Adoption Blog
Paw Paw Adoption Law Blog

Court Determination

Posted January 25, 2019

On the filing of an adoption petition, MCL 710.46(1) requires the court to direct an employee or agent of a child placing agency, the department, or the court, to conduct a full investigation. If a motion regarding withheld consent is filed with the adoption petition, the court may waive or modify the full investigation of the petition. MCL 710.45(6).

“The court shall decide the motion regarding withheld consent within 91 days after the filing of the motion unless good cause is shown.” MCL 710.45(6). If the court is withholding consent, the adoptive parent’s motion must be heard by a visiting judge. MCL 710.45(9).

“To decide whether a denial of consent to adopt was arbitrary and capricious, a trial court initially focuses at the § 45 hearing on the reasons for withholding consent to the adoption. ‘It is the absence of any good reason to withhold consent, rather than the presence of good reasons to grant it, that indicates that the decision maker has acted arbitrarily and capriciously.’” In re ASF, 311 Mich App 420, 429-430 (2015), quoting In re Keast, 278 Mich App 415, 425 (2008).

On review of the decision to withhold consent, “the trial court must make findings of fact and conclusions of law as required by MCR 2.517.” See In re ASF, 311 Mich App at 432. “The fact that the petitioners disagree with the trial court’s findings regarding the conflicting evidence does not render the trial court’s findings inadequate under MCR 2.517.” In re ASF, 311 Mich App at 432-433 (finding that “the trial court applied the correct legal standard, and its findings were sufficient to satisfy MCR 2.517” where “the trial court clearly identified the superintendent’s primary reasons for denial: the petitioner‘s vacillation on the adoption, both petitioners’ potential difficulty parenting the child into the future, and the availability of another relative to adopt the child that would allow the child to continue a relationship with both petitioners as the child’s grandparents, and while the trial court’s explanation was relatively concise, the trial court was plainly aware of the issues involved and its ‘brief, definite, and pertinent findings and conclusions’ regarding these issues were sufficient ‘without ‘overelaboration of detail or particularization of facts. MCR 2.517(A)(2).”)

 

Terminating Parental Rights

Posted December 7, 2018

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

  • The Adoption Code; or
  • The Juvenile Code.

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

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

A legal father’s parental rights may only be involuntarily terminated under a stepparent adoption pursuant to the Adoption Code or during child protective proceedings pursuant to the Juvenile Code. MCL 710.51(6); MCR 3.903(C)(10).

Involuntarily terminating a putative father’s parental rights under the Adoption Code will depend on whether the putative father is an interested or uninterested parent. See MCL 710.37, MCL 710.39, and MCL 710.51(6).

Under the Juvenile Code, a putative father is not permitted to participate in child protective proceedings where a legal father exists. However, if the court determines that a child has no legal father, the court may take the necessary steps to determine the child’s putative father and establish paternity. See Section 3.6.

Atkinson v Atkinson, 160 Mich App 601, 610611 (1987).

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

 

DNA Testing:

Posted November 22, 2018

Under the Paternity Act, on its own motion or pursuant to a party’s request, a court must order a mother, child, and alleged father to submit to genetic testing. MCL 722.714(7); MCL 722.716. When a verified complaint is filed in accordance with the Paternity Act, neither a search warrant nor an evidentiary hearing is required prior to the court ordering blood tests. Under the Revocation of Paternity Act, MCL 722.1443(5) requires the court to order the parties to an action or motion under the Revocation of Paternity Act, MCL 722.1431 et seq., to participate in and pay for blood or tissue typing or DNA identification profiling to assist the court in making a determination under the Revocation of

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

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

 

Can an Acknowledgment of Parentage be Revoked?

Posted October 18, 2018

Unless an acknowledgment of parentage has been properly revoked, an order of filiation under the Paternity Act may not be entered even though DNA evidence has determined that a man other than the man who signed the acknowledgment of parentage is the child’s biological parent. The child’s mother, the acknowledged father, an alleged father, or a prosecuting attorney may file an action for revocation of an acknowledgment of parentage.”28 MCL 722.1437(1).

An action for revocation may be filed, even if the acknowledgment was signed prior to the Acknowledgment of Parentage Act’s effective date of June 1, 1997. MCL 722.1012. However, an action for revocation may not be filed if the child is under the court jurisdiction under .MCL 712A.1 to MCL 712A.32, and a petition has been filed to terminate the parental rights to the child, unless the court having jurisdiction under MCL 712A.1 to MCL 712A.32, first finds that allowing an action under MCL 722.1437 would be in the best interests of the child.

Whether an action for revocation under MCL 722.1437 is brought by a complaint in an original action or by a motion in an existing action, the prosecuting attorney, an attorney appointed by the county, or an attorney appointed by the court is not required to represent any party regarding the action for revocation.

If the case is a Title IVD case, the court may appoint an attorney approved by the office of child support to represent this state’s interests with respect to an action for revocation under the Revocation of Paternity Act.

The court may appoint a guardian ad litem to represent the child’s interests with respect to the action. An alleged father may not bring an action under MCL 722.1437 if the child is conceived as the result of acts for which the alleged father was convicted of criminal sexual conduct under MCL 750.520b to MCL 750.520e.

Sinicropi v Mazurek, 273 Mich App 149, 165 (2006).


 


 

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