In re Dixon

• Opinion Published: April 20, 2023 (Gleicher, C.J., O’Brien, Maldonado, JJ.)

• Docket No. 363388

• Genessee County Circuit Court

Holding: The trial court properly found that, hen vindication of an unadjudicated parent’s custodial right will necessarily involve a court-ordered custodial change and the elimination of state custody, the state’s interest permits the maintenance of continued, temporary placement while an investigation is conducted to ensure the appropriateness of the new placement. Under the circumstances presented in this case, a father’s right to control the custody and care of his child must yield, at least temporarily, to the state’s interest in preventing upheaval for the vulnerable child who had been in care with the same foster family for nearly two years. 

Facts: The child was born in June of 2021. The parents were not married, and the father was incarcerated at the time of the birth, thus was not present to sign an acknowledgment of parentage (AOP). The child was named after the father, and DHHS identified him as the putative father before a preliminary hearing that same month. Father requested a DNA test at this hearing but could not be named as a respondent until paternity was officially determined. By September 2021, DNA testing had confirmed paternity, but DHHS had not filed the AOP with the court nor had it filed an amended petition naming him as a respondent. It was at this hearing that mother’s parental rights to the child were terminated.

By the next hearing on November 23, 2021, DHHS had received the AOP, submitted it to Vital Records, but had not filed an amended petition.

The next hearing was conducted in February of 2022 - more than eight months after AKD’s birth and five months after biological paternity had been established - yet DHHS still had not named father as a respondent or filed an amended petition seeking jurisdiction as to father. The court advised father to his right to seek placement of the child in his home pursuant to MCR 3.965(B)(8), but father remained incarcerated with an earliest release date of October 2023. The court asked father if he could identify an appropriate placement, indicating that the DHHS would evaluate any recommended placement. Father asked the court and DHHS to consider placement with his longtime girlfriend who had expressed willingness to take custody of AKD. The court ordered the DHHS to evaluate PM for potential placement and to investigate initiating virtual visits for father and his son.

On May 10, 2022, DHHS and the child’s LGAL recommended he not be placed with father’s girlfriend because the environment was not safe for the child, requested he be kept in place in his foster home, and sought adjournment – it still had not filed a petition to name father as a respondent. The child was 11 months old. Father’s counsel continued to assert his right as a fit, un-adjudicated parent to place the child wherever he chose without DHHS interference. The trial court rejected father’s request to place the child with his girlfriend and retained the child’s foster placement.

Two weeks later, the court conducted another review hearing, and still DHHS had not filed an amended petition alleging father’s unfitness.

Finally, on May 25, 2022, the DHHS authored a supplemental petition naming father as a respondent in these child protective proceedings, but by the court’s next hearing on August 30, 2022, DHHS still had not served father with the petition to take jurisdiction of the child.

It was not until September 20, 2022, a full year after father had been identified as AKD’s biological parent, that father was finally made a respondent to these proceedings. Fifteen months after the child’s birth and placement in foster care, the court officially “removed” him from respondent-father’s care and custody. Father filed this appeal on October 11, 2022.  

Key Appellate Rulings: The Court of Appeals re-examined its previous holding in In re Sanders, 495 Mich 394, 414-415; 852 NW2d 524 (2014), that a parent must be adjudicated as unfit before the state may infringe his constitutionally protected relationship with his child. In Sanders, the Court held that, “[a]s long as the children are provided adequate care, state interference with such decisions is not warranted.” The Court of Appeals decided here that, when the vindication of this right will necessarily involve a court-ordered custodial change and the elimination of state custody, the state’s interest permits the maintenance of continued, temporary placement while an investigation is conducted to ensure the appropriateness of the new placement.

The trial court and DHHS bypassed father’s right to direct the placement of his child by delaying his legal ability to assert that right, and these delays impinged on father’s constitutional rights. However, despite the ongoing violation of father’s constitutional rights, the trial court ultimately properly took jurisdiction over the child in relation to father.

DHHS and the court allowed father an opportunity to rectify the child’s lack of custody once he was established as the legal father, but the placements he named were not appropriate. When the court allowed father additional time, he could name no other possible placement. This left the child “without proper custody or guardianship,” supporting jurisdiction. Father could not personally provide a home for his child “by reason of . . . criminality.” Absent a suitable alternate placement, the trial court was bound to take jurisdiction over the child in relation to father.

“Accordingly, although we are affirming the court’s removal of AKD from his home and its exercise of jurisdiction in relation to father, we do not condone the court’s and DHHS’s treatment of father or the violation of his constitutional rights. We reluctantly affirm.”  

Dissenting Opinion: In Judge Maldanado’s dissent, she writes that the circuit court did not have the legal authority which to base its decision to leave the child in foster care during the interim period between father being established as the legal father and the court assuming jurisdiction. The court, after father recommended a placement for the child, responded, “The concern is … that mother’s rights were terminated; by mother’s rights having been terminated, I still have the authority to direct placement of the child by that case.” Judge Maldanado believes that this is an invocation of the one-parent doctrine that the Supreme Court squarely rejected in Sanders. Because father had not had an adjudication hearing, she writes, the court did not have the authority to interfere with his parental rights, and his parental rights include the constitutional right to direct the care and custody of his child. Therefore, the circuit court did not have the authority to interfere with respondent-father’s right to entrust PM with AKD’s care.

Her proposed remedy would be a conditional reversal of the removal order to allow DHHS to take the required steps that the majority already compels it to take. She worries that, because the majority affirmed the lower court’s decision, its actions will speak louder than its words in terms of condoning the actions of DHHS and the lower court. The remedy she suggests is guided by the Michigan Supreme Court decision In re Morris, 491 Mich 81; 815 NE2d 62 (2012), and ICWA notice provisions.

UPDATE

On reconsideration, the Court of Appeals vacated a portion of its April 20, 2023, Opinion addressing the propriety of the trial court’s adjudicatory decision.

Following the April 20, 2023, Opinion, Respondent-Father filed a motion for reconsideration, citing two errors in the Court of Appeal’s Opinion. First, he argued the Court of Appeals improperly addressed the propriety of the trial court’s decision to take jurisdiction over AKD. Second, he argued that the trial court failed to consider evidence regarding his proposed child placement with his girlfriend while he was incarcerated. Respondent-Father’s Motion for Reconsideration was supported by the Children’s Law Section of the State Bar of Michigan.

The Court of Appeals disagreed that the trial court failed to consider “actual evidence” regarding the fitness of Respondent-Father’s proposed placement. However, the Court of Appeals agreed with Respondent-Father that the Court’s prior Opinion improperly references the adjudication because Respondent-Father did not claim an appeal to challenge the adjudication. Thus, the Court of Appeals issued a new Opinion on June 15, 2023, and removed three paragraphs from its April 20, 2023, Opinion stating that the trial court “ultimately properly took jurisdiction over the child in relation to the father.”