                           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                                                                      UNPUBLISHED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: MARKEY, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

       Respondent appeals the trial court’s order terminating his parental rights to the minor
child pursuant to § 39 of the Adoption Code, MCL 710.39. We affirm.

        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, the child cannot be adopted until the
father’s parental rights are terminated. MCL 710.31(1). The mother 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 rights of the father” under § 37 or § 39 of
the Adoption Code. MCL 710.36(1). If the putative father is identified and he is interested in
custody of the child, the court must determine his interests under § 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 provides, in relevant 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 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

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       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 types of involvement by the
putative father: (1) whether he established a custodial relationship with the child, or (2) whether
he provided substantial and regular support or care commensurate with his ability (a) for the
mother during her pregnancy, or (b) for the mother or child after the child’s birth during the 90
days before he was served with notice of the hearing. If the putative father has the requisite
custodial or supportive relationship, he is entitled to the same 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), or 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 respondent’s parental rights under § 39(1).

        Respondent first raises a claim of procedural error. The trial 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 not place a ruling on the record. At
the end of the second day, the trial court took the matter under advisement, following which it
determined and terminated respondent’s parental rights. Respondent contends that the trial court
erred in continuing the hearing without first determining whether § 39(2) applied. Because
respondent did not request a ruling on his status or object to the trial court’s failure to determine
his status before proceeding with the second hearing, this issue is not preserved. “Review of an
unpreserved error is limited to determining whether a plain error occurred that affected
substantial rights.” Rivette v Rose-Molina, 278 Mich App 327, 328; 750 NW2d 603 (2008).

        As discussed earlier, if the putative father has the requisite custodial or supportive
relationship under § 39(2), his rights cannot be terminated under § 39; therefore, it is
unnecessary to consider whether granting him custody of the child 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 child’s best interests. Therefore, 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 Adoption Code requires the trial court to
conduct a bifurcated hearing and make an express determination regarding the putative father’s
status before taking proofs regarding the child’s best interests. Rather, the court is authorized to
conduct “a hearing” to determine or terminate the putative father’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 plain error. Further, respondent has
not shown that his substantial rights were affected by any error 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, respondent is not entitled to relief on the basis of this unpreserved
issue.

        Respondent next takes issue with the trial court’s determination 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

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NW2d 745 (2000). The trial court’s findings of fact are reviewed for clear error. Ambs v
Kalamazoo Co Rd Comm, 255 Mich App 637, 651; 662 NW2d 424 (2003). “A finding of fact is
clearly erroneous if the reviewing court has a definite and firm 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 respondent did not have a custodial relationship with the child
because he had visited her six or seven times at most during the 18-month period between her
birth and her transfer from the birth mother’s home to the prospective adoptive mother’s home.
The trial court also found that respondent did not have a supportive 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 findings or its determination that his
limited contact with the child and his failure to provide any financial 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 because the birth mother or the
child’s maternal grandmother 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 decided, the supportive element of § 39(2) required the court to
consider whether the putative father had “provided support or care.” The Gaipa Court
determined that “support or care” meant “reasonable support or care under the circumstances of
the case” and provided a list of factors to be considered in determining whether the support or
care was reasonable under the circumstances, one of which was whether 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 replace “support or care” with “substantial and regular support or
care” commensurate with the father’s ability. 1998 PA 94. Therefore, the Gaipa factors are not
relevant to the determination of the putative father’s supportive relationship under the current
version of § 39(2). In any event, the trial court specifically found that the birth mother and the
maternal grandmother did not thwart respondent’s efforts to establish a custodial or supportive
relationship with the child. Rather, the court found that respondent 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 respondent’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 to establish a custodial or
supportive relationship with the child should be excused because the birth mother concealed her
pregnancy from him and would not cooperate 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 father provide substantial and
regular care and support to the mother during pregnancy in order to come within subsection
39(2)”) and In re BKD, 246 Mich App at 225 (that the putative father has “doubts concerning
paternity” is not “a unique condition that should excuse him from having to offer support”).


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        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 that a putative father has not
established a custodial relationship with the child or a supportive relationship with 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 served 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 terminate 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 erroneous if this Court is left with a definite and firm conviction that
the trial court made a mistake.” Id.

        The first factor is “[t]he love, affection, and other emotional 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 demonstrated his love and affection 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 than 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 preserving. Therefore, the trial court did
not clearly err in finding that this factor did not favor respondent. 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 create 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 education, 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, and education.” Respondent does not
deny that his personal circumstances were less than favorable to parenting, but he notes that he
expressed an intention to improve himself. The trial court, however, considered this and
determined that respondent’s known conduct and present circumstances were more relevant than
his future hopes. Respondent initially expressed interest in the child but quickly gave up on a
relationship with her because he could not get along with the child’s mother. He continued to
pursue a criminal lifestyle, committing offenses even after these proceedings were initiated, and
was incarcerated. This conduct belies a capacity to meet the needs relevant to this factor;
therefore, the trial court did 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

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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 testimony that he had moved from
place to place since he was 15 years old and only intended to remain at his mother’s house for
six months. The court found that respondent did not maintain consistent employment and had
not provided evidence, such as a letter from his former employer, confirming his future
prospects. Finally, it noted that despite respondent’s intentions, the fact remained that he had
never provided for the child’s material needs when he had the ability to do so. The trial court did
not clearly err in finding that this factor did not favor respondent.

        The fourth factor is “[t]he length of time the adoptee has lived 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, noting 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 present environment was stable and satisfactory. Although he argues
that uprooting the child would not necessarily be harmful because the child would easily forget
her current home and EM and could easily adapt to a new home with respondent, nothing in the
record supports those assertions. Instead, the record shows that the child had an established
home with EM, “the only person that she knows as her mother,” and 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 respondent. The evidence supported a
finding that maintaining the continuity of the child’s environment 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 this factor did not favor respondent
because he had not maintained a stable or permanent home for years, and he did not intend to
stay in the home in which he planned to live upon his release from jail. Respondent does not
dispute the trial court’s findings. He argues only that this factor 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 intact[.]” 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 best-interest factor in the Child Custody Act, MCL 722.23(e)).
Because respondent had not maintained a permanent family unit for several years and did not
intend to maintain one with the child and instead planned for them 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 is 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 serious offenses. “Extensive”
means “of great extent” or “great in amount, number, or degree.” Random House Webster’s
College Dictionary (1997). Considering the numerous offenses in which respondent has been

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involved, the trial court’s description was apt. Further, “morally questionable conduct relevant
to one’s moral fitness as a parent” includes “illegal or offensive behaviors.” Fletcher v Fletcher,
447 Mich 871, 887 n 6; 526 NW2d 889 (1994) (discussing the corresponding best-interest factor
in the Child Custody Act, MCL 722.23(f)). While respondent’s intentions for the future indicate
that he may in time become morally fit, his repeated violations 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 factor 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 with respondent that this factor
actually favors him. All of the statutory factors relate to one’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 parent. Likewise, if the child is in good
health, she does not have any special needs that respondent may not be able to meet. The trial
court erred in finding that this factor was neutral. See In re Zimmerman, 277 Mich App 470,
480, 477-478, 484; 746 NW2d 306 (2008), aff’d in part and vacated in part on other grounds 480
Mich 1143 (2008) (upholding trial court’s determination that factor (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 inapplicable. Either way, they did not favor
respondent’s request for custody, so the trial court did not clearly err in finding that they were
not relevant. Because six of the seven relevant factors did not favor respondent, the trial court
did not err in finding that granting custody to respondent was not in the child’s best interests.

       We affirm.

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




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