Clausen, In re, s. 96366

• Court: Supreme Court of Michigan
• Writing for the Court: PER CURIAM; MICHAEL F. CAVANAGH; LEVIN
• Citation: 502 N.W.2d 649,442 Mich. 648
• Parties: , 62 USLW 2041 In re Baby Girl CLAUSEN. Roberta and Jan DeBOER, Petitioners-Appellants, v. Daniel SCHMIDT, Respondent-Appellee. Jessica DeBOER (a/k/a Baby Girl Clausen), by her next friend, Peter DARROW, Plaintiff-Appellee, v. Roberta and Jan DeBOER, Defendants-Appellees, and Cara and Daniel Schmidt, Defendants-Appellants. Calendar
• Docket Number: 96531 and 96532,Nos. 1-2,Nos. 96366,96441,s. 96366,s. 1-2
• Decision Date: 08 July 1993

Page 649

502 N.W.2d 649

442 Mich. 648, 62 USLW 2041

In re Baby Girl CLAUSEN.

Roberta and Jan DeBOER, Petitioners-Appellants, v. Daniel SCHMIDT, Respondent-Appellee.

Jessica DeBOER (a/k/a Baby Girl Clausen), by her next

friend, Peter DARROW, Plaintiff-Appellee, v. Roberta and Jan DeBOER, Defendants-Appellees, and Cara and Daniel Schmidt, Defendants-Appellants.

Nos. 96366, 96441, 96531 and 96532.

Calendar Nos. 1-2.

Supreme Court of Michigan.

Argued June 3, 1993.

Decided July 2, 1993.

Dissenting opinion by Justice Levin, July 8, 1993.

Victor, Robbins & Bassett, Richard S. Victor, Scott Bassett, Birmingham, for plaintiff-appellee.

Suellyn Scarnecchia, Child Advocacy Law Clinic, University of Michigan Law School, Ann Arbor, for petitioners/appellants.

Marian L. Faupel, Faupel & Associates, Ann Arbor, for respondents/appellee.

Peter P. Darrow, Mann, Lipnik & Darrow, Co-Guardian ad Litem, Ann Arbor.

Sally Rutzky, Darnton, Rutzky & Dodge, Co-Guardian ad Litem, Ann Arbor.

Nannette M. Bowler, Grand Rapids, Lewis Pitts & Gayle Korotkin, Durham, NC, for amicus curiae Legal Action Project, et al.

Michael McGurn, McGurn and Associates, Ltd., Warrenville, IL, Margaret M.S. Noe, Adrian, for Catholic Social Services of Lenawee County.

Anne L. Argiroff, Detroit, Ann L. Routt, Legal Services of Southeastern Michigan, Ann Arbor, Kenneth C. Penokie, Legal Services of Northern Michigan, Escanaba, Michael R. Yales, Legal Services of Southeast Michigan, Monroe, John Forczak, Michigan Legal Services, Detroit, Karen Gullberg Cook, Birmingham, amicus curiae for Daniel and Cara Schmidt.

Child Advocacy Law Clinic by Suellyn Scarnecchia, Ann Arbor, for petitioner-appellants.

Faupel & Associates by Marian L. Faupel, Ann Arbor, for respondent-appellee.

Victor, Robbins & Bassett by Richard S. Victor, Executive Director, Scott Bassett, Birmingham, for amicus curiae, Grandparents Rights Organization.

Thomas B. Darnton, J.D., Darnton, Rutzky & Dodge, Ann Arbor, for amicus curiae Yale Child Study Center.

Teressa L. Streng, Kenton W. Hambrick, William B. Newman, Jr., Ann Arbor, for amicus curiae Catholic Charities of Southwestern Virginia, Inc.

The Nat. Council for Adoption, Washington, DC, by Michael P. Bentzen, Leslie Scherr, Robert L. Levin, Susan L. Biro, Schweitzer, Bentzen & Scherr, Washington, DC, Nancy Poster, Great Falls, VA, Dale S. Adams, Detroit, for The Nat. Counsel for Adoption.

Tann H. Hunt, Tallahassee, FL, amicus curiae, for appellant.

Todd W. Grant, Ann Arbor, Sponsor for appellant.

American Academy of Adoption Attys., Washington, DC, by Glenna J. Weith, Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., Champaign, IL, Barbara L. Kessler, Kessler & Geer, Ann Arbor, amicus curiae.

OPINION

PER CURIAM.

These two related cases arise out of a child custody dispute involving the competing claims of the child's natural parents (Cara and Daniel Schmidt) and the third- party custodians with whom the child now lives (Roberta and Jan DeBoer).

While we will deal at length with the various arguments marshalled in support of their claims, we sum up our analysis of the competing arguments by reference to the words of the United States Supreme Court: "No one would seriously dispute that a deeply loving and interdependent relationship with an adult and a child in his or her care may exist even in the absence of blood relationship." Smith v. Organization of Foster Families, 431 U.S. 816, 843-844, 97 S.Ct. 2094, 2109-2110, 53 L.Ed.2d 14 (1977). But there are limits to such claims. In the context of foster care, the Court has said:

"[T]here are also important distinctions between the foster family and the natural family. First, unlike the earlier cases recognizing a right to family privacy, the State here seeks to interfere, not with a relationship having its origins entirely apart from the power of the State, but rather with a foster family which has its source in state law and contractual arrangements.... [T]he liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in 'this Nation's history and tradition.' Here, however, whatever emotional ties may develop between foster parent and foster child have their origins in an arrangement in which the State has been a partner from the outset.

* * * * * *

"A second consideration related to this is that ordinarily procedural protection may be afforded to a liberty interest of one person without derogating from the substantive liberty of another.... It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they have freely entered, even in the absence of biological connection or state-law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another's constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right--an interest the foster parent has recognized by contract from the outset." 431 U.S. pp. 845-846, 97 S.Ct. pp. 2110-2111.

Likewise, the DeBoers acquired temporary custody of this child, with whom they had no prior relationship, through the power of the state and must be taken to have known that their right to continue custody was contingent on the completion of the Iowa adoption. Within nine days of assuming physical custody and less than one month after the child's birth, the DeBoers learned of Cara Schmidt's claim that the waiver of rights procured by the attorney acting on behalf of the DeBoers was unlawful because she had not been afforded the seventy-two hour waiting period required by Iowa law. ¹ Within two months of the child's birth, the DeBoers learned of Daniel Schmidt's claim of paternity when on March 27, 1991, he filed a petition to intervene in the DeBoers' adoption proceeding.

The State of Iowa has not arbitrarily interfered "in a family-like association freely entered." Rather, the Iowa courts have proceeded with the adoption action initiated by the DeBoers, and at the conclusion of that litigation ruled that there would be no adoption, preventing the creation of the family unit that was the objective of the adoption petition.

In Docket No. 96366, ² we affirm the judgment of the Court of Appeals for two independent reasons. First, the Uniform Child Custody Jurisdiction Act ³ (UCCJA) and the federal Parental Kidnapping Prevention Act ⁴ (PKPA) deprive the Michigan courts of jurisdiction over this custody dispute and require the enforcement of the orders of the Iowa courts directing that the Schmidts have custody of the child. Second, the DeBoers lack standing to bring this custody action under our decision in Bowie v. Arder, 441 Mich. 23, 490 N.W.2d 568 (1992).

In Docket Nos. 96441, 96531, and 96532 ⁵ we vacate the orders of the Washtenaw Circuit Court and direct that the action be dismissed for failure to state a claim upon which relief may be granted. While a child has a constitutionally protected interest in family life, that interest is not independent of its parents' in the absence of a showing that the parents are unfit. In this case, in the Iowa litigation the DeBoers were unable to prove that the child's father would not be a fit parent, and no claim has been made that her mother is unfit.

I

The facts are set out at length in the opinion of the Court of Appeals. Briefly, on February 8, 1991, Cara Clausen gave birth to a baby girl in Iowa. Proceedings in Iowa have established that defendant Daniel Schmidt is the child's father. On February 10, 1991, Clausen signed a release of custody form, relinquishing her parental rights to the child. Clausen, who was unmarried at the time of the birth, ⁶ had named Scott Seefeldt as the father. On February 14, 1991, he executed a release of custody form.

On February 25, 1991, petitioners Roberta and Jan DeBoer, who are Michigan residents, filed a petition for adoption of the child in juvenile court in Iowa. A hearing was held the same day, at which the parental rights of Cara Clausen and Seefeldt were terminated, and petitioners were granted custody of the child during the pendency of the proceeding. The DeBoers returned to Michigan with the child, and she has lived with them in Michigan continuously since then.

However, the prospective adoption never took place. On March 6, 1991, nine days after the filing of the adoption petition, Cara Clausen filed a motion in the Iowa Juvenile Court to revoke her release of custody. In an affidavit accompanying the request, Clausen stated that she had lied when she named Seefeldt as the father of the child, and that the child's father actually was Daniel Schmidt. Schmidt filed an affidavit of paternity on March 12, 1991, and on March 27, 1991, he filed a petition in the Iowa district court, seeking to intervene in the adoption proceeding initiated by the DeBoers.

On November 4, 1991, the district court in Iowa conducted a bench trial on the issues of paternity, termination of parental rights, and adoption. On December 27, 1991, the district court found that Schmidt established by a preponderance of the evidence that he was the biological father of the child; that the DeBoers failed to establish by clear and convincing evidence that Schmidt had abandoned the child or that his parental rights should be terminated; and that a best interests of the child analysis did not become appropriate unless abandonment was established. On the basis of these findings, the court concluded that the termination proceeding was void with respect to Schmidt, and that the DeBoers' petition to adopt the child must be denied. Those decisions have been affirmed by the Iowa appellate courts. ⁷

On remand from the Iowa Supreme Court, the district court ordered the DeBoers to appear on December 3, 1992, with the child. ⁸ The DeBoers did not appear...