Father’s Parental Rights Terminated After He Deserted the Child and Did Not Seek Custody During 91-Day Period
Published: May 23, 2024 (JJ. Boonstra, P.J. Yates, and Cavanagh)
Docket No. 368780
Michigan Court of Appeals
Holding: The Court of Appeals held that the Trial Court was correct in terminating respondent-father's parental rights because respondent-father deserted the child for at least 91 days and did not seek custody of the child during the period. Additionally, the Court of Appeals held that the Trial Court was correct in stating that respondent-father lacked standing to challenge the effectiveness of the child’s lawyer-guardian ad litem due to lack of compelling reasoning. The case was affirmed.
Facts: In January 2023, DHHS petitioned the Trial Court to take jurisdiction over the 17-month-old child, LK, and to order the removal of the child from respondent-mother's home. The respondent-mother is not a party to this appeal; however, relevant to this appeal, the petition alleged that respondent-father was LK’s putative father and that he was recently investigated by CPS regarding physical abuse, physical neglect, improper supervision, and sexual abuse of one of his other children. At the preliminary hearing, respondent-father was not present, but was represented by counsel. The Trial Court ordered that LK be removed and placed in foster care; the Trial Court also ordered that respondent-father submit to a paternity test and directed DHHS to make further efforts to locate him.
In February 2023, the Trial Court entered an order finding probable cause to believe that the respondent was the putative or legal father of LK. The trial court entered an order of adjudication taking jurisdiction over LK. Respondent-father did not appear for the adjudication trial or the subsequent dispositional review hearings, and his counsel stated that he could not be located. In May 2023, DHHS filed a petition for termination of respondent-father's parental rights due to his not appearing for any hearing and not contacting DHHS throughout the case. On July 21, 2023, a termination hearing was held, and respondent-father's counsel informed the court that respondent-father had recently been incarcerated; the Trial Court granted an adjournment.
On September 21, 2023, respondent-father appeared via video at a status conference and paternity hearing while incarcerated in the Branch County Jail. The Trial Court concluded that it received DNA testing results and respondent-father was LK’s biological father. In November 2023, respondent-father appeared at a dispositional review hearing where he was granted parenting time at the discretion of DHHS. Respondent-father was prohibited from contacting a minor under 17, including his own children, according to his probation agent. Respondent-father received no services while incarcerated and did not have any visitation with LK. In addition, he has not provided any material to support LK. Respondent-father testified that he discovered he was LK’s biological father at the beginning of August 2023 when he received the paternity test results, but admitted that he was present when LK was born and suspected that he was LK’s biological father before receiving the test results. The Trial Court determined that the statutory grounds for termination had been satisfied for three separate grounds. This paper focuses on one of those: MCL 712A.19b(3)(a)(ii), which states:
The child's parent has deserted the child for 91 or more days and has not sought custody of the child during that period.
The Trial Court held that respondent-father has neither established custody nor had any contact with the child. Although he anticipated that he was the father, he did not seek custody. The Trial Court further held that he could have attempted to pursue custody because he likely had an attorney representing him in the criminal case and could have filed a motion for custody with this attorney. Thus, because respondent-father has not sought custody or provided for the child, the Trial Court found that termination of respondent-father's paternal rights was in LK’s best interests and subsequently ordered termination of respondent-father's paternal rights.
On appeal, respondent-father only challenged the Trial Court’s holding regarding MCL 712A.19b(3)(a)(ii). The Court of Appeals stated that other statutory grounds have therefore been met, but it would address the question raised by respondent-father regarding MCL 712A.19b(3)(a)(ii) because this issue may have some public significance and may be likely to recur.
Key Appellate Rulings
The Trial Court’s interpretation that MCL 712A7.19b(3)(a)(ii) does not require that the requisite 91-day period of abandonment occur after a judicial determination of paternity has been made was correct.
Respondent-father argued that the Trial Court erred by finding that he abandoned LK for at least 91 days because the statutory period only began on September 21, 2023, when the trial court judicially determined that he was LK’s biological father. However, the Trial Court found that respondent-father was listed as LK’s putative father from the beginning of the case, as he testified that he was present at the hospital for LK’s birth and suspected that he was LK’s father before the DNA test. Regardless, respondent-father did not try to establish paternity, visit, or support LK during at least the first nine months of these proceedings. Further, although respondent-father makes no argument concerning the remaining elements of desertion under the statute, the Trial Court held that at the time the petition was filed, respondent-father had deserted LK. Thus, the Trial Court did not err by finding that statutory ground for termination of respondent-father's parental rights existed under MCL 712A.19b.
The Trial Court’s holding that respondent-father lacked standing to assert a claim of ineffective assistance of counsel was correct.
Under MCL 712A.12c(7), “a child has a right to appointed counsel in child protective proceedings” and this Court has held that “a child’s attorney has the same duties that any other client’s attorney would fulfill when necessary.” In re AMB, 248 Mich App 144, 224 (2001). Further, “a respondent in a child protective proceeding lacks standing to challenge the effectiveness of the child’s attorney.” In re HRC, 286 Mic App 444, 458 (2009). The Court of Appeals held that on appeal, respondent-father fails to put forth any compelling reason to overturn In re HRC.
Respondent-father claims that this Court’s previous holdings preclude the raising of any ineffective-assistance-of-counsel claim on behalf of a child because no one can raise the claim for the child and the child cannot raise it for himself. However, the Court of Appeals asserted that there are statutory requirements that a lawyer-guardian ad litem must adhere to. Further, the Court of Appeals stated that there is nothing preventing parties from raising concerns with the trial court over an LGAL’s conduct or compliance with statutory requirements, but a party may not assert on behalf of the child that the LGAL provided unconstitutional representation resulting in prejudice to the child. Therefore, the Court of Appeals held that In re HRC will continue to be the established precedent.
