The following case summary is from an unpublished opinion from the Court of Appeals issued June 2, 2009.

This matter was before the court on birth father’s appeal as of right from an order that terminated his parental rights to the minor child pursuant to MCL 710.37(1)(a) of the Adoption Code, which states:

(1) If the court has proof that the person whom it determines pursuant to section 36 to be the father of the child was timely served with a notice of intent to release or consent pursuant to section 34(1) or was served with or waived the notice of hearing required by section 36(3), the court may permanently terminate the rights of the putative father under any of the following circumstances:

(a) The putative father submits a verified affirmation of his paternity and a denial of his interest in custody of the child.

The birth mother, together with the adoptive parents, petitioned to identify the birth father and terminate his parental rights.  They submitted a SCAO form in which birth father expressly disclaimed any interest in the child. The file also contained a “Family Medical History Form” in which birth father stated that “[t]he decision to allow an adoption was relatively easy because I know that me and the mother would not have been able to give the child any kind of life and also I would never have been able to support the child fairly,” as well as paperwork from the Michigan Central Adoption Registry, in which the birth father indicated that he did not give consent to have his name or address released to the child.

Although the trial court mistakenly stated that notice of the petition had been served on birth father, it had not been, and he did not appear.  At the hearing, birth mother and a social worker from Catholic Social Services testified regarding the circumstances under which the SCAO form was executed and that birth father had read it.   Based on the file documents and this testimony, the trial court granted the petition and terminated the birth father’s parental rights.

The birth father filed a timely petition for rehearing pursuant to MCL 710.64(1) and MCR 3.806(B).  The birth father filed the petition himself and indicated that “[a]fter much soul searching I cannot live with giving my child up for adoption.” Vincent’s petition explained that, at the time he made his “foolish decision” to give up his parental rights, “I had not talked with my family about the matter” and that, “after informing my family of the situation we have come to the conclusion that we will be able to take care of” the child.

MCL 710.64(1) provides that upon the filing of a petition in court within 21 days after entry of any order under this chapter, and after due notice to all interested parties, the judge may grant a rehearing and may modify or set aside the order.  Rehearings under MCL 710.64(1) are governed by MCR 3.806, which states:

(A) Filing, Notice and Response. A party may seek rehearing under MCL 710.64(1) by timely filing a petition stating the basis for rehearing. Immediately upon filing the petition, the petitioner must give all interested parties notice of its filing in accordance with MCR 5.105. Any interested party may file a response within 7 days of the date of service of notice on the interested party.

(B) Procedure for Determining Whether to Grant a Rehearing. The court must base a decision on whether to grant a rehearing on the record, the pleading filed, or a hearing on the petition. The court may grant a rehearing only for good cause. The reasons for its decision must be in writing or stated on the record.

(C) Procedure if Rehearing Granted. If the court grants a rehearing, the court may, after notice, take new evidence on the record. It may affirm, modify, or vacate its prior decision in whole or in part. The court must state the reasons for its action in writing or on the record.

(D) Stay. Pending a ruling on the petition for rehearing, the court may stay any order, or enter another order in the best interest of the minor.

After he filed this petition, the birth father retained counsel and filed a brief in which he claimed that he was coerced into disclaiming his rights to the child by the birth mother under the threat that she would tell his Catholic family.  He claimed he had extreme reading comprehension difficulties despite being a student at the University of Michigan, where he attends under an athletic scholarship.  He claimed the SCAO form he signed was blank when he signed it.  Finally, he claimed he believed it would be an “open adoption” in which hw would be able to see the child.  The birth father argued that the above factors rendered the child custody statement invalid.  The trial court denied the petition for rehearing, concluding that the birth father had merely expressed a change of heart.

Under MCR 3.806(B), the trial court was only authorized to grant a rehearing upon good cause.  The Court of Appeals affirmed the trial court’s finding that the birth father had waived his right to notice of the proceedings by executing the Notice to Father and Custody Statement.  Thus, the fact that the birth father was not given notice of the hearing was not good cause.

The Court also held that the trial court did not abuse its discretion in concluding that Vincent had a change of heart and this was the real reason for requesting a rehearing.  A change of heart is not a sufficient grounds to warrant a rehearing. In re Koroly, 145 Mich App 79, 87; 377 NW2d 346 (1985).

Finally, the birth father made an equal protection argument because he was treated differently than the birth mother.  The Court points out that this argument was previously rejected in In re RFF, 242 Mich App 188, 210; 617 NW2d 745 (2000):

In short, mothers and fathers of children born out of wedlock are not similarly situated. There are several differences between mother and fathers of out of wedlock children, including the identity of the mother of the child born out of wedlock is rarely in question and that “only a father can by voluntary unilateral action make an illegitimate child legitimate.” Moreover, the mother of a child born out of wedlock has made the decision to give birth to the child rather than have an abortion and, as a result of that decision, has carried the child in her womb for nine months. Accordingly, the gender-based classification created by [section] 39 is substantially related to the achievement of the Adoption Code’s legitimate objective. Appellant’s equal protection claim is without merit. [Citations omitted.]

The Court of Appeals concluded with a nice summary of the case:

In sum, the record here demonstrates that [the birth father] and his family ultimately concluded that he should father the child. We have no reason to doubt that, as he claimed in his petition for rehearing, [the birth father] would be a good father. Nonetheless, while we sympathize with his situation, we cannot overlook the concerns and interests of the birth mother, the adoptive parents and, of course, the child. The statutory scheme that we apply here was established to fairly accommodate the interests of all involved interested parties, in a process that is orderly and predictable. That process cannot be undermined simply because, as the trial court correctly determined was the case here, one of the parents has a change of heart regarding a decision to terminate parental rights.

It was fairly obvious to the Court of Appeals, and it should be obvious to anyone reading this opinion, that the birth father told his Catholic parents about this child and the adoption and they freaked out.  He filed a petition and was honest in that pleading.  It was not until an attorney was retained that his story changed and he was somehow duped into signing the custody statement.  A word to any lay persons out there, hire the attorney before you file anything, sign anything or say anything in open court.  The attorney was left with a poor case because the client’s statements were all the courts needed to hear.

Categories: Law Children

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