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

revision until final publication in the Michigan Appeals Reports.

-1-

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

In re MSL Minor.

ASHLEY LUNN LAPOINT and JEREMY 

WALLACE BAKER,

Petitioners-Appellants,

FOR PUBLICATION

June 13, 2024

9:00 a.m.

v No. 368581

Livingston Circuit Court

Family Division

ALEXANDER SAINTCLAIR, LC No. 2022-004790-AY

Respondent-Appellee.

Before: MARKEY, P.J., and RIORDAN and CAMERON, JJ.

MARKEY, P.J.

In this stepparent-adoption case concerning the minor child, MSL, petitioners, Ashley 

LaPoint and Jeremy Baker, appeal by right the trial court’s order granting summary disposition in 

favor of respondent, Alexander Saintclair, under MCR 2.116(C)(10). LaPoint and Saintclair 

married in 2012 and divorced in 2016. MSL was born of the marriage in 2014. LaPoint and Baker 

married in 2021. And in 2022, they petitioned the trial court to terminate Saintclair’s parental 

rights to MSL and to name Baker the child’s adoptive father. The trial court ruled as a matter of 

law that petitioners could not establish the requirements of MCL 710.51(6)(a) as necessary to 

terminate Saintclair’s parental rights, concluding that Saintclair had provided MSL with regular 

and substantial support in the form of healthcare insurance for the requisite two-year period. 

Therefore, the trial court summarily denied and dismissed the stepparent-adoption petition. We 

hold that making healthcare insurance available to a child does constitute an act of providing 

“support” for purposes of MCL 710.51(6)(a) and that the trial court correctly ruled that Saintclair 

provided MSL with “regular” support in the form of insurance during the pertinent two-year 

window. But, nonetheless, we reverse and remand for further proceedings with respect to whether 

that support was “substantial” in light of Saintclair’s overall ability to provide support. 
-2-

I. STATUTORY OVERVIEW

To give context to our discussion of the factual and procedural history of this case, we 

begin with an examination of the statutory provision that controls the analysis in this case, MCL 

710.51(6), which states:

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.

“[A] petition for termination of parental rights and for stepparent adoption should only be 

granted if both subsection (6)(a) and subsection (6)(b) of MCL 710.51(6) are satisfied.” In re 

NRC, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 362915); slip op at 5. In this 

case, Saintclair’s motion for summary disposition did not concern or draw into dispute MCL 

710.51(6)(b); therefore, in light of our ruling, that issue remains open and pending on remand.

1

 

Accordingly, summary disposition hinged on whether there existed a genuine issue of material fact 

regarding the establishment of MCL 710.51(6)(a).

 

1 Petitioners, in their response to Saintclair’s motion for summary disposition, argued, in part, that 

there was no genuine issue of fact that Saintclair regularly and substantially failed or neglected to 

visit, contact, or communicate with MSL, despite having the ability to do so, for a period of two 

years or more before the stepparent-adoption petition was filed. See MCL 710.51(6)(b). Because 

the trial court concluded that Saintclair was entitled to summary disposition with respect to MCL 

710.51(6)(a), there was no need for the court to reach petitioners’ argument under MCL 

710.51(6)(b). 
-3-

II. FACTUAL AND PROCEDURAL HISTORY

Before Saintclair and LaPoint met, Saintclair enlisted in the United States Army in 2011,

and he sustained injuries during his military service.2 He was hospitalized for his injuries. LaPoint 

was a nurse at the hospital where Saintclair received treatment, and she provided care for him. The

two then dated for a short time before marrying in 2012. LaPoint was 26 years old and Saintclair 

was 19 years old when they married. Saintclair was discharged from the Army in December 2013 

due to his injuries. According to LaPoint, Saintclair received $1,200 per month from the military 

in disability payments following his discharge, which benefit he will receive for the remainder of 

his life. Additionally, as part of his compensation package from the military, Saintclair received 

a healthcare insurance policy through Humana Military / TRICARE (“Humana Policy”). MSL 

was born in September 2014. The Humana Policy covered MSL. 

In March 2016, Saintclair was convicted of various crimes in North Carolina.3 Saintclair 

was imprisoned in the North Carolina correctional system for his crimes. For a short period of 

 

2 We derive some of the facts from affidavits executed by LaPoint and Saintclair. In Saintclair’s 

affidavit, he averred that all of the facts in his motion for summary disposition and accompanying 

brief were true to the best of his information, knowledge, and belief). MCR 2.119 provides, in 

relevant part:

(1) If an affidavit is filed in support of or in opposition to a motion, it must:

(a) be made on personal knowledge;

(b) state with particularity facts admissible as evidence establishing or 

denying the grounds stated in the motion; and

(c) show affirmatively that the affiant, if sworn as a witness, can testify 

competently to the facts stated in the affidavit.

Saintclair’s affidavit did not state with particularity any facts. Indeed, regardless of particularity, 

the affidavit itself simply did not state facts; rather; it just broadly incorporated by reference

whatever facts were in the summary disposition motion and brief. We question whether 

Saintclair’s affidavit complied with the dictates of MCR 2.119(1)(b) and (c). Nevertheless, in 

resolving this appeal, we shall accept and consider Saintclair’s affidavit. 

3 Although the parties do not allude to the specifics of his crimes, Saintclair was convicted of firstdegree burglary, robbery with a dangerous weapon, conspiracy to commit robbery, and 

safecracking. State v Saint Clair, 253 NC App 841 (table); 799 SE2d 909 (table), unpublished 

opinion by the North Carolina Court of Appeals (Docket No. COA16-836); unpub op at 1. The 

safecracking conviction was vacated on appeal. Unpub op at 2. 
-4-

time, LaPoint and Saintclair communicated by phone and letters while he was incarcerated.

4

 

Saintclair contended that these communications included MSL and that he sent his daughter an 

array of personal letters. Saintclair claimed that LaPoint and MSL visited him in prison, and 

LaPoint acknowledged that on one occasion she did visit Saintclair while he was incarcerated and 

that MSL accompanied her.

In December 2016, while Saintclair remained imprisoned, LaPoint filed for divorce in the 

Wayne Circuit Court. On May 8, 2017, a judgment of divorce was entered by the circuit court. 

LaPoint was awarded sole legal and physical custody of MSL. Parenting time for Saintclair was 

reserved until such time that he petitioned the circuit court for visitation. With respect to child 

support, the judgment provided:

IT IS FURTHER ORDERED AND ADJUDGED that Defendant Father not 

shall[5] pay child support to Plaintiff Mother due to his incarceration at the 

Alexander Correctional Institute. Upon his release, Defendant Father shall advise 

the Friend of the Court of his address and he shall obtain employment forthwith.

The divorce judgment further provided that “[a] Uniform Child Support Order [UCSO] is 

submitted concurrently with this Judgment, and it is merged with and incorporated by reference 

into and made part of this Judgment.” The circuit court additionally ordered in the judgment of 

divorce “that Plaintiff Mother and Defendant Father shall provide health care coverage for the 

minor child so long as medical insurance is available as a benefit of employment at reasonable 

cost.” The divorce judgment also required LaPoint to pay 84.1% and Saintclair to pay 15.9% of 

MSL’s uninsured ordinary healthcare expenses. The UCSO reflected the zero-dollar amount in 

child support and the division of obligations in relation to uninsured medical expenses. Somewhat 

contrary to the language in the judgment of divorce, the UCSO indicated that LaPoint and not 

Saintclair “shall maintain health-care coverage through an insurer . . . when that coverage is 

available at a reasonable cost.” The UCSO further stated that the child support provisions did not 

follow the MCSF. An attached support-calculation report revealed that application of the MCSF 

would have required Saintclair to pay $217 to LaPoint in monthly base child support. The report 

provided that Saintclair had $18,500 in gross annual income and that LaPoint’s gross annual 

income was $114,400. 

In her affidavit, LaPoint averred that she changed her employment in 2017 and that as part 

of her employment benefits, she obtained medical insurance in January 2018 through a United 

Healthcare Policy (“UHC Policy”), covering her and MSL. LaPoint claimed that all of MSL’s 

 

4 LaPoint did aver in her affidavit that Saintclair’s phone calls usually entailed him making threats 

against her in an effort to intimidate LaPoint. 

5 Most of the child support provision was handwritten by the circuit court after it had blacked out 

the existing typed language that had included a set amount of support. The court wrote in the word 

“not,” indicating its placement between “Father” and “shall.” Clearly, the circuit court meant to 

write, “Father shall not.” The original language apparently set forth a dollar amount consistent 

with the Michigan Child Support Formula (MCSF), as will be discussed below.
-5-

physicians were deemed “out of network” under Saintclair’s Humana Policy, making MSL’s 

healthcare costs considerably more expensive than under the UHC Policy. But UHC declined to 

cover MSL’s medical expenses, contending that the Humana Policy was the primary insurer or 

was otherwise the responsible insurer.6 Thus, according to LaPoint, the Humana Policy was of no 

benefit to her and was costing her money because it precluded application of the UHC Policy. 

LaPoint asserted in her affidavit that because of these circumstances, the Humana Policy was 

canceled in 2018. Documents from Humana contained in the lower court record appear to reveal 

that MSL was disenrolled from coverage under the Humana Policy in 2018, but LaPoint maintains

that Saintclair reinstated the policy as to MSL. According to Saintclair, however, the Humana 

Policy provided insurance coverage for MSL without interruption throughout Saintclair’s 

incarceration, which ended in January 2023, and that the policy remained in place thereafter.

7

 

Despite the lack of clarity in the record about any cancelation and reinstatement of the Humana 

Policy relative to MSL, there is no dispute between the parties that during the two-year lookback 

period under MCL 710.51(6)(a), the Humana Policy was available to provide coverage for MSL’s 

healthcare expenses.

On August 1, 2021, LaPoint married Baker. On July 12, 2022, LaPoint filed a 

supplemental petition and affidavit to terminate Saintclair’s parental rights to MSL. On July 14, 

2022, LaPoint and Baker filed a petition for stepparent adoption. With respect to the two-year 

period immediately preceding the filing of the petitions, LaPoint averred in her affidavit that 

Saintclair did not pay any child support even though he received a monthly military disability 

benefit of $1,200, that MSL was covered under the UHC Policy, that the Humana Policy “was of 

no benefit,” and that Saintclair did not in any form or manner communicate or have contact with 

MSL. Saintclair asserted that he supported or assisted in supporting MSL during the two-year 

period by providing her with healthcare insurance.

Saintclair moved for summary disposition under MCR 2.116(C)(10) on September 21, 

2023, arguing that there was no genuine issue of fact that he had provided healthcare insurance for 

MSL for two or more years preceding the filing of the termination petition.

8

 Petitioners, therefore,

could not satisfy MCL 710.51(6)(a), thereby requiring dismissal of the termination and stepparent-

 

6 Specifically, LaPoint averred as follows: “United Health Care, however, told me that the Military 

provided insurance was going to pay for . . . [MSL’s] health care expenses and, therefore, United 

Health Care declined to pay the medical bills.” At the hearing on the motion for summary 

disposition on October 26, 2023, counsel for LaPoint repeatedly posited that LaPoint did not even 

know about the Humana Policy. That contention is belied by LaPoint’s own affidavit.

7 An explanation of benefits submitted as part of Saintclair’s motion for summary disposition 

indicated that MSL received medical services in August 2020 that were covered, in part, by the 

Humana Policy. 

8 Back on July 14, 2023, Saintclair filed a motion in the Wayne Circuit Court seeking parenting 

time with MSL on a 50%-50% basis. LaPoint asserted, absent any evidence or argument to the 

contrary, that Saintclair did not appear for a scheduled hearing on the motion and that the motion 

was therefore dismissed. 
-6-

adoption petitions. Saintclair contended that the term “support,” as used in MCL 710.51(6)(a), 

encompasses “medical support,” which in turn includes healthcare insurance coverage. Saintclair 

did not pose any argument under MCL 710.51(6)(b). 

In petitioners’ response to the motion for summary disposition, they first argued that the 

motion was premature because they needed discovery regarding whether Saintclair had the ability 

to pay support during the two-year lookback period. Petitioners indicated that they wished to learn 

the extent of Saintclair’s income during the two-year period.9 They maintained that Saintclair 

received at least $1,200 per month in military disability payments and likely earned additional 

income while working in the prison. With respect to Saintclair’s argument that he provided support 

to MSL in the form of healthcare insurance, petitioners contended that Saintclair did not pay for 

the insurance, that he did not incur any detriment to or reduction in his benefits by providing 

insurance coverage to MSL, and that it was the military and not Saintclair who provided MSL with 

coverage under the Humana Policy. Moreover, according to petitioners, the healthcare insurance 

under the Humana Policy provided no benefit to MSL after 2017, considering that beginning in 

January 2018, MSL had coverage through the UHC Policy, which provided better healthcare 

coverage and lower out-of-pocket costs than the Humana Policy. Petitioners devoted the 

remainder of their response brief to arguing that they were entitled to summary disposition under 

MCR 2.116(I)(2) because aside from providing no support to MSL during the two-year lookback 

period for purposes of MCL 710.51(6)(a), there was no question of fact that Saintclair regularly 

and substantially failed or neglected to visit, contact, or communicate with MSL, despite having 

the ability to do so, for the pertinent two-year period.

The trial court entertained oral argument on Saintclair’s motion for summary disposition 

on October 26, 2023. Ruling from the bench, the trial court, construing MCL 710.51(6)(a), first 

observed that because the divorce judgment and UCSO stated that support was zero, the court had 

to discern whether Saintclair had the ability to provide regular and substantial support for MSL 

during the two-year period immediately preceding the filing of the stepparent-adoption petition. 

The trial court rejected petitioners’ argument that no support is provided if a child does not actually 

enjoy the benefit from an act of support performed by the noncustodial parent. The court illustrated

its point with a hypothetical in which a custodial parent receives an envelope of cash designated 

for a child and sent by the noncustodial parent for purposes of support but then returns the money 

to the noncustodial parent absent any benefit to the child. According to the trial court, in this case, 

Saintclair provided a medical-coverage insurance benefit to MSL, and it was irrelevant whether 

LaPoint or the child took advantage of the benefit. The trial court ruled that Saintclair provided a 

benefit to MSL in the form of healthcare coverage under the Humana Policy, that this benefit was 

regular and substantial during the two-year lookback period, and that the benefit constituted 

support and did not need to be cash or money to satisfy MCL 710.51(6)(a). The trial court 

concluded that there was no genuine issue of material fact that Saintclair had provided support for 

MSL such that it precluded petitioners from being able to satisfy MCL 710.51(6)(a); therefore, 

 

9 At the hearing on the motion for summary disposition, it was divulged that Saintclair’s deposition 

had been taken the day before the hearing. The lower court record reflected that very combative 

discovery took place between the parties, including in regard to phone communications; however, 

discovery issues are not involved in this appeal. 
-7-

Saintclair’s parental rights could not be terminated and the petition for stepparent adoption had to 

be summarily dismissed. By order dated October 26, 2023, the trial court granted Saintclair’s 

motion for summary disposition and denied and dismissed the petitions for stepparent adoption 

and to terminate Saintclair’s parental rights. Petitioners now appeal by right. 

III. ANALYSIS

A. PARTIES’ ARGUMENTS ON APPEAL

Petitioners first argue on appeal that because the support amount contained in the divorce 

judgment and UCSO set Saintclair’s monthly obligation at zero, the trial court correctly indicated 

that it was necessary to examine under MCL 710.51(6)(a) whether Saintclair had provided MSL 

with regular and substantial support and his ability to do so. The trial court, however, then failed 

to assess Saintclair’s ability to pay support and failed to take into consideration his military 

disability income. These failures, according to petitioners, constituted error. They further contend 

that there is no incarcerated-parent exception to the requirement in MCL 710.51(6)(a) that the 

noncustodial parent pay regular and substantial support if he or she has the ability to do so. 

Petitioners next maintain that the determination of what amount constitutes “substantial” support 

is relative, depending on the ability to pay and the incomes of the parents. Petitioners argue that a 

proper benchmark can be set by applying the MCSF, but, again, the trial court did not even 

contemplate Saintclair’s ability to pay or the incomes earned by LaPoint and Saintclair. Finally, 

petitioners assert that the coverage under the Humana Policy “was of no support and certainly was 

not substantial support.” To bolster their proposition, petitioners contend that LaPoint was ordered 

to supply healthcare insurance for MSL under the divorce judgment and UCSO, that she did so

through the UHC Policy, that compared to the UHC Policy, the Humana Policy was of lesser value 

and created greater out-of-pocket expenses, for which Saintclair never contributed despite being 

ordered to pay 15.9% of those expenses, and that Saintclair incurred no costs associated with 

maintaining the Humana Policy.

In response, Saintclair maintains in his brief on appeal that there is no genuine issue of 

material fact that he had the ability to provide healthcare insurance for MSL and that he did in fact 

provide such coverage for her during the pertinent two-year period and beyond. Saintclair states 

that the judgment of divorce provided that he and LaPoint were obligated to provide healthcare 

insurance for MSL if available as a benefit of employment at a reasonable cost. And Saintclair 

argues that he fulfilled the obligation through the Humana Policy, including during the two-year 

lookback period. Saintclair notes that the Michigan Adoption Code, MCL 710.21 et seq., under 

which MCL 710.51 falls, does not define the term “support.” Therefore, Saintclair cites language 

in the Friend of the Court Act, MCL 552.501 et seq., in support of his stance that “support” 

encompasses healthcare coverage.10 With respect to petitioners’ assertion that Saintclair absorbed 

 

10 Specifically, Saintclair relies on MCL 552.519(3)(a)(vi), which required the state friend of the 

court bureau to create the following:

A formula to be used in establishing and modifying a child support amount 

and health care obligation. The formula shall be based upon the needs of the child 

and the actual resources of each parent. The formula shall establish a minimum 
-8-

no cost to carry the Humana Policy, he argues that there was indeed a cost, i.e., his performance 

of military duties and service to his country. Saintclair next contends that contrary to petitioners’ 

argument, the trial court did evaluate his ability to provide support by finding that he had the 

capacity to cover MSL with healthcare insurance. Saintclair also challenges petitioners’

contention that the Humana Policy did not provide any benefit to MSL, claiming that there is no 

language in MCL 710.51(6)(a) requiring that the child at issue actually benefit from the support. 

Saintclair revisits some of the hypotheticals bandied about at summary disposition. Next, 

Saintclair posits that the Wayne Circuit Court had found good cause not to order the payment of 

child support, which issue LaPoint never appealed in the divorce case, and that the law allowed 

deviation from the MCSF. Therefore, according to Saintclair, we should reject petitioners’ 

argument that Saintclair had the ability to provide support beyond that which he was legally 

obligated to provide. Saintclair contends that the $217 monthly support amount calculated under 

the MCSF during the divorce litigation is entirely irrelevant to this stepparent-adoption case and 

appeal. In sum, Saintclair maintains that the trial court did not err by concluding as a matter of 

law that the healthcare insurance that he provided to MSL was regular and substantial after 

“weighing testimony, arguments, and evidence offered through exhibits.” 

B. STANDARD OF REVIEW AND PRINCIPLES OF SUMMARY DISPOSITION

“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 at ___; slip op at 2. Had this case been decided after trial or an evidentiary 

hearing, this Court would review the trial court’s factual findings for clear error, assessing whether 

we had a definite and firm conviction that a mistake was made. Id. But this case was decided on 

the basis of a motion for summary disposition, and we review de novo a trial court’s ruling on a 

motion for summary disposition. In re Casey Estate, 306 Mich App 252, 256; 856 NW2d 556 

(2014).11 This case requires us to construe MCL 710.51(6)(a), and issues of statutory construction 

are subject to de novo review. Id. De novo review “means that we review the issues 

independently, with no required deference to the trial court.” People v Beck, 504 Mich 605, 618; 

939 NW2d 213 (2019).

 

threshold for modification of a child support amount. The formula shall consider 

the child care and dependent health care coverage costs of each parent. The formula 

shall include guidelines for determining which parent is required to maintain health 

care coverage for the child and include a presumption for determining the 

reasonable cost and accessibility of health care coverage. . . . .

11 We note that parental-termination cases generally do not allow for motions for summary 

disposition. See MCR 3.901(A)(1) and (2); In re PAP, 247 Mich App 148, 153; 640 NW2d 880 

(2001) (“the trial court erred in concluding that MCR 2.116[C][10] applies to child protective 

proceedings”). But termination of parental rights in this case is governed by the court rules on 

adoption, MCR 3.800 et seq., and MCR 3.800(A) provides for the general application of the 

Michigan Court Rules to such proceedings, unless otherwise modified by the subchapter. And 

there is no provision in subchapter 3.800 barring motions for summary disposition. MCR 

3.800(B)(3) expressly references proceedings brought under MCL 710.51(6).
-9-

In Anderson v Transdev Servs, Inc, 341 Mich App 501, 506-507; 991 NW2d 230 (2022), 

this Court recited the principles that govern the analysis of a motion brought pursuant to MCR 

2.116(C)(10):

MCR 2.116(C)(10) provides that summary disposition is appropriate when, 

“[e]xcept as to the amount of damages, there is no genuine issue as to any material 

fact, and the moving party is entitled to judgment or partial judgment as a matter of 

law.” A motion brought pursuant to MCR 2.116(C)(10) tests the factual support for 

a party’s action. “Affidavits, depositions, admissions, or other documentary 

evidence in support of the grounds asserted in the motion are required . . . when 

judgment is sought based on subrule (C)(10),” MCR 2.116(G)(3)(b), and such 

evidence, along with the pleadings, must be considered by the court when ruling on 

the (C)(10) motion, MCR 2.116(G)(5). “When a motion under subrule (C)(10) is 

made and supported . . ., an adverse party may not rest upon the mere allegations 

or denials of his or her pleading, but must, by affidavits or as otherwise provided in 

this rule, set forth specific facts showing that there is a genuine issue for trial.” 

MCR 2.116(G)(4). 

A trial court may grant a motion for summary disposition under MCR 

2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when 

viewed in a light most favorable to the nonmovant, show that there is no genuine 

issue with respect to any material fact. A genuine issue of material fact exists when 

the record, giving the benefit of reasonable doubt to the opposing party, leaves open 

an issue upon which reasonable minds might differ. The trial court is not permitted 

to assess credibility, weigh the evidence, or resolve factual disputes, and if material 

evidence conflicts, it is not appropriate to grant a motion for summary disposition 

under MCR 2.116(C)(10). Like the trial court’s inquiry, when an appellate court 

reviews a motion for summary disposition, it makes all legitimate inferences in 

favor of the nonmoving party. Speculation is insufficient to create an issue of fact. 

A court may only consider substantively admissible evidence actually proffered by 

the parties when ruling on the motion. [Quotation marks, citations, and brackets 

omitted.]

MCR 2.116(I)(2) provides that “[i]f it appears to the court that the opposing party, rather than the 

moving party, is entitled to judgment, the court may render judgment in favor of the opposing 

party.”

C. STATUTORY CONSTRUCTION PRINCIPLES

In In re Casey Estate, 306 Mich App at 256-257, this Court set forth the well-established 

rules of statutory construction:

The paramount rule of statutory interpretation is that we are to effect the 

intent of the Legislature. To do so, we begin with the statute’s language. If the 

statute’s language is clear and unambiguous, we assume that the Legislature 

intended its plain meaning, and we enforce the statute as written. In construing a 

statute, this Court should give every word meaning, and should seek to avoid any 
-10-

construction that renders any part of a statute surplus or ineffectual. It is well 

established that to discern the Legislature’s intent, statutory provisions are not to 

be read in isolation; rather, context matters, and thus statutory provisions are to be 

read as a whole. [Quotation marks and citations omitted.]

D. DISCUSSION

In a stepparent-adoption proceeding, MCL 710.51(6) governs the termination of the 

noncustodial parent’s rights. In re ALZ, 247 Mich App 264, 272; 636 NW2d 284 (2001). In In re 

NRC, this Court recently explained:

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. To 

prove that termination of the noncustodial parent’s rights is warranted, a petitioner 

must satisfy the requirements of subsection (6)(a) and subsection (6)(b) of MCL 

710.51(6) by clear and convincing evidence. In applying MCL 710.51(6), courts 

are to look at the two-year period immediately preceding the filing of the 

termination petition. [In re NRC, ___ Mich App at ___; slip op at 3 (quotation 

marks, citations, and alteration brackets omitted).] 

This case turns on the application and construction of MCL 710.51(6)(a), which, again,

provides as follows:

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.

The plain and unambiguous language of MCL 710.51(6)(a) reflects that the Legislature 

contemplated two broad settings with respect to support, one in which there is no underlying 

support order or an order does exist but provided for either “$0.00” in support or reserved on the 

issue of support, and the second in which there exists an underlying support order that sets support 

in any amount above zero.12 There is no dispute that the instant case involves the former scenario. 

In In re SMNE, 264 Mich App 49, 54-55; 689 NW2d 235 (2004), this Court construed MCL 

710.51(6)(a) in the context of a situation wherein there existed an underlying order reserving on 

the issue of child support:

 

12 The In re NRC panel construed the language regarding substantial compliance with a support 

order that required a monthly payment, holding that “under MCL 710.51(6)(a), a parent 

substantially complies with a child support order when they have made a considerable quantity of 

the payments required by the order.” In re NRC, ___ Mich App at ___; slip op at 4. 
-11-

On the basis of our analysis of the foregoing cases we conclude that if there 

was indeed a support order in place addressing respondent’s duty and ability to pay 

support for the child by requiring payment of some sum of money, the trial court 

could not properly inquire into respondent’s present ability to pay support under 

the Adoption Code. In reviewing both the statutory language and the pertinent 

published decisions, we also conclude that the relevant sections of MCL 710.51(6) 

are essentially yardsticks to be used to measure the noncustodial parent’s interest 

in being a parent as it pertains to permitting termination of parental rights. But, to 

be an effective yardstick, the test must measure something; therefore, if an order 

reserving or holding in abeyance the establishment of a sum of money for support 

is a “support order” within the meaning of the second clause of subsection 6(a), that 

measure is meaningless. Moreover, . . . the amount of support should not be litigated 

again under the first clause of subsection 6(a), but it does not preclude a conclusion 

that an order reserving or holding in abeyance a determination of the amount of the 

noncustodial parent’s child support obligation is not a “support order” within the 

meaning of subsection 6(a). Thus, we find that the plain language of the provision 

of the divorce decree in the instant case pertaining to support and the use of 

common sense require a conclusion that respondent was not ordered to pay child 

support. Indeed, the court “reserved” the issue for another time because at the time 

of the divorce decree respondent was unemployed. Consequently, because the court 

did not set forth some sum of money that respondent was required to pay for child 

support, there is no support order in place under the circumstances of this case, and 

the trial court properly inquired about respondent’s ability to support her child 

under the first clause of subsection 6(a). 

In this case, there is no dispute that Saintclair did not provide “support” in the form of 

payments of money during the two-year period preceding the filing of the stepparent-adoption 

petition. Instead, he relied on the availability of the Humana Policy to cover MSL’s healthcare 

needs during the relevant two-year span for purposes of establishing that he provided MSL with 

regular and substantial support. We hold that making healthcare insurance available for a child 

plainly constitutes an act in which “support” is provided to the child for purposes of MCL 

710.51(6)(a). This is true regardless whether the custodial parent utilizes the support or insurance 

for the benefit of the child and regardless of the circumstances under which the noncustodial parent 

acquired the healthcare insurance in the first place. MCL 710.51(6)(a) simply does not delineate,

describe, or limit the form of the “support” that must be provided to satisfy the provision. We 

additionally rule that because the healthcare insurance was available to MSL for the entire twoyear lookback period, Saintclair provided “regular” support. On that matter, we find no error by 

the trial court.

With respect to the question whether the support was “substantial,” the trial court found as 

a matter of law that providing the healthcare insurance to MSL was indeed substantial; however, 

the court did not appear to take into consideration or evaluate the evidence that Saintclair received

$1,200 a month in military disability payments and possibly additional prison income given that 

his gross annual income back in 2017 was $18,500. In other words, the trial court did not assess 

Saintclair’s overall ability to support MSL. Under the circumstances posed in this case, MCL 

710.51(6)(a) requires contemplation of a parent’s ability to provide support. This would entail 

consideration of the noncustodial parent’s income, expenses, and general financial status and 
-12-

situation.

13

 And measuring whether support is “substantial” in any given case necessarily requires 

an examination of the noncustodial parent’s income and finances. For example, if a parent 

provided a child $500 a month in support on a monthly income of $800, the support would easily 

be characterized as “substantial.” But if that same parent provided $500 in monthly support on a 

monthly income of $10,000, it would be difficult to reach the conclusion that the support was 

substantial. MCL 710.51(6)(a) effectively mandates an analysis in which the “ability to support” 

a child sets the parameters of what constitutes “regular and substantial support.” The trial court 

erred by not conducing an analysis and examination of Saintclair’s ability to support MSL in 

relation to the question whether simply providing her with healthcare insurance was “substantial.”

We do recognize a certain level of unfairness in potentially punishing Saintclair for not 

making support payments when the divorce judgment and UCSO did not require him to make any 

payments, but termination of parental rights in stepparent-adoption cases also requires proof of 

MCL 710.51(6)(b), revealing a disregard for and disinterest in the child. Moreover, fixing public 

policy is generally the province of the Legislature and not the Judiciary. See Myers v City of 

Portage, 304 Mich App 637, 644; 848 NW2d 200 (2014) (despite the unfairness of legislation, 

making public policy is the province of our Legislature). 

Saintclair suggests that we should abide by the Wayne Circuit Court’s finding that there 

was good cause not to order child support payments. We reject this argument. First, the divorce 

judgment was entered back in 2017, approximately three years before the two-year lookback 

period even commenced. More importantly, Saintclair’s position would completely circumvent 

MCL 710.51(6)(a) with respect to circumstances in which a support order stated that support is 

reserved or is $0.00, because following Saintclair’s logic would always preclude a finding that the 

noncustodial parent failed or neglected to provide regular and substantial support. See In re Casey 

Estate, 306 Mich App at 257 (we should seek to avoid an interpretation that renders any part of a 

statute surplus or ineffectual). 

IV. CONCLUSION

The trial court erred by not examining and considering Saintclair’s ability to provide 

support for purposes of determining whether he provided “substantial” support for MSL during 

the two-year lookback period. The issue is to be entertained on remand, whether at trial or in a 

new motion for summary disposition.

We reverse and remand for further proceedings consistent with this opinion. We do not 

retain jurisdiction. Having fully prevailed on appeal, petitioners may tax costs under MCR 7.219.

/s/ Jane E. Markey 

/s/ Michael J. Riordan 

/s/ Thomas C. Cameron 

 

13 We note that in In re Caldwell, 228 Mich App 116, 120-121; 576 NW2d 724 (1998), a conflict 

panel ruled that an incarcerated parent may still retain the ability to provide regular and substantial 

support and that an incarcerated-parent exception does not exist under the plain and unambiguous 

language of MCL 710.51(6)(a).