In Re CAW

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________

FILED JULY 23, 2003

In re CAW,

___________________________

FAMILY INDEPENDENCE AGENCY,

Petitioner-Appellant,

v No. 122790

LARRY HEIER,

Appellee,

and

DEBORAH ANN WEBER AND ROBERT

RIVARD,

Respondents.

____________________________________

BEFORE THE ENTIRE COURT

TAYLOR, J.

This Court granted leave to appeal limited to the issue

whether a putative father has standing to intervene in a child

protective proceeding under the juvenile code1 in which the

1
MCL 712A.1 et seq.

child involved has a legal father. The Court of Appeals

determined that the putative father had standing. We reverse

the decision of the Court of Appeals and hold that the

putative father did not have standing to intervene. We remand

to the Court of Appeals to consider appellee’s remaining

issues.

I

A child protective petition alleging abuse and neglect,

brought pursuant to MCL 712A.2(b), was filed on July 31, 1998

on behalf of three minor children, including “CAW.” The

petition stated that Robert Rivard was the legal father of the

children, but might not have been the biological father of

“any or all of the children.” In particular, on the issue of

paternity, the petition indicated that “CAW” was the child of

Larry “Hier.”2

Accepting the petition’s assertion that Heier’s address

was unknown, the court, to give Heier notice of the child

protective proceedings scheduled for August 19, 1998, issued

an order for alternative service by publication.3

At the August 19, 1998, hearing, at which Heier did not

2
This is apparently a misspelling of Larry Heier’s last

name.

3
The notice was published with two errors: Heier’s name

was misspelled in the same manner as in the petition, and the

date of the hearing was incorrectly stated as August 9.

2

appear, the court decided that the children should remain in

foster care. Later, at a pretrial conference on September 3,

1998, Rivard and Weber asserted that Rivard was the father of

all three children. The court, after questioning Rivard and

Weber, accepted this as fact and the petition was amended

accordingly, including deleting any further reference to

Heier. From this point on, the court and the parties in all

proceedings referred to Rivard as the children’s father.

In December 1999, well over a year later, progress toward

reunification of the family was unsatisfactory. A petition

was filed by the Family Independence Agency to terminate

Rivard and Weber’s parental rights pursuant to MCL 712A.19b.4

The proceedings that ensued culminated in an order terminating

Rivard and Weber’s parental rights on November 13, 2000.

On January 25, 2001, Weber appealed the termination

adjudication to the Court of Appeals.5 At the same time,

Heier filed a motion in the trial court seeking to intervene

in the child protective proceeding concerning CAW. Heier

4
Specifically, MCL 712A.19b(3)(a)(ii) (desertion, for

Rivard only), (3)(c)(i) (conditions that led to adjudication

continue to exist), (3)(g) (failure to provide proper care and

custody), and (3)(j) (reasonable likelihood that the child

will be harmed if returned to the parent’s home).

5
Rivard did not appeal the termination of his parental

rights, and the Court of Appeals affirmed the termination of

Weber’s parental rights. In re Weber, minors, unpublished

memorandum opinion, issued October 26, 2001 (Docket No.

232206).

3

alleged that he was the biological father of CAW and had

standing on that basis. He also argued, in essence, that the

trial court had failed to provide him with adequate notice of

the child protective proceedings and that he was entitled to

notice pursuant to the United States Constitution regardless

of whether the statutes or court rules gave him standing. In

asserting that claim, he gave the court factual information

regarding his relationship with the child both before and

during the child protective proceedings in support of his

constitutional claims.

The trial court denied Heier’s motion to intervene on the

ground that Heier lacked standing because CAW had a legal

father. The court reasoned:

It is clear that you cannot have a legal

father and a punitive [sic] father. In this case

we did have a legal father. [CAW] was born–

conceived and born during the marriage between Miss

Weber and Mr. Rivard. There has never been any

dispute whether he was or was not the legal father.

. . . [It had been determined that (Rivard) was the

legal father, and once that determination was made

all proceedings were geared toward (Rivard’s)

rights to all three children.]

On appeal, Heier argued, and the Court of Appeals agreed,

that the termination of Rivard’s legal rights at the

conclusion of the child protective proceeding was effectively

a finding “by judicial notice or otherwise” that CAW was not

the issue of the marriage. A divided panel of the Court of

Appeals, agreeing only that it was troubling that the law

4

should be interpreted to mean that Heier had no opportunity to

establish his paternity, reversed the order of the trial

court. The majority held that there was standing under the

juvenile code for putative fathers. 253 Mich App 629, 631;

659 NW2d 657 (2002). It reasoned that even though “Rivard may

still meet one or several of the definitions listed for

‘father’ in MCR 5.903(A)(4),” because his rights were now

terminated he no longer had any legal rights as father. 253

Mich App 640. This, the majority concluded, opened the door

for the putative father to have standing to establish his

paternity. Id. at 644. The Court, having resolved the matter

favorably to Heier on the basis of the statute and court rules

at issue, determined it unnecessary to deal with the

constitutional issues Heier had raised. Id. at 633.

We granted leave to appeal limited to the issue whether

a putative father has standing to intervene in a child

protective proceeding under the juvenile code in which the

subject child has a legal father.

II

This is a question involving the construction of a

statute, which we review de novo. Robertson v DaimlerChrysler

Corp, 465 Mich 732, 739; 641 NW2d 567 (2002).

III

In this matter, Larry Heier, claiming paternity of CAW,

5

sought to intervene in child protective proceedings brought

pursuant to MCL 712A.2(b)(1) and (2).6 Intervention in such

a proceeding is controlled by MCR 5.921(D). This court rule

states that a putative father is entitled to participate only

“[i]f, at any time during the pendency of a proceeding, the

court determines that the minor has no father as defined in

MCR 5.903(A)(4) . . . .”

As relevant here, MCR 5.903(A) states:

(A) ... When used in this subchapter, unless

the context otherwise indicates:

(1) “Child born out of wedlock” means a child

conceived and born to a woman who is unmarried from

the conception to the birth of the child, or a

child determined by judicial notice or otherwise to

have been conceived or born during a marriage but

who is not the issue of that marriage.

6
In relevant part, MCL 712A.2(b) gives the court

jurisdiction in proceedings concerning a juvenile:

(1) Whose parent or other person legally

responsible for the care and maintenance of the

juvenile, when able to do so, neglects or refuses

to provide proper or necessary support, education,

medical, surgical, or other care necessary for his

or her health or morals, who is subject to a

substantial risk of harm to his or her mental well­
being, who is abandoned by his or her parents,

guardian, or other custodian, or who is without

proper custody or guardianship. . . .

* * *

(2) Whose home or environment, by reason of

neglect, cruelty, drunkenness, criminality, or

depravity on the part of a parent, guardian,

nonparent adult, or other custodian, is an unfit

place for the juvenile to live in.

6

 * * *

(4) “Father” means:

(a) 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 essence of this rule is that a child has a father if

his mother is married at any time during gestation unless the

court determines ”by judicial notice or otherwise” that the

child was not “the issue of the marriage.”

In this case, CAW had a married mother and father,

Deborah Ann Weber and Robert Rivard, during the gestation

period. Moreover, no finding was ever made by the court that

CAW was not the issue of the marriage. The termination of

Rivard’s parental rights was not a determination that CAW was

not the issue of the marriage and, thus, that Rivard was no

longer his father; rather, it was only a determination that

Rivard’s legal rights were terminated. Thus, the requirements

of the court rule to give Heier, a putative father, standing

were not met.

Finally, in the Court of Appeals opinion, as well as the

dissent, there is much angst about the perceived unfairness of

not allowing Heier the opportunity to establish paternity. We

are more comfortable with the law as currently written. There

is much that benefits society and, in particular, the children

of our state, by a legal regime that presumes the legitimacy

7

of children born during a marriage. See Serafin v Serafin,

401 Mich 629, 636; 258 NW2d 461 (1977). It is likely that

these values, rather than failure to consider the plight of

putative fathers who wish to invade marriages to assert

paternity claims, motivated the drafters of the rules and

statutes under consideration.

IV

We reverse the decision of the Court of Appeals because

the circuit court properly denied Heier’s motion to intervene.

We remand to the Court of Appeals to address Heier’s

constitutional issues.

Clifford W. Taylor

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

8

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

SUPREME COURT

In re CAW

____________________________________

FAMILY INDEPENDENCE AGENCY,

Petitioner-Appellant,

v No. 122790

LARRY HEIER,

Appellee,

and

DEBORAH ANN WEBER AND ROBERT

RIVARD,

Respondents.

____________________________________

WEAVER, J. (concurring).

I concur in the majority’s reversal of the decision of

the Court of Appeals. Larry Heier, the putative father, does

not have standing to intervene in this child protective

proceeding because there is no previous determination by the

circuit court that CAW was born out of wedlock. I write

separately because the majority’s statement that it is “more

comfortable with the law as currently written,” ante at 8,

lacks any force in the resolution of this case. Consideration

and rejection of the Court of Appeals reasoning provides a

better approach to, and context for, understanding why a

putative father does not have standing to intervene in a child

protective proceeding unless the circuit court has previously

determined that the child was born out of wedlock.

The juvenile-code provisions addressing child protective

proceedings do not list putative fathers among the individuals

who must be served with notice.1 The Michigan Court Rules,

however, do afford the court the discretion under defined

circumstances to order that notice be served on a putative

father. MCR 5.921(D) provides, “[i]f, at any time during the

pendency of a proceeding, the court determines that the minor

has no father as defined in MCR 5.903(A)(4), the court may, in

its discretion, take appropriate action as described in this

subrule.”2

A threshold requirement of MCR 5.291(D), before notice

may be served on a putative father, is a determination by the

1
MCL 712A.19(5) and MCL 712A.19b(2).

2
If it is determined that the minor child has no “father”

as that term is defined by the court rules, then MCR

5.921(D)(1) provides:

The court may take initial testimony on the

tentative identity and address of the natural

father. If the court finds probable cause to

believe that an identifiable person is the natural

father of the minor, the court shall direct that

notice be served on that person . . . .

2

court that the minor has no father as defined by MCR

5.903(A)(4). In pertinent part, MCR 5.903(A)(4) defines a

“father” as “a man married to the mother at any time from a

minor’s conception to birth unless the minor is determined to

be a child born out of wedlock . . . .” MCR 5.903(A)(1)

defines a “child born out of wedlock” as

a child conceived and born to a woman who is

unmarried from the conception to the birth of the

child, or a child determined by judicial notice or

otherwise to have been conceived or born during a

marriage but who is not the issue of that marriage.

This Court has not addressed the standing of a putative father

in light of this court rule.

In Girard v Wagenmaker, 437 Mich 231, 242-243; 470 NW2d

372 (1991), however, this Court interpreted a similarly worded

definition of “child born out of wedlock” to determine

whether, and when, a putative father had standing to file a

complaint pursuant to Michigan’s Paternity Act, MCL 722.711 et

seq. The act defines in part “child born out of wedlock” as

a child that “the court has determined to be a child born or

conceived during a marriage but not an issue of that

marriage.” MCL 722.711(a). Girard, supra at 242 (citations

omitted) reasoned:

“[H]as determined” is the present perfect

tense of the verb “determine.” The present perfect

tense generally “indicates action that was started

in the past and has recently been completed or is

continuing up to the present time” . . . .

3

Girard held that, under the plain terms of the Paternity Act,

a putative father did not have standing “to establish

paternity of a child born while the mother was legally married

to another man without a prior determination that the mother’s

husband is not the father.” Girard, supra at 235. Girard

grounded its literal reading of the statute in the fact that

it comported with “the traditional preference for respecting

the presumed legitimacy of a child born during marriage.” Id.

at 246, citing Serafin v Serafin, 401 Mich 629, 636; 258 NW2d

461 (1977).

The majority of the Court of Appeals attempted to

distinguish Girard, concluding that the definition of “child

born out of wedlock” in MCR 5.903 is “less restrictive” than

the Paternity Act definition. 253 Mich App 637. However, the

definition of “child born out of wedlock” in MCR 5.903(A)(1)

varies from the definition of the same term in the Paternity

Act only in its additional provision that a child may be

determined to be born out of wedlock “by judicial notice or

otherwise” and in its use of the past tense of the verb “to

determine,” rather than the present perfect tense of that

verb.

The provision that the determination may be made by

judicial notice does not affect when the determination must be

made in order to permit standing. Moreover, the use of the

4

past tense makes even clearer the fact that the determination

must be made by the court before a putative father may be

accorded standing in a child protective proceeding. Because

Weber was married to Rivard from the time of conception to the

birth of CAW, and because CAW was not “determined by judicial

notice or otherwise to have been conceived or born during a

marriage but . . . not the issue of that marriage” pursuant to

MCR 5.903(A)(1),3 the provisions for notice to a putative

father in MCR 5.921(D) were not applicable.4

For these reasons, I concur in the result of the majority

opinion. I also concur in the remand to the Court of Appeals

to address Heier’s argument that the standing requirements

deny him due process of law by depriving him of an alleged

established parental relationship with CAW.

Elizabeth A. Weaver

3
Recent amendments to MCR 5.903, issued February 4, 2003,

were effective May 1, 2003 as MCR 3.903.

4
The Court of Appeals also premised its reversal of the

family division of the circuit court’s denial of Heier’s

motion to intervene in part on the termination of Rivard’s

parental rights. 253 Mich App 640. While purporting to rely

on the court rules, the Court of Appeals majority actually

contradicts them. The authority of the family division of the

circuit court to determine the rights of a putative father

derives from a determination that a child was born out of

wedlock, not the termination of the legal father’s rights.

5
 S T A T E O F M I C H I G A N

SUPREME COURT

In re CAW, minor,

___________________________________

FAMILY INDEPENDENCE AGENCY,

Petitioner-Appellant,

v No. 122790

LARRY HEIER,

Appellee,

and

DEBORAH ANN WEBER and ROBERT

RIVARD,

Respondents.

___________________________________

KELLY, J. (concurring in part and dissenting in part).

I agree with the result reached by the majority in this

case. However, I disagree with the majority's reliance on MCR

5.921(D). I also disagree with its glancing reliance on the

policy underlying the Paternity Act1 to support its decision.

1
MCL 722.711 et seq.

 I. MCR 5.921(D) DOES NOT ADDRESS STANDING PER SE

The majority spends little time analyzing MCR 5.921 and

makes no effort to address the rule's relation to the

requirements for intervention. Nevertheless, it holds that

MCR 5.921 controls whether Mr. Heier has standing in this

case. This conclusion is erroneous.

In interpreting and applying court rules, we apply the

standard rules of statutory construction. Accordingly, our

primary purpose is to accurately interpret the meaning of the

language of a rule. Grievance Administrator v Underwood, 462

Mich 188, 193-194; 612 NW2d 116 (2000).

Notably, the text of MCR 5.921 does not explicitly

address standing to intervene. Rather, it designates the

persons who must be given notice before child protective

proceedings can go forward. In this respect, the rule is no

different from others requiring notice be given to interested

parties.

In general, notice is not required for persons who merely

have an interest that might be affected by the outcome of the

case. Rather, a person is allowed to intervene if (1) he

timely claims an interest that is related to the subject of

the proceedings, (2) the disposition of the action may impair

his ability to protect his interest, and (3) his interest is

inadequately represented by the existing parties. MCR 2.209.

2

 However, in listing the categories of persons who require

notice, MCR 5.921 does not state that all others are

disallowed from inserting themselves into a termination

dispute. Accordingly, I believe that the majority is

incorrect in holding that the rule precluded Mr. Heier's

intervention in this matter.

II. THE MAJORITY ’S POLICY ARGUMENT IS ILL -CONCEIVED

Although the majority rests its holding primarily on the

notion that Mr. Heier’s claims are barred by MCR 5.921(D), it

has attempted to fortify its reasoning by alluding to public

policy. It asserts that the public policy considerations

underlying the enactment of the Paternity Act also underlie

child protective proceedings. Again, I disagree.

The public policy objective of the Paternity Act is to

ensure that all children are provided with support and

education. Crego v Coleman, 463 Mich 248, 269; 615 NW2d 218

(2000), citing Whybra v Gustafson, 365 Mich 396, 400; 112 NW2d

503 (1961). The objective would be frustrated if a "legal"

father were able to abandon his duty of support as the result

of unfounded allegations of paternity. Hence, before an

action can be sustained under the Paternity Act, a

determination must be made that the child in question was born

out of wedlock, MCL 722.711(a); Girard v Wagenmaker, 437 Mich

231; 470 NW2d 372 (1991).

3

 By contrast, the purpose of termination proceedings under

the juvenile code is to assure a child of care, guidance, and

control conducive to his welfare and the interest of the

state. MCL 712A.1(3). Accordingly, when a child is removed

from his parents, the court must provide him with care that

approximates the care his parents should have provided. Id.

Thus, the two acts serve different masters. A person must not

blindly assume that a single public policy consideration

fulfills their distinct purposes.

Similarly, the majority's reliance on our opinion in

Serafin v Serafin2 is unsuited to this case. Serafin did not

address the statutes or court rules at issue here. Instead,

it held that Lord Mansfield's Rule, a common-law rule of

evidence, was no longer viable in Michigan.

It is true that Serafin observed that children remain

"guarded by [a] still viable and strong . . . presumption of

legitimacy" that can be rebutted only by clear and convincing

evidence. Serafin, 401 Mich 636, citing Maxwell v Maxwell, 15

Mich App 607, 617; 167 NW2d 114 (1969). Yet, Serafin goes on

to rebuke a too dogged pursuit of the presumption of

legitimacy rule:

"If the function of a court is to find the

truth of a matter so that justice might be done,

then a rule which absolutely excludes the best

2
401 Mich 629; 258 NW2d 461 (1977).

4

 possible evidence of a matter in issue rather than

allow it to be weighed by the trier of fact must

necessarily lead to injustice. Further, when a

court voluntarily blindfolds itself to what every

citizen can see, the public must justifiably

question the administration of law to just that

extent." [Serafin, supra at 635-636, quoting Davis

v Davis, 507 SW2d 841, 847 (Tex Civ App, 1974),

rev'd on other grounds 521 SW2d 603 (1975).]

In accordance with that rationale, I do not agree that

the presumption of legitimacy rule has persuasive force in

this case. Certainly, the majority would not advance the

argument that this rule protects the sanctity of CAW's family

unit. That proposition is absurd in the context of

termination proceedings, the object of which is to destroy any

familial bond between a child and the parent whose rights are

being terminated.

Similarly, the policy cannot be advanced on the basis

that it furthers the goals expressed in the juvenile code.

Rigid application of the presumption of legitimacy would

frustrate the code's preference for placing a child with his

parent, if the parent is willing and able to care for him.

For example, if Heier were a fit biological parent of CAW,

rigid application of the presumption relied on by the majority

would prevent the court from placing CAW with him.

III. RESOLUTION

Ultimately, the question here is whether the circuit

court was correct in denying Mr. Heier’s petition to

5

intervene. The answer comes from a comprehensive reading of

the relevant court rules.

MCR 5.901 provides:

(A) Scope. The rules in this subchapter, in

subchapter 1.100 and in rule 5.113, govern practice

and procedure in the family division of the circuit

court in all cases filed under the Juvenile Code.

Other Michigan Court Rules apply to such juvenile

cases in the family division of the circuit court

only when this subchapter specifically provides.

(B) Application. Unless the context otherwise

indicates:

(1) MCR 5.901-5.927, 5.980 and 5.991-5.993

apply to delinquency proceedings and child

protective proceedings;

* * *

(4) MCR 5.961-5.974 apply only to child

protective proceedings[.]

None of these provisions permits intervention in child

protective proceedings. Nor does any of them reference

another court rule that permits it. But, in the end, Mr.

Heier can identify no court rule under which he could

intervene and, as a consequence, the trial court was required

to deny his motion.

IV. CONCLUSION

While, applying the court rules, the trial court did not

err in denying Mr. Heier's motion to intervene in the child

protective proceedings, I am troubled by the result.

I believe our court rules should be amended to allow a

6

putative father to intervene in a child protective proceeding

if he is able to raise a legitimate question about paternity.3

DNA testing now can determine paternity with relative ease,

speed, and accuracy. The juvenile code presumes that a

child's interests are best served when he is in the care of a

fit parent. These considerations support a rule change and

would give putative fathers the opportunity for a fair hearing

in the future.

Marilyn Kelly

3
I recognize that it may be necessary for the Legislature

to amend the juvenile code to allow intervention in these

proceedings. Accordingly, to the extent necessary, I would

also solicit the Legislature to amend the juvenile code to

provide for such intervention.

7

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

SUPREME COURT

In re CAW,

_____________________________________/

FAMILY INDEPENDENCE AGENCY,

Petitioner-Appellant,

v No. 122790

LARRY HEIER,

Appellee,

and

DEBORAH ANN WEBER and ROBERT RIVARD,

Respondents.

___________________________________

CAVANAGH, J. (dissenting).

Because I disagree with the majority’s conclusion that

our court rule deprives the putative father of standing to

intervene, I must respectfully dissent. I would hold, for the

reasons stated in my dissent in Girard v Wagenmaker, 437 Mich

231, 253-278; 470 NW2d 372 (1991), that the Legislature

intended to allow putative fathers an opportunity to intervene

1

in child protective proceedings. Hence, the majority errs by

applying MCR 5.921(D) in a manner that prohibits standing.

As stated in my Girard dissent, nothing in our statutes

or court rules compels the conclusion that a putative father

must first establish paternity in a separate legal proceeding.

To so hold perpetuates the errors caused by the majority’s

position in Girard, while denying parents the right to develop

and maintain relationships with their children.

Though my position in Girard adequately rebuffs the

majority’s decision today, one need not focus exclusively on

the rights of the putative father; the child’s rights also

demand this result.1 Courts making paternity and custody

determinations have the authority to inquire about a child’s

putative father or parent in fact. Without it, a court would

be deprived of the means necessary to ensure that a child’s

best interests and due-process rights are protected.

1
See, e.g., In re Doe, 254 Ill App 3d 405, 410-411; 627

NE2d 648 (1993):

Fortunately, the time has long past when

children in our society were considered the

property of their parents. Slowly, but finally,

when it comes to children even the law has rid

itself of the Dred Scott mentality that a human

being can be considered a piece of property

"belonging" to another human being. To hold that a

child is the property of his parents is to deny the

humanity of the child. Thus, in the present case

we start with the premise that . . . [the child]

"belongs" to no one but himself.

2

 Few would disagree that an extremely self-reflective and

understanding legal father could process feelings of

rejection, anger, or betrayal while continuing to lovingly

nurture a child sired by another man. However, the majority

assumes that all legal fathers have that extraordinary

capacity and that the presence of putative fathers in their

children’s lives would, in no way, prove beneficial if

paternity had not been established at an earlier legal

proceeding.

For these reasons, I must respectfully dissent.

Michael F. Cavanagh

3