June 7, 2006, Introduced by Senators JOHNSON, HAMMERSTROM, TOY, McMANUS, BIRKHOLZ, GEORGE, EMERSON, STAMAS, GARCIA, CROPSEY, BROWN, HARDIMAN, JELINEK, PATTERSON, GILBERT, VAN WOERKOM, GOSCHKA, KUIPERS, CHERRY, ALLEN, BISHOP, BARCIA, SIKKEMA, PRUSI, JACOBS and WHITMER and referred to the Committee on Families and Human Services.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending sections 1, 3, 7, 10, 11, 14, 15, and 17 of chapter XII
(MCL 712.1, 712.3, 712.7, 712.10, 712.11, 712.14, 712.15, and
712.17), sections 1, 7, 10, 11, 14, 15, and 17 as added by 2000 PA
232 and section 3 as amended by 2002 PA 688, and by adding section
2a to chapter XII; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER XII
Sec. 1. (1) This chapter shall be known and may be cited as
the "safe delivery of newborns law".
(2) As used in this chapter:
(a) "Child placing agency" means that term as defined in
section 1 of 1973 PA 116, MCL 722.111.
(b) "Court" means the family division of circuit court.
(c)
"Department" means the family independence agency
department of human services.
(d) "DNA identification profile" and "DNA identification
profiling" mean those terms as defined in section 1 of the
paternity act, 1956 PA 205, MCL 722.711.
(e) (d)
"Domestic violence" means that term as
defined in
section 1 of 1978 PA 389, MCL 400.1501.
(f) (e)
"Emergency service provider" means a
uniformed or
otherwise identified employee or contractor of a fire department,
hospital,
or police station when such an that individual is
inside the premises and on duty. Emergency service provider
includes a firefighter, law enforcement officer, paramedic,
emergency medical technician, or other individual who provides
emergency medical services in the course of the individual's
employment when that individual is responding to a 9-1-1 emergency
call.
(g) (f)
"Fire department" means an organized fire
department
as that term is defined in section 1 of the fire prevention code,
1941 PA 207, MCL 29.1.
(h) (g)
"Gross negligence" means conduct so
reckless as to
demonstrate a substantial lack of concern for whether an injury
results.
(i) (h)
"Hospital" means a hospital that is
licensed under
article 17 of the public health code, 1978 PA 368, MCL 333.20101 to
333.22260.
(j) "Identifying information" means that term as described in
section 27(3) of chapter X.
(k) (i)
"Lawyer-guardian ad litem" means an
attorney
appointed under section 2 of this chapter. A lawyer-guardian ad
litem represents the newborn, and has the powers and duties, as set
forth in section 17d of chapter XIIA.
(l) "Parent" means a newborn's mother or a man married to a
newborn's mother at any time from the newborn's conception to
birth, or both. If a newborn's mother is unmarried from the
newborn's conception to birth, parent includes the newborn's
biological father.
(m) (j)
"Newborn" means a child who a physician
reasonably
believes to be not more than 72 hours old.
(n) (k)
"Police station" means that term as
defined in
section 43 of the Michigan vehicle code, 1949 PA 300, MCL 257.43.
(o) (l) "Preplacement assessment" means an assessment
of a
prospective adoptive parent as described in section 23f of chapter
X.
(p) (m)
"Surrender" means to leave a newborn with
an
emergency service provider without expressing an intent to return
for the newborn.
Sec. 2a. (1) A hearing under this chapter is closed to the
public. A record of a proceeding under this chapter is
confidential, except that the record is available to any individual
who is a party to that proceeding.
(2) All child placing agency records created under this
chapter are confidential except as otherwise provided in the
provisions of this chapter.
(3) An individual who discloses identifying information
without a court order or specific authorization under federal or
state law is guilty of a misdemeanor punishable by imprisonment for
not more than 93 days or a fine of not more than $100.00, or both.
An individual who discloses identifying information without a court
order or specific authorization under federal or state law is
civilly liable for damages proximately caused by disclosure of that
identifying information.
Sec. 3. (1) If a parent surrenders a child who may be a
newborn to an emergency service provider, the emergency service
provider shall comply with the requirements of this section under
the assumption that the child is a newborn. The emergency service
provider shall, without a court order, immediately accept the
newborn, taking the newborn into temporary protective custody. The
emergency service provider shall make a reasonable effort to do all
of the following:
(a) Take action necessary to protect the physical health and
safety of the newborn.
(b) Inform the parent that by surrendering the newborn, the
parent is releasing the newborn to a child placing agency to be
placed for adoption.
(c) Inform the parent that the parent has 28 days to petition
the court to regain custody of the newborn.
(d) Provide the parent with written material approved by or
produced
by the family independence agency department that
includes, but is not limited to, all of the following statements:
(i) By surrendering the newborn, the parent is releasing the
newborn to a child placing agency to be placed for adoption.
(ii) The parent has 28 days after surrendering the newborn to
petition the court to regain custody of the newborn.
(iii) After the 28-day period to petition for custody elapses,
there will be a hearing to determine and terminate parental rights.
(iv) There will be public notice of this hearing, and the
notice will not contain the parent's name.
(v) The parent will not receive personal notice of this
hearing.
(vi) Information the parent provides to an emergency service
provider will not be made public.
(vii) A parent can contact the safe delivery line established
under section 20 of this chapter for more information.
(2) After providing a parent with the information described in
subsection (1), an emergency service provider shall make a
reasonable attempt to do all of the following:
(a) Encourage the parent to provide any relevant family or
medical information.
(b) Provide the parent with the pamphlet produced under
section 20 of this chapter and inform the parent that he or she can
receive counseling or medical attention.
(c) Inform the parent that information that he or she provides
will not be made public.
(d) Ask the parent to identify himself or herself.
(e) Inform the parent that in order to place the newborn for
adoption the state is required to make a reasonable attempt to
identify the other parent, and then ask the parent to identify the
other parent.
(f) Inform the parent that the child placing agency that takes
temporary protective custody of the newborn can provide
confidential services to the parent.
(g) Inform the parent that the parent may sign a release for
the
newborn which that
may be used at the parental rights
termination hearing under this chapter.
(3) A newborn whose birth is described in the born alive
infant protection act, 2002 PA 687, MCL 333.1071 to 333.1073, and
who is in a hospital setting or transferred to a hospital under
section 3(1) of the born alive infant protection act, 2002 PA 687,
MCL
333.1073, is a newborn surrendered as
provided in this act
chapter. An emergency service provider who has received a
newborn
pursuant
to under the born alive infant protection act, 2002 PA
687, MCL 333.1071 to 333.1073, shall do all of the following:
(a) Comply with the requirements of subsections (1) and (2) to
obtain information from or supply information to the surrendering
parent by requesting the information from or supplying the
information to the attending physician who delivered the newborn.
(b) Make no attempt to directly contact the parent or parents
of the newborn.
(c) Provide humane comfort care if the newborn is determined
to have no chance of survival due to gestational immaturity in
light of available neonatal medical treatment or other condition
incompatible with life.
Sec. 7. Upon receipt of notice from a hospital under section 5
of this chapter, the child placing agency shall do all of the
following:
(a) Immediately assume the care, control, and temporary
protective custody of the newborn.
(b) If a parent is known and willing, immediately meet with
the parent.
(c) Make
Unless otherwise provided in
this subdivision, make
a temporary placement of the newborn with a prospective adoptive
parent
who has an approved preplacement assessment. and resides
within
the state. If a petition for
custody is filed under section
10 of this chapter, the child placing agency may make a temporary
placement of the newborn with a licensed foster parent.
(d) Immediately
Unless the birth was
witnessed by the
emergency service provider, immediately request assistance from law
enforcement officials to investigate and determine, through the
missing children information clearinghouse, the national center for
missing and exploited children, and any other national and state
resources, whether the newborn is a missing child.
(e) Not later than 48 hours after a transfer of physical
custody to a prospective adoptive parent, petition the court in the
county in which the prospective adoptive parent resides to provide
authority to place the newborn and provide care for the newborn.
The petition shall include all of the following:
(i) The date of the transfer of physical custody.
(ii) The name and address of the emergency service provider to
whom the newborn was surrendered.
(iii) Any information, either written or verbal, that was
provided by and to the parent who surrendered the newborn. The
emergency service provider that originally accepted the newborn as
required by section 3 of this chapter shall provide this
information to the child placing agency.
(f)
Within 28 days, make reasonable efforts to identify, and
locate, a
parent who did not surrender the newborn and provide
notice of the surrender of the newborn to the nonsurrendering
parent. The child placing agency shall file a written report with
the court that issued the order placing the child, which report
establishes the efforts the child placing agency made in attempting
to identify and locate the nonsurrendering parent and the results
of those efforts. If the identity and address of that parent are
unknown, the child placing agency shall provide notice of the
surrender of the newborn by publication in a newspaper of general
circulation in the county where the newborn was surrendered.
Sec.
10. (1) If a biological surrendering parent wants
custody of a newborn who was surrendered under section 3 of this
chapter,
the parent must shall, within 28 days after the newborn
was
surrendered, file an action a petition with the court
for
custody. The
Not later than 28 days after
notice of surrender of
a newborn has been published, an individual claiming to be the
nonsurrendering parent of that newborn may file a petition with the
court and request the court to award custody of the surrendered
newborn to the petitioner. The surrendering parent or
nonsurrendering
parent shall file the custody
action petition in
1 of the following counties:
(a) If the parent has located the newborn, the county where
the newborn is located.
(b) If subdivision (a) does not apply and the parent knows the
location of the emergency service provider to whom the newborn was
surrendered, the county where the emergency service provider is
located.
(c) If neither subdivision (a) nor (b) apply, the county where
the parent is located.
(2) If the court in which the petition is filed did not issue
the order placing the newborn, the court in which the petition is
filed shall locate and contact the court that issued the order and
shall transfer the proceedings to that court.
(3) (2)
Before holding a custody hearing in
an action on a
petition filed under this section and not later than 7 days after a
petition
under this section has been filed, the
court shall
determine
whether the individual filing the custody action is the
newborn's
biological parent conduct a
hearing to make the
determinations required in section 14 of this chapter.
Sec.
11. (1) In a petition for custody
action filed
under
this
chapter, the court shall may
order that the child and each
party
claiming paternity or maternity and the child to submit to
blood
or tissue typing determinations , which may include, but are
not
limited to, determinations of red cell antigens, red cell
isoenzymes,
human leukocyte antigens, serum proteins, or DNA
identification
profiling, to determine whether each party is likely
to
be, or is not, a biological parent of the child. If the court
orders
a blood or tissue typing or DNA identification profiling to
be
conducted and a party refuses to submit to the typing or DNA
identification
profiling, in addition to any other remedies
available,
the court may do either of the following: or DNA
identification profiling, as described in section 16 of the
paternity act, 1958 PA 205, MCL 722.716.
(a)
Dismiss the custody action in regard to the party who
refuses.
(b)
If a hearing is held, allow the disclosure of the fact of
the
refusal unless good cause is shown for not disclosing the fact
of
refusal.
(2)
A blood or tissue typing or DNA identification profiling
shall
be conducted by a person accredited for paternity or
maternity
determinations by a nationally recognized scientific
organization,
including, but not limited to, the American
association
of blood banks.
(3)
The court shall fix the compensation of an expert at a
reasonable
amount. Except for an individual who the court
determines
is indigent, the court shall direct each party claiming
paternity
or maternity to pay the compensation for his or her own
testing
plus a portion of the compensation for testing the child
equal
to the total amount divided by the number of parties claiming
paternity
and maternity. Before blood or tissue typing or DNA
identification
profiling is conducted, the court may order a part
or
all of the compensation paid in advance. Documentation of the
genetic
testing expenses is admissible as evidence of the amount,
which
evidence constitutes prima facie evidence of the amount of
those
expenses without third party foundation testimony.
(2) If the probability of paternity or maternity determined by
the blood or tissue typing or DNA identification profiling is 99%
or higher and the DNA identification profile and summary report are
admissible, paternity or maternity is presumed and the petitioner
may move for summary disposition on the issue of paternity or
maternity.
(3) The court may order the petitioner to pay all or part of
the cost of the paternity or maternity testing.
(4) If the result of the paternity or maternity testing is
admissible and establishes that the petitioner could not be the
parent of the newborn, the court shall dismiss the petition for
custody.
Sec.
14. (1) In Except
as provided in subsections (3) and
(4), in a custody action under this chapter, the court shall
determine custody of the newborn based on the newborn's best
interest. The court shall consider, evaluate, and make findings on
each factor of the newborn's best interest with the goal of
achieving permanence for the newborn at the earliest possible date.
(2) A newborn's best interest in a custody action under this
chapter is all of the following factors regarding a parent claiming
parenthood of the newborn:
(a) The love, affection, and other emotional ties existing
between the newborn and the parent.
(b) The parent's capacity to give the newborn love, affection,
and guidance.
(c) The parent's capacity and disposition to provide the
newborn with food, clothing, medical care, or other remedial care
recognized and permitted under the laws of this state in place of
medical care, and other material needs.
(d) The permanence, as a family unit, of the existing or
proposed custodial home.
(e) The parent's moral fitness.
(f) The parent's mental and physical health.
(g) Whether the parent has a history of domestic violence.
(h)
If the parent is not the parent who surrendered the
newborn,
the opportunity the parent had to provide appropriate care
and
custody of the newborn before the newborn's birth or surrender.
(h) (i)
Any other factor considered by the court to be
relevant to the determination of the newborn's best interest.
(3) If the newborn's mother was unmarried from the newborn's
conception to birth and if the newborn's biological father did not
surrender the newborn and provided substantial and regular support
or care in accordance with his ability for the mother during
pregnancy, the parental rights of the newborn's biological father
may not be terminated under this chapter and may only be terminated
under section 19(b) of chapter XIIA.
(4) If the newborn's mother was married at any time from the
newborn's conception to birth and the newborn's mother did not
surrender the newborn, the parental rights of the newborn's mother
or the man married to the newborn's mother, if he did not surrender
the newborn, may only be terminated under section 19(b) of chapter
XIIA.
Sec.
15. Based on the court's finding of the newborn's best
interest
under section 14 of this chapter, the court may
issue an
order that does 1 of the following:
(a)
Grants legal or physical custody, or both, of the newborn
to
the parent, and either retains or relinquishes jurisdiction.
(b)
Terminates the parent's parental rights and gives a child
placing
agency custody and care of the newborn.
(a) Determines that the petitioner is the newborn's mother and
grants legal and physical custody to the petitioner.
(b) If subdivision (a) does not apply and the newborn's mother
is not the petitioner for custody, determines that the petitioner
is the newborn's father and grants legal and physical custody to
the petitioner.
(c) Determines that the best interests of the newborn are not
served by granting custody to the petitioner parent and terminates
the parent's parental rights and gives a child placing agency
custody and care of the newborn.
(d) Dismisses the petition.
Sec. 17. (1) A parent who surrenders a newborn under section 3
of this chapter and who does not file a custody action under
section 10 of this chapter is presumed to have knowingly released
his or her parental rights to the newborn.
(2)
If a custody action is not filed under section 10 of this
chapter,
the child placing agency shall petition the court for
termination
of parental rights under section 19b of chapter XIIA.
If
the agency has complied with section 7(f) of this chapter, the
notice
under that section is the notice to the newborn's parents
required
by section 19b of chapter XIIA.
(2) If the surrendering parent has not filed a petition for
custody of the newborn within 28 days of the surrender, the child
placing agency with authority to place the newborn shall
immediately file a petition with the court to determine whether the
release shall be accepted and whether the court shall enter an
order terminating the rights of the surrendering parent.
(3) If the nonsurrendering parent has not filed a petition for
custody of the newborn within 28 days of notice of surrender of a
newborn under section 10 of this chapter, the child placing agency
with authority to place the newborn shall immediately file a
petition with the court to determine whether the court shall enter
an order terminating the rights of the nonsurrendering parent.
(4) The court shall schedule a hearing on the petition from
the child placing agency within 14 days of receipt of that
petition. At the hearing, the child placing agency shall present
evidence to establish that the surrendering parent released the
newborn and that the court should enter an order terminating the
surrendering parent's rights. The child placing agency shall
present evidence that indicates the efforts that the child placing
agency has made to identify, locate, and provide notice to the
nonsurrendering parent. The child placing agency shall present
evidence that the court should enter an order terminating the
nonsurrendering parent's rights. If the court finds by a
preponderance of the evidence that the surrendering parent has
knowingly released his or her rights to the child and that
reasonable efforts were made to locate the nonsurrendering parent,
the court shall enter an order terminating parental rights under
this chapter. Enacting section 1. Sections 12 and 13 of chapter
XII of the probate code of 1939, 1939 PA 288, MCL 712.12 and
712.13, are repealed.