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.