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Court of Appeals Hold that Adoption is Moot After Order of Filiation Entered

Posted on Monday, November 20, 2017

            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.

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2 Trial Judges + Same Facts = Opposite Orders - Which Controls?

Posted on Monday, October 2, 2017

MCR 2.613(B) sets out the limitations on error-correction by one judge of the orders of
another judge and provides the following:

A judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act. If the judge who entered the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be entered by a judge otherwise empowered to rule in the matter.

Morrissette v Doe, (DocketNo. 331941), (a no-fault case) is an interlocutory appeal concerning a procedural issue, namely, a reversal by one judge of the orders of another under MCR 2.613(B)
FACTS:
            Defendant State Farm Mutual Automobile Insurance Company (State Farm) appealed by leave the orders of Wayne Circuit Judge Susan L. Hubbard which granted motions to quash State Farm’s re-notice of the taking of depositions on non-parties Lawrence Falzon and Clem Barney.
            The case was originally assigned to Wayne Circuit Judge Lita M. Popke, but, when she took on the business court docket, her civil docket was reassigned to Judge Hubbard. Judge Popke had ordered Falzon to appear for a deposition, but Judge Hubbard concluded that the deposition was irrelevant and granted Falzon’s motion to quash the taking of his deposition. Judge Hubbard also granted Barney’s motion to quash on the same grounds. Judge Popke had not expressly ordered Barney to appear for a deposition but she had ruled that his role in the case was relevant.
            The only question raised on appeal is whether Judge Hubbard had the authority to reverse or rescind Judge Popke’s earlier orders.
            The Michigan Court of Appeals (MCOA) said “yes” concluding that Judge Hubbard did indeed possess such authority.
Standard of Review:
            The interpretation and application of court rules and the scope of a court’s powers are
questions of law subject to de novo (anew) review. A trial court’s decision regarding discovery is reviewed for an abuse of discretion. The motion to quash the taking of Falzon’s deposition is a motion to reconsider Judge Popke’s earlier order granting State Farm’s motion to show cause; in that context, the trial court’s decision to grant the motion is reviewed for an abuse of discretion.
Analysis:
            The MCOA began its discussion stating the purpose of MCR 2.613(B) is “to ensure that the motion at hand is before the judge most qualified to rule and to prevent so-called “judge shopping,” which “ ‘would obviously detract from the dignity and stability of judicial action . . . .’ ” Clemons v Detroit Dep’t of Transp, 120 Mich App 363, 364. The court concluded that because the parties had no impact on the re-assignment of Judge Popke’s cases, there was no evidence of “judge shopping.”
            Considering the issue of whether a judge can change an order, the MCOA cited MCR 2.119(F)(3) which gives the trial court, until a final order is issued, the discretion to reconsider a prior decision and determine it was mistaken. In this case, the order is not final and thus can be reconsidered.
            The MCOA also wrote that because “Judge Popke’s entire civil docket was transferred to another judge or judges, it is reasonable to conclude that Judge Popke was “absent or unable to act,” thus satisfying the requirements of MCR 2.613(B).
            The court concluded that Judge Hubbard, as successor to Judge Popke through reassignment, had “authority to revisit and reverse the earlier order issued by Judge Popke because no
appellate court had affirmatively ruled on Judge Popke’s order and because the case was still
pending with no final order issued.”
Affirmed.

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Published opinion on ADA discrimination regarding deaf lifeguard

Posted on Friday, January 11, 2013
I'll be honest. When I first started reading the 6th Circuit's opinion in Keith v Oakland County (decided 01/10/13 in a published opinion), I asked myself, how is it possible for a deaf lifeguard to safely perform his duties? But then the opinion cogently described the evidence, including expert evidence, presented in that case about the functions of a lifeguard, and how hearing has almost little to no impact on a lifeguard's performance of safety functions. In fact, the lifeguard with the world record for saving lives was a deaf person and there are many programs to certify deaf lifeguards. Some of the other non-safety related job functions of a lifeguard, such as speaking with patrons who have questions, or attending meetings, could be reasonably accommodated under the American with Disabilities Act. The opinion was very compelling and quickly persuaded me that the plaintiff had created a genuine issue of fact for a jury to decide whether he was qualified to serve as a lifeguard. It apparently is also the first opinion in the country to squarely address this topic. Apparently, the First Circuit issued a decision which opined that denial of employment to a deaf lifeguard could form the basis of an employment discrimination case. That case, however, was not an employment discrimination suit, but a suit regarding the YMCA's revocation of a deaf lifeguard's certification because he could not hear noises and distress signals.

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