IN RE JAYLENE MARIE DELL MINOR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of CWD, Minor.
DENNIS LEE CASTLE and CHARLENE MAE
CASTLE,
UNPUBLISHED
November 16, 2001
Petitioners-Appellants,
V
No. 230491
St. Clair Circuit Court
Family Division
LC No. 00-006427
LAWRENCE DELL,
Respondent-Appellee.
In the Matter of JMD, Minor.
DENNIS LEE CASTLE and CHARLENE MAE
CASTLE,
Petitioners-Appellants,
V
No. 230538
St. Clair Circuit Court
Family Division
LC No. 00-006428
LAWRENCE DELL,
Respondent-Appellee.
Before: Hoekstra, P.J., and Saad and Whitbeck, JJ.
PER CURIAM.
Petitioners Charlene and Dennis Castle1 appeal as of right from a family court order
denying their petition to terminate respondent Lawrence Dell’s parental rights under the
stepparent adoption provision in the adoption code.2 We reverse and remand.
1
We use “Castle” to refer to Charlene Castle.
2
MCL 710.51(6).
-1-
I. Basic Facts And Procedural History
Dell and Castle are former spouses who have two children, a son and a daughter. For
reasons not apparent and not relevant in this case, in March 1994 either Dell or Castle decided to
initiate divorce proceedings in Lapeer County. The court handling the divorce entered an ex
parte order granting Castle custody of the children, with Dell to have reasonable visitation. The
order further specified that Dell had to pay $216 a week in support for the children. The
following summer the court set a regular visitation schedule for Dell and increased his support
obligation to $269 a week. The court also entered an order preventing Dell from having contact
with Castle. Dell and Castle, however, each had problems when transferring the children to the
other parent. Thus, with assistance from the friend of the court and a variety of restrictions, other
people were able to facilitate these transfers and help Castle and Dell avoid contact with each
other.
In February 1995, while the divorce proceedings were pending, Dell sent a package bomb
to Castle at her workplace. The bomb exploded, and Castle suffered extensive burns and
shrapnel wounds from which she still has not fully recovered. Joseph Dotson, Castle’s father,
was appointed a temporary guardian for the children while Castle was recovering. Dell was
arrested soon after the explosion. In 1996, he was convicted of attempted murder, for which he
was sentenced to forty to eighty years in prison, and sending an incendiary device, for which he
was sentenced to life without the possibility of parole.3
The divorce judgment, entered the following year, ordered Dell not to have any contact
with his children unless the children initiated the contact or unless the children’s therapist
recommended visitation. The divorce judgment awarded Dell property worth approximately
$18,000, as well as his tools. The divorce judgment did not impose on Dell an ongoing
obligation to pay support for his children “based upon [his] incarceration,” but reserved the
possibility that he would be ordered to pay support in the future. At the time of the divorce, Dell
owed $26,970.81 in back support payments and court costs that had accrued with interest in the
months leading up to the divorce. The divorce judgment ordered Dell to pay these accrued
support expenses. The divorce judgment attempted to create a trust for the children to consist of
assets not awarded to Dell in the event that this Court determined that Dell had an interest in
those other assets, an event that never occurred.
Sometime following the divorce, Castle married her current husband, who had become
like a father to her children and wanted to adopt them. Castle and her husband then petitioned
the family court to terminate Dell’s parental rights to the children under MCL 710.51(6), which
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
3
Dell has never conceded to committing this crime, instead stating that he was “falsely accused
of it. Blatantly unjustly found guilty of something I had nothing to do with.” Federal charges not
specified in the record were pending at the time the family court held the hearing on the petition
to terminate Dell’s parental rights.
-2-
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.
(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.
In order to prove that Dell had not provided “regular and substantial support” for the
children, Castle testified that Dell had given no support whatsoever in the preceding two years
and more than $3,500 in unpaid child support had accrued even before the bombing and Dell’s
incarceration. The family court also accepted into evidence a copy of a resume Castle and Dell
had prepared around 1990 so that he could apply for employment. The Castles submitted this
resume to support their proposition that Dell, a skilled tradesman, had numerous talents that he
could use to work in prison system. At the time of the hearing on the termination petition, Dell’s
child support arrearage had grown to $35,787.32 with interest.
Dell, however, claimed that while he was in prison he had attempted to provide some
support for his children by having church groups send presents to his children for Christmas. He
was not certain that the children ever received the gifts because he did not have their current
address. Dell said that he had “little jobs . . . occasionally” doing primarily custodial work while
incarcerated in Milan, but that he had been moved between prisons so frequently he had never
been able to work long enough to earn much more than $50. Dell noted that he had also been
incarcerated in the Wayne County Jail for some time and that the jail did not offer jobs to
inmates. Further, though he conceded the amount of property he received in the divorce, he said
that his mother had used $9,000, he had used the remaining $9,000 to pay for his attorney, and he
did not know where his tools were, effectively leaving him with nothing. When asked why he
did not support his children at all, Dell responded:
Well, I was under the impression that the court [handling the divorce] had taken
all the funds that I had that I earned during my whole lifetime working in skilled
trades and [the money] was going to go to taking care of the children. There was
a beautiful house that was left for these children that was paid for and was
maintenance free and was completely up to modern conditions, that they would be
comfortable in. Fifty dollars, a little of it went to cosmetic. Most of it went to the
copy machine. We copy documents for the courts. And communications with the
courts. As a matter of fact right now I’m presently in debt to the court and to the
copy machine. I’m in the red in the prison system. I owe more money than I got.
As for the statutory matter of visitation, contact, or communication with the children,
Dotson testified that while he was acting as the children’s guardian in 1995, Dell had no contact
-3-
with the children. Dotson was not aware of a court order preventing contact at that time. Castle
said that Dell had some minimal contact with the children from the time he was incarcerated in
1995 until 1999. He had sent the children one or two cards each year, usually around their
birthdays and Christmas. Castle said that she gave some of these cards to the children so that
they could “remember the good times” rather than dwelling on the bombing. She stopped giving
the cards to the children when her son’s emotional problems grew worse because of the contact.
She had encouraged her son to write to Dell in order to express his anger, but her son had refused
to do so.
According to Beth Knowlton, a caseworker with the Lapeer County friend of the court,
Dell had not contacted the friend of the court to request visitation with his children at any time
between November 1997 and the hearing on the termination petition in September 2000. Nor did
she have any record of the children requesting to contact Dell. Knowlton also pointed out that
Dell had objected when the friend of the court had attempted to collect some of the back support
he owed from a profit-sharing check he had from his employer. Karen Roodvoets, a clerk with
the Lapeer Circuit Court, added that Dell had not contacted the court that handled his divorce to
request any sort of visitation with his children between February 1995 and January 1998.
Dell confirmed that he had sent cards to his children several times. He apparently
interpreted the restrictions on contact with his family to apply only to Castle, not to his children.
He would have called his children, but did not have their telephone number. This also impeded
his ability to find the children’s current address so that he could write to them. Both Dell and his
mother, Joyce Will, recalled an occasion when Will went to the post office and asked the postal
employees to forward cards to the children. Dell said that he sent a card to his son at his son’s
school with instructions on how his son could contact him in prison or could contact Will.
However, Dell was not aware of how he could actually receive a telephone call while in prison.
Dell claimed that he was not experienced when it came to legal matters in order to
explain his failure to make more of an effort through formal channels, like the friend of the court,
to have contact with his children. However, Dell conceded that, despite this lack of legal
sophistication, he had managed to object to his attorney’s efforts to place a lien on his tools, but
had never contacted the friend of the court or the children’s therapist regarding visitation or
communication with the children. He did not attempt to contact Castle’s parents because, he
said, he was advised not to do so.
At the close of the hearing, the Castles’ attorney argued that incarceration did not exempt
a parent from supporting or having contact with his children. She also contended that MCL
710.51(6) permitted the family court to look at evidence of failure to pay support or have contact
with the children beyond the two years immediately preceding the termination petition. As a
result, though the orders entered in the divorce action effectively barred Dell from having any
significant contact with the children, there was evidence on the record of Dell’s failure to support
and have contact with his children before Dell was subject to those orders. Further, though MCL
710.51(6)(a) referred to nonpayment of support when there was a support order, nothing excused
Dell from paying support if he was able to do so, the other circumstance mentioned in the statute.
In conclusion, the Castles’ attorney argued that Dell had voluntarily placed himself in a position
-4-
where he could do little to support his children and that terminating his parental rights was in the
children’s best interests.
Dell’s attorney agreed that the family court was at liberty to look at facts outside the two
years immediately preceding the termination petition. However, he stressed that the divorce
judgment was structured so that it would satisfy Dell’s support obligation by giving Castle
almost all the marital assets. Dell’s attorney emphasized that Dell had paid approximately ninety
percent of his support obligation before he was incarcerated. Given the limitations of
incarceration, he claimed that Dell had taken advantage of all the opportunities available to him
to contact the children.
In a written opinion and order, the family court summarized the facts of the case, noting
the different ways in which Dell had only limited opportunities to have contact with his children.
Addressing the language in MCL 710.51(6), the family court explained that the statute
establishes a two-prong test by which the parental rights of the non-custodial
parent may be terminated . . . . Each of those elements consists of a two-fold
inquiry. The first inquiry in each element of the test is into the non-custodial
parent’s ability and opportunity to accomplish the requisites of the second inquiry
of each element.
The family court understood that, when a support order is in place, a respondent’s ability to pay
support is not at issue under MCL 710.51(6), but evidently concluded that Dell was not subject to
a court order for support. Instead, the family court focused on his ability to pay support, noting
that “[n]o Michigan Court has suggested that where no support order has been issued, petitioner
is relieved of the obligation to prove, by clear and convincing evidence, respondent’s ability to
pay support.” Further, the family court remarked, In re Halbert4 held that incarceration “take[s
a] respondent outside the scope of MCL 710.51(6)” by preventing the parent from earning a
living. The family court recognized that In re Caldwell5 had rejected any support exception for
incarcerated parents. However the family court distinguished the facts of Caldwell from the facts
of this case. In particular, the family court observed that the respondent-father in Caldwell had a
support obligation of only $10 a week, which he had the ability to pay because he had income of
$150 a month from a prison job.6 In contrast, Dell had earned only around $50 and he was
largely unable to find a job in the facilities where he was incarcerated. Consequently, the family
court held:
The evidence is not convincing that Lawrence Dell had the ability to pay
support having earned only $50.00 in the detention system during this 2-year
period. There was no evidence presented as to the availability of work or ability
to support to counter Mr. Dell’s testimony. There was no testimony that
Lawrence Dell had other funds or assets from which he could pay support. Mr.
4
In re Halbert, 217 Mich App 607, 615-616; 552 NW2d 528 (1996).
5
In re Caldwell, 228 Mich App 116, 121; 576 NW2d 724 (1998).
6
Id. at 119, 123.
-5-
Dell testified that his personal account at the prison was in a deficient position
because of the cost of legal proceedings.
It is unnecessary to address the issues of the ability to visit, contact, or
communicate with the child as required by MCL 710.51(6)(b) because the
requirements of MCL 710.51(6)(a) have not been satisfied.
Thus, the family court denied the petition to terminate Dell’s parental rights.
The Castles contend in this appeal that the family court erred when it did not consider
evidence of Dell’s failure to support his children in years outside the two years immediately
preceding the termination proceedings. They argue that by restricting its analysis to the two years
preceding the termination petition, the family court did not recognize that Dell was subject to a
support order, making his ability to pay support during his incarceration irrelevant.
II. Standard Of Review
The issue the Castles raise in this appeal require us to interpret and apply the adoption
code, a task we undertake with de novo review.7 However, to the extent that we must review the
family court’s factual findings, we do so to determine whether the family court clearly erred.8
III. Statutory Interpretation
Our primary goal when interpreting statutes is to determine and give effect to the
Legislature’s intent.9 The best way to determine this legislative intent is to examine the language
of the statute at issue10 because we presume that the Legislature intended to give the statute the
meaning it “plainly expressed.”11 If the meaning of the statute is clear, then courts have no
further role in interpreting it; the statute must be applied as written.12 Courts must give effect to
every phrase, clause, and word in a statute in order to avoid rendering any part of a statute
meaningless.13 Unless specifically defined in the statute, every word or phrase in a statute should
7
In re SD, 236 Mich App 240, 243; 599 NW2d 772 (1999).
8
See In re RFF, 242 Mich App 188, 201; 617 NW2d 745 (2000).
9
See State Farm Fire & Casualty Co v Old Republic Ins Co, 242 Mich App 105, 108; 617
NW2d 715 (2000).
10
See Gier v Auto Owners Ins Co, 244 Mich App 336, 339; 625 NW2d 398 (2001).
11
Platte Lake Improvement Ass’n v Dep’t of Natural Resources, 218 Mich App 424, 427; 554
NW2d 342 (1996).
12
See Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996).
13
See Heinz, supra at 295.
-6-
be given its obvious and ordinary meaning, considering the context and any technical terms,
which must be given their particular connotation.14
IV. Statutory Support Obligation
There is no question that MCL 710.51(6)(a) refers to a period of “2 years or more” when
defining the amount of time a parent must fail substantially to support his children in order to
terminate that parent’s parental rights and allow stepparent adoption. Nothing in the statute
requires a family court to restrict its analysis to the two years immediately preceding the
termination petition. Indeed, the wording “or more” suggests that a broader view may be
appropriate in many instances. The construction of this phrase merely requires the family court
to examine the examine the two-years preceding the petition, while allowing it to look further
back in time.15
We see no clear error in the family court’s factual determination that the circumstances of
Dell’s incarceration actually prevented him from being able to pay support for his children in the
two years preceding the petition to terminate his parental rights. However, the family court erred
when, in its final analysis, it ignored the evidence concerning the period when the divorce was
pending. Had the family court examined this evidence, it would have recognized that Dell was
subject to a support order. True, the divorce judgment did not impose a continuing support
obligation on Dell in the sense that he would have to continue to make additional periodic
support payments. However, MCL 710.51(6)(a) does not require a support order to create an
ongoing or future support obligation before the family court can determine whether the
respondent-parent had failed substantially to comply with the support order. Rather, under the
plain language of the statute, it is enough that “a support order has been entered” and, in the two
or more years preceding the termination petition, the respondent-parent “has failed to
substantially comply with the order[.]”
In this case, the divorce judgment “ordered” Dell to pay the “support” due under the
support orders entered while the divorce was pending. This divorce judgment incorporated a
support order that was in effect until it was satisfied. If the support order had ceased to be
effective because of the children’s ages or other reasons, then the family court’s decision in this
case to apply the “ability to pay” analysis would have been proper. However, the terms of the
divorce judgment contradict any conclusion that Dell ceased to have a financial obligation to pay
support under a court order. Simply put, “a support order ha[d] been entered” against Dell,
which made his ability to pay support irrelevant.16 Thus, the family court erred as a matter of law
when it determined that the Castles had failed to support their burden of proving that Dell had the
ability to pay support because this analysis did not apply.
14
See MCL 8.3a; Western Michigan University Bd of Control v State, 455 Mich 531, 539; 565
NW2d 828 (1997).
15
See Halbert, supra at 612; see also Caldwell, supra at 119-120 (agreeing with portion of
Halbert concerning timeframe for support and contact analysis).
16
In re Newton, 238 Mich App 486, 492; 606 NW2d 34 (1999).
-7-
On remand, the family court must consider whether Dell substantially complied with the
order to pay the support arrearage in the two or more years preceding the termination petition. In
doing so, the family may not consider his ability to pay during that period. If the family court
determines that Dell failed substantially to comply with the support order, then it must proceed to
examine whether there was sufficient evidence of Dell’s failure to visit, contact, or communicate
with the children when he had the ability to do so in the two years or more preceding the petition.
The family court is free to hold additional hearings or request additional briefing if necessary.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Henry William Saad
/s/ William C. Whitbeck
-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.
