2.5Voluntary Termination During a Child Protective Proceeding

This section discusses termination of parental rights during a child protective proceeding as it relates to adoption proceedings. For a detailed discussion on child protective proceedings in general, including voluntary termination of parental rights under the Juvenile Code, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook.

When the court has taken jurisdiction over a child in a child protective proceeding, the court has the authority to conduct a hearing under MCL 712A.19b of the Juvenile Code to determine if parental rights should be involuntarily terminated.¹ See MCL 712A.19b; MCR 3.973(A); MCR 3.977(E)(2); In re Taurus F, 415 Mich 512, 526 (1982) (“The [trial] court cannot consider termination of parental rights without first establishing jurisdiction.”). However, the parent may elect to voluntarily terminate his or her parental rights.

In voluntarily terminating his or her parental rights during a child protective proceeding, the parent may do one of the following:

(1) Execute a release and termination of parental rights under the Adoption Code. See Sections 2.2–2.4. Note that a release requires both of the parents’ parental rights over the child be terminated.^{2, 3} See MCL 710.22(u); MCL 710.28(1)(a); MCL 710.29(8).

Note: If the court has an active abuse and neglect case and the parent elects to release his/her parental rights, the court must execute the release and termination order under the Adoption Code. See In re Hernandez, unpublished opinion per curiam of the Court of Appeals, issued April 16, 2013 (Docket No. 312136),⁴ where the Court of Appeals set out the procedures the trial court should have followed when a respondent-parent executes a release and termination of parental rights under the Adoption Code after the initiation of a child protective proceeding under the Juvenile Code:

“We urge the trial court not to mix Juvenile Code and Adoption Code proceedings in the future, in order to avoid confusion. We suggest that when [a] respondent indicate[s] that [he or] she wishe[s] to release [his or] her [parental] rights [during a child protective proceeding under the Juvenile Code], the trial judge should . . . order[] a recess in the Juvenile Code proceeding and beg[i]n an Adoption Code proceeding. After taking respondent’s release and entering the appropriate orders [under the Adoption Code], the trial court could then . . . reconvene[] the Juvenile Code proceeding, terminate[] the [other parent’s] [parental] rights under the Juvenile Code, and entertain[] and take[] under advisement a motion to dismiss the Juvenile Code termination petition as to respondent. Upon the expiration of the time period for respondent to request a rehearing, MCL 710.64(1), or file an appeal, MCL 710.65(1), the trial court could then . . . grant[] the motion to dismiss the Juvenile Code termination petition as to respondent. By proceeding in such a manner, the trial court could insure that needless confusion does not result.”

(2) Parties stipulate to specific facts and court finds based on those facts sufficient grounds for termination of parental rights under the Juvenile Code. See In re Toler, 193 Mich App 474, 477-478 (1992) (finding that “the judge need not announce a statutory basis for [termination of the respondent-father’s parental rights under the Juvenile Code]” where the respondent-father “conceded in effect that the court would be able to find statutory authorization for the termination [of his parental rights] and that [the] termination would be in the best interests of the children”).

Note: The court must still find that the termination of parental rights is in the child’s best interests. See MCL 712A.19b(5).

The court’s failure to properly execute a release and termination of parental rights under the Adoption Code will invalidate a termination order. In re Buckingham, 141 Mich App 828, 837 (1985). In Buckingham, the Court of Appeals reversed the trial court’s termination of parental rights order on a finding that the respondent-mother’s voluntary release of parental rights did not comply with the requirements of the Adoption Code and was therefore void where the trial court received the respondent-mother’s oral release following the initiation of child protective proceedings, did not find that the release was in the children’s best interests, and issued the respondent-mother’s termination of parental rights order under the Juvenile Code. Id. at 836-837.

Once the court properly executes a release and termination of parental rights under the Adoption Code, it cannot terminate those same parental rights under the Juvenile Code. In re Jones, 286 Mich App 126, 128 (2009). In Jones, the DHHS sought involuntary termination of the parents’ parental rights to their daughter under the Juvenile Code after both parents, in lieu of child protective proceedings, had already voluntarily released their parental rights under the Adoption Code. The court terminated the parents’ parental rights pursuant to the Adoption Code and released the daughter to the DHHS. Following the termination, the court attempted to terminate the parental rights under the Juvenile Code. On appeal, the Court of Appeals held that the court clearly erred when it attempted to terminate parental rights to the daughter under the Juvenile Code after it properly executed a release and termination of parental rights under the Adoption Code. Id. at 127-128. Specifically,

“That attempted termination under the juvenile code was without effect and was clearly improper, because the parents no longer possessed any parental rights that could be terminated. Their parental rights had previously been terminated under the Adoption Code, a completely separate statutory proceeding from a termination under the juvenile code. Once a parent voluntarily releases his or her child to the [DHHS] or to a child placement agency under the Adoption Code, and the release is accepted by the court, and the court enters an order terminating that parent’s rights to the child, that parent no longer has any parental rights subject to termination under the juvenile code.” In re Jones, 286 Mich App at 128.

Part 1C—Consent Adoptions