916 N.W.2d 662
Mich. Ct. App.2018Background
- Child MGR born June 5, 2016; mother placed him with prospective adoptive parents (appellants) via an agency; appellants filed for direct-placement adoption naming appellee as a putative father.
- Appellee timely filed a paternity action and a notice of intent to claim paternity and sought custody; the trial court held a § 39 (MCL 710.39) hearing on March 24, 2017.
- Appellee did not appear in person at the March 24 hearing; his counsel attended and the judge telephoned appellee during the hearing; appellee stated he would contest custody if a DNA test showed he was the father.
- Trial court concluded appellee properly appeared (via telephone), found him a "do something" father under MCL 710.39(2), and declined to terminate his parental rights; after that ruling the court entered an order of filiation in the paternity action, making appellee the legal father.
- Appellants appealed two orders: (1) the April 17, 2017 adjournment/order relating to the § 39 hearing and (2) the September 14, 2017 order declining to terminate appellee's parental rights under § 39(2).
- Court of Appeals: affirmed that telephone appearance sufficed, dismissed as moot appellants' adjournment and termination arguments because the subsequent order of filiation made appellee a legal father (§§ 37–39 only apply to putative fathers).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellee "appeared" at the § 39 hearing when he did not attend in person | Appellants: lack of personal appearance required; failure to appear should trigger termination under MCL 710.39(1) | Appellee: counsel appeared and judge contacted appellee by phone; MCR 2.117(B)(1) treats counsel's appearance as party appearance | Court: Counsel's appearance and telephone contact satisfied appearance requirement; affirmed |
| Whether trial court abused discretion by adjourning adoption pending paternity resolution | Appellants: no good cause; adjournment improperly delayed adoption | Appellee: paternity action timely; good cause exists to resolve paternity first | Court: issue rendered moot by subsequent proceedings and appellate orders; dismissal as moot (no relief available) |
| Whether appellee qualified as a "do something" father under MCL 710.39(2) (substantial and regular support/care) | Appellants: appellee did not provide substantial/regular support during pregnancy or after birth; should be "do nothing" father subject to termination under §39(1) | Appellee: provided some support, participated in legal proceedings, and attempted contact; trial court found impediments by mother | Court (majority): decision on §39(2) is moot because filiation converted appellee to legal father; concurrence/dissent would have reversed and remanded as factual findings were erroneous |
| Whether appeal is moot after entry of filiation in paternity action | Appellants: Adoption Code provisions can still affect a legal father's rights; appeal not moot | Appellee: order of filiation makes him legal father; §§ 37–39 apply only to putative fathers; termination now requires different statutes | Court: Appeal moot — filiation converted appellee to legal parent and §§ 37–39 no longer provide a remedy; dismissal as moot |
Key Cases Cited
- City of Jackson v. Thompson-McCully Co., LLC, 239 Mich. App. 482 (mootness principle: issue is moot if court cannot grant relief)
- In re MKK, 286 Mich. App. 546 (legal paternity converts putative father into parent; §§ 37–39 inapplicable once paternity perfected)
- In re RFF, 242 Mich. App. 188 (filing notice or mere effort does not constitute "substantial and regular" support under § 39(2))
- In re BKD, 246 Mich. App. 212 (standard of review for factual findings in adoption/paternity contexts)
- Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197 (statutory interpretation: apply unambiguous text)
- Silich v. Rongers, 302 Mich. App. 137 (mootness and inability to fashion remedy)