In re Handorf – A Guardian’s Authority to Consent to Adoption

The Court of Appeals recently released a published opinion regarding the authority of guardians to consent to an adoption.  Petitioners are the guardians of the minor child at issue.  They petitioned the probate court for authority as guardians to consent to their own adoption of the child.  Dad consented to the adoption.  Mother did not.  The trial court ruled that it could only grant their request if the child’s parents’ parental rights were first terminated and, unless the parents’ consented, it lacked authority under the guardianship code to allow the guardians to consent to adoption if parental rights are intact.  Petitioners appealed the trial court’s ruling.

Citing the adoption code, the court wrote: “a child shall not be placed in a home for the purpose of adoption until an order terminating parental rights has been entered pursuant to [the Michigan Adoption Code] or [the Michigan Juvenile Code] and the court has formally approved the placement under [MCL 710.51].”  MCL 710.41(1).  Unless there is parental consent to the adoption, an adoption petition must be accompanied by, among other things, “a copy of each release or order terminating parenal rights over the child having a bearing upon the authority of a person to execute the consent to adoption.” MCL 710.26(1)(a).  The Court concluded that the first prerequisite for adoption is termination of the parents’ parental rights (in the absence of parental consent).  Thus, before a guardian may petition the court to consent to an adoption under MCL 700.5215(e),  they must either have parental consent or an order terminating parental rights.

This was always my understanding of the state of the law, but it is nice to have some case law.

You can view or download the case here: In re Handorf