Rule 3.804.Consent and Release

MCR 3.804 sits at the moment a parent gives up a child. Most of the rule concerns Indian children, where the consent has to clear a heightened set of formalities and can be taken back. The rest of the rule covers two things that apply more broadly: when the consent hearing is held, and what a parent has to be told about child support before signing.

Consent by a parent of an Indian child

Subrule (A) applies in addition to the requirements of MCL 710.29 or MCL 710.44 when a parent of an Indian child intends to voluntarily consent to adoptive placement or to termination of parental rights for the express purpose of adoption under MCL 712B.13. Four requirements follow:

• Both parents. Under subrule (A)(1), both parents must consent, except in stepparent adoptions under MCL 710.23a(4).
• Form and recording. Under subrule (A)(2), the consent must be on a form approved by the State Court Administrative Office, in writing, and recorded before a judge of a court of competent jurisdiction.
• Judicial certificate. The consent must be accompanied by the presiding judge's certificate that the terms and consequences were fully explained in detail and fully understood by the parent, and the court must also certify that the parent understood the explanation in English or that it was interpreted into a language the parent understood.
• Contents and direct placements. Under subrules (A)(3) and (A)(4), the consent must contain the information prescribed by MCL 712B.13(2), and in a direct placement as defined in MCL 710.22(o) it must be accompanied by a verified statement complying with MCL 712B.13(6).

Subrule (A)(2) also fixes the earliest valid date. Any consent given before, or within 10 days after, the birth of the Indian child is not valid.

The consent hearing

Under subrule (B)(1), the consent hearing required by MCL 710.44(1) must be promptly scheduled after the court examines and approves the report of the investigation or foster family study filed under MCL 710.46. If an interested party has requested a consent hearing, it must be held within 7 days of the filing of that report or study.

Subrule (B)(2) requires a consent hearing involving an Indian child under MCL 712B.13 to be held in conjunction with either a consent to adopt under MCL 710.44 or a release under MCL 710.29, with notice to the parties prescribed in MCR 3.800(B) in compliance with MCR 3.802(A)(3). Subrule (B)(3) bars the use of videoconferencing technology for a consent hearing under that subrule involving an Indian child under MCL 712B.13.

Notice about child support

Subrules (C)(1) and (C)(2) require the same disclosure before a release and before a consent: as part of the explanation of the parent's legal rights, the parent is told that the support obligation continues until a court modifies or terminates it, an order of adoption is entered, or the child is emancipated by operation of law. Subrule (C)(3) then limits the consequences of getting this wrong. Failure to give the notice does not affect the obligation imposed by law and does not establish a remedy or cause of action on behalf of the parent.

Withdrawing consent

Subrule (D) gives a parent who executes a consent under MCL 712B.13 the right to withdraw it at any time before entry of a final order of adoption, by filing a written demand requesting the return of the child. Once the demand is filed, the court shall order the return of the child. The withdrawal reaches back through the related documents: it also withdraws a release executed under MCL 710.29 or a consent to adopt executed under MCL 710.44.