In Re CAW

673 N.W.2d 470 (2003) 259 Mich. App. 181

In the Matter of C.A.W., Minor.
Family Independence Agency, Petitioner-Appellee,
v.
Larry Heier, Appellant, and
Deborah Ann Weber and Robert Rivard, Respondents.

Docket No. 235731.

Court of Appeals of Michigan.

Submitted August 19, 2003, at Lansing. Decided October 23, 2003, at 9:05 a.m. Released for Publication January 8, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Chantal B. Fennessey, Assistant Attorney General, for the Family Independence Agency.

Dinning & Greve, P.L.C. (by Ronald H. Greve), Roseville, for Larry Heier.

Before: FITZGERALD, P.J., and BANDSTRA and GAGE, JJ.

ON REMAND

FITZGERALD, P.J.

This case is before us on remand from the Supreme Court.^[1] In our earlier opinion,^[2] a divided panel^[3] of this Court held that Heier, a putative father, had standing to intervene in a child protective proceeding under the juvenile code.^[4] The majority held that the termination of Robert Rivard's parental rights at the conclusion of the child protective proceeding was effectively a finding "``by judicial notice or otherwise'" ^[5] that CAW was not the issue of the marriage of Deborah A. Weber and Rivard and that Rivard no longer had any legal rights as father. Thus, the majority concluded that the door was opened for the putative father to have standing to establish his paternity.

The Supreme Court disagreed and reversed the decision of this Court, concluding that the "termination of Rivard's parental rights was not a determination that CAW was not the issue of the marriage and, thus, that Rivard was no longer his father; rather, it was only a determination that Rivard's legal rights were terminated. Thus, the requirements of the court rule^[6] to give Heier, a putative father, standing were not met."^[7] The Supreme Court remanded this case to this Court with instructions to address Heier's argument that the juvenile code, by precluding standing to intervene in a child protective proceeding, deprives him of a fundamental right without the benefit of procedural or substantive due process. We disagree.

In Girard v. Wagenmaker,^[8] the Court held that a putative father lacks standing to challenge the parentage of a child born while the mother was legally married to another man if a prior determination on paternity regarding the mother's husband has not been made. In Hauser v. Reilly,^[9] this Court noted that, notwithstanding the holding in Girard, the state constitution still affords a putative father a due process interest in proceedings related to paternity.^[10] Although the Court rejected the argument that a biological link alone established a due process liberty interest for a putative father, the Court adopted the test advocated by Justice Brennan in Michael H v. Gerald D:^[11]

We agree with the reasoning of Justice Brennan in Michael H. Following that analysis, if plaintiff in this case had an established relationship with his child, we would hold that he had a protected liberty interest in that relationship that entitled him to due process of law. However, because plaintiff has no such relationship, we hold that the Paternity Act did not deny him his right to due process. [Hauser, supra at 188, 536 N.W.2d 865.]

In McHone v. Sosnowski,^[12] this Court refused to apply Hauser even though there was evidence that the plaintiff had established some degree of a relationship with the child. The Court concluded that Hauser's discussion of a putative father's liberty interest was dictum, and it was best to leave such a determination for the Supreme Court of Michigan, because "[t]he barrier provided by the Supreme Court in Girard, supra, cannot be hurdled in this Court."^[13] Thus, McHone precludes a finding that Heier has a protected liberty interest in his relationship with CAW.^[14]

Even if Hauser were followed and the test discussed by Justice Brennan applied, Heier cannot show that he was denied his right to due process. Justice Brennan defined a substantial parent-child relationship as, "``[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child...."'"^[15] There is no record support that Heier had a relationship with CAW that could be defined as substantial or to the point that Heier was actively fulfilling his role as a parent. There are indications that Heier visited and played with CAW on a regular basis when CAW lived with Weber and that he provided some support. However, although Heier claimed to be aware that CAW was in foster care and had been removed from Weber's custody, he did nothing more than possibly visit with CAW at the foster parent's home a few times. He did not even immediately come forward when Weber's parental rights were terminated. The record does not support a finding that there was a substantial parent-child relationship in this case.^[16]

Affirmed.

BANDSTRA, J., concurred.

GAGE, J., (concurring).

I concur in the result only. I write separately to express my deep concern over the outcome of this case. The record here demonstrates that during the lower court proceedings Robert Rivard's paternity of CAW was called into question by the natural mother. In the pleadings filed in this case, it was suggested that Mr. Rivard was not CAW's natural father and that Larry Heier was. While I acknowledge that Mr. Heier's late attempt at intervention is troubling, I find it more disturbing that a man who claims to be a child's father, and has established some relationship, albeit not substantial, with the child and provided some support for the child, can be denied the opportunity to intervene in a child protective proceeding to have his paternity established and his fitness tested. A majority of our Supreme Court has decided that the Legislature did not intend to allow putative fathers an opportunity to intervene in child protective proceedings. I do not believe the policy considerations that apparently gave comfort to the majority of our Supreme Court supersede the presumption that a child is better off in the care of a fit natural parent rather than with strangers in foster care or through adoption. See Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Perhaps, for the sake of clarity, the court rules should be amended to specifically allow a putative father to intervene in a child protective proceeding if he is able to raise a legitimate question about paternity.

NOTES

[1] In re CAW, 469 Mich. 192, 665 N.W.2d 475 (2003).

[2] In re CAW, 253 Mich.App. 629, 659 N.W.2d 657 (2002).

[3] Fitzgerald, P.J., dissented.

[4] M.C.L. § 712A.1 et seq.

[5] 253 Mich.App. at 637, 659 N.W.2d 657, quoting former MCR 5.903(A)(1).

[6] Former MCR 5.903(A)(4).

[7] 469 Mich. at 199, 665 N.W.2d 475.

[8] Girard v. Wagenmaker, 437 Mich. 231, 470 N.W.2d 372 (1991).

[9] Hauser v. Reilly, 212 Mich.App. 184, 536 N.W.2d 865 (1995).

[10] Id. at 186-188, 536 N.W.2d 865.

[11] Michael H v. Gerald D, 491 U.S. 110, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989).

[12] McHone v. Sosnowski, 239 Mich.App. 674, 609 N.W.2d 844 (2000).

[13] Id. at 679-680, 609 N.W.2d 844.

[14] Girard; Hauser, and McHone each involve proceedings under the Paternity Act. Nonetheless, each case involves a situation concerning a putative father's liberty interest in the parenting of his child, and the analysis would apply equally in a child protective proceeding under the juvenile code.

[15] Michael H, supra, at 143, 109 S. Ct. 2333, quoting Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983), quoting Caban v. Mohammed, 441 U.S. 380, 392, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979).

[16] Because Heier lacked standing to intervene, we need not address his argument that he was not provided with proper notice of the proceedings.