# Petition for Writ of Certiorari — Eilender v. Michigan Department of Human Services > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1296%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 559 U.S. 937 ## Text Suma Cot US. 09-639 NOV 27 2000 No. OFFICE OF THE CLERK wee IN THE Supreme Court of the Gnited States DAVID EILENDER, Petitioner, U. DEPARTMENT OF HUMAN SERVICES OF THE STATE OF MICHIGAN, Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE MICHIGAN COURT OF APPEALS PETITION FOR WRIT OF CERTIORARI MARTHA A FIELD Counsel of Record 1575 Massachusetts Avenue Cambmndge, Massachusetts 02138 (617) 495-2962 Dated November 27, 2009 oP ROUEN Re VaR AD EOP I 8 > oe men : ee RCA CA LERER ICE HATEMAN & SLADE, INC ROYTUOR. MASSACHL. SETTS QUESTIONS PRESENTED This case questions the constitutionality of Michigan’s procedures for terminating parental rights Michigan’s termination hearing does require “clear and convincing evidence” to support a ground for termination, in accordance with this Court’s decision in Santosky v. Kramer, 455 U.S 745 (1981) At the same time, however, Michigan exempts the termination hearing from its usual rules of evidence and permits the final termination decision to be based on hearsay and otherwise inadmissible evidence MI Rules MCR 3.973(E) The petitioner has had his parental rights terminated in such a hearing Moreover, he has, over his objection, been tried jointly with his ex-wife, increasing the hearsay and also allowing in much other evidence that was irrelevant but prejudicial to him. Two questions are thereby presented 1 Can a State Refuse to Apply the Fourteenth Amendment's Right to Confrontation to Its Child Protection Proceedings to Terminate Parental Rights, Even When Only Adult Witnesses Are Involved? 2 Did the Family Court Deprive the Petitioner of Due Process When It Refused to Sever the Petitioner's Trial for Termination of Ifis Parental Rights from That of His Ex-Wife who had, among other things, been Convicted for Perjured Testimony Against Him? ll [This page is intentionally left blank |] ill TABLE OF CONTENTS QUESTIONS PRESENTED .. . TABLE OF AUTHORITIES __.......... COP LINGGAINID BOEBAAI AF « cessnises ee een TA 6 EE CRD ON REN PETROS Ry REE FRET. CORN he OE ET LOTy EET MET ETEITe be CEE REA Se CREE Sar) Oe mereere cane: © bee beteree ane Comer em JC -_———— sa ee ea ute wore ce Ta ee He cece | De nol wree Dew live tine — For coun use oney PH ee Heh ome tEE TT Fee he eter Cae MoT.) PRO 25 UBC WO1T MOL 409.20) of weg. MOL TIDA 18 MOL TPA 1a, TRA Oe ML Pare Mr 3 87) Jt @) (007) OROTN ITNMINA TING PANENTAL RIGHTS (CHILD PROTECTIVE PAOSEEDINGD) 125a JS CODE SNL PRN Apmoved SCAD STATC OF MICHIGAN OROLT FOLLOWING UISPOSITIONAL REVa a? =| CASE NO 6h JUTIOWR CMICUTT PAMILY DIVISION CCRMANBHCY PLANNING NEARING PETITION NO OAKLAND COUNTY (CHILD PROTECTIVE PROCCEDINGS), PAGE | ORNER or Coun icieplione me (246) 666 11512 — L “Goon wucress 1200 N Telopraph Koad Poniac W 46s41 1 Inthe meter ot Marin Cranes Henry hosr Hennol) Cleon Rote Levas Abteliom Joseph and Liven Saran Flloncer Namete). ewenen) COD OOS 12/20/0900 19/07 12/170"1 1/1604 2 Onteolhearmg _Juty 10 2008 JusgeRoterea rer —_ Bi ranwnane 2- 2yVO (ap cemy be wart chs ¥ oberon tapect; ter pach chad [| Qi er eeg Las! perrnanency panwng eon Cate 4 As Of 5 Prat OGio!. ihe Ciidiren) namo” BDOTE weswero im (itt leMporary Cusiody of the cour, end ©) remained in fre come == [B) waevere pioced with Ine Depanment of lunar Sorvses to! cafe end suNernsion 6 Notice of heanng tor ine [2 renew permonancy planning (CF) combined review and pemiarsncy planning hea sing wat served ns reqwed Dy uw Notice 0! procordings is 10 be given o9 requTed by law THE COURT FINDS 6 The towyer pverdian ed item @ hes () has ne! corapited wiih the roquvemonts of MCL 712A. 176 ? De There tc provetie cause to befove Ino lega¥putahve istverts) itiore (nero o8c> Chtx eepmer (ue) 2 AU Whelhor Ga) OF peLsl he) [7b The puiaiive (ginerof ___ be unknown and cannol be Identities. Cle The natumnl tome: was noshed as requnie® by lew ord Inned Io eslnbbah patemvy withn: the ume eet by the coun The Melurol Uva wmves all rights to byrine: Netine, mockykng Ure rgtl to NokCe Of termination a porenial noms end tho ng’t 1o An attorney 6 The cowl has considered the case service pian and othe! evidence presanind. The fngng: Delow aro spacifc. to IMs case und are bas20 upon tha nearing and (2) (ne lotlowing renori(c) _ Orat Report riven Werke rewornia) ahd GCIs) Ol span, Soediic Condens rovewed on he (ecord as madres by MCL TIZA 19(6) were n comptience wilh ine cate wrrvice pion wil) resnec’ to sefwees provides of offered to tne cP and his oF ne. poress) quard@n o° legs! Custodion ad wrothe De paveni(a) puortan, & mga cuniadwn comalied whi and beneMied wom Wroee serv'ces. b CoMphance vA thre cate service pion vl) respect lo Oprering Ome eA ihe cht’ and whether peraiving kre cid nos OCCU! OF WES IreQuerd and ihe en80nS Way SING @alenl to Wich pEreni(s) QuNdian. of egal cus eden Compre” wil each provision oO! ty cose service Plan peor COU orders Gnd any Op DOMEM beween the pareniis) Quariton of legs! cusIoden ore It, agency a Bkety horm to he crvit E uve CIO conurned io bo sepersied trom vs OF her pareve! QuOrdaN oF MOe! cusiodian © LKOIY hes to tre cottd F ine chvid wns retuned io hes of he! paren’s) guardian o lege! ariodan (SEE SECOND ®AGC) aan eueunte lean = ; USt NOTE Use it erm ta review or permanency planring hoarngs Ajrer wernvnetun use form JO 76 meiong MOL TPA Pe tee PAC. TIA 1 OL 70 18 (WO7) ONDER §O. LOWING DISPOSITIONAL REVICW!? TItMANENCY PLANWINS ~CAsUNO MCL TIZA 1S OrSd IDA Ia (CHILD PROTECTIVE PROCEEDINGS), PAGE 4 MTA PIRATE WOR 202, MOM 2 OPMIAD, CPR SOTS MEN SOFOI LH 126a rowed SCAD #5 COOL. SRE PRN DMS 2 “a STATE OF MICHIGAN DADEN FOLLOWING DISPUSITIONAL REVIEW | CASE NO OG) 7078-4 NA Gus YUOKIAL CIRCUIT PAMELY OTISION PORMANCACY PLANMING HCARING PETITION NO OAKLAND COUNTY | (CHILO PROTCCTIVE PROCCFOINGS) PAGC 2 ororr 4 OF 4 ee Courl noaiess L200N Temgraphitaad Poniiac Mi 46341 Goud teteprronc ma (240) 858 O112 ih the malter of Marvin Charles Mony Nooh. Hannel Eleen Rosy Lewns Aureham Josopn and Lita. Sarsh Caendor OD woud (word not couse 0 substanial ast (BO Retuming ihe chiidtren) to Ue povenlis) quardien, of tegst custodian rigt of nae to the CNlidiren)s Ale onysical head) a: menial wet being (CD 10 Tee chftiren should not be meiUTnad lo the parenKs) quadan, of legal cusiodion Tho agency () should D shouts et huUlete proceedings to terminate ihe parental righis to Ihe cHi(en) NOIT. U the chid{ren) were nal remaved prior jo Ihe c-sporbannl review oF permanency planning Nearing enw new alegetors ore made which reouwe removal o supplemental pelition mus! be presered and Med end an amengency remove heating hwtd, wheroupen canuory © ine wollave end reasonaiie afiorts (extngs mus! be made Use lorm JC 7S See MCR 3 974(B) and (C) GD 01 Bae Reasonedteciions Qwere OChwere not made to prusorve end reunily the /emily jo mane & poss!bie for he chOd{ren) | salety rotutn io ine chid (ron) & home. PCy moacaradie sUorts Belew pad epomcebls Ihe rensens for mun) 8 1) Romsanable efierte for rounificelion shouxl be conunued 2) Those reasonobio offoris were succerstus ou ine CNVOfran) should be ‘eloseed to NOMets Or Pereniis) gusld.an oF Oe Coneoun Tro reasonable eflotts inctada tepecty) basCO on he staterens placed on Uw record Db Reesonatee aftorts to presorve end rounly no temby jo make Il possitle tor Ihe clubgiren) lo aatoly return (0 (ho CN dren) shame se noi required O8900 OF & prio! Order ( 12. Propress ioward nioviating of miigating Ire conditions inet Caused ine chitdiren) le De pieced oF to femal ln temporary foster core (ves (C)wasnol made in accorcance wih MCL 712A 10(7) 13 The chiktiven)s confiiued phcerment (J ts necessary ond appropriate and ts mesiing tre chuidjren) 3 needs Cl ts no lenges necestary o eppropnale (@ 14 ‘Heasonabwe efforts ® nave () neve aot beCA M200 Lo [insite Une court appioveo permanency pian of G3 o return © ihe pereni for chbuiren) named = Marin, Creiios Henry Nowh, Hennan Euscn Rose Lewis Abrnhom _voseo one him: Sorat Cuanser Ge OO Que dionship la’ ive céciviten) nemeo C odsphon Jor Gwe cliidirea) ner ed ¢ DiEceMent wilh @ Ml avd WANG Felelive for tho Cituiren) nomed Q ¢ PRCETMOEN =m ENoING: planned permanent ining orrengemad, Weni-ed as 7 duu © ine coricekng (awnors ick (etwrmte ine Geren GF G8 COE OS WO pean ty Grr CO POter@ fensert f8! Enel O Peano preTOnen Fray ecenperee ny for Maori es POMPORNEN PF Aric ring (Be Se OUEDO Le) Corr emerets @ 1 Mmri>e(e) lorm ine Bt! oF pape 6) (SSE TIMRO PAGE) \perowed ECAO AS COU ORL Pe JC 18 (87) ORDER | OLLOWING OISPOS TIONAL REVI WIC IUNANT HCY PLANNING HCARING {CHILD PROTECTrvC PROCTEDINGS! FAGC 2 127a STATE OF MICHIGAN OROCR FOLLOWING DiSPOSITIONAL R. v CASE HO 05 7O7E/4 WA 63h) QUDSCIAR CIRCUIT FAMLY DITION PERMANENCY PLANNING HEARING PETTION NO OAKLANG COUNTY | (ClIR.D PROTCCTIVE PROCEEDINGS) PAGE 3 CRDOER 1 OF 14 Coun addsess 120K letogmph toad Pontinc Mi 48041 Coun telephano ne (248) 056 9112 In the meltor of Murvin, Charles Henry Nonh Hannah Elieen Rose cevas Alcainam Joseoh pnd Lilien Serah Ctender The reasonnbie elloris rade to finniize Ino court approved permanency pith lentibed sbove include PDel By the pexnaroncy pee for eech CTO ans ino ressonene: @Unds ads Kavard has tring Ind! pte) based on he sigienrants placed on the record (2) Since oa oplior. ts he court Opproved permanency Flan, Ite Dopariman: of kumon Servicos had be odore:! lo mlliste Proceedings lo (ornate paremat rinits [1015 Parenting ime wath 7” eves I! s90N6ed may be Narmiul to the child(rond NOTE ‘MCL 712A.108 provtdes taal these reesonodis oforit findings musi be made vAlhin 12 months (rom when the chid was femoved from hisfhe! ome ond every 12 months thereahe; iT 1S ORDERED [) 16 Nolice It 10 be Dlven ‘p tho lege ¥puiatvo fetnor(s) os required by lew =) The Iainer wae no. Preseni and murs! sppos’ ot tre Next hoanng DD The putalme folirer was Presen) nt this hesring anc! anst esinbligh Pavwnly wilhin 14 days C1? The chibdtrest) isfere comiauied en the temporary custody of hws cour, and & tstore piacod wih tho Depenimon! of Human Burvices lo’ caro and supervision and oO. tho paren guardian, o7 bege! Custod:an si" exacute 2D ogcuman!s METEES Ory (0 reicase canMhdenila! informalon repording ine cWidven) inching medical, meni; and edvoaliona! feports and chat) atse, wiliin 7 deys provicie Ino Deparinrent o! Human Se, vices vzih fre namets) and ocdrersles) 0! Ihe mevicel provider(s) for the crvictren) Any meuicel prowde: Of te ciikdi‘en) shail retesse fo medicm records 04 Pho crickran) te Ihe Depenmeni of kurman Somces Dio rome alydy has not yet boen compitied Ihan one stink be portcimied by Ine Oeparimen: of Human Services RW 8 COpy Ol we home steOy sULMIHed bo Ine Coun nol more Lies 30 deys olies Ine pracement C upon requos!, he Oepzariment of Hummn Serices shnil rolaase to 1ne fosler pavete ino information conceming the Gu s;ren) h oecordarce wih MCL 741A 130/13) ©) romain heme wAt) 0 iBdare retcaced to x - ences lhe supEernsson of live Deporuneni of biuman Servees. [) Tie bolOMIND terms ane condikons opply to Ihe pwenvo wercianMageal custodiin (J 18 The Depa wen! of Hunar Services sii Ininals Procesdstgs Io termingic psreme! girs io Oe chien) no $0:0f Ihen 42 Goys from Ihe date Oo! Ove lreasirg P2146 The poreni(s), quordin, x lepes custodian shell comply wath ond eanaiil irom, ihe caso wertce plan Cin acanon J 20 Parowng time of r) tvvervined by ie Depertrent of Human Seneca. Sne'Or Us oars aupErvsed 4! Ie Mécienan of ho Desonment cf tuanan Sern +08 / SIR peaged sie prycnomyp.ci' evahinton or COUNsenNG & Sonducled of uN brine: order of the court SEE FOURTH Pace) Alpeovet © 5AD JE 9 CMY) ORDER FOLLOWING DISPOSITIONAL REVIEWIPEKMANCNCY PLANNING HOARING (CHILD PRCTCOTIVE PROTEEDINGS) PAGE 3 Lel 4GASE NO 05-767874 WA ORDER FOLLOWING DISPOSITIONAL RL ow PORMAANCNCY PLANHING HCARING } PETITION ND OAKLAND COUNTY | [CHILD PROTTCTIVE PROCCEDINGS), PACE & ORDER 1 OF 4 STATE GF MICHIGAN Qin JUDICIAL CNCyt) FAMILY DIVISIOK Count address 3200N lelepraph ftosy “oanac Mi 46341 Cow! talophonn ap (244) 853 O14 i Ihe mater Of Morvir, Crareot Henry Noah Hannan Cueon Rose Lows Abdreham Josoph ond 1 Glan Sarah Enendor cy (1 21 Parenting ums of supemisas by he Depwitment of humen Services ancior ns dasignen. fs tMbuporwted al ho Ulscsc'ion of Ihe Opperunent of Human Sarmcas. (CC) suspences vitile psychological avaluniion cr covnaeling ls Concucied ot Unik durine: odes of the court C) 22 Parenting tte of Laos “ 2 supemsed by Rye Department of Human Services end/or lis desig veo (Cl unsupernaed al {ho dtstretion ol tie Department of Hurmar. Sorvices CD) e:rspanded wile peychologico! evatutiion or counmeling 1 CoRducled oF Unlll (utthe: order of the court. (1 23 sumadiciion of this court #s lerminaied The cour reserves the righ! io enforce payments of reimbursement Hat havo accrued Up 10 Ong inciveling the date of his order The chidiré:)) is’cro releesed to 24 Previous rembutsemont crdere shal conimue. 26 OCiher janoch espace shoot d noeved) (© ‘The Court eporowes felive Rivunvelated cure piver placement vAlh The Leryer Guertnn Ad Lier. 6ho® comply with the Orda of Appoimmonl and MOL 712A. 12a Ptacamom w coniinucd tor all chiidren, the Court orders af cell phone records for Marvin be pioviced io ine Count ai the Bast tmeresi Kesting the Coun ondass ine TOSio¢ Moiher to be present al Ihe Bes! Inter! Heartng 26 Prot orders remain in alec except 06 moddnd m this oder G3 27 Roview hencngs x ol! vo held as (oliows (NOTE. Yoo review froeiing shit ec! be deitved Leroed Lie nu nie: of dere required (£020 Tiras of wens Dhar 2 pollen Lo ienwinet paren'al aghis ©} ahotrre: metertis pending, MOL 7) 24, 10 orowedas asl the permanancy pianaey heeling thas nos oe @ layes be yore’ 1) mortns Irom the eve of sorrow ®) Of ite CARS ONG every 12 erin Grereshey,) Best sioet! Neng 728 O& et Dam CG) permonsncy ptarcyng nearing The SUD Msinp agency shol provioe COCUMEnIatOn Of Progress reining to #0 expects of ine tes! Cowl o'dered Lasiment Pan inching copas of evoeiton end therapy mpons and vo-Amallon 0! Prenbng ene nol titer inen 6 vusiness doys belo-e ing scnoauned nearing 2t 2 Notice of the nex Nearing has been piov.ded as required by tow (3 Notco ef ine nox hearing sia? be pronded. 2e am site Racorwnery bw A RE SATE ya _—- a P. fic ogee wht y we ee as i; LS i Aa rs I Ries: cao iv asx oh es ———————————————S Pre Se, Tho folowing Bst aco cznmpios of compotitey rewong for & pormenency pita otter than retven Nverciansnip, pincernent wita o Mt anc willing: roiatiwe oF Ydon:wn 2C 1¢ #27 ORCA FOLLOWING DISPOSITIONAL REVOWIPCRMANCK TY PLANMING HEARING (CHILD PROTECTIVE PROCCEDINGS) PASE A © pareni, leya 129a APPENDIX D UNPUBLISHED Court of Appeals of Michigan. In the Matter of Marvin EILENDER, Charles Henry Noah Eilender, Hannah Eileen Rose E:lender, Lewis Abraham Joseph Eilender, and Sarah Lillian Ei- lender, Minors. Department of Human Services, Petitioner-Appellee, Vv. Dr David Eilender, Respondent-Appellant, And Betty Colleen Eilender, Respondent. Department of Human Services, Petitioner-Appellee, Vv. Betty Colleen Filender, Respondent-Appellant, and Dr David Eilender, Respondent. Docket Nos. 287939, 288110. June 30, 2009. Oakland Circuit Court, Family Division; LC No 05-707874-NA Before. FITZGERALD, P.J., and TALBOT and SHAPIRO, JJ PER CURIAM. *1 Respondents appeal as of right from the Septem- ber 15, 2008, trial court order terminating their pa- 130a rental rights to the minor children (Marvin, DOB 6- 19-94; Charhe, DOB: 12-29-95, Hannah, DOB 6-13- 97, Lewis, DOB: 12-17-99; and Lilhan, DOB 11-16- 2002) under MCL 712A.19b(3)(c)(i), (g) and (j). We affirm Docket No 287939 Respondent father does not argue that the statutory grounds for termination were not established by clear and convincing evidence, nor does he argue that it was not clearly in the children’s best interest to terminate parental mghts Father argues that the trial court erred by terminating his parental rights without first providing him with services to treat ob- sessive-compulsive personality disorder (OCPD) He contends that this disorder affected his parenting ability. Father concedes, however, that he took the position during the proceedings below that he does not suffer from OCPD In fact, father presented the testimony of Dr Miller that father does not have a mental illness and does not suffer from a personality disorder Father's denial is consistent with his broad denial of any responsibility for any of the problems that this family suffered and for any physical or do- mestic abuse of his wife or his children The record is replete with testimony that an individual who refus- es to accept responsibility for his actions will never be able to change his actions. Further, the psychological evaluation with regard to father recommended that father “find a specialist, either psychiatric or psychological, who addresses Obsessive/Compulsive Personality Disorder and re- sulting behavior patterns that make it difficult for an individual to function on a daily basis and that are obviously interfering with the family’s ability to 131la function as a group” Father treated with Dr. Gon- zales beginning 1n June 2005, upon a referral from father’s attorney indicating that father might have OCPD, but father discontinued treatment after sev- en sessions Father indicated to Dr. Gonzalez that he was going to treat with another psychiatrist, but failed to do so Father never provided any informa- tion regarding Dr. Gonzalez’ diagnosis or prognosis, nor did he provide information regarding his treat- ment Although father claims that he was not aware of the recommendation that he treat with a specialist in OCPD, the record suggests otherwise. A discus- sion was held on the record 1n October 2005 regard- ing the fact that DHS does not pay for psychiatric treatment and that father’s private insurance might pay for such treatment. Father made no attempt af- ter ending his treatment with Dr Gonzalez to secure treatment for the psychiatric condition that he de- nied, despite the recommendation in the psychologi- cal evaluation. Further, contrary to father’s suggestions, DHS did provide referrals for father for individual therapy Father first had individual therapy with Mananne Winter-Long, a social worker with Oakland Family Services, and later with Ian Lloyd, a mental health therapist at Alpha Family Counseling. DHS autho- rized individual therapy with Lloyd from 1/19/06 to 4/21/08. That referral did not contain any mention of OCPD. A second authorization for the period of 4/20/06 to 7/20/06 listed OCPD as a reason for the extension of the authorization Lloyd did not find fa- ther to possess OCPD tendencies At the end of fa- ther’s second treatment period with Lloyd, Lloyd in- dicated in a report generated on August 1, 2006, that father had reached maximum benefit and recom- mended termination of therapy. The following day, a 132a request for an extension of services was made Lloyd testified that he indicated that father had reached maximum benefit because no additional authoriza- tions for treatment would be granted. Lloyd then stated that he meant that father “reached maximum benefit from the therapy that was authorized,” but acknowledged that that 1s not what he stated in his report Father’s statement in his brief that “DHS pressured him [Lloyd] into documenting that no fur- ther services were needed” is incorrect and mislead- ing. Similarly, father’s statement that “most [of fa- ther’s problems] related or arose from OCPD” 1s misleading. Indeed, father denied having OCPD, and at least 2 witnesses, including father’s own expert, testified that father did not have OCPD *2 The record reveals that DHS provided many ser- vices to father throughout this case and that father failed to benefit from any of those services because he was in denial and refused to accept responsibility for his behavior and for the problems existing in the family The failure of petitioner to ensure father’s compliance with treatment to address his OCPD is not enough to render insufficient the evidence for the termination of parental rights. Father also argues that his interests conflicted with those of mother and, therefore, the trial court erred by denying his request for separate trials. However, the court specrfically :ndicated that 1t was capable of adjudicating the rights of each parent separately, and properly could terminate the parental mghts of one parent without terminating the mghts of the ' Documentation in the record reveals that no further referrals would be authorized for father for individual therapy because he was participating 1n family therapy 133a other, if appropriate In re Marin, 198 Mich.App 560, 568, 499 NW2d 400 (1993). A separate hearing was not required to avoid prejudice to father’s case. See Detlofr v. Taubman Co, Inc, 112 Mich App 308, 310- 311; 315 NW2d 582 (1982). Indeed, father concedes that there 1s no authority for the proposition that a separate hearing is required under the circums- tances presented 1n this case. Next, father argues that the trial court refused to let father’s counsel cross-examine the family therapist, Dr. Stulberg, “regarding her anger and resentment toward him” after he filed a HIPPA complaint against her,”” and then sanctioned him for attempt- ing to obtain a basis for the court’s ruling, thereby violating his mght to confront his accusers. However, respondent’s nght to confrontation was not violated because he had no right to confrontation 1n a child protection proceeding. In re Brock, 442 Mich 101, 108, 499 NW2d 752 (1993) Father also argues that his right to due process was violated because the trial court refused to allow him the opportunity to cross-examine Dr. Stulberg on the issue of bias. The parental right to custody of one’s child constitutes a liberty interest entitled to consti- tutional due process protection In re Render, 145 Mich App 344, 348, 377 NW2d 421 (1985). On review de novo of the proceedings below, there is no basis to conclude that father was denied such protection when the tmal court cut-off further’ cross- examination of Dr Stulberg regarding alleged bias Father presents a distortion of what transpired. Ear- *The HIPPA complaint resulted from the initial family therapy session that was also attended by the court-appointed special advocate 134a lier in the hearing, the court had sustained an objec- tion and father’s counsel continued to argue with the court over its ruling. The court ultimately informed father’s counsel that, “That’s one sanction. Move on.” When father’s counsel continued to argue with the court with regard to the colloquy at issue above, the court informed him of “Sanction two” Thus, the record does not support father’s argument that he did not know what the court was referring to ’ None- theless, father was not denied his due process rights by the court’s limitation of cross-examination of Dr. Stulberg with regard to the HIPPA complaint. Fa- ther has not shown how he could further attack Dr. Stulberg’s credibility with information that the trial court already knew-i.e., that father had filed a HIPPA complaint against Dr Stulberg In addition, father had listed Dr. Stulberg as a witness and had the opportunity to call Dr. Stulberg, but declined Father has not demonstrated that he was denied due process of law *3 Lastly, father asserts that he was not able to ob- tain a copy of the plea proceeding to allow him to raise a challenge to the voluntariness of his plea to the onginal petition on July 29, 2005.‘ However, the transcript of the plea proceeding was filed on No- vember 17, 2008, two months before father filed his * The record does not reveal that any sanctions were :mposed against father’s counsel * Father concedes that, “This 1s not a proper appeilate issue at al] It 1s, rather, one of necessity ” Father's counsel also con- cedes that the appellant has “the duty to obtain the record and, quite frankly, this Court may discard this question entirely with a single citation thereto ” 135a appellate brief. Consequently, father’s argument is misplaced. ""* * Nonetheless, father’s assertion regarding the voluntariness of his plea 1s without merit The court asked both mother and fa- ther if they understood that by pleading no contest to the con- tents of the petition they were giving up their nght to a trial, to which both responded affirmatively The court informed mother and father that When you give up your mght to a trial by the preponderance of the evidence, which 1s what the prosecutor must prove, you are giving up all those mghts that go along with the right to a trial, including the mght to have the prosecutor prove your responsibility and that the children fall within the neglect statute by the prepon- derance of the evidence You’re giving up your right to have your attor- neys represent you during the trial process, to have witnesses appearing against you and to question those witnesses or have your attorney question those witnesses, to have the Court or- der witnesses to appear on your behalf, also to testify on your own behalf, 1f you wish to testify You are waiving all of these mghts by pleading no contest to the contents of the petition Do you understand that Ms Enlender and Mr E)- lender? MS EILENDER Yes MR EILENDER Yes THE COURT By pleading no contest, you’re indicating that you are not contesting the alle- gations present in the petition You're not pleading responsible to any specific allegations, but do you understand for purposes of this case, the Court 1s going to treat your no contest plea 136a Docket No 288110 Respondent mother’s parental mghts were term- nated pursuant to MCL 712A.19b(3)(c)(1), (3)(g), and (3)G), which state as follows. Pursuant to MCL 712.A.19b(3), the court may ter- minate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following’ as 1f you had pleaded responsibility Do you un- derstand that, Ms Exlender and Mr. E:lender? MS EILENDER Yes MR EILENDER: Yes THE COURT And further, please understand the following As a result of your plea of no con- test today, the Court will take junmsdiction over these children and the Court will order you af- ter disposition 1s made 1n this case to a number of cases aimed at the reunification of your fam- ly Should you fail to follow the Court’s orders, a petition could be filed to terminate your mghts If that occurs, your no contest plea to the con- tents of this petition could be used against you at that time Both mother and father mdicated that they understood what the court stated The court then continued its questioning to determine the voluntariness of the plea The factual basis of the plea was a two-page copy of the complaint dated May 20, 2005 The court accepted both mother’s and father’s pleas of no contest, and informed mother and father that when the court takes jurnsdiction in a tempo- rary custody petition, it 1s the intent of this Court to work towards reunification of the fami- ly And ot wall take jumsdiction over the family based upon the pleas of no contest by both par- ents 137a (c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have clapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evi- dence, finds either of the following: (i) The conditions that led to the adjudication continue to exist and there is no reasonable likelia- ood that the conditions will be rectified within a rea- sonable time considering the child’s age * * * (g) The parent, without regard to intent, fails to pro- vide proper care or custody for the child and there 1s no reasonable expectation that the parent will be able to provide proper care and custody within a rea- sonable time considering the child’s age. * * * (j) There is a reasonable lhkelihood, based on the conduct or capacity of the children’s parents that the child will be harmed if he or she is returned to the home of the parent The petitioner has the burden of proving a statutory ground for termination by clear and convincing evi- dence. In re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000) This Court reviews the trial court’s find- ings of fact under the clearly erroneous standard. MCR 3.977(J). A finding of fact 1s clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. Jn re Miller, 433 Mich. 331, 337, 445 NW2d 161 (1989). Deference 1s accorded to the tmal court’s assessment of the credibility of the witnesses who appeared be- 138a fore 1t Id ; MCR 2 613(C). An order terminating pa- rental rights need only be supported by a single sta- tutory ground In re Trejo, supra; MCL 712A. 19b(3) MCL 712A 19b(3)(c)(1) Mother concedes that she was not [at the time of the termination trial] and is not yet prepared to be a model parent, She asserts that she “deserved more time to address her many concerns” and that the tri- al court should not have changed the permanency plan from reunification to termination simply be- cause “the magic 182” days had elapsed 1n this case. Mother’s argument ignores the fact that the children first came under the jurisdiction of the court in May 2005, and that the initial disposition order was en- tered on October 18, 2005 Clearly, more than 182 days had elapsed since the issuance of the initial disposition order Mother’s argument also acknow!}- edges, but fails to give due weight to, the fact that a multitude of services were provided to this family throughout the duration of this case Mother’s argu- ment also acknowledges that mother showed some progress with regard to the parent-agency agree- ment, but that she did not fully comply. Even assum- ing that mother had fully complied, a party’s com- plance with the parent-agency agreement 1s merely evidence of the party’s ability to provide proper care and custody of the children Jn re Trejo supra at 356- 357. Compliance is not unquestionably decisive of the issue Moreover, benefiting from the services 1s “an inherent and necessary part of compliance with the case service plan.” Jd. The record demonstrates, and mother concedes, that she had not yet benefited from the services she received. 139a *4 Contrary to mother’s suggestion, the trial court was fully aware of the unusual circumstances of this case The court scheduled review hearings nearly every month in an effort to keep the family on track and deal with the many issues presented in this case The court also consistently noted the goal of reunification for this family (with mother and father planning separately in lhght of their divorce). It was not until 1t became very apparent that the conditions that led to the adjudication continued to exist and that there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering the ages of the children that the trial court authorized the filing of a supplemental petition to terminate parental mghts. Although it 1s clear that mother loves her children, she 1s thinking about only herself in suggesting that she be provided more services and more time to rectify the conditions that led to the adjudication. These children had been in and out of foster care for three years, and had been solely in foster care for nearly 2 years at the time of the trial. MCL 712A.19b(3){g) Mother concedes that “she received a multiplicity of services from professionals and friends and neigh- bors,” but argues that she “required exceptional ser- vices for a prolonged penod of time” and that “more and repeated services should have been provided ” Mother essentially argues that DHS rushed to ter- minate her rights In making this argument, mother likens her situation to that of the respondents in In re Newman, 189 Mich App 61; 472 NW2d 38 (1991). Mother’s argument fails since Newman 1s factually distinguishable from this case In Newrsnan, the ser- vice provider assigned to instruct the respondents on 140a maintaining their home stopped providing the in- struction, Jd. at 65-68 Evidence was presented that progress was being made while the provider’s servic- es were being offered. Thus, this Court concluded that the trial court erred in finding the “the condi- tions in the home to be a basis for terminating res- pondents’ parental rights because respondents were not given a full and fair opportunity to maintain the home. They need help. It was not shown that after being given consistent assistance they still did not rectify the conditions” Jd at 67-68. In the present case, however, mother was given a full and fair op- portunity to provide proper care and custody within a reasonable time considering the children’s ages. She had “expected relapses” throughout the course of this case, and there is nothing in the record to sup- port a finding that such relapses would not continue to occur. Further, the policy preference for timely de- cisions regarding a child’s permanency plan is driven by a concern for the child’s needs See Jn re Hatcher, 443 Mich. 426, 431 n 5, 505 NW2d 834 (1993). By the tume the court terminated mother’s rights, the pro- tective proceedings had lasted almost 3 years, during which time mother had been provided ample oppor- tunity to improve her parenting capabilities MCL 712A 19b(3)q) *5 Mother’s sole argument with regard to this statu- tory ground for termination 1s: There was no evidence presented that indicated that these children were directly harmed by their Mother when they were in her care. It is only when father was in the home did the neighbor or DHS note that the children were harmed. With father out of the home, the likelihood of harm to the children was nil Unfortunately, the children did not voice a desire to the Court Clinic evaluator to live with Mother due 1o negative memories of their life with both parents. Even Ms Eilender said she was not ready yet to par- ent. Time could have healed these wounds. The pro- fessionals could have and should have presented an alternative to termination because Ms. Eilender was highly motivated to be healthy and to be a good par- ent now that she had monetary means to provide for her family. This argument need not be addressed because (1) mother has failed to properly present it, and (2) oth- er statutory grounds for termination are supported by clear and convincing evidence. Nonetheless, the record supports a finding that there was a reasonable likelihood that the children would be harmed if returned to mother’s home. With regard to this factor, the tnal court found: This 1s juxtaposed against mother’s capacity to effec- tuate change and her real desire to do so, but an un- derlying inability to make such change lasting 1n du- ration due to her inability to obtain and effectuate a lasting and stable mental health status. Parenting children brings with it normal trials and tribula- tions, which in and of themselves create various le- vels of stress. Mother’s inability to remain stable in the face of stress, due to her fragile and extremely sensitive emotional state, make the likelihood of long lasting functionality questionable at best. Many significant services were provided in this case, with regular (shorter time period) reporting to the Court due to the fluidity of mother’s emotional men- 142a tal health status. Mother was often unable to cope with generally accepted behavioral constraints asso- ciated with appearing in a courtroom setting Her irrational and illogical thought processes, and ele- vated level of neediness often placed others 1n a ca- retaking position, as opposed to demonstrating a prolonged ability for her to provide the necessary guidance and care required to parent these five children. Many opportunities were provided for mother to seek other family members to resume a supportive role in her parenting of the children without success. In ad- ditional [sic] an extremely high level of services was required while the children were either in her care or even during limited visitation periods, just to permit her to function at the most basic of levels. Without emotional and mental health stability, mother has remained vulnerable to her deficits and unable and incapable of supporting the children fi- nanctally or emotionally, and it 1s apparent to the Court that the children stand in considerable risk of harm if returned to her care, despite her best inten- tions and love for them *6 The record clearly supports the trial court’s find- ing that the children were at risk of harm if returned to mother due to her emotional and mental health stability Indeed, mother recognized that she was not able to properly care for the children at the time of the termination hearing. She had been afforded a multitude of services, including psychological care, as well as psychiatric care, and still she continued to engage in self-destructive behavior and was not able to handle the stress of parenting. Given mother’s failure to fully comply with her treatment plan and her history of long-term serious mental health prob- 143a lems, there remains a reasonable likelihood that the children would be harmed if returned to her care MCL 712A. 19b(3)q). Contrary to mother’s position, it is not necessary that there be evidence of physical harm or neglect to support termination under § 19b(3)Q) See In re Trejo, supra at 360-361 n 16 The family court’s determination regarding the children’s best interests is also reviewed under the clearly erroneous standard Jn re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). Once a ground for termination is estabhshed, the famly court must order termination of parental mghts un- less the court concludes that termination 1s clearly not in the children’s best interests Id Mother argues that 1t was not in the best interest of the children to terminate her parental mghts be- cause she was making an effort to comply with the parent-agency agreement and was making some progress. Her sole argument with regard to this 1s- sue 1s that she loves and misses the children and would never intentionally hurt them, and that she took full responsibility for her addictions and the trouble that her children have encountered She ar- gues that “termination was premature,” but ac- knowledges that her position at trial was that she “was willing to accept whatever decision the court rendered ” She notes that “it cannot be ignored that Ms. Enlender has stated that she is not ready to be a good parent right now ... Time is needed and re- quested.” After summarizing all of the testimony presented at the best interests hearing and noting the total record, the trial court found with regard to mother 144a The Court finds by clear and convincing evidence from the total record as set forth above that each of the individual children’s right to and need for securi- ty and permanency is best served by allowing each an opportunity to lrve in a stable, safe, clean, nurtur- ing environment which the entire record 1n this case establishes cannot be provided by either of the par- ents These children have been in foster care for three years They have not spoken to either parent in over six months Both parents have been offered numerous services over the past three years. Insprte [sic] of these ser- vices, both parents continue to behave inappro- priately when allowed contact with their children. This Court concludes the clear and convincing evi- dence above establishes it is unlikely that additional services will be beneficial. The Court further finds from the entire record that each of the children would likely suffer harm of the nature previously vi- sited upon each while in respondent parents’ care if reunited with respondent parents. *7 While the record reflects that respondent ex- pressed love for her children and a desire to care for them in the future, there was no clear error in the trial court’s refusal to further delay the children’s permanency and stability. The children had been outside of mother’s care for a substantial amount of time. Mother was given ample services and time to demonstrate that she could properly parent her children. Testimony by service providers indicated that the children needed permanency and a caregiv- er who could meet their needs and provide a safe, structured, and stable environment, which mother clearly could not do as evidenced by testimony re- 145a garding her serious and ongoing parenting deficien- cies The order terminating parental rights is affirmed in both docket number 287939 and docket number 288110 Mich App.,2009. In re Exlender Not Reported in N.W2d, 2009 WL _ 1890776 (Mich App.) END OF DOCUMENT 146a APPENDIX E Supreme Court of Michigan. In re Marvin EILENDER, Charles Henry Noah Fi- lender, Hannah Eileen Rose Eilender, Lewis Abra- ham Joseph Eilender, and Sarah Lillian Hilender, Minors. Department of Human Services, Petitioner-Appellee, Vv. Dr. David EILENDER, Respondent-Appellant, And Betty Colleen Eilender, Respondent. Docket No. 139372. COA No. 287939. Sept. 2, 2009. Prior report: 2009 WL 1890776 Order On order of the Court, the application for leave to appeal the June 30, 2009 ;udgment of the Court of Appeals is considered, and 1t is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court Mich.,,2009. In re Filender 771 N W.2d 725 END OF DOCUMENT 147a APPENDIX F MCLS § 712A.2(b) (2009) Authority and jurisdiction of court. Sec. 2. The court has the following authority and jurisdiction: (b) Jurisdiction in proceedings concerning a juve- nile under 18 years of age found within the county: (1) Whose parent or other person legally respon- sible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who 1s subject to a substantial risk of harm to his or her mental well-being, who 1s aban- doned by his or her parents, guardian, or other cus- todian, or who is without proper custody or guar- dianship. As used in this sub-subdivision: (A)“Education” means learning based on an orga- nized educational program that 1s appropriate, given the age, intelligence, ability, and psychological limi- tations of a juvenile, in the subject areas of reading, spelling, mathematics, science, history, civics, writ- ing, and English grammar. (B)“Without proper custody or guardianship” does not mean a parent has placed the juvemle with another person who is legally responsible for the care and maintenance of the juvenile and whois able to and does provide the juvenile with proper care and maintenance. (2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or de- pravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the ju- venile to live in 148a (3) Whose parent has substantially failed, with- out good cause, to comply with a limited guardian- ship placement plan described in section 5205 of the estates and protected individuals code, 1998 PA 386, MrCL 700.5205, regarding the juvenile (4) Whose parent has substantially failed, with- out good cause, to comply with a court-structured plan described in section 5207 or 5209 of the estates and protected individuals code, 1998 PA 386, MCL 700 5207 and 700.5209, regarding the juvenile (5) If the juvemle has a guardian under the es- tates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and the juvenile’s parent meets both of the following criteria: (A)The parent, having the ability to support or as- sist in supporting the juvenile, has failed or neg- lected, without good cause, to provide regular and substantial support for the juvemle for 2 years or more before the filing of the petition or, 1f a support order has been entered, has failed to substantially comply with the order for 2 years or more before the filing of the petition. (B)The parent, having the ability to visit, contact, or communicate with the juvenile, has regularly and substantially failed or neglected, without good cause, to do so for 2 years or more before the filing of the petition If a petition is filed in the court alleging that a ju- vemle is within the provisions of subdivision (b)(1), (2), (3), (4), or (5) and the custody of that juvenile is subject to the prior or continuing order of another court of record of this state, the manner of notice to the other court of record and the authority of the court to proceed 1s governed by rule of the supreme court. 149a MCLS § 712A.19 (2009) Termination of cause; supplemental order of disposi- tion, review hearing, notice of review hearing; fac- tors to be reviewed; modification of plan, determina- tion as to placement; order; determination as to review; issuance of order without hearing, access to agency report, agency report and other information as evidence; concurrent efforts to reunify child with family Sec. 19 (1) Subject to section 20 of this chapter, if a child remains under the court’s jurisdiction, a cause may be terminated or an order may be amended or supplemented, within the authority granted to the court in section 18 of this chapter, at any time as the court considers necessary and prop- er. An amended or supplemented order shall be re- ferred to as a “supplemental order of disposition”. If the agency becomes aware of additional abuse or neglect of a child who is under the court’s jurisdic- tion and if that abuse or neglect is substantiated as provided in the child protection law, 1975 PA 238, MCL 722.621 to 722.638, the agency shall file a sup- plemental petition with the court. (2) Except as provided in subsections (3) and (4), if a child subject to the court’s jurisdiction remains in his or her home, a review hearing shall be held not more than 182 days from the date a petition 1s filed to give the court jurisdiction over the child and no later than every 91 days after that for the first year that the child 1s subject to the court’s jurisdiction After the first year that the child is subject to the court’s jurisdiction , a review hearing shall be held no later than 182 days from the immediately preced- ing review hearing before the end of that first year and no later than every 182 days from each preced- 150a ing review hearing thereafter until the case 1s dis- missed. A review hearing under this subsection shall not be canceled or delayed beyond the number of days required in this subsection, regardless of whether a petition to terminate parental nghts or another matter is pending Upon motion by any par- ty or in the court’s discretion, a review hearing may be accelerated to review any clement of the case ser- vice plan prepared according to section 18f of this chapter. (3) Except as otherwise provided in subsection (4), if, in a proceeding under section 2(b) of this chapter, a child 1s subject to the court’s jursdiction and re- moved from his or her home, a review hearing shall be held not more than 182 days after the child’s re- moval from his or her home and no later than every 91 days after that for the first year that the child is subject to the court’s jurisdiction. After the first year that the child has been removed from his or her home and is subject to the court’s jurisdiction, a review hearing shall be held not more than 182 days from the immediately preceding review hearing be- fore the end of that first year and no later than every 182 days from each preceding review hearing the- reafter until the case is dismissed. A review hearing under this subsection shall not be canceled or de- layed beyond the number of days required in this subsection, regardless of whether a petition to ter- minate parental nghts or another matter 1s pending. Upon motion by any party or in the court’s discre- tion, a review hearing may be accelerated to review any element of the case service plan prepared ac- cording to section 18f of this chapter. (4) If a child 1s under the care and supervision of the agency and 1s either placed with a relative and the placement 1s intended to be permanent or is in a permanent foster family agreement, the court shall 16la hold a review hearing not more than 182 days after the child has been removed from his or her home and no later than every 182 days after that so long as the child 1s subject to the jurisdiction of the court, the Michigan children’s institute, or other agency A re- view hearing under this subsection shall not be can- celed or delayed beyond the number of days required in this subsection, regardless of whether a petition to terminate parental rights or another matter is pend- ing. Upon the motion of any party or at the court’s discretion, a review hearing may be accelerated to review any element of the case service plan. (5) Written notice of a review hearing under sub- section (2), (3), or (4) shall be served upon all of the following. (a) The agency The agency shall advise the child of the hearing if the child is 11 years of age or older (b) The child’s foster parent or custodian . (c) If the parental rights to the child have not been terminated, the child’s parents. (d) If the child has a guardian, the guardian for the child (e) If the child has a guardian ad litem, the guar- dian ad litem for the child. (f) A nonparent adult if the nonparent adult is re- quired to comply with the case service plan. (g) If tribal affiliation has been determined, the elected leader of the Indian tribe (h) The attorney for the child, the attorneys for each party, and the prosecuting attorney 1f the pros ecuting attorney has appeared in the case (i) If the child 1s 11 years of age or older, the child. ()) Other persons as the court may direct. (6) At a review hearing under subsection (2), (3), or (4), the court shall review on the record all of the fol lowing’ 152a (a) Compliance with the case service plan with re- spect to services provided or offered to the child and the child’s parent, guardian, custodian, or nonparent adult if the nonparent adult is required to comply with the case service plan and whether the parent, guardian, custodian, or nonparent adult if the non- parent adult 1s required to comply with the case ser- vice plan has complied with and benefited from those services, (b) Compliance with the case service plan with re- spect to parenting time with the child. If parenting time did not occur or was infrequent, the court shall determine why parenting time did not occur or was infrequent (c) The extent to which the parent complied with each provision of the case service plan, pnor court orders, and an agreement between the parent and the agency. (d) Likely harm to the child if the child continues to be separated from the child’s parent, guardian, or custodian. (e) Likely harm to the child if the child is returned to the child’s parent, guardian, or custodian. (7) After review of the case service plan, the court shall determine the extent of progress made toward alleviating or mitigating the conditions that caused the child to be placed in foster care or that caused the child to remain in foster care. The court may modify any part of the case service plan including, but not limited to, the following (a) Prescribing additional! services that are neces- sary to rectify the conditions that caused the child to be placed in foster care or to remain in foster care (b) Prescribing additional actions to be taken by the parent, guardian, nonparent adult, or custodian, to rectify the conditions that caused the child to be placed in foster care or to remain 1n foster care 153a (8) At a review hearing under subsection (2), (3), or (4), the court shall determine the continuing necessii- ty and appropriateness of the child’s placement and shall order the return of the child to the custody of the parent, continue the dispositional order, modify the dispositional order, or enter a new dispositional order (9) If in a proceeding under section 2(b) of this chapter a child is placed in foster care, the court shall determine at the dispositional hearing and each review hearing whether the cause should be re- viewed before the next review hearing required by subsection (2), (3), or (4). In making this determina- tion, the court shall consider at least all of the fol- lowing. (a) The parent’s ability and motivation to make ne- cessary changes to provide a suitable cnvironment for the child. (b) Whether there 1s a reasonable likelihood that the child may be returned to his or her home prior to the next review hearing required by subsection (2), (3), or (4). (10) Unless waived, if not less than 7 days’ notice is given to all parties prior to the return of a child to the child’s home, and no party requests a hearing within the 7 days, the court may issue an orcer without a hearing permitting the agency to return the child to the chald’s home. (11) An agency report filed with the court shall be accessible to all parties to the action and shall be of- fered into evidence. The court shall consider any written or oral information concerning the child from the child’s parent, guardian, custodian, foster par- ent, child caring institution, relative with whom a child is placed, attorney, lawyer-guardian ad litem, or guardian ad litem, in addition to any other evi 154a dence, including the appropnateness of parenting time, offered at the hearing. (12) Reasonable efforts to finalize an alternate permanency plan may be made concurrently with reasonable efforts to reunify the child with the fami- ly (13) Reasonable efforts to place a child for adoption or with a legal guardian, including identifying ap- propriate in-state or out-of-state options, may be made concurrently with reasonable efforts to reunify the child and family. MI Rules MCR 3.943 Rule 3.943 Dispositional Hearing (A) General. A dispositional hearing is conducted to determine what measures the court will take with respect to a juvenile and, when applicable, any other person, once the court has determined following trial or plea that the juvenile has committed an offense. (B) Time. The interval between the plea of admis- sion or trial and disposition, if any, 1s within the court’s discretion When the juvenile is detained, the interval] may not be more than 35 days, except for good cause. (C) Evidence. (1) The Michigan Rules of Evidence, other than those with respect to privileges, do not apply at disposi tional hearings. All relevant and material evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of 155a its probative value, even though such evidence may not be admissible at trial. (2) The juvenile, or the juvenile’s attorney, and the petitioner shall be afforded an opportunity to ex- amine and controvert written reports so received and, in the court’s discretion, may be allowed to cross-examine individuals making reports when those individuals are reasonably available (3) No assertion of an evidentiary privilege, other than the privilege between attorney and client, shall prevent the receipt and use, at a dispositional hear- ing, of materials prepared pursuant to a court- ordered examination, inters-ew, or course of treat- ment {(D) Presence of Juvenile and Victim. (1) The juvenile may be excused from part of the dis- positional hearing for good cause shown, but must be present when the disposition is announced. (2) The victim has the right to be present at the dis- positional hearing and to make an impact statement as provided by the Crime Victim’s Rights Act, MCL 780.751 et seq (E) Dispositions. (1) If the juvenile has been found to have committed an offense, the court may enter an order of disposi- tion as provided by MCL 712A.18 (2) In making second and subsequent dispositions in delinquency cases, the court must consider imposing increasingly severe sanctions, which may include imposing additional conditions of probation, extend- 156a ing the term of probation; imposing additional costs, ordering a juvenile who has been residing at home into an out-of-home placement, ordering a more re- strictive placement; ordering state wardship for a child who has not previously been a state ward; or any other conditions deemed appropriate by the court Wanver of jurisdiction to adult criminal court, either by authorization of a warrant or by judicial waiver, 1s not considered a sanction for the purpose of this rule (3) Before a juvenile is placed in an institution out- side the state of Michigan as a disposition, the court must find that: (a) institutional care is in the best interests of the juvenile, (b) equivalent facilities to meet the juvenile’s needs are not available within Michigan, and (c) the placement will not cause undue hardship (4) The court shall not enter an order of disposition for a juvenile offense until the court verifies that the juvenile has been fingerprinted If the juvenile has not been fingerprinted, the court shall proceed as provided by MCR 3 936 (5) If the court enters an order pursuant to the Crime Victim’s Rights Act, MCL 780.751 et seq., the court shall only order the payment of one assessment at any dispositional hearing, regardless of the num- ber of offenses. 157a (6) The court shail prepare and forward to the Secre- tary of State an abstract ofits findings at such times and for such offenses as are required by law. (7) Mandatory Detention for Use of a Firearm (a) In addition to any other disposition, a juvenile, other than a juvenile sentenced in the same manner as an adu)t under MCL 712A.18(1)(n), shall be com- mitted under MCL 712A.18(1)(e) to a detention facil- ity for a specified period of time if all the following circumstances exist: (i) the juvenile is under the jurisdiction of the court under MCL 712A.2(a)(1), (ii) the juvenile was found to have violated a law of this state or of the United States or a criminal mu- nicipal ordinance, and (ui) the juvenile was found to have used a firearm during the offense. (b) The length of the commitment to a detention fa- cility shall not exceed the length of the sentence that could have been imposed if the juvenile had been sentenced as an adult. (c) “Firearm” means any weapon from which a dan- gerous projectile may be propelled by using explo- sives, gas, or air as a means of propulsion, except any smoothbore mfle or hand gun designed and manufactured exclusively for propelling BB's not ex- ceeding .177 caliber by means of spring, gas, or air 158a MI Rules MCR 3.945 Rule 3.945 Dispositional Review (A) Dispositional Review Hearings. (1) Generally. The court must conduct periodic hear- ings to review the dispositional orders in delinquen- cy cases in which the juvenile has been placed out- side the home. Such review hearings must be conducted at intervals designated by the court, or may be requested at any time by a party or by a pro- bation officer or caseworker. The victim has a right to make a statement at the hearing or submit a writ- ten statement for use at the hearing, or both. At a dispositional review hearing, the court may modify or amend the dispositional order or treatment plan to include any disposition permitted by MCL 712A.18 and MCL 712A 18a or as otherwise permit- ted by law The Michigan Rules of Evidence, other than those with respect to privileges, do not apply (2) Required Review Hearings. (a) If the juvemile is placed in out-of-home care, the court must hold dispositional review hearings no lat- er than every 182 days after the initial disposition, as provided in MCL 712A 19(2) (b) A review hearing is required before a juvenile is moved to a more physically restrictive type of place- ment, unless the court in its dispositional order has provided for a more physically restrictive type of placement A review hearing is not required if the juvenile and a parent consent to the new placement in a writing filed with the court. A juvenile, who has been ordered placed 1n a juvenile facility, mav be re- leased only with the anproval of the court 159a (B) Hearing to Extend Jurisdiction. (1) When Required. When a juvenile coramitted un- der MCL 712A.18(1)(e) for an offense specified in MCL 712A.18d remains under court jurisdiction af- ter the juvenile’s 18th birthday, the court must con- duct a hearing to determine whether to extend the court’s jurisdiction to age 21, pursuant to MCL 712A.18d. (a) Time of Hearing. Unless adjourned for good cause, a commitment review hearing must be held as nearly as possible to, but before, the juvenile’s 19th birthday. (b) Notice of Hearing. Notice of the hearing must be given to the prosecuting attorney, the agency or the superintendent of the institution or facility to which the juvenile has been committed, the juvenile, and_ if the address or whereabouts are known, the parent, guardian or Jegal custodian of the juvenile, at least 14 days before the hearing. The notice must clearly indicate that the court may extend jurisdiction over the juvenile until the juvenile reaches 21 years of age and must include advice to the juvenile and the parent, guardian, or legal custodian that the juvenile has the right to an attorney (2) Appointment of Attorney. The court must appoint an attorney to represent the juvenile at the hearing unless an attorney has been retained. (3) Evidence; Commitment Report The Michigan Rules of Evidence do not apply, other than those with respect to privileges. The institution, agency, or facility must prepare a report for use at the hearing 1604 to extend jurisdiction The report must contain in- formation required by MCL 803.225. The court must consider this information in determining whether to extend jurisdiction beyond the age of 19 (4) Burden of Proof; Findings. The court must extend jurisdiction over the juvenile until the age of 21, un- less the juvenile proves by a preponderance of the evidence that the juvenile has been rehabilitated and does not present a serious risk to public safety. In making the determination, the court must consid- er the following factors: (a) the extent and nature of the juvenile’s participa- tion in education, counseling, or work programs; (b) the juvenile’s willingness to accept responsibility for prior behavior, (c) the juvemle’s behavior 1n the current placement; (d) the juvenile’s prior record, character, and physi- cal and mental maturity; (e) the juvenile’s potential for violent conduct, as demonstrated by prior behavior; (f) the recommendations of the institution, agency, or facility charged with the juvenile’s care regarding the appropriateness of the juvenile’s release or con- tinued custody; and (g) any other information the prosecuting attorney or the juvenile submits (C) Review of Extended Jurisdiction Cases. (1) Out-of-Home Care If the juvenile is placed out- side the home, the court must hold a dispositional 16la review hearing no later than every 182 days after the hearing to extend jurisdiction (2) Periodic Review. If the institution, agency, or fa- cility to which the juvenile was committed belheves that the juvenile has been rehabilitated and does not present a serious risk to public safety, the institu- tion, agency, or facility may petition the court to conduct a review hearing at any time before the ju- venile becomes 21 years of age. (D) Juvenile on Conditional Release. The proce- dures set forth in MCR 3.944 apply to juveniles committed under MCL 712A.18 who have allegedly violated a condition of release after being returned to the community on release from a public institution. The court need not conduct such a hearing when there will be an administrative hearing by the agen- cy to which the juvenile 1s committed, provided the court has not retained jurisdiction. MI Rules MCR 3.965 Rule 3 965 Preliminary Hearing (A) Time for Preliminary Hearing. (1) Child in Protective Custody. The preliminary hearing must commence no later than 24 hours after the child has been taken into protective custody, ex- cluding Sundays and holidays, as defined by MCR 8 110(D)(2), unless adjourned for good cause shown, or the child must be released. (2) Severely Physically Injured or Sexually Abused Child When the Family Independence Agency sub- 162a mits a petition in cases in which the child has been severely physically injured, as that term is defined in MCL 722 628(3)(c), or sexually abused, and sub- rule (A)(1) does not apply, the preliminary hearing must commence no later than 24 hours after the agency submits a petition or on the next business day following the submission of the petition. (B) Procedure. (1) The court must determine if the parent, guar- dian, or legal custodian has been notified, and if the lawyer-guardian ad litem for the child is present. The preliminary hearing may be adjourned for the purpose of securing the appearance of an attorney, parent, guardian, or legal custodian or may be con- ducted in the absence of the parent, guardian, or le- gal custodian if notice has been given or if the court finds that a reasonable attempt to give notice was made (2) The child’s lawyer-guardian ad litem must be present to represent the child at the preliminary hearing The court may make temporary orders for the protection of the child pending the appearance of an attorney or pending the completion of the prelim- inary hearing The court must direct that the law- yer-guardian ad ltem for the child receive a copy of the petition. (3) If the respondent 1s present, the court must as- sure that the respondent has a copy of the petition. The court must read the allegations in the petition in open court, unless waived. (4) The court shall determine if the petition should be dismissed or the matter referred to alternate ser- 163a vices. If the court so determines the court must re- lease the child. Otherwise, the court must continue the hearing (5) The court must advise the respondent of the right to the assistance of an attorney at the preliminary hearing and any subsequent hearing pursuant to MCR 3.915(B)(1)(a) (6) The court must advise the respondent of the right to trial on the allegations in the petition and that the trial may be before a referee unless a demand for a jury or judge is filed pursuant to MCR 3.911 or 3 912 (7) The court shall allow the respondent an opportu- nity to deny or admit the allegations and make a statement of explanation. (8) The court must inquire whether the child is sub- ject to the continuing jurisdiction of another court and, if so, which court. (9) The court must inquire if the child or either par- ent is a member of any American Indian tribe or band Ifthe child is a member, or if a parent 1s a tri- bal member and the child 1s eligible for membership in the tribe, the court must determine the identity of the child’s tribe, notify the tribe or band, and follow the procedures set forth in MCR 3.980. (10) The court may adjourn the hearing for up to 14 days to secure the attendance of witnesses or for other good cause shown If the preliminary hearing is adjourned, the court may make temporary orders for the placement of the child when necessary to as- sure the immediate safety of the child, pending the 164a completion of the preliminary hearing and subject to subrules (C) and (D). (11) Unless the preliminary hearing is adjourned, the court must decide whether to authorize the filing of the petition and, if authorized, whether the child should remain in the home, be returned home, or be placed in foster care pending trial. The court may authorize the filing of the petition upon a showing of probable cause, unless waived, that one or more of the allegations in the petition are true and fall with- in MCL 712A 2(b). The Michigan Rules of Evidence do not apply, other than those with respect to privi- leges, except to the extent that such privileges are abrogated by MCL 722 631 (12) If the court authorizes the filing of the petition, the court: (a) may release the child to a parent, guardian, or legal custodian and may order such reasonable terms and conditions believed necessary to protect the physical health or mental well-being of the child; or (b) may order placement of the child after making the determinations specified in subrules (C) and (D), if those determinations have not previously been made. (13) The court must inquire of the parent, guardian, or legal custodian regarding the identity of relatives of the child who might be available to provide care If the father of the child has not been identified, the court must inquire of the mother regarding the iden- tity and whereabouts of the father 165a (C) Pretrial Placement; Contrary to the Wel- fare Determination. (1) Placement; Proofs. If the child was not released under subrule (B), the court shall receive evidence, unless waived, to establish that the criteria for placement set forth in subrule 3.965(C)(2) are present. The respondent shall be given an opportuni- ty to cross-examine witnesses, to subpoena wit- nesses, and to offer proofs to counter the admitted evidence (2) Criteria. If continuing the child’s residence in the home is contrary to the welfare of the child, the court shall not return the child to the home, but shall or- der the child placed in the most family-like setting available consistent with the child’s needs (3) Findings If placement is ordered, the court must make a statement of findings, in writing or on the record, explicitly including the finding that it is con- trary to the welfare of the child to remain at home and the reasons supporting that finding If the “con- trary to the welfare of the child” finding is placed on the record and not in a written statement of find- ings, 1t must be capable of being transcribed. The findings may be made on the basis of hearsay evi- dence that possesses adequate indicia of trustwor- thiness. (4) Record Checks, Home Study If the child has been placed in a relative’s home, (a) the court may order the Family Independence Agency to report the results of a crmuinal record check and central registry clearance of the residents 166a of the home to the court before, or within 7 days af- ter, the placement, and (b) the court must order the Family Independence Agency to perform a home study with a copy to be submitted to the court not more than 30 days after the placement. (5) No Right to Bai. No one has the right to post bail in a protective proceeding for the release of a child in the custody of the court. (6) Parenting Time or Visitation. (a) Unless the court suspends parenting time pur- suant to MCL 712A 19b(4), or unless the child has a guardian or legal custodian, the court must permit each parent frequent parenting time with a child in placement unless parenting time, even if supervised, may be harmful to the child. (b) If the child was living with a guardian or legal custodian, the court must determine what, if any, visitation will be permitted with the guardian or le- gal custodian (7) Medical Information. Unless the court has pre- viously ordered the release of medical information, the order placing the child in foster care must in- clude: (a) an order that the child’s parent, guardian, or le- gal custodian provide the Supervising agency with the name and address of each of the child’s medical providers, and 167a (b) an order that each of the child’s medical provid- ers release the child’s medical records. (D) Pretrial Placement; Reasonable Efforts De- termination. In making the reasonable efforts de- termination under this subrule, the child’s health and safety must be of paramount concern to the court (1) When the court has placed a child with someone other than the custodial parent, guardian, or legal custodian, the court must determine whether rea- sonable efforts to prevent the removal of the child have been made or that reasonable efforts to prevent removal are not required. The court must make this determination at the earliest possible time, but no later than 60 days from the date of removal, and must state the factual basis for the determination in the court order. Nunc pro tunc orders or affidavits are not acceptable. (2) Reasonable efforts to prevent a child’s removal from the home are not required if a court of compe- tent jurisdiction has determined that (a) the parent has subjected the child to aggravated circumstances as listed in sections 18(1) and (2) of the Child Protection Law, MCL 722.638 (1) and (2 or (b) the parent has been convicted of 1 or more of the following’ (i) murder of another child of the parent, (ii) voluntary manslaughter of another child of the parent, 168a (in) aiding or abetting, attempting, conspiring, or so- liciting to commit such a murder or such a voluntary manslaughter, or (iv) a felony assault that results in serious bodily in- jury to the child or another child of the parent; or (c) parental nghts of the parent with respect to a sibling have been terminated involuntarily. (E) Advice; Initial Service Plan. If placement is ordered, the court must, orally or in writing, inform the parties (1) that the agency designated to care and supervise the child will prepare an initial service plan no later than 30 days after the placement, (2) that participation in the initial service plan is vo- luntary unless otherwise ordered by the court, (3) that the reneral elements of an initial service B pl an include: (a) the background of the child and the family, (b) an evaluation of the experiences and problems of the child, (c) a projection of the expected length of stay in fos- ter care, and (d) an identification of specific goals and projected time frames for meeting the goals; 169a (4) that, on motion of a party, the court will review the imtial service plan and may modify the plan if it is in the best interests of the child: and (5) that the case may be reviewed for concurrent planning. The court shall direct the agency to identify, locate, and consult with relatives to determine if placement with a relative would be 1n the child’s best interests, as required by MCL 722.954a(2) In a case to which MCL 712A 18f(6) applies, the court shall require the agency to provide the name and address of the child’s attending physician of record or primary care physician. MI Rules MCR 3.971 Rule 3.971 Pleas Of Admission Or No Contest (A) General. A respondent may make a plea of ad- mission or of no contest to the original allegations in the petition The court has discretion to allow a res- pondent to enter a plea of admission or a plea of no contest to an amended petition. The plea may be taken at any time after the filing of the petition, pro- vided that the petitioner and the attorney for the child have been notified of a plea offer to an amended petition and have been given the opportu- nity to object before the plea is accepted. (B) Advice of Rights and Possible Disposition. Before accepting a plea of admission or plea of no contest, the court must advise the respondent on the record or in a writing that is made a part of the file’ 170a (1) of the allegations in the petition; (2) of the right to an attorney, if respondent 1s with- out an attorney; (3) that, if the court accepts the plea, the respondent will give up the rights to (a) trial by a judge or trial by a jury, (b) have the petitioner prove the allegations 1n the petition by a preponderance of the evidence, (c) have witnesses against the respondent appear and testify under oath at the trial, (d) cross-examine witnesses, and (ec) have the court subpoena any witnesses the res- pondent believes could give testimony in the respon- dent’s favor; (4) of the consequences of the plea, including that the plea can later be used as evidence in a proceeding to terminate parental nghts if the respondent is a par- ent. (C) Voluntary, Accurate Plea. (1) Voluntary Plea. The court shall not accept a plea of admission or of no contest without satisfying itself that the plea is knowingly, understandingly, and vo- luntarily made (2) Accurate Plea The court shall not accept a plea of admission or of no contest without establishing sup- port for a finding that one or more of the statutory 171la grounds alleged in the petition are true, preferably by questioning the respondent unless the offer is to plead no contest If the plea is no contest, the court shall not question the respondent, but, by some other means, shall obtain support for a finding that one or more of the statutory grounds alleged 1n the petition are true. The court shall state why a plea of no con- test is appropriate. MI Rules MCR 3.973 Rule 3.973 Dispositional Hearing (A) Purpose. A dispositional hearing is conducted to determine what measures the court will take with respect to a child properly within its jurisdiction and, when applicable, against any adult, once the court has determined following tnal, plea of admis- sion, or plea of no contest that one or more of the sta- tutory grounds alleged in the petition are true. (B) Notice. Unless the dispositional hearing is held immediately after the trial, notice of hearing may be given by scheduling it on the record 1n the presence of the parties or in accordance with MCR 3.920 (C) Time. The interval, if any, between the tmal and the dispositional hearing is within the discretion of the court When the child is 1n placement, the inter- val may not be more than 28 days, except for good cause (D) Presence of Parties. (1) The child may be excused from the dispositional hearing as the interests of the child require 172a (2) The respondent has the right to be present or may appear through an attorney (3) The court may proceed in the absence of parties provided that proper notice has been given. (E) Evidence; Reports. (1) The Michigan Rules of Evidence do not apply at the initial dispositional hearing, other than those with respect to privleges. However, as provided by MCL 722 631, no assertion of an evidentiary privi- lege, other than the privilege between attorney and client, shall prevent the receipt and use, at the dis- positional] phase, of materials prepared pursuant to a court-ordered examination, interview, or course of treatment. (2) All relevant and material evidence, including oral and written reports, may be received and may be re- hed on to the extent of its probative value. The court shall consider the case service plan and any written or oral information concerning the child from the child’s parent, guardian, legal custodian, foster par- ent, child caring institution, or relative with whom the child is placed. If the agency responsible for the care and supervision of the child recommends not placing the child with the parent, guardian, or legal custodian, the agency shall report in wnting what efforts were made to prevent removal, or to rectify conditions that caused removal, of the child from the home. (3) The parties shall be given an opportunity to ex- amine and controvert written reports so received and may be allowed to cross-examine individuals making 173a the reports when those individuals are reasonably available. (4) Written reports, other than those portions made confidential by law, case service plans, and court or- ders, including all updates and revisions, shall be available to the foster parent, child caring institu- tion, or relative with whom the child is placed. The foster parents, child caring institution, or relative with whom the child is placed shall not have the right to cross-examine individuals making such re- ports or the right to controvert such reports beyond the making of a written or oral statement concerning the child as provided in subrule (E)(2). (F) Dispositional Orders. (1) The court shall enter an order of disposition as provided in the Juvenile Code and these rules (2) The court shall not enter an order of disposition until it has examined the case service plan as pro- vided in MCL 712A 18f. The court may order com- pliance with all! or part of the case service plan and may enter such orders as it considers necessary in the interest of the child (3) The court, on consideration of the written report prepared by the agency responsible for the care and supervision of the child pursuant to MCL 712A 18f{1), shall, when appropnate, include a statement in the order of disposition as to whether reasonable efforts were made. (a) to prevent the child’s removal from home, or 174a (b) to rectify the conditions that caused the child to be removed from the child’s home (4) Medical Information. Unless the court has pre- viously ordered the release of medical information, the order placing the child in foster care must in- clude the following (a) an order that the child’s parent, guardian, or le- gal custodian provide the supervising agency with the name and address of each of the child’s medical providers, and (b) an order that each of the child’s medical provid- ers release the child’s medical records. (5) Child Support. The court may include an order requiring one or both of the child’s parents to pay child support. All child support orders entered under this subrule must comply with MCL 552605 and MCR 3.211(D). (G) Subsequent Review. When the court does not terminate jurisdiction upon entering its dispositional order, it must: (1) follow the review procedures in MCR 38.975 for a child in placement, or (2) review the progress of a child at home pursuant to the procedures of MCR 3.974(A) (H) Allegations of Additional Abuse or Negiect. (1) Proceedings on a supplemental petition seeking termination of parental mnghts on the basis of allega- tions of additional child abuse or child neglect, as de- 175a fined in MCL 722.622(f) and (j), of a child who 1s un- der the jurisdiction of the court are governed by MCR 8 977. (2) Where there is no request for termination of pa- rental rights, proceedings regarding allegations of additional child abuse or child neglect, as defined in MCL 722 622(f) and (j), of a child who is under the jurisdiction of the court, including those made under MCL 712A.19(1), are governed by MCR 3.974 for a child who is at home or MCR 3.975 for a child who is in foster care. MI Rules MCR 3.974 Rule 3.974 Post-Dispositional Procedures: Child At Home (A) Review of Child’s Progress. (1) General The court shall penodically review the progress of a child not 1n foster care over whom it has retained jurisdiction (2) Time If the child was never removed from the home, the progress of the child must be reviewed no later than 182 days from the date the petition was filed and no later than every 91 days after that for the first year that the child is subject to the jurisdic- tion of the court After that first year, a review hear- ing shall be held no later than 182 days from the immediately preceding review hearing before the end of the first year and no later than every 182 days from each preceding hearing until the court termi- nates its jurisdiction. The review shall occur no later than 182 days after the child returns home when the 176a child is no longer in foster care If the child was re- moved from the home and subsequently returned home, review hearings shall be held in accordance with MCR 3 975. (3) Change of Placement Except as provided in sub- rule (B), the court may not order a change in the placement of a child solely on the basis of a progress review. If the child over whom the court has retained jurisdiction remains at home following the initial dispositional hearing or has otherwise returned home from foster care, the court must conduct a hearing before 1t may order the placement of the child. Such a hearing must be conducted in the manner provided in MCR 3.975(E) (B) Emergency Removal. {1) General. If the child, over whom the court has re- tained jurisdiction, remains at home following the initial dispositional hearing or has otherwise re- turned home from foster care, the court may order temporary removal of the child to protect the health, safety, or welfare of the child, pending an emergency removal hearing. (2) Notice. The court shall ensure that the parties are given notice of the hearing as provided in MCR 3.920 and MCR 3.921 (3) Emergency Removal Hearing. If the court orders removal of the child from the parent, guardian, or legal custodian to protect the child’s health, safety, or welfare, the court must conduct an emergency removal hearing no later than 24 hours after the child has been taken into custody, excluding Sun- days and holidays as defined 1n MCR 8 110(D)(2) 177a Unless the child is returned to the parent pending the dispositional review, the court must make a written determination that the criteria for placement hsted in MCR 3.965(C)(2) are satisfied (a) At the emergency removal hearing, the respon- dent parent, guardian, or legal custodian from whom the child is removed must receive a written state- ment of the reasons for removal and be advised of the following rights: (i) to be represented by an attorney at the disposi- tional review hearing; (11) to contest the continuing placement at the dispo- sitional review hearing within 14 days; and (iii) to use compulsory process to obtain witnesses for the dispositional review hearing (b) At an emergency removal hearing, the parent, guardian, or legal custodian from whom the child was removed must be given an opportunity to state why the child should not be removed from, or should be returned to, the custody of the parent, guardian, or legal custodian. (C) Dispositional Review Hearing; Procedure. If the child is in placement pursuant to subrule (B), the dispositional review hearing must commence no later than 14 days after the child is placed by the court, except for good cause shown The hearing must be conducted in accordance with the proce- dures and rules of evidence applicable to a disposi- tional hearing. 178a MI Rules MCR 3.975 Rule 3975 Postdispositional Procedures Child In Foster Care (A) Dispositional Review Hearings. A disposi- tional review hearing 1s conducted to permit court review of the progress made to comply with any or- der of disposition and with the case service plan pre- pared pursuant to MCL 712A 18f and court evalua- tion of the continued need and appropriateness for the child to be in foster care (B) Notice. The court shall ensure that written no- tice of a dispositional review hearing ts given to the appropriate persons in accordance with MCR 3.920 and MCR 3.921(B)(2). The notice must inform the parties of their opportunity to participate in the hearing and that any information they wish to pro- vide should be submitted in advance to the court, the agency, the lawyer-guardian ad litem for the child, or an attorney for one of the parties. (C) Time. The court must conduct dispositional re- view hearings at intervals as follows, as long as the child remains in foster care: (1) not more than 182 days after the chrld’s removal from his or her home and no later than every 91 days after that for the first year that the child is subject to the jurisdiction of the court. After the first year that the child has been removed from his or her home and 1s subject to the jurisdiction of the court, a review hearing shall be held not more than 182 days from the immediately preceding review hearing be- fore the end of that first year and no later than every 179a 182 days from each preceding review hearing the- reafter until the case is dismissed; or (2) if a child 1s under the care and supervision of the agency and 1s either placed with a relative and the placement is intended to be permanent or is in a permanent foster family agreement, not more than 182 days after the child has been removed from hus or her home and no later than 182 days after that so long as the child is subject to the jurisdiction of the court, the Michigan Children’s Institute, or other agency as provided in MCR 38.976(E)(3). A review hearing under this subrule shall not be canceled or delayed beyond the number of days re- quired in this subrule, regardless of whether a peti- tion to terminate parental nghts or another matter 18 pending. (D) Early Review Option. At the initial disposi- tional hearing and at every regularly scheduled dis- positional review hearing, the court must decide whether it will conduct the next dispositional review hearing before what would otherwise be the next regularly scheduled dispositional review hearing as provided in subrule (C). In deciding whether to shorten the interval between review hearings, the court shall, among other factors, consider’ (1) the abilhty and motivation of the parent, guar- dian, or legal custodian to make changes needed to provide the child a suitable home environment; (2) the reasonable likelihood that the child will be ready to return home earlier than the next scheduled dispositional review hearing 180a (E) Procedure, Dispositional review hearings must be conducted in accordance with the procedures and rules of evidence applicable to the initial disposition- al hearing The report of the agency that 1s filed with the court must be accessible to the parties and of- fered into evidence The court shall consider any written or oral information concerning the child from the child’s parent, guardian, legal custodian, foster parent, child caring institution, or relative with whom a child 1s placed, in addition to any other rele- vant and material evidence at the hearing. The court, on request of a party or on its own motion, may accelerate the hearing to consider any element of a case service plan. (F) Criteria. (1) Review of Case Service Plan. The court, in review- ing the progress toward compliance with the case service plan, must consider: (a) the services provided or offered to the child and parent, guardian, or legal custodian of the child, (b) whether the parent, guardian, or legal custodian has benefited from the services provided or offcred; (c) the extent of parenting time or visitation, includ- ing a determination regarding the reasons either was not frequent or never occurred, (d) the extent to which the parent, guardian, or legal custodian complied with each provision of the case service plan, pnor court orders, and any agreement between the parent, guardian, or legal custodian and the agency; 18la (e) any likely harm to the child if the child continues to be separated from his or her parent, guardian, or custodian; and (f) any hkely harm to the child if the child 1s re- turned to the parent, guardian, or legal custodian. (2) Progress Toward Returning Child Home. The court must decide the extent of the progress made toward alleviating or mitigating conditions that caused the child to be, and to remain, in foster care. The court shall also review the concurrent plan, if applicable (G) Dispositional Review Orders. The court, fol- lowing a dispositional review hearing, may: (1) order the return of the child home, (2) change the placement of the child, (3) modify the dispositional order, (4) modify any part of the case service plan, (5) enter a new dispositional order, or (6) continue the prior dispositional order. (HD) Returning Child Home Without Disposi- tional Review Hearing. Unless notice is waived, if not less than 7 days written notice is given to all parties before the rcturn of a child to the home, and if no party requests a hearing within the 7 days, the court may issue an order without a hearing permit- ting the agency to return the child home 182a MI Rules MCR 3.976 Rule 3.976 Permanency Planning Hearings (A) Permanency Plan. At or before each perma- nency planning hearing, the court must determine whether the agency has made reasonable efforts to finalize the permanency plan. At the hearing, the court must review the permanency plan for a child in foster care. The court must determine whether and, if applicable, when. (1) the child may be returned to the parent, guar- dian, or legal custodian; (2) a petition to terminate parental mghts should be filed; (3) the child may be placed 1n a legal guardianship; (4) the child may be permanently placed with a fit and willing relative, or (5) the child may be placed in another planned per- manent living arrangement, but only 1n those cases where the agency has documented to the court a compelling reason for determining that it would not be in the best interests of the child to follow one of the options listed in subrules (1)-(4) (B) Time. (1) An initial permanency planning hearing must be held within 28 days after a judicial determination that reasonable efforts to reunite the family or to prevent removal are not required given one of the following circumstances: 183a (a) There has been a judicial determination that the child’s parent has subjected the child to aggravated circumstances as listed in sections 18(1) and (2) of the Child Protection Law, 1975 PA 238, MCL 722 638. (b) The parent has been convicted of one or more of the following: (1) murder of another child of the parent, (11) voluntary manslaughter of another child of the parent, (iii) aiding or abetting, attempting, conspiring, or so- liciting to commit such a murder or such a voluntary manslaughter, or (iv) a felony assault that results in serious bodily in- jury to the child or another child of the parent. (c) The parent has had rights to one of the child’s siblings involuntarily terminated. (2) If subrule (1) does not apply, the court must con- duct an initial permanency planning hearing no lat- er than 12 months after the child’s removal from the home, regardless of whether any supplemental peti- tions are pending in the case (3) Requirement of Annual Permanency Planning Hearings. During the continuation of foster care, the court must hold permanency planning hearings be- ginning no later than 12 months after the initial permanency planning hearing The interval between permanency planning hearings 1s within the discre- tion of the court as appropriate to the circumstances 184a of the case, but must not exceed 12 months. The court may combine the permanency planning hear- ing with a review hearing. (4) The judicial determination to finalize the court- approved permanency plan must be made within the time limits prescribed 1n subsections (1)-(3) (C) Notice. The parties entitled to participate in a permanency planning hearing include the parents of the child, if the parent’s parental rights have not been terminated, the child, if the child is of an ap- propriate age to participate, foster parents, pre- adoptive parents, and relative caregivers. Written notice of a permanency planning hearing must be given as provided in MCR 3920 and MCR 3 921(B)\(2). The notice must include a brief state- ment of the purpose of the hearing, and must include a notice that the hearing may result in further pro- ceedings to terminate parental rights The notice must inform the parties of their opportunity to par- ticipate in the hearing and that any information they wish to provide should be submitted in advance to the court, the agency, the lawyer-guardian ad litem for the child, or an attorney for one of the parties (D) Hearing Procedure; Evidence. (1) Procedure. Each permanency planning hearing must be conducted by a judge or a referee Paper re- views, ex parte hearings, stipulated orders, or other actions that are not open to the participation of (a) the parents of the child, unless parental rights have been terminated, (b) the child, if of appropriate age, and (c) foster parents or preadoptive parents, if any, are not permanency planning hearings 185a (2) Evidence. The Michigan Rules of Evidence do not apply, other than those with respect to privileges, except to the extent such privileges are abrogated by MCL 722631 At the permanency planning hearing all relevant and material evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value. The court must consider any written or oral information concerning the child from the child’s parent, guardian, custodian, foster parent, child car- ing institution, or relative with whom the child is placed, in addition to any other evidence offered at the hearing The court shall obtain the child’s views regarding the permanency plan in a manner appro- priate to the child’s age The parties must be af- forded an opportunity to examine and controvert written reports received by the court and may be al- lowed to cross-examine individuals who made the reports when those individuals are reasonably avail- able. (E) Determinations; Permanency Options. (1) 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] en- sure that the agency is providing appropriate servic- es to assist a child who will transition from foster care to independent living. (2) Determining Whether to Return Child Home At the conclusion of a permanency planning hearing, the court must order the child returned home unless it determines that the return would cause a substan- 186a tial msk of harm to the life, the physical health, or the mental well-being of the child. Failure to sub- stantially comply with the case service plan 1s evi- dence that the return of the child to the parent may cause a substantial msk of harm to the child’s life, physical health, or mental well-being. In addition, the court shall consider any condition or circums- tance of the child that may be evidence that a return to the parent would cause a substantial msk of harm to the child’s life, physical health, or mental well- being. (3) Continuing Foster Care Pending Determination on Termination of Parental Rights If the court de- termines at a permanency planning hearing that the child should not be returned home, it may order the agency to initiate proceedings to terminate parental rights. Except as otherwise provided in this subsec- tion, if the child has been 1n foster care under the re- sponsibility 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 termi- nate 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 plan- ning hearing is concluded The court 1s not required to order the agency to imtiate proceedings to termi- nate 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 ter- minate parental rights would not be in the best in- 187a terests of the child. A compelling reason not to file a petition to terminate parental rights includes, but 1s not limited to, any of the following: (1) Adoption is not the appropriate permanency goal for the child. (1) No grounds to file a petition to terminate paren- tal rights exist. (iii) The child is an unaccompanied refugee minor as defined in 45 CFR 400.111. (iv) There are international legal obligations or com- pelling forergn policy reasons that preclude term- nating parental rights. (c) The state has not provided the child’s family, dur- ing 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. (4) Other Permanency Plans. If the court does not re- turn the child to the parent, guardian, or legal cus- todian, and if the agency demonstrates that termina- tion of parental rights 1s not in the best interests of the child, the court may (a) continue the placement of the child in foster care for a limited period to be set by the court while the agency continues to make reasonable efforts to final- ize the court-approved permanency plan for the child, (b) place the child with a fit and willing relative, 188a (c) upon a showing of compelling reasons, place the child in an alternative planned permanent living ar- rangement, or (d) appoint a juvenile guardian for the child pur- suant to MCL 712A.19a and MCR 3.979. The court must articulate the factual basis for its de- termination in the court order adopting the perma- nency plan. MI Rules MCR 3.977 Rule 3.977 Termination Of Parental Rights (A) General. (1) This rule applies to all proceedings in which ter- mination of parental rnghts is sought. Proceedings for termination of parental rights involving an In- dian child, as defined by 25 USC 1901 et seg , are go- verned by MCR 3.980 in addition to this rule. (2) Parental rights of the respondent over the child may not be terminated unless termination was re- quested in an original, amended, or supplemental petition by: (a) the agency, (b) the child, (c) the guardian, legal custodian, or representative of the child, 189a (d) a concerned person as defined in MCL 712A 19b(6), (e) the state children’s ombudsman, or (f) the prosecuting attorney, without regard to whether the prosecuting attorney 1s representing or acting as a legal consultant to the agency or any oth- er party. (3) The burden of proof 1s on the party seeking by court order to terminate the rights of the respondent over the child. There is no nght to a jury determina- tion. (B) Definition. When used in this rule, unless the context otherwise indicates, “respondent” includes (1) the natural or adoptive mother of the child; (2) the father of the child as defined by MCR 3.903(A\7) “Respondent” does not include other persons to whom legal custody has been given by court order, persons who are acting in the place of the mother or father, or other persons responsible for the control, care, and welfare of the child. (C) Notice; Priority. (1) Notice must be given as provided in MCR 3 920 and MCR 8 921(B)(3). (2) Hearings on petitions seeking termination of pa- rental rights shall be given the highest possible 190a priority consistent with the orderly conduct of the court’s caseload. (D) Suspension of Parenting Time. If a petition to terminate parental nghts to a child is filed, the court may suspend parenting time for a parent who is a subject of the petition. (E) Termination of Parental Rights at the Ini- tial Disposition. The court shall order termination of the parental rights of a respondent at the initial dispositional hearing held pursuant to MCR 3 973, and shall order that additional efforts for reunifica- tion of the child with the respondent shall not be made, if (1) the original, or amended, petition contains a re- quest for termination; (2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child under MCL 712A 2(b) have been es- tablished, (3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissi- ble evidence that had been introduced at the trial or plea proceedings, or that is introduced at the disposi- tional hearing, that one or more facts alleged in the petition’ (a) are true, and (b) establish grounds for termination of parental rights under MCL 712A 19b(3)(a), (b), (d), (e), (f), (g), (h), (1), Q), (k), (2), Gm), or (n); 191la (4) termination of parental rights is in the child’s best interests (F) Termination of Parental Rights on the Ba- sis of Different Circumstances. The court may take action on a supplemental petition that seeks to terminate the parental rights of a respondent over a child already within the jurisdiction of the court on the basis of one or more circumstances new or differ- ent from the offense that led the court to take juris- diction (1) The court must order termination of the parental rights of a respondent, and must order that addi- tional efforts for reunification of the child with the respondent must not be made, if (a) the supplemental petition for termination of pa- rental rights contains a request for termination; (b) at the hearing on the supplemental petition, the court finds on the basis of clear and convincing legal- ly admissible evidence that one or more of the facts alleged in the supplemental petition: (i) are true, and (i1) come within MCL 712A 19b(3)(a), (b), (c)(11), (d), (e), (f), (g), (i), G), Ok), (D, (m), or (n), and (c) termination of parental mghts is in the child’s best interests. (2) Tume for Hearing on Petition. The hearing on a supplemental petition for termination of parental rights under this subrule shall be held within 42 days after the filing of the supplemental petition 192a The court may, for good cause shown, extend the pe- riod for an additional 21 days. (G) Termination of Parental Rights; Other. If the parental rights of a respondent over the child were not terminated pursuant to subrule (E) at the initial dispositional hearing or pursuant to subrule (F) at a hearing on a supplemental petition on the basis of different circumstances, and the child is within the jurisdiction of the court, the court must, 1f the child is 1n foster care, or may, if the child 1s not in foster care, following a dispositional review hear- ing under MCR 3.975, a progress review under MCR 3974, or a permanency planning hearing under MCR 3 976, take action on a supplemental petition that seeks to terminate the parental nghts of a res- pondent over the child on the basis of one or more grounds listed in MCL 712A.19b(3). (1) Time (a) Filing Petition. The supplemental petition for termination of parental rights may be filed at any time after the initial dispositional review hearing, progress review, or permanency planning hearing, whichever occurs first (b) Hearing on Petition The hearing on a supple- mental petition for termination of parental rights under this subrule must be held within 42 days after the filing of the supplemental petition. The court may, for good cause shown, extend the period for an additional 21 days (2) Evidence. The Michigan Rules of Evidence do not apply, other than those with respect to privileges, except to the extent such privileges are abrogated by 193a MCL 722 631. At the hearing all relevant and ma- terial evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value. The parties must be afforded an opportunity to examine and contro- vert written reports received by the court and shall be allowed to cross-examine individuals who made the reports when those individuals are reasonably available. (3) Order. The court must order termination of the parental mghts of a respondent and must order that additional efforts for reunification of the child with the respondent must not be made, if the court finds (a) on the basis of clear and convincing evidence ad- mitted pursuant to subrule (G)(2) that one or more facts alleged in the petition: (1) are true, and (ii) come within MCL 712A 19b(3) (b) that termination of parental rights is in the child’s best interests (H) Findings. (1) General The court shall state on the record or in writing its findings of fact and conclusions of law. Bnief, definite, and pertinent findings and conclu- sions on contested matters are sufficient. If the court does not issue a decision on the record following hearing, it shall file 1ts decision within 28 days after the taking of final proofs, but no later than 70 days after the commencement of the hearing to terminate parental mghts 194a (2) Denial of Termination. If the court finds that the parental rights of respondent should not be termi- nated, the court must make findings of fact and con- clusions of law. (3) Order of Termination An order terminating pa- rental mghts under the Juvenile Code may not be en- tered unless the court makes findings of fact, states its conclusions of law, and includes the statutory ba- sis for the order (I) Respondent’s Rights Following Termina- tion. (1) Advice. Immediately after entry of an order ter- minating parental rights, the court shall advise the respondent parent orally or in writing that’ (a) The respondent is entitled to appellate review of the order. (b) If the respondent is financially unable to provide an attorney to perfect an appeal, the court will ap- point an attorney and furnish the attorney with the portions of the transcript and record the attorney re- quires to appeal. (c) A request for the assistance of an attorney must be made within 14 days after notice of the order is given or an order is entered denying a timely filed postjudgment motion The court must then give a form to the respondent with the instructions (to be repeated on the form) that if the respondent desires the appointment of an attorney, the form must be returned to the court within the required penod (to be stated on the form) 195a (d) The respondent has the right to file a demal of release of identifying information, a revocation of a demial of release, and to keep current the respon- dent’s name and address as provided in MCL 710 27. (2) Appointment of Attorney. (a) If a request is timely filed and the court finds that the respondent is financially unable to provide an attorney, the court shall appoint an attorney within 14 days after the respondent’s request is filed The chief judge of the court shall bear primary re- sponsibility for ensuring that the appointment is made within the deadline stated in this rule. (b) In a case involving the termination of parental rights, the order described in (I)(2) and (3) must be entered on a form approved by the State Court Ad- ministrator’s Office, entitled “Claim of Appeal and Order Appointing Counsel,” and the court must im- mediately send to the Court of Appeals a copy of the Claim of Appeal and Order Appointing Counsel, a copy of the judgment or order being appealed, and a copy of the complete register of actions in the case. The court must also file in the Court of Appeals proof of having made service of the Claim of Appeal and Order Appointing Counsel on the respondent(s), ap- pointed counsel for the respondent(s), the court re- porter(s)/recorder(s), petitioner, the prosecuting at- torney, the lawyer-guardian ad htem for the child(ren) under MCL 712A.13a(1)(f), and the guar- dian ad litem or attorney (if any) for the child(ren). Entry of the order by the trial court pursuant to this subrule constitutes a timely filed claim of appeal for the purposes of MCR 7 204 196a (3) Transcripts. If the court finds that the respon- dent is financially unable to pay for the preparation of transcripts for appeal, the court must order tran- scripts prepared at public expense (J) Review Standard. The clearly erroneous stan- dard shall be used 1n reviewing the court’s findings on appeal from an order terminating parental nghts. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1296%3A1. Public record. Not legal advice.