In re JPV

• Docket Number: 359369
• Decision Date: 18 August 2022
• Citation: In re JPV, 359369 (Mich. App. Aug 18, 2022)
• Parties: In re JPV, Minor.
• Court: Court of Appeal of Michigan

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In re JPV, Minor.

No. 359369

Court of Appeals of Michigan

August 18, 2022

UNPUBLISHED

Van Buren Circuit Court Family Division LC No. 2020-000704-AY

BEFORE: SAWYER, P.J., AND SHAPIRO AND REDFORD, JJ.

PER CURIAM.

Respondent-father appeals as of right the order terminating his parental rights to the minor child, JPV, under MCL 710.51(6). On appeal respondent argues that the termination of his parental rights was improper because (1) the trial court improperly concluded that the statutory basis for termination had been met and (2) the trial court neglected to address whether termination was in JPV's best interests. We affirm.

JPV was born to petitioner-mother and respondent, who was her boyfriend at the time. Seven months after JPV's birth respondent was named JPV's legal father and granted parenting time. Respondent did not pay, and just three months later, he was issued an order to show cause. Support payments were eventually withheld from respondent's income tax refunds and, later, his unemployment benefits. Respondent was credited for twice paying $750 toward his arrearage, but these came only after being arrested for failure to pay child support or appear for show-cause hearings.

When JPV was almost three years old, petitioner-mother obtained an ex parte restraining order for fear of JPV's safety after a report of domestic violence involving respondent and his girlfriend. Respondent never objected to the restraining order or attempted to gather any additional information about it. Petitioner-mother did not hear from respondent directly or indirectly after the order was issued, and respondent never attempted to communicate with JPV on any of his birthdays, or send any cards or gifts.

Two years later, however, respondent moved for parenting time and visitation with JPV. Respondent did not appear in person for hearings on the motion, and, as a result, it was dismissed. Almost another year after that, when JPV was 61/2 years old and respondent had not made any further attempts to communicate with JPV, mother and stepfather filed for stepfather's adoption of JPV as well as termination of respondent's parental rights.

The trial court found that respondent had substantially failed to make attempts to have contact with JPV for at least two years and that respondent's child support history "was extremely limited" until very late in the two-year period, when the Friend of the Court withheld payments from respondent's unemployment compensation. Overall, the trial court determined that the unemployment payments did not effectively change respondent's "lack of engagement with paying support." After finding that respondent failed to substantially comply with support orders or make any contact with JPV, the trial court granted the petitions for termination and stepparent adoption.

On appeal, respondent argues that the trial court clearly erred when it determined that respondent had not contacted JPV in the two years preceding the filing of the petition because respondent was bound by court order to have no contact with petitioner-mother or JPV. He also argues that the trial court clearly erred when it determined that respondent had not substantially complied with support because payments were made and respondent was not in arrears at the time of the hearing.

A trial court's findings of fact are reviewed for clear error. See MCR 2.613(C); In re LFOC, 319 Mich.App. 476 480; 901 N.W.2d 906 (2017). "A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake was made." In re ALZ, 247 Mich.App. 264, 271-272; 636 N.W.2d 284 (2001).

MCL 710.51(6) controls when a termination of a noncustodial parent's rights is requested pending stepparent adoption. In re ALZ, 247 Mich.App. at 272. MCL 710.51(6) states 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 in section 39(2) 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 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. A child support order stating that support is $0.00 or that support is reserved shall be treated in the same manner as if no support order has been entered.

(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.

To prove that termination of the noncustodial parent's rights is warranted, a petitioner must show by clear and convincing evidence that both subsections (a) and (b) are met. In re ALZ, 247 Mich.App. at 272. "[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 N.W.2d 398 (2013).

This Court has held that "a parent who makes only two visits and one telephone call to his child in two years has 'substantially failed' to visit, contact, or communicate with the child despite the ability to do so within the meaning of the statute." In re ALZ, 247 Mich.App. at 275, citing In re Martyn, 161 Mich.App. 474, 482; 411 N.W.2d 743 (1987). In In re Caldwell, 228 Mich.App. 116, 121-122; 576 N.W.2d 724 (1998), this Court held that even though an incarcerated father could not physically visit with his son, termination was still proper because the father wrote only three letters and otherwise made third-party contact through the child's grandparents. "Even assuming these contacts could be considered respondent's contacts for purposes of the statute, they would not satisfy the statute because they were infrequent." Id. at 122.

In this case, respondent made one meaningful attempt to have contact with JPV by moving the trial court for parenting time. Respondent made no efforts to contact JPV or mother directly and cited mother's restraining order as the reason. In In re Simon, 171 Mich.App. 443, 449; 431 N.W.2d 71 (1988), a respondent-father claimed that he did not contact his daughter in the two-year period because a term of his divorce decree prohibited communication with her. Under the decree, "[v]isitation was denied to the respondent until such time as he showed cause why visitation would be in the child's best interest." Id. at 445. The respondent's argument failed, however, because he took no action to address that term. Id. at 449. "While we recognize respondent's claim that the divorce decree prohibited visitation, we also are cognizant of the fact that respondent never requested visitation privileges." Id.

In this case, the January 2017 restraining order contained information on how respondent could object. Respondent admittedly did not read the order carefully enough to know what he could or could not do, nor did he take any further action on his own volition in response to it. Like the respondent in In re Simon, respondent did not otherwise attempt to communicate with his child during the two-year period. Because respondent took only one meaningful opportunity to contact JPV, the trial court did not clearly err when it determined that respondent had substantially failed to contact JPV during the two years before the petition was filed.

With regard to child support payments, respondent argues that because he was no longer in arrears at the time of the hearing, the trial court erred when it determined that respondent failed to substantially and regularly comply with the support order.

MCL 710.51(6)(a) "addresses two independent situations: (1) where a parent, when able to do so, fails or neglects to provide regular and substantial support, and (2) where a support order has been issued and the parent fails to substantially comply with it." In re Newton, 238 Mich.App. 486, 491; 606 N.W.2d 34 (1999).

Substantial compliance in terms of child support payments is not well-defined in Michigan caselaw, but other states have assigned possible definitions. One of these definitions states that substantial compliance is "compliance which substantially, essentially, in the main, for the most part satisfies the means of accomplishing the objectives sought to be effected by the decree and at the...