A trial court erred by exercising jurisdiction over a juvenile under MCL 712A.2(b) and, therefore, the order terminating the respondent-father’s parental rights to the child had to be vacated, the Michigan Court of Appeals has ruled.
MCL 712A.2(b)(2) says a trial court has jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county: “(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in. …”
MCL 712A.2(b)(6) says a trial court has jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county: “(6) If the juvenile has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8206, and the juvenile’s parent meets both of the following criteria: (A) The parent, having the ability to support or assist in supporting the juvenile, has failed or neglected, without good cause, to provide regular and substantial support for the juvenile for 2 years or more before the filing of the petition or, if a support order has been entered, has failed to substantially comply with the order for 2 years or more before the filing of the petition. … (B) The parent, having the ability to visit, contact, or communicate with the juvenile, has regularly and substantially failed or neglected, without good cause, to do so for 2 years or more before the filing of the petition. …”
According to the Court of Appeals, the trial court in this case did not have jurisdiction to terminate the respondent’s parental rights because:
1) there were no allegations that home where the child was residing was an unfit place for the child to live, as required by MCL 712A.2(b)(2).
2) the respondent’s status as a putative (supposed) father on the date the petition was filed meant that he did not qualify as a “parent” under MCL 712A.2(b)(6).
Judge Kathleen Jansen wrote the published opinion, joined by Judge Kirsten Frank Kelly and Judge Stephen L. Borrello.
In the time since the Court of Appeals decision was issued, the case has been appealed to the Michigan Supreme Court.
IML was born in 2012. Shortly after, the petitioner – the child’s maternal grandmother – was named IML’s legal guardian because the mother had left the child in the petitioner’s custody and did not return.
In 2015, the respondent, believing he may be IML’s father, filed a paternity action in Wayne County Circuit Court. That action was dismissed, however, without any resolution because the respondent was sent to prison.
In 2016, the petitioner sought to terminate the parental rights of IML’s mother and biological father, who remained unknown at the time. The petitioner listed the respondent and another man as putative fathers.
In 2017, the respondent formally established paternity over the child when he and the biological mother filed an acknowledgement of parentage.
A trial was held in November 2017 and an opinion and order were issued in January 2018. In that order, the trial court concluded that statutory grounds for jurisdiction over IML existed pursuant to MCL 712A.2(b)(2) and MCL 712A.2(b)(6).
At a May 2018 hearing, the trial court found that statutory grounds to terminate respondent’s parental rights existed pursuant to MCL 712A.19b(3)(f), (g), (h), and (j). The respondent appealed that decision.
“Definite & Firm” Conviction
That Trial Court Erred
On appeal, the respondent argued the trial court erred in exercising jurisdiction pursuant to MCL 712A.2(b)(2) and MCL 712A.2(b)(6).
“We agree,” the Court of Appeals said, citing In re Sanders, 495 Mich 394 (2014).
In Sanders, the Michigan Supreme Court emphasized that child protective proceedings include two phases: the adjudicative phase and the dispositional phase. “Generally, a court determines whether it can take jurisdiction over the child in the first place during the adjudicative phase,” the Supreme Court said. “Once the court has jurisdiction, it determines during the dispositional phase what course of action will ensure the child’s safety and well-being.”
Child protective proceedings are initiated when a petition is filed in the trial court asserting an offense against a child under the Juvenile Code, the Court of Appeals explained. To obtain jurisdiction, the trial court must determine by a preponderance of the evidence that the child comes within the requirements set forth in MCL 712A.2.
“We first note that in this case, this is not a collateral attack on the trial court’s order terminating respondent’s parental rights,” the Court of Appeals wrote. “In the order terminating respondent-father’s parental rights, the trial court noted that ‘[a]n adjudication was held and the child(ren) was/were found to come within the jurisdiction of this court.’ This was the first order that was appealable as of right, and therefore, respondent-father’s challenge to the trial court’s jurisdiction is not a collateral attack, but rather a direct appeal.”
Next, the Court of Appeals turned to MCL 712A.2(b)(2), pointing out it was undisputed that IML was living with the petitioner and not the respondent at the time the petition was filed. “Additionally, there were no allegations made that petitioner’s home was an unfit place for IML to live, as is required by 712A.2(b)(2),” the Court stated. “Because at the time the petition was filed, there were no allegations that petitioner’s home was ‘an unfit place for the juvenile to live in,’ we are left with a definite and firm conviction that the trial court erred by exercising jurisdiction under MCL 712A.2(b)(2).”
The Court of Appeals then examined MCL 712A.2(b)(6). “[T]here is no dispute that IML had a legal guardian, petitioner, at the time the petition was filed,” the Court said. “Likewise, there is no dispute that respondent-father was only a putative father at the time the petition was filed in this case. In fact, respondent-father was not determined to be IML’s legal father until September 7, 2017 – over a year after the petition was originally filed – when he and the child’s mother filed an acknowledgment of parentage.”
Because the trial court is required to “examine the child’s situation at the time the petition was filed,” the respondent’s status as a putative father on the date the petition was filed meant that he did not qualify as a “parent” under MCL 712A.2(b)(6), the Court of Appeals said. “Therefore, respondent-father’s actions in the two years or more preceding the filing of the petition are immaterial.”
According to the Court of Appeals, “Although there was some evidence presented that respondent-father believed he could have been IML’s father and should have perfected paternity sooner, as a putative father, he would have had no legal rights or obligations to IML before September 7, 2017. Regardless of any moral obligation, as a putative father, respondent-father had no legal obligation to IML.”
As a result, “[w]e therefore conclude that to rely on a putative father’s action or inaction in the two years or more preceding the filing of a petition when considering whether to exercise jurisdiction under MCL 712A.2(b)(6) is violative of due process,” the Court of Appeals held. “Based on the foregoing, we are left with a definite and firm conviction that the trial court erred by exercising jurisdiction under MCL 712A.2(b)(6).”