Guardian’s petition to terminate parental rights; Ability to support; MCL 712A.2(b)(6)(A); “Ability” to contact under no-contact order; MCL 712A.2(b)(6)(B); In re ALZ; In re Kaiser; Petition authorization; In re Ferranti

The court held that the trial court abused its discretion by authorizing the guardians’ petition under MCL 712A.2(b)(6) on the minimal record because there was no evidence respondent-mother had the ability to provide support and the evidence did not establish she had the ability to visit, contact, or communicate with the child under the conditional no-contact order. The child had lived for years with the guardians, including respondent’s mother. A probate-court no-contact order barred respondent from contact unless she satisfied enumerated conditions and petitioned for visitation. The trial court authorized a petition alleging jurisdiction under MCL 712A.2(b)(6) and entered an order continuing the child’s placement with the guardians and stating the child could not be returned to respondent. On appeal, the court first held that the statutory findings for foster-care placement under MCL 712A.13a(9) and MCR 3.965(C)(2) were inapplicable because the child was not removed or placed into foster care. The order functioned as a release to the guardians under MCL 712A.13a(3) and MCR 3.965(B)(13)(a) with protective conditions. The court then found probable cause was not established under MCL 712A.2(b)(6)(A) because, although the record suggested respondent had not provided support, there was no evidence she had the ability to pay. It also held MCL 712A.2(b)(6)(B) was not established because “ability” to contact in the face of restrictive court orders turns on the parent’s realistic capacity and efforts to regain access, and the referee erred in concluding respondent simply chose not to satisfy the conditions. The minimal record instead suggested respondent made some efforts that may have been thwarted and that contact was not solely within her power. Reversed and remanded.