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147515 - In re COH, ERH, JRG & KBH, Minors

In re COH, ERH, JRG, KBH, Minors
Charles F. Justian
(Appeal from Ct of Appeals)
(Muskegon – Marietti, W.)
Scott G. Bassett


The paternal grandmother of siblings who were placed in foster care petitioned the family court to become the children’s guardian. Although the grandmother had moved to Florida from Michigan in 2005, she asserted that she had maintained “very close and loving” relationships with all four children before and after their removal from their mother’s home in October 2008 by the Department of Human Services. (Three of the four siblings were fathered by the petitioner’s son; although the fourth child was fathered by another man, the petitioner maintained that she had known the boy since his birth and had always treated him as her grandson.) According to the grandmother, she frequently watched the children before moving to Florida; after her move, she talked to them on the phone about once a week, sent them birthday and Christmas presents, and visited them during the summers.

While the grandmother’s guardianship petition was pending, the children’s mother agreed to give up her parental rights, pleading no contest to child neglect and allowing her children to become wards of the court. (The fathers’ parental rights were also terminated.)

The family court accepted the mother’s plea and, after an evidentiary hearing, denied the grandmother’s guardianship petition, instead ruling that it was in the children’s best interests to remain with their foster parents, who had already filed a petition to adopt the children. In making this ruling, the trial court used the “best interest” factors in the Child Custody Act, MCL 722.21 et seq. The trial court noted that neither the children’s mother nor the petitioner’s son had suggested the petitioner as a guardian; in fact, the mother supported the children remaining with their foster parents because they were doing well there.

The petitioner applied to the Michigan Children’s Institute, seeking to adopt the children. The MCI superintendent denied her request, concluding that adoption by the foster parents was in the children’s best interests; the family court refused to overturn the MCI decision.

The petitioner appealed, and, in an unpublished per curiam opinion, the Michigan Court of Appeals reversed the family court, ordering the court to appoint the petitioner as the children’s guardian.

“There is a strong preference that children who have been removed from their parent’s care be placed with relatives,” the appellate panel stated. “For example, under MCL 722.954a(2), when a child is removed from his or her home, the supervising agency must identify, locate, notify, and consult with relatives to determine placement with a fit and appropriate relative who is able to meet the child’s developmental, emotional, and physical needs. A supervising agency’s placement decision must be made in the child’s best interests, and, in making the decision, the supervising agency shall give special consideration and preference to a child’s relatives who are willing and fit to care for the child and are able to meet the child’s needs. MCL 722.954a(5).”

The petitioner claimed that the trial court erred in comparing her to the children’s foster parents, using the “best interest of the child” factors set out in the Child Custody Act. The Court of Appeals agreed: “[T]he trial court erred in making this comparison. Notably, the present case does not present a dispute between parties who have a legal or substantive right to the custody of the minor children. Because a juvenile guardianship is intended to be a permanent and self-sustaining relationship, MCL 722.875b, it is similar to adoption. When a person seeks the adoption of a child, a trial court generally does not compare the prospective adoptive parent with alternate placements for the child.... Here, where appellant is the grandmother of the children and where appellant has an established and continuing relationship with the minor children, the trial court should have considered whether appellant was an appropriate juvenile guardian for the children without regard to the foster care parents.”

The “undisputed facts” in the record support appointing the petitioner as the children’s guardian, the Court of Appeals stated. The petitioner had no health problems, had raised five sons, was employed as a registered nurse, had become a licensed foster care provider, and bought a five-bedroom home in anticipation of becoming the children’s guardian, the panel noted. The petitioner was not married, but had relatives in Florida, and had visited the school that her grandchildren would attend. “In sum, appellant not only quickly fulfilled every DHS requirement, she went significantly above and beyond any legal requirements to ensure she would be well prepared to care for her grandchildren.”

Neither the prosecutor nor the children’s guardian ad litem disputed that the petitioner would be an appropriate guardian, the Court of Appeals observed. “Nonetheless, they inexplicably both requested that appellant’s guardianship petition be denied because the children had found stability with the foster care parents.” But, while the children had enjoyed a stable home with their foster parents, DHS had helped create that situation by failing to consider the grandmother as a placement, the Court of Appeals said. “This type of ‘bootstrapping’ is clearly an inappropriate basis upon which to decide this type of matter, i.e., to justify the ‘best interests’ of the children.”

DHS argued that the any issues about the guardianship were moot because the children had already been committed to MCI and so already had a guardian, but the Court of Appeals disagreed. “[W]e find nothing in [previous Court of Appeals decisions] that prevents this Court from revoking the commitment of a child to the MCI when it reverses an erroneously entered order from the trial court that led to the child’s commitment.”

The Court of Appeals declined to review MCI’s denial of the petitioner’s request to adopt, saying the issue was moot: “[S]ince the minor children are no longer wards of the MCI following this court’s decision, appellant need not procure the consent of the MCI superintendant [sic] to adopt the children.” Moreover, the petitioner had already stated that she would dismiss her adoption petition if her guardianship petition was granted, the appellate panel noted.

DHS appealed, noting in part that even the petitioner’s son did not recommend her as a placement and that the children’s mother supported them remaining with their foster parents, rather than moving out of state. DHS also disputed some of the petitioner’s claims about her involvement with the children.

In an order dated October 2, 2013, the Supreme Court granted leave to appeal and also granted the Michigan Children’s Institute’s motion to intervene. The Court directed the parties to address “(1) whether the Court of Appeals erred in holding that there is a preference for relatives under MCL 712A.19c(2) when a circuit court decides whether to create a juvenile guardianship after parental rights have been terminated; (2) if such a preference exists, whether the paternal grandmother was entitled to that preference where her son’s parental rights to the children had been terminated; (3) whether the Court of Appeals erred by not applying a clear error standard of review to the Muskegon Circuit Court Family Division’s determination of the children’s best interests pursuant to MCL 712A.19c; (4) whether the circuit court erred by using the best interests factors enumerated in MCL 722.23 of the Child Custody Act in deciding whether to grant the petition for a juvenile guardianship; and (5) whether the Court of Appeals erred by reversing the circuit court on the ground that it was improper to compare the foster parents with the proposed guardian, or erred on any other basis.”