Recent Appellate Rulings Create Concern For Michigan Adoptions

Two recent Michigan Court of Appeals decisions, if not reversed, may end up hindering direct placement adoptions in Michigan.

The rulings in In re MGR, Minor and In re LMB, Minor are concerning for prospective adoptive parents because they allow putative fathers to stop an adoption in its tracks, simply by obtaining an order of filiation from the trial court. 

In both cases, the Court of Appeals indicated that it does not matter how far along in the adoption process the putative father gets the order of filiation, nor does it matter whether he provided no support to the child or the mother.

In re MGR

In re MGR (Docket Nos. 338286 and 340203, issued 2/27/18) is a published and binding decision. The matter involved concurrent adoption and paternity proceedings.

The putative father in the case appeared by telephone at the March 2017 adoption hearing, conducted pursuant to §39 of the Adoption Code (MCL 710.39). The trial court later entered an order indicating it would take no further action in the adoption case until the paternity action was resolved. That order was appealed, and the Court of Appeals granted a motion for immediate consideration.

In a May 2017 unpublished order, the Court of Appeals instructed the trial court to continue the adoption proceedings. Accordingly, the trial court recommenced the §39 adoption hearing and issued an opinion, finding that although the putative father did not appear in person at the March 2017 hearing, he properly appeared by telephone and expressed his intent to pursue custody if a paternity test showed him to be the child’s father. The trial court also determined the putative father was a “do something” father and declined to terminate his parental rights.

On appeal, the appellants argued the trial court should have terminated the putative father’s parental rights because he did not personally appear and contest custody during the §39 hearing. The Court of Appeals disagreed, affirming the trial court’s finding that the putative father properly appeared at the adoption hearing. The Court also dismissed as moot the claim that the adoption proceedings were improperly adjourned.

The appellants further argued the trial court erroneously held that the putative father provided “substantial and regular support or care” to the mother during her pregnancy, so that his parental rights could not be terminated. Ruling this issue was moot, the Court of Appeals said: “After the trial court entered its opinion and order declining to terminate appellee’s parental rights under MCL 710.39(2), the same court entered an order of filiation in the separate paternity action, declaring appellee to be MGR’s biological and, therefore, legal father. Accordingly, appellee is no longer a putative father, and neither we nor the trial court can grant relief under MCL 710.39(1) and (2), which both exclusively address termination of a putative father’s rights during the course of an adoption. As appellee is now considered a legal parent, his rights can only be terminated pursuant to MCL 712A.19b.”

The Court of Appeals continued by finding an order of filiation can control the disposition of the adoption appeal, thus refuting the argument that proceedings under the Adoption Code take precedence over actions under the Paternity Act. “[T]hat argument is contradicted by this Court’s decision in In re MKK [286 Mich App 546 (2009)],” the Court said. “Additionally, although the Legislature has indicated that adoption proceedings should generally have the highest priority on court dockets ‘so as to provide for their earliest practicable disposition,’ … no statutory provision has been pointed out to us mandating that adoption proceedings must always be completed before a determination in a parallel paternity proceeding. MCL 710.25(2) in fact creates an exception to the general rule, allowing for the adjournment of adoption proceedings upon a showing of good cause.”

The In re MKK panel had ruled that good cause to adjourn an adoption hearing “can be established by the existence of a timely paternity action,” the Court of Appeals said, noting that In re MKK is a binding decision that has not been rejected by the courts.

In conclusion, the Court of Appeals discounted the concern that trial courts will “purposefully insulate” their adoption rulings by subsequently entering an order of filiation that would moot the appeal of the earlier adoption ruling. “Rather, we employ the well-earned presumption that trial courts act properly in accord with their constitutional duties,” the Court stated.

In re LMB

In re LMB (Docket No. 338169, issued 3/13/18) is an unpublished decision that, like In re MGR, involved concurrent adoption and paternity proceedings.

The putative father in the case did not support the child or the mother, and did not have a custodial relationship with the child. At the §39 adoption hearing, the trial court refused to terminate the putative father’s rights to the child. The decision was appealed.

After the §39 adoption hearing began, the putative father filed a paternity action. While the adoption appeal was pending, the trial judge in the paternity case entered an order of filiation under which the putative father was held to be the child’s legal father. The prospective adoptive parents filed a motion to stay the paternity case and prevent entry of the order of filiation, but the motion was denied.

The Court of Appeals first decided In re LMB in September 2017, finding that the adoption issue was moot because an order of filiation had been entered by the trial court. The case was subsequently appealed to the Michigan Supreme Court, which vacated the Court of Appeals decision and remanded for reconsideration in light of the Court of Appeals order in Sarna v Healy (Docket No. 341211, issued 12/18/17).

On remand, the Court of Appeals again dismissed the appeal as moot because the order of filiation was not vacated and the respondent’s status as the child’s legal father had not changed.

In reaching this conclusion, the Court of Appeals noted it was bound to follow its decision in In re MGR. “In that case, the trial court entered an order refusing to terminate the then-putative father’s parental rights to MGR pursuant to MCL 710.39, and then, while the petitioners’ appeal of that decision was pending, the trial court entered an order of filiation determining the putative father to be the child’s legal father,” the Court wrote.

“The pertinent facts of this case are the same as in In re MGR and, as a published decision, In re MGR is binding precedent,” the Court of Appeals said. “Accordingly, because respondent father is LMB’s legal father, it is impossible for this Court to grant petitioners’ requested relief and remand for a determination of whether respondent legal father’s rights should be terminated under a section only applicable to putative father.”

Concerns For Prospective Adoptive Parents

The decisions in In re MGR and In re LMB focus on the interplay between the Paternity Act and the Adoption Code. Both rulings create concerns when it comes to adoptions, particularly because there is no policy that paternity proceedings be stayed while an adoption case is pending.

It is especially troublesome that, based on the decisions in In re MGR and In re LMB, a putative father can moot an adoption appeal simply by obtaining a DNA test and an order of filiation. Pursuant to the rulings in both cases, appellate review of an adoption decision favoring the putative father is basically eliminated.

At the Speaker Law Firm, we believe the ability to prevent appellate review through a concurrent paternity proceeding will result in the inconsistent application of the law. Unfortunately, it will also lead to unpredictability for prospective adoptive parents in cases where a putative father comes forth.

Both In re MGR and In re LMB are being appealed to the Michigan Supreme Court.

UPDATE June 7, 2019: The Supreme Court has ruled in our clients' favor on both appeals! In MGR, the trial court is finally going to consider the best interests of the child. And In LMB, our clients are going to be able to finalize the adoption. 

UPDATE August 6, 2019: The adoption of LMB was finalized.