in Re Mgr ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
In re MGR, Minor. February 27, 2018
9:20 a.m.
Nos. 338286; 340203
Oakland Circuit Court
Family Division
LC No. 2016-842995-AD
Before: TALBOT, C.J., and MURRAY and O’BRIEN, JJ.
MURRAY, J.
These consolidated appeals1 involve concurrent adoption and paternity proceedings. In
Docket No. 338286, we affirm the trial court’s decision in part, but dismiss as moot the second
issue appellants, the prospective adoptive parents, raise on appeal. We also dismiss as moot the
appeal in Docket No. 340203.
I. FACTS AND PROCEDURAL HISTORY
MGR was born on June 5, 2016, and immediately placed by his mother in the custody of
appellants through Morning Star Adoption Center. Appellants then filed a petition for direct
placement adoption, listing appellee as MGR’s putative father.2 Meanwhile, appellee initiated
simultaneous proceedings by filing a notice of intent to claim paternity, and expressing his desire
to seek custody of MGR.3
1
In re MGR, unpublished order of the Court of Appeals, entered October 18, 2017 (Docket Nos.
338286 and 340203).
2
Neither the Adoption Code, MCL 710.22, nor the Paternity Act, MCL 722.711, defines the
term “putative father.” However, this Court defined putative father for purposes of the Paternity
Act as “a man reputed, supposed, or alleged to be the biological father of a child.” Girard v
Wagenmaker, 173 Mich. App. 735, 740; 434 NW2d 227 (1988), rev’d on other grounds 437 Mich.
231 (1991). We see no reason why this same definition should not apply to that term under the
Adoption Code.
3
The paternity proceedings were initially filed in Macomb County, but were later moved to
Oakland County.
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On March 24, 2017, the trial court commenced a hearing under MCL 710.39 (Section 39)
of the Adoption Code,4 during which appellee appeared by telephone. However, on April 17,
2017, the trial court entered an order indicating it would take no further action in the adoption
case until a resolution was reached in the paternity action. Appellants appealed that order, and a
panel of this Court granted their motion for immediate consideration, In re MGR, unpublished
order of the Court of Appeals, entered May 19, 2017 (Docket No. 338286), and ordered the trial
court to continue the adoption proceedings by scheduling a Section 39 hearing, In re MGR,
unpublished order of the Court of Appeals, entered May 31, 2017 (Docket No. 338286).
The trial court recommenced the Section 39 hearing in the adoption proceedings on
August 7 and 8, 2017, and issued its opinion and order on September 14, 2017. It first concluded
that although appellee did not appear in person at the March 24, 2017 hearing, he properly
appeared via telephone and expressed his intent to pursue custody if a paternity test determined
him to be MGR’s father. Further, the trial court determined that appellee was a “do something”
father, and declined to terminate his parental rights under MCL 710.39(2).
II. ANALYSIS
A. DOCKET NO. 338286
In Docket No. 338286, appellants appeal as of right the trial court’s April 17, 2017 order
adjourning the adoption proceedings pending resolution of appellee’s paternity action. They first
argue that the court committed clear legal error by failing to terminate appellee’s parental rights
because he did not personally appear and contest custody during the initial Section 39 hearing.
Secondly, appellants argue that the trial court erred when it adjourned the adoption proceedings
because appellee did not request an adjournment, and failed to demonstrate the good cause
necessary to warrant an adjournment. For the reasons stated in Judge O’Brien’s partial
dissenting opinion, we (1) affirm the trial court’s conclusion that appellee properly appeared at
the Section 39 hearing, and (2) dismiss as moot appellants’ argument that the court erred when it
adjourned the adoption proceedings.
B. DOCKET NO. 340203
In Docket No. 340203, appellants appeal as of right the trial court’s September 14, 2017
opinion and order declining to terminate appellee’s parental rights pursuant to MCL 710.39(2).
Specifically, appellants assert that the trial court erroneously found that appellee provided
substantial and regular support or care to MGR’s mother during her pregnancy, such that his
parental rights cannot be terminated under MCL 710.39(2). This issue is, likewise, moot.
“An issue is moot if an event has occurred that renders it impossible for the court, if it
should decide in favor of the party, to grant relief.” City of Jackson v Thompson-McCully Co,
LLC, 239 Mich. App. 482, 493; 608 NW2d 531 (2000). Generally, appellate courts do not decide
moot issues. B P 7 v Bureau of State Lottery, 231 Mich. App. 356, 359; 586 NW2d 117 (1998).
4
MCL 710.21 et seq.
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Through this appeal, appellants are seeking reversal of the trial court’s application of MCL
710.39(2), based on the argument that under the facts appellee was a “do nothing” father, thus
warranting application of MCL 710.39(1), rather than MCL 710.39(2). If they were to succeed
in this argument, on remand, the trial court would be required to apply the termination provisions
of MCL 710.39(1). But, as explained below, an order of filiation entered after the order on
appeal “renders it impossible for the court, if it should decide in favor of [appellants], to grant
relief” under that statutory provision. City of Jackson, 239 Mich. App. at 493. The appeal is
therefore moot.
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. See In re MKK, 286 Mich. App.
546, 558; 781 NW2d 132 (2009) (“Once a man perfects his legal paternity, he is considered a
‘parent,’ with all the attendant rights and responsibilities, and termination of his parental rights
can generally only be accomplished in cases of neglect or abuse under MCL 712A.19b.”). A
remand to address statutory provisions that pertain to putative fathers, when there is no longer a
putative father in this case, would provide no proper legal remedy at all.
Appellants argue that certain provisions of the Adoption Code (MCL 710.36, MCL
710.37, and MCL 710.39) address termination of a legal father’s parental rights, so an order of
filiation does not render moot the proceedings under the Code. This argument focuses on the
wrong issue. Whether these other sections can affect a legal father’s rights under the Code has
no impact on whether, on remand, a remedy to appellants would exist under MCL 710.39 in light
of the order of filiation. The answer to that question solely involves what Section 39 governs.
And, as we have previously stated, when it comes to terminating the parental rights of a legal
father so that an adoption can move forward, the provisions of Section 39 simply do not apply.
In re MKK, 286 Mich. App. at 558.5
For a couple of reasons, we disagree with appellants’ argument that the order of filiation
cannot control the disposition of this adoption appeal because proceedings under the Adoption
Code take precedence over separate paternity actions. See generally MCL 710.21a. For one,
that argument is contradicted by this Court’s decision in In re MKK. Additionally, although the
Legislature has indicated that adoption proceedings should generally have the highest priority on
5
Although MCL 710.36(1) does authorize trial courts to conduct hearings to determine the
identity of a child’s father where the release or consent of the natural father cannot be obtained,
appellants appear to ignore that portion of MCL 710.36(1) which further provides that as part of
the hearing, the court may terminate the rights of that father as provided in Sections 37 and 39 of
the Adoption Code. MCL 710.37 and MCL 710.39 apply only to putative fathers, and as
provided above, appellee is no longer a putative father. He is MGR’s biological and legal father.
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court dockets “so as to provide for their earliest practicable disposition,” MCL 710.25(1)
(emphasis added), 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 Court held that good cause
to adjourn an adoption hearing can be established by the existence of a timely paternity action:
in cases . . . where there is no doubt that [the] respondent is the biological father,
he has filed a paternity action without unreasonable delay, and there is no direct
evidence that he filed the action simply to thwart the adoption proceedings, there
is good cause for the court to stay the adoption proceedings and determine
whether the putative father is the legal father, with all the attendant rights and
responsibilities of that status. [In re MKK, 286 Mich. App. at 562.]
Importantly, the Court also acknowledged:
[W]hile a stated purpose of the Adoption Code is to “safeguard and promote the
best interests of each adoptee,” upholding the rights of the adoptee as paramount
to those of any other, see MCL 710.21a(b), the general presumption followed by
courts of this state is that the best interests of a child are served by awarding
custody to the natural parent of parents, see e.g., Hunter v Hunter, 484 Mich. 247,
279; 771 NW2d 694 (2009) (holding that “the established custodial environment
presumption in MCL 722.27[1][c] must yield to the parental presumption in MCL
722.25[1]”). Thus, giving a paternity action priority over an adoption proceeding
does not necessarily conflict with protecting the best interests of the child. [In re
MKK, 286 Mich. App. at 562-563 (alterations in original).]
Although appellants disagree with the conclusion set forth in In re MKK, it is a binding decision
that has not been rejected by this Court or the Michigan Supreme Court.6
We also do not share appellants’ concern that trial courts will purposefully insulate their
adoption decisions by subsequently entering an order of filiation that, under our decision today,
would moot the appeal of the earlier adoption decision. Rather, we employ the well-earned
presumption that trial courts act properly in accord with their constitutional duties. People v
6
The recent Supreme Court order in In re LMB, ___ Mich ___; 905 NW2d 598 (2018), a case
likewise involving separate adoption and paternity actions, does not affect our decision. There,
subsequent to a decision of this Court dismissing as moot the prospective adoptive parents’
appeal from the trial court’s order declining to terminate the respondent father’s parental rights
pursuant to MCL 710.39(1), In re LMB, unpublished per curiam opinion of the Court of Appeals,
issued September 14, 2017 (Docket No. 338169), p 1-2, a separate panel of this Court
peremptorily reversed a separate trial court’s refusal to stay the putative father’s paternity action
pending final resolution of the adoption case, Sarna v Healy, unpublished order of the Court of
Appeals, entered December 18, 2017 (Docket No. 341211). The same procedural circumstances
do not exist in this case.
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Purcell, 174 Mich. App. 126, 129; 435 NW2d 782 (1989). Nothing in the record before us
suggests that the trial court acted improperly in deciding the paternity case once it had resolved
the Section 39 issue.7
Based on the foregoing, in Docket No. 338286, we affirm that portion of the trial court’s
April 17, 2017 opinion and order concluding that appellee properly appeared via telephone at the
Section 39 hearing, but dismiss as moot appellants’ argument that the trial court erred when it
adjourned the adoption proceedings. We also dismiss as moot the appeal in Docket No. 340203.
/s/ Christopher M. Murray
/s/ Michael J. Talbot
7
Interestingly, appellants’ theory could only occur if the adoption issue was decided first,
something appellants advocate should occur in every case.
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