In Re MKK

781 N.W.2d 132, 286 Mich. App. 546
CourtMichigan Court of Appeals
DecidedDecember 22, 2009
DocketDocket 292065
StatusPublished
Cited by134 cases

This text of 781 N.W.2d 132 (In Re MKK) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re MKK, 781 N.W.2d 132, 286 Mich. App. 546 (Mich. Ct. App. 2009).

Opinion

PER CURIAM.

This case involves the interplay of the Adoption Code, MCL 710.21 et seq., and the Paternity Act, MCL 722.711 et seq. Respondent, the minor child’s putative father, filed a separate paternity action, 1 seeking entry of an order of filiation. This adoption case commenced when petitioners, the minor child’s maternal aunt and uncle, filed a petition to adopt the child. The trial court denied respondent’s motion to stay the adoption proceedings in an August 6, 2008, order. The court then stayed the paternity action pending the conclusion of the adoption proceedings. Petitioners appeal as of right the trial court’s March 18, 2009, order denying their adoption petition. Respondent cross-appeals, challenging the trial court’s: September 2, 2008, order holding that he failed to provide substantial and regular support under MCL 710.39(2); failure to decide his September 10, 2008, motion to dismiss; October 14, 2008, order denying his motion to amend the home study; March 18, 2009, order denying him custody of the child; and May 6, 2009, order denying his motion to disqualify the trial court judge. We vacate the trial court’s August 6, 2008, and March 18, 2009, orders and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

On December 19, 2007, appellee Casey Jo Keilman informed respondent that she was pregnant with the *549 child and intended to give the child up for adoption. Respondent objected to the planned adoption and on February 7, 2008, filed a notice of intent to claim paternity. On the day the child was born, March 22, 2008, Keilman signed the necessary paperwork to place him up for adoption, naming petitioners as the intended adoptive parents and immediate custodians. Immediately upon discharge from the hospital, the child was placed with petitioners.

Respondent filed his paternity action on April 16, 2008. That case was initially assigned to Judge Darlene A. O’Brien. On May 7, 2008, petitioners filed their petition to adopt the child. The adoption case was assigned to Judge Donald E. Shelton. Accompanying the adoption petition was Keilman’s petition for a hearing to identify the father and determine or terminate his parental rights pursuant to MCL 710.36(1). 2

*550 In a June 17, 2008, order, Judge O’Brien denied Keilman’s motion to stay the paternity action and ordered DNA testing to determine paternity. On July 25, 2008, respondent filed a motion to stay the adoption proceedings pending the outcome of his paternity action. He argued that the paternity action should be decided first because its outcome would render this adoption case moot. Petitioners opposed the motion, arguing that the Paternity Act did not prevent respondent’s rights as a putative father from being determined and terminated under the Adoption Code, under which the rights of the adoptee are paramount. Keilman concurred and also asserted that respondent only filed the paternity action in an attempt to thwart her adoption plan.

At the July 30, 2008, hearing on respondent’s motion to stay, the results of the DNA testing were presented. The testing revealed a 99.99 percent probability that respondent was the child’s biological father. Respondent argued that he was probably only one hearing away from being declared the child’s legal father and the Adoption Code should not supersede his effort to do so under the Paternity Act. Petitioners and Keilman responded that the results of the DNA testing were irrelevant to the adoption proceedings and those proceedings had priority over respondent’s paternity case pursuant to MCL 710.21a, which lists the general purposes of the Adoption Code, and MCL 710.25. 3 Judge Shelton denied respondent’s motion, stating that he did *551 not “believe that these actions are necessarily in conflict. I don’t think one can delay the other.” He then bifurcated the adoption proceedings.

On August 6, 2008, Judge Shelton conducted a hearing, at which the parties presented evidence regarding respondent’s efforts to provide support and care during Keilman’s pregnancy and the 90-day period before notice of the hearing was mailed to him. It was undisputed that respondent was the child’s father and he and Keilman were never married. Keilman did not place respondent’s name on the birth certificate, told the hospital staff not to release any information regarding her admission to give birth because she did not want respondent present, which he was not, and declined to sign an affidavit of parentage. Keilman testified that she did not talk to respondent between the time she informed him of the pregnancy and the hearing date. She acknowledged, however, that she met him at a park-n-ride lot in April 2008, but that he did not request to see the child. She showed him a photograph. Respondent testified that he asked Keilman by email who her doctor was, wanted to be present for the birth, and telephoned two hospitals in an attempt to find Keilman. He also wanted to be named on the birth certificate and was willing to sign an affidavit of parentage. Respondent testified that he repeatedly asked to see the child since his birth, but Keilman always replied that the child had already been given up for adoption. Beginning in January 2008, respondent attended parenting classes and worked with a social services employee to prepare *552 himself for becoming a parent. Respondent testified that he sent money to Keilman on three occasions in February 2008 by certified mail. He also offered to help Keilman with her medical bills in one of the certified letters. After the letters were returned to him, he did not send any more letters. Keilman testified that she did not receive any certified mail at her home and was unaware that respondent had tried to send money in February 2008. She did not recall respondent’s asking about her doctor or medical bills. In the month preceding the hearing, respondent sent money for the child to petitioners’ counsel on four occasions. Respondent also opened a bank account for the child.

Judge Shelton found that respondent was the child’s putative father as established by the DNA testing. He stated that whether respondent provided substantial and regular support during the 90-day period before notice of the hearing was served was irrelevant in this case; rather, the real question was whether Keilman impeded respondent’s efforts to provide support during her pregnancy. Judge Shelton found Keilman’s testimony credible and stated:

I will say, frankly, this case seems to have been engineered during this period of time which is disturbing to me but to the extent that the engineering involves sending certified mail with — and then claiming that the impeding was that a person did not go and get the certified mail, I do not find that that is impeding as provided by — by the case law.

Accordingly, Judge Shelton concluded that respondent did not fall under MCL 710.39(2) and, therefore, that the case would proceed to a best interests hearing pursuant to MCL 710.39(1).

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Bluebook (online)
781 N.W.2d 132, 286 Mich. App. 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mkk-michctapp-2009.