Termination of parental rights & stepparent adoption under MCL 710.51(6); Ability to support the child during the two years preceding the filing of the petition; MCL 710.51(6)(a); Social Security Disability (SSD)

The court concluded that the trial court did not err by holding that respondent-father “had the ability to support LW during the two years preceding the filing of the petition but failed to do so.” Petitioner (LW’s mother) petitioned the trial court to allow her husband, LW’s stepfather, to adopt him, alleging “that respondent had not supported or had contact with LW for six years.” The court noted that the “primary purpose of MCL 710.51 is to foster stepparent adoptions in situations in which the natural parent has regularly and substantially failed to support or contact his or her child and refuses to consent to stepparent adoption.” It was undisputed that respondent sought “to prevent the stepfather from adopting the child.” It was “also undisputed that the most recent child support order entered in this case indicated that respondent’s child support obligation ended in 2012 as a result of [his] assertion that his only income was from SSD. Therefore, this case should be treated as though no support order had been entered.” Thus, the court noted “the issue before the trial court was whether respondent had the ability to support LW and, if so, whether [he] ‘failed or neglected to provide regular and substantial support’ for the child.” He argued there was no evidence “that he had the ability to regularly and substantially support LW during the two years preceding the filing of the petition.” The court found that since 2009, he “has regularly received SSD payments on the basis of his unidentified disability. [He] testified that, before 2019, SSD payments were his only means of income and he provided some level of support to LW from that income.” The record was “unclear as to whether respondent continued to work after 2019 or during the two-year statutory period, but there was no evidence or testimony that the SSD payments ever ceased; in fact, [his] counsel stated at the hearing that respondent was ‘on disability, social security’ and ‘that is his income.’” Further, while he “was incarcerated at the time of the hearing, he had only been incarcerated for six of the 24 months of the statutory period; additionally, there was no testimony or evidence presented that the incarceration had affected his receipt of SSD payments. The requirements of MCL 750.51 do not contain an exception for an incarcerated parent.” Given his “past support of LW and the fact that he continued to receive SSD benefits during the statutory period, the trial court did not err by determining that [he] had the means to provide some form of child support during the statutory period yet failed to do so.” Affirmed.