in Re Bs

Order Michigan Supreme Court
Lansing, Michigan
May 28, 2021 Bridget M. McCormack,
Chief Justice
162564 & (61) Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch,
In re B.S., Minor. SC: 162564 Justices
COA: 354103
Ottawa CC Family Division:
20-092453-AU
_______________________________________/
On order of the Court, the motion to dismiss is DENIED. The application for
leave to appeal the December 22, 2020 judgment of the Court of Appeals is considered
and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the
judgment of the Court of Appeals and we REMAND this case to the Court of Appeals for
reconsideration in light of In re MGR, 504 Mich 852 (2019), and In re LMB, 504 Mich
869 (2019).
We do not retain jurisdiction.
VIVIANO, J. (dissenting).
I would deny leave to appeal and am perplexed—as I suspect the Court of Appeals
panel on remand will be—by the Court’s order today remanding this case for
reconsideration in light of In re MGR, 504 Mich 852 (2019), and In re LMB, 504 Mich
869 (2019). The Court’s orders in both of those cases were expressly limited to the
particular facts of those cases.1 The Court’s order today implies something very
different, i.e., that general principles of law can be derived from the orders that can (and,
indeed, should) be applied to other cases.
I will let the Court of Appeals attempt to glean the meaning of those cases all on
its own.2 But even if some precedential value could be gleaned from In re MGR or In re
1
See In re MGR, 504 Mich at 854 n 1 (explaining that the majority’s decision was “based
in the very specific facts of this case alone.”); In re LMB, 504 Mich at 869 n 1 (similarly
denying that the Court’s order created a per se rule).
2
As the interplay between the majority’s order and my separate statement in In re MGR
makes clear, the majority has expressly disclaimed the only general principle that I could
2
LMB and applied to the present case, it is hard to understand how the Court of Appeals
could grant relief under the current procedural posture of the paternity action.
Specifically, there does not appear to be a mechanism for the Court of Appeals to grant
petitioner any relief as to the denial of her motion for a stay in the paternity case. In In re
MGR, the mother of the child at issue appealed the trial court’s denial of her motion for a
stay in the paternity case to this Court. This Court vacated the denial of her motion for a
stay in an opinion released at the same time as its opinion in the adoption case. See
Brown v Ross, 504 Mich 871 (2019).3 In the present case, petitioner sought leave to
appeal the denial of her motion for a stay in the paternity case as well as the order of
filiation, but the Court of Appeals denied leave to appeal for lack of merit in the grounds
presented. See Sterk v Speyer, unpublished order of the Court of Appeals, entered
August 20, 2020 (Docket No. 354518). Petitioner never sought leave to appeal that
decision in this Court. Thus, unlike in In re MGR, there is currently no pending appeal in
the paternity action through which either this Court or the Court of Appeals could vacate
or reverse any of the decisions by the trial court in that case.
Because I would take the Court at its word that In re MGR and In re LMB are
limited to their facts, I respectfully dissent and would instead deny leave to appeal.
decipher from the orders. Compare In re MGR, 504 Mich at 864 (VIVIANO, J.,
dissenting) (“I believe [the majority’s apparent requirement that the putative father file a
motion to stay the adoption proceeding] elevates form over substance since, as the
majority’s order acknowledges, good cause was at issue each time a stay of the paternity
action was sought. Since the very same issue is implicated whether one of the parties is
seeking to stay the paternity action or another party is seeking to stay the adoption
proceeding, I would not require the putative father to file a separate motion to stay the
adoption proceeding that specifically alleges good cause in order to preserve the
issue. . . . Until the Legislature provides more guidance, I believe the In re MKK[, 286
Mich App 546 (2009),] framework should be used by the trial court to determine whether
to allow a paternity action to reach its natural conclusion before a contemporaneously
filed adoption proceeding, regardless of which action was filed first, and regardless of
which party filed a motion to stay or whether, like here, the stay is entered sua sponte by
the trial court.”), and id. at 864 n 4 (“The majority, by contrast, appears to create a per se
rule that, unless a putative father files a motion to stay the adoption proceeding, a trial
court must always stay the paternity action in favor of a competing adoption
proceeding.”), with id. at 854 n 1 (order of the Court) (“[W]e respectfully disagree that
this order creates any per se rule; our decision today is based in the very specific facts of
this case alone.”).
3
There was no need for us to take such action in In re LMB because in that case the Court
of Appeals had already reversed the trial court’s denial of a stay in the paternity case.
See Sarna v Healy, unpublished order of the Court of Appeals, entered December 18,
2017 (Docket No. 341211).
3
On remand, in addition to determining what applicability those cases might have here, the
Court of Appeals will need to make a threshold determination of whether it can grant any
relief at all to petitioner given the procedural posture of the paternity action.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 28, 2021
p0525
Clerk