in Re Mgr

Order Michigan Supreme Court
Lansing, Michigan

June 6, 2019 Bridget M. McCormack,
Chief Justice

157821-2 David F. Viviano,
Chief Justice Pro Tem

Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
In re MGR, Minor. SC: 157821-2 Elizabeth T. Clement
COA: 338286; 340203 Megan K. Cavanagh,
Justices
Oakland CC Family Division:
2016-842995-AD

_________________________________________/

On order of the Court, leave to appeal having been granted and the briefs and oral
arguments of the parties having been considered by the Court, we REVERSE the
February 27, 2018 judgment of the Court of Appeals, which held that petitioners’ appeal
was moot because of an order of filiation in a related paternity case, Brown v Ross
(Docket No. 157997). We also VACATE the Oakland Circuit Court’s determination that
the putative father was a “do something” father under Section 39(2) of the Michigan
Adoption Code, MCL 710.21 et seq., and we REMAND this case to the Family Division
of the Oakland Circuit Court for further proceedings.

The Court of Appeals erred in holding that petitioners’ appeal of the September
14, 2017 order was moot because of the subsequently entered order of filiation in the
related paternity case, Brown v Ross (Docket No. 157997). MGR was born on June 5,
2016. On June 9, 2016, petitioners filed the petition for adoption. Respondent-father
filed the paternity action on July 15, 2016. “All proceedings under [the Michigan
Adoption Code] shall be considered to have the highest priority and shall be advanced on
the court docket so as to provide for their earliest practicable disposition.” MCL
710.25(1). “Although proceedings under the Adoption Code should, in general, take
precedence over proceedings under the Paternity Act, adoption proceedings may be
stayed upon a showing of good cause, as determined by the trial court on a case-by-case
basis.” In re MKK, 286 Mich App 546, 555 (2009), citing MCL 710.25(2). Respondent-
father did not request that the trial court stay the adoption proceedings in favor of the
paternity proceedings pursuant to MCL 710.25(2), and the facts did not justify a stay in
any event.

Instead, over petitioners’ objection that there was no good cause, the trial court,
sua sponte, entered an order on April 17, 2017 staying the adoption proceedings until the
paternity action was resolved. The Court of Appeals, in orders entered on May 31, 2017
and July 25, 2017, directed the trial court to commence and conclude the Section 39
hearing, see MCL 710.39. Respondent-father did not seek further appellate review of
either order. The trial court held the Section 39 hearing on August 7 and 8, 2017 but did
not issue a decision. On August 29, 2017, the Court of Appeals ordered the trial court to
issue a decision with respect to the Section 39 hearing. Respondent-father did not seek
further appellate review of the Court of Appeals order. The trial court issued its Section
 2

39 opinion on September 14, 2017. Respondent-father never requested the court to stay
the adoption proceedings under MCL 710.25(2) for good cause relating to his separate
paternity proceeding, and the facts did not justify a stay in any event. The trial court
entered an order of filiation on October 4, 2017—after it had issued its Section 39
determination and after petitioners had appealed that decision to the Court of Appeals.

The birth mother, on the other hand, twice asked the trial court to stay the
paternity action. On June 7, 2017, the birth mother moved for stay, and the circuit court
denied it on June 14, 2017. Following petitioners’ appeal of the trial court’s Section 39
determination, the birth mother again moved to stay the paternity action pending that
appeal. On October 4, 2017, the trial court denied the motion and entered the order of
filiation the same day.

The trial court’s denial of the birth mother’s motions was an abuse of discretion
given the unique circumstances of this case. The trial court had the authority to stay the
paternity action in favor of the adoption proceedings: absent good cause, adoption
proceedings should be given priority. MCL 710.21a and MCL 710.25(2). And a trial
court has the inherent authority to control the progress of a case. See MCR 1.105; MCR
2.401; see also MCR 3.217(A) (“Procedure in actions under the Paternity Act, MCL
722.711 et seq., is governed by the rules applicable to other civil actions except as
otherwise provided by this rule and the act.”).

Because petitioners had a right to appeal the Section 39 determination and because
good cause to delay those proceedings had not been alleged, the trial court should have
stayed the paternity proceedings pursuant to MCR 7.209(E)(2)(b) so that the appellate
court could review that decision.1 The order of filiation was therefore erroneously
entered on October 4, 2017 and is vacated in our June 6, 2019 order in Brown v Ross
(Docket No. 157997). Accordingly, the order of filiation did not moot appellate review
of the trial court’s September 14, 2017 Section 39 decision.

Further, we conclude that the trial court abused its discretion in determining that
the putative father was a “do something” father under Section 39(2) of the Michigan
Adoption Code, MCL 710.39(2). To qualify as a “do something” father, a putative father
must demonstrate that he has either (1) established a custodial relationship with the child
or (2) provided “substantial and regular support or care in accordance with [his] ability to

1
We agree with Justice Viviano that “In re MKK represents an admirable effort by the
Court of Appeals to balance the competing rights, interests and responsibilities of the
parties when determining whether to proceed with proceedings under the Adoption Code
or a case filed under the Paternity Act.” And we also agree that the Legislature’s input on
this question would be helpful. But we respectfully disagree that this order creates any
per se rule; our decision today is based in the very specific facts of this case alone.
 3

provide support or care for the mother during her pregnancy or for either mother or child
after the child’s birth during the 90 days before notice of the hearing was served upon
him[.]” MCL 710.39(2). Respondent-father failed to satisfy either condition. After the
birth mother discovered she was pregnant in October 2015, she and respondent-father
lived for a matter of weeks with respondent-father’s grandmother. In November 2015,
the pair rented an apartment together, paying their $700 security deposit with funds from
the birth mother’s sister. The birth mother lived in the apartment from November 2015
until February 2016. Until the month before the birth mother moved out of the
apartment—in her fourth month of pregnancy—the parties shared household
responsibilities and expenses for rent, food, and utilities. Respondent-father provided
financial assistance one time in the amount of $200 to partially repay his share of the
security deposit. Respondent-father was employed full-time until the time of the child’s
birth, when he voluntarily terminated his employment. Respondent-father took the birth
mother to Planned Parenthood once for a pregnancy test, but did not otherwise pay for or
participate in her prenatal, delivery, or postnatal medical care.

After the child was born on June 5, 2016, respondent-father received notice of the
hearing to determine his rights as a putative father on July 27, 2016, making the relevant
statutory 90-day time period April 28, 2016 to July 27, 2016. MCL 710.39(2).
Respondent-father testified that he set up a crowdfunding webpage in October or
November 2016, to pay for his legal fees and expenses, outside of the statutory 90-day
window. But he never paid any of the money raised to the child or the child’s caretakers.
Respondent-father also claimed he purchased several items for the child, including
diapers and clothing, using money from odd jobs or Christmas gifts, but he never
attempted to get those items to the child through either the adoption agency or the birth
mother. The facts did not establish that respondent-father provided substantial and
regular support or care either to the birth mother during her pregnancy or to the birth
mother or the child after the child’s birth during the relevant 90-day period. Respondent-
father’s support was insubstantial and irregular.

Further, this is not a case in which respondent-father lacked the ability to support
the birth mother or the child; the record shows that respondent-father was employed
throughout the birth mother’s pregnancy and had the means to provide financial support.
The trial court abused its discretion when it ruled that respondent-father was entitled to
the protections of MCL 710.39(2) because the record does not support a finding that he
provided substantial and regular support or care for the birth mother during her
pregnancy or the birth mother or child during the 90 days before he received service of
the notice of the hearing, despite having the ability to do so. We therefore VACATE the
trial court’s September 14, 2017 order, and we REMAND this case to the Family
Division of the Oakland Circuit Court to conduct an analysis under Section 39(1) of the
Michigan Adoption Code, MCL 710.39(1).
 4

In light of our resolution of these issues, we decline to reach petitioners’ remaining
issue.

We do not retain jurisdiction.

MARKMAN, J. (concurring).

I concur in the majority’s decision to reverse the judgment of the Court of
Appeals, which held that petitioners’ appeal in this adoption case is moot because of an
order of filiation in a related paternity case, Brown v Ross (Docket No. 157997), vacate
the trial court’s determination that the putative father was a “do something” father under
MCL 710.39(2), and remand to the trial court to conduct an analysis under MCL
710.39(1). That is, I agree with the majority that the trial court in the paternity case
abused its discretion by denying the birth mother’s motions to stay the paternity case for
the adoption case and that, as a result, the order of filiation was erroneously entered
before the adoption case was completed. Accordingly, the majority correctly vacates the
trial court’s order of filiation in the paternity case and holds that petitioners’ appeal in
this adoption case is not moot. I also agree with the majority that the trial court abused
its discretion in determining that the putative father was a “do something” father under
MCL 710.39(2), for the reasons explained by the majority.

However, I write separately because I disagree with the majority’s statement that “
‘[a]lthough proceedings under the Adoption Code should, in general, take precedence
over proceedings under the Paternity Act, adoption proceedings may be stayed upon a
showing of good cause, as determined by the trial court on a case-by-case basis.’ In re
MKK, 286 Mich App 546, 555 (2009), citing MCL 710.25(2).” Because I believe, for the
reasons explained below, that proceedings under the Adoption Code must take priority
over proceedings filed under the Paternity Act and there is no “good cause” exception to
that requirement, I believe that In re MKK was wrongly decided and thus would not rely
on it as the majority does. That is, I would not, as does the majority, focus on whether
respondent-father requested the trial court to stay the adoption case for the paternity case
and whether the facts warranted such a stay. Instead, I would simply hold, in accordance
with the Legislature, that an adoption case must take priority over a paternity case and
thus that the trial court abused its discretion by not staying the paternity case for the
adoption case. The majority states, “We agree with Justice Viviano that ‘In re MKK
represents an admirable effort by the Court of Appeals to balance the competing rights,
interests, and responsibilities of the parties when determining whether to proceed with
proceedings under the Adoption Code or a case filed under the Paternity Act.’ ”
However “admirable” this effort may or may not be, it would have been far more
“admirable,” in my judgment, had the Court of Appeals, and now this Court, simply
abided by the mandate of the Legislature that adoption cases be given the “highest
priority.” It is not for this, or any other, Court to “balance the competing rights, interests,
and responsibilities” of the parties where that has already been done by the Legislature.
 5

MCL 710.25(1) provides, “All proceedings under [the Adoption Code] shall be
considered to have the highest priority and shall be advanced on the court docket so as to
provide for their earliest practicable disposition.”2 Pursuant to this provision, an adoption
case should never be stayed for a paternity case because an adoption case must be given
the “highest priority.” MCL 710.25(2) states that “[a]n adjournment or continuance of a
proceeding under [the Adoption Code] shall not be granted without a showing of good
cause.” I believe that In re MKK, and now this Court, erroneously interpret this provision
to signify that, upon a showing of “good cause,” an adoption case can be stayed for a
paternity case. Instead, I believe the more reasonable interpretation of these provisions is
that while an adoption case can, upon a showing of good cause, be adjourned or
postponed, an adoption case must nonetheless take priority over a paternity case. In other
words, MCL 710.25(2) is not an exception to the requirement in MCL 710.25(1) that an
adoption case must be given the “highest priority.” There is no instance in which another
case should be accorded higher priority than an adoption case, and In re MKK read
language into MCL 710.25(2) that is simply not there. Stating, as MCL 710.25(2) does,
that an adoption case cannot be adjourned without a showing of good cause is not the
equivalent of stating, as In re MKK does, that upon a showing of good cause, a paternity
case may be given higher priority than an adoption case. MCL 710.25(1) provides that
an adoption case shall be given the “highest priority,” and there are no exceptions to that
requirement. While MCL 710.25(2) does allow an adoption case to be adjourned, upon a
showing of good cause, it does not allow another case to take priority over that case.
Rather, read in context, I believe MCL 710.25(2) allows an adoption case to be adjourned
where, for example, a witness, party, or attorney is unavailable, but it still does not allow
a paternity action to be accorded priority. Holding to the contrary allows the express
direction of MCL 710.25(1) to be rendered null and void by MCL 710.25(2), despite that:
(a) there is no “good cause” exception contained in MCL 710.25(1), (b) there is no
exception of any sort in MCL 710.25(1) to the express dictate set forth in that provision,
(c) there is no reference within either provision to the disputed aspect of the other
provision, and (d) stating, as MCL 710.25(2) does, that an adjournment of an adoption
case shall not be granted without a showing of “good cause” would be a remarkably
oblique way of overcoming the explicit dictate of MCL 710.25(1) to consider adoption
cases to have the “highest priority.”3

2
In addition, MCL 710.21a(b) provides that “[i]f conflicts arise between the rights of the
adoptee and the rights of another, the rights of the adoptee shall be paramount.”
3
While I agree with the dissent that “[t]here are some reasons to question whether the
Court of Appeals’ analysis in In re MKK is firmly rooted in the plain language of the
statutes it relies upon,” and while perhaps “those statutes do not explicitly address
whether an adoption proceeding should be stayed in favor of a competing paternity
action,” I believe the requirement that an adoption case be accorded the “highest priority”
rather clearly expresses the Legislature’s intention to not have adoption cases stayed for
 6

Furthermore, I believe that this interpretation of § 25 of the Adoption Code is
more generally consistent with the Adoption Code as a whole. As discussed, the
Legislature clearly expressed its intention in the Adoption Code that adoption cases, not
paternity cases, proceed first, and it created no exception to this rule, in particular for
paternity cases. MCL 710.25(1). Instead, the Adoption Code provides detailed
procedures for addressing the rights of putative fathers contesting an adoption. To begin
with, the Adoption Code provides that the court shall determine the identity of the father
by way of an affidavit from the mother, not by performing a DNA test as is done under
the Paternity Act. MCL 710.36(6).4 Next, under the Adoption Code, the rights of
putative fathers are determined not by performing a DNA test as they are under the
Paternity Act, but, instead, by the nature of the relationship between the putative father
and the child and the level of care and support provided by the putative father to the
mother and child. See MCL 710.39.5 That is, the Adoption Code sets forth differing

paternity cases, but to instead have paternity cases stayed for adoption cases, to avoid the
very situation that resulted in this case in which the lower courts allowed a paternity case
to take priority over an adoption case: namely, that the adoption case was rendered moot
because of the order of filiation in the paternity case.
4
MCL 710.36(6) provides:
The court shall receive evidence as to the identity of the father of the
child. In lieu of the mother’s live testimony, the court shall receive an
affidavit or a verified written declaration from the mother as evidence of
the identity and whereabouts of the child’s father. If the court determines
that the affidavit or verified written declaration is insufficient, the court
shall allow amendment of the affidavit or verified written declaration. If
the court determines that the amendment of the affidavit or verified written
declaration is insufficient, the court may receive live testimony from the
mother. Based upon the evidence received, the court shall enter a finding
identifying the father or declaring that the identity of the father cannot be
determined.
5
MCL 710.39 provides, in pertinent part:
(1) If the putative father does not come within the provisions of
subsection (2), and if the putative father appears at the hearing and requests
custody of the child, the court shall inquire into his fitness and his ability to
properly care for the child and shall determine whether the best interests of
the child will be served by granting custody to him. If the court finds that it
would not be in the best interests of the child to grant custody to the
putative father, the court shall terminate his rights to the child.
(2) If the putative father has established a custodial relationship with
the child or has provided substantial and regular support or care in
 7

standards for terminating a putative father’s parental rights depending on the nature of the
relationship between the putative father and the child and the level of care and support
provided by the putative father to the mother and child. Id. The Adoption Code also
provides a means both of terminating the putative father’s rights if he fails to satisfy the
applicable standards and transforming him into a legal father with custody rights if he
succeeds in meeting these standards. Id. Had the Legislature intended that the Paternity
Act be used to thwart or subordinate adoption proceedings, it would not have created
these detailed procedures. It would have simply called for the putative father to take a
DNA test and determine his rights exclusively on the basis of those results as is done
under the Paternity Act.6

If an adoption case can, in fact, be stayed for a paternity case, all these provisions
within the Adoption Code will be undermined. An adoption case will not be given the
“highest priority” contrary to MCL 710.25(1). The identity of the father will be
determined by a DNA test rather than by an affidavit from the mother contrary to MCL
710.36(6). The rights of putative fathers will also be determined by a DNA test rather
than by the nature of the relationship between the putative father and the child and the
level of care and support provided by the putative father to the mother and child, all
contrary to MCL 710.39. Finally, adoption cases involving putative fathers will not be
decided on a consistent basis because some will be resolved under the Adoption Code
and others will be resolved under the Paternity Act, depending on whether the trial court
finds “good cause” to stay the adoption case for the paternity case.

accordance with the putative father’s ability to provide support or care for
the mother during pregnancy or for either mother or child after the child’s
birth during the 90 days before notice of the hearing was served upon him,
the rights of the putative father shall not be terminated except by
proceedings in accordance with section 51(6) of this chapter or section 2 of
chapter XIIA.
***
(5) If the mother’s parental rights are terminated under this chapter
or other law and are not restored under section 62 of this chapter and if the
court awards custody of a child born out of wedlock to the putative father,
the court shall enter an order granting custody to the putative father and
legitimating the child for all purposes.
6
Moreover, the Adoption Code provides that a person who files a notice of intention to
claim paternity is entitled to notice of adoption proceedings. MCL 710.33(3). It is
noteworthy that this is all that it provides; it does not provide that the adoption case
should be stayed for the paternity case. And nothing within the Paternity Act suggests
anything to the contrary.
 8

My interpretation is also more consistent with the fundamental purposes of the
Adoption Code and the Paternity Act. While the purposes of the Adoption Code include
“[t]o provide procedures and services that will safeguard and promote the best interests of
each adoptee in need of adoption and [to] protect the rights of all parties concerned,”
MCL 710.21a(b), a purpose of the Paternity Act is “to confer upon circuit courts
jurisdiction over proceedings to compel and provide support of children born out of
wedlock,” 1956 PA 205, title. That is, given that the purpose of the Adoption Code is to
protect the rights of all those involved in an adoption case, while the purpose of the
Paternity Act is to compel fathers of children born out of wedlock to pay child support, it
makes considerable sense that a putative father’s rights in an adoption case would be
determined pursuant to the Adoption Code rather than the Paternity Act.

Because I do not believe In re MKK communicates what the Legislature intended,
as best evidenced by the plain and straightforward language of the Adoption Code that
adoption cases be given the “highest priority,” I would overrule In re MKK and hold that
adoption cases are to be given the “highest priority” and that there is no “good cause”
exception to this requirement, in which the discretion of the judge replaces the judgment
of the Legislature.

ZAHRA, J., joins the statement of MARKMAN, J.

VIVIANO, J. (dissenting).

The majority concludes that the trial court erred by not staying the putative
father’s paternity action pending resolution of the adoption proceedings and by
concluding that the putative father (Allen Brown) was a “do-something” father under
MCL 710.39(2). I disagree with both conclusions and, therefore, respectfully dissent.

This case requires us to consider the interplay between two separate laws: the
Michigan Adoption Code, MCL 710.21 et seq., and the Paternity Act, MCL 722.711 et
seq. As stated by the majority, this case involves a petition for adoption, filed June 9,
2016, and a competing paternity action, filed July 15, 2016. Petitioners moved on three
different occasions for a stay of the paternity action pending resolution of the adoption
proceedings, once in Macomb County and twice after venue was transferred to Oakland
County. The trial court denied each of these motions. On April 17, 2017, the trial court
sua sponte entered an order staying the adoption proceedings. Petitioners appealed this
order to the Court of Appeals and filed a motion for reconsideration in the trial court. On
May 17, 2017, the trial court issued an opinion explaining its decision. The trial court
relied upon the Court of Appeals decision in In re MKK, 286 Mich App 546 (2009), and
explained that “[w]here contemporaneous actions are filed under the adoption code and
paternity act, the putative father is entitled to have the adoption proceedings stayed
pending resolution of the paternity action if he can establish good cause to do so . . . .”
The court then proceeded to consider the facts of the case and concluded that “Mr.
 9

Brown’s actions establish good cause.” Thus, the trial court denied petitioners’ motion
for reconsideration of the stay.

On May 31, 2017, the Court of Appeals entered an order denying petitioners’
motion for peremptory reversal. Puzzlingly, however, without analyzing the trial court’s
good-cause analysis or explicitly reversing the stay order, the Court of Appeals also
ordered the trial court to “schedule a hearing pursuant to MCL 710.39 of the Adoption
Code forthwith.” On September 14, 2017, the trial court issued an opinion and order
holding that Brown was a “do-something” father for purposes of MCL 710.39(2) and,
therefore, declined to terminate Brown’s parental rights. Petitioners appealed this
determination to the Court of Appeals, which consolidated this appeal with the yet-
pending appeal challenging the stay of the adoption proceedings. Subsequently, on
October 4, 2017, the trial court entered an order of filiation in Brown’s paternity action.

The Court of Appeals, in a published opinion, dismissed both appeals as moot. In
re MGR, 323 Mich App 279 (2018). Regarding the appeal from the trial court’s order
staying the adoption proceedings, the Court of Appeals explained that the appeal was
moot in light of the fact that the § 39 hearing had concluded. Id. at 284; id. at 292-294
(O’Brien, J., concurring in part and dissenting in part). Regarding the appeal from the
trial court’s § 39 determination, the Court of Appeals majority concluded that, in light of
the order of filiation in the paternity action, Brown was a legal father and, accordingly,
his rights could not be terminated pursuant to § 39. Id. at 284-286 (opinion of the court).
Thus, because the Court of Appeals could not grant relief under § 39, it dismissed
petitioners’ appeal as moot. Id. at 288. Petitioners have appealed this decision to this
Court.

The majority reverses the Court of Appeals’ mootness holding because it
concludes that the order of filiation should never have been entered in the paternity case.
Relying on §§ 21a and 25 of the Adoption Code, as well as the trial court’s “inherent
authority to control the progress of a case,” the majority holds that the trial court abused
its discretion in denying the birth mother’s motions to stay the paternity action in favor of
the adoption proceeding.7 For the reasons set forth below, I find this analysis
problematic.

7
MCL 710.21a sets forth the “general purposes” of the Adoption Code, including, among
other things:

(b) To provide procedures and services that will safeguard and
promote the best interests of each adoptee in need of adoption and that will
protect the rights of all parties concerned. If conflicts arise between the
rights of the adoptee and the rights of another, the rights of the adoptee
shall be paramount.
 10

In In re MKK, 286 Mich App at 555, the Court of Appeals addressed “whether the
Adoption Code or the Paternity Act takes precedence when contemporaneous actions
have been filed under each.” In that case, the putative father objected to the planned
adoption and filed a notice of intent to claim paternity before the birth of the child. See
MCL 710.33. And, a few weeks after the child was born, he filed his paternity action.
The putative father filed a motion to stay the adoption proceedings pending the outcome
of his paternity action and, at the hearing on his motion, presented the results of the DNA
testing, which showed a 99.99% probability that he was the child’s biological father. The
trial court denied the motion to stay and proceeded with a hearing to determine the
putative father’s rights under MCL 710.39 of the Adoption Code.

On appeal from the trial court’s application of the Adoption Code and decision to
stay his paternity action in favor of the adoption proceedings, the Court of Appeals noted
that “adoption proceedings must be completed as quickly as possible and, in general, be
given priority on the court’s docket.” In re MKK, 286 Mich App at 562, citing MCL
710.21a(c) and (d); MCL 710.25(1). But, relying on the “good cause” exception
contained in MCL 710.25(2), the Court of Appeals recognized that

there may be circumstances in which a putative father makes a showing of
good cause to stay adoption proceedings in favor of a paternity action. For
example, in cases such as this, where there is no doubt that respondent is
the biological father, he has filed a paternity action without unreasonable
delay, and there is no direct evidence that he filed the action simply to
thwart the adoption proceedings, there is good cause for the court to stay
the adoption proceedings and determine whether the putative father is the
legal father, with all the attendant rights and responsibilities of that status.
[Id.]

(c) To provide prompt legal proceedings to assure that the adoptee is
free for adoptive placement at the earliest possible time.

(d) To achieve permanency and stability for adoptees as quickly as
possible.

MCL 710.25 provides:

(1) All proceedings under this chapter shall be considered to have
the highest priority and shall be advanced on the court docket so as to
provide for their earliest practicable disposition.

(2) An adjournment or continuance of a proceeding under this
chapter shall not be granted without a showing of good cause.
 11

Thus, the Court of Appeals held that “[a]lthough proceedings under the Adoption Code
should, in general, take precedence over proceedings under the Paternity Act, adoption
proceedings may be stayed upon a showing of good cause, as determined by the trial
court on a case-by-case basis.” Id. at 555.

I believe that In re MKK represents an admirable effort by the Court of Appeals to
balance the competing rights, interests, and responsibilities of the parties when
determining whether to go forward with proceedings under the Adoption Code or a case
filed under the Paternity Act.8 The majority does not quarrel with the In re MKK

8
There are some reasons to question whether the Court of Appeals’ analysis in In re
MKK is firmly rooted in the plain language of the statutes it relies upon—for one thing,
those statutes do not explicitly address whether an adoption proceeding should be stayed
in favor of a competing paternity action. For this same reason, I question the
concurrence’s conclusion that the statute clearly reflects a legislative mandate that an
adoption case must always take priority over a paternity case. As noted above, MCL
710.25(1) provides that “[a]ll proceedings under this chapter shall be considered to have
the highest priority and shall be advanced on the court docket so as to provide for their
earliest practicable disposition.” Contrary to the concurrence’s claim that it is “clearly
expressed” and “plain and straightforward,” the proviso that adoption proceedings “shall
be considered to have the highest priority” is opaque at best. Despite the concurrence’s
attempt to recast this provision, the Legislature has not instructed that adoption
proceedings shall be “given” or “accorded” or “must take” the highest priority, only that
they “shall be considered to have” it. The concurrence’s rewording of this provision does
not help us understand the plain meaning of the words actually chosen by the Legislature.
It is also unclear what is meant by the modifier “highest” – the word “priority” is
relevantly defined as “in law, a precedence or preference in claims, etc.; as, certain debts
are paid in priority to others.” Webster’s New Twentieth Century Dictionary Unabridged
(2nd Ed), p 1431. If, as the concurrence suggests, an adoption proceeding must always
take precedence over a competing paternity action, what does it mean to take the
“highest” precedence?
And, what, precisely, does it mean for an adoption case to have the “highest
priority”? Does “highest priority” refer to all of the cases competing for the court’s time
and attention? Does it mean that no other case can proceed at all until the adoption
proceedings are completed? Or does “highest priority” only refer to paternity actions or
other cases on the court’s docket involving the same parties? What if the paternity action
is filed in a different court, or in the same court but is assigned to a different judge?
Moreover, while it is hard to understand what this phrase means, a contextual
reading of the statute makes it clear that it cannot bear the freight that the concurrence
would place on it. If adoption proceedings must always be given precedence, what work
is left for the second phrase in MCL 710.25, which provides that adoption proceedings
 12

framework generally, as it notes, but, in my view, it places too much emphasis on which
party moved to stay which proceeding. Although I agree with the majority that the
putative father has the burden of establishing good cause, the majority seems to go
further and require that the putative father file a motion to stay the adoption proceeding

“shall be advanced on the court docket so as to provide for their earliest practicable
disposition”? The concurrence’s reading would render this phrase surplusage, an
outcome courts should strive to avoid. See People v Pinkney, 501 Mich 259, 282 (2018)
(“[A]s a general rule, we must give effect to every word, phrase, and clause and avoid an
interpretation that would render any part of the statute surplusage or nugatory.”). In
addition, what happens when an adjournment or continuance is granted under MCL
710.25(2)? Do all other matters on the court’s docket grind to a halt so that the adoption
case can continue to be given precedence? Or just those cases, like a paternity action,
that may potentially interfere with the adoption proceeding? Neither the plain language
of the statute nor its contexts provides the necessary frame of reference to help us answer
these questions.
If the Legislature wished to mandate that the filing of an adoption case would
negate a competing paternity action, it easily could have done so explicitly. The
Legislature was aware that certain actions taken in an adoption case could have an impact
on a paternity case. See e.g., MCL 710.33 (notice of intent to claim paternity “is
admissible in a paternity proceeding under Act No. 205 of the Public Acts of 1956, as
amended, being sections 722.711 to 722.730 of the Michigan Compiled Laws, and shall
create a rebuttable presumption as to the paternity of that child for purposes of that act.”).
And, if it wished to alter the substantive rights of the parties in the manner the
concurrence has suggested, meddling with the trial court’s docket is a strange way to
accomplish that goal. A more direct way would be to enact a law providing that once an
adoption proceeding is filed, parental rights for the child may only be determined in
accordance with the relevant provisions of the Adoption Code. Of course, such language
is conspicuously absent from section 25(1).
Unlike the concurrence’s all-or-nothing approach, the Court of Appeals approach
In re MKK at least has the virtue of attempting to harmonize these two potentially
overlapping and conflicting acts by giving effect to each to the extent practicable. There
may be policy reasons why it might be better to resolve all such disputes under the
Adoption Code or, alternatively, why it might be better to determine a father’s rights
under the Paternity Act, at least when such an action is timely filed and diligently
prosecuted. But, until the Legislature provides more guidance in this difficult area of the
law, I am reticent to read this opaque provision as calling upon us to negate an entire
act—instead, I believe the more restrained approach is to view the “highest priority”
language as aspirational, in accord with the general purposes of the Adoption Code stated
elsewhere. See MCL 710.21a(c) (providing that one of the general purposes of the
Adoption Code is “[t]o provide prompt legal proceedings to assure that the adoptee is free
for adoptive placement at the earliest possible time.”).
 13

that specifically alleges good cause. However, I believe this requirement elevates form
over substance since, as the majority’s order acknowledges, good cause was at issue each
time a stay of the paternity action was sought. Since the very same issue is implicated
whether one of the parties is seeking to stay the paternity action or another party is
seeking to stay the adoption proceeding, I would not require the putative father to file a
separate motion to stay the adoption proceeding that specifically alleges good cause in
order to preserve the issue.

In short, unlike the majority, I can think of no logical reason that application of
this framework should depend on which party was seeking a stay of which action, or
whether a motion to stay was filed at all. Nor do I believe In re MKK is distinguishable
merely because here, the adoption petition was filed a few weeks before the paternity
action.9 Until the Legislature provides more guidance, I believe the In re MKK
framework should be used by the trial court to determine whether to allow a paternity
action to reach its natural conclusion before a contemporaneously filed adoption
proceeding, regardless of which action was filed first, and regardless of which party filed
a motion to stay or whether, like here, the stay is entered sua sponte by the trial court.10

9
I agree that this should not be a “ ‘race to the courthouse,’ where a paternity action takes
precedence over an adoption proceeding [or vice versa] merely because the paternity
action was filed first; rather, the timing of a paternity claim is but one factor to be
considered in determining whether there is good cause under MCL 710.25(2) . . . .” Id. at
562.
10
The majority, by contrast, appears to create a per se rule that, unless a putative father
files a motion to stay the adoption proceeding, a trial court must always stay the paternity
action in favor of a competing adoption proceeding. The majority gives several reasons
for its new rule: (1) “[t]he trial court had the authority to stay the paternity action in favor
of the adoption proceedings,” (2) “absent good cause, adoption proceedings should be
given priority, MCL 710.21a and MCL 710.25(1),” (3) “a trial court has the inherent
authority to control the progress of a case,” and (4) “petitioners had a right to appeal
the . . . determination” made under MCL 710.39, meaning that “the trial court should
have stayed the paternity proceedings pursuant to MCR 7.209(E)(2)(b) . . . .” As to the
first and third reasons, simply acknowledging that the court had the authority to stay the
paternity proceeding does not explain why the trial court abused its discretion in not
doing so. As to the second reason, while MCL 710.25(1) establishes the general
principle that adoption proceedings “shall be considered to have the highest priority,” the
statute does not require that all other cases in general—or a paternity action between the
same parties in particular—be stayed until the adoption proceedings are resolved. And,
as noted above, MCL 710.25(2) has been interpreted as providing that the adoption
proceedings may be stayed on a showing of good cause. Finally, as to the fourth reason
given by the majority, MCR 7.209(E)(2)(b) only provides that “[a]n appeal does not stay
execution” of a trial court’s order unless “[t]he trial court grants a stay . . . as justice
 14

Accordingly, in this case, I believe the trial court was correct to apply the In re
MKK good-cause analysis to determine the priority of the adoption proceedings and the
paternity action.11 Moreover, I believe the trial court did not abuse its discretion in
finding that Brown’s actions demonstrated good cause. In support of its finding of good
cause, the trial court noted the following facts, which are not in serious dispute:

(1) “It is undisputed that Mr. Brown and Ms. Ross had a relationship during
which time, in approximately October of 2015, [MGR] was conceived.” Thus, here, like
in In re MKK, there was little doubt that Brown was the biological father. Although
Brown himself expressed some doubts, the birth mother identified him as the child’s
father, which was later confirmed by DNA testing in the paternity action.

(2) Brown timely asserted his rights by refusing to consent to the planned
adoption and filing a notice of intent to claim paternity before the birth of the child. See
MCL 710.33.

requires or as otherwise provided by statute . . . .” Here again, the fact that the trial court
has the authority to stay a case does not make it an abuse of discretion for the trial court
not to do so. Moreover, MCR 7.209(E)(2)(b) authorizes a trial court to stay the execution
of the order appealed from; it does not speak to the authority or requirement of the court
to stay one proceeding (i.e., the paternity action) pending the appeal of a separate
proceeding (i.e., the adoption proceeding). In my view, the majority has failed to provide
adequate support for its rule requiring—at least in the absence of a motion by the
putative father to stay the adoption proceeding—that a paternity action must be stayed in
favor a competing adoption proceeding.
11
I agree with the Court of Appeals majority and dissent that petitioners’ appeal from the
trial court’s order staying the adoption proceedings is moot: because the trial court
completed the § 39 hearing following the Court of Appeals’ order, the question of
whether the trial court initially erred in staying the adoption proceedings is moot.
However, as recognized by the majority in this Court, the question of whether the trial
court erred in denying the motions to stay the paternity action is still relevant because, if
the paternity action had been stayed, then the § 39 determination would not be moot. As
I have explained above, I believe that the question of whether the trial court should have
stayed the paternity action is a question of good cause. Thus, I believe that trial court’s
good-cause analysis, although made in the context of its sua sponte decision to stay the
adoption proceeding, is still relevant to our analysis of petitioners’ appeal from the § 39
determination.
 15

(3) A few weeks after the child was born, Brown timely filed his paternity action
in Macomb County, and I believe that he diligently prosecuted that action, in the face of
many obstacles.12

Finally, although the trial court did not make an explicit finding on this point,
there does not appear to be any direct evidence that Brown filed the paternity action
simply to thwart the adoption proceedings—to the contrary, as the trial court noted, at
various times during these lengthy proceedings, Brown has asserted his desire to parent
the child.13

In light of these facts, I believe that the trial court did not abuse its discretion in
finding that Brown satisfied the In re MKK test. Like in In re MKK, Brown took timely
and reasonable steps to establish himself as the legal father of the minor child. Therefore,
I would hold that the trial court did not err in allowing the paternity action to reach its
conclusion even though the adoption proceedings were still pending on appeal.

As a result, I would affirm the Court of Appeals’ decision holding that the trial
court’s determination of Brown’s rights under MCL 710.39 of the Adoption Code was
moot in light of the order of filiation.14 However, since the majority’s order addresses the
§ 39 determination, I will do likewise. I disagree with the majority’s conclusion “that the
trial court abused its discretion in determining that the putative father was a ‘do

12
It took 446 days from the filing of the paternity action until an order of filiation was
entered, which is significantly longer than it should take to resolve a paternity action.
See Administrative Order No. 2013-12, 495 Mich cxx, cxxiii (2013) (providing that 75%
of all paternity cases should be adjudicated within 147 days from the date of case filing
and 95% within 238 days). Notably, most—if not all—of the delay was attributable to
petitioners, who evaded service (necessitating the issuance of a second summons), filed
motions to dismiss and change venue, and unsuccessfully requested a stay of the paternity
case on three separate occasions.
13
In considering whether this factor is satisfied, I believe it is important to determine
whether the biological father has a genuine interest in becoming, and the willingness and
ability to become, the custodial parent of the child.
14
As the Court of Appeals explained, when the trial court entered the order of filiation in
the paternity action, Brown was no longer the putative father—he became the child’s
legal father. Since Brown was no longer the putative father, no court could grant relief
under MCL 710.39(1) or MCL 710.39(2), which both explicitly refer to only the
“putative father.” Thus, the issue became moot. See TM v MZ, 501 Mich 312, 317
(2018) (“A moot case presents nothing but abstract questions of law which do not rest
upon existing facts or rights. It involves a case in which a judgment cannot have any
practical legal effect upon a then existing controversy.”) (citations and quotation marks
omitted).
 16

something’ father under Section 39(2) of the Michigan adoption code.” Instead, under
the correct standard of review in this case—one that is deferential to the trial court—I
believe there is sufficient evidence to support the trial court’s ruling.15

I believe the record contains sufficient evidence to support the trial court’s finding
that Brown has “provided substantial and regular support or care in accordance with the
putative father’s ability to provide support or care for the mother during pregnancy or for
either mother or child after the child’s birth during the 90 days before notice of the
hearing was served upon him . . . .” MCL 710.39(2) (emphasis added). Upon learning of
the pregnancy, Brown offered the birth mother, along with her daughter from a previous
relationship, a place to live, inviting them first to move in with him at his grandmother’s
house and later into an apartment that they rented together. For a time, Brown supported
all three members of the family. Brown obtained medical care for the birth mother’s
daughter when it was necessary, and even bailed the birth mother out of jail when her
bond in a prior criminal matter was revoked. When the birth mother left him, he
continued to contact her, attempting to restore their relationship and to care for his
unborn child. His efforts ceased, however, when the birth mother threatened him with a
personal protection order (PPO). Brown also called Child Protective Services to ensure
that the birth mother, and his unborn child, would have medical care.

Overlooking the threatened PPO, the majority faults Brown for failing to continue
providing support to the child and birth mother after the child was born. But I do not
read MCL 710.39(2) as requiring that a putative father continue to provide support even
after being threatened with a PPO.16 Instead, the statute requires that the putative father

15
I agree with the majority that a trial court’s legal determination of whether a putative
father is a “do something” father under MCL 710.39(2) should be reviewed for an abuse
of discretion. In addition, I believe that the trial court’s findings of fact should be
reviewed for clear error. See, e.g., MCR 2.613(C) (“Findings of fact by the trial court
may not be set aside unless clearly erroneous. In the application of this principle, regard
shall be given to the special opportunity of the trial court to judge the credibility of the
witnesses who appeared before it.”); MCR 3.977(K) (“The clearly erroneous standard
shall be used in reviewing the court’s findings on appeal from an order terminating
parental rights.”); see also Kren v Rubin, 338 Mich 288, 294 (1953) (“We also give
deference to the findings of facts by the trial judge due to his opportunity to observe the
witnesses and thereby judge their credibility.”).
16
In addition, it is worth noting that, under the statute, the putative father can meet his
burden by providing substantial and regular support or care either (1) “for the mother
during pregnancy” or (2) “for either mother or child after the child’s birth during the 90
days before notice of the hearing was served upon him . . . .” MCL 710.39(2). Because I
believe Brown’s efforts during the pregnancy were sufficient, it is not necessary to
address his efforts during the latter period.
 17

provide substantial and regular support “in accordance with [his] ability.” In this case,
Brown clearly provided regular support and care during the pregnancy until the birth
mother left him. After that point, Brown attempted to continue to provide support, until
he was rebuffed by the birth mother.17

17
The partial dissent in the Court of Appeals argued that courts cannot consider the birth
mother’s interference with the putative father’s attempts to provide care. See In re MGR,
323 Mich App 279, 298 (2018) (O’BRIEN, J., concurring in part and dissenting in part).
The partial dissent acknowledged that the Court of Appeals reached the opposite
conclusion in In re Dawson, 232 Mich App 690, 694 (1998), but argued that Dawson is
“obsolete” in light of subsequent amendments of MCL 710.39(2). In re MGR, 323 Mich
App at 301 (O’BRIEN, J., concurring in part and dissenting in part). In 1998, shortly after
Dawson was decided, MCL 710.39(2) was amended as follows:

If the putative father has established a custodial relationship with the child
or has provided substantial and regular support or care in accordance with
the putative father’s ability to provide support or care for the mother
during the pregnancy or for either mother or child after the child’s birth
during the 90 days before notice of the hearing was served upon him, the
rights of the putative father shall not be terminated except by proceedings
in accordance with section 51(6) of this chapter or section 2 of chapter
XIIA. [1998 PA 94 (additions indicated by italics).]

In light of these amendments, the partial dissent contended that courts cannot
consider factors such as whether the birth mother rejected offers of support, but that,
instead, the “putative father must have actually done something on a regular basis.” In re
MGR, 323 Mich App at 301 (O’BRIEN, J., concurring in part and dissenting in part).

I do not think that the amendment to MCL 710.39(2) supports the dissent’s
conclusion. Under the statute as amended, “substantial and regular support” is required
in the absence of a custodial relationship—but only “in accordance with the putative
father’s ability to provide support or care . . . .” In my view, consideration of the putative
father’s ability to provide support or care must include consideration of whether the birth
mother impeded his efforts to do so.
 18

In sum, under the circumstances presented in this case, I believe the trial court
correctly concluded that Brown was a “do something” father under MCL 710.39(2).
Accordingly, I respectfully dissent from the majority’s decision to reverse the trial court’s
determination on this issue as well.

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 6, 2019
t0605
Clerk