IN RE SAMAURI ST MIRACLE SPENCER MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of SAMAURI ST. MIRACLE
SPENCER, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
November 20, 2008
Petitioner-Appellee,
v
No. 284632
Wayne Circuit Court
Family Division
LC No. 05-445242-NA
LYDELL SHAW,
Appellant,
and
DARRYL HENRY and LAJEANE DORIAN
SPENCER,
Respondents.
Before: Jansen, P.J., and O’Connell and Owens, JJ.
PER CURIAM.
The child protective proceeding involving the minor child culminated in a written order
terminating the parental rights of the child’s mother, the child’s legal father, and appellant.
Appellant now appeals as of right from the order denying his motion for rehearing of the
termination order and for a paternity test. We affirm.
Respondent LaJeane Dorian Spencer was an unmarried minor when the child was
conceived and born. A week after the child’s birth, a petition was filed that sought temporary
wardship of the child and named appellant Lydell Shaw as the child’s putative father. However,
at the preliminary hearing, the court was informed that the petition listed the wrong man as the
child’s father, and the court questioned Spencer about the father’s identity. After Spencer
indicated that respondent Darryl Henry was the child’s biological father, the court crossed off
appellant’s name from the petition and replaced it with Henry’s name. Service upon appellant of
a “Notice to Putative Father” was still attempted, though; after the attempts to serve him
personally or through certified mail were unsuccessful, he was alternatively served through
publication. At the adjudicative hearing, the trial court accepted an Affidavit of Parentage that
contained the notarized signatures of Spencer and Henry and recognized Henry as the child’s
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legal father. Also at that adjudicative hearing, Spencer entered a sworn plea of admissions,
which included the admission that Henry was the child’s father.
Two years passed and a supplemental permanent custody petition, which contained only
the names of Spencer and Henry as the child’s parents, was filed. At the pretrial hearing, the
court did not have its court file and, therefore, was unsure whether Henry had established
paternity, so Spencer was sworn in and questioned about the Affidavit of Parentage. On the date
of the permanent custody hearing, Spencer voluntarily released her parental rights and the court
terminated Henry’s parental rights. For some reason, in addition to Spencer and Henry, the
written termination order named appellant as a parent whose parental rights had been terminated.
Appellant received the copy of the termination order that had been sent to Henry.1 Thereafter,
appellant filed a motion for rehearing and a paternity test, claiming that he had not known of the
child’s birth and believed that he was the child’s biological father.2 At the motion hearing, the
attorney who had represented Spencer in the protective proceeding reported that Spencer now
claimed that appellant was the child’s biological father and that she had been under duress when
she identified Henry as the father. The trial court denied appellant’s motion.
Appellant first argues that the trial court abused its discretion when it failed at the
preliminary hearing to put Spencer under oath before questioning her, which appellant asserts
was a critical mistake because Spencer was at that time a minor and failed to appreciate the
importance of identifying the child’s biological father. However, the court rule governing
preliminary hearings, MCR 3.965, does not require a court to swear in the child’s mother before
questioning; it only requires that a court “inquire of the mother regarding the identity and
whereabouts of the father.” MCR 3.965(B)(13) (emphasis added). The court complied with
MCR 3.965.
The court also complied with governing court rules after the preliminary hearing.
MCR 3.921(C) states that “[i]f, at any time during the pendency of a proceeding, the court
determines that the minor has no father as defined in MCR 3.903(A)(7), the court may, in its
discretion, take appropriate action,” including taking “initial testimony on the tentative identity
and address of the natural father.” MCR 3.921(C)(1). The trial court swore in the child’s mother
during the adjudicative hearing and a pretrial hearing before questioning her about the identity of
the child’s father. Therefore, the trial court complied with MCR 3.921(C) during the pendency
of the proceeding.
_________________
1
Henry’s copy of the termination order was apparently sent by mistake to the address used in
unsuccessful attempts to serve appellant two years earlier. This address was reportedly the home
of appellant’s grandmother.
2
The address provided by appellant on this motion was the same address where unsuccessful
attempts to serve appellant had been made and where Henry’s copy of the termination order had
been mistakenly sent. Significantly, when the address was used to serve appellant with a
summons for the hearing on the motion that is the subject of this appeal, the process server was
once again told by an occupant that the address was not good for appellant, and the certified mail
envelope was once again returned as “unclaimed.”
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Next, appellant argues that the trial court abused its discretion and improperly “ignored”
appellant by failing to give him notice of the proceeding after Spencer identified Henry as the
child’s father. This argument lacks merit because appellant was alternatively served through
publication.3
Next, appellant argues that there was ongoing confusion throughout the protective
proceeding about the identity of the child’s father, which was allegedly compounded by the
failure of the trial court to formally admit into evidence either the child’s birth certificate4 or the
Affidavit of Parentage. Contrary to this claim, the trial court recognized Henry’s status as the
child’s legal father when it accepted the notarized Affidavit of Parentage, which it put into the
file.
Finally, as a potential biological father, appellant lacked standing to participate in the
protective proceeding once the child’s legal father was recognized. See In re CAW, 469 Mich
192, 194; 665 NW2d 475 (2003) (the putative father did not have standing to intervene in the
child protective proceedings because the child did not lack a father under MCR 5.903(A)(4)
[now MCR 3.907(A)(7)]) and In re KH, 469 Mich 621, 624; 677 NW2d 800 (2004) (“[W]here a
legal father exists, a biological father cannot properly be considered even a putative father.”).
Appellant attempts to distinguish these cases on the ground that the mothers in both cases were
married and there existed a presumption of legitimacy for the children born during the marriage.
However, appellant’s argument fails because the determining factor in both cases was the
existence of a legal father, and not the basis on which the legal father claimed his paternity.
Again, the trial court has discretionary power to take action regarding a putative father 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 3.903(A)(7).” MCR 3.921(C) (emphasis added). Therefore, once
Henry was determined to be the child’s legal father, appellant lacked standing to participate, and
the trial court properly denied his motion for rehearing and a paternity test.
Affirmed.
/s/ Kathleen Jansen
/s/ Peter D. O’Connell
/s/ Donald S. Owens
_____________________
3
It also appears that appellant’s attempts to evade service at his given address led to the failure
to serve him personally or by certified mail with the “Notice to Putative Father.” Given
appellant’s receipt of Henry’s copy of the termination order, which was mistakenly sent to
appellant’s grandmother’s home, it appears that appellant received mail at that address as long as
it was not addressed to him.
4
The child’s birth certificate did not list a father.
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