IN RE ANTHONIUS JOHANNES VAN RIJN MINOR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ANTHONIUS JOHANNES VAN
RIJN, Minor.
THEODORUS VAN RIJN and JAMIE LEA VAN
RIJN,
UNPUBLISHED
January 15, 2008
Petitioners-Appellees,
v
No. 279660
Tuscola Circuit Court
Family Division
LC No. 07-002673-AY
COLLEEN MULLINS,
Respondent-Appellant.
Before: Jansen, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to the
minor child under the stepparent adoption statute, MCL 710.51(6). We reverse.
The petitioner in a stepparent adoption proceeding has the burden of establishing by clear
and convincing evidence that termination of the noncustodial parent’s parental rights is
warranted. In re Hill, 221 Mich App 683, 691; 562 NW2d 254 (1997). In order to terminate
parental rights under MCL 710.51(6), the trial court must determine that the requirements of both
subsections of the provision are satisfied. Id. at 692. We review the trial court’s factual findings
for clear error. In re Caldwell, 228 Mich App 116, 121; 576 NW2d 724 (1998). Clear error
exists where, although there exists evidence to support it, this Court is left with a definite and
firm conviction that a mistake has been made. Id.
MCL 710.51(6) provides:
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:
-1-
(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.
(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. [Emphasis added.]
In In re Newton, 238 Mich App 486, 493; 606 NW2d 34 (1999), this Court interpreted
subsection (6)(a) to provide that the first clause of the subsection “applies where there is no
support order and the second clause applies when there is an existing order.” Thus, “[o]nly in
cases in which there is no support order in place is an inquiry into ability to pay necessary or
even allowed.” Id. at 492. This Court reasoned that a support order has already taken into
consideration the noncustodial parent’s ability to pay and that requiring the court to inquire into
the parent’s ability to pay in stepparent adoption cases “would be a repetitious and inefficient use
of judicial resources and would essentially allow a collateral attack of the support order.” Id. at
491-492. This Court further stated that “[i]n cases where the order of support no longer
accurately reflects such ability, either parent may petition the court for modification of the
order.” Id. at 492.
In the instant case, the trial court erred by inquiring into respondent’s ability to pay when
a child support order was in place. Id. The support order, which was already in place at the time
of the proceedings below, specified that respondent’s “child support obligation shall be zero.”
Because this support order was in place, the second clause of subsection (6)(a) limited the trial
court’s inquiry to whether respondent had failed to substantially comply with the support order
during the two-year period immediately preceding the filing of the termination petition. Id. A
contrary conclusion would have “allow[ed] a circumvention of the official order of the court.”
Id.
We are mindful of the trial court’s reasoning that the provision in the child support order
requiring respondent to pay “zero” was not based on a finding of her inability to pay, but rather
on an agreement between the parties. Thus, the trial court reasoned that an inquiry into
respondent’s ability to pay would not be duplicative. However, the plain language of the second
clause of subsection (6)(a) makes no mention of whether the parent’s ability to pay has actually
been previously determined with respect to the child support order. Rather, the statutory
language merely states that if a support order is in place, the inquiry is limited to whether the
parent has substantially complied with that order. The trial court improperly read into the
statutory text the additional requirement of a determination of the parent’s ability to pay. If
statutory language is plain and unambiguous, further interpretation is not permitted and courts
may not “read in” additional requirements not plainly expressed by the legislature. People v
Gentner, Inc, 262 Mich App 363, 367; 686 NW2d 752 (2004).
Moreover, this Court’s decision in In re SMNE, 264 Mich App 49; 689 NW2d 235
(2004), is unhelpful in the present case. In In re SMNE, a provision in the parties’ divorce
judgment reserved the issue of child support because the respondent was unemployed at the time.
In other words, the provision did not set forth any amount of support. Id. at 51-53. This Court
determined that because the order did not set forth “some sum of money” that the respondent was
-2-
required to pay as child support, it was not a support order, and the trial court therefore properly
inquired into the respondent’s ability to pay under the first clause of MCL 710.51(6)(a). Id. at
55. Important to this Court’s determination was that the order “reserved” the establishment of a
certain sum of money for another time. Id. at 54-56.
In contrast, the issue of child support was not reserved for another time in the instant
case. Rather, the parties agreed and the trial court specifically determined that respondent was
obligated to pay “zero.” Indeed, as noted earlier, the support order states that respondent’s “child
support obligation shall be zero” and that the child’s father raised no objections to this particular
arrangement. As recognized in In re Newton, supra at 492, either party could have petitioned the
court for modification of the support order. However, the child’s father never did so. To allow
respondent’s parental rights to be terminated despite her compliance with the express terms of
the support order would essentially “blindside” her. See id. at 493. Because a support order was
already in place, the trial court erred by inquiring into respondent’s ability to pay. Moreover,
because respondent was in substantial compliance with the support order, the conditions of MCL
710.51(6)(a) were not satisfied in this case. The court erred by terminating respondent’s parental
rights.
Reversed.
/s/ Kathleen Jansen
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
