The trial court wrongly terminated the petitioner’s parental rights as a non-surrendering parent under the Safe Delivery of Newborns Law because the petitioner’s divorce complaint constituted a timely petition for custody, the Michigan Court of Appeals has ruled.

In In re Baby Boy Doe (Docket No. 353796), the petitioner had filed for divorce in Ottawa County the day before his then-pregnant wife, KGK, unbeknownst to him, gave birth to Baby Boy Doe. KGK surrendered the infant at the hospital under Michigan’s Safe Delivery of Newborns Law (SDNL), MCL 712.1, et seq. She declined to provide information about the father’s identity, although she indicated that she was married. The hospital placed Baby Boy Doe with the respondent, a nonprofit agency. A notice was published in a newspaper, generically addressed to the birth mother and father of “a newborn baby” born 8/9/2018 at the hospital.

Subsequently, unbeknownst to the petitioner or the Ottawa County trial court, the respondent petitioned the Kalamazoo County Circuit Court for permission to place Baby Boy Doe with prospective adoptive parents. As a result, the Kalamazoo trial court terminated the parental rights of the petitioner and KGK, and granted the prospective parents’ adoption petition. The Kalamazoo trial court later denied the petitioner’s motion to unseal the adoption file and his motion for reconsideration, in which he asked that his parental rights be reinstated.

The petitioner appealed, arguing 1) his parental rights should have been reinstated and 2) the Kalamazoo trial court should have unsealed the adoption file.

The Court of Appeals, in a 2-1 published opinion, ruled the Kalamazoo trial court erroneously terminated the petitioner’s parental rights as a non-surrendering parent under the SDNL. According to the majority, the divorce complaint filed in Ottawa County constituted a timely petition for custody under MCL 712.10.

“Because petitioner had properly and timely filed a petition for custody of Doe, the petition to terminate petitioner’s parental rights filed by respondent in this case was filed in violation of MCL 712.17(3), and the Kalamazoo court’s subsequent entry of a termination order was in violation of MCL 712.17(5),” Judge Mark T. Boonstra wrote, joined by Judge Jane M. Beckering. “This was plain error affecting substantial rights.”

The Court of Appeals also held that further proceedings were necessary under MCL 712.7(f) regarding the petitioner’s motion to unseal the adoption file.

Judge Amy Ronayne Krause dissented from the majority, saying the SDNL “simply does not permit the remedy crafted by the majority on these facts.” 

Termination Of Parental Rights

On appeal, the petitioner asserted the Kalamazoo trial court should not have terminated his parental rights as a non-surrendering parent under the SDNL because the divorce complaint in Ottawa County constituted a timely filed custody petition.

“We agree,” the Court of Appeals majority said, pointing out the petitioner 1) was unaware of the county where Baby Boy Doe was located or the county where he was surrendered until after his parental rights were terminated; 2) was located in Ottawa County; and 3) filed his complaint for divorce/custody in Ottawa County. “Therefore, if his complaint constituted a ‘petition for custody’ of Doe, then it was filed in the correct county. … We conclude that petitioner’s complaint in the Ottawa court was a petition for custody ….”

In its analysis, the Court of Appeals explained it was “undisputed” the petitioner had asked the Ottawa County trial court to award him custody. “In fact, the next action taken by petitioner after filing the [divorce] complaint was to secure an ex parte order preventing either parent from taking ‘any action pertaining to the permanent placement or adoption of the defendant’s unborn child pending further order of the court.’ Clearly, petitioner sought to have the Ottawa court determine the issue of custody, and in fact took steps to prevent either parent from doing anything that affected custody without permission of the court.”

Moreover, the petitioner’s divorce complaint was filed “not later than 28 days after notice of surrender of a newborn has been published,” the Court of Appeals said. “Nothing in the plain language of MCL 712.10(1) precludes the filing of a petition for custody by a non-surrendering parent before a notice of surrender is published or sets any time limit on such an advance filing. … Consequently, the Ottawa County complaint was not only a petition for custody of Doe that was filed in the correct location, but it was also timely filed.”

Because the petitioner timely filed a petition for custody, the petition to terminate his parental rights was filed in violation of MCL 712.17(3) and the subsequent entry of a termination order violated MCL 712.17(5), the Court of Appeals held. “While respondent and the Kalamazoo court may not have been aware, at the time of the termination order, that petitioner had filed a petition for custody, the fact remains that he had, and the actions of respondent and the Kalamazoo court were therefore in error.”

In conclusion, the Court of Appeals noted that In re Miller, Minors, 322 Mich App 497 (2018), did not change the result in this case. “… Miller held generally that the termination of the parental rights of a non-surrendering husband under the SDNL is valid; it did not hold that non-surrendering parents were prohibited from challenging whether those procedures were in fact followed correctly. As we have discussed, in this case they were not. Miller does not prevent us from granting relief to petitioner.”

Motion To Unseal Adoption File

The petitioner also argued on appeal that the Kalamazoo trial court wrongly denied his motion to unseal the adoption file.

“We conclude that further proceedings are warranted in light of our determination that petitioner’s parental rights were terminated erroneously,” the Court of Appeals said.

According to the Court of Appeals, the petitioner’s stated purpose in wanting the adoption records unsealed was to permit him to challenge the efforts made by the respondent to identify and locate him (the petitioner), in order to provide him notice of the infant’s surrender.

“It is unclear to us whether the [trial] court’s statements were a specific factual finding, or more in the nature of reassurance to petitioner,” the Court of Appeals wrote. “And it is possible that its failure to grant petitioner’s motion is harmless error. … However, as we have discussed, there was a legal error concerning the termination of petitioner’s parental rights. That being the case, we conclude that the Kalamazoo court’s orders denying petitioner’s motion and denying reconsideration should be vacated. On remand, the Kalamazoo court should consider petitioner’s request (if petitioner renews it) in the context of our holding regarding the termination of petitioner’s parental rights.”

Dissenting Opinion

In her dissent, Judge Amy Ronayne Krause explained the Michigan Legislature “made a policy choice” under which other considerations take precedence over the petitioner’s rights.

“Therefore, any remedy must come from the Legislature, not from this Court. I believe the majority, although understandably frustrated, deviates from what is permitted by law.”

The SDNL is “premised upon the newborn having already been placed, and therefore necessarily already born and surrendered,” the judge explained, pointing out the “most obvious reason” why the petitioner’s complaint for divorce/custody was not a proper petition was “simply that the child had not yet even been born, let alone surrendered.” As a result, “it was literally impossible for petitioner to have ‘claim[ed] to be the non-surrendering parent of [a] newborn.’”

In addition, the SDNL references custody petitions or proceedings being filed specifically under MCL 712.10, Judge Krause observed. “Although not expressly stated in so many words, it is readily apparent that the Legislature intended that a custody petition under the SDNL must be specifically brought under the SDNL,” she said, concluding that the Ottawa County petition was not the proper type of petition to invoke SDNL procedures.

“The majority’s resolution also appears to presume that it would somehow be in [Baby Boy] Doe’s best interest - the standard under the SDNL - to rip him from the arms of the only family he has known and place him with a stranger, as if Doe was somehow a mere piece of property instead of a living person,” Judge Krause stated. “Again, I agree that petitioner has suffered a grievous loss, but the overarching goal of the SDNL is the protection of children.”

In conclusion, Judge Krause said the Legislature presumably understood it was possible a non-surrendering parent would be “unknowable and unfindable.” Therefore, the Legislature “enacted a policy that prefers to err on the side of protecting the safety of the child and of the surrendering parent, even at the possible detriment to the non-surrendering parent. I appreciate the majority’s frustration with such a scheme, but it is not for us to decide that it is wrong and therefore bypass the plain language of the statute.”