HB-4646, As Passed Senate, March 27, 2014
SENATE 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.
(c) In the presence of a witness who also signs the document,
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.
(c) The name and address of the prospective adoptive parent
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) Except as otherwise provided in this subsection, a parent
or guardian who has signed an out-of-court release or out-of-court
consent but wishes to request revocation of the out-of-court
release or out-of-court consent shall submit a request for
revocation to the adoption attorney representing the parent or
guardian or the child placing agency that accepted the out-of-court
release or witnessed the out-of-court consent not more than 5 days,
excluding weekends and holidays, after the out-of-court release or
out-of-court consent was signed. The request for revocation is
timely if delivered to the adoption attorney or the child placing
agency not more than 5 days, excluding weekends and holidays, after
the out-of-court release or out-of-court consent was signed. Upon
receipt of a timely request for revocation, the adoption attorney
or the child placing agency receiving the request for revocation
shall assist the parent or guardian in filing the petition to
revoke the out-of-court release or out-of-court consent with the
court as soon as practicable. A parent or guardian may file this
petition with the court on his or her own. If the parent or
guardian files the petition on his or her own, the petition 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
was signed.
Sec.
29. (1) Except as otherwise provided in this section,
subsections (5) to (11), 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 sign an out-of-court release in
front of and witnessed by an adoption attorney representing the
parent or guardian and a child placing agency caseworker. An out-
of-court release signed under this subsection must comply with all
of the following:
(a) The out-of-court release shall not be signed until after a
72-hour waiting period that begins at the time of the child's birth
has expired.
(b) If the parent signing the out-of-court release is an
unemancipated minor, the out-of-court release is not valid unless
it is also signed by a parent or guardian of that unemancipated
minor parent in the presence of the witnesses described in this
subsection.
(c) An out-of-court release must be accompanied by the
verified statement described in subsection (6) and a statement
regarding relinquishment of parental rights that includes all of
the following:
(i) The right to have or to seek care and custody of the child.
(ii) The right to have or to seek parenting time with the
child.
(iii) The right to inherit from the child or have the child
inherit from the parent.
(iv) The right to services and earnings of the child.
(v) The right to determine the child's schooling, religious
training, and parenting practices.
(d) In separate paragraphs with sufficient space in the margin
for a parent to place his or her initials beside each paragraph,
the out-of-court release must state the following:
(i) I have read or had read to me each of my rights as a parent
described in section 29(5)(c) of chapter X of the probate code of
1939, 1939 PA 288, MCL 710.29, and I understand these rights.
(ii) I am signing the out-of-court release as a free and
voluntary act on my part, and I have been advised that I cannot be
forced to sign the out-of-court release for any reason.
(iii) I have not been given or promised any money or other thing
of value in exchange for signing the out-of-court release.
(iv) If I sign the out-of-court release, I understand that I am
giving up all of my parental rights and authorizing the court to
permanently terminate all of my parental rights, unless the court
allows me to revoke my out-of-court release.
(v) It has been explained to me and I understand all of the
following:
(A) I am not required to sign an out-of-court release.
(B) I may make a temporary placement of my child with the
prospective adoptive parent or parents, if I have not already done
so, or I may continue the temporary placement I have already made,
until I choose to sign a release in court or sign an out-of-court
release.
(C) I may request revocation of the out-of-court release I
have signed by submitting a timely written request for revocation.
(D) If I request a revocation of the out-of-court release, I
must appear before the court so the court may consider whether to
grant the revocation.
(vi) I have been advised that I may submit a request for
revocation in writing to the adoption attorney or child placing
agency that accepted the out-of-court release not more than 5 days,
excluding weekends and holidays, after the out-of-court release was
signed or I may petition the court on my own for revocation of the
out-of-court release not more than 5 days, excluding weekends and
holidays, after the out-of-court release was signed.
(vii) If I submit a timely request for revocation, the court
may grant the request or deny the request depending on my fitness
and immediate ability to properly care for the child and whether
the best interests of the child would be served by the revocation.
(e) The out-of-court release must contain the contact
information for both the adoption attorney representing the parent
or guardian and the child placing agency that accepted the out-of-
court release specifying where a written request for revocation may
be submitted, including a postal mailing address, overnight carrier
address, fax number, and electronic mail address. A request for
revocation may not be submitted to the adoption attorney
representing the parent or guardian or the child placing agency
that accepted the out-of-court release by telephone or text
message.
(f) The following statement must appear immediately above the
signature of the parent or guardian executing the out-of-court
release: "I acknowledge that I am signing this out-of-court release
freely and voluntarily, after my parental rights have been
explained to me and any questions I may have about it have been
fully answered. I understand the rights I am giving up and that an
order terminating my parental rights, when entered by the court, is
a permanent termination of all of my parental rights.".
(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.
(c) That the parent or guardian has not received or been
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
signed under subsection (5), the adoption attorney representing the
parent or guardian who witnessed the out-of-court release and 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 signed under subsection (5), not sooner than 5 days, excluding
weekends and holidays, after the out-of-court release was signed,
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 subsection
(12), 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.
(12) Except as otherwise provided in this subsection, a parent
or guardian who has signed an out-of-court release but wishes to
request revocation of the out-of-court release shall submit a
request for revocation to the adoption attorney representing the
parent or guardian or the child placing agency that accepted the
out-of-court release not more than 5 days, excluding weekends and
holidays, after the out-of-court release was signed. The request
for revocation from the parent or guardian must be submitted in
writing by the parent or guardian who signed the out-of-court
release to the adoption attorney representing the parent or
guardian or a caseworker from the child placing agency that
accepted the out-of-court release. The request for revocation is
timely if delivered to the adoption attorney or the child placing
agency not more than 5 days, excluding weekends and holidays, after
the out-of-court release was signed. Upon receipt of a timely
request for revocation, the adoption attorney or the child placing
agency receiving the request for revocation shall assist the parent
or guardian in filing the petition to revoke the out-of-court
release with the court as soon as practicable. A parent or guardian
may file this petition with the court on his or her own. If the
parent or guardian files the petition on his or her own, the
petition must be filed with the court not more than 5 days,
excluding weekends and holidays, after the out-of-court release was
House Bill No. 4646 as amended March 26, 2014
signed.
(13) The court in which the out-of-court release was filed may
deny the request for revocation under <<subsection (14).>>
(14) If a petition to revoke an out-of-court release is filed
with the court, timely notice of revocation does not immediately
result in the return of the child to the parent or guardian. 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 request for revocation was given in a timely
and proper manner.
(b) Whether good cause exists to determine that the out-of-
court release was not signed voluntarily. If the court finds that
the out-of-court release was not signed 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 signed voluntarily, the court shall proceed under
subdivision (c).
(c) Whether the best interest of the child will be served by
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.
<<
House Bill No. 4646 as amended March 26, 2014
House Bill No. 4646 as amended March 26, 2014
>>
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.
(c) That the parent or guardian has not received or been
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 signed under subsection (8),
the adoption attorney representing the parent or guardian who
witnessed the out-of-court consent and a caseworker from the child
placing agency that witnessed 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 signed under
subsection (8), not sooner than 5 days, excluding weekends and
holidays, after the out-of-court consent was signed, 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 sign an
out-of-court consent after the child's birth. An out-of-court
consent signed under this subsection must comply with all of the
following:
(a) The out-of-court consent shall not be signed until after a
72-hour waiting period that begins at the time of the child's birth
has expired.
(b) If the parent signing the out-of-court consent is an
unemancipated minor, the out-of-court consent is not valid unless
it is also signed by a parent or guardian of that unemancipated
minor parent in the presence of the witnesses described in this
subsection.
(c) An out-of-court consent must be accompanied by the
verified statement from subsection (5) and a statement regarding
relinquishment of parental rights that includes all of the
following:
(i) The right to have or to seek care and custody of the child.
(ii) The right to have or to seek parenting time with the
child.
(iii) The right to inherit from the child or have the child
inherit from the parent.
(iv) The right to services and earnings of the child.
(v) The right to determine the child's schooling, religious
training, and parenting practices.
(d) In separate paragraphs with sufficient space in the margin
for a parent to place his or her initials beside each paragraph,
the out-of-court consent must state the all of the following:
(i) I have read or had read to me each of my rights as a parent
described in section 44(8)(c) of chapter X of the probate code of
1939, 1939 PA 288, MCL 710.44, and I understand these rights.
(ii) I am signing the out-of-court consent as a free and
voluntary act on my part, and I have been advised that I cannot be
forced to sign the out-of-court consent for any reason.
(iii) I have not been given or promised any money or other thing
of value in exchange for signing the out-of-court consent.
(iv) If I sign the out-of-court consent, I understand that I am
giving up all of my parental rights and authorizing the court to
permanently terminate all of my parental rights, unless the court
allows me to revoke my out-of-court consent.
(v) It has been explained to me and I understand all of the
following:
(A) I am not required to sign an out-of-court consent.
(B) I may make a temporary placement of my child with the
prospective adoptive parent or parents, if I have not already done
so, or I may continue the temporary placement I have already made,
until I choose to sign a consent in court or sign an out-of-court
consent.
(C) I may request revocation of the out-of-court consent I
have signed by submitting a timely written request for revocation.
(D) If I request a revocation of the out-of-court consent, I
must appear before the court so the court may consider whether to
grant the revocation.
(vi) I have been advised that I may submit a request for
revocation in writing to the adoption attorney or child placing
agency that witnessed the out-of-court consent not more than 5
days, excluding weekends and holidays, after the out-of-court
consent was signed or I may petition the court on my own for
revocation of the out-of-court consent not more than 5 days,
excluding weekends and holidays, after the out-of-court consent was
signed.
(vii) If I submit a timely request for revocation, the court
may grant the request or deny the request for revocation depending
on my fitness and immediate ability to properly care for the child
and whether the best interests of the child would be served by the
revocation.
(e) The out-of-court consent must contain the contact
information for both the adoption attorney representing the parent
or guardian and the child placing agency that witnessed the out-of-
court consent specifying where a written request for revocation may
be submitted, including a postal mailing address, overnight carrier
address, fax number, and electronic mail address. A request for
revocation may not be submitted to the adoption attorney
representing the parent or guardian or the child placing agency
that witnessed the out-of-court consent by telephone or text
message.
(f) The following statement must appear immediately above the
signature of the parent or guardian executing the out-of-court
consent: "I acknowledge that I am signing this out-of-court consent
freely and voluntarily, after my parental rights have been
explained to me and any questions I may have about it have been
fully answered. I understand the rights I am giving up and that an
order terminating my parental rights, when entered by the court, is
a permanent termination of all of my parental rights.".
(g) The out-of-court consent may be signed before filing a
petition for adoption.
(9) Except as otherwise provided in this subsection, a parent
or guardian who has signed an out-of-court consent but wishes to
request revocation of the out-of-court consent shall submit a
request for revocation to the adoption attorney representing the
parent or guardian or the child placing agency that witnessed the
out-of-court consent not more than 5 days, excluding weekends and
holidays, after the out-of-court consent was signed. The request
for revocation from the parent or guardian must be submitted in
writing by the parent or guardian who signed the out-of-court
consent to the adoption attorney representing the parent or
guardian or a caseworker from the child placing agency that
witnessed the out-of-court consent. The request for revocation is
timely if delivered to the adoption attorney or a caseworker from
the child placing agency not more than 5 days, excluding weekends
and holidays, after the out-of-court consent was signed. Upon
receipt of a timely request for revocation, the adoption attorney
or the child placing agency receiving the request for revocation
shall assist the parent or guardian in filing the petition to
revoke the out-of-court consent with the court as soon as
practicable. A parent or guardian may file this petition with the
court on his or her own. If the parent or guardian files the
petition on his or her own, the petition must be filed with the
court not more than 5 days, excluding weekends and holidays, after
the out-of-court consent was signed.
(10) The court in which the out-of-court consent was filed may
deny the request for revocation under subsections (11) and (12).
(11) If a petition to revoke an out-of-court consent has been
filed with the court, timely notice of revocation does not
immediately result in the return of the child to the parent or
guardian. 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 request for revocation was given in a timely
and proper manner.
(b) Whether good cause exists to determine that the out-of-
court consent was not signed voluntarily. If the court finds that
the out-of-court consent was not signed 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 signed voluntarily, the court shall proceed under
subdivision (c).
(c) Whether the best interest of the child will be served by
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.
(12) In determining the best interest of the child under
subsection (11)(c), if a parent or guardian is seeking revocation
of an out-of-court consent, 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 of 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.
(c) The capacity and disposition of the prospective 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 of the prospective
adopting individual or individuals and the parent or guardian
seeking revocation.
(e) The moral fitness of the prospective adopting individual
or individuals and the parent or guardian seeking revocation.
(f) The mental and physical health of 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 consent.
Enacting section 1. This amendatory act takes effect 180 days
after the date it is enacted into law.