in Re Miller Minors

STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
January 9, 2018
9:00 a.m.
In re Miller Minors.
No. 338871
Jackson Circuit Court
Family Division
LC No. 16-005854-NB;
16-005855-NB
Before: O’CONNELL, P.J., and BECKERING and STEPHENS, JJ.
O’CONNELL, P.J.
Petitioner, Adoption Associates, a child placement agency, appeals by leave granted the
trial court’s order denying petitions to terminate parental rights concerning children surrendered
under the Safe Delivery of Newborns Law, MCL 712.1 et seq. The trial court concluded that the
Safe Delivery of Newborns Law only applied to the mother of the surrendered children but not to
the legal father. We reverse.
I. BACKGROUND
In August 2016, a woman gave birth to twins. She surrendered the twins to the hospital
the day after they were born under the Safe Delivery of Newborns Law. The surrendering
mother did not provide her address or marital status, she gave no other indication that she was
married, and she declined to identify the father. Adoption Associates took custody of the
children and placed them with prospective adoptive parents. In September 2016, the adoption
agency filed petitions to terminate the parental rights of the surrendering parent and the
nonsurrendering parent.
Also in September 2016, Adoption Associates requested the children’s birth certificates
for purposes of the adoption. In October 2016, the Vital Records Office notified the agency that
it could not provide the birth certificates because of an “unresolved paternity issue.” After the
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Vital Records Office learned that the mother was married, although it is not clear how, it
produced birth certificates in December 2016 listing the mother’s husband as the father.1
This development raised the issue whether the adoption agency had a duty to notify the
man listed as the father on the birth certificates about the surrender of the children. The adoption
agency protested that it did not. In a written order, the trial court concluded that the Safe
Delivery of Newborns Law only applied to the mother in this case, but not the legal father
identified on the birth certificates.
II. ANALYSIS
This case concerns the intersection of the Safe Delivery of Newborns Law with the
presumption of legitimacy. We review questions of statutory interpretation de novo. Parks v
Parks, 304 Mich. App. 232, 237; 850 NW2d 595 (2014). The primary goal of statutory
interpretation is to effectuate the Legislature’s intent. Sinicropi v Mazurek, 273 Mich. App. 149,
156; 729 NW2d 256 (2006). We do so by applying the statute as written if it is unambiguous.
Parks, 304 Mich. App. at 237-238.
This Court reads the statute as a whole and generally reads statutes covering the same
subject matter together. Sinicropi, 273 Mich. App. at 157. However, the Safe Delivery of
Newborns Law provides that neither “a provision in another chapter of this act” nor the Child
Custody Act, MCL 722.21 et seq., apply to the Safe Delivery of Newborns Law unless
specifically stated. MCL 712.2(3).
A. SAFE DELIVERY OF NEWBORNS LAW
The Safe Delivery of Newborns Law “encourage[s] parents of unwanted newborns to
deliver them to emergency service providers instead of abandoning them[.]” People v Schaub,
254 Mich. App. 110, 115 n 1; 656 NW2d 824 (2002). The statute permits a parent to surrender a
child to an emergency service provider within 72 hours of the child’s birth. MCL 712.1(2)(k);
MCL 712.3(1). When the emergency service provider takes temporary custody of the child, the
emergency service provider must reasonably try to inform the parent that surrendering the child
begins the adoption process and that the parent has 28 days to petition for custody of the child.
MCL 712.3(1)(b) and (c). The emergency service provider must furnish the parent with written
notice about the legal custody process. MCL 712.3(1)(d). The emergency service provider
should also try to inform the parent that, before the child can be adopted, “the state is required to
make a reasonable attempt to identify the other parent, and then ask the parent to identify the
other parent.” MCL 712.3(2)(e). Finally, the emergency service provider must take the newborn
to a hospital, if the child was not born in the hospital, and the hospital must take temporary
protective custody of the child. MCL 712.5(1). The hospital then notifies a child placement
agency about the surrender, and the child placement agency has various obligations, including
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Effective January 18, 2018, a birth certificate for a newborn surrendered under the Safe
Delivery of Newborns Law must list the parents as “ ‘unknown’ ” and the newborn as “ ‘Baby
Doe.’ ” 2017 PA 142.
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making “reasonable efforts to identify, locate, and provide notice of the surrender of the newborn
to the nonsurrendering parent” within 28 days, which may require “publication in a newspaper of
general circulation . . . .” MCL 712.7(f).
Either the surrendering parent or the nonsurrendering parent may file a petition to gain
custody of the child within 28 days of surrender and published notice of surrender, respectively.
MCL 712.10(1). If neither the surrendering parent nor the nonsurrendering parent files a petition
for custody within 28 days of surrender or notice of surrender, the child placement agency must
immediately file a petition with the court to terminate the rights of the surrendering parent and
the nonsurrendering parent. MCL 712.17(2) and (3). The agency “shall present evidence that
demonstrates that the surrendering parent released the newborn and that demonstrates the efforts
made by the child placing agency to identify, locate, and provide notice to the nonsurrendering
parent.” MCL 712.17(4). If the agency meets its burden of proof by a preponderance of the
evidence, the trial “court shall enter an order terminating parental rights of the surrendering
parent and the nonsurrendering parent under this chapter.” MCL 712.17(5). The Safe Delivery
of Newborns Law does not define “parent,” surrendering parent,” or “nonsurrendering parent.”
See MCL 712.1(2) (definitions).
B. PRESUMPTION OF LEGITIMACY
When a child is born during a marriage, the child is presumed to be the issue of that
marriage. Barnes v Jeudevine, 475 Mich. 696, 703; 718 NW2d 311 (2006). The Revocation of
Paternity Act (RPA), MCL 722.1431 et seq., defines a “presumed father” as “a man who is
presumed to be the child’s father by virtue of his marriage to the child’s mother at the time of the
child’s conception or birth.” MCL 722.1433(3). The RPA governs actions to determine that a
presumed father is not a child’s father. MCL 722.1435(4).
A biological father has no standing to seek a declaration of paternity under the Paternity
Act, MCL 722.711 et seq., when the child’s mother is married to another man unless a court has
previously determined that the child was born out of wedlock. Pecoraro v Rostagno-Wallat, 291
Mich. App. 303, 311-313; 805 NW2d 226 (2011). The Paternity Act defines a child born out of
wedlock as “a child begotten and born to a woman who was not married from the conception to
the date of the birth of the child, or a child that the court has determined to be a child born or
conceived during a marriage but not the issue of that marriage.” MCL 722.711(a). Until the
biological father of a child obtains a declaration of paternity, he has no lawful rights to a child
who has a presumed father because “a child may have only one legal father.” Helton v Beaman,
304 Mich. App. 97, 106; 850 NW2d 515 (2014), aff’d 497 Mich. 1001 (2015).
C. SYNTHESIS
We conclude that the Safe Delivery of Newborns Law does apply to the husband of a
surrendering mother. The trial court’s decision and the nonsurrendering parent’s argument rely
on the fallacy that the children of a married mother could have two legal fathers. The trial court
and the nonsurrendering parent were concerned about a situation in which an order terminating
the parental rights of the mother and the nonsurrendering parent would only terminate the rights
of a biological father but not the husband of the surrendering mother. In this scenario, the
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husband of the surrendering mother could seek to assert his parental rights to the surrendered
child after the child has been adopted.
However, a child may have only one legal father, Helton, 304 Mich. App. at 106, so the
legal father is presumed to be the mother’s husband until that presumption is defeated, Barnes,
475 Mich. at 703. The Safe Delivery of Newborns Law tests this presumption through DNA
testing if either a presumed or putative father attempts to gain custody of the child, leaving only
one as the true legal father. See MCL 712.11(1).
If no one claims paternity, the Safe Delivery of Newborns Law provides for termination
of the parental rights of the nonsurrendering parent. MCL 712.17(3). The Safe Delivery of
Newborns Law refers to the “nonsurrendering parent” in the singular, MCL 712.7(f), MCL
712.10(1), and MCL 712.17, and requires a party claiming paternity to submit to DNA testing,
MCL 712.11(1), so the parental rights at issue in a surrender proceeding concern the biological
father. If a presumed father later appeared to challenge the children’s adoption, he would be
precluded from asserting paternity because he was either the biological father whose parental
rights were terminated or he would have to demonstrate that he was not the biological father
whose parental rights were terminated, effectively defeating the presumption of legitimacy.
Accordingly, there are no circumstances in which a party would later be able to challenge the
adoption by claiming paternity and asserting his parental rights.
Applying this discussion to the present case, the husband of the surrendering mother was
presumed to be the legal father of the children by virtue of the marriage. See MCL 722.1433(e).
If the husband had filed a petition for custody of the children within 28 days of published notice
of the surrender, see MCL 712.10(1), he would have been required to submit to a DNA test to
determine paternity, see MCL 712.11(1). If he were not the children’s biological father, the trial
court would have dismissed his petition for custody. See MCL 712.11(5). This dismissal would
be consistent with the rules governing the presumption of legitimacy. The DNA test would have
demonstrated that the children were not the issue of the marriage, thereby defeating the
presumption of legitimacy. See 722.711(a); Barnes, 475 Mich. at 703. On the other hand, if the
husband of the surrendering mother were the biological father, the trial court would have held a
hearing to determine the children’s custody. See MCL 712.14. If the biological father never
claimed paternity, the trial court would have terminated the parental rights of the biological
father. See MCL 712.17(3).
In this case, no one claimed paternity. If the trial court terminates the parental rights of
the nonsurrendering parent, and the husband of the surrendering mother later seeks to assert his
parental rights, he would have to demonstrate that he was not the biological father to show that
the order terminating parental rights did not apply to him. However, in doing so, he would be
defeating the presumption of paternity, and he would be without parental rights to assert to
disrupt an adoption. Accordingly, the Safe Delivery of Newborns Law does apply to the legal
father in its termination proceedings.
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We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Jane M. Beckering
/s/ Cynthia Diane Stephens
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