In the Matter of Myers , 131 Mich. App. 160 ( 1983 )

131 Mich. App. 160 (1983) 345 N.W.2d 663

IN THE MATTER OF SHONDA, MICHAEL, AND JAMES MYERS

Docket No. 65565.

Michigan Court of Appeals.

Decided December 19, 1983.

William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Mark J. Cavanagh, Assistant Prosecuting Attorney, for appellee.

Wish & Sternberg, P.C. (by Steven M. Gilbert and Stuart D. Wish), for Samuel Myers.

Before: M.J. KELLY, P.J., and HOOD and SHEPHERD, JJ.

M.J. KELLY, P.J.

Appellant is the natural father of Shonda, Michael, and James Myers, three minor children. Appellant appeals as of right from an order of the Wayne County Probate Court denying his petition for a hearing to revoke a release by which he had voluntarily terminated his parental rights. Appellant argues that the provisions of the Michigan Adoption Code, MCL 710.21 et seq.; MSA 27.3178(555.21) et seq., governing his right to revoke the release violate his constitutional right to due process by denying him access to the courts for a determination of his parental rights. We affirm.

Sections 29(9) and 64(1) of the Adoption Code govern the revocation of voluntary releases of parental rights. MCL 710.29(9); MSA 27.3178(555.29)(9) provides:

"Upon petition of the same person or persons who executed the release and of the department or child placing agency to which the child was released, the court with which the release was filed may grant a hearing to consider whether the release should be revoked. A release may not be revoked if the child has been placed for adoption unless the child is placed pursuant to section 41(2) of this chapter and a petition for rehearing or claim of appeal is filed within the time required. A verbatim record of testimony related to a petition to revoke a release shall be made."

MCL 710.64(1); MSA 27.3178(555.64)(1) provides:

"Upon the filing of a petition in probate court within 20 days after entry of any order under this chapter, and after due notice to all interested parties, the judge of probate may grant a rehearing and may modify or set aside the order."

These seemingly conflicting provisions of the Adoption Code have been harmonized by this Court as follows. Under § 64(1), a petitioner has 20 days after voluntarily executing a release to petition the court for a hearing to revoke that release. In the Matter of Michael Brent Hole, 102 Mich. App. 286, 291; 301 NW2d 507 (1980); In the Matter of Baby Girl Fletcher, 76 Mich. App. 219, 220-221, 223; 256 NW2d 444 (1977). Whether to grant the petitioner's request for a hearing and whether to grant the relief sought are matters left to the sound discretion of the probate court. In the Matter of Michael Brent Hole, 102 Mich. App. 290, fn 1. Where the petitioner waits more than 20 days after the execution of a release, the probate court is without jurisdiction to consider a request for a hearing to revoke unless the child placing agency joins or acquiesces in the petition. In the Matter of Michael Brent Hole, 102 Mich. App. 291-292; In the Matter of Baby Girl Fletcher, 76 Mich. App. 220-222. Where this condition is met, the decision to grant a hearing and the decision to grant revocation are resurrected for the exercise of discretion of the probate court, though once the child has been placed for adoption the petition may not be entertained. In the Matter of Michael Brent Hole, 102 Mich. App. 290, fn 1.

In this case, appellant voluntarily executed a release of parental rights on February 18, 1982. MCL 710.28; MSA 27.3178(555.28). Pursuant to MCL 710.29; MSA 27.3178(555.29), the release was signed at a hearing in the presence of a Wayne County probate judge. Appellant and his attorney stated on the record that they had thoroughly discussed the matter and that appellant's decision was freely and knowingly made. The judge apprised appellant of the gravity and finality of his decision and inquired further about appellant's understanding of the consequences of his action. There is no reason to believe that appellant did not understand the effect of his signature on the parental rights release form. We further note that involuntary termination proceedings had been initiated against appellant two years earlier under the Michigan juvenile code, MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq. Appellant was thus provided ample opportunity to familiarize himself with the full spectrum of rights available to him as a parent.

On March 12, 1982, appellant filed his petition for a hearing to revoke the release. This was 22 days after the execution of the release and inasmuch as the Department of Social Services, the child placing agency in this case, refused to join or acquiesce in the petition, the probate court dismissed appellant's petition for lack of jurisdiction under MCL 710.29(9); MSA 27.3178(555.29)(9). Appellant does not dispute the probate court's application of § 29(9) but contends that the provision is unconstitutional.

We recognize that parental rights constitute a fundamental "liberty" interest protected by the Fourteenth Amendment of the United States Constitution. Reist v Bay Circuit Judge, 396 Mich. 326, 341-342; 241 NW2d 55 (1976). However, while the Due Process Clause of the Fourteenth Amendment does guarantee an opportunity to be heard, there is no due process right to a rehearing or even to appellate review. In re Kasuba Estate, 401 Mich. 560, 566; 258 NW2d 731 (1977), reh den 402 Mich. 954 (1977). The traditional test for determining whether a statutory scheme will be upheld against a due process challenge is whether the legislation bears a reasonable relation to a permissible legislative object. O'Donnell v State Farm Mutual Automobile Ins Co, 404 Mich. 524, 540-541; 273 NW2d 829 (1979), reh den 406 Mich. 1103 (1979); West v Rollhaven Skating Arena, 105 Mich. App. 100, 103; 306 NW2d 408 (1981).

We find that the release and revocation provisions of the Michigan Adoption Code do not violate the Due Process Clause of the Fourteenth Amendment. A primary and permissible legislative purpose of the code is to preserve the finality of decisions to release children for adoption. In the Matter of Kenneth Jackson, Jr, 115 Mich. App. 40, 53; 320 NW2d 285 (1982); DeBoer v Child & Family Services of Michigan, Inc, 76 Mich. App. 641, 649; 257 NW2d 200 (1977). A 20-day limitation on the right of a parent acting without support of the child placing agency to attempt to revoke a previously executed release bears a reasonable relation to this purpose. Ample opportunity for a parent to be heard on the voluntary termination of his or her parental rights is provided under MCL 710.29(5); MSA 27.3178(555.29)(5).

Affirmed.