            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



                                                                     UNPUBLISHED
In re J. L. THOMAS, Minor.                                           June 27, 2019

                                                                     No. 342183
                                                                     Wayne Circuit Court
                                                                     Family Division
                                                                     LC No. 17-000220-NA


                                          ON REMAND

Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.


PER CURIAM.

        In this case involving the termination of parental rights, both respondent and the child’s
mother are in prison for convictions of second-degree murder. Respondent was treated as the
child’s putative father throughout the trial-court proceedings. Although he requested a DNA test
to determine his paternity of the child, and although the trial court ordered that such a test occur
at public expense, no such test was ever conducted. Nonetheless, the trial court terminated the
parental rights of the child’s “unknown biological father.” On remand from our Supreme Court,
and after proceedings on remand in the trial court, we again remand this matter to the trial court
and order that the Department of Health and Human Services offer respondent, at the
department’s expense, DNA testing to confirm or deny his parentage of the child.

                                       I. BACKGROUND

                                  A. INITIAL PROCEEDINGS

        The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(c)
(conditions that led to adjudication continue to exist), (g) (failure to provide proper care and
custody), (h) (parental imprisonment), and (i) (termination of parental rights to the child’s
sibling). Respondent appealed, primarily arguing that DNA testing to confirm his paternity
should have been completed before the trial court terminated his parental rights. On initial
appeal, this Court affirmed the termination decision. In re JL Thomas, unpublished per curiam
opinion of the Court of Appeals, issued August 14, 2018 (Docket No. 342183).



                                                -1-
        On further appeal, the Michigan Supreme Court vacated the judgment of this Court and
remanded the matter back to this Court with instructions to remand the case to the trial court for
further consideration, while retaining jurisdiction. The Supreme Court specifically directed the
trial court to determine:
       (1) whether the trial court ordered a DNA test at Department of Health and
       Human Services expense, as stated by the referee, and, if so, whether the testing
       occurred; (2) whether the trial court extended the time for the putative father to
       establish paternity; and (3) whether the putative father was able to speak at the
       termination trial by speakerphone and whether he waived any issue regarding the
       DNA test or the establishment of paternity by not requesting an adjournment. [In
       re JL Thomas, 503 Mich 917; 920 NW2d 142 (2018).]

The Supreme Court further ordered that, “[a]t the conclusion of the hearing, the trial court shall
forward the record and its findings to the Court of Appeals, which shall then reconsider these
issues and the issues raised by the appellant in his brief on appeal.” Id.

                       B. TRIAL COURT PROCEEDINGS ON REMAND

        As directed, this Court remanded this case to the trial court for consideration of the above
issues, consistent with the Supreme Court’s order, while retaining jurisdiction. In re JL Thomas,
unpublished order of the Court of Appeals, entered December 28, 2018 (Docket No. 342183). In
response to the remand order, the trial-court referee who presided over the termination trial made
findings of facts on the record. First, the referee found that DNA testing for respondent was
ordered to occur at the expense of the Department of Health and Human Services (DHHS). Yet,
the DHHS provided no documentation at trial to indicate that DNA testing occurred. Second, the
referee found that the trial court did adjourn the initial trial date to allow time for genetic testing.
Third, the referee found that both the child’s mother and respondent were present at the
termination trial, telephonically, from their respective prisons. The trial court then approved—in
writing—the referee’s findings. After making its findings of fact, the trial court forwarded the
record and its findings to this Court.

        The record reflects that the termination trial was a combined one, involving both the
biological mother and respondent, and the focus of the trial was on matters involving the
biological mother. Furthermore, the combined trial—including appearances by lawyers, direct
and cross examination of witnesses, closing arguments, and the referee’s ruling from the
bench—was relatively short (11 minutes). At no point in the trial did the referee affirmatively
give respondent an opportunity to speak or even ask him on the record if he could hear over the
telephone or understand the proceedings. The topic of DNA testing was never broached at trial.
Although respondent did not object to the trial proceeding and did not request a further
adjournment so that DNA testing could be accomplished, he was acting pro per and participating
telephonically from prison.

       As ordered by our Supreme Court, we now reconsider the issues considered by the trial
court on remand, as well as the issues raised in respondent’s brief on appeal. See Thomas, 503
Mich at 917.


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                                          II. ANALYSIS

                                  A. STANDARD OF REVIEW

        This Court reviews a trial court’s factual findings for clear error. In re White, 303 Mich
App 701, 709; 846 NW2d 61 (2014). Factual findings are clearly erroneous if, although
evidence supports them, this Court is definitely and firmly convinced that a mistake was made.
Id. at 709-710. The third issue in the Supreme Court’s remand order involved the issue of
waiver, which is a mixed question of law and fact. Reed Estate v Reed, 293 Mich App 168, 173;
810 NW2d 284 (2011). Whether the facts of a particular case constitute a waiver is a question of
fact, which we review for clear error, but the definition of a waiver is a question of law that we
review de novo. Id.

        The issues raised in respondent’s brief on appeal are: (1) whether the trial court erred by
failing to provide respondent with a DNA test, as ordered by the trial court; (2) whether the trial
court erred by failing to adjourn the termination trial pending the outcome of DNA testing; (3)
whether the trial court erred by finding that statutory grounds for termination existed before
DNA testing occurred; and (4) whether the trial court erred by finding that termination was in the
child’s best interests before DNA testing was conducted. Because respondent did not raise these
issues in the trial court, they are unpreserved. See In re Utrera, 281 Mich App 1, 8; 761 NW2d
253 (2008). We review unpreserved issues for plain error affecting respondent’s substantial
rights. Id.

                        B. TRIAL COURT’S FINDINGS ON REMAND

                                        1. DNA TESTING

        The first issue raised in our Supreme Court’s remand order is whether the trial court
ordered a DNA test at DHHS expense and, if so, whether the testing occurred. Thomas, 503
Mich at 917. We conclude that the trial court did order a DNA test at DHHS expense, yet the
testing did not occur.

        On remand, the referee found that genetic testing was ordered at the pretrial hearing held
on September 20, 2017. The transcript of that hearing confirms that the referee stated that she
would order DNA testing at DHHS expense. The September 20, 2017 proposed order issued by
the referee included the referee’s recommendation for DNA testing. Yet, we note that the order
was only signed by the referee—not the trial court judge. Thus, whether the trial court ordered a
DNA test at DHHS expense presents a close question because “a court speaks through its written
orders and judgments, not through its oral pronouncements.” In re Contempt of Henry, 282 Mich
App 656, 678; 765 NW2d 44 (2009). Although the original order was unclear, the referee found
on remand that genetic testing was ordered. The order containing that factual finding was signed
by the trial-court judge before the record was returned to this Court, indicating that the trial-court
judge agreed, as a factual matter, that an order for DNA testing was entered by the trial court.
Therefore, both the referee and the trial-court judge found that the trial court ordered a DNA test
at DHHS expense. Reviewing the trial court’s factual findings for clear error, we conclude that
evidence supports the trial court’s findings on this issue. Because two separate judicial officers
determined that they did, in fact, order such testing, we are not definitely and firmly convinced

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that a mistake was made on this point. See White, 303 Mich App at 709-710. The trial court’s
finding on this point is not clearly erroneous—the trial court ordered a DNA test at DHHS
expense, yet the testing did not occur.

                                   2. EXTENSION OF TIME

         The second issue raised in our Supreme Court’s remand order is whether the trial court
extended the time for respondent to establish paternity. Thomas, 503 Mich at 917. The trial
court found that it did extend the time for respondent to establish paternity by moving the bench
trial initially scheduled for October 17, 2017 to November 16, 2017. This finding is supported
by the referee’s statements at the September 20, 2017 hearing. At that hearing, the referee stated
that a trial date was set for October 17, 2017, but it would set another date if the genetic test
results were not received by that time. After one party’s attorney indicated that a conflict on that
date existed, the referee went off the record, and the referee then set the trial date for
November 16, 2017. Thus, it appears that the trial date was moved to both allow more time for
genetic testing and accommodate one of the attorney’s schedules. The trial court’s finding on
this point is not clearly erroneous—the trial court extended the time for respondent to establish
paternity.

                                           3. WAIVER

        The third issue raised in our Supreme Court’s remand order is whether respondent was
able to speak at the termination trial by speakerphone and whether he waived any issue regarding
the DNA test or the establishment of paternity by not requesting an adjournment. Thomas, 503
Mich at 917. The trial court found that both the child’s mother and respondent participated at the
termination trial remotely from their respective prisons. At the bench trial, the referee
acknowledged on the record that respondent was telephonically present. The trial court’s finding
on this point is not clearly erroneous—respondent was telephonically present at the termination
trial.

        The trial court did not, however, expressly answer the question whether respondent was
able to speak during the termination trial. During her recitation of the findings of fact on the
record, the referee did note that respondent “made noises including some laughter” during the
trial. This implies a finding that respondent was able to speak during the trial. The referee also
found that respondent did not object to the trial proceeding and expressed no request for an
adjournment. The trial court’s factual findings on this point are not clearly erroneous, as far as
they go.

        Applying these factual findings to the question of waiver, the trial court concluded that
respondent waived the issue of “genetic testing and the establishment of paternity by failing to
request an adjournment of the bench trial.” Waiver is the intentional relinquishment of a known
right that may be shown by express declarations or by declarations that manifest the party’s
intent and purpose. See Reed Estate, 293 Mich App at 176. In this case, respondent made no
express declaration that manifested an intent to waive the issue of genetic testing and the
establishment of paternity. Therefore, the trial court appeared to find an implied waiver, rather
than an express waiver, based on respondent’s inaction in allowing the termination trial to
proceed without requesting an adjournment. An implied waiver is evidenced by a party’s

                                                -4-
decisive, unequivocal conduct reasonably inferring the intent to waive. Id. at 177. Respondent’s
silence, however, can only constitute a waiver if he had an obligation to speak. See id.
         As explained above, the trial was a combined one, involving both the biological mother
and respondent, and the focus of the trial was on matters involving the biological mother. The
combined termination trial was quite brief. At no point during the bench trial did the referee give
respondent an opportunity to speak or even ask him on the record if he could hear over the
telephone or understand the proceedings. Thus, the referee treated respondent differently than
the biological mother, who testified and otherwise fully participated in the trial with the help of
her lawyer. The topic of DNA testing was never broached at trial. Although there were points in
the proceedings when it would have been logical for respondent to raise an objection, respondent
was acting pro per, telephonically, from prison. It is a stretch to conclude that this respondent’s
silence conclusively confirms that he knowingly, intentionally, and affirmatively agreed with the
referee’s termination of his rights without the earlier promised DNA testing. Cf Artibee v
Cheboygan Circuit Judge, 397 Mich 54, 57; 243 NW2d 248 (1976) (noting that an “uncounseled
defendant will be less able to defend himself” in court proceedings involving paternity-related
matters). On this record, we conclude that the trial court clearly erred in determining that
respondent waived the issue of genetic testing by failing to object to the trial proceeding and by
failing to request an adjournment of the bench trial.
                          C. RESPONDENT’S ISSUES ON APPEAL

         Next, we turn to the issues raised in respondent’s brief on appeal. Respondent first
argues that the trial court erred by failing to provide him with a DNA test as initially ordered.
Although the trial court clearly erred in finding that respondent waived this issue at the bench
trial, respondent did forfeit the issue by remaining silent on this issue at trial. Therefore, we
review this issue for plain error affecting substantial rights. See Utrera, 281 Mich App at 8.

        On the record before us, we conclude that plain error did occur. Both the referee and the
trial-court judge determined on remand that they ordered the DHHS to provide respondent with
DNA testing, yet this was not done. The DNA testing was supposed to have been completed
before respondent’s parental rights were adjudicated, yet this also was not done. We conclude
that respondent’s substantial rights were affected by the failure to provide him with genetic
testing. Both the referee and the trial-court judge confirmed in writing that they had ordered
DNA testing, and respondent had the right to rely on this judicial order for testing (even if he
otherwise had no statutory1 or due-process right to DNA testing absent the judicial order). Had
respondent been confirmed to be the child’s biological father, he would have been entitled to
various procedural and substantive rights before the trial court could terminate his fundamental
right to be a parent. Alternatively, if the DNA test confirmed that respondent is not the
biological father or if respondent had refused to participate in testing, then respondent’s claims



1
  In a paternity action, an indigent putative father does have a statutory right to DNA testing at
the state’s expense. See MCL 722.716; People v Marshall, 82 Mich App 92, 97; 266 NW2d 678
(1978).


                                                -5-
on appeal would fail, as they crucially depend on his parentage. Given this, we conclude that
respondent has shown plain error affecting his substantial rights.
        Accordingly, we remand this matter to the trial court with instructions that the trial court
order the DHHS to offer respondent, within 30 days of the remand order and at the department’s
expense, DNA testing to confirm or deny his parentage of the minor child.
        Remanded for additional proceedings consistent with this opinion.               We retain
jurisdiction.


                                                             /s/ Brock A. Swartzle
                                                             /s/ Michael J. Kelly




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