In Re Montgomery

185 Mich. App. 341 (1990) 460 N.W.2d 610

In re MONTGOMERY

Docket No. 120717.

Michigan Court of Appeals.

Decided August 23, 1990.

James R. Reed, Prosecuting Attorney, and Karla J. Smith, Assistant Prosecuting Attorney, for Tuscola County Department of Social Services.

John Bishop, for respondent.

Before: NEFF, P.J., and MAHER and MURPHY, JJ.

PER CURIAM.

Respondent Luther V. Myles appeals as of right from an order entered by the Tuscola County Probate Court dismissing respondent as a party. The court found that respondent lacked standing to participate in proceedings to terminate parental rights involving Sabrina Marie Montgomery because he was not the minor child's biological father. We affirm.

We agree with the probate court's ruling that defendant lacks standing to object to the termination of parental rights involving the minor child. MCR 5.921(B)(3) provides that the "parents" of a child who is the subject of a proceeding to terminate parental rights are entitled to notice of the proceeding. See also MCL 712A.19b(2); MSA 27.3178(598.19b)(2). A "father" is a "parent." MCR 5.903(A)(12). A "father" is defined as "a man married to the mother at any time from a minor's conception to the minor's birth unless the minor is determined to be a child born out of wedlock." MCR 5.903(A)(4)(a). The definition of a "child born out of wedlock" includes a "child determined by judicial notice or otherwise to have been conceived or born during a marriage but who is not the issue of that marriage." MCR 5.903(A)(1).

At the adjudication hearing, respondent himself testified that he was not the biological father of Sabrina Marie Montgomery. Respondent stated that he had not had sexual relations with Sabrina's mother for fifteen months before the child's birth because he was incarcerated during that time. Furthermore, the child's mother had acknowledged to a social worker that respondent was not the biological father. The probate court expressly found that respondent Michael Quinn was Sabrina's biological father. Application of the definitions set forth above requires a determination that respondent is not the minor child's father within the meaning of the court rules. Therefore, the probate court properly granted petitioner's motion to strike respondent as a party for lack of standing.

We also reject respondent's claim that he was denied his right to due process of law because he was not present at the motion hearing to determine his standing in the action. See Fritts v Krugh, 354 Mich 97, 122; 92 NW2d 604 (1958). A parent is clearly entitled to be present at the dispositional hearing of a proceeding to terminate parental rights. In re Render, 145 Mich App 344; 377 NW2d 421 (1985). However, respondent was not a parent and, at least so far as it concerned respondent, the particular proceeding involved was not the dispositional hearing. In both civil and criminal actions, a party is entitled to be present in the court room at all stages during the actual trial of the matter or at proceedings of a trial-like nature. Render, supra, p 347; People v Swan, 59 Mich App 409, 414; 229 NW2d 476 (1975). However, the hearing to determine respondent's standing in the present action was not a proceeding in the nature of a trial. Respondent was represented by counsel at the hearing of the motion and was, therefore, sufficiently present for the purposes of that proceeding. See MCR 2.117(B); MCR 5.915(C). Furthermore, no prejudice to respondent resulted from his absence because the probate court's determination was based on evidence presented at the earlier adjudicative hearing. Respondent was present at that hearing, testified, and was afforded an opportunity to address the court.

Affirmed.