In an astonishing opinion released on April 18, 2013, In the Matter of AJR, Docket No. 312100, [For Publication], Michigan’s Court of Appeals held that the trial court improperly granted a step-parent adoption under the adoption statute, MCL 710.51(6), where the parent objected to termination of his parental rights and had joint legal custody under a judgment of divorce. What made the opinion so stunning was the Court of Appeals’ statutory interpretation of MCL 710.51(6). What a difference a word makes . . .
The COA held that because the child’s biological father shared joint legal custody with the mother, his parental rights could not be terminated pursuant to MCL 710.51(6) to make way for a step-parent adoption without his consent.
I have just never thought about MCL 710.51(6) in this way—I’ve never parsed it out in this manner. Even Respondent Father’s trial attorney did not raise this objection in the trial court. When the issue was raised on appeal, rather than refusing to consider the unpreserved issue for appeal, the COA said this:
Respondent did not raise this issue at the trial court, thus failing to preserve the issue for appellate review. However, this Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented. Here, the issue presented is strictly an issue of law–statutory interpretation–and all of the requisite facts have been presented. Thus, in the interests of justice, we will review the issue. [Slip op page 2, citations omitted]
Facts of the Case: Respondent biological father and petitioner-mother were married and had one child, AJR, during their marriage. They divorced. The mother was given sole physical custody of the child, with both parents sharing joint legal custody in the judgment of divorce. The JOD also ordered AJR’s father to pay child support and granted him reasonable visitation with her.
Years later, the mother married petitioner-stepfather. About two years into their marriage, the stepfather and AJR’s mother filed a petition for termination of respondent father’s parental rights to allow petitioner-stepfather to adopt AJR. Petitioners alleged that respondent failed to provide regular and substantial child support and failed to maintain a regular and substantial parent-child relationship with AJR during the two years prior to filing of the petition.
Respondent Father objected to termination of his parental rights. After a two-day trial, the trial court concluded that Respondent Father’s parental rights were lawfully terminated pursuant to MCL 710.51(6) finding that (1) respondent substantially failed to provide support for AJR for the two years preceding the filing of the petition and (2) respondent substantially failed to visit or communicate with AJR during this two-year period. The trial court entered an order of adoption. On appeal, the Michigan Court of Appeals reversed, holding that MCL 710.51(6) does not apply to a parent who shares joint legal custody of the child(ren).
Step-parent adoptions have readily been granted under MCL 710.51(6) for many, many years since enactment of the Adoption Code in 1974 on grounds that the respondent parent has failed, for a period of two years immediately preceding filing of the petition, to maintain a regular and substantial parent-child relationship and has also failed to maintain a regular and substantial child support relationship with the child.
Of course, the goal of the Adoption Code is the obtain permanency, stability and security for children. I’ve done many, many step-parent and relative adoptions. The first concern most mothers express to me in these cases is this:
“But, if I tell him that I want a step-parent adoption, he will show up and oppose. I am afraid. I don’t want to give him notice."
In almost all of these cases, the biological father, more often than not, is not a former husband, but is a man who has either never acknowledged parentage or one who “got caught” by the prosecuting attorney and either admitted paternity before or after a DNA test, but was granted joint legal custody because he was a "good boy and admitted his parentage."
I explain that an adoption cannot be lawful without due process—notice to the biological father and the opportunity for fair hearing. I encourage these mothers to rely upon the fact that most biological fathers will either consent or will not show up to oppose.
It’s been my experience that some biological fathers consent to the adoption because they want to do the right thing by their child(ren)—allow them the stability of a stable, typical family. In fact, most biological fathers—especially those who have large arrearages, who have never paid child support and have never maintained any kind of parent-child relationship—readily consent to a step-parent adoption. Why wouldn’t they? How great it is to get out from under the burden of child support. In the alternative, they fail to show up at the hearing to contest the adoption.
But now we have this Court of Appeals decision that clearly shows that without consent of the father who fits the mold as in this case--who has joint legal custody--no step-parent adoption can lawfully be granted.
The decision in In re AJR cries out for remedial legislative amendment to the Adoption Code to promote its legislative purpose: permanency, stability and security for children. Any parent who substantially fails to provide support for his or her child(ren) for the two years preceding the filing of a step-parent adoption petition and who substantially fails to visit or communicate with his or her child(ren) during this two-year period should fall within MCL 710.51(6) and a court should be able to terminate parental rights and allow a step-parent adoption.
You may read the Court of Appeals’ decision here. Download In Re AJR You’ll want to pay special attention to the COA’s interpretation of MCL 710.51(6) and its explanation of why it doesn’t apply to a parent who shares joint legal custody. Also see: Download MCL 710.51
I encourage you to support remedial legislative amendment to Michigan’s Adoption Code to actively advocate for legislative amendment to bring stability and permanency to children’s lives. In the case of my out-of-state readers researching step-parent adoption, compare the language in Michigan's Code with that of your state's adoption code, which might contain the same language.