On November 20, 2018, the Michigan Court of Appeals released their opinion in In re IML, __ Mich App __ ; __ NW2d __ (2018)(Docket No. 344326) reversing the trial court’s decision to terminate a father’s parental rights.
Shortly after birth in 2012, a mother left her child with the petitioner, the maternal grandmother, and never returned. The petitioner filed a petition in 2016 to terminate the rights of the mother and the unknown father. The petitioner believed the Respondent-Father and one other man to be the biological father so they were listed on the petition as “putative fathers”. The Respondent-Father became the “legal father” after he and the mother came together to sign an acknowledgment of paternity and file it with the State of Michigan. Nevertheless, a termination trial was held and the circuit court judge terminated parental rights on the following bases:
- MCL 712A.19b(3)(f) – The juvenile has a guardian and the Respondent failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of 2 or more years before the filing of the petition AND the Respondent, having the ability to visit, contact or communicate with the juvenile, has regularly and substantially failed or neglected, without good cause, to do so for a period of 2 or more years before the filing of the petition.
- MCL 712A.19b(3)(g) – Respondent, although financially able to do so, fails to provide proper care or custody for the juvenile and there is no reasonable expectation that the parent will be able to provide proper care or custody within a reasonable time considering the juvenile’s age.
- MCL 712A.19b(3)(h) – Respondent is imprisoned for such a period that the juvenile will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided proper care and custody, and there is no expectation that the parent can provide proper care and custody within a reasonable time considering the juvenile’s age. (The Respondent-Father was in prison before the termination trial).
- MCL 712A.19b(3)(j) – There is a reasonable likelihood, based on the conduct or capacity of the Respondent, that the juvenile will be harmed if he or she is returned to the home of the parent.
The Respondent-Father appealed to the Michigan Court of Appeals. Although the mother’s parental rights were terminated in the same hearing, she elected not to appeal the judgment as applied to her.
The Respondent-Father attacked the judgment on the premise that the trial court did not have sufficient jurisdiction over him to terminate parental rights. Procedures to terminate parental rights have to occur in two stages: An adjudication trial to determine that a statutory basis exists for the court to make decisions regarding the family, and a termination trial to determine whether or not parental rights should be extinguished. The Respondent-Father alleges that the basis for the trial court to take jurisdiction over him was defective at the first stage, so the findings at the termination trial should never have happened. The trial court DID hold an adjudication phase and determined that jurisdiction was proper on two grounds:
- MCL 712A.2(b)(2) – A juvenile under 18 years of age was found in this county and whose home or environment, by reason of neglect, cruelty, drunkenness, criminality or depravity on the part of a parent, guardian, adult, or other custodian, is an unfit place for the juvenile to live in.
- MCL 712A.3(b)(6) – A juvenile under 18 years of age was found in this county, had a guardian appointed to him or her under the Michigan Estates and Protected Individuals Code, and the parent, having the ability to support or assist in supporting the juvenile, has failed or neglected, without good cause, to provide regular and substantial support for the juvenile for 2 years or more before the filing of the petition AND the parent, having the ability to visit, contact or communicate with the juvenile, has regularly and substantially failed or neglected, without good cause, to do so for 2 years or more before the filing of the petition.
The Michigan Court of Appeals agreed with the Respondent-Father and determined jurisdiction was defective:
- MCL 712A.2(b)(2) is impossible because it is undisputed the child was living with the maternal grandmother and NOT the Respondent-Father at the time of the petition. There were no allegations about the Respondent-Father’s home or the fitness of the child to live there. Since there were also no allegations that the Petitioner’s home was “an unfit place for the juvenile to live in”, then a finding on this ground was a mistake.
- MCL 712A.2(b)(6) is impossible because, at the time the petition was filed in 2016, the Respondent-Father was a putative father but NOT the legal father. The legal father would have the responsibility to provide care and support to a child, but a putative father has no such responsibility and, conversely, no rights whatsoever. His legal paternity was not established until ONE YEAR AFTER the petition was filed. The Court of Appeals found that “to rely on a putative father’s action or inaction in the two years or more preceding the filing of a petition when considering whether to exercise jurisdiction under MCL 712A.2(b)(6) is violative of due process.” Therefore, findings on this ground were a mistake.
The Court of Appeals also stood by the Michigan Supreme Court’s landmark decision with In re Sanders, 495 Mich 394; 852 NW2d 524 (2014) which held that “a specific adjudication of a particular parent’s unfitness was required before the constitutionally protected parent-child relationship could be infringed.” The mother’s actions in leaving the child with the grandmother might have created specific statutory grounds for herself to terminate parental rights, but not so for the Respondent-Father. Since adjudication was defective, the termination of the Respondent-Father’s parental rights was also defective. As a result, the Michigan Court of Appeals reversed the trial court’s decision.
What could have the trial court done differently in this situation to properly terminate parental rights? The Petitioner could have alleged, and the trial court could have considered, a different statutory ground for jurisdiction within MCL 712A.2(b). Absent a statutory basis, the trial court might not have had any choice but to place the child with Respondent-Father (if he was imprisoned, perhaps give him an opportunity to execute a power of attorney to provide proper care and custody of the child with relatives).
There is a Roman-law principle, mater semper certa est (“the mother is always certain”) because it is not hard to deduce from who the child was born, but the paternity of the father is not always clear. In this case, there were a few paternal candidates but no automatic mechanism to confer legal father status. A father does not have responsibilities to the child unless he fulfills a legal act to acquire paternity (e.g. adoption, paternity suit, acknowledgment of paternity, order of filiation, judicial determination). Until that act occurs, he has no legal responsibilities and, as such, his failure to fulfill a “moral” obligation to provide for his “possible” child before legal paternity cannot be used against him. Parents must actually be parents before the trial court can determine that they failed as parents.