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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re LRH, Minor. March 12, 2015

No. 322981

Macomb Circuit Court Family Division

LC No. 2013-019340-AD

Before: M ARKEY

, P.J., and M URRAY and B ORRELLO , JJ.

P ER C URIAM

.

Respondent appeals the trial cour t’s order terminating his par ental rights to the minor child pursuant to § 39 of the Adoption Code, MCL 710.39. We af firm.

Before a child can be adopted, the parents must release their parental rights, MCL 710.28(1)(a), or consent to the adoption, MCL 710.43(1)(a). If a child is born out of wedlock and the release or consent of the father cannot be obtained, th e child cannot be adopted until the father’s parental rights are terminated. MCL 710.31(1). The m other of the child can petition the court for a hearing “to determine whether the child was born out of wedlock, to determine the identity of the father, and to determine or terminate the right s of the father” under § 37 or § 39 of the Adoption Code. MCL 710.36(1). If the putative father is i dentified and he is interested in custody of the child, the court mu st determine his interests un der § 39. MCL 710.39(1).

MCL 710.39 “classifies putative fathers into two groups, each having a different level of legal protection for their parental rights.” In re BKD , 246 Mich App 212, 216; 631 NW2d 353 (2001). The statute provid es, in relevant part:

(1) If the putative father doe s not come within the provisions of subsection (2), and if the putative father appears at the hearing and requ ests 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 chi ld 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 putativ e father, the court shall terminate his rights to the child.

(2) If the putative father has established a custodial relatio nship with the child or has provided substantia l and regular support or care i n accordance with the putative father's ability to provide support or care for th e mother during pregnancy or for either mother or child after the child’s birthduring the 90 days-2- 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.

Section 39(2) requires the court to consider two different typ es of involvement by the putative father: (1) whether he established a custodial relati onship with the child, or (2) whether he provided substantial and regular support or care commensurat e with his ability (a) for the mother during her pregnancy, or ( b) for the mother or child aft er the child’s bir th during the 90 days before he was served with notice of the hearing. If the p utative father has the requisite custodial or supportive relationship, he is entitled to the sam e legal protection of his parental rights as a legal father, In re BKD, 246 Mich App at 216, and his parental rights can only be terminated under § 51(6) of the Adoption Code, MCL 710.51(6), o r under § 19b of the Juvenile Code, MCL 712A.19b. MCL 710.39(2). The trial court determined that § 39(2) was not applicable and terminated responde nt’s parental rights under § 39(1).

Respondent first raises a claim of procedural error. The tria l court conducted the hearing over two days. At the end of the first day, it indicated that it would determine whether respondent came within the provisions of § 39(2), but it did no t place a ruling on the record. At the end of the second day, the trial court took the matter unde r advisement, following which it determined and terminated respondent’s parental rights. Respon dent contends that the trial court erred in continuing the hearing without first determining wheth er § 39(2) applied. Because respondent did not request a ru ling on his status or object to the trial court’s failure to determine his status before proceeding with the second hearing, this issu e is not preserved. “Review of an unpreserved error is limited to determining whether a plain err or occurred that affected substantial rights.” Rivette v Rose-Molina , 278 Mich App 327, 328; 750 NW2d 603 (2008).

As discussed earlier, if the put ative father has the requisite custodial or supportive relationship under § 39(2), his rights cannot be terminated und er § 39; therefore, it is unnecessary to consider whether granting him custody of the chi ld is in the child’s best interests. If the putative father does not come under § 39(2) but requests custody of the child, then the court must determine his fitness and ability to be a parent to the child and whether granting him custody of the child is in the c hild’s best interests. Therefo re, it is clear that the trial court must first determine the putative father’s status and find that § 39 (2) is inapplicable before it determines the child’s best interests. But nothing in the Adop tion Code requires the trial court to conduct a bifurcated hearing and make an express determination regarding the putative father’s status before taking proofs regar ding the child’s best interest s. Rather, the court is authorized to conduct “a hearing” to determine or terminate the putative fath er’s rights, ascertain whether the child was born out of wedlock, and to determine the identity of the child’s father. MCL 710.36(1). Under these facts, respondent has not shown a plainerror. Further, respondent has

not shown that his substantial ri ghts were affected by any erro r because the trial court did in fact address § 39(2) and found that it was not applicable before it addressed and decided the child’s best interests. Therefore, re spondent is not entitled to relie f on the basis of this unpreserved

issue.

Respondent next takes issue with the trial court’s determinati on that § 39(2) was inapplicable. The trial court’s determination whether § 39(1) or § 39(2) is applicable is a question of law that we review de novo on appeal. In re RFF , 242 Mich App 188, 195; 617-3- NW2d 745 (2000). The trial court’s findings of fact are review ed for clear error. Ambs v
Kalamazoo Co Rd Comm , 255 Mich App 637, 651; 662 NW2d 424 (2003). “A finding of fa ct is clearly erroneous if the reviewi ng court has a definite and fir m conviction that a mistake has been committed, giving due regard to the trial court’s special opportunity to observe the

witnesses.” In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).

The trial court found that respond ent did not have a custodial relationship with the child because he had visited her six or seven times at most during th e 18-month period between her birth and her transfer from the birth mother’s home to the pros pective adoptive mother’s home.

The trial court also found that r espondent did not have a suppo rtive relationship with the mother or the child because he had never provided any financial support to either when he was working. Respondent does not challenge the trial court’s factual finding s or its determination that his limited contact with the child and his failure to provide any f inancial support or other care took him outside the provisions of § 39(2). Instead, he argues that his failure to establish a custodial or supportive relationship with the child should be excused bec ause the birth mother or the child’s maternal grandmot her impeded his efforts.

Respondent relies on a passage from In re Dawson , 232 Mich App 690, 694; 591 NW2d 433 (1998), which in turn relied on In re Gaipa , 219 Mich App 80, 85-86; 555 NW2d 867 (1996). When those cases were d ecided, the supportive element of § 39(2) required the court to consider whether the putative father had “provided support or c are.” The Gaipa Court determined that “support or car e” meant “reasonable support or care under the circumstances of the case” and provided a list of factors to be considered in de termining whether the support or

care was reasonable under the ci rcumstances, one of which was w hether the mother “impeded the father’s efforts to provide her with support[.]” Id. at 86. But the Legislature has made it clear that “reasonable support or care under the circumstances” is no longer the relevant standard by amending the statute to repl ace “support or care” with “subs tantial and regular support or care” commensurate with the father’s ability. 1998 PA 94. The refore, the Gaipa factors are not relevant to the determination of the putative father’s supporti ve relationship under the current version of § 39(2). In any even t, the trial court specificallyfound that the birth mother and the maternal grandmother did not thwart respondent’s efforts to est ablish a custodial or supportive relationship with the child. R ather, the court found that resp ondent ceased contact with the family because he did not agree with the grandmother’s decision to restrict visitation to times when she was home. Although that finding is contrary to respon dent’s testimony, it is supported by other witnesses’ testimony, so it is not clearly erroneous. “It is not for this Court to displace the trial court’s credibility determination.” In re HRC , 286 Mich App 444, 460; 781 NW2d 105 (2009).

We find no merit to respondent’s contention that his failure t o establish a custodial or supportive relationship with the child should be excused becaus e the birth mother concealed her pregnancy from him and would notcooperate with his efforts to obtain a DNA test after the child was born. This Court rejected similar arguments in In re RFF, 242 Mich App at 199-200 (there is not “a deceived father exception to the requirement that a f ather provide substantial and regular care and support to the mother during pregnancy in orde r to come within subsection 39(2)”) and In re BKD, 246 Mich App at 225 (that the p utative father has “doubts conc erning paternity” is not “a unique conditi on that should excuse him fr om having to offer support”).-4- Respondent lastly takes issue with the trial court’s decision that it was not in the child’s best interests to grant him custody. If the court determines t hat a putative father has not

established a custodial relations hip with the child or a suppor tive relationship w ith the mother or the child, the court must

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 serve d by granting custody to him. If the court finds that it would not be in the child’s best interests to grant custody to the putative father, the court shall termin ate his rights to the child. [MCL 710.39(1).]

The best-interest factors are set forth in MCL 710.22(g)( i ) – ( xi ). The trial court’s findings of fact regarding the best-interest factors are reviewed for clear error. In re BKD , 246 Mich App at 215. “A finding is clearly errone ous if this Court is left wit h a definite and firm conviction that

the trial court made a mistake.” Id

.

The first factor is “[t]he love, affection, and other emotiona l ties existing between . . . the putative father and the adoptee.” MCL 710.22(g)( i ). The trial court found that this factor did not favor respondent because he did not have any real bond with the child, only a desire to establish one. Respondent argues that he de monstrated his love and affec tion for the child by visiting with her when he could, by trying to visit with her at other times, and by his efforts to obtain a DNA test. Those efforts showed that respondent wanted to establish a relationship with the child, not that one actually existed. Because respondent spent no more th an 14 hours with the child over the course of her lifetime, the trial court did not clearly err in finding that there were no strong emotional ties between respondent and the child worth preservin g. Therefore, the trial court did not clearly err in finding that this factor did not favor respo ndent. See In re BKD, 246 Mich App at 219 (this factor does not favor the putative father when no bond exists between him and the child).

The second factor is “[t]he capacity and disposition of . . . the putative father to give the adoptee love, affection, and guidance, and to educate and creat e a milieu that fosters the religion, racial identity, and culture of the adoptee.” MCL 710.22(g)( ii ). The trial court found that this factor did not favor respondent because his “lack of an educati on, home and job along with his multiple convictions and demonstrated willingness to break the law to advance his personal interests evidence an unstable and combustible lifestyle which is not conducive to fostering a positive environment to cultivate love, affection, guidance, an d education.” Respondent does not deny that his personal circumstances were less than favorable t o parenting, but he notes that he expressed an intention to improve himself. The trial court, ho wever, considered this and determined that respondent’s know n conduct and present circumst ances were more relevant than his future hopes. Respondent initially expressed interest in the child but quickly gave up on a relationship with her because h e could not get along with the c hild’s mother. He continued to pursue a criminal lifestyle, committing offenses even after the se proceedings were initiated, and

was incarcerated. This conduct beli es a capacity to meet the ne eds relevant to this factor; therefore, the trial court di d not clearly err in finding that this factor did not favor respondent.

The third factor is “[t]he capacity and disposition of . . . the putative father[ ] to provide the adoptee with food, clothing, education, permanence, medical care or [its equivalent], and-5- other material needs.” MCL 710.22(g)( iii ). The trial court found that this factor did not favor respondent because he did not have a valid driver’s license, a job, a permanent residence, or an education, and was currently incarcerated. Respondent does not deny this; he claims that he had arranged for housing and employment upon his release from jail. Again, the trial court considered that testimony but found it unpersuasive. It found that respondent did not have a permanent residence, which was supported by respondent’s testim ony that he had moved from place to place since he was 15 ye ars old and only intended to r emain at his mother’s house for six months. The court found that respondent did not maintain c onsistent employment and had not provided evidence, such as a letter from his former employe r, confirming his future prospects. Finally, it noted t hat despite respondent’s intenti ons, the fact remained that he had never provided for th e child’s material needs when he had the a bility to do so. T he trial court did not clearly err in finding that this factor did not favor respo ndent.

The fourth factor is “[t]he length of time the adoptee has liv ed in a stable, satisfactory environment, and the desirability of maintaining continuity.” MCL 710.22(g)( iv ). The trial court did not make an express finding regarding this factor, no ting only that the child had lived with the prospective adoptive mother, EM, for nearly two years. Respondent does not dispute that or deny that the child’s pres ent environment was stable an d satisfactory. A lthough he argues that uprooting the child would not necessarily be harmful becau se the child would easily forget her current home and EM and could easily adapt to a new home wi th respondent, nothing in the record supports those assertions . Instead, the record shows th at the child had an established home with EM, “the only person that she knows as her mother,” a nd was doing well there. She had forged relationships with EM’s family, went to church, was in school, and had made friends. On the other hand, the child had no relationship with responden t. The evidence supported a finding that maintaining the cont inuity of the child’s environm ent was desirable.

The fifth factor is “[t]he permanence as a family unit of . . . the home of the putative father.” MCL 710.22(g)( v ). The trial court found that thi s factor did not favor respon dent because he had not maintained a stable or permanent home for ye ars, and he did not intend to stay in the home in which he pla nned to live upon his release f rom jail. Respondent does not dispute the trial court’s findi ngs. He argues only that this f actor favors him because he had a viable plan for improving and managing his life. That is not the focus of this factor, which “exclusively concerns whether the family unit will remain intac t[.]” Fletcher v Fletcher, 200 Mich App 505, 517; 504 NW2d 684 (1993), rev’d in part on other grounds 447 Mich 871 (1994) (discussing the corresponding be st-interest factor in the Child Custody Act, MCL 722.23(e)). Because respondent had not maintained a permanent family unit f or several years and did not intend to maintain one with the child and instead planned for t hem to live with his mother and sisters for a short time and then move, the trial court did not clearly err in finding that this factor did not favor respondent.

The sixth factor is “[t]he moral fitness . . . of the putative father.” MCL 710.22(g)( vi ).

The trial court found that this factor did not favor respondent because he had “an extensive criminal history, for which he i s currently incarcerated,” and had even gotten into further trouble while in jail. Respondent contends that the trial court erred in concluding that his criminal history was “extensive” because he was never convicted of any s erious offenses. “Extensive” means “of great extent” or “great in amount, number, or degree. ” Random House Webster’s College Dictionary (1997). Considering the numer ous offenses in which respondenthas been-6- involved, the trial court’s descri ption was apt. Further, “mor ally questionable conduct relevant to one’s moral fitness as a parent” includes “illegal or offens ive behaviors.” Fletcher v Fletcher, 447 Mich 871, 887 n 6; 526 NW2d 889 (1994) (discussing the corr esponding best-interest factor in the Child Custody Act, MCL 722.23(f)). While respondent’s i ntentions for the future indicate that he may in time become morally fit, his repeated violation s of the law over the years, even after he was jailed, showed that his moral fitness was lacking. The trial court did not clearly err in finding that this fact or did not favor respondent.

The seventh factor is “[t]he mental and physical health . . . of the putative father, and of the adoptee.” MCL 710.22(g)( vii ). The trial court found that although both respondent and the child were in good health, this factor was neutral. We agree w ith respondent that this factor actually favors him. All of the statutory factors relate to on e’s fitness as a parent. Fletcher, 447 Mich at 886-887. If respondent is in good health, he does not have any physical or mental limitations that would impede his ability to function as a pare nt. Likewise, if the child is in good health, she does not have any special needs that respondent maynot be able to meet. The trial court erred in finding that thi s factor was neutral. See In re Zimmerman, 277 Mich App 470, 480, 477-478, 484; 746 NW2d 306 (2008), aff’d in part and vacat ed in part on other grounds 480 Mich 1143 (2008) (upholding trial c ourt’s determination that fa ctor ( vii ) weighed in the putative father’s favor based on the absence of any health problems).

The trial court found that the remaining factors, MCL 710.22(g )( viii )-( xi ), were inapplicable. Respondent agrees that the last two factors were not applicable, but he argues that the eighth and ninth factors were neutral rather than inapplica ble. Either way, they did not favor respondent’s request for custody, so the trial court did not cl early err in finding that they were

not relevant. Because six of the seven relevant factors did no t favor respondent, the trial court did not err in finding that gran ting custody to respondent was not in the child’s b est interests.

We affirm.

/s/ Jane E. Markey /s/ Christopher M. Murray /s/ Stephen L. Borrello