8.14Placement of Child Pursuant to Safe Delivery of Newborns Law

The Safe Delivery of Newborns Law (SDNL) permits a parent to leave a newborn with an emergency provider¹ without expressing an intent to return for the newborn. See MCL 712.1(2)(n) (defining surrender). The SDNL, MCL 712.1 et seq., governs the procedures for surrendering a newborn. According to MCL 712.1(2)(k), a newborn is “a child who a physician reasonably believes to be not more than 72 hours old.” The SDNL does not define the terms parent, surrendering parent, or nonsurrendering parent. In re Miller, 322 Mich App 497, 503 (2018).

If a parent surrenders a child who may be a newborn to an emergency service provider, the emergency service provider must assume the child is a newborn and immediately take the newborn into temporary protective custody. MCL 712.3(1). An emergency service provider that is not a hospital that takes a newborn into temporary protective custody must transfer the newborn to a hospital. MCL 712.5(1).

Note: Although MCL 722.623 requires that suspected child abuse or child neglect be reported,² the reporting requirement does not apply to a newborn surrendered to an emergency service provider. MCL 712.2(2).   

A hospital must accept an emergency service provider’s transfer of a newborn. MCL 712.5(1). A hospital that takes a newborn into temporary protective custody must have the newborn examined by a physician. MCL 712.5(2). If the examining physician determines that there is reason to suspect the newborn experienced neglect or abuse (other than the parent surrendering the child to an emergency service provider), or if the examining physician believes the child is not a newborn, the physician must immediately report the suspected child abuse to the DHHS. MCL 712.5(2). However, if the examining physician does not suspect child abuse, the hospital must notify a child placing agency that it has taken a newborn into temporary protective custody. MCL 712.5(3). If the newborn is surrendered³ under the SDNL, the hospital is required to report the live birth “in the same manner as provided in [MCL 333.2822(1)(a)], except that the parents shall be listed as ‘unknown’ and the newborn shall be listed as ‘baby doe’.” MCL 333.2822(1)(c). See also In re Miller, 322 Mich App 497, 501 n 1 (2018) (noting that “a birth certificate for a newborn surrendered under the SDNL must list the parents as ‘“unknown”’ and the newborn as ‘“Baby Doe”’”).

Once the hospital informs a child placing agency that it has taken a newborn into temporary protective custody, MCL 712.7 requires a child placing agency to do all of the following:

(1) Immediately assume the care, control, and temporary protective custody of the newborn.

(2) Immediately meet with a parent, if the parent’s identity is known and he or she is willing.

(3) Temporarily place the newborn with a prospective adoptive parent who has an approved preplacement assessment or a licensed foster parent if a petition for custody has been filed. See Section 8.14(B) for a detailed discussion of a petition for custody.

(4) Unless the emergency service provider witnessed the birth, immediately request law enforcement assistance to investigate and determine whether the newborn is a missing child.

(5) Within 48 hours of transferring physical custody to a prospective adoptive parent, petition the court in the county in which the prospective adoptive parent resides to provide authority to place the newborn and provide care for the newborn.⁴ The petition must include all of the following:

(a) The transfer date of physical custody.

(b) The emergency service provider’s name and address.

(c) Any written or oral information the surrendering parent provided by and to the emergency service provider.

Note: The emergency service provider that originally accepted the newborn must provide this information to the child placing agency. MCL 712.7(e)(iii).

(6) Make reasonable efforts to identify, locate, and provide notice of the newborn’s surrender to the nonsurrendering parent within 28 days of receiving notice from the hospital that it had taken temporary protective custody of the newborn.

(7) File a written report with the court that issued the order placing the newborn, indicating the efforts made to identify and locate the nonsurrendering parent and the result of those efforts.⁵ 

Note: If the identity and address of the nonsurrendering parent are unknown, the child placing agency must provide notice of the newborn’s surrender by publication in a newspaper of general circulation in the county where the newborn was surrendered. MCL 712.7(f).

A.Immunity From Civil Damages

Except for an act or omission constituting gross negligence⁶ or willful or wanton misconduct, a hospital and a child placing agency, and their agents or employees, are immune in a civil action for damages for an act or omission in accepting or transferring a newborn. MCL 712.2(4).

Note: To the extent the Governmental Liability for Negligence Act, MCL 691.1401 et seq., does not protect a fire department’s or police station’s employee or contractor, MCL 712.2(4) extends the same immunity to them that a hospital’s or child placing agency’s employee or agent receives.

B.Petition for Custody

1.Petition Requirements

A parent who surrenders custody of a newborn to an emergency service provider may file a petition with the court for custody of the newborn within 28 days after the newborn was surrendered. MCL 712.10(1).

A nonsurrendering parent, claiming to be the newborn’s parent and wanting custody of the newborn, must file a petition for custody not more than 28 days after notice of surrender is published. MCL 712.10(1). See Section 8.14(C).

Note: A nonsurrendering parent whose petition for custody was included in a complaint for divorce filed before the child was born has not timely filed a petition for custody of the surrendered newborn as is required by MCL 712.10(1). In re Baby Boy Doe, ___ Mich ___, ___ (2022). The statutory language used in MCL 712.10 demonstrates the Legislature’s intent that a petition for custody of a newborn surrendered under the SDNL be made after the child is born; a petition for custody filed before a child is born does not constitute the petition for custody contemplated by MCL 712.10(1). Baby Boy Doe, ___ Mich at ___.

A parent’s petition for custody⁷ must be filed in one of the following counties:

(1) The county where the newborn is located.

(2) If the newborn’s location is unknown, the county where the emergency service provider to whom the newborn was surrendered is located, if known.

(3) If the newborn or the emergency service provider to whom the newborn was surrendered cannot be located, the county where the parent is located. MCL 712.10(1).

If the petition for custody is filed in a court that did not issue the order placing the newborn, it must transfer the proceedings to that court. MCL 712.10(2).

2.Hearing to Determine Maternity or Paternity

Within seven days of a surrendering or nonsurrendering parent’s petition for custody and before holding a custody hearing on the petition, the court must conduct a hearing to determine the newborn’s biological parents. MCL 712.10(3).

If a petition for custody is filed, the court must order the newborn and each party claiming paternity or maternity to submit to “blood or tissue typing determinations or DNA identification profiling[.]”⁸ MCL 712.11(1)-(2).

Note: A party claiming maternity need not submit to a DNA identification profiling or blood or tissue typing when an emergency service provider witnesses the birth and “sufficient documentation exists to support maternity[.]” MCL 712.11(2).

The court may order the petitioner to pay all or part of the cost of the paternity or maternity testing. MCL 712.11(4).

Maternity or paternity is presumed when the test results show a probability of 99 percent or higher and the DNA identification profile and summary report are admissible. MCL 712.11(3). A petitioner may move for summary disposition on the issue of maternity or paternity.⁹ Id. 

If the DNA identification profile and summary report are admissible and establish that the petitioner is not the newborn’s parent, the court must dismiss the petition for custody. MCL 712.11(5).

3.Hearing to Determine Custody

After a petition for custody is filed and the court enters an order determining the newborn’s biological parents, the court must hold a hearing to determine custody. See MCL 712.10(3).

The court must determine custody based on the newborn’s best interests. MCL 712.14(1). With the goal of achieving permanence for the newborn at the earliest possible date, the court must consider, evaluate, and make a finding on each of the following factors:

“(a) The love, affection, and other emotional ties existing between the newborn and the parent.

(b) The parent’s capacity to give the newborn love, affection, and guidance.

(c) The parent’s capacity and disposition to provide the newborn with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The permanence, as a family unit, of the existing or proposed custodial home.

(e) The parent’s moral fitness.

(f) The parent’s mental and physical health.

(g) Whether the parent has a history of domestic violence [as defined in MCL 400.1501(d)(i)-(iv)].

[Note: MCL 400.1501(d) defines domestic violence as “the occurrence of any of the following acts by an individual that is not an act of self-defense:

“(i) Causing or attempting to cause physical or mental harm to a family or household member.

(ii) Placing a family or household member in fear of physical or mental harm.

(iii) Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.

(iv) Engaging in activity toward a family or household member that would cause a reasonable individual to feel terrorized, frightened, intimidated, threatened, harassed, or molested.”]

(h) If the parent is not the parent who surrendered the newborn, the opportunity the parent had to provide appropriate care and custody of the newborn before the newborn’s birth or surrender.

(i) Any other factor considered by the court to be relevant to the determination of the newborn’s best interest.” MCL 712.14(2).

After a review of the newborn’s best interest factors, the court may issue an order¹⁰ that does one of the following:

(1) Grants the parent legal or physical custody, or both, and:

(a) The court retains jurisdiction; or

(b) The court relinquishes jurisdiction.

(2) Orders the child placing agency to petition the court for jurisdiction under MCL 712A.2(b) if the court determines that granting custody to the petitioning parent is not in the newborn’s best interest.

(3) Dismisses the petition. MCL 712.15.

C.No Parental Request for Custody

A parent who surrenders a newborn and does not file a petition for custody within 28 days of the surrender is presumed to have knowingly released his or her parental rights to the newborn. MCL 712.10(1); MCL 712.17(1). Once the 28 days have expired, the child placing agency with authority to place the newborn must immediately file a petition with the court to determine whether the release must be accepted and whether the court must enter an order terminating the surrendering parent’s parental rights.¹¹ MCL 712.17(2).

If a nonsurrendering parent fails to file a petition for custody of the newborn within 28 days of notice of the surrender was published, the child placing agency with authority to place the newborn must immediately petition the court to determine whether the court must enter an order terminating the nonsurrendering parent’s parental rights. MCL 712.17(3).

The court must schedule a hearing on the petition from the child placing agency within 14 days of receiving the child placing agency’s petition. MCL 712.17(4). At the hearing, the child placing agency must present evidence that demonstrates that the surrendering parent released the newborn and that demonstrates the efforts made by the child placing agency to identify, locate, and provide notice to the nonsurrendering parent. Id. The court must terminate the surrendering and nonsurrendering parents’ parental rights¹² if it finds by a preponderance of the evidence that the child placing agency demonstrated all of the following:

(1) The surrendering parent knowingly released his or her rights to the newborn.

(2) Reasonable efforts were made to locate the nonsurrendering parent.

(3) A custody action had not been filed. MCL 712.17(5). 

The SDNL applies to the mother and the legal father of the surrendered child in its termination proceedings. In re Miller, 322 Mich App 497, 504, 506-507 (2018) (reversing the trial court’s order denying a child placement agency’s petitions to terminate the parental rights of the surrendering parent and the nonsurrendering parent based on the conclusion that the SDNL only applied to the mother of the surrendered children but not to the legal father). “‘[A] child may have only one legal father,’ so the legal father is presumed to be the mother’s husband until that presumption is defeated, [and the SDNL] tests this presumption through DNA testing of ‘each party claiming paternity’ and attempting to gain custody of the child, leaving only one as the true legal father.” Id. at 505-506 (explaining that “[i]f the trial court terminates the parental rights of the nonsurrendering parent and the husband of the surrendering mother later seeks to assert his parental rights, he would have to demonstrate that he was not the biological father to show that the order terminating parental rights did not apply to him[; h]owever, in doing so, he would be defeating the presumption of paternity, and he would be without parental rights to assert to disrupt an adoption”) (citations omitted).

D.Closed Hearings and Confidentiality of Records

All hearings held under the SDNL are closed to the public. MCL 712.2a(1).

Records of the proceedings and all of the child placing agency’s records created under the SDNL are confidential. MCL 712.2a(1)-(2).

Note: Records of the proceedings are available to parties to the proceedings. MCL 712.2a(1).

Any individual who discloses information made confidential under MCL 712.2a(1) or MCL 712.2a(2) without a court order or specific authorization under federal or state law is civilly liable for damages proximately caused by the disclosure and is guilty of a misdemeanor. MCL 712.2a(3).

E.Applicability of Other Law

The Child Custody Act or a provision found in another chapter of the Probate Code does not apply to SDNL proceedings unless the SDNL expressly provides otherwise. MCL 712.2(3).

F.Safe Delivery of Newborns Program

The Michigan Department of Community Health (MDCH) and the DHHS operate a safe delivery of newborns program. See MCL 712.20. For additional information on the safe delivery of newborns program, see http://www.michigan.gov/dhs/0,1607,7-124-5452_7124_7200---,00.html.