A.Termination of Parental Rights
Unless a child is temporarily placed under MCL 710.23d:
•“a child shall not be placed in a home for the purpose of adoption until an order terminating parental rights has been entered pursuant to [the Adoption Code] or [the Juvenile Code] and the court has formally approved placement under [MCL 710.51].”1 MCL 710.41(1).
•“if a child is born out of wedlock and the release or consent of the biological father cannot be obtained, the child shall not be placed for adoption until the parental rights of the father are terminated by the court as provided in [MCL 710.37] or [MCL 710.39], by the court pursuant to [the Juvenile Code], or by a court of competent jurisdiction in another state or country.”2 MCL 710.31(1).
Note: For a discussion on terminating parental rights under the Adoption Code and the Juvenile Code, see Chapter 2, and a discussion on establishing paternity, see Chapter 3.
“If an order terminating parental rights is entered pursuant to [the Adoption Code] or [the Juvenile Code], the child may be placed in a home for the purpose of adoption during the period specified for a rehearing or an appeal as of right and the period during which a rehearing or appeal as of right is pending. When a child placing agency, the court, or the department formally places a child or the court approves placement of a child pursuant to this subsection, the child placing agency, court, or department shall inform the person or persons in whose home the child is placed that an adoption will not be ordered until 1 of the following occurs:
(a) The petition for rehearing is granted, at the rehearing the order terminating parental rights is not modified or set aside, and subsequently the period for appeal as of right to the court of appeals has expired without an appeal being filed.
(b) The petition for rehearing is denied and the period for appeal as of right to the court of appeals has expired without an appeal being filed.
(c) There is a decision of the court of appeals affirming the order terminating parental rights.”3 MCL 710.41(2). For additional information on MCL 710.41(2), legal risk adoptions, see Section 8.5.
MCL 710.41 does not apply to stepparent adoptions, and does not prevent a child residing in a licensed foster home from being adopted by the foster parents. MCL 710.41(3)-(4).
“Subject to [MCL 710.52(2)], during the period before entry of the order of adoption, the child shall be supervised at the direction of the court by an employee or agent of the court, a child placing agency, or the department, who shall make reports regarding the adjustment of the child in the home as the court orders. The investigations shall be made under reasonable circumstances and at reasonable intervals.” MCL 710.52(1). MCL 710.52(2) requires “[i]n a direct placement, the child [to] be supervised during the period before entry of the order of adoption by the child placing agency that investigated the placement under [MCL 710.46] or, in the court’s discretion, by another child placing agency.”4
The length of the supervisory period depends on the adoptee’s age at the time the adoption petition is filed:
•If the adoptee is one year of age or older at the time the petition is filed, the supervisory period lasts six months after formal placement, unless
•the court finds, on the petitioner’s motion, that a waiver of all or a portion of the six-month period is in the child’s best interests; or
•the court finds, after holding a hearing, that an extension of the six-month period is in the child’s best interests.5
•If the adoptee is less than one year old at the time the adoption petition is filed, the supervisory period lasts three months after formal placement, unless the court finds, on the petitioner’s motion, that a waiver of all or a portion of the three-month period is in the child’s best interests. MCL 710.56(1).
C.Action on the Adoption Petition
The decision to grant or deny a petition for adoption is within the discretion of the trial court. In re Kyung Won Kim, 72 Mich App 85, 88 (1976).
Once the respective supervisory period expires, the court may enter an adoption order, “unless the court determines that circumstances have arisen that make adoption undesirable[.]” MCL 710.56(1). If an adoption is not ordered within 18 months of formal placement, the court must hold a hearing to determine whether to grant or deny the adoption order. MCL 710.56(1). If the child was formally placed under MCL 710.41(2) (a legal risk adoption), “the court may extend the 6-month period for an additional period, that may exceed 18 months from the time of formal placement, until an order for adoption may be entered under [MCL 710.56(2)].”6 MCL 710.56(1).
If an adoption hearing is held, the court may permit an adoptee to attend. MCL 710.23a(5).
1.Cannot Grant Adoption Petition While Court Action is Pending
A trial court must not grant an adoption petition while an appeal is pending in the Court of Appeals or the Supreme Court. In re JK, 468 Mich 202, 219 (2003). See also In re Jackson, 498 Mich 943, 943 (2015) and MCR 3.808 (requiring the trial court to issue specific findings regarding appellate activity before finalizing an adoption). In addition, a trial court must not order an adoption while a petition for rehearing or a motion challenging the withholding of consent is pending. MCL 710.56(2); MCL 710.56(4); MCR 3.808.
“Except as provided in [MCL 710.56(3)], if a petition for rehearing or an appeal as of right from an order terminating parental rights has been filed, the court shall not order an adoption until 1 of the following occurs:
(a) The petition for rehearing is granted, and at the rehearing the order terminating parental rights is not modified or set aside, and subsequently the period for appeal as of right to the court of appeals has expired without an appeal being filed.
(b) The petition for rehearing is denied and the period for appeal as of right to the court of appeals has expired without an appeal being filed.
(c) The court of appeals affirms the order terminating parental rights.” MCL 710.56(2).
“If an application for leave to appeal has been filed with the supreme court, the court shall not order an adoption until 1 or more of the following occurs:
(a) The application for leave to appeal is denied.
(b) The supreme court affirms the order terminating parental rights.” MCL 710.56(3).
“If a motion brought under [MCL 710.45 (motion challenging the withholding of consent)] has been filed, the court shall not order an adoption until 1 of the following occurs:
(a) The motion is decided and subsequently the period for appeal as of right to the court of appeals has expired without an appeal being filed.
(b) The motion is decided, an appeal as of right to the court of appeals has been filed, the court of appeals issues an opinion, and subsequently the period for filing an application for leave to the supreme court has expired without an application being filed.
(c) The supreme court denies an application for leave or, if an application is granted, the supreme court issues an opinion.” MCL 710.56(4).
For a discussion on rehearings, appeals, and motions challenging withholding of consent, see Chapter 7.
“If the person to be adopted is an adult,[7] the court may enter an order of adoption after all of the following occur:
(a) The person to be adopted consents to the adoption according to [MCL 710.43(3)].
(b) The written report of investigation required by [MCL 710.46(2)] is filed.
(c) Notice has been served upon interested parties described in [MCL 710.24a].” MCL 710.56(5).
MCL 710.43(3) requires the adult adoptee to consent to his or her adoption “before the court may enter an order of adoption, but consent by any other individual is not required.”
For a discussion on investigative reports required by MCL 710.46(2), see Section 5.6, and a list of interested parties described in MCL 710.24a, see Section 6.6(D).
3.Granting the Adoption Petition
“Before entering a final order of adoption, the trial court shall determine that the adoptee is not the subject of any pending proceedings on rehearing or reconsideration, or on appeal from a decision to terminate parental rights. The trial court shall make the following findings on the record:
That any appeal of the decision to terminate parental rights has reached disposition; that no appeal, application for leave to appeal, or motion for rehearing or reconsideration is pending; and that the time for all appellate proceedings in this matter has expired.” MCR 3.808.8
“When the court enters an order of adoption, certified copies shall be given to the adopting parent or parents. If the consent to the adoption was given by a duly authorized representative of the department, of a child placing agency, or of a public or licensed private agency of another state or country, a certified copy of the order of adoption shall be furnished by the court to the department or agency.”9 MCL 710.58.
Within 15 days of entering an order of adoption under MCL 710.56, “the court shall forward to the department . . . either of the following:
(a) A public information form filled out and filed with the court by the primary adoption facilitator and completed by the court as provided in [MCL 710.58a(2)10].
(b) If the primary adoption facilitator has not filed a form, a public information form completed by the court that consists only of the name of the primary adoption facilitator and the confidential information as prescribed by [MCL 722.124d.]” MCL 710.58a(1).
Within 15 days of entering a final adoption order in a direct placement adoption, the court must forward a public information form to the DHHS. MCL 710.58a(1). See Section 8.2(B) for a discussion on primary adoption facilitators and public information forms.
4.Denying the Adoption Petition
“If the court denies an order of adoption, the court may return the child to the parents or original custodian and restore their rights, or make a disposition appropriate for the welfare of the ward as is authorized by [MCL 712A.18].” MCL 710.62.
A court that denies an adoption petition or fails to issue an order of adoption must “state the reason for that action on the record or in writing.” MCL 710.63.
1 “After an order terminating parental rights has been entered, the court shall enter any appropriate orders pursuant to [MCL 710.45], [MCL 710.46], and [MCL 710.51]. Such orders shall not be withheld because the period specified for a rehearing or an appeal as of right has not expired, or because of the pendency o f any rehearing or appeal as of right.” MCL 710.41(1).
2 “Pending the termination or other disposition of the rights of the father of a child born out of wedlock, the mother may execute a release terminating her rights to the child. If the mother releases the child, the child placing agency or department to which the child is released may file a petition of dependency or neglect pursuant to [the Juvenile Code]. Pending disposition of the dependency or neglect petition, the court may enter an order authorizing temporary care of the child.” MCL 710.31(2). For a discussion on temporary placements, see Chapter 5.
3 See the SCAO Form PCA 325, Notice to Adopting Parents on Pending or Potential Appeal/Rehearing.
4 For a discussion on consent adoptions under MCL 710.46, see Section 2.6.
5 The court “may extend the 6-month period for an additional period of time not exceeding 18 months from the time of formal placement for adoption.” MCL 710.56(1). Note, however, “the court may extend the 6-month period for an additional period, that may exceed 18 months from the time of formal placement, until an order for adoption may be entered under [MCL 710.56(2)]” for placements under MCL 710.41(2), legal risk adoptions. MCL 710.56(1). For a discussion on legal risk adoptions, see Section 8.5.
6 For a discussion on legal risk adoptions, see Section 8.5.
7 An adult adoptee is an individual 18 years of age or older. See MCL710.22(j) (defining a child for purposes of the Adoption Code as “an individual less than 18 years of age[]”).
8 “The addition of MCR 3.808 is consistent with . . . MCL 710.56. This new rule arises out of In re JK, 468 Mich 202 (2003), and In re Jackson, 498 Mich 943 (2015), which involved cases where a final order of adoption was entered despite pending appellate proceedings involving the adoptee children. Although the Michigan Court of Appeals has adopted a policy to suppress in its register of actions and online case search tool the names of children (and parents) who are the subject of appeals from proceedings involving the termination of parental rights, this information remains open to the public. Therefore, in order to make the determination required of this new rule, a trial court may contact the clerk of the Michigan Court of Appeals, the Michigan Supreme Court, or any other court where proceedings may be pending.” Staff Comment to ADM File No. 2015-26 (“[t]his staff comment is not an authoritative construction by the [Michigan Supreme] Court,” and adoption of MCR 3.808 “in no way reflects a substantive determination by [the Michigan Supreme] Court”).
9 See the SCAO Form PCA 321, Order of Adoption or Form PCA 321b, Order of Adoption (alternative format suitable for framing).
10 “If the primary adoption facilitator has filed a public information form with the court and has indicated that he or she does not have access to certain information required on the public portion of the form, the court shall complete the form by filling in missing information that is contained in court records to which the primary adoption facilitator does not have access. The court shall complete all public information forms filed with the court by filling in the information required on the confidential portion of the form.” MCL 710.58a(2).