney was retained that his story changed and he was somehow duped into signing the custody statement.  A word to any lay persons out there, hire the attorney before you file anything, sign anything or say anything in open court.  The attorney was left with a poor case because the client’s statements were all the courts needed to hear.

You can view or download the case here: In re KCS

Adoption Forum I Final Report

The Adoption Forum I Final Report has been posted, providing an evaluation and statistical analysis of the 13 Michigan counties with the largest adoption dockets after collaborative work between the courts, local offices of the Michigan Department of Human Services, and other child welfare stakeholders.  Between March 1, 2008, and March 1, 2009, the counties participating in the Adoption Forum were able to increase adoptions by 14 percent for permanent wards.

The participating counties were:

• Berrien
• Macomb
• Calhoun
• Monroe
• Genesee
• Muskegon
• Ingham
• Oakland
• Jackson
• Saginaw
• Kalamazoo
• Wayne
• Kent

The participating counties employed a number of mechanisms to increase the number of adoptions of permanent wards.  These include:  streamlining requirements for adoption (e.g., paperwork); sending the termination order directly to the adoption caseworker to ensure an immediate response after termination; publicizing Adoption Day; judges meeting monthly with CASAs, local DHS, and prosecutor to discuss barriers to timely adoptions and solutions; meetings with the private sector to recruit adoptive families; and creation of a “rocket docket,” a special docket for backlogged cases.  There were a number of other methods employed that are not listed here.

To download or view the report, click here: Adoption Forum I – Final Report 2009

In Re CW

This is an unpublished case from the Court of Appeals.  Petitioners began caring for the child when she was four days old and were appointed her guardians in June 2006, because respondent parents had been in and out of prison the previous several years. In July 2008, petitioners filed a petition to terminate respondents’ parental rights, which the trial court granted following an evidentiary hearing.

The trial court terminated respondents’ parental rights under MCL 712A.19b(3)(f), which provides:

(3) The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:

* * *

(f) The child has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and both of the following have occurred:

(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.

Petitioners had the burden of proving both subsections (i) and (ii) by clear and convincing evidence. In re ALZ, 247 Mich App 264, 272; 636 NW2d 284 (2001); In re Hill, 221 Mich App 683, 691; 562 NW2d 254 (1997).

Respondent Father did not dispute that he failed to provide regular and substantial support for the child during the statutory two-year period, but argued that he lacked the ability to do so because of his incarceration. Section 19b(3)(f)(i) considers whether a respondent provided support if he had the ability to do so or, if an order of support had been entered, whether the respondent substantially complied with the order. It was undisputed that no support order had been entered against respondent Wheeler and thus petitioners were required to prove that respondent Father had the ability to provide support and failed or neglected to regularly and substantially do so for at least two years without good cause.

The evidence showed that respondent Father had been continuously incarcerated since late 2005. Although he was in prison, the statute does not provide an exception for incarcerated parents who, despite their incarceration, “may still retain the ability to comply with the support and contact requirements of the statute.” In re Caldwell, 228 Mich App 116, 121; 576 NW2d 724 (1998).  In this case, petitioners proved that respondent Father was in prison and that he had not paid support during the two-year period preceding the filing of the petition. However, they presented no evidence to show that he had the ability to pay support.  Indeed, one of the Petititioners admitted that he did not have the ability to pay support while he was incarcerated. Therefore, the Court found petitioners failed to prove § 19b(3)(f)(i) by clear and convincing evidence and reversed the trial court’s termination of parental rights with respect to him.

Respondent Mother did not challenge the trial court’s finding that she failed to provide regular and substantial support for the statutory two-year period despite an ability to do so. Instead, she argued only that she did not have the ability to visit, contact, or communicate with the child and, therefore, the evidence was insufficient to prove § 19b(3)(f)(ii).  The Court held that respondent Mother had no contact with the child after a visit in November 2005.

A parent does not have the ability to visit, contact, or communicate with a child when a court order has been entered terminating visitation rights. In re Kaiser, 222 Mich App 619, 623-625; 564 NW2d 174 (1997). In this case, there was no evidence that any order prohibiting visitation had been entered at any time between July 2006 and October 2007. Respondents’ motion to terminate the guardianship was denied in November 2007. While respondent Mother asserted that she interpreted the court’s decision as prohibiting any contact with the child and petitioners, the trial court took judicial notice of the order that was entered after that hearing, which simply continued the guardianship and did not address the issue of visitation. The Court held that respondent Mother had not shown that she was legally prohibited from contacting the child between November 2007 and July 2008 and affirmed the termination of her parental rights.

The lesson to be learned in this case is that in a termination petition filed under MCL 712A.19b(3)(f) where a respondent has failed to pay support and no existing support order is in place, it is the burden is on the petitioner to show respondent has the ability to pay regular and substantial support.  Absent any evidence of this, the case must be dismissed.

All in all, this case was a loss for the petitioners because they were seeking to terminate parental rights to pave the way for an adoption.  Now that father has retained his legal rights, their ability to adopt the child is frustrated.

To download or view the case, click here: In re CW.