If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re BABY BOY DOE, Minor.
PETER KRUITHOFF, FOR PUBLICATION
August 26, 2021
Petitioner-Appellant, 9:20 a.m.
v No. 353796
Kalamazoo Circuit Court
Family Division
CATHOLIC CHARITIES OF WEST MICHIGAN, LC No. 2018-006540-NB
Respondent-Appellee.
Before: RONAYNE KRAUSE, P.J., and BECKERING and BOONSTRA, JJ.
BOONSTRA, J.
Petitioner appeals by delayed leave granted the trial court’s order denying his motion to
unseal a sealed adoption file. Following the entry of that order, the trial court denied petitioner’s
motion for reconsideration, in which he additionally requested that the trial court reinstate his
parental rights to Baby Boy Doe (Doe). Petitioner raised both issues in his delayed application for
leave to appeal, and this Court granted the application “limited to the issues raised in the
application and supporting brief.”1 Underlying this matter is a series of conflicting orders
independently entered by two circuit courts, each apparently acting largely without knowledge of
the actions of (or the proceedings pending before) the other. We vacate in part, reverse in part,
and remand for further proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On August 8, 2018, petitioner initiated a divorce proceeding against his then-pregnant wife,
KGK, in the family division of the Ottawa Circuit Court (the Ottawa court); petitioner additionally
1
In re Doe, unpublished order of the Court of Appeals, entered August 31, 2020 (Docket No.
353796).
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sought custody of his then-unborn child. Petitioner resided in Ottawa County at the time he filed
for divorce, while KGK resided in Muskegon County.
The following day, August 9, 2018, unbeknownst to petitioner or the Ottawa court, KGK
gave birth to a male child (Doe) at the Butterworth Campus of Spectrum Health Hospitals in Grand
Rapids. On August 10, 2018, the Ottawa court entered an ex parte order for DNA testing of the
child that was carried by KGK and an ex parte restraining order prohibiting either petitioner or
KGK from taking “any action pertaining to the permanent placement or adoption of the
defendant’s unborn child pending further order of the court.” The record before us2 does not
contain a proof of service or other indication that this order was served on KGK; petitioner’s
counsel later represented at a motion hearing that she was served with a copy of the complaint for
divorce and the ex parte order sometime in September 2018.
KGK surrendered Doe at the hospital on August 12, 2018, under Michigan’s Safe Delivery
of Newborns Law (SDNL), MCL 712.1 et seq. KGK declined to provide any information
regarding the birth father’s identity, but did indicate that she was married.3 She also refused to
sign a “Voluntary Release For Adoption Of A Surrendered Newborn by Parent” form because she
did not want her name appearing on any legal documents. The hospital placed Doe with
respondent, a nonprofit agency that provides, among other services, child placement and adoption
services.
On August 15, 2018, again unbeknownst to petitioner or the Ottawa court, respondent
petitioned the family division of the Kalamazoo County Circuit Court (the Kalamazoo court) for
permission to place Doe with prospective adoptive parents. The Kalamazoo court entered an order
authorizing placement on August 16, 2018. However, Doe was not placed with the prospective
adoptive parents until August 25, 2018, because he was born with a methadone addiction and
required additional medical care. Also on August 16, 2018, a “Publication of Notice, Safe Delivery
of Newborns” was published in the Grand Rapids Press. This notice contained no names, but was
merely addressed, generically, to the birth mother and father of “a newborn baby, born on August
9, 2018 at Spectrum Health Grand Rapids, MI.” Twenty-eight days passed without a response to
the publication being received by the Kalamazoo court.
On September 14, 2018, respondent petitioned the Kalamazoo court to accept the release
of the surrendering parent and terminate the parental rights of both the surrendering and
nonsurrendering parents. Meanwhile, on September 21, 2018, the Ottawa court entered an order
awarding petitioner temporary physical and legal custody of Doe. On September 28, 2018, the
Kalamazoo court held a hearing on respondent’s termination petition. The court found that the
2
The Ottawa court file is not part of the record on appeal, inasmuch as this appeal arises out of
Kalamazoo County.
3
Petitioner asserts that KGK gave hospital staff her maiden name. At the motion hearing on
petitioner’s motion to unseal the adoption records, counsel for petitioner stated that KGK’s maiden
name was “in the hospital records” transferred from the hospital to respondent. Those records are
not a part of the record provided to this Court. However, respondent has not challenged this
assertion by petitioner.
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surrendering parent (KGK) had knowingly released her rights to Doe, and that “[t]he
nonsurrendering parent has not been identified or located, and the child-placing agency has made
reasonable efforts to provide notice of the surrender of the newborn.” The Kalamazoo court then
terminated the parental rights of both of Doe’s parents (i.e., both petitioner and KGK) and granted
custody of Doe to respondent.
On January 16, 2019, petitioner issued a third-party subpoena to respondent as part of the
ongoing Ottawa court proceeding, requesting that respondent produce “any and all records
regarding Baby Boy Doe, date of birth August 9, 2018 at Spectrum Health in Grand Rapids,
Michigan to mother [KGK].” Petitioner issued the subpoena after taking the deposition of KGK,
during which she revealed that she had surrendered Doe and that the child had been placed with
respondent to facilitate his adoption. On February 1, 2019, respondent filed a motion to quash the
subpoena on the ground that respondent’s placement records were confidential and that disclosure
of a placement agency’s records without a court order constituted a criminal offense under
MCL 712.2a(2), (3).
On February 12, 2019, the Kalamazoo court granted the prospective adoptive parents’
petition to adopt Doe.
On February 25, 2019, the Ottawa court heard arguments on respondent’s motion to quash.
The court held that petitioner was entitled to be informed of where the “Safe Delivery action” was
proceeding, “so [petitioner] can pursue custody there.” The court directed respondent to provide
petitioner with a copy of the pleadings filed in the “Safe Delivery action,” with the names and
identifying information of the adoptive parents redacted from the pleadings. The parties disputed
the language of the proposed order for several months; on June 10, 2019, an order was finally
entered reflecting the Ottawa court’s ruling.4
On July 30, 2019, the Ottawa court entered a judgment of divorce, which granted petitioner
full physical and legal custody of Doe.
On October 16, 2019, petitioner moved the Kalamazoo court to unseal the adoption file of
Doe and provide petitioner with access to all of the information contained in that file. His motion
stated in relevant part:
52. The Michigan Safe Delivery Act provides that the emergency
service provider to whom the newborn was surrendered has to provide the adoption
agency “any information, either written or verbal, that was provided by and to the
parent who surrendered the newborn.”
53. The Michigan Safe Delivery Act provides that the adoption agency
shall, “within 28 days, make reasonable efforts to identify, locate, and provide
4
Respondent’s counsel apparently mistakenly represented to the Ottawa court that the Safe
Delivery action was pending in Kent County, not Kalamazoo County. Petitioner represents that
he was not aware of the correct venue for the action until July 12, 2019, when he received from
respondent the information that the Ottawa court ordered respondent to produce.
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notice of the surrender of the newborn to the nonsurrendering parent. The child
placing agency shall file a written report with the court that issued the order placing
the child. The report shall state the efforts the child placing agency made in
attempting to identify and locate the nonsurrendering parent and the results of those
efforts. If the identity and address of the nonsurrendering parent are unknown, the
child placing agency shall provide notice of the surrender of the newborn by
publication in a newspaper of general circulation in the county where the newborn
was surrendered.”
54. Petitioner is in need of access to the entire adoption file, as he is the
legal father of Baby Boy Doe.
55. Petitioner does not believe that Catholic Charities of West Michigan
made reasonable efforts to identify and locate him.
56. Petitioner has no reason to rely on the accuracy of the disclosures of
Catholic Charities West Michigan as they hid the location of the probate case from
him and did not inform him of the impending final order of adoption once Catholic
Charities knew he was seeking information on the adoption.
57. Furthermore, Catholic Charities of West Michigan sent Petitioner
documents indicating that the Court knew of [sic, or?] should have known that the
surrendering mother was married at the time of birth.
Respondent responded, arguing that MCL 712.2(a)(1) provides that the adoption records
are subject to strict confidentiality and only the parties to the adoption proceeding are entitled to
those records. According to respondent, petitioner was not a party to the Doe adoption
proceedings, and thus was not entitled to disclosure of the records. Respondent also argued that
petitioner’s claim that it had failed to use reasonable efforts to identify the nonsurrendering parent
was both “legally irrelevant” and factually inaccurate. Respondent asserted that petitioner had
failed to identify any legal basis that would allow the Kalamazoo court to grant the requested relief.
The Kalamazoo court held a hearing on petitioner’s motion on December 10, 2019. After
hearing the parties’ arguments, the court ruled from the bench:
They have got the legislature, the Court of Appeals, everybody has said this
is secure haven. I understand you are arguing that mom went rouge [sic] and she
had a duty – or somebody had a duty to let dad know what’s going on, I mean that
is really the heat [sic] of your argument, I get it. It is unfortunate for him.
She is going to the hospital, telling the hospital there – there has been – what
did she say – there has been abuse – domestic violence – I don’t remember her exact
terms and that the best interest [f]or my baby is for me to give my baby up. The
hospital can’t ask any questions, takes the baby, contacts the people on the list.
Catholic Charities gets the baby placed. No questions by law can be asked.
-4-
I don’t have any clear and convincing evidence of any legal argument from
you why the confidential records for an adoption should be opened up in this case.
There is nothing unique.
Other than the statute never addresses what happens if there is really no
actual notice. There is legal notice. How many times – I don’t know what kind of
law you guys do, but I don’t know how many times this Court has had published
notice in the Climax Crescent, some tiny little newspaper within the county, but it
is general circulation, meets the criteria of the statute. Do we think dad had actual
notice? Probably not, but did he get legal notice? Absolutely.
I find that dad got legal notice. Did mom bamboozle everybody? Maybe.
But that in and of itself is not a reason to change the confidential records and open
up Pandora’s Box and let we just assure you everything that Catholic Charities gave
to this Court Ottawa County has already given you, just redacted with the third –
innocent third parties names on it and the information about them.
So I really don’t think our files would have anymore to give you. You got
the orders, you have submitted them to us and we’ve got the information that
Catholic Charities already gave you. That’s all that there is.
* * *
Sure, but I really don’ ’ [sic] want to unseal our adoptive records. I don’t
think you’ve shown anything that shows that anything was violated, that there is
any good cause.
I find this very interesting. The only concern that I have is I really think the
legislature needs to tweak the law about notice. It is unfortunate that, you know,
there is no requirement that the publication shall be where the mother resides or
where the father resides or that shall be some notice a legal father [sic], but again
the domestic violence people would be all up in arms to have that for this very
reason. Mom is saying there is domestic violence. She is protecting herself
allegedly and her baby. She doesn’t want that baby to go to dad. I don’t know. I
don’t know what the facts are, but we certainly have lots of cases like that.
So I have to follow the law until the legislature changes it. In fact, In re
Miller confirms the legislature’s intent.
The Kalamazoo court entered an order consistent with its ruling on January 2, 2020.
Petitioner subsequently moved for reconsideration, arguing that the trial court had erred by not
unsealing the adoption records so that he could determine whether respondent had made reasonable
efforts to provide him with notice under the SDNL. In addition, petitioner advanced a new
argument—that he had timely filed a petition for custody “within 28 days after the newborn is
surrendered” as required by MCL 712.10(1) by filing for his divorce/custody action in the Ottawa
court shortly before Doe’s birth. Therefore, petitioner argued, the Kalamazoo court had erred by
terminating his parental rights to Doe, and those rights should be reinstated. Without addressing
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the termination issue, the trial court entered an order denying petitioner’s motion for
reconsideration, stating:
This matter having come before the Court on Petitioner’s Motion for
Reconsideration; the Court having read the parties’ submissions and review of the
testimony provided on the record on December 10, 2019, Petitioner’s Motion for
reconsideration is denied. The adoption records at issue shall remain sealed.
This appeal followed, by delayed leave granted. Petitioner’s application for appeal raised two
issues: (1) whether petitioner was entitled to have his parental rights reinstated and (2) whether the
Kalamazoo court erred by not unsealing the adoption file.
II. TERMINATION OF PARENTAL RIGHTS
Petitioner argues that the Kalamazoo court erred by terminating his parental rights as a
nonsurrendering parent under the SDNL. We agree. As discussed, it was in his motion for
reconsideration that petitioner first raised the argument that his divorce action in Ottawa County
was a “petition for child custody” under the SDNL, and the trial court did not specifically address
that argument in its denial. This argument is therefore unpreserved. See Vushaj v Farm Bureau
Gen Ins Co of Mich, 284 Mich App 513, 519; 773 NW2d 758 (2009). However, this Court “may
overlook preservation requirements if the failure to consider the issue would result in manifest
injustice, if consideration is necessary for a proper determination of the case, or if the issue
involves a question of law and the facts necessary for its resolution have been presented.” Smith
v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006).
We review for plain error unpreserved issues regarding the termination of parental rights.
See In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). We review issues of statutory
interpretation de novo. Eggleston v Bio–Med Applications of Detroit, Inc, 468 Mich 29, 32; 658
NW2d 139 (2003).
This Court recently summarized the operation of the SDNL in In re Miller, 322 Mich App
497, 502-503; 912 NW2d 872 (2018):
The Safe Delivery of Newborns Law “encourage[s] parents of unwanted
newborns to deliver them to emergency service providers instead of abandoning
them[.]” People v Schaub, 254 Mich App 110, 115 n 1; 656 NW2d 824 (2002).
The statute permits a parent to surrender a child to an emergency service provider
within 72 hours of the child's birth. MCL 712.1(2)(k); MCL 712.3(1). When the
emergency service provider takes temporary custody of the child, the emergency
service provider must reasonably try to inform the parent that surrendering the child
begins the adoption process and that the parent has 28 days to petition for custody
of the child. MCL 712.3(1)(b) and (c). The emergency service provider must
furnish the parent with written notice about the process of surrender and the
termination of parental rights. MCL 712.3(1)(d). The emergency service provider
should also try to inform the parent that, before the child can be adopted, “the state
is required to make a reasonable attempt to identify the other parent, and then ask
the parent to identify the other parent.” MCL 712.3(2)(e). Finally, the emergency
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service provider must take the newborn to a hospital, if the emergency service
provider is not a hospital, and the hospital must take temporary protective custody
of the child. MCL 712.5(1). The hospital must notify a child-placing agency about
the surrender, and the child-placing agency has various obligations, including
making “reasonable efforts to identify, locate, and provide notice of the surrender
of the newborn to the nonsurrendering parent” within 28 days, which may require
“publication in a newspaper of general circulation in the county where the newborn
was surrendered.” MCL 712.7(f).
Either the surrendering parent, within 28 days of surrender, or the
nonsurrendering parent, within 28 days of published notice of surrender, may file a
petition to gain custody of the child. MCL 712.10(1). If neither the surrendering
parent nor the nonsurrendering parent files a petition for custody within 28 days of
surrender or notice of surrender, the child-placing agency must immediately file a
petition with the court to terminate the rights of the surrendering parent and the
nonsurrendering parent. MCL 712.17(2) and (3). The agency “shall present
evidence that demonstrates that the surrendering parent released the newborn and
that demonstrates the efforts made by the child placing agency to identify, locate,
and provide notice to the nonsurrendering parent.” MCL 712.17(4). If the agency
meets its burden of proof by a preponderance of the evidence and a custody action
has not been filed by the nonsurrendering parent, the trial “court shall enter an order
terminating parental rights of the surrendering parent and the nonsurrendering
parent under this chapter.” MCL 712.17(5). The Safe Delivery of Newborns Law
does not define “parent,” “surrendering parent,” or “nonsurrendering parent.” See
MCL 712.1(2) (definitions). [Id.]
Petitioner argues that the complaint in the Ottawa court constituted a petition for custody
of Doe that was timely filed under MCL 712.10(1). We agree. MCL 712.10(1) provides:
If a surrendering parent wants custody of a newborn who was surrendered
under section 31 of this chapter, the parent shall, within 28 days after the newborn
was surrendered, file a petition with the court for custody. Not later than 28 days
after notice of surrender of a newborn has been published, an individual claiming
to be the nonsurrendering parent of that newborn may file a petition with the court
for custody. The surrendering parent or nonsurrendering parent shall file the
petition for custody in 1 of the following counties:
(a) If the parent has located the newborn, the county where the newborn is located.
(b) If subdivision (a) does not apply and the parent knows the location of the
emergency service provider to whom the newborn was surrendered, the county
where the emergency service provider is located.
(c) If neither subdivision (a) nor (b) applies, the county where the parent is located.
[Emphasis added.]
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The Legislature is presumed to have intended the meaning it has plainly expressed in statutory
language. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). Therefore,
nothing will be read into a clear statute that is not within the manifest intention of the Legislature
as derived from the language of the statute itself. Mich Ed Ass’n v Secretary of State (On
Rehearing), 489 Mich 194, 218; 801 NW2d 35 (2011). The provisions of a statute should be
construed reasonably and in context, and terms given their plain and ordinary meaning unless
otherwise defined in the statute. Pace v Edel-Harrelson, 499 Mich 1, 7; 878 NW2d 784 (2016);
In re Wirsing, 456 Mich 467, 474; 573 NW2d 51 (1998). If the plain and ordinary meaning of
statutory language is clear, no judicial construction is permitted. Pace, 499 Mich at 7.
In this case, it is undisputed that (1) petitioner was not aware of the county where Doe was
located or the county where Doe was surrendered until after petitioner’s parental rights were
terminated; (2) Ottawa County was where petitioner was located; and (3) petitioner filed his
complaint for divorce/custody in Ottawa County. Therefore, if his complaint constituted a
“petition for custody” of Doe, then it was filed in the correct county.5
We conclude that petitioner’s complaint in the Ottawa court was a petition for custody of
Doe. When terms are not defined in a statute, a court may consult a dictionary to ascertain their
common meaning. See Epps v 4 Quarters Restoration LLC, 498 Mich 518, 529; 872 NW2d 412
(2015). A petition is “[a] formal written request presented to a court or other body.” Black’s Law
Dictionary (11th ed). This Court has referred to a marital partner’s “right to petition for divorce.”
Skaates v Kayser, 333 Mich App 61, 83; 959 NW2dd 33 (2020). And although the record of the
proceedings in the Ottawa court was not provided to this Court, it is undisputed that the complaint
for divorce sought a legal resolution to the issue of the custody of (the then-as-yet-unborn) Doe,
and that petitioner requested that the court award him custody of Doe. In fact, the next action
taken by petitioner after filing the complaint was to secure an ex parte order preventing either
parent from taking “any action pertaining to the permanent placement or adoption of the
defendant’s unborn child pending further order of the court.” Clearly, petitioner sought to have
the Ottawa court determine the issue of custody, and in fact took steps to prevent either parent
from doing anything that affected custody without permission of the court.
Further, the complaint was filed “not later than 28 days after notice of surrender of a
newborn has been published.” The complaint for divorce was filed on August 8, 2018, and the
first order regarding custody in the case was entered on August 10. The notice of surrender was
published on August 16, 2018. Nothing in the plain language of MCL 712.10(1) precludes the
filing of a petition for custody by a nonsurrendering parent before a notice of surrender is
5
MCL 712.10(2) states that “[i]f the court in which the petition for custody is filed did not issue
the order placing the newborn, the court in which the petition for custody is filed shall locate and
contact the court that issued the order and shall transfer the proceedings to that court.” We note
that this subsection imposes no further duties on a petitioning parent regarding such a transfer.
MCL 712.14 provides the procedure for holding a hearing on a petition for custody, and requires
the court to “determine custody of the newborn based on the newborn’s best interest.”
MCL 712.14(1).
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published, or sets any time limit on such an advance filing. Pace, 499 Mich at 7. The word “not”
is a function word that serves to “make negative of group of words or a word”—in this case, the
words “later than 28 days after” notice of surrender has been published. Merriam-Webster’s
Collegiate Dictionary (11th ed), p 848. The word “later” means “at some time subsequent to a
given time; [s]ubsequently, afterward.” Id. at 703. The plain and ordinary meaning of the phrase
“not later than 28 days after” in MCL 712.10(1) therefore simply means a petition may not be filed
more than 28 days after the publication of the notice of surrender.6 Consequently, the Ottawa
County complaint was not only a petition for custody of Doe that was filed in the correct location,
but it was also timely filed.
MCL 712.17(3) provides that “[i]f the nonsurrendering parent has not filed a petition for
custody of the newborn within 28 days of notice of surrender of a newborn,” then “the child placing
agency with authority to place the newborn shall immediately file a petition with the court to
determine whether the court shall enter an order terminating the rights of the nonsurrendering
parent.” (Emphasis added). MCL 712.17(4) further requires the court to have a hearing on any
such petition, at which child placing agency “shall present evidence that demonstrates that the
surrendering parent released the newborn and that demonstrates the efforts made by the child
placing agency to identify, locate, and provide notice to the nonsurrendering parent.”
MCL 712.17(5) states that “[i]f the court finds by a preponderance of the evidence that the
surrendering parent has knowingly released his or her rights to the child and that reasonable efforts
were made to locate the nonsurrendering parent and a custody action has not been filed, the court
shall enter an order terminating parental rights of the surrendering parent and the nonsurrendering
parent under this chapter.” (Emphasis added).
Because petitioner had properly and timely filed a petition for custody of Doe, the petition
to terminate petitioner’s parental rights filed by respondent in this case was filed in violation of
MCL 712.17(3), and the Kalamazoo court’s subsequent entry of a termination order was in
violation of MCL 712.17(5). This was plain error affecting substantial rights. Utrera, 281 Mich
App at 8-9. While respondent and the Kalamazoo court may not have been aware, at the time of
the termination order, that petitioner had filed a petition for custody, the fact remains that he had,
and the actions of respondent and the Kalamazoo court were therefore in error.7 Id. In any event,
6
We note also that the Legislature chose to require the surrendering parent to file a petition
“within” 28 days after surrender, but to require the nonsurrendering parent to file a petition “not
later than” 28 days after the notice was filed. The use of different terms suggests different
meanings. United States Fidelity Ins & Guaranty Co v Mich Catastrophic Claims Ass’n (On
Rehearing), 484 Mich 1, 14; 795 NW2d 101 (2009). While it would be illogical to give effect to
a petition for custody filed by the surrendering parent that was filed before the surrender, because
the act of surrender itself necessarily indicates a present desire to give up custody of the child, the
same is not true of a nonsurrendering parent, who may be attempting, as seems to be the case here,
to secure his or her parental rights against the possibility of a future surrender of a child by the
other parent.
7
We note that MCL 712.17(4) requires a child placing agency to present evidence at the
termination hearing concerning its efforts to identify, locate, and provide notice to the
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the Kalamazoo court had been made aware of the divorce/custody action well before it decided
petitioner’s motion for reconsideration, and therefore plainly erred by denying it. Id.8
Miller does not compel a different result. In a subsequent hearing on petitioner’s motion
to unseal the adoption file, the Kalamazoo court stated that Miller prevented a non-surrendering
husband from asserting parental rights once they had been terminated in a proceeding under the
SNDL and that a husband in that situation “would be without parental rights to assert—to disrupt
an adoption.” This analysis neglects a critical portion of our holding in Miller. In Miller, this
Court indeed concluded that “the Safe Delivery of Newborns Law applies to the husband of a
surrendering mother in that the husband may not later assert parental rights.” Miller, 322 Mich
App at 500. But it did so in the context of no petition for custody having been filed. Id. at 506.
This Court described the procedure that should be followed when the husband of a surrendering
mother does file such a petition, and contrasted that with what happened in the case before it:
If the husband had filed a petition for custody of the children within 28 days of
published notice of the surrender, see MCL 712.10(1), he would have been required
to submit to a DNA test to determine paternity, see MCL 712.11(1). If the testing
established that he was not the children’s biological father, the trial court would
have dismissed his petition for custody. See MCL 712.11(5). This dismissal would
be consistent with the rules governing the presumption of legitimacy. The DNA
test would have demonstrated that the children were not the issue of the marriage,
thereby defeating the presumption of legitimacy. See 722.711(a); Barnes, 475
Mich. at 703, 718 N.W.2d 311. On the other hand, if the husband of the
surrendering mother was the biological father, the trial court would have held a
best-interest hearing to determine the children’s custody. See MCL 712.14. If the
children’s biological father never claimed paternity or petitioned for custody, the
child placing agency would have had to “immediately file a petition with the court
to determine whether the court shall enter an order terminating the rights of the
nonsurrendering parent.” MCL 712.17(3).
In this case, no one claimed paternity. If the trial court terminates the
parental rights of the nonsurrendering parent and the husband of the surrendering
mother later seeks to assert his parental rights, he would have to demonstrate that
he was not the biological father to show that the order terminating parental rights
did not apply to him. However, in doing so, he would be defeating the presumption
nonsurrendering parent; it does not require a child placing agency to present evidence regarding
whether a petition for custody has been filed. This suggests to us that the requirement of
MCL 712.17(5) that the trial court make certain findings “by a preponderance of the evidence”
was not intended to require the trial court to make a finding about whether a custody action had
been filed; rather, the phrase in MCL 712.17(5) that “a custody action has not been filed” sets forth
a prerequisite that must be fulfilled before the court is authorized to terminate parental rights.
8
We also note that respondent appears to have been aware (by virtue of petitioner’s January 16,
2019 subpoena) of petitioner’s custody interest before the Kalamazoo court entered its
February 12, 2019 adoption order.
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of paternity, and he would be without parental rights to assert to disrupt an adoption.
Accordingly, the termination proceedings under the Safe Delivery of Newborns
Law apply to the legal father of the children. [Id. (emphasis added).]
In other words, Miller held generally that the termination of the parental rights of a
nonsurrendering husband under the SDNL is valid; it did not hold that nonsurrendering parents
were prohibited from challenging whether those procedures were in fact followed correctly. As
we have discussed, in this case they were not. Miller does not prevent us from granting relief to
petitioner.
III. MOTION TO UNSEAL ADOPTION FILE
Petitioner also argues that the Kalamazoo court erred by denying his motion to unseal the
adoption file. We conclude that further proceedings are warranted in light of our determination
that petitioner’s parental rights were terminated erroneously. We review issues of statutory
interpretation de novo. Eggleston v Bio–Med Applications of Detroit, Inc, 468 Mich at 32. We
review a trial court’s findings of fact for clear error. MCR 2.613(C).
MCL 712.2a(1) provides that “[a] hearing under this chapter is closed to the public. A
record of a proceeding under this chapter is confidential, except that the record is available to any
individual who is a party to that proceeding.” MCL 712.2a(2) further states that “[a]ll child placing
agency records created under this chapter are confidential except as otherwise provided in the
provisions of this chapter.”
In this case, the Kalamazoo court held that petitioner could not challenge the termination
of his parental rights under Miller. As discussed, this holding was erroneous (although, in fairness
to the court, it was only in his motion for reconsideration that petitioner specifically raised the
issue of whether the Ottawa court complaint constituted a petition for custody under the SDNL).
The court also stated that it had reviewed the sealed file and found that “everything [respondent]
gave to this Court[,] Ottawa County has already given to you, just redacted with the third –
innocent third parties names on it and the information about them.” The court added: “So I really
don’t think our files would have anymore to give you. You’ve got the orders, you have submitted
them to us and we’ve got the information that Catholic Charities already gave you. That’s all that
is there.”
Petitioner’s stated purpose in seeking to have the adoption records unsealed was to permit
him to challenge the efforts made by respondent to identify and locate him, in order to provide him
with notice of Doe’s surrender. The court found that petitioner had been given all of the evidence
it had relied upon in making its determination that petitioner had been given adequate notice of
Doe’s surrender. It is unclear to us whether the court’s statements were a specific factual finding,
or more in the nature of reassurance to petitioner. And it is possible that its failure to grant
petitioner’s motion is harmless error. MCR 2.613(A). However, as we have discussed, there was
a legal error concerning the termination of petitioner’s parental rights. That being the case, we
conclude that the Kalamazoo court’s orders denying petitioner’s motion and denying
reconsideration should be vacated. On remand, the Kalamazoo court should consider petitioner’s
request (if petitioner renews it) in the context of our holding regarding the termination of
petitioner’s parental rights.
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Relatedly, we note that petitioner has argued at various points in the proceedings that the
efforts undertaken by respondent to identify and locate him, in order to provide him with notice of
Doe’s surrender, were not reasonable, and that his motion to unseal the records in this case was
part of his effort to challenge the reasonableness of those efforts. In light of our holding in Section
II of this opinion, we could opt not to address the reasonableness of respondent’s efforts. However,
we believe it important to note our disagreement with the Kalamazoo court’s apparent
interpretation of MCL 712.7 as providing that publication of a notice, for one day, which merely
generically states the newborn’s date of delivery and hospital location, in a newspaper published
in a county in which neither parent resides, constitutes “reasonable efforts to identify, locate, and
provide notice of the surrender of the newborn to the nonsurrendering parent.” MCL 712.7(f). We
interpret the provision differently. MCL 712.7(f) provides that the child placing agency shall:
Within 28 days, make reasonable efforts to identify, locate, and provide notice of
the surrender of the newborn to the nonsurrendering parent. The child placing
agency shall file a written report with the court that issued the order placing the
child. The report shall state the efforts the child placing agency made in attempting
to identify and locate the nonsurrendering parent and the results of those efforts. If
the identity and address of the nonsurrendering parent are unknown, the child
placing agency shall provide notice of the surrender of the newborn by publication
in a newspaper of general circulation in the county where the newborn was
surrendered.
This provision, by its plain language, see Pace, 499 Mich at 7, does not indicate that publication
of notice of surrender satisfies an agency’s duty to make reasonable efforts to identify, locate, and
provide notice to a nonsurrendering parent. To the contrary, the plain language of the statute
requires the agency to make reasonable efforts to identify, locate, and provide notice of surrender
to the nonsurrendering parent, and to file a written report identifying those efforts. Only then, if,
despite those efforts, the identity of the non-surrendering parent remains unknown, does the statute
provide for publication in a newspaper of general circulation. 9 Yet, respondent’s report to the
Kalamazoo court was devoid of any mention of any efforts taken to identify and locate petitioner,
other than the publication itself. Despite being told that KGK was married, there is no evidence
that respondent attempted to locate, for example, marriage records, or inquire any further into her
husband’s identity. Respondent filed an essentially blank, unsigned Voluntary Release For
Adoption of Surrendered Newborn by Parent form with the court. Although respondent’s petition
to terminate petitioner’s parental rights claimed that “reasonable efforts were made to identify and
locate the father and publication was made in a newspaper of general circulation in the county
where the newborn was surrendered and no one responded” (emphasis added), it appears that
respondent undertook no efforts apart from the publication itself. Simply put, nothing in the
language of MCL 712.7(f) can be read as providing that publication alone constitutes reasonable
efforts, or that such a nondescript and de minimis notice as the one in this case, or one that was
9
The statute does not specify the contents of the notice of publication, or the duration of
publication.
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published for such a brief time, should be accepted by a trial court as adequately evidencing
reasonable efforts.
In the context of termination of parental rights proceedings under the Juvenile Code,
exactly how thorough and extensive efforts must be in order to be considered “reasonable” has not
been defined; rather, reasonable efforts must be tailored to the particular facts of the case, and are
to be evaluated on a case-by-case basis. See, e.g., In re Hicks/Brown, 500 Mich 79, 89-90; 893
NW2d 637 (2017). In this case, additional efforts on the part of respondent might have discovered
the divorce/custody proceedings in the Ottawa court, and the existence of a restraining order
prohibiting KGK from doing exactly what she did in surrendering Doe. Based on the record before
us, respondent’s efforts in this case appear to us to have fallen woefully short of what is
“reasonable.”
We vacate the Kalamazoo court’s denial of petitioner’s motion to unseal the adoption
records. We reverse the court’s determination that petitioner’s parental rights as a nonsurrendering
parent should be terminated, and vacate the order terminating those rights. We remand for further
proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Mark T. Boonstra
/s/ Jane M. Beckering
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