Adoption Blog
Kalamazoo - Adoption Law Blog

Adoption Petitioner’s Motion Regarding Withholding Consent to Adopt

Posted January 27, 2019

When a child is released to a child placing agency, the department, or the court, the child placing agency, the department, or the court to which the child is released must consent to the child’s adoption.1 MCL 710.43(1)(b)-(d). If the child placing agency, the department, or the court withholds its consent to adopt, the adoption petitioner may file a motion claiming the decision to withhold consent is arbitrary and capricious. MCL 710.45(2). However, the motion may not be filed under MCL 710.45 if:

(1) The child placing agency, the department, or the court consented to the child’s adoption by another adoptive parent;

(2) The child has been placed for adoption with the other adoptive parent according to another order under MCL 710.51; and

(3) An adoption order has already been entered or 56 days have elapsed since entry of the placement order. MCL 710.45(3).

A hearing under MCL 710.45 is not . . . an opportunity for a petitioner to make a case relative to why the consent should have been granted, but rather is an opportunity to show that the representative acted arbitrarily and capriciously in withholding that consent. It is only after the petitioner has sustained the burden of showing by clear and convincing evidence that the representative acted arbitrarily and capriciously that the proceedings may then proceed to convincing the probate court that it should go ahead and enter a final order of adoption.” In re Cotton, 208 Mich App 180, 184 (1994).

What is Involuntary Termination?

Posted December 6, 2018

The court may involuntarily terminate a parent’s parental rights over a child under:

The Adoption Code; or

The Juvenile Code.

Because the procedures for involuntary termination of a putative father’s parental rights differ from the procedures followed for involuntary termination of a legal father’s parental rights, it is important to establish the type of father involved. Briefly, the types of fathers are:

A legal father.

A putative father.

An equitable father.  An equitable father is a man to whom the court grants legal father status.

A legal father’s parental rights may only be involuntarily terminated under a stepparent adoption pursuant to the Adoption Code or during child protective proceedings pursuant to the Juvenile Code. MCL 710.51(6); MCR 3.903(C)(10). Involuntarily terminating a putative father’s parental rights under the Adoption Code will depend on whether the putative father is an interested or uninterested parent. See MCL 710.37, MCL 710.39, and MCL 710.51(6). Under the Juvenile Code, a putative father is not permitted to participate in child protective proceedings where a legal father exists. However, if the court determines that a child has no legal father, the court may take the necessary steps to determine the child’s putative father and establish paternity. See Section 3.6.

Atkinson v Atkinson, 160 Mich App 601, 610‐611 (1987).

In re KH, 469 Mich 621, 624, 635 n 29 (2004),

 

Consent to Adoption

Posted November 19, 2018

A parent may voluntarily relinquish his or her parental rights through a consent to the child’s adoption by a specific adoptive parent. MCL 710.22(l). However, a parent does not need to consent to the adoption of an adult adoptee. MCL 710.43(3). A child over the age of 14 must consent to his or her adoption. MCL 710.43(2).

MCL 712B.27(1) requires “consent to voluntary placement of an Indian child to also be executed by both parents of the Indian child in accordance with MCL 712B.13” where “a release or consent to adoption under the Adoption Code, MCL 710.21 et seq., is executed.”

Under a consent to adopt, a parent may consent to a direct placement adoption, a stepparent adoption, or a relative adoption.  A consent must be made by a separate instrument executed before a judge or a juvenile court referee. MCL 710.44(1).

However, a consent may be executed and acknowledged before a person authorized by law to administer oaths when the consent is required from:

(1) A person in the armed services;

(2) A person in prison; or

(3) A child placing agency that has jurisdiction of the child to

be adopted. MCL 710.44(2)‐(3).

A verbatim record must be made if the consent is accepted by a judge or referee, but is not required when the person accepting the consent is a person authorized by law to administer oaths. MCL 710.44(1)‐(3).

 

DNA Testing and the Paternity Act:

Posted October 12, 2018

Under the Paternity Act, on its own motion or pursuant to a party’s request, a court must order a mother, child, and alleged father to submit to genetic testing. MCL 722.714(7); MCL 722.716. When a verified complaint is filed in accordance with the Paternity Act, neither a search warrant nor an evidentiary hearing is required prior to the court ordering blood tests.

Under the Revocation of Paternity Act, MCL 722.1443(5) requires the court to order the parties to an action or motion under the Revocation of Paternity Act, MCL 722.1431 et seq., to participate in and pay for blood or tissue typing or DNA identification profiling to assist the court in making a determination under the Revocation of

Paternity Act, and the blood or tissue typing or DNA identification profiling shall be conducted in accordance with . . . MCL 722.716. However,“the results of blood or tissue typing or DNA identification profiling are not binding on a court in making a determination under the Revocation of Paternity Act. MCL 722.1443(5). DNA results are not binding on a court making a determination under the Revocation of Paternity Act, MCL 722.1443(5), and that statutory declaration gives circuit courts discretion to consider other factors when determining whether to revoke an acknowledgment of parentage.

MCL 722.716(2) requires the genetic testing to be conducted by a person accredited for paternity determination through a nationally recognized scientific organization (accredited expert). The testing consists of “blood or tissue typing determinations, which may include, but are not limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling, to determine whether the alleged father is likely to be, or is not, the father of the child.” MCL 722.716(1).

 

 

 

 

 

 

Disclaimer

Adoption Petitioner’s Motion Regarding Withholding Consent to Adopt

When a child is released to a child placing agency, the department, or the court, the child placing agency, the department, or the court to which the child is released must consent to the child’s adoption.1 MCL 710.43(1)(b)-(d). If the child placing agency, the department, or the court withholds its consent to adopt, the adoption petitioner may file a motion claiming the decision to withhold consent is arbitrary and capricious. MCL 710.45(2). However, the motion may not be filed under MCL 710.45 if:

(1) The child placing agency, the department, or the court consented to the child’s adoption by another adoptive parent;

(2) The child has been placed for adoption with the other adoptive parent according to another order under MCL 710.51; and

(3) An adoption order has already been entered or 56 days have elapsed since entry of the placement order. MCL 710.45(3).

“[A] hearing under [MCL 710.45] is not . . . an opportunity for a petitioner to make a case relative to why the consent should have been granted, but rather is an opportunity to show that the representative acted arbitrarily and capriciously in withholding that consent. It is only after the petitioner has sustained the burden of showing by clear and convincing evidence that the representative acted arbitrarily and capriciously that the proceedings may then proceed to convincing the probate court that it should go ahead and enter a final order of adoption.” In re Cotton, 208 Mich App 180, 184 (1994).