Opposition Brief — Peter Kruithoff, Petitioner v. Catholic Charities of West Michigan, et al.
Supreme Court briefOct 26, 2022
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No. 22-281
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------IN RE BABY BOY DOE, MINOR
------------------------------------------------------PETER KRUITHOFF,
Petitioner,
v.
CATHOLIC CHARITIES WEST MICHIGAN,
and ADOPTIVE PARENTS 1 & 2,
Respondents.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The Michigan Supreme Court
---------------------------------♦--------------------------------ADOPTIVE PARENTS’ RESPONSE TO
PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------LIISA R. SPEAKER
SPEAKER LAW FIRM, PLLC
819 N. Washington Ave.
Lansing, MI 48906
(517) 482-8933
lspeaker@speakerlaw.com
Counsel of Record for
Respondents Adoptive
Parents 1 & 2
Date: October 26, 2022
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
COUNTERSTATEMENT OF
QUESTIONS PRESENTED
Petitioner, Peter Kruithoff, challenges the constitutionality of Michigan’s Safe Delivery of Newborns
Law. No Court in this country has weighed in on the
constitutionality of their state’s “safe haven” laws, including the Michigan Supreme Court order at issue
here.
Michigan’s Safe Delivery of Newborns Law adequately protects the rights of a Petitioner who has received notice by publication, which notice was the only
option to notify Petitioner of the surrender because the
mother, Surrendering Parent, provided no identifying
information for herself, for her husband, or for the
child’s father, whomever that might be.
The Michigan Supreme Court correctly declined to
address the constitutional issue that was raised by
that Court sua sponte in its order granting oral argument. Petitioner’s constitutional rights to due process
and equal protection were not violated, and any decision opining on the constitutionality of Michigan’s Safe
Delivery of Newborns Law would merely be a hypothetical.
Should this Court deny the Petition when Petitioner failed to raise a constitutional issue in the lower
courts and when the Michigan Supreme Court declined to address the constitutional issue, but instead
decided this case solely on the basis of state law statutory interpretation?
ii
TABLE OF CONTENTS
Page
COUNTERSTATEMENT OF QUESTIONS PRESENTED ...........................................................
i
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
1
COUNTERSTATEMENT OF THE CASE ...........
2
Background and Parties ...................................
2
The Surrender of Baby Boy Doe .......................
2
The Divorce Case ..............................................
5
Petitioner’s late motion in the Safe Delivery
Court .................................................................
7
ARGUMENT ........................................................ 10
I.
This case does not present the Court with
an appropriate vehicle to examine Michigan’s Safe Delivery of Newborns Law and
this Court should deny the Petition .......... 10
II.
The Safe Delivery of Newborns Law did
not violate Petitioner’s constitutional
rights ......................................................... 15
A. The Petition fails to consider the constitutional rights of the Child ............. 20
B. The Petition fails to consider the constitutional rights of the Adoptive Parents ...................................................... 22
C. This Court’s precedent demonstrates
that Petitioner’s rights were not violated by Michigan’s Safe Delivery of
Newborns Law ..................................... 24
iii
TABLE OF CONTENTS – Continued
Page
1. Petitioner received adequate notice
of the proceedings ........................... 29
2. The Adoption and Juvenile Codes
are not adequate substitutes for the
Safe Delivery of Newborns Law ....... 31
3. Communication between courts
when Petitioner files in his own
County does not make the statute
unconstitutional ............................. 32
4. Michigan’s Safe Delivery of Newborns
Law passes constitutional muster
under Mathews v. Eldridge ............. 34
5. Safe Delivery of Newborns Law
treats all fathers equally ................ 36
CONCLUSION AND RELIEF REQUESTED ..... 37
APPENDIX
State of Michigan in the 20th Circuit Court for
the County of Ottawa, Family Division, Complaint For Divorce, Affidavit For The Purpose
Of The Uniform Child Custody Jurisdiction
Enforcement Act, Ex-Parte Motion For DNA
Testing After Birth Ex-Parte Motion For Custody, August 8, 2018 ......................................... App. 1
Gmail – Fwd: Karen Kruithoff email, July 31,
2018 .................................................................. App. 7
Gmail – Peter Kruithoff’s son – Guardianship,
August 7, 2018.................................................. App. 9
iv
TABLE OF CONTENTS – Continued
Page
State of Michigan in the 20th Circuit Court
for the County of Ottawa, Ex-Parte Order
For Custody, Support And Parenting Time
And Uniform Support Order, September 21,
2018 ................................................................ App. 10
State of Michigan in the 20th Circuit Court for
the County of Ottawa, Transcript of Hearing
for Plaintiff’s Motion For Order To Show
Cause, October 2, 2018................................... App. 21
v
TABLE OF AUTHORITIES
Page
CASES
Caban v. Mohammed, 441 U.S. 380; 99 S. Ct.
1720; 60 L. Ed. 2d 297 (1979) .................................25
Dobbs v. Jackson Women’s Health Organization,
142 S. Ct. 2228 (2022) .............................................22
Dow v. State of Michigan, 240 N.W.2d 450 (Mich.
1976) ........................................................................29
In re Baby Boy Doe, ___ N.W.2d ___ (2022) ..................1
In re Gault, 387 U.S. 1; 87 S. Ct. 1428; 18
L. Ed. 2d 527 (1967) ................................................20
In re Toth, 577 N.W.2d 111 (Mich. App. 1998) ...........24
In re Trejo, Minors, 612 N.W.2d 407 (Mich.
2000) ........................................................................20
Lehr v. Robertson, 463 U.S. 248; 103 S. Ct. 2985;
77 L. Ed. 2d 614 (1983) ..................................... 25, 26
Mathews v. Eldridge, 424 U.S. 319; 96 S. Ct. 893;
47 L. Ed. 2d 18 (1976) .............................................34
Meyer v. Nebraska, 262 U.S. 390; 43 S. Ct. 625;
67 L. Ed. 1042 (1923) ..............................................23
Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306; 70 S. Ct. 652; 94 L. Ed. 865 (1950) ..........29
Quilloin v. Walcott, 434 U.S. 246; 98 S. Ct. 549;
54 L. Ed. 2d 511 (1978) ..................................... 24, 25
Santosky v. Kramer, 455 U.S. 745; 102 S. Ct.
1388; 71 L. Ed. 2d 599 (1982) .................................20
vi
TABLE OF AUTHORITIES – Continued
Page
Smith v. Org. of Foster Families for Equality &
Reform, 431 U.S. 816; 97 S. Ct. 2094; 53
L. Ed. 2d 14 (1977) ..................................................26
Stanley v. Illinois, 405 U.S. 645; 92 S. Ct. 1208;
31 L. Ed. 2d 55 (1972) .............................................24
Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054;
147 L. Ed. 2d 49 (2000) ..................................... 14, 23
Washington v. Glucksberg, 521 U.S. 702; 117
S. Ct. 2258; 138 L. Ed. 2d 772 (1997) .....................23
Wilson v. King, 827 N.W.2d 203 (Mich. App.
2012) ........................................................................24
Wisconsin v. Yoder, 406 U.S. 205; 92 S. Ct. 1526;
32 L. Ed. 2d 15 (1977) .............................................26
CONSTITUTION
U.S. Const. amend. V ..................................................10
U.S. Const. amend. XIV ........................................ 10, 23
STATUTES, RULES AND REGULATIONS
28 U.S.C. § 1257(a) ........................................................1
Haw. Rev. Stat. 587D-2 ...............................................19
La. Child. Code Ann. art. 1154 ...................................17
La. Child. Code Ann. art. 1156 ...................................17
Mich. Comp. Laws § 710.37(2)....................................31
Mich. Comp. Laws § 710.60 ........................................23
vii
TABLE OF AUTHORITIES – Continued
Page
Mich. Comp. Laws § 712.1(k) .....................................15
Mich. Comp. Laws § 712.3 ...................................... 5, 15
Mich. Comp. Laws § 712.3(1) .....................................15
Mich. Comp. Laws § 712.7 .................................... 15, 20
Mich. Comp. Laws § 712.7(b) .....................................15
Mich. Comp. Laws § 712.7(e) ......................................20
Mich. Comp. Laws § 712.7(f ) ................................ 17, 29
Mich. Comp. Laws § 712.10 .................................. 15, 33
Mich. Comp. Laws § 712.10(1)....................................20
Mich. Comp. Laws § 712.10(2)....................................33
Mich. Comp. Laws § 712.10(3)....................................20
Mich. Comp. Laws § 712.11 ........................................21
Mich. Comp. Laws § 712.11(1).............................. 20, 27
Mich. Comp. Laws § 712.11(2)....................................27
Mich. Comp. Laws § 712.11(3)....................................36
Mich. Comp. Laws § 712.14 .................................. 19, 28
Mich. Comp. Laws § 712.14(1).............................. 21, 28
Mich. Comp. Laws § 712.15 ........................................37
Mich. Comp. Laws § 712.17 .................................. 15, 20
Mich. Comp. Laws § 712A.13 .....................................31
Supreme Court Rule 10 ................................................1
Tenn. Ann. Code 68-11-255 ........................................18
1
OPINIONS BELOW
The Michigan Supreme Court did not issue an
opinion, but rather, only an order vacating in part the
Michigan Court of Appeals’ opinion that reinstated
Petitioner’s parental rights. The Michigan Supreme
Court’s order, In re Baby Boy Doe, ___ N.W.2d ___
(2022) (Petitioner’s App. 43a), interpreting Michigan’s
Safe Delivery of Newborns Law under state law, vacated the Court of Appeals’ decision (Petitioner’s App.
8a), where the Court of Appeals reversed the Trial
Court and then reinstated parental rights of Petitioner.
The appeal arose from the Trial Court’s decision denying a motion to unseal adoption records filed more than
13 months after Petitioner’s rights had been terminated and more than 8 months after the adoption had
been finalized. (Petitioner’s App. 4a and 6a).
---------------------------------♦---------------------------------
JURISDICTION
Respondent Adoptive Parents do not dispute this
Court’s jurisdiction over this case pursuant to 28
U.S.C. § 1257(a), but denies that this matter satisfies
the standard set forth in Supreme Court Rule 10. Petitioner filed his Petition for Writ of Certiorari on September 22, 2022.
---------------------------------♦---------------------------------
2
COUNTERSTATEMENT OF THE CASE
Background and Parties
This appeal arises out of a late challenge under
Michigan’s Safe Delivery of Newborns Law, when Petitioner filed a motion in the Kalamazoo County Circuit
Court to unseal adoption files. Surrendering Parent is
Karen Kruithoff, who disappeared after she surrendered the newborn at the hospital on August 12, 2018.
The child placing agency is Catholic Charities of West
Michigan. Petitioner is Peter Kruithoff who has plead
guilty for three separate incidents of assaulting his
wife, including when she was seven months pregnant.
Adoptive Parents finalized their adoption of the surrendered newborn on February 12, 2019, eight months
before Petitioner’s motion to unseal. The Child is now
over 4 years old and has lived in the adoptive home his
entire life.
The Petition is rife with omissions of significant
factual details too numerous to recount here. Instead,
Adoptive Parents set forth their own factual recitation,
which supports their request that this Court deny the
Petition.
The Surrender of Baby Boy Doe
This story starts with a distressed mother who
wanted to safely surrender her newborn at the hospital. Her cause for distress has been documented in
court records: her husband plead guilty to three separate incidents of domestic violence against her – in
Las Vegas, Nevada, Ottawa County, Michigan, and
3
Jacksonville, Florida. In the October 29, 2016 Nevada
incident, he chased down his wife in his car, strangled
her until she passed out, undressed her, handcuffed
her, and put her in his truck. (10/02/18 Hearing, pp. 910, Respondent’s App. 27). He plead guilty. (Nevada
ROA). In the June 3, 2018 Michigan incident, after the
parties separated, his wife moved in with her sister. He
broke into her home, assaulted her, smashed her phone
when she tried to call the police, and slashed her tires
so she could not escape. (10/02/18 Hearing, p. 9, Respondent’s App. 27). She was seven months pregnant
with the child at issue in this appeal. Once again, he
plead guilty. He also plead guilty to an April 13, 2019
incident in Florida.
Surrendering Parent gave birth at a hospital in
Grand Rapids, Michigan on August 9, 2018. She notified the hospital workers that she planned to surrender the newborn. (09/13/18 Safe Delivery Report).
The mother declined to share any identifying information, except her date of birth, her height and weight,
that she was married, and that the father “was very
abusive.” (09/13/18 Safe Delivery Report). She refused
to fill out the Voluntary Medical Background Form.
(09/13/18 Safe Delivery Report). She declined to sign
the Voluntary Release for Adoption. (09/13/18 Safe Delivery Report). Instead, she indicated to the hospital
worker that she did not want her name in any of
the documents; nor did she indicate who the father
of the child was. (09/13/18 Safe Delivery Report). The
baby and mother both tested positive for methadone.
(09/13/18 Safe Delivery Report). She surrendered the
4
newborn on August 12, 2018. (09/13/18 Safe Delivery
Report).
The hospital contacted the child placing agency,
Catholic Charities of West Michigan, to place the child.
The Surrendering Parent called the agency the next
day to check on the baby, but she did not provide any
additional information. (09/13/18 Safe Delivery Report). Catholic Charities filed a petition on August 15,
2018 to place the newborn, and on August 16, 2018,
the Kalamazoo County Circuit Court signed an order
placing the child with the prospective adoptive family.
(09/13/18 Safe Delivery Report). Due to the drugs in
the newborn’s system, he was not discharged until August 26, 2018, when he went home with his prospective
adoptive family. (09/13/18 Safe Delivery Report).
Catholic Charities sought to locate Petitioner by
submitting the Safe Delivery Tracking form, reviewing
all the paperwork from the hospital to determine if
there was identifying information, and requesting
Verification of Notice of Intent to Claim Paternity.
(09/13/18 Safe Delivery Report).
Without any identifying information, Catholic
Charities had no choice but to publish notice in the
Grand Rapids Press (the County where the child was
surrendered) on August 16, 2018. (09/13/18 Safe Delivery Report). The 28-day notice period expired on September 13, 2018. Catholic Charities did not receive any
response and scheduled a hearing to terminate parental rights. The Kalamazoo Court terminated the rights
of both the Surrendering Parent and Petitioner on
5
September 28, 2018, as neither parent came to Court
to object to the child’s placement under the Safe Delivery of Newborns Law. (09/28/18 Order Terminating
Rights, Petitioner’s App. 1a).
The Divorce Case
Meanwhile, in another County, Petitioner filed a
complaint for divorce on August 8, 2018 – the day before the child was born. (08/08/18 Divorce Complaint,
Respondent’s App. 1). In his complaint, Petitioner informed the Ottawa County Circuit Court of several
crucial facts:
10. That Plaintiff is currently facing
criminal charges with Defendant as the
alleged victim.
11. That Plaintiff is currently under a no
contact order regarding Defendant.
12. That Plaintiff is not certain if he is
the biological father of Defendant’s baby
due to a period of physical separation
around the time of conception.
13. That DNA testing of the child and Plaintiff would allow Plaintiff to confirm or rebut
paternity.
14. That Defendant intends to give the
unborn child up for adoption or to exercise the Safe Delivery option pursuant to
MCL 712.3.
6
(08/08/18 Divorce Complaint, Respondent’s App. 3)
(emphasis added).
On August 10, 2018, the Divorce Court signed an
ex parte order requiring the mother to submit the child
to DNA testing and prohibiting either party from taking any action “pertaining to the permanent placement
or adoption” of the unborn child. (08/10/18 Ex Parte Order). That order was not served on the Surrendering
Parent until August 30, 2018. (09/11/2018 Motion for
Order to Show Cause, ¶4). When the Surrendering
Parent did not comply, Petitioner filed a motion to
show cause. (09/11/2018 Motion for Order to Show
Cause).
At some point after September 13, Petitioner
found the notice by publication. (10/02/18 Hearing,
pp. 4-5, 11, Respondent’s App. 23-24, 29). When the Divorce Court entered the Uniform Child Support Order
on September 21, 2018, the following information was
included:
There is no current birth record for the minor
child in this case, although it is suspected that
the child was born on August 9, 2018, and surrendered for adoption on August 12, 2018
though the Safe Delivery of Newborns Law.
(09/21/18 Uniform Child Support Order, ¶13a, Respondent’s App. 19).
On January 16, 2019 – 4 months after Petitioner’s
rights were terminated – Petitioner subpoenaed Catholic Charities in the Divorce Case to obtain confidential
adoption records. Catholic Charities sought to quash
7
that subpoena. (02/01/19 Motion to Quash). Catholic
Charities informed the Divorce Court that complying
with the subpoena would simultaneously result in the
agency violating the Safe Delivery of Newborns Law
and committing a crime. (02/01/19 Motion to Quash,
p. 3).
At the motion to quash hearing, the Divorce Court
acknowledged the requirements of the Safe Delivery of
Newborns Law:
I’ve got court personnel already checking with other courts to find out if they
have a Safe Deliveries action pending in
their court. So essentially, we need to identify where that is, and then send the custody
part of this case to that court, and we may get
it back later, but that’s what the statute says
to me.
(02/25/19 Hearing, pp. 6-7, emphasis added). The Divorce Court required Catholic Charities to turn over
redacted copies of the adoption records; Catholic Charities complied on July 12, 2019. (06/10/19 Order). The
Divorce Court entered a default judgment of divorce on
July 30, 2019, and awarded custody of an unidentified
child to Petitioner.
Petitioner’s late motion in the Safe Delivery Court
After receiving the adoption case information
from Catholic Charities, Petitioner delayed another
four months before he filed his first motion in the
8
Kalamazoo Safe Delivery Case – a motion unseal the
adoption records – 13 months after his parental rights
had been terminated and 8 months after the adoption
had been finalized. (10/07/19 Motion to Unseal). He informed the Kalamazoo Court that he needed the adoption records to help him assert claims in a civil suit
against Catholic Charities (he has sued the agency for
$50 million). (10/07/19 Motion to Unseal, p. 4).
Petitioner insisted that Catholic Charities should
have hunted him down, but when asked by the Kalamazoo Court how the agency was supposed to do that
without having any names, Petitioner did not offer a
single suggestion. (12/10/19 Hearing, pp. 18-19). The
Attorney for Petitioner also falsely told the Kalamazoo
Court that he did not know the mother was going to
surrender the newborn, even though the divorce complaint shows the opposite. (12/10/19 Hearing, p. 19).
The Kalamazoo Court told Petitioner that it did not
have authority to disregard the terms of the Safe Delivery of Newborns Law. (12/10/19 Hearing, pp. 19, 22,
24). The Kalamazoo Court denied the request to unseal
the adoption file. (01/02/20 Order, Petitioner’s App. 4a).
Petitioner filed a motion for reconsideration – 16
months after his parental rights had been terminated
and 11 months after the adoption had been finalized.
(1/22/20 Motion for Reconsideration). He argued for
the first time that the divorce complaint in Ottawa
County should qualify as a petition for custody under
the Safe Delivery of Newborns Law and requested that
his parental rights be reinstated. (01/22/20 Motion for
9
Reconsideration, pp. 3-4). The Kalamazoo Court denied
the motion. (02/19/20 Order, Petitioner’s App. 6a).
Petitioner waited another four months to file a delayed application for leave to the Court of Appeals – 20
months after his parental rights had been terminated
and 16 months after the adoption had been finalized.
(06/10/20 COA Application). He did not raise a constitutional issue. (06/10/20 COA Application). The Court
of Appeals granted leave. (08/31/20 COA Order).
On August 26, 2021, the Court of Appeals issued a
published opinion – 3 years after Petitioner’s rights
had been terminated and 2½ years after the adoption
had been finalized. (08/26/21 COA Opinion, Petitioner
App. 8a). Judge Amy Ronayne Krause dissented. The
Court of Appeals determined that Catholic Charities
did not make reasonable efforts to locate Petitioner
and notify him of the Safe Delivery Case, and reinstated his parental rights. (08/26/21 COA Opinion, Petitioner’s App. 8a). It was not until the published
opinion that Adoptive Parents learned of Petitioner’s
trial court motions and appeal.
The Adoptive Parents and Catholic Charities filed
a motion for reconsideration in the Court of Appeals,
and later filed their Applications to the Michigan Supreme Court. The Michigan Supreme Court granted
oral argument on March 17, 2022 and requested additional briefing. (03/17/22 MSC Order). The Michigan
Supreme Court issued an order reversing the Court of
Appeals’ decision as to the reinstatement of parental
rights because Petitioner failed to avail himself of the
10
procedures in the Safe Delivery of Newborns Law and
failed to take action so that the Divorce Court would
locate the Safe Delivery Case and transfer his contingent custody request to the Safe Delivery Court.
(06/29/22 MSC Order, Petitioner’s App, 43a).
---------------------------------♦---------------------------------
ARGUMENT
I.
This case does not present the Court with
an appropriate vehicle to examine Michigan’s Safe Delivery of Newborns Law and
this Court should deny the Petition.
Petitioner seeks to have this Court declare Michigan’s Safe Delivery of Newborns Law unconstitutional
under the Due Process and Equal Protection Clauses.
While these are issues of first impression, this case
does not provide this Court with an appropriate vehicle to examine the constitutionality of Michigan’s Safe
Delivery of Newborns Law.
First, Petitioner did not raise the constitutionality
of the statute in the proceedings below, despite numerous filings in the Safe Delivery Case, the Michigan
Court of Appeals, and the Michigan Supreme Court.
Instead, the Michigan Supreme Court, in its order
granting oral argument, sua sponte asked the parties
to address the constitutionality of the statute. This
Court should not grant a petition that challenges the
constitutionality of a statutory scheme that has not
been properly raised by the parties nor developed in
the lower court record.
11
Second, the Michigan Supreme Court did not
reach the constitutionality of the Safe Delivery of Newborns Law. The Michigan Supreme Court applied the
facts to Michigan’s Safe Delivery of Newborns Law and
determined that Petitioner – by his actions and lack of
actions – had not satisfied the statute, even when he
had an opportunity to do so. Moreover, no other state
has weighed in on the constitutionality of their own
safe haven laws. Thus, this Court does not have the
benefit of seeing how any other court analyzed the constitutional issues raised in this Petition. This Court
should not grant the petition when the constitutional
issues have not been evaluated by any court in this
country.
Third, Petitioner seeks to strike down the entire
Michigan statutory scheme. The Michigan Legislature
knew the purpose of allowing a safe surrender was to
the save the lives of newborns who would otherwise be
at risk of an unsafe abandonment or death. The Michigan Legislature also knew that a parent who contemplates a surrender is not doing it on a whim – they are
facing a crisis pregnancy, such that the only viable
path is to leave their newborn in the protective hands
of an emergency service provider. Surrendering Parent
was experiencing a crisis pregnancy due to extreme domestic abuse at the hands of Petitioner, her husband,
along with her drug use. Surrendering Parent’s crisis
situation is the reason the Michigan Legislature enacted the Safe Delivery of Newborns Law – because it
determined that saving the life of a newborn merited
higher protection than the rights of nonsurrendering
12
parents. This Court should not grant a petition whose
goal is to strike down an entire statute designed to
save the lives of newborns.
Fourth, Michigan’s Safe Delivery of Newborns
Law is the most restrictive of all the statutes in the
Nation – meaning that it does more to protect the
rights of a nonsurrendering parent than any other
state’s safe haven laws. Overturning any part of the
Michigan statute on constitutional grounds places
every single state’s safe haven statute at risk, in spite
of the fact that safe haven laws have saved thousands
of babies around this country (4,653 according to the
National Safe Haven Alliance), and 298 newborns in
the State of Michigan. Saving the lives of newborns is
a greater government objective than protecting nonsurrendering parents’ rights. This Court should not address the constitutionality of Michigan’s Safe Delivery
of Newborns Law when a decision regarding Michigan’s law could have disastrous nationwide impact on
the safety of at-risk newborns.
Fifth, Petitioner sat on his hands when it came to
actually locating the surrendered newborn and the
Safe Delivery Case; instead, he focused his efforts on
pursing his battered wife in the Divorce Case, and ignored one opportunity after another to have the Divorce Court locate the Safe Delivery Court and
transfer the Divorce Case to the Safe Delivery Court,
as required under Michigan’s Safe Delivery of Newborns Law. He even located the notice by publication
before his parental rights were terminated, yet he did
nothing to ensure he could participate in the Safe
13
Delivery Case. Instead, he waited until 13 months after his rights were terminated and 8 months after the
newborn’s adoption was finalized before he filed his
first motion in the Safe Delivery Case, and that motion
merely asked the Safe Delivery Court to unseal the
adoption records (primarily so he could pursue his $50
million lawsuit against Catholic Charities of West
Michigan).
Sixth, Petitioner conceals a great number of relevant facts as to the circumstances the Surrendering
Parent faced when she made the difficult decision to
safely surrender her newborn at the hospital, the lack
of identifying information so that Catholic Charities
could locate and notify Petitioner, the fact that Petitioner actually found the notice by publication before
his rights were terminated, the lack of diligence Petitioner displayed in the Divorce Case so that the Divorce Court would locate the Safe Delivery Case and
transfer his custody request to the Safe Delivery
Court, his obsessive pursuit of his battered wife, his
multiple times of pleading guilty to domestically assaulting his wife, and his complete lack of concern for
the best interests and safety of the child at issue
here.
Seventh, Petitioner’s constitutional rights to this
child have not only long-since passed, but his rights are
subservient to the constitutional rights of the Child
and the Adoptive Parents. Petitioner only had constitutional rights up until the time had passed to appeal
the termination of his parental rights. He did not appeal. But even before the appeal period had passed, his
14
rights were lesser than the constitutional rights these
Adoptive Parents and Child held in their established
custodial relationship with each other. As this Court
has stated on multiple occasions, the constitutional
right of a biological father stems from his relationship
with his children and not biology alone. Not only is it
unknown whether Petitioner is the biological father
(as he questioned his paternity when he filed for divorce, and then he did not file a request for custody under the Safe Delivery of Newborns Law, which would
have required DNA testing), but the Adoptive Parents’
constitutional rights fully attached the moment their
adoption was finalized over 3½ years ago. The Adoptive
Parents are the child’s parents; they are the only parents with the established relationship with this child
and to whom the liberty interest in Troxel v. Granville
apply.
Finally, in attempting to throw out Michigan’s entire Safe Delivery of Newborns Law, Petitioner makes
many arguments based on hypothetical facts that do
not exist in this case (such as how the Act does not require a surrendering parent to demonstrate they are
in crisis, the person surrendering is the parent, or that
the birth was witnessed by an emergency service provider – all of which existed here). This Court cannot
make decisions about the constitutionality of a statute
based on a hypothetical. Once this Court learns of the
many facts that Petitioner omits from his Petition, it
will be persuaded that this is not the case in which to
analyze the constitutionality of Michigan’s Safe Delivery of Newborns Law, or any other state’s safe haven
statute.
15
II.
The Safe Delivery of Newborns Law did not
violate Petitioner’s constitutional rights.
To save more newborns’ lives, Michigan’s Safe Delivery of Newborns Law contains two critical elements.
First, the surrendering parent (often the mother) is
not required to disclose any identifying information for either herself or the father. See Mich. Comp.
Laws §§ 712.3, 712.7(b). Second, the proceedings move
quickly to provide permanency and stability to the surrendered newborn. Mich. Comp. Laws §§ 712.7, 712.10,
712.17.
Michigan’s Safe Delivery of Newborns Law is the
most restrictive of all “Safe Haven” laws in the country.
That is to say that the Michigan statute does more to
protect the rights of the nonsurrendering parent than
anywhere else in the entire country.
First, the surrender period in Michigan is the
shortest time period in the country – three days from
birth. Mich. Comp. Laws §§ 712.1(k), 712.3(1). Only 9
states impose this short three-day period on the surrendering parent. Over half the states allow a safe surrender up to 30 days. Some states allow a surrender at
60 or 90 days. And one state allows the surrender up
to one year!
16
Time for
How Which states
surrender many
3 days
9
Alabama, California, Colorado,
Hawaii, Michigan, Mississippi,
Tennessee, Washington,
Wisconsin
7 days
6
Florida, Massachusetts,
Minnesota, New Hampshire,
North Carolina, Oklahoma
10 days
1
Maryland
14 days
3
Delaware, Virginia, Wyoming
21 days
1
Alaska
28 days
2
Pennsylvania, Texas
30 days
21
Arizona, Arkansas, Connecticut,
Georgia, Idaho, Illinois, Indiana,
Iowa, Kentucky, Louisiana,
Montana, Nebraska, Nevada,
New Jersey, New York, Ohio,
Oregon, Rhode Island, Utah,
Vermont, West Virginia
31 days
1
Maine
45 days
2
Kansas, Missouri
60 days
2
South Carolina, South Dakota
90 days
1
New Mexico
1 year
1
North Dakota
Second, Michigan is the only state that requires
“reasonable efforts” to locate the nonsurrendering
parent and notice by publication if the identity of the
17
nonsurrendering parent is unknown. Mich. Comp.
Laws § 712.7(f ). One state requires “diligent efforts”
(Louisiana). According to Louisiana statute, “The department shall exercise due diligence in attempting to
identify and locate any nonrelinquishing parent, including, but not limited to, performing a missing-children search.” La. Child. Code Ann. art. 1154. Notice is
not even required under the Louisiana law, only that
the department has discretion to provide notice. Id.
Louisiana also permits a surrender to occur up to 30
days. La. Child. Code Ann. art. 1156.
Third, Michigan requires notice to both the surrendering and nonsurrendering parents. Mich.
Comp. Laws § 712.7(f ). If the identity of the nonsurrendering parent is unknown, the child placing
agency shall provide notice by publication. Mich.
Comp. Laws § 712.7(f ). The majority of states require
no notice whatsoever to the nonsurrendering parent.
The following chart summarizes the type of notice that
is required around the country, how many states observe each type of notice, and more notice details
where appropriate:
How
Type of Notice
many
states
More notice details
41
No Notice
N/A
4
Notice by
Publication Only
Publication in a
newspaper of statewide
circulation
18
2
Notice to any
known parent and
to the putative
father registry
Search the putative
father registry for the
purpose of determining
the identity and
location of the father to
provide notice
1
Discretionary
efforts to identify
and locate the
nonrelinquishing
parent
Up to the discretion of
the Department.
1
Reasonable Efforts Michigan: Reasonable
efforts were made to
identify, locate, and
provide notice to
Petitioner. If identity is
unknown, then notice
by publication.
1
Due Diligence
Louisiana: Due
diligence in attempting
to identify and locate
nonrelinquishing
parent, including
missing child search.
Among the nine states who require the safe surrender to occur within a short three-days from birth,
Michigan is the only state that requires the child
placing agency to make “reasonable efforts.” Tennessee requires only notice by publication. Tenn. Ann.
Code 68-11-255. Hawaii states that “The department
may search for relatives of the newborn child as a
19
placement or permanency option or implement other
placement requirements that give preference to relatives provided that the department has information as
to the identity of the newborn child, the newborn child’s
mother, or the newborn child’s father.” Haw. Rev. Stat.
587D-2 (emphasis added). The other six states do not
require any kind of notice at all to the nonsurrendering
parent.
Fourth, Michigan law provides an opportunity for
the nonsurrendering parent to request custody, as long
as that person is proven to be the biological parent and
the court finds that it is in the best interests of the
child. Mich. Comp. Laws § 712.14. The vast majority of
states have no such process for the nonsurrendering
parent to come into court at all.
Even though all 50 states enacted safe haven laws
between 1999 and 2008, there is not a single case striking down a safe haven statute on constitutional
grounds in the 23 years that these laws have been on
the books. Legislatures and courts around the country
understand the purpose of safe haven laws: to save
lives of babies born to distressed parents. Thus, the
Michigan Legislature elevated the interests of newborns above the interests of the nonsurrendering
parent. Moreover, a potential father’s fitness is subservient to the rights of the newborn. In Michigan, his fitness is embedded in the best interest analysis, should
he request custody under the Act. Mich. Comp. Laws
§ 712.14. The Legislature’s decision to protect the lives
of newborns does not amount to a constitutional violation of a nonsurrendering parent’s rights.
20
A. The Petition fails to consider the constitutional rights of the Child.
A child has a right to security and permanency.
See Santosky v. Kramer, 455 U.S. 745, 753; 102 S. Ct.
1388; 71 L. Ed. 2d 599 (1982); In re Trejo, Minors, 612
N.W.2d 407 (Mich. 2000). A child also has a due process
right in the procedures the court employs. In re Gault,
387 U.S. 1, 33-34; 87 S. Ct. 1428; 18 L. Ed. 2d 527
(1967).
The procedures set forth in the Safe Delivery of
Newborns Law serve to best protect the health, safety
and welfare of a newborn who is born to a distressed
parent, thus saving lives of newborns from abandonment or death. The Act’s proceedings move fast to protect that newborn and to establish permanency as
quickly as possible. Mich. Comp. Laws § 712.7 (agency
must immediately assume care of child and place newborn with adoptive family and file petition within 48
hours of placement); Mich. Comp. Laws § 712.7(e)
(agency has 28 days to locate nonsurrendering parent
or notify by publication); Mich. Comp. Laws § 712.10(1)
(surrendering parent has 28 days from surrender to request custody and nonsurrendering parent has 28 days
from notice to request custody); Mich. Comp. Laws
§§ 712.10(3), 712.11(1) (if petition is filed, court must
conduct hearing within 7 days); Mich. Comp. Laws
§ 712.17 (if no custody request filed, agency must immediately file petition to terminate rights).
The Act further protects the newborn from having
a person request custody who is not biologically the
21
parent of the child. Mich. Comp. Laws § 712.11. Even
the proven-biological parent who requests custody
must demonstrate that it is in the best interests of the
newborn. Mich. Comp. Laws § 712.14(1). All of these
protections in Michigan’s Safe Delivery of Newborns
Law represent the procedures in which the newborn
has a constitutionally protected right.
How does any court expect to achieve this important goal when Petitioner filed his first motion in
the Safe Delivery Court more than 14 months after the
child’s birth, 13 months after Petitioner’s rights were
terminated, and 8 months after the finalized adoption?
How does Petitioner expect the Safe Delivery Court to
know that he filed a “petition for custody” in a Divorce
Case when he did not ask the Divorce Court to follow
the statute to locate and transfer to the Safe Delivery
Court? How does Petitioner expect to achieve stability
and permanence for this newborn when, at every step
of the way, Petitioner delayed the process (waiting for
over 4 months to file a subpoena that eventually led
him to the Safe Delivery Case number; waiting for 4
months after he learned of Safe Delivery Case number
to file a motion in the Safe Delivery Court, and waiting
4 months after the Safe Delivery Court denied his motion for reconsideration to file a delayed application)?
Petitioner’s case has been about delay and failure to
promptly act – all of which actions should have occurred before his rights were terminated on September
28, 2018, but at a minimum at least before the adoption was finalized on February 12, 2019. Where in Petitioner’s equation does the rights of this newborn
22
come into play? He does not once consider what is best
for this child.
Petitioner gives no consideration to the newborns
who will be a risk of death or abandonment if this
Court overturns the Safe Delivery of Newborns Law.
So far, Michigan’s Safe Delivery of Newborns Law has
saved the lives of 298 babies. With this Court’s issuance of Dobbs v. Jackson Women’s Health Organization,
142 S. Ct. 2228 (2022), those numbers will certainly
increase. Those future newborns have the right to
live. This Court cannot contemplate the constitutional
rights of a nonsurrendering parent without weighing
it against the rights of those newborn babies who
might otherwise die. This Court should deny the Petition.
B. The Petition fails to consider the constitutional rights of the Adoptive Parents.
It is undisputed that Adoptive Parents acquire all
the rights and responsibilities of natural parents. This
is plainly set out in Michigan Adoption Code, which
states that:
After the entry of an order of adoption, . . . the
person or persons adopting the adoptee then
become the parent or parents of the adoptee
under the law as though the adopted person has been born to the adopting parents and are liable for all the duties and
entitled to all the rights of parents.
23
Mich. Comp. Laws § 710.60 (emphasis added). An
adoption order was entered on February 12, 2019.
(02/12/19 Order of Adoption, Petitioner App. 3a). We
are now more than 3½ years post-adoption.
The Fourteenth Amendment’s promise of due process is a substantive component that “provides heightened protection against government interference with
certain fundamental rights and liberty interests.”
Washington v. Glucksberg, 521 U.S. 702, 720; 117 S. Ct.
2258, 2302; 138 L. Ed. 2d 772 (1997). Among these
fundamental rights is the right of parents to make decisions concerning the care, custody, and control of
their children. See Meyer v. Nebraska, 262 U.S. 390,
399-400; 43 S. Ct. 625; 67 L. Ed. 1042 (1923). The Adoptive Parents hold a constitutionally protected liberty
interest in the care, custody, and control of their child.
Troxel v. Granville, 530 U.S. 57, 65; 120 S. Ct. 2054; 147
L. Ed. 2d 49 (2000).
Adoptive Parents also have a constitutionally protected interest in their family unit. From the moment
the adoption was finalized on February 12, 2019, the
Adoptive Parents not only became the legal parents of
this child, but also the “natural parents” as though the
child had been born to them, with all the rights and
responsibilities attendant to that relationship. Mich.
Comp. Laws § 710.60.
The Michigan adoption scheme expresses a
policy of severing, at law, the prior, natural
family relationship and creating a new and
complete substitute relationship after
adoption.
24
In re Toth, 577 N.W.2d 111, 114-115 (Mich. App. 1998)
(emphasis added); Wilson v. King, 827 N.W.2d 203, 205
(Mich. App. 2012).
These Adoptive Parents are endowed with a liberty interest in their relationship with the child they
adopted over 3½ years ago.
C. This Court’s precedent demonstrates
that Petitioner’s rights were not violated by Michigan’s Safe Delivery of
Newborns Law.
This Court has addressed parental rights in four
cases – all of which turned on the biological father’s
relationship with the children. In Stanley v. Illinois,
405 U.S. 645, 646, 650; 92 S. Ct. 1208; 31 L. Ed. 2d 55
(1972), the biological father of the children had lived
with the mother intermittently for 18 years, and Illinois law allowed his parental rights to be terminated
solely on the basis that he was not married to the
mother. This Court specifically referred to the interest
of the father “in the children he has sired and
raised.” Id. at 651 (emphasis added). The father in
Stanley had raised the children for 18 years with the
mother up until her death. Id. at 646. Thus, this Court
reversed the Illinois Supreme Court for failing to provide the biological father with an opportunity to
demonstrate his parental qualifications. Id. at 658659.
In Quilloin v. Walcott, 434 U.S. 246, 247; 98 S. Ct.
549; 54 L. Ed. 2d 511 (1978), on the other hand, the
25
child had lived with his mother for his entire life, and
the biological father had never established a home with
the child. When the child was 11 years old, the mother’s
new husband sought to adopt the child, and the child’s
father opposed the adoption. Id. The father had only
“irregularly” supported the child, and had visited him
on “many occasions” but never had custody of the child.
Id. at 250-251. This Court affirmed the lower court’s
decision to permit the adoption, concluding that the effect of the adoption was not to disrupt a family
unit but to give full recognition to a family unit
already in existence. Id. at 255 (emphasis added).
This Court noted that the father had never “shouldered any significant responsibility” with respect to
the care or custody of the child and was thus not entitled to the same rights as a married man, or an unwed
man who had taken on such responsibility. Id. at 256.
In Caban v. Mohammed, 441 U.S. 380, 382; 99
S. Ct. 1720; 60 L. Ed. 2d 297 (1979), the biological father lived with the two children as their father for 4
and 2 years respectively and he and their mother represented themselves to be husband and wife, even
though they were unwed. After the mother married another man, she and her husband attempted to terminate the father’s parental rights for a stepparent
adoption. Id. 382-383. This Court held that because the
father had established “a substantial relationship”
with the children, he should be afforded the same right
to veto an adoption as the mother. Id. at 392-393.
Finally, in Lehr v. Robertson, 463 U.S. 248; 103 S. Ct.
2985; 77 L. Ed. 2d 614 (1983), this Court reconciled the
26
above cases and refined the standard regarding a biological father’s parental rights. This Court held:
When an unwed father demonstrates a full
commitment to the responsibilities of
parenthood by “[coming] forward to participate in the rearing of his child,” his
interest in personal contact with his
child acquires substantial protection
under the Due Process Clause. At that
point it may be said that he “[acts] as a father
toward his children.” But the mere existence of a biological link does not merit
equivalent constitutional protection. The
actions of judges neither create nor sever genetic bonds. “[The] importance of the familial
relationship, to the individuals involved and
to the society, stems from the emotional attachments that derive from the intimacy
of daily association, and from the role it
plays in ‘[promoting] a way of life’ through the
instruction of children . . . as well as from the
fact of blood relationship.”
Lehr, 463 U.S. at 261 (emphasis added), quoting Smith
v. Org. of Foster Families for Equality & Reform, 431
U.S. 816, 841; 97 S. Ct. 2094; 53 L. Ed. 2d 14 (1977),
and Wisconsin v. Yoder, 406 U.S. 205, 231-233; 92 S. Ct.
1526; 32 L. Ed. 2d 15 (1977). The father in Lehr had
never had any “significant custodial, personal, or financial relationship” with the child and this Court affirmed the lower court’s decision to permit an adoption
of the child without providing the father an opportunity to be heard. Id. at 267-268.
27
Two important points come out of this line of
cases. First, the family unit merits protection – the parents who raised the child and who hold the emotional
attachments that derive from the intimacy of daily association. Second, biology is important, but not more
important than the enduring relationship the child has
in his family unit.
Here, Petitioner does not have any relationship at
all with this child. Instead, Adoptive Parents took the
newborn into their home when he was two weeks old,
have been his constant companions and his only parents for over four years, and legally adopted him over
three years ago. They are the parents who merit constitutional protection.
Petitioner makes much of the fact that he was
married to the child’s mother. Michigan’s Safe Delivery
of Newborns Law does not distinguish between married and unwed parents. Any man that comes to court
requesting custody of a surrendered newborn must
first prove with DNA testing that he is the biological
father of the surrendered newborn. Mich. Comp. Laws
§ 712.11(1). Even a mother must prove her DNA if an
emergency service provider did not witness her giving
birth to the child. Mich. Comp. Laws § 712.11(2). We do
not even know if Petitioner has a biological connection
with the child because he did not timely petition for
custody in the Safe Delivery Case. Instead, he filed a
motion to unseal adoption records 13 months after his
rights were terminated and 8 months after the adoption was finalized. More significantly, he does not
even believe he is the biological father, as he so
28
stated in his divorce complaint: “That Plaintiff is not
certain if he is the biological father of Defendant’s baby
due to a period of physical separation around the time
of conception.” (08/08/18 Divorce Complaint, ¶12, Respondent’s App. 3). Surrendering Parent even testified
at her deposition in the Divorce Case that Petitioner is
“not the father” and that the “baby is black” – as revealed by the attorney for Petitioner at oral argument
before the Michigan Court of Appeals.
Even if we had learned that Petitioner is the biological father of this Child, his constitutional rights are
protected by the terms of the Safe Delivery of Newborns Law, which requires the Safe Delivery Court to
“consider, evaluate, and make findings” on the child’s
best interests. Mich. Comp. Laws § 712.14(1). Consistent with this Court’s decisions, several of the best
interest factors go right to the heart of the constitutional analysis that places emphasis on the familial relationships that have been created with the child, such
as: (a) The love, affection, and other emotional ties existing between the newborn and the parent; (d) The
permanence, as a family unit, of the existing or proposed custodial home; (h) If the parent is not the parent who surrendered the newborn, the opportunity the
parent had to provide appropriate care and custody of
the newborn before the newborn’s birth or surrender.
Mich. Comp. Laws § 712.14. Thus, the Safe Delivery of
Newborns Law adequately protects Petitioner’s constitutional rights. Petitioner would surely fail under the
best interest test based on the facts of this case.
29
1. Petitioner received adequate notice
of the proceedings.
Petitioner complains that the notice by publication
provision is too non-specific to be constitutionally
sound. We disagree.
“An elementary and fundamental requirement of
due process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.” Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314; 70 S. Ct. 652; 94
L. Ed. 865 (1950). This Court has long held that publication notice is sufficient in the case of persons
missing or unknown, “whose interests or whereabouts could not with due diligence be ascertained,” as
it is all that the situation permits. Id. at 317. In contrast, “Notice by publication is not constitutionally adequate with respect to a person whose name and
address are known or very easily ascertainable and
whose legally protected interests are directly affected
by the proceedings in question.” Dow v. State of Michigan, 240 N.W.2d 450, 458 (Mich. 1976).
Here, Surrendering Parent provided no information identifying herself or her husband (other than
her birthdate). It was impossible for Catholic Charities
to do more than what it did in identifying and locating
Petitioner. Catholic Charities was left with no choice
but to publish the notice of surrender. Mich. Comp.
Laws § 712.7(f ). Based on the law from this Court,
30
notice by publication is constitutionally sound when
the nonsurrendering parent is unknown and unidentified.
Catholic Charities published notice in the record
paper of the county where the child was surrendered:
Kent County. Catholic Charities did not know where
the Surrendering Parent or Petitioner lived. The notice
apprised Petitioner of the date of birth, the date of surrender, and the hospital where the newborn was born.
It also notified Petitioner that his rights would be terminated if he did not contact Catholic Charities within
28 days of the notice of surrender, and provided him a
telephone number to contact.
Moreover, Petitioner admitted to having found the
notice by publication sometime after September 13 and
likely before the child support order was entered on
September 21, 2018. (10/02/18 Hearing, pp. 4-5, 11, Respondent’s App. 23-24, 29; 09/21/18 Uniform Child Support Order, ¶13a, Respondent’s App. 18). He also knew
that the mother planned a safe surrender, and even
cited the Safe Delivery of Newborns Law. (08/08/18 Divorce Complaint, ¶14, Respondent’s App. 3). Instead of
looking for the notice, he focused on pursuing his domestically abused wife in the Divorce Case – with an
ex parte motion for DNA testing, followed by a motion
to compel when she did not comply, a demand letter, a
motion to show cause her (including asking that she be
jailed for 10 days and fined for her noncompliance), and
bench warrants. (10/02/18 Hearing, p. 5, Respondent’s
App. 24). Yet now he complains in his Petition that 28
days was not sufficient time to find the notice!
31
2. The Adoption and Juvenile Codes
are not adequate substitutes for the
Safe Delivery of Newborns Law.
Petitioner argues that the procedures in Michigan’s Adoption Code and Michigan Juvenile Code
would adequately protect the life of at an-risk newborn
and better protect a parent’s rights. The Safe Delivery
of Newborns Law provides immediate relief to the distressed parent, while allowing the surrendering parent
to avoid engagement with the other parent, prospective adopters, agencies, and the State. The Act also ensures privacy, which is a paramount concern for a
distressed parent who contemplates surrendering a
newborn. None of these benefits can be replicated in
the Adoption or Juvenile Codes.
While Petitioner asserts that using those other
codes would provide the same protections (they do
not), even the Adoption and Juvenile Codes allow termination of rights when the identity of a parent cannot
be determined or the whereabouts are unknown. Mich.
Comp. Laws § 710.37(2) (termination allowed under
Adoption Code if mother made reasonable efforts to
identify and locate father); Mich. Comp. Laws § 712A.13
(under Juvenile Code, court can use substitute service
by publication where the respondent’s whereabouts
are unknown).
32
3. Communication between courts when
Petitioner files in his own County
does not make the statute unconstitutional.
Petitioner believes the Safe Delivery of Newborns
Law violates his constitutional rights because it requires courts in two counties to communicate with
each other. While it is true that Michigan does not have
a statewide case management system, the Ottawa Divorce Court could have found the Safe Delivery Court
in a timely fashion had he made any effort at all to do
so.
As the Divorce Court stated on the record, it had
directed its staff to call various other clerks to find out
if there was a Safe Delivery Case pending before them.
(02/25/2019 Hearing, pp. 6-7). The problem is that the
judge did not start the process until five months after
Petitioner’s rights had been terminated. The Divorce
Court could have acted more swiftly, and would have,
if Petitioner had taken any steps to prompt the Divorce
Court to take action.
Petitioner was behind the wheel in the Divorce
Case, and he could have done more:
– He did not include a request for relief asking the Divorce Court to locate the Safe Delivery Case and transfer the custody request to
the Safe Delivery Court. (08/08/18 Complaint
and Ex Parte Motion, p. 4, Respondent’s App.
4-5).
33
– He did not file a Safe Delivery action or use
the state-approved court form, “Petition of
Parent for Custody of Surrendered Newborn,”
which would have immediately alerted the
judge of the need to locate the Safe Delivery
Case and to transfer the custody request to
the other court. Mich. Comp. Laws § 712.10.
(Mich. S. Ct. Admin. Office Form CCFD 03, Petitioner App. 151a(II) and 152a(II)).
– He did not file a motion or request a status
conference to ensure that the Divorce Court
was looking for the Safe Delivery Case, particularly since he knew that his wife planned to
surrender the newborn and he was aware of
the Safe Delivery of Newborns Law.
– He did not appeal the termination order
either timely (appeal by right within 21 days)
or delayed (application for leave within 6
months). Nor did he file a timely motion for
relief from that order (before the adoption was
finalized on February 12, 2019, or even ironically within one year – by September 28,
2019). Mich. Ct. R. 2.612. His very first motion
in the Safe Delivery Court – on October 7,
2019 – was simply too late by any measure.
Instead, Petitioner focused his efforts in pursuing
his domestically abused wife, who was understandably
unwilling to participate in the divorce proceedings. He
obtained an ex parte order, and filed a motion to show
cause, yet did not inquire of the Divorce Court a single
time as to whether it was attempting to locate the Safe
Delivery Court under Mich. Comp. Law § 712.10(2). The
first time that the Divorce Court became meaningfully
34
involved with the location of the Safe Delivery Court
was not due to Petitioner’s motion, but due to the Catholic Charities’ motion to quash subpoena of the adoption file. (02/25/2019 Hearing, pp. 6-7).
Petitioner had plenty of time to locate the Safe Delivery Court between August 9, 2018 and September
28, 2018. He did not act promptly. Petitioner’s rights
were properly terminated by the Safe Delivery Court
on September 28, 2018, and Petitioner received all the
due process he was owed. The Adoptive Parents and
this Child should not be made victims to Petitioner’s
failures to act.
4. Michigan’s Safe Delivery of Newborns
Law passes constitutional muster
under Mathews v. Eldridge.
Petitioner claims that Michigan’s Safe Delivery of
Newborns Law must fail constitutional review under
Mathews v. Eldridge, 424 U.S. 319, 334-335; 96 S. Ct.
893; 47 L. Ed. 2d 18 (1976). But the Act passes the
Mathews test.
First, the private interest at stake is Petitioner’s
ability to form a relationship with the surrendered
newborn. But he must still first prove that he is the
biological father to avail himself of that chance. We
don’t know whether Petitioner is the biological father
because he came to the Safe Delivery Court long after
the proceedings were done; and he does not even think
he is the biological father.
35
Petitioner is not the only person with private interests at stake. The newborn has the most compelling
interest: his life. The Surrendering Parent has an interest in safely placing the newborn despite being a
victim of extreme domestic violence at the hands of her
husband. The Adoptive Parents have an interest in
maintaining the relationship and bonds they have
formed with the child they adopted over three years
prior.
Second, the risk of erroneous deprivation is low
when nonsurrendering parents actually employ the
statutory procedures designed to protect them. Petitioner knew of the Act’s existence, yet did nothing to
prompt the Divorce Court to locate the Safe Delivery
Case. The risk of erroneous deprivation under Michigan’s Safe Delivery of Newborns Law is reduced dramatically by the Michigan-specific protections,
including the three-day surrender period, the requirement of notice to the nonsurrendering parent, the requirement that the agency make reasonable efforts to
locate the nonsurrendering parent, and the opportunity for the parents to request custody of the surrendered newborn. While there may be some probable
value to additional safeguards (such a statewide case
management system), that feature is outside the realm
of the Safe Delivery of Newborns Law and the lack of
such a statewide system does not invalidate the Act.
Third, the Government interest and the administrative burdens that additional or substitute procedural requirements would entail weigh in favor of
the Act’s constitutionality. The Government has a very
36
high interest in saving the lives of newborns born to
distressed mothers. Michigan is also in the process of
funding a statewide case management system, but the
lack of such a system did not prevent Petitioner from
locating the Safe Delivery Case. The Divorce Court did
not locate the case because Petitioner did not request
it. The Divorce Court on its own decided to call other
courts to find the case, it was just too late to make a
difference.
5. Safe Delivery of Newborns Law treats
all fathers equally.
Petitioner assets a violation of the Equal Protection Clause, but not based on anything contained in the
Safe Delivery of Newborns Law. In fact, the Act treats
all men equally. Any man who requests custody must
demonstrate with DNA evidence that there is a 99.9%
chance that he is the biological father. Mich. Comp.
Laws § 712.11(3). Married and unwed fathers are
treated exactly the same.
What Petitioner complains about are features outside of the Safe Delivery of Newborns Law, such as the
so-called putative father registry. A man can file notice
of intent to claim paternity under the Adoption Code,
which will place him on the Putative Father Registry
and entitle him to notice of an adoption proceeding.
Though Petitioner was married, he could still have
placed himself on the registry, since he knew that his
wife had disappeared and planned to surrender the
newborn. Indeed, had he done so, Catholic Charities
37
would have found him because they checked the registry as part of their reasonable efforts before they gave
notice by publication. (09/13/18 TPR Petition, ¶8).
---------------------------------♦---------------------------------
CONCLUSION AND RELIEF REQUESTED
This Court should not review this case for a myriad of reasons. While the case is academically interesting because it is the first to reach the high Court, this
case is not the launchpad to review Michigan or any
other state’s safe haven laws. Petitioner did not raise
the constitutional issues he presented to this Court.
Neither the Michigan Supreme, nor any court below,
decide those constitutional issues. Indeed, Petitioner
did not appeal the order terminating his parental
rights, and he merely used a legally unsupported motion to unseal confidential adoption records as a vehicle to present an extremely late challenge to the
termination order. Instead, this case simply presents
an issue of statutory interpretation under Michigan
law. This Court should deny the Petition.
While Petitioner enjoyed some constitutional rights
before the termination order was entered, his rights
are lesser than the constitutional rights of the Child
and the Adoptive Parents. Petitioner does not even
know if he is the biological father, and it seems doubtful that he is. But even if DNA testing demonstrated
that he is the biological father, the child’s best interests, as reflected in Mich. Comp. Laws § 712.15, must
prevail over any rights he claims to have. Moreover, the
Michigan Legislature chose to treat all men equally
38
when it required any man requesting custody to submit to DNA testing. Petitioner does not have any
greater rights from his marriage to the mother. This
marriage was not sacrosanct, as proven by Petitioner’s
extreme violence against her – strangling her, kidnapping her, and physically assaulting her while she was
pregnant. He plead guilty to three separate violent incidents against her in three different states.
A holding that the statute is unconstitutional
would be devastating and deathly. It would be devastating to the family unit created over four years ago
between this Child and the only parents he has ever
known. It would be deathly for all the newborn children who will be subject to dangerous abandonment or
death if the Safe Delivery of Newborns Law is not allowed to stand. The statute has proven to save the lives
of 298 newborn babies in Michigan. The rights of this
child and other newborns in this Nation are more important than the rights of any potential father, even
one who is married to the mother.
Respectfully submitted,
LIISA R. SPEAKER
SPEAKER LAW FIRM, PLLC
819 N. Washington Ave.
Lansing, MI 48906
(517) 482-8933
lspeaker@speakerlaw.com
Counsel of Record
for Respondents Adoptive
Parents 1 & 2
Date: October 26, 2022
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