T., In re

• Decision Date: 07 November 1967
• Docket Number: Docket No. 3453,No. 1,1
• Citation: 154 N.W.2d 27,8 Mich.App. 122
• Parties: In the Matter of Mark T
• Court: Court of Appeal of Michigan — District of US

Page 27

154 N.W.2d 27

8 Mich.App. 122

In the Matter of Mark T.

Docket No. 3453.

Court of Appeals of Michigan, Division No. 1.

Nov. 7, 1967.

William L. Cahalan, Pros. Atty., Aloysius J. Suchy, Lawrence O. Kinkle and Gary R. La Bret, Asst. Pros. Attys., Detroit, for James H. Lincoln, respondent-appellant.

Henry J. Meurer, Detroit, for Catholic Charities and Catholic Social Services of Wayne County, respondents-appellants.

Anthony P. Marchese and Harry Klein, Detroit, for Legal Aid Bureau of Detroit and for respondent-appellant.

Gregory M. Pillon, Detroit, for petitioner-appellee.

Before FITZGERALD, P.J., and KAVANAGH and LEVIN, JJ.

LEVIN, Judge.

This appeal from an order granting a writ of habeas corpus presents the question whether the circuit court has the power to award custody of an illegitimate child to the child's father after a probate court has entered a termination order in connection with the proposed adoption of the child following the child's release for adoption by the mother to a licensed child placement agency. A termination order is an order entered pursuant to C.L.S.1961, § 710.6 (Stat.Ann.1962 Rev. § 27.3178 (546)) after a petition for adoption has been filed, investigated and has received the required consent. ¹

I.

Mark was born in Detroit on February 2, 1965. His father was Mr. S and his mother Miss M. The relationship between Mark's parents began in April, 1963. Sometime during the term of the pregnancy and until August 2, 1966 they lived together as Mr. and Mrs. S and raised Mark as Mark S, but never married. In Michigan common-law marriages cannot be contracted after January 1, 1957. C.L.S.1961, § 551.2 (Stat.Ann.1957 Rev. § 25.2). Mr. S paid all the confinement expenses and supported the family until Miss M left him taking Mark with her.

Mr. S holds a bachelor's degree in electrical engineering and has been employed by his present employer for 12 years, currently earning $18,000 a year. He served honorably in the United States army as an officer. Miss M graduated from high school and has from time to time worked in various business offices. Prior to her relationship with Mr. S, she had, on July 24, 1958, given birth to another illegitimate child who during her familial relationship with Mr. S lived with Miss M's parents.

After Miss M became pregnant Mr. S purchased an engagement ring which Miss M wore and he asked her to marry him. He testified he hoped that in time she would accept her responsibility as a mother both to their child and her first born and that they would all live together.

The circuit judge found that Mr. S had demonstrated a sincere interest and love for Mark, that he had made every effort to induce Miss M to marry him, that he is competent and fit and a proper person to care for and have custody of the child and that he can provide the love of a parent and a suitable home for the child.

Appellants stress the illicitness of the relationship between Mr. S and Miss M as bearing on his fitness. Whatever relevance the nature of their relationship may have on the matter, it does not preclude an award of custody. In re Petition of Dickholtz (1950), 341 Ill.App. 400, 94 N.E.2d 89, 91; State ex. rel. Guinn, v. Watson (1946), 210 La. 266, 26 So.2d 740, 743; Ware v. Muench (1935), 232 Mo.App. 41, 89 S.W.2d 707, 715; Commonwealth ex rel. Pressens, v. Siegler (1950), 167 Pa.Super. 598, 76 A.2d 454, 456; Guardianship of Smith (1954), 42 Cal.2d 91, 265 P.2d 888, 37 A.L.R.2d 867.

Some time prior to August 2, 1966, Miss M decided to place Mark for adoption. She confided in representatives of a licensed child placement agency but not in Mr. S. The agency learned the history of the relationship between Mr. S and Miss M and that Mark had lived with both of them since birth. The agency did not communicate with Mr. S during the four months' period of its consideration and investigation of Miss M's application. On August 2, 1966, without intimation to Mr. S of what was about to occur, Miss M released Mark to the agency for adoption. The release was signed in the manner provided by C.L.S.1961, § 710.3 (Stat.Ann.1962 Rev. § 27.3178 (543)). A voluntary release permanently terminates the mother's rights in the child. Gonzales v. Toma (1951), 330 Mich. 35, 46 N.W.2d 453.

Three days after Miss M left with Mark the proposed adoptive parents filed their petition for adoption. An agency representative testified that the child was 'placed' shortly thereafter. Mr. S testified that some weeks after Miss M left him the representative told him the child was already in the hands of the adoptive parents. ² The placement agency consented to the petition for adoption, the Wayne county juvenile officer conducted the statutorily required investigation and the probate judge signed an order of termination on November 28, 1966. Mr. S filed his petition for a writ of habeas corpus on December 13, 1966.

When Mr. S came home on August 2, 1966, he discovered both Miss M and Mark were gone. He immediately inquired of her parents and made what the trial court found to be an unceasing effort to recover the child. The record discloses that Mr. S spoke to various representatives of the juvenile court and of several social agencies, including the agency to which the child had been released, that he was directed from one agency to another, that he was persistent and diligent in his efforts to locate Mark.

Mr. S testified that Miss M never informed him of the child's location and that those with whom he spoke in an effort to locate Mark refused information as to who had physical custody or jurisdiction of the child. After Mr. S learned the name of the placement agency to which the child had been released he asked that agency to consider him as a possible adoptive parent. He estimates he made roughly 30 or 40 personal visits to various agencies and officials. He also testified to a large number of telephone conversations.

The registrar of the probate court and others advised Mr. S that he had no legal rights. The registrar testified that, although he gave this advice based on his own personal understanding of the law, he recommended that Mr. S obtain the advice of legal counsel. Mr. S testified that he made an effort to retain counsel but that several attorneys were discouraging in their advice. He eventually obtained legal counsel and commenced these proceedings. The circuit judge found that Mr. S proceeded promptly to obtain custody of the child and the record supports that finding.

On February 17, 1967 the circuit judge entered an order granting the writ of habeas corpus. On March 17, 1967, this Court granted the application for leave to appeal of defendants, Honorable James H. Lincoln, judge of the probate court for the county of Wayne, juvenile division, Catholic Charities and Catholic Social Services of Wayne County, and Family Services of Metropolitan Detroit.

II.

The defendants contend this proceeding constitutes a collateral attack on the termination order entered by the probate court. We do not agree with that analysis. The adoption statute does not purport to provide a procedure for resolving child custody disputes. In entering the termination order the probate court did not and could not have adjudicated the claim advanced in the petition for a writ of habeas corpus. The termination order was entered pursuant to chapter 10 of the probate code of 1939, which provides a procedure for adoption:

Any person who shall desire to adopt a minor child shall file a petition with the probate court of the county wherein the petitioner resides. CL 1948, § 710.1 (StatAnn1962 Rev § 27.3178 (541))

In the case of a child born out of wedlock the consent of the mother to such adoption is required, except that where, as here, the child has been released by the mother for the purpose of adoption then the consent shall be 'by the duly authorized representative of the Michigan children's institute, or a placement agency licensed by the State to whom the child has been released, if said child has been so released.' ³ ] CLS 1961, § 710.3 (Stat Ann 1962 Rev § 27.3178 (543))

The court is required to direct a full investigation. CLS 1961, § 710.5 (StatAnn1962 Rev § 27.3178 (545))

If upon examination of the investigative report the judge of probate is satisfied as to

(i) the genuineness of the consent to adoption,

(ii) the good moral character, ability to support and educate the child, and the suitableness of the home of the person or persons adopting the child for the child,

(iii) the mental and physical condition of the child as a proper subject for adoption in said home,

(iv) that the best interests of the child will be served by said adoption,

he shall forthwith enter an order (the 'termination order') terminating the rights of the child's natural parents or the persons In loco parentis and the child shall thereupon be deemed a ward of said court. CLS 1961, § 710.6 (Stat Ann 1962 Rev § 27.3178 (546))

On year after the entry of such an order (or earlier under certain circumstances) the court may enter an order of adoption. CL 1948, § 710.7 (Stat Ann 1962 Rev § 27.3178 (547))

It will be observed that under the statutory scheme the probate court is limited either to signing or refusing to sign a termination order to which consent has been given by those whose consent is statutorily required. While the probate court might properly consider the parental suitability of one opposing adoption who was In loco parentis, under the clause which directs the probate court to consider whether the proposed adoption will serve the best interests of the child, and could perhaps upon such review Refuse to enter a termination order, the probate court, being a court of limited jurisdiction, without inherent power and possessing only those powers prescribed by the Constitution and by statute, ⁴ does not have the power to direct the child placement agency to deliver custody of the child to one formerly In loco parentis ...