16.7Court’s Options at Permanency Planning Hearings

“At or before each permanency planning hearing, the court shall determine whether the agency has made reasonable efforts to finalize the permanency plan.” MCL 712A.19a(4). See also MCR 3.976(A). MCL 712A.19(12) permits reasonable efforts to finalize an alternate permanency plan and reasonable efforts at reunification to be made concurrently. See also 45 CFR 1356.21(b)(4).

“At the [permanency planning] hearing, the court must review the permanency plan for a child in foster care [and] . . . determine whether and, if applicable, when:

   (1)    the child may be returned to the parent, guardian, or legal custodian;

(2)    a petition to terminate parental rights should be filed;

(3)    the child may be placed in a legal guardianship;^[1]

   (4)    the child may be permanently placed with a fit and willing relative;^[2] or

   (5)    the child may be placed in another planned permanent living arrangement, but only in those cases where the agency has documented to the court a compelling reason for determining that it would not be in the best interests of the child to follow one of the options listed in subrules (1)-(4).” MCR 3.976(A). See also 45 CFR 1355.20(a) and MCL 712A.19a(4), which contain substantially similar language.

The court must also determine “whether or not the agency, foster home, or institutional placement has followed the reasonable and prudent parenting standard^[3] that the child has had regular opportunities to engage in age or developmentally appropriate activities.” MCL 712A.19a(5). In addition, if the court is presented with a qualified residential treatment program as provided in MCL 722.123a, it must approve or disapprove the program. MCL 712A.19a(14). See also MCL 722.123a(3)(c); MCR 3.976(E)(2).

“In a proceeding under [the Juvenile Code] concerning a juvenile’s care and supervision, the court may [no longer] issue orders affecting a party as necessary[.]” See MCL 712A.2(i). For purposes of child protective proceedings, MCL 712A.2(i)(ii) defines party as “the petitioner, department, child, respondent, parent, guardian, or legal custodian, and any licensed child caring institution or child placing agency under contract with the department to provide for a juvenile’s care and supervision.”

A.Determining Whether Child Should Return to Parent, Guardian, or Legal Custodian

At a permanency planning hearing, the court must review the permanency plan for a child in foster care and decide whether the child should be returned to the parent, guardian, or legal custodian.⁴ MCL 712A.19a(4)(a); MCR 3.976(A)(1).

“At the conclusion of a permanency planning hearing, the court must order the child returned home unless it determines that the return would cause a substantial risk of harm to the life, the physical health, or the mental well-being of the child.” MCR 3.976(E)(2). See also MCL 712A.19a(7), which contains substantially similar language. In determining whether returning the child to the parent, guardian, or legal custodian would cause substantial risk of harm to the child, the court must:

•“view the failure of the parent to substantially comply with the terms and conditions of the case service plan prepared under [MCL 712A.18f] as evidence that returning 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.” MCL 712A.19a(7). See also MCR 3.976(E)(2), which contains substantially similar language.

•“consider any condition or circumstance of the child that may be evidence that returning the child to the parent would cause a substantial risk of harm to the child’s life, physical health, or mental well-being.” MCL 712A.19a(7); MCR 3.976(E)(2).

A parent’s physical compliance with a permanency plan is not equivalent to a parent benefiting from the services to improve his or her parenting ability. In re Gazella, 264 Mich App 668, 676 (2005), superseded in part on other grounds by In re Hansen, 285 Mich App 158 (2009), vacated 486 Mich 1037 (2010).⁵ The Court of Appeals discussed “compliance” as it related to an Adrianson order⁶ issued by the trial court “to give [the respondent-mother] one last chance to avoid termination.” Although not directly related to the compliance required by MCL 712A.19a, the Court’s discussion provides some insight into what may be required under the statute:

“‘Compliance’ could be interpreted as merely going through the motions physically; showing up for and sitting through counseling sessions, for example. However, it is not enough to merely go through the motions; a parent must benefit from the services offered so that he or she can improve parenting skills to the point where the children would no longer be at risk in the parent’s custody. In other words, it is necessary, but not sufficient, to physically comply with the terms of a parent[-]agency agreement or case service plan. For example, attending parenting classes, but learning nothing from them and, therefore, not changing one’s harmful parenting behaviors is of no benefit to the parent or child.

It could be argued that a parent complied with a case service plan that merely required attending parenting classes but was silent concerning the need for the parent to benefit from them. It is our opinion that such an interpretation would violate common sense and the spirit of the juvenile code, which is to protect children and rehabilitate parents whenever possible so that the parents will be able to provide a home for their children that is free of neglect or abuse.” In re Gazella, 264 Mich App at 676.

“If the court does not order the child returned home, and the child remains in a qualified residential treatment program, the court shall:

(a) review the evidence submitted by the Agency, approve or disapprove of the placement, and make individualized findings as to:

(i) whether the needs of the child can be met through placement in a family foster home; or if not,

(ii) whether the placement provides the most effective and appropriate level of care for the child in the least restrictive environment; and

(iii) whether the placement is consistent with the short- and long-term goals for the child, as specified in the permanency plan of the child.” MCR 3.976(E)(2).

B.Order Agency to Initiate Termination Proceedings

At a permanency planning hearing, the court must review the permanency plan for a child in foster care and may determine whether a petition to initiate termination of a parent’s parental rights should be filed. MCL 712A.19a(4)(b); MCR 3.976(A)(2).

“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.” MCL 712A.19a(8). See also MCR 3.976(E)(3), which contains substantially similar language. Except as otherwise provided by statute or court rule, the court must order the agency to initiate termination of parental rights proceedings if a child has been in foster care for 15 of the last 22 months.⁷ MCL 712A.19a(8); MCR 3.976(E)(3).

“If the court does not require the agency to initiate proceedings to terminate parental rights under [MCR 3.976(E)(3)], the court shall state on the record the reason or reasons for its decision.” MCR 3.976(E)(3). “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 400.111.

(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.” MCL 712A.19a(8). See also MCR 3.976(E)(3), 42 USC 675(5)(E) and 45 CFR 1356.21(i)(2), which contain substantially similar language.

See In re Mason, 486 Mich 142, 159-160 (2010), where the trial court committed clear error when it failed to consider the fact that a respondent-father had never been evaluated as a future placement or provided with services as required by MCL 712A.19a(8)(c):⁸

“Although the initial conditions of [MCL 712A.19a(8)] were met—the children could not yet be returned to respondent and they had been placed out of their home for more than 15 months—the court and the [DHHS] failed to consider that respondent had never been evaluated as a future placement or provided with services. . . . [The DHHS] disregarded respondent’s statutory right to be provided services and, as a result, extended the time it would take him to comply with the service plan upon his release from prison—which was potentially imminent at the time of the termination hearing. The state failed to involve or evaluate respondent, but then terminated his rights, in part because of his failure to comply with the service plan, while giving him no opportunity to comply in the future. This constituted clear error. As [this Court] observed in In re Rood, [483 Mich 73, 119 (2009),] a court may not terminate parental rights on the basis of ‘circumstances and missing information directly attributable to respondent’s lack of meaningful prior participation.’” In re Mason, 486 Mich at 159-160.

If the Title IV-E agency files or joins a petition to terminate parental rights, “it must concurrently begin to identify, recruit, process, and approve a qualified adoptive family for the child.” 45 CFR 1356.21(i)(3).

If the court orders the agency to initiate termination of parental rights proceedings, “the order must specify the date, or the time within which the petition must be filed.” MCR 3.976(E)(3). “In either case, the petition must be filed no later than 28 days after the date the permanency planning hearing is concluded.” Id. 

An error in the proceedings, such as a delay in conducting a hearing within the time allotted by statute or court rule, is not grounds for the Court of Appeals to reverse the trial court or amend any of the trial court’s orders, unless the Court believes that its failure to take action “‘would be inconsistent with substantial justice.’” In re Sanborn, 337 Mich App 252, 270 (2021), quoting In re TC, 251 Mich App 368, 371 (2002). In In re Sanborn, 337 Mich App at 271-272, the Court concluded that any due process violation that resulted from the DHHS’s two-month delay in filing a termination petition was harmless, and that it “actually provided more opportunity for [respondent-]mother to engage in services, benefit from services, and continue supervised parenting visits (albeit virtual) that she would have otherwise lost out on had the petition been timely filed because services and supervised parenting time continued during the time between the May 2020 hearing and the filing of the July 2020 termination petition.”

C.Order Another Planned Permanent Living Arrangement (APPLA)

As an alternative to returning a child home, terminating parental rights, establishing a legal guardianship, or permanently placing a child with a fit and willing relative, the court may order “another planned permanent living arrangement[.]” MCL 712A.19a(4)(e); MCR 3.976(A)(5). The agency must “document[] to the court a compelling reason for determining that it would not be in the best interests of the child to follow one of the options listed in [MCR 3.976(A)(1)-(4)].” MCR 3.976(A)(5). See also MCL 712A.19a(4)(e), which contains substantially language; 45 CFR 1356.21(h)(3), which contains substantially similar language except that it also provides:

“Examples of a compelling reason for establishing such a permanency plan may include:

(i) The case of an older teen who specifically requests that emancipation be established as his/her permanency plan;

(ii) The case of a parent and child who have a significant bond but the parent is unable to care for the child because of an emotional or physical disability and the child’s foster parents have committed to raising him/her to the age of majority and to facilitate visitation with the disabled parent; or,

(iii) the Tribe has identified another planned permanent living arrangement for the child.”

“If the court does not return the child to the parent, guardian, or legal custodian and if the agency demonstrates that termination of parental rights is not in the best interests of the child, the court may[:]

(a) continue the placement of the child in foster care for a limited period to be set by the court while the agency continues to make reasonable efforts to finalize the court-approved permanency plan for the child,

(b) place the child with a fit and willing relative,^[9]

(c) upon a showing of compelling reasons, place the child in [another] planned permanent living arrangement, or

(d)    appoint a juvenile guardian for the child pursuant to MCL 712A.19a and MCR 3.979.^[10]

The court must articulate the factual basis for its determination in the court order adopting the permanency plan.” MCR 3.976(E)(4).

See also MCL 712A.19a(9), which requires the court to order one of the following alternative placements if the agency demonstrates that termination is not in the child’s best interests, or the court does not order the agency to initiate termination proceedings under MCL 712A.19a(8):

“(a) If the court determines that other permanent placement is not possible, the child’s placement in foster care must 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 on compelling reasons, the child’s placement in foster care may continue on a long-term basis.

(c) Subject to [MCL 712A.19a(11)], 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.”