Termination of Guardianships Involving Limited Guardianship and Court-Structured Guardianship Placeme

4.8Termination of Guardianships Involving Limited Guardianship and Court-Structured Guardianship Placement Plans

When a child has lived with the guardian for at least one year and a petition is filed in the Probate Court to terminate a full or limited guardianship because of a parent’s failure to comply with a placement plan, the Probate Court may appoint an attorney to represent the minor child or refer the matter to the DHHS. MCL 700.5209(2)(c)-(d). Following the appointment or referral, the attorney or the DHHS may file a petition seeking Family Court jurisdiction under MCL 712A.2(b). MCL 700.5209(2)(d). The attorney or the DHHS must report to the Probate Court, within 21 days of the attorney’s appointment or the DHHS referral, whether a petition seeking Family Court jurisdiction was filed. MCR 5.404(H)(3).

Once the attorney or the DHHS files a petition with the Family Court and the Family Court authorizes the petition under MCL 712A.11, the guardianship is terminated. MCR 5.404(H)(3)(b). However, the Family Court may continue the guardianship if it deems the guardianship necessary for the child’s well-being. Id.

Note: If the attorney or the DHHS does not file a petition seeking Family Court jurisdiction, the Probate Court must take such further action as is necessary. MCR 5.404(H)(3)(a). However, the guardianship cannot continue for more than one year after the hearing on the petition to terminate. Id.

A.Failure to Comply With Placement Plan

The Family Division has jurisdiction over a child protective proceeding when a parent substantially fails, without good cause, to comply with a court-structured plan. MCL 712A.2(b)(5).

A parent must comply with a placement plan even if the neglect petition is dismissed due to a child’s placement with a guardian, and failure to comply with the placement plan will provide a court with jurisdiction under MCL 712A.2(b)(5).¹ In re BZ, 264 Mich App 286, 295-296 (2004). In In re BZ, the respondent-mother argued on appeal that no grounds for jurisdiction existed because the neglect petitions regarding the two children had been dismissed after the guardianships were established, and placement with the guardians meant that the children were not without proper custody or guardianship under MCL 712A.2(b)(1)(C).² In rejecting this argument, the Court of Appeals indicated that although the original neglect petition was dismissed, the respondent-mother was still subject to the requirements of the placement plan, and her failure to substantially comply with those requirements provided the court with jurisdiction under MCL 712A.2(b)(5). In re BZ, 264 Mich App at 294-295.

B.Failure to Support or Communicate With Child Who Has Guardian

The Family Division may assume jurisdiction over a child protective proceeding if a child has a guardian and there is no placement plan in place, if the child’s parent:

(1) having the ability to support or assist in supporting the child,

(a) 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

(b) 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

(2) 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.³ MCL 712A.2(b)(6).

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).

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, 459 (2018). “[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. See also In re C S Alexander, ___ Mich App ___, ___ (2025) (holding that the trial court improperly exercised its jurisdiction over the child as to respondent-father because respondent-father was only the putative father when the petition was filed, reversing the termination order as to respondent-father, and remanding for further proceedings).