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Unknown Father’s Rights Terminated: MSC Vacates Decision, Remands Matter For Specific Answers

Posted on Tuesday, May 21, 2019

The Michigan Supreme Court has vacated a Court of Appeals decision that terminated an unknown biological father’s parental rights, instructing the appellate court to remand the case to the trial court for further determinations.

In In re Thomas (Docket No. 158420), the Supreme Court said the trial court must determine whether:

  1. the trial court ordered a DNA test at Department of Health and Human Services (DHHS) expense, as stated by the referee, and, if so, whether the testing occurred.
  2. the trial court extended the time for the putative father to establish paternity.
  3. the putative father was able to speak at the termination trial by speakerphone.
  4. the putative father waived any issue regarding the DNA test or the establishment of paternity by not requesting an adjournment.

“At the conclusion of the hearing, the trial court shall forward the record and its findings to the Court of Appeals, which shall then reconsider these issues and the issues raised by the appellant in his brief on appeal,” the Supreme Court said in its order.

The Court of Appeals has since remanded the matter to the trial court, which must answer the questions presented by the Michigan Supreme Court.

Termination Of Parental Rights

On August 19, 2017, DHHS petitioned for removal of the minor child, JT, from the mother’s care and termination of parental rights due to the mother’s incarceration for second-degree murder. The petition also named the respondent, who was incarcerated for second-degree murder, as JT’s putative father. As a result, JT was placed with his maternal grandfather. Previously, the mother’s rights to two other children had been terminated and these half-siblings had also been placed with the maternal grandfather.

A pretrial was held September 20, 2017, where the respondent was present via speakerphone. The respondent had not established paternity for JT. When asked if he “has any interest” in JT, the respondent said, “I’m not saying the child is mine or isn’t mine. But before I say that he is or isn’t, I would like a DNA test before we move any further.” A DNA test at DHHS expense was ordered. The referee indicated the termination trial would be adjourned if a DNA test was not yet available on the date of trial.

A termination trial was held November 16, 2017. At this proceeding, JT’s mother was present via video and the respondent was present via telephone. The respondent did not speak throughout the trial.

At the hearing, the referee found that JT was without proper care and custody because JT’s mother was to be incarcerated for at least 10 years and because “no man ha[d] established paternity.” The referee further found that the JT’s father was “unknown and unidentifiable,” that termination of parental rights was in JT’s best interests because the mother could not provide a home for him due to her incarceration and that JT had been placed in “the only stable permanent home that he [had] known since birth.”

Accordingly, the trial court entered an order terminating the parental rights of the mother, as well as those of the “unknown biological father.”

No Due Process Violation

On appeal, the respondent-father argued his due process rights were violated because the trial court:

  1. did not provide him with a DNA test.
  2. failed to adjourn the trial pending the results of a DNA test.
  3. found statutory grounds for termination before the respondent completed a DNA test.
  4. found that termination was in the child’s best interests before the respondent completed a DNA test.

“We disagree,” the Court of Appeals said in an unpublished opinion, noting the respondent did not raise these arguments in the trial court and, therefore, they were not preserved for appeal.

Accordingly, the Court of Appeals examined the respondent’s claims for plain error affecting his substantial rights.

Looking to the definitions of “parent,” “father” and “putative father” in MCR 3.903, the Court of Appeals noted the respondent had not claimed JT as his child and there had not been an order of filiation, a judgment of paternity or an affidavit of parentage. “Respondent never claimed to be JT’s father,” the Court wrote. “In fact, respondent denied that he was JT’s father. There was nothing in the record to show that respondent has ever met JT or provided support for JT in any way.”

As a result, the respondent was “merely a putative father” and, therefore, he did not have a protected liberty interest with respect to JT, the Court of Appeals said. In fact, the Court pointed out the respondent offered no legal authority for his argument that the trial court was required to determine whether he was JT’s legal father before terminating his parental rights.

“Likewise, respondent cites no authority for his arguments that his due process rights were violated because of the trial court’s failure to order a DNA test, to adjourn the termination trial to obtain a DNA test, and by making findings on statutory grounds for termination and the child’s best interests before a DNA test was completed,” the Court of Appeals wrote. “Respondent cannot merely announce his position and leave it up to this Court to rationalize the basis for his claim or to search for applicable authority in support of his position.”

Nothing in the record indicated that the respondent was prevented from completing a DNA test or requesting an adjournment of the termination trial, the Court of Appeals explained, noting the respondent had nearly two months to do so. In addition, the respondent “was present at the termination trial by speakerphone, and there is nothing in the record to indicate that he was prevented from speaking,” the Court observed.

Moreover, the respondent did not allege that DHHS or the referee prevented him from completing a DNA test or from speaking at the termination trial, the Court of Appeals said. “Respondent argues that he was prevented from meaningfully participating in the termination trial. However, nothing in the record indicates that respondent’s rights as a putative father were violated.”

Impact Of In re Long?

Notably, the Supreme Court’s order to vacate the Court of Appeals ruling in In re Thomas comes on the heels of a published termination of parental rights decision from the Court of Appeals: In re Long.

In In re Long, the Court of Appeals vacated an order terminating the respondent’s parental rights, finding the trial court had erroneously exercised jurisdiction under MCL 712A.2(b). Specifically, the Court of Appeals said, “We … 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.”

Will the published decision in In re Long influence the outcome of In re Thomas when the matter returns to the Court of Appeals? Time will tell. In the meantime, stay with the Speaker Law Blog for updates on both cases.

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