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Problems with the Court of Appeals' Adoption Trilogy Decision

Posted on Friday, May 18, 2018

Adoption attorneys and adoption agencies laud the Court of Appeals published decision in “the Adoption Trilogy,” In Re MJG and In Re BGP/JSP. (See July 12, 2017 blog - Adoption Trilogy secures the future of direct placement adoptions in Michigan). However, there are a few weak spots to the Court of Appeals' analysis, and provides something to keep in mind for future cases.

  • The Court of Appeals said that a fee for apprising clients (potential adoptive parents) of the birth mother is prohibited under 710.54(2) because it was “assisting a potential adoptive parent in evaluating a parent or guardian or adoptee or referring a prospective adoptive parent to parent or guardian a child for the purpose of adoption. In re MJG slip op at 10. However, this fee simply informs prospective adoptive parents that the birth mother has responded to the adoptive parents profile and is not “evaluating” or “referring.” Moreover, most of the “apprising” does not pertain to the Michigan adoption because only one of the birth mothers (many times out of hundreds) will be the birth mother of the adoptee.
  • The Court of Appeals also said that "presenting an adoption opportunity to a client" is prohibited under MCL 710.24(2). In re MJG slip op 11. This is not “evaluating” or “referring.” Instead, it is merely sharing the profile the birth mother has found on the potential adoptive parents on the internet. It is accepting the contact from the birth mother and passing it onto the potential adoptive parents/client.
  • The Court of Appeals concluded that “introducing the birth mother to the potential adoptive parents/client” is the equivalent of referring the birth mother to the client and is prohibited under MCL 710.54(2). In re MJG slip op at 12. This poses the same problem as the examples cited above.
  • Various services do not fall under MCL 710.54(3) and are, thus, not allowed according to the Court of Appeals. In re MJG slip op at 12. The Court of Appeals includes referring clients to agencies, social workers, and attorneys; managing the adoption plan; and communicating with legal entities In re MJG slip op at 213. But see note 10 on counseling where the Court of Appeals noted that parents in general can benefit from counseling does not mean that the counseling is in connection with the adoption.
  • The Court of Appeals held that American Family Media lacked standing because they were not included on the claim of appeal (the Court of Appeals denied the motion to amend the claim of appeal), but the marketing fees which American Family Media charged in that case cannot be disallowed per the Court's decision in MJG.  In Re BGP/JSP slip op at 2. Since Circuit Court has no authority to preclude the marketing fees charged by the media company, the Court of Appeals should have allowed American Family Media to participate in the appeal. In re BGP/JSP slip op at 7.

In sum, the main problem with the Court of Appeals' decisions in the Adoption Trilogy pertains to the fees charged for informing the prospective adoptive parents that a potential birth mother has responded to the prospective adoptive parents’ availability to adopt.

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