IN RE JOSHUA DOUGLAS GULICK MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JOSHUA DOUGLAS GULICK,
Minor.
LINLEY HALL and KIMBERLY HALL,
UNPUBLISHED
July 17, 2008
Petitioners-Appellees,
and
LAURA GULICK,
Appellee,
v
No. 281724
Oakland Circuit Court
Family Division
LC No. 2006-728663-AD
RODNEY LINHART,
Respondent-Appellant.
Before: Fitzgerald, P.J., and Talbot and Donofrio, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court order terminating his parental rights
pursuant to MCL 710.39(1). We affirm.
Laura Gulick worked for respondent performing light household chores from 2004
through February or March 2006. Respondent is disabled and is eligible to receive
reimbursement from the Veteran’s Administration for 24-hour care. During this time,
respondent and Gulick had a sexual relationship. Gulick testified that respondent paid her for
sex, but respondent denied that. Gulick was also involved in a relationship with Anthony
Hutchison. Gulick discovered that she was pregnant in May 2006. Gulick testified that when
she told respondent that she was pregnant in June of 2006, respondent denied that he was the
father because he had had a vasectomy. Gulick believed respondent because she had been
having unprotected sex with him since 2004 and had never gotten pregnant. Hutchison had also
had a vasectomy but thought that he could be the father because he never followed up with a
checkup after his surgery.
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Respondent testified that he accepted that he was the father of the child and wanted to
marry Gulick. However, Gulick wanted nothing more to do with respondent. She moved away
and threatened to charge respondent with stalking if he tried to contact her.
The child was born on December 18, 2006, and was immediately placed with the
adoptive parents, Linley and Kimberly Hall. Gulick consented to the release of her parental
rights and named Hutchison as the putative father. Hutchison stated that he was the father of the
child and denied any interest in custody. An order was entered terminating Gulick’s and
Hutchison’s parental rights on January 2, 2007. On January 5, 2007, respondent filed a notice of
intent to claim paternity.
Following hearings, the trial court found that respondent had not established a custodial
relationship with the child or provided substantial and regular support for the mother or the child
pursuant to MCL 710.39(2). The trial court terminated respondent’s parental rights pursuant to
MCL 710.39(1) after determining that the best interests factors weighed against granting
respondent custody of the child.
Respondent first argues that the trial court erred in finding Gulick to be a credible
witness. Credibility issues are for the trier of fact and this Court gives due regard to the special
opportunity and ability of the trial judge to determine witnesses' credibility. People v Wolfe, 440
Mich 508, 514-515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992); In re Hardin, 184
Mich App 107, 109; 457 NW2d 347 (1990), abrogated on other grounds in In re Alton, 203 Mich
App 405; 513 NW2d 162 (1994). Trial courts not only hear testimony and observe witnesses but
also may elicit testimony, interview children, and invoke other judicial resources to assure a
thorough and careful evaluation of the child’s best interests. Fletcher v Fletcher, 229 Mich App
19, 28; 581 NW2d 11 (1998).
Based on Gulick’s testimony that she had sex for money, the trial court found Gulick to
be very credible. The trial court noted that it must have been very difficult for Gulick to admit
on the stand that she was basically a prostitute. The trial court did not believe that Gulick would
have said that respondent was paying her for sex if it were not true. On the other hand, the trial
court did not find respondent to be a very credible witness. The trial court noted that throughout
respondent’s testimony, respondent failed to remember or know any dates, times, or amounts.
The trial court did not believe that respondent did not remember any of these details considering
that he had to submit receipts for reimbursement for his caregivers to the Veteran’s
Administration. Because respondent’s only argument was credibility, and we cannot conclude
with a definite and firm conviction that a mistake has been made, this Court will not overturn the
trial court’s decision. People v Crump, 216 Mich App 210, 215-216; 549 NW2d 36 (1996).
Respondent next argues that the trial court erred in applying MCL 710.39(1), rather than
MCL 710.39(2), of the Adoption Code. This issue presents a question of law, which this Court
reviews de novo. In re Lang, 236 Mich App 129, 135-136; 600 NW2d 646 (1999). MCL 710.39
provides:
(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
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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 such support or care for the mother during
pregnancy or for either mother or child after the child’s birth during the 90 days
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.
Respondent does not dispute that he had not established a custodial relationship with the
child, nor does he contend that the $500 he gave to Gulick when she told him that she was
pregnant constituted “substantial and regular support or care.” Rather, respondent argues that,
because he was deceived when Gulick threatened him with criminal prosecution, named another
man as the father, and never informed him of the adoption, he should have been considered a
“do-something” father, who came within the provisions of subsection 39(2).
However, in In re RFF, 242 Mich App 188, 200; 617 NW2d 745 (2000), this Court
rejected the father’s argument that MCL 710.39(2) provided for fathers who had been deceived
about a pregnancy because of the phrase “in accordance with the putative father’s ability to
provide such support or care.” Moreover, the evidence does not support respondent’s claim that
he was deceived about the pregnancy. Respondent knew at least by September 2006 that Gulick
was pregnant, and could have known as early as June 2006. Gulick never tried to hide the
pregnancy from respondent. According to respondent’s testimony, Gulick asked for money in
October 2006 and he refused because he did not want to support Gulick and her boyfriend.
Respondent testified that he had the means to support Gulick during her pregnancy and the child
after he was born, but that he did not give them any money from October 2006 through March
2007.
Based on both respondent and Gulick’s testimony, the trial court properly concluded that
respondent failed to provide substantial and regular support in accordance with his ability to do
so. Even if there were a deceived father exception to MCL 710.39(2), which this Court rejected
in In re RFF, supra, respondent would not have qualified for it. Based on the evidence, he was
not deceived about the pregnancy. Accordingly, the trial court properly considered respondent’s
parental rights pursuant to MCL 710.39(1).
Finally, respondent argues that the trial court erred in concluding that the best interests
factors weighed against granting respondent custody of the child. The trial court’s findings of
fact regarding the best-interests factors are reviewed by this Court for clear error. In re BKD,
246 Mich App 212, 215; 631 NW2d 353 (2001). 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 trial court considered the factors set forth in MCL 710.22(g). The trial court
properly weighed factor i against respondent because he and the child had never met. The trial
court found factor ii regarding respondent’s capacity to give the child love, affection and
guidance to be neutral. Although there was evidence regarding respondent’s kindness and
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generosity in his community, respondent did not help Gulick when she was pregnant or support
the child after he was born. The trial court found that respondent was able to provide the child
with his material needs as required by factor iii. Factor iv weighed against respondent because
the child had been living with the adoptive family since December 28, 2006.
With respect to factor v, the trial court found that respondent did not have a permanent
family unit because he lived alone and relied on numerous caregivers who were in and out of his
home on different days at different times. The trial court did not believe that respondent was
morally fit pursuant to factor vi because he was engaged in a sex for money relationship while
teaching religious education to young people.
With regard to his physical health, the trial court found that factor vii weighed heavily
against respondent because he suffered from Berger’s disease, had lung cancer five years earlier,
suffered from degenerative disc disease that caused constant pain, and both of his legs had been
amputated because of the Berger’s. The trial court found that factors viii, ix, x and xi were
neutral.
Given the totality of the evidence, we cannot conclude that the trial court clearly erred in
determining that placement of the child with respondent was against the child’s best interests.
Although several witnesses testified that respondent was regarded as a kind and generous person
in the community, the evidence did not support that characterization with regard to Gulick and
the child. Moreover, respondent was a 57-year-old man with many serious chronic illnesses. In
addition, respondent lived alone without an extended family who could help him raise a child.
We affirm the trial court’s order terminating respondent’s parental rights.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
/s/ Pat M. Donofrio
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