2.7Out-of-Court Consent in a Direct Placement
“In a direct placement, a parent or guardian may sign an out-of-court consent after the child’s birth. An out-of-court consent signed under [MCL 710.44(8)] must comply with all of the [provisions set out in MCL 710.44(8).]” MCL 710.44(8). Those requirements are discussed in the following subsections.
If the parent is a minor and has not been emancipated, then the minor-parent’s out-of-court consent must also be signed by the minor’s parent or guardian, who must also sign the consent “in the presence of the witnesses described in this subsection.”1 MCL 710.44(8).
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 adoptive placement of an Indian child, see Section 11.15(B).
For a discussion on consent to adopt in general, see Section 2.6.
An out-of-court consent must not be signed until at least 72 hours after the child is born. MCL 710.44(8)(a).
An out-of-court consent may be signed before filing a petition for adoption. MCL 710.44(8)(g)
B.Required Language and Supporting Documentation
“In separate paragraphs with sufficient space in the margin for a parent to place his or her initials beside each paragraph, the out-of-court consent must state all of the following:
(i) I have read or had read to me each of my rights as a parent described in [MCL 710.44(8)(c)], and I understand these rights.
(ii) I am signing the out-of-court consent as a free and voluntary act on my part, and I have been advised that I cannot be forced to sign the out-of-court consent for any reason.
(iii) I have not been given or promised any money or other thing of value in exchange for signing the out-of-court consent.
(iv) If I sign the out-of-court consent, I understand that I am giving up all of my parental rights and authorizing the court to permanently terminate all of my parental rights, unless the court allows me to revoke my out-of-court consent.[2]
(v) It has been explained to me and I understand the following:
(A) I am not required to sign an out-of-court consent.
(B) I may make a temporary placement of my child with the prospective adoptive parent or parents, if I have not already done so, or I may continue the temporary placement I have already made, until I choose to sign a consent in court or sign an out-of-court consent.
(C) I may request revocation of the out-of-court consent I have signed by submitting a timely written request for revocation.
(D) If I request a revocation of the out-of-court consent, I must appear before the court so the court may consider whether to grant the revocation.
(vi) I have been advised that I may submit a request for revocation in writing to the adoption attorney or child placing agency that witnessed the out-of-court consent not more than 5 days, excluding weekends and holidays, after the out-of-court consent was signed or I may petition the court on my own for revocation of the out-of-court consent not more than 5 days, excluding weekends and holidays, after the out-of-court consent was signed.
(vii) If I submit a timely request for revocation, the court may grant the request or deny the request for revocation depending on my fitness and immediate ability to properly care for the child and whether the best interests of the child would be served by the revocation.” MCL 710.44(8)(d).
“The out-of-court consent must contain the contact information for both the adoption attorney representing the parent or guardian and the child placing agency that witnessed the out-of-court consent specifying where a written request for revocation may be submitted, including a postal mailing address, overnight carrier address, fax number, and electronic mail address. A request for revocation may not be submitted to the adoption attorney representing the parent or guardian or the child placing agency that witnessed the out-of-court consent by telephone or text message.” MCL 710.44(8)(e).
MCL 710.44(8)(f) requires, immediately above the signature of the parent or guardian executing the out-of-court consent, the following statement to appear: “‘I acknowledge that I am signing this out-of-court consent freely and voluntarily, after my parental rights have been explained to me and any questions I may have about it have been fully answered. I understand the rights I am giving up and that an order terminating my parental rights, when entered by the court, is a permanent termination of all of my parental rights.’”
2.Continuation of Support Obligation
“Before executing the consent, as part of the explanation of the parent’s legal rights, the parent shall be 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.” MCR 3.804(C)(2). “Failure to provide required notice under [MCR 3.804(C)] does not affect the obligation imposed by law or otherwise establish a remedy or cause of action on behalf of the parent.” MCR 3.804(C)(3).
A verified statement must be submitted with a parent’s or guardian’s out-of-court consent. MCL 710.44(5); MCL 710.44(8)(c). For a detailed discussion on a parent’s or guardian’s verified statement, see Section 10.5.
4.Relinquishment of Parental Rights Statement
“[T]he adoption attorney representing the parent or guardian who witnessed the out-of-court consent and a caseworker from the child placing agency who witnessed the out-of-court consent shall fully explain to the parent or guardian his or her legal rights 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.” MCL 710.44(6).
The statement regarding relinquishment of parental rights must include all of the following:
“(i) The right to have or to seek care and custody of the child.
(ii) The right to have or to seek parenting time with the child.
(iii) The right to inherit from the child or have the child inherit from the parent.
(iv) The right to services and earnings of the child.
(v) The right to determine the child’s schooling, religious training, and parenting practices.” MCL 710.44(8)(c).
C.Terminating Parental Rights After Execution of an Out-of-Court Consent
After an out-of-court consent is signed, “not sooner than 5 days, excluding weekends and holidays, after the out-of-court consent was signed, the court shall issue an order terminating the rights of the parent or guardian to that child.” MCL 710.44(6).
The court must serve the parent or guardian with a copy of the termination order, an advice of rights,3 a pamphlet on release of adoption information, and a parent’s consent/denial to the release of identifying information. See MCL 710.27a(4). See Chapter 9 for a detailed discussion of releasing information.
Note: The court must inform each parent that unless he or she files a statement with the central adoption registry denying the release of information, there is a presumption of consent to release information specifying the biological parent’s name at the time of parental termination and the biological parent’s current name and address. MCL 710.27a(4). The court must also explain “the parent’s right to file, update, or revoke the denial at any time[.]” Id.
D.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).
E.Revocation of Out-of-Court Consent
A petition to revoke an out-of-court consent may be filed by the parent or guardian who signed the consent. MCL 710.44(9). For additional discussion on revocation of a consent to adopt in general, see Section 2.6(H).
“[A] parent or guardian who has signed an out-of-court consent but wishes to request revocation of the out-of-court consent shall submit a request for revocation to the adoption attorney representing the parent or guardian or the child placing agency that witnessed the out-of-court consent not more than 5 days, excluding weekends and holidays, after the out-of-court consent was signed. The request for revocation from the parent or guardian must be submitted in writing by the parent or guardian who signed the out-of-court consent to the adoption attorney representing the parent or guardian or a caseworker from the child placing agency that witnessed the out-of-court consent.” MCL 710.44(9).
“The request for revocation is timely if delivered to the adoption attorney or a caseworker from the child placing agency not more than 5 days, excluding weekends and holidays, after the out-of-court consent was signed. Upon receipt of a timely request for revocation, the adoption attorney or the child placing agency receiving the request for revocation shall assist the parent or guardian in filing the petition to revoke the out-of-court consent with the court as soon as practicable[,]” or the “parent or guardian may file this petition with the court on his or her own . . . not more than 5 days, excluding weekends and holidays, after the out-of-court consent was signed.” MCL 710.44(9).
“If a petition to revoke an out-of-court consent is filed with the court, timely notice of revocation does not immediately result in the return of the child to the parent or guardian.” MCL 710.44(11). “The court in which the out-of-court consent was filed may deny the request for revocation under [MCL 710.44(11) and MCL 710.44(12)].” MCL 710.44(10).
“A hearing before a judge is required to determine all of the following unless the adoptive parent or parents agree to the revocation:
(a) Whether the request for revocation was given in a timely and proper manner.
(b) Whether good cause exists to determine that the out-of-court consent was not signed voluntarily. If the court finds that the out-of-court consent was not signed voluntarily, the out--of-court consent is invalid and custody shall be returned to the parent or guardian. If the court finds that the out-of-court consent was signed voluntarily, the court shall proceed under subdivision (c).
(c) Whether the best interest of the child will be served by any of the following:
(i) Returning custody of the child to the parent or guardian.
(ii) Continuing the adoption proceeding commenced or intended to be commenced by the adoptive parent or parents.
(iii) Disposition appropriate to the child’s welfare as authorized by [MCL 712A.18] under an ex parte order entered by the court.” MCL 710.44(11).
“In determining the best interest of the child . . ., the court shall determine if the parent or guardian seeking revocation is fit and immediately able to properly care for the child if the court returned the child to the parent or guardian.” MCL 710.44(12).
a.Court Finds Parent or Guardian Fit
If the court determines the parent or guardian seeking revocation of an out-of-court consent is fit and immediately able to properly care for the child if the court returned the child to the parent or guardian, the court must determine the best interest of the child by considering, evaluating, and determining the sum total of the following factors:
“(a) The child’s age and length of time the parent or guardian seeking revocation has had physical custody of the child so that significant love, affection, and other emotional ties exist between the parent or guardian and the child and whether during that time the child has lived in a stable, satisfactory environment.
(b) The capacity and disposition of the prospective adopting individual or individuals and the parent or guardian seeking revocation to give the child love, affection, and guidance, and to educate and create a milieu that fosters the child’s religion, racial identity, and culture.
(c) The capacity and disposition of the prospective adopting individual or individuals and the parent or guardian seeking revocation to provide the child with food, clothing, education, permanence, medical care or other remedial care recognized and permitted under the state law in place of medical care, and other material needs.
(d) The permanence as a family unit of the prospective adopting individual or individuals and the parent or guardian seeking revocation.
(e) The moral fitness of the prospective adopting individual or individuals and the parent or guardian seeking revocation.
(f) The mental and physical health of the prospective adopting individual or individuals and the parent or guardian seeking revocation.
(g) The home, school, and community record of the child.
(h) The child’s reasonable preference, if the child is 14 years of age or less and if the court considers the child to be of sufficient age to express a preference.
(i) The ability and willingness of the prospective adopting individual or individuals to adopt the child’s siblings.
(j) Any other factor considered by the court to be relevant to a particular prospective adoptive placement or to a revocation of an out-of-court consent.” MCL 710.44(12).
b.Court Finds Parent or Guardian Not Fit
“If the court determines that the parent or guardian is not fit and immediately able to properly care for the child, the court shall deny the revocation.” MCL 710.44(12).
1 MCL 710.44(8) does not specify who must witness the signing of the consent, though several of its provisions assume that the signing was witnessed by the parent’s or guardian’s adoption attorney and the child placing agency. See MCL 710.44(6).
2 See Section 2.7(E) for more information on revoking an out-of-court consent.
3 See the SCAO Form PCA 323, Advice of Rights After Order Terminating Parental Rights (Adoption Code), or Form PCA 323i, Advice of Rights After Order Terminating Parental Rights to Indian Child (Adoption Code).