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.