Martyn, In re
| Decision Date | 18 September 1987 |
| Docket Number | Docket No. 94202 |
| Citation | 161 Mich.App. 474,411 N.W.2d 743 |
| Parties | In re Clarence George MARTYN III, Minor. 161 Mich.App. 474, 411 N.W.2d 743 |
| Court | Court of Appeal of Michigan — District of US |
[161 MICHAPP 475] UAW-GM Legal Services Plan by Kathleen M. Cummins, Pontiac, for petitioners-appellees.
Sterling, Schilling & Thornborn by Ronald F. Schilling, Pontiac, for respondent-appellant.
Jon Gaskell, guardian ad litem, Clarkston, for Clarence George Martyn, III.
Before WAHLS, P.J., and MAHER and J.T. KALLMAN, * JJ.
Respondent, Clarence George Martyn, Jr. appeals as of right from the June 24, 1986, order of the Oakland Probate Court terminating his parental rights as to Clarence George Martyn III under Sec. 51(6) of the Michigan Adoption Code, M.C.L. Sec. 710.51(6); M.S.A. Sec. 27.3178(555.51)(6), for failure to provide regular support and substantially failing to contact or communicate with the minor child for a period of two years.
Respondent married petitioner Mary Dusseau in 1971. A son, Clarence George Martyn III (Butch), was born on May 9, 1972. A judgment of divorce was entered on February 22, 1974.
The divorce judgment awarded petitioner legal custody of Butch. The judgment provided respondent with visitation rights each Wednesday and Sunday, plus one overnight visit per month. When the child [161 MICHAPP 476] reached age two, respondent was allowed two overnight visits per month. When the child reached age three, respondent was allowed visitation for one week in the summer. After age five, respondent was allowed two weeks of visitation in the summer. Respondent was ordered to pay $15 per week in child support as well as the child's medical, dental and hospital expenses.
On December 27, 1976, petitioner married Gary Dusseau. Butch had resided with petitioner prior to her remarriage. Afterward, Butch continued to reside with petitioner and Gary Dusseau through the termination hearing on May 8, 1986. For the duration of his marriage to petitioner, Gary Dusseau has provided the primary support for Butch.
Respondent provided some support for Butch from the time of his divorce through July 1, 1982. There were, however, frequent interruptions in payments and ten show cause hearings were scheduled. The earlier interruptions in support were triggered in part by periods of unemployment and, in part, by simple noncompliance. However, in 1982, respondent allegedly became disabled as a result of a 1970 back injury. In June of 1982, respondent left employment at a doctor's clinic because it entailed heavy lifting. From June of 1982 until June of 1983, respondent received an unspecified amount in unemployment compensation benefits. From June of 1983 through the time of the termination hearing, respondent received $145 per month in general assistance benefits supplemented by $75 per month in food stamps. Respondent also earned some money in that time period from a newspaper route. It is undisputed that respondent paid no child support after July 1, 1982.
Respondent visited Butch sporadically between the time of his divorce and 1981. In part, the lack of visitation in that time period was due to petitioner's objections to respondent's taking Butch to [161 MICHAPP 477] his girlfriends' homes. The problem was complicated by respondent's discomfort in visiting his son in petitioner's home, particularly after her remarriage. However, in 1981, respondent began living with Dianne Alexander, whose home was acceptable to petitioner for visits.
From 1981 until 1983, respondent saw Butch more frequently. Nevertheless, there were periods of two to six months without a visit even in this time period. Respondent remembered only three possible visits with his son in 1983: (1) Memorial Day; (2) Halloween; and (3) Christmas. Petitioner remembered only two visits between respondent and Butch in 1983--Memorial Day and Halloween. Dianne Alexander recalled that there were regular visits--every four to six weeks--until October of 1983. At that time, Alexander began working odd hours and her car was unavailable to respondent. It is undisputed that respondent did not visit Butch after October or December of 1983. Respondent did, however, remember calling Butch on one occasion.
On May 1, 1985, the Dusseaus filed a petition to terminate respondent's parental rights so that Gary Dusseau could adopt Butch. Hearings were held on October 29, 1985, through May 8, 1986. On June 24, 1986, the probate court issued an order terminating respondent's parental rights.
On appeal, respondent argues that the statutory requirements for terminating his parental rights were not proven at the evidentiary hearing. The statute at issue, Sec. 51(6) of the Michigan Adoption Code, provides:
"(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." M.C.L. Sec. 710.51(6); M.S.A. Sec. 27.3178(555.51)(6).
A parent's right to the custody of his or her children is a liberty interest protected by the Fifth and Fourteenth Amendments to the United States Constitution. In re Gentry, 142 Mich.App. 701, 705, 369 N.W.2d 889 (1985). The right to custody is not an absolute right, however, and may be terminated. Doe v. Oettle, 97 Mich.App. 183, 186, 293 N.W.2d 760 (1980). A petitioner in an adoption proceeding must prove by clear and convincing evidence that termination of parental rights is warranted. In re Colon, 144 Mich.App. 805, 813, 377 N.W.2d 321 (1985). The standard of review in termination of parental rights cases is the "clearly erroneous" standard. In re Cornet, 422 Mich. 274, 373 N.W.2d 536 (1985). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, after examining all of the evidence, is left with a definite and firm conviction that a mistake has been made. In re Riffe, 147 Mich.App. 658, 382 N.W.2d 842 (1985), lv. den. 424 Mich. 904 (1986).
[161 MICHAPP 479] Respondent first challenges the probate court's findings regarding subparagraph (a) of the statute quoted supra--his failure to provide support payments. According to respondent, he was unable to provide support. Indeed, there is some evidence of record indicating that respondent was unable to provide even for himself. On the other hand, it is undisputed that respondent was under a continuing order to pay $15 per week in child support for Butch. It is also undisputed that respondent paid no support after July 1, 1982.
As we have previously explained:
"For the above reasons, we hold that, in cases where a child support order has been entered, MCL 710.51(6)(a) may be satisfied by showing that the natural parent has 'failed to substantially comply with the [support] order, for a period of 2 years or more before the filing of the petition' ". In re Colon, supra, 144 Mich.App. at 811-812, 377 N.W.2d 321.
[161 MICHAPP 480] Thus, under subparagraph (a) as construed in Colon, the probate court was entitled to find a failure to support.
We also observed in Colon that the language of Sec. 51(6) of the Adoption Code is permissive rather than mandatory:
In re Colon, p. 812, 377 N.W.2d 321.
Thus, we concluded that the probate court had discretion to consider...
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