18.5Court’s Options Following Post-Termination Review Hearings

“The court must make findings on whether reasonable efforts have been made to establish permanent placement for the child, and may enter such orders as it considers necessary in the best interests of the child, including appointment of a juvenile guardian pursuant to MCL 712A.19c and MCR 3.979.” MCR 3.978(C).

Note: “After termination [of parental rights], the superintendent of the Michigan Children’s Institute (MCI) becomes the child’s legal guardian as soon as the court commits the child to the Department of [Health and] Human Services (DHHS).” SCAO Guideline, Conducting Effective Post-Termination Review Hearings, p 4. “The MCI then oversees the care, custody, and placement of the child[, and] . . . approves the permanency plan developed by the caseworker, resolves placement-change issues, consents to appropriate medical care, and consents to guardianships and adoptions.” Conducting Effective Post-Termination Review Hearings, supra. “The court’s continuing role is to ensure that the agency moves forward on the child’s permanency plan.” Id.

A.Appointment of Juvenile Guardian

After parental rights have been terminated, MCL 712A.19c(2)¹ and MCR 3.979(A) permit the court to appoint a juvenile guardian for the child if the court finds it to be in the child’s best interests.² See also MCR 3.978(C).

Note: If the proposed guardian is seeking guardianship assistance payments, the assistance agreement must be approved and signed before the order of guardianship is entered. See Section 14.5 for a detailed discussion of guardianship assistance.

“[T]here is no preference for placement with relatives as part of a [juvenile] guardianship determination under MCL 712A.19c(2).” In re COH, ERH, JRG, & KBH, 495 Mich 184, 187 (2014). “[T]he preference for placement with relatives created by MCL 722.954a is [not] relevant to a court’s consideration of a petition to appoint a [juvenile] guardian under MCL 712A.19c(2).”³ In re COH, ERH, JRG, & KBH, 495 Mich at 187 (because MCL 712A.19c(2) and MCL 722.954a “apply at different and distinct stages of child protective proceedings, . . . there is no preference for placement with relatives as part of a [juvenile] guardianship determination under MCL 712A.19c(2)[;]” “the preference for placement with relatives created in MCL 722.954a does not apply outside the time period for determining a child’s initial placement immediately after removal and, therefore, does not apply to a court’s decision to appoint a [juvenile] guardian under MCL 712A.19c(2) after parental rights are terminated”).

In order for the court to appoint a juvenile guardian, the court must first obtain written consent from the Michigan Children’s Institute (MCI) Superintendent or his or her designee.⁴ MCL 712A.19c(3); MCR 3.979(A)(3). “The consent must be filed with the court no later than 28 days after the . . . post[-]termination review hearing, or such longer time as the court may allow for good cause shown.” MCR 3.979(A)(3). However, the court may appoint a juvenile guardian without the MCI Superintendent’s consent, if after a hearing, “the court finds by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious[.]”⁵ MCL 712A.19c(6); MCR 3.979(A)(3)(c).

Note: The court may order the Department of Health and Human Services (DHHS) to seek the MCI Superintendent’s consent. MCR 3.979(A)(3).

If a child is placed in a juvenile guardian’s or a proposed juvenile guardian’s home, the court must order the DHHS to:

(1) Perform an investigation and file a written report for a review hearing under MCL 712A.19c(10);

(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 28 days⁶ or submit a copy of a home study conducted within the last 365 days.⁷ MCL 712A.19c(8); 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).

1.Best-Interests Determination

Under MCL 712A.19c(2), the trial court must determine whether a juvenile guardianship “is in the child’s best interest[.]” “A trial court may use its discretion under MCL 712A.19c(2) to determine the best method for analyzing the child’s best interests by considering the circumstances relevant to the particular case.” In re COH, ERH, JRG, & KBH, 495 Mich 184, 202 (2014). “[D]epending on the circumstances, a case may more reasonably lend itself to application of the Child Custody Act factors [(comparing two placement options)], some combination of the Adoption Code [(when only one party petitions for guardianship)] and Child Custody Act factors, or a unique set of factors developed by the trial court for purposes of a particular case.” Id. at 203. “A trial court’s decision regarding what factors to consider in making the best-interest determination is reviewed for an abuse of discretion.” Id. at 202 (“the trial court’s decision to apply [the Child Custody Act factors] rather than the Adoption Code factors was not an abuse of discretion” because comparing “the two placement options [(between the biological grandmother and the foster parents)] in this case was a logical method for determining which option was in the children’s best interests,” and “the Child Custody Act factors incorporate a comparative analysis”).

“[T]he trial court’s findings of fact regarding the best-interest determination . . . are subject to the clear-error standard on appeal.” In re COH, ERH, JRG, & KBH, 495 Mich 184, 203-204 (2014) (“trial court did not clearly err in concluding that a [juvenile] guardianship with [the children’s biological grandmother] was not in the children’s best interests under [MCL 712A.19c(2)]” where “the trial court provided an individualized analysis based on the relevant evidence for each of the applicable [Child Custody Act factors][,] . . . the trial court did not take a one-sided view of the evidence[, but] rather . . . weighed evidence that favored each placement option[, and] . . . the trial court correctly explained that[ although its decision might be unfair to the biological grandmother,] its focus remained on the children’s best interests, as required by law”), quoting In re Mason, 486 Mich 142, 152 (2010).

2.Juvenile Guardianship Appointment Without MCI Superintendent’s Consent

“If a person denied consent believes that the decision to withhold consent by the MCI [S]uperintendent is arbitrary or capricious, the person may file a motion with the court within 56 days of receipt of the decision to deny consent.”⁸ MCR 3.979(A)(3)(a). The motion must contain all of the following information:

“(i) the specific steps taken by the person or agency to obtain the consent required and the results, if any, and

(ii) the specific reasons why the person or agency believes that the decision to withhold consent was arbitrary or capricious.” MCR 3.979(A)(3)(a). See also MCL 712A.19c(4), which contains substantially similar language.

Upon receipt of a motion alleging the MCI Superintendent’s decision to withhold consent was arbitrary or capricious, the court must set a hearing date and ensure notice is provided to “the MCI [S]uperintendent and all parties entitled to notice under MCR 3.921.”⁹ MCR 3.979(A)(3)(b).¹⁰ 

The court may approve a juvenile guardianship appointment without the MCI Superintendent’s consent if it finds by clear and convincing evidence that the MCI Superintendent’s decision to withhold consent was arbitrary or capricious. MCL 712A.19c(6); MCR 3.979(A)(3)(c).

3.Procedure for 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.^[11] 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.^[12] 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.^[13] 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.”

4.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.^[14] A juvenile guardian has all the powers and duties of a guardian set forth under [MCL 700.5215].^[15]

(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.^[16] 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.”

5.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.19c(10). 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.”¹⁷ 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 must “conduct an annual review of a juvenile guardianship as to the condition of the child until the child’s eighteenth birthday.”¹⁸ MCR 3.979(D)(1)(a). See also MCL 712A.19c(10). 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.19c(10); 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.”¹⁹

Jurisdiction over child/youth. The court’s jurisdiction over the child under MCL 712A.2(b) terminates once the juvenile guardian is appointed and a post-termination review hearing is held. MCL 712A.19c(9); 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.19c until the DHHS determines whether the youth²⁰ is eligible to receive extended guardianship assistance under MCL 400.641 (YAVFCA).²¹ If the DHHS determines the youth is eligible for extended guardianship assistance under the YAVFCA, the court must retain jurisdiction until the youth no longer receives the guardianship assistance.²² 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.”

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, the court may reappoint the lawyer-guardian ad litem or appoint a new lawyer-guardian ad litem once a juvenile guardian is appointed.²³ Id. 

6.Revocation of Juvenile Guardianship

The court must²⁴ hold a hearing to determine whether to revoke a juvenile guardianship, on its own motion or upon petition from the DHHS, the child’s lawyer guardian ad litem, or the appointed guardian.²⁵ MCL 712A.19c(11); 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 a juvenile guardianship if it finds that:

(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.19c(13).

Upon entry of the revocation order, MCR 3.979(F)(5) requires the child to be placed under the care and supervision of the DHHS.²⁶ However, MCL 712A.19c(13) requires the court to appoint a successor juvenile guardian or commit the child to the MCI under MCL 400.203.

Additionally, upon revocation, 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).

If a court revokes a juvenile guardianship, it must hold a dispositional review hearing under MCR 3.978 

7.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.²⁷ MCL 712A.19c(12); 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.19c(12); MCR 3.979(F)(1)(b).

Under MCR 3.979(F)(6), 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,²⁸ 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).²⁹ 

But see MCL 712A.19c(13), which requires the court to terminate the guardianship and either appoint a successor guardian or commit the child to the MCI under MCL 400.203.

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

B.Placing Child on Adoption Registry

If an adoptive family has not been identified within 90 days of entry of an order terminating parental rights, the supervising agency³⁰ must submit the child’s information for inclusion in the registry of children available for adoption.³¹ MCL 722.954b(2).

C.Legal Risk Placement

Once a court enters an order terminating parental rights, it may place a child in an adoptive home before the time for a rehearing or appeal of the termination order has expired. MCL 710.41(2). The placement is often referred to as a legal risk placement or more commonly a legal risk adoption.³²

Note: The court must not grant an adoption petition while an appeal is pending with the Court of Appeals or the Supreme Court. In re JK, 468 Mich 202, 219 (2003). See also MCL 710.56(2). The Court noted that at each post-termination review hearing, “the court can monitor the progress of the parent’s appeal and ensure that an adoption does not take place until the parent’s right to appellate review has been exhausted.” In re JK, 468 Mich at 210 n 28.

“Before entering a final order of adoption, the trial court shall determine that the adoptee is not the subject of any pending proceedings on rehearing or reconsideration, or on appeal from a decision to terminate parental rights. The trial court shall make the following findings on the record:

That any appeal of the decision to terminate parental rights has reached disposition; that no appeal, application for leave to appeal, or motion for rehearing or reconsideration is pending; and that the time for all appellate proceedings in this matter has expired.” MCR 3.808.³³