In an astounding opinion issued on April 18,
2013, Michigan
The COA held that since the child’s biological
father was granted joint legal custody in the parties’ prior Judgment of
Divorce, his parental rights could not be terminated pursuant to MCL 710.51(6)
to facilitate a step-parent adoption without his consent.
Respondent Father’s trial attorney did not raise this objection in the trial court. However, rather than refusing to consider the unpreserved issue for appeal, the COA said this:
… 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 page
2, citations omitted]
The facts of the case were ripe for a step-parent
adoption. Respondent biological father
and mother were married and had one child. They divorced. The mother was granted
sole physical custody of the child, with both parents sharing joint legal
custody. Father was ordered to pay child support and was granted him reasonable
visitation with the child.
Years later, the mother married
petitioner-stepfather. Approximately two years after their marriage, the mother
and stepfather filed a petition for stepparent adoption and requested that the
court terminate the parental rights of respondent father to allow stepfather to
adopt. They properly alleged that respondent failed to provide regular and
substantial child support and failed to maintain regular and substantial contact
with the child 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) because (1) respondent substantially failed to provide support for the
child for the two years preceding the filing of the petition, and (2)
respondent substantially failed to visit or communicate with the child 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 a child.
Step-parent adoptions have been granted liberally
under MCL 710.51(6) since enactment of the Adoption Code in 1974 on the
requisite grounds that the respondent parent has failed, for a period of two
years immediately preceding filing of the petition, to maintain regular and
substantial contact with the child and has also failed to maintain a regular
and substantial child support for the child.
Certainly, the objective of the Adoption Code is to
achieve permanency, stability and security for children. This Court of Appeals decision effectively
prevents the stepparent adoption of any child whose absent parent holds a piece
of paper stating that they have joint legal
custody even if they have essentially abandoned the child.
The decision in In re AJR begs for a remedial
legislative amendment to the Adoption Code. Any parent who substantially fails to
provide support for his or her child 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 during this two-year period should fall within MCL
710.51(6), and a Court should be empowered to terminate parental rights and grant
a step-parent adoption.
No comments:
Post a Comment