17.8Voluntary Termination of Parental Rights

Notwithstanding MCR 3.977(I)(3),¹ which states that “[a]n order terminating parental rights under the Juvenile Code may not be entered unless the court makes findings of fact, states its conclusions of law, and includes the statutory basis for the order,” a parent may voluntarily consent to termination of his or her parental rights² without the court announcing a statutory basis for termination.³ In re Toler, 193 Mich App 474, 477 (1992). In Toler, the trial court failed to expressly state a statutory basis for termination. Id. at 476-477. The Court of Appeals stated that the respondent-father, who consented to the termination of their parental rights, “conceded in effect that the court would be able to find statutory authorization for the termination and that termination would be in the best interest of the children.” Id. at 478.

In voluntarily terminating parental rights during a child protective proceeding, a parent may do one of the following:

(1) Execute a release and termination of parental rights under the Adoption Code.⁴ Note that a release requires both parents’ parental rights over a child to be terminated.^{5, 6} See MCL 710.22(u); MCL 710.28(1)(a); MCL 710.29(8).

(2) Consent to the termination of parental rights under the Juvenile Code. Toler, 193 Mich App at 477. Although required to establish jurisdiction, the court is not required to state a statutory basis for the termination of parental rights. Id.

In cases where a respondent consents to termination of parental rights, Toler held that a trial court’s failure to explicitly state a statutory basis in an order terminating a respondent’s parental rights did not invalidate the order. Toler, 193 Mich App at 476-477. Toler does not speak to whether the trial court there made findings of fact and conclusions of law as required by MCR 3.977(I)(3),⁷ but Toler does note that even though the court failed to state a statutory basis for termination, the trial court relied on the parties’ agreement calling for termination of the respondent-father’s parental rights, a condition to which the respondent-father agreed. Toler, 193 Mich App at 476-477.

In cases that terminate parental rights under the Juvenile Code, the court must also determine that termination is in a child’s best interests. MCR 3.977(E)(4); MCR 3.977(F)(1)(c); MCR 3.977(H)(3)(b). See also Section 17.9.

A voluntary release of parental rights for purposes of adoption must comply with the Adoption Code, and the court’s failure to properly execute a release and termination of parental rights under the Adoption Code will invalidate a termination order. In re Buckingham, 141 Mich App 828, 836-837 (1985) (“[t]he absence of a duly executed release by respondent[-]mother, the failure of the [trial] court to find that the release would be in the best interests of the children, and the [trial] court's failure to distinguish the Adoption Code from the [J]uvenile [C]ode mandate[d] a finding that the release of respondent[-]mother was legally inadequate and therefore void[;] [t]hus, the order terminating respondent[-]mother's parental rights pursuant to the invalid release [was] reversed[]”).

Once the court properly executes a release and termination of parental rights under the Adoption Code, it cannot terminate those same parental rights under the Juvenile Code. In re Jones, 286 Mich App 126, 128 (2009). In In re Jones, supra at 127-128, the Department of Health and Human Services (DHHS) sought involuntary termination of the parents’ parental rights to their daughter under the Juvenile Code after both parents, in lieu of child protective proceedings, had already voluntarily released their parental rights under the Adoption Code. The court terminated the parents’ parental rights pursuant to the Adoption Code and released the daughter to the DHHS. Id. Following the termination, the court attempted to terminate the respondents’ parental rights under the Juvenile Code. Id. at 128. On appeal, the Court of Appeals held that the court clearly erred when it attempted to terminate parental rights to the daughter under the Juvenile Code after it properly executed a release and termination of parental rights under the Adoption Code. Id. Specifically, the Court of Appeals found:

“That attempted termination under the [J]uvenile [C]ode was without effect and was clearly improper, because the [respondent-]parents no longer possessed any parental rights that could be terminated. Their parental rights had previously been terminated under the Adoption Code, a completely separate statutory proceeding from a termination under the [J]uvenile [C]ode. Once a parent voluntarily releases his or her child to the [DHHS] or to a child placement agency under the Adoption Code, and the release is accepted by the court, and the court enters an order terminating that parent’s rights to the child, that parent no longer has any parental rights subject to termination under the [J]uvenile [C]ode.” In re Jones, 286 Mich App at 128.