IN RE RIAN JAMES MARSH MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of RJM, a Minor.
CHRISTIE LYNN HAMMERBERG and JESSE
HAMMERBERG,
UNPUBLISHED
June 5, 2001
Petitioners-Appellees,
v
No. 231168
Menominee Circuit Court
Family Division
LC No. 00-000038
CALVIN JOSPH DEVOLL, VI,
Respondent -Appellant.
Before: Sawyer, P.J., and Smolenski and Whitbeck, JJ.
PER CURIAM.
Respondent father appeals from an order of the family court terminating his parental
rights to the minor child in connection with this step-parent adoption. We affirm.
MCL 710.51(6); MSA 27.3178(555.51)(6) sets forth the standard for terminating parental
rights in a step-parent adoption case:
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 the parent having legal custody
of the child 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.
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(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.
Respondent argues that the trial court erred in finding that both of these factors existed. We
disagree.
Turning first to the issue of support, the evidence clearly establishes that respondent
failed to substantially support the child, both before and after the entry of the support order.
Further, respondent clearly had the ability to do so. Although it is not clear what respondent’s
employment situation was at the time of the child’s birth, respondent joined the Navy when Rian
was 3 months old. Respondent testified that he earned $1100 per month at the time of his
enlistment and was earning $1300 a month at the time of his discharge. Clearly he had the ability
to pay support. Yet, until 3 months before the filing of the petition in March 2000, respondent
failed to pay any support. Respondent blames the Navy for failing to process a wage
withholding. However, there was certainly no reason why respondent could not have paid the
money directly. This is not a case of the Navy withholding the money but not forwarding it to
the Friend of the Court. Rather, each month when the Navy failed to make the withholding,
respondent could have mailed a check. He did not.
While it does appear that the Navy began withholding support in December 1999, that is
inadequate to establish “regular and substantial” support or substantial compliance with the
support order. It is, simply put, too little, too late. Further, respondent’s casting of blame on the
Navy for failing to withhold the support from his pay does not address the fact that he failed to
turn over the necessary information to provide medical coverage for Rian.
As for the failure to “visit, contact or communicate” with Rian, respondent’s arguments
are similarly unpersuasive. He has visited with the child for a total of 13 hours, or perhaps a little
more, in the first 4-1/2 years of the child’s life, and not at all in the 20 months preceding the
termination hearing. Respondent refers to his service in the Navy as explaining his lack of
visitation. While that certainly explains the lack of regular visitation, it does not explain his
overall failure to have contact with his child.
He spent very little of his available leave visiting Rian. Further, he took no leave in the
last year and a half of his service—he could have taken leave and made some visits. The fact that
it allowed him to go on terminal leave earlier does not change the fact that he was thus
unavailable to visit his son for a year and a half. Moreover, his earlier departure from the Navy
does not appear to have resulted in further visitation as respondent made no effort to see Rian
following his discharge.
Furthermore, his Naval service did not prevent him from engaging in other contact, such
as letters, cards and telephone calls. He simply did not do it. Indeed, he admitted to writing
letters, which he did not mail. He spoke of purchasing gifts, which he did not send.
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In sum, although his Naval service did limit his ability to have contact with his son, it did
not prevent contact. And respondent has failed to have any substantial contact with his son.
For the above reasons, we conclude that the trial court correctly determined that the
statutory grounds for terminating respondent’s parental rights were met.
Affirmed.
/s/ David H. Sawyer
/s/ Michael R. Smolenski
/s/ William C. Whitbeck
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