Bill Text: MI HB4078 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Children; adoption; documentation of progress for certain hearing; require. Amends secs. 19 & 19a, ch. XIIA of 1939 PA 288 (MCL 712A.19 & 712A.19a).
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-01-18 - Printed Bill Filed 01/14/2011 [HB4078 Detail]
Download: Michigan-2011-HB4078-Introduced.html
HOUSE BILL No. 4078
January 13, 2011, Introduced by Rep. Slavens and referred to the Committee on Families, Children, and Seniors.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending sections 19 and 19a of chapter XIIA (MCL 712A.19 and
712A.19a), section 19 as amended by 2008 PA 202 and section 19a as
amended by 2008 PA 200.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER XIIA
Sec. 19. (1) Subject to section 20 of this chapter, if a child
remains under the court's jurisdiction, a cause may be terminated
or an order may be amended or supplemented, within the authority
granted to the court in section 18 of this chapter, at any time as
the court considers necessary and proper. An amended or
supplemented order shall be referred to as a "supplemental order of
disposition". If the agency becomes aware of additional abuse or
neglect of a child who is under the court's jurisdiction and if
that abuse or neglect is substantiated as provided in the child
protection law, 1975 PA 238, MCL 722.621 to 722.638, the agency
shall file a supplemental petition with the court.
(2) Except as provided in subsections (3) and (4), if a child
subject to the court's jurisdiction remains in his or her home, a
review hearing shall be held not more than 182 days from the date a
petition is filed to give the court jurisdiction over the child and
no later than every 91 days after that for the first year that the
child is subject to the court's jurisdiction. After the first year
that the child is subject to the court's jurisdiction, a review
hearing shall be held no later than 182 days from the immediately
preceding review hearing before the end of that first year and no
later than every 182 days from each preceding review hearing
thereafter until the case is dismissed. A review hearing under this
subsection shall not be canceled or delayed beyond the number of
days required in this subsection, regardless of whether a petition
to terminate parental rights or another matter is pending. Upon
motion by any party or in the court's discretion, a review hearing
may be accelerated to review any element of the case service plan
prepared according to section 18f of this chapter.
(3) Except as otherwise provided in subsection (4), if, in a
proceeding under section 2(b) of this chapter, a child is subject
to the court's jurisdiction and removed from his or her home, a
review hearing shall be held not more than 182 days after the
child's removal from his or her home and no later than every 91
days after that for the first year that the child is subject to the
court's jurisdiction. After the first year that the child has been
removed from his or her home and is subject to the court's
jurisdiction, a review hearing shall be held not more than 182 days
from the immediately preceding review hearing before the end of
that first year and no later than every 182 days from each
preceding review hearing thereafter until the case is dismissed. A
review hearing under this subsection shall not be canceled or
delayed beyond the number of days required in this subsection,
regardless of whether a petition to terminate parental rights or
another matter is pending. Upon motion by any party or in the
court's discretion, a review hearing may be accelerated to review
any element of the case service plan prepared according to section
18f of this chapter.
(4) If a child is under the care and supervision of the agency
and is either placed with a relative and the placement is intended
to be permanent or is in a permanent foster family agreement, the
court shall hold a review hearing not more than 182 days after the
child has been removed from his or her home and no later than every
182 days after that so long as the child is subject to the
jurisdiction of the court, the Michigan children's institute, or
other agency. A review hearing under this subsection shall not be
canceled or delayed beyond the number of days required in this
subsection, regardless of whether a petition to terminate parental
rights or another matter is pending. Upon the motion of any party
or at the court's discretion, a review hearing may be accelerated
to review any element of the case service plan.
(5) Written notice of a review hearing under subsection (2),
(3), or (4) 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 child's foster parent or custodian.
(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) A nonparent adult if the nonparent adult is required to
comply with the case service plan.
(g) If tribal affiliation has been determined, the elected
leader of the Indian tribe.
(h) The attorney for the child, the attorneys for each party,
and the prosecuting attorney if the prosecuting attorney has
appeared in the case.
(i) If the child is 11 years of age or older, the child.
(j) Other persons as the court may direct.
(6) At a review hearing under subsection (2), (3), or (4), the
court shall review on the record all of the following:
(a) Compliance with the case service plan with respect to
services provided or offered to the child and the child's parent,
guardian, custodian, or nonparent adult if the nonparent adult is
required to comply with the case service plan and whether the
parent, guardian, custodian, or nonparent adult if the nonparent
adult is required to comply with the case service plan has complied
with and benefited from those services.
(b) Compliance with the case service plan with respect to
parenting time with the child. If parenting time did not occur or
was infrequent, the court shall determine why parenting time did
not occur or was infrequent.
(c) The extent to which the parent complied with each
provision of the case service plan, prior court orders, and an
agreement between the parent and the agency.
(d) Likely harm to the child if the child continues to be
separated from the child's parent, guardian, or custodian.
(e) Likely harm to the child if the child is returned to the
child's parent, guardian, or custodian.
(7) After review of the case service plan, the court shall
determine the extent of progress made toward alleviating or
mitigating the conditions that caused the child to be placed in
foster care or that caused the child to remain in foster care. The
court may modify any part of the case service plan including, but
not limited to, the following:
(a) Prescribing additional services that are necessary to
rectify the conditions that caused the child to be placed in foster
care or to remain in foster care.
(b) Prescribing additional actions to be taken by the parent,
guardian, nonparent adult, or custodian, to rectify the conditions
that caused the child to be placed in foster care or to remain in
foster care.
(8) At a review hearing under subsection (2), (3), or (4), the
court shall determine the continuing necessity and appropriateness
of the child's placement and shall order the return of the child to
the custody of the parent, continue the dispositional order, modify
the dispositional order, or enter a new dispositional order.
(9) If in a proceeding under section 2(b) of this chapter a
child is placed in foster care, the court shall determine at the
dispositional hearing and each review hearing whether the cause
should be reviewed before the next review hearing required by
subsection (2), (3), or (4). In making this determination, the
court shall consider at least all of the following:
(a) The parent's ability and motivation to make necessary
changes to provide a suitable environment for the child.
(b) Whether there is a reasonable likelihood that the child
may be returned to his or her home prior to the next review hearing
required by subsection (2), (3), or (4).
(10) Unless waived, if not less than 7 days' notice is given
to all parties prior to the return of a child to the child's home,
and no party requests a hearing within the 7 days, the court may
issue an order without a hearing permitting the agency to return
the child to the child's home.
(11) For a hearing under this section, the supervising agency
shall provide documentation of progress relating to all aspects of
the last court-ordered treatment plan, including copies of
evaluations and therapy reports and verification of parenting time,
to all parties and their attorneys not later than 5 business days
before the scheduled hearing. An agency report filed with the court
shall be accessible to all parties to the action and shall be
offered into evidence. 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 a child is placed, attorney, lawyer-guardian ad litem, or
guardian ad litem, in addition to any other evidence, including the
appropriateness of parenting time, offered at the hearing.
(12) Reasonable efforts to finalize an alternate permanency
plan may be made concurrently with reasonable efforts to reunify
the child with the family.
(13) Reasonable efforts to place a child for adoption or with
a legal guardian, including identifying appropriate in-state or
out-of-state options, may be made concurrently with reasonable
efforts to reunify the child and family.
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 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(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) For a hearing under this section, the supervising agency
shall provide documentation of progress relating to all aspects of
the last court-ordered treatment plan, including copies of
evaluations and therapy reports and verification of parenting time,
to all parties and their attorneys not later than 5 business days
before the scheduled hearing. 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.
