If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNPUBLISHED

In re LHH, Minor. November 30, 2023

No. 365553

Shiawassee Circuit Court

Family Division

LC No. 22-004038-AY

In re HCH, Minor. No. 365554

Shiawassee Circuit Court

Family Division

LC No. 22-004039-AY

Before: LETICA, P.J., and HOOD and MALDONADO, JJ.

PER CURIAM.

In these consolidated appeals,1respondent-father appeals as of right the trial court order 

terminating his parental rights to his two children under MCL 710.51(6) of the Michigan Adoption 

Code, MCL 710.21 et seq. We reverse and remand.

I. BACKGROUND

This case originates from a stepparent adoption involving an incarcerated noncustodial 

parent. Petitioner-mother met respondent-father when she was 15 years old and he was 18. 

Though the date is unclear from the record, the two married at some point. The couple had two 

children together, LHH and HCH, who were born in 2014 and 2016, respectively. In 2017, 

respondent-father pleaded guilty to third-degree criminal sexual conduct, MCL 750.520d(1)(a), 

and accosting a child for immoral purposes, MCL 750.145a, after sexually assaulting petitioner-

 

1

In re LHH, unpublished order of the Court of Appeals, entered April 17, 2023 (Docket No. 

365553); In re HCH, unpublished order of the Court of Appeals, entered April 17, 2023 (Docket 

No. 365554).
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mother’s minor sister. See People v Hargrove, unpublished per curiam opinion of the Court of 

Appeals, issued July 25, 2019 (Docket No. 344352) (affirming sentences). Petitioner-mother’s 

sister was around 13 to 14 years old when respondent-father started sexually abusing her. See id. 

The abuse included at least 20 instances of sexual penetration (by respondent-father’s estimation 

at his sentencing hearing), or as many as 50 instances (according to the victim’s claims). See id. 

Respondent-father’s earliest release date is in late October 2027.

Respondent-father and petitioner-mother maintained contact for a few years after his 

imprisonment. Petitioner-mother visited respondent-father in prison once or twice a month in 2018 

and 2019, and they communicated by telephone and “JPay,” a fee-based service available to 

prisoners that is similar to e-mail. Petitioner-mother indicated that she started therapy in 2018, 

which led to less visits with respondent-father. According to respondent-father, the last time 

petitioner-mother visited him was in late January 2020. In October 2021, petitioner-mother 

divorced respondent-father. The judgment of divorce awarded petitioner-mother sole legal and 

physical custody of the couple’s children. Petitioner-mother then married petitioner-stepfather in 

mid-November 2021, after approximately a year of dating.

In early June 2022, petitioner-mother and petitioner-stepfather petitioned the court for a 

stepparent adoption to allow petitioner-stepfather to adopt LHH and HCH. Petitioner-mother 

petitioned the court to terminate respondent-father’s parental rights to HCH and LHH on June 9, 

2022, and July 6, 2022, respectively. In mid-July 2022, the trial court signed the petitions for 

stepparent adoption, authorizing an investigation of the proposed adoptions.

In late February 2023, the trial court held a trial on petitioner-mother’s petition to terminate 

respondent-father’s parental rights. Petitioner-mother and respondent-father testified at trial. 

Respondent-father testified that although he had not seen HCH since he went to prison in 2017,

petitioner-mother last took LHH to visit respondent-father in early 2020.2 Petitioner-mother did 

not take HCH to visit respondent-father because he was not allowed to visit with “any female 

under” 18 years old. Respondent-father admitted that he had not sent any mail to petitioner-mother 

since 2021, though he claimed to not have her then-current address. He also testified that he sent

two letters to petitioner-mother’s grandparents’ house in late 2020 or early 2021, but never 

received a response. He could not recall the children’s mailing address, and he lost a piece of 

paper with the address on it at some point during the COVID-19 pandemic. Petitioner-mother 

testified that the proper address to reach the children was her grandmother’s house, which was 

respondent-father’s own current mailing address and the address on his driver’s license. 

Respondent-father testified that until 2019, petitioner-mother allowed him to talk on the telephone 

with the children on some Sundays. He testified, however, that since July 2020 he had “tried to 

call without answer.”

Respondent-father never provided any financial support for the children. The court did not 

order him to pay support during his incarceration. Rather, in the judgment of divorce, uniform 

child support order, and child support deviation addendum, the trial court set his support at “$0.00” 

 

2 Petitioner-mother disputes this date. She testified that she last took LHH to the prison in 2019 

before the COVID-19 pandemic.
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and directed respondent-father to contact the friend of the court following his release from prison. 

Respondent-father testified that, regardless, he could not send money for the care or support of his 

children because he was “legally not allowed to . . . .”3 Though he took opportunities to earn 

money while incarcerated, respondent-father could not earn more than $15 per month. He testified

that he typically used $10 for phone calls and $5 for JPay “stamps.” He estimated that he had 

earned less than $200 since his incarceration and never kept more than $50 in his prison account.

After the testimony at the termination hearing, the trial court ruled from the bench. The 

court noted that the question was whether respondent-father paid “any form of reasonable support 

having had the ability to do so[.]” It observed that respondent-father “didn’t have the ability to 

pay what would have been owed under the guidelines,” and that, regardless, he was uncollectible 

while incarcerated. The trial court noted, however, that respondent-father was “one of the higher

earners” it had “gotten testimony from at [$15] a month.” It also opined that “two of the things to 

be a parent is consistency and sacrifice.” The trial court found “neither one of th[o]se here,” noting 

that under the relevant statute, “you have to pay substantial support based on the ability to do so,” 

meaning “paying support based on the . . . greatest income you can receive which now is 

approximately [$15] a month.” The court suggested this “mean[t] sacrifice”—fewer phone calls 

and “JPays” so he could send a dollar a week to his children. It therefore found that respondentfather had “the ability to pay some support,” despite recognizing that respondent-father’s payments 

would “have been a very small flow of money that [would not] change their lifestyle but 

demonstrated [his] commitment.” The trial court also rejected respondent-father’s claim that he 

did not know his own address. It further found there was no substantial contact between 

respondent-father and his children after January 2020, and that he made no “great effort to 

maintain . . . contact with [his] kids.”

In concluding its findings, the trial court found “by clear and convincing evidence that 

[respondent-father] had the ability to provide consistent support though not ample support” and 

that he “had the ability to maintain some type of contact with the kids.” It therefore terminated 

respondent-father’s parental rights to LHH and HCH. This appeal followed.

II. STANDARD OF REVIEW

“The petitioners in a stepparent adoption proceeding have the burden of proving by clear

and convincing evidence that termination of the noncustodial parent’s rights is warranted.” In re 

NRC, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 362915); slip op at 2. Evidence 

is clear and convincing when it leads the trier of fact to “a firm belief or conviction as to the truth 

 

3 This appears to have been a reference to advice respondent-father claimed to have received from 

a prison counselor regarding restrictions on inmates’ ability to use money from prison trust 

accounts. To our knowledge, “[t]ransfer to family members and to a parent or verified legal 

guardian of the prisoner’s child” is a permitted purpose on which prisoners are allowed to spend 

funds. See Michigan Department of Corrections, Policy Directive 04.02.105, Prisoner Funds, 

(effective date January 1, 2010), pp 6-7 available at <https://www.michigan.gov/corrections/-

/media/Project/Websites/corrections/Files/Policy-Directives/PDs-04-InstitutionalOperations/PD-0402-Fiscal-Control/04-02-105-Prisoner-Funds-effective-01-01-

10.pdf?rev=ab9d87b593874bfc93023d4866a03cdf> (accessed October 5, 2023). 
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of the allegations sought to be established, evidence so clear, direct and weighty and convincing 

as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the 

precise facts in issue.” In re Pederson, 331 Mich App 445, 472; 951 NW2d 704 (2020) (quotation 

marks and citation omitted). This Court reviews the trial court’s factual findings in a stepparent 

adoption proceeding for clear error. In re NRC, ___ Mich App at ___; slip op at 2. “A finding is 

clearly erroneous if, although there is evidence to support it, the reviewing court is left with a 

definite and firm conviction that a mistake was made.” Id. at ___; slip op at 2. We defer “to the 

trial court’s special opportunity to evaluate the credibility of witnesses who appear before it.” In 

re BWJ, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 363607); slip op at 2. “Any 

related statutory interpretation poses a question of law reviewed de novo . . . .” In re Medina, 317 

Mich App 219, 227; 894 NW2d 653 (2016).

III. FAILURE TO SUPPORT

Respondent-father argues that the trial court erred by finding that the conditions of MCL 

710.51(6)(a) were satisfied because he did not have the ability to pay “substantial” support. We 

agree.

“MCL 710.51(6) governs the termination of a noncustodial parent’s rights in a stepparent 

adoption proceeding.” In re NRC, ___ Mich App at ___; slip op at 3. “The purpose of MCL 

710.51(6) is to foster stepparent adoptions in families where the natural parent had regularly and 

substantially failed to support or communicate and visit with the child and refuses to consent to 

the adoption.” Id. at ___; slip op at 3 (quotation marks and citation omitted). MCL 710.51(6) 

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 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.

“Accordingly, a court may only terminate parental rights under the stepparent adoption statute 

after concluding that both Subdivision (a) and (b) are satisfied, and also that the conditions 

provided in the preceding paragraph are satisfied.” In re AJR, 496 Mich 346, 353-354; 852 NW2d 

760 (2014). To the extent our inquiry focuses on subsection 6(a), this Court has explained that 
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this subsection addresses two separate situations: “(1) where a parent, when able to do so, fails or 

neglects to provide regular and substantial support, and (2) where a support order has been issued 

and the parent fails to substantially comply with it.” In re SMNE, 264 Mich App 49, 53; 689 

NW2d 235 (2004) (citing and reaffirming the principles in In re Colon, 144 Mich App 805, 809-

810; 377 NW2d 321 (1985)).

At the outset, we acknowledge that the child support order did not require respondent to 

make payments during his incarceration. It set support at “$0.00.” On the surface, it appears that 

respondent-father complied with the support order. But MCL 710.51(6)(a) provides, “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.” When, as here, there is no support order in effect

(or the order sets support at $0.00), MCL 710.51(6)(a) required petitioners to prove that 

respondent-father “had the ability to pay regular and substantial support but had neglected to do 

so for two or more years.” In re SMNE, 264 Mich App at 56-57. Respondent-father therefore

must have had the ability to provide both regular and substantial support. He does not challenge 

the trial court’s finding that he could have paid regular support, but instead focuses on whether he 

could provide substantial support.

The trial court already concluded that respondent-father could not provide substantial 

support. It determined that respondent-father could have provided a dollar a week, or $3 to $4 per 

month, to his children. But the trial court explicitly recognized that this amount would not make 

a meaningful difference in the children’s lives. It would only demonstrate respondent-father’s 

commitment. Regardless, in concluding its findings, the trial court found “by clear and convincing 

evidence that [respondent-father] had the ability to provide consistent support though not ample 

support.” This finding is at odds with In re SMNE, 264 Mich App at 56-57 and MCL 710.51(6)(a), 

which required petitioners to establish that respondent-father had the ability to provide regular and 

substantial support. The trial court believed that the standard was whether he paid “any form of 

reasonable support having had the ability to do so[.]” This is not the standard. See In re SMNE, 

264 Mich App at 56-57 (requiring proof of regular and substantial support, not any form of 

reasonable support). Accepting without concluding that respondent-father was able to send $4 out 

of the $15 he made per month in prison, one dollar per week or $3 to $4 a month is not “substantial” 

support. The trial court recognized this when it found that the amount respondent-father could 

have provided was “not ample support.” See Bauserman v Unemployment Ins Agency, 503 Mich 

169, 187-188; 931 NW2d 539 (2019) (citing a United States Supreme Court opinion referencing 

nominal damages of $1); Franzel v Kerr Mfg Co, 234 Mich App 600, 619; 600 NW2d 66 (1999)

(recognizing that nominal damages are “usually one dollar”); Cicotte v Gagnier, 2 Mich 381, 383 

(1852) (noting agreement between parties included consideration of “the nominal sum of one 

dollar”). The trial court incorrectly focused its inquiry on the father’s sacrificial or symbolic 

support, as opposed to the substantive impact on the children.

The trial court clearly erred by finding that petitioners satisfied the conditions set forth in 

MCL 710.51(6)(a). Because $1 a week, or $4 a month, is not a “substantial” amount of money, 

respondent-father did not have “the ability to pay regular and substantial support.” In re SMNE, 

264 Mich App at 56-57. This conclusion should not be viewed as creating a carveout for any 

incarcerated respondent. Many incarcerated respondents still have available means of providing 

support beyond their income from prison labor, including family support, savings, and other assets 

and income. This respondent’s sole avenue for providing support was his prison income. The trial 
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court determined that this would not make a meaningful difference in the children’s lives. The 

trial court therefore could not terminate respondent-father’s parental rights under MCL 710.51(6). 

Because of our resolution of this issue, we need not consider respondent-father’s other arguments.

We reverse and remand. We do not retain jurisdiction.

/s/ Anica Letica 

/s/ Noah P. Hood 

/s/ Allie Greenleaf Maldonado