SB-1005, As Passed House, April 25, 2012

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 1005

A bill to amend 1939 PA 288, entitled

"Probate code of 1939,"

by amending sections 13a, 17d, 18f, 19a, 19b, and 19c of chapter

XIIA (MCL 712A.13a, 712A.17d, 712A.18f, 712A.19a, 712A.19b, and

712A.19c), sections 13a and 17d as amended by 2004 PA 475, section

18f as amended by 1999 PA 25, section 19a as amended by 2008 PA

200, section 19b as amended by 2010 PA 7, and section 19c as

amended by 2011 PA 31.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER XIIA

Sec. 13a. (1) As used in this section and sections 2, 6b, 13b,

17c, 17d, 18f, 19, 19a, 19b, and 19c of this chapter:

(a) "Agency" means a public or private organization,

institution, or facility that is performing the functions under

part D of title IV of the social security act, 42 USC 651 to ~~655,~~

~~656 to 657, 658a to 660, and 663 to~~ 669b, or that is responsible

under court order or contractual arrangement for a juvenile's care

and supervision.

(b) "Agency case file" means the current file from the agency

providing direct services to the child, that can include the child

protective services file if the child has not been removed from the

home or the ~~family independence agency~~ department of human services

or contract agency foster care file as defined under 1973 PA 116,

MCL 722.111 to 722.128.

proceeding under section 2(b) or (c) of this chapter, an attorney

serving as the child's legal advocate in a traditional attorney-

client relationship with the child, as governed by the Michigan

rules of professional conduct. An attorney defined under this

subdivision owes the same duties of undivided loyalty,

confidentiality, and zealous representation of the child's

expressed wishes as the attorney would to an adult client. For the

purpose of a notice required under these sections, attorney

includes a child's lawyer-guardian ad litem.

(d) "Case service plan" means the plan developed by an agency

and prepared under section 18f of this chapter that includes

services to be provided by and responsibilities and obligations of

the agency and activities, responsibilities, and obligations of the

parent. The case service plan may be referred to using different

names than case service plan including, but not limited to, a

parent/agency agreement or a parent/agency treatment plan and

service agreement.

(e) "Foster care" means care provided to a juvenile in a

foster family home, foster family group home, or child caring

institution licensed or approved under 1973 PA 116, MCL 722.111 to

722.128, or care provided to a juvenile in a relative's home under

a court order.

(f) "Guardian ad litem" means an individual whom the court

appoints to assist the court in determining the child's best

interests. A guardian ad litem does not need to be an attorney.

(g) "Lawyer-guardian ad litem" means an attorney appointed

under section 17c of this chapter. A lawyer-guardian ad litem

represents the child, and has the powers and duties, as set forth

in section 17d of this chapter. The provisions of section 17d of

this chapter also apply to a lawyer-guardian ad litem appointed

under each of the following:

(i) Section 5213 or 5219 of the estates and protected

individuals code, 1998 PA 386, MCL 700.5213 and 700.5219.

(ii) Section 4 of the child custody act of 1970, 1970 PA 91,

MCL 722.24.

(iii) Section 10 of the child protection law, 1975 PA 238, MCL

722.630.

(h) "Nonparent adult" means a person who is 18 years of age or

older and who, regardless of the person's domicile, meets all of

the following criteria in relation to a child over whom the court

takes jurisdiction under this chapter:

(i) Has substantial and regular contact with the child.

(ii) Has a close personal relationship with the child's parent

or with a person responsible for the child's health or welfare.

(iii) Is not the child's parent or a person otherwise related to

the child by blood or affinity to the third degree.

(i) "Permanent foster family agreement" means an agreement for

a child 14 years old or older to remain with a particular foster

family until the child is 18 years old under standards and

requirements established by the ~~family independence agency,~~

department of human services, which agreement is among all of the

following:

(i) The child.

(ii) If the child is a temporary ward, the child's family.

(iii) The foster family.

(iv) The child placing agency responsible for the child's care

in foster care.

(j) "Relative" means an individual who is at least 18 years of

age and related to the child by blood, marriage, or adoption, as

grandparent, great-grandparent, great-great-grandparent, aunt or

uncle, great-aunt or great-uncle, great-great-aunt or great-great-

uncle, sibling, stepsibling, nephew or niece, first cousin or first

cousin once removed, and the spouse of any of the above, even after

the marriage has ended by death or divorce. A child may be placed

with the parent of a man whom the court has found probable cause to

believe is the putative father if there is no man with legally

established rights to the child. A placement with the parent of a

putative father under this subdivision is not to be construed as a

finding of paternity or to confer legal standing on the putative

father.

(k) "Sex offenders registration act" means the sex offenders

registration act, 1994 PA 295, MCL 28.721 to 28.736.

(2) If a juvenile is alleged to be within the provisions of

section 2(b) of this chapter, the court may authorize a petition to

be filed at the conclusion of the preliminary hearing or inquiry.

The court may authorize the petition upon a showing of probable

cause that 1 or more of the allegations in the petition are true

and fall within the provisions of section 2(b) of this chapter. If

a petition is before the court because the ~~family independence~~

~~agency~~ department of human services is required to submit the

petition under section 17 of the child protection law, 1975 PA 238,

MCL 722.637, the court shall hold a hearing on the petition within

24 hours or on the next business day after the petition is

submitted, at which hearing the court shall consider at least the

matters governed by subsections (4) and (5).

(3) Except as provided in ~~subsection (5),~~ subsections (5) and

(6), if a petition under subsection (2) is authorized, the court

may release the juvenile in the custody of either of the juvenile's

parents or the juvenile's guardian or custodian under reasonable

terms and conditions necessary for either the juvenile's physical

health or mental well-being.

(4) The court may order a parent, guardian, custodian,

nonparent adult, or other person residing in a child's home to

leave the home and, except as the court orders, not to subsequently

return to the home if all of the following take place:

(a) A petition alleging abuse of the child by the parent,

guardian, custodian, nonparent adult, or other person is authorized

under subsection (2).

(b) The court after a hearing finds probable cause to believe

the parent, guardian, custodian, nonparent adult, or other person

committed the abuse.

home of the person alleged to have committed the abuse presents a

substantial risk of harm to the child's life, physical health, or

mental well-being.

(5) If a petition alleges abuse by a person described in

subsection (4), regardless of whether the court orders the alleged

abuser to leave the child's home under subsection (4), the court

shall not leave the child in or return the child to the child's

home or place the child with a person not licensed under 1973 PA

116, MCL 722.111 to 722.128, unless the court finds that the

conditions of custody at the placement and with the individual with

whom the child is placed are adequate to safeguard the child from

the risk of harm to the child's life, physical health, or mental

well-being.

(6) If a court finds a parent is required by court order to

of human services may, but is not required to, make reasonable

efforts to reunify the child with the parent. The court may order

reasonable efforts to be made by the department of human services.

(7) ~~(6)~~ In determining whether to enter an order under

subsection (4), the court may consider whether the parent who is to

remain in the juvenile's home is married to the person to be

removed or has a legal right to retain possession of the home.

(8) ~~(7)~~ An order entered under subsection (4) may also contain

1 or more of the following terms or conditions:

(a) The court may require the alleged abusive parent to pay

appropriate support to maintain a suitable home environment for the

juvenile during the duration of the order.

(b) The court may order the alleged abusive person, according

to terms the court may set, to surrender to a local law enforcement

agency any firearms or other potentially dangerous weapons the

alleged abusive person owns, possesses, or uses.

necessary for the juvenile's physical or mental well-being or

necessary to protect the juvenile.

(9) ~~(8)~~ If the court orders placement of the juvenile outside

the juvenile's home, the court shall inform the parties of the

following:

(a) That the agency has the responsibility to prepare an

initial services plan within 30 days of the juvenile's placement.

(b) The general elements of an initial services plan as

required by the rules promulgated under 1973 PA 116, MCL 722.111 to

722.128.

voluntary without a court order.

(10) ~~(9)~~ Before or within 7 days after a child is placed in a

relative's home, the ~~family independence agency~~ department of human

services shall perform a criminal record check and central registry

clearance. If the child is placed in the home of a relative, the

court shall order a home study to be performed and a copy of the

home study to be submitted to the court not more than 30 days after

the placement.

(11) ~~(10)~~ In determining placement of a juvenile pending

trial, the court shall order the juvenile placed in the most

family-like setting available consistent with the juvenile's needs.

(12) ~~(11)~~ If a juvenile is removed from his or her home, the

court shall permit the juvenile's parent to have frequent parenting

time with the juvenile. If parenting time, even if supervised, may

be harmful to the juvenile, the court shall order the child to have

a psychological evaluation or counseling, or both, to determine the

appropriateness and the conditions of parenting time. The court may

suspend parenting time while the psychological evaluation or

counseling is conducted.

(13) ~~(12)~~ Upon the motion of any party, the court shall review

custody and placement orders and initial services plans pending

trial and may modify those orders and plans as the court considers

under this section are in the juvenile's best interests.

(14) ~~(13)~~ The court shall include in an order placing a child

in foster care an order directing the release of information

concerning the child in accordance with this subsection. If a child

is placed in foster care, within 10 days after receipt of a written

request, the agency shall provide the person who is providing the

foster care with copies of all initial, updated, and revised case

service plans and court orders relating to the child and all of the

child's medical, mental health, and education reports, including

reports compiled before the child was placed with that person.

(15) ~~(14)~~ In an order placing a child in foster care, the

court shall include both of the following:

(a) An order that the child's parent, guardian, or custodian

provide the supervising agency with the name and address of each of

the child's medical providers.

(b) An order that each of the child's medical providers

release the child's medical records. The order may specify

providers by profession or type of institution.

(16) ~~(15)~~ As used in this section, "abuse" means 1 or more of

the following:

(a) Harm or threatened harm by a person to a juvenile's health

or welfare that occurs through nonaccidental physical or mental

injury.

(b) Engaging in sexual contact or sexual penetration as

defined in section 520a of the Michigan penal code, 1931 PA 328,

MCL 750.520a, with a juvenile.

not limited to, allowing, permitting, or encouraging a juvenile to

engage in prostitution or allowing, permitting, encouraging, or

engaging in photographing, filming, or depicting a juvenile engaged

in a listed sexual act as defined in section 145c of the Michigan

penal code, 1931 PA 328, MCL 750.145c.

(d) Maltreatment of a juvenile.

Sec. 17d. (1) A lawyer-guardian ad litem's duty is to the

child, and not the court. The lawyer-guardian ad litem's powers and

duties include at least all of the following:

(a) The obligations of the attorney-client privilege.

(b) To serve as the independent representative for the child's

best interests, and be entitled to full and active participation in

all aspects of the litigation and access to all relevant

information regarding the child.

independent investigation including, but not limited to,

interviewing the child, social workers, family members, and others

as necessary, and reviewing relevant reports and other information.

The agency case file shall be reviewed before disposition and

before the hearing for termination of parental rights. Updated

materials shall be reviewed as provided to the court and parties.

The supervising agency shall provide documentation of progress

relating to all aspects of the last court ordered treatment plan,

including copies of evaluations and therapy reports and

verification of parenting time not later than 5 business days

before the scheduled hearing.

(d) To meet with or observe the child and assess the child's

needs and wishes with regard to the representation and the issues

in the case in the following instances:

(i) Before the pretrial hearing.

(ii) Before the initial disposition, if held more than 91 days

after the petition has been authorized.

(iii) Before a dispositional review hearing.

(iv) Before a permanency planning hearing.

(v) Before a post-termination review hearing.

(vi) At least once during the pendency of a supplemental

petition.

(vii) At other times as ordered by the court. Adjourned or

continued hearings do not require additional visits unless directed

by the court.

(e) The court may allow alternative means of contact with the

child if good cause is shown on the record.

(f) To explain to the child, taking into account the child's

ability to understand the proceedings, the lawyer-guardian ad

litem's role.

(g) To file all necessary pleadings and papers and

independently call witnesses on the child's behalf.

(h) To attend all hearings and substitute representation for

the child only with court approval.

(i) To make a determination regarding the child's best

interests and advocate for those best interests according to the

lawyer-guardian ad litem's understanding of those best interests,

regardless of whether the lawyer-guardian ad litem's determination

reflects the child's wishes. The child's wishes are relevant to the

lawyer-guardian ad litem's determination of the child's best

interests, and the lawyer-guardian ad litem shall weigh the child's

wishes according to the child's competence and maturity. Consistent

with the law governing attorney-client privilege, the lawyer-

guardian ad litem shall inform the court as to the child's wishes

and preferences.

(j) To monitor the implementation of case plans and court

orders, and determine whether services the court ordered for the

child or the child's family are being provided in a timely manner

and are accomplishing their purpose. The lawyer-guardian ad litem

shall inform the court if the services are not being provided in a

timely manner, if the family fails to take advantage of the

services, or if the services are not accomplishing their intended

purpose.

(k) Consistent with the rules of professional responsibility,

to identify common interests among the parties and, to the extent

possible, promote a cooperative resolution of the matter through

consultation with the child's parent, foster care provider,

guardian, and caseworker.

(l) To request authorization by the court to pursue issues on

the child's behalf that do not arise specifically from the court

appointment.

(m) To participate in training in early childhood, child, and

adolescent development.

(2) If, after discussion between the child and his or her

lawyer-guardian ad litem, the lawyer-guardian ad litem determines

that the child's interests as identified by the child are

inconsistent with the lawyer-guardian ad litem's determination of

the child's best interests, the lawyer-guardian ad litem shall

communicate the child's position to the court. If the court

considers the appointment appropriate considering the child's age

and maturity and the nature of the inconsistency between the

child's and the lawyer-guardian ad litem's identification of the

child's interests, the court may appoint an attorney for the child.

An attorney appointed under this subsection serves in addition to

the child's lawyer-guardian ad litem.

(3) The court or another party to the case shall not call a

lawyer-guardian ad litem as a witness to testify regarding matters

related to the case. The lawyer-guardian ad litem's file of the

case is not discoverable.

Sec. 18f. (1) If, in a proceeding under section 2(b) of this

chapter, an agency advises the court against placing a child in the

custody of the child's parent, guardian, or custodian, the agency

shall report in writing to the court what efforts were made to

prevent the child's removal from his or her home or the efforts

made to rectify the conditions that caused the child's removal from

his or her home. The report shall include all of the following:

(a) If services were provided to the child and his or her

parent, guardian, or custodian, the services, including in-home

services, that were provided.

(b) If services were not provided to the child and his or her

parent, guardian, or custodian, the reasons why services were not

provided.

from his or her parent, guardian, or custodian.

(d) Likely harm to the child if the child were to be returned

to his or her parent, guardian, or custodian.

(2) Before the court enters an order of disposition in a

proceeding under section 2(b) of this chapter, the agency shall

prepare a case service plan that shall be available to the court

and all the parties to the proceeding.

(3) The case service plan shall provide for placing the child

in the most family-like setting available and in as close proximity

to the child's parents' home as is consistent with the child's best

interests and special needs. The case service plan shall include,

but is not limited to, the following:

(a) The type of home or institution in which the child is to

be placed and the reasons for the selected placement.

(b) Efforts to be made by the child's parent to enable the

child to return to his or her home.

his or her home.

(d) Schedule of services to be provided to the parent, child,

and if the child is to be placed in foster care, the foster parent,

to facilitate the child's return to his or her home or to

facilitate the child's permanent placement.

(e) Except as otherwise provided in this subdivision, unless

parenting time, even if supervised, would be harmful to the child

as determined by the court under section 13a of this chapter or

otherwise, a schedule for regular and frequent parenting time

between the child and his or her parent, which shall not be less

than once every 7 days.

(f) Conditions that would limit or preclude placement or

parenting time with a parent who is required by court order to

(4) Before the court enters an order of disposition, the court

shall consider the case service plan; any written or oral

information offered concerning the child from the child's parent,

guardian, custodian, foster parent, child caring institution,

relative with whom the child is placed, lawyer-guardian ad litem,

attorney, or guardian ad litem; and any other evidence offered,

including the appropriateness of parenting time, which information

or evidence bears on the disposition. The order of disposition

shall state whether reasonable efforts have been made to prevent

the child's removal from his or her home or to rectify the

conditions that caused the child's removal from his or her home.

The court may order compliance with all or any part of the case

service plan as the court considers necessary.

(5) If a child continues in placement outside of the child's

home, the case service plan shall be updated and revised at 90-day

intervals as required by the rules promulgated under 1973 PA 116,

MCL 722.111 to 722.128. The agency shall consult with the foster

parents when it updates and revises the case service plan, and

shall attach a statement summarizing the information received from

the foster parents to the updated and revised case service plan.

Updated and revised case service plans shall be available to the

court and all the parties to the proceeding. Within 10 days after

receipt of a written request, the agency shall provide the person

who is providing the foster care with the information itemized in

section ~~13a(13)~~ 13a(14) of this chapter.

(6) To ensure that the case service plan addresses the child's

medical needs in relation to abuse and neglect, the ~~family~~

~~independence agency~~ department of human services shall review a

child's case with the child's attending physician of record during

a hospitalization or with the child's primary care physician, but

only if a physician has diagnosed the child's abuse or neglect as

involving 1 or more of the following:

(a) Failure to thrive.

(b) Munchausen syndrome by proxy.

(d) A bone fracture that is diagnosed as being the result of

abuse or neglect.

(e) Drug exposure.

(7) If a child is placed outside of his or her home and the

~~family independence agency~~ department of human services is required

to review the child's case with a physician under subsection (6),

then in a judicial proceeding to determine if the child is to be

returned to his or her home, the court must allow the child's

attending physician of record during a hospitalization or the

child's primary care physician to testify regarding the case

service plan. The court shall notify each physician of the

hearing's time and place.

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.

involuntarily terminated.

(d) The parent is required by court order to register under

the sex offenders registration act.

(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.

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.

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.

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.

with the court within 30 days unless a home study has been

performed within the immediately preceding 365 days, under section

~~13a(9)~~ 13a(10) 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 of human services 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. 19b. (1) Except as provided in subsection (4), if a child

remains in foster care in the temporary custody of the court

following a review hearing under section 19(3) of this chapter or a

permanency planning hearing under section 19a of this chapter or if

a child remains in the custody of a guardian or limited guardian,

upon petition of the prosecuting attorney, whether or not the

prosecuting attorney is representing or acting as legal consultant

to the agency or any other party, or petition of the child,

guardian, custodian, concerned person, ~~as defined in subsection~~

~~(6),~~ agency, or children's ombudsman as authorized in section 7 of

the children's ombudsman act, 1994 PA 204, MCL 722.927, the court

shall hold a hearing to determine if the parental rights to a child

should be terminated and, if all parental rights to the child are

terminated, the child placed in permanent custody of the court. The

court shall state on the record or in writing its findings of fact

and conclusions of law with respect to whether or not parental

rights should be terminated. The court shall issue an opinion or

order regarding a petition for termination of parental rights

within 70 days after the commencement of the initial hearing on the

petition. The court's failure to issue an opinion within 70 days

does not dismiss the petition.

(2) Not less than 14 days before a hearing to determine if the

parental rights to a child should be terminated, written notice of

the hearing 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 child's foster parent or custodian.

(d) If the child has a guardian, the child's guardian.

(e) If the child has a guardian ad litem, the child's guardian

ad litem.

(f) If tribal affiliation has been determined, the Indian

tribe's elected leader.

(g) The child's attorney and each party's attorney.

(h) If the child is 11 years of age or older, the child.

(i) The prosecutor.

(3) The court may terminate a parent's parental rights to a

child if the court finds, by clear and convincing evidence, 1 or

more of the following:

(a) The child has been deserted under any of the following

circumstances:

(i) The child's parent is unidentifiable, has deserted the

child for 28 or more days, and has not sought custody of the child

during that period. For the purposes of this section, a parent is

unidentifiable if the parent's identity cannot be ascertained after

reasonable efforts have been made to locate and identify the

parent.

(ii) The child's parent has deserted the child for 91 or more

days and has not sought custody of the child during that period.

(iii) The child's parent voluntarily surrendered the child to an

emergency service provider under chapter XII and did not petition

the court to regain custody within 28 days after surrendering the

child.

(b) The child or a sibling of the child has suffered physical

injury or physical or sexual abuse under 1 or more of the following

circumstances:

(i) The parent's act caused the physical injury or physical or

sexual abuse and the court finds that there is a reasonable

likelihood that the child will suffer from injury or abuse in the

foreseeable future if placed in the parent's home.

(ii) The parent who had the opportunity to prevent the physical

injury or physical or sexual abuse failed to do so and the court

finds that there is a reasonable likelihood that the child will

suffer injury or abuse in the foreseeable future if placed in the

parent's home.

(iii) A nonparent adult's act caused the physical injury or

physical or sexual abuse and the court finds that there is a

reasonable likelihood that the child will suffer from injury or

abuse by the nonparent adult in the foreseeable future if placed in

the parent's home.

this chapter, 182 or more days have elapsed since the issuance of

an initial dispositional order, and the court, by clear and

convincing evidence, finds either of the following:

(i) The conditions that led to the adjudication continue to

exist and there is no reasonable likelihood that the conditions

will be rectified within a reasonable time considering the child's

age.

(ii) Other conditions exist that cause the child to come within

the court's jurisdiction, the parent has received recommendations

to rectify those conditions, the conditions have not been rectified

by the parent after the parent has received notice and a hearing

and has been given a reasonable opportunity to rectify the

conditions, and there is no reasonable likelihood that the

conditions will be rectified within a reasonable time considering

the child's age.

(d) The child's parent has placed the child in a limited

guardianship under section 5205 of the estates and protected

individuals code, 1998 PA 386, MCL 700.5205, and has substantially

failed, without good cause, to comply with a limited guardianship

placement plan described in section 5205 of the estates and

protected individuals code, 1998 PA 386, MCL 700.5205, regarding

the child to the extent that the noncompliance has resulted in a

disruption of the parent-child relationship.

(e) The child has a guardian under the estates and protected

individuals code, 1998 PA 386, MCL 700.1101 to ~~700.8102,~~ 700.8206,

and the parent has substantially failed, without good cause, to

comply with a court-structured plan described in section 5207 or

5209 of the estates and protected individuals code, 1998 PA 386,

MCL 700.5207 and 700.5209, regarding the child to the extent that

the noncompliance has resulted in a disruption of the parent-child

relationship.

(f) The child has a guardian under the estates and protected

individuals code, 1998 PA 386, MCL 700.1101 to ~~700.8102,~~ 700.8206,

and both of the following have occurred:

(i) The parent, having the ability to support or assist in

supporting the minor, has failed or neglected, without good cause,

to provide regular and substantial support for the minor for a

period of 2 years or more before the filing of the petition or, if

a support order has been entered, has failed to substantially

comply with the order for a period of 2 years or more before the

filing of the petition.

(ii) The parent, having the ability to visit, contact, or

communicate with the minor, has regularly and substantially failed

or neglected, without good cause, to do so for a period of 2 years

or more before the filing of the petition.

(g) The parent, without regard to intent, fails to provide

proper care or custody for the child and there is no reasonable

expectation that the parent will be able to provide proper care and

custody within a reasonable time considering the child's age.

(h) The parent is imprisoned for such a period that the child

will be deprived of a normal home for a period exceeding 2 years,

and the parent has not provided for the child's proper care and

custody, and there is no reasonable expectation that the parent

will be able to provide proper care and custody within a reasonable

time considering the child's age.

(i) Parental rights to 1 or more siblings of the child have

been terminated due to serious and chronic neglect or physical or

sexual abuse, and prior attempts to rehabilitate the parents have

been unsuccessful.

(j) There is a reasonable likelihood, based on the conduct or

capacity of the child's parent, that the child will be harmed if he

or she is returned to the home of the parent.

(k) The parent abused the child or a sibling of the child and

the abuse included 1 or more of the following:

(i) Abandonment of a young child.

(ii) Criminal sexual conduct involving penetration, attempted

penetration, or assault with intent to penetrate.

(iii) Battering, torture, or other severe physical abuse.

(iv) Loss or serious impairment of an organ or limb.

(v) Life-threatening injury.

(vi) Murder or attempted murder.

(vii) Voluntary manslaughter.

(viii) Aiding and abetting, attempting to commit, conspiring to

commit, or soliciting murder or voluntary manslaughter.

(ix) Sexual abuse as that term is defined in section 2 of the

child protection law, 1975 PA 238, MCL 722.622.

(l) The parent's rights to another child were terminated as a

result of proceedings under section 2(b) of this chapter or a

similar law of another state.

(m) The parent's rights to another child were voluntarily

terminated following the initiation of proceedings under section

2(b) of this chapter or a similar law of another state and the

proceeding involved abuse that included 1 or more of the following:

(i) Abandonment of a young child.

(ii) Criminal sexual conduct involving penetration, attempted

penetration, or assault with intent to penetrate.

(iii) Battering, torture, or other severe physical abuse.

(iv) Loss or serious impairment of an organ or limb.

(v) Life-threatening injury.

(vi) Murder or attempted murder.

(vii) Voluntary manslaughter.

(viii) Aiding and abetting, attempting to commit, conspiring to

commit, or soliciting murder or voluntary manslaughter.

(ix) Sexual abuse as that term is defined in section 2 of the

child protection law, 1975 PA 238, MCL 722.622.

(n) The parent is convicted of 1 or more of the following, and

the court determines that termination is in the child's best

interests because continuing the parent-child relationship with the

parent would be harmful to the child:

(i) A violation of section 316, 317, 520b, 520c, 520d, 520e, or

520g of the Michigan penal code, 1931 PA 328, MCL 750.316, 750.317,

750.520b, 750.520c, 750.520d, 750.520e, and 750.520g.

(ii) A violation of a criminal statute that includes as an

element the use of force or the threat of force and that subjects

the parent to sentencing under section 10, 11, or 12 of chapter IX

of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11,

and 769.12.

(iii) A federal law or law of another state with provisions

substantially similar to a crime or procedure listed or described

in subparagraph (i) or (ii).

(4) If a petition to terminate the parental rights to a child

is filed, the court may enter an order terminating parental rights

under subsection (3) at the initial dispositional hearing. If a

petition to terminate parental rights to a child is filed, the

court may suspend parenting time for a parent who is a subject of

the petition.

(5) If the court finds that there are grounds for termination

of parental rights and that termination of parental rights is in

the child's best interests, the court shall order termination of

parental rights and order that additional efforts for reunification

of the child with the parent not be made.

(6) As used in this section, "concerned person" means a foster

parent with whom the child is living or has lived who has specific

knowledge of behavior by the parent constituting grounds for

termination under subsection (3)(b) or (g) and who has contacted

the department, the prosecuting attorney, the child's attorney, and

the child's guardian ad litem, if any, and is satisfied that none

of these persons intend to file a petition under this section.

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.

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 or his or her

designee. The MCI superintendent or his or her designee 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.

with the court within 30 days unless a home study has been

performed within the immediately preceding 365 days, under section

~~13a(9)~~ 13a(10) 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 of human services 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.