Michigan Court Case: In the Matter of Caldwell

In the Matter of GABRIEL ALLEN CALDWELL, Minor. KAETLYN E. RUSSELL a/k/a SHELLY ANN CALDWELL and HARRY C. RUSSELL, Petitioners-Appellees, v ERIK M. CALDWELL, Respondent-Appellant. 

No. 197219 

COURT OF APPEALS OF MICHIGAN 

228 Mich. App. 116; 576 N.W.2d 724 

May 7, 1997, Submitted 

February 13, 1998, Decided 

LC No. 96-016911-AD. Kent Probate Court. 

Affirmed. 

COUNSEL:
Bowern, Distel & Numinen, PLC (by Karl P. Numinen), for Harry C. and Kaetlyn E. Russell. Grand Rapids.

Donn Hubbell, for Erik M. Caldwell. Cadillac.

Amicus Curiae:

Diane Michelsen and Monica Farris Linkner for American Academy of Adoption Attorneys. Lafayette, CA, Berkley. 

JUDGES:
Before: Corrigan, C.J., and Kelly, Wahls, Neff, Reilly, Fitzgerald and Bandstra, JJ. 

OPINION:

CORRIGAN, C.J.
This Court convened this special panel under Administrative Order No. 1996-4, now MCR 7.215(H)(3), to resolve the conflict between the prior vacated opinion in this case, In re Caldwell, 225 Mich. App. 801, 571 N.W.2d 218 (1997), and In re Halbert, 217 Mich. App. 607; 552 N.W.2d 528 (1996), regarding the interpretation of MCL 710.51(6); MSA 27.3178(555.51)(6). The original Caldwell panel, in compliance with Administrative Order No. 1996-4, now MCR 7.215(H)(1), followed this Court's holding in Halbert that an incarcerated parent fails outside the scope of MCL 710.51(6); MSA 27.3178(555.51)(6). If not for the precedential effect of Halbert, the Caldwell panel would have remanded this matter to permit the probate court to exercise its discretion to admit evidence regarding the best interests of the child. We agree with the prior panel and hold that the statute applies to an incarcerated parent. We further conclude, however, that the trial court's error in excluding evidence was harmless, and we therefore affirm.
Petitioner mother gave birth to the minor child during her marriage to respondent father. They separated in 1991, shortly before their son's first birthday and five months before the conviction for which respondent remains incarcerated. Petitioner mother and respondent divorced in 1994. Petitioner mother remarried, and her husband eventually sought to adopt the minor child. Pursuant to that request, the probate court considered whether to terminate respondent's parental rights under MCL 710.516); MSA 27.3178(555.51)(6). The statute provides: