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Recent Appellate Rulings Create Concern For Michigan Adoptions

Posted on Friday, April 27, 2018



Two recent Michigan Court of Appeals decisions, if not reversed, may end up hindering direct placement adoptions in Michigan.
The rulings in In re MGR, Minor and In re LMB, Minor are concerning for prospective adoptive parents because they allow putative fathers to stop an adoption in its tracks, simply by obtaining an order of filiation from the trial court. 
In both cases, the Court of Appeals indicated that it does not matter how far along in the adoption process the putative father gets the order of filiation, nor does it matter whether he provided no support to the child or the mother.
In re MGR
In re MGR (Docket Nos. 338286 and 340203, issued 2/27/18) is a published and binding decision. The matter involved concurrent adoption and paternity proceedings.
The putative father in the case appeared by telephone at the March 2017 adoption hearing, conducted pursuant to §39 of the Adoption Code (MCL 710.39). The trial court later entered an order indicating it would take no further action in the adoption case until the paternity action was resolved. That order was appealed, and the Court of Appeals granted a motion for immediate consideration.
In a May 2017 unpublished order, the Court of Appeals instructed the trial court to continue the adoption proceedings. Accordingly, the trial court recommenced the §39 adoption hearing and issued an opinion, finding that although the putative father did not appear in person at the March 2017 hearing, he properly appeared by telephone and expressed his intent to pursue custody if a paternity test showed him to be the child’s father. The trial court also determined the putative father was a “do something” father and declined to terminate his parental rights.
On appeal, the appellants argued the trial court should have terminated the putative father’s parental rights because he did not personally appear and contest custody during the §39 hearing. The Court of Appeals disagreed, affirming the trial court’s finding that the putative father properly appeared at the adoption hearing. The Court also dismissed as moot the claim that the adoption proceedings were improperly adjourned.
The appellants further argued the trial court erroneously held that the putative father provided “substantial and regular support or care” to the mother during her pregnancy, so that his parental rights could not be terminated. Ruling this issue was moot, the Court of Appeals said: “After the trial court entered its opinion and order declining to terminate appellee’s parental rights under MCL 710.39(2), the same court entered an order of filiation in the separate paternity action, declaring appellee to be MGR’s biological and, therefore, legal father. Accordingly, appellee is no longer a putative father, and neither we nor the trial court can grant relief under MCL 710.39(1) and (2), which both exclusively address termination of a putative father’s rights during the course of an adoption. As appellee is now considered a legal parent, his rights can only be terminated pursuant to MCL 712A.19b.”
The Court of Appeals continued by finding an order of filiation can control the disposition of the adoption appeal, thus refuting the argument that proceedings under the Adoption Code take precedence over actions under the Paternity Act. “[T]hat argument is contradicted by this Court’s decision in In re MKK [286 Mich App 546 (2009)],” the Court said. “Additionally, although the Legislature has indicated that adoption proceedings should generally have the highest priority on court dockets ‘so as to provide for their earliest practicable disposition,’ … no statutory provision has been pointed out to us mandating that adoption proceedings must always be completed before a determination in a parallel paternity proceeding. MCL 710.25(2) in fact creates an exception to the general rule, allowing for the adjournment of adoption proceedings upon a showing of good cause.”
The In re MKK panel had ruled that good cause to adjourn an adoption hearing “can be established by the existence of a timely paternity action,” the Court of Appeals said, noting that In re MKK is a binding decision that has not been rejected by the courts.
In conclusion, the Court of Appeals discounted the concern that trial courts will “purposefully insulate” their adoption rulings by subsequently entering an order of filiation that would moot the appeal of the earlier adoption ruling. “Rather, we employ the well-earned presumption that trial courts act properly in accord with their constitutional duties,” the Court stated.
In re LMB
In re LMB (Docket No. 338169, issued 3/13/18) is an unpublished decision that, like In re MGR, involved concurrent adoption and paternity proceedings.
The putative father in the case did not support the child or the mother, and did not have a custodial relationship with the child. At the §39 adoption hearing, the trial court refused to terminate the putative father’s rights to the child. The decision was appealed.
After the §39 adoption hearing began, the putative father filed a paternity action. While the adoption appeal was pending, the trial judge in the paternity case entered an order of filiation under which the putative father was held to be the child’s legal father. The prospective adoptive parents filed a motion to stay the paternity case and prevent entry of the order of filiation, but the motion was denied.
The Court of Appeals first decided In re LMB in September 2017, finding that the adoption issue was moot because an order of filiation had been entered by the trial court. The case was subsequently appealed to the Michigan Supreme Court, which vacated the Court of Appeals decision and remanded for reconsideration in light of the Court of Appeals order in Sarna v Healy (Docket No. 341211, issued 12/18/17).
On remand, the Court of Appeals again dismissed the appeal as moot because the order of filiation was not vacated and the respondent’s status as the child’s legal father had not changed.
In reaching this conclusion, the Court of Appeals noted it was bound to follow its decision in In re MGR. “In that case, the trial court entered an order refusing to terminate the then-putative father’s parental rights to MGR pursuant to MCL 710.39, and then, while the petitioners’ appeal of that decision was pending, the trial court entered an order of filiation determining the putative father to be the child’s legal father,” the Court wrote.
“The pertinent facts of this case are the same as in In re MGR and, as a published decision, In re MGR is binding precedent,” the Court of Appeals said. “Accordingly, because respondent father is LMB’s legal father, it is impossible for this Court to grant petitioners’ requested relief and remand for a determination of whether respondent legal father’s rights should be terminated under a section only applicable to putative father.”
Concerns For Prospective Adoptive Parents
The decisions in In re MGR and In re LMB focus on the interplay between the Paternity Act and the Adoption Code. Both rulings create concerns when it comes to adoptions, particularly because there is no policy that paternity proceedings be stayed while an adoption case is pending.
It is especially troublesome that, based on the decisions in In re MGR and In re LMB, a putative father can moot an adoption appeal simply by obtaining a DNA test and an order of filiation. Pursuant to the rulings in both cases, appellate review of an adoption decision favoring the putative father is basically eliminated.
At the Speaker Law Firm, we believe the ability to prevent appellate review through a concurrent paternity proceeding will result in the inconsistent application of the law. Unfortunately, it will also lead to unpredictability for prospective adoptive parents in cases where a putative father comes forth.
Both In re MGR and In re LMB are being appealed to the Michigan Supreme Court.

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Michigan Court Of Appeals: Coercing Child Into Gender Role Is ‘Abuse’

Posted on Friday, April 20, 2018


A trial court properly took jurisdiction over a mother’s three children after she allegedly coerced one of them into a gender role with which the child did not identify, the Michigan Court of Appeals has ruled, finding that the mother’s actions constituted “abuse.”
“[W]e conclude that forcing a child to act as a gender the child does not identify with – whatever gender that is, and whatever gender the parent is attempting to coerce – is certainly the kind of mistreatment by a parent that could cause deep and lasting harm to a child,” the Court of Appeals wrote in In re Churchill/Belinski, Minors (Docket No. 337790, unpublished per curiam opinion, issued 3/15/18).
Accordingly, the Court of Appeals affirmed the Clare County Circuit Court’s order taking jurisdiction over the children and transferring custody of the children to their respective fathers. The Court also affirmed the trial court’s order granting the mother parenting time and directing her to participate in psychological therapy “with a provider of her choice.”
However, in its opinion, the Court of Appeals expressed some concern about the Michigan Department of Health and Human Services’ (DHHS) reasons for pursuing the petition in the first place. “While we have some reservations about [DHHS’s] motives, we reluctantly are required to affirm,” the Court stated.
Trial Court Takes Jurisdiction

The case primarily involved one of the mother’s children being allegedly coerced into a gender role that the child “had previously expressed some interest in but ultimately did not want.”
After the trial court took jurisdiction over the children, the mother appealed. She argued that even if the assertions in the DHHS petition were true, it was insufficient to take jurisdiction over her children.
The mother also asserted that, if the trial court’s decision was affirmed, it would set a dangerous precedent for parents who are trying to care for their gender nonconforming children based on the most recent professional standards because it would categorize the best practices as abuse.
Meanwhile, DHHS maintained that the evidence in the case was “overwhelming.”

‘No Other Option’

In its opinion, the Court of Appeals disagreed with the mother – and also disagreed with DHHS in several respects.
“The evidence was nothing even remotely of the sort,” the Court of Appeals said, referring to DHHS’s claim of “overwhelming” evidence. According to the Court, it was affirming the trial court’s decision “only because the applicable standards of review or mandatory inferences we are required to draw in petitioner’s favor leave us with no other option.”
Notably, the Youth Law Center filed an amicus brief in the matter, arguing it was a case of a child “being taken away from a loving and concerned parent strictly for being transgendered.”
But according to the Court of Appeals, the allegations were “exactly the opposite” – the child was not transgender and the mother “was harming the child by forcing a gender identity onto the child rather than permitting one.”
The Court of Appeals further emphasized that its decision was based on a finding that the law “absolutely cannot countenance, and absolutely deems abusive, forcing a particular gender on a child against the child’s wishes, no matter in which way the gender is forced. In other words, it would constitute abuse to force a child who is transgender to conform to any particular gender identity, as well.”
According to the Court of Appeals, forcing a child to act as a gender the child does not identify with is the kind of mistreatment that could cause long-term harm to a child. In this case, the Court pointed out the child was reportedly not transgender and the mother was allegedly coercing him into a female role against his wishes.
“Such treatment constitutes abuse, and it is therefore a sufficient basis for taking jurisdiction,” the Court of Appeals wrote. “Our conclusion would be identical if [the child] was transgender and respondent was coercing him into a male role against his wishes.”
Based on the seriousness of the allegations, the Court of Appeals said the trial court correctly declined to dismiss the DHHS petition and properly denied the mother’s motion for a directed verdict. The Court further held that the jury verdict was not against the great weight of the evidence.
“Ultimately, despite our concerns, the law precludes this Court from acting as a thirteenth juror, and because it favors resolution of issues on their merits, it constrains us to conclude that the matter was properly submitted to the jury and properly disposed of by the trial court thereafter,” the Court of Appeals concluded.

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Federal Appeals Court: Employer Unreasonably Denied Pregnant Worker’s Telecommuting Request

Posted on Monday, April 16, 2018


            An employer should not have denied an employee’s request to telecommute during the final 10 weeks of her pregnancy because the request was a “reasonable accommodation” under the Americans with Disabilities Act (ADA), the 6th U.S. Circuit Court of Appeals has ruled.
            The decision in Mosby-Meachem v Memphis Light, Gas & Water Division affirmed a jury verdict for the employee of more than $110,000, including compensatory damages and back pay.
            Notably, the decision was issued three years after the 6th Circuit’s ruling in EEOC v Ford Motor Co. In that case, an en banc 6th Circuit held that telecommuting is not a reasonable accommodation, unless an employee shows that regular attendance in the workplace and face-to-face interaction are not essential elements of the job.
Complications During Pregnancy
            The plaintiff was an in-house attorney for Memphis Light, Gas & Water Division (MLG&W). Although the plaintiff’s supervisor had instituted a written policy that required in-office attendance for employees, some employees still worked from home. In fact, at one point, the plaintiff telecommuted for two weeks while recovering from surgery, without any incident.
            The plaintiff had suffered three miscarriages and began having complications when she became pregnant the fourth time. As a result, her doctors placed her on bed rest for the final 10 weeks of her pregnancy. When the plaintiff requested that MLG&W allow her to work remotely during these 10 weeks, the company’s ADA Committee denied the request.
            The plaintiff then sued MLG&W for discrimination. A jury found that MLG&W violated the ADA by denying the plaintiff’s reasonable request to telecommute. The jury awarded the plaintiff $92,000 in compensatory damages and $18,184.32 in back pay.
MLG&W appealed.
Telecommuting Is A ‘Reasonable Accommodation’
            MLG&W argued the jury did not have a sufficient basis to find that the plaintiff could perform all her essential job functions from home. The 6th Circuit disagreed, concluding the plaintiff’s evidence of discrimination “undermined” the evidence presented by MLG&W and “independently supported” the jury’s finding that she could perform the essential functions of her job remotely for 10 weeks.
            In particular, the 6th Circuit emphasized that several MLG&W employees, as well as outside counsel who worked with the plaintiff, testified they believed the plaintiff could perform her essential job functions from home.
            Addressing its 2015 ruling in EEOC v Ford Motor Co, the 6th Circuit noted that decision did not “expressly” preclude teleworking in all cases, particularly when an employee asks to work from home for a “finite period of time,” as the plaintiff did in this case. Accordingly, “a jury could have reasonably concluded from the evidence presented at trial that [the plaintiff] could perform all the essential functions of her job remotely for ten weeks,” the 6th Circuit held.
            In addition, the 6th Circuit denied MLG&W’s request for a new trial. The Court said that, given the amount of evidence supporting the plaintiff’s claim, the lower court did not abuse its discretion in finding that the jury’s verdict was not contrary to the weight of the evidence.
            The 6th Circuit also rejected MLG&W’s argument that the plaintiff was not entitled to back pay because her law license had been briefly suspended and, thus, she was “unqualified” to perform the functions of her job. The Court pointed out it was undisputed that, had MLG&W not denied the plaintiff’s requested accommodation, she would have received her full pay for work she had performed. In addition, the Court noted the potential unlicensed practice of law issue is for the Tennessee Bar to address – not the judiciary.

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Georgia Court of Appeals Holds that a Spouse Living in Michigan May Not File for Custody During a Family Vacation in Georgia

Posted on Tuesday, April 3, 2018

            A recent Georgia Court of Appeals decision resolves a two-year-long jurisdictional dispute between spouses regarding whether, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), their custody case should proceed in Michigan or Georgia. The parties had undisputedly been living in the Mid-West (the husband traveled between Wisconsin, Michigan, and Indiana for work) until the wife decided not to return from Georgia with the children after a family vacation. She filed a complaint for custody in Georgia, and subsequently, the husband filed a divorce complaint in Michigan. 
            In February 2016, the Michigan trial court dismissed the custody case in Michigan, finding that under the UCCJEA jurisdiction was proper in Georgia because the Georgia case had been filed first.
            On October 10, 2016, the Michigan Court of Appeals reversed. Bowman v Bowman, Docket No. 331870. The Court of Appeals held that the trial court erred because it should have followed the procedure stated in MCL 722.1206 for a child-custody proceeding commenced when a child-custody proceeding has already been commenced in a court of another state with jurisdiction in substantial conformity with the UCCJEA. Specifically, MCL 722.1206 requires the court to communicate with the court of the other state, and that court of the other state may determine whether it will exercise jurisdiction.
            On remand the Michigan trial court communicated with the Georgia trial court, and the trial courts decided that Georgia would exercise jurisdiction. However, the husband appealed the Georgia trial court’s exercise of jurisdiction to the Georgia Court of Appeals.
            Meanwhile, the Michigan trial court had to determine whether the divorce case could remain in Michigan without the custody portion of the divorce case. The trial court simply dismissed the case because the custody case was to be in Georgia, but the Michigan Court of Appeals reversed, holding that the trial court had to consider whether the husband satisfied the residency requirements for a divorce. Bowman v Bowman, Docket No. 339702.
            Most recently, on March 6, 2018, the Georgia Court of Appeals issued a decision holding that the Georgia trial court did not have jurisdiction. Bowman v Bowman, Case No. A17A2082. The Georgia Court of Appeals noted that at the time the wife filed the custody petition, the only connections between the children and Georgia were that one of the children was born there, they had grandparents and other family there, and they had visited those grandparents in Georgia in the past. These were not significant connections sufficient to satisfy the UCCJEA and Georgia could not exercise jurisdiction because significant connections existed between the children and Michigan as determined by the Michigan trial court. Thus, the Georgia Court of Appeals remanded the case for dismissal.
            After two years, and three appellate decisions in two separate states, the courts have finally come to the conclusion that a spouse may not simply file a custody petition in another state while visiting for a vacation.

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Federal Appeals Court Revives Michigan Transgender Bias Suit

Posted on Monday, March 26, 2018


Discrimination based on a person’s transgender status is discrimination based on sex and is prohibited under Title VII of the Civil Rights Act of 1964, the 6th U.S. Circuit Court of Appeals has ruled.
The decision in EEOC v R.G. & G.R. Harris Funeral Homes, Inc. reinstated a funeral director’s transgender bias claim against the Michigan funeral home that had fired her.
In its ruling, the 6th Circuit rejected the funeral home’s argument that it was protected by the Religious Freedom Restoration Act (RFRA). The funeral home’s owner claimed that employing the director, who was biologically male but was transitioning to female, went against his Christian beliefs.
The decision comes on the heels of two rulings out of the 2nd U.S. Circuit Court of Appeals and 7th U.S. Circuit Court of Appeals. Both of those decisions held that discrimination based on sexual orientation is prohibited under Title VII. 
Fired Funeral Director
Aimee Stephens, a funeral director at R.G. & G.R. Harris Funeral Homes, was born male. She was fired from her job after informing the funeral home’s owner that she intended to transition from male to female and intended to present as a female at work. 
After being discharged, Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC), asserting discrimination based on sexual orientation. The EEOC investigated and filed suit against the funeral home in the Eastern District of Michigan, alleging sex discrimination in violation of Title VII. The funeral home filed a motion to dismiss the EEOC’s lawsuit, arguing there was no valid sex discrimination claim. The funeral home maintained the RFRA precluded the enforcement of Title VII because doing so would “substantially burden” the funeral home owner’s exercise of his religious beliefs. 
The Eastern District of Michigan dismissed the EEOC’s complaint, holding that transgender status is not a protected trait under Title VII and that the EEOC could not file a discrimination claim based solely on the plaintiff’s transgender and/or transitioning status. In so ruling, the Eastern District accepted the funeral home’s argument that the RFRA applied.
On appeal, the 6th Circuit reversed. According to the Court, the Eastern District improperly held that a claim cannot be pursued under Title VII based on transgender/transitioning status.

“Stereotypical Notions”
In its decision, the 6th Circuit explained that sexual stereotyping and transgender discrimination are “based on the non-conformance of an individual’s gender identity and appearance with sex-based norms or expectations.” As a result, discrimination because of an individual’s transgender status “is always based on gender stereotypes: the stereotype that individuals will conform their appearance and behavior – whether their dress, the name they use, or other ways they present themselves – to the sex assigned them at birth,” the Court said.
According to the 6th Circuit, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The Court explained that an employer cannot discriminate based on transgender status without imposing its stereotypical notions of how “sexual organs and gender identity ought to align” and there is “no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity.”
Rejecting the funeral home’s claim that the RFRA precluded enforcement of Title VII, the 6th Circuit pointed out the RFRA prohibits the government from “substantially burdening” a person’s exercise of religion, unless the government demonstrates the burden is:

  • in furtherance of a compelling governmental interest, and
  • the least restrictive means of furthering that compelling governmental interest.

In this case, the 6th Circuit said the funeral home’s argument that the “burden” in connection with Stephens presenting as female – namely that it (1) would be a “distraction” for the deceased’s family members and (2) would force the funeral home to violate the owner’s faith – was not “substantial” within the meaning of RFRA. 
Addressing the “distraction” argument, the 6th Circuit said a religious claimant “cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.” Regarding the “faith” argument, the Court explained that allowing Stephens to wear attire that reflects a conception of gender that is at odds with the owner’s religious beliefs was not a substantial burden because “tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.” The Court added, “[T]he fact that [the funeral home owner] sincerely believes that he is being compelled to make such an endorsement does not make it so.” 
In conclusion, the 6th Circuit noted that even if a substantial burden was involved, enforcing Title VII was the least restrictive means of furthering the compelling interest of preventing workplace discrimination. “Where the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme’s objectives is through its enforcement,” the Court wrote.

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