HOUSE BILL No. 5763

 

June 14, 2012, Introduced by Rep. Kurtz and referred to the Committee on Families, Children, and Seniors.

 

     A bill to amend 1939 PA 288, entitled

 

"Probate code of 1939,"

 

by amending sections 23b, 23d, 23e, and 46 of chapter X (MCL

 

710.23b, 710.23d, 710.23e, and 710.46), section 46 as amended 

 

section 23b as added by 1994 PA 222, section 23d as amended by 2004

 

PA 487, and section 23e as amended by 2000 PA 55.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

CHAPTER X

 

     Sec. 23b. (1) A child placing agency or the department that

 

acquires legal and physical custody of a child pursuant to under

 

section 29 of this chapter or chapter XIIA may formally place a

 

child for adoption under section 51 of this chapter. A child

 

placing agency that acquires written authorization pursuant

 

according to subsection (3) from the parent or guardian having


 

legal custody of a child may make a temporary placement of the

 

child under section 23d of this chapter. A child placing agency may

 

assist a parent or guardian to make a direct placement under

 

section 23a of this chapter.

 

     (2) In an agency placement, a child placing agency or the

 

department may involve the parent or guardian of a child in the

 

selection of an adoptive parent and may facilitate the exchange of

 

identifying information or meetings between a biological parent and

 

an adoptive parent.

 

     (3) In a written document signed by a witness and by the

 

parent or guardian in the presence of the witness, a parent or

 

guardian having legal and physical custody of a child may authorize

 

a child placing agency to make a temporary placement of the child

 

under section 23d of this chapter. If the parent of the child being

 

temporarily placed is an unemancipated minor, the authorization is

 

not valid unless it is also signed in the presence of the witness

 

by a parent or guardian of that minor parent.

 

     (4) A child placing agency is not required to perform, assist,

 

counsel, recommend, facilitate, refer, or participate in a

 

placement that violates the child placing agency's written

 

religious or moral convictions or policies. A state or local

 

government entity may not deny a child placing agency a grant,

 

contract, or participation in a government program because of the

 

child placing agency's objection to performing, assisting,

 

counseling, recommending, facilitating, referring, or participating

 

in a placement that violates the child placing agency's written

 

religious or moral convictions or policies. Refusal by a child


 

placing agency to perform, assist, counsel, recommend, facilitate,

 

refer, or participate in a placement that violates the child

 

placing agency's written religious or moral convictions or policies

 

does not constitute a determination that the proposed adoption is

 

not in the best interests of the adoptee.

 

     Sec. 23d. (1) In a direct placement, a parent or guardian with

 

legal and physical custody of a child may make a temporary

 

placement of the child as prescribed by this section. In an agency

 

placement, a child placing agency with written authorization from

 

the parent or guardian as prescribed by section 23b of this chapter

 

may make a temporary placement of the child as prescribed by this

 

section. A temporary placement shall meet all of the following

 

requirements:

 

     (a) The prospective adoptive parent with whom a child is

 

temporarily placed has had a preplacement assessment completed

 

within 1 year before the date of the transfer with a finding that

 

the prospective adoptive parent is suitable to be a parent of an

 

adoptee.

 

     (b) In a direct placement, the parent or guardian is assisted

 

by an adoption attorney or a child placing agency.

 

     (c) In the presence of a witness who also signs the document,

 

the parent, guardian, or representative of the child placing agency

 

signs a statement evidencing the transfer of physical custody of

 

the child. If the parent making the temporary placement is an

 

unemancipated minor, the statement is not valid unless it is also

 

signed in the presence of the witness by a parent or guardian of

 

that minor parent. The statement shall contain all of the


 

following:

 

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

 

     (ii) Language providing that the transfer is for the purpose of

 

adoption by the prospective adoptive parent.

 

     (iii) Language indicating that unless the parent or guardian and

 

the prospective adoptive parent agree otherwise, the prospective

 

adoptive parent has the authority to consent to all medical,

 

surgical, psychological, educational, and related services for the

 

child and language indicating that the parent or guardian otherwise

 

retains full parental rights to the child being temporarily placed

 

and that the temporary placement may be revoked by the filing of a

 

petition under subsection (5).

 

     (iv) Language providing that the person making the transfer has

 

read a preplacement assessment of the prospective adoptive parent

 

completed or updated within 1 year before the date of the transfer

 

with a finding that the prospective adoptive parent is suitable to

 

be a parent of an adoptee. If a child placing agency makes the

 

transfer of physical custody, the statement shall include a

 

verification that the child placing agency has given the parent or

 

guardian who authorized the temporary placement an opportunity to

 

review the preplacement assessment.

 

     (v) Even if only 1 parent is making the temporary placement,

 

the name and address of both parents of the child, including in the

 

case of a child born out of wedlock, the name and the address of

 

each putative father of the child, if known.

 

     (d) In the presence of a witness who also signs the document,

 

the prospective adoptive parent signs a statement setting forth the


 

date of the transfer of physical custody and the name and address

 

of the prospective adoptive parent and attesting to all of the

 

following:

 

     (i) That the prospective adoptive parent understands that the

 

temporary placement will not become a formal placement until the

 

parents consent or release their parental rights and the court

 

orders the termination of parental rights and approves the

 

placement and that the prospective adoptive parent must relinquish

 

custody of the child within 24 hours after being served with an

 

order under section 23e(2) of this chapter.

 

     (ii) That, if the prospective adoptive parent is a Michigan

 

resident, the prospective adoptive parent agrees to reside with the

 

child in Michigan until formal placement occurs.

 

     (iii) That the prospective adoptive parent agrees to obtain

 

approval in compliance with the interstate compact on the placement

 

of children, 1984 PA 114, MCL 3.711 to 3.717, before the child is

 

sent, brought, or caused to be sent or brought into a receiving

 

state as that term is defined in section 1 of the interstate

 

compact on the placement of children, 1984 PA 114, MCL 3.711.

 

     (iv) That the prospective adoptive parent submits to this

 

state's jurisdiction.

 

     (2) Not later than 2 days, excluding weekends and holidays,

 

after a transfer of physical custody of a child in accordance with

 

subsection (1), the adoption attorney or child placing agency who

 

assists with the temporary placement or the child placing agency

 

that makes the temporary placement shall submit to the court in the

 

county in which the child's parent or guardian or the prospective


 

adoptive parent resides, or in which the child is found, a report

 

that contains all of the following:

 

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

 

     (b) The name and address of the parent or guardian or the

 

child placing agency who made the temporary placement.

 

     (c) The name and address of the prospective adoptive parent

 

with whom the temporary placement was made.

 

     (d) Even if only 1 parent is making the temporary placement,

 

the name and address of both parents of the child, including, in

 

the case of a child born out of wedlock, the name of each putative

 

father, if known.

 

     (e) The documents required under subsection (1)(c) and (d)

 

and, if applicable, the authorization required under section 23b of

 

this chapter.

 

     (3) Not later than 30 days after the transfer of physical

 

custody of a child under this section, the adoption attorney or

 

child placing agency who assists with the temporary placement or

 

the child placing agency that makes the temporary placement shall

 

submit to the court that received the report described in

 

subsection (2) a report indicating whether or not 1 of the

 

following dispositions has occurred:

 

     (a) A petition for adoption of the child has been filed.

 

     (b) The child has been returned to the agency or to a parent

 

or other person having legal custody.

 

     (4) If the court has not received the report required under

 

subsection (3) within 45 days after the transfer of physical

 

custody of a child, the court shall immediately investigate and


 

determine whether an adoption petition has been filed or the child

 

has been returned to a parent or other person having legal custody.

 

If the report required under subsection (3) or the court's

 

investigation reveals that neither disposition has occurred, the

 

court shall immediately report to the prosecutor, who shall

 

immediately file a petition in the court that received the report

 

described in subsection (2) for disposition of the child as

 

required by section 23e of this chapter. If a petition has been

 

filed under subsection (5), (6), or (7), the prosecutor is not

 

required to file a petition.

 

     (5) A parent or guardian who wishes to regain custody of a

 

child who has been placed temporarily shall file a petition in the

 

court that received the report described in subsection (2)

 

requesting that the temporary placement be revoked and that the

 

child be returned to the parent or guardian. Upon request of the

 

parent or guardian, the adoption attorney or child placing agency

 

who assisted in making the temporary placement shall assist the

 

parent or guardian in filing the petition to revoke the temporary

 

placement. If the temporary placement was made by a child placing

 

agency under section 23b(3) of this chapter, the child placing

 

agency shall file the petition on behalf of a parent or guardian

 

who wishes to regain custody of the child.

 

     (6) If a prospective adoptive parent with whom a child has

 

been temporarily placed is either unwilling or unable to proceed

 

with the adoption, the prospective adoptive parent may file a

 

petition in the court that received the report described in

 

subsection (2) for disposition of the child as required by section


 

23e of this chapter.

 

     (7) If a child placing agency that temporarily placed a child

 

is unable to proceed with an adoption because of the unavailability

 

of a parent or guardian to execute a release, or if a child placing

 

agency with legal custody of a child decides not to proceed with

 

the adoption by a prospective adoptive parent with whom the child

 

has been temporarily placed and the prospective adoptive parent

 

refuses upon the agency's request to return the child to the

 

agency, the child placing agency shall file a petition in the court

 

that received the report described in subsection (2) for

 

disposition of the child as required by section 23e of this

 

chapter.

 

     (8) Except as otherwise agreed to by the parties, the

 

prospective adoptive parent with whom a child is temporarily placed

 

under this section may consent to all medical, surgical,

 

psychological, educational, and related services for the child.

 

     (9) A hospital or attending practitioner shall not release a

 

child to an individual or agency not otherwise legally entitled to

 

the physical custody of the child unless all of the requirements of

 

subsection (1) are met.

 

     (10) A child placing agency is not required to perform,

 

assist, counsel, recommend, facilitate, refer, or participate in a

 

placement that violates the child placing agency's written

 

religious or moral convictions or policies. A state or local

 

government entity may not deny a child placing agency a grant,

 

contract, or participation in a government program because of the

 

child placing agency's objection to performing, assisting,


 

counseling, recommending, facilitating, referring, or participating

 

in a placement that violates the child placing agency's written

 

religious or moral convictions or policies. Refusal by a child

 

placing agency to perform, assist, counsel, recommend, facilitate,

 

refer, or participate in a placement that violates the child

 

placing agency's written religious or moral convictions or policies

 

does not constitute a determination that the proposed adoption is

 

not in the best interests of the adoptee.

 

     Sec. 23e. (1) Not later than 14 days after the filing of a

 

petition by the prosecutor as required by section 23d(4) of this

 

chapter, by a prospective adoptive parent as permitted in section

 

23d(6) of this chapter, or by a child placing agency as required by

 

section 23d(7) of this chapter, the court shall hold a hearing to

 

determine the custody of a child for whom a temporary placement has

 

been made.

 

     (2) Upon receiving a petition filed under section 23d(5) of

 

this chapter, the court shall immediately issue an ex parte order

 

directing the prospective adoptive parent to return the child to

 

the parent or guardian with legal custody within 24 hours after

 

receipt of the order, unless the court proceeds under subsection

 

(3).

 

     (3) The court may appoint an attorney to represent the child

 

or refer the matter to the department. The attorney or the

 

department may file a petition on the child's behalf requesting the

 

court to take jurisdiction under section 2(b) of chapter XIIA. If

 

that petition has not been filed within 14 days after the court

 

appoints an attorney or refers the matter to the department under


 

this section, the court shall order the return of the child to the

 

parent or guardian with legal custody. During the period before the

 

petition for jurisdiction under section 2(b) of chapter XIIA is

 

filed and a preliminary hearing is held or the return of custody is

 

ordered, the court shall remove the child from the home of the

 

prospective adoptive parent and make a temporary disposition

 

appropriate for the welfare of the child as authorized by section

 

18 of chapter XIIA.

 

     (4) Subject to subsection (2), the court may appoint a

 

guardian under the estates and protected individuals code, 1998 PA

 

386, MCL 700.1101 to 700.8102, 700.8206, in response to a petition

 

filed by the prospective adoptive parent or another individual

 

interested in the child's welfare, and make a temporary disposition

 

appropriate for the child's welfare as authorized by section 18 of

 

chapter XIIA until an order of guardianship is entered.

 

     (5) The court may order the return of a child to a child

 

placing agency that has obtained legal custody of the child.

 

     (6) The court may appoint a guardian ad litem for the child or

 

for a minor parent of the child.

 

     (7) This act provides the exclusive remedy for all custody

 

disputes arising out of a temporary placement.

 

     (8) Refusal by a child placing agency under section 23b or 23d

 

of this chapter to perform, assist, counsel, recommend, facilitate,

 

refer, or participate in a placement that violates the child

 

placing agency's written religious or moral convictions or policies

 

does not constitute a determination that the proposed adoption is

 

not in the best interests of the adoptee.


 

     Sec. 46. (1) Upon the filing of an adoption petition, the

 

court shall direct a full investigation by an employee or agent of

 

the court, a child placing agency, or the department. The court may

 

use the preplacement assessment described in section 23f of this

 

chapter and may order an additional investigation by an employee or

 

agent of the court or a child placing agency. The following shall

 

be considered in the investigation:

 

     (a) The best interests of the adoptee.

 

     (b) The adoptee's family background, including names and

 

identifying data regarding the parent or parents, if obtainable.

 

     (c) The reasons for the adoptee's placement away from his or

 

her parent or parents.

 

     (2) A written report of the investigation shall be filed

 

within 3 months after the order for investigation.

 

     (3) If the adoptee has been placed for foster care with the

 

petitioner for 12 months or longer and the foster family study was

 

completed or updated not more than 12 months before the petition

 

was filed, the court, upon motion by the petitioner, may waive the

 

full investigation required by this section. The foster family

 

study, with information added as necessary to update or supplement

 

the original study, may be substituted for the written report

 

required under subsection (2).

 

     (4) Refusal by a child placing agency under section 23b or 23d

 

of this chapter to perform, assist, counsel, recommend, facilitate,

 

refer, or participate in a placement that violates the child

 

placing agency's written religious or moral convictions or policies

 

does not constitute a determination that the proposed adoption is


 

not in the best interests of the adoptee.