Time Requirements

16.3Time Requirements ¹

A.Initial Permanency Planning Hearing

If a child is in foster care and the child’s parents’ parental rights have not been terminated, generally the court must hold an initial permanency planning hearing within 12 months of the child’s removal from the home. MCL 712A.19a(1); MCR 3.976(B)(2). See also 45 CFR 1355.20(a) and 45 CFR 1355.34(c)(2)(iii), which contain substantially similar language. During this time, DHHS is obligated to make reasonable efforts to reunify a child and the child’s family in all cases except those cases involving an aggravated circumstance listed in MCL 712A.19a(2). In re Simonetta, 340 Mich App 700, 707 (2022). Accordingly, an initial permanency planning hearing must be held within 28 days of a child’s removal if one or more of the following circumstances apply:

“(a) There is a judicial determination that the parent has subjected the child to aggravated circumstances as provided in [MCL 722.638](1) and [MCL 722.638](2).

(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 and the parent has failed to rectify the conditions that led to the termination of parental rights.

(d) The parent is required by court order to register under the sex offenders registration act.”^² MCL 712A.19a(2). See also 45 CFR 1355.20(a), 45 CFR 1356.21(b)(3), 45 CFR 1356.21(h)(2), MCR 3.976(B)(1), which contain substantially similar language.

42 USC 675(5)(E) requires the State agency to file or join in filing a petition requesting termination of parental rights when the court determines that a child has been abandoned or the parent has “committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter, or committed a felony assault that has resulted in serious bodily injury to the child or to another child of the parent[.]” If the State 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). See also 42 USC 675(5)(E).

Note: “The petition to terminate parental rights must be filed within 60 days of the judicial determination that the child is an abandoned infant[.]” 45 CFR 1356.21(i)(1)(ii). For a parent “[w]ho has been convicted of one of the felonies listed [in 45 CFR 1356.21(b)(3)(ii),] . . . the petition to terminate parental rights must be filed within 60 days of a judicial determination that reasonable efforts to reunify the child and parent are not required.”³ 45 CFR 1356.21(i)(1)(iii).

”Incarceration alone is not a sufficient reason for termination of parental rights.” In re Mason, 486 Mich 142, 146 (2010).⁴ Where a respondent-parent is incarcerated for a crime not listed in MCL 712A.19a(2), “[t]he state is not relieved of its duties to engage an absent parent merely because that parent is incarcerated.” In re Mason, 486 Mich at 152. Thus, a trial court prematurely terminates an incarcerated parent’s parental rights when it fails to provide a “meaningful and adequate opportunity to participate.” Id. Cf. In re Smith, 291 Mich App 621, 623 (2011) (failure of the DHHS to facilitate reunification between an incarcerated parent and his child did not require reversal of the trial court’s termination of his parental rights because his parental rights to the child’s sibling were previously involuntarily terminated and “the prior involuntary termination of parental rights to a child’s sibling [under MCL 712A.19a(2)(c)] is a circumstance under which reasonable efforts to reunite the child and family need not be made”).

The court must not cancel or delay an initial permanency planning hearing beyond the 12-month or 28-day period, regardless of whether there is a petition for termination of parental rights or any other matters pending. MCL 712A.19a(1). See also MCR 3.976(B)(2), which states that if the 28-day rule does not apply (i.e. reasonable efforts are required), “the court must conduct an initial permanency planning hearing no later than 12 months after the child’s removal from the home, regardless of whether any supplemental petitions are pending in the case.”

B.Annual Permanency Planning Hearing

As long as a child is in foster care, subsequent permanency planning hearings must be held no later than 12 months after each preceding permanency planning hearing. MCL 712A.19a(1); MCR 3.976(B)(3).⁵ See also 45 CFR 1355.20(a) and 45 CFR 1355.34(c)(2)(iii), which contain substantially similar language.

“The interval between permanency planning hearings is within the discretion of the court as appropriate to the circumstances of the case[.]” MCR 3.976(B)(3). However, the court must not cancel or delay a subsequent permanency planning hearing beyond the 12 month period, regardless of whether there is a petition for termination of parental rights or any other matters pending. MCL 712A.19a(1); MCR 3.976(B)(3).

C.Combined Permanency Planning Hearing and Dispositional Review Hearing

If proper notice for a permanency planning hearing is provided, a permanency planning hearing may be combined with a dispositional review hearing if the combined hearings are held no later than the 12 months (where reasonable efforts are required) or 28 days (where reasonable efforts are not required) from the child’s removal from the home or 12 months from the preceding permanency planning hearing.⁶ MCL 712A.19a(1); MCL 712A.19c(1); MCR 3.976(B)(3).

The court must not cancel or delay a permanency planning hearing beyond the 12-month or 28-day period, regardless of whether there are any other pending matters. MCL 712A.19a(1); MCL 712A.19c(1).

D.Finalizing Court-Approved Permanency Plan

“The judicial determination to finalize the court-approved permanency plan must be made within the time limits prescribed in [MCR 3.976(B)(1)-(3)].” MCR 3.976(B)(4).

¹ Many court hearings in Michigan were delayed beginning in March 2020 as a result of “the unprecedented COVID-19 pandemic”; those delays are not attributable to the trial courts. See I n re Sanborn, 337 Mich App 252, 270 (2021).

³ “The judicial determinations regarding . . . reasonable efforts to finalize the permanency plan in effect, including judicial determinations that reasonable efforts are not required, must be explicitly documented and must be made on a case-by-case basis and so stated in the court order.” 45 CFR 1356.21(d).

⁴Incarceration alone is not an aggravated circumstance excusing the DHHS from making reasonable efforts at reunification with a child’s incarcerated parent. In re Dixon (On Reconsideration), ___ Mich App ___, ___ (2023).

⁵ A hearing held under MCL 400.669(2) (requiring “[t]he court [to] hold a hearing regarding the youth’s continued participation in extended guardianship assistance [under the Young Adult Voluntary Foster Care Act (YAVFCA) not less than 1 time every 12 months[]”) may be combined with a hearing held under MCL 712A.19a(1). Section 14.5(I) for additional information on the extension of guardianship assistance under MCL 400.665.