DAWSON V EMERSON; ___Mich App___(1998); 1998 WL 820448; LW 34256
Juvenile Review MenuThis published Court of Appeals case has two important rulings regarding Section 39 of the Adoption Code, MCL 710.39; MSA 27.3178(555.39). The pertinent subsections are as follows:
(1) 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.
(2) If the putative father has established a custodial relationship with the child or has provided support or care for the mother during pregnancy or for either mother or child after the child's birth during the 90 days before notice of the hearing was served upon him, the rights of the putative father shall not be terminated except by proceedings in accordance with section 51(6) of this chapter or section 2 of chapter X11A.
The first ruling is that a notice of intent to claim paternity is not "support or care" sufficient for the purposes of the second subsection which would require termination of parental rights only by using section 51(6) of the Adoption Code, which involves step-parent adoption, or section 2 of the Juvenile Code, which involves termination for abuse and/or neglect upon taking jurisdiction of the child.
The second ruling is that under the first subsection of section 39, the trial court must only consider the putative father's circumstances when determining the best interests of the child if the trial court determines that the putative father is fit and able to raise his child. The trial court must not compare him with the proposed adopting parents in the "best interests" analysis.
The Court of Appeals refused to follow In re Ballard, 219 Mich App 329, 336-337; 556 NW2d 196 (1996) which did direct a trial court to compare the putative father with the adopting person or persons to determine the best interests of the child under section 39. The Court explained in this case that Ballard was heard before the effective date of the amendment of section 22 of the Adoption Code (the definition section) by PA 1994 222, which clearly provides for what to consider in a "best interests" determination regarding putative fathers involved in a section 39 hearings. (Compare current section 22(f) with former section 22(b) of the Adoption Code.) Due to this legislative clarification, the Court accordingly refused to follow Ballard.
The Court also expressed concern that section 39 treats a putative father unfairly where, as in this case, the mother's actions prevented the putative father from providing support or care for the mother during pregnancy or establishing a custodial relationship with the child making father eligible for the more difficult termination provisions of subsection 2 rather than subsection
1. Here, mother told father that she planned to abort the child, later told him he was not the father, and then did not inform him of the child's birth. However, since subsection 2 did not apply, the court was required to consider his fitness under subsection 1 of section 39. The trial court found he was fit and able to properly care for his child and that it was in the best interests of the child to grant custody to him. The Court of Appeals affirmed the denial of termination of father's parental rights.
{Ed Note: Many judges are pleased to see this clear directive regarding "best interests" as adoption agencies, especially where direct placement adoption is mother's plan, attempt to require the court to compare fathers with hand picked Mr. and Mrs. America, a completely unfair situation for fathers who wish to raise their own children. SLR}
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