In Re Lsm Minor ( 2023 )

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UNPUBLISHED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 LSM, Minor. July 27, 2023
No. 364895
Macomb Circuit Court
Family Division
LC No. 2022-000586-AD
Before: GLEICHER, C.J., and JANSEN and HOOD, JJ.
PER CURIAM.
Before LSM’s birth, respondent-father signed a form attesting that he is LSM’s father and
“deny[ing] any interest in the custody of the child.” He also “g[a]ve up his right to notice” of the
hearing to terminate his parental rights. Respondent now contends that he did not understand the
form and that his parental rights were unconstitutionally terminated without notice and an
opportunity to be heard. Respondent validly waived his rights. We affirm.
I. BACKGROUND
Respondent and CML are the biological parents of LSM. They were never married.
Respondent was incarcerated before LSM’s birth and will remain in prison until at least 2031.
During her pregnancy, CML decided to place the child for adoption. CML chose the child’s
adoptive parents and their attorney began making necessary legal arrangements.
Relevant to this appeal, counsel for the adoptive parents sent respondent a “notice to
putative father and custody statement.” This is a Supreme Court Administrative Office (SCAO)
approved form (PCA 316) meant to comply with MCL 710.36 and MCL 710.37 of the Adoption
Code and MCR 3.801. The form notified respondent that CML “intends to file a petition” relative
to “an unborn child expected on or about 11/25/2022” and that “you are the father.” It continued
that CML “intends to sign a release or consent relinquishing her rights to the child.” The form
advised:
The law provides that as a putative father, you have a right to request custody of
the child. The law also provides that your failure to appear at the hearing on your
petition shall constitute a denial of your interest in the custody of the child, which
shall result in the court’s termination of your parental rights to the child.
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In the event respondent did “not want to request custody of the child,” the form instructed
respondent to fill out the embedded “custody statement of putative father” and send it to the
adoptive parents’ attorney. Respondent did so, checking a box indicating, “I voluntarily state: . . .
I am the father of the child and deny any interest in the custody of the child.” The next line
provided, “I give up my right to notice of the time and place of hearing to identify the child’s father
and determine or terminate his parental rights.” Respondent signed the form in front of a witness,
“T. Duclo.”1
The adoptive parents took custody of the child after her birth. With CML’s consent, the
court proceeded to terminate her parental rights. Armed with the signed custody statement, the
court entered an ex parte order terminating respondent’s rights without notifying respondent of the
hearing. Respondent appeals from that order.
II. ANALYSIS
Respondent failed to preserve his due process challenge by raising it below. See Glasker-
Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). Therefore, our review is
limited to plain error affecting respondent’s substantial rights. In re VanDalen, 293 Mich App
120, 135; 809 NW2d 412 (2011).
Parents have “a fundamental liberty interest in the care, custody, and management of [their]
child[ren]” that is protected by the due process clauses of the United States and Michigan
Constitutions. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009) (quotation marks and citation
omitted). “At its core, due process requires the opportunity to be heard at a meaningful time and
in a meaningful manner.” In re BGP, 320 Mich app 338, 343; 906 NW2d 228 (2017) (cleaned
up).
The proceedings at issue were governed by provisions of the Michigan Adoption Code,
MCL 710.21et seq. MCL 710.36(1) states:
If a child is claimed to be born out of wedlock and the mother executes or proposes
to execute a release or consent relinquishing her rights to the child or joins in a
petition for adoption filed by her spouse, and the release or consent of the natural
father cannot be obtained, the judge shall hold a hearing as soon as practical to
determine whether the child was born out of wedlock, to determine the identity of
the father, and to determine or terminate the rights of the father as provided in this
section and [MCL 710.37 and MCL 710.90].
Notice of the hearing described in MCL 710.36(1) must be given to a “putative father who was
not served a notice of intent to release or consent at least 30 days before the expected date of
confinement,” i.e., the mother’s due date, “specified in the notice of intent to release or consent.”
MCL 710.36(3)(b).
1
Respondent contends that T. Dulco was a fellow inmate and not a proper person to witness his
signature. This claim is not supported by the record.
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MCL 710.36(7) recognizes that a putative father may waive his right to notice of the
hearing. MCR 3.801(A) also provides, “A waiver, affirmation, or disclaimer to be executed by
the father of a child born out of wedlock may be executed any time after the conception of the
child.”
The trial court terminated respondent’s parental rights under MCL 710.37(1)(a), which
states:
If the court has proof that the person whom it determines pursuant to [MCL 710.36]
to be the father of the child was timely served with a notice of intent to release or
consent pursuant to [MCL 710.34(1)] or was served with or waived the notice of
hearing required by [MCL 710.36(3)], the court may permanently terminate the
rights of the putative father under any of the following circumstances:
(a) The putative father submits a verified affirmation of his paternity
and a denial of his interest in custody of the child. [Emphasis
added.]
This provision was met here. Respondent was served with a notice to putative father, affirmed
that he is the child’s father, and denied any interest in custody. He waived notice of the termination
hearing.
Respondent now complains that he did not understand the form and was not provided
counsel. He contends that he was under a significant amount of stress at the time due to his
incarceration and that he did not know that he could request custody despite his incarceration.
Respondent further asserts that he misunderstood the nature of the adoption pursued by the child’s
mother. Accordingly, he asserts that he did not voluntarily waive his rights.
“Waiver is the intentional relinquishment or abandonment of a known right[.]” In re
Ferranti, 504 Mich 1, 33; 934 NW2d 610 (2019) (quotation marks and citation omitted). “[A]
waiver must . . . be explicit, voluntary, and made in good faith. In order to ascertain whether a
waiver exists, a court must determine if a reasonable person would have understood that he or she
was waiving the interest in question.” Estate of Reed v Reed, 293 Mich App 168, 176; 810 NW2d
284 (2011) (quotation marks and citations omitted).
The “notice to putative father and custody statement” advised respondent that CML was
pregnant with his child and intended to relinquish her rights to the child upon his or her birth. The
notice indicated that respondent had a right to request custody of his child. Respondent read these
statements, admitted paternity, and “voluntarily . . . den[ied] any interest in custody of the child.”
The notice specifically advised respondent that he ceded “his right to notice” of the post-birth
hearings to identify the father and terminate his parental rights. The notice was clear and
unambiguous; a reasonable person would understand that he would receive no further notice about
the paternity and termination actions against him.
The absence of counsel did not render respondent’s waiver involuntary. Unlike the court
rules governing involuntary termination under the Juvenile Code, the rules governing involuntary
termination under the Adoption Code do not provide for the appointment of counsel for an indigent
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respondent. See MCR 3.800 et seq. The Supreme Court held in In re Sanchez, 422 Mich 758,
770-771; 375 NW2d 353 (1985), that a court has discretion to appoint counsel “for a nonconsenting
noncustodial parent” facing termination in stepparent adoption proceedings under MCL 710.51(6)
of the Adoption Code. Even were we to extend that reasoning to other involuntary terminations
under the Adoption Code, respondent would not be entitled to relief. Respondent never requested
counsel or attempted in any way to participate in these proceedings. Accordingly, the trial court
had no reason to exercise its discretion in respondent’s favor.
Respondent further claims that his affirmation of paternity was not “verified,” and a DNA
test or affidavit should have been required to verify his paternity for the purpose of MCL
710.37(1)(a). MCR 1.109(D)(3) states:
If a document is required or permitted to be verified, it may be verified by
(a) oath or affirmation of the party or of someone having
knowledge of the facts stated; or
(b) except as to an affidavit, including the following signed and
dated declaration:
“I declare under the penalties of perjury that this has been
examined by me and that its contents are true to the best of my
information, knowledge, and belief.” Any requirement of law that
a document filed with the probate court must be sworn may be also
met by this declaration.
Respondent signed the custody statement, stating “I declare that this ‘Custody Statement of
Putative Father’ has been examined by me and that its contents are true to the best of my
information, knowledge, and belief.” Respondent’s affirmation of paternity was verified and
neither a DNA test nor an affidavit were required.
Respondent validly waived his right to notice and a hearing and cannot now challenge the
termination of his parental rights based on the absence of a notice and a hearing. As respondent
waived his rights, we need not consider his claim that the trial court improperly failed to consider
whether termination of his parental rights was in LSM’s best interests.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Kathleen Jansen
/s/ Noah P. Hood
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