Stepparent Adoption

Old Spouse a louse, drug addiction and criminal charges, new spouse in the house,just how can they adopt!

Issues: Stepparent adoption; Termination of parental rights pursuant to § 51(6) of the Adoption Code (MCL 710.51(6)); In re ALZ; In re BZ; In re SMNE; Special deference to the trial court's findings based on its assessment of the witnesses' credibility; H J Tucker & Assoc., Inc. v. Allied Chucker & Eng'g Co.

Holding subsections (a) and (b) of § 51(6) were both established by clear and convincing evidence, the court affirmed the trial court's order terminating the respondent-mother's parental rights pursuant to the Adoption Code.

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 if respondent had the ability to pay support under the first clause of § 51(6)(a).
The court held the trial court did not clearly err in finding 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 did not clearly err in determining 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.

The court also held the trial court did not clearly err in finding 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.

The trial court did not clearly err in determining § 51(6)(b) was proved by clear and convincing evidence. Affirmed.

THE LAW

The standards for an involuntary termination of the noncustodial birthparent’s parental rights, are set forth in MCL 710.51(6). Under the statute, parental rights are subject to termination by the court 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. MCL 710.51(6).
The petitioner in an adoption proceeding must prove by clear and convincing evidence that termination of parental rights is warranted. Moore v Newton (In re Newton), 238 Mich App 486, 606 NW2d 34 (1999). Petitioner need prove only substantial failure to comply with a support order for two years prior to filing the petition and is not required to prove the other parent’s ability to comply with the support order because the ability to pay has already been factored into the order. In re Hill, 221 Mich App 683, 562 NW2d 254 (1997); In re Meredith, 162 Mich App 19, 412 NW2d 229 (1987).

THE STATUTE

710.51 Order terminating rights of parents or person in loco parentis; extension of time; conditions; child as ward of court; termination of jurisdiction; marriage of petitioner to parent having legal custody; placement without making child ward of court; evidence; order terminating rights of divorced or unmarried parent not having legal custody; conditions; consent to services for child by prospective adoptive parents.
Sec. 51.

(1) Not later than 14 days after receipt of the report of investigation, except as provided in subsections (2) and (5), the judge shall examine the report and shall enter an order terminating the rights of the child's parent or parents, if there was a parental consent, or the rights of any person in loco parentis, if there was a consent by other than parents, and approve placement of the child with the petitioner if the judge is satisfied as to both of the following:

(a) The genuineness of consent to the adoption and the legal authority of the person or persons signing the consent.

(b) The best interests of the adoptee will be served by the adoption.

(2) If it is necessary to hold a hearing before entering an order terminating the rights of a parent, parents, or a person in loco parentis, or if other good cause is shown, the time specified in subsection (1) shall be extended for an additional 14-day period.

(3) Upon entry of an order terminating rights of parents or persons in loco parentis, a child is a ward of the court and a consent to adoption executed pursuant to section 43 of this chapter shall not be withdrawn after the order is entered. Entry of the order terminates the jurisdiction of the same court or another court over the child in a divorce or separate maintenance action. If the petitioner for adoption is married to the parent having legal custody of the child, the child shall not be made a ward of the court after termination of the rights of the other parent.

(4) Without making the child a ward of the court, the court may approve placement of a child if the child is placed for adoption in this state by a public or licensed private agency of another state or country and if the law of the sending state or country prohibits the giving of consent to adoption at the time of placement. Before placement of the child in that instance, the sending agency shall tender evidence as the court requires to demonstrate that the agency possesses the necessary authority to consent to the adoption at the time of entry of the final order of adoption. After the sending agency has given evidence of its ability to consent, the agency shall not do anything to jeopardize its ability to grant the required consent before entry of the final order of adoption. After the sending agency gives its consent for the adoption, that consent shall not be withdrawn.

(5) If a parent having legal custody of the child is married to the petitioner for adoption, the judge shall not enter an order terminating the rights of that parent.

(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.

(7) Unless otherwise ordered by the court, the prospective adoptive parents with whom a child is placed pursuant to a court order approving placement under this section may consent to all medical, surgical, psychological, educational, and related services for the child.

-UNEDITED UNPUBLISHED OPINION

S T A T E O F M I C H I G A N C O U R T O F A P P E A L S,
In the Matter of HEAVEN NOELLE WILSON, Minor.,DOUGLAS COLWELL WILSON II and,
CARIANNE WILSON,Petitioners-Appellees,UNPUBLISHED,February 24, 2009,
v No. 287432, Jackson Circuit Court,AMY MARIE JACKSON, Family Division,
LC No. 07-006854-AY,Respondent-Appellant.,Before: Donofrio, P.J., and K. F. Kelly and Beckering, JJ.,PER CURIAM.,e-Journal Number: 41964.
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Respondent appeals as of right from a circuit court order terminating her parental rights
to the minor child pursuant to § 51(6) of the Adoption Code, MCL 710.51(6).
We affirm.

Respondent and petitioner Douglas Wilson II were divorced in January 2005. Wilson
was awarded legal and physical custody of the parties’ daughter. In November 2007, Douglas
Wilson and his new wife, petitioner Carianne Wilson, filed a petition to terminate respondent’s
parental rights for purposes of stepparent adoption. MCL 710.51(6) authorizes termination in
such circumstances if both of the following conditions are met:
(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. [MCL 710.51(6).]
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). "A finding of fact is clearly
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erroneous if the reviewing court has a definite and firm conviction that a mistake has been
committed, giving due regard to the trial court’s special opportunity to observe the witnesses."
In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
Because Wilson’s and respondent’s judgment of divorce reserved the issue of child
support, the trial court was required to determine whether respondent had the ability to pay
support under the first clause of § 51(6)(a). In re SMNE, 264 Mich App 49, 55; 689 NW2d 235
(2004). The trial court did not clearly err in finding that respondent had the ability to pay
support. Despite various difficulties facing respondent because of her drug addiction and
criminal charges, respondent admitted that she earned $300 to $400 a week working as a maid;
her attorney represented that she performed such work from November 2005 to December 2006.
Respondent also testified that she worked at a restaurant some time in 2007. The trial court also
did not clearly err in finding that respondent failed to provide regular and substantial support for
her daughter. Respondent admitted that she never paid any support to Wilson and, although she
bought gifts for the child, most of them were never delivered. Therefore, the trial court did not
err in finding that § 51(6)(a) had been proved by clear and convincing evidence.
The trial court also did not clearly err in finding that respondent had the ability to visit,
contact, or communicate with the child. Both Wilson and respondent testified that she called to
request visitation and that she did visit with the child at various times, although they disagreed
about how often the visits took place. While respondent contends that Wilson failed or refused
to cooperate in arranging visitation, that did not render respondent unable to visit, given that she
had a legal right to a relationship with her child, the judgment of divorce specifically granted her
the right to exercise parenting time, and she did not seek court intervention to facilitate visitation
if she believed her rights were being violated.1 In re SMNE, supra at 51.
In addition, the trial court did not clearly err in finding that respondent regularly and
substantially failed to visit with her child. The evidence showed that respondent had frequent
contact with the child for two weeks in January 2005, additional contact once every few months
through 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. Although respondent claimed that she had
more extensive contact with the child between November 2005 and July 2006, the trial court
rejected her testimony as incredible and found that she did not have regular and substantial
contact. This Court gives "special deference to the trial court’s findings when they are based on
its assessment of the witnesses’ credibility." H J Tucker & Assoc, Inc v Allied Chucker &
Engineering Co, 234 Mich App 550, 563; 595 NW2d 176 (1999); MCR 2.613(C). Therefore,
the trial court did not clearly err in finding that § 51(6)(b) had been proved by clear and
convincing evidence.
1 We note that respondent did file two motions to compel visitation, one in November 2006 and
one in September 2007, but neither was heard.
Because subsections (a) and (b) of § 51(6) were both proved by clear and convincing
evidence, the trial court did not err in terminating respondent’s parental rights to the child.
Affirmed.
/s/ Pat M. Donofrio
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering