The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
IN RE IWR, MINOR. UNPUBLISHED
June 22, 2023
No. 363762
Emmet Circuit Court
Family Division
LC No. 22-001551-AY
Before: CAMERON, P.J., and MURRAY and GADOLA, JJ.
PER CURIAM.
In this stepparent adoption proceeding, respondent appeals as of right the trial court’s order
terminating her parental rights to her minor child. Because we conclude that the trial court did not
clearly err in determining that clear and convincing evidence established the statutory grounds for
terminating respondent’s parental rights and proceeding with the petition for stepparent adoption,
we affirm.
I. BACKGROUND FACTS
Petitioner-father and respondent-mother were never married. Father acknowledged paternity
pursuant to MCL 722.1001, and the circuit court entered an initial custody and support order on
August 23, 2012. Mother was granted custody, and father was ordered to pay child support. In
early 2019, the parents were awarded equal parenting time.
On December 5, 2019, father filed a verified ex parte motion alleging, inter alia, that
mother was using methamphetamine, had left IWR in his custody for more than two weeks and
not returned, custody of mother’s other minor child, IWR’s younger half-brother, had been
awarded to respondent’s parents, respondent was homeless, and she had posted on Facebook that
she wanted to take IWR and leave the state. The trial court entered an ex parte order placing IWR
in father’s “sole care and custody.” Respondent was ordered to pay monthly child support of $238.
Although respondent’s parenting time was suspended until further order of the court, she was not
prohibited from having other contact with IWR. Respondent did not object to entry of the order.
On June 30, 2020, respondent was ordered to show cause why she should not be held in
contempt of court for failing to pay child support. She was $1,479 in arrears at this time. As of
November 6, 2020, respondent’s arrearage had increased to $1,755, when an income-withholding
order was established and the show-cause proceeding was dismissed.
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By January 4, 2021, respondent was again ordered to show cause for being $1,866 in arrears
on her child-support payments. She failed to appear, and a bench warrant was issued for her arrest.
By February 15, 2022, respondent owed $4,971.08 in child support. The bench warrant was
discharged and the show-cause proceedings were adjourned for monitoring because respondent
reportedly had a new job and had made a small payment.
On March 23, 2022, a new income-withholding order was entered, and the show-cause
proceedings were again adjourned to allow further monitoring. The show-cause proceedings were
dismissed on June 23, 2022, because of the income withholding payments; respondent still owed
$1,681.18 in past-due support.
On July 5, 2022, respondent filed a motion to establish parenting time, asserting that she
had completed drug treatment, had been sober for eight months, was employed, and had a suitable
home with her parents. Two weeks thereafter father and his wife filed a petition for stepparent
adoption and later filed a supplemental petition in which they sought to terminate mother’s parental
rights. Respondent’s petition for parenting time was adjourned pending the results of the
stepparent adoption proceedings.
The trial court terminated respondent’s parental rights because it concluded the evidence
clearly and convincingly showed that for at least two years she had not substantially complied with
a child-support order, having failed to pay any support for extended periods of time and
accumulating substantial arrearages, including a child-support arrearage of more than five months
at the time the petition was filed. The trial court also found that despite being able to do so
respondent had not regularly and substantially visited, contacted, or communicated with the child.
Respondent now appeals.
II. STANDARD OF REVIEW
This Court reviews a finding that a statutory ground for termination has been proved by
clear and convincing evidence for clear error. MCR 3.977(K); In re White, 303 Mich App 701,
709; 846 NW2d 61 (2014). “A decision qualifies as clearly erroneous when, although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been made.” In re Williams, 286 Mich App 253, 271; 779 NW2d
286 (2009) (quotation marks and citation omitted).
III. ANALYSIS
The trial court did not clearly err in concluding that there was clear and convincing
evidence to support a statutory ground to terminate respondent’s parental rights. The trial court
terminated respondent’s parental rights pursuant to MCL 710.51(6), which states in pertinent part
as follows:
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
. . . of this chapter, and if a parent having custody of the child according to a court
order subsequently marries and that parent’s spouse petitions to adopt the child, the
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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.
“[I]n applying MCL 710.51(6), courts are to look at the two-year period immediately
preceding the filing of the termination petition.” In re TALH, 302 Mich App 594, 597-598; 840
NW2d 398 (2013). Petitioners in a stepparent adoption proceeding have the burden of establishing
by clear and convincing evidence that termination of the noncustodial parent’s parental rights is
warranted. In re Hill, 221 Mich App 683, 691; 562 NW2d 254 (1997).
The evidence clearly and convincingly shows that respondent failed to substantially
comply with a child-support order for the two-year period immediately preceding the July 19, 2022
petition for stepparent adoption. A court deciding the issue of termination of parental rights in an
adoption case “must follow the original determination regarding the respondent’s ability to support
the child in the support order as a matter already settled by a judgment.” In re SMNE, 264 Mich
App 49, 53; 689 NW2d 235 (2004). The court does not inquire into a respondent’s ability to
provide support where a child support order has been entered because the “ability to pay” has
already been factored into the order. Id. at 54.
Respondent argues that the trial court clearly erred when finding that she had not
substantially complied with the child support order because most of her child support arrearage
was paid at the time the petition was filed. However, as the trial court noted, the purpose of child
support is to ensure that the child’s immediate needs are cared for on a continuing basis. Landry
v Roebuck, 193 Mich App 431, 434; 484 NW2d 402 (1992). This Court recently determined that
“under MCL 710.51(6)(a), a parent substantially complies with a child support order when they
have made a considerable quantity of the payments required by the order.” In re NRC, Minor, ___
Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 362915); slip op at 4. Respondent asserts
that the trial court employed a legal standard for “substantially comply” not comporting with this
recent decision, given that she had paid $6,522 of the $7,378 support obligation, including a large,
lump-sum payment.
Respondent argues that In re NRC supports her position that she substantially complied
with the trial court’s child support order. But the facts in this case are distinguishable from those
in In re NRC. In that case, the noncustodial parent paid child support for 13 of the months in the
applicable two-year period, and reduced or eliminated any arrearage by making several lump-sum
payments. At the time the petition was filed, the noncustodial parent was only $146, or about one
week, in arrears. In the present case, respondent was ordered to pay $238 per month effective on
December 5, 2019, which remained in effect for the applicable two-year period. Between July 19,
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2020, and July 19, 2022, respondent made only 11 of the 24 monthly payments when they were
due. Twice during the two-year period, she made no child support payments for periods of six and
seven months, respectively. Respondent was the subject of two show-cause proceedings, a bench
warrant for her arrest, and ongoing monitoring and income withholding orders because she failed
to comply with the child support order. Unlike the noncustodial parent in In re NRC, she did not
often make large payments to reduce or eliminate the arrearage. Respondent made only one large
payment of $3,173 in May 2022, which was applied to her past-due support obligation, and at the
time the petition was filed she was $1,245.19, or the equivalent of more than five months, in
arrears. Undisputed evidence supported the trial court’s conclusion that other than buying some
clothes that remained in a box at her parents’ house respondent provided no additional support for
the child during that time, such that only petitioner-father met IWR’s immediate needs for food,
clothing, and other care. Thus, employing the In re NRC legal definition of “substantially comply”
to the facts of this case does not warrant reversal.
Moreover, the evidence clearly and convincingly showed that respondent had the ability to
visit, contact, or communicate with the child, but regularly and substantially failed or neglected to
do so for a period of two years or more preceding the filing of the petition. Terminating a
noncustodial parent’s parental rights in a stepparent adoption proceeding is proper when the
noncustodial parent has both failed to substantially comply with a child support order and, despite
having the ability to do so, has regularly and substantially failed to visit, contact, or communicate
with the child for a period of 2 years preceding the filing of the petition. In re Simon, 171 Mich
App 443; 431 NW2d 71 (1988).
It was undisputed that, although respondent’s parenting time had been suspended by court
order, there was no legal barrier to her contacting or communicating with IWR. It was further
undisputed that respondent had no in-person or telephone contact with IWR during the two-year
period, and did not attempt to modify the December 5, 2019 order until July 5, 2022, two weeks
before the adoption petition was filed, at which time IWR had been in petitioners’ care for more
than two and a half years.
Respondent argues that the trial court clearly erred in finding that she had the ability to
visit, contact, or communicate with IWR because it did not properly consider petitioner-father’s
efforts to keep her out of IWR’s life. When a custodial parent takes affirmative steps to prevent a
noncustodial parent from contacting a child, the noncustodial parent lacks the ability to visit,
contact, or communicate with the child. In re ALZ, 247 Mich App 264, 273; 636 NW2d 284 (2001).
In other words, a custodial parent may not refuse a noncustodial parent contact with the child and
then use that lack of contact against the noncustodial parent to support a petition for stepparent
adoption. Id. at 277.
In this case, respondent argues that petitioner-father unilaterally determined that she would
not have contact with IWR unless she petitioned the trial court for reinstatement of her parenting
time. Respondent highlights the evidence that respondent-father cut off contact between the child
and his maternal grandmother, who was the guardian of IWR’s half-brother, after learning that
IWR had received a Valentine’s Day card and gift from respondent while in the maternal
grandmother’s care. Respondent contends that this demonstrated petitioner-father’s steadfast
resolve to prevent respondent from having any contact with IWR, even at the expense of the child’s
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close and healthy relationship with both his maternal grandmother and his half-brother. This claim
is unpersuasive.
The trial court reasonably concluded that respondent was able to re-establish and maintain
contact with IWR because she understood that she had the prerogative to file a motion to reinstate
her parenting time whenever she wished. Moreover, her contention that she was unable to contact
petitioner-father was not supported by the evidence. His home address and phone number had not
changed, and were readily available through the Friend of the Court. Father testified that he did
not block respondent from calling him. He additionally explained that respondent understood that
she could re-establish a relationship with IWR by going through “proper channels,” meaning by
either contacting father directly or by filing a motion with the trial court. The record shows that
respondent made little effort to contact father. She testified that she “periodically” attempted to
contact him via texting, but was unable to recall any details of such attempts. Respondent sent one
Facebook message each to the paternal grandmother and great-grandmother, and left “a couple”
of letters, a Christmas gift from Santa, and a Valentine’s Day card at her parents’ home. The trial
court reasonably concluded that respondent’s few attempts fell short of meaningful efforts to
contact or communicate with IWR on a regular basis. Further, respondent’s claim that father
thwarted her attempts to contact IWR is contradicted by her testimony that she purposefully did
not contact IWR because of her drug addiction. For these reasons, the trial court did not clearly
err in finding that father appropriately exercised his authority as the custodial parent to protect
IWR from respondent’s coming “in and out” of the child’s life because of her severe drug
addiction.
Because we conclude that the trial court did not clearly err in finding that petitioner had
established both prongs of MCL 710.51(6) by clear and convincing evidence, we affirm.
/s/ Thomas C. Cameron
/s/ Christopher M. Murray
/s/ Michael F. Gadola
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