IN RE BRANDON GAVIN HANDORFAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
In re BRANDON GAVIN HANDORF, Minor.
JOSEPH EBY and MARGO EBY,
August 18, 2009
Livingston Probate Court
LC No. 06-009053-GM
MONICA GRACE LABO and ERIC JAMES
Advance Sheets Version
Before: Cavanagh, P.J., and Markey and Davis, JJ.
Petitioners, Joseph and Margo Eby, appeal by leave granted an order denying their
motion to allow them to consent—as the guardians of Brandon Gavin Handorf—to their own
adoption of Brandon. Respondents, Monica Grace Labo and Eric James Labo, are Brandon’s
biological mother and legal father. We affirm and remand for any further proceedings the
probate court determines are necessary or appropriate.
Brandon was born while Monica was incarcerated. He was placed with petitioners three
days later. Petitioners were initially made temporary guardians over Monica’s objection, and
they were eventually appointed as full guardians. The probate court ordered a court-structured
plan to reintegrate Brandon with respondents. Monica was required to comply with several
conditions, including regular drug testing, obtaining stable housing and employment, and
participating in counseling. Eric had no contact with Brandon, and although Monica initially
made regular contact, she began missing appointments. Monica generally failed to fulfill the
requirements. The court asked the Department of Human Services to investigate termination
proceedings, but the department did not do so. Meanwhile, Brandon did well in petitioners’
Petitioners eventually sought to adopt Brandon. Eric was apparently amenable to this
and, indeed, desired no contact with Brandon and wished to be released from any parental
obligations. Monica was not amenable. Petitioners moved to be granted the authority, as
Brandon’s guardians, to consent to their own adoption of Brandon. The probate court considered
the matter and concluded, correctly, that it could only grant petitioners’ request if the parental
rights of Brandon’s parents were first terminated. The probate court further concluded that
unless Brandon’s parents consented, it lacked the authority under the guardianship statutes to
grant petitioners’ motion. The probate court certified this order under MCR 5.801(F), and this
Court granted leave to appeal.
We initially note that there is no published authority in Michigan directly on point, and
the unpublished opinions from this Court are in conflict.1 In In re Partello, unpublished opinion
per curiam of the Court of Appeals, issued September 15, 1998 (Docket No. 202757), the
petitioner, Christina Partello, gave birth to a child at the age of 16, consented to having her
mother, Sandra Waukazoo, appointed as the child’s guardian, and proceeded to generally fail to
act as a competent parent. Five years later, Partello petitioned the probate court for an order to
terminate the guardianship, and Waukazoo petitioned the probate court for an order granting her
the authority to consent to the child’s adoption by another couple, the Smiths. The probate court
denied the motion to terminate the guardianship. After observing that the order granting
authority to consent to the adoption would have the effect of terminating Partello’s parental
rights, the probate court found that doing so was in the child’s best interests and granted
Waukazoo’s petition. A panel of this Court affirmed, observing that the evidence clearly
supported the probate court’s determination that termination was appropriate. Conversely,
however, in In re Blaylock, unpublished memorandum opinion of the Court of Appeals, issued
December 28, 2001 (Docket No. 234755), another panel of this Court held that the guardians did
not have the power to consent to the adoption of their ward, nor could they carry out that
adoption, without the consent of the parents “or tak[ing] the steps necessary to obtain the
termination of their parental rights.” We agree with and adopt the holding of Blaylock.
Petitioners argue that guardians may consent to adoptions of their wards. This assertion
is generally correct, subject to authorization by the court and the requirements of MCL 710.44
and MCL 710.51. See MCL 710.43(1)(e) and (5). However, the “first step in the adoption
process is ensuring the child is freed for adoption.” Michigan Judicial Institute, Adoption
Proceedings Benchbook 2003-2008, p 2-2.2 Subject to exceptions not at issue here,
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, MCL 710.21 et seq.] or [the Michigan juvenile code, MCL 712A.1 et seq.]
and the court has formally approved placement under [MCL 710.51]. [MCL
Unless there is parental consent3 to the adoption, an adoption petition must be accompanied by,
among other things, “a copy of each release or order terminating parental rights over the child
“An unpublished opinion is not precedentially binding under the rule of stare decisis.” MCR
Available online at <http://courts.michigan.gov/mji/resources/adoption/adoption.htm>.
“‘Consent’ means a document in which all parental rights over a specific child are voluntarily
relinquished to the court for placement with a specific adoptive parent.” MCL 710.22(l).
“‘Release’ means a document in which all parental rights over a specific child are voluntarily
having a bearing upon the authority of a person to execute the consent to adoption.” MCL
Therefore, we agree with the probate court’s conclusion that the first prerequisite for
adoption is termination of the parental rights of the child’s parents (in the absence of the parent’s
or parents’ consent). This is consistent with the purpose of adoption in Michigan, which is
“severing, at law, the prior, natural family relationships and creating a new and complete
substitute relationship after adoption.” Bikos v Nobliski, 88 Mich App 157, 165; 276 NW2d 541
(1979), superseded on other grounds as discussed in Jones v Slick, 242 Mich App 715, 723-725;
619 NW2d 733 (2000). Until that termination takes place, consent to the adoption is irrelevant
because the child is not available for adoption. We do not find any provision in the Michigan
Adoption Code under which a guardian may simply agree to the termination of parents’ parental
rights.5 As a consequence, any consideration or application of the language in MCL 710.43 and
MCL 700.5215(e) permitting guardians to consent to their wards’ adoption is premature.
The probate court properly denied petitioners’ motion upon its correct determination that
Brandon had not been freed for adoption because the parental rights of Brandon’s parents had
not been terminated. We therefore affirm, and we remand the matter to the probate court for any
further proceedings that the probate court determines are necessary or appropriate. We do not
/s/ Alton T. Davis
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
relinquished to the department or to a child placing agency.” MCL 710.22(u).
A guardian may release a child with the authorization of the court. MCL 710.28(1)(d) and (3).
But because that release may “be given only to a child placing agency or to the department,”
MCL 710.28(5), those provisions are irrelevant in the instant matter.