in Re I M Long Minor

STATE OF MICHIGAN

COURT OF APPEALS

FOR PUBLICATION

In re I. M. LONG, Minor. November 20, 2018

9:15 a.m.

No. 344326

Oakland Circuit Court

Family Division

LC No. 2017-849503-NA

Before: JANSEN, P.J., and K. F. KELLY and BORRELLO, JJ.

JANSEN, P.J.

Respondent-father appeals as of right the trial court’s order terminating his parental rights

to his minor child, IML, pursuant to MCL 712A.19b(3)(f), (g), (h), and (j). 1 We reverse, vacate

the order terminating respondent’s parental rights, and remand for proceedings consistent with

this opinion.

I. RELEVANT FACTUAL BACKGROUND

Respondent is the biological father of the minor child. In 2012, a couple of months after

the child’s birth, the child’s maternal grandmother, petitioner, initiated proceedings to become

the child’s legal guardian. The guardianship was established because the child’s mother had left

the child in the custody of petitioner and did not return. In 2016, petitioner filed a petition to

terminate the parental rights of the mother and the child’s then unknown father. Petitioner listed

respondent-father and another man as putative fathers. Based on his belief that he could be the

minor child’s father, respondent-father had previously initiated a paternity action in Wayne

County in 2015. However, the action was dismissed before resolution after he was sent to

prison. After the filing of this petition, respondent-father formally established paternity over the

child in September 2017, when he and the mother filed an acknowledgement of parentage.2

1

Respondent-mother’s parental rights were also terminated in the same order. However,

respondent-mother has not filed a claim of appeal. Therefore, our vacating the termination order

with respect to respondent-father has no effect on the termination of respondent-mother’s

parental rights.

2

The trial judge in this matter had ordered DNA testing which established that respondent-father

is the minor child’s biological father.

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Following a trial in November 2017, the trial court issued an opinion and order in January 2018,

finding that statutory grounds for jurisdiction over the child existed pursuant to MCL

712A.2(b)(2) and MCL 712A.2(b)(6). Following a subsequent hearing in May 2018, the trial

court found that statutory grounds to terminate respondent’s parental rights existed pursuant to

MCL 712A.19b(3)(f), (g), (h), and (j). This appeal followed.

II. JURISDICTION

Respondent-father argues that the trial court erred in exercising jurisdiction pursuant to

MCL 712A.2(b)(2) and MCL 712A.2(b)(6). We agree.

Our Supreme Court has explained in In re Sanders, 495 Mich 394; 852 NW2d 524

(2014), that:

In Michigan, child protective proceedings comprise two phases: the adjudicative

phase and the dispositional phase. Generally, a court determines whether it can

take jurisdiction over the child in the first place during the adjudicative phase.

Once the court has jurisdiction, it determines during the dispositional phase what

course of action will ensure the child’s safety and well-being. [Id. at 404 (citation

omitted).]

Child protective proceedings are initiated when a petition is filed in the trial court that

contains facts constituting an offense against a child under the juvenile code, MCL 712A.2(b).

Id. at 405; see also MCR 3.961(B)(3). “To acquire jurisdiction, the factfinder must determine by

a preponderance of the evidence that the child comes within the statutory requirements of MCL

712A.2[.]” In re Brock, 442 Mich 101, 108-109; 499 NW2d 752 (1993). MCL 712A.2 “speaks

in the present tense, and, therefore, the trial court must examine the child’s situation at the time

the petition was filed.” In re MU, 264 Mich App 270, 279; 690 NW2d 495 (2004). Although

child protective proceedings are initiated to protect children, the adjudicative phase “is of critical

importance because the procedures used in adjudicative hearings protect the parents from the risk

of erroneous deprivation of their parental rights.” In re Sanders, 495 Mich at 405-406 (internal

quotation marks and citation omitted).

To properly exercise jurisdiction, the trial court must find that a statutory basis for

jurisdiction exists. In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). “Jurisdiction must

be established by a preponderance of the evidence.” Id. “We review the trial court’s decision to

exercise jurisdiction for clear error in light of the court’s findings of fact.” Id. “A finding is

‘clearly erroneous’ if, although there is evidence to support it, we are left with a definite and firm

conviction that a mistake has been made.” In re HRC, 286 Mich App 444, 459; 781 NW2d 105

(2009).

A. THIS COURT’S JURISDICTION

We first note that in this case, this is not a collateral attack on the trial court’s order

terminating respondent’s parental rights. Here, the trial court entered its order of adjudication on

January 18, 2018. That order was not appealable as of right. The trial court scheduled the initial

disposition to be held at the time of the statutory-basis and best-interests hearing, which occurred

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on May 8, 2018. In the order terminating respondent-father’s parental rights, the trial court noted

that “[a]n adjudication was held and the child(ren) was/were found to come within the

jurisdiction of this court.” This was the first order that was appealable as of right, and therefore,

respondent-father’s challenge to the trial court’s jurisdiction is not a collateral attack, but rather a

direct appeal.3

B. MCL 712A.2(B)(2)

Respondent-father first challenges the trial court’s jurisdiction under MCL 712A.2(b)(2).

The trial court took jurisdiction pursuant to MCL 712A.2(b)(2), which provides, in

relevant part, that a trial court has:

(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age

found within the county:

***

(2) Whose home or environment, by reason of neglect, cruelty,

drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent

adult, or other custodian, is an unfit place for the juvenile to live in. As used in

this sub-subdivision, “neglect” means that term as defined in section 2 of the child

abuse and neglect prevention act, 1982 PA 250, MCL 722.602. [4]

3

See In re SLH, 277 Mich App 662, 669 n 13; 747 NW2d 547 (2008), where this Court

explained that

Some, but not all, courts issue an Order of Adjudication following the plea or a

trial at which jurisdiction was found. Other courts, however, do not issue an

Order of Adjudication but only an order of disposition that includes the statement

that “[a]n adjudication was held and the child(ren) was/were found to come within

the jurisdiction of the court.” MCR 3.993(B) provides that an Order of

Adjudication may only be appealed by leave granted, whereas an initial order of

disposition is the first order appealable as of right. Accordingly, because an

initial order of disposition is the first order appealable as of right, an appeal of the

adjudication following the issuance of an initial dispositional order is not a

collateral attack on the initial adjudication, but a direct appeal, notwithstanding

that a termination of parental rights may have occurred at the initial dispositional

hearing.

4

“Neglect” is defined in MCL 722.602(1)(d) as “harm to a child’s health or welfare by a person

responsible for the child’s health or welfare that occurs through negligent treatment, including

the failure to provide adequate food, clothing, shelter, or medical care, though financially able to

do so, or the failure to seek financial or other reasonable means to provide adequate food,

clothing, shelter, or medical care.”

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At the time the petition was filed, it is undisputed that IML was living with petitioner and

not with respondent-father. Additionally, there were no allegations made that petitioner’s home

was an unfit place for IML to live, as is required by 712A.2(b)(2). Because at the time the

petition was filed, there were no allegations that petitioner’s home was “an unfit place for the

juvenile to live in,” we are left with a definite and firm conviction that the trial court erred by

exercising jurisdiction under MCL 712A.2(b)(2).

C. MCL 712A.2(B)(6)

Respondent-father also challenges the trial court’s jurisdiction under MCL 712A.2(b)(6).

The trial court took jurisdiction pursuant to MCL 712A.2(b)(6), which provides, in

relevant part, that a trial court has:

(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age

found within the county:

***

(6) If the juvenile has a guardian under the estates and protected

individuals code, 1998 PA 386, MCL 700.1101 to 700.8206, and the juvenile’s

parent meets both of the following criteria:

(A) 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 or, if a support order has been entered, has failed to substantially comply

with the order for 2 years or more before the filing of the petition. As used in this

sub-subdivision, “neglect” means that term as defined in section 2 of the child

abuse and neglect prevention act, 1982 PA 250, MCL 722.602.

(B) 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. As used in

this sub-subdivision, “neglect” means that term as defined in section 2 of the child

abuse and neglect prevention act, 1982 PA 250, MCL 722.602.

In child protection proceedings, MCR 3.903(A)(18) defines a “[p]arent” as “the mother,

the father as defined in MCR 3.903(A)(7), or both, of the minor. It also includes the term

‘parent’ as defined in MCR 3.002(20).”5 MCR 3.903(A)(7) defines “[f]ather” as:

(a) A man married to the mother at any time from a minor’s conception to the

minor’s birth, unless a court has determined, after notice and a hearing, that the

5

MCR 3.002(20) pertains to the parents of Indian Children.

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minor was conceived or born during the marriage, but is not the issue of the

marriage;

(b) A man who legally adopts the minor;

(c) A man who by order of filiation or by judgment of paternity is judicially

determined to be the father of the minor;

(d) A man judicially determined to have parental rights; or

(e) A man whose paternity is established by the completion and filing of an

acknowledgement of parentage in accordance with the provisions of the

Acknowledgment of Parentage Act, MCL 722.1001 et seq., or a previously

applicable procedure. For an acknowledgement under the Acknowledgment of

Parentage Act, the man and mother must each sign the acknowledgement of

parentage before a notary public appointed in this state. The acknowledgement

shall be filed at either the time of birth or another time during the child’s lifetime

with the state registrar.

Accordingly, a putative father does not qualify as a father or parent for the purposes of

exercising jurisdiction in child protective proceedings.

With respect to whether the trial court erred in exercising jurisdiction under MCL

712A.2(b)(6), there is no dispute that IML had a legal guardian, petitioner, at the time the

petition was filed. Likewise, there is no dispute that respondent-father was only a putative father

at the time the petition was filed in this case. In fact, respondent-father was not determined to be

IML’s legal father under September 7, 2017 – over a year after the petition was originally filed –

when he and the child’s mother filed an acknowledgment of parentage. Accordingly, because

the trial court is required to “examine the child’s situation at the time the petition was filed,” In

re MU, 264 Mich App at 279, respondent-father’s status as a putative father on the date the

petition was filed means that he does not qualify as a “parent” under MCL 712A.2(b)(6).

Therefore, respondent-father’s actions in the two years or more preceding the filing of the

petition are immaterial. Although there was some evidence presented that respondent-father

believed he could have been IML’s father and should have perfected paternity sooner, as a

putative father, he would have had no legal rights or obligations to IML before September 7,

2017. Regardless of any moral obligation, as a putative father, respondent-father had no legal

obligation to IML. We therefore conclude 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. Based on the foregoing, we are

left with a definite and firm conviction that the trial court erred by exercising jurisdiction under

MCL 712A.2(b)(6).

Briefly, we also note that the trial court erred in its reliance on In re LE, 278 Mich App 1;

747 NW2d 883 (2008) in determining it had the authority to exercise jurisdiction under MCL

712A.2(b)(6), despite the fact that respondent-father was only a putative father at the time the

petition was filed. The trial court’s reliance on In re LE was erroneous for two reasons. First,

this Court never addressed jurisdiction under MCL 712A.2(b)(6) in that case. Second, this Court

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ultimately relied on the one-parent doctrine to justify exercising jurisdiction over the respondent-

father in that case where the respondent-mother had pleaded to jurisdiction. However, the one-

parent doctrine is unconstitutional, and therefore now defunct. Accordingly, reliance on the

reasoning of this Court in In re LE was erroneous. See In re Sanders, 495 Mich at 422, where

our Supreme Court reasoned that a specific adjudication of a particular parent’s unfitness was

required before the constitutionally protected parent-child relationship could be infringed.

Because the trial court erred by exercising jurisdiction under MCL 712A.2(b)(2) and

MCL 712A.2(b)(6), we reverse the trial court’s order terminating respondent-father’s parental

rights.6 See Ryan v Ryan, 260 Mich App 315, 343; 677 NW2d (2004), where this Court

articulated that “[b]ecause the trial court never properly assumed jurisdiction, all orders based on

the wrongful assumption of jurisdiction are void ab initio.”

We reverse, vacate the order terminating respondent’s parental rights, and remand for

proceedings consistent with this opinion.

/s/ Kathleen Jansen

/s/ Kirsten Frank Kelly

/s/ Stephen L. Borrello

6

Having determined that reversal is warranted on respondent-father’s jurisdictional claims, we

declined to address respondent-father’s other arguments on appeal.

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