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

Posted on Tuesday, May 8, 2018

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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