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In re T

STATE OF MICHIGAN COURT OF APPEALS
Nov 27, 2018
No. 344096 (Mich. Ct. App. Nov. 27, 2018)

Opinion

No. 344096

11-27-2018

In re BABY GIRL T, Minor.


UNPUBLISHED Dickinson Circuit Court Family Division
LC No. 17-000169-AD Before: MURPHY, P.J., and O'CONNELL and BECKERING, JJ. PER CURIAM.

Respondent-father appeals as of right the trial court's order terminating his parental rights to the minor child pursuant to MCL 710.39(1) of the Adoption Code, MCL 710.21 et seq. Immediately after the child was born in October 2017, the mother placed the child with an adoption agency. The agency identified respondent as a putative father, and DNA testing established respondent's paternity in February 2018. The trial court held a hearing under Section 39 of the Adoption Code, MCL 710.39(1), to determine whether it was in the best interests of the minor child to grant respondent custody. Addressing the best-interest factors in MCL 710.22(g), the trial court concluded that five of the factors weighed against respondent, two factors favored respondent, one factor was neutral, and three factors were inapplicable. The trial court determined that granting respondent custody would not be in the best interests of the minor child, and the trial court terminated respondent's parental rights. We affirm.

I. BEST-INTEREST FACTORS

Respondent argues that the evidence did not support the trial court's factual findings with respect to five of the best-interest factors. We review the trial court's findings of fact in an adoption proceeding under the clearly erroneous standard. In re Hill, 221 Mich App 683, 691-692; 562 NW2d 254 (1997). We also review the trial court's conclusion regarding the minor child's best interests for clear error. In re BKD, 246 Mich App 212, 215; 631 NW2d 353 (2001). "A finding is clearly erroneous if, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake was made." In re Hill, 221 Mich App at 692. This Court defers to the trial court's opportunity to evaluate the credibility of witnesses. Sparling Plastic Indus, Inc v Sparling, 229 Mich App 704, 716; 583 NW2d 232 (1998).

The trial court first determined that respondent did not have a custodial relationship with the minor child and had not provided "substantial and regular support or care" under MCL 710.39(2). Accordingly, the trial court was required to apply MCL 710.39(1), which provides:

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 the best interests of the child to grant custody to the putative father, the court shall terminate his rights to the child.
MCL 710.22(g) defines the "best interests of the child" as
the sum total of the following factors to be considered, evaluated, and determined by the court to be applied to give the adoptee permanence at the earliest possible date:

(i) The love, affection, and other emotional ties existing between the adopting individual or individuals and the adoptee or, in the case of a hearing under [MCL 710.39], the putative father and the adoptee.

(ii) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under [MCL 710.39], the putative father to give the adoptee love, affection, and guidance, and to educate and create a milieu that fosters the religion, racial identity, and culture of the adoptee.

(iii) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under [MCL 710.39], the putative father, to provide the adoptee with food, clothing, education, permanence, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(iv) The length of time the adoptee has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(v) The permanence as a family unit of the proposed adoptive home, or, in the case of a hearing under [MCL 710.39], the home of the putative father.

(vi) The moral fitness of the adopting individual or individuals or, in the case of a hearing under [MCL 710.39], of the putative father.

(vii) The mental and physical health of the adopting individual or individuals or, in the case of a hearing under [MCL 710.39], of the putative father, and of the adoptee.

(viii) The home, school, and community record of the adoptee.

(ix) The reasonable preference of the adoptee, if the adoptee is 14 years of age or less and if the court considers the adoptee to be of sufficient age to express a preference.
(x) The ability and willingness of the adopting individual or individuals to adopt the adoptee's siblings.

(xi) Any other factor considered by the court to be relevant to a particular adoption proceeding, or to a putative father's request for child custody.

The trial court found that factors (i), (ii), (iii) and (vi) weighed against respondent, factors (iv) and (vii) favored respondent, factor (v) was neutral, factors (viii) and (ix) were non-factors, factor (x) did not apply, and respondent's delay in interest in seeking custody and failure to provide support during the pregnancy and after the birth weighed against a grant of custody under factor (xi). On appeal, respondent challenges some of the trial court's factual findings under factors (i), (ii), (iii), (vi), and (xi).

A. FACTOR (i)

Respondent argues that the trial court should have found that factor (i) did not apply because the absence of an emotional bond between respondent and the child was not respondent's fault. He contends that the mother and the adoption agency intentionally prevented him from having contact with the child. Respondent's argument lacks merit because it overlooks respondent's reaction to the pregnancy and his delay in seeking custody after the child's birth. Respondent and the mother were in a dating relationship at the time of the child's conception, but respondent ended the relationship while the mother was pregnant with the child because he believed that the mother was using drugs and wanted to warn her that he would not tolerate that behavior. At first, in March or April 2017, the mother told respondent that she had suffered a miscarriage. In May 2017, five months before the child's birth, the mother informed respondent that she had not miscarried. Respondent and the mother discussed options for the child, including abortion and adoption. Respondent also testified that he would not be able to make a decision about adoption until after he had seen the child. He was concerned that the child might have health defects because of the mother's drinking and alleged drug use while pregnant, and he was not prepared to commit to taking care of a baby with defects that required constant care.

The mother instituted adoption proceedings the month before the child was born, and she gave the adoption agency the names of two putative fathers, including respondent. Despite respondent's request to be informed when the mother went into labor, she did not notify respondent of the child's birth. After the mother was discharged from the hospital the day after the child was born, hospital personnel allegedly prevented respondent from seeing the child, who was still at the hospital. Although respondent knew by May 2017 that the mother had not miscarried and although he knew about the child's birth in late October 2017, he took no steps to file a notice of intent to claim paternity under MCL 710.33 of the Adoption Code before the child's birth. In addition, respondent's paternity was not established until February 2018, and he did not file a paternity action under the Paternity Act, MCL 722.711 et seq., until then, even though he knew that the mother was considering adoption. Because respondent had not been determined to be the child's biological father at the time of the first hearing in January 2018, the trial court did not clearly err by finding that it was not in the child's best interest to allow respondent temporary custody or visitation. Further, the trial court did not clearly err by finding that there was no emotional connection between respondent and the child because respondent made no effort to bond with the child. Accordingly, the trial court did not clearly err by determining that factor (i) weighed against respondent.

B. FACTOR (ii)

Respondent argues that the trial court erred by weighing factor (ii) against him because respondent's mother and two of his friends testified that they had observed respondent interact positively with children. The trial court, however, found the testimony of these witnesses not credible, and we will not disturb this determination.

Respondent also argues that the trial court's findings that respondent has led a nomadic lifestyle and that his three most recent relationships were of short duration are not relevant to factor (ii). However, the trial court found these facts relevant to respondent's ability to provide guidance because respondent blamed the habits and morals of his former partners for the end of those relationships, and he declined to accept responsibility for problems he has encountered. These findings are relevant to respondent's ability to provide love, affection, and guidance, and the trial court did not clearly err by considering them when assessing factor (ii).

Respondent argues that the trial court's finding that the record was unclear with respect to whether respondent has the disposition to educate the child contradicts the record in light of his uncontroverted testimony that he graduated from high school and became a journeyman carpenter. These facts are not indicative of respondent's capacity or disposition to educate a child, and no evidence was presented with respect to his current disposition to educate a child.

Similarly, respondent argues that the trial court's finding that there was no indication that respondent practices any religion is unsupported because respondent's mother testified that he was raised Catholic and that the family celebrated religious holidays. Respondent's mother's testimony was related to respondent's childhood, and respondent presented no evidence that he practiced a religion or attended church as an adult. Therefore, respondent's mother's testimony was not indicative of respondent's current capacity and disposition to foster the child's religion.

Lastly, respondent argues that the trial court's finding that there was no evidence that he engaged in any particular activities to promote his Irish, Native American, or African American identity or culture is biased and racist. Respondent's argument about racial bias is unsupported by the trial court's comments or the record. Respondent testified about no cultural activities related to his ethnicity or heritage, merely relating his background. The trial court properly found that there was no evidence to support a finding that respondent engaged in any particular activities to promote his racial identity or culture. The trial court did not clearly err by weighing this factor against respondent because respondent presented no evidence to support a capacity and disposition to meet the child's needs relevant to this factor.

C. FACTOR (iii)

Respondent challenges the trial court's finding that the evidence failed to show that he had the disposition to provide food, clothing, medical care, and other material needs because he had the capacity but failed to provide financial support to the mother during her pregnancy. He argues that there was no evidence that he refused to provide financial support because the mother lived with her father and did not express a need for financial support. Respondent identified no evidence that he offered financial support. On the contrary, he wanted to see if the baby had any defects before he could make a decision about adoption. Moreover, respondent's lack of support during the pregnancy demonstrated the likelihood that he would not offer support once the child was born. Therefore, the trial court did not clearly err by finding that respondent failed to provide any financial support for the mother during her pregnancy or for the child after the child's birth despite respondent's ability to do so.

Respondent also contends that the trial court's finding that respondent's capacity and disposition for permanence are questionable was based on the trial court's negative perceptions of respondent's frequent moves, short-term housing, and a wrongful eviction. Respondent contends that his testimony explained that the eviction was filed after he and the other tenants moved out of the apartment, and the eviction notices were mailed to the new address of the other tenants. Even accepting respondent's version of the circumstances of the eviction, the evidence supported the trial court's findings that respondent moved a lot, did not maintain housing independently for over a year, and did not stay in any residence for longer than a year. The trial court also found that respondent's decision to break up with the mother as a "warning" in response to his belief that she used drugs while pregnant was not indicative of his ability to establish or foster permanence for a child. The trial court did not clearly err by weighing this factor against respondent when other considerations outweighed respondent's capacity to provide food, clothing, and medical care.

D. FACTOR (vi)

Respondent argues that there was no factual support for the trial court's finding that respondent failed to take responsibility for his criminal actions. He concedes that he has been convicted a number of times for assaultive or disorderly behavior, but he contends that he admitted responsibility for this behavior. When the trial court questioned respondent about his criminal history, respondent blamed the incidents on someone else or attempted to explain away his role in each of the offenses. Therefore, respondent's argument is misplaced.

Respondent also argues that the trial court went beyond the facts and inferred that respondent was dishonest. In addition to respondent's demonstrated inability to take responsibility for his criminal behavior, the trial court's reference to dishonesty was based on defendant's purported comment to the trial court during his initial appearance that the mother was going to sign over custody to him at birth. The trial court found that respondent's failure to make this same assertion during the termination hearing showed that respondent was willing to say whatever he thought would achieve his desired result. The trial court did not clearly err by finding that this factor did not favor respondent.

E. FACTOR (xi)

Respondent argues that the evidence did not support the trial court's finding that respondent waited too long to assert his interest in claiming custody. Respondent blamed the adoption agency for failing to contact him despite knowing for weeks that he was a potential father. Respondent knew that the mother was pregnant, believed that he was the father, and knew that the mother was considering adoption, yet respondent failed to file a notice of intent to claim paternity prior to the child's birth and failed to file a paternity action immediately after the child's birth. The trial court did not clearly err by weighing this factor against respondent because respondent delayed seeking to determine his rights to the child by several months.

In sum, the trial court's determination that five of the factors weighed against a finding that it would be in the minor child's best interests to grant respondent custody, two factors weighed in favor of a finding that it would be in the child's best interests to grant respondent custody, three factors were inapplicable to this case, and one factor was neutral were either not erroneous or were unchallenged by respondent on appeal. Because five of the seven applicable factors did not favor respondent, the trial court did not err by concluding that it would not be in the best interests of the minor child to grant respondent custody. Therefore, the trial court properly terminated respondent's parental rights under MCL 710.39(1).

II. PRESUMPTION OF PLACEMENT WITH PARENT

Respondent argues that the presumption in MCL 722.25(1) of the Child Custody Act, MCL 722.21 et seq., applies in this case and that the trial court was required to presume that the best interests of the child are served by awarding custody to the parent, unless the contrary is shown by clear and convincing evidence. Respondent did not preserve this argument, so we review it for plain error affecting substantial rights. See Demski v Petlick, 309 Mich App 404, 426-427; 873 NW2d 596 (2015). MCL 722.25(1) is a provision in the Child Custody Act and applies to custody disputes. The present action is not an action under the Child Custody Act; rather, it is an action to determine whether it is in the best interests of a child in an adoption proceeding under the Adoption Code to award custody to a putative father or to terminate his parental rights. Generally, the Child Custody Act does not apply to proceedings to terminate parental rights under the Adoption Code. In re Barlow, 404 Mich 216, 235-236; 273 NW2d 35 (1978). Therefore, we reject respondent's argument based on the Child Custody Act.

We affirm.

/s/ William B. Murphy

/s/ Peter D. O'Connell

/s/ Jane M. Beckering


Summaries of

In re T

STATE OF MICHIGAN COURT OF APPEALS
Nov 27, 2018
No. 344096 (Mich. Ct. App. Nov. 27, 2018)
Case details for

In re T

Case Details

Full title:In re BABY GIRL T, Minor.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Nov 27, 2018

Citations

No. 344096 (Mich. Ct. App. Nov. 27, 2018)