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STATE OF MICHIGAN COURT OF APPEALS

PHILLIP UNTHANK and PHYLLIS UNTHANK, Plaintiffs-Appellants/CrossAppellees, v CHRISTINE WOLFE, f/k/a CHRISTINE BARNETT, Defendant-Appellee/CrossAppellant, and KENNETH BARNETT, Defendant-Appellee.

FOR PUBLICATION December 23, 2008 9:15 a.m.

No. 284182 Wayne Circuit Court LC No. 05-518779-DC

Advance Sheets Version

Before: Borrello, P.J., and Davis and Gleicher, JJ. GLEICHER, J. In this child custody action, third-party custodians Phillip and Phyllis Unthank appeal as of right the circuit court's order granting Christine Wolfe, the biological mother of the minor child involved, sole physical and legal custody. We affirm regarding custody, but remand for further proceedings concerning Wolfe's motion for attorney fees pursuant to MCR 3.206(C). I. Facts and Proceedings In May 2001, Christine Wolfe married Kenneth Dale Barnett, and later that year Wolfe gave birth to Samantha Barnett. In May 2002, Wolfe filed a complaint for divorce. During the divorce proceedings, Wolfe revealed that she was pregnant. Barnett denied paternity of the unborn child. Wayne Circuit Court Judge Bill Callahan entered a divorce judgment that awarded Wolfe and Barnett joint legal and physical custody of Samantha, but included no provision regarding the unborn child. During the divorce proceedings, Wolfe decided to allow plaintiffs (the Unthanks) to adopt the unborn child. Wolfe and the Unthanks contemplated an adoption pursuant to MCL

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710.23a, which allows a parent to "make a direct placement of the child for adoption by making a temporary placement under" MCL 710.23d. MCL 710.23a(1). "A temporary placement becomes a formal placement when the court orders the termination of the rights of the parent or parents . . . and approves placement under [MCL 710.51]." Id. On January 23, 2003, Wolfe bore the child involved in this dispute, and the next day executed a statement transferring his physical custody to the Unthanks, pursuant to MCL 710.23d(1)(c) of the Michigan Adoption Code. This provision contemplates that in furtherance of a direct placement adoption, a parent with legal and physical custody of a child "may make a temporary placement of the child" through a document "evidencing the transfer of physical custody of the child." The document must also contain, among other things, a declaration that unless the parent or guardian and the prospective adoptive parent agree otherwise, the prospective adoptive parent has the authority to consent to all medical, surgical, psychological, educational, and related services for the child and language indicating that the parent or guardian otherwise retains full parental rights to the child being temporarily placed and that the temporary placement may be revoked by the filing of a petition under subsection (5).[1] [MCL 710.23d(1)(c)(iii) (emphasis added).] The Unthanks called the child Duane and took him home from the hospital when he was one day old. In February 2003, genetic testing revealed that Barnett had fathered the child. Shortly after he received the genetic testing results, Barnett filed a motion in the divorce case seeking custody of the child, accompanied by a birth certificate listing the child's name as Cody Thomas Barnett. Initially, Wolfe opposed Barnett's efforts to obtain custody of his son. When the Unthanks learned of Barnett's interest in custody of the child, they filed a petition in the probate court requesting appointment as the child's "co-temporary guardians." On February 27, 2003, Wayne County Probate Court Judge June Blackwell-Hatcher appointed the Unthanks as temporary coguardians. The letters of guardianship bore an expiration date of April 2, 2003. On March 6, 2003, Barnett filed in the probate court a petition requesting return of the child, which Judge Blackwell-Hatcher denied. The probate court extended the Unthanks' temporary guardianship through April 24, 2003. Barnett then shifted his custody efforts to the circuit court.2 On April 22, 2003, Judge Callahan entered an "Amended Consent Judgment of Divorce," which provided: "IT IS FURTHER ORDERED AND ADJUDGED that the parties to this action have mutually agreed to place the unborn child of the parties, presently in utero, for

Subsection 5, MCL 710.23d(5), addresses the procedure that a parent or guardian must follow when he or she petitions to regain custody of a child who has been temporarily placed. The record of the divorce proceedings has not been provided to this Court. We have derived the facts recited here from the portions of the circuit court record that appear in the probate court record.
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adoption. Accordingly, no further provision for said child is made in this Judgment of Divorce." Apparently in response to Barnett's continuing campaign for the child's custody, in July 2003, the circuit court entered an order awarding Wolfe "full legal and physical custody" of "DUANE UNTHANK, during the pendency of this matter or until the further order of the Court." The order additionally provided: "IT IS FURTHER ORDERED that PHILLIP AND PHYLLIS UNTHANK are the agents of the custodial parent, CHRISTINE WOLFE, and in whom's [sic] residence the minor child will remain until the further order of the Court." In April 2003, September 2003, December 2003, June 2004, and December 2004, Wolfe signed powers of attorney delegating "all of my parental powers" to the Unthanks. In November 2003, Judge Callahan ordered Barnett to pay child support, undergo drug testing, and complete a psychological evaluation. Barnett disobeyed all these orders. Although Wolfe obtained a psychological examination, she failed to undergo the drug testing ordered by Judge Callahan. On March 20, 2005, Wolfe revoked the December 2004 power of attorney. In a letter written to the Unthanks, Wolfe explained that "[i]t has been my decision to raise my child," and requested that within 48 hours the Unthanks "return . . . Duane (Cody) to me." The Unthanks did not respond. On March 29, 2005, Wolfe filed a pro se petition in the divorce proceeding, requesting that the court order the immediate return of her child. On May 15, 2005, the Unthanks filed in the divorce action a "Complaint for Third Party Custody." Wolfe responded with an emergency motion for summary disposition, alleging that the Unthanks lacked standing to seek custody. Judge Callahan agreed that the Unthanks lacked standing to bring a third-party custody action and indicated that he would not entertain their third-party custody complaint unless the probate court appointed them temporary coguardians of the child. On June 3, 2005, the Unthanks filed a petition in the Wayne County Probate Court seeking an order of temporary guardianship.3 On June 8, 2005, the parties appeared before Judge Blackwell-Hatcher in the probate court. Counsel for the Unthanks advised Judge Blackwell-Hatcher that his clients had requested a temporary guardianship "for two reasons": to confer standing in a custody action and to allow the Unthanks to make medical decisions regarding the child. The Unthanks' counsel further represented: And this whole matter should and will go back to Judge Callahan. . . . So we're here solely to seek Temporary guardianship; solely to have this go back to Judge Callahan. And, Judge Callahan will determine what is best for this child, but we fear, unless Judge Callahan can get to the merits, to have a home study done; to direct that the tests which were ordered and never completed, be done; that Duane has lived his entire life with the Unthanks will be moved. Up

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The Unthanks had previously filed a petition for permanent guardianship of the child. As further discussed later, the probate court "stayed" the petition on June 30, 2005.

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until quite recently he was Duane; quite recently he became Cody for some reason he decided to change his name. I have fears for his best interests, but I don't ask this Court to become enmeshed in that custody decision, it's Judge Callahan's. Wolfe's counsel argued that because Wolfe had revoked the final power of attorney and filed a petition requesting the child's return, the Unthanks could not qualify for a guardianship.4 The Unthanks' counsel replied that Wolfe "has smoked marijuana" and "has a history of making poor choices . . . ." Judge Blackwell-Hatcher expressed the following: "I'm not convinced [Wolfe] has made diligent efforts to get her child back. Her reasoning for not doing it isn't logical." After additional argument and discussion with counsel, Judge Blackwell-Hatcher ruled: I think pursuant to the statute, the statutory requirement has been met. I do have some concerns, what I'm going to do is appoint Philip [sic] and Phyllis Unthank as the Temporary guardians, but their letters are going to expire on June 30th. At that time, I'm going to set it for a full hearing, on that day at 11:00. On June 15, 2005, Wolfe appealed in the circuit court Judge Blackwell-Hatcher's order appointing the Unthanks as temporary coguardians. The appeal was assigned to Judge Callahan, who failed to decide it for another 11 months. Meanwhile, on June 23, 2005, the Unthanks again filed a circuit court action seeking custody of the child, which was also assigned to Judge Callahan. That same day, Wolfe filed another petition in the circuit court requesting immediate return of the child. And on June 24, 2005, Wolfe and Barnett stipulated the entry of an order in the divorce action stating that Wolfe would be awarded "the full legal and physical custody, control, maintenance and education of the parties' minor son CODY THOMAS BARNETT." A handwritten provision at the end of the stipulated order stated that the order "does not affect" the guardianship orders "through June 30, 2005," or the circuit court custody case initiated by the Unthanks. On June 30, 2005, the parties appeared before Judge Blackwell-Hatcher for a hearing regarding the temporary guardianship order scheduled to expire that day. Counsel for the Unthanks immediately informed Judge Blackwell-Hatcher that MCL 722.26(b) required that the probate court stay further proceedings until disposition of the child custody action in the circuit court.5 Wolfe's counsel urged Judge Blackwell-Hatcher to order the Unthanks to return the child

Wolfe's counsel invoked Deschaine v St Germain, 256 Mich App 665; 671 NW2d 79 (2003), which we will discuss in more detail later.
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MCL 722.26b(4) provides in pertinent part that [u]pon the filing of a child custody action brought by a child's guardian or limited guardian, guardianship proceedings concerning that child in the probate court are stayed until disposition of the child custody action. A probate court order concerning the guardianship of the child continues in force until superseded by a circuit court order.

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to Wolfe. Judge Blackwell-Hatcher stayed the probate proceedings pending the outcome of Wolfe's appeal of the temporary coguardianship appointment.6 On July 13, 2005, the Wayne Circuit Court transferred the custody matter from Judge Callahan to Judge Blackwell-Hatcher. The next day, the parties and their lawyers gathered in Judge Blackwell-Hatcher's courtroom. Judge Blackwell-Hatcher expressed dismay regarding her assignment to the case and reflected as follows: Well let me just say, as a preliminary matter that, this has been very confusing with the way that it's happened and reviewing the transcript of the prior hearing. I think that some of the things that were said to me were, at best, misleading, at worst, maybe intentional. I'm really kind of concerned. I understand the statute and the reasoning for having cases reassigned to the Probate Judge to sit as a Circuit Judge in Child Custody actions is because it's assumed that the Probate Judge had extensive experience with the family in the guardianship. And, in fact, I didn't at all. The only reason I very reluctantly and very narrowly appointed a temporary guardian was because I was assured that Judge Callahan was so invested in this case, that all he needed was that so that he could flush it out . . . . Counsel for the Unthanks argued that because the child custody filing stayed the probate proceedings, "any guardianship orders then, in effect, remain during the pendency of the Custody Act . . . ." Judge Blackwell-Hatcher ultimately expressed the following: But I think the main point is you've appealed my appointment of the guardian. Why would we go into this extensive custody, all these extensive custody issues when, if your appeal is granted, they have no standing and this matter will be dismissed by me as a Circuit Judge, unless someone else has to hear it, I don't know. Judge Blackwell-Hatcher denied Wolfe's renewed request for immediate return of the child and refused to hear a motion requesting the child's return unless Wolfe's counsel withdrew the guardianship appeal. Wolfe was afforded parenting time, but not overnight visitation. During the 11 months that Judge Callahan considered the appeal of Judge BlackwellHatcher's guardianship decision, the relationship between Wolfe and the Unthanks dramatically deteriorated. In August 2005, the Unthanks moved to suspend Wolfe's parenting time. The motion averred that Wolfe had fed the child meat, notwithstanding that the Unthanks maintained him on a vegetarian diet. Additional allegations in the motion included that Wolfe (1) smoked cigarettes in the child's presence despite his asthma, (2) drove the child in a "car with the

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Judge Blackwell-Hatcher's order did not enter until September 6, 2005.

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windows in the back . . . rolled up in 90o weather," even though the Unthanks believed that Wolfe's vehicle lacked air conditioning, and (3) permitted the child to see Barnett, who the Unthanks claimed had an "established abusive background." The Unthanks further claimed that the child had an abrasion on his chin and a cut on his lip after visits with Wolfe. On September 2, 2005, Phyllis Unthank unilaterally suspended Wolfe's parenting time. Judge Blackwell-Hatcher appointed a guardian ad litem to investigate the Unthanks' assertions. The guardian ad litem concluded that the Unthanks' allegations lacked merit and that no basis existed for the suspension of Wolfe's visitation. Judge Blackwell-Hatcher reinstated Wolfe's parenting time. In March 2006, Wolfe and Phyllis Unthank argued while exchanging the child, and a physical altercation ensued. Wolfe refused to return the child to the Unthanks, and Phyllis Unthank called the police. The police returned the child to the Unthanks several days later. At an April 2006 hearing regarding these events, Judge Blackwell-Hatcher ordered that future exchanges of the child occur in a public place. The parties' disagreements regarding the child extended to virtually every aspect of the boy's life. For example, throughout the four years of the custody dispute, Wolfe referred to the child as "Cody" when he was in her care, while the Unthanks called him "Duane." On May 19, 2006, Judge Callahan entered an order denying Wolfe's appeal of Judge Blackwell-Hatcher's order for temporary coguardianship. In June 2006, the Unthanks filed another motion to suspend Wolfe's parenting time, primarily complaining that the child had "rope burns" on the back of his neck after a visit with Wolfe. The Unthanks initiated an investigation by Child Protective Services (CPS), which declined to take further action after a social worker viewed the reddened areas. At a hearing conducted on July 12, 2006, Wolfe testified that the child had sustained a small injury while playing with his older sister and a jump rope. Judge Blackwell-Hatcher admonished Wolfe to supervise the children more carefully, but refused to suspend Wolfe's parenting time.7 On October 12, 2006, the parties commenced a custody trial, which continued on October 13, 2006, and January 26, 2007. The trial witnesses included the parties, the guardian ad litem, and a psychologist who had evaluated Wolfe and Barnett in 2003. On February 20, 2008, more than a year after the trial concluded, Judge Blackwell-Hatcher entered an opinion and order denying the Unthanks' motion for custody, awarding sole custody of the child to Wolfe, and denying Wolfe's request for attorney fees.

At the subsequent custody trial, Phyllis Unthank admitted that she had made a second CPS referral regarding Wolfe, which CPS investigated but failed to pursue.

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II. Analysis A The Unthanks raise several challenges to the soundness of Judge Blackwell-Hatcher's opinion and order awarding Wolfe custody of the child. But first we must address a preliminary and potentially dispositive question of law. We recognize that the parties do not specifically devote arguments in their appellate briefs to the matter of the Unthanks' standing. However, as reflected within our factual and procedural summary, the parties did raise the issue of standing before the circuit and probate courts. In any event, because the question of standing constitutes an important preliminary legal issue for which we have all the relevant facts, we choose to address it at the outset of our analysis. Detroit Leasing Co v Detroit, 269 Mich App 233, 237238; 713 NW2d 269 (2005). "The question of standing is not merely whether a party has a `personal stake' in the outcome that will ensure `sincere and vigorous advocacy.'" Bowie v Arder, 441 Mich 23, 42; 490 NW2d 568 (1992) (citation omitted). Additionally, "[o]ne cannot rightfully invoke the jurisdiction of the court to enforce private rights, or maintain a civil action for the enforcement of such rights, unless one has in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy. This interest is generally spoken of as `standing' . . . ." [Id. at 42-43 quoting 59 Am Jur 2d, Parties,

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