Termination under § 19b(3)(f)(i); Ability to provide financial support; In re LHH

Agreeing with respondent-mother that the trial court erred by finding she failed to provide financial support for her child, LCP, under § f)(i), “given that she was incarcerated during the relevant time period and had no significant assets or income[,]” the court reversed the trial court’s order terminating her parental rights, and remanded. Concerning the first alternative in § (f)(i), “the question is whether the respondent-parent ‘had the ability to pay regular and substantial support but had neglected to do so for two or more years.’” In other words, while § (f)(i) “expressly refers to ‘having the ability to support or assist in supporting the minor,’ when that statutory provision is read as a whole, the quoted language contemplates having the ability to regularly and substantially support or assist in supporting the minor.” Further, as to “the second alternative, the respondent parent must substantially fail to comply with the support order for, at a minimum, two years before the petition is filed.” It was “undisputed that the second alternative cannot be satisfied. A $0 monthly support order was entered for LCP in [6/23], and the petitions requesting termination of parental rights were filed in [11/23]. As such, a support order was not even in existence for the requisite two-year period and, in any event, respondent logically complied with it by providing no financial support when it was in effect.” Thus, the question became “whether the trial court clearly erred by finding that the first alternative was satisfied.” Under the circumstances here, the court disagreed “with the trial court that respondent had the necessary ability to provide financial support for LCP for the two years preceding the filing of the petitions.” Therefore, because she “did not have the ability to provide substantial support for LCP in the two years preceding the filing of the petitions, [§ (f)(i)] was not satisfied, and [§ (f)] cannot provide a basis for terminating respondent’s parental rights at this time.” The court’s “conclusion in this regard is consistent with In re LHH.” Because she “only had the ability to provide a nominal, non-substantial amount of financial support for LCP from her prison income, and because she apparently had no other assets or financial resources, she lacked the ability to provide ‘substantial support’ for the purposes of” § (f)(i).