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Aunt Remains Juvenile Guardian Although Required Review Hearing Not Held

Posted on Wednesday, December 30, 2020

The trial court did not abuse its discretion by appointing the paternal aunt as the juvenile guardian of the respondent-father’s children, the Court of Appeals has ruled, because the appointment was in the children’s best interests.

The Court of Appeals further held that, even though the trial court wrongly terminated its jurisdiction without first conducting the required hearing, the guardianship did not need to be set aside. Rather, the Court of Appeals remanded the case so the appropriate hearing could be held.

“The minor children’s aunt was willing to be a guardian to the minor children: the minor children shared a strong bond with their aunt and were thriving under her care,” wrote the Court of Appeals in In re Benson, Minors (Docket No. 353168). “Their aunt was able to provide the minor children a sense of permanency, finality, and stability that respondent could not. Moreover, she was willing to continue to facilitate a relationship between the minor children and respondent while the minor children were in her care.”

Judges Kathleen Jansen, Karen M. Fort Hood and Amy Ronayne Krause were on the panel that issued the unpublished opinion.

Background

The respondent’s two minor children came under the Ingham County Circuit Court’s jurisdiction in 2018 after a drug raid on the respondent’s home, during which one of the children was present. Forensic interviews revealed the children 1) had witnessed their father and his friends doing drugs in the home and 2) knew their father had weapons in the home and knew where they were kept.

The petition to terminate the respondent’s parental rights set forth the respondent’s extensive criminal history, including the fact that he had fathered 11 known children with 10 different women, of which the respondent had custody of none. The children were removed from the respondent’s care and were placed with their paternal aunt, who was willing to provide them with long-term placement.

Meanwhile, the respondent agreed to undergo family team meetings, supervised parenting time, random drug screens, a psychological evaluation, parenting classes and substance abuse assessment. The respondent was also required to obtain legal employment and suitable, stable housing. In exchange for withdrawing the termination petition, the respondent pleaded to certain allegations in the petition to come under the trial court’s jurisdiction. Over a period of 22 months, the respondent maintained employment and suitable housing and had supervised parenting time with the minor children. However, the respondent continued to battle substance abuse. He tested positive for multiple drug screens and missed various drug screens. Moreover, the respondent consistently failed to take accountability for the positive drug screens, blaming them on false positives or claiming that he had spent time with people who had done drugs and their use affected his screens.

The trial court held a dispositional review hearing on January 15, 2020. The lawyer-guardian ad litem recommended the permanency planning goal be changed from reunification with the respondent to a juvenile guardianship, and that the children’s paternal aunt be appointed as their juvenile guardian. Accordingly, the trial court entered an order appointing the paternal aunt as the children’s juvenile guardian. A review hearing was scheduled for April 8, 2020. The respondent timely filed this appeal from that order.

On April 3, 2020, the respondent was given notice that the hearing was rescheduled to June 17, 2020. That hearing, however, never took place because 1) on April 17, 2020, the lawyer-guardian ad litem requested that trial court terminate its jurisdiction and 2) on April 22, 2020, the trial court granted that request.

Juvenile Guardianship

On appeal, the respondent first argued the trial court wrongly appointed a juvenile guardian because it was not in the children’s best interests. Instead, the respondent claimed the children should have been returned to his care.

“We disagree,” the Court of Appeals said, citing MCL 712A.19a(1). That statute says, in relevant part, that “if a child remains in foster care and parental rights to the child have not been terminated, the court shall conduct a permanency planning hearing within 12 months after the child was removed from his or her home.”

When a child has been removed from the home, the child is typically either returned to the parent (presuming the child’s return would not cause a substantial risk of harm) or the trial court may order the petitioner to initiate termination proceedings, the Court of Appeals said, citing MCL 712A.19a(7) and MCL 712A.19a(8).

“However, another option exists under MCL 712A.19a(9)(c), which is what occurred in this case,” the Court of Appeals noted. “MCL 712A.19a(9)(c) provides, in relevant part: … (9) If the agency demonstrates under subsection (8) that initiating termination of parental rights to the child is clearly not in the child’s best interests, or the court does not order the agency to initiate termination of parental rights to the child under subsection (8), the court shall order 1 or more of the following alterative placement plans: … (c) Subject to subsection (11), if the court determines that it is in the child’s best interests, appoint a guardian for the child, which guardianship may continue until the child is emancipated.”

As to whether a guardianship is in the best interests of the minor child, “MCL 712A.19a(9) does not direct a court to apply certain factors or otherwise limit a court’s method for determining the child’s best interests, [therefore] the statute grants the court discretion regarding how to determine what is in the child’s best interests depending on the case-specific circumstances,” the Court of Appeals said. Therefore, the trial court “may consider the best-interest factors from the Child Custody Act, the Adoption Code, or any other factors that may be relevant under the circumstances of a particular case.”

Here, the trial court evaluated whether appointing a guardian was in the best interests of the children and acknowledged the respondent had made some progress, the Court of Appeals pointed out. “However, the trial court also considered that respondent continued to suffer with drug abuse. Although [the respondent] had not had a positive drug test in the three-month period before a guardian was appointed, he had completely missed two drug screens during that time. Given respondent’s extensive history of drug abuse and his failure to take accountability for past positive screens, the trial court admitted that it did not trust respondent’s ‘sobriety’ and surmised that respondent had missed those drug screens because he would have tested positive for something.”

The trial court also considered that the children were in the care of their paternal aunt during the nearly two-year period that they had been out of the respondent’s care. In particular, the trial court noted: 1) the aunt was willing to be the children’s guardian; 2) the children had a strong bond with their aunt and were thriving under her care; 3) the aunt provided the children a sense of permanency, finality and stability that the respondent could not; and 4) the aunt was willing to facilitate a relationship between the children and the respondent while the children were in her care.

“In light of the foregoing, we conclude that the trial court did not abuse its discretion by appointing the minor children’s paternal aunt as their juvenile guardian, and that the appointment of a guardian was in the minor children’s best interests,” the Court of Appeals held.

Procedural Due Process

The respondent also argued that he was denied procedural due process when the trial court failed to conduct a hearing after appointing a guardian for the children under MCR 3.975, as required by MCL 712A.19a(12) and MCR 3.979(1)(a).

“Respondent argues that the juvenile guardianship should therefore be set aside,” the Court of Appeals said. “While we agree that the trial court’s failure to conduct the review hearing precluded the trial court from properly terminating its jurisdiction and we remand on that limited basis, we disagree with respondent that he is entitled to set aside the guardianship as a result.”

According to the Court of Appeals, the trial court “plainly erred” by terminating its jurisdiction without a hearing under MCR 3.975, as prescribed by MCL 712A.19a(12) and MCR 3.979(C)(1)(a). “This constituted plain error by the trial court, and that plain error affected respondent’s procedural due-process rights. Thus, we remand this matter back to the trial court for the limited purpose of conducting a review hearing under MCR 3.975, at which point the trial court could properly terminate its jurisdiction.”

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