MSC Vacates Published Opinion In Stepparent Adoption Case | Speaker Law
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MSC Vacates Published Opinion In Stepparent Adoption Case

Posted on Wednesday, May 18, 2022

The Michigan Supreme Court has voided the Michigan Court of Appeals published decision in In re BMGZ, Minor, a stepparent adoption case where the plaintiffs wanted Special Immigrant Juvenile (SIJ) status for the minor child.

The minor, BMGZ, was born in Honduras. Her mother and father were never married and her father was not named on her birth certificate. BMGZ was about 8 years old when she came to the United States with her mother. BMGZ’s mother married while living in the United States.

In February 2020, the plaintiffs – BMGZ’s mother and stepfather – filed a stepparent adoption petition in the Kent County Circuit Court, asserting that BMGZ’s biological father had “failed to provide support or comply with a support order and failed to visit or contact the adoptee for a period of 2 years or more.” The plaintiffs requested a hearing to identify BMGZ’s father and to terminate his parental rights. They also filed a motion asking the trial court to make special findings so BMGZ could apply for SIJ status pursuant to 8 USC 1101(a)(27)(J). Under 8 USC 1101(a)(27)(J)(i), a “special immigrant” is a person who “has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States.”

The trial court held a hearing and, as required by law, found that: 1) BMGZ was less than 21 years old, 2) BMGZ was not married, 3) BMGZ was not dependent on a United States juvenile court and 4) it was not in BMGZ’s best interests to return to Honduras to her biological father because he was a putative father and not a legal father. The trial court further ruled it could not find that reunification with one or both parents was not viable due to abuse, abandonment or neglect because BMGZ only had one legal parent (her mother) and there were no allegations that her mother had abused, neglected or abandoned her. Accordingly, the trial court denied the plaintiffs’ motion regarding SIJ status.

The plaintiffs appealed, arguing the trial court wrongly denied their motion for special findings related to SIJ status.

COA Affirms Trial Court

On appeal, the Court of Appeals affirmed the trial court’s decision in a published opinion (Docket No. 355922) released in September 2021. Judges Christopher M. Murray, Michael J. Kelly and Colleen A. O’Brien were on the appellate panel.

In its analysis, the Court of Appeals explained the trial court could not make the required factual findings because BMGZ only had a putative father. “However, simultaneously with the petition for stepparent adoption and the motion for special findings to enable BMGZ to apply for SIJ status, petitioners filed a petition seeking to identify BMGZ’s putative father as BMGZ’s legal father and to terminate his parental rights. Given that the matter was pending before the trial court, we conclude that its decision as to the second and third special findings was premature.”

Despite these “premature” findings by the trial court, the Court of Appeals said the trial court’s decision did not require reversal. “The trial court did not clearly err by finding that BMGZ was not ‘dependent upon the juvenile court while [she] was in the United States and under the jurisdiction of the Court’ because a ‘step-parent adoption does not make any minor child dependent upon the Court.’ Although the trial court was a juvenile court located in the United States, an order entered as a result of a stepparent adoption would not make BMGZ dependent upon the court ‘in accordance with state law governing such declarations of dependency ….’”

Rather, according to MCL 710.51(1), “the trial court may enter an order terminating the parental rights of one or both parents and approving the placement of the child with the petitioner if the judge is satisfied that the requirements in MCL 710.51(a) and (b) are met. Nothing in MCL 710.51(1) addresses whether the court’s order terminating a single parent’s parental rights and approving a stepparent’s petition for adoption makes the child ‘dependent’ on the juvenile court.”

The Court of Appeals also pointed out that MCL 710.51(3) says, “Upon entry of an order terminating rights of parents or persons in loco parentis, a child is a ward of the court and a consent to adoption executed under section 43 of this chapter shall not be withdrawn after the order is entered. Entry of the order terminates the jurisdiction of the same court or another court over the child in a divorce or separate maintenance action. If the petitioner for adoption is married to the parent having legal custody of the child, the child shall not be made a ward of the court after termination of the rights of the other parent.” Because BGMZ’s mother had legal custody and was married to the person petitioning for adoption, the Court of Appeals said the trial court could not make BMGZ a “ward of the court” after terminating the parental rights of the biological father. “Therefore, even if the stepparent adoption is approved, BMGZ cannot be made dependent on the court because under such circumstances the trial court is expressly prohibited from making her a ward of the court.”

The Court of Appeals further held that the plaintiffs’ reliance on MCL 710.39 was “misplaced.” MCL 710.39 statute sets forth the procedure by which a trial court can terminate the rights of a putative father. “[The plaintiffs] suggest that by terminating the parental rights of a putative father and approving the adoption of the child by a step-parent, the court’s actions make the child dependent upon the court. However, given that MCL 710.51(3) expressly states that such an action cannot make the child a ward of the court, we find the argument without merit. Dependency on the court means something more than being affected by a decision of the court. If that were not the case, then there would be no need for there to be three separate methods of satisfying the first special finding. … If any order by a juvenile court affecting an immigrant juvenile were sufficient to establish dependency, then the alternate ways of meeting the definition would be rendered meaningless.”

Accordingly, “although the trial court prematurely made findings related to the second and third requirements set forth in 8 USC 1101(a)(27)(J)(i)-(ii), its findings that the first requirement was not satisfied was not clearly erroneous,” the Court of Appeals concluded. “Consequently, reversal is not warranted.”

Published Opinion Vacated

After the Court of Appeals released its decision, the plaintiffs appealed to the Michigan Supreme Court. In lieu of granting leave to appeal, the high court issued an order in April 2022 (Docket No. 163703). The order states:

“… Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals. On December 14, 2021, the trial court denied appellant’s petition for stepparent adoption because the proposed adoptee had turned 18, although the denial was without prejudice to filing a petition for an adult adoption. Because the underlying proceedings have been dismissed, this appeal, which challenges the trial court’s interlocutory decision to decline appellant’s request that it make factual findings in support of appellant’s pursuit of Special Immigrant Juvenile status, is moot. Where a case is rendered moot while on appeal, it is appropriate to vacate the decisions of the lower courts. … In all other respects, the application for leave to appeal is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.”

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