November 4, 2010, Introduced by Senator JACOBS and referred to the Committee on Families and Human Services.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending sections 19a and 19c of chapter XIIA (MCL 712A.19a and
712A.19c), section 19a as amended by 2008 PA 200 and section 19c as
amended by 2008 PA 203.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER XIIA
Sec. 19a. (1) Subject to subsection (2), if a child remains in
foster care and parental rights to the child have not been
terminated, the court shall conduct a permanency planning hearing
within 12 months after the child was removed from his or her home.
Subsequent permanency planning hearings shall be held no later than
every 12 months after each preceding permanency planning hearing
during the continuation of foster care. If proper notice for a
permanency planning hearing is provided, a permanency planning
hearing may be combined with a review hearing held under section
19(2) to (4) of this chapter, but no later than 12 months from the
removal of the child from his or her home, from the preceding
permanency planning hearing, or from the number of days required
under subsection (2). A permanency planning hearing shall not be
canceled or delayed beyond the number of months required by this
subsection or days as required under subsection (2), regardless of
whether there is a petition for termination of parental rights
pending.
(2) The court shall conduct a permanency planning hearing
within 30 days after there is a judicial determination that
reasonable efforts to reunite the child and family are not
required. Reasonable efforts to reunify the child and family must
be made in all cases except if any of the following apply:
(a) There is a judicial determination that the parent has
subjected the child to aggravated circumstances as provided in
section 18(1) and (2) of the child protection law, 1975 PA 238, MCL
722.638.
(b) The parent has been convicted of 1 or more of the
following:
(i) Murder of another child of the parent.
(ii) Voluntary manslaughter of another child of the parent.
(iii) Aiding or abetting in the murder of another child of the
parent or voluntary manslaughter of another child of the parent,
the attempted murder of the child or another child of the parent,
or the conspiracy or solicitation to commit the murder of the child
or another child of the parent.
(iv) A felony assault that results in serious bodily injury to
the child or another child of the parent.
(c) The parent has had rights to the child's siblings
involuntarily terminated.
(3) A permanency planning hearing shall be conducted to review
the status of the child and the progress being made toward the
child's return home or to show why the child should not be placed
in the permanent custody of the court. The court shall obtain the
child's views regarding the permanency plan in a manner that is
appropriate to the child's age. In the case of a child who will not
be returned home, the court shall consider in-state and out-of-
state placement options. In the case of a child placed out-of-
state, the court shall determine whether the out-of-state placement
continues to be appropriate and in the child's best interests. The
court shall ensure that the agency is providing appropriate
services to assist a child who will transition from foster care to
independent living.
(4) Not less than 14 days before a permanency planning
hearing, written notice of the hearing and a statement of the
purposes of the hearing, including a notice that the hearing may
result in further proceedings to terminate parental rights, shall
be served upon all of the following:
(a) The agency. The agency shall advise the child of the
hearing if the child is 11 years of age or older.
(b) The foster parent or custodian of the child.
(c) If the parental rights to the child have not been
terminated, the child's parents.
(d) If the child has a guardian, the guardian for the child.
(e) If the child has a guardian ad litem, the guardian ad
litem for the child.
(f) If tribal affiliation has been determined, the elected
leader of the Indian tribe.
(g) The attorney for the child, the attorneys for each party,
and the prosecuting attorney if the prosecuting attorney has
appeared in the case.
(h) If the child is 11 years of age or older, the child.
(i) Other persons as the court may direct.
(5) If parental rights to the child have not been terminated
and the court determines at a permanency planning hearing that the
return of the child to his or her parent would not cause a
substantial risk of harm to the child's life, physical health, or
mental well-being, the court shall order the child returned to his
or her parent. In determining whether the return of the child would
cause a substantial risk of harm to the child, the court shall view
the failure of the parent to substantially comply with the terms
and conditions of the case service plan prepared under section 18f
of this chapter as evidence that return of the child to his or her
parent would cause a substantial risk of harm to the child's life,
physical health, or mental well-being. In addition to considering
conduct of the parent as evidence of substantial risk of harm, the
court shall consider any condition or circumstance of the child
that may be evidence that a return to the parent would cause a
substantial risk of harm to the child's life, physical health, or
mental well-being.
(6) If the court determines at a permanency planning hearing
that a child should not be returned to his or her parent, the court
may order the agency to initiate proceedings to terminate parental
rights. Except as otherwise provided in this subsection, if the
child has been in foster care under the responsibility of the state
for 15 of the most recent 22 months, the court shall order the
agency to initiate proceedings to terminate parental rights. The
court is not required to order the agency to initiate proceedings
to terminate parental rights if 1 or more of the following apply:
(a) The child is being cared for by relatives.
(b) The case service plan documents a compelling reason for
determining that filing a petition to terminate parental rights
would not be in the best interest of the child. Compelling reasons
for not filing a petition to terminate parental rights include, but
are not limited to, all of the following:
(i) Adoption is not the appropriate permanency goal for the
child.
(ii) No grounds to file a petition to terminate parental rights
exist.
(iii) The child is an unaccompanied refugee minor as defined in
45 CFR 400.11.
(iv) There are international legal obligations or compelling
foreign policy reasons that preclude terminating parental rights.
(c) The state has not provided the child's family, consistent
with the time period in the case service plan, with the services
the state considers necessary for the child's safe return to his or
her home, if reasonable efforts are required.
(7) If the agency demonstrates under subsection (6) that
initiating the termination of parental rights to the child is
clearly not in the child's best interests, or the court does not
order the agency to initiate termination of parental rights to the
child under subsection (6), then the court shall order 1 or more of
the following alternative placement plans:
(a) If the court determines that other permanent placement is
not possible, the child's placement in foster care shall continue
for a limited period to be stated by the court.
(b) If the court determines that it is in the child's best
interests based upon compelling reasons, the child's placement in
foster care may continue on a long-term basis.
(c) Subject to subsection (9), if the court determines that it
is in the child's best interests, appoint a guardian for the child,
which guardianship may continue until the child is emancipated.
(8) A guardian appointed under subsection (7)(c) has all of
the powers and duties set forth under section 15 of the estates and
protected individuals code, 1998 PA 386, MCL 700.5215.
(9) If a child is placed in a guardian's or a proposed
guardian's home under subsection (7)(c), the court shall order the
department of human services to perform an investigation and file a
written report of the investigation for a review under subsection
(10) and the court shall order the department of human services to
do all of the following:
(a) Perform a criminal record check within 7 days.
(b) Perform a central registry clearance within 7 days.
(c) Perform a home study and file a copy of the home study
with the court within 30 days unless a home study has been
performed within the immediately preceding 365 days, under section
13a(9) of this chapter. If a home study has been performed within
the immediately preceding 365 days, a copy of that home study shall
be submitted to the court.
(10) The court's jurisdiction over a juvenile under section
2(b) of this chapter shall be terminated after the court appoints a
guardian
under this section. and conducts a review hearing under
section
19 of this chapter, unless the juvenile is released sooner
by
the court.
(11) The court's jurisdiction over a guardianship created
under this section shall continue until released by court order.
The court shall review a guardianship created under this section
annually and may conduct additional reviews as the court considers
necessary. The court may order the department or a court employee
to conduct an investigation and file a written report of the
investigation.
(12) In making the determinations under this section, the
court shall consider any written or oral information concerning the
child from the child's parent, guardian, custodian, foster parent,
child caring institution, relative with whom the child is placed,
or guardian ad litem in addition to any other evidence, including
the appropriateness of parenting time, offered at the hearing.
(13) The court may, on its own motion or upon petition from
the department of human services or the child's lawyer guardian ad
litem, hold a hearing to determine whether a guardianship appointed
under this section shall be revoked.
(14) A guardian may petition the court for permission to
terminate the guardianship. A petition may include a request for
appointment of a successor guardian.
(15) After notice and hearing on a petition for revocation or
permission to terminate the guardianship, if the court finds by a
preponderance of evidence that continuation of the guardianship is
not in the child's best interests, the court shall revoke or
terminate the guardianship and appoint a successor guardian or
restore temporary legal custody to the department of human
services.
Sec. 19c. (1) Except as provided in section 19(4) of this
chapter and subject to subsection (14), if a child remains in
placement following the termination of parental rights to the
child, the court shall conduct a review hearing not more than 91
days after the termination of parental rights and no later than
every 91 days after that hearing for the first year following
termination of parental rights to the child. If a child remains in
a placement for more than 1 year following termination of parental
rights to the child, a review hearing shall be held no later than
182 days from the immediately preceding review hearing before the
end of the first year and no later than every 182 days from each
preceding review hearing thereafter until the case is dismissed. A
review hearing under this subsection shall not be canceled or
delayed beyond the number of days required in this subsection,
regardless of whether any other matters are pending. Upon motion by
any party or in the court's discretion, a review hearing may be
accelerated to review any element of the case. The court shall
conduct the first permanency planning hearing within 12 months from
the date that the child was originally removed from the home.
Subsequent permanency planning hearings shall be held within 12
months of the preceding permanency planning hearing. If proper
notice for a permanency planning hearing is provided, a permanency
planning hearing may be combined with a review hearing held under
section 19(2) to (4) of this chapter. A permanency planning hearing
under this section shall not be canceled or delayed beyond the
number of months required in this subsection, regardless of whether
any other matters are pending. At a hearing under this section, the
court shall review all of the following:
(a) The appropriateness of the permanency planning goal for
the child.
(b) The appropriateness of the child's placement.
(c) The reasonable efforts being made to place the child for
adoption or in other permanent placement in a timely manner.
(2) Subject to subsection (3), if the court determines that it
is in the child's best interests, the court may appoint a guardian
for the child.
(3) The court shall not appoint a guardian for the child
without the written consent of the MCI superintendent. The MCI
superintendent shall consult with the child's lawyer guardian ad
litem when considering whether to grant written consent.
(4) If a person believes that the decision to withhold the
consent required in subsection (3) is arbitrary or capricious, the
person may file a motion with the court. A motion under this
subsection shall contain information regarding both of the
following:
(a) The specific steps taken by the person to obtain the
consent required and the results, if any.
(b) The specific reasons why the person believes that the
decision to withhold consent was arbitrary or capricious.
(5) If a motion is filed under subsection (4), the court shall
set a hearing date and provide notice to the MCI superintendent,
the foster parents, the prospective guardian, the child, and the
child's lawyer guardian ad litem.
(6) Subject to subsection (8), if a hearing is held under
subsection (5) and the court finds by clear and convincing evidence
that the decision to withhold consent was arbitrary or capricious,
the court may approve the guardianship without the consent of the
MCI superintendent.
(7) A guardian appointed under this section has all of the
powers and duties set forth under section 15 of the estates and
protected individuals code, 1998 PA 386, MCL 700.5215.
(8) If a child is placed in a guardian's or a proposed
guardian's home under subsection (2) or (6), the court shall order
the department of human services to perform an investigation and
file a written report of the investigation for a review under
subsection (10) and the court shall order the department of human
services to do all of the following:
(a) Perform a criminal record check within 7 days.
(b) Perform a central registry clearance within 7 days.
(c) Perform a home study and file a copy of the home study
with the court within 30 days unless a home study has been
performed within the immediately preceding 365 days, under section
13a(9) of this chapter. If a home study has been performed within
the immediately preceding 365 days, a copy of that home study shall
be submitted to the court.
(9) The court's jurisdiction over a juvenile under section
2(b) of this chapter and the jurisdiction of the Michigan
children's institute under section 3 of 1935 PA 220, MCL 400.203,
shall be terminated after the court appoints a guardian under this
section. and
conducts a review hearing under section 19 of this
chapter,
unless the juvenile is released sooner by the court.
(10) The court's jurisdiction over a guardianship created
under this section shall continue until released by court order.
The court shall review a guardianship created under this section
annually and may conduct additional reviews as the court considers
necessary. The court may order the department or a court employee
to conduct an investigation and file a written report of the
investigation.
(11) The court may, on its own motion or upon petition from
the department of human services or the child's lawyer guardian ad
litem, hold a hearing to determine whether a guardianship appointed
under this section shall be revoked.
(12) A guardian may petition the court for permission to
terminate the guardianship. A petition may include a request for
appointment of a successor guardian.
(13) After notice and hearing on a petition for revocation or
permission to terminate the guardianship, if the court finds by a
preponderance of evidence that continuation of the guardianship is
not in the child's best interests, the court shall revoke or
terminate the guardianship and appoint a successor guardian or
commit the child to the Michigan children's institute under section
3 of 1935 PA 220, MCL 400.203.
(14) This section applies only to a child's case in which
parental rights to the child were either terminated as the result
of a proceeding under section 2(b) of this chapter or a similar law
of another state or terminated voluntarily following the initiation
of a proceeding under section 2(b) of this chapter or a similar law
of another state. This section applies as long as the child is
subject to the jurisdiction, control, or supervision of the court
or of the Michigan children's institute or other agency.