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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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