SB-0669, As Passed House, June 26, 2008

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 669

     A bill to amend 1939 PA 288, entitled

"Probate code of 1939,"

by amending section 19a of chapter XIIA (MCL 712A.19a), as amended

by 2004 PA 473.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER XIIA

     Sec. 19a. (1) Subject to subsection (2), if a child remains in

foster care and parental rights to the child have not been

terminated, the court shall conduct a permanency planning hearing

within 12 months after the child was removed from his or her home.

Subsequent permanency planning hearings shall be held no later than

every 12 months after each preceding permanency planning hearing

during the continuation of foster care. If proper notice for a

permanency planning hearing is provided, a permanency planning

hearing may be combined with a review hearing held under section

19(2) to (4) of this chapter, but no later than 12 months from the

removal of the child from his or her home, from the preceding

permanency planning hearing, or from the number of days required

under subsection (2). A permanency planning hearing shall not be

canceled or delayed beyond the number of months required by this

subsection or days as required under subsection (2), regardless of

whether there is a petition for termination of parental rights

pending.

     (2) The court shall conduct a permanency planning hearing

within 30 days after there is a judicial determination that

reasonable efforts to reunite the child and family are not

required. Reasonable efforts to reunify the child and family must

be made in all cases except if any of the following apply:

     (a) There is a judicial determination that the parent has

subjected the child to aggravated circumstances as provided in

section 18(1) and (2) of the child protection law, 1975 PA 238, MCL

722.638.

     (b) The parent has been convicted of 1 or more of the

following:

     (i) Murder of another child of the parent.

     (ii) Voluntary manslaughter of another child of the parent.

     (iii) Aiding or abetting in the murder of another child of the

parent or voluntary manslaughter of another child of the parent,

the attempted murder of the child or another child of the parent,

or the conspiracy or solicitation to commit the murder of the child

or another child of the parent.

     (iv) A felony assault that results in serious bodily injury to

the child or another child of the parent.

     (c) The parent has had rights to the child's siblings

involuntarily terminated.

     (3) A permanency planning hearing shall be conducted to review

the status of the child and the progress being made toward the

child's return home or to show why the child should not be placed

in the permanent custody of the court. The court shall obtain the

child's views regarding the permanency plan in a manner that is

appropriate to the child's age. In the case of a child who will not

be returned home, the court shall consider in-state and out-of-

state placement options. In the case of a child placed out-of-

state, the court shall determine whether the out-of-state placement

continues to be appropriate and in the child's best interests. The

court shall ensure that the agency is providing appropriate

services to assist a child who will transition from foster care to

independent living.

     (4) Not less than 14 days before a permanency planning

hearing, written notice of the hearing and a statement of the

purposes of the hearing, including a notice that the hearing may

result in further proceedings to terminate parental rights, shall

be served upon all of the following:

     (a) The agency. The agency shall advise the child of the

hearing if the child is 11 years of age or older.

     (b) The foster parent or custodian of the child.

     (c) If the parental rights to the child have not been

terminated, the child's parents.

     (d) If the child has a guardian, the guardian for the child.

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

litem for the child.

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

leader of the Indian tribe.

     (g) The attorney for the child, the attorneys for each party,

and the prosecuting attorney if the prosecuting attorney has

appeared in the case.

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

     (i) Other persons as the court may direct.

     (5) If parental rights to the child have not been terminated

and the court determines at a permanency planning hearing that the

return of the child to his or her parent would not cause a

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

mental well-being, the court shall order the child returned to his

or her parent. In determining whether the return of the child would

cause a substantial risk of harm to the child, the court shall view

the failure of the parent to substantially comply with the terms

and conditions of the case service plan prepared under section 18f

of this chapter as evidence that return of the child to his or her

parent would cause a substantial risk of harm to the child's life,

physical health, or mental well-being. In addition to considering

conduct of the parent as evidence of substantial risk of harm, the

court shall consider any condition or circumstance of the child

that may be evidence that a return to the parent would cause a

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

mental well-being.

     (6) If the court determines at a permanency planning hearing

that the a child should not be returned to his or her parent, the

court shall may order the agency to initiate proceedings to

terminate parental rights. to the child not later than 42 days

after the permanency planning hearing, unless the court finds that

initiating the termination of parental rights to the child is

clearly not in the child's best interests. 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 either 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

Senate Bill No. 669 (H-1) as amended June 26, 2008

(10) and the court shall order the department of human services to

do all of the following:

     (a) Perform a criminal record check within 7 days.

     (b) Perform a central registry clearance within 7 days.

     (c) Perform a home study and file a copy of the home study

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

performed within the immediately preceding 365 days, under section

13a(9) of this chapter. If a home study has been performed within

the immediately preceding 365 days, a copy of that home study shall

be submitted to the court.

[(10) The court's jurisdiction over a juvenile under section 2(b)

of this chapter shall be terminated after the court appoints a guardian

under this section and conducts a review hearing under section 19 of this

chapter, unless the juvenile is released sooner by the court.

     (11) The court's jurisdiction over a guardianship created under

this section shall continue until released by court order. The court

shall review a guardianship created under this section annually and may conduct additional reviews as the court considers necessary. The court may order the department or a court employee to conduct an investigation and file a written report of the investigation.]

(12) (8) 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.