A consent is “a document in which all parental rights over a specific child are voluntarily relinquished to the court for placement with a specific adoptive parent.” MCL 710.22(l). See also MCL 710.23a; 710.44(1); MCL 710.44(8). If the adoptee is over the age of 14, the adoptee must also consent to the adoption. MCL 710.43(2). If the adoptee is an adult, the adoptee must consent, “but consent by any other individual is not required.” MCL 710.43(3).
If a consent to adoptive placement is executed under the Adoption Code and the child is or the court has reason to believe the child is an Indian child, ICWA and MIFPA provide additional requirements. See MCL 712B.13(1); MCL 712B.27(1). For a detailed discussion on consenting to the adoptive placement of an Indian child, see Section 11.15(B).
Under a consent to adopt, a parent may consent to a direct placement adoption, a stepparent adoption, or a relative adoption. See Chapter 8 for a detailed discussion on direct placement adoptions, stepparent adoptions, and relative adoptions.
For specific provisions related to out-of-court consents, see Section 2.7.
For checklists on consent adoptions, see the Michigan Judicial Institute’s Adoption Proceedings Quick Reference Materials on Consents. For checklists and flowcharts on consent adoptions involving an Indian child, see the Michigan Judicial Institute’s Adoption Proceedings Quick Reference Materials on Indian Child.
A.Overview of Procedure in Consent Cases
An adoption petition must be filed before a consent can be heard. See MCL 710.46(1); MCR 3.804(B)(1). Once an adoption petition is filed, the court must direct an employee or agent of a child placing agency, the department, or the court to conduct a full investigation. MCL 710.46(1). Within three months of the court-ordered investigation, a written report must be filed, unless the court waived the full investigation and a foster family study was completed or updated. MCL 710.46(2)-(3). See Section 5.6 for a detailed discussion of investigative reports and Section 6.6 for a detailed discussion of adoption petitions.
For a discussion on consents involving an Indian child, see Section 11.15.
The court must promptly schedule a consent hearing after it examines and approves the investigative report or foster family study. MCR 3.804(B)(1). If an interested party requested a consent hearing, the hearing must be held within seven days of an investigative report or foster family study being filed. Id.; MCL 710.44(1). “Except as otherwise provided, the court may allow the use of videoconferencing technology for proceedings under [subchapter 3.800, Adoption] in accordance with MCR 2.407.” MCR 3.811. “Videoconferencing technology may not be used for a consent hearing under this subrule involving an Indian child pursuant to MCL 712B.13.”1 MCR 3.804(B)(3).
Within 14 days of receiving the investigative report, the court must accept the consent if it finds that:
•The consent is genuine;
•The person consenting has the authority to do so; and
•It is in the adoptee’s best interests. MCL 710.51(1)(a)-(b).
The 14-day period may be extended for an additional 14 days, “[i]f it is necessary to hold a hearing before entering an order terminating the rights of a parent, parents, or a person in loco parentis, or if other good cause is shown[.]” MCL 710.51(2).
If the court denies the consent, the court must state the reasons for the denial on the record or in writing. MCL 710.63.
“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.” MCL 710.44(4).
In a consent to a child’s adoption, the interested parties consist of:
(1) The petitioner(s).
(2) The adoptee (if over the age of 14).
(3) The adoptee’s minor parent, adult parent, or surviving parent, unless:
(a) The parental rights are terminated or released.
(b) A guardian has been appointed with specific authority to consent to an adoption.
(c) The parent already consented to the adoption.
(4) The department or a child placing agency to whom the adoptee is or will be released or committed to.
(5) An unemancipated minor parent’s parent, guardian, or guardian ad litem.2
(6) A court with permanent custody of the adoptee.
(7) A court with continuing jurisdiction over the adoptee.
(8) Another state’s or country’s child placing agency with authority to consent to the adoption.
(9) Any interested party’s guardian or guardian ad litem.
(10) “If the court knows or has reason to know the adoptee is an Indian child,” in addition to the parties listed above, the Indian child’s tribe and Indian custodian (if applicable), or where the Indian child’s parent, Indian custodian, or tribe is unknown, the Secretary of the Interior.3 MCL 710.24a(1)(a)-(i); MCR 3.800(B)(1)-(2).
“In the interest of justice, the court may require additional parties to be served.” MCL 710.24a(6).
If a party to the consent is incarcerated, see Section 2.12 for information on providing notice to an incarcerated party.
C.Persons Authorized to Execute a Consent
“Subject to [MCL 710.43, MCL 710.44, and MCL 710.51], consent to adoption of a child shall be executed” by the persons or entities listed in MCL 710.43(1). MCL 710.43(1)
Each parent or the surviving parent if one is deceased may consent to his or her child’s placement for adoption,4 unless:
•That parent’s parental rights were already terminated;
•The child was released to a child placing agency or the department;5
•A guardian was appointed for the child or parent; or
•The custodial parent is married to the petitioner.6MCL 710.43(1)(a).
Minor Parent. If the parent is a minor and has not been emancipated, then the minor parent’s consent is not valid unless the minor parent’s parent, guardian, or guardian ad litem also consents to the child’s adoption. MCL 710.43(4). Before the consent is executed, the adoption attorney or child placing agency providing adoption services must provide an unrepresented minor parent an opportunity to meet with an attorney, unrelated to the adoption proceedings, to discuss the legal ramifications. MCL 710.55a(2).
An appointed guardian of the child or parent may execute a consent to a child’s adoption if the court gives the guardian authorization to execute the consent.7 MCL 710.43(1)(e)-(f), (5)-(6). If a parent’s guardian executes a consent, the consent has the same effect as if the parent executed the consent. MCL 710.43(6). However, the court cannot appoint a guardian if the sole purpose of the appointment is to defeat the parent’s status as an interested party. MCL 710.24a(7).
To obtain authorization to execute a consent, the guardian must petition the court where he or she received the guardianship appointment. See MCL 710.43(5)-(6). The court may authorize a full guardian or a juvenile guardian to consent to a child’s adoption. See MCL 700.5215(d). See also MCL 712A.19a(10) (guardian appointed under Juvenile Code when parental rights have not been terminated has all the powers and duties set forth in MCL 700.5215); MCL 712A.19c(7) (guardian appointed under Juvenile Code when parental rights have been terminated has all the powers and duties set forth in MCL 700.5215). However, a limited guardian is prohibited from consenting to a minor ward’s adoption. MCL 700.5206(4).
Committee Tip:
Neither the Adoption Code nor the Michigan Court Rules address procedures for conducting a hearing on a guardian’s motion requesting authority to consent to a child’s adoption. The Advisory Committee recommends that the court consider the purposes of the Adoption Code in considering the motion. See Section 1.1.
A properly-authorized guardian with whom a child has been placed does not have the power to consent to the child’s adoption without first obtaining consent from the parents or taking steps to terminate the parents’ parental rights. In re Handorf (Handorf I), 285 Mich App 384, 387-388 (2009). In Handorf I, the petitioners, as guardians of a child they wanted to adopt, petitioned the court for authorization to consent to the child’s adoption. Id. at 385. The child’s father consented to the adoption, but the child’s mother refused to consent. Id. The trial court concluded it was not able to grant the petition without terminating the parents’ parental rights. Id. at 385-386. In affirming the trial court, the Court of Appeals specifically found:
Petitioners argue that guardians may consent to adoptions of their wards. This assertion is generally correct, subject to authorization by the court and the requirements of MCL 710.44 and MCL 710.51. See MCL 710.43(1)(e) and (5). However, the ‘first step in the adoption process is ensuring the child is freed for adoption.’ Michigan Judicial Institute Adoption Proceedings Benchbook 2003-2008, p 2-2. Subject to exceptions not at issue here, ‘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 Michigan Adoption Code, MCL 710.21 et seq.] or [the Michigan [J]uvenile [C]ode, MCL 712A.1 et seq.] and the court has formally approved placement under [MCL 710.51].’ [MCL 710.41(1).]
Unless there is parental consent to the adoption, an adoption petition must be accompanied by, among other things, ‘a copy of each release or order terminating parental rights over the child having a bearing upon the authority of a person to execute the consent to adoption.’ MCL 710.26(1)(a).” Handorf I, 285 Mich App at 386-387.
Additionally, the Michigan Supreme Court clarified in In re Handorf (Handorf II), 485 Mich 1052 (2010), that the Court of Appeals’ decision in Handorf I, 285 Mich App 384 (2009), “[does not stand] for the proposition that guardians cannot consent to adoption[;]” rather, the appointment of a guardian does not provide the guardian with authorization to unilaterally consent to a child’s adoption in the absence of a termination of parental rights. However, a guardian may consent to a child’s adoption once the guardian obtains authority from the court to execute the consent (MCL 710.43(5)) if:
(1) the parents’ rights have already been terminated (MCL 710.41(1));
(2) the parents consent to an adoption (MCL 710.26(1)(a)); or
(3) the parents have released their rights to the child and do not intend to exercise any parental rights over that child (MCL 710.44(6)). Handorf II, 485 Mich at 1053.
“The Court of Appeals’ decision [in Handorf I] does nothing to alter the authority of a guardian, acting in loco parentis, to consent to a child’s adoption in these situations.” Handorf II, 485 Mich at 1053.
“If the child to be adopted is over 14 years of age, that child’s consent is necessary before the court may enter an order of adoption.”8 MCL 710.43(2). See Section 6.7 for a detailed discussion of adoption orders.
“If the individual to be adopted is an adult, the individual’s consent is necessary before the court may enter an order of adoption, but consent by any other individual is not required.”9 MCL 710.43(3). See MCL 710.22(j), which defines a child as “an individual less than 18 years of age.”
The court or a Tribal court with permanent custody over a child may consent to the child’s adoption.10 MCL 710.43(1)(c).
6.Department or Child Placing Agency
Once a child has been released11 or permanently committed to the department or a child placing agency, the authorized representative of the department or his or her designee, or a child placing agency may consent to the child’s adoption.12 MCL 710.43(1)(b); MCL 710.43(1)(d).
The superintendent of the Michigan Children’s Institute (MCI) or his or her designee is authorized to consent to the adoption of any child who has been committed to the MCI. MCL 400.209(1).
7.Foreign Child Placing Agency or Court
A child placing agency or court in another state or country that has authority to consent to a child’s adoption may do so. MCL 710.43(1)(g).
D.Required Documents for Consent
In a direct placement, a verified statement must be submitted with a parent’s or guardian’s consent.13 MCL 710.44(5); MCL 710.44(8)(c). See Section 10.5 for a detailed discussion of a parent’s or guardian’s verified statement.
2.Itemized Statement of Money Promised or Received
A parent or guardian must indicate in the verified statement that he or she “has not received or been promised any money or anything of value for the release of the child,” unless it is considered a lawful payment, in which case the parent must file an itemization of the lawful payment with the consent.14 MCL 710.44(5)(c); see also MCL 710.54(1)(c) (generally prohibiting compensation for obtaining a release).
“Except as otherwise provided in [MCL 710.44], the consent required by [MCL 710.43] 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.” MCL 710.44(1). Alternatively, “the consent may be executed and acknowledged before an individual authorized by law to administer oaths” when the consent is required from:
•A person in the armed services;
•A person in prison;
•An authorized representative of the department or child placing agency (if the child is legally a ward of the department or child placing agency). MCL 710.44(2)-(3).
If the consent is accepted by a judge or referee, “a verbatim record of testimony related to execution of the consent shall be made.” MCL 710.44(1).
If the child is or the court has reason to believe the child is an Indian child, ICWA and MIFPA provide additional requirements. See MCL 712B.13(1); MCL 712B.27(1). For a detailed discussion on releasing an Indian child, see Section 11.15(B).
1.Requirements When Parent’s or Guardian’s Consent is Necessary
“If a parent’s consent to adoption is required under [MCL 710.43] or if a guardian’s consent is required under [MCL 710.43(1)(e)], the consent shall not be executed until” all of the following occur:
•The completion of any court-ordered investigation.
•“[T]he judge, referee or other individual authorized in [MCL 710.44(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.
Note: Parental rights to a child include the rights to custody, control, services, earnings, and the right to inherit from the minor. MCL 722.2 (Status of Minors and Child Support Act); MCL 700.2103(b) (Estates and Protected Individuals Code).
•The parent is informed that “the obligation to support the child will continue until a court of competent jurisdiction modifies or terminates the obligation, an order of adoption is entered, or the child is emancipated by operation of law.”15 MCL 710.44(6); MCR 3.804(C)(2).
2.Requirements When Adoptee’s Consent is Necessary
“If the adoptee’s consent to adoption is required under [MCL 710.43], the consent shall not be executed until” all of the following occur:
•The completion of any court-ordered investigation; and
•“[T]he 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.” MCL 710.44(7).
F.Terminating Parental Rights After Execution of a Consent
After a consent is executed, the court must enter an order terminating the parent’s, guardian’s, or agency’s rights over the child and approve formal placement of the child.16 MCL 710.51(1). See Section 2.7(C) for more information on terminating parental rights after execution of an out-of-court consent.
Note: The court must not enter a termination order against a custodial parent married to the petitioner in a stepparent adoption. MCL 710.51(5). See Section 8.3 for a detailed discussion of stepparent adoptions.
However, to formally place the child in a direct placement or relative adoption after one parent or guardian has consented to the adoption, the other parent’s or guardian’s rights over the child must be:
(1) Voluntarily terminated under a consent to adopt;
(2) Voluntarily terminated under the Juvenile Code, see Section 2.5; or
(3) Involuntarily terminated, see Sections 2.10–2.11. See MCL 710.31(1); MCL 710.41(1).
The child will become a court ward once parental rights are terminated, unless it is a stepparent adoption or the child is being placed for adoption in Michigan by an agency of another state or country and the state’s or country’s law prohibits giving consent to adopt at the time of placement. MCL 710.51(3)-(4).
G.Termination of Court’s Jurisdiction
Entry of an order terminating parental rights (or rights of persons in loco parentis) also terminates any court’s jurisdiction over the child in any divorce or separate maintenance action. MCL 710.51(3).
After consenting to his or her child’s adoption and voluntarily relinquishing his or her parental rights,
•a parent or guardian has 21 days to file a motion to set aside the termination order. MCL 710.64(1). If the parent or guardian fails to petition the court within the 21-day period, he or she does not have a due process right to a rehearing. See In re Myers, 131 Mich App 160, 165-166 (1983).
Note: A court may only grant a rehearing for good cause. MCR 3.806(B). See Section 7.2 for a detailed discussion on rehearings.
•a parent or guardian has up until entry of the termination order to file a petition for withdrawal of consent.17 MCL 710.51(3). Once the court enters the order terminating the parent’s parental rights, the parent’s or guardian’s consent must not be withdrawn. Id.
See In re Neagos, 176 Mich App 406, 408, 410 (1989) (trial court lacked jurisdiction to consider the biological mother’s petition to “set aside the [consent] adoption, or in the alternative, to enforce visitation” where “four years passed between the time [the] respondent[-adoptive parents] adopted the children and the time the petition to set aside was filed[, and t]he [respondent-]adoptive parents vigorously opposed the petition”).
A consent induced by fraud may constitute sufficient cause to revoke a consent after an adoption was finalized. In re Nord, 149 Mich App 817, 820 (1986). In order to establish fraud, the parent must prove all of the following:
(1) The adoptive parent made a material representation;
(2) The representation was false;
(3) The adoptive parent knew the representation was false, or made the representation recklessly and as a positive assertion, without any knowledge of its truth;
(4) The adoptive parent made the representation with the intention that the parent act on it;
(5) The parent acted in reliance on it; and
(6) The parent suffered an injury. In re Nord, 149 Mich App at 821.
2.Appealing the Court’s Denial
If a court denies a parent’s or guardian’s petition to revoke a consent to adopt, the parent or guardian may appeal the decision to the Court of Appeals within 21 days of the denial order. MCL 710.65. The standard of review for a court’s denial of a petition to revoke a consent to adopt is an abuse of discretion. In re Nord, 149 Mich App 817, 821 (1986).
For additional information on appealing to the Court of Appeals, see Section 7.4.