Once a court enters an order terminating parental rights, a child may be formally placed for adoption. MCL 710.41(1).1 The child’s placement is referred to as a legal risk adoption if the placement occurs before the expiration of:
(1) The 21-day period for filing a petition for a rehearing. See Section 7.2.
(2) The time for filing of an appeal of right. See Section 7.4.
(3) The period while a petition for or decision on a rehearing is pending.
(4) The period while an appeal is pending.2 See MCL 710.41(2).
When a child is placed in a legal risk adoption, the child placing agency, the department, or the court must inform the prospective adoptive parent that the adoption petition will not be granted until one 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.” MCL 710.41(2).
When a child is placed in a legal risk adoption, 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) (trial court erroneously permitted the prospective adoptive parent to adopt the child under an at risk adoption while the respondent-mother’s application for leave to appeal was pending). See also In re Jackson, 498 Mich 943, 943 (2015) (during the pendency of the father’s appeal to the Michigan Supreme Court, “the trial court finalized the adoption of the minor child, in violation of In re JK, 468 Mich 202 (2003)[, where i]t appear[ed] that no one informed the trial court of the father’s appeal of the termination of his parental rights”). 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.
Before finalizing an adoption, a trial court must issue specific findings on the record determining that the adoptee is not subject to any pending rehearing proceedings, reconsideration proceedings, or appellate activity. In re Jackson, 498 Mich at 943; MCR 3.808. Specifically, MCR 3.808 requires:
“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 3.808.3
“A person who violates [MCL 710.41] is, upon conviction, guilty of a misdemeanor, and upon any subsequent conviction, is guilty of a felony.” MCL 710.69.
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). For a discussion on stepparent adoptions, see Section 8.3
1 For a discussion on termination of parental rights, see Chapter 2, and a discussion on formal placements, see Chapter 6.
2 See SCAO Form PCA 325, Notice to Adopting Parents on Pending or Potential Appeal/Rehearing.
3 “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”).