I am sometimes asked whether a biological father must automatically lose his rights to a child conceived out of wedlock if the mother places the child for adoption and he hasn’t been involved up to that point in time (i.e, he's a "do-nothing father.") A more serious question arises when the mother wants to place the child for adoption, isn't ready to be a single parent, feels strongly about not involving the biological father, and wants the child to have a 2-parent family.
In a case for publication, the Michigan Court of Appeals has answered this question for us. The court’s decision provides family lawyers dealing with adoption cases with some practice pointers in how to deal with similar cases in the future, and certainly informs use about how we might counsel a mother-to-be so that she has more control over what happens.
Here is a brief chronology of what occurred:
The putative father (hereafter “Byron”) was told by friends that a person with whom he’d had a brief romantic relationship (“Zimmerman”) appeared to be pregnant. Zimmerman had not told Byron previously; he learned only about 2 weeks prior to Zimmerman giving birth. Zimmerman told Byron she planned to place the child for adoption.
March 1, 2007. The child “Steven” was born and was immediately placed with the prospective adoptive parents (“the Johnsons”).
April 9, 2007. Zimmerman filed a petition to terminate Byron’s rights, stating that she intended to voluntarily give up her rights if the court terminated Byron’s parental rights.
The court held a prompt hearing on the petition to terminate Byron’s parental rights. Byron did not fit into section 39(2) of the Adoption Code. MCL 722.39(2) because he had not established a custodial or support relationship with the child nor had he provided substantial and regular support or care in accordance with his ability to provide such support or care for the mother during pregnancy or for either mother or child after the child's birth during the 90 days before notice of the hearing was served upon him. Family lawyers have come to call putative fathers who fail to support or form custodial relationships in this context "do-nothing fathers."
As a result of having failed to fit into section 2, when Byron appeared at the hearing to contest the termination of his parental rights and the child’s placement for adoption, the trial court conducted a best interest hearing to determine whether it was in the child's best interest for his father's parental rights to be terminated.
At that best interest hearing, there was some detailed testimony regarding whether or not Byron was a “fit parent.” Salient facts were that Byron lived with his parents and lacked income to provide his own housing. His father was a recovering heroin addict who treated with methadone. Byron had joint custody of two other non-marital children, ages 2 and 4, who spent every other day with him. Byron’s sister sometimes lived in the same household. Byron had previously used marijuana and Vicodin. His marijuana use either had discontinued or had been reduced. He had minimal income. He was attending school to learn to be an electrician. He was engaged and this woman, who did not testify, was allegedly willing to co-parent his two children now living with him and also Steven if he were awarded custody.
Zimmerman was permitted to testify about her relationship with Byron but not about her own fitness as a parent.
After hearing the evidence, the trial court made specific findings on the best interest factors in the Adoption Code, MCL 722.22, and found that Byron was not unfit. The trial court denied the petition to terminate his parental rights and ordered the Johnsons to turn Steven over immediately to the care of Byron, despite the fact that no written order had yet been entered. Zimmerman then withdrew her consent to adoption. The trial court instructed Byron and Zimmerman to file the appropriate petitions in the family court to determine custody and parenting time.
July 26, 2007. The trial court’s order was entered.
August 3, 2007. The Johnsons filed an application for leave to appeal in the Court of Appeals together with a motion for an immediate stay of the order to place Steven with Byron.
August 3, 2007. The Court of Appeals granted this motion, stayed the order to place Steven with Byron and ordered Steven to be immediately returned to the Johnsons.
August 6, 2007. The trial court appointed an appellate attorney for Byron.
August 7, 2007. Byron’s court-appointed appellate attorney responded to the motion for stay.
August 8, 2007. The COA heard Byron’s request to deny a stay, which was submitted on the special motion docket, lifted the 8/3/2007 stay order, ordered that the trial court’s order be enforced (placing Steven with Byron), ordered that the matter be expedited, and placed the matter on the first available call list.
January 3, 2008. The Court of Appeals’ decision [For Publication] was issued—a mere four months later. This is an impressive response from the court in an adoption case, which must be given priority on all courts’ dockets in order to provide swift resolution and stability for infants.
In the COA, the Johnsons contended that the trial court erred in its best interest analysis, erred in placing Steven with Byron, and erred in giving Byron immediate custody.
The best interest analysis. In reviewing this issue, the COA disagreed with the trial court’s statement that “this is not even a close call.” The COA said, “. . . contrary to the trial court’s characterization, this is certainly a 'close call.' ” The COA must give deference to the trial court’s weighing of the evidence and can only reverse upon “clear error” – a tough standard. Here, the COA said that
"The trial court found that Byron's casual drug use, unstable relationships, and dependency were less significant than his employment stability, parenting history, and plans for a more-stable future. The trial court did not clearly err in concluding that Byron's shortcomings were attributable to immaturity and amenable to improvement. Being poor doesn’t disqualify a parent from being fit."
As a result, the COA affirmed the trial court's order denying the petition to terminate Byron's parental rights.
The grant of custody. Appellants next argued that the trial court erred in granting custody of Steven to Byron upon finding that it wasn’t in Steven’s best interests for Byron’s parental rights to be terminated. They argued that subsection 3 of the statute [MCL 722.39(3)] only allows a grant of custody to the putative father if the mother’s rights have been terminated. Since that did not occur here, they argued that the trial court should have determined whether it was in Steven’s best interests to be placed with his mother or with his father.
There were no published cases to assist the trial court in deciding how custody should be decided when the mother doesn’t release her parental rights and her petition to terminate putative father’s rights is denied. The COA decided this question as follows:
"Zimmerman contends that a court is without authority to grant custody to a father unless subsection 3 applies. We disagree. The subsection mandates that custody be granted to a father if its conditions are satisfied, but that does not mean that the subsection prohibits an order granting custody to the father in other situations.
"Further, subsection 1 of the statute states that "the court shall inquire into [the father's] fitness and his ability to properly care for the child and shall determine whether the best interests of the child will be served by granting custody to him." MCL 710.39(1). While not explicitly directing the court to grant custody to a father who is determined to be fit and able to properly care for a child whose best interest would be served by such a placement, the statute implies that granting custody in this situation is appropriate. Contrary to appellants' arguments, we do not conclude that the trial court erred in granting immediate custody to Byron once it had completed its "best interest" determination in his favor."
The COA recognized that the trial court was faced with a difficult decision. Leaving Steven with the Johnsons would only increase their attachment and make it more difficult to give him up later if their appeal failed. Obviously, one of the parents had to be awarded custody. Since the mother had made the decision to give Steven up for adoption, the COA found it made sense for the trial court to award custody to Byron. In addition, the trial court was applying the best interest factors in the adoption code in this hearing. Although similar to those in the Child Custody Act, the trial court was obliged to use the CCA to determine the custodial rights of Zimmerman and Byron. Thus “custody” to Byron, even though “temporary,” was appropriate.
February 12, 2008. The Johnsons sought leave to appeal to the Michigan supreme court.
March 28, 2008. The supreme court vacated the portion of the COA judgment addressing “The Grant of Immediate Custody to Byron [respondent].” The court remanded to the family court in Ottawa County. The supreme court held that
"The Court of Appeals erred in reviewing the circuit court’s order as one that gave respondent custody of the minor child. Instead, the circuit court ruled that it was awarding “temporary placement” of the child with respondent and further urged the parties to act quickly to settle the custody issue. "
The court affirmed the trial court’s ruling that the custody issue be resolved between the two biological parents, and directed that court to resolve the custody dispute in an expeditious manner, if that has not already occurred. All other aspects of the Court of Appeals judgment were affirmed.
What should family lawyers take away from this decision?
How big is the hurdle in a best interest hearing? First, a best interest hearing for a putative “do-nothing” father might not be such a huge burden as you might think. Certainly, Byron didn’t look like a guy who was going to be named “Father of the Year” anytime soon. (Not even close).
What could the mother have done differently? Here we have a biological mother who decided that she wasn’t ready to parent a child as a single parent. She did not terminate her pregnancy; she carried the baby to term.
The mother selected adoptive parents. She did not notify the father of the pregnancy. She did not want to place the baby with Byron, because she wanted a stable 2-parent family for the child.
The mother might have taken specific action that would have permitted the termination of Byron’s parental rights without having to have a best interest hearing for this “do-nothing” father.
She could have notified Byron earlier on in the pregnancy and let him dither and fail to provide “regular and substantial support to her during the pregnancy.” This is a fall-back position in case the next option did not work, might have provided her with more ammunition to work with, and might have permitted termination during a best interest hearing.
Better yet, she could have filed an ex parte petition with the probate court evidencing her intent to release or consent to adoption pursuant to section 34 of the adoption code. If the mother does this early enough and presents the court with evidence that the putative father was served with the notice of her intent to place the child for adoption at least 30 days prior to a hearing at which she will give her consent or release for adoption, then that putative father—if he has not, in the meantime, filed a notice of intent to claim paternity under section 33 with the court—is not entitled to receive notice of the hearing at which the mother’s consent or release for adoption will be given. As a result, his rights are terminated. He’s been identified. He’s been given his opportunity to step up to the plate. He has refused or failed. End of story. At the very least, the mother is no worse off than the mother in this case.
You can read the decisions here:
In re Zimmerman, Court of Appeals Docket No. 279696 [For Publication] January 3, 2008
In re Zimmerman, Michigan Supreme Court Order March 28, 2008
To read other posts about step-parent adoptions, especially a 2013 post about a serious challenge to the lagality of these adoption that will be resolved by the Michigan Supreme Court, see the following posts:
In the Matter of AJR, a very important case that will determine the future of step-parent adoptions [See Post here]Access all step-parent adoption posts here.