Court Rule Amendments

On April 14, 2009, the Michigan Supreme Court issued an order (ADM 2008-29) amending MCRs 3.901, 3.903, 3.921, 3.965, 3.975, 3.976, 3.977, and 3.978, and adopting new MCR 3.979, effective July 1, 2009. The amendments reflect the recent enactment of 2008 PA 199-203.  On July 11, 2008, a series of bills with immediate effect were signed into law by Governor Granholm, whcih made sweeping changes to child protective law in Michigan. Since these laws went into effect, the Court Rules were unchanged and reflected the old statutory scheme.  These amendments implement those statutory changes.

As is the usual practice on this site, the administrative order has been uploaded to the site and there is a link below.  Here is a brief summary of some of the “high” points of these Court Rule amendments:

• The Court Rules are amended to include provisions for juvenile guardians under MCL 712A.19a and MCL 712A.19c. Under the new law, at a permanency planning hearing, the court may determine that neither termination of parental rights nor returning the child home is appropriate and may order an “alternative placement option.”  One of those options is the appointment of a guardian of the child.  The Act grants the guardian the same powers and duties of a guardian appointed under the Estates and Protected Individuals Code (EPIC), MCL 700.5215, but the guardian is under the jurisdiction of the family division of the circuit court, rather than the probate court. Guardians under this Act are called “Juvenile Guardians.” 3.903 (A)(13)
• MCR 3.921 (C) is amended to define the persons entitled to notice in juvenile guardianship proceedings.
• MCR 3.978 adds a provision to appoint a juvenile guardian at post-termination review hearings.
• MCR 3.979 was added to include provisions for governing the juvenile guardianship process.
• MCR 3.965 was amended to allow the Court to consider concurrent planning at the preliminary hearing.  MCR 3.975 was amended to allow for the consideration of concurrent planing at post-dispositional hearings while the child is in foster care.
• The hearing procedures at permanency planning hearings under MCR 3.976 was changed to provide that the court shall obtain the child’s views regaring the permanent plan.MCR 3.976(D)(3).
• The following provision was added to MCR 3.976(E):
  

  In the case of a child who will not be returned home, the court shall consider in-state and out-of-state placement options. In the case of a child placed out of state, the court shall determine whether the out-of-state placement continues to be appropriate and in the child’s best interests. The court shall ensure that the agency is providing appropriate services to assist a child who will transition from foster care to independent living.

• MCR 3.976(E)(3) was amended to provide that a court may order DHS to initiate a supplemental petition to termiante parental rights (eliminating the mandatory “must” language) under the following circumstances:
  

  Except as otherwise provided in this subsection, if the child has been in foster care under the responsibility of the state for 15 of the most recent 22 months, the court shall order the agency to initiate proceedings to terminate parental rights. If the court orders the agency to initiate proceedings to terminate parental rights, the order must specify the date, or the time within which the petition must be filed. In either case, the petition must be filed no later than 28 days after the date the permanency planning hearing is concluded. The court is not required to order the agency to initiate proceedings to terminate parental rights if one or more of the following apply:

  (a) The child is being cared for by relatives.

  (b) The case service plan documents a compelling reason for determining that filing a petition to terminate parental rights would not be in the best interests of the child. A compelling reason not to file a petition to terminate parental rights includes, but is not limited
  to, any of the following:

  (i) Adoption is not the appropriate permanency goal for the child.

  (ii) No grounds to file a petition to terminate parental rights exist.

  (iii) The child is an unaccompanied refugee minor as defined in 45 CFR 400.111.

  (iv) There are international legal obligations or compelling foreign policy reasons that preclude terminating parental rights.

  (c) The state has not provided the child’s family, during the period set in the case service plan, with the services the state considers necessary for the child’s safe return to his or her home, if reasonable efforts to reunify the family are required.

• MCR 3.977(D) was amended to provide that the court may suspend parenting time when a petition for termination of parental rights is filed. This eliminates the mandatory suspension under the old court rules. The new court rule does not provide any standard for the court to apply in determining whether to suspend parenting time, so this author can only conclude it is simply in the court’s discretion.
• Finally MCR 3.977 (E) and (F) were amended to comport with the amended MCL 712A.19b(5) to indicate that after the court finds a statutory basis to terminate parental rights, the court may terminate a parent’s parental rights upon a finding that “termination of parental rights is in the child’s best interests.”  Under the previous rule, the standard for the best interest finding was “clear and convincing evidence.”  The new court rule does not state any standard of proof required for the best interest findings.  Most courts will probably continue to apply the clear and convincing standard.

Click here to download the order:  Administrative order 2008-29

© 2009, Melinda Deel. All rights reserved.

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