Juncaj v. Helmlinger, (Unpublished, #291839), 1/5/10
Domestic Relations ReviewThis case involves the parties’ competing claims regarding the minor JDH who was born in December, 1995 to Sheri VanDewinkle (n/k/a Helmlinger). In February, 2008 Victor Juncaj filed an action seeking an order of filiation. The parties stipulated to a DNA test which showed Juncaj to be JDH’s father. In May, 2008, Helminger and her husband, Kyle Helmlinger, filed a petition to terminate Juncaj’s parental rights and to allow a step-parent adoption to occur. The cases were consolidated in the trial court. Both the petition seeking to terminate Juncaj’s parental rights along with the petition for a step-parent adoption were denied. Juncaj was granted parenting time. The plaintiffs Helmlingers appealed.
The first issue on appeal involved a contention that the trial court unlawfully ignored MCL 710.25 when it neglected to determine the merits of the Helmlinger’s termination and adoption petitions before hearing and deciding the custody and parenting time issues. In other words, given that MCL 710.25 gives highest priority to proceedings under the Adoption Code, the Helmlingers contend that the trial court negated their claims in the termination case by proceeding first with the custody and parenting time hearing. In an earlier interlocutory appeal the Court of Appeals declined to disturb the sequence of hearings and stay the custody matter until the termination hearing was concluded.
In the instant appeal, the Court of Appeals indicated that the legislature expressly allowed for adjournments of termination hearings for “good cause”. Thus, a putative father may make a showing of “good cause” to stay an adoption proceeding in favor of a paternity action. The trial court here determined that the final determination in both actions involved the child’s best interests and that the custody case took precedence over the termination petition.
However, the Court of Appeals observed that the trial court erred in proceeding with the custody case first simply because Juncaj filed first. Given the “highest priority” language of MCL 710.25, the Court of Appeals further opined that the trial court should have first considered Helmlingers’ grounds for terminating Juncaj’s parental rights before proceeding to consider his request for parenting time. Nevertheless, the Appeals Court determined that the trial court’s reasoning that the FOC hearing would supply evidence directly relevant to a central issue in the termination proceeding constituted a legally sufficient reason for delaying the termination hearing. So, the trial court did not abuse its discretion in adjourning the termination hearing pending the referee’s gathering of evidence relevant to that proceeding.
Furthermore, the Helmlingers failed to show any prejudice in proceeding first with the custody hearing. They asserted that a custody order permitting the father to exercise parenting time after the termination petition was filed would defeat their claim that he had failed to regularly and substantially visit the child. However, that argument ignores the fact that the visitation in question would post date the Helmlingers’ termination petition and MCL 710.51(6)(b) only considers visitations 2 years before the termination petition was filed.
That being said, the Court of Appeals directed that in future cases involving the interface between a custody proceeding and a termination petition, the termination petition should proceed first. At the termination hearing, evidence relevant to the child’s best interests could be presented and preserved for use in the subsequent custody proceeding.
However, in this case the Court of Appeals found there was no abuse of discretion in adjourning the termination hearing pending the referee’s gathering of evidence relevant to that proceeding and referring both cases to the referee for fact finding on an expedited basis. Thus, any error was harmless as the Helmlingers could not show any substantial prejudice or that the trial court’s decision in both the termination and custody cases would have been different had the termination hearing proceeded first.
The Helmlingers also argued that the trial court erred in considering the termination petition under MCL 710.51(6). They contend that when their termination petition was filed, Juncaj was a putative father and so termination should have been considered under MCL 710.39. However, the Court of Appeals opined that the Helmlingers had waived appellate review of this issue given that they had agreed at the trial court level that the court could proceed under either MCL 710.39 or MCL 710.51(6) to consider the termination of Juncaj’s parental rights. While a court can terminate a father’s rights under MCL 710.37 (uninterested putative father), MCL 710.39 (interested putative father) or MCL 710.51(6) (stepparent adoption), here the Helmlingers’ petition only invoked the step-parent adoption provision. Further, when the court first considered the Helmlingers’ petition to terminate, Juncaj no longer was a putative father rendering MCL 710.39 inapplicable.
Next the Helmlingers argue that the court erred in denying the termination on the basis of the Juncaj’s inability to contact his child based on the mother’s resistance to visitation or communication by him. See In re ALZ, 247 Mich App 264 (2001). Pursuant to MCL 710.51(6), the Helmlingers were required to prove by clear and convincing evidence that Juncaj had failed to “regularly and substantially failed or neglected” to visit JDH for 2 years prior to the filing of their termination petition. The trial court found that they failed to establish such fact, in part, because of the mother’s conduct and resistance to the father’s efforts to determine if he fathered JDH and to visit JDH during the relevant 2 year time period. While Helmlingers wished the court to consider the father’s dilatory actions which predated that 2 year period, the Court of Appeals denied that request. The Court said that the legislature specifically focused on the 2 years before the termination petition was filed. If they had wanted to extend that period, they would have expressly done so.
Helmlingers also argue that their procedural due process rights were denied by delaying the adoption petition until the custody case proceeded. However, that claim was utterly meritless according to the Court of Appeals given that the Helmlingers fully participated in all the lower court proceedings and did not demonstrate any partiality by the trial court toward Juncaj.
While the trial court erred in affording Juncaj interim parenting time before considering whether to terminate his parental rights, Helmlinger fails to identify any appropriate relief for that error. The interim order is now moot, it cannot be shown to have had an impact on the ultimate determination in the termination case and there is no showing that the court erroneously granted Juncaj a “parental preference”—because he was the child’s parent.
Finally, the Helmlingers argued that the parenting time afforded to Juncaj was against the great weight of the evidence. However, again the Court of Appeals dismissed that argument finding that there was ample evidence that the limited parenting time afforded the father would serve JDH’s best interests and was in line with the court’s “best interests” findings under the Child Custody Act.
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Last updated 2-1-10
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