In re RFF, Docket No. 221581.

CourtCourt of Appeal of Michigan (US)
Citation242 Mich. App. 188,617 N.W.2d 745
Docket NumberDocket No. 221581.
PartiesIn the Matter of RFF, Minor. LAF, Appellant, v. BJF, Appellee.
Decision Date18 October 2000

617 N.W.2d 745
242 Mich.
App. 188

In the Matter of RFF, Minor.
LAF, Appellant,
BJF, Appellee

Docket No. 221581.

Court of Appeals of Michigan.

Submitted April 5, 2000, at Lansing.

Decided August 15, 2000, at 9:15 a.m.

Released for Publication October 18, 2000.

617 N.W.2d 748
Lynch, Gallagher, Lynch & Martineau, P.L.L.C. (by Jennifer M. Galloway), Mt. Pleasant, for LAF, putative father

Kemp, Klein, Umphrey & Endelman, P.C. (by Lauran F. Howard), Troy, and Currie Kendall Polasky Meisel, PLC (by Julia close), Midland, for BJF, mother.


617 N.W.2d 746

617 N.W.2d 747

Appellant, LAF, appeals as of right the trial court's order terminating his parental rights to his son, RFF, pursuant to § 39 of the Adoption Code, M.C.L. § 710.39; MSA 27.3178(555.39). We affirm.

This case is troubling. We set forth the complete factual context to emphasize the numerous issues we believe the Legislature should consider in examining the statute at issue.

The child involved in this case was conceived out of wedlock while the parties were in high school. The parties dated for approximately a year, beginning in the fall of 1997. Their dating relationship ended in September 1998. According to appellant, in November 1998 appellee, BJF, told him that she had failed to have a menstrual period. Appellee recalled this disclosure being made in January 1999. In any event, appellee admits that she lied to appellant several times when he confronted her about rumors at school that she was pregnant. Several times she adamantly denied that she was pregnant. However, on April 14, 1999, appellee telephoned appellant and told him that she was pregnant, that he was the father, and that she planned to put the baby up for adoption through an adoption agency. Appellee was planning to attend college in the fall. Appellant indicated that he had plans to enter the Marine Corps and wanted to complete boot camp that summer. Appellant appeared to be in agreement with the adoption plan at that time. Appellee told appellant that he would be receiving paperwork from the adoption agency. She telephoned him again about two weeks later to find out whether he had received the paperwork. They again discussed her plans for college and his plans for boot camp. As far as appellee knew, appellant was still in agreement with the adoption plan. They had not spoken directly since that second telephone conversation.

RFF was born May 9, 1999 and was immediately turned over to the prospective adoptive parents.1 Appellant was not informed

617 N.W.2d 749
about the birth at that time. He claimed that he did not know when the baby was due.

Appellant and his mother went to the adoption agency the day after the baby was born. They were going to the agency with plans for appellant to sign the papers necessary to consent to the adoption. However, when appellant learned that the baby had been born the previous day, he became upset and changed his decision. Appellant refused to sign the consent and he and his mother left the agency. A few days later appellant contacted the adoption agency and arranged another meeting. At the meeting, he told the agency worker that he wanted to see the baby. Appellant was able to see RFF once when he was eight days old. This confirmed appellant's desire to keep his son. Appellant informed the agency that he wanted to keep RFF. He testified that up until that point he felt that the adoption agency worker was going to assist him in getting custody of RFF. Appellant claimed that the agency worker told him that he had a good chance of getting to keep the baby and that they did not need to get a lawyer. He also testified that he was told cost was not an issue because the prospective adoptive parents were paying all the bills. However, appellant testified that when he told the worker that he wanted to keep RFF, her demeanor changed. She talked about the trauma to RFF if removed from the prospective adoptive parents and the bonding among the baby and the prospective adoptive parents. At that point, RFF was only about ten days old. Appellant then stopped dealing with the agency. Appellant admitted that he did not send any support money to appellee before or after the baby was born.

On June 25, 1999, the trial court held a hearing on the petition to identify the father and determine or terminate his rights. After determining that appellant was the father of the child,2 the trial court found that appellant had not provided "substantial and regular support or care" for the purposes of subsection 39(2) of the Adoption Code.3 The trial court acknowledged that appellee may have thwarted appellant's participation in the pregnancy and that the adoption agency could have given him better counseling, but concluded that for whatever reason, appellant had not provided support or care and did not fall under subsection 39(2). Accordingly, the trial court continued the hearing to determine whether the best interests of the child would be served by granting custody to appellant or whether appellant's parental rights should be terminated pursuant to subsection 39(1).4 In a written opinion issued approximately a month after the hearing, the trial court analyzed on the best interest factors and found that it was not in the best interest of RFF to award custody to appellant. Accordingly, the trial court entered an order terminating appellant's parental rights.

Appellant first argues the trial court erred in applying subsection 39(1) rather than subsection 39(2) of the Adoption Code. This is a question of law, which we review de novo. In re Lang, 236 Mich.App. 129. 135-136, 600 N.W.2d 646 (1999).

MCL 710.39; MSA 27.3178(555.39) provides, in pertinent part:

(1) If the putative father does not come within the provisions of subsection (2), and if the putative father appears at the hearing and requests custody of the child, the court shall inquire into his fitness and his ability to properly care for the child and shall determine whether the best interests of the child will be served by granting custody to him. If the court finds that it would not be in

617 N.W.2d 750
the best interests of the child to grant custody to the putative father, the court shall terminate his rights to the child.
(2) If the putative father has established a custodial relationship with the child or has provided substantial and regular support or care in accordance with the putative father's ability to provide such support or care for the mother during pregnancy or for either mother or child after the child's birth during the 90 days before notice of the hearing was served upon him, the rights of the putative father shall not be terminated except by proceedings in accordance with section 51(6) of this chapter [MCL 710.51(6); MSA 27.3178(555.51)(6)] or section 2 of chapter XIIA [MCL 712A.1 etseq. MSA 27.3178(598.1) et seq.]. [Emphasis added to reflect amendment by 1998 PA 94, effective September 1, 1998.]

As the Court explained in In re Barlow, 404 Mich. 216, 229, 273 N.W.2d 35 (1978):

Section 39 of the code creates two categories of putative fathers and provides different standards for termination of the rights of each. Putative fathers who have established no custodial relationship with the child, and who have provided no support for the mother or child prior to the notice of hearing, may have their parental rights terminated if the court finds, after examining the father's fitness and ability to properly care for the child, "that it would not be in the best interests of the child to grant custody" to him. The parental rights of the second group, those who have established some kind of custodial or support relationship prior to the notice of hearing, are subject to termination only by proceedings under the general jurisdictional provisions of chapter 12A of the Probate Code.

In this case, it is undisputed that appellant has not established a custodial relationship with RFF. It is also undisputed that appellant did not provide any support or care to appellee during her pregnancy or after RFF's birth. Appellant further admits that he has not provided any support or care to RFF since his birth. However, appellant argues that because of the unique circumstances of this case, he should be considered to come within the provisions of subsection 39(2). Specifically, appellant points to appellee's concealment of her pregnancy until less than a month before RFF's birth as the reason why he could not provide support or care during the pregnancy. In addition, appellant argues that the adoption agency misled him after the child was born by assuring him that the costs were being paid by the prospective adoptive parents, further thwarting his ability to have his rights considered under subsection 39(2).

This Court has previously considered the issue whether the father's rights should be determined under subsection 39(2) where a mother thwarts his participation in the pregnancy in In re Dawson, 232 Mich.App. 690, 591 N.W.2d 433 (1998). In Dawson, the mother told the father she planned to have an abortion, later told him he was not the child's father, and then did not inform him the child was born. Id. at 692, 695, 591 N.W.2d 433. This Court held that "because § 39, as written, does not account for such a situation, we must conclude in the instant case that [the father] did not satisfy subsection 39(2)." Id. at 696, 591 N.W.2d 433. Accordingly, this Court held the father's rights were properly determined under subsection 39(1). Id. at 695, 591 N.W.2d 433.

However, the Legislature amended subsection 39(2) effective September 1, 1998, and in Dawson, this Court was interpreting the previous version of the statute. At the time this Court decided Dawson, subsection 39(2) provided:

If the putative father has established a custodial relationship with the child or has provided support or care for the mother during pregnancy or for either...

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