2.2 Release of Parental Rights
A release is “a document in which all parental rights over a specific child are voluntarily relinquished to the department or to a child placing agency .” MCL 710.22(u) . It is important to note that the release may only be given to the department or a child placing agency. See MCL 710.28(5) . A parent may not release his or her parental rights to the court or to a third party but may consent to adoption by a third party. See Section 2.6 for a detailed discussion on consent adoptions.
If the child is or the court has reason to believe the child is an Indian child , ICWA and MIFPA provide additional requirements for the execution of a release. See MCL 712B.13(1) ; MCL 712B.27(1) . For a detailed discussion on releasing an Indian child, see Section 11.15(B) .
For specific provisions related to out-of-court releases, see Section 2.3 .
For checklists on adoption releases, see the Michigan Judicial Institute’s Adoption Proceedings Quick Reference Materials on Releases . For checklists on adoption releases involving an Indian child, see the Michigan Judicial Institute’s Adoption Proceedings Quick Reference Materials on Indian Child .
A. Interested Parties
In a release proceeding, the interested parties are:
(1) The adoptee (if over the age of five);
(2) The department or child placing agency to which the adoptee is being released;
(3) The person executing the release; and
(4) “If the court knows or has reason to know the adoptee is an Indian child ,” in addition to the parties listed above, the Indian child’s tribe and Indian custodian (if applicable), or where the Indian child’s parent, Indian custodian, or tribe is unknown, the Secretary of the Interior. 1 MCL 710.24a(3) ; MCR 3.800(B)(1)-(2) .
In the interest of justice, the court may also require other parties to be served. MCL 710.24a(6) .
If a party to the release is incarcerated, see Section 2.12 for information regarding notice to an incarcerated party.
B. Persons Authorized to Execute a Release
“Subject to [ MCL 710.28 ] and [ MCL 710.29 ], a release shall be executed” by the persons or entities listed in MCL 710.28(1) . MCL 710.28(1) .
Each parent or the surviving parent if one is deceased may execute a release of his or her parental rights, unless that parent’s parental rights were already terminated or a guardian was appointed for the child or parent. 2 MCL 710.28(1)(a) .
Prior to arranging a parent’s release, the department must inform the parent what child placing agencies serve the county, and at the parent’s request, must refer the parent to one of the agencies. MCL 710.28(6) .
If the parent is a minor and has not been emancipated, then the minor parent’s release must also be accompanied by a release from his or her parent, guardian, or guardian ad litem. MCL 710.28(2) .
Before a release is executed, the adoption attorney or child placing agency providing adoption services must provide an unrepresented minor parent an opportunity to meet with an attorney, unrelated to the adoption proceedings, to discuss the legal ramifications. MCL 710.55a(2) .
b. Court-Appointed Counsel
An adult parent is not entitled to court-appointed counsel for a voluntary release of parental rights. See In re Blankenship , 165 Mich App 706, 713 (1988); In re Jackson (Kenneth), 115 Mich App 40, 52 (1982). See also In re Koroly , 145 Mich App 79, 88 (1985) (putative father was not entitled to counsel where he voluntarily signed a disclaimer of paternity and a denial of interest in custody).
2. Guardian of Child or Parent
An appointed guardian of the child or parent may execute a release of a child to the department or a child placing agency if the court gives the guardian authorization to execute the release. 3 MCL 710.28(1)(d)-(e), (3)-(5) . If a parent’s guardian executes a release, the release has the same effect as if the parent executed the release. MCL 710.28(4) .
To obtain authorization to execute a release, the guardian must petition the court where he or she received the guardianship appointment. 4 See MCL 710.28(3)-(4) . The court may authorize a full guardian or a juvenile guardian to release a child for adoption. See MCL 700.5215(d) . See also MCL 712A.19a(10) (guardian appointed under Juvenile Code when parental rights have not been terminated has all the powers and duties set forth in MCL 700.5215) ; MCL 712A.19c(7) (guardian appointed under Juvenile Code when parental rights have been terminated has all the powers and duties set forth in MCL 700.5215) . However, a limited guardian is prohibited from consenting to the release of a minor ward for adoption. MCL 700.5206(4) .
Committee Tip:
Neither the Adoption Code nor the Michigan Court Rules address procedures for conducting a hearing on a guardian’s motion requesting authority to release a child for adoption. The Advisory Committee recommends that the court consider the purposes of the Adoption Code in considering the motion. See Section 1.1 .
Prior to arranging a guardian’s release, the department must inform the guardian what child placing agencies serve the county, and at the guardian’s request, must refer the guardian to one of the agencies. MCL 710.28(6) .
3. Child Placing Agency
A child placing agency may release a child to the department for adoption purposes 5 and the department must accept the release. MCL 710.28(1)(b) ; MCL 710.28(7) .
A child placing agency’s authority to release a child for adoption is derived from either:
(1) A court order committing the child to that agency; or
(2) A release to that agency by the parents or guardian. MCL 710.28(1)(b)-(c) .
C. Required Documents for Release
1. Parent’s or Guardian’s Verified Statement
A verified statement must be submitted with a parent’s or guardian’s release . 6 MCL 710.29(6) . See Section 10.5 for a detailed discussion of a parent’s or guardian’s verified statement.
2. Itemized Statement of Money Promised or Received
A parent or guardian must indicate in the verified statement that he or she “has not received or been promised any money or anything of value for the release of the child ,” unless it is considered a lawful payment, in which case the parent must file an itemization of the lawful payment with the release. 7 MCL 710.29(6)(c) ; see also MCL 710.54(1)(c) (generally prohibiting compensation for obtaining a release).
3. Other Required Documentation
When applicable, the following documentation must accompany a release :
(1) Proof of termination of parental rights;
(2) Release of parental rights;
(4) Authorization; or
(5) Commitment. See MCL 710.28(9) . See also MCL 710.28(1)(a)-(c) (requiring child placing agency to file proof that parents’ rights were terminated or released).
A guardian must submit proof of his or her guardianship appointment and authorization to execute a release. See MCL 710.28(3)-(4) .
D. Executing a Release
“Except as otherwise provided in [ MCL 710.29(5)-(11) ], [ 8 ] a release shall be by a separate instrument executed before a judge of the court or a juvenile court referee.” 9 MCL 710.29(1) . Alternatively, “the release may be executed and acknowledged before an individual authorized by law to administer oaths” when the release is required from:
• A person in the armed services;
• A person in prison; or
• An authorized representative of the child placing agency that has jurisdiction of the child to be adopted. MCL 710.29(2)-(3) .
If the release is accepted by a judge or referee, “a verbatim record of testimony related to execution of the release shall be made.” MCL 710.29(1) .
If the child is or the court has reason to believe the child is an Indian child , ICWA and MIFPA provide additional requirements. See MCL 712B.13(1) ; MCL 712B.27(1) . For a detailed discussion on releasing an Indian child, see Section 11.15(B) .
1. Steps Required Before Execution of Release
a. Completion of Court-Ordered Investigation
A parent’s or guardian’s release must be not “executed until after the investigation the court considers proper[.]” MCL 710.29(7) . See In re Blankenship , 165 Mich App 706, 714 (1988) (trial court’s questioning of the parties during the release procedure was sufficient to satisfy the investigation requirement of MCL 710.29(7)) .
b. Explanation of Relinquishment of Rights
A parent’s or guardian’s release must not be executed until “after the judge, referee, or other individual authorized in [ MCL 710.29(2) ] has fully explained to the parent or guardian the legal rights of the parent or guardian and the fact that the parent or guardian by virtue of the release voluntarily relinquishes permanently his or her rights to the child [.]” MCL 710.29(7) .
Parental rights to a child include the rights to custody, control, services, earnings, and the right to inherit from the minor. See MCL 722.2 (Status of Minors and Child Support Act); MCL 700.2103(b) (Estates and Protected Individuals Code).
c. Continuation of Support Obligation
“Before executing a release , as part of the explanation of the parent’s legal rights, the parent shall be informed that the obligation to support the child will continue until a court of competent jurisdiction modifies or terminates the obligation, an order of adoption is entered, or the child is emancipated by operation of law.” MCR 3.804(C)(1) . “Failure to provide required notice under [ MCR 3.804(C) ] does not affect the obligation imposed by law or otherwise establish a remedy or cause of action on behalf of the parent.” MCR 3.804(C)(3) .
d. Execution is in Child’s Best Interests
If the child is over the age of five, a parent’s or guardian’s release must be not be executed until after the court determines that execution of the release is in the child’s best interests . MCL 710.29(7) . See In re Buckingham , 141 Mich App 828, 834-835 (1985).
2. Delaying Formal Execution of Mother’s Release
“At the request of the mother, her formal execution of a release or consent shall be delayed until after court determination of the status of the putative father’s request for custody of the child.” MCL 710.31(3) . See Section 2.10(B)(2) for a detailed discussion of putative fathers requesting custody.
3. Foreign Release
“If the release is executed in another state or country, the court having jurisdiction over the adoption proceedings in this state shall determine whether the release was executed in accordance with the laws of that state or country or the laws of this state and shall not proceed unless it finds that the release was so executed.” MCL 710.29(4) .
E. Terminating Parental Rights After Execution of Release
Except as otherwise provided in MCL 710.29(8) , 10 after a parent or guardian executes a release , the court must immediately issue an order terminating that parent’s or guardian’s rights to that child . 11 MCL 710.29(8) .
The court must serve the parent or guardian with a copy of the termination order, an advice of rights, 12 a pamphlet on release of adoption information, and a parent’s consent/denial to the release of identifying information. See MCL 710.27a(4) . See Chapter 9 for a detailed discussion of releasing information.
Note: The court must inform each parent that unless he or she files a statement with the central adoption registry denying the release, there is a presumption of consent to release information specifying the biological parent’s name at the time of parental termination and the biological parent’s current name and address. MCL 710.27a(4) . The court must also explain “the parent’s right to file, update, or revoke the denial at any time[.]” Id .
Once one parent’s or guardian’s rights over the child are released, the other parent’s parental rights must be released or involuntarily terminated in order to commit the child to the department or a child placing agency . See MCL 710.29(8) ; MCL 710.31 . For information on involuntary terminations, see Section 2.10 and Section 2.11 .
If the child is allegedly born out of wedlock and the mother executed the release but a release “of the natural father cannot be obtained, the judge shall hold a hearing as soon as practical to determine whether the child was born out of wedlock, to determine the identity of the father, and to determine or terminate the rights of the father as provided in [ MCL 710.36 , MCL 710.37 , and MCL 710.39 ].” MCL 710.36(1) . For information on identifying the child’s father, including the steps required to determine a putative father , see Chapter 3 .
Once the rights of both parents, the surviving parent, or the guardian are terminated, the court must “issue an order committing the child to the child placing agency or department to which the release was given.” MCL 710.29(8) . If the child is released to the department, the child becomes a state ward. MCL 710.28(8) .
“If the termination of parental rights after release extinguishes all remaining parental rights, the child must be committed to the child placing agency or MDHHS pursuant to MCL 710.29(8) . [ 13 ] . . . When committed pursuant to [ MCL 710.29(8) ] the child is referred to as an Act 296 ward. Where appropriate, the court may authorize foster care funding following release for a youth committed as a 296 ward.” 14 SCAO Memorandum, AU Case-Type Code and Release to Adopt , p 2. “If all parental rights are not extinguished following the release, and the remaining parental rights are terminated in [a neglect and abuse] proceeding pursuant to the juvenile code, MCL 712A.19b , the court may commit the child to the Michigan Children’s Institute (MCI) pursuant to MCL 400.203(1)(a) . [ 15 ] . . . A child committed to MCI pursuant to MCL 400.203(1)(a) is referred to as an Act 220 ward.” AU Case-Type Code and Release to Adopt , supra at p 2. For additional information on foster care funding, see Section 10.2 , and for additional information on terminating parental rights under MCL 712A.19b , see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook .
F. Denying Release
If the court denies the petition for release , the court must state the reasons for the denial on the record or in writing. See MCL 710.63 .
G. Termination of Court’s Jurisdiction
“Entry of an order terminating the rights of both parents under [ MCL 710.28(8) ] terminates the jurisdiction of the circuit court over the child in any divorce or separate maintenance action.” MCL 710.29(10) .
H. Revocation of Release
After voluntarily releasing his or her parental rights,
• a parent or guardian has 21 days to file a motion to set aside the termination order. MCL 710.64(1) . If the parent or guardian fails to petition the court within the 21-day period, he or she does not have a due process right to a rehearing. See In re Myers , 131 Mich App 160, 165-166 (1983).
Note: A court may only grant a rehearing for good cause. MCR 3.806(B) . See Section 7.2 for a detailed discussion on rehearings.
• a parent or guardian has up until a child’s placement to file a petition for revocation of the release if the department or child placing agency to which the child was released joins or acquiesces in the petition for revocation. 16 MCL 710.29(11) .
A release may not be revoked once a child is placed for adoption, unless the placement is under a legal risk adoption. MCL 710.29(11) . See Section 8.5 for a detailed discussion of legal risk adoptions.
1. Court’s Jurisdiction
The court has jurisdiction to entertain a request for revocation of the release unless :
(1) more than 21 days has passed since the parent or guardian voluntarily released his or her parental rights and the department or child placing agency refuses to join or acquiesce in the petition for revocation; or
(2) more than 21 days has passed since the parent or guardian voluntarily released his or her parental rights and the department or child placing agency agrees to join or acquiesce in the petition for revocation but the child has been placed for adoption. See In re Myers , 131 Mich App 160, 163-165 (1983) (finding the trial court lacked jurisdiction where the father filed his petition requesting revocation of his release 22 days after its execution and the child placing agency to which the child was released refused to join or acquiesce in the petition); In re Hole , 102 Mich App 286, 291-292 (1980) (finding the trial court had jurisdiction under MCL 710.64(1) where the mother, without the support of the department to which the child was released, filed her petition requesting revocation of her release 18 days after its execution).
When a release is obtained through fraud, the court has jurisdiction to entertain a request for revocation filed outside the 21-day period. See In re Kozak , 92 Mich App 579, 583 (1979) (noting that “an adoption could be overturned if a case of significant fraud could be made out[,]” and clarifying that “[t]he fraud which justifies equitable interference with a [court] order must be fraud in obtaining the order and not merely constructive, but positive, fraud”), citing In re Leach , 373 Mich 148 (1964) and Beatty v Brooking , 9 Mich App 579, 584 (1968).
2. Court Determination
MCL 710.29(11) and MCL 710.64(1) “grant [the court] discretion on two levels: on whether to hold a hearing and on whether to grant the requested relief.” In re Hole , 102 Mich App 286, 290 n 1 (1980).
Under MCL 710.29(11) , the court may grant a hearing to determine whether the release should be revoked. If the court grants a hearing, it must make a verbatim record of the testimony. MCL 710.29(11) .
Under MCL 710.64(1) , the court may only grant a rehearing for good cause. MCR 3.806(B) . If the court grants a rehearing, it must state the reason for doing so on the record or in writing. MCR 3.806(B) . See Section 7.2 for a detailed discussion on rehearings.
After a parent voluntarily releases his or her child for adoption, the parent does not have “an absolute right to revoke the release for a mere change of heart[.]” In re Blankenship , 165 Mich App 706, 713 (1988). Rather, it is within the court’s discretion to revoke the release based on the child’s best interests . Id . See also In re Burns , 236 Mich App at 293 (“[t]he family court did not abuse its discretion, upon rehearing, when denying petitioner’s request to have the release vacated” where petitioner’s release was knowingly and voluntarily made, and the petitioner sought to vacate the release based on petitioner’s change of heart); In re Koroly , 145 Mich App 79, 87 (1985) (“[t]he court did grant a rehearing; but it properly determined that a petitioner’s [abrupt] change of mind [after signing two denials of paternity] was not a sufficient reason for the court to set aside its previous order[ terminating petitioner’s right to the child]. Although [ MCL 710.64 ] recognizes the possibility that a release may be revoked, the Legislature did not thereby intend to bestow such a remedy as a matter of right on natural parents who have a ‘change of heart’”), citing DeBoer v Child & Family Services of Michigan, Inc. , 76 Mich App 641, 645 (1977).
3. Appealing the Court’s Denial
If a court denies a parent’s or guardian’s petition to revoke a release , the parent or guardian may appeal the decision to the Court of Appeals within 21 days of the denial order. MCL 710.65 . The standard of review for a court’s denial of a petition to revoke a release is an abuse of discretion. In re Burns , 236 Mich App 291, 292 (1999); In re Curran , 196 Mich App 380, 381 (1992).
For additional information on appealing to the Court of Appeals, see Section 7.4 .
1 See Chapter 11 for a detailed discussion of adoption proceedings involving an Indian child.
4 The court cannot appoint a guardian for an adoptee or a parent if the sole purpose of the appointment is to defeat a parent’s status as an interested party. MCL 710.24a(7) . I
8 MCL 710.29(5)-(11) contain information related to out-of-court releases, which is discussed in Section 2.3 .
9 A case code is available “for handling certain adoption-related filings that precede the filing of a petition for adoption and for which a petition for adoption might not be subsequently filed.” SCAO Memorandum, New Case-Type Code for Adoption-Related Matters . For “instruction on how to process a release for purposes of adoption under MCL 710.29 where there is no open adoption case,” see SCAO Memorandum , AU Case-Type Code and Release to Adopt .
10 MCL 710.29(8) provides alternative procedures for out-of-court releases, which are discussed in Section 2.3(D) .
16 For a discussion on revoking an out-of-court release, see Section 2.3(F) .
