HB-4646, As Passed House, June 4, 2013

SUBSTITUTE FOR

HOUSE BILL NO. 4646

A bill to amend 1939 PA 288, entitled

"Probate code of 1939,"

by amending sections 23d, 29, and 44 of chapter X (MCL 710.23d,

710.29, and 710.44), section 23d as amended by 2004 PA 487 and

sections 29 and 44 as amended by 1996 PA 409.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER X

Sec. 23d. (1) In a direct placement, a parent or guardian with

legal and physical custody of a child may make a temporary

placement of the child as prescribed by this section. In an agency

placement, a child placing agency with written authorization from

the parent or guardian as prescribed by section 23b of this chapter

may make a temporary placement of the child as prescribed by this

section. A temporary placement shall meet all of the following

requirements:

(a) The prospective adoptive parent with whom a child is

temporarily placed has had a preplacement assessment completed

within 1 year before the date of the transfer with a finding that

the prospective adoptive parent is suitable to be a parent of an

adoptee.

(b) In a direct placement, the parent or guardian is assisted

by an adoption attorney or a child placing agency.

the parent, guardian, or representative of the child placing agency

signs a statement evidencing the transfer of physical custody of

the child. If the parent making the temporary placement is an

unemancipated minor, the statement is not valid unless it is also

signed in the presence of the witness by a parent or guardian of

that minor parent. The statement shall contain all of the

following:

(i) The date of the transfer of physical custody.

(ii) Language providing that the transfer is for the purpose of

adoption by the prospective adoptive parent.

(iii) Language indicating 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).

(iv) Language providing that the person making the transfer has

read a preplacement assessment of the prospective adoptive parent

completed or updated within 1 year before the date of the transfer

with a finding that the prospective adoptive parent is suitable to

be a parent of an adoptee. If a child placing agency makes the

transfer of physical custody, the statement shall include a

verification that the child placing agency has given the parent or

guardian who authorized the temporary placement an opportunity to

review the preplacement assessment.

(v) Even if only 1 parent is making the temporary placement,

the name and address of both parents of the child, including in the

case of a child born out of wedlock, the name and the address of

each putative father of the child, if known.

(d) In the presence of a witness who also signs the document,

the prospective adoptive parent signs a statement setting forth the

date of the transfer of physical custody and the name and address

of the prospective adoptive parent and attesting to all of the

following:

(i) That the prospective adoptive parent understands that the

temporary placement will not become a formal placement until the

parents consent or release their parental rights and the court

orders the termination of parental rights and approves the

placement and that the prospective adoptive parent must relinquish

custody of the child within 24 hours after being served with an

order under section 23e(2) of this chapter.

(ii) That, if the prospective adoptive parent is a Michigan

resident, the prospective adoptive parent agrees to reside with the

child in Michigan until formal placement occurs.

(iii) That the prospective adoptive parent agrees to obtain

approval in compliance with the interstate compact on the placement

of children, 1984 PA 114, MCL 3.711 to 3.717, before the child is

sent, brought, or caused to be sent or brought into a receiving

state as that term is defined in section 1 of the interstate

compact on the placement of children, 1984 PA 114, MCL 3.711.

(iv) That the prospective adoptive parent submits to this

state's jurisdiction.

(2) Not later than 2 days, excluding weekends and holidays,

after a transfer of physical custody of a child in accordance with

subsection (1), the adoption attorney or child placing agency who

assists with the temporary placement or the child placing agency

that makes the temporary placement shall submit to the court in the

county in which the child's parent or guardian or the prospective

adoptive parent resides, or in which the child is found, a report

that contains all of the following:

(a) The date of the transfer of physical custody.

(b) The name and address of the parent or guardian or the

child placing agency who made the temporary placement.

with whom the temporary placement was made.

(d) Even if only 1 parent is making the temporary placement,

the name and address of both parents of the child, including, in

the case of a child born out of wedlock, the name of each putative

father, if known.

(e) The documents required under subsection (1)(c) and (d)

and, if applicable, the authorization required under section 23b of

this chapter.

(3) Not later than 30 days after the transfer of physical

custody of a child under this section, the adoption attorney or

child placing agency who assists with the temporary placement or

the child placing agency that makes the temporary placement shall

submit to the court that received the report described in

subsection (2) a report indicating whether or not 1 of the

following dispositions has occurred:

(a) A petition for adoption of the child has been filed.

(b) The child has been returned to the agency or to a parent

or other person having legal custody.

(4) If the court has not received the report required under

subsection (3) within 45 days after the transfer of physical

custody of a child, the court shall immediately investigate and

determine whether an adoption petition has been filed or the child

has been returned to a parent or other person having legal custody.

If the report required under subsection (3) or the court's

investigation reveals that neither disposition has occurred, the

court shall immediately report to the prosecutor, who shall

immediately file a petition in the court that received the report

described in subsection (2) for disposition of the child as

required by section 23e of this chapter. If a petition has been

filed under subsection (5), (6), or (7), the prosecutor is not

required to file a petition.

(5) A parent or guardian who wishes to regain custody of a

child who has been placed temporarily shall file a petition in the

court that received the report described in subsection (2)

requesting that the temporary placement be revoked and that the

child be returned to the parent or guardian. Upon request of the

parent or guardian, the adoption attorney or child placing agency

who assisted in making the temporary placement shall assist the

parent or guardian in filing the petition to revoke the temporary

placement. If the temporary placement was made by a child placing

agency under section 23b(3) of this chapter, the child placing

agency shall file the petition on behalf of a parent or guardian

who wishes to regain custody of the child.

(6) If a prospective adoptive parent with whom a child has

been temporarily placed is either unwilling or unable to proceed

with the adoption, the prospective adoptive parent may file a

petition in the court that received the report described in

subsection (2) for disposition of the child as required by section

23e of this chapter.

(7) If a child placing agency that temporarily placed a child

is unable to proceed with an adoption because of the unavailability

of a parent or guardian to execute a release, or if a child placing

agency with legal custody of a child decides not to proceed with

the adoption by a prospective adoptive parent with whom the child

has been temporarily placed and the prospective adoptive parent

refuses upon the agency's request to return the child to the

agency, the child placing agency shall file a petition in the court

that received the report described in subsection (2) for

disposition of the child as required by section 23e of this

chapter.

(8) Except as otherwise agreed to by the parties, the

prospective adoptive parent with whom a child is temporarily placed

under this section may consent to all medical, surgical,

psychological, educational, and related services for the child.

(9) A hospital or attending practitioner shall not release a

child to an individual or agency not otherwise legally entitled to

the physical custody of the child unless all of the requirements of

subsection (1) are met.

(10) If an out-of-court release or out-of-court consent has

been signed, a petition filed under this section to revoke a

temporary placement must be filed with the court not more than 5

days, excluding weekends and holidays, after the out-of-court

release or out-of-court consent has been executed.

Sec. 29. (1) Except as otherwise provided in this section, a

release shall be by a separate instrument executed before a judge

of the court or a juvenile court referee. If a parent's or

guardian's release is executed before a judge or referee as

provided in this subsection, a verbatim record of testimony related

to execution of the release shall be made.

(2) If the person from whom a release is required is in the

armed services or is in prison, the release may be executed and

acknowledged before an individual authorized by law to administer

oaths.

(3) If the release is to be given by an authorized

representative of a child placing agency that has jurisdiction of

the child to be adopted, the release may be executed and

acknowledged before an individual authorized by law to administer

oaths.

(4) If the release is executed in another state or country,

the court having jurisdiction over the adoption proceeding in this

state shall determine whether the release was executed in

accordance with the laws of that state or country or the laws of

this state and shall not proceed unless it finds that the release

was so executed.

(5) A parent or guardian may execute an out-of-court release

in front of and witnessed by a third party witness and an adoption

attorney representing the parent or guardian or a third party

witness and a child placing agency caseworker, after a 24-hour

waiting period that begins at the time of the child's birth has

expired unless exigent circumstances exist that prohibit or impede

waiting 24 hours. If exigent circumstances exist, the specific

circumstances must be stated in the out-of-court release or in a

statement attached to the out-of-court release prepared by the

adoption attorney who represents the parent or guardian and

witnessed the out-of-court release or a caseworker from the child

placing agency that accepted the out-of-court release. If the

parent executing the out-of-court release is an unemancipated

minor, the out-of-court release is not valid unless it is also

signed in the presence of the witness by a parent or guardian of

that unemancipated minor parent.

(6) ~~(5)~~ A release by a parent or guardian shall be accompanied

by a verified statement signed by the parent or guardian that

contains all of the following:

(a) That the parent or guardian has received a list of support

groups and, if the release is to a child placing agency, a copy of

the written document described in section 6(1)(c) of the foster

care and adoption services act, ~~Act No. 203 of the Public Acts of~~

~~1994, being section 722.956 of the Michigan Compiled Laws.~~1994 PA

203, MCL 722.956.

(b) That the parent or guardian has received counseling

related to the adoption of his or her child or waives the

counseling with the signing of the verified statement.

promised any money or anything of value for the release of the

child, except for lawful payments that are itemized on a schedule

filed with the release.

(d) That the validity and finality of the release is not

affected by any collateral or separate agreement between the parent

or guardian and the child placing agency, or the parent or guardian

and the prospective adoptive parent.

(e) That the parent or guardian understands that it serves the

child's welfare ~~of the child~~ for the parent to keep the child

placing agency or department informed of any health problems that

the parent develops that could affect the child.

(f) That the parent or guardian understands that it serves the

child's welfare ~~of the child~~ for the parent or guardian to keep his

or her address current with the child placing agency or department

in order to permit a response to any inquiry concerning medical or

social history from an adoptive parent of a minor adoptee or from

an adoptee who is 18 years of age or older.

(7) ~~(6)~~ A release by a parent or a guardian of the child shall

not be executed until after the investigation the court considers

proper and until after the judge, referee, or other individual

authorized in subsection (2) has fully explained to the parent or

guardian the legal rights of the parent or guardian and the fact

that the parent or guardian by virtue of the release voluntarily

relinquishes permanently his or her rights to the child; and, if

the child is over 5 years of age, the court has determined that the

child is best served by the release. If an out-of-court release is

executed under section 29 of this chapter, the adoption attorney

representing the parent or guardian who witnessed the out-of-court

release or a caseworker from the child placing agency that accepted

the out-of-court release shall fully explain to the parent or

guardian his or her legal rights and the fact that the parent or

guardian by virtue of the out-of-court release voluntarily

relinquishes permanently his or her rights to the child.

(8) ~~(7) Upon~~ Except as otherwise provided in this subsection,

upon the release of a child by a parent or guardian, the court

immediately shall issue an order terminating the rights of that

parent or guardian to that child. If an out-of-court release has

been executed under subsection (5), not sooner than 5 days,

excluding weekends and holidays, after execution, the court shall

issue an order terminating the rights of the parent or guardian to

that child. If the rights of both parents, the surviving parent, or

the guardian have been terminated, the court shall issue an order

committing the child to the child placing agency or department to

which the release was given.

(9) ~~(8)~~ The court shall authorize foster care funding pending

expiration of the period of appeal or rehearing as provided in

sections 64 and 65 of this chapter, and pending disposition of any

appeal or rehearing, for all persons committed to a child placing

agency. Foster care funding authorized under this subsection shall

exclude the administrative costs of the child placing agency. The

costs of foster care shall be paid through the use of the child

care fund as provided by section 117c of the social welfare act,

~~Act No. 280 of the Public Acts of 1939, being section 400.117c of~~

~~the Michigan Compiled Laws,~~ 1939 PA 280, MCL 400.117c, or by any

successor statute. When foster care funding is authorized ~~pursuant~~

according to this subsection, the court shall send a copy of the

order to the department. Upon receiving a copy of this order, the

department shall reimburse the court child care fund of the county

where the court order for foster care funding was made in the total

amount of the court ordered payment. The reimbursement shall be

made monthly.

(10) ~~(9)~~ Entry of an order terminating the rights of both

parents under subsection ~~(7)~~ (8) terminates the jurisdiction of the

circuit court over the child in any divorce or separate maintenance

action.

(11) ~~(10) Upon~~ Except as otherwise provided in this

subsection, upon petition of the same person or persons who

executed the release and of the department or child placing agency

to which the child was released, the court with which the release

was filed may grant a hearing to consider whether the release

should be revoked. A release may not be revoked if the child has

been placed for adoption unless the child is placed as provided in

section 41(2) of this chapter and a petition for rehearing or claim

of appeal is filed within the time required. A verbatim record of

testimony related to a petition to revoke a release shall be made.

If an out-of-court release has been executed under subsection (5),

notice of revocation must be submitted in writing to the adoption

attorney representing the parent or guardian or a caseworker from

the child placing agency not more than 5 days, excluding weekends

and holidays, after the out-of-court release is executed and

acknowledged.

(12) An out-of-court release is revocable from the time of

execution until not more than 5 days, excluding weekends and

holidays, after execution. Revocation must be in writing to the

adoption attorney representing the parent or guardian who witnessed

the out-of-court release or a caseworker from the child placing

agency that accepted the out-of-court release. If the parent

executing the revocation is an unemancipated minor, the revocation

is not valid unless it is also signed in the presence of the

witness by a parent or guardian of that unemancipated minor parent.

Upon receiving the written notification described in this

subsection, the adoption attorney representing the parent or

guardian who witnessed the out-of-court release or a caseworker

from the child placing agency that accepted the out-of-court

release shall assist the parent or guardian in filing the petition

to revoke the out-of-court release. The court in which the out-of-

court release was filed may determine that revocation is not in the

best interest of the child as described under subsection (13)(c).

(13) If a petition to revoke an out-of-court release is filed

with the court under subsection (12), timely notice of revocation

does not immediately result in the return of the child to the

parent or guardian. The right of the parent or guardian to custody

of the child is not superior to the right of the adoptive parent or

parents to custody of the child. A hearing before a judge is

required to determine all of the following unless a child placing

agency accepting the out-of-court release or the adoptive parent or

parents agree to the revocation:

(a) Whether the notice of revocation was given in a timely and

proper manner.

(b) Whether good cause exists to determine that the out-of-

court release was not executed voluntarily. If the court finds that

the out-of-court release was not executed voluntarily, the out-of-

court release is invalid and custody of the child shall be returned

to the parent or guardian. If the court finds that the out-of-court

release was executed voluntarily, the court shall proceed under

subdivision (c).

any of the following:

(i) Returning custody of the child to the parent or guardian.

(ii) Continuing the adoption proceeding commenced or intended

to be commenced by the adoptive parent or parents.

(iii) Disposition appropriate to the child's welfare as

authorized by section 18 of chapter XIIA under an ex parte order

entered by the court.

(14) In determining the best interest of the child under

subsection (13)(c), if a parent or guardian is seeking revocation

of an out-of-court release, the court shall determine if the parent

or guardian seeking revocation is fit and immediately able to

properly care for the child if the court returned the child to the

parent or guardian. If the court determines that the parent or

guardian is not fit and immediately able to properly care for the

child, the court shall deny the revocation. If the court finds that

the parent or guardian is fit and immediately able to properly care

for the child, the court shall determine the best interest of the

child. The "best interest of the child" means the sum total of the

following factors to be considered, evaluated, and determined by

the court:

(a) The child's age and length of time the parent or guardian

seeking revocation has had physical custody of the child so that

significant love, affection, and other emotional ties exist between

the parent or guardian and the child and whether during that time

the child has lived in a stable, satisfactory environment.

(b) The capacity and disposition between the prospective

adopting individual or individuals and the parent or guardian

seeking revocation to give the child love, affection, and guidance,

and to educate and create a milieu that fosters the child's

religion, racial identity, and culture.

adopting individual or individuals and the parent or guardian

seeking revocation to provide the child with food, clothing,

education, permanence, medical care or other remedial care

recognized and permitted under the state law in place of medical

care, and other material needs.

(d) The permanence as a family unit between the prospective

adopting individual or individuals and the parent or guardian

seeking revocation.

(e) The moral fitness between the prospective adopting

individual or individuals and the parent or guardian seeking

revocation.

(f) The mental and physical health between the prospective

adopting individual or individuals and the parent or guardian

seeking revocation.

(g) The home, school, and community record of the child.

(h) The child's reasonable preference, if the child is 14

years of age or less and if the court considers the child to be of

sufficient age to express a preference.

(i) The ability and willingness of the prospective adopting

individual or individuals to adopt the child's siblings.

(j) Any other factor considered by the court to be relevant to

a particular prospective adoptive placement or to a revocation of

an out-of-court release.

Sec. 44. (1) Except as otherwise provided in this section, the

consent required by section 43 of this chapter shall be by a

separate instrument executed before the judge having jurisdiction

or, at the court's direction, before another judge of the family

division of circuit court in this state. A consent may be executed

before a juvenile court referee. The consent hearing shall be held

within 7 days after it is requested. If the consent of a parent or

guardian is executed before a judge or referee as provided in this

subsection, a verbatim record of testimony related to execution of

the consent shall be made.

(2) If the individual whose consent is required is in any of

the armed services or is in prison, the consent may be executed and

acknowledged before any individual authorized by law to administer

oaths.

(3) If the child to be adopted is legally a ward of the

department or of a child placing agency, the consent required to be

made under section 43 of this chapter by the authorized

representative of the department or agency may be executed and

acknowledged before an individual authorized by law to administer

oaths.

(4) If the consent is executed in another state or country,

the court having jurisdiction over the adoption proceeding in this

state shall determine whether the consent was executed in

accordance with the laws of that state or country or the laws of

this state and shall not proceed unless it finds that the consent

was so executed.

(5) In a direct placement, a consent by a parent or guardian

shall be accompanied by a verified statement signed by the parent

or guardian that contains all of the following:

(a) That the parent or guardian has received a list of support

groups and a copy of the written document described in section

6(1)(c) of the foster care and adoption services act, ~~Act No. 203~~

~~of the Public Acts of 1994, being section 722.956 of the Michigan~~

~~Compiled Laws.~~1994 PA 203, MCL 722.956.

(b) That the parent or guardian has received counseling

related to the adoption of his or her child or waives the

counseling with the signing of the verified statement.

promised any money or anything of value for the consent to adoption

of the child, except for lawful payments that are itemized on a

schedule filed with the consent.

(d) That the validity and finality of the consent is not

affected by any collateral or separate agreement between the parent

or guardian and the adoptive parent.

(e) That the parent or guardian understands that it serves the

child's welfare ~~of the child~~ for the parent to keep the child

placing agency, court, or department informed of any health

problems that the parent develops ~~which~~ that could affect the

child.

(f) That the parent or guardian understands that it serves the

child's welfare ~~of the child~~ for the parent or guardian to keep his

or her address current with the child placing agency, court, or

department in order to permit a response to any inquiry concerning

medical or social history from an adoptive parent of a minor

adoptee or from an adoptee who is 18 years or older.

(6) If a parent's consent to adoption is required under

section 43 of this chapter or if a guardian's consent is required

~~pursuant to~~ under section 43(1)(e) of this chapter, the consent

shall not be executed until after the investigation the court

considers proper and until after the judge, referee, or other

individual authorized in subsection (2) has fully explained to the

parent or guardian the legal rights of the parent or guardian and

the fact that the parent or guardian by virtue of the consent

voluntarily relinquishes permanently his or her rights to the

child. If an out-of-court consent is executed under subsection (8),

the adoption attorney representing the parent or guardian who

witnessed the out-of-court consent or a caseworker from the child

placing agency that accepted the out-of-court consent shall fully

explain to the parent or guardian his or her legal rights and the

fact that the parent or guardian by virtue of the out-of-court

consent voluntarily relinquishes permanently his or her rights to

the child. If an out-of-court consent has been executed under

subsection (8), not sooner than 5 days, excluding weekends and

holidays, after execution, the court shall issue an order

terminating the rights of the parent or guardian to that child.

(7) If the adoptee's consent to adoption is required under

section 43 of this chapter, the consent shall not be executed until

after the investigation the court considers proper and until after

the judge or referee has fully explained to the adoptee the fact

that he or she is consenting to acquire permanently the adopting

parent or parents as his or her legal parent or parents as though

the adoptee had been born to the adopting parent or parents.

(8) In a direct placement, a parent or guardian may execute an

out-of-court consent after the child's birth. An out-of-court

consent executed under this subsection must comply with all of the

following:

(a) The out-of-court consent shall not be executed until after

a 24-hour waiting period that begins at the time of the child's

birth has expired unless exigent circumstances exist that prohibit

or impede waiting 24 hours. If exigent circumstances exist, the

specific circumstances must be stated in the out-of-court consent

or in a statement attached to the out-of-court consent prepared by

the adoption attorney who represents the parent or guardian and

witnessed the out-of-court consent or a caseworker from the child

placing agency that accepted the out-of-court consent.

(b) The out-of-court consent must be executed in front of and

witnessed by a third party witness and an adoption attorney

representing the parent or guardian or a third party witness and a

child placing agency caseworker.

petition for adoption.

(9) Out-of-court consent is revocable from the time of

execution until not more than 5 days, excluding weekends and

holidays, after execution. Revocation must be in writing to the

adoption attorney representing the parent or guardian who witnessed

the out-of-court consent or a caseworker from the child placing

agency that accepted the out-of-court consent. If the parent

executing the revocation is an unemancipated minor, the revocation

is not valid unless it is also signed in the presence of the

witness by a parent or guardian of that unemancipated minor parent.

Upon receiving the written notification described in this

subsection, the adoption attorney representing the parent or

guardian who witnessed the out-of-court consent or a caseworker

from the child placing agency that accepted the out-of-court

consent shall assist the parent or guardian in filing the petition

to revoke the out-of-court consent. The court in which the out-of-

court consent was filed may determine that revocation is not in the

best interest of the child as described under subsection (10)(c).

(10) If a petition to revoke an out-of-court consent has been

filed with the court under subsection (9), timely notice of

revocation does not immediately result in the return of the child

to the parent or guardian. The right of the parent or guardian to

custody of the child is not superior to the right of the adoptive

parent or parents to custody of the child. A hearing before a judge

is required to determine all of the following unless the adoptive

parent or parents agree to the revocation:

(a) Whether the notice of revocation was given in a timely and

proper manner.

(b) Whether good cause exists to determine that the out-of-

court consent was not executed voluntarily. If the court finds that

the out-of-court consent was not executed voluntarily, the out-of-

court consent is invalid and custody of the child shall be returned

to the parent or guardian. If the court finds that the out-of-court

consent was executed voluntarily, the court shall proceed under

subdivision (c).

any of the following:

(i) Returning custody of the child to the parent or guardian.

(ii) Continuing the adoption proceeding commenced or intended

to be commenced by the adoptive parent or parents.

(iii) Disposition appropriate to the child's welfare as

authorized by section 18 of chapter XIIA under an ex parte order

entered by the court.

(11) In determining the best interest of the child under

subsection (10)(c), if a parent or guardian is seeking revocation

of an out-of-court consent, the court shall determine if the parent