SB-0320, As Passed Senate, May 29, 2012

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 320

A bill to amend 1939 PA 288, entitled

"Probate code of 1939,"

by amending sections 10, 13a, and 14 of chapter XIIA (MCL 712A.10,

712A.13a, and 712A.14), section 10 as amended by 1988 PA 92,

section 13a as amended by 2012 PA 115, and section 14 as amended by

2001 PA 211, and by adding sections 14a and 14b to chapter XIIA.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER XIIA

Sec. 10. (1) Except as otherwise provided in subsection (2)

and sections 14, 14a, and 14b of this chapter, the judge ~~of probate~~

may designate a probation officer or county agent to act as referee

in taking the testimony of witnesses and hearing the statements of

parties upon the hearing of petitions alleging that a child is

within the provisions of this chapter, if there is no objection by

parties in interest. The probation officer or county agent

designated to act as referee shall do all of the following:

(a) Take and subscribe the oath of office provided by the

constitution.

(b) Administer oaths and examine witnesses.

make a written signed report to the judge ~~of probate~~ containing a

summary of the testimony taken and a recommendation for the court's

findings and disposition.

(2) If a child is before the court under section 2(a)(1) of

this chapter, a probation officer or county agent who is not

licensed to practice law in this state shall not be designated to

act as a referee in any hearing for the child, except the

preliminary inquiry or preliminary hearing. This subsection ~~shall~~

does not apply to a probation officer or county agent who has been

designated to act as a referee by the ~~probate~~ judge ~~prior to~~ before

January 1, 1988 and who is acting as a referee as of January 1,

1988.

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.

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.

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) 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.

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).

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) ~~(9)~~ 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.

(11) ~~(10)~~ 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) ~~(11)~~ 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) ~~(12)~~ 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) ~~(13)~~ 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) ~~(14)~~ 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) ~~(15)~~ 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) ~~(16)~~ 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. 14. (1) Any local police officer, sheriff or deputy

sheriff, state police officer, county agent or probation officer of

any court of record may, without the order of the court,

immediately take into custody any child who is found violating any

law or ordinance, ~~or whose surroundings are such as to endanger his~~

~~or her health, morals, or welfare,~~ or for whom there is reasonable

cause to believe is violating or has violated a personal protection

order issued ~~pursuant to~~ under section 2(h) of this chapter by the

court under section 2950 or 2950a of the revised judicature act of

1961, 1961 PA 236, MCL 600.2950 and 600.2950a, or for whom there is

reasonable cause to believe is violating or has violated a valid

foreign protection order. If ~~such an~~ the officer or county agent

takes a child coming within the provisions of this chapter into

custody, he or she shall immediately attempt to notify the parent

or parents, guardian, or custodian. While awaiting the arrival of

the parent or parents, guardian, or custodian, a child under the

age of 17 years taken into custody under the provisions of this

chapter shall not be held in any detention facility unless the

child is completely isolated so as to prevent any verbal, visual,

or physical contact with any adult prisoner. Unless the child

requires immediate detention as provided for in this act, the

officer shall accept the written promise of the parent or parents,

guardian, or custodian, to bring the child to the court at a fixed

time. ~~fixed therein.~~ The child shall then be released to the

custody of the parent or parents, guardian, or custodian.

(2) If a child is not released under subsection (1), the child

and his or her parents, guardian, or custodian, if they can be

located, shall immediately be brought before the court for a

preliminary hearing on the status of the child, and an order signed

by a judge ~~of probate~~ or a referee authorizing the filing of a

complaint shall be entered or the child shall be released to his or

her parent or parents, guardian, or custodian.

(3) If a complaint is authorized under subsection (2), the

order shall state where the child is to be placed, pending

investigation and hearing, which placement may be in any of the

following:

(a) In the home of the child's parent, guardian, or custodian.

(b) If a child is within the court's jurisdiction under

section 2(a) of this chapter, in a suitable foster care home

subject to the court's supervision. Except as otherwise provided in

subsections (4) and (5), if a child is within the court's

jurisdiction under section 2(b) of this chapter, the court shall

not place a child in a foster care home subject to the court's

supervision.

licensed by the ~~state~~ department of ~~social~~ human services to

receive for care children within the jurisdiction of the court.

(d) In a suitable place of detention.

(4) Except as otherwise provided in subsection (5), if a court

is providing at the time of the enactment of this subsection foster

care home services subject to the court's supervision to children

within section 2(b) of this chapter, the court may continue to

provide those services through December 31, 1989. Beginning January

1, 1990, the court shall discontinue providing those services.

(5) If a court located in a county with a population in excess

of 650,000 is providing at the time of the enactment of this

subsection foster care home services subject to the court's

supervision to children within section 2(b) of this chapter, the

court may continue to provide those services through December 31,

1991. Beginning January 1, 1992, the court shall discontinue those

services.

Sec. 14a. (1) If there is reasonable cause to believe that a

child is at substantial risk of harm or is in surroundings that

present an imminent risk of harm and the child's immediate removal

from those surroundings is necessary to protect the child's health

and safety, an officer may, without a court order, immediately take

that child into protective custody. An officer who takes a child

into protective custody under this section shall immediately notify

the department of human services. While awaiting the arrival of the

department of human services, the child shall not be held in a

detention facility.

(2) If a child taken into protective custody under this

section is not released, the officer or the department of human

services shall immediately contact the designated judge or referee,

as provided in subsection (3), to seek a court order for placement

of the child pending a preliminary hearing.

(3) A judge or referee shall be designated as the contact when

a placement order is sought for a child in protective custody under

this section. In accordance with the provisions of section 14b of

this chapter, if the court is closed, the designated judge or

referee may, upon receipt electronically or otherwise of a petition

or affidavit of facts, order placement if the placement order is

communicated in writing, electronically or otherwise, to the

appropriate county department office and filed with the court the

next business day. When a placement order is issued by a designated

referee, the order shall take effect as an interim order pending a

preliminary hearing.

(4) As used in this section, "officer" means a local police

officer, sheriff or deputy sheriff, state police officer, or county

agent or probation officer of a court of record.

Sec. 14b. (1) Upon receipt electronically or otherwise of a

petition or affidavit of facts, a judge or referee may issue a

written ex parte order, electronically or otherwise, authorizing

the department of human services to immediately take a child into

protective custody and place the child pending the preliminary

hearing if the court finds all of the following:

(a) There is reasonable cause to believe that the child is at

substantial risk of harm or is in surroundings that present an

imminent risk of harm and the child's immediate removal from those

surroundings is necessary to protect the child's health and safety.

(b) The circumstances warrant issuing an ex parte order

pending the preliminary hearing.

made to prevent or eliminate the need for removal of the child.

(d) No remedy other than protective custody is reasonably

available to protect the child.

(e) Continuing to reside in the home is contrary to the

child's welfare.