Opinion
Docket Nos. 78-5520, 78-5521.
Decided September 20, 1979.
Canyock Thumm, P.C. (by Richard L. Schafer), for William Zieldorff.
Cummings, Thomas, McColl McNamee, for Catholic Social Services of St. Clair County.
This unusual case involves a direct appeal from a probate court order denying plaintiff's petition for a custody hearing and a stay of adoption proceedings.
John Paul Allen Kozak was born on July 14, 1978. On July 19, 1978, his mother and her husband filed a petition in the probate court to terminate their parental rights, to identify the natural father of the child, and to determine or terminate his rights.
The mother stated in a declaration that,
"I am not able to determine the identity and/or whereabouts of the father of my child. I had been drinking with girlfriends from work in a bar downriver in the Algonac area and left with a person unknown to me or to my friends, which resulted in my pregnancy."
On July 31, 1978, the court accepted the release of the child and terminated the rights of the unknown natural father. The child was placed with defendant Catholic Social Services to await adoption or suitable placement. On September 28th, the child was made a ward of the probate court and placed with unidentified prospective adoptive parents.
An affidavit of Interest and Acknowledgement of Paternity was filed by plaintiff on October 16, 1978. On November 20th, plaintiff filed a petition for hearing on custody and for an ex parte order staying adoption proceedings, alleging again that he was the natural father of the child and desired custody. He claimed that he had received no notice of the court proceedings, and that the child's mother and her husband had given false testimony to the court concerning the identity of the child's father. The probate judge denied the plaintiff's request for hearing.
Initially, the court stated that the July 31st order terminating parental rights was res judicata. The doctrine of res judicata bars the relitigation of issues in subsequent actions. It is a prerequisite that the former adjudication must have been between the same parties or their privies. Bousson v Mitchell, 84 Mich. App. 98, 101; 269 N.W.2d 317 (1978). The doctrine does not bar a request for rehearing nor can the plaintiff be regarded in any real sense as a "party" to the earlier proceeding.
The family relationship occupies a basic position in our society's hierarchy of values, and is of great importance. The fundamental nature of parental rights is a liberty protected by the due process clause of the Fourteenth Amendment. Reist v Bay Circuit Judge, 396 Mich. 326; 241 N.W.2d 55 (1976).
The due process requirements when a legal adjustment of this constitutionally protected relationship is made have been codified in the Michigan Adoption Code. The rights to notice and a hearing are among those extended to a putative father. MCL 710.1 et seq.; MSA 27.3178(541) et seq.
As a general rule, statutes requiring service of notice to parents must be strictly construed. Armstrong v Manzo, 380 U.S. 545; 85 S Ct 1187; 14 L Ed 2d 62 (1965), Young v Smith, 191 Tenn. 25; 231 S.W.2d 365 (1950).
MCL 710.37(2); MSA 27.3178(555.37)(2) allows the court to terminate the rights of the putative father where he cannot be identified if a "reasonable effort" has been made to locate and identify him. What constitutes a reasonable effort is not discussed herein. We rather focus our inquiry on the claim of fraud, balancing the constitutionally protected interests with the statutory procedural requisites.
Numerous jurisdictions have held that an adoption decree obtained through fraud, undue influence, duress or mistake may be set aside. In the Matter of the Adoption of Lori Gay W, 589 P.2d 217 (Okla, 1978), In re Kerr, 547 S.W.2d 837 (Mo App, 1977), Davis v Turner, 337 So.2d 355 (Ala App, 1976), Regenold v Baby Fold, Inc, 68 Ill.2d 419; 12 Ill Dec 151; 369 N.E.2d 858 (1977).
As stated in In re K W V, 92 Misc.2d 292; 399 N.Y.S.2d 593, 595 (1977),
"Adoption, following termination of natural parental status, is final and not subject to abrogation except for defects such as fraud or newly discovered evidence." See also In re Welfare of Alle, 304 Minn. 254; 230 N.W.2d 574 (1975), and Petition of Foley, 123 Colo. 533; 232 P.2d 186 (1951).
In Michigan, the courts have been extremely reluctant to set aside adoptions. Knox v Reid, 8 Mich. App. 199; 154 N.W.2d 3 (1967). However, the Michigan Supreme Court in In re Leach, 373 Mich. 148; 128 N.W.2d 475 (1964), found that an adoption could be overturned if a case of significant fraud could be made out.
In Beatty v Brooking, 9 Mich. App. 579, 584; 157 N.W.2d 793 (1968), this Court held that where the time for appeal has passed relief may be granted to set aside fraudulent proceedings. The fraud which justifies equitable interference with a probate order must be fraud in obtaining the order and not merely constructive, but positive, fraud.
Defendant places much emphasis on the assumption that a termination order is irrevocable following the expiration of the 20-day period provided by MCL 710.64; MSA 27.3178(555.64).
This same issue was raised in In re MacLoughlin, 82 Mich. App. 301; 266 N.W.2d 800 (1978), wherein appellant commenced an action to set aside a probate order of termination three years after its issuance. There the Court, in remanding for a hearing on the motions, stated, at 310, that,
"Public policy does favor the certainty and permanence of probate court adoption orders. However, public policy does not favor the securing of such orders by fraud on the petitioner or upon the court. Since fraud upon both the petitioner and the court is alleged by the petitioner, it would appear that the court should at least hear the basis for these claims and inquire into their validity at an appropriate hearing."
Defendant's argument alleging laches on the part of the plaintiff is equally untenable.
"The doctrine of laches is elastic, and rightly so, for it must cover the situation before the court after the facts are presented, and here, since there has been no opportunity to present proof, the statement by the court that laches applies would appear inappropriate.
"`A defendant should not be heard to interpose the defense of laches where the claim against him arises from his own fraud and where * * * the very success of his fraud places the aggrieved parties in temporary ignorance of their rights and thus causes the lapse of time occurring prior to the assertion of the claim. Chase v Boughton, 93 Mich. 285, 302; 54 N.W. 44, 50 (1892). And so, where the equitable claim arises from the fraud of the defendant the defense of laches must fall with the proof of the fraud since the defendant may not thereafter lift himself by his own bootstraps of wrongdoing.' Kita v Matuszak, 55 Mich. App. 288, 295-296; 222 N.W.2d 216 (1974)." In re MacLoughlin, supra, at 307-308.
This case is remanded for a hearing pursuant to MCL 710.39; MSA 27.3178(555.39). The probate court, in evaluating the best interests of the child, is directed for guidance to In the Matter of Baby Boy Barlow, 404 Mich. 216; 273 N.W.2d 35 (1978), and In the Matter of Robert P, 36 Mich. App. 497; 194 N.W.2d 18 (1971).
The expanded jurisdiction of the probate court should also be considered in this matter. Compare the repealed language of MCL 701.19(4); MSA 27.3178(19)(4) with MCL 700.22; MSA 27.5022.
Reversed.