IN RE AMANDA LEIGH ZANDSTRA MINOR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of A.L.Z., a Minor.
JAMES SAMUEL VAN DYKE and MICHELLE
LEIGH VAN DYKE,
FOR PUBLICATION
August 31, 2001
9:00 a.m.
Petitioners-Appellants,
v
No. 230788
Kent Circuit Court
Family Division
LC No. 00-018710-AD
Updated Copy
November 9, 2001
SCOTT P. McHUGH,
Respondent-Appellee.
Before: Neff, P.J., and Doctoroff and Wilder, JJ.
PER CURIAM.
Petitioners Michelle L. and James S. Van Dyke appeal as of right from the family court's
order denying their petition for stepparent adoption of A.L.Z. (born May 29, 1994) pursuant to
MCL 710.51(6). We affirm.
Respondent father Scott P. McHugh and petitioner mother Michelle Van Dyke began
dating in February 1993 while they were high school students in Grand Rapids. After learning in
October 1993, that petitioner mother was pregnant, the couple planned to marry and raise the
child together. Three weeks after their daughter, A.L.Z., was born in May 1994, respondent
admitted to petitioner mother that he molested two young neighborhood girls when he was
fifteen years old. On learning this information, petitioner mother ended her relationship with
respondent and informed him that she did not want him to have unsupervised visits with A.L.Z.
Respondent visited A.L.Z. regularly for the first few months of her life.
In 1994, petitioner mother asked the Department of Social Services not to establish
paternity or pursue child support from respondent because she believed he was a danger to
A.L.Z. and it would not be in the child's best interests to have contact with respondent. In
September 1994, respondent moved away to attend Eastern Michigan University, approximately
2 ½ hours by automobile from Grand Rapids. Respondent did not regularly visit A.L.Z. while he
was at school and his last visit with her was in April 1995. In October 1995, respondent told
petitioner mother that he wanted to support A.L.Z.; however, he never contributed to her support.
-1-
During that same period, petitioner mother told respondent that if he truly cared for A.L.Z., he
should "let her have a normal life and find a father."
Respondent had no contact with petitioner mother or A.L.Z. between October 1995 and
December 1998, and claimed that he did so because petitioner told him to "leave them alone or
stay out of their lives." In a letter dated December 15, 1998, respondent wrote petitioner mother
the following:
This letter has been a long time in coming. I have come to a point in my
life that is getting to a degree of certainty. There is no way to say this, than to say
it.
I miss my daughter. I realize that I have not been in her life for the past
four years, but this has been at your request only. I feel that I have abided by your
wishes, but in turn have denied myself and [A.L.Z.] a chance to know her father. I
have always wanted to share in the experience of raising her. You were the one
who made the decision not to have me in her life. Now I see and feel that it is
time for her to know. She will always be a part of me and I a part of her. I would
like her to know me if at all possible.
I hope that this does not come as a big surprise to you. I really would like
to talk. I am willing to meet you whenever, wherever you wish.
* * *
I am hoping that we can somehow settle this in a cooperative fashion.
Make certain you understand, I am not doing this to upset anyone. I just feel that I
should be a part of our daughter's life. I will be looking forward to your reply.[1]
On January 25, 1999, petitioner mother sent the following letter to respondent:
I was quite surprised to receive your letter.
I'm glad to hear that you've reached a point of certainty in your life.
However, I do not feel that by disrupting [A.L.Z.'s] life right now by introducing
you to her would be of any benefit to her. This is not about what is best for you or
what is best for me, it is about what is best for [A.L.Z.] For the past four and a
half years, I have had to put her needs in front of my own, and I would hope you
would do the same. She is a very well adjusted child and I do not see any sense in
putting her through the confusion of trying to explain to her your past and why
you've decided now to be a part of her life.
1
Respondent provided an address and telephone number where petitioner mother could contact
him, which is omitted from this quotation.
-2-
When she is an adult and more capable of understanding the issues
surrounding our situation would be a more appropriate time for you to establish a
relationship with her. Until then, I would ask that if you truly care for her, you
would not pursue this issue for the sake of her future.
On February 5, 1999, respondent filed a complaint seeking an order of filiation and
parenting time in the family court. In the complaint, respondent requested an order declaring him
to be A.L.Z.'s father and establishing reasonable parenting time. Petitioner mother opposed
respondent's request for parenting time; however, she admitted that respondent was A.L.Z.'s
father. On March 24, 2000, the family court entered an order establishing respondent's paternity.
On May 26, 2000, petitioner mother and her new husband, petitioner James Van Dyke,
petitioned the family court to terminate respondent's parental rights and allow petitioner
stepfather to adopt A.L.Z. 2 The petition claimed that respondent failed to support or contact
A.L.Z. for a period of two years or more. At an October 12, 2000, hearing on the petition,
petitioner mother claimed she never prevented the father from contacting A.L.Z. or told him that
he could not see her. However, she admitted that she did not want respondent to have contact
with the child and told respondent that if he cared about A.L.Z. he would not attempt to see her
and would leave her be. Petitioner mother also stated that she believed it would not be in
A.L.Z.'s best interests to have contact with respondent until she was at least sixteen years old.
The parties did not dispute that respondent had the ability to contribute to A.L.Z.'s
support in the two years before the petition was filed but failed to do so. 3 Respondent also
admitted that the only attempt he made to contact A.L.Z. during the two years before the filing of
this petition was his December 1998 letter to petitioner mother. Respondent further admitted that
petitioner mother did not physically stop him from visiting A.L.Z. and that he had the ability to
contact her by letter or telephone; however, he did not believe it would be appropriate to "just
show up and surprise her like that," and thought it would make petitioner happier if he stayed out
of their lives. In addition, respondent stated that he wanted to "get [his] life together" before he
attempted to see A.L.Z. again. 4
At the conclusion of the October 2000 hearing, the family court entered the following
findings of fact and conclusions on the record:
2
Petitioner mother and James Van Dyke were married on April 3, 2000, approximately four
months ahead of schedule. The wedding date was moved forward after respondent father sought
an order for parenting time. Petitioner mother admitted that she moved up the wedding date
hoping that her new husband could adopt A.L.Z. and prevent respondent from having contact
with her.
3
At the October 2000 hearing, respondent indicated that he had been attending college "on and
off for the last six years," had been employed at various restaurants, and was currently employed
as a restaurant manager. Respondent father also admitted that, even though he was employed, he
sent no money for A.L.Z.'s support, nor did he send her any presents after April 1995.
4
Respondent stated that in the period during which he had no contact with A.L.Z., he nearly
failed in college, was going through depression, and was not financially stable.
-3-
First of all, I would like to compliment Mrs. Van Dyke and Mr. McHugh
on the testimony that was provided before the Court today.
* * *
The responses of Mrs. Van Dyke and of Mr. McHugh were brutally honest
in response to some very difficult questioning. It is not always the experience of
the Court to have such direct, honest, thoughtful, from the heart answers about
this very loved little girl and so, although I'm sure this morning was difficult for
each of you, I want to thank you for your honest, thorough and thoughtful
responses to the questions.
It is clear to me that [A.L.Z.] has an excellent mother who loves her, wants
to protect her and make the right decisions on her behalf. Mr. McHugh's
testimony with regard to a daughter that he does not know, also seems to be
heartfelt as well.
The Court first must consider whether the non-custodial parent has failed
to support [A.L.Z.], having the ability to support the child for two years or more
before the filing of the petition. The testimony on this issue is clear and
uncontested. Mr. McHugh has had the ability to support or assist in supporting
[A.L.Z.] and he has not. He has had the ability to send cash, to send weekly
checks and he has failed to do so.
* * *
The more difficult issue is whether the non-custodial parent has the ability
to visit, contact or communicate with [A.L.Z.] and has regularly or substantially
failed for two years before the filing of the petition, which would be the period
from May of 1998 through May of 2000. The Court has considered the testimony
that Mr. McHugh sent to Mrs. Van Dyke, a letter dated . . . December of 1998.
The December 1998 letter, which has been received into evidence as Exhibit #1,
clearly asks for contact with the child. Also the January 1999 response very
clearly, sets forth the position of the mother, as she's testified in Court today. She
requests that Scott not have contact with [A.L.Z.] because she does not believe it
to be in her best interests. A paternity action was commenced in January or
February of 1999 following the rejection response from Mrs. Van Dyke.
In that complaint, Mr. McHugh asks for contact with the child. In the
response to the paternity action, again, the mother's response is clearly set forth,
that she doesn't believe it to be in [A.L.Z.'s] best interests, given her age, and the
father's lapse of contact.
It is the Court's position that the mother cannot refuse contact and then rely
on the lack of contact to meet the statutory basis. The father, frankly, has not been
a very good dad. He has made horrible decisions pertaining to [A.L.Z.] He has
been selfish, immature, and irresponsible, but, at some point, he did attempt to
-4-
change his relationship with [A.L.Z.] His attempts to reintroduce himself to
[A.L.Z.] were done with her best interests in mind. He was able to articulate that
he shouldn't call [A.L.Z.] and say, "Hey [A.L.Z.], I'm your dad." . . . He may have
been able to physically go to her home, but that wouldn't be in anyone's best
interests. He did what was the logical thing, given the age of this child and the
complete abandonment that had occurred. He believed that he needed to work it
out with the mother. Since he wasn't able to work it out with the mother, he
needed to work it out through the Courts, to have a determination made regarding
visitation.
I find that the paternity action has been an ongoing request for contact
since it was filed over a year ago. I find that the mother's position refusing contact
any any [sic] reintegration plan, resulted in his inability to have contact with the
child. The mother even went to the extreme of moving up her wedding in order to
immediately file this step-parent adoption petition.
Therefore, the Court finds that this petition must be respectfully denied
because it is premature. Once the issues of parenting time are established, if the
father fails, as he has in the past, to put this child first, the petition may be re-filed.
At this juncture, the Court finds that the petition is premature and is respectfully
denied.
The court entered an order on October 12, 2000, denying the petition for stepparent
adoption. It is that order from which petitioners appeal.
Petitioners first argue that the trial court erred in concluding that respondent was unable
to contact, visit, or communicate with A.L.Z. during the two-year period before the filing of their
petition for stepparent adoption. We review the lower court's findings of fact under the "clearly
erroneous" standard. In re Hill, 221 Mich App 683, 691-692; 562 NW2d 254 (1997). A finding
is clearly erroneous if, although there is evidence to support it, we are left with a definite and
firm conviction that a mistake was made. Id. at 692.
The procedure and standard for determining whether to terminate the parental rights of a
noncustodial parent and allow adoption by a stepparent are governed by MCL 710.51, which
provides in pertinent part:
(6) 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.
-5-
(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.
The petitioner has the burden to prove by clear and convincing evidence that termination
of the noncustodial parent's rights is warranted. Hill, supra at 691. In order to terminate parental
rights under the statute, the court must determine that the requirements of subsections a and b are
both satisfied. Id. at 692. The court's authority to terminate parental rights under the statute is
permissive rather than mandatory. In re Newton, 238 Mich App 486, 493-494; 606 NW2d 34
(1999). "[E]ven if the petitioner proves the enumerated circumstances that allow for termination,
a court need not grant termination if it finds that it would not be in the best interests of the child."
Id. at 494.
It is undisputed that the requirements of subsection a were proved, i.e., that respondent
had the ability to provide support for the child but failed to do so. The dispute in this case is
whether petitioners succeeded in proving by clear and convincing evidence that respondent had
"the ability to visit, contact, or communicate with" A.L.Z. and "regularly and substantially failed
or neglected to do so for a period of 2 years or more before the filing of the petition." MCL
710.51(6)(b). The family court concluded that respondent did not have the ability to visit,
contact, or communicate with A.L.Z. because of petitioner mother's refusal to allow respondent
to establish contact with the child. Upon review of the record, we find no error in the lower
court's conclusion on this issue.
Petitioners initiated this action to terminate respondent's parental rights on May 26, 2000.
Therefore, the applicable period for determining whether respondent's conduct met the conditions
specified in the statute would commence on May 26, 2000, and extend back for two or more
years before that date, to at least May 26, 1998. MCL 710.51(6)(b); In re Halbert, 217 Mich App
607, 612; 552 NW2d 528 (1996). In December 1998, well within that period, respondent wrote
petitioner mother and requested visitation with A.L.Z. In her written response, petitioner mother
did not forbid respondent from having contact with the child, but asked that he refrain from
doing so. At this point, respondent could have made an attempt, against petitioner mother's will,
to contact or visit the child. However, respondent's paternity of A.L.Z. had not been established
at that time and, because he was effectively a nonparent, he had no legal right to visitation or
communication with the child. See Girard v Wagenmaker, 437 Mich 231, 251; 470 NW2d 372
(1991); Ruppel v Lesner, 421 Mich 559, 565-566; 364 NW2d 665 (1984). Respondent's proper
response to petitioner mother's resistance to his attempts to visit or contact the child was to file a
complaint seeking an order of filiation, which he did on February 5, 1999, well within the two
year statutory period under MCL 710.51(6)(b). The family court determined that respondent's
December 1998 letter and February 1999 complaint constituted ongoing requests for contact with
A.L.Z., but that petitioner mother's resistance to these requests resulted in respondent's inability
to contact the child, and we find no error in these determinations.
Petitioners cite a few cases that purportedly support their claim that respondent had the
ability to visit, contact, or communicate with A.L.Z. In the first case, In re Simon, 171 Mich App
443; 431 NW2d 71 (1988), the father engaged in no communication with his daughter during the
statutory two-year period before the filing of the stepparent adoption petition. The father claimed
-6-
that he did not communicate with his daughter because of a provision in a divorce decree barring
any contact with his daughter. Visitation was denied to the father in the divorce decree "until
such time as he showed cause why visitation would be in the child's best interest." Id. at 445.
We found that termination of the father's parental rights was proper because even though the
"divorce decree prohibited visitation, we also are cognizant of the fact that respondent never
requested visitation privileges." Id. at 449. However, Simon is distinguishable from the instant
case because, here, respondent tried to visit and contact A.L.Z. but was prevented from doing so
by petitioner mother, whereas the custodial parent in Simon did not prohibit the father from
contacting his daughter.
Petitioners also rely on In re Martyn, 161 Mich App 474; 411 NW2d 743 (1987), where
this Court held that a parent who makes only two visits and one telephone call to his child in two
years has "substantially failed" to visit, contact, or communicate with the child despite the ability
to do so within the meaning of the statute. Id. at 482. Again, this case is distinguishable from
the instant case because the father in Martyn had a legal right to visit his child and was not
prevented from visiting or contacting the child by the custodial parent. Petitioners' reliance on In
re Caldwell, 228 Mich App 116; 576 NW2d 724 (1998), is also misplaced. In Caldwell, we
affirmed termination of an incarcerated father's parental rights because, although he was
prevented from physically visiting with his child, he failed to contact or otherwise communicate
with the child. Id. at 121-122. However, before his incarceration, the father in Caldwell was
married to the child's mother, and there was no question that he had the right to communicate
with the child. This is clearly distinguishable from the present case where respondent had no
legal right to contact A.L.Z. before he initiated the paternity action.
Therefore, in consideration of all the evidence presented in this case, we hold that the
family court did not err in concluding that petitioners failed to prove by clear and convincing
evidence that respondent had the ability to visit, contact, or communicate with the child during
the statutory two-year period.
Petitioners also argue that the family court's findings violated petitioner mother's
constitutional right to access the courts because it penalized her for objecting to respondent's
paternity action. The United States Supreme Court found a constitutional basis for the right of
access to the courts as an aspect of the First Amendment right of petition. California Motor
Transport Co v Trucking Unlimited, 404 US 508, 510; 92 S Ct 609; 30 L Ed 2d 642 (1972). The
right of access to the courts is a facilitative right "designed to ensure that a citizen has the
opportunity to exercise his or her legal rights to present a cognizable claim to the appropriate
court and, if that claim is meritorious, to have the court make a determination to that effect and
order the appropriate relief." Foster v City of Lake Jackson, 28 F3d 425, 430 (CA 5, 1994),
quoting Crowder v Sinyard, 884 F2d 804, 813 (CA 5, 1989). The right of access to the courts is
implicated where the ability to file suit is delayed or blocked altogether. Foster, supra at 430.
Petitioners' argument on this issue displays a fundamental misinterpretation of the family
court's findings and conclusions. Had the family court in this case found that respondent was
unable to contact A.L.Z. solely because of petitioner mother's opposition to respondent's
paternity action, then there might be some merit to petitioners' argument. However, it is clear
from the court's language on the record that it concluded that respondent's inability to contact his
-7-
child resulted from petitioner mother's resistance to his visitation or communication before
respondent filed the paternity action. Any determination by the family court that petitioner
mother's contest of the paternity action resulted in respondent's inability to contact the child
would be harmless error where the court correctly concluded that petitioner mother prevented
respondent from visiting the child before any legal action was instituted. Therefore, we do not
agree that the family court's findings and conclusions in this matter constitute a violation of
petitioner mother's right of access to the courts.
In conclusion, we express our agreement with the family court that petitioner mother
should not be allowed to refuse respondent contact with A.L.Z., then use his lack of contact
against him to support her petition for stepparent adoption. The primary purpose of MCL 710.51
is to "foster stepparent adoptions in families where the natural parent had regularly and
substantially failed to support or communicate and visit with the child," yet refuses or is
unavailable to consent to the adoption. Newton, supra at 492 (emphasis in Newton). To allow
termination of the parental rights of a noncustodial parent who has attempted, although
somewhat late in the game, to involve himself with the child and has been consistently rebuffed
by the custodial parent would not be consistent with this purpose.
Affirmed.
/s/ Janet T. Neff
/s/ Martin M. Doctoroff
/s/ Kurtis T. Wilder
-8-
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.
