SENATE BILL No. 1215

 

 

July 18, 2012, Introduced by Senator CASWELL and referred to the Committee on Judiciary.

 

 

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending sections 5204, 5207, 5208, 5209, and 5213 (MCL

 

700.5204, 700.5207, 700.5208, 700.5209, and 700.5213), section 5204

 

as amended by 2005 PA 204 and section 5213 as amended by 2000 PA

 

54.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5204. (1) A person interested in the welfare of a minor,

 

or a minor if 14 years of age or older, may petition for the

 

appointment of a guardian for the minor. The court may order the

 

family independence agency department of human services or a court

 

employee or agent to conduct an investigation of the proposed

 

guardianship and file a written report of the investigation.

 

     (2) The court may appoint a guardian for an unmarried minor if

 

any of the following circumstances exist:


 

     (a) The parental rights of both parents or the surviving

 

parent are terminated or suspended by prior court order, by

 

judgment of divorce or separate maintenance, by death, by judicial

 

determination of mental incompetency, by disappearance, or by

 

confinement in a place of detention.

 

     (b) The parent or parents permit the minor to reside with

 

another person and do not provide the other person with legal

 

authority for the minor's care and maintenance, and the minor is

 

not residing with his or her parent or parents when the petition is

 

filed.

 

     (c) All of the following:

 

     (i) The minor's biological parents have never been married to

 

one another.

 

     (ii) The minor's parent who has custody of the minor dies or is

 

missing and the other parent has not been granted legal custody

 

under court order.

 

     (iii) The person whom the petition asks to be appointed guardian

 

is related to the minor within the fifth degree by marriage, blood,

 

or adoption.

 

     (3) A minor's limited guardian may petition to be appointed a

 

guardian for that minor, except that the petition shall not be

 

based upon suspension of parental rights by the order that

 

appointed that person the limited guardian for that minor.

 

     (4) A guardian appointed under section 5202 whose appointment

 

is not prevented or nullified under section 5203 has priority over

 

a guardian who may be appointed by the court. The court may proceed

 

with an appointment upon a finding that a guardian appointed in a


 

manner described in section 5202 has failed to accept the

 

appointment within 28 days after the notice of the guardianship

 

proceeding.

 

     (5) For the minor ward's welfare, the court may at any time

 

order the minor ward's parents to pay reasonable support and order

 

reasonable parenting time and contact of the minor ward with his or

 

her parents.

 

     Sec. 5207. (1) The court may review a guardianship for a minor

 

as it considers necessary and shall review a guardianship annually

 

if the minor is under 6 years of age. In conducting the review, the

 

court shall consider all of the following factors:

 

     (a) The parent's and guardian's compliance with either of the

 

following, as applicable:

 

     (i) A limited guardianship placement plan.

 

     (ii) A court-structured plan under subsection (3)(b)(ii)(B) or

 

section 5209(2)(b)(ii).

 

     (b) Whether the guardian has adequately provided for the

 

minor's welfare.

 

     (c) The necessity of continuing the guardianship.

 

     (d) The guardian's willingness and ability to continue to

 

provide for the minor's welfare.

 

     (e) The effect upon the minor's welfare if the guardianship is

 

continued.

 

     (f) Any other factor that the court considers relevant to the

 

minor's welfare.

 

     (2) The court may order the family independence agency

 

department of human services or a court employee or agent to


 

conduct an investigation and file a written report of the

 

investigation regarding the factors listed in subsection (1).

 

     (3) Upon completion of a guardianship review, the court may do

 

either of the following:

 

     (a) Continue the guardianship.

 

     (b) Schedule and conduct a hearing on the guardianship's

 

status and do any of the following:

 

     (i) If the guardianship is a limited guardianship, do either of

 

the following:

 

     (A) Continue the limited guardianship.

 

     (B) Order the parties to modify the limited guardianship

 

placement plan as a condition to continuing the limited

 

guardianship.

 

     (ii) If the guardianship was established under section 5204, do

 

either of the following:

 

     (A) Continue the guardianship.

 

     (B) Order the parties to follow a court-structured plan

 

designed to resolve the conditions identified at the review

 

hearing.

 

     (iii) Take an action described in section 5209(2).

 

     Sec. 5208. (1) A minor's parent or parents may petition the

 

court to terminate a guardianship for the minor as follows:

 

     (a) If the guardianship is a limited guardianship, the parents

 

or the sole parent with a right to custody of the minor.

 

     (b) If the guardianship was established under section 5204,

 

the minor's parent or parents.

 

     (2) If a petition is filed to terminate a guardianship under


 

this section, the court may do 1 or more of the following:

 

     (a) Order the family independence agency department of human

 

services or a court employee or agent to conduct an investigation

 

and file a written report of the investigation regarding the best

 

interests of the minor or give testimony concerning the

 

investigation.

 

     (b) Utilize the community resources in behavioral sciences and

 

other professions in the investigation and study of the best

 

interests of the minor and consider their recommendations for the

 

disposition of the petition.

 

     (c) Appoint a guardian ad litem or attorney to represent the

 

minor.

 

     (d) Take any other action considered necessary in a particular

 

case.

 

     (3) This section and section 5209 apply to all guardianships

 

established before, on, or after the effective date of this

 

section.April 1, 2000.

 

     Sec. 5209. (1) After notice and hearing on a petition under

 

section 5208 to terminate a limited guardianship, the court shall

 

terminate the limited guardianship if it determines that the

 

minor's parent or parents have substantially complied with the

 

limited guardianship placement plan. The court may enter orders to

 

facilitate the minor's reintegration into the home of the parent or

 

parents for a period of up to 6 months before the termination.

 

     (2) For a petition to terminate a guardianship in which

 

subsection (1) does not apply, after notice and hearing, the court

 

may do any of the following:


 

     (a) Terminate the guardianship if the court determines that it

 

is in the best interests of the minor, and do any of the following:

 

     (i) Enter enter orders to facilitate the minor's reintegration

 

into the parent's home for a period of up to 6 months before the

 

termination.

 

     (ii) Order the family independence agency to supervise the

 

transition period when the minor is being reintegrated into his or

 

her parent's home.

 

     (iii) Order the family independence agency to provide services

 

to facilitate the minor's reintegration into his or her parent's

 

home.

 

     (b) Continue the guardianship for not more than 1 year after

 

the hearing date if the court determines that it is in the best

 

interests of the minor, and do any of the following:

 

     (i) If the guardianship is a limited guardianship, order the

 

parent or parents to comply with 1 of the following:

 

     (A) The limited guardianship placement plan.

 

     (B) A court-modified limited guardianship placement plan.

 

     (C) If the limited guardianship was established before

 

December 20, 1990, a court-structured plan that enables the minor

 

to return to the home of his or her parent or parents.

 

     (ii) If the guardianship is ordered under section 5204, order

 

the parent or parents to follow a court-structured plan that

 

enables the minor to return to the home of his or her parent or

 

parents.

 

     (iii) If a guardianship is continued under subparagraph (i) or

 

(ii), schedule and conduct a hearing to review the guardianship


 

before the expiration of the period of time that the guardianship

 

is continued and either terminate the guardianship or limited

 

guardianship or proceed under subdivision (c) or (d).

 

     (c) If the minor resides with the guardian or limited guardian

 

for not less than 1 year and if the court finds that the minor's

 

parent or parents have failed to provide the minor with parental

 

care, love, guidance, and attention appropriate to the child's age

 

and individual needs resulting in a substantial disruption of the

 

parent-child relationship, continue the guardianship if it is

 

established by clear and convincing evidence that the continuation

 

would serve the best interests of the minor.

 

     (d) Appoint an attorney to represent the minor or refer the

 

matter to the family independence agency department of human

 

services. The attorney or the family independence agency department

 

of human services may file a complaint on behalf of the minor

 

requesting the family division of the circuit court to take

 

jurisdiction of the minor under section 2(b) of chapter XIIA of the

 

probate code of 1939, 1939 PA 288, MCL 712A.2.

 

     Sec. 5213. (1) The petitioner shall give notice of the time

 

and place of hearing of a petition for the appointment of a minor's

 

guardian to each of the following:

 

     (a) The minor, if 14 years of age or older.

 

     (b) The person who had the principal care and custody of the

 

minor during the 63 days preceding the date of the petition.

 

     (c) Each living parent of the minor or, if neither of them is

 

living, the adult nearest of kin to the minor.

 

     (2) Upon hearing, if the court finds that a qualified person


 

seeks appointment, venue is proper, the required notices have been

 

given, the requirements of section 5204 or of sections 5205 and

 

5206 are satisfied, and the minor's welfare will be served by the

 

requested appointment, the court shall make the appointment. In

 

other cases, the court may dismiss the proceeding or make another

 

disposition of the matter that will serve the minor's welfare.

 

     (3) If necessary, the court may appoint a temporary guardian

 

with the status of an ordinary guardian of a minor, but the

 

temporary guardian's authority appointment shall not exceed 6

 

months.

 

     (4) If, at any time in the proceeding, the court determines

 

that the minor's interests are or may be inadequately represented,

 

the court may appoint a lawyer-guardian ad litem to represent the

 

minor, giving a consideration to the preference of the minor if the

 

minor is 14 years of age or older.

 

     (5) A lawyer-guardian ad litem appointed under this act

 

represents the child and has powers and duties in relation to that

 

representation as set forth in section 17d of chapter XIIA of the

 

probate code of 1939, 1939 PA 288, MCL 712A.17d. All provisions of

 

section 17d of chapter XIIA of the probate code of 1939, 1939 PA

 

288, MCL 712A.17d, apply to a lawyer-guardian ad litem appointed

 

under this act. In addition, both of the following apply under this

 

act:

 

     (a) In a proceeding in which a lawyer-guardian ad litem

 

represents a child, he or she may file a written report and

 

recommendation. The court may read the report and recommendation.

 

The court shall not, however, admit the report and recommendation


 

into evidence unless all parties stipulate the to its admission.

 

The parties may make use of the report and recommendation for

 

purposes of at a settlement conference.

 

     (b) After a determination of ability to pay, the court may

 

assess all or part of the costs and reasonable fees of a lawyer-

 

guardian ad litem and the costs of a court-ordered investigation

 

against 1 or more of the parties involved in the proceedings or

 

against the money allocated from marriage license fees for family

 

counseling services under section 3 of 1887 PA 128, MCL 551.103. A

 

lawyer-guardian ad litem shall not be paid a fee unless the court

 

first reviews and approves the fee.

 

     (6) To assist the court in determining a child's best

 

interest, the court may appoint a guardian ad litem for a child

 

involved in a proceeding under this section.