IN RE MKK MINORAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
In re MKK, Minor.
MATTHEW ROBERT LINDEN and JENNIFER
December 22, 2009
Washtenaw Circuit Court
LC No. 08-000040-AD
Advance Sheets Version
NICHOLAS VICTOR MATTSON,
CASEY JO KEILMAN,
Before: BECKERING, P.J., and CAVANAGH and M. J. KELLY, JJ.
This case involves the interplay of the Adoption Code, MCL 710.21 et seq., and the
Paternity Act, MCL 722.711 et seq. Respondent, the minor child’s putative father, filed a
separate paternity action,1 seeking entry of an order of filiation. This adoption case commenced
when petitioners, the minor child’s maternal aunt and uncle, filed a petition to adopt the child.
The trial court denied respondent’s motion to stay the adoption proceedings in an August 6,
2008, order. The court then stayed the paternity action pending the conclusion of the adoption
proceedings. Petitioners appeal as of right the trial court’s March 18, 2009, order denying their
adoption petition. Respondent cross-appeals, challenging the trial court’s: September 2, 2008,
order holding that he failed to provide substantial and regular support under MCL 710.39(2);
failure to decide his September 10, 2008, motion to dismiss; October 14, 2008, order denying his
Washtenaw Circuit Court Docket No. 08-000889-DP.
motion to amend the home study; March 18, 2009, order denying him custody of the child; and
May 6, 2009, order denying his motion to disqualify the trial court judge. We vacate the trial
court’s August 6, 2008, and March 18, 2009, orders and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
On December 19, 2007, appellee Casey Jo Keilman informed respondent that she was
pregnant with the child and intended to give the child up for adoption. Respondent objected to
the planned adoption and on February 7, 2008, filed a notice of intent to claim paternity. On the
day the child was born, March 22, 2008, Keilman signed the necessary paperwork to place him
up for adoption, naming petitioners as the intended adoptive parents and immediate custodians.
Immediately upon discharge from the hospital, the child was placed with petitioners.
Respondent filed his paternity action on April 16, 2008. That case was initially assigned
to Judge Darlene A. O’Brien. On May 7, 2008, petitioners filed their petition to adopt the child.
The adoption case was assigned to Judge Donald E. Shelton. Accompanying the adoption
petition was Keilman’s petition for a hearing to identify the father and determine or terminate his
parental rights pursuant to MCL 710.36(1).2
MCL 710.36(1) states:
If a child is claimed to be born out of wedlock and the mother executes or
proposes to execute a release or consent relinquishing her rights to the child . . . ,
and the release or consent of the natural father cannot be obtained, the judge shall
hold a hearing as soon as practical 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 as provided in [section 39] of this chapter.
MCL 710.39 states, in 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 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.
In a June 17, 2008, order, Judge O’Brien denied Keilman’s motion to stay the paternity
action and ordered DNA testing to determine paternity. On July 25, 2008, respondent filed a
motion to stay the adoption proceedings pending the outcome of his paternity action. He argued
that the paternity action should be decided first because its outcome would render this adoption
case moot. Petitioners opposed the motion, arguing that the Paternity Act did not prevent
respondent’s rights as a putative father from being determined and terminated under the
Adoption Code, under which the rights of the adoptee are paramount. Keilman concurred and
also asserted that respondent only filed the paternity action in an attempt to thwart her adoption
At the July 30, 2008, hearing on respondent’s motion to stay, the results of the DNA
testing were presented. The testing revealed a 99.99 percent probability that respondent was the
child’s biological father. Respondent argued that he was probably only one hearing away from
being declared the child’s legal father and the Adoption Code should not supersede his effort to
do so under the Paternity Act. Petitioners and Keilman responded that the results of the DNA
testing were irrelevant to the adoption proceedings and those proceedings had priority over
respondent’s paternity case pursuant to MCL 710.21a, which lists the general purposes of the
Adoption Code, and MCL 710.25.3 Judge Shelton denied respondent’s motion, stating that he
did not “believe that these actions are necessarily in conflict. I don’t think one can delay the
other.” He then bifurcated the adoption proceedings.
On August 6, 2008, Judge Shelton conducted a hearing, at which the parties presented
evidence regarding respondent’s efforts to provide support and care during Keilman’s pregnancy
and the 90-day period before notice of the hearing was mailed to him. It was undisputed that
respondent was the child’s father and he and Keilman were never married. Keilman did not
place respondent’s name on the birth certificate, told the hospital staff not to release any
information regarding her admission to give birth because she did not want respondent present,
which he was not, and declined to sign an affidavit of parentage. Keilman testified that she did
not talk to respondent between the time she informed him of the pregnancy and the hearing date.
She acknowledged, however, that she met him at a park-n-ride lot in April 2008, but that he did
not request to see the child. She showed him a photograph. Respondent testified that he asked
Keilman by email who her doctor was, wanted to be present for the birth, and telephoned two
hospitals in an attempt to find Keilman. He also wanted to be named on the birth certificate and
was willing to sign an affidavit of parentage. Respondent testified that he repeatedly asked to
see the child since his birth, but Keilman always replied that the child had already been given up
MCL 710.25 states:
(1) All proceedings under this chapter shall be considered to have the
highest priority and shall be advanced on the court docket so as to provide for
their earliest practicable disposition.
(2) An adjournment or continuance of a proceeding under this chapter
shall not be granted without a showing of good cause.
for adoption. Beginning in January 2008, respondent attended parenting classes and worked
with a social services employee to prepare himself for becoming a parent. Respondent testified
that he sent money to Keilman on three occasions in February 2008 by certified mail. He also
offered to help Keilman with her medical bills in one of the certified letters. After the letters
were returned to him, he did not send any more letters. Keilman testified that she did not receive
any certified mail at her home and was unaware that respondent had tried to send money in
February 2008. She did not recall respondent’s asking about her doctor or medical bills. In the
month preceding the hearing, respondent sent money for the child to petitioners’ counsel on four
occasions. Respondent also opened a bank account for the child.
Judge Shelton found that respondent was the child’s putative father as established by the
DNA testing. He stated that whether respondent provided substantial and regular support during
the 90-day period before notice of the hearing was served was irrelevant in this case; rather, the
real question was whether Keilman impeded respondent’s efforts to provide support during her
pregnancy. Judge Shelton found Keilman’s testimony credible and stated:
I will say, frankly, this case seems to have been engineered during this
period of time which is disturbing to me but to the extent that the engineering
involves sending certified mail with—and then claiming that the impeding was
that a person did not go and get the certified mail, I do not find that that is
impeding as provided by—by the case law.
Accordingly, Judge Shelton concluded that respondent did not fall under MCL 710.39(2) and,
therefore, that the case would proceed to a best interests hearing pursuant to MCL 710.39(1).
The judge then stated: “The paternity action is stayed pending conclusion of these proceedings.”
At the time of this ruling, the paternity case was still assigned to Judge O’Brien.
On August 26, 2008, respondent’s paternity case was reassigned to Judge Shelton. Three
days later, respondent filed a motion to consolidate the paternity and adoption cases. Respondent
argued that pursuant to MCL 722.717(1)(b), an order of filiation was required to be entered
because he had acknowledged paternity before the court. He further argued that the cases should
be consolidated so that the trial court could address the paternity issue first, because if
respondent was the legal father, his rights could only be terminated pursuant to MCL 712A.19b,
not MCL 710.39. At a September 3, 2008, hearing, petitioners argued that respondent’s motion
to consolidate was moot because both cases had been assigned to Judge Shelton. Respondent
argued that all that remained was for the trial court to recognize him as the legal father and that
procedural and substantive due process required that the paternity action be decided first. Judge
Shelton stated that respondent had raised interesting constitutional issues, but the law was clear
that he should not rule on such issues unless required to do so. The judge granted petitioners’
motion to exclude testimony pertaining to constitutional issues and denied respondent’s motion
to consolidate. Judge Shelton reasoned that if he found in respondent’s favor under MCL
710.39(1), it would not be necessary to reach the constitutional issues. If he found that adoption
was in the child’s best interests, he would then entertain further briefing of the constitutional
Judge Shelton conducted a four-day best interests hearing beginning on September 4,
2008. In a March 18, 2009, opinion and order, the judge made several findings of fact and then
addressed the best interests factors set forth in MCL 710.22(g), acknowledging that the parties
agreed that factors (viii)-(x) did not apply. He found the evidence sufficient to support an
adverse finding regarding respondent for all factors except factor (v), for which the evidence was
equivocal, and factor (vii), for which the evidence was not sufficient to support an adverse
finding. Accordingly, Judge Shelton concluded that it was not in the child’s best interests to
grant custody to respondent. The judge did not, however, terminate respondent’s parental rights.
Judge Shelton also concluded that placement with petitioners was not in the child’s best
interests and denied the adoption petition, stating:
It is highly likely that the child will learn the identity of his biological
mother and father, and of this litigation, and that will have an adverse effect on
the child growing up. The mother will certainly be around in [the child’s] life in a
way that would be very confusing. In the small community where they all live,
the father will likely also be around and his presence will add more confusion to
[the child]. That scenario would not be in the child’s best interest. . . . [A]n
adoption plan with her [the mother’s] aunt and uncle in the same community
creates significant problems given the facts and circumstances of this case.
Thereafter, petitioners and Keilman moved for rehearing. At an April 8, 2009, hearing,
Judge Shelton denied the motions and ordered the parties to submit, pursuant to MCL 710.62,
their proposed plans for the disposition of the child, including custody, parenting time, and child
support. The judge memorialized his holding in an April 22, 2009, order. On April 23, 2009,
respondent filed a motion under MCR 2.003(B)(1) (now [C][a]) to disqualify Judge Shelton,
arguing that the judge was biased against him and had denied him due process. On May 6,
2009, Judge Shelton heard the motion and stated that he had no bias. He denied the motion as
untimely and without merit. Thereafter, the matter was referred to the chief judge of the circuit
court, who found, pursuant to MCR 2.003(C)(1) (now [D]), that respondent should have filed
his motion, at the latest, within 14 days after Judge Shelton’s March 18, 2009, opinion and order
denying respondent custody of the child. The chief judge further found that there was no
evidence of bias, prejudice, or deep-seated favoritism or antagonism.
Petitioners now appeal as of right. Respondent cross-appeals.4
On December 1, 2009, after the parties filed their claims of appeal and appellate briefs, Judge
Shelton entered an order pertaining to both this case and respondent’s related paternity action,
awarding sole physical and legal custody of the child to Keilman, ordering respondent to pay
monthly child support, and awarding respondent parenting time of two hours every other week to
be supervised by petitioners. Respondent’s counsel informed this Court of the order in a letter
dated the same day and the parties addressed the order at oral arguments. We must, however,
decline to address the parties’ arguments regarding the order, because they are not properly
before this Court. An appeal of right can only be taken after an order is entered, not before.
II. INTERPLAY OF THE ADOPTION CODE AND PATERNITY ACT
Respondent argues that he was denied both procedural and substantive due process by
Judge Shelton’s application of the Adoption Code and decision to stay his paternity action until
completion of the adoption proceedings. Although respondent frames this as a constitutional
issue, it is primarily an issue of statutory construction. We must determine whether the Adoption
Code or the Paternity Act takes precedence when contemporaneous actions have been filed under
each. Although proceedings under the Adoption Code should, in general, take precedence over
proceedings under the Paternity Act, adoption proceedings may be stayed upon a showing of
good cause, as determined by the trial court on a case-by-case basis. In this case, there was good
cause to stay the adoption proceedings in favor of respondent’s paternity action. Judge Shelton
erred by denying respondent’s motion to stay and proceeding with the § 39 hearings. Therefore,
the judge’s August 6, 2008, and March 18, 2009, orders must be vacated.
A. STANDARD OF REVIEW AND RULES OF STATUTORY CONSTRUCTION
We review constitutional issues and questions of statutory construction de novo. Dep’t of
Transportation v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008). “Statutory language
should be construed reasonably, keeping in mind the purpose of the act.” Twentieth Century Fox
Home Entertainment, Inc v Dep’t of Treasury, 270 Mich App 539, 544; 716 NW2d 598 (2006)
(quotation marks and citation omitted). The purpose of judicial statutory construction is to
ascertain and give effect to the intent of the Legislature. Sun Valley Foods Co v Ward, 460 Mich
230, 236; 596 NW2d 119 (1999). In determining the Legislature’s intent, we must first look to
the language of the statute itself. Id. Moreover, when considering the correct interpretation, the
statute must be read as a whole. Id. at 237. A statute must be read in conjunction with other
relevant statutes to ensure that the legislative intent is correctly ascertained. Walters v Leech,
279 Mich App 707, 709-710; 761 NW2d 143 (2008). The statute must be interpreted in a
manner that ensures that it works in harmony with the entire statutory scheme. Id. at 710; see
also Wayne Co v Auditor General, 250 Mich 227, 233; 229 NW 911 (1930). The Legislature is
presumed to be familiar with the rules of statutory construction and, when promulgating new
laws, to be aware of the consequences of its use or omission of statutory language, In re
Complaint of Pelland Against Ameritech Michigan, 254 Mich App 675, 687; 658 NW2d 849
(2003); Lumley v Univ of Michigan Bd of Regents, 215 Mich App 125, 129-130; 544 NW2d 692
(1996), and to have considered the effect of new laws on all existing laws, Great Wolf Lodge of
Traverse City, LLC v Pub Service Comm, 285 Mich App 26, 42; 775 NW2d 597 (2009).
B. THE PATERNITY ACT
There are several ways to establish paternity. When a child is born out of wedlock, one
way is to seek a judicial determination of paternity under the Paternity Act. Aichele v Hodge,
259 Mich App 146, 154-155; 673 NW2d 452 (2003). The Paternity Act “‘was created as a
procedural vehicle for determining the paternity of children “born out of wedlock,” and
enforcing the resulting support obligation.’” Sinicropi v Mazurek, 273 Mich App 149, 163; 729
NW2d 256 (2006), quoting Syrkowski v Appleyard, 420 Mich 367, 375; 362 NW2d 211 (1985);
see also MCL 722.712. Once a paternity action has been filed, the parties are required to submit
to blood or tissue typing determinations, which may include DNA identification profiling, during
the pretrial stage. MCL 722.716(1). If the testing shows that there is a 99 percent or higher
probability of paternity, paternity is presumed. MCL 722.716(5). Paternity is established once
an order of filiation is entered. MCL 722.717(1) states:
The court shall enter an order of filiation declaring paternity and providing
for the support of the child under 1 or more of the following circumstances:
(a) The finding of the court or the verdict determines that the man is the
(b) The defendant acknowledges paternity either orally to the court or by
filing with the court a written acknowledgement of paternity.
(c) The defendant is served with summons and a default judgment is
entered against him or her.
Once a man perfects his legal paternity, he is considered a “parent,” with all the attendant rights
and responsibilities, and termination of his parental rights can generally only be accomplished in
cases of neglect or abuse under MCL 712A.19b. See In re LE, 278 Mich App 1, 19, 22; 747
NW2d 883 (2008).
C. THE ADOPTION CODE
Adoption is strictly statutory. The Adoption Code was designed for the following general
(a) To provide that each adoptee in this state who needs adoption services
receives those services.
(b) To provide procedures and services that will safeguard and promote
the best interests of each adoptee in need of adoption and that will protect the
rights of all parties concerned. If conflicts arise between the rights of the adoptee
and the rights of another, the rights of the adoptee shall be paramount.
(c) To provide prompt legal proceedings to assure that the adoptee is free
for adoptive placement at the earliest possible time.
(d) To achieve permanency and stability for adoptees as quickly as
(e) To support the permanency of a finalized adoption by allowing all
interested parties to participate in proceedings regarding the adoptee. [MCL
The Adoption Code provides provisions to accomplish these goals. As indicated, MCL 710.25
(1) All proceedings under this chapter shall be considered to have the
highest priority and shall be advanced on the court docket so as to provide for
their earliest practicable disposition.
(2) An adjournment or continuance of a proceeding under this chapter
shall not be granted without a showing of good cause.
Unless there is parental consent to the adoption, an adoption petition must be
accompanied by, among other things, proof of release of parental rights or an order terminating
parental rights over the child. MCL 710.26(1)(a). If the child is claimed to be born out of
wedlock and the mother executes or proposes to execute a consent or release relinquishing her
rights or joins in a petition for adoption by her husband, and the consent or release of the natural
father cannot be obtained, the trial court must hold a hearing to determine whether the child was
born out of wedlock, determine the identity of the father, and determine or terminate the father’s
rights. MCL 710.36.
If the father is putative, the court must determine his rights pursuant to MCL 710.39. The
two-tiered standard set forth in § 39 for terminating the parental rights of a putative father is
based on principles set forth in multiple United States Supreme Court cases.5 See In re BKD,
246 Mich App 212, 222; 631 NW2d 353 (2001), citing In re Barlow, 404 Mich 216, 229 n 8; 273
NW2d 35 (1978). As explained in In re BKD, 246 Mich App at 222, “[s]ubsection 39(1)
determines the rights of putative fathers who have failed to establish a custodial or supportive
relationship according to a less rigorous best interests standard.” If a putative father has failed to
establish such a relationship, but appears at the hearing and requests custody of the child, the trial
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.” MCL 710.39(1). Conversely,
“subsection 39(2) determines the rights of putative fathers who have established a relationship
according to the more rigorous standard applied to mothers and married fathers.” In re BKD,
These cases are set forth in In re BKD, 246 Mich App 212, 221-222; 631 NW2d 353 (2001), in
which this Court stated:
The United States Supreme Court has held that the father of an illegitimate
child, who has taken steps to establish a custodial or supportive relationship with
the child has a constitutionally protected interest in continuing that relationship.
Caban v Mohammed, 441 US 380; 99 S Ct 1760; 60 L Ed 2d 297 (1979); Stanley
v Illinois, 405 US 645; 92 S Ct 1208; 31 L Ed 2d 551 (1972). Accordingly, the
Due Process and Equal Protection Clauses bar the state from terminating the
parental rights of the father of an illegitimate child without the same showing of
unfitness that would be necessary to terminate the rights of a mother or a married
father. Caban, supra at 392-394; Stanley, supra at 658. However, where the
father of an illegitimate child has not taken steps to establish a custodial or
supportive relationship, the state may constitutionally terminate his parental rights
through procedures and standards that are less stringent than those required to
terminate the parental rights of a mother or a married father. Lehr v Robertson,
463 US 248, 267-268; 103 S Ct 2985; 77 L Ed 2d 614 (1983); Quilloin v Walcott,
434 US 246, 255-256; 98 S Ct 549; 54 L Ed 2d 511 (1978).
246 Mich App at 222. If a putative father has established a custodial or supportive relationship,
his parental rights can only be terminated pursuant to § 51(6) of the Adoption Code, MCL
710.51(6), which pertains to stepparent adoptions, or pursuant to child protective proceedings,
MCL 712A.1 et seq. MCL 710.39(2).
Respondent argues that he was denied due process by Judge Shelton’s application of the
Adoption Code and decision to stay his paternity action in favor of the adoption proceedings.
According to respondent, an adoption petition should not be allowed to interfere with a putative
father’s attempt to establish paternity or his constitutional right to a relationship with his child,
particularly when the paternity claim is filed before the adoption petition. Petitioners and
Keilman argue that the rights of a putative father may be properly adjudicated under the
Adoption Code, particularly MCL 710.39, and that giving paternity actions priority over
adoption proceedings would impede the speedy resolution of adoptions, subjugate the rights of
adoptees to those of putative fathers, and permit putative fathers to thwart adoption efforts.
“The Fourteenth Amendment provides that no State shall deprive any person of life,
liberty, or property without due process of law,” Lehr v Robertson, 463 US 248, 256; 103 S Ct
2985; 77 L Ed 2d 614 (1983), and the United States Supreme Court has recognized that “the
relationship between parent and child is constitutionally protected,” Quilloin v Walcott, 434 US
246, 255; 98 S Ct 549; 54 L Ed 2d 511 (1978). It is noteworthy, however, that respondent is not
a legal parent because he has not yet perfected paternity and “‘the mere existence of a biological
link’ does not necessarily merit constitutional protection.” Bay Co Prosecutor v Nugent, 276
Mich App 183, 193; 740 NW2d 678 (2007), quoting Lehr, 463 US at 261. Further, “there has
yet to be any determination in this state that a putative father of a child born out of wedlock,
without a court determination of paternity, has a protected liberty interest with respect to the
child he claims as his own.” Nugent, 276 Mich App at 193. One exception is when a putative
father has established a custodial or supportive relationship under MCL 710.39(2). See In re
BKD, 246 Mich App at 221-222. In this case, Judge Shelton determined that respondent failed to
establish such a relationship.
Petitioners and Keilman correctly assert that adoption proceedings must be completed as
quickly as possible and, in general, be given priority on the court’s docket. See MCL 710.21a(c)
and (d); MCL 710.25(1). But the Legislature created an exception to this general rule in MCL
710.25(2), which states that “[a]n adjournment or continuance of a proceeding under this chapter
shall not be granted without a showing of good cause.” Furthermore, while petitioners and
Keilman are correct that the Adoption Code generally protects the parental rights of putative
fathers, see In re BKD, 246 Mich App at 221-222, there may be circumstances in which a
putative father makes a showing of good cause to stay adoption proceedings in favor of a
paternity action. For example, in cases such as this, where there is no doubt that respondent is
the biological father, he has filed a paternity action without unreasonable delay, and there is no
direct evidence that he filed the action simply to thwart the adoption proceedings, there is good
cause for the court to stay the adoption proceedings and determine whether the putative father is
the legal father, with all the attendant rights and responsibilities of that status. Upon a motion to
stay adoption proceedings, the trial court must make a good cause determination based on the
particular circumstances of the case.
In so holding, we do not intend to create a “race to the courthouse,” where a paternity
action takes precedence over an adoption proceeding merely because the paternity action was
filed first; rather, the timing of a paternity claim is but one factor to be considered in determining
whether there is good cause under MCL 710.25(2) to stay adoption proceedings. Furthermore,
while a stated purpose of the Adoption Code is to “safeguard and promote the best interests of
each adoptee,” upholding the rights of the adoptee as paramount to those of any other, see MCL
710.21a(b), the general presumption followed by courts of this state is that the best interests of a
child are served by awarding custody to the natural parent or parents, see, e.g., Hunter v Hunter,
484 Mich 247, 279; 771 NW2d 694 (2009) (holding that “the established custodial environment
presumption in MCL 722.27[c] must yield to the parental presumption in MCL 722.25”).
Thus, giving a paternity action priority over an adoption proceeding does not necessarily conflict
with protecting the best interests of the child.
In this case, respondent established good cause for delaying the adoption proceedings in
favor of his paternity action. There was never any genuine dispute that respondent was the
child’s biological father. He wished to be present for the child’s birth, to be named on the child’s
birth certificate, and to sign an affidavit of parentage, if Keilman had agreed. At the hearing on
respondent’s motion to stay the adoption proceedings, he presented DNA test results establishing
a 99.99 percent probability that he was the child’s father. Moreover, there was no unreasonable
delay in respondent’s attempt to establish paternity. This is not a case in which a putative father
delayed filing a paternity action for many months or years, or until an adoption petition had
already been filed. To the contrary, respondent filed a notice of intent to claim paternity before
the child’s birth. He filed his paternity action shortly after the birth and before petitioners filed
their adoption petition. Considering the timing of respondent’s paternity claim, along with his
efforts to provide support and prepare for fatherhood by taking parenting classes and working
with social services, there is little merit to the argument that he filed his paternity action simply
to thwart Keilman’s adoption plan.
In sum, while adoption proceedings must, in general, take precedence over other actions,
such proceedings may be stayed upon a showing of good cause. Here, respondent established
good cause to stay the adoption proceedings in favor of his paternity action. Judge Shelton erred
by denying respondent’s motion to stay and proceeding with the § 39 hearings without first
determining the issue of paternity. The August 6, 2008, order denying respondent’s motion and
March 18, 2009, order denying respondent custody must be vacated.
III. RESPONDENT’S MOTION TO DISQUALIFY THE TRIAL COURT JUDGE
Respondent further argues that Judge Shelton should have been disqualified and that this
case should be assigned to a different judge on remand. Respondent argues that Judge Shelton
demonstrated bias against him and violated his due process rights. We disagree.
Respondent filed a motion to disqualify Judge Shelton on April 23, 2009, which Judge
Shelton and the chief judge of the circuit denied. The motion was supported by the affidavit of
respondent. We review a trial court’s factual findings regarding a motion for disqualification for
an abuse of discretion and its application of the facts to the law de novo. In re Contempt of
Henry, 282 Mich App 656, 679; 765 NW2d 44 (2009). “An abuse of discretion occurs when the
trial court’s decision is outside the range of reasonable and principled outcomes.” Moore v
Secura Ins, 482 Mich 507, 516; 759 NW2d 833 (2008).
MCR 2.003 provides the procedure and noninclusive list of grounds for the
disqualification of a trial court judge.6 MCR 2.003(C)(1) (now [D]) states:
Time for filing. To avoid delaying trial and inconveniencing the
witnesses, a motion to disqualify must be filed within 14 days after the moving
party discovers the ground for disqualification. If the discovery is made within 14
days of the trial date, the motion must be made forthwith. If a motion is not
timely filed, untimeliness, including delay in waiving jury trial, is a factor in
deciding whether the motion should be granted.
MCR 2.003(B)(1) stated at the time relevant to this action that a trial court judge “is disqualified
when the judge cannot impartially hear a case,” including when the “judge is personally biased
or prejudiced for or against a party or attorney.” See present MCR 2.003(C)(1)(a).
Initially, we find that respondent’s motion for disqualification was untimely. As
indicated, MCR 2.003(C)(1) (now [D]) requires that a motion to disqualify “be filed within 14
days after the moving party discovers the ground for disqualification,” and provides that
“untimeliness . . . is a factor in deciding whether the motion should be granted.” Respondent
argues that Judge Shelton demonstrated bias against him by denying every motion he filed, but
that the “final blow” was the judge’s April 22, 2009, order stating that custody would be
determined under MCL 710.62. Thus, according to respondent, his April 23, 2009, motion for
disqualification was timely filed. But we agree with the chief judge of the circuit that respondent
knew or should have discovered the alleged ground for disqualification when Judge Shelton
issued the March 18, 2009, order denying him custody. The judge denied respondent custody
pursuant to his finding that it was not in the child’s best interests and, at that point, respondent
had no prospects for gaining custody. Moreover, Judge Shelton announced his decision to
determine custody under MCL 710.62 on April 8, 2009, several days before he issued the April
22, 2009, order memorializing his decision. Therefore, we find it disingenuous for respondent to
argue that the April 22, 2009, order was truly the “final blow” triggering the 14-day period to file
a motion for disqualification. Additionally, we disagree with respondent’s assertion that his due
process ground for disqualification should not be subject to the time limitation. Because
respondent’s motion for disqualification was filed more than 14 days after he knew or should
have discovered the alleged bases for disqualification, it was untimely and was, therefore,
properly denied. See Band v Livonia Assoc, 176 Mich App 95, 118; 439 NW2d 285 (1989).
Moreover, regardless of the timing of respondent’s motion, we find that respondent failed
to establish a ground for disqualification. Respondent has not established that Judge Shelton is
biased or prejudiced against him under MCR 2.003(B)(1) (now [C][a]). A trial judge is
presumed to be impartial and the party who asserts partiality has a heavy burden of overcoming
that presumption. Cain v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996). A
showing of prejudice usually requires that the source of the bias be in events or information
MCR 2.003 was amended on November 25, 2009, at which time the sections were
renumbered. Even under the amended court rule, including the addition of MCR 2.003(C)(1)(b),
respondent has failed to establish a basis for disqualification of Judge Shelton.
outside the judicial proceeding. Id. at 495-496. Disqualification on the basis of bias or prejudice
cannot be established merely by repeated rulings against a litigant, even if the rulings are
erroneous. In re Contempt of Henry, 282 Mich App at 680. Further, while personal animus
toward a party requires disqualification, People v Lobsinger, 64 Mich App 284, 290-291; 235
NW2d 761 (1975), respondent contends that Judge Shelton’s bias is toward young biological
fathers who desire to raise their children. A generalized hostility toward a class of claimants
does not present disqualifying bias. People v Wade, 283 Mich App 462, 470; 771 NW2d 447
(2009), rev’d on other grounds 485 Mich ___ (2009). Further, a trial judge’s remarks made
during trial, which are critical of or hostile to counsel, the parties, or their cases, ordinarily do not
establish disqualifying bias. Schellenberg v Rochester Elks, 228 Mich App 20, 39; 577 NW2d
Due process principles require disqualification, absent a showing of actual bias or
prejudice, “in situations where experience teaches that the probability of actual bias on the part
of the judge or decisionmaker is too high to be constitutionally tolerable,” such as situations
when the judge has a pecuniary interest in the outcome, has been the target of personal abuse or
criticism from a party, is enmeshed in other matters involving a party, or has previously
participated in the case as an accuser, investigator, fact-finder, or initial decisionmaker. Cain,
451 Mich at 498 (quotation marks, emphasis, and citations omitted); see also present MCR
2.003(C)(1)(b). Disqualification pursuant to the Due Process Clause is only required “in the
most extreme cases.” Cain, 451 Mich at 498. In this case, Judge Shelton’s basis for proceeding
with this case and applying the standards for terminating a putative father’s rights was not
without a reasonable basis. In and of itself, the judge’s actions were not reflective of a high
probability of bias to the extent that due process principles required disqualification.
Accordingly, respondent’s motion for disqualification was properly denied.
Given our conclusion regarding the first issue, we need not address the remaining issues
raised by the parties on appeal.7
We vacate the trial court’s August 6, 2008, and March 18, 2009, orders and remand to
allow respondent’s related paternity case to proceed. We do not retain jurisdiction.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly
If respondent perfects his legal paternity, the adoption case may not proceed, and the other
issues raised on appeal will be rendered moot. As set forth in MCL 710.31(1):
Except as provided in section 23d of this chapter, if a child is born out of
wedlock and the release or consent of the biological father cannot be obtained, the
child shall not be placed for adoption until the parental rights of the father are
terminated by the court as provided in section 37 or 39 of this chapter, by the
court pursuant to chapter XIIA [MCL 712A.1 et seq.], or by a court of competent
jurisdiction in another state or country.