Opinion
No. 349702
02-27-2020
In re MPV, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Eaton Circuit Court Family Division
LC No. 2018-003456-AY Before: FORT HOOD, P.J., and BECKERING and BOONSTRA, JJ. PER CURIAM.
In this stepparent adoption case, respondent-mother appeals by right an order terminating her parental rights to the minor child, MPV, under MCL 710.51(6). Finding no clear error, we affirm.
I. FACTS
Petitioner-father and respondent married in 2009 and divorced in 2015. According to petitioner-father, after the divorce they shared joint legal and physical custody of MPV. Respondent's parenting time was suspended for a period in the fall of 2016, renewed, and again suspended on January 27, 2017. A March 29, 2017 order kept the joint legal custody arrangement, but awarded sole physical custody to petitioner-father.
On July 13, 2017, petitioner-father filed an ex parte motion to modify the parties' custody order, and the court signed an ex parte order suspending respondent's parenting time temporarily. According to an order entered on November 8, 2017, both parties appeared for a referee hearing on July 24, 2017, but adjourned the hearing until August 2, 2017 to allow respondent to clear up outstanding bench warrants. Petitioner-father appeared for the rescheduled hearing, but respondent did not. A default order was entered on August 4, 2017, continuing the suspension of respondent's parenting time; the issues of legal custody, parenting time, and child support were referred to the Friend of the Court for investigation. During the pendency of the investigation, respondent could have asked for a referee hearing to determine if the court should reinstate her parenting time; however, it does not appear that she made such request.
At the end of the investigation, an updated report and recommendation regarding custody, parenting time, and child support was filed. On October 27, 2017, petitioner-father appeared for a referee hearing, but respondent did not. After the hearing, the court entered the November 8, 2017 order granting petitioner-father sole legal and physical custody of the minor and setting certain conditions for respondent to meet before the court would restore her parenting time. Specifically, respondent had to complete a drug and alcohol assessment and three months of random weekly drug screens.
On December 14, 2018, petitioner-father and his wife, as co-petitioner, filed a stepparent-adoption petition. According to the register of actions, respondent received service of the petition by December 17, 2018. On January 23, 2019, respondent filed a motion asking the court to reinstate her parenting time. Petitioners filed a supplemental petition on April 23, 2019, alleging that respondent had failed to substantially support the child or visit, contact, or communicate with the child for a period of two or more years prior to their filing of the initial petition.
Petitioner-father testified at the hearing on the stepparent adoption petition that respondent had not exercised her parenting time since July 2016, and had exercised it only sporadically before then. Contrariwise, respondent testified that she had regularly seen the child until August 1, 2017, and she admitted into evidence a cell phone picture of her and the minor that was date-stamped August 1, 2017. Respondent acknowledged that she was ordered to pay child support during the two-year period before the filing of the petition and that she had failed to do so.
The trial court found that respondent had the ability to provide, and failed or neglected to provide, regular and substantial support for the child for a period of two years or more before the filing of the adoption petition. The trial court also found that respondent had failed to regularly and substantially visit, contact, or communicate with the child when she had the ability to do so. Accordingly, the trial court entered an order terminating respondent's parental rights pursuant to § 51(6) of Michigan's Adoption Code. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews questions of statutory interpretation de novo, In re Hill, 221 Mich App 683, 689; 562 NW2d 254 (1997), and the trial court's factual findings during an adoption code proceeding for clear error, In re ALZ, 247 Mich App 264, 271; 636 NW2d 284 (2001). The trial court clearly errs when there is evidence to support its finding but this Court has the definite and firm conviction that it made a mistake. Id. at 271-272. To be clearly erroneous, a decision must be "more than maybe or probably wrong." In re Sours Minors, 459 Mich 624, 633; 593 NW2d 520 (1999) (quotation marks and citations omitted).
III. REGULAR AND SUBSTANTIAL CONTACT
The Michigan Adoption Code, MCL 710.21 et seq., authorizes a court to terminate the rights of a parent as follows:
(6) 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. [MCL 710.51(6) (footnote omitted).]
Respondent does not contest the trial court's finding that clear and convincing evidence established that respondent had the ability but "failed or neglected to provide regular and substantial support" for the minor. MCL 710.51(6)(a). The sole issue on appeal is whether the trial court clearly erred by concluding that petitioners met their burden to establish § 51(6)(b) by clear and convincing evidence. In applying MCL 710.51(6), courts must "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). In this case, the look-back period is from December 14, 2016 through December 14, 2018.
Respondent first contends that the trial court clearly erred by finding that she had "failed or neglected to visit, contact, or communicate with the child" in two years. In support of her contention, respondent relies on her testimony that she regularly exercised parenting time until July 2017, and that the minor attended a birthday party for another of respondent's children in March 2017. She also relies on the cell phone photo of her and the child date-stamped August 1, 2017, and she points to the January 23, 2019 motion regarding parenting time as a "very recent attempt" to visit the child. But the trial court's decision regarding whether respondent regularly and substantially failed to visit, contact, or communicate with MPV hinged in large part on the credibility of the witnesses.
As indicated, respondent testified that she regularly exercised her parenting time prior to July 2017, but petitioners testified that she did not exercise her parenting time after July 2016. This Court generally will not interfere with the trier of fact's role to determine the weight of the evidence or the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). In addition, two visits in 2017 in no way establish as clearly erroneous the trial court's finding that respondent "regularly and substantially failed or neglected" to "visit, contact, or communicate with the child" for a period of two years. See In re Kaiser, 222 Mich App 619, 624; 564 NW2d 174 (1997) (holding that a respondent's attempts to communicate with his or her children "via birthday cards and telephone calls are not 'regular or substantial' contacts within the meaning of the statute"); In re Martyn, 161 Mich App 474, 482; 411 NW2d 743 (1987) (noting that two visits and one telephone call may not constitute a substantial attempt to contact a child). Finally, respondent's January 23, 2019 parenting-time motion came after petitioners had filed their stepparent adoption petition, and thus, falls outside of the statutorily determined period under consideration. See In re Talh, 302 Mich App at 597-598.
Respondent next contends that the trial court clearly erred by finding that she had the ability to visit, contact, or communicate with the child because petitioner-father prevented her from doing so. See ALZ, 247 Mich App at 273 (indicating that a noncustodial parent lacks the ability to visit, contact, or communicate with the child if the custodial parent refuses to allow the noncustodial parent to contact the child.). We are unpersuaded.
In the trial court, respondent testified to several serious physical and mental health issues that she said she had to address before she felt she could visit her child, implying this demonstrated her inability to visit, but respondent appears to have abandoned this argument on appeal.
Respondent contends that she did not have the ability to visit or communicate with the child because the court suspended her parenting time. This Court has held that a parent does not have the ability to visit, contact, or communicate with a child when a court has entered an order terminating visitation rights, reinstatement of visitation is dependent on approval by a third party, and the affected parent is actively pursuing such approval. In re Kaiser, 222 Mich App at 623-625. However, a court may find that a parent has not visited, contacted, or communicated with a child where the court has entered an order suspending parenting time until the affected party shows cause why parenting time should be restored and the affected party has not taken any action to make that showing. In re Simon, 171 Mich App 443, 445, 449; 431 NW2d 71 (1988). The present case is more like In re Simon than In re Kaiser. The court entered an order suspending respondent's parenting time and setting certain conditions for her to meet before restoring parenting time. Respondent did not seek restoration of her parenting time from November 2017 until January 2019, and she conceded at the hearing on the stepparent adoption petition that she had not met the conditions for reinstatement set forth by the court.
This case was decided before November 1, 1990, and, therefore, it is "not binding precedent, MCR 7.215(J)(1), [but it] can be considered persuasive authority," In re Stillwell Trust, 299 Mich App 289, 299 n 1; 829 NW2d 353 (2012). --------
Respondent implies that the current case is much like In re ALZ, 247 Mich App at 277, wherein this Court held that the "petitioner mother should not be allowed to refuse respondent contact with ALZ, then use his lack of contact against him to support her petition for stepparent adoption." This Court opined that, "[t]o allow termination of the parental rights of a noncustodial parent who has attempted, although somewhat late in the game, to involve himself with the child and has been consistently rebuffed by the custodial parent would not be consistent with this purpose." Id. The instant case is distinguishable from In re ALZ by the fact that the noncustodial, biological parent in In re ALZ did not have any legal right to visit, contact, or communicate with the child until the court declared him the legal father of the child, and, as will be further discussed below, there is no evidence that petitioner-father has "consistently rebuffed" respondent's efforts to involve herself with the child.
Respondent also argues that petitioner-father denied her the ability to visit or communicate with the child by blocking her telephone number and by refusing to let her see the child. As with the frequency of respondent's visits and contacts with the child prior to July 2016, conflicting testimony regarding whether petitioner-father prevented respondent from communicating with the minor calls for credibility assessments. Petitioner-father admitted that he blocked respondent's telephone number twice because he was receiving threatening messages or "random messages" that appeared to be from respondent's family or friends. However, petitioner-father maintained that he did not block the numbers during the time that respondent had court-ordered parenting time, and that respondent could have reached him through the Friend of the Court. Co-petitioner also testified that she blocked respondent's phone number when she began to receiving threatening messages that appeared to come from third parties. Petitioner-father also testified that he would not allow the child to go with respondent for parenting time on one occasion when respondent showed up in a pick-up truck in which there were already several people and no safe space for the child, and that he informed the Friend of the Court about the incident.
Respondent testified that neither she nor any of her friends and family sent threatening messages to the petitioners, and she testified that petitioner-father refused to let her see MPV several times. Considering the conflicting testimony offered by the witnesses, the trial court's credibility assessment was an important factor in its decision. Given the special deference this Court gives the trial court's credibility determinations, and considering the court's knowledge of and experience with the parties, we cannot conclude that the trial court's finding that respondent-mother had the ability to contact MPV was clearly erroneous. See, In re ALZ, 247 Mich App at 271-272.
In sum, the record does not leave us with a definite and firm conviction that the trial court clearly erred in finding that respondent had the ability but regularly and substantially failed or neglected to visit the minor for a period of two years preceding the filing of the petition. MCL 710.51(6)(b).
Affirmed.
/s/ Karen M. Fort Hood
/s/ Jane M. Beckering
/s/ Mark T. Boonstra