C in Re Vrk ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re VRK, Minor. May 2, 2024
No. 367877
St. Clair Circuit Court
Family Division
LC No. 23-000006-AY
Before: GADOLA, C.J., and K. F. KELLY and MURRAY, JJ.
K. F. KELLY, J. (concurring).
Although I concur that the Court reached the correct result required under the current state
of the law, I write separately to express how disturbing it is, and my disagreement with, how MCL
710.51(6) is applied to cases such as this. Here, respondent was under a no-contact order
concerning his child because of his conviction and term of imprisonment for offenses including
fourth-degree child abuse. In circumstances such as these, where a noncustodial parent is
prohibited from seeing the minor child as a result of his own criminal conduct, the two-year
requirement under MCL 710.51 should not be a bright-line impediment for petitioners to terminate
respondent’s parental rights. Rather the two-year requirement should be a significant, but not
insurmountable, consideration for the trial court. Thus, while I agree with the disposition of the
case under the prevailing interpretation of MCL 710.51(6), I urge the Legislature to address what,
in my view, is a glaring oversight in the law.
The trial court found that petitioners failed to establish that respondent had the ability to
visit VRK but regularly and substantially failed to do so, see MCL 710.51(6)(b), and denied the
petition. According to the trial court, because respondent was ordered by the terms of his probation
to have no contact with VRK, he did not have the “ability to contact [VRK] for two years.” Thus,
the trial court concluded that “part [of the statute] has not been met and the petition is denied.”
The petitioners had the burden to establish by clear and convincing evidence that
termination of respondent’s parental rights was warranted. In re Hill, 221 Mich App 683, 691;
562 NW2d 254 (1997). Under the stepparent adoption provision, MCL 710.51(6):
(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 a parent having custody of the
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child according to a court order 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. A child
support order stating that support is $0.00 or that support is reserved shall be treated
in the same manner as if no support order has been entered.
(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.
“[I]n order to terminate parental rights under MCL 710.51(6), the trial court must determine
that both subdivision (a) and subdivision (b) are satisfied, as well as conclude that the conditions
set out in the preceding paragraph have been satisfied.” In re AJR, 300 Mich App at 601 (citations
omitted). “[I]n applying MCL 710.51(6), courts are to look at the two-year period immediately
preceding the filing of the termination petition.” In re Talh, 302 Mich App 594, 597-598; 840
NW2d 398 (2013).
Applying the explicit language of the statute, the trial court reached the correct result.
However, the reason why respondent did not have the “ability to visit, contact, or communicate
with” VRK was the direct consequence of respondent’s actions, which he did have the ability to
control. As petitioners succinctly point out, respondent could have requested modifications of the
no-contact order to at least have sent his child cards or letters. He did not. Moreover, whether or
not he foresaw the natural and probable consequences of that conduct is irrelevant. See Sutter v
Biggs, 377 Mich 80, 86; 139 NW2d 684 (1966) (“The general rule . . . is that in a tort action, the
tortfeasor is liable for all injuries resulting directly from his wrongful act, whether foreseeable or
not, provided the damages are the legal and natural consequences of the wrongful act, and are such
as, according to common experience and the usual course of events, might reasonably have been
anticipated.”); People v Robinson, 475 Mich 1, 15; 715 NW2d 44 (2006) (“A defendant is
criminally liable for the offenses the defendant specifically intends to aid or abet, or has knowledge
of, as well as those crimes that are the natural and probable consequences of the offense he intends
to aid or abet.”).
“Michigan courts have long recognized the existence of the wrongful-conduct rule.” Orzel
v Scott Drug Co, 449 Mich 550, 558-559; 537 NW2d 208 (1995). “The wrongful-conduct rule
provides that when a plaintiff’s action is based, in whole or in part, on his own illegal conduct, his
claim is generally barred.” Hashem v Les Stanford Oldsmobile, Inc, 266 Mich App 61, 89; 697
NW2d 558 (2005) (quotation marks and citation omitted). The rule does not derive from equity,
“[i]nstead, the rule is a common-law maxim that operates to deny relief if the claim is based on
the plaintiff’s illegal conduct, a causal connection exists between that conduct and the damages
sought, and the defendant is not more culpable than the plaintiff.” Varela v Spanski, 329 Mich
App 58, 83; 941 NW2d 60 (2019).
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In my view, the trial court should have the discretion to determine whether the wrongful-
conduct rule—here, criminal conduct against the child—bars a respondent’s ability to visit the
minor child as a consideration when analyzing the two-year requirement under MCL 710.51(6).
In this case, respondent’s illegal conduct, which led to a conviction of fourth-degree child abuse,
was the precipitating factor for and caused his inability to have contact with VRK. Similarly, the
court should also have the discretion to consider what, in my opinion, is the primary purpose of
the statute: to provide stability and support for the minor child while allowing the stepparent to
establish a legal, not just emotional, connection with the child. I agree that our result today is
dictated by cases such as In re Kaiser, 222 Mich App 619, 623-624; 564 NW2d 174 (1997), in
which we concluded the trial court’s revocation of visitation rights as a result of allegations of
sexual abuse meant that the respondent was unable to contact the minor child for purposes of MCL
710.51(6)(b). I would merely note that unlike Kaiser, here the respondent was convicted and the
charges are no longer allegations. I urge the Michigan Supreme Court and Legislature to address
the issue.
/s/ Kirsten Frank Kelly
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