WMU-Cooley Law Review - Volume 31, Number 2 by Cooley Law School

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL BOARD OF DIRECTORS Don LeDuc, President and Dean Hon. Louise Alderson, Vice Chairman Thomas W. Cranmer Sharon M. Hanlon Hon. Jane E. Markey Edward H. Pappas Dennis A. Swan James C. Morton

James W. Butler III Scott A. Dienes W. Anthony Jenkins Lawrence P. Nolan, Chairman Hon. Bart Stupak Hon. Stephen J. Markman

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT Honorable Thomas E. Brennan DEANS AND PROFESSORS EMERITI Michael P. Cox Keith J. Hey Robert E. Krinock (Deceased) DEANS Don LeDuc President, Dean, and Professor of Law

Frank Aiello Acting Assistant Dean and Associate Professor

Tracey Brame Assistant Dean and Professor of Law

Charles P. Cercone Associate Dean and Professor of Law

Christine Church Associate Dean and Professor of Law

Lisa Halushka Acting Associate Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

Jeffrey L. Martlew Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

Nelson P. Miller Associate Dean and Professor of Law

Martha Moore Assistant Dean and Professor of Law

James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Assistant Dean and Associate Professor

James B. Thelen Associate Dean for Legal Affairs & General Counsel

Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career and Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services

PROFESSORS Tammy Brown Asher Erika Breitfeld Paul Carrier Patrick Corbett James Eyster Gerald Fisher Karen Fultz Christopher Hastings Linda Kisabeth Gerald MacDonald Michael McDaniel Monica Nuckolls Lauren Rousseau Scott Dan Sheaffer Jeffrey Swartz Patrick Tolan Victoria Vuletich

Gary Bauer John S. Brennan Bradley Charles Lisa DeMoss Cindy Faulkner Anthony Flores Heather Garretson Richard C. Henke Tonya Krause-Phelan Mable Martin-Scott Marla Mitchell-Cichon Kimberly Oâ&#x20AC;&#x2122;Leary Devin Schindler Paul Sorensen Kathy Swedlow Christopher Trudeau Kara Zech Thelen

Brendan Berry Jeanette Buttrey Mark Cooney Renalia Dubose David Finnegan Dustin Foster Katherine Gustafson Barbara Kalinowski Joni Larson Daniel W. Matthews Michael K. Molitor Daniel Ray John Norman Stevie J. Swanson David Tarrien Gerald Tschura

THOMAS M. COOLEY LAW REVIEW TRINITY 2014 BOARD OF EDITORS Kathryn Frontier Editor-in-Chief Jared Schultz Interim Editor-In-Chief Jacqueline Langwith Solicitation Editor

Michael Taylor Managing Editor

Michelle Easter Interim Solicitation Editor

Stephanie Strycharz Articles Editor Matthew Elzinga Interim Articles Editor

Cathy Carson Administrator

Rabih Hamawi Symposium Editor

Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Monica Bansal Channa Beard Stephanie Carlisle Kaitlyn Dobesh Erin Haney Ross Holec Ogenna Iweajunwa

Andrew Linke Danica Malloy Mark Meserschmidt Chelsey Morgenstern Candis Najor Anthony Nicholson Sumayya Saleh

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Scott Sawyer Joe Shada Jessica Stark Brandon Thomson Iris Timm RaShaunda Weaver

SENIOR ASSOCIATE EDITORS

Matthew Berry Minyon Bolton Jacqulene Brandt Nathan Chan Kevin Coe

Craig Dickinson Elena Djordjeski Courtney Driscoll Ryan Kaiser Stephanie Kingsley

Sharmila Rajani Melaine Schmiz Michael Schmiz Brendette Walker

ASSOCIATE EDITORS

Callana Davis James Klinedinst Ben Lesnick

Greg Masters Sarah Miller Alec Ohryn

Irene Patrick Joshua Pugliesi Rebecca Siegel

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Former Chief Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Governor, State of Michigan Professor Joseph Kimble Thomas M. Cooley Law School Professor Chris Shafer Thomas M. Cooley Law School The Honorable Richard F. Suhreinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Thomas E. Brennan Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifth Second District Court The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor Cathy Carson Law Review Administrator

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2014 Recipients: Minyon Bolton Kevin Coe Jacqulene Brandt EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2014 Recipients: Channa Beard Brandon Thomson Iris Timm DAWN C. BEACHNAU AWARD This award is presented to the member of the Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Trinity 2014 Recipient: Kathryn Frontier

THOMAS M. COOLEY LAW REVIEW MICHAELMAS 2014 BOARD OF EDITORS Jared Schultz Editor-in-Chief Michael Taylor Managing Editor

Rabih Hamawi Symposium Editor

Melissa Gilchrist Interim Managing Editor

Charlynn Turner Interim Symposium Editor

Matthew Elzinga Articles Editor

Greg Masters Subcite Editor

Michelle Easter Solicitation Editor

Cathy Carson Administrator Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Nemer Baki Channa Beard Daron Berman Stephanie Carlisle Lauren Frieder Erin Haney Ken Kharha

James Klinedinst Jacqueline Langwith Andrew Linke Mark Messerschmidt Candis Najor Sumayya Saleh Scott Sawyer

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Joe Shada Jerrod Simpson Jessica Stark Stephanie Strycharz Brandon Thomson RaShaunda Weaver Qiong Zhao

SENIOR ASSOCIATE EDITORS Minyon Bolton Callana Davis Ben Lesnick

Sarah Miller Alec Ohryn Joshua Pugliesi

Rebecca Siegel Elizabeth Spiridon Craig Dickinson

ASSOCIATE EDITORS Aaron Cook Melissa Inchauste Jenn Jager

Rose Kleff Scott Miller

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Taneashia Morrell Jordan Wilson

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2014 Recipient: Callana Davis EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2014 Recipients: Candis Najor Stephanie McGuire Sumayyah Saleh DAWN C. BEACHNAU AWARD This award is presented to the member of the Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Trinity 2014 Recipient: Rabih Hamawi

Contents

Volume 31

2014

Issue 2

From the Editor……………………………………………………........xiii Distinguished Brief Awards Remarks Justice Bridget Mary McCormack..………………………………51 Distinguished Briefs MAJESTIC GOLF, LLC v. LAKE WALDEN COUNTRY CLUB, INC. Larry J. Saylor and Clifford W. Taylor…………………………..57 DIANE K. SHOLBERG v. ROBERT AND MARILYNN TRUMAN Anthony F. Caffrey III, R. Carl Lanfear, and Paul M. Kittinger…………………………………………...111 PEOPLE OF THE STATE OF MICHIGAN v. WILLIAM CRAIG GARRETT David A. McCreedy………...……………………………………153 ANDRIE INC. v. DEPARTMENT OF TREASURY Jessica A. McGivney and John J. Bursch……………..………...209 MATTHEW MAKOWSKI v. RICHARD SNYDER Paul D. Reingold and Charles L. Levin…………………...…….241 JOHN TER BEEK v. CITY OF WYOMING Daniel S. Korobkin, Michael J. Steinberg, and Kary L. Moss………………………………………………..293 xi

Articles COMPARATIVE ANALYSIS FOR THE PARENT SEEKING TO TERMINATE THE PARENTAL RIGHTS OF THE OTHER PARENT Liisa Speaker……………………………..……………………...351 MICHIGAN’S NEW ADOPTION LAWS: STRENGTHENING THE RIGHTS OF PROSPECTIVE ADOPTIVE PARENTS Elisabeth Mullins…………………………...…………………...389

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FROM THE EDITOR The Thomas M. Cooley Law Review is pleased to bring you the second issue in Volume 31. We hope that you find the content to be intriguing and intellectually stimulating. First, this issue includes Michigan Supreme Court Justice Bridget Mary McCormack’s keynote speech from the 2014 Distinguished Brief Awards. This annual ceremony hosted by Thomas M. Cooley Law School recognizes the three best briefs filed in the Michigan Supreme Court. But this year, due to the abundance of appellate talent in this state, we were compelled to recognize six briefs. They are all included. This issue also contains two articles discussing the adoption process in Michigan. These articles discuss the relevant adoption laws and how they pertain to biological parents, adoptive parents, and—most importantly—the adopted children. The entire team of editors has worked tirelessly over the last two terms to form the content of this book. Without each and every member of this team, the Law Review does not function and this book does not get published. Also, I want to thank Professor Kara Zech Thelen and the rest of the dedicated faculty that are always eager to answer our questions. Please enjoy this issue of the Thomas M. Cooley Law Review. — Jared Schultz

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REMARKS JUNE 25, 2014 LANSING, MI THOMAS M. COOLEY LAW REVIEW DISTINGUISHED BRIEF AWARDS JUSTICE BRIDGET MARY MCCORMACK Thank you very much for that kind introduction. And thanks for inviting me tonight to share with you some of my ideas about appellate advocacy. I was here two years ago as one of the award winners, and Chief Justice Young gave this speech. I remember it in some detail. The Chief is as good a writer as anyone I know, and his advice to advocates is, in my view, generally pitch perfect. One of my favorite things about this new job is teasing the Chief Justice. But I am quite serious about his talk here two years ago. It was excellent. I am not crazy about following him. I hope that last year you had someone really dull. The list of awardees tonight actually makes me pretty confident that you should have asked one of them to talk about the topic of appellate advocacy instead of me, or asked me to talk about something obscure that I might know more about than all of them. Forensic science, for example. Or how to feed 150 high school menâ&#x20AC;&#x2122;s swimmers after a meet. Then I could stand before you confident that I had something to offer. But here I go. I have my own preferences for appellate advocacy, and, frankly, in many ways they havenâ&#x20AC;&#x2122;t changed a whole lot from when I was practicing law. Some of the tools and rules which I felt were important then still seem important to me on the other side of the bench. But my perspective about what is important has broadened since I took the bench. Tonight, I thought I would focus on those personal observations that have stood out since January 2013. There are six points in particular: 1.

You have to get us to take the case.

It does not matter how correct your position is, if we never take the case. The leave-application stage is truly the critical stage. I am not going to parrot the standards for you. You can look those up.

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I do want to say a few words about the internal process we use in deciding to take a case or, more likely, not to. Each application receives multiple levels of review. The first level is a thorough read and report by one of our Commissioners. We have 15 or so senior lawyers (Commissioners) who prepare reports for us on every incoming application, motion, or other request. The report we receive summarizes both sides of the argument, fills in any gaps we should know about, and makes a recommendation about what we should do with the case. In most cases, the recommendation is to deny leave. Occasionally, it is to grant leave or to take some other action in the case, or there are a few different potential recommendations for us to consider. If there is a recommendation to grant leave, the case automatically finds its way to one of our conference agendas. Each chambers then does its own review, and each Justice has her own approach to that process. In my chambers, my clerks review each incoming report and prepare a memo for me with their own independent recommendation. Again, that recommendation does not often differ from the Commissioner’s recommendation—although sometimes it does. I then make a determination on each case whether to let the Commissioner’s recommended order enter or to hold the case for conference discussion. Somehow you have to grab our attention in this process. You want the Commissioner or the law clerk or the Justice reviewing your application to have a sense that your case needs our attention, that there is some important reason why the Court needs to act on the issue presented. It cannot be because your client needs a different outcome. We take pride in not caring about that; we are not in the business of error correcting. Your pitch has to be about something broader than your client’s outcome. This task is all the more difficult if the Court of Appeals opinion was unpublished. 2.

Play it straight.

We know that you are an advocate; we assume you are doing the job your client has hired you to do, which is to convince us that she wins. But refer back to point number 1. We do not care who wins. We want to get the law right. I promise you that the Chief Justice will ask you the following question at some point during your oral argument: “What is the rule you want us to adopt here? What is the rule that will guide the trial courts in the next 1,000 cases?”

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The following answer is not the correct answer: “I don’t care what the rule is as long as my client wins.” (We actually heard that response more than once this term.) Communicate that you understand the Court’s role. Situate your case in the context of the larger-picture questions the case raises. Answer those questions well. Be straight with the facts and with the law. Concede where you should concede. You don’t have to win every sub-argument to prevail. You can do your client a lot of good by being an honest broker. 3.

Great writing is great writing. Great legal writing is just great writing.

Being a great writer is obviously key to overall appellate success. At least, there is no way around it if you are not so great. Frankly, excellent writing remains a very rare skill in the legal marketplace. A lot of smart people—and even top academic achievers—are good writers but not excellent writers. It is a skill you can practice and get better at. So get really good at it. While you are practicing, scrub your briefs of all the heretofores and the whereins and the aforementioneds. Especially the aforementioneds. Seriously, please do not use these. Write plainly, clearly, and explain the issues in plain English. We know that you know fancy words. Do you know how many fancy words the Chief Justice knows? More than you, I promise. We appreciate clear argument. Complex sentences are no better than complex words. My colleagues will tell you that the only thing I like better than a twoword sentence is a one-word sentence. See Ter Beek v Wyoming. Finally, read great legal writing to get better. Who are the best legal writers that you know? [U.S. Supreme Court Justice Antonin] Scalia and [U.S. Ninth Circuit Court Chief Judge Alex] Kozinski come to mind for me. Why are they the best? Generally for similar reasons: clear, plain presentation of the issues. Read: good writing. And not just legal writing. Read: good writing generally. This will make you a better writer. 4.

Oral argument really matters.

This came as the greatest surprise to me since joining the bench. I have practiced in a number of appellate courts and had successful arguments and less successful arguments—but I always suspected the

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fix was in. Whatever the “fix” was—I won more than I lost so I don’t mean that in a pejorative way. I just mean to say that I thought the court already knew what it was going to do with my case by the time of the argument. That turns out not to be true at the Michigan Supreme Court. The Justices will all have spent a lot of time with the case. Each of us will likely have some preliminary ideas about it, but it is stunning to me how often oral argument causes us to think differently. So do not take oral argument for granted. Prepare. And prepare some more. Know your case so well that you are not nervous. Instead, be ready to be playful and to really answer our questions. You need to figure out what we showed up worried over. Spend all your time on that. Really. All of it. Waive your free fire zone. You do not need to give us an introduction—we are way beyond needing an introduction. Feel free to be funny. Judges are just people. We appreciate it when you can help us with something we are struggling with, or answer a question we think is critical to the question in the case, or just make us laugh. 5.

Don’t start a sentence with “However”.

That’s all I have to say about that one. I know the modern style guides have acquiesced on this. Ignore their siren call. Your grandmother was right. Just don’t do it. 6.

Just because you have 30 minutes does not mean you should use it.

Especially if things have gone extremely well for the first 12 or so minutes and there does not seem to be any remaining questions from the bench. In Season 9 of Seinfeld, George Costanza is working on mastering this important skill. As an episode opens, he is sitting in the coffee shop with Jerry lamenting his losing his audience at a meeting at work. George: I had ‘em, Jerry. They loved me. Jerry: And then?

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George: I lost them. I can usually come up with one good comment during a meeting, but by the end it’s buried under a pile of gaffs and bad puns. Jerry: Showmanship, George. When you hit that high note, you say goodnight and walk off. George: I can’t just leave. Jerry: That’s the way they do it in Vegas. At his next work meeting, we see George crack everyone up with a joke and as they are still laughing, he stands up, thanks the room, and exits. There is something to be said for this life lesson in the context of oral argument. Let me see if I can model it right now. I was told that I had 30 minutes to talk tonight. But when was the last time you heard a short speech you didn’t like? Thank you for inviting me to help honor these excellent advocates.

DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Thomas M. Cooley Law Review. To preserve the author’s style, the brief has been reprinted in its entirety, exactly as submitted to the Michigan Supreme Court. INTRODUCTION

MAJESTIC GOLF, LLC, Plaintiff-Appellee, v.

LAKE WALDEN COUNTRY CLUB, INC., Defendant-Appellant.

In 1992, Appellant Lake Walden Country Club, Inc. (LWCC) leased land from Appellee Majestic Golf, LLC for 25 years, on which LWCC built and operates a 27-hole golf course. On October 7, 2008, Majestic sent LWCC a letter asking LWCC to sign a draft “Consent to Easement” that would allow construction of a road across the golf course. When LWCC failed to sign, Majestic purported to terminate the lease for default. The trial court held that LWCC defaulted when it failed to sign the Consent but that the default was not “material.” The Court of Appeals reversed, holding that the unambiguous contract must be “enforced as written.” LWCC argued to the Supreme Court that the Court of Appeals failed to apply all terms of the contract “as written,” because issues of fact remained as to (1) whether Majestic mailed LWCC notice of the impending default by registered mail; (2) whether the letter adequately put LWCC on notice of an impending default; (3) whether Majestic’s subsequent conduct waived or withdrew the notice; and (4) whether the lease obligated LWCC to sign the proposed Consent. In an Order dated December 20, 2013, the Supreme Court reversed and remanded, holding that issues of fact remain as to whether the

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letter was sufficient notice of impending default and whether Majestic’s subsequent conduct waived any claim of default. BIOGRAPHICAL STATEMENT LARRY J. SAYLOR—a principal in Miller Canfield’s Detroit office, he handles civil appeals in the Michigan Supreme Court and Court of Appeals, various U.S. Courts of Appeal, and the U.S. Supreme Court. He also litigates commercial matters and acts as an arbitrator. Larry began his career as a law clerk for Hon. George E. MacKinnon, U.S. Court of Appeals for the D.C. Circuit. He is a member of the Council of the State Bar of Michigan Appellate Practice Section, and past Chair of the Antitrust, Franchising and Trade Regulation Section. He has served as an adjunct professor at the University of Detroit Mercy School of Law and as a moderator at the Michigan Appellate Bench—Bar Conference. Larry received his J.D., magna cum laude, from the University of Michigan Law School, his A.B. from Miami University (Ohio) and a Master of City and Regional Planning from The Ohio State University. CLIFFORD W. TAYLOR— a retired Chief Justice of the Michigan Supreme Court, he is currently of counsel with the Michigan law firm of Miller, Canfield, Paddock and Stone Appellate Practice Group and the Justice in Residence and Visiting Professor of Law at Ave Maria School of Law in Naples, Florida. Justice Taylor received his B.A. from the University of Michigan and his J.D. from George Washington University Law School in Washington, D.C. Following law school, he served three years as an officer in the U.S. Navy. He then returned to Michigan, practicing criminal and then civil law, attaining the highest Martindale Hubble ratings for character and competence. He was appointed by Governor John Engler to the Michigan Court of Appeals in 1992 and subsequently elected to a full term. Justice Taylor was appointed to the Michigan Supreme Court in 1997 and twice elected, statewide, serving 11 years, the final four as Chief Justice of the Court. Justice Taylor is the Chairman of the Board of Directors of the Mackinac Center for Public Policy and is on the Board of Directors for the American Justice Partnership. His writings have been published in legal periodicals, journals, and law reviews. In 1998, he co-authored a three-volume Michigan Practice Guide on Torts.

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DIANE K. SHOLBERG, as personal representative of the ESTATE OF TERRI A. SHOLBERG, Plaintiff-Appellee, v.

ROBERT AND MARILYNN TRUMAN, Defendants-Appellants.

Terri Sholberg suffered fatal injuries when her car struck a horse owned by Daniel Truman. Although Daniel Truman had owned and operated a farm for decades, his brother and sister-in-law—Robert and Marilyn Truman—had title ownership to the house. At issue was whether the decedent’s estate could sue the Trumans for a nuisance that was created solely by Daniel Truman and on property that was exclusively possessed and controlled by Daniel Truman. The trial court granted summary disposition, but the Michigan Court of Appeals reversed, ruling that ownership of real property alone justified potential liability for any nuisance arising from that property. The issue briefed to the Michigan Supreme Court was whether a mere owner of property could be liable for a nuisance that was created by another that was in exclusive possession and control of the property. The Supreme Court ordered oral argument on the application and ultimately reversed the Michigan Court of Appeals, reinstating summary disposition on the nuisance cause of action.

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BIOGRAPHICAL STATEMENT ANTHONY F. CAFFREY III—is Cardelli Lanfear’s partner focusing on appellate and major writing projects for litigation at all levels. Before joining the firm, Mr. Caffrey clerked for Judge Owens in the Michigan Court of Appeals and was a prehearing attorney in Grand Rapids. He has been recognized by Michigan Super Lawyers for his appellate and litigation work. Mr. Caffrey received his J.D. from Thomas M. Cooley Law School in 1999. R. CARL LANFEAR—concentrates his practice in civil litigation, with an emphasis on trial advocacy. A veteran litigator, his legal career includes 34 successful defense verdicts. In one case, Mr. Lanfear achieved a summary disposition in a pending Wayne County product liability case where documented damages exceeded $20 million. Mr. Lanfear received his J.D. from the University of Detroit Mercy School of Law in 1990. PAUL M. KITTINGER—concentrates his practice in civil and commercial litigation. In his spare time, he works as a volunteer mediator at The Resolution Center, which serves residents of Macomb and St. Clair Counties. Mr. Kittinger received his J.D. from Wayne State University Law School in 2008. During law school, he served as a law clerk for Liberty Mutual. In this capacity, he assisted in all stages of litigation for automobile negligence, premises liability, workers’ compensation, and products liability cases.

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v.

WILLIAM CRAIG GARRETT, Defendant-Appellant.

After the Michigan Supreme Court granted Garrett’s application for leave to appeal, the Supreme Court raised the possibility that each of the approximately 40,000 prisoners within the MDOC could become eligible, under the “actual-innocence” provision of MCR 6.508 (Motion for Relief From Judgment), to re-litigate their guilt or innocence in the trial court. The People’s Brief on Appeal was directed to three goals: (1) to persuade the Court that—in the vast majority of cases—the last word on guilt or innocence had to be the trial; (2) that existing law and procedures were sufficient to free the truly innocent; and (3) that under even an expanded view of the relevant law defendant Garrett was not entitled to relief. As to the first, the historical context for Michigan’s postconviction relief rule shows that the “actual innocence” provision had a more limited rule than defendant claimed: it allowed for relief only when the person could show both a constitutional violation at trial and new evidence demonstrating his innocence. As for the second, truly innocent prisoners who had trials free of constitutional error could still get relief through the Governor’s commutation power, and the judiciary should not usurp that exclusive power of the Executive.

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As to the third, prisoner Garrett not only failed to demonstrate any constitutional error at trial, but the evidence—particularly an independent witness’s identification of him—left no doubt as to his actual guilt.

BIOGRAPHICAL STATEMENT DAVID A. MCCREEDY—received a B.A. in political science from Kalamazoo College and a J.D. from the University of Michigan law school. He worked for Senator Carl Levin for four years. Mr. McCreedy also clerked for the honorable James Ryan of the Sixth Circuit.

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ANDRIE INC., Plaintiff-Appellee, v.

DEPARTMENT OF TREASURY, Defendant-Appellant. This case concerns the interplay between Michigan’s sales tax and Michigan’s use tax. Michigan imposes a six percent sales tax on goods sold at retail in the State. Michigan also imposes a six percent tax for the privilege of using, storing, or consuming tangible personal property in this state, unless the taxpayer can show that a 6% sales tax was “paid” when the property was purchased. The two statutes work in tandem to ensure that there is not double taxation, but that a 6% tax is paid on all tangible property transactions, either in the form of the sales tax or the use tax. A taxpayer always has the burden of proving entitlement to an exemption from tax. But here, the taxpayer claimed it did not owe use tax on the tangible property at issue because it was “subject” to sales tax. The taxpayer failed to prove that sales tax had actually been “paid.” The Court of Appeals found that the taxpayer was not subject to the use tax because it did not have the burden to prove its eligibility for an exemption from the use tax and because a retailer has the ultimate responsibility to pay any sales tax. In this brief, the Department of Treasury challenges the opinion of the Court of Appeals for relieving the taxpayer of its statutory burden of proof as to its entitlement to an exemption from tax and

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for re-writing an exemption from use tax from one based on sales tax “paid” to one based on sales tax “eligible.”

BIOGRAPHICAL STATEMENT JESSICA A. MCGIVNEY—is an Assistant Attorney General for the State of Michigan. Ms. McGivney is the Section Head of the Substantive Tax Section in the Revenue & Collections Division. She received her BA in Political Science from Michigan State University in 1998 and her JD (cum laude) from Michigan State University College of Law in 2002. JOHN J. BURSCH—Co-chairs the Appellate and Supreme Court Practice at Warner Norcross & Judd LLP. He previously served as Michigan’s tenth Solicitor General. As reported in The Wall Street Journal, John argued more than 6% of all the cases before the U.S. Supreme Court between March 2011 and the end of 2013, compiling a record that the National Law Journal observed “even more veteran high court advocates would envy.” Overall, John has argued eight times in the U.S. Supreme Court, winning three Best Brief Awards, and 15 times in the Michigan Supreme Court, earning four Distinguished Brief Awards.

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MATTHEW MAKOWSKI, Plaintiff-Appellee, v.

RICHARD SNYDER, Defendant-Appellant. Michigan’s Governor commuted the plaintiff’s mandatory life sentence near the end of her term of office. She signed the commutation and sent it to the Secretary of State, who signed, sealed, and filed it. Four days later the Governor revoked the commutation. Her staff withdrew the commutation from the Secretary of State and destroyed the original and all copies. The plaintiff sued the Governor and the Secretary of State, claiming that the commutation had become a final act of state that could not be constitutionally rescinded. The circuit court did not reach the merits, holding that it lacked jurisdiction to review the Governor’s exercise of her discretionary power. The Court of Appeals affirmed, on the grounds that the case presented a nonjusticiable political question and violated the doctrine of separation of powers. The Michigan Supreme Court reversed. In a 6-0 decision, the Court accepted the plaintiff’s arguments, holding that under Marbury v. Madison (1) the question was justiciable and did not violate separation of powers and (2) the commutation was final when the Governor signed it and the Secretary of State signed, sealed, and filed it.

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BIOGRAPHICAL STATEMENT PAUL D. REINGOLD—is director of the University of Michigan Law School’s Civil-Criminal Clinic. He joined the law faculty in 1983 and has taught Trial Advocacy, Litigation Ethics, Negotiation, and Clinical Law. His primary interests include civil rights, appellate practice, prisoners’ rights, and civil procedure. In 2009 the State Bar of Michigan granted him its Champion of Justice Award for his work as a public interest lawyer. He earned his B.A. from Amherst College and his J.D. from Boston University Law School. CHARLES L. LEVIN—worked for almost 20 years in private practice in New York City and Detroit. He served as a Michigan Court of Appeals judge from 1966 to 1972. He then ran for the Michigan Supreme Court as an independent candidate. He was elected and served from 1973 to 1996. Justice Levin earned his B.A. at the University of Michigan and his L.L. B. at the University of Michigan Law School.

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JOHN TER BEEK, Plaintiff-Appellee, v.

CITY OF WYOMING, Defendant-Appellant.

Ter Beek v. City of Wyoming is a declaratory judgment action in which the plaintiff, a medical marijuana patient, challenges the constitutionality of a local ordinance that bans medical marijuana. John Ter Beek is a medical marijuana patient who lives in Wyoming, Michigan, and wishes to grow and use medical marijuana in compliance with the Michigan Medical Marihuana Act (“MMMA”). The City of Wyoming adopted a local ordinance that prohibited the use and cultivation of medical marijuana anywhere within the city, even if that use or cultivation complied with the requirements of the MMMA. Mr. Ter Beek, represented by attorneys from the ACLU of Michigan, challenged the ordinance on state preemption grounds, arguing that the MMMA trumps the local ordinance because it provides explicit state-law protections for the use and cultivation of medical marijuana. The Kent County Circuit Court agreed that medical marijuana was protected by state law, but went on to rule that the MMMA itself was preempted by federal law because medical marijuana violates the federal Controlled Substances Act. As a result of the federal preemption ruling, the circuit court ruled that Mr. Ter Beek’s challenge to the ordinance failed.

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Mr. Ter Beek appealed. The circuit court’s judgment was reversed by the Court of Appeals, and the Michigan Supreme Court granted the City of Wyoming’s application for leave to appeal. Mr. Ter Beek’s brief addresses two major preemption issues related to the medical marijuana. First, as noted above, the brief argues that under state preemption law, Wyoming’s ordinance banning medical marijuana is preempted by the MMMA because a state law protecting certain activity trumps a local ordinance that prohibits that activity. Second, the brief argues that under federal preemption law, the MMMA is not preempted by the federal Controlled Substances Act. Although the federal prohibition on marijuana use contains no exception for medical marijuana, there is no requirement that the state laws prohibit all conduct that happens to be prohibited under federal law. To the contrary, as an exercise of their sovereign power within our federalist system, states may simply choose to refrain from penalizing activity under their own laws that Congress has made illegal. And because cities are creatures of state law, they cannot stand in for the federal government and rely on federal law to penalize activity that is protected under state law. In a unanimous opinion authored by Justice McCormack, the Supreme Court agreed with Mr. Ter Beek, holding that (1) the local ordinance is preempted by the MMMA, and (2) the MMMA is not preempted by federal law. The Court’s decision resolves a statewide debate over the complex relationship between local, state and federal laws pertaining to medical marijuana. BIOGRAPHICAL STATEMENT DANIEL S. KOROBKIN—has been with the ACLU of Michigan since 2008. Korobkin has a law degree from Yale Law School and a bachelor's degree from Swarthmore College. Korobkin served as a law clerk to Judge Myron H. Thompson of the Middle District of Alabama and to Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit. MICHAEL J. STEINBERG—has served as the Legal Director of the American Civil Liberties Union of Michigan since 1997. Steinberg earned a B.A. with honors from Wesleyan University in

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1983 and is a 1989 cum laude graduate of Wayne State University Law School. Upon graduation, he clerked for then Michigan Court of Appeals Judge Marilyn Kelly. KARY L. MOSS—has served as the Executive Director of the ACLU of Michigan since 1998. She earned a Masters in International Affairs from Columbia University and a JD from CUNY Law School at Queen’s College. Prior to joining the ACLU of Michigan, she clerked at the United States Court of Appeals for the Second Circuit and then served as staff attorney with the American Civil Liberties Union’s Women’s Rights Project, which was founded by Justice Ruth Bader Ginsburg.

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COMPARATIVE ANALYSIS FOR THE PARENT SEEKING TO TERMINATE THE PARENTAL RIGHTS OF THE OTHER PARENT LIISA SPEAKER ABSTRACT There are few statutory mechanisms by which a custodial parent could seek to terminate the parental rights of the noncustodial parent. However, strict interpretations of these statutes reveal that such a termination is either extremely difficult or impossible. Under the Adoption Code, a custodial parent can seek to terminate the rights of a noncustodial parent to make way for a stepparent adoption only if the custodial parent has sole legal custody and the noncustodial parent has failed to provide support or contact for at least two years. Although some cases seem to have allowed one parent to seek termination of the noncustodial parentâ&#x20AC;&#x2122;s rights, a strict reading of the Juvenile Code reveals that such a scenario should not be possible. For stepparent adoption cases, further legislation would have to permit termination proceedings to apply even when the parents have been awarded joint legal custody. And for juvenile code cases, further case law needs to clarify why a parent seeking termination is inconsistent with the plain language of the juvenile code. TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 352 II. ADOPTION CODE .......................................................................... 353 A. Section 39: Termination of a Putative Fatherâ&#x20AC;&#x2122;s Parental Rights ...................................................................... 353 1. Do-Something Fathers................................................. 354 2. Do-Nothing Fathers ..................................................... 357 B. Section 51: Stepparent Adoptions ..................................... 361 III. TERMINATING PARENTAL RIGHTS UNDER THE JUVENILE CODE . 367

Liisa Speaker is a private practitioner whose practice is devoted to appeals. She graduated from the University of Texas School of Law and is licensed to practice in the State of Michigan. Ms. Speaker gratefully acknowledges the tremendous assistance of her law clerk Kathryn L. Oberer in preparing this article. Ms. Oberer will graduate in May 2015 from the Michigan State University College of Law.

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A. Petition and Petitioner Requirements ............................... 368 B. Obtaining Jurisdiction over the Child .............................. 370 C. Reasonable Efforts to Reunite Parent and Child.............. 373 D. Statutory Grounds for Terminating Parental Rights ........ 374 E. Best Interest of the Child .................................................. 378 IV. ADDITIONAL WAYS TO “TERMINATE” A PARENT’S RIGHTS........ 380 A. Revocation of Paternity Act .............................................. 380 B. “Terminating” Parental Rights to Enable Joint Adoptions ............................................................................... 381 V. COMPARING THE METHODS BY WHICH A PARENT CAN SEEK TO TERMINATE ANOTHER PARENT’S PARENTAL RIGHTS: JUVENILE CODE VERSUS STEPPARENT ADOPTIONS ........................... 382 A. A Parent’s Choice to Proceed under the Juvenile Code or the Adoption Code ................................................... 383 B. The Impact of the Supreme Court’s Holding in In re AJR................................................................................ 385 C. Parent’s may not actually have a choice under the Juvenile Code. ....................................................................... 386 VI. CONCLUSION .............................................................................. 387

I. INTRODUCTION Assume you are a parent raising your child alone or you have remarried and you are raising your child alongside your spouse. Your child’s other parent is not helping to raise your child. The other parent does not write, call, or visit your child, nor do they provide financial support. In the interest of your child, you want to terminate the other parent’s parental rights. Can you do it? If so, how? In Michigan, parental rights, or potential parental rights, can be terminated in one of four ways. First, the Adoption Code allows an unmarried biological mother to place her child for adoption. To do this, the court must terminate any potential parental rights of an unmarried putative father. Second, the Adoption Code allows a child’s custodial parent and current spouse to petition for the termination of parental rights of the noncustodial parent. This terminates the noncustodial parent’s rights in favor of an adoption by the petitioning stepparent. Third, the Juvenile Code allows a parent, custodian, or the state to move to terminate the parental rights of a parent who has abused or neglected the child. Fourth, the Revocation of Paternity Act allows a mother, acknowledged father, alleged

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father, or a prosecutor to petition to revoke the legal parentage of a father who is not biologically related to the child. Because Michigan courts follow the general presumption that “the best interests of a child are served by awarding custody to the natural parent,”2 and because the right of parents to direct the care, custody, and control of their children is a well-established liberty interest protected by due process,3 parents are afforded many procedural safeguards before their parental rights can be terminated. This Article will detail and compare these procedures, particularly those provided by the Adoption Code and the Juvenile Code. This Article will also explore a custodial parent’s ability to seek termination of the noncustodial parent’s parental rights. The Article concludes that, based on a recent Michigan Supreme Court decision, termination under the Adoption Code is now out of reach for many noncustodial parents, while termination under the Juvenile Code is not a viable option either. II. ADOPTION CODE The Michigan Adoption Code provides two separate avenues for terminating parental rights: section 39, which terminates a putative father’s potential rights, and section 51, which governs stepparent adoptions.4 While these two sections apply in different contexts, Michigan courts will often use provisions in one section to interpret provisions in the other.5 A. Section 39: Termination of a Putative Father’s Parental Rights Section 39 involves both biological parents relinquishing or losing parental rights in favor of adoption.6 First an unmarried biological mother voluntarily initiates an adoption proceeding by placing the child with prospective adopters and filing a notice of hearing to determine the identity and rights of the putative father.7 But before the adoption can occur, the rights of the potential

2. In re MKK, 781 N.W.2d 132, 142 (Mich. Ct. App. 2009). 3. Hunter v. Hunter, 771 N.W.2d 694, 701 (Mich. 2009); Family Independence Agency v. Kucharski (In re JK), 661 N.W.2d 216, 221 (Mich. 2003). 4. MICH. COMP. LAWS ANN. §§ 710.36, .39 (Westlaw 2014). 5. See, e.g., Scarcliff v. Lang (In re Lang), 600 N.W.2d 646, 651–52 (Mich. Ct. App. 1999). 6. § 710.39. 7. MICH. COMP. LAWS ANN. § 710.23d (Westlaw 2014); § 710.36.

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biological father, or the putative father, must be terminated.8 Putative fathers are not legal fathers.9 Rather, putative fathers are men identified by the unmarried mother as potential fathers of her child.10 To proceed with an adoption, the mother must notify the court of any putative fathers, and any parental rights a putative father may have to the child must first be terminated.11 A putative father’s rights can be terminated by consent, by failing to properly contest the adoption proceeding, or a hearing under section 39 of the Adoption Code. .12 Section 39 essentially creates two classes of putative fathers: do-something fathers and do-nothing fathers.13 This classification serves the Adoption Code’s overall purpose: “to provide for speedy resolution of disputes concerning a putative father’s rights where placement of a . . . child [born out of wedlock] for adoption is sought.”14 This classification also creates different standards for terminating the rights of each type of putative father.15 1. Do-Something Fathers A do-something father is a putative father who has been involved in his child’s life in at least one of two ways: either he has established a custodial relationship with his child or he has provided “substantial and regular support or care” for a specified time period.16 If the court finds that a putative father has been involved in one of these ways, the putative father’s rights cannot be terminated under section 39.17 Instead, his parental rights can then only be terminated for abuse or neglect under the Juvenile Code or to allow for a stepparent 8. § 710.39. 9. § 710.36; MICH. COMP. LAWS ANN § 710.34 (Westlaw 2014); see also Family Independence Agency v. Jefferson (In re KH), 677 N.W.2d 800, 801 (Mich. 2004). 10. In re MKK, 781 N.W.2d 132, 142 (Mich. Ct. App. 2009). 11. § MCL 710.34, .36. 12. MICH. COMP. LAWS ANN. §§ 710.37, .39 (Westlaw 2014). 13. § 710.39; see also LAF v. BJF (In re RFF), 618 N.W.2d 575, 576 (Mich. 2000) (Corrigan, J., dissenting) (describing the categories defined by the statute as “do-something” and “do-nothing” fathers). 14. LAF v. BJF (In re RFF), 617 N.W.2d 745, 755 (Mich. Ct. App. 2000) (quoting Robards v. Barlow (In re Barlow), 273 N.W.2d 35, 39 (Mich. 1978)). 15. Dawson v. Emerson (In re Dawson), 591 N.W.2d 433, 435 (Mich. Ct. App. 1998). 16. § 710.39(2); see also In re Barlow, 273 N.W.2d at 40. 17. § 710.39(2).

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adoption.18 Because the father took affirmative steps to either provide support or establish a custodial relationship, his potential parental rights receive more protection from the courts than the rights of a donothing father. The phrase establish a custodial relationship is not expressly defined in section 39.19 But the Child Custody Act defines the analogous term, established custodial environment.20 An established custodial environment between a parent and child exists if “over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.”21 Michigan courts have determined that “a custodial relationship between parent and child is one in which the parent exercises control and supervision over the child and responsibility for the child’s upbringing.”22 A custodial relationship between a parent and child requires something beyond mere contact.23 A putative father must actually establish a custodial relationship with the child to be classified as a do-something father.24 A failed attempt to establish a custodial relationship does not count, even if the child’s mother interfered with the putative father’s ability to establish this relationship.25 For example, the Michigan Court of Appeals held that a putative father cannot use the mother’s insistence that he was not the biological father of the child or information that the mother planned to abort the fetus as an excuse for failing to establish a custodial relationship.26 Failed attempts to establish custodial relationships often arise when a putative father is incarcerated and therefore “effectively prohibit[ed] . . . from establishing a custodial relationship with his 18. In re RFF, 618 N.W.2d at 576 (Corrigan, J., dissenting). 19. Scarcliff v. Lang (In re Lang), 600 N.W.2d 646, 650 (Mich. Ct. App. 1999). 20. MICH. COMP. LAWS ANN. § 722.27(1)(c) (Westlaw 2014); In re Lang, 600 N.W.2d at 650–51. 21. In re Lang, 600 N.W.2d at 651 (quoting § 722.27(1)(c)). 22. Id. at 650. 23. Id.; see also Gaipa v. Johnson (In re Gaipa), 555 N.W.2d 867, 869 (Mich. Ct. App. 1996) (explaining that “an incidental, fleeting, or inconsequential offer of support or care” would not be adequate to establish a custodial relationship). 24. See In re Lang, 600 N.W.2d at 651 (distinguishing between a parent who provides a minuscule degree of support or care for a child and a parent who is actively involved in raising and supervising the child). 25. Dawson v. Emerson (In re Dawson), 591 N.W.2d 433, 436 (Mich. Ct. App. 1998). 26. Id.

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child.”27 But section 39 makes no exception to the custodialrelationship requirement for incarcerated putative fathers.28 For example, the Court of Appeals found that a putative father, who was imprisoned for eight years, made no attempt to contact his son in four years, and did not participate in his son’s care and upbringing, had no custodial relationship with the child.29 But even if the putative father does not have an established custodial relationship with the child, courts may classify him as a dosomething father if he provided substantial and regular support.30 This term can also be found in section 51, governing stepparent adoptions.31 The courts’ interpretation of substantial and regular support, as discussed in the stepparent-adoptions context, is instructive for section 39 purposes. Determining whether a putative father provides this support is a fact-specific inquiry.32 The court considers the following factors: the amount of support in relation to “the [putative] father’s ability to provide support or care”; the mother’s needs; the kind of support or care provided; the duration of the support; whether the mother impeded the father’s support efforts; and any other significant factors.33 Courts emphasize the putative father’s ability to provide support in this analysis.34 This primarily involves his financial ability.35 And it seems that this ability can only be measured by the putative father’s own contributions to support his child and not by his family members’ contributions.36 Courts have rejected arguments that a putative father’s effort to decide what is best for his child constitutes substantial and regular support.37 Similarly, filing a notice of intent to claim paternity fails to 27. In re Lang, 600 N.W.2d at 652. 28. See id. at 651–52. 29. Id. at 651. 30. MICH. COMP. LAWS ANN. § 710.39(1)−(2) (Westlaw 2014). 31. MICH. COMP. LAWS ANN. § 710.51(6)(a) (Westlaw 2014). 32. See Dawson v. Emerson (In re Dawson), 591 N.W.2d 433, 435 (Mich. Ct. App. 1998). 33. Id. 34. LAF v. BJF (In re RFF), 618 N.W.2d 575, 576 (Mich. 2000) (Corrigan, J., dissenting). 35. See LAF v. BJF (In re RFF), 617 N.W.2d 745, 753 (Mich. Ct. App. 2000). 36. See Debeliso v. Blackburn (In re Blackburn), No. 262419, 2006 WL 335863, at *2 (Mich. Ct. App. Feb. 14, 2006). 37. In re RFF, 617 N.W.2d at 752.

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demonstrate a do-something father for purposes of section 39.38 Finally, if a mother has deceived the father about her pregnancy, this may not exempt the putative father from providing substantial and regular care and support.39 The putative father’s actions in In re MKK illustrate what it means to provide substantial and regular support.40 In this case, the putative father demonstrated his genuine desire to care for the birth mother and to parent the child. He tried to send the birth mother financial support on three occasions and attempted to provide her support by sending money through her attorney on four occasions. He took extensive in-person parenting classes and worked with a licensed social-services agency during the pregnancy to prepare for fatherhood. And he opened a bank account in the child’s name.41 The court effectively found the father to be a do-something father because he provided substantial and regular support.42 If a putative father can convince the court that he is a dosomething father who has an established custodial relationship with his child or provided substantial and regular support to the child, an adoption cannot proceed under section 39.43 The only way to terminate his parental rights would be under the stepparent-adoption statute or the Juvenile Code.44 2. Do-Nothing Fathers If the putative father cannot prove that he is a do-something father, he is then, by default, a do-nothing father.45 If the court concludes that a putative father is a do-nothing father, it will investigate the putative father’s “fitness and ability to properly care for the child” by asking whether it is in the child’s best interest to be

38. Dawson v. Emerson (In re Dawson), 591 N.W.2d 433, 436 (Mich. Ct. App. 1998). 39. LAF v. BJF (In re RFF), 617 N.W.2d 745, 751 (Mich. App. 2000). 40. 781 N.W.2d 132 (Mich. Ct. App. 2009). Although the Court’s decision in In re MKK was actually about whether there was good cause to stay an adoption proceeding under MCL 710.25, it is this Author’s opinion that the Court’s treatment of the facts surrounding the putative father’s conduct equated him to a “do-something father” under section 39. 41. Id. at 137. 42. Id. at 143. 43. MICH. COMP. LAWS ANN. § 710.39(2) (Westlaw 2014). 44. Id. 45. § 710.39(1).

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in the putative fatherâ&#x20AC;&#x2122;s custody.46 Courts typically do not separately analyze fitness and ability, but rather they focus their analysis on the best-interest factors, as listed in the Adoption Code:47 (i) The love, affection, and other emotional ties existing between the adopting individual or individuals and the adoptee or, in the case of a hearing under section 39 of this chapter, the putative father and the adoptee. (ii) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, the putative father to give the adoptee love, affection, and guidance, and to educate and create a milieu that fosters the religion, racial identity, and culture of the adoptee. (iii) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, the putative father, to provide the adoptee with food, clothing, education, permanence, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (iv) The length of time the adoptee has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (v) The permanence as a family unit of the proposed adoptive home, or, in the case of a hearing under section 39 of this chapter, the home of the putative father. (vi) The moral fitness of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, of the putative father. (vii) The mental and physical health of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, of the putative father, and of the adoptee. (viii) The home, school, and community record of the adoptee. 46. Id. 47. See, e.g., Robards v. Barlow (In re Barlow), 273 N.W.2d 35, 39â&#x20AC;&#x201C;40 (Mich. 1978).

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(ix) The reasonable preference of the adoptee, if the adoptee is 14 years of age or less and if the court considers the adoptee to be of sufficient age to express a preference. (x) The ability and willingness of the adopting individual or individuals to adopt the adoptee’s siblings. (xi) Any other factor considered by the court to be relevant to a particular adoption proceeding, or to a putative father’s request for child custody. 48 Balancing the best-interest factors requires a fact-specific inquiry, and the trial court does not need to find that every factor weighs in favor of or against the putative father.49 The court will not address every factor, such as irrelevant factors that will not affect the case’s outcome.50 Further, the court analyzes the best-interest factors only from the putative father’s perspective.51 It is improper to compare the putative father’s ability to care for the child with the adoptive parent’s or mother’s ability to care for the child.52 Ultimately, the court must determine whether it is in the child’s best interest to grant custody to the father or to terminate his parental rights and place the child for adoption.53 But finding it is in the child’s best interest to be with the father does not automatically mean that the trial court can award custody to the putative father under section 39 unless the mother previously relinquished her rights.54

48. MICH. COMP. LAWS ANN. § 710.22(g) (Westlaw 2014). 49. See, e.g., Johnson v. Byron (In re Zimmerman), 746 N.W.2d 306, 314–16 (Mich. Ct. App. 2008) (affirming the trial court’s finding that placing the child in the putative father’s custody was in the child’s best interest because, while it disagreed with the trial court’s findings on several factors, overall the trial court’s best-interest findings were not clearly erroneous), vacated in part on other grounds, 746 N.W.2d 111 (Mich. 2008). 50. See KMD v. FS (In re B.K.D.), 631 N.W.2d 353, 357 (Mich. Ct. App. 2001); MICH. CT. R. 2.613(A); LAF v. BJF (In re RFF), 617 N.W.2d 745, 752 (Mich. Ct. App. 2000). 51. In re B.K.D., 631 N.W.2d at 358; see also Dawson v. Emerson (In re Dawson), 591 N.W.2d 433, 437 (Mich. Ct. App. 1998). 52. See In re B.K.D., 631 N.W.2d at 358; In re Dawson, 591 N.W.2d at 437. 53. In re Dawson, 591 N.W.2d at 437–38. 54. In re Zimmerman, 746 N.W.2d at 111 (vacating part of the Court of Appeals’s opinion that affirmed the trial court’s “grant of immediate custody to Byron [respondent]”); MICH. COMP. LAWS ANN. 710.39(3) (Westlaw 2014).

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Under the Adoption Code, trial courts often look at the amount of interaction between a putative father and child when analyzing factor (i): the love, affection, and emotional ties between a putative father and his child. For example, it is unlikely that a putative father and his child would have strong emotional ties if they have met only once.55 And a putative father’s inability to interact with his child due to an immediate initiation of an adoption proceeding after birth does not excuse his failure to establish a bond with his child.56 Courts have also focused on factor (ii): a putative father’s capacity to give guidance to a child. For example, a putative father who could not express the type of guidance he would provide for his child did not convince the court that it would be in the child’s best interest to award custody to him.57 The Michigan Court of Appeals upheld a trial court’s conclusion that a sporadic employment history indicated an inability to provide proper guidance for a child.58 A putative father’s unstable housing, unstable job, or history of divorce can influence the analysis of factor (iii): the father’s ability to provide items such as food, clothing, education, and medical care.59 Trial courts may also analyze a putative father’s finances.60 One trial court weighed this factor against the putative father, and the Court of Appeals affirmed, because the father was still in high school and working at a low-paying job.61 But another trial court focused on the father’s employment stability, rather than his income, and concluded that “being poor is not a reason to separate a parent from their child.”62 So the trial court weighed this factor in the putative father’s favor, and the Court of Appeals affirmed.63 Under factor (v), the permanence of the putative father’s home can be influenced by his marital status64 or housing situation.65 The permanence of a housing situation can be affected by either the 55. 56. 57. 58. 59. 60. (Mich. 2008). 61. 62. 63. 64. 65.

In re RFF, 617 N.W.2d at 752 (Mich. Ct. App. 2000). In re B.K.D., 631 N.W.2d at 357. In re RFF, 617 N.W.2d. at 752–53. In re B.K.D., 631 N.W.2d. at 358. Id. See, e.g., Johnson v. Byron (In re Zimmerman), 746 N.W.2d 306, 312 Ct. App. 2008), vacated in part on other grounds, 746 N.W.2d 111 (Mich. In re RFF, 617 N.W.2d at 753. In re Zimmerman, 746 N.W.2d at 312. Id. See In re B.K.D., 631 N.W.2d at 358. See In re RFF, 617 N.W.2d at 753.

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amount of time the putative father intends to live in the home66 or the amount of time the other family members will remain in the home.67 The putative father’s mental and physical health, under factor (vii), can weigh against a putative father with an admitted temper or admitted past suicide threats.68 Other factors considered by the court, under factor (xi), include the putative father’s maturity69 and joy in seeking custody.70 For example, when terminating a putative father’s parental rights, a trial court placed great significance on the putative father’s plan to have family members—not himself—exercise primary custody over the child.71 If custody with the putative father is not in the child’s best interest, the court must terminate his parental rights.72 These procedures afford a do-nothing father less protection under the Adoption Code than a do-something father.73 B. Section 51: Stepparent Adoptions Section 51 of the Adoption Code governs stepparent adoptions.74 For a stepparent adoption, one legal parent retains parental rights while the rights of the other legal parent are terminated in favor of adoption by a stepparent.75 Michigan case law has held that the primary purpose of the Stepparent Adoption provision is to allow a stepparent who provides the material and emotional support to a child that would be expected of the child’s legal parent to adopt the child of a noncustodial parent who has essentially abandoned the 66. See id. (finding that a putative father’s home with his parents during high school was not permanent because he did not have a fully established plan for housing after graduation). 67. See In re Zimmerman, 746 N.W.2d at 315 (concluding that the trial court failed to address how the putative father’s engagement would impact the stability of the home). 68. In re RFF, 617 N.W.2d at 753. 69. See id. 70. See id. 71. Id. 72. MICH. COMP. LAWS ANN. § 710.39(1) (Westlaw 2014). 73. LAF v. BJF (In re RFF), 618 N.W.2d 575, 576 (Mich. 2000) (discussing § 710.39(1)–(2)). 74. MICH. COMP. LAWS ANN. § 710.51(6) (Westlaw 2014). 75. MICH. COMP. LAWS ANN. § 710.36 (Westlaw 2014).

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child and who has refused to, or is unavailable to, consent to the adoption. This purpose may be effectuated only where the noncustodial parent is situated in circumstances whereby that parent can earn a living and acquire the wherewithal to support a child, where the noncustodial parent has ignored or abandoned the natural obligations owed a child by a parent, and where the noncustodial parent has refused, or intentionally has become unavailable, to consent to the adoption.76 Unlike section 39, a termination under section 51 severs the parental rights of a legal, noncustodial parent.77 It is more difficult to terminate the parental rights of a legal, noncustodial parent than to terminate the rights of a putative father. A stepparent-adoption action can occur if the parents were previously married, or if paternity was established by an acknowledgment of paternity or a paternity action.78 Stepparent adoptions can also sever the parental rights of a putative father who qualified as a do-something father under section 39.79 To start the proceeding, both “the parent having legal custody of the child” and the stepparent must petition the court for a stepparent adoption.80 The Michigan Supreme Court recently interpreted this phrase from the stepparent-adoption provision and concluded that the legislature intended to require a parent to have sole legal custody in order to petition for a stepparent adoption.81 Therefore, the statutory provision is inapplicable if parents have joint legal custody.82 Under section 51, a court may terminate the parental rights of the noncustodial parent only if both of the following requirements are met: (a) The [noncustodial] parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support 76. Russell v. Caldwell (In re Caldwell), 576 N.W.2d 724, 726 (Mich. Ct. App. 1998) (quoting O’Berry v. Halbert (In re Halbert), 552 N.W.2d 528, 532 (Mich. Ct. App. 1996)). 77. § 710.51(6). 78. Id. 79. Id. 80. Id. 81. In re AJR, 834 N.W.2d 904, 907 (2014). 82. Id.

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for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition. (b) The [noncustodial] parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition.83 Unlike terminating a putative father’s rights under section 39, the parent-petitioner must prove by clear and convincing evidence that the termination is warranted because the noncustodial parent failed to provide adequate support for and communicate with his or her child.84 This heightened burden accounts for a parent’s fundamental liberty interest, guaranteed under the United States Constitution, to raise his or her child.85 But even if the petitioner meets this burden of proof, the court still has discretion whether to terminate parental rights based on the child’s best interest.86 There are two ways that a parent can fail to support a child which justify terminating parental rights. First, if the parent fails to substantially comply with a child-support order during the two years before filing the adoption petition, a parent’s rights can be terminated to make way for the stepparent adoption.87 A parent’s ability to support his or her child may not be analyzed under section 51 for this purpose because the parent’s ability to pay child support is already considered when a court enters a child-support order.88 If a childsupport order existed during the two years before the petition for a stepparent adoption, the court analyzes the noncustodial parent’s 83. MICH. COMP. LAWS ANN. § 710.51(6) (Westlaw 2014). 84. VanDyke v. McHugh (In re A.L.Z.), 636 N.W.2d 284, 289 (Mich. Ct. App. 2001); Rodriguez v. Colon (In re Colon), 377 N.W.2d 321, 325 (Mich. Ct. App. 1985). 85. In re Colon, 377 N.W.2d at 325. 86. Moore v. Newton (In re Newton), 606 N.W.2d 34, 38 (Mich. Ct. App. 1999). 87. See, e.g., In re Colon, 377 N.W.2d at 325 (interpreting MICH. COMP. LAWS ANN. § 710.51(6)(a) (Westlaw 2014)); Russell v. Caldwell (In re Caldwell), 576 N.W.2d 724, 726 (Mich. Ct. App. 1998) (terminating parental rights for failure to comply with a $10-per-week support order); Hill v. Sienkiewicz (In re Hill), 562 N.W.2d 254, 260 (Mich. Ct. App. 1997) (terminating parental rights for failure to follow an order to pay for a child’s medical expenses). 88. In re Colon, 377 N.W.2d at 325.

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compliance with the support order—not whether the noncustodial parent provided regular and substantial support.89 This is because compliance with a support order is presumed to be regular and substantial support. “Otherwise, a parent could be ‘blindsided’ by termination, even though the parent was paying support and complying to the full extent of the law.”90 Second, when there is no child-support order, a parent’s rights can be terminated for failure to provide a child with regular and substantial support.91 In this situation, courts will scrutinize a noncustodial parent’s ability to support the child.92 Like the analysis for a hearing under section 39, a noncustodial parent’s ability to pay depends on the parent’s finances. Courts will analyze a parent’s employment wages and additional funds, such as proceeds from a legal settlement, rental income, or gifts.93 Stepparent adoptions are often initiated when one parent is incarcerated.94 Incarceration can render a parent “[unable] to earn a living and acquire the wherewithal” to support a child as required under section 51.95 But a parent’s incarceration and reduced ability to pay will not necessarily result in the termination of parental rights.96 In In re Talh, a custodial parent and her spouse petitioned for adoption while the noncustodial parent served a prison sentence.97 While in prison, the child-support order was modified to $0.00 per month.98 Twenty-three months after modification, the custodial parent petitioned for a stepparent adoption, arguing that the noncustodial parent’s rights should be terminated because of his failure to pay child support.99 The noncustodial parent moved for summary disposition, arguing that he regularly and substantially 89. Id. 90. In re Newton, 606 N.W.2d at 38. 91. Eickhoff v. Eickhoff (In re S.M.N.E.), 689 N.W.2d 235, 236 (Mich. Ct. App. 2004). 92. Id. 93. Kaiser v. Esswein (In re Kaiser), 564 N.W.2d 174, 175 (Mich. Ct. App. 1997). 94. See, e.g., In re Talh, 840 N.W.2d 398, 399 (Mich. Ct. App. 2013); Hill v. Sienkiewicz (In re Hill), 562 N.W.2d 254, 260 (Mich. Ct. App. 1997); Russell v. Caldwell (In re Caldwell), 576 N.W.2d 724, 726 (Mich. Ct. App. 1998). 95. In re Caldwell, 576 N.W.2d at 726. 96. In re Talh, 840 N.W.2d at 400. 97. Id. at 399. 98. Id. 99. Id. at 400.

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complied with the child-support order for twenty-three months of the two-year period before the custodial parent’s petition.100 In granting the noncustodial parent’s summary-disposition motion, the trial court found, and the Court of Appeals affirmed, that the noncustodial incarcerated parent appropriately complied with the child-support order; therefore, his parental rights could not be terminated.101 In addition to proving that the noncustodial parent failed to provide adequate support for the child, the parent-petitioner must also prove that the noncustodial parent failed to visit, contact, and communicate with the child.102 Again, courts will look at whether the noncustodial parent regularly or substantially visited, contacted, or communicated with the child in the two years before filing.103 But this visitation, contact, or communication is expressly considered in light of the noncustodial parent’s ability to do so.104 Unlike terminating parental rights under section 39, a noncustodial parent’s thwarted attempt to communicate with a child may help the noncustodial parent avoid termination.105 For example, in In re A.L.Z., the Court of Appeals explained that a noncustodial parent may not have the ability to communicate with the child if the custodial parent refused to allow contact with the child.106 If, during the appropriate two-year period, the noncustodial parent’s rights have yet to be established, the noncustodial parent’s ability to contact, visit, or communicate with the child may be significantly impaired, indicating an inability to interact with the child.107 Similarly, a court order terminating a parent’s visitation rights can eliminate a parent’s ability to interact with the child.108 But a noncustodial parent’s fear, unsupported by fact, that interaction with a child will be thwarted by

100. 101. 102. 103. 1997). 104. 105. 2001). 106. 107. 108. 1997).

Id. Id. at 401. MICH. COMP. LAWS ANN. § 710.51(6)(a)–(b) (Westlaw 2014). See Hill v. Sienkiewicz (In re Hill), 562 N.W.2d 254, 260 (Mich. Ct. App. § 710.51(6)(b). Vandyke v. McHugh (In re A.L.Z.), 636 N.W.2d 284, 290 (Mich. Ct. App. Id. at 289. Id. Kaiser v. Esswein (In re Kaiser), 564 N.W.2d 174, 176 (Mich. Ct. App.

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the custodial parent does not demonstrate an inability to interact with the child.109 Assuming that the noncustodial parent is able to visit, contact, or communicate with the child, the contact between parent and child must be regular and substantial.110 This is a fact-specific inquiry. For example, the noncustodial father in In re Simon was prevented from visiting his daughter under the parents’ judgment of divorce “until such time as he showed cause why visitation would be in the child’s best interest.”111 While this order temporarily limited visitation, he never asked the court for visitation.112 Apart from sending the child one birthday card, he never attempted to contact or communicate with the child.113 So the court held that “[a] parent who makes only two visits and one telephone call to his child in two years has ‘substantially failed’ to visit, contact, or communicate with the child.”114 Similarly, “eight to eleven visits in two years was a substantial failure to visit, contact or communicate” with the child.115 In In re AJR, the Michigan Supreme Court recently decided whether the trial courts may use section 51 to terminate the rights of a parent who shares legal—but not physical—custody of the child.116 It concluded that the legislature’s use of the phrase “the parent having legal custody of the child” restricts the petitioner for stepparent adoption to a custodial parent who is the only parent with legal custody of the child.117 The result is that fewer noncustodial parents will have their rights terminated in favor of stepparent adoptions under section 51. When a primary physical custodian who has joint legal custody wants a stepparent adoption, that parent now has two options. The first option is to modify the child-custody order before initiating a stepparent adoption to establish sole legal custody of the child. The

109. Cifford v. Meredith (In re Meredith), 412 N.W.2d 229, 231 (Mich. Ct. App. 1987). 110. MICH. COMP. LAWS ANN. § 710.51(6)(b) (Westlaw 2014). 111. 431 N.W.2d 71, 73 (Mich. Ct. App. 1988). 112. Id. 113. Id. at 73, 75. 114. Id. (citing In re Martyn, 411 N.W.2d 743, 746–47 (Mich. Ct. App. 1987)). 115. Id. (citing Rodriguez v. Colon (In re Colon), 377 N.W.2d 321, 326 (Mich. Ct. App. 1985)). 116. In re AJR, 496 Mich. 346 (2014). 117. MICH. COMP. LAWS ANN. § 710.51(6) (Westlaw 2014) (emphasis added); In re AJR, 834 N.W.2d at 907.

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Supreme Court endorsed this option in In re AJR.118 Then after securing sole legal custody, the custodial parent and his or her spouse could seek a stepparent adoption. The second option is to proceed with termination under the Juvenile Code. The practice implications of these two options is discussed, infra, in Section IV. III. TERMINATING PARENTAL RIGHTS UNDER THE JUVENILE CODE The purpose of terminating parental rights under the Juvenile Code is to “protect children from unfit homes.”119 The Juvenile Code, like section 51 of the Adoption Code, allows the court to take affirmative action to terminate a legal parent’s parental rights. But under the Juvenile Code, parental rights are terminated because of a parent’s abuse or neglect. Also, under the Adoption Code, a parent always initiates a termination proceeding. But under the Juvenile Code, children, guardians, custodians, concerned persons, or the state may initiate a termination proceeding.120 Parent-initiated petitions under the Juvenile Code are rare. The petitioner and the court must take five steps to terminate parental rights under the Juvenile Code. This procedure protects parents from the risk that their fundamental right to raise their children will be unjustly taken away from them.121 First, a petitioner must have standing to file a petition that raises allegations of unfitness.122 Second, the court must take jurisdiction over the child.123 Third, the petitioner must make reasonable efforts to reunite parent and child.124 Fourth, the court must determine that proper grounds for termination exist.125 And fifth, the trial court must find that it is in the child’s best interest for parental rights to be 118. In re AJR, 496 Mich. at 356-357. 119. Dep’t of Soc. Servs. v. Brock (In re Brock), 499 N.W.2d 752, 756, 759 (Mich. 1993) (explaining that the best interests and welfare of the child outweigh all other considerations). 120. MICH. COMP. LAWS ANN. § 712A.19b(1) (Westlaw 2014). 121. In re Brock, 499 N.W.2d at 757. 122. MICH. COMP. LAWS ANN. § 712A.11, § 712A.19b(1), (3) (Westlaw 2014); MICH. CT. R. 3.961; see Family Independence Agency v. AMB (In re AMB), 640 N.W.2d 262, 277 (Mich. Ct. App. 2001). 123. MICH. COMP. LAWS ANN. § 712A.2(b) (Westlaw 2014); Family Independence Agency v. Plovie (In re Ramsey), 581 N.W.2d 291, 293 (Mich. Ct. App. 1998). 124. MICH. COMP. LAWS ANN. § 712A.19a(2) (Westlaw 2014); see Dep’t of Human Servs. v. Mason (In re Mason), 782 N.W.2d 747, 752 (Mich. 2010). 125. MICH. COMP. LAWS ANN. § 712A.19b(3) (Westlaw 2014).

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terminated.126 Failure to follow any one step will thwart a termination proceeding. A. Petition and Petitioner Requirements Typically the state, through the Department of Human Services (DHS), files a petition to terminate parental rights.127 But the Juvenile Code, as supported by a series of unpublished cases, also allows a child, guardian, custodian, or other concerned person to petition the court.128 For example, the Court of Appeals held that a child’s guardian and grandmother had standing to file a petition for the termination of both the mother’s and father’s parental rights.129 Although the Juvenile Code does not state that a parent can seek to terminate parental rights, case law has interpreted MCL 712A.19b(1) to provide that a parent qualifies as a custodian who may file a petition for termination of the other parent’s rights.130 Two Michigan Court of Appeals opinions shed light on the process. In In re Huisman, the Court of Appeals explained that while the terms custodian and parent are not synonymous, custodian can encompass a parent so long as that parent is actually acting as the child’s custodian.131 In a footnote, the court stated that “[w]e do assume without deciding that, in light of the fact that the term ‘parent’ is omitted from § 19(b), a noncustodial parent is not authorized to file a petition seeking termination of the custodial parent’s rights.”132 So when a father-petitioner acted as a child’s custodian, he had standing to seek termination of the mother’s parental rights under the Juvenile Code.133 The father wanted to terminate the mother’s parental rights to facilitate adoption of the 126. § 712A.19b(5). 127. § 712A.19b(1); see, e.g., Bates v. Sanchez (In re Sanchez), 375 N.W.2d 353, 357 (Mich. 1985); Carter v. Lutheran Children’s Friend Soc’y (In re Jackson), 320 N.W.2d 285, 288‒89 (Mich. Ct. App. 1982); In re H.R.C., 781 N.W.2d 105, 110−11 (Mich. Ct. App. 2009). 128. § 712A.19b(1). 129. In re Bell, No. 307377, 2012 WL 2335318, at *3 (Mich. Ct. App. June 19, 2012); In re Conley, No. 305721, 2012 WL 1021334, at *1 (Mich. Ct. App. Mar. 27, 2012). 130. § 712A.19b(1); see also Huisman v. Huisman (In re Huisman), 584 N.W.2d 349, 352 (Mich. Ct. App. 1998) overruled in part by In re Trejo, 612 N.W.2d 407 (Mich. 2000). 131. In re Huisman, 584 N.W.2d at 353. 132. Id. at 352 n.3. 133. Id. at 354.

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child by his then-wife—essentially a stepparent adoption.134 The court explained that “the Adoption Code contemplates termination of a natural parent’s rights either under its provisions or under the provisions of the Juvenile Code.”135 Further, the court would not invalidate termination proceedings under the Juvenile Code just because a stepparent adoption was intended. Rather, it held “that the Juvenile Code merely provides an alternate method for terminating parental rights.”136 The Court of Appeals extended this rationale in In re MV, where a parent-petitioner, qualifying as the child’s custodian under the Juvenile Code, sought to terminate the parental rights of her child’s father.137 But whether a parent-petitioner actually has standing to initiate a proceeding that will allow the court to take jurisdiction over the child remains somewhat unsettled. Specifically, one provision lists potential petitioners as “the prosecuting attorney, whether or not the prosecuting attorney is representing or acting as legal consultant to the agency or any other party, or . . . the child, guardian, custodian, concerned person, agency, or children’s ombudsman . . . .”138 Yet this same provision of the Juvenile Code also requires that the child be placed in foster care, the custody of the court, or under the custody of a guardian or limited guardian.139 A child cannot be simultaneously in the custody of a parent, affording the parent standing as a custodian, and under the custody of a foster parent, the court, or a guardian, allowing the court to hold a hearing to assess jurisdiction. This issue is raised in In re Huisman, where the child resided with his father-petitioner.140 The father-petitioner had legal custody of the child.141 Yet the court did not address how the status of the child’s placement in his father’s home affected the court’s ability to take jurisdiction over the child.142 Instead, the court simply noted that it retained jurisdiction in the parties’ prior divorce.143 In In 134. Id. 135. Id. 136. Id. 137. Bliesener v. Vega (In re MV), No. 264226, 2006 WL 859721, at *1−2 (Mich. Ct. App. Apr. 4, 2006). 138. MICH. COMP. LAWS ANN. § 712A.19b(1) (Westlaw 2014). 139. Id. 140. 584 N.W.2d 349, 351 (Mich. Ct. App. 1998). 141. Id. 142. Id. 143. Id.

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re MV, the court never mentioned the word jurisdiction, and concluded that because the parent-petitioner also qualified as the child’s custodian, the parent-petitioner had standing.144 But regardless who petitions for termination of parental rights, the petitioner must include the grounds for the court to take jurisdiction over the child under the Juvenile Code. B. Obtaining Jurisdiction over the Child Before analyzing whether grounds exist to terminate parental rights, a judge or jury must determine if the trial court can assume jurisdiction over the child.145 Jurisdiction in a termination case is not about whether the family division or probate court has the authority to actually hear the case; it is about whether there are jurisdictional grounds for the court to intervene in the family’s life.146 Under section 2 of the Juvenile Code, the court may take jurisdiction over a child on any of several grounds. But only subsection 2(b)(1) applies when one parent seeks to terminate the other parent’s rights because the other subsections involve either a child living outside a parent’s home (subsections 3, 4, and 5), or abuse or neglect in the custodial parent’s home (subsection 2).147 Subsection (b)(1) provides that the court may assume jurisdiction over a child: [w]hose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship.148

144. Bliesener v. Vega (In re MV), No. 264226, 2006 WL 859721, at *1 (Mich. Ct. App. Apr. 4, 2006). 145. Family Independence Agency v. AMB (In re AMB), 640 N.W.2d 262, 281 (Mich. Ct. Ap. 2001). 146. See id. 147. MICH. COMP. LAWS ANN. § 712A.2(b) (Westlaw 2014). 148. Id.

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The petitioner must prove that jurisdiction exists, regardless of the type of jurisdiction, by a preponderance of the evidence.149 Alternatively, the parent designated as the respondent to the action may plea to one of the jurisdictional requirements150 as long as the parent makes the plea “knowingly, understandingly, and voluntarily.”151 The court must hold a hearing to determine whether one of the jurisdictional requirements exists. Notably, the parent can demand a jury trial at the adjudicative phase.152 But the court will not hold this hearing unless the child remains in foster care, the custody of the court, or the custody of a legal or temporary guardian.153 Basically, the child must have been removed from his or her parents’ home before termination will be considered. And when DHS petitions the court, the child will always have been removed from both parents’ care. The same requirement should exist when a parent petitions the court for termination of the other parent’s parental rights. Michigan courts have addressed jurisdictional requirements for guardianpetitioners, but not parent-petitioners. In In re CAH, the Court of Appeals vacated and remanded a trial court’s order terminating a parent’s rights because the court failed to hold a hearing to determine whether it could exercise jurisdiction over the children in response to a guardian-filed petition.154 The mother in In re CAH placed her children with her father and stepmother (the children’s grandparents). The grandparents then obtained guardianship and sought to terminate the mother’s parental rights.155 The trial court never provided the mother an adjudication hearing or otherwise complied with the Juvenile Code.156 In In re Young, the court reversed and remanded the trial court’s dismissal of a guardian’s termination petition for lack of jurisdiction because the Court of Appeals concluded that the trial court already

149. Dep’t of Human Servs. v. Holm (In re S.L.H.), 747 N.W.2d 547, 554 (Mich Ct. App. 2008). 150. MICH. CT. R. 3.971(A). 151. Dep’t of Human Servs. v. Morgan (In re Hudson), 763 N.W.2d 618, 621 (Mich. 2009). 152. MICH. COMP. LAWS ANN. § 712A.17(2) (Westlaw 2014). 153. MICH. COMP. LAWS ANN. § 712A.19b(1) (Westlaw 2014). 154. In re CAH, No. 309440, at *1 (Mich. Ct. App. Nov. 27, 2012). 155. See id. 156. Id., slip op. at 2.

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retained jurisdiction over the child.157 The mother in In re Young placed the child in the care of temporary custodians and potential adoptive parents before being incarcerated.158 During her incarceration, she sought to revoke the temporary guardianship placement and regain custody of the child.159 Adoption and guardianship proceedings followed; the trial court took jurisdiction over the child in an earlier adoption proceeding and an earlier guardianship proceeding involving the same parties (parent, child, and guardian).160 The court concluded that the incarcerated mother failed to provide proper care and custody of the child and, therefore, it already had jurisdiction over the child in the termination proceeding.161 Due to the lack of authority on parent-petitioner cases and the split decision in guardian-petitioner cases, the applicability of jurisdiction is murky when the petitioner is not the state. But regardless of whether the petitioner is the state, a guardian, a parent, or someone else, the jurisdictional requirements for termination of parental rights must be satisfied to be constitutionally permissible. Although the Juvenile Code appears to grant standing to a parent to file a termination petition, it only permits a petition to be filed if the child is in foster care or in the care of a guardian.162 Thus, it may not be possible for the court to accept the termination petition in the case of a parent-petitioner-custodian.163 Under the rationale of In re Huisman and In re MV, a parent must be a custodian to have standing to petition the court for termination.164 Yet the Juvenile Code requires the child to be placed in the custody of someone other than the parent for the hearing to proceed.165 So the custodian or parent can only file a petition if the child lives outside the parent’s home.

157. In re Young, No. 307761, 2013 WL 1442212, at *1 (Mich. Ct. App. Apr. 9, 2013). 158. See id. 159. Id. 160. See id. 161. Id. at *4. 162. MICH. COMP. LAWS ANN. § 712A.19b(1) (Westlaw 2014). 163. See id. 164. See Huisman v. Huisman (In re Huisman), 584 N.W.2d 349, 354 (Mich. Ct. App. 1998); Bliesener v. Vega (In re MV), No. 264226, 2006 WL 859721, at *1−2 (Mich. Ct. App. Apr. 4, 2006), overruled in part by In re Trejo, 612 N.W.2d 407, 413 (Mich. 2000). 165. See § 712A.19b(1).

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C. Reasonable Efforts to Reunite Parent and Child Placing the child in the custody of someone other than the parent whose rights may be terminated requires reasonable efforts to reunify the parent and child. This must occur after the petitioner submits an adequate complaint and the court has taken jurisdiction over the child, but before termination.166 Reasonable efforts involve rectifying the conditions that led to the separation of parent and child.167 Typically, the court will impose a service plan upon the parents whose rights are at issue.168 This service plan might instruct parents to improve their living conditions, attend parenting classes, seek medical treatment, or attend therapy sessions.169 “The court may order compliance with all or any part of the case service plan as the court considers necessary.”170 If the conditions leading to the removal of the child from the parent’s custody are rectified, the parent and child can be reunited and the parental rights will not be terminated. But if the conditions leading to the removal of the child from the parent’s custody cannot be rectified and the parent and child cannot be reunified, the court will assess whether grounds for termination exist.171 The petitioner is responsible for making reasonable reunification efforts.172 Normally, DHS would work with the parent and the court to recommend the components of a service plan, monitor a parent’s compliance with that service plan, and make recommendations for whether reunification is possible and in the child’s best interest.173 The Michigan Court of Appeals has not specifically addressed the 166. MICH. COMP. LAWS ANN. § 712A.19a(2) (Westlaw 2014). 167. Family Independence Agency v. Fried (In re Fried), 702 N.W.2d 192, 197 (Mich. Ct. App. 2005) (finding that terminating a parent’s rights was proper under MICH. COMP. LAWS ANN § 712A.18f (Westlaw 2014), which typically requires a court to impose a case service plan upon a parent if a child is removed from the parent’s custody). 168. Id. 169. See, e.g., In re Fried, 702 N.W.2d at 197. 170. § 712A.18f(4). 171. See, e.g., In re Fried, 702 N.W.2d at 197–98 (holding that reasonable efforts at reunification were made but were unsuccessful because the parent failed to comply with substance-abuse treatment required under the service plan). 172. See Dep’t of Human Servs. v. Mason (In re Mason), 782 N.W.2d 747, 752 (Mich. 2010) (citing MICH. COMP. LAWS ANN. § 712A.19a(2) (Westlaw 2014)). 173. See, e.g., In re Fried, 702 N.W.2d at 197 (requiring a petitioner to make reasonable efforts to rectify the conditions causing a child’s removal by adopting a service plan).

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requirement for a non-state petitioner to engage in reunification efforts. So it is unclear how these reasonable efforts would play out if a parent sought to terminate the other parent’s parental rights under the Juvenile Code. The Michigan Supreme Court held that, unless an exception applies, a reasonable effort to reunify the parent and child must occur in all cases.174 The one exception to this requirement is when the termination is motivated by aggravated circumstances.175 Aggravated circumstances include a parent’s conviction for an unlawful killing of another child of the parent,176 or for felonious assault resulting in serious bodily injury to any child of the parent.177 Further, aggravated circumstances exist if the parents had rights to the child’s siblings involuntarily terminated, the parent is required by court order to register as a sex offender, or the parent has subjected the child to aggravated circumstances under the child-protection law. 178 It is not likely that aggravated circumstances would arise when a parent seeks to terminate parental rights. But if such circumstances did exist, then surely the state would pursue termination of parental rights against one or both parents—against the offender parent for the aggravated circumstance and against the other parent for the failure to protect the child from the offending parent.179 D. Statutory Grounds for Terminating Parental Rights If reasonable reunification efforts fail, then the court can proceed to a termination trial.180 The petitioner must prove, by clear and convincing evidence, that abuse or neglect occurred under one or more of the fourteen grounds listed in the Juvenile Code.181 The first statutory ground supporting termination, subsection (a), outlines the grounds for terminating parental rights of a parent who 174. In re Mason, 782 N.W.2d at 752 (citing § 712A.19a(2)). 175. § 712A.19a(2). 176. § 712A.19a(2)(b)(i)−(iii). 177. § 712A.19a(2)(b)(iv). 178. § 712A.19a(2)(a), (c)–(d). 179. Compare § 712A.19a(2) (listing specific aggravating circumstances), with MICH. COMP. LAWS ANN. § 712A.19b(3)(b)(ii) (Westlaw 2014) (stating that the parent’s failure to protect a child, in the face of reasonably likely physical injury, may result in the termination of parental rights). 180. MICH. CT. R. 3.977(A)(2)−(3). 181. § 712A.19b(3); see, e.g., In re Olive/Metts, 823 N.W.2d 144, 148 (Mich. Ct. App. 2012).

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has deserted a child.182 A parent who never attended a termination hearing, had not seen their child in over two years, failed to provide financial support, and failed to cooperate with the case worker can be found to have deserted his child.183 Similarly, voluntarily moving out of state and failing to cooperate with the case worker regarding the service plan, created to ensure the return of the child, can constitute desertion.184 But desertion is an intentional and willful act. So a parent’s move out of the country due to involuntary deportation did not constitute desertion.185 Subsection (b) allows for termination in the event of physical injury or physical or sexual abuse.186 This injury or abuse can occur in one of three ways: the abuse was caused, and is likely to be caused in the future, by the parent; the parent failed to prevent injury or abuse; or a nonparent adult caused the injury or abuse with a reasonable likelihood that the injury or abuse will continue if the child is returned to the parent’s home.187 For example, evidence that a parent has sexually abused a child’s sibling can satisfy the requirement that a parent likely will cause future injury or abuse to the child.188 A parent’s rights can be terminated for failure to prevent injury or abuse by the other parent, known as a “failure to protect.”189 Termination under subsection (g) requires two separate findings: that the parent “fail[ed] to provide proper care or custody for the child” and that there “is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.”190 A strict reading of this subsection

182. § 712A.19b(3)(a). 183. Dep’t of Soc. Servs. v. Burse (In re Mayfield), 497 N.W.2d 578, 579–80, 582 (Mich. Ct. App. 1993). 184. Family Independence Agency v. Davis (See In re B.A.D.), 690 N.W.2d 287, 289 (Mich. Ct. App. 2004). 185. In re B & J, 756 N.W.2d 234, 239, 239 n.3 (Mich. Ct. App. 2008) (citing Moore v. Prestige Painting, 745 N.W.2d 816, 822–23 (Mich. Ct. App. 2007)). 186. § 712A.19b(3)(b). 187. Id. 188. See, e.g., In re Hudson 817 N.W.2d 115, 118 (Mich. Ct. App. 2011) (finding parental treatment of one child is relevant to the foreseeable treatment of another); In re Jenks, 760 N.W.2d, 297, 299 (Mich. Ct. App. 2008) (finding a parent’s sexual abuse of one child raises the reasonable possibility of reoccurrence). 189. See Family Independence Agency v. Sours (In re Sours), 593 N.W.2d 520, 524–25 (Mich. 1999) (citing § 712A.19b(3)(b)(ii)). 190. § 712A.19b(3)(g).

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reveals that the first finding deals with the parent’s past failure to provide care or custody, which led to the removal at issue. The second finding addresses the parent’s continued ability to provide proper care and custody. For example, a parent’s failure to comply with the terms of a parent-agency treatment plan is typically used as grounds to terminate parental rights under subsection (g).191 Alternatively, compliance with a parent-agency treatment plan shows the ability to provide proper care and custody for the child, which weighs against terminating parental rights.192 A parent’s continued drug use or history of leaving children unsupervised can also be grounds for termination.193 Grounds for termination under subsection (i) exist both when that parent’s “rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse,” and “prior attempts to rehabilitate the parent[] have been unsuccessful.”194 Similar to subsection (i), parental rights can be terminated under subsection (l) if the parent’s rights to any other child were involuntarily terminated under any ground for termination.195 Parental rights are often terminated under subsection (j)196 when children are physically or sexually abused by adults in the children’s home, exposed to acts of violence by adults in the children’s home, or exposed to the parent’s extreme emotional instability. For example, the Michigan Court of Appeals affirmed the termination of parental rights for a mother and father in In re VanDalen because both children suffered “unexplained, serious, nonaccidental injuries consistent with intentional [physical] abuse while in respondents’ sole care and custody.”197 One child had a fractured tibia, lesions 191. See, e.g., Family Independence Agency v. Kucharski (In re JK), 661 N.W.2d 216, 223 (Mich. 2003); In re Trejo, 612 N.W.2d 407, 417 n.16 (Mich. 2000). 192. In re JK, 661 N.W.2d at 223. 193. See Family Independence Agency v. Bowman (In re C.R.), 646 N.W.2d 506, 518 (Mich. Ct. App. 2001). 194. § 712A.19b(3)(i); see, e.g., Dep’t of Soc. Servs. v. Vasquez (In re Vasquez), 501 N.W.2d 231, 236 (Mich. Ct. App. 1993) (affirming the termination of a mother’s and father’s parental rights because the parents lost their rights to six other children due to the father’s abuse and the mother’s inability to protect the children). 195. § 712A.19b(3)(l). 196. § 712A.19b(3)(j). 197. 809 N.W.2d 412, 423 (Mich. Ct. App. 2011).

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inside his mouth consistent with burns, and cuts on his face.198 The second child had fractures in her ribs, back, leg, and toes and presented with a brain injury.199 The state’s medical expert “could not recall a case with so many fractures.”200 In another case, In re Olive/Metts, a mother pushed her child and scratched her child’s face.201 This less severe physical altercation was sufficient for the court to terminate parental rights.202 The Court of Appeals has also affirmed termination of parental rights when there is sexual abuse occurring within a child’s home. For example, it affirmed terminating the mother’s parental rights because she knew about the sexual abuse happening to her daughters but failed to prevent the abuse.203 And it has held that knowingly allowing a child to live with a parent who has sexually abused a sibling is proper grounds for terminating parental rights under subsection (j).204 Rights can also be terminated for anger-management problems or extreme expression of mental illness. 205 In In re Olive/Metts, the court terminated a mother’s parental rights after finding that she directed violent acts at other adults.206 Her anger-management problems resulted in her flying into a rage while visiting her children and engaging in an altercation with a teacher and police.207 Additional evidence showed that the children began to mimic their mother’s behavior.208 In In re Utrera, the court terminated a mother’s parental rights, in part because the mother testified that she was “not

198. Id. at 415. 199. Id. at 417. 200. Id. at 418. 201. 823 N.W.2d 144, 147, 150 (Mich. Ct. App. 2012). 202. Id. 203. Id.; see also Dep’t of Human Servs. v. Nierescher (In re Archer), 744 N.W.2d 1, 5 (Mich. Ct. App. 2007) (affirming the termination of a mother’s parental rights because she “admitted that she did nothing to prevent known sex offenders from interacting with [or assaulting] her children”); In re Utrera, 761 N.W.2d 253, 268 (Mich. Ct. App. 2008) (affirming the termination of a mother’s parental rights because she allowed two abusive men to move in with her and her child). 204. In re Hudson, 817 N.W.2d 115, 118–19 (Mich. Ct. App. 2011). 205. Id. 206. 823 N.W.2d at 148. 207. Id. 208. Id.

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stable.”209 During the adjudication, she suffered from bipolar disorder and needed to be hospitalized as a result.210 Parental rights can be terminated under subsection (k) and (m) if the parent either abused the child or a child’s sibling, or previously voluntarily terminated parental rights for abuse, in one or more of the following manners: (i) Abandon[ing] a young child; (ii) [c]riminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate; (iii) [b]attering, torture, or other severe physical abuse; (iv) [l]oss or serious impairment of an organ or limb; (v) [l]ifethreatening injury; (vi) [m]urder or attempted murder; (vii) [v]oluntary manslaughter; (viii) [a]iding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter; [or] (ix) sexual abuse.211 Under subsection (n), a parent’s rights can be terminated only if the parent was convicted of one of the following crimes: (i) first- or second-degree murder,212 criminal sexual conduct,213 or assault with intent to commit criminal sexual conduct; 214 (ii) violation of certain criminal statutes that include as an element the use of force or the threat of force;215 or (iii) conviction of a federal or another state crime “with provisions substantially similar to a crime or procedure” in subparagraph (i) or (ii).216 The court must determine that termination is in the child’s best interest because continuing the parent-child relationship would harm the child.217 E. Best Interest of the Child The trial court may terminate parental rights under the Juvenile Code after it holds a hearing, makes findings of fact and conclusions 209. 761 N.W.2d 253, 268 (Mich. Ct. App. 2008). 210. Id. at 262. 211. MICH. COMP. LAWS ANN. § 712A.19b(3)(k) (Westlaw 2014). 212. MICH. COMP. LAWS ANN. §§ 750.316–.317 (Westlaw 2014). 213. MICH. COMP. LAWS ANN. §§ 750.520b–.520e (Westlaw 2014). 214. MICH. COMP. LAWS ANN. § 750.520g (Westlaw 2014). 215. § 712A.19b(3)(n)(ii); see also MICH. COMP. LAWS ANN. §§ 769.10–.12 (Westlaw 2014) (describing sentencing). 216. § 712A.19b(3)(n)(iii). 217. § 712A.19b(3)(n).

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of law regarding termination, and finds one or more of the statutory grounds by clear and convincing evidence.218 But once the court finds a statutory ground for termination, it must determine whether termination is in the child’s best interests.219 The trial court assesses the best-interest factors for each child individually.220 These factors must be proved by a preponderance of the evidence.221 The Juvenile Code does not contain a list of best-interest factors. Instead, the best-interest factors for termination have evolved through case law.222 These factors include the child’s bond to the parent;223 parenting ability;224 and a child’s need for permanency, stability, and finality.225 For example, the Michigan Court of Appeals affirmed a trial court’s finding that termination was in the child’s best interest because the limited contact between parent and child effectively prohibited the child from forming a bond with his parent.226 Specifically, the child was removed from his parent’s custody less than one week after birth.227 The parent then failed to visit regularly and, when visiting, did not play with or talk to the child unless prompted.228 Therefore, the court found that no parent-child bond could exist.229 Unlike termination proceedings under the Adoption Code, courts evaluating termination under the Juvenile Code may compare the homes of the parent and the homes of current or potential caretakers when assessing whether termination is in the child’s best interest.230 218. See § 712A.19b(3). 219. § 712A.19b(5); MICH. CT. R. 3.977(E)(4); .In re Olive/Metts, 823 N.W.2d 144, 148 (Mich. Ct. App. 2012); In re VanDalen, 809 N.W.2d 412, 423 (Mich. Ct. App. 2011). 220. In re Olive/Metts, 823 N.W.2d at 149; see also Foskett v. Foskett, 634 N.W.2d 363, 369 (Mich. Ct. App. 2001). 221. In re Moss, 836 N.W.2d 182, 190 (Mich. Ct. App. 2013). 222. See, e.g., In re Olive/Metts, 823 N.W.2d at 148–49. 223. Id. (citing Anderson v. Schafer (In re BZ), 690 N.W.2d 505, 513 (Mich. Ct. App. 2004)). 224. See In re Jones, 777 N.W.2d 728, 730–31 (Mich. Ct. App. 2009). 225. In re VanDalen, 809 N.W.2d 412, 424 (Mich. Ct. App. 2011). 226. In re BZ, 690 N.W.2d at 513. 227. Id. at 507. 228. Id. at 511. 229. See id. at 513. 230. See generally In re Foster, 776 N.W.2d 415, 418 (Mich. Ct. App. 2009) (explaining that while courts may not compare a parent’s home to a foster parent’s home when determining whether a statutory ground exists for termination, a court may compare homes when assessing what is in the best interest of the child).

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For example, if a child is placed in a relative’s home while the termination proceeding is before the court, that placement typically weighs against termination.231 But this body of law does not seem to fit the context of a parent seeking to terminate the other parent’s parental rights. If the petitioner prevails, the court may terminate parental rights. After termination, the child will either be placed in the custody of the parent whose rights have not been terminated or in the permanent custody of the court.232 The parent-respondent may appeal the termination.233 If the petitioner fails to meet his or her burden, the case is dismissed and the child must be returned to the presumptively fit parent. IV. ADDITIONAL WAYS TO “TERMINATE” A PARENT’S RIGHTS In addition to the formal termination of parental rights provided by the Adoption Code and the Juvenile Code, parent’s rights can be removed in other ways, such as using the Revocation of Paternity Act (ROPA) and through voluntary waivers of parental rights. A. Revocation of Paternity Act The ROPA is a mechanism to remove parental rights from a legal father by revoking his parentage to the child.234 A mother, acknowledged father, alleged father, or the state can file an action to revoke paternity. The ROPA contains separate methods for terminating parental rights: revoking an acknowledgment of paternity, setting aside an order of filiation, and initiating “an action to determine that a presumed father is not a child’s father.”235

231. MICH. COMP. LAWS ANN. § 712A.19a(6)(a) (Westlaw 2014); see In re Olive/Metts, 823 N.W.2d 144, 149 (Mich. Ct. App. 2012) (citing Dep’t of Human Servs. v. Mason (In re Mason), 782 N.W.2d 747, 758 (Mich. 2010)). 232. MICH. COMP. LAWS ANN. § 712A.19b(1) (Westlaw 2014). 233. MICH. CT. R. 3.993(A). 234. MICH. COMP. LAWS ANN. § 722.1435(3) (Westlaw 2014); Grimes v. Van Hook-Williams, 839 N.W.2d 237, 241 (Mich. Ct. App. 2013). 235. § 722.1435; see also MICH. COMP. LAWS ANN. § 722.1437 (Westlaw 2014) (discussing revocation of an acknowledgment of paternity); MICH. COMP. LAWS ANN. § 722.1439 (Westlaw 2014) (discussing motions to set aside orders of filiation); MICH. COMP. LAWS ANN. § 722.1441 (Westlaw 2014) (describing procedures to disestablish a presumed father’s paternity).

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B. “Terminating” Parental Rights to Enable Joint Adoptions As mentioned previously, parents often have the option of voluntarily terminating parental rights. Once the rights of all legal parents are terminated, the child will be placed for adoption. If one biological parent wishes to retain custody of the child while simultaneously facilitating the adoption of the child by another adult, voluntary termination of parental rights by the other biological parent may facilitate such an arrangement. The Adoption Code allows for a second-parent adoption in the form of adoption by a stepparent lawfully married to one of the child’s biological parents under the stepparent-adoption statute.236 But the Adoption Code contains no provision allowing for an adult who is not married to a biological parent to adopt a child while retaining the biological parent’s rights. A strict reading of the Adoption Code suggests that a joint adoption by two unmarried individuals may not be permitted; it states that a “person [singular], together with his or her husband, if married, shall file a petition” to adopt the child.237 But it appears that at least two Michigan trial courts have allowed such a joint adoption.238 These cases do not supply the specifics of the adoption process, but it is likely that the biological parent would first voluntarily terminate his or her parental rights to the child, and then the biological parent and the other adult would jointly petition the court to adopt the child.239 In Hansen v. McClellan, a trial court allowed two unmarried adults to jointly adopt two children.240 The unmarried biological mother gave birth to twins.241 Seeking to raise her children with the woman with whom she was in a committed relationship, the biological mother voluntarily terminated her parental rights. 242 Then both adults petitioned the court jointly to adopt the child.243 The trial court allowed the adoption.244 Many years later, the other parent 236. MICH. COMP. LAWS ANN. § 710.51(6) (Westlaw 2014). 237. MICH. COMP. LAWS ANN. § 710.24(1) (Westlaw 2014). 238. See Usitalo v. Landon, 829 N.W.2d 359 (Mich. Ct. App. 2012); Hansen v. McClellan, No. 269618, 2006 WL 3524059, at *1, *5 (Mich. Ct. App. Dec. 7, 2006). 239. See Usitalo, 829 N.W.2d at 359; Hansen, 2006 WL 3524059, at *5. 240. 2006 WL 3524059, at *1. 241. Id. 242. Id. 243. Id. 244. Id.

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challenged the jurisdiction of the trial court to grant such an adoption absent a specific provision in the Adoption Code.245 While not addressing whether same-sex adoptions are or should be permitted in Michigan, the Court of Appeals upheld the adoption by reasoning that the trial court had jurisdiction to grant the adoption.246 V. COMPARING THE METHODS BY WHICH A PARENT CAN SEEK TO TERMINATE ANOTHER PARENT’S PARENTAL RIGHTS: JUVENILE CODE VERSUS STEPPARENT ADOPTIONS In re AJR reveals the potential intersection of the Adoption Code and Juvenile Code. The respondent argued that if a stepparent adoption was allowed to occur when both parents shared legal custody, then the parent who wanted to terminate to make way for a stepparent adoption could only terminate through proceedings under the Juvenile Code. The idea was that a stepparent adoption under section 51 of the Adoption Code would not be constitutionally sound if the parents had joint legal custody, but it would be constitutionally sound only if the petitioning parent had sole legal custody. The Michigan Supreme Court analogized these two options (seeking sole legal custody and proceeding under the Juvenile Code), and stated the following: [A] parent who shares joint legal custody is free to seek modification of that custody arrangement under MCL 722.27 and may proceed with stepparent adoption under MCL 710.51(6) after securing sole legal custody of the child. This result is akin to the scheme provided in the juvenile code, which in MCL 712A.19b(1) requires that a court “shall hold a hearing to determine if the parental rights to a child should be terminated and, if all parental rights to the child are terminated, the child placed in permanent custody of the court.” The hearing required under MCL 712A.19b(1) is a separate proceeding from a review hearing under MCL 712A.19 or a permanency planning hearing under MCL 712A.19a.247 245. Id. at 360. 246. Id. at 360−61 (citing MCL 600.1021(1)(b), which states that “the family division of circuit court has sole and exclusive jurisdiction” over adoption proceedings). 247. In re AJR, 496 Mich 346, 357 (2014).

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However, as noted in the explication of the statutory schemes in this Article, it is not entirely clear that these two proceedings are analogous. To modify a custody order, including a change of joint legal custody to sole legal custody, the parent must demonstrate proper cause or change in circumstances.248 The petitioning party would also likely need to demonstrate that the parties are not able to agree on the important decisions that impact the child’s welfare, necessitating sole legal custody.249 Another issue raised by this option is that once a parent files a petition seeking sole legal custody—presumably because the other parent has failed to support or communicate with the child for more than two years—a potential response is for the other parent to begin either paying support or communicating with the child. Once the noncustodial parent does one of these things, even if the custodial parent succeeds in the motion for sole legal custody, the other parent’s actions would seemingly bar any stepparent adoption for at least two more years after the time the support and communication once again ceased. This option is, therefore, an imperfect solution for parents wanting to perform a stepparent adoption but who currently share legal custody with the noncustodial parent. A. A Parent’s Choice to Proceed under the Juvenile Code or the Adoption Code Because the stepparent-adoption statute is written for this precise situation, a parent-petitioner will likely have an easier time, procedurally, seeking to terminate parental rights under the Adoption Code. This assumes that the procedural requirements for a parentpetitioner under the Juvenile Code mirror the procedural requirements for a state-petitioner. For example, the language of section 51 of the Adoption Code gives a custodial parent standing to petition the court to terminate the other parent’s rights.250 Conversely, the Juvenile Code does not expressly give a parent this standing.251 When listing the types of individuals who may have standing, the Juvenile Code does not list

248. 249. 2011). 250. 251.

MICH. COMP. LAWS ANN. § 722.27(1)(c). (Westlaw 2014). See Dailey v. Kloenhamer, 811 N.W.2d 501, 504−05 (Mich. Ct. App. MICH. COMP. LAWS ANN. § 710.51(6). MICH. COMP. LAWS ANN. § 712A.19b(1) (Westlaw 2014).

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parent as a category.252 Instead, the Juvenile Code lists a whole host of other individuals who may have standing to petition the court.253 So as to give a custodial parent standing to petition the court for termination of the other parent’s parental rights under the Juvenile Code, the Court of Appeals has interpreted the term custodian to include a custodial parent.254 Additionally, the jurisdictional requirements under the Adoption Code are simpler. In a stepparent-adoption case, a child’s life is not disrupted; although the legal status of the child’s parents will change, the child’s actual custody does not change.255 When parental rights are terminated to facilitate a stepparent adoption, the child’s physical custody is unaffected.256 So the court does not need to intervene in the lives of the family when terminating parental rights under the Adoption Code as it would when removing a child from the parents’ home and subsequently taking custody over the child under the Juvenile Code.257 Jurisdiction under the Adoption Code refers to whether the family division or probate court has the authority to actually hear the case.258 Yet jurisdiction under the Juvenile Code is about whether there are jurisdictional grounds for the court to take the wheel of the family’s life.259 For the court to take jurisdiction over the child under the Juvenile Code, the parent-petitioner must prove one of the jurisdictional grounds.260 Further, the court must hold a separate hearing to establish jurisdiction under the Juvenile Code, where no such requirement exists under the Adoption Code.261

252. Id. 253. Id. 254. See Bliesener v. Vega (In re MV), No. 264226, 2006 WL 859721, at *2 (Mich. Ct. App. Apr. 4, 2006) (citing Huisman v. Huisman (In re Huisman), 584 N.W.2d 349, 354 (Mich. Ct. App. 1998)). 255. MICH. COMP. LAWS ANN. § 710.51(3) (Westlaw 2014). 256. Id. 257. Compare id., with MICH. COMP. LAWS ANN. § 712A.19b(1) (Westlaw 2014). 258. MICH. COMP. LAWS ANN. § 600.1021(1)(b) (Westlaw 2014). See also Hansen v. McClellan, No. 269618, 2006 WL 3524059, at *2–3, (Mich. Ct. App. Dec. 7, 2006). 259. See MICH. COMP. LAWS ANN. § 712A.2 (Westlaw 2014). 260. Id. 261. Compare MICH. COMP. LAWS ANN. § 712A.19a(2) (Westlaw 2014), with MICH. COMP. LAWS ANN. § 710.51 (Westlaw 2014).

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Additionally, the burdens for a parent-petitioner seeking termination vary greatly between the Adoption Code and the Juvenile Code. In particular, this includes the requirement for a parentpetitioner to facilitate a relationship with the child and the other parent. Under the Adoption Code, the parent-petitioner bears the burden of proof.262 Under the Juvenile Code, the petitioner must attempt to reunify the parent and child before the court will consider whether termination of parental rights is appropriate.263 Assuming that the procedural requirements under the Juvenile Code apply equally to all petitioners, a parent-petitioner under the Juvenile Code would likely be required to facilitate reunification before termination. Finally, the petitioning parent, under either the Adoption Code or the Juvenile Code, must prove, by clear and convincing evidence, that grounds for termination exist.264 Therefore, if a parent is in the position to choose to pursue termination of the other parent’s parental rights, apart from the substantive requirements of termination, the parent-petitioner will experience a much simpler procedure to follow under the stepparentadoption statute. B. The Impact of the Supreme Court’s Holding in In re AJR In re AJR effectively eliminated the use of the stepparentadoption statute for some custodial parents seeking to terminate the other parent’s rights—that is, parents who have joint legal custody. Because the Court held that a parent must have sole legal custody to proceed under the stepparent-adoption statute, parents who share legal or physical custody of their children may not petition the court for a stepparent adoption and corresponding termination of parental rights of the noncustodial parent.265 This leaves the Juvenile Code as the only choice for these parents.

262. § 712A.19a(2) (Westlaw 2014). 263. Dept. of Human Serv. V. Davis (In re LE), 747 N.W.2d 883, 894 (Mich. Ct. App. 2008). 264. In re Olive/Metts, 823 N.W.2d 144, 148 (Mich. Ct. App. 2012); VanDyke v. McHugh (In re A.L.Z.), 636 N.W.2d 284 at 289 (Mich. Ct. App. 2001); Rodriguez v. Colon (In re Colon), 377 N.W.2d 321, 325 (Mich. Ct. App. 1985). 265. In re AJR, 496 Mich. 346, 363 (Mich. 2014).

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C. Parent’s may not actually have a choice under the Juvenile Code. Close inspection of the Juvenile Code suggests that a parent may not actually have standing to file a petition for termination of the other parent’s rights.266 For this reason, the decisions in In re Huisman and In re MV may be incorrect. The direct comparison between terminating parental rights under the Adoption Code and the Juvenile Code relies on one assumption—the procedural requirements for a parent-petitioner and a state-petitioner are the same. Neither the courts nor the legislature have suggested that the strong procedural safeguards built into the Juvenile Code to protect a parent from the wrongful termination of parental rights vary from petitioner to petitioner.267 But when applying the procedural requirements of the Juvenile Code to a parent-petitioner, the procedure does not quite fit, and the logic of In re Huisman begins to unravel. In In re Huisman, the Michigan Court of Appeals reasoned that custodial parent fits within the definition of custodian as used within the Juvenile Code.268 In isolation, the court’s rationale makes perfect sense. But when moving on to the second procedural requirement, In re Huisman’s logic is less clear. Section 19b of the Juvenile Code is premised on a child not living with a parent. 269 It states that “if a child remains in foster care in the temporary custody of the court,” or “if a child remains in the custody of a guardian or limited guardian,” then a petition for termination can be filed.270 Therefore, if the child remains in the parent’s custody, the court may not accept a termination petition from a parent-petitioner. This prerequisite seems to prohibit a custodial parent from ever seeking to terminate the other parent’s parental rights under the Juvenile Code. Further, the Juvenile Code’s procedure to reunify the parent and child does not quite apply to the case of parent-petitioner.271 The 266. MICH. COMP. LAWS ANN. § 712A.19b(1) (Westlaw 2014). 267. Dep’t of Human Servs. v. Mason (In re Mason), 782 N.W.2d 747, 756 (Mich. 2010). 268. Huisman v. Huisman (In re Huisman), 584 N.W.2d 349, 353 (Mich. Ct. App. 1998). 269. § 712A.19b(1). 270. Id. 271. See generally MICH. COMP. LAWS ANN. § 712A.19a(2)(a) (Westlaw 2014) (stating reunification requirements are bypassed when aggravating circumstances are present).

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typical structure of a court-imposed parenting-time plan that the state-petitioner monitors would not make sense in the context of a parent-petitioner. For example, it would be troubling to ask a parent seeking to terminate the parental rights of the other parent to be the objective observer of the other parent’s compliance with courtordered parenting classes, drug screening, or counseling. The procedure of requiring the state to monitor a parent’s compliance with such a service plan makes sense when the child has been removed from the home and placed in the care of the state. It does not make sense when the child continues to reside with a legal parent. Even assuming that a parent-petitioner could be objective in evaluating the other parent’s compliance with a service plan, it is unclear whether the parent-petitioner would have the qualifications to do so. Neither the Michigan Court of Appeals nor the Michigan Supreme Court has addressed this issue. In cases involving parent-petitioners, such as In re Huisman and In re MV, the Court of Appeals did not address the reunification requirement. Instead, it focused on whether the parent-petitioners had standing. Similarly, in cases involving a non-state, non-parent petitioner, such as In re CMH or In re Young, the court has not addressed the issue of a non-state agency’s responsibility for reunifying parent and child. Instead, the courts focused on jurisdictional issues. So it is unclear how a parent-petitioner would facilitate reunification under the Juvenile Code. Because of the jurisdictional and reunification problems with a parent-petitioner, the Michigan Court of Appeals’s decision in In re Huisman—that the legislature intended for a custodial parent to fit within the definition of a custodian who has standing to pursue termination of the other parent’s parental rights—may be incorrect. VI. CONCLUSION While Michigan courts’ current procedure for terminating parental rights may leave petitioning parents some options, Michigan statutes allowing for the termination of parental rights appear to be largely written so that each statute addressing termination of parental rights applies to a very specific circumstance. This narrow, statutespecific, procedurally heavy approach can be tricky to navigate and leaves parents seeking to terminate parental rights of their child’s other parent with few options. But the statutes ensure that all parents’ fundamental rights remain intact. While the constitutional protection of parental rights is appropriately strong, the Michigan Legislature

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may need to rework the Adoption Code and Juvenile Code to allow a parent to terminate the other parentâ&#x20AC;&#x2122;s rights without forcing both parents to relinquish rights to the child.

MICHIGAN’S NEW ADOPTION LAWS: STRENGTHENING THE RIGHTS OF PROSPECTIVE ADOPTIVE PARENTS ELISABETH MULLINS ABSTRACT Recently, very important changes have taken place within the area of adoption law in the form of House Bill 4646. These changes infuse the adoption process with a greater degree of certainty regarding time limits surrounding the termination and revocation of the birthparent’s parental rights. This Article analyzes the effect of House Bill 4646 by providing a general overview of the adoption process itself: past, present, and future. Doing so demonstrates how daunting, anxiety-ridden, and uncertain the entire adoption process was prior to the passage of House Bill 4646. This Article will show how House Bill 4646 will inject the much-needed certitude into the adoption process, thereby relieving the anxiety associated with adoption for the birthparent, the adoptive parent, and for the practicing adoption attorney. This Article will also show how this change in the law will put Michigan in line with what many other states are already doing with adoptions. The changes that are taking place because of House Bill 4646 mark a positive transition in the practice of adoption law. Consequently, House Bill 4646 allows for the development of permanency and stability within the adoptee’s life, which is the ultimate goal of the adoption itself.

TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 390 II. THE ADOPTION PROCESS IN MICHIGAN ........................................ 391 A. Before 1995 ....................................................................... 391 B. 1995-2014 ......................................................................... 391 1. Temporary Placement of the Child ............................. 392 2. Release and Consent of Parental Rights ...................... 394 3. Revoking Temporary Custody .................................... 395 C. After October 12, 2014 ..................................................... 396

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1. Temporary Placement of the Child ............................. 396 2. Release and Consent of Parental Rights ...................... 397 3. Revoking Consent ....................................................... 397 IV. WHAT OTHER STATES ARE DOING ............................................. 398 V. MICHIGAN’S NEW LAW: SUPPORT AND OPPOSITION .................... 400 VII. CONCLUSION ............................................................................. 400 I. INTRODUCTION This Article begins with a couple in the process of adopting a baby boy. They brought the baby, Gabriel, home and cared for him for the first few months of his life; but then the birthmother1 changed her mind and requested him back.2 Despite having cared for and bonded with Gabriel for months, the couple was forced to return him.3 A few weeks later, the couple learned that Gabriel died while under his teen father’s care.4 While this certainly represents a worst-case scenario, similar situations occur across the country. For example, in Michigan it is not uncommon for a birthparent to change his or her mind and request that the prospective adoptive parents return the child—even though the baby has been with that family for days, weeks, or even months. These scenarios demand a change in Michigan’s adoption law, and such a change is on the horizon. Recently, Michigan enacted House Bill 4646, which amended some of its adoption laws.5 These new laws affect how consent to voluntarily terminate parental rights is obtained and executed. In addition, the new laws require a minimum waiting period before consent is executed.

1. A mother or parent does not become a birthmother or birthparent until the adoption is finalized; this term is used in this Article for purposes of clarity only. 2. Regina Zilbermints & Lauren Horsch, Former Adoptive Parents Stunned by Infant’s Death, DES MOINES REG., Apr. 24, 2014, http://www.desmoinesregister .com/story/news/crime-and-courts/2014/04/24/infant-death-des-moines/8083533/. 3. Id. 4. Id. 5. H.B. 4646, 97th Leg., Reg. Sess. (Mich. 2014) (to be codified at MICH. COMP. LAWS ANN. §§ 710.23d, .29, .44).

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II. THE ADOPTION PROCESS IN MICHIGAN Michigan has different types of adoption. These include agencyplacement, direct-placement, relative, step-parent, and adult adoptions, among others.6 This Article will focus on direct-placement adoptions. This occurs when the birthparent selects an adoptive family, “transfers physical custody of the adoptee to the adoptive parent[,] and consents to the adoption.”7 The Article will discuss situations where both birthparents voluntarily terminate their parental rights. The Michigan Adoption Code governs adoptions, which fall under the jurisdiction of the family division of the circuit court. 8 A. Before 1995 Before 1995, Michigan law required a court to terminate the rights of the birthparents before the adoptee could be placed with prospective adoptive parents.9 In addition, Michigan law prohibited the birthparents from consenting to the adoption if the prospective adoptive parent was unrelated to the birthparents.10 Therefore, only “state-licensed child-placing agenc[ies] or . . . the Michigan Department of Human Services” could place an adoptee with an unrelated, prospective adoptive parent.11 The adoptee’s birthparents could not select the prospective adoptive parents.12 Finally, the prospective adoptive parent was required to be licensed as a foster parent.13 This statutory scheme took the birthparents completely out of the process of selecting adoptive parents for their child. B. 1995-2014 Currently, the birthparent plays an active role in selecting the prospective adoptive parent. This Article will focus primarily on the legal process of a direct-placement adoption. 6. STATE OF MICH. DEP’T OF HUMAN SERVS., ADOPTING A CHILD IN MICHIGAN 4–6 (rev. 2013), available at http://www.michigan.gov/documents/ dhs/DHS-PUB-0823_221566_7.pdf. 7. Id. at 4–5. 8. See MICH. COMP. LAWS ANN. §§ 600.1021(1)(b), 710.21–.70 (Westlaw 2014). 9. STATE OF MICH. DEP’T OF HUMAN SERVS., supra note 6, at 1. 10. Id. 11. Id. 12. Id. 13. Id.

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1. Temporary Placement of the Child The direct-placement-adoption process officially begins when the prospective adoptive family files a petition for adoption.14 Upon filing, the court will direct the child-placing agency to conduct a preplacement assessment.15 In this preplacement assessment, the agency investigates the prospective adoptive family’s background to determine whether they are suitable to adopt.16 While the adoption process is pending, but before the adoption is finalized, the birthparent who has legal and physical custody of an adoptee will often make a temporary placement of the adoptee with the prospective adoptive family. When the temporary transfer of custody is made, the adoptee’s birthparent or legal guardian signs a statement evidencing the transfer.17 This allows the child to go home with the prospective adoptive family on a temporary basis without the need for a foster parent license.18 But the preplacement assessment is required before a birthparent may make a temporary placement.19 The child-placing agency must complete the preplacement assessment within one year of the transfer date. The agency must find that the prospective adoptive parent is suitable to be a parent of an adoptee.20 A preplacement assessment is based on home visits at the prospective adoptive parent’s home.21 The agency will interview the prospective adoptive family, as well as those who know them.22 To determine whether a person is suitable to be an adoptive parent, section 710.23f requires that the following be considered: (a) Age, nationality, race or ethnicity, and any religious preference. (b) Marital and family status and history, including the presence of other children or adults in the household and the relationship of those individuals to the adoptive parent. 14. MICH. COMP. LAWS ANN. § 710.24(1) (Westlaw 2014). 15. § 710.24(7). A preplacement assessment may be done even before the prospective adoptive family has located a prospective adoptee or has filed an adoption petition. MICH. COMP. LAWS ANN. § 710.23f(1)–(2) (Westlaw 2014). 16. § 710.23f(5). 17. MICH. COMP. LAWS ANN. § 710.23d(1)(a)–(c) (Westlaw 2014). 18. § 710.23d. 19. § 710.23d(1)(a). 20. Id. 21. § 710.23f(5). 22. Id.

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(c) Physical and mental health, including any history of substance abuse. (d) Educational and employment history and any special skills and interests. (e) Property and income, including outstanding financial obligations as indicated in a current financial report provided by the individual. (f) Reason for wanting to adopt. (g) Any previous request for an assessment or involvement in an adoptive placement and the outcome of the assessment or placement. (h) Whether the individual has ever been the respondent in a domestic violence proceeding or a proceeding concerning a child who was allegedly abused, dependent, deprived, neglected, abandoned, or delinquent, and the outcome of the proceeding. (i) Whether the individual has ever been convicted of a crime. (j) Whether the individual has located a parent interested in placing a child with the individual for adoption and a brief description of the parent and the child. (k) Any fact or circumstance that raises a specific concern about the suitability of the individual as an adoptive parent . . . .23 In addition, the prospective adoptive parent must provide documents from the Michigan State Police and the Federal Bureau of Investigation showing the prospective adoptive parents’ criminal history or lack of criminal history.24 The prospective adoptive parents must also undergo a physical examination indicating that they are “free from any known condition that would affect [their] ability to care for an adoptee.”25 The prospective adoptive parents must also sign a statement indicating that they understand that the placement is temporary and will not become a formal placement until the birthparents either consent or release their parental rights and “the court orders the

23. Id. 24. § 710.23f(6). 25. § 710.23f(7).

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termination of parental rights and approves the placement.”26 During the temporary placement period, the birthparents retain full parental rights to the adoptee. And the birthparents may also revoke the temporary placement and regain custody of the child at any time.27 No later than two business days after the temporary placement, the child-placing agency must confirm transfer of custody to the court in the county where the child’s parents, guardians, or the prospective adoptive parents reside, or where the child is found.28 Within thirty days after the transfer of custody, the child-placing agency must either state that a petition for adoption has been filed or that the child has been returned to the agency or to the adoptee’s parents.29 This report is not necessary if the petition has been filed in the same court. 2. Release and Consent of Parental Rights Once the petition and other necessary documents are filed with the court, the court must terminate the rights of the adoptee’s birthparents, either voluntarily or involuntarily. To voluntarily terminate their parental rights, the birthparents must either consent or release their parental rights. A parent consents by executing a form called Consent to Adoption by Parent. A Consent form is used when the birthparent voluntarily relinquishes parental rights over a specific child to place the child with a specific adoptive parent. A Release form is used when the birthparent voluntarily relinquishes parental rights over a specific child to a department or child-placing agency. In other words, a Consent relinquishes rights to an identified family for placement, while a Release relinquishes parental rights to an agency for placement. Both the Consent and the Release must comply with certain requirements. On a Consent form, there must be a statement containing language that the birthparent retains full parental rights to the adoptee being temporarily placed and that “the temporary placement may be revoked by the filing of a petition under section 710.23d(5).”30

26. 27. 28. 29. 30.

MICH. COMP. LAWS ANN. § 710.23d(1)(d)(i). § 710.23d(1)(c)(iii). § 710.23d(2). § 710.23d(3). § 710.23d(1)(c)(iii).

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Formal placement of the adoptee only occurs after the birthparent executes a Consent in a hearing before a judge having jurisdiction over the adoption, a judge of the family law division of the circuit court, or before a juvenile court referee. 31 This hearing may occur at any time after the adoptee’s birth,32 but it must occur within seven days after it is requested.33 Thus, to a certain extent, the hearing is at the whim of the court’s schedule. At the hearing, the judge must explain to the parent that consent to voluntarily relinquish parental rights is permanent.34 Once the judge is satisfied that (1) the consent to adoption is genuine, (2) the person giving consent has the legal authority to do so, and (3) the adoption is in the adoptee’s best interest, the judge will execute an order. This is called the Final Order of Adoption and allows for formal placement of the adoptee.35 Following the hearing and until the judge enters the Final Order of Adoption, there is a supervisory period, which may last anywhere from six to eighteen months.36 During the supervisory period, the child-placing agency will supervise the family to determine how the adoptee and the family are adjusting to the adoption; the childplacing agency will report its observations to the court.37 Once the supervisory period is over, the court may enter a Final Order of Adoption, which completes the adoption process.38 3. Revoking Temporary Custody Between the time that the temporary placement is made and the time the birthparents execute the Consent, birthparents can still change their minds.39 If this occurs, the prospective adoptive parents must relinquish custody of the child within twenty-four hours after being served with a court order, no matter how long the adoptee has

31. 32. 33. 34. 35. 36. 37. 38. 39.

MICH. COMP. LAWS ANN. § 710.44(1) (Westlaw 2014). MICH. COMP. LAWS ANN. §§ 710.43–.44 (Westlaw 2014). § 710.44(1). § 710.44(7). MICH. COMP. LAWS ANN. § 710.51(1) (Westlaw 2014). MICH. COMP. LAWS ANN. §§ 710.52, .56(1) (Westlaw 2014). § 710.52. § 710.56(1). MICH. COMP. LAWS ANN. § 710.23d(5) (Westlaw 2014).

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been in their care.40 This may occur at any time during the temporary placement—whether it has been days, weeks, or months.41 C. After October 12, 2014 On April 15, 2014, Governor Rick Snyder signed into law House Bill 4646, which amended sections 710.23d, 710.29, and 710.44 of the Michigan Adoption Code. The bill is effective on October 12, 2014.42 These amendments affect how the temporary placement of an adoptee occurs as well as how adoptee’s birthparents consent to an adoption. 1. Temporary Placement of the Child The new law now allows for an adoptee’s parent to sign an outof-court consent or release rather than appearing before a judge or a referee.43 Birthparents “may sign an out-of court release in front of and witnessed by an adoption attorney representing the parent or guardian and a child placing agency caseworker.”44 Similarly, birthparents may sign an out-of-court Consent instead of appearing at a hearing.45 This out-of-court Consent legally operates in the same manner as a Consent executed before a judge or referee in that, by signing the out-of-court Consent, the birthparent will voluntarily relinquish his or her rights to the adoptee permanently.46 But there is one important difference regarding the Consent. The law now requires that the birthparents wait at least 72 hours before signing the out-of-court Consent.47 This 72-hour waiting period begins when the child is born.48 This is dramatically different from the previous requirement to appear before a judge or referee any time after the child’s birth,49 which subjected the birthparents to the whim of the court’s schedule.

40. MICH. COMP. LAWS ANN. § 710.23e(2) (Westlaw 2014). 41. § 710.23d(5). 42. H.B. 4646, 97th Leg., Reg. Sess. (Mich. 2014) (to be codified at MICH. COMP. LAWS ANN. §§ 710.23d, .29, .44). 43. Id. at sec. 29(5); id. at sec. 44(8). 44. Id. at sec. 29(5). 45. Id. at sec. 44(8). 46. Id. 47. Id. at sec. 44(8)(a). 48. Id. 49. MICH. COMP. LAWS ANN. § 710.44(1) (Westlaw 2014).

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2. Release and Consent of Parental Rights These new changes will not alter everything. The adopteeâ&#x20AC;&#x2122;s birthparents will continue to retain their full parental rights until they sign either an out-of-court Consent or terminate their rights.50 Thus, the birthparents may still revoke the temporary placement before they sign the Consent.51 In this case, the prospective adoptive parents must return the adoptee to the birthparents within 24 hours of being served with a court order; this changes the time frame in which the birthparents will have to change their minds.52 Before October 2014, the prospective adoptive parents would bring the adoptee home and, during this placement, the birthparents could change their minds and request that the placement be revoked while waiting for a hearing with a judge or referee. This process might have taken days, weeks, or months, depending on how long it took the court to schedule a consent hearing, which varied greatly by county. Now, after the prospective adoptive parents take the adoptee home, the birthparents can sign an out-of-court Consent 72 hours after the baby is born. There will be no need to wait for the court to schedule a hearing.53 The new changes will also allow a five-day period in which the birthparent may revoke the Consent.54 But if the birthparent does not revoke within the waiting period, the court must issue an order terminating the rights of the birthparent.55 3. Revoking Consent Under the new amendments, the process to revoke Consent is more difficult. If the birthparents wish to revoke their out-of-court Consent, they must submit a request for revocation to their attorney or the child-placing agency that witnessed the out-of-court Consent within five business days after the out-of-court Consent was signed.56 The request must be delivered within the five-day time limit in order for it to be considered timely.57 Once the attorney or child-placing

50. 51. 52. 53. 54. 55. 56. 57.

H.B. 4646, 97th Leg., Reg. Sess., at sec. 23d(1)(c)(iii) (Mich. 2014),. Id. at sec. 23d(5). MICH. COMP. LAWS ANN. Â§ 710.23e(2) (Westlaw 2014). H.B. 4646, 97th Leg., Reg. Sess., at sec. 44(8)(a) (Mich. 2014). Id. at sec. 23d(10). Id. at sec. 44(6). Id. Id.

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agency timely receives the request to revoke Consent, the adoption attorney or the child-placing agency must assist the birthparents in filing a petition to revoke the out-of-court Consent with the court as soon as it is practicable.58 Birthparents may file this petition with the court without assistance, but this petition must be filed within five business days after the out-of-court Consent was signed.59 Another important change is that the court may deny a timely petition to revoke the out-of-court Consent;60 even a timely submitted revocation of Consent does not immediately result in the return of the adoptee to the birthparents.61 Unless the prospective adoptive parent agrees to the revocation, a judge or referee is required to hold a hearing to determine that: (1) the request for revocation was given in a timely manner; (2) good cause exists to determine that the out-ofcourt Consent was not signed voluntarily; and (3) the best interest of the child will be served by 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 biological parent; [and] (iii) Disposition appropriate to the child’s welfare as authorized by section 18 of chapter XIIA under an ex parte order entered by the court.62 IV. WHAT OTHER STATES ARE DOING Although the changes in the law appear to be a major deviation from Michigan’s status quo, other states have been using waiting periods and tighter restrictions on revocation of consent for some time. A waiting period is defined as the period starting with the adoptee’s birth and ending with the earliest time the birthparent may sign a Consent.63 “The most common waiting period, as required in

Id. Id. Id. at sec. 29(13). Id. at sec. 29(14). Id. at sec. 44(11). See CHILD WELFARE INFO. GATEWAY, CONSENT TO ADOPTION, CHILDWELFARE.GOV 4 (Apr. 2013), https://www.childwelfare.gov/systemwide/ laws_policies/statutes/consent.pdf. 58. 59. 60. 61. 62. 63.

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16 states and the District of Columbia, is 72 hours, or 3 days.”64 This is by no means the minimum. Other states require even shorter waiting periods65 or, in some instances, no waiting period at all.66 Once birthparents give consent, many states provide for a minimum time period in which consent may be revoked. Alabama law, for example, states that a signed Consent only becomes irrevocable without court approval five days after it is signed.67 North Carolina’s law states that a Consent becomes irrevocable seven days after it is signed.68 There are other states where the Consent becomes irrevocable ten days after signing.69 Neither these states nor Michigan, however, represent the far side of the spectrum; other states do not even allow for a time period in which consent becomes irrevocable because consent becomes irrevocable upon signing.70

64. Id. ARIZ. REV. STAT. ANN. § 8-107(B) (Westlaw 2014); 750 ILL. COMP. STAT. ANN. 50 / 9 (Westlaw 2014); MINN. STAT. ANN. § 259.24(2a)(a) (Westlaw 2014); MISS. CODE ANN. § 93-17-5(1) (Westlaw 2014); NEV. REV. STAT. ANN. § 127.070(1) (Westlaw 2014); TENN. CODE ANN. § 36-1-111 (Westlaw 2014); W. VA. CODE ANN. § 48-22-302 (Westlaw 2014). 65. FLA. STAT. ANN. § 63.082 (Westlaw 2014) (48 hours); UTAH CODE ANN. § 78B-6-125 (Westlaw 2014) (24 hours). 66. ALA. CODE § 26-10A-13 (Westlaw 2014); ALASKA STAT. ANN. § 25.23.070 (Westlaw 2014); ARK. CODE ANN. § 9-9-208 (Westlaw 2014); N.C. GEN. STAT. ANN. § 48-3-604 (Westlaw 2014); MICH. COMP. LAWS ANN. § 710.44 (Westlaw 2014). 67. ALA. CODE § 26-10A-13 (allowing a signed Consent to be withdrawn within 14 days if the court approves). 68. N.C. GEN. STAT. ANN. § 48-3-608 (Westlaw 2014). 69. ALASKA STAT. ANN. § 25.23.070 (Westlaw 2014); ARK. CODE ANN. § 9-9209(b)(1) (Westlaw 2014); GA. CODE ANN. § 19-8-9(b) (Westlaw 2014); MINN. STAT. ANN. § 259.24(6a) (Westlaw 2014); TENN. CODE ANN. §36-1-112(a)(1)(A) (Westlaw 2014). 70. ARIZ. REV. STAT. ANN. § 8-106(D) (Westlaw 2014); FLA. STAT. ANN. § 63.082(4)(b)–(c) (Westlaw 2014) (for a child who is not older than 6 months at the time of the Consent); 750 ILL. COMP. STAT. ANN. 50 / 9(A), / 11(a) (Westlaw 2014) (for a Consent signed not less than 72 hours after the child’s birth); MISS. CODE ANN. § 93-17-9 (Westlaw 2014) (for a Consent signed at least 72 hours after the child’s birth); NEV. REV. STAT. ANN. §127.080 (Westlaw 2014); UTAH CODE ANN. §78B-6-126 (Westlaw 2014); W. VA. CODE ANN. §48-22-303(8), -305 (Westlaw 2014).

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V. MICHIGANâ&#x20AC;&#x2122;S NEW LAW: SUPPORT AND OPPOSITION The new laws in Michigan are positive changes for those contemplating adoption. The changes mean greater stability for the prospective adoptive parent, the child, and the birthparent. The changes also represent less uncertainty and, consequently, less anxiety because those involved in the adoption can have greater confidence in what the next steps will entail. Prospective adoptive parents must overcome many obstacles, including the escalating cost of the adoption, the intrusion of undergoing a preplacement assessment, the wait time to be matched with a child, and the anxiety-ridden uncertainty of whether birthparents will change their mind during the temporary placement. Because of these unknowns, adoption appears to be a daunting journey, which deters many people from considering adoption. These changes will help make adoption a more viable option, both practically and emotionally. But the positive outcomes as a result of these changes in the law are not restricted to prospective adoptive families; they apply to the birthparents as well. Now birthparents may focus on healing through the grieving process they will undoubtedly experience. This healing may be attributed, in part, to knowing that their child is with a safe and loving family who will care for that child as their own. Many birthparents and their advocates may oppose the changes to the law. They will argue that the changes will strip and weaken parental rights for those who consider adoption over parenting their child. Birthparents and their advocates may argue that a five-day revocation period and three-day waiting period are simply not enough time to fully appreciate the permanency of their decision at the time they sign the out-of-court Consent. This is especially true if the Consent is obtained near the time of birth while hormones from labor and delivery are wildly out of balance. In short, they may argue, these changes favor prospective adoptive parents and reduce options for birthparents who have so much to lose. Birthparents and their advocates will claim that more needs to be done to protect their rights and that the changes in the law do just the opposite. VII. CONCLUSION Despite potential opposition from Michigan birthparents, these changes in the law are, nonetheless, positive ones. Adoption is not meant to be a temporary situation like foster care. Instead, adoption is

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meant to create a permanent and stable home for a child.71 The changes in Michiganâ&#x20AC;&#x2122;s adoption law support the stability and permanency of adoption. Accordingly, the legal community should welcome and applaud these changes.

71. See CHILD WELFARE INFO. GATEWAY, CONSENT TO ADOPTION, CHILDWELFARE.GOV 4 (Apr. 2013), https://www.childwelfare.gov/systemwide/ laws_policies/statutes/consent.pdf.

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