5.9Safe Delivery of Newborns Law

The Safe Delivery of Newborns Law, MCL 712.1 et seq., provides procedures for the safe, legal, and anonymous surrender of a newborn to an emergency service provider.¹

“If a parent surrenders a child who may be a newborn to an emergency service provider, the emergency service provider shall comply with the requirements of this section under the assumption that the child is a newborn. The emergency service provider shall, without a court order, immediately accept the newborn, taking the newborn into temporary protective custody.”² MCL 712.3(1). MCL 712.2(1) provides the court with jurisdiction over the surrendered newborn.

“An emergency service provider that is not a hospital and that takes a newborn into temporary protective custody under [MCL 712.3] shall transfer the newborn to a hospital. The hospital shall accept a newborn who an emergency service provider transfers to the hospital in compliance with [the Safe Delivery of Newborns Law], taking the newborn into temporary protective custody.” MCL 712.5(1). If the newborn is surrendered under the Safe Delivery of Newborns Law, the hospital is required to report the live birth “in the same manner as provided in [MCL 333.2822(1)(a)], except that the parents shall be listed as ‘unknown’ and the newborn shall be listed as ‘baby doe’.” MCL 333.2822(1)(c). See also In re Miller, 322 Mich App 497, 501 n 1 (2018) (noting that “a birth certificate for a newborn surrendered under the Safe Delivery of Newborns Law must list the parents as ‘“unknown”’ and the newborn as ‘“Baby Doe”’”).

“The court may appoint a lawyer-guardian ad litem to represent a newborn in proceedings under this chapter.” MCL 712.2(1). For information on a lawyer-guardian ad litem’s powers and duties, see Section 4.6.

A.Effect of Other Statutory Provisions

“Except as provided in [MCL 712.5³], the reporting requirement of  . . . MCL 722.623, does not apply regarding a child surrendered to an emergency service provider as provided in [MCL 712.3].” MCL 712.2(2).

“Unless this chapter specifically provides otherwise, a provision in another chapter of this act does not apply to a proceeding under this chapter. Unless this chapter specifically provides otherwise, the child custody act of 1970, 1970 PA 91, MCL 722.21 to [MCL] 722.30, does not apply to a proceeding under this chapter.” MCL 712.2(3).

B.Immunity from Civil Action

“A hospital and a child placing agency, and their agents and employees, are immune in a civil action for damages for an act or omission in accepting or transferring a newborn under this chapter, except for an act or omission constituting gross negligence or willful or wanton misconduct. To the extent not protected by the immunity conferred by [the Governmental Immunity Act,] 1964 PA 170, MCL 691.1401 to [MCL] 691.1415, an employee or contractor of a fire department or police station has the same immunity that this subsection provides to a hospital’s or child placing agency’s agent or employee.” MCL 712.2(4).

C.Duties of Child Placing Agency

Once the hospital informs a child placing agency that it has taken a newborn into temporary protective custody, a child placing agency must do all of the following:

“(a) Immediately assume the care, control, and temporary protective custody of the newborn.

(b) If a parent is known and willing, immediately meet with the parent.

(c) Unless otherwise provided in this subdivision, make a temporary placement of the newborn with a prospective adoptive parent who has an approved preplacement assessment.^[4] If a petition for custody is filed under [MCL 712.10⁵], the child placing agency may make a temporary placement of the newborn with a licensed foster parent.

(d) Unless the birth was witnessed by the emergency service provider, immediately request assistance from law enforcement officials to investigate and determine, through the missing children information clearinghouse, the national center for missing and exploited children, and any other national and state resources, whether the newborn is a missing child.

(e) Not later than 48 hours after a transfer of physical custody to a prospective adoptive parent, petition the court in the county in which the prospective adoptive parent resides to provide authority to place the newborn and provide care for the newborn. The petition shall include all of the following:

(i) The date of the transfer of physical custody.

(ii) The name and address of the emergency service provider to whom the newborn was surrendered.

(iii) Any information, either written or verbal, that was provided by and to the parent who surrendered the newborn. The emergency service provider that originally accepted the newborn as required by section 3 of this chapter shall provide this information to the child placing agency.^[6]

(f) Within 28 days, make reasonable efforts to identify, locate, and provide notice of the surrender of the newborn to the nonsurrendering parent. The child placing agency shall file a written report with the court that issued the order placing the child.^[7] The report shall state the efforts the child placing agency made in attempting to identify and locate the nonsurrendering parent and the results of those efforts. If the identity and address of the nonsurrendering parent are unknown, the child placing agency shall provide notice of the surrender of the newborn by publication^[8] in a newspaper of general circulation in the county where the newborn was surrendered.” MCL 712.7.

D.Parent Petitions for Custody

1.Petition

A parent who surrenders a newborn to an emergency service provider may subsequently request custody of the newborn by filing a petition for custody within 28 days after the newborn was surrendered. MCL 712.10(1). A person claiming to be the nonsurrendering parent of the surrendered newborn may request custody of the newborn by filing a petition for custody within 28 days after notice of the surrender was published.⁹ Id.

“The surrendering parent or nonsurrendering parent shall file the petition for custody in 1 of the following counties:

(a) If the parent has located the newborn, the county where the newborn is located.

(b) If subdivision (a) does not apply and the parent knows the location of the emergency service provider to whom the newborn was surrendered, the county where the emergency service provider is located.

(c) If neither subdivision (a) nor (b) applies, the county where the parent is located.”¹⁰ MCL 712.10(1).

“If the court in which the petition for custody is filed did not issue the order placing the newborn, the court in which the petition for custody is filed shall locate and contact the court that issued the order and shall transfer the proceedings to that court.” MCL 712.10(2).

2.Determining Paternity or Maternity

Within seven days of a surrendering or nonsurrendering parent’s petition for custody and before holding a custody hearing on the petition, the court must “conduct a hearing to make the determinations of paternity or maternity as described in [MCL 712.11].” MCL 712.10(3).

For purposes of determining paternity and maternity following the filing of a petition for custody, “the court shall order the child and each party claiming paternity to submit to blood or tissue typing determinations or DNA identification profiling, as described in . . . the paternity act, 1958 PA 205, MCL 722.716.”¹¹ MCL 712.11(1)-(2). However, maternity need not be established through DNA if “the birth was witnessed by the emergency service provider and sufficient documentation exists to support maternity[.]” MCL 712.11(2). See the SCAO Form CCFD 04, Order for Blood or Tissue Typing or DNA Profile (Safe Delivery of Newborn Act).

“If the probability of paternity or maternity determined by the blood or tissue typing or DNA identification profiling is 99% or higher and the DNA identification profile and summary report are admissible, paternity or maternity is presumed and the petitioner may move for summary disposition on the issue of paternity or maternity.” MCL 712.11(3). “If the result of the paternity or maternity testing is admissible and establishes that the petitioner could not be the parent of the newborn, the court shall dismiss the petition for custody.” MCL 712.11(5). See the SCAO Form CCFD 04a, Order Determining Maternity/Paternity of Surrendered Newborn.

“The court may order the petitioner to pay all or part of the cost of the paternity or maternity testing.” MCL 712.11(4).

3.Determining Custody

“In a custody action under this chapter, the court shall determine custody of the newborn based on the newborn’s best interest. The court shall consider, evaluate, and make findings on each factor of the newborn’s best interest with the goal of achieving permanence for the newborn at the earliest possible date.” MCL 712.14(1).

“A newborn’s best interest in a custody action under this chapter is all of the following factors regarding a parent claiming parenthood of the newborn:

(a) The love, affection, and other emotional ties existing between the newborn and the parent.

(b) The parent’s capacity to give the newborn love, affection, and guidance.

(c) The parent’s capacity and disposition to provide the newborn with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The permanence, as a family unit, of the existing or proposed custodial home.

(e) The parent’s moral fitness.

(f) The parent’s mental and physical health.

(g) Whether the parent has a history of domestic violence.

(h) If the parent is not the parent who surrendered the newborn, the opportunity the parent had to provide appropriate care and custody of the newborn before the newborn’s birth or surrender.

(i) Any other factor considered by the court to be relevant to the determination of the newborn’s best interest.” MCL 712.14(2).

“Based on the court’s finding under [MCL 712.14], the court may issue an order that does 1 of the following:

(a) Grants legal or physical custody, or both, of the newborn to the parent and either retains or relinquishes jurisdiction.

(b) Determines that the best interests of the newborn are not served by granting custody to the petitioner parent and orders the child placing agency to petition the court for jurisdiction under [MCL 712A.2(b)].

(c) Dismisses the petition.”¹² MCL 712.15.

E.No Parental Request for Custody

“A parent who surrenders a newborn under [MCL 712.3] and who does not file a custody action under [MCL 712.10] is presumed to have knowingly released his or her parental rights to the newborn.” MCL 712.17(1). “If the surrendering parent has not filed a petition for custody of the newborn within 28 days of the surrender, the child placing agency with authority to place the newborn shall immediately file a petition with the court to determine whether the release shall be accepted and whether the court shall enter an order terminating the rights of the surrendering parent.”¹³ MCL 712.17(2).

“If the nonsurrendering parent has not filed a petition for custody of the newborn within 28 days of notice of surrender of a newborn under [MCL 712.10], the child placing agency with authority to place the newborn shall immediately file a petition with the court to determine whether the court shall enter an order terminating the rights of the nonsurrendering parent.”¹⁴ MCL 712.17(3).

“The court shall schedule a hearing on the petition from the child placing agency within 14 days of receipt of that petition. At the hearing, the child placing agency shall present evidence that demonstrates that the surrendering parent released the newborn and that demonstrates the efforts made by the child placing agency to identify, locate, and provide notice to the nonsurrendering parent.” MCL 712.17(4). “If the court finds by a preponderance of the evidence that the surrendering parent has knowingly released his or her rights to the child and that reasonable efforts were made to locate the nonsurrendering parent and a custody action has not been filed, the court shall enter an order terminating parental rights of the surrendering parent and the nonsurrendering parent under this chapter.”¹⁵ MCL 712.17(5).

The Safe Delivery of Newborns Law applies to the mother and the legal father of the surrendered child in its termination proceedings. In re Miller, 322 Mich App 497, 504, 506-507 (2018) (reversing the trial court’s order denying a child placement agency’s petitions to terminate the parental rights of the surrendering parent and the nonsurrendering parent based on the conclusion that the Safe Delivery of Newborns Law only applied to the mother of the surrendered children but not to the legal father). “‘[A] child may have only one legal father,’ so the legal father is presumed to be the mother’s husband until that presumption is defeated, [and] [t]he Safe Delivery of Newborns law tests this presumption through DNA testing of ‘each party claiming paternity’ and attempting to gain custody of the child, leaving only one as the true legal father.” Id. at 505-506 (explaining that “[i]f the trial court terminates the parental rights of the nonsurrendering parent and the husband of the surrendering mother later seeks to assert his parental rights, he would have to demonstrate that he was not the biological father to show that the order terminating parental rights did not apply to him[; h]owever, in doing so, he would be defeating the presumption of paternity, and he would be without parental rights to assert to disrupt an adoption”) (citations omitted).

F.Closed Hearings

All hearings held under the Safe Delivery of Newborns Law are closed to the public. MCL 712.2a(1).

G.Record Confidentiality

Records of the proceedings are confidential “except that the record is available to any individual who is a party to the proceeding.” MCL 712.2a(1).

All of the child placing agency’s records created under the Safe Delivery of Newborns Law are confidential “except as otherwise provided in the provisions of this chapter.” MCL 712.2a(2).

“An individual who discloses information made confidential under [MCL 712.2a(1)] or [MCL 712.2a(2)] without a court order or specific authorization under federal or state law is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $100.00, or both. An individual who discloses information made confidential under [MCL 712.2a(1)] or [MCL 712.2a(2)] without a court order or specific authorization under federal or state law is civilly liable for damages proximately caused by disclosure of that information.” MCL 712.2a(3).