in Re J L Thomas Minor ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re J. L. THOMAS, Minor. June 27, 2019
No. 342183
Wayne Circuit Court
Family Division
LC No. 17-000220-NA
ON REMAND
Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.
CAVANAGH, J. (dissenting).
Our Supreme Court directed us to first determine whether the trial court ordered a DNA
test at DHHS expense. In re J L Thomas, Minor, 503 Mich. 917; 920 NW2d 142 (2018).
Contrary to the majority’s holding, I conclude that the trial court did not order a DNA test at
DHHS expense. Although the referee stated at a pretrial hearing on September 20, 2017 that she
would order DNA testing at DHHS expense, and her proposed order included the
recommendation, the trial court did not sign that order. There was no written order for DNA
testing entered by the trial judge and only the presiding judge, in the exercise of judicial
discretion, had the authority to enter such an order for DNA testing. As this Court noted in In re
AMB, 248 Mich. App. 144; 640 NW2d 262 (2001):
Neither the court rules nor any statute permits a hearing referee to enter an order
for any purpose. In fact, that a hearing referee must make and sign a report
summarizing testimony and recommending action for a judge reveals that the
Legislature specifically denied referees the authority to enter orders, no matter
their substance. (Id. at 217 (footnote omitted).]
It is well established that “a court speaks through its written orders and judgments, not through
its oral pronouncements.” In re Contempt of Henry, 282 Mich. App. 656, 678; 765 NW2d 44
(2009). Because the trial court did not order a DNA test at DHHS expense, DHHS was not
obligated to perform DNA testing. Accordingly, I conclude that the trial court’s finding on
remand that it had ordered DNA testing—despite the facts that the referee had no authority to
enter an order and there is no order signed by the trial judge to that effect—is clearly erroneous.
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Moreover, the trial court was not required to order DNA testing. Neither respondent nor
the DHHS1 filed a paternity action under the Paternity Act, MCL 722.711 et seq. As a putative
father only, it was respondent’s responsibility to establish that he had rights as the legal father of
the child. See In re AMB, 248 Mich. App. at 174. While the child’s mother claimed that
respondent was the father, respondent indicated that he did not know if he was or was not the
child’s father and stated that he “would like a DNA test.” While respondent may have desired a
DNA test, he has cited no legal authority establishing that he was entitled to a DNA test at the
state’s expense before the termination trial was conducted. In a proceeding to terminate parental
rights of a putative father, it is incumbent on the putative father to take some action to establish a
legal relationship with the child. See MCR 3.921(D)(2)(b), (D)(3)(b); In re KH, 469 Mich. 621,
630 n 15; 677 NW2d 800 (2004). Nevertheless, respondent made no effort whatsoever to
establish his paternity interest. Further, respondent made no effort to care for, support, or plan
for the child which is consistent with his failure to assert a paternity interest. Under the
circumstances of this case, the trial court was under no obligation to enter an order for DNA
testing and I would not remand this matter to afford such an opportunity to respondent.
Our Supreme Court also directed us to determine whether the putative father waived any
issue regarding DNA testing or the establishment of paternity by not requesting an adjournment.
J L Thomas, Minor, 503 Mich. at 917. Contrary to the majority’s holding, I agree with the trial
court that respondent waived the issue of genetic testing, as well as the issue of paternity. Even
if respondent relied on the referee’s statement that she would order DNA testing, respondent
clearly knew that he had not submitted any sample for DNA testing before the termination trial
began. Therefore, before the termination trial proceeded, respondent was knowledgeable
enough—even without the assistance of counsel—to appraise the court that DNA testing had not
been conducted. He could have requested DNA testing before the termination proceedings
continued if he relied on the “order” of the trial court to establish his paternity. In other words, if
respondent was denied a perceived right to DNA testing—whether his claim was legitimate or
not—he had the opportunity to speak up and it was not a “stretch” to expect him to do so.
Instead, respondent chose to laugh and mock the proceedings, harboring this claim for his
eventual appeal. And while the majority takes issue with the fact that the referee “treated
respondent differently than the biological mother,” respondent had no right to be treated
similarly—he was merely an alleged father. See MCR 3.903(A)(24). Respondent had no
“parental” rights to consider at the termination trial; the biological mother’s parental rights were
the focus of the proceeding. In any event, under these circumstances, as in the case of Kenner v
Watha, 115 Mich. App. 521, 524; 323 NW2d 8 (1982), I conclude that respondent effectively
waived DNA testing, as well as the issue of paternity.
Moreover, MCR 3.921(D)(3)(b), provides that a court may find that a natural father
“waives all rights to further notice, including the right to notice of termination of parental rights,
and the right to an attorney if he appears, but fails to establish paternity within the time set by the
court.” In this case, respondent appeared and knew well before the termination hearing that his
1
Under MCL 722.714(12), if the child was being supported in whole or in part by public
assistance, the DHHS could have opted to file a paternity action on behalf of the child but that
did not happen in this case.
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paternity was at issue. Nevertheless, he failed to take any action to establish a legal relationship
to the child and failed to seek additional time in which to do so; thus, for this reason, also, I agree
with the trial court that the issues of DNA testing and paternity were waived. That is, the right
that respondent had to attempt to establish his paternity of the child was waived by his complete
failure to take any affirmative action in that regard—either on his own accord or with the court’s
assistance. Therefore, I would conclude that the trial court did not clearly err by finding that a
waiver occurred.
I would also conclude that the trial court properly determined that there was clear and
convincing evidence to support termination of the parental rights of the child’s “unknown
biological father” and that termination was in the child’s best interests. Respondent fails to make
any substantive argument to the contrary. Respondent’s brief argument that termination should
not have been considered because the child was placed with a relative is without merit. Relative
placement is only one factor to consider, and the referee concluded that termination was still in
the child’s best interests because the child was with his siblings, in a stable home he had been in
since his birth, while his mother was incarcerated, and he had no legal father. The trial court’s
determination was not clearly erroneous. See In re White, 303 Mich. App. 701, 713; 846 NW2d
61 (2014). Accordingly, following remand, I would again affirm the order terminating the
parental rights of the child’s “unknown biological father.”
/s/ Mark J. Cavanagh
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