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unpublished order, the Court of Appeals instructed the trial court to continue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.
Labels: adoption, adoption appeal, adoption code, family law, family law appeal, In re LMB, In re MGR, Order of Filiation, Paternity Act, paternity rights, putative father, Section 39 hearing
