16.8Juvenile Guardianship Placement

If the court does not return the child to the parent, guardian, or legal custodian, and the agency demonstrates that termination of parental rights is 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 MCL 712A.19a(8), the court may appoint a juvenile guardian for the child if it determines the appointment is in the child’s best interests.^1, 2 MCL 712A.19a(9)(c); MCR 3.979(A).

Note: SCAO recommends that the court exercise the appointment of a juvenile guardian placement option only when adoption is not an appropriate goal.³ However, “[a]bsent contrary statutory language . . . a generalized policy [against recommending guardianship for children under a specific age] is inappropriate.” In re Affleck, 505 Mich 858 (2019) (remanding for the trial court to “address whether guardianship is appropriate for [the minor children] as part of its best-interest determinations without regard to a generalized policy disfavoring guardianship for children under the age of 10”). See also In re LJ Lombard, ___ Mich App ___, ___ (2024) (remanding “for the trial court to make an individualized determination regarding [the child’s] best interests without regard to a generalized policy disfavoring guardianship”). Reasonable efforts to reunify a child and family may be made concurrently with reasonable efforts to place a child for adoption or with a legal guardian. MCL 712A.19(14).

During the process of appointing a juvenile guardian, the court must order the DHHS to:

(1) Perform an investigation and file a written report for a review hearing under MCL 712A.19a(12);

(2) Submit to the court within seven days a criminal record check and a central registry clearance of the residents in the home; and

(3) Perform a home study and submit it to the court within 30 days⁴ or submit a copy of a home study conducted within the last 365 days.⁵ MCL 712A.19a(11); MCR 3.979(A)(1).

Note: If the child is in foster care, the court must continue the foster care placement and order the information required by MCR 3.979(A)(1) about the proposed juvenile guardian. MCR 3.979(A)(2).

In an effort to provide trial courts with a quick practical guide through the process of ordering juvenile guardianships, the State Court Administrative Office (SCAO) developed the Toolkit for Judges and Attorneys: Ordering a Juvenile Guardianship (MCR 3.979; MCL 712A.19a(7)(c);⁶ and MCL 712A.19c(2).

A.Appointing Juvenile Guardian

MCR 3.979(B) describes the process by which a juvenile guardian is appointed:

“After receiving the information ordered by the court under [MCR 3.979(A)(1)], and after finding that appointment of a juvenile guardian is in the child’s best interests, the court may enter an order appointing a juvenile guardian. The order appointing a juvenile guardian shall be on a form approved by the state court administrator.^[7] Within 7 days of receiving the information, the court shall enter an order appointing a juvenile guardian or schedule the matter for a hearing. A separate order shall be entered for each child.

(1) Acceptance of Appointment. A juvenile guardian appointed by the court shall file an acceptance of appointment with the court on a form approved by the state court administrator.^[8] The acceptance shall state, at a minimum, that the juvenile guardian accepts the appointment, submits to personal jurisdiction of the court, will not delegate the juvenile guardian’s authority, and will perform required duties.

(2) Letters of Authority. On the filing of the acceptance of appointment, the court shall issue letters of authority on a form approved by the state court administrator.^[9] Any restriction or limitation of the powers of the juvenile guardian must be set forth in the letters of authority, including but not limited to, not moving the domicile of the child from the state of Michigan without court approval.

(3) Certification. Certification of the letters of authority and a statement that on a given date the letters are in full force and effect may appear on the face of copies furnished to the juvenile guardian or interested persons.

(4) Notice. Notice of a proceeding relating to the juvenile guardianship shall be delivered or mailed to the juvenile guardian by first-class mail at the juvenile guardian’s address as listed in the court records and to his or her address as then known to the petitioner. Any notice mailed first class by the court to the juvenile guardian’s last address on file shall be considered notice to the juvenile guardian.”

B.Due Process

“It is axiomatic that a parent has a fundamental liberty interest in the care, custody, and management of his or her child[.]” In re TK, 306 Mich App 698, 706 (2014), citing In re Rood, 483 Mich 73, 91 (2009). As such, the court must comply with procedural and substantive due process when appointing a juvenile guardian. See In re TK, 306 Mich App at 706. However, because “the appointment of a guardian for a juvenile [under MCL 712A.19a(9)(c)¹⁰] is not tantamount to a de facto termination of parental rights[,]” due process does not require DHHS “to prove statutory grounds for termination of parental rights [under MCL 712A.19b(3)] by clear and convincing evidence.” In re TK 306 Mich App at 705-706.

“There are two types of due process: procedural and substantive.” Id. at 706. “Procedural due process requires notice and a meaningful opportunity to be heard before an impartial decision-maker[,]” while “[t]he essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests.” Id. at 706, citing AFT Mich v State, 297 Mich App 597, 622 (2012). “Ultimately, due process requires fundamental fairness.” In re TK, 306 Mich App at 706.

1.Procedural Due Process

“[T]he statutory provisions governing juvenile guardianship [do not] violate procedural due process principles.” In re TK, 306 Mich App at 708. A court should consider three factors to determine what is required by procedural due process:

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”   In re TK, 306 Mich App at 706-707, quoting In re Brock, 442 Mich 101, 111 (1993), in turn quoting Mathews v Eldridge, 424 US 319, 332, 334 (1976) (quotation marks omitted).

For purposes of juvenile guardianships, “the private interest involved is a parent’s fundamental liberty interest in the care, custody, and management of [his or] her child[;]” . . . the applicable statutes and corresponding court rules indicate[] that the procedures employed in the appointment of a juvenile guardianship ensure that there will not be an erroneous deprivation of those interests[;]” and though each case may present other governmental interests, “the primary governmental interest is the welfare of the minor child.” In re TK, 306 Mich App at 707-708 (finding no procedural due process violation because “[a] parent is given notice and an opportunity to be heard before the appointment of a [juvenile] guardian[,]” and “[t]he statutory scheme employs multiple safeguards to ensure that there is not an erroneous deprivation of a parent’s liberty interest in caring for his or her child”).

2.Substantive Due Process

Substantive due process in a juvenile guardianship proceeding requires that the appointment not arbitrarily deprive the respondent of liberty or property interests. In re TK, 306 Mich App at 708-709, (holding that the appointment did not arbitrarily deprive the respondent-mother of her interest in the minor child where the minor child suffered from post-traumatic stress syndrome related to sexual abuse by her father, was in therapy to address anger issues related to the respondent-mother’s failure to protect her from the sexual abuse, flourished in her foster home, and the respondent- mother did not respond well to the minor child’s needs).

C.Juvenile Guardian’s Duties and Authority

MCR 3.979(E) describes a juvenile guardian’s duties and authority:

“A juvenile guardianship approved under these rules is authorized by the Juvenile Code and is distinct from a guardianship authorized under the Estates and Protected Individuals Code.^[11] A juvenile guardian has all the powers and duties of a guardian set forth under [MCL 700.5215].^[12]

(1) Report of Juvenile Guardian. A juvenile guardian shall file a written report annually within 56 days after the anniversary of appointment and at other times as the court may order. Reports must be on a form approved by the state court administrator.^[13] The juvenile guardian must serve the report on the persons listed in MCR 3.921.

(2) Petition for Conservator. At the time of appointing a juvenile guardian or during the period of the juvenile guardianship, the court shall determine whether there would be sufficient assets under the control of the juvenile guardian to require a conservatorship. If so, the court shall order the juvenile guardian to petition the probate court for a conservator pursuant to MCL 700.5401 et seq.

(3) Address of Juvenile Guardian. The juvenile guardian must keep the court informed in writing within 7 days of any change in the juvenile guardian’s address.

(4) The juvenile guardian shall provide the court and interested persons with written notice within 14 days of the child’s death.”

D.Jurisdiction and Court’s Responsibilities

Jurisdiction over juvenile guardianship. Once a juvenile guardian is appointed, the court’s jurisdiction over the juvenile guardianship continues until 120 days after the youth’s 18th birthday or sooner if released by court order. MCR 3.979(C)(1)(b). See also MCL 712A.19a(13). If the DHHS provides the court with notice that it is extending guardianship assistance to a youth beyond the age of 18 under MCL 400.665 (Young Adult Voluntary Foster Care Act (YAVFCA)), the court must “retain jurisdiction over the guardianship until that youth no longer receives extended guardianship assistance.”¹⁴ MCR 3.979(C)(1)(b). “Upon receipt of notice from the [DHHS] that it will not continue extended guardianship assistance, the court shall immediately terminate the juvenile guardianship.” MCR 3.979(D)(1)(c).

The court may order parenting time for a parent during the course of a juvenile guardianship or after a juvenile guardianship has been established. In re Ballard, 323 Mich App 233, 237 (2018). (“Because MCL 712A.19a(14) plainly envisions a trial court having an authoritative role with respect to parenting time during the course of a guardianship, . . . MCL 712A.19a(14) . . . provide[s] a court with authority to order parenting time for a parent after a juvenile guardianship has been established, even though parenting time was not initially ordered when the guardianship commenced or at the time of the permanency planning hearing.”) (emphasis added). In addition, a court may approve or disapprove of placement in a qualified residential treatment program (QRTP) if placement in a QRTP is presented in a hearing under MCL 712A.19a. MCL 712A.19a(14).

The court must “conduct an annual review of a juvenile guardianship as to the condition of the child until the child’s eighteenth birthday.” MCR 3.979(D)(1)(a).¹⁵ See also MCL 712A.19a(13). The court may conduct additional reviews as it deems necessary, or it may order the DHHS or a court employee to conduct an investigation and file a written report. MCL 712A.19a(13); MCR 3.979(D)(1)-(2). “If, under [MCR 3.979(C)(1)(b) (retention of court jurisdiction over the juvenile guardianship for extended juvenile guardianship assistance)], the [DHHS] has notified the court that extended guardianship assistance has been provided to a youth pursuant to MCL 400.665, the court shall conduct an annual review hearing . . . [until] the youth is on longer eligible for extended guardianship assistance.”¹⁶

Jurisdiction over child/youth. The court’s jurisdiction over the child pursuant to MCL 712A.2(b) terminates once the juvenile guardian is appointed and a review hearing is conducted under MCR 3.975 (when parental rights to the child have not been terminated) or MCR 3.978 (when parental rights to the child have been terminated). MCL 712A.19a(12); MCR 3.979(C)(1)(a). But see MCL 712A.2a(4), which requires the court to retain its jurisdiction over a youth 16 years of age or older who was appointed a juvenile guardian under MCL 712A.19a until the DHHS determines whether the youth¹⁷ is eligible to receive extended guardianship assistance under MCL 400.641 (YAVFCA).¹⁸ If the DHHS determined the youth was eligible for extended guardianship assistance under the YAVFCA, the court must retain jurisdiction until the youth no longer receives the guardianship assistance.¹⁹ See also MCL 400.669(1), which requires the court to retain its jurisdiction “of a youth receiving, or a youth for whom the [DHHS] is determining eligibility for receiving, extended guardianship assistance until that youth no longer receives guardianship assistance.”

Unless the court releases the child sooner, the appointment of a lawyer-guardian ad litem terminates once the court’s jurisdiction over the child under MCL 712A.2(b) terminates. MCR 3.979(C)(3). However, if warranted, the court may reappoint the lawyer-guardian ad litem or appoint a new lawyer-guardian ad litem once a juvenile guardian is appointed.²⁰ Id. 

E.Revocation of Juvenile Guardianship

On its own motion or upon petition from the DHHS or the child’s lawyer guardian ad litem, the court may²¹ hold a hearing to determine whether to revoke a juvenile guardianship.²² MCL 712A.19a(15); MCR 3.979(F)(1)(a).

After notice and a hearing on a petition to revoke a juvenile guardianship, the court must enter an order to revoke or terminate a juvenile guardianship if it finds:

(1) by a preponderance of the evidence the continuation of the juvenile guardianship is not in the child’s best interests;

(2) it is contrary to the child’s welfare to be placed in or remain in the juvenile guardian’s home; and

(3) reasonable efforts were made to prevent removal. MCR 3.979(F)(5). See also MCL 712A.19a(17).

Upon entry of the revocation or termination order, the child must be placed under the care and supervision of the DHHS.²³ MCR 3.979(F)(5). See also MCL 712A.19a(17), which requires the court to either “appoint a successor [juvenile] guardian or restore temporary legal custody to the [DHHS].” Additionally, the court’s jurisdiction over the child under MCL 712A.2(b) is reinstated under the previous child protective proceeding. MCR 3.979(F)(5).

A child may be eligible for voluntary foster care after the court has terminated the child’s juvenile guardianship; in those cases where the court has terminated a child’s juvenile guardianship and there is no successor guardian, the DHHS is given temporary legal custody of the child under MCL 712A.2(b), and subject to any eligibility requirements, the child may apply for voluntary foster care under the Young Adult Voluntary Foster Care Act (YAVFCA), MCL 400.641 et seq. In re Hull, ___ Mich App ___, ___ (2023).

F.Petition to Terminate Juvenile Guardianship

On petition from the juvenile guardian or other interested person, the court may hold a hearing to determine whether to terminate the juvenile guardianship.²⁴ MCL 712A.19a(16); MCR 3.979(F)(1)(b).

Note: A request to terminate a guardianship may include a request for appointment of a successor guardian. MCL 712A.19a(16); MCR 3.979(F)(1)(b).

If, after notice and a hearing on the petition to terminate a juvenile guardianship, the court finds by a preponderance of the evidence that termination is in the child’s best interests, the court must either:

(1) proceed under MCR 3.979(F)(5) if there is no successor,²⁵ or

(2) terminate the appointment if there is a successor and proceed with an investigation and the appointment of a successor juvenile guardian in accordance with MCR 3.979(B).²⁶ MCR 3.979(F)(6). See also MCL 712A.19a(17).

The court’s jurisdiction over a juvenile guardianship continues with the appointment of a successor juvenile guardian. MCR 3.979(F)(6)(b).