4.6Jurisdiction Following Appointment of Guardian
The Probate Court has jurisdiction over guardianship proceedings, and may appoint a full or limited guardian for a child.1 MCL 600.841(1)(a); MCL 700.1302(c); MCL 700.5204(2); MCL 700.5205(1). The Probate Court also has the authority to order a court-structured placement plan when conditions identified after a guardianship review hearing must be resolved, or, where a limited guardian is appointed, the court must approve, disapprove, or modify a limited guardianship placement plan developed by the parent(s) and proposed limited guardian. See MCL 700.5205(2); MCL 700.5206(1); MCL 700.5207(3)(b).
Once a guardian is appointed, the Family Division of the Circuit Court has ancillary jurisdiction of guardianship proceedings under Article 5 of the Estates and Protected Individuals Code (EPIC),2 MCL 700.5101 et seq. MCL 600.1021(2)(a). The three statutory grounds authorizing the Family Division of the Circuit Court to exercise ancillary jurisdiction over a child arise when:3
(1) A parent has substantially failed, without good cause, to comply with a limited guardianship placement plan described in MCL 700.5205 regarding the child. MCL 712A.2(b)(4);
(2) A parent has substantially failed, without good cause, to comply with a court-structured guardianship plan described in MCL 700.5207 or MCL 700.5209 regarding the child. MCL 712A.2(b)(5); or
(3) A child has a guardian and the child’s parent:
(a) having the ability to support or assist in supporting the child,
(i) has failed or neglected, without good cause, to provide regular and substantial support for the child for two or more years before the filing of the petition; or
(ii) if a support order has been entered, has failed to substantially comply with the order for two or more years before the filing of the petition; and
(b) having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected, without good cause, to do so for two or more years before the filing of the petition.4 MCL 712A.2(b)(6).
Note: For purposes of MCL 712A.2(b)(6), neglect means “harm to a child’s health or welfare by a person responsible for the child’s health or welfare that occurs through negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care, though financially able to do so, or the failure to seek financial or other reasonable means to provide adequate food, clothing, shelter, or medical care.” MCL 712A.2(b)(6)(A)-(B); MCL 722.602(1)(d).
“[T]here must be a showing of harm in order for a court to assume jurisdiction over a juvenile under the ‘neglects’ clause of MCL 712A.2(b)(1).” In re Smith, 507 Mich 905 (2021)5 (determining that where a child “was performing at grade level,” a teacher’s testimony “that she feared [the minor] would not be able to maintain his academic level in the future” was only speculative and did not constitute a preponderance of evidence showing that the minor suffered any harm as a result of his absences from school).
A.Limited Guardianship Placement Plans
A limited guardianship placement plan is a consensual arrangement that is agreed to by the custodial parent, the proposed limited guardian, and the judge of the Probate Court who is assigned to the case. MCL 700.5205(1)-(2); MCL 700.5206(1). Once appointed, the limited guardian has the same powers and duties as a full guardian with the exception of the ability to consent to a child’s adoption or release for adoption. MCL 700.5206(4).
A limited guardianship is initiated by a custodial parent,6 and the custodial parent may petition the court for termination of the guardianship at any time.7 MCL 700.5205(1); MCL 700.5206(3); MCL 700.5208(1). After notice and hearing on the custodial parent’s petition for termination, the court must terminate the guardianship if it finds that the custodial parent has substantially complied with the limited guardianship placement plan.8 MCL 700.5209(1). However, if the custodial parent substantially fails, without good cause, to comply with the limited guardianship plan, the Family Court may assume jurisdiction over the child in a child protective proceeding.9 MCL 712A.2(b)(4).
Note: The limited guardianship placement plan form must contain a notice that informs the parent that substantial failure to comply with the plan without good cause may result in termination of the parent’s parental rights. MCL 700.5205(2).
Specifically, the limited guardianship placement plan10 must include all of the following:
(1) Why the parent is requesting the court to appoint a limited guardian for the child;
(2) When and how the parent intends to sufficiently maintain the parent-child relationship;
(3) The length of the limited guardianship;
(4) Financial support for the child; and
(5) Any other provisions agreed upon by the parties for inclusion in the plan. MCL 700.5205(2)(a)-(e); MCR 5.404(E)(1).
The limited guardianship placement plan may also include a schedule of services the parent, child, or guardian should follow and any other additional provisions the court deems necessary. MCR 5.404(E)(2).
A limited guardianship placement plan may be modified under MCR 5.404(E)(3)(a)-(d), which provides:
“(a) The parties to a limited guardianship placement plan may file a proposed modification of the plan without filing a petition. The proposed modification shall be substantially in the form approved by the state court administrator.
(b) The court shall examine the proposed modified plan and take further action under subrules (c) and (d) within 14 days after the filing of the proposed modified plan.
(c) If the court approves the proposed modified plan, the court shall endorse the modified plan and notify the interested persons of its approval.
(d) If the court does not approve the modification, the court either shall set the proposed modification plan for a hearing or notify the parties of the objection of the court and that they may schedule a hearing or submit another proposed modified plan.”
B.Full Guardianship Placement Plans
A child 14 years of age or older or a person interested in the child’s welfare may file a petition requesting appointment of a full guardianship over the child.11 MCL 700.5204(1); MCR 5.402(B). The court may order the DHHS or a court employee to conduct an investigation of the proposed guardianship and file a written report on the investigation.12 MCL 700.5204(1).
The probate court may appoint a full guardian for a minor if the court finds at least one of the following:
•The parental rights of both parents or the surviving parent are terminated or suspended by:
•a prior court order;
•a judgment of divorce or separate maintenance;
•a parent’s death;
•a judicial determination of mental incompetency;
•a parent’s disappearance; or
•a parent’s confinement in a place of detention.
•The parent permits the child to reside with another person without providing that person with legal authority over the child’s care and maintenance, and the child is not residing with his or her parent at the time the petition is filed.
•The child’s biological parents never married, the parent with custodial rights over the child dies or is missing, the other parent does not have court-ordered legal custody, and the petition requests a relative “within the fifth degree by marriage, blood, or adoption” be appointed as the child’s guardian. MCL 700.5204(2)(a)-(c).
A parent’s constitutional right to the care, custody, and maintenance of his or her child applies in the guardianship context. In re Versalle Guardianship, 334 Mich App 173, 179 (2020). With respect to MCL 700.5204(2)(b), the statute implicitly protects this constitutional right if the parent “adequately provides for the child, i.e., is a fit parent.” Versalle, 334 Mich App at 183. Accordingly, “the statute implicitly affords a parent the constitutional presumption that he or she is a fit parent, while also providing a potential guardian the opportunity to rebut that presumption” (finding that granting petition for guardianship of respondent’s children did not violate his constitutional right because he had stopped providing his children with adequate care when he left the children with petitioner without providing petitioner with legal authority to care for them). Id. at 186-187.
C.Court-Structured Guardianship Placement Plans
The court-structured placement plan must include at least all of the following:13
“(a) visitation and contact with the minor by the parent or parents sufficient to maintain a parent and child relationship;
(b) the duration of the guardianship; [and]
(c) financial support for the minor . . . .” MCR 5.404(E)(1)(a)-(c).
The court-structured placement plan may also include a schedule of services the parent, child, or guardian should follow and any other additional provisions the court deems necessary. MCR 5.404(E)(2).
Note: Although it is not specifically required by statute, the court-structured plan should contain a notice to the parents that failure to comply with the plan may result in the termination of their parental rights.
1 The Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA) apply to guardianships involving Indian children. See Chapter 19.
2 A court-ordered guardianship is not required for a child to be in the proper custody of a person other than a parent. See Section 4.3(A) for a discussion of the Family Division of the Circuit Court taking jurisdiction over children who are without proper custody or guardianship.
3 “[A] putative father does not qualify as a father or parent for the purposes of exercising jurisdiction in child protective proceedings.” In re Long, 326 Mich App 455, 465 (2018).
4 “MCL 712A.2 ‘speaks in the present tense, and, therefore, the trial court must examine the child’s situation at the time the petition was filed.’” In re Long, 326 Mich App at 459. “[B]ecause the trial court [was] required to ‘examine the child’s situation at the time the petition was filed,’ respondent-father’s status as a putative father on the date the petition was filed means that he d[id] not qualify as a ‘parent’ under MCL 712A.2(b)(6). Therefore, respondent-father’s actions in the two years or more preceding the filing of the petition [were] immaterial.” In re Long, 326 Mich App at 459, 464, quoting In re MU, 264 Mich App 270, 279 (2004). “Regardless of any moral obligation, as a putative father, respondent-father had no legal obligation to [the child]. We therefore conclude that to rely on a putative father’s action or inaction in the two years preceding the filing of a petition when considering whether to exercise jurisdiction under MCL 712A.2(b)(6) is violative of due process.” In re Long, 326 Mich App at 464-465.
5 This case was decided under MCL 712A.2(b)(1), which defines neglect to mean that term as defined in MCL 722.602(1)(d). MCL 712A.2(b)(6), the provision discussed here, also defines neglect to mean that term as defined in MCL 722.602(1)(d).
6 See SCAO form Petition for Appointment of Limited Guardian of Minor.
7 See SCAO form Petition to Terminate/Modify Guardianship.
8 “The court may enter orders to facilitate the minor’s reintegration into the home of the parent or parents for a period of up to 6 months before the termination.” MCL 700.5209.
9 See SCAO form Order Following Hearing to Terminate Minor Guardianship.
10 See SCAO form Limited Guardianship Placement Plan.
11 See SCAO form Petition for Appointment of Guardian of Minor.
12 See SCAO form Order Appointing Person to Review / Investigate Guardianship.
13 Court-structured placement plans share some requirements with limited guardianship placement plans.