In re Caldwell

225 Mich. App. 801
CourtMichigan Court of Appeals
DecidedAugust 8, 1997
DocketDocket No. 197219
StatusPublished

This text of 225 Mich. App. 801 (In re Caldwell) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Caldwell, 225 Mich. App. 801 (Mich. Ct. App. 1997).

Opinion

Per Curiam.

Petitioner Harry C. Russell sought to legally adopt his stepchild under the Adoption Code, MCL 710.21 et seq.; MSA 27.3178(555.21) et seq. Respondent Erik M. Caldwell, the natural father, appeals as of right from the probate court’s order terminating his parental rights pursuant to MCL 710.51(6); MSA 27.3178(555.51)(6).

On May 3, 1990, a child was bom to petitioner Kaetlyn E. Russell (formerly known as Shelly Ann Caldwell) and respondent, who were married at the time. The parents were divorced in 1994 while respondent was in prison. Respondent’s ex-wife married petitioner, who then sought to legally adopt the child. Throughout this case, respondent remained incarcerated, failed to pay child support, and had little or no contact with his child.

We must begin our analysis with an issue that was not fully briefed by the parties. A panel of this Court recently held that an incarcerated parent’s rights cannot be terminated under § 51(6) of the Adoption Code, MCL 710.51(6); MSA 27.3178(555.51)(6), because the Legislature did not intend to apply this provision against an incarcerated parent who lacks the ability to support or visit the child. In re Halbert, 217 Mich App 607; 552 NW2d 528 (1996).

Before Halbert, a dispute arose concerning the interpretation of MCL 710.51(6); MSA 27.3178(555.51)(6). In essence, the statute provides that a noncustodial parent’s rights can be terminated upon remarriage of the custodial parent if the noncustodial parent had failed to provide support or visitation for two or more years.1 Before Halbert, the courts looked to [802]*802the two-year period immediately preceding the filing of the petition to terminate parental rights. However, in some instances in which the father was imprisoned, the courts looked to the two-year period immediately preceding the parent’s incarceration. See In re Colon, 144 Mich App 805, 812, 814; 377 NW2d 321 (1985). However, the Halbert Court noted that the phrase “for a period of 2 years or more before filing the petition” was “plain, certain, and unambiguous.” Halbert, supra at 612. Accordingly, this Court found that the probate court in that case had erred in looking to the two-year period immediately preceding the incarceration. Id. at 612, 614. We are in agreement with this portion of Halbert.

However, the Halbert panel went on to state:

The primary purpose of MCL 710.51(6); MSA 27.3178(555.51)(6) is to allow a stepparent who provides the material and emotional support to a child that would be expected of the child’s legal parent to adopt the child of a noncustodial parent who has essentially abandoned the child and who has refused to, or is unavailable to, consent to the adoption. In re Colon, supra, pp 810-811. This purpose may be effectuated only where the noncustodial parent is situated in circumstances whereby that parent can earn a living and acquire the wherewithal to support a child, where the noncustodial parent has ignored or abandoned the natural obligations owed a child by a parent, and where the noncustodial parent has refused, or intentionally has become unavailable, to consent to the adoption. 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); MSA 27.3178(555.51)(6). [Id. at 615-616.]

Although we are constrained by Administrative Order No. 1996-4 to follow the Halbert decision, we disagree with that panel’s conclusion that an [803]*803incarcerated parent falls outside the scope of MCL 710.51(6); MSA 27.3178(555.51)(6).

As specifically noted in Halbert, “[w]here the language employed in a statute is plain, certain, and unambiguous, the statute must be applied as written without interpretation.” Id. at 612. We believe that the statutory language is clear and that there is no “incarcerated parent” exception to the application of the statute. Accordingly, we would find that the statute applies to respondent.

In addition, we do not agree with the factual basis for the Halbert panel’s conclusion. The panel assumed that an incarcerated parent lacked the ability to comply with the statute’s support and visitation requirements. However, testimony of the respondent in this case contradicts this assumption. Respondent testified that he earned $150 a month in a prison apprenticeship. Although respondent maintained that he was not allowed to send money out of the prison, he also testified that he was aware of other prisoners with support obligations who were able to arrange for the prison to honor income-withholding orders. Because respondent’s support obligation was $10 a week, the evidence suggested that he was able to comply with the support requirement of the statute. In addition, we find that the Halbert panel failed to recognize that an imprisoned father could support a child through outside accounts established before the incarceration.

We also believe that an incarcerated parent is not necessarily prevented from complying with the “contact” provision of the statute. To avoid termination of parental rights, the act requires a parent to “visit, contact, or communicate with the child.” Thus, although a prisoner lacks the ability to physically visit with outsiders, he is not restricted from communicating with the outside world by other means. For example, respondent in this case indicated that he had spoken to his son on the telephone,2 and he admitted that he was free to write letters. Accordingly, we find that an incarcerated parent could comply with the “contact” provision of MCL 710.51(6)(b); MSA 27.3178(555.51)(6)(b).

As set forth above, we do not agree with the conclusion of the Halbert panel that an incarcerated father falls outside the scope of MCL 710.51(6); MSA 27.3178(555.51)(6). Were it not for Halbert, we would find that the statute is applicable to an individual in prison. However, because we are constrained to follow Halbert, we must reverse the probate court’s ruling that terminated respondent’s parental rights pursuant to the statute.

Respondent’s remaining issues also involve interpretation of MCL 710.51(6); MSA 27.3178(555.51)(6). Because we reverse on the basis that respondent does not fall under the statute, we would not normally address these issues. However, we reverse only because we are constrained to follow Halbert under Administrative Order No. 1996-4. Accord[804]*804ingly, we will set forth the remaining issues as we would have decided them, were we not constrained to reverse.

Respondent contends that the probate court erred in refusing to allow him to present evidence regarding the best interests of the child. In In re Hill, 221 Mich App 683; 562 NW2d 254 (1997), this Court held that a probate court did not abuse its discretion by permitting the father to introduce evidence of the best interests of the child during a termination hearing under MCL 710.51(6); MSA 27.3178(555.51)(6). Id. at 696. This Court stated:

Section 51(6) states that the probate court may issue an order terminating the rights of the parent if the requirements of subsections a and b are both met.

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Related

In Re Colon
377 N.W.2d 321 (Michigan Court of Appeals, 1985)
In Re Halbert
552 N.W.2d 528 (Michigan Court of Appeals, 1996)
In Re HILL
562 N.W.2d 254 (Michigan Court of Appeals, 1997)
Rankin v. Grieve
447 N.W.2d 741 (Michigan Supreme Court, 1989)
In Re Martyn
411 N.W.2d 743 (Michigan Court of Appeals, 1987)
Lorenz v. Lorenz
419 N.W.2d 770 (Michigan Court of Appeals, 1988)
In Re Simon
431 N.W.2d 71 (Michigan Court of Appeals, 1988)

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Bluebook (online)
225 Mich. App. 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-caldwell-michctapp-1997.