Michigan Court of Appeals Holds Juvenile Guardianship in Teenager's Best Interests

On September 23rd, 2014, the Michigan Court of Appeals held in a family case that the family court's decision to place a mother's teenage child in a juvenile guardianship was in the child's best interests after the mother repeatedly failed to prevent her significant other from abusing the teenage child.

In In re Sturm Minor, Docket No. 316944, the Michigan Court of Appeals addressed the issue of whether the family court erred in placing a mother's teenage child in a juvenile guardianship.

The Court first recited the facts of the case.

Respondent is the mother of seven children. The five youngest children (four boys and one girl, TK—the child at issue in this appeal) have the same biological father, Kenneth Sturm. In 1998, respondent’s children were removed from her care following allegations that Sturm had physically abused respondent’s two oldest sons from a prior relationship. Respondent was provided with services and the court’s jurisdiction was terminated in 2000. In January 2011, Sturm admitted to the police that he had been sexually abusing TK for several years. As a result, TK suffered from post-traumatic stress disorder. A petition was filed on February 4, 2011, requesting that the court exercise jurisdiction over the children1 and terminate Sturm’s parental rights at the initial dispositional hearing. Only Sturm was listed as a respondent in this petition. After a preliminary hearing, the petition was authorized and, because of Sturm’s incarceration and no evidence of neglect on respondent’s part, the five children were allowed to remain in respondent’s home.

After the filing of the initial petition, respondent and the children were offered wide-ranging services. Despite these services, a separate petition was filed on May 2, 2011, seeking removal of the children from respondent’s care because one of respondent’s male children had been acting out sexually toward a sibling. By order dated May 4, 2011, the petition was authorized and the children were removed and placed under the care and supervision of the Department of Human Services. Respondent entered a no contest plea to allegations that she failed to properly protect and supervise her children, thereby providing the court with jurisdiction over the children. A parent-agency treatment plan was initiated and dispositional review hearings were regularly conducted.

Each of respondent’s five children in petitioner’s care had varying needs that necessitated different placements. Generally, however, the four boys were placed in residential child care facilities and respondent had difficulty during parenting time with them. During certain periods, some of the boys were briefly returned to respondent’s care. By contrast, TK was placed in a licensed foster home in July 2011, where she remained throughout these proceedings. By all accounts, TK flourished in the foster home, did well in school, and participated in extracurricular activities.

By the time of the July 30, 2012 permanency planning hearing, TK was 14 years old and had been in petitioner’s care for 14 months and in the same foster home continuously for 12 months. Two foster care workers and TK’s therapist opined that a guardianship would be in the child’s best interests. The therapist explained that TK required “certainty.” TK was fearful and anxious about contact with respondent as a result of respondent’s failure to protect TK from her father and inappropriate comments respondent made during supervised visitation. TK requested that there be no visitation or, alternatively, extremely close supervision by the foster care workers. According to a foster care worker, if a guardian was appointed, the guardian would dictate whether visitation occurred. The therapist opined that TK’s participation in family therapy with her mother would not be appropriate at that time . . .

At the conclusion of the July 30, 2012 permanency planning hearing, the trial court, adopting petitioner’s recommendations, changed TK’s permanency plan from reunification to a juvenile guardianship with the child’s foster mother. Respondent was opposed to the guardianship and requested additional time to work toward reunification with her daughter. Respondent ultimately received several additional months to participate in her treatment plan because a juvenile guardianship was not formally established by order until April 29, 2013. On June 27, 2013, respondent filed her claim of appeal challenging the lower court’s imposition of a guardianship.

The Court's analysis of the whether the juvenile guardianship was appropriate under the law followed.

 . . . MCL 712A.19a(1) mandates 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. If the parental rights to the child have not been terminated and the court determines at a permanency planning hearing that the return of the child to his parent would not cause a substantial risk of harm, the court shall order the child returned to his or her parent. MCL 712A.19a(5). However, if the court determines at a permanency planning hearing that a child should not be returned to his or her parent, the court may order the agency to initiate proceedings to terminate parental rights. MCL 712A.19a(6). Further, and most relevant to this case, MCL 712A.19a(7) provides yet additional alternatives:

(7) If the agency demonstrates under section (6) that initiating the termination of parental rights to the child is clearly not in the child’s best interest, or the court does not order the agency to initiate termination of parental rights under subsection (6), then the court shall order 1 or more of the following alternative placement plans:

(a) If the court determines that other permanent placement is not possible, the child’s placement in foster care shall continue for a limited period to be stated by the court.

(b) If the court determines that it is in the child’s best interest based upon compelling reasons, the child’s placement in foster care may continue on a longterm basis.

(c) Subject to subsection (9), 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
. [Emphasis added.]

Contrary to respondent’s assertions, the appointment of a guardian is not tantamount to a de facto termination of parental rights. As petitioner argues, the juvenile guardianship contemplated by MCL 712A.19a(7)(c) does not permanently separate a parent and child. It allows the child to keep a relationship with the parent when placement with the parent is not possible. Indeed, the appointment of a guardian is done in an effort to avoid termination of parental rights. See In re Mason, 486 Mich 142, 168-169; 782 NW2d 747 747 (2010). Unlike termination, the appointment of a juvenile guardianship is not necessarily permanent. The court is required to review the guardianship annually and may conduct additional reviews, if necessary. MCL 712A.19a(11). Pursuant to MCL 712A.19a(13), the court may, on its own motion or upon petition from the Department of Human Services or the child’s lawyer guardian ad litem, hold a hearing to determine whether a guardianship shall be revoked. Under MCL 712A.19a(14), a guardian may petition the court for permission to terminate the guardianship. Even the parent has the ability to seek termination of the guardianship. MCR 3.979(F)(b) provides that “[a] juvenile guardian or other interested person may petition the court for permission to terminate the guardianship.” (Emphasis added.) Further, while the guardian assumes the legal duties of a parent pursuant to MCL 712A.19a(8) and MCL 700.5215, the parent is still under many circumstances permitted to maintain a relationship with the child . . .

In light of TK’s wishes and the clinician’s assessment that respondent was unlikely to make significant gains, it was not clear error to conclude that returning TK to respondent’s care or adopting long-term foster care were not dispositions in TK’s best interests. Moreover, the appointment of a guardian would allow TK the “certainty” that the therapist indicated was necessary for the child’s well-being, but still leave open the possibility, for respondent to have contact with her daughter. This Court gives deference to a trial court’s special opportunity to judge the weight of the evidence and the credibility of the witnesses who appear before it. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). The trial court did not abuse its discretion by appointing a guardian for TK . . .

Respondent also argues that the trial court clearly erred when it concluded that reasonable efforts had been made toward reunification. We disagree. In general, petitioner must make reasonable efforts to rectify conditions and reunify families. In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008).

The record establishes that respondent was provided with a multitude of intensive services. Although respondent had cooperated with the services, she made little progress. She lacked insight into the needs of her children and had not internalized what she had been taught. Not only must a respondent cooperate and participate in services, she must benefit from them. In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012).

Contrary to respondent’s claim, the fact that she was denied contact with TK in an unsupervised setting did not prove a failure to make reasonable efforts. Respondent was originally granted supervised parenting time with TK, but respondent’s actions during visitation made the child uncomfortable and the trial court learned respondent impeded the therapeutic process. The foster care worker and TK’s therapist agreed that visitation was not recommended. Although respondent may have desired to have unsupervised contact with TK, the evidence establishes it would not have been beneficial to TK’s recovery.

Respondent also claims that TK should have been treated the same as her siblings, who were periodically returned to respondent’s home and allowed visitation. But the record demonstrates that respondent never progressed to the point where she could safely parent more than one child at a time. In any event, TK and her brothers were not similarly situated. The trial court was obligated to consider each child individually and assess the best interests of the children separately. In re Olive/Metts, 297 Mich App 35, 42; 823 NW2d 144 (2012).

We conclude that the trial court did not clearly err when it found that reasonable efforts had been made toward reunification . . .