Opinion
No. 333704
02-23-2017
In re T. F. HANKINS, Minor.
UNPUBLISHED Kalamazoo Circuit Court Family Division
LC No. 2015-000258-NA Before: BORRELLO, P.J., and MARKEY and M. J. KELLY, JJ. PER CURIAM.
Respondent appeals as of right the June 8, 2016 order terminating his rights to the minor child under MCL 712A.19b(3)(a)(ii) (desertion) and (g) (failure to provide proper care and custody). We affirm.
I. BASIC FACTS
In June 2015, the Department of Health and Human Services filed a petition seeking to remove the child from the custody of his mother and his legal father because he was born drug positive. Although married to the child's legal father, mother was living with respondent when the child was born and she believed that respondent was the child's biological father. During the course of the proceedings, the child's legal father moved to revoke paternity. In October 2015, the trial court granted the motion to revoke paternity. Later, in December 2015, the trial court ordered respondent to perfect his paternity within 30 days. The court mailed the order to the address respondent had stated belonged to him. Nevertheless, at the time of the June 2016 termination hearing, respondent had still not perfected his paternity. After hearing testimony, the trial court terminated his parental rights to the child.
The child's mother was married when the child was conceived and born, so the mother's husband was the child's legal father. See In re KH, 469 Mich 621, 624-625; 677 NW2d 800 (2004) ("Under Michigan law, a presumption of legitimacy attaches to a child born or conceived during an intact marriage."). --------
II. STANDING
Respondent first argues that he has standing to challenge the trial court's termination decision. "The purpose of the standing doctrine is to assess whether a litigant's interest in the issue is sufficient to ensure sincere and vigorous advocacy." Lansing Schs Ed Ass'n v Lansing Bd of Ed, 487 Mich 349, 355; 792 NW2d 686 (2010) (citation omitted). Under the Michigan Court Rules, a putative father is entitled to participate in child protective proceedings "only '[i]f, at any time during the pendency of a proceeding, the court determines that the minor has no father as defined in MCR [3].903(A)([7]) . . . .' " In re CAW, 469 Mich 192, 198; 665 NW2d 475 (2003). Thus, where a child has a legal father, a biological father lacks standing to intervene in protective proceedings regarding that child. However, after the trial court determines that the legal father is not the child's biological father, then the putative biological father has standing to seek to establish his paternity over the child. Accordingly, after the legal father successful had his paternity revoked, respondent had standing to intervene in the proceedings.
III. DUE PROCESS
Respondent next argues that his constitutionally protected interest in the child was violated by the trial court's termination order. The Due Process Clause of the Fourteenth Amendment of the United States Constitution protects "the interest of parents in the care, custody, and control of their children . . . ." Troxel v Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000). However, " 'there has yet to be any determination in this state that a putative father of a child born out of wedlock, without a court determination of paternity, has a protected liberty interest with respect to the child he claims as his own.' " In re MKK, 286 Mich App 546, 561; 781 NW2d 132 (2009), quoting Bay Co Prosecutor v Nugent, 276 Mich App 183, 193; 740 NW2d 678 (2007). Accordingly, because respondent failed to perfect his paternity, he had no constitutionally protected interest in the child, and his argument is without merit. In re MKK, 286 Mich App at 561.
Respondent also argues that the Department failed to properly provide him with assistance in perfecting his paternity. However, a putative father is not entitled to services from the Department unless he perfects paternity. In re LE, 278 Mich App 1, 18-19; 747 NW2d 883 (2008). Thus, we find no error in the failure to provide services.
Finally, respondent argues that the trial court erred by failing to provide him notice that the legal father's paternity was revoked. The Department and the trial court were aware since the beginning of the proceedings that respondent was the probable biological father of the minor child. On December 10, 2015, respondent provided the court with notice of his address, and he testified at the termination hearing that he had been living there for five years. On December 28, 2015—after the trial court revoked the legal father's paternity—it served notice on respondent at his home address that he was ordered to perfect his paternity within 30 days. Although respondent testified that he did not receive the notice, there is no indication that it was not served in a "manner reasonably calculated to provide notice" to him as required by MCR 3.921(D)(1). Moreover, because evidence shows that respondent was aware of the revocation of the legal father's paternity and of the court proceedings regarding the child, any error with regard to notice was harmless.
Affirmed.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Kelly