Parents have a legal duty to care for and protect their children. However, very young parents might be frightened or overwhelmed by the responsibility and may contemplate abandoning a newborn before anyone detects the connection. If the pregnancy was secret, then the chances of a young mother abandoning the child to a dangerous situation may be very high. To protect against this loss of life, Michigan has a safe law that permits parents to abandon an unharmed newborn baby at designated locations without legal liability.
Parents may surrender a newborn child not more than 72 hours old to a emergency services provider. MCL 712.1(2)(k). An “emergency service provider” include a uniformed and identifiable employee or contractor of a fire department, hospital or police station when the individual is inside the premises and on duty. MCL 712.1(2)(f). This definition also includes a paramedic or emergency medical technician when either of those individuals is responding to a 9-1-1 emergency call. “The emergency service provider shall, without a court order, immediately accept the newborn, taking the newborn into temporary protective custody”. MCL 712.3(1). The emergency service provider also shall make a reasonable effort to do ALL of the following:
- “Take action necessary to protect the physical health and safety of the newborn.” MCL 712.3(1)(a).
- “Inform the parent that by surrendering the newborn, the parent is releasing the newborn to a child placing agency to be placed for adoption.” MCL 712.3(1)(b).
- “Inform the parent that the parent has 28 days to petition the court to regain custody of the newborn.” MCL 712.3(1)(c).
- “Provide the parent with written material approved by or produced by the department that includes, but is not limited to, all of the following statements:”
- “By surrendering the newborn, the parent is releasing the newborn to a child placing agency to be placed for adoption.” MCL 712.3(1)(d)(i).
- “The parent has 28 days after surrendering the newborn to petition the court to regain custody of the newborn.” MCL 712.3(1)(d)(ii).
- “After the 28-day period to petition for custody elapses, there will be a hearing to determine and terminate parental rights.” MCL 712.3(1)(d)(iii).
- “There will be public notice of this hearing, and the notice will not contain the parent’s name.” MCL 712.3(1)(d)(iv).
- “The parent will not receive personal notice of this hearing.” MCL 712.3(1)(d)(v).
- “Information the parent provides to an emergency service provider will not be made public.” MCL 712.3(1)(d)(vi).
- “A parent can contact the 24 hour, toll-free safe delivery telephone line for more information.” MCL 712.3(1)(d)(vii).
The emergency service provider must make a reasonable attempt to ask the parents to provide their identities and any relevant family or medical information at the time of the drop-off, but the parents are not required to. MCL 712.3(2). After the emergency service provider has accepted the child, they shall refrain from further efforts to contact the parents of the newborn. MCL 712.3(3). The newborn is then taken to a hospital (if not already there) for an examination and determination that the child is under 3 days old. MCL 712.5. The newborn is then transferred to a child placing agency where it will be placed temporarily with a foster family until further court proceedings are completed. MCL 712.6.
A parent who surrenders a newborn in compliance with this provision is immune to prosecution for child abandonment. However, if the physician’s examination reveals the newborn is older than 72 hours, then there will be a complaint made against the parents to child protective services. “A hospital and a child placing agency, and their agents and employees, are immune in a civil action for damages for an act or omission in accepting or transferring a newborn under [this law], except for an act or omission constituting gross negligence or willful or wanton misconduct.” MCL 712.2(4). This protection also applies to employees and contractors of a fire department or police station acting in compliance with the law.
A parent surrendering the child to an emergency service provider only has 28 days to take action if he or she changes his mind. If the parent wants custody, he or she must file a petition in the circuit court for custody in the county where the newborn is located or where the emergency service provider was located (or if neither apply, then where the parent is located). MCL 712.10(1). Unless the birth was witnessed by the emergency service provider, the court will order the parent(s) to submit to DNA testing to determine maternity or paternity. MCL 712.11. If the test reveals the petitioner is not the biological parent, then the case will be dismissed. If the test reveals genetic parentage, then the court shall consider all of the following factors to determine if placement with the parent is in the newborn’s best interest.
- “The love, affection, and other emotional ties existing between the newborn and the parent.” MCL 712.14(2)(a).
- “The parent’s capacity to give the newborn love, affection, and guidance.” MCL 712.14(2)(b).
- “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.” MCL 712.14(2)(c).
- “The permanence, as a family unit, of the existing or proposed custodial home.” MCL 712.14(2)(d).
- “The parent’s moral fitness.” MCL 712.14(2)(e).
- “The parent’s mental and physical health.” MCL 712.14(2)(f).
- “Whether the parent has a history of domestic violence.” MCL 712.14(2)(g).
- “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.” MCL 712.14(2)(h).
- “Any other factor considered by the court to be relevant to the determination of the newborn’s best interest.” MCL 712.14(2)(i).
After evaluating the newborn’s best interests, the court can issue an order that does one of the following:
- “Grants legal or physical custody, or both, of the newborn to the parent and either retains or relinquishes jurisdiction.” MCL 712.15(a).
- “Determines that the best interests of the newborn are not served by granting custody to the petitioner parent and orders the child placing agency to petition the court for jurisdiction.” MCL 712.15(b).
- “Dismisses the petition.” MCL 712.15(c).
If the newborn is surrendered and no parent files a petition for custody within 28 days, then the parents are presumed to have knowingly released their parental rights. MCL 712.17(1). The child placing agency with authority to place the child must file a petition with the court to determine whether the release shall be accepted and whether the court shall enter an order terminating the rights of the surrendering parent. MCL 712.17(2). The court must schedule a hearing within 14 days of the petition and determine by a preponderance of the evidence whether:
- The surrendering parent knowingly released the newborn and, therefore, all parental rights to that child.
- The child placing agency made reasonable efforts to identify, locate and provide notice to the parent, if any, that did not surrender the newborn.
If these conditions are satisfied, the court will enter an order terminating parental rights and the child will be free for adoption. MCL 712.17(4).
A parent that does not follow these procedures and abandons a child is subject to prosecution for the following crimes in Michigan:
- A person is guilty of child abuse in the second degree if the person’s “omission causes serious physical harm or serious mental harm to a child”, the person’s “reckless act causes serious physical harm or serious mental harm to a child”, or the person “knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child regardless of whether harm results.” MCL 750.136b(3). Child abuse in the second degree is a felony punishable by 10 years in prison for a first offense or 20 years in prison for a conviction following a prior offense. MCL 750.136b(4).
- A person is guilty of child abuse in the fourth degree if the person’s “omission or reckless act causes physical harm to a child” or the person “knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a child, regardless of whether physical harm results.” MCL 750.136b(7). Child abuse in the fourth degree is a misdemeanor punishable by up to one year in jail for a first offense, but becomes a felony punishable by up to 2 years in prison for a second or subsequent offense. MCL 750.136b(8).
- “A person who deserts and abandons his or her children under 17 years of age, without providing necessary and proper shelter, food, care, and clothing for them, and a person who being of sufficient ability fails, neglects, or refuses to provide necessary and proper shelter, food, care, and clothing for his or her children under 17 years of age, is guilty of a felony, punishable by imprisonment in a state correctional facility for not less than 1 year and not more than 3 years, or by imprisonment in the county jail for not less than 3 months and not more than 1 year.” MCL 750.161.
- “If any unmarried woman conceals the death of any issue of her body, so that it may not be known whether such issue was born alive or not, or whether it was not murdered, she shall be punished by a fine not exceeding $1,000.00 or imprisonment for not more than 1 year.” MCL 750.150.
If you have questions about Michigan’s Safe Delivery of Newborns Law, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.