March 6, 2012, Introduced by Senators EMMONS, KOWALL, BRANDENBURG, HANSEN, JONES, JANSEN and MARLEAU and referred to the Committee on Families, Seniors and Human Services.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending sections 17d and 19b of chapter XIIA (MCL 712A.17d and
712A.19b), section 17d as amended by 2004 PA 475 and section 19b as
amended by 2010 PA 7.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER XIIA
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.
(c) To determine the facts of the case by conducting an
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. 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.
(c) The child's parents.
(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.
(c) The parent was a respondent in a proceeding brought under
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).
(o) The parent is required to register under the sex offenders
registration act, 1994 PA 295, MCL 28.721 to 28.736.
(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.