A question was recently raised in a discussion group in which I participate whether an incarcerated parent can--upon release--avoid an involuntary termination of his parental rights by claiming that because he was in prison, he had no ability to provide regular and substantial support for the child for the two-year period immediately preceding filing of the petition for a step-parent adoption.
Fortunately, children's lives have the potential for greater stability with a decision made in the Michigan Court of Appeals in 1998. Subsequent unpublished decisions help parents and lawyers understand how the particular facts of their case will support an involuntary termination in a situation like this.
The applicable statute is MCL 710.51(6), which provides:
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 MCL 710.39(2); MSA 27.3178(555.39)(2)], and if the parent having legal custody of the child 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.
(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.
The parent wanting a step-parent adoption has this concern: does MCL 710.56(1) apply to an incarcerated parent during the two years immediately preceding the filing of the petition for adoption, even where that parent’s child support obligation under a court order has been suspended during incarceration? Can such a parent be found by a court to have failed or neglected to provide regular and substantial support for the child during the applicable period?
This question has been answered by Michigan’s Court of Appeals. I invite you to take a look at In re Caldwell, 228 Mich App 116 (1998). In this case, a special panel was convened to resolve a conflict between a prior vacated opinion of the COA, In re Caldwell, 225 Mich App 801 (1997), and In re Halbert, 217 Mich App 607 (1996).
Here’s the meat in the sandwich -- the gist of the Caldwell conflict panel's decision:
"The question presented is whether MCL 710.51(6); MSA 27.3178(555.51)(6) applies to an incarcerated parent. Before Halbert, courts sometimes looked to the two-year period immediately preceding the parent's incarceration to determine whether statutory grounds for termination existed. See In re Colon, 144 Mich App 805, 812, 814; 377 NW2d 321 (1985). In Halbert, supra at 612, however, this Court held that the statutory period begins on the filing date and extends backward from that date for a period of two years or more. We agree with this portion of Halbert. Subsections a and b of the statute state that the parent must fail to satisfy the support and contact requirements “for a period of 2 years or more before the filing of the petition.” MCL 710.51(6); MSA 27.3178(555.51)(6). This clear and unambiguous statutory language provides that the court must determine whether statutory grounds for termination exist by looking at the two years immediately preceding the filing of the termination petition."
The Halbert Court concluded that
“Respondent's lengthy incarceration before the filing of the petitions for termination of his parental rights and for adoption—and, hence, his inability to earn a living and acquire the wherewithal to provide support for [the child]—take respondent outside the intended scope of MCL 710.51(6).”
The Caldwell panel rejected Halbert's conclusion regarding the application of MCL 710.51(6); MSA 27.3178(555.51)(6) because the statute does not contain an “incarcerated parent” exception. The Caldwell Court stated that the Halbert Court
“erred in relying on the purpose behind the statute to carve an exception for an incarcerated parent. Where the statutory language is clear and unambiguous, this Court must apply it as written.” [Citation omitted]. Under the clear language of MCL 710.51(6); MSA 27.3178(555.51)(6), no incarcerated parent exception exists. Moreover, as this case demonstrates, an incarcerated parent may still retain the ability to comply with the support and contact requirements of the statute. Accordingly, the statute applies to respondent."
Subsequently, several unpublished opinions have illustrated how fact-specific these cases are. It is helpful to see exactly what specific facts supported the terminations in these decisions. The following cases allowed involuntary termination under MCL 710.56(1) finding that even an incarcerated parent had an ability to contribute to support of the child and the ability to maintain contact:
In re Beebe, Docket No. 274336 Decided 7/17/2007
In re Long, Docket No. 234658 Decided 2/28/2006
In re Pylant, Docket No. 223419 Decided 7/11/2000
IMPORTANT UPDATE: November 7, 2013
To read other posts about step-parent adoptions, especially a 2013 post about a serious challenge to the lagality of these adoption that will be resolved by the Michigan Supreme Court, see the following posts:
In the Matter of AJR, a very important case that will determine the future of step-parent adoptions [See Post here]Access all step-parent adoption posts here.
Visit my website here. I am available to consult with you on step-parent adoption issues and termination of parental rights of the incarcerated parent.