HB 4067

HOUSE BILL NO. 4067
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending sections 1, 2, 3, 5, 7, 10, 17, and 20 of
chapter XII (MCL 712.1, 712.2, 712.3, 712.5, 712.7, 712.10, 712.17, and
712.20), sections 1, 3, 7, and 10 as amended by 2006 PA 488, sections 2 and 5
as added by 2000 PA 232, section 17 as amended by 2010 PA 348, and section 20
as amended by 2003 PA 245, and by adding section 3a to chapter XII.
the people of the state of michigan enact:
CHAPTER
XII
Sec. 1. (1) This chapter shall be known and may be cited as the "safe delivery of newborns
law".
(2) As used in this chapter:
(a) "Child placing agency" means that term as
defined in section 1 of 1973 PA 116, MCL 722.111.
(b) "Court" means the family division of circuit
court.
(c) "Department" means the department of health and human
services.
(d) "DNA identification profile" and "DNA
identification profiling" mean those terms as defined in section 1 of the
paternity act, 1956 PA 205, MCL 722.711.
(e) "Domestic violence" means that term as defined
in section 1 of 1978 PA 389, MCL 400.1501.
(f) "Emergency service provider" means a uniformed
or otherwise identified employee or contractor of a fire department, hospital,
or police station when that individual is inside the premises and on duty.
Emergency service provider also
includes a paramedic or an emergency medical technician when
either of those individuals is responding to a 9-1-1 emergency call.
(g) "Fire department" means an organized fire
department as that term is defined in section 1 of the fire prevention code,
1941 PA 207, MCL 29.1.
(h) "Gross negligence" means conduct so reckless as
to demonstrate a substantial lack of concern for whether an injury results.
(i) "Hospital" means a hospital that is licensed
under article 17 part 215 of the
public health code, 1978 PA 368, MCL 333.20101 to 333.22260.333.21501 to 333.21571.
(j) "Lawyer-guardian ad litem" means an attorney
appointed under section 2 of this chapter. A lawyer-guardian ad litem
represents the newborn, and has the powers and duties, as set forth in section
17d of chapter XIIA.
(k) "Newborn" means a child who a physician
reasonably believes to be not more than 72 hours old.
(l) "Newborn safety device" means a device provided
by an emergency service provider that conforms to the provisions of section 3a
of this chapter.
(m) (l) "Police station" means that term
as defined in section 43 of the Michigan vehicle code, 1949 PA 300, MCL 257.43.
(n) (m) "Preplacement
assessment" means an assessment of a prospective adoptive parent as described
in section 23f of chapter X.
(o) (n) "Surrender"
means to leave a newborn with an emergency service provider without expressing
an intent to return for the newborn.
Sec. 2. (1) The court has
jurisdiction over a newborn who is surrendered to an emergency service provider
as provided in section 3 of this chapter or to a newborn safety device as provided in section 3a of
this chapter. The Both
of the following apply to the court under this act:
(a) The court
may appoint a lawyer-guardian ad litem to represent a newborn in proceedings
under this chapter.
(b) On
receipt of the notice described under section 7(f)(ii) from a child placing agency, the court shall publish a
notice on its website that states that a newborn was surrendered. The notice
must include the date, time, and location where the newborn was surrendered.
(2) Except as provided in section 5 of this chapter, the
reporting requirement of section 3 of the child protection law, 1975 PA 238,
MCL 722.623, does not apply regarding a child surrendered to an emergency
service provider as provided in section 3 of this chapter or to a newborn safety device as
provided in section 3a of this chapter.
(3) Unless this chapter specifically provides otherwise, a
provision in another chapter of this act does not apply to a proceeding under
this chapter. Unless this chapter specifically provides otherwise, the child
custody act of 1970, 1970 PA 91, MCL 722.21 to 722.30, 722.31, does not apply to a proceeding under
this chapter.
(4) 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 chapter, except for an act or
omission constituting gross negligence or willful or wanton misconduct. To the
extent not protected by the immunity conferred by 1964 PA 170, MCL 691.1401 to 691.1415, 691.1419, an
employee or contractor of a fire department or police station has the same
immunity that this subsection provides to a hospital's or child placing
agency's agent or employee.
Sec. 3. (1) If a parent
surrenders a child who may be a newborn to an emergency service provider, the
emergency service provider shall comply with the requirements of this section
under the assumption that the child is a newborn. The emergency service provider
shall, without a court order, immediately accept the newborn, taking the
newborn into temporary protective custody. The emergency service provider shall
make a reasonable effort to do all of the following:
(a) Take action necessary to protect the physical health and
safety of the newborn.
(b) Inform the parent that by surrendering the newborn, the
parent is releasing the newborn to a child placing agency to be placed for
adoption.
(c) Inform the parent that the parent has 28 days to petition
the court to regain custody of the newborn.
(d) 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:
(i)
By surrendering the newborn, the parent is releasing the newborn to a child
placing agency to be placed for adoption.
(ii)
The parent has 28 days after surrendering the newborn to petition the court to
regain custody of the newborn.
(iii)
After the 28-day period to petition for custody elapses, there will be a
hearing to determine and terminate parental rights.
(iv)
There will be public notice of this hearing, and the notice will not contain
the parent's name.
(v)
The parent will not receive personal notice of this hearing.
(vi)
Information the parent provides to an emergency service provider will not be
made public.
(vii)
A parent can contact the safe delivery line established under section 20 of
this chapter for more information.
(2) After providing a parent with the information described in
subsection (1), an emergency service provider shall make a reasonable attempt
to do all of the following:
(a) Encourage the parent to provide any relevant family or
medical information.
(b) Provide the parent with the pamphlet produced under
section 20 of this chapter and inform the parent that he or she the parent can
receive counseling or medical attention.
(c) Inform the parent that information that he or she the parent provides
will not be made public.
(d) Ask the parent to identify himself or herself.the parent.
(e) Inform the parent that in order to place the newborn for
adoption the state is required to make a reasonable attempt to identify the
other parent, and then ask the parent to identify the other parent.
(f) Inform the parent that the child placing agency that takes
temporary protective custody of the newborn can provide confidential services
to the parent.
(g) Inform the parent that the parent may sign a release for
the newborn that may be used at the parental rights termination hearing under
this chapter.
(3) If a
parent surrenders a child who may be a newborn to a newborn safety device, the
emergency service provider shall proceed as described under section 3a of this
chapter.
(4) (3) A newborn
whose birth is described in the born alive infant protection act, 2002 PA 687,
MCL 333.1071 to 333.1073, and who is in a hospital setting or transferred to a
hospital under section 3(1) of the born alive infant protection act, 2002 PA
687, MCL 333.1073, is a newborn surrendered as provided in this chapter. An
emergency service provider who has received a newborn under the born alive
infant protection act, 2002 PA 687, MCL 333.1071 to 333.1073, shall do all of
the following:
(a) Comply with the requirements of subsections (1) and (2) to
obtain information from or supply information to the surrendering parent by
requesting the information from or supplying the information to the attending
physician who delivered the newborn.
(b) Make no attempt to directly contact the parent or parents
of the newborn.
(c) Provide humane comfort care if the newborn is determined
to have no chance of survival due to gestational immaturity in light of
available neonatal medical treatment or other condition incompatible with life.
Sec. 3a. (1) A
parent may voluntarily deliver the parent's newborn to a newborn safety device
provided by an emergency service provider.
(2) A newborn safety device must meet the following requirements:
(a) Allow a newborn to be placed anonymously from the outside of the emergency
service provider's building, if that building is staffed 24 hours per day for 7
days per week.
(b) Lock the newborn safety device after a newborn is placed in it so
that an individual outside the building is unable to access the newborn.
(c) Provide a controlled environment for the care and protection of the
newborn.
(d) Trigger a call to the emergency service provider on duty at that
time and provide notification to a centralized location in the emergency
service provider's building within 30 seconds after a newborn is placed in the
newborn safety device.
(e) Require that the interior wall of the newborn safety device be
transparent so that it is visible to staff inside the emergency service
provider's building.
(3) An emergency service provider that has a building that offers a
newborn safety device must adopt and receive operating policies, supervision,
and maintenance requirements for the newborn safety device from the
manufacturer. A newborn safety device must have a sign placed on or near it
identifying it as a newborn safety device.
(4) The emergency service provider must notify the department of the
address of the newborn safety device. The department must post on its website
regarding the safe delivery program the address where each newborn safety
device is located.
(5) An emergency service provider must do both of the following:
(a) Publicly post information regarding the newborn safety device. The
information must include the purpose of the newborn safety device.
(b) Create and provide an accessible form that allows a surrendering
parent the option to input the following, and include a notice to the
surrendering parent that this information is not published publicly but is accessible
to a child placing agency:
(i) The known date
and time of surrender of the newborn.
(ii) The address of
the location of surrender of the newborn.
(iii) Name and
contact information.
(iv) Family medical
information.
(v) Whether or not
the information provided may be shared with the child and prospective adoptive
parent.
(6) A newborn safety device must be installed in a location where the
interior of the newborn safety device will be in a safe and secure location
that is visible to the staff. Alternatively, the emergency service provider
must install, at the security desk, a video feed and an audio feed to capture
the newborn safety device. The camera that captures the video feed must be
placed in a way that protects the anonymity of the parent delivering the
newborn.
(7) An emergency service provider must inspect and test a newborn safety
device to ensure that the newborn safety device is functioning properly
according to the manufacturer's guidance. Inspecting and testing required under
this section must be performed once a month. The emergency service provider staff
member who inspects and tests the newborn safety device must confirm by
initialing a form that testing and inspecting have been completed and must
record the inspection and keep the record of the inspection on the premises.
(8) A newborn safety device must be locked and inaccessible to anyone
except the emergency service provider staff responsible for monitoring it in
either of the following situations:
(a) There is no staff member present in the emergency service provider's
building.
(b) The newborn safety device has a malfunction.
(9) An emergency service provider that does not lock a newborn safety
device as required under subsection (8) is liable for any damages for personal
injury, including death, that result from the use of the unlocked newborn
safety device.
(10) The manufacturer is liable for any damages for personal injury,
including death, that result from the malfunction or manufacturer's defect of a
newborn safety device.
Sec. 5. (1) An emergency service provider that is not a
hospital and that takes a newborn into
temporary protective custody under section 3 of this chapter or receives a newborn through a newborn safety device under section
3a of this chapter shall transfer the newborn to a hospital. The
hospital shall must
accept a newborn who an emergency service provider transfers to the
hospital in compliance with this chapter, taking the newborn into temporary
protective custody.
(2) A hospital that
takes a newborn into temporary protective custody under this chapter shall or receives a newborn through a
newborn safety device under this chapter must have the newborn examined by a physician.
If a physician who examines the newborn either determines that there is reason
to suspect the newborn has experienced child abuse or child neglect, other than
being surrendered to an emergency service provider under section 3 of this
chapter or surrendered to a newborn safety device
under section 3a of this chapter, or comes to a reasonable belief that
the child is not a newborn, the physician shall immediately report to the
department as required by section 3 of the child protection law, 1975 PA 238,
MCL 722.623.
(3) If a physician
is not required to report to the department as provided in subsection (2), the
hospital shall must
notify a child placing agency that the hospital has taken a newborn into
temporary protective custody under this chapter or has
received a newborn through a newborn safety device under this chapter.
Sec. 7. Upon receipt of notice from a hospital under section
5 of this chapter, the child placing agency shall do all of the following:
(a) Immediately
assume the care, control, and temporary protective custody of the newborn.
(b) If a parent is
known and willing, immediately meet with the parent.
(c) Unless
otherwise provided in this subdivision, make a temporary placement of the
newborn with a prospective adoptive parent who has an approved preplacement
assessment. If a petition for custody is filed under section 10 of this
chapter, the child placing agency may make a temporary placement of the newborn
with a licensed foster parent.
(d) Unless the
birth was witnessed by the emergency service provider, immediately request
assistance from law enforcement officials to investigate and determine, through
the missing children information clearinghouse, the national center for missing and exploited children, National Center for Missing and Exploited Children, and
any other national and state resources, whether the newborn is a missing child.
(e) Not later than
48 hours after a transfer of 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. The petition shall must include all of the following:
(i) The date of the transfer of physical
custody.
(ii) The name and address of the emergency
service provider to whom the newborn was surrendered or
the name and address of the emergency service provider where the newborn safety
device, to which the newborn was surrendered, is located.
(iii) Any information, either written or
verbal, that was provided by and to the parent who surrendered the newborn. The
emergency service provider that originally accepted the newborn as required by
section 3 of this chapter shall provide this information to the child placing
agency.
(f) Within 28 days,
make reasonable efforts to identify, locate, and provide notice of the
surrender of the newborn to the nonsurrendering parent. The child placing
agency shall file a written report with the court that issued the order placing
the child. The report shall must state the efforts the child placing agency made
in attempting to identify and locate the nonsurrendering parent and the results
of those efforts. If the identity and address of the nonsurrendering parent are
unknown, the child placing agency shall provide immediately do all of the following:
(i) Provide notice of the surrender of the newborn by publication
in a newspaper of general circulation, both in print
and online, if available, for 28 days, in
the county where the newborn was surrendered and in
the county where the child placing agency is located.
(ii) Notify the court in the county where the
newborn was surrendered and the county where the child placing agency is
located that a newborn was surrendered, including the date, time, and location
where the newborn was surrendered.
(iii) Notify the department of the date, time,
and location where the newborn was surrendered.
Sec. 10. (1) If a surrendering parent wants custody of a
newborn who was surrendered under section 3 of this chapter, the parent shall,
within 28 days after the newborn was surrendered, file a petition with the
court for custody. Not later than 28 days after notice of surrender of a
newborn has been published, an individual claiming to be the nonsurrendering
parent of that newborn may file a petition with the court for custody. The
surrendering parent or nonsurrendering parent shall file the petition for custody
in 1 of the following counties:
(a) If the parent
has located the newborn, the county where the newborn is located.
(b) If subdivision
(a) does not apply and the parent knows the location of the emergency service
provider that provides the newborn safety device to
whom which the
newborn was surrendered, the county where the emergency service provider that provides the newborn safety device is located.
(c) If neither
subdivision (a) nor (b) applies, the county where the parent is located.
(2) If the court in
which the petition for custody is filed did not issue the order placing the
newborn, the court in which the petition for custody is filed shall locate and
contact the court that issued the order and shall transfer the proceedings to that
court.
(3) Before holding
a custody hearing on a petition filed under this section and not later than 7
days after a petition for custody under this section has been filed, the court
shall conduct a hearing to make the determinations of paternity or maternity as
described in section 11.
Sec. 17. (1) A parent who surrenders a newborn under section
3 or 3a of this chapter and who does not file a
custody action under section 10 of this chapter is presumed to have knowingly
released his or her the parent's parental rights to the newborn.
(2) If the
surrendering parent has not filed a petition for custody of the newborn within
28 days of the surrender, the child placing agency with authority to place the
newborn shall immediately file a petition with the court to determine whether
the release shall be is accepted and whether the court shall will enter
an order terminating the rights of the surrendering parent.
(3) If the
nonsurrendering parent has not filed a petition for custody of the newborn
within 28 days of notice of surrender of a newborn under section 10 of this
chapter, the child placing agency with authority to place the newborn shall
immediately file a petition with the court to determine whether the court shall will enter
an order terminating the rights of the nonsurrendering parent.
(4) The court shall
schedule a hearing on the petition from the child placing agency within 14 days
of receipt of that petition. At the hearing, the child placing agency shall
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.
(5) If the court
finds by a preponderance of the evidence that the surrendering parent has
knowingly released his or her the surrendering parent's rights to the child and
that reasonable efforts were made to locate the nonsurrendering parent and a
custody action has not been filed, the court shall enter an order terminating
parental rights of the surrendering parent and the nonsurrendering parent under
this chapter.
Sec. 20. (1) The department of community health in conjunction with the department
shall must establish a safe delivery
program. The safe delivery program shall must include, but is not limited to, both all of the
following:
(a) A toll-free,
24-hour telephone line. The information provided with this telephone line shall must include,
but is not limited to, all of the following:
(i) Information on prenatal care and the
delivery of a newborn.
(ii) Names of health agencies that can assist
in obtaining services and supports that provide for the pregnancy-related
health of the mother and the health of the baby.
(iii) Information on adoption options and the
name and telephone number of a child placing agency that can assist a parent or
expecting parent in obtaining adoption services.
(iv) Information that, in order to safely
provide for the health of the mother and her newborn, the best place for the
delivery of a child is in a hospital, hospital-based birthing center, or
birthing center that is accredited by the commission for the accreditation of
birth centers.
(v) An explanation that, to the extent of
the law, prenatal care and delivery services are routinely confidential within
the health care system, if requested by the mother.
(vi) Information that a hospital will take
into protective custody a newborn that is surrendered as provided for in this chapter and, if needed, provide
emergency medical assistance to the mother, the newborn, or both.
(vii) Information regarding legal and
procedural requirements related to the voluntary surrender of a child as
provided for in this chapter.
(viii) Information regarding the legal
consequences for endangering a child, including child protective service
investigations and potential criminal penalties.
(ix) Information that surrendering a newborn
for adoption as provided in this chapter is an affirmative defense to charges
of abandonment as provided in section 135 of the Michigan penal code, 1931 PA
328, MCL 750.135.
(x) Information about resources for
counseling and assistance with crisis management.
(b) A pamphlet that
provides information to the public concerning the safe delivery program, including information regarding newborn safety devices.
The department of community health and the
department shall jointly publish and
distribute the pamphlet. The pamphlet shall must prominently display the toll-free telephone
number prescribed by subdivision (a).
(c) Data that is annually compiled and published on the department's
website regarding the safe delivery program that does not contain identifying
information and includes all of the following information:
(i) The date, time, and location where the
newborn was surrendered.
(ii) The hospital where the newborn was taken
after surrender.
(iii) The physical condition of the newborn at
the time of surrender.
(iv) Whether the newborn was surrendered to an
emergency service provider or a newborn safety device.
(2) Beginning on the effective date of the amendatory act that added
this subsection, upon notice from a child placing agency that a newborn was
surrendered, the department must post on its website regarding the safe
delivery program the date, time, and location where the newborn was surrendered
and maintain the notice required under this subsection for 28 days.
Enacting section 1.
This amendatory act takes effect 90 days after the date it is enacted into law.