The Michigan Supreme Court has directed that, when finalizing adoptions, trial courts must use specific language on the record, indicating that no appeal is pending in the underlying termination of parental rights case.

Pursuant to an order denying leave to appeal in In re Jackson (Docket No. 152404), the Supreme Court instructed that, based on In re JK, 468 Mich 202 (2003), any trial court finalizing an adoption must include the following on the record:

“I have determined that any appeal of the decision to terminate parental rights has reached disposition, that no appeal, application for leave to appeal, or motion for rehearing or reconsideration is pending, and that the time for all appellate proceedings in this matter has expired.”

As a result of the Supreme Court’s directive, the State Court Administrative Office has already revised forms PCA 321, PCA 321a, and PCA 321b to reflect the new requirement.

In Jackson (Docket Nos. 325838 and 325839), the Court of Appeals ruled that the parental rights of the respondent-father and respondent-mother were properly terminated by the Ingham County Circuit Court and the trial court did not err in finding that termination of rights was in the child’s best interests.

On September 10, 2015, the appeals court denied a motion for reconsideration. On that same day, the Ingham County Circuit Court finalized the child’s adoption.

Pursuant to MCR 7.215(F)(1)(a), unless otherwise ordered by the Court of Appeals or the Supreme Court, or provided for in the court rules, a Court of Appeals judgment “is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.” The Ingham County Circuit Court violated this rule by forging ahead with the adoption before the Court of Appeals judgment was final.

Further, MCL 710.56(2) says that, if an appeal of right from an order terminating parental rights has been filed, the trial court “shall not” order an adoption until one of the following occurs:

• the petition for rehearing is granted and, at the rehearing, the order terminating parental rights is not modified or set aside, and the period for appeal as of right to the Court of Appeals has expired without an appeal being filed.

• the petition for rehearing is denied and the period for appeal as of right to the Court of Appeals has expired without an appeal being filed.

• the Court of Appeals affirms the termination of parental rights order.

 On October 6, 2015, the respondent-father timely filed an application for leave to appeal with the Supreme Court. However, appellate counsel did not discover that the trial court had finalized the adoption until after the application was filed. Upon learning this information, appellate counsel immediately notified the Supreme Court clerk.

After the Supreme Court was informed of the adoption, it issued the order declaring that In re JK had been violated and instructing the trial courts to make certain findings on the record when finalizing adoptions, in order to prevent this type of procedural mistake from again happening.

Notably, Justice Bridget M. McCormack concurred with the decision to deny leave to appeal in Jackson, but expressed “reservations” about relying on MCL 712A.19b(3)(l) to terminate parental rights. That statute says a court may terminate rights to a child if clear and convincing evidence show that the parent’s rights to another child were also terminated in a prior proceeding. In Jackson, a court had previously terminated the respondent-father’s parental rights to another child.

According to Justice McCormack, MCL 712A.19b(3)(l) raises “significant constitutional questions” because it creates a presumption that a parent currently before the court is unfit. “When someone is accused of a crime, due process does not permit the state to put forth evidence of a prior conviction as sufficient proof to convict him or her of the new charge,” she said. “I do not see why similar process is not due a parent in jeopardy of losing the constitutional right to control the care and custody of his or her children.”