Where a petition to terminate a respondent’s parental rights was denied, that decision should be upheld because the respondent’s failure to contact his child was the result of a no-contact order.
“This case arises out of a petition to terminate respondent’s parental rights as part of a stepparent adoption of the minor child, VRK, by petitioner husband. On February 2, 2023, petitioners filed a petition for stepparent adoption of VRK. The petition requested the termination of respondent’s parental rights as the noncustodial parent, and stated that ‘the noncustodial parent has failed to provide support or comply with a support order and failed to visit or contact the adoptee for a period of (two) years or more.’ That same day, petitioner mother filed a supplemental petition and affidavit to terminate respondent’s parental rights. The trial court then ordered a court agent to investigate the matter and report her findings, which occurred in May, 2023, when the court agent recommended approval of the adoption of VRK by petitioner husband.
“A hearing was subsequently held on the petition to terminate respondent’s parental rights. At the conclusion, the trial court determined that respondent was employed and able to support VRK with $856 per month under the Michigan Child Support Formula, but that respondent had not paid anything. Therefore, the court determined that respondent had failed or neglected to provide any support for VRK for a period of two years prior to the filing of the petition to terminate his parental rights under MCL 710.51(6)(a). The trial court, however, concluded that MCL 710.51(6)(b) was not met because, even though respondent did not have any contact with VRK for two years prior to the petition being filed, that was in part because he was under a no-contact order from a prior criminal conviction and did not have the ability to visit, contact, or communicate with VRK. The court held that respondent did not have the ability to contact VRK until July 2021, and because the petition was filed in February 2023, he was not able to contact VRK for the full two years prior to the filing of the petition, as required by statute. The trial court therefore denied the petition.
“On appeal, petitioners argue that respondent’s conduct falls within the purpose of the statute because he essentially abandoned VRK, and it was shown that he was unavailable to consent to petitioner husband’s adoption of VRK under MCL 710.51(6). Petitioners also argue that, as a matter of public policy, respondent cannot use his wrongful criminal conduct as a defense to his parental rights being terminated.
“We conclude that the trial court did not err when it determined MCL 710.51(6)(b) was not satisfied because respondent did not have the ability to visit, contact, or communicate with VRK for a full two years before the petition was filed. Petitioners filed the petition to terminate respondent’s parental rights for the purposes of a stepparent adoption on February 2, 2023, but respondent was not able to visit, contact, or communicate with VRK until July of 2021 because of the no-contact order. Therefore, respondent was only able to contact or visit VRK for about a year-and-a-half, not for the full two years as required by the statute. Petitioners argue the purpose of the statute has been satisfied, but the trial court made no conclusions that respondent abandoned his child, nor was it established that he was unavailable to consent to the adoption. Additionally, the plain language of the statute is what garners our attention, not its supposed general purpose.
“Although petitioners’ argument that the time during which he was subject to the no-contact order should count against him for purposes of MCL 710.51(6)(b) is appealing from an equity point of view, our focus is on the statute. Nowhere in the statute is the ‘wrongful conduct’ rule imposed, and we cannot impose that doctrine into the meaning of ‘ability.’ Because respondent did not have the ‘legal power’ to contact VRK during the time the order was in place, he did not have the ability to do so under the statute.”
Concurring judge’s comments
K.F. KELLY, J. (concurring). “Although I concur that the Court reached the correct result required under the current state of the law, I write separately to express how disturbing it is, and my disagreement with, how MCL 710.51(6) is applied to cases such as this. Here, respondent was under a no-contact order concerning his child because of his conviction and term of imprisonment for offenses including fourth-degree child abuse. In circumstances such as these, where a noncustodial parent is prohibited from seeing the minor child as a result of his own criminal conduct, the two-year requirement under MCL 710.51 should not be a bright-line impediment for petitioners to terminate respondent’s parental rights. Rather the two-year requirement should be a significant, but not insurmountable, consideration for the trial court. Thus, while I agree with the disposition of the case under the prevailing interpretation of MCL 710.51(6), I urge the Legislature to address what, in my view, is a glaring oversight in the law.
“In my view, the trial court should have the discretion to determine whether the wrongful conduct rule here, criminal conduct against the child bars a respondent’s ability to visit the minor child as a consideration when analyzing the two-year requirement under MCL 710.51(6).”
In re VRK; MiLW 08-107992, 4 pages; Michigan Court of Appeals unpublished per curiam; Gadola, J., Murray, J.; K. F. Kelly, J., concurring; on appeal from St. Clair Circuit Court; Steven A. Heisler for appellant; Mary Ann Kirsbaum for appellee.
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