SB-1292, As Passed Senate, December 14, 2006

SUBSTITUTE FOR

SENATE BILL NO. 1292

     A bill to amend 1939 PA 288, entitled

"Probate code of 1939,"

by amending sections 1, 3, 7, 10, 11, 15, and 17 of chapter XII

(MCL 712.1, 712.3, 712.7, 712.10, 712.11, 712.15, and 712.17),

sections 1, 7, 10, 11, 15, and 17 as added by 2000 PA 232 and

section 3 as amended by 2002 PA 688, and by adding section 2a to

chapter XII; and to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER XII

     Sec. 1. (1) This chapter shall be known and may be cited as

the "safe delivery of newborns law".

     (2) As used in this chapter:

     (a) "Child placing agency" means that term as defined in

section 1 of 1973 PA 116, MCL 722.111.

     (b) "Court" means the family division of circuit court.

     (c) "Department" means the  family independence agency

department of human services.

     (d) "DNA identification profile" and "DNA identification

profiling" mean those terms as defined in section 1 of the

paternity act, 1956 PA 205, MCL 722.711.

(e)  (d) "Domestic violence" means that term as defined in

section 1 of 1978 PA 389, MCL 400.1501.

(f)  (e) "Emergency service provider" means a uniformed or

otherwise identified employee or contractor of a fire department,

hospital, or police station when  such an  that individual is

inside the premises and on duty. Emergency service provider also

includes a paramedic or an emergency medical technician when either

of those individuals is responding to a 9-1-1 emergency call.

(g)  (f) "Fire department" means an organized fire department

as that term is defined in section 1 of the fire prevention code,

1941 PA 207, MCL 29.1.

(h)  (g) "Gross negligence" means conduct so reckless as to

demonstrate a substantial lack of concern for whether an injury

results.

(i)  (h) "Hospital" means a hospital that is licensed under

article 17 of the public health code, 1978 PA 368, MCL 333.20101 to

333.22260.

(j)  (i) "Lawyer-guardian ad litem" means an attorney

appointed under section 2 of this chapter. A lawyer-guardian ad

litem represents the newborn, and has the powers and duties, as set

forth in section 17d of chapter XIIA.

(k)  (j) "Newborn" means a child who a physician reasonably

believes to be not more than 72 hours old.

(l)  (k) "Police station" means that term as defined in

section 43 of the Michigan vehicle code, 1949 PA 300, MCL 257.43.

(m)  (l) "Preplacement assessment" means an assessment of a

prospective adoptive parent as described in section 23f of chapter

X.

(n)  (m) "Surrender" means to leave a newborn with an

emergency service provider without expressing an intent to return

for the newborn.

     Sec. 2a. (1) A hearing under this chapter is closed to the

public. A record of a proceeding under this chapter is

confidential, except that the record is available to any individual

who is a party to that proceeding.

     (2) All child placing agency records created under this

chapter are confidential except as otherwise provided in the

provisions of this chapter.

     (3) An individual who discloses information made confidential

under subsection (1) or (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 subsection (1) or (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.

     Sec. 3. (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. The

emergency service provider shall make a reasonable effort to do all

of the following:

     (a) Take action necessary to protect the physical health and

safety of the newborn.

     (b) Inform the parent that by surrendering the newborn, the

parent is releasing the newborn to a child placing agency to be

placed for adoption.

     (c) Inform the parent that the parent has 28 days to petition

the court to regain custody of the newborn.

     (d) Provide the parent with written material approved by or

produced by the  family independence agency  department that

includes, but is not limited to, all of the following statements:

     (i) By surrendering the newborn, the parent is releasing the

newborn to a child placing agency to be placed for adoption.

     (ii) The parent has 28 days after surrendering the newborn to

petition the court to regain custody of the newborn.

     (iii) After the 28-day period to petition for custody elapses,

there will be a hearing to determine and terminate parental rights.

     (iv) There will be public notice of this hearing, and the

notice will not contain the parent's name.

     (v) The parent will not receive personal notice of this

hearing.

     (vi) Information the parent provides to an emergency service

provider will not be made public.

     (vii) A parent can contact the safe delivery line established

under section 20 of this chapter for more information.

     (2) After providing a parent with the information described in

subsection (1), an emergency service provider shall make a

reasonable attempt to do all of the following:

     (a) Encourage the parent to provide any relevant family or

medical information.

     (b) Provide the parent with the pamphlet produced under

section 20 of this chapter and inform the parent that he or she can

receive counseling or medical attention.

     (c) Inform the parent that information that he or she provides

will not be made public.

     (d) Ask the parent to identify himself or herself.

     (e) Inform the parent that in order to place the newborn for

adoption the state is required to make a reasonable attempt to

identify the other parent, and then ask the parent to identify the

other parent.

     (f) Inform the parent that the child placing agency that takes

temporary protective custody of the newborn can provide

confidential services to the parent.

     (g) Inform the parent that the parent may sign a release for

the newborn  which  that may be used at the parental rights

termination hearing under this chapter.

     (3) A newborn whose birth is described in the born alive

infant protection act, 2002 PA 687, MCL 333.1071 to 333.1073, and

who is in a hospital setting or transferred to a hospital under

section 3(1) of the born alive infant protection act, 2002 PA 687,

MCL 333.1073, is a newborn surrendered as provided in this  act

chapter. An emergency service provider who has received a newborn

pursuant to  under the born alive infant protection act, 2002 PA

687, MCL 333.1071 to 333.1073, shall do all of the following:

     (a) Comply with the requirements of subsections (1) and (2) to

obtain information from or supply information to the surrendering

parent by requesting the information from or supplying the

information to the attending physician who delivered the newborn.

     (b) Make no attempt to directly contact the parent or parents

of the newborn.

     (c) Provide humane comfort care if the newborn is determined

to have no chance of survival due to gestational immaturity in

light of available neonatal medical treatment or other condition

incompatible with life.

     Sec. 7. Upon receipt of notice from a hospital under section 5

of this chapter, the child placing agency shall 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)  Make  Unless otherwise provided in this subdivision, make

a temporary placement of the newborn with a prospective adoptive

parent who has an approved preplacement assessment.  and resides

within the state.  If a petition for custody is filed under section

10 of this chapter, the child placing agency may make a temporary

placement of the newborn with a licensed foster parent.

     (d)  Immediately  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.

     (f) Within 28 days, make reasonable efforts to identify,  and

locate,  a parent who did not surrender the newborn  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. 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  that  the

nonsurrendering parent are unknown, the child placing agency shall

provide notice of the surrender of the newborn by publication in a

newspaper of general circulation in the county where the newborn

was surrendered.

     Sec. 10. (1) If a  biological  surrendering parent wants

custody of a newborn who was surrendered under section 3 of this

chapter, the parent  must  shall, within 28 days after the newborn

was surrendered, file  an action  a petition with the court for

custody.  The  Not later than 28 days after notice of surrender of

a newborn has been published, an individual claiming to be the

nonsurrendering parent of that newborn may file a petition with the

court for custody. The surrendering parent or nonsurrendering

parent shall file the  custody action  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)  apply  applies, the

county where the parent is located.

     (2) 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

Senate Bill No. 1292 (S-1) as amended December 14, 2006

that issued the order and shall transfer the proceedings to that

court.

(3)  (2) Before holding a custody hearing  in an action  on a

petition filed under this section and not later than 7 days after a

petition for custody under this section has been filed, the court

shall  determine whether the individual filing the custody action

is the newborn's biological parent  conduct a hearing to make the

determinations [of paternity or maternity as described in section 11.]

     Sec. 11. (1) In a petition for custody  action filed under

this chapter, the court shall order  that  the child and each party

claiming paternity  or maternity and the child  to submit to 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 each party is likely

to be, or is not, a biological parent of the child. If the court

orders a blood or tissue typing or DNA identification profiling to

be conducted and a party refuses to submit to the typing or DNA

identification profiling, in addition to any other remedies

available, the court may do either of the following:  or DNA

identification profiling, as described in section 16 of the

paternity act, 1958 PA 205, MCL 722.716.

     (a) Dismiss the custody action in regard to the party who

refuses.

     (b) If a hearing is held, allow the disclosure of the fact of

the refusal unless good cause is shown for not disclosing the fact

of refusal.

     (2) A blood or tissue typing or DNA identification profiling

shall be conducted by a person accredited for paternity or

maternity determinations by a nationally recognized scientific

organization, including, but not limited to, the American

association of blood banks.

     (3) The court shall fix the compensation of an expert at a

reasonable amount. Except for an individual who the court

determines is indigent, the court shall direct each party claiming

paternity or maternity to pay the compensation for his or her own

testing plus a portion of the compensation for testing the child

equal to the total amount divided by the number of parties claiming

paternity and maternity. Before blood or tissue typing or DNA

identification profiling is conducted, the court may order a part

or all of the compensation paid in advance. Documentation of the

genetic testing expenses is admissible as evidence of the amount,

which evidence constitutes prima facie evidence of the amount of

those expenses without third party foundation testimony.

     (2) Unless the birth was witnessed by the emergency service

provider and sufficient documentation exists to support maternity,

in a petition for custody filed under this chapter, the court shall

order the child and each party claiming maternity to submit to

blood or tissue typing determinations or DNA identification

profiling, as described in section 16 of the paternity act, 1958 PA

205, MCL 722.716.

     (3) 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.

     (4) The court may order the petitioner to pay all or part of

the cost of the paternity or maternity testing.

     (5) 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.

     Sec. 15. Based on the court's finding  of the newborn's best

interest under section 14 of this chapter, 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) Terminates the parent's parental rights and gives a child

placing agency custody and care of the newborn.

     (b) Determines that the best interests of the newborn are not

served by granting custody to the petitioner parent and terminates

the parent's parental rights and gives a child placing agency

custody and care of the newborn.

     (c) Dismisses the petition.

     Sec. 17. (1) A parent who surrenders a newborn under section 3

of this chapter and who does not file a custody action under

section 10 of this chapter is presumed to have knowingly released

his or her parental rights to the newborn.

     (2) If a custody action is not filed under section 10 of this

chapter, the child placing agency shall petition the court for

termination of parental rights under section 19b of chapter XIIA.

If the agency has complied with section 7(f) of this chapter, the

notice under that section is the notice to the newborn's parents

required by section 19b of chapter XIIA.

     (2) 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.

     (3) 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 section 10 of this chapter, 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.

     (4) 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.

     (5) 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, the court shall enter an order terminating

Senate Bill No. 1292 (S-1) as amended December 13, 2006

parental rights of the surrendering parent and the nonsurrendering

parent under this chapter.

     Enacting section 1. Sections 12 and 13 of chapter XII of the

probate code of 1939, 1939 PA 288, MCL 712.12 and 712.13, are

repealed.

[Enacting section 2.  This amendatory act takes effect January 1,

 2007.]