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STATE OF MICHIGAN
COURT OF APPEALS

In the Matter of MADISON RHAE SNYDAL, Minor.

AMBER LAUREEN PARKER and JEREMY LEE PARKER, Petitioners-Appellees, v MATTHEW ABPLANALP, Respondent-Appellant.

UNPUBLISHED November 25, 2008

No. 285747 Jackson Circuit Court Family Division LC No. 07-006849-AY

Before: Fitzgerald, P.J., and Bandstra and O'Connell, JJ. PER CURIAM. Respondent appeals as of right the circuit court order terminating his parental rights to the minor child under MCL 710.51(6). We affirm. If the parents of a child are unmarried but the father has acknowledged paternity, and if "the parent having legal custody of the child subsequently marries and that parent's spouse petitions to adopt the child," the court may terminate the parental rights of the noncustodial parent if both of the following conditions are met: (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. [MCL 710.51(6).] "A petitioner in an adoption proceeding must prove by clear and convincing evidence that termination of parental rights is warranted." In re Hill, 221 Mich App 683, 691; 562 NW2d 254 (1997). "In order to terminate parental rights under the statute, the court must determine that the requirements of subsections (a) and (b) are both satisfied." In re ALZ, 247 Mich App 264, 272; 636 NW2d 284 (2001). We review the trial court's findings of fact for clear error. Hill, -1-


supra at 691-692. "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004). Section 51(6)(a) Respondent argues that the trial court erred in determining1 that he, "having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child . . . for a period of 2 years or more before the filing of the petition." MCL 710.51(6)(a). We disagree. According to the stipulated facts, respondent was incarcerated when the child was born and thus presumably had little to no income. Whether he had any income which would enable him to assist in supporting the child has not been disclosed. At the time the paternity action was initiated, respondent was in a rehabilitation facility operated by the Delancey Street Foundation. Debra Evans, a member of the foundation's legal department, wrote a letter to the Superior Court of San Bernardino County in January 2002 advising that respondent had been a resident of the treatment center "since July 7, 2000. As a resident of Delancey Street he receives no income. He works at one of our business training schools." Respondent testified that when he was expelled from the treatment center in June or July 2002, "he was employed." He also testified "that he had the ability to support the child but chose not to do so" for two years. Respondent, citing In re ALZ, supra, now argues he did not have the ability to support the child because petitioner wanted nothing to do with him and did not want his money. However, respondent waived this issue by admitting below that he had the ability to pay and did not do so for two years. According to the stipulated facts, respondent did not contest the support issue and relied on In re ALZ below only in support of his claim that he lacked the ability to visit, contact, or communicate with the child. See discussion infra. "Error requiring reversal cannot be error to which the aggrieved party contributed by plan or negligence," Phinney v Perlmutter, 222 Mich App 513, 558; 564 NW2d 532 (1997), and a party cannot seek relief on appeal on the basis of a position contrary to that taken below. Flint City Council v State of Michigan, 253 Mich App 378, 395; 655 NW2d 604 (2002).

We note that respondent does not claim that this determination was irrelevant under the statute because an order had been entered stating, consistent with petitioner's request, that respondent had no obligation to pay child support. See In re Van Rijn, unpublished opinion per curiam of the Court of Appeals, issued January 15, 2008 (Docket No. 279660). Because petitioner thus had no opportunity to respond to that argument and the trial court had no reason to develop the factual record surrounding entry of the order to determine its effect upon the argument, we do not consider and offer no opinion with respect to it. Michigan Ed Ass'n v Secretary of State, ___ Mich App ____; ___ NW2d ___; 2008 WL 3183881 (2008), slip op at p 6-7. (We are not obligated to consider issues not properly raised on appeal even if they may "have substantive merit" [citations omitted].)

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Further, In re ALZ is not apposite. In that case, the respondent father contested his ability to visit or otherwise contact the child, under MCL 710.51(6)(b), because the mother asked that he refrain from having contact with the child and, when the respondent initiated a paternity action, the mother opposed his request for parenting time. In re ALZ, supra at 267-268. The trial court agreed, finding that "the mother cannot refuse contact and then rely on the lack of contact to meet the statutory basis." Id. at 270. This Court affirmed. It specifically noted that although the respondent could have refused to honor the mother's request and made an attempt to see the child, his paternity was not established until March 2000, only three months before the termination petition was filed, and until his paternity was established, "he had no legal right to visitation or communication with the child." His only recourse was to file the paternity action, which he did "well within the two-year statutory period under"

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