Michigan’s Safe Delivery of Newborns Law (SDNL); In re Miller; Termination of parental rights as a nonsurrendering parent; MCL 712.17(3)-(5); A timely filed “petition” for custody; MCL 712.10(1); Motion to unseal an adoption file; “Reasonable efforts” to identify, locate, & provide notice of the surrender of the newborn to the nonsurrendering parent; MCL 712.7

Concluding that petitioner’s complaint for divorce, which sought custody of the then-unborn child (Doe), constituted a timely filed petition for custody under MCL 712.10(1), the court held that the trial court erred in terminating his parental rights as a nonsurrendering parent under the SDNL. It also found that further proceedings were warranted as to his motion to unseal the adoption file, concluding MCL 712.7(f) “does not indicate that publication of notice of surrender satisfies an agency’s duty to make reasonable efforts to identify, locate, and provide notice to a nonsurrendering parent.” Petitioner filed the complaint in Ottawa County the day before his then-wife (K), unbeknownst to him, gave birth to Doe. K surrendered Doe at the hospital under the SDNL, declining to give any information about the father’s identity, although she indicated she was married. The hospital placed Doe with respondent-nonprofit agency. A notice was published in a newspaper simply “addressed, generically, to the birth mother and father of ‘a newborn baby, born on’” 8/9/18 at the hospital. The trial court terminated both parents’ parental rights, and later granted the prospective parents’ adoption petition. In between, “petitioner issued a third-party subpoena to respondent as part of the ongoing Ottawa court proceeding, requesting” records on Doe, specifying the date of birth and the hospital, after obtaining information from K in discovery. In ruling that the divorce complaint constituted a timely petition for custody, the court noted that petitioner clearly “sought to have the Ottawa court determine the issue of custody” and that nothing in MCL 712.10(1)’s plain language “precludes the filing of a petition for custody by a nonsurrendering parent before a notice of surrender is published, or sets any time limit on such an advance filing.” Because he properly and timely filed a petition for custody, respondent’s petition to terminate his parental rights “was filed in violation of MCL 712.17(3), and the Kalamazoo court’s subsequent entry of a termination order was in violation of MCL 712.17(5). This was plain error affecting substantial rights.” The court further found that, based on the record, respondent’s efforts to provide notice here appeared “to have fallen woefully short of what is ‘reasonable.’” Vacated, reversed, and remanded.