Rule 3.802.Manner and Method of Service

MCR 3.802 is the service engine of the adoption subchapter, and it is graduated. The more a document threatens a parent's rights, the harder the rule makes it to serve. Ordinary papers travel by mail or electronically. A notice of intent to release or consent travels by hand. And a petition to terminate rights, when it is served by the second of the two routes the rule allows, is not served until it is received.

Four tiers of service under subrule (A)

• Subrule (A)(1) — a notice of intent to release or consent under MCL 710.34(1) may only be served by personal service by a peace officer or a person authorized by the court. The word is only, and the server has to be one of those two.
• Subrule (A)(2) — notice of a petition to identify a putative father and to determine or terminate his rights, or a petition to terminate parental rights under MCL 710.51(6), goes to the individual or the individual's attorney under MCR 2.107(C)(1) or (2), or under MCR 2.105(A)(2). Under subrule (A)(2)(b), service by that second route is not made for purposes of the subrule until the individual or the attorney receives the notice or petition. That receipt condition is written into subrule (A)(2)(b) alone; it does not attach to service under subrule (A)(2)(a).
• Subrule (A)(3) — the Indian child track, which applies when the court knows or has reason to know an Indian child is the subject of an adoption proceeding and the tribe does not have exclusive jurisdiction as defined in MCR 3.002(6).
• Subrule (A)(4) — except as provided in subrules (B) and (C), all other documents may go by mail under MCR 2.107(C)(3), e-mail under MCR 2.107(C)(4), or electronic service under MCR 1.109(G)(6)(a).

The Indian child notice split

Subrule (A)(3) divides the work between the petitioner and the court. Under subrule (A)(3)(a), the petitioner notifies the parent or Indian custodian and the tribe of the pending adoption proceedings and of their right of intervention, by personal service or by registered mail with return receipt requested and delivery restricted to the addressee, on a form approved by the State Court Administrative Office. If identity or location cannot be determined, that notice goes to the Secretary of the Interior by registered mail with return receipt requested. Under subrule (A)(3)(b), the court gives notice of all other hearings, and that notice may be made by first-class mail.

When the father or parent cannot be found

Subrules (B) and (C) both start the same way: a verified statement under MCR 1.109(D)(3) proving the efforts made. They end differently.

Subrule (B) applies where service cannot be made under subrule (A)(2) because the identity of the father of a child born out of wedlock, or the whereabouts of the identified father, has not been ascertained after diligent inquiry. Once the petitioner files proof of the efforts made, no further service is necessary before the hearing to identify the father and to determine or terminate his rights. At that hearing the court takes evidence on the attempt. If the attempt was reasonable, the court proceeds under MCL 710.37(2). If it was not, the court adjourns under MCL 710.36(7) and either orders a further attempt or directs substituted service, but subrule (B)(2)(b) excludes service by publication.

Under subrule (C), for a petition to terminate parental rights under MCL 710.51(6) where the parent's whereabouts have not been ascertained after diligent inquiry, the court reviews the verified statement. If it finds that service cannot be made because the whereabouts have not been determined after reasonable efforts, it may direct any manner of substituted service, including service by publication. That is the difference between the two provisions: publication is barred under subrule (B)(2)(b) and available under subrule (C).

Publication mechanics

Subrule (D) requires publication in a newspaper as defined by MCR 2.106(F), at least one time 21 days before the hearing, in the county in which the court is located. The notice must name the individual, describe the nature of the hearing, and state that the result may affect that individual's interest, including possible termination of parental rights. A copy is mailed to the last known address unless that address cannot be ascertained after diligent inquiry. Proof of service follows MCR 2.106(G).