In re A. K. Dixon

1

In re A. K. DIXON, Minor.

No. 363388

Court of Appeals of Michigan

April 20, 2023

Genesee Circuit Court Family Division LC No. 21-137495-NA

Before: GLEICHER, C.J., and O'BRIEN and MALDONADO, JJ.

GLEICHER, C.J.

Within days after AKD's birth, the Department of Health and Human Services (DHHS) petitioned for his removal from his mother and for the termination of her parental rights. The DHHS knew that the current respondent was the child's likely father. Father expeditiously established his paternity. Yet the DHHS neglected to file a petition naming him as a respondent for 15 months after his child was placed in foster care. During the interim, father urged the court to place his son with PM, fictive kin. The court rejected this option, and father now appeals the court's "removal" order.

The DHHS's delays are deeply troubling. But because the court reasonably determined that the fictive kin suggested by father was an inappropriate placement, we must affirm.

I. BACKGROUND

On June 7, 2021, mother gave birth to AKD. Father was incarcerated at the time of AKD's birth and was not present to immediately sign an acknowledgment of parentage (AOP). This prevented mother from placing father's name on the birth certificate. MCL 333.2824(2). Mother named the child after father, and before the preliminary hearing on June 16, the DHHS identified father as the putative father. Father remained incarcerated but appeared at the virtual hearing and was represented by counsel. The referee advised father that he had "been named as the putative father" and that the court could "work on getting [a DNA test] set up for him." The referee further advised father that he had 14 days "to start working with us to establish paternity if this is something you would like to do." Father requested a DNA test and asked for an adjournment until the DHHS served the petition on him. The referee indicated that the court would keep father "informed of everything" but the DHHS could not include him as a respondent or grant him the rights of a legal parent until paternity was officially determined. The court further noted that although father was incarcerated and could not take physical custody of the child, once paternity was legally determined, "he may have family . . . that would be appropriate to care for the child." At the close of the hearing, the court approved the DHHS plan to place AKD in the licensed foster home where his two older half-siblings had been placed.

By September 29, 2021, DNA testing established father as AKD's biological parent. Counsel for the DHHS stated, "I also think that [father] did sign an [AOP] and that we are just waiting to file it with the Court or waiting to get it from the jail." Father's counsel agreed with the DHHS's assessment, noting that father was "kind of in limbo right now because he's signed the AOP and I'm told it's been sent to Lansing, so he's not officially a father yet." DHHS's counsel expressed the department's intent to file an amended petition naming father as a respondent, but only for purposes of jurisdiction and removal, not termination. Father's counsel requested an adjournment "so that we can make sure everything is done correctly." The court proceeded to take evidence regarding mother's case and terminated her parental rights to AKD. At that termination hearing, a DHHS caseworker testified that the foster family was willing to plan for AKD permanently and to adopt him.

By the next hearing on November 23, 2021, the DHHS had received the AOP, submitted it to Vital Records, and was awaiting return of "the official copy." The DHHS still had not filed an amended petition naming father as a respondent. By this time, AKD was 5½ months old.

The next hearing was not conducted until February 22, 2022-8½ months after AKD's birth and five months after biological paternity had been established. Inexplicably, the DHHS still had not named father as a respondent or filed an amended petition seeking jurisdiction as to father. MCR 3.965(B)(8) required the court to "advise" father of his "right to seek placement of his . . . child[] in his . . . home." However, father remained incarcerated with an earliest release date of October 2023, unable to take physical custody of his child. His counsel argued:

Well, your Honor, since - since he's now the legal father and there are no allegations in any petition against him, he can place the child where he wants. So, um, I think that they need to ask him where he wants the child to go, and the child needs to go there.

The DHHS caseworker recommended keeping AKD in his current placement as he was "doing very well," had been in the care of the foster home "since he was a very little baby," and was placed with his two older brothers. Moreover, the caseworker had "reached out to [father's] family, and no one was interested in placement of the people that [father] gave me to get in contact with." Father's counsel inquired if father could identify other potential placements. Counsel argued that as no allegations had been levied against father, if he identified a willing placement, "they don't have to go through any background checks" and the DHHS "doesn't get to refuse to put the child there .... He can place wherever he wants."

The court placed father under oath. The court advised father that it would prefer that only family members be recommended for placement but would consider "if there were other individuals that you believe would be appropriate." However, the court rejected counsel's position that placement would be automatic, indicating that the DHHS would evaluate any recommended placement. Father asked the court and DHHS to consider placement with his "significant other," PM. The DHHS acknowledged that father had identified PM as a potential placement and father stated that PM had expressed willingness to take custody of AKD. The court ordered the DHHS to evaluate PM for potential placement and to investigate initiating virtual visits for father and his son.

On May 10, 2022, the DHHS presented its recommendation about placement of AKD with PM. The caseworker reported:

[W]e did conduct a home study at the home. Um, and honestly we do have some concerns relating to placement of [AKD] in this home. Although [PM's] intentions are very - are very good, um, the history that comes with this I do not believe will put [AKD] in a safe environment. [PM] has known [father] for approximately five years. They have been in an on-and-off relationship. They were engaged at one point prior to this most current incarceration and split up due to [father] cheating on [PM] with [AKD's mother]. Um, they did reconcile while he - and then now he is in prison again for I believe approximately two more years.

[PM] has nine instances of CPS history over a fourteen year span, um, approximately 2004 to as - as close as 2018. These investigations did not all directly involve her, but she was named in all of these investigations due to affiliation with the people or regarding herself. These were allegations that included substance abuse and physical neglect.

Um, there's also question that [PM] has communication with the birth mother's mother, which is a little confusing to explain, but we have gotten numerous reports that they talk on a regular basis; and there is concern that, if [AKD] was placed in this home, that he could have unauthorized and possibly unsafe connections with his birth family, birth mom. Birth mom currently knows that this is possibly going to take place and has made threats already to [PM]. And, when I visited with [PM] at her home, when we did some - brought [AKD] to meet her, um, she did state that she believed that, within a couple of weeks, CPS would already be called to her house due to how many people are so apparently against this placement.

. . . [S]o honestly, she hasn't - [PM] hasn't had any CPS history investigations recently, but she also hasn't had any children in her home so it - she does say that she is sober for ten years, but there was a substance abuse issue at the time.

The DHHS requested that AKD be kept in place and sought another adjournment as it still had not filed a petition to name father as a respondent despite that the child was then 11 months old.

The child's LGAL concurred with the DHHS recommendation. She cited further concerns with placing AKD with PM:

Financial concerns - my understanding is that [PM] does not own or rent her own home; she lives with her mother. It's a two-bedroom home. She received Social Security Disability of about eight or nine hundred dollars a month. She does have a car payment and insurance, so I mean that - she had to pay for her own necessities, so I'm very concerned financially. She would not be receiving, you know, financial support for [AKD].

Um, I'm also very concerned about the CPS history that was reported. My biggest concern is that there is no relationship between [AKD] and [PM], none; and he is absolutely thriving in his current placement where he lives with his two siblings. They are in the process - I don't know if they have already been adopted by the foster parents or not, but that process is ongoing. This is an extremely stable environment and my concern is is [sic] that it's so important with little ones - the first two years of a child's life it's just critical to form those safe attachments, those bonds. I mean, that really sets the foundation for a child's emotional stability and well-being. So I'm absolutely terrified of this, you know, moving him at this point. If it's not to place back with parent, I don't - I - I worry about that.

I'm also very concerned about the safety of - of [AKD] being placed with [PM] as referred. My understanding is that mother has made threats during all the

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