In re ALZ

Decision Date15 November 2001
Docket NumberDocket No. 230788.
Citation636 N.W.2d 284,247 Mich. App. 264
PartiesIn the Matter of A.L.Z., a Minor. James Samuel Van Dyke and Michelle Leigh Van Dyke, Petitioners-Appellants, v. Scott P. McHugh, Respondent-Appellee.
CourtCourt of Appeal of Michigan — District of US

Kenneth T. Saukas, P.C. (by G. Robert Carpenter), Grand Rapids, for the petitioners.

Donald W. Garthe, Grand Rapids, for the respondent.

Before NEFF, P.J., and DOCTOROFF and WILDER, JJ.

PER CURIAM.

Petitioners Michelle L. and James S. Van Dyke appeal as of right from the family court's order denying their petition for stepparent adoption of A.L.Z. (born May 29, 1994) pursuant to M.C.L. § 710.51(6). We affirm.

Respondent father Scott P. McHugh and petitioner mother Michelle Van Dyke began dating in February 1993 while they were high school students in Grand Rapids. After learning in October 1993, that petitioner mother was pregnant, the couple planned to marry and raise the child together. Three weeks after their daughter, A.L.Z., was born in May 1994, respondent admitted to petitioner mother that he molested two young neighborhood girls when he was fifteen years old. On learning this information, petitioner mother ended her relationship with respondent and informed him that she did not want him to have unsupervised visits with A.L.Z. Respondent visited A.L.Z. regularly for the first few months of her life.

In 1994, petitioner mother asked the Department of Social Services not to establish paternity or pursue child support from respondent because she believed he was a danger to A.L.Z. and it would not be in the child's best interests to have contact with respondent. In September 1994, respondent moved away to attend Eastern Michigan University, approximately 2½ hours by automobile from Grand Rapids. Respondent did not regularly visit A.L.Z. while he was at school and his last visit with her was in April 1995. In October 1995, respondent told petitioner mother that he wanted to support A.L.Z.; however, he never contributed to her support. During that same period, petitioner mother told respondent that if he truly cared for A.L.Z., he should "let her have a normal life and find a father."

Respondent had no contact with petitioner mother or A.L.Z. between October 1995 and December 1998, and claimed that he did so because petitioner told him to "leave them alone or stay out of their lives." In a letter dated December 15, 1998, respondent wrote petitioner mother the following:

This letter has been a long time in coming. I have come to a point in my life that is getting to a degree of certainty. There is no way to say this, than to say it.
I miss my daughter. I realize that I have not been in her life for the past four years, but this has been at your request only. I feel that I have abided by your wishes, but in turn have denied myself and [A.L.Z.] a chance to know her father. I have always wanted to share in the experience of raising her. You were the one who made the decision not to have me in her life. Now I see and feel that it is time for her to know. She will always be a part of me and I a part of her. I would like her to know me if at all possible.
I hope that this does not come as a big surprise to you. I really would like to talk. I am willing to meet you whenever, wherever you wish.

* * *

I am hoping that we can somehow settle this in a cooperative fashion. Make certain you understand, I am not doing this to upset anyone. I just feel that I should be a part of our daughter's life. I will be looking forward to your reply.1

On January 25, 1999, petitioner mother sent the following letter to respondent:

I was quite surprised to receive your letter.

I'm glad to hear that you've reached a point of certainty in your life. However, I do not feel that by disrupting [A.L.Z.'s] life right now by introducing you to her would be of any benefit to her. This is not about what is best for you or what is best for me, it is about what is best for [A.L.Z.] For the past four and a half years, I have had to put her needs in front of my own, and I would hope you would do the same. She is a very well adjusted child and I do not see any sense in putting her through the confusion of trying to explain to her your past and why you've decided now to be a part of her life.

When she is an adult and more capable of understanding the issues surrounding our situation would be a more appropriate time for you to establish a relationship with her. Until then, I would ask that if you truly care for her, you would not pursue this issue for the sake of her future.

On February 5, 1999, respondent filed a complaint seeking an order of filiation and parenting time in the family court. In the complaint, respondent requested an order declaring him to be A.L.Z.'s father and establishing reasonable parenting time. Petitioner mother opposed respondent's request for parenting time; however, she admitted that respondent was A.L.Z.'s father. On March 24, 2000, the family court entered an order establishing respondent's paternity.

On May 26, 2000, petitioner mother and her new husband, petitioner James Van Dyke, petitioned the family court to terminate respondent's parental rights and allow petitioner stepfather to adopt A.L.Z.2 The petition claimed that respondent failed to support or contact A.L.Z. for a period of two years or more. At an October 12, 2000, hearing on the petition, petitioner mother claimed she never prevented the father from contacting A.L.Z. or told him that he could not see her. However, she admitted that she did not want respondent to have contact with the child and told respondent that if he cared about A.L.Z. he would not attempt to see her and would leave her be. Petitioner mother also stated that she believed it would not be in A.L.Z.'s best interests to have contact with respondent until she was at least sixteen years old.

The parties did not dispute that respondent had the ability to contribute to A.L.Z.'s support in the two years before the petition was filed but failed to do so.3 Respondent also admitted that the only attempt he made to contact A.L.Z. during the two years before the filing of this petition was his December 1998 letter to petitioner mother. Respondent further admitted that petitioner mother did not physically stop him from visiting A.L.Z. and that he had the ability to contact her by letter or telephone; however, he did not believe it would be appropriate to "just show up and surprise her like that," and thought it would make petitioner happier if he stayed out of their lives. In addition, respondent stated that he wanted to "get [his] life together" before he attempted to see A.L.Z. again.4

At the conclusion of the October 2000 hearing, the family court entered the following findings of fact and conclusions on the record:

First of all, I would like to compliment Mrs. Van Dyke and Mr. McHugh on the testimony that was provided before the Court today.

* * *

The responses of Mrs. Van Dyke and of Mr. McHugh were brutally honest in response to some very difficult questioning. It is not always the experience of the Court to have such direct, honest, thoughtful, from the heart answers about this very loved little girl and so, although I'm sure this morning was difficult for each of you, I want to thank you for your honest, thorough and thoughtful responses to the questions.
It is clear to me that [A.L.Z.] has an excellent mother who loves her, wants to protect her and make the right decisions on her behalf. Mr. McHugh's testimony with regard to a daughter that he does not know, also seems to be heartfelt as well.
The Court first must consider whether the non-custodial parent has failed to support [A.L.Z.], having the ability to support the child for two years or more before the filing of the petition. The testimony on this issue is clear and uncontested. Mr. McHugh has had the ability to support or assist in supporting [A.L.Z.] and he has not. He has had the ability to send cash, to send weekly checks and he has failed to do so.

* * *

The more difficult issue is whether the non-custodial parent has the ability to visit, contact or communicate with [A.L.Z.] and has regularly or substantially failed for two years before the filing of the petition, which would be the period from May of 1998 through May of 2000. The Court has considered the testimony that Mr. McHugh sent to Mrs. Van Dyke, a letter dated ... December of 1998. The December 1998 letter, which has been received into evidence as Exhibit # 1, clearly asks for contact with the child. Also the January 1999 response very clearly, sets forth the position of the mother, as she's testified in Court today. She requests that Scott not have contact with [A.L.Z.] because she does not believe it to be in her best interests. A paternity action was commenced in January or February of 1999 following the rejection response from Mrs. Van Dyke.

In that complaint, Mr. McHugh asks for contact with the child. In the response to the paternity action, again, the mother's response is clearly set forth, that she doesn't believe it to be in [A.L.Z.'s] best interests, given her age, and the father's lapse of contact.

It is the Court's position that the mother cannot refuse contact and then rely on the lack of contact to meet the statutory basis. The father, frankly, has not been a very good dad. He has made horrible decisions pertaining to [A.L.Z.] He has been selfish, immature, and irresponsible, but, at some point, he did attempt to change his relationship with [A.L.Z.] His attempts to reintroduce himself to [A.L.Z.] were done with her best interests in mind. He was able to articulate that he shouldn't call [A.L.Z.] and say, "Hey [A.L.Z.], I'm your dad."... He may have been able to physically go to her home, but that wouldn't be in anyone's best interests. He did what was the logical thing, given the...

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