In In re LMB (Docket No. 338169), the Court of
Appeals held that entry of an order of filiation while an adoption appeal was
pending mooted the adoption appeal.
The
adoption case involved a putative father who had undisputedly neither provided
any support to the child or the birth mother, nor had any custodial
relationship with the child. The adoption trial court refused to terminate the
putative father’s rights to the child, but its own opinion was highly critical
of the putative father. The prospective adoptive parents appealed the decision
of the trial court, questioning both the trial court’s choice of standard of
proof, and whether custody with the putative father was truly in the child’s
best interests given the copious evidence of immaturity, irresponsibility, and
instability.
After
the Section 39 hearing under the Adoption Code had begun, the putative father
filed a paternity action. While the adoption appeal was pending, the paternity
trial court entered an order of filiation making the putative father the legal
father of the child. The prospective adoptive parents attempted to stay the
paternity case and prevent entry of an order of filiation prior to resolution
of their adoption appeal, but the paternity trial court refused to stay the case, and
the Court of Appeals dismissed the adoption appeal as moot.
In
re LMB brings to light important issues with respect to the interplay of
the Paternity Act and the Adoption Code. The Court of Appeals’ decision, with
no concurrent policy that paternity courts stay their proceedings pending
adoption matters, creates real problems in the area of adoption law. The
ability to moot an adoption appeal simply by obtaining a DNA test and an order
of filiation effectively eliminates the ability of prospective adoptive parents
or birth mothers to appeal any adoption case denying termination of parental
rights, which eliminates appellate review of any adoption decision favoring a
putative father. The ability to actively prevent appellate review through a
concurrent paternity proceeding will lead to poor and inconsistent application
of the law and unpredictability for prospective adoptive parents in any case in
which a putative father may emerge seeking the child.
An
application for leave to appeal is now pending in the Michigan Supreme Court in
LMB, as well as an application to the Court of Appeals of the related
paternity case—in the hopes of obtaining a decision that will preserve
prospective adoptive parents’ right to appeal and adoptees’ rights to a
placement based on their best interests.
Labels: adoption, adoption appeal, adoption code, child's best interests, Detroit, family law, In re LMB, Moot, Order of Filiation, Paternity Action, putative father, Section 39 hearing, Stay Pending Appeal, Wayne County