S T A T E O F M I C H I G A N-C O U R T O F A P P E A L S

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

In the Matter of SG. TG DG and QR, Minors.

FAMILY INDEPENDENCE AGENCY,

Petitioner-Appellee,

UNPUBLISHED

March 6, 2001

v No. 227520

Ingham Circuit Court

SUSAN GRAHAM, Family Division

LC No. 00-004693-NA

Respondent-Appellant,

and

CHARLES RIGG,

Respondent-Appellant,

and

JACK GRAHAM,

Appellant.

Before: Markey, P.J., and McDonald and K. F. Kelly, JJ.

PER CURIAM.

Respondents Susan Graham and Charles Rigg appeal as of right from the family court’s

order terminating their parental rights pursuant to MCL 712A19b(3)(c)(i), (g) and (j); MSA

27.3178(598.19b)(3)(c)(i), (g) and (j). We affirm as to Susan Graham but vacate as to Charles

Rigg for the reason that Mr. Rigg lacks standing to assert any legal rights as to any of the minor

children at issue herein.

I. Basic Facts and Procedural History

This case has a lengthy factual history spanning over a two and a half year period. Susan

Graham (hereinafter referred to as “Respondent Graham”) has four minor children. All four

-2-

children have different fathers. Respondent Graham claims and Charles Rigg (hereinafter

“Respondent Rigg”) affirms that he is QR’s biological father1. On May 2, 1997, a Petition

alleging abuse and neglect was filed against Respondent Graham. The initial petition also named

Respondent Graham’s former husband Jack Graham along with Charles Rigg; QR’s “putative

father.”2 On May 30, 1997, a juvenile court officer filed a motion to review custody as regards

the four minor children. Finding that the children’s well being was substantially at risk, the

referee placed the children with the Michigan Family Independence Agency (hereinafter “FIA”)

for out-of-home placement. On June 10, 1997, the court held a hearing and affirmed the

referee’s decision. After Respondent Graham entered a plea, the court took jurisdiction over the

children on July 15, 1997.

The record reflects a sustained effort on the part of the FIA to reunify this family over a

two and half year period. By April 13, 1999, all of the children were placed back in

Respondents’ home. However, in the fall of the same year, the children were once again

removed because of Respondents’ chronic failure to consistently comply with all applicable court

orders.

After conducting a three day hearing, the family court found that the conditions

culminating in adjudication continued to exist. Accordingly, the family court terminated

Respondent Graham’s parental rights to all four children. The family court recognized that

Respondent Rigg did nothing to establish his status as QR’s legal custodian, but notwithstanding,

noted that he participated in the services provided by FIA and also appeared at the termination

hearing. Accordingly, the family court held that it was in the children’s best interest to terminate

Respondent Riggs’ parental rights. The family court further held that it was in QR’s best interest

to terminate Respondent Rigg’s parental rights as QR’s “putitive father.”

II. Standard of Review

Decisions to terminate parental rights are reviewed for clear error. In re Sours, 459 Mich

624; 593 NW2d 520 (1999).

A. Respondent Graham

After carefully reviewing the record, this court is satisfied that the family court did not

clearly err in finding that the provisions delineated in MCL 712A.19b(3)(c)(i), (g) and (j) were

established by clear and convincing evidence, to wit, 182 or more days have elapsed since the

initial dispositional order, and after two and a half years of FIA’s sustained efforts to reunify this

family, respondent is not any closer to that goal than she was when the FIA filed the initial

dispositional order. At one point, the children were placed back with respondent only to be

1 Although Respondent Graham and Respondent Rigg both claim that Respondent Rigg is QR’s

biological father, Respondents did not proffer any evidence at the termination hearing

definitively establishing the biological connection.

2 The initial petition also named “Scott” as a putative father. The fourth father was not

identified. Respondent Rigg is the only “putative father” that appeared at both the initial hearing

in May, 1997 and the termination hearing in April, 2000.

-3-

removed from her care a second time. Respondent’s failure to consistently comply with all

applicable court orders for the preceding two and a half years strongly suggests that respondent

will not be able to do so within a reasonable time considering the children’s age. Moreover, the

record indicates that if the children are returned to respondent’s home again, there is a reasonable

likelihood that the children would be harmed. Accordingly, with regard to respondent Graham,

this court affirms the family court’s findings and disposition in all respects.

B. Respondent Rigg

The parties did not raise an issue concerning Respondent Rigg’s standing to appeal the

family court’s determination due to Respondent Rigg’s failure to obtain documentary evidence

establishing his paternity. Although all parties seem to accept that Respondent Rigg is QR’s

“putative father,” the fact remains that the lower court record is devoid of evidence definitively

establishing same. Because this is an important issue, we deem it necessary to raise, sua sponte,

whether Respondent Rigg has standing to appeal the family court’s decision. We hold that he

does not. We therefore vacate that part of the family court’s decision insofar as it pertains to

Respondent Rigg for the reasons discussed herein.

1. Respondent Rigg’s Standing

The Juvenile Code defines the term “father” at MCR 5.903(A)(4)(a) 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.” The term “child born out of wedlock” is a term

of art defined in the current version of the Paternity Act as:

“[a] child begotten and born to a woman who was not married from the

conception to the date of 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).

In the case at bar, the record is unequivocal. Although Respondent Rigg and Respondent

Graham both acknowledge that Respondent Rigg is QR’s biological father, it is undisputed that

at the time of QR’s birth, Respondent Graham was married to Jack Graham. Respondent Rigg

testified that he was not permitted to sign an Acknowledgment of Paternity because Respondent

Graham was still married. Respondent Rigg further testified that even after a court held a

hearing and annulled the marriage between Respondent Graham and Jack Graham, Respondent

Rigg failed to follow the necessary steps to definitively establish paternity. Absent an

adjudication by a court of competent jurisdiction finding that QR was a “[c]hild . . .born or

conceived during a marriage but not the issue of that marriage,” for purposes of the Paternity Act,

Respondent Rigg, as the purported biological father, lacked the requisite standing to establish his

paternity3.

3 See McHone v Sosnowski, 239 Mich App 674; 609 NW2d 844 (2000)(holding that the

biological father did not have standing to pursue an Order of Filiation when there was no prior

judicial determination that the child was not the issue of the marriage).

-4-

The family court recognized that Respondent Rigg was not QR’s legal father by virtue of

Respondent Graham’s marriage to another man at the time of QR’s birth. Notwithstanding, the

family court referred to Respondent Rigg as QR’s “putative father.” In that capacity, the family

court proceeded to determine whether it was in QR’s best interest to terminate Respondent

Rigg’s rights as the “putative father.”4 Since Respondent Graham’s marriage to Jack Graham

provided QR with a legal “father” as defined in MCR 5.903(A)(4), Respondent Rigg cannot be

QR’s “putative father.” A “putative father” cannot coexist with a legal father irrespective of any

biological connection between the “putative father” and the minor child. McHone v Sosnowski,

239 Mich App 674; 609 NW2d 844 (2000).

For purposes of the termination proceedings therefore, Jack Graham is presumed to be

QR’s legal father. Accordingly, as the legal father, only Jack Graham would have the requisite

standing to appeal the family court’s findings. Respondent Rigg does not. Since Respondent

Rigg lacks standing to establish paternity, Respondent Rigg lacks standing to appeal the family

court’s determination that it is in QR’s best interest to terminate his parental rights. However,

even if Respondent Rigg established paternity and had standing to appeal the family court’s

decision as to QR, there was ample evidence placed on the record to support the family court’s

decision that it was not in the children’s best interest to continue with reunification efforts and

terminate Respondents’ parental rights. Despite two and a half years of substantial agency

service, the record reveals that Respondents failed to make any significant changes in virtually all

areas of concern.

II. Conclusion

Decision affirmed as to Respondent Graham but vacated as to Respondent Rigg for the

reasons discussed herein.

/s/ Jane E. Markey

/s/ Gary R.. McDonald

/s/ Kirsten Frank Kelly

4 During the termination hearing, the Court specifically addressed Appellant Rigg’s legal status

with regard to QR. The court stated, “[t]he Court does recognize that . . .Mr. Rigg has not

stepped forward, though he has testified today that he was the father of [QR], he has not stepped

forward to sign an Affidavit of Paternity. His is not the legal father of [QR]. He’s the putative

father with testimony that he believes he is the father. [T]he Court is certainly aware of how he

is viewed by the law as it relates to [QR]and . . .will keep that in mind in determining whether or

not, as a putative father, his rights should be terminated in [QR].”

Advertisements

2 Comments »

  1. I concur with the court. I think it violates fundamental fairness for a trial court to proceed as if the putative father has standing and then for the appeals court to dismiss his appeal on standing grounds where no party ever raised the issue and no remand for determining paternity was feasible. I understand that standing is jurisdictional and can be raised anytime. But I still think it is unfair to raise it sua sponte where everyone else has treated the father as de facto putative father all the way through case plans, adjudication, and appeal. I would simply affirm the adjudication. Why raise an issue sua sponte that need not be raised?

    Compare this case with B.B. v. P.J.M., (May 22, 2006) Fla.App. 5th Dist., Case No. 1D05-0510, where the Florida Appeals Court held that the father’s paternity had been established by a court proceeding in a dependency case, even though the putative father did not follow the statutory provisions for that establishment. The putative father then had standing to contest the adoption of the child in a separate case. The Appeals Court reasoned that the father’s status was a material fact that was effectively stipulated to by never being disputed in the dependency proceeding and which was accepted as true by the juvenile court.

    I realize that in the Michigan case the issue was complicated by the presence of a presumed father. But I believe the comparison is still noteworthy. When the marriage was annulled, the father’s putative status essentially became a stipulated fact–especially where both the mother and putative father had acknowledged it in oral testimony in the trial court, and the trial court then accepted it and proceeded.

    Erik L. Smith

  2. Thank you for your response.

RSS feed for comments on this post · TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: