Bill Text: MI HB4646 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Children; adoption; temporary placement, consent, and release; provide for general revisions. Amends secs. 23d, 29 & 44, ch. X of 1939 PA 288 (MCL 710.23d et seq.).
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2014-04-17 - Assigned Pa 117'14 With Immediate Effect [HB4646 Detail]
Download: Michigan-2013-HB4646-Introduced.html
HOUSE BILL No. 4646
April 30, 2013, Introduced by Reps. Shirkey and Kurtz and referred to the Committee on Families, Children, and Seniors.
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) A petition filed under this section to revoke a temporary
placement must be filed with the court not less than 72 hours after
the temporary placement has been made.
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
before an adoption attorney or a child placing agency caseworker.
(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 consent is
executed under section 44(8), the adoption attorney 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 the legal rights of the parent or
guardian 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.
(8) (7)
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 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.
In the case of an out-of-court release executed under subsection
(5), notice of revocation must be submitted in writing to the
adoption attorney or the child placing agency caseworker not more
than 72 hours after the release is executed and acknowledged.
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.
(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 may execute an out-of-
court consent after the child's birth. An out-of-court consent
executed under this subsection must comply with both of the
following:
(a) The out-of-court consent must be executed in front of and
witnessed by an adoption attorney representing the parent or
guardian or a child placing agency caseworker.
(b) The out-of-court consent may be executed before filing a
petition for adoption. If a temporary placement is made, the out-
of-court consent shall be filed with the court at the same time as
the documents authorizing the temporary placement.
(9) Out-of-court consent is revocable from the time of
execution until not more than 72 hours after execution. Revocation
must be in writing to the adoption attorney who witnessed the out-
of-court consent or a caseworker from the child placing agency that
accepted the out-of-court consent. Upon receiving the written
notification described in this subsection, the adoption attorney
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.
(10) If an adoptive parent objects to a revocation submitted
under subsection (9), timely notice of revocation does not
immediately result in the return of the child to the parent. The
right of the parent to custody of the child is not superior to the
rights of the adoptive parent to custody of the child. A hearing
before a judge will be required to determine both of the following:
(a) Whether the notice of revocation was given in a timely and
proper manner.
(b) Whether the best interests of the child will be served by
any of the following:
(i) Returning custody of the child to the parent.
(ii) Continuing the adoption proceeding commenced or intended
to be commenced by the adoptive 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.
