in Re a Stone Minor ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re A. STONE, Minor. September 27, 2016
No. 331707
Lake Circuit Court
Family Division
LC No. 14-001583-NA
Before: MURRAY, P.J., and HOEKSTRA and BECKERING, JJ.
PER CURIAM.
Respondent L. Darknell appeals as of right the trial court’s order terminating his parental
rights to the minor child pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), and (j).1 For the reasons
stated below, we vacate the trial court’s order and remand for further proceedings.
Petitioner filed a petition to remove the child at issue and the child’s half-sibling from the
custody of their mother. The petition identified respondent as the putative father of the child at
issue. A paternity test later confirmed that respondent was the child’s biological father, and
respondent subsequently submitted an affidavit of parentage that, according to the trial court,
was defective, and the defects were never corrected. The trial court exercised jurisdiction over
the child pursuant to the mother’s no contest plea in October 2014. The trial court never
adjudicated respondent as unfit, but a treatment plan was prepared for respondent and he was
offered services, as well as counsel.
In September 2015, petitioner filed a supplemental petition to terminate respondent’s
parental rights. The evidence produced at the termination hearing showed that respondent gained
only minimum benefit from the services offered. The trial court terminated respondent’s
parental rights under MCL 712A.19b(3)(c)(i), (c)(ii), and (j), but before doing so noted that
respondent had not been established as the child’s legal father, but had been treated as the father
throughout the proceedings.
On appeal, respondent argues that (1) the trial court should have recognized him as the
legal father, and (2) that as a legal father he was entitled to an adjudication before the trial court
1
The child and the child’s mother are members of the Pokagon Band of Potawatomi Indians.
The Tribe participated in the case in the trial court and has intervened in this appeal.
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could terminate his parental rights, and that because he never received an adjudication, the trial
court’s decision must be vacated.
There are two reasons why we must vacate the trial court’s order. First, the initial
petition identified respondent as the child’s putative father,2 and his status never changed during
the course of the proceedings.3 Because of that status, he was never actually a “respondent” as
the term is defined by court rule, MCR 3.977(B)(2), as he was never established to be the legal
father of the child. See MCR 3.903(A)(7) (defining “father”) and In re Gillespie, 197 Mich. App.
440, 446; 496 NW2d 309 (1992) (reaching this conclusion under the prior analogous rule). As
such, he was not a proper party to the case and had no legal rights to the child which could be
terminated. See In re LE, 278 Mich. App. 1, 23; 747 NW2d 883 (2008). Second, even if he was a
proper respondent with established legal rights to the child, the trial court never made a separate
adjudication that respondent was unfit, which is required by In re Sanders, 495 Mich. 394, 422;
852 NW2d 524 (2014). See In re Kanjia, 308 Mich. App. 660, 666-667; 866 NW2d 862 (2014)
(In re Sanders violated when putative father was never adjudicated unfit). Consequently, we
must vacate the trial courts order and remand for further proceedings.
Given our resolution of this issue, it is unnecessary to address respondent’s remaining
arguments on appeal.
Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Christopher M. Murray
/s/ Joel P. Hoekstra
/s/ Jane M. Beckering
2
A “putative father” is “a man who is alleged to be the biological father of a child who has no
father as defined in MCR 3.903(A)(7).” MCR 3.903(A)(24).
3
All parties to the appeal recognize in their briefs that respondent was never determined to be
the legal father to the child.
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