Bill Text: MI SB1303 | 2011-2012 | 96th Legislature | Engrossed
Bill Title: Children; parental rights; probate court jurisdiction to terminate parental rights of a parent who is or will be imprisoned for 2 or more years for offense against a child; provide for. Amends secs. 13a, 18f & 19a, ch. XIIA of 1939 PA 288 (MCL 712A.13a et seq.). TIE BAR WITH: SB 0694'11
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2012-12-12 - Referred To Second Reading [SB1303 Detail]
Download: Michigan-2011-SB1303-Engrossed.html
SB-1303, As Passed Senate, November 8, 2012
SUBSTITUTE FOR
SENATE BILL NO. 1303
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending sections 13a, 18f, and 19a of chapter XIIA (MCL
712A.13a, 712A.18f, and 712A.19a), section 13a as amended by 2012
PA 163 and sections 18f and 19a as amended by 2012 PA 115.
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 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 department of human services or contract agency foster
care file as defined under 1973 PA 116, MCL 722.111 to 722.128.
(c) "Attorney" means, if appointed to represent a child in a
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 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 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 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.
(c) The court finds on the record that the presence in the
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 that a parent is or will be imprisoned
for 2 or more years or is required by court order to register under
the sex offenders registration act, the department 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) 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) 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.
(c) The court may include any reasonable term or condition
necessary for the juvenile's physical or mental well-being or
necessary to protect the juvenile.
(9) The court may order placement of the child in foster care
if the court finds all of the following conditions:
(a) Custody of the child with the parent presents a
substantial risk of harm to the child's life, physical health, or
mental well-being.
(b) No provision of service or other arrangement except
removal of the child is reasonably available to adequately
safeguard the child from risk as described in subdivision (a).
(c) Continuing the child's residence in the home is contrary
to the child's welfare.
(d) Consistent with the circumstances, reasonable efforts were
made to prevent or eliminate the need for removal of the child.
(e) Conditions of child custody away from the parent are
adequate to safeguard the child's health and welfare.
(10) 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.
(c) That participation in the initial services plan is
voluntary without a court order.
(11) Before or within 7 days after a child is placed in a
relative's home, the 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.
(12) 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.
(13) 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.
(14) 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.
(15) 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.
(16) 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.
(17) 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.
(c) Sexual exploitation of a juvenile, which includes, but is
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. 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.
(c) Likely harm to the child if the child were to be separated
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. If a court finds that a
parent is or will be imprisoned in a state prison, an out-of-state
prison, or a federal prison for 2 or more years, the department of
human services may, but is not required to, provide services under
the case service plan in an effort to reunify the child with the
parent. The court may order reunification services to be made by
the department of human services.
(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.
(c) Efforts to be made by the agency to return the child to
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
register under the sex offenders registration act.
(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(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 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.
(c) Shaken baby syndrome.
(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
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.
(c) The parent has had rights to the child's siblings
involuntarily terminated.
(d) The parent is required by court order to register under
the sex offenders registration act.
(e) The parent is or will be imprisoned for 2 or more years.
(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(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.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 694 of the 96th Legislature is enacted into
law.
