HB-4716, As Passed House, November 30, 2017

HB-4716, As Passed Senate, November 30, 2017

SUBSTITUTE FOR

HOUSE BILL NO. 4716

A bill to amend 1939 PA 288, entitled

"Probate code of 1939,"

by amending section 19b of chapter XIIA (MCL 712A.19b), as amended

by 2012 PA 386.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER XIIA

Sec. 19b. (1) Except as provided in subsection (4), if a child

remains in foster care in the temporary custody of the court

following a review hearing under section 19(3) of this chapter or a

permanency planning hearing under section 19a of this chapter or if

a child remains in the custody of a guardian or limited guardian,

upon petition of the prosecuting attorney, whether or not the

prosecuting attorney is representing or acting as legal consultant

to the agency or any other party, or petition of the child,

guardian, custodian, concerned person, agency, or children's

ombudsman as authorized in section 7 of the children's ombudsman

act, 1994 PA 204, MCL 722.927, the court shall hold a hearing to

determine if the parental rights to a child should be terminated

and, if all parental rights to the child are terminated, the child

placed in permanent custody of the court. The court shall state on

the record or in writing its findings of fact and conclusions of

law with respect to whether or not parental rights should be

terminated. The court shall issue an opinion or order regarding a

petition for termination of parental rights within 70 days after

the commencement of the initial hearing on the petition. The

court's failure to issue an opinion within 70 days does not dismiss

the petition.

(2) Not less than 14 days before a hearing to determine if the

parental rights to a child should be terminated, written notice of

the hearing 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.

(d) If the child has a guardian, the child's guardian.

(e) If the child has a guardian ad litem, the child's guardian

ad litem.

(f) If tribal affiliation has been determined, the Indian

tribe's elected leader.

(g) The child's attorney and each party's attorney.

(h) If the child is 11 years of age or older, the child.

(i) The prosecutor.

(3) The court may terminate a parent's parental rights to a

child if the court finds, by clear and convincing evidence, 1 or

more of the following:

(a) The child has been deserted under either of the following

circumstances:

(i) The child's parent is unidentifiable, has deserted the

child for 28 or more days, and has not sought custody of the child

during that period. For the purposes of this section, a parent is

unidentifiable if the parent's identity cannot be ascertained after

reasonable efforts have been made to locate and identify the

parent.

(ii) The child's parent has deserted the child for 91 or more

days and has not sought custody of the child during that period.

(b) The child or a sibling of the child has suffered physical

injury or physical or sexual abuse under 1 or more of the following

circumstances:

(i) The parent's act caused the physical injury or physical or

sexual abuse and the court finds that there is a reasonable

likelihood that the child will suffer from injury or abuse in the

foreseeable future if placed in the parent's home.

(ii) The parent who had the opportunity to prevent the

physical injury or physical or sexual abuse failed to do so and the

court finds that there is a reasonable likelihood that the child

will suffer injury or abuse in the foreseeable future if placed in

the parent's home.

(iii) A nonparent adult's act caused the physical injury or

physical or sexual abuse and the court finds that there is a

reasonable likelihood that the child will suffer from injury or

abuse by the nonparent adult in the foreseeable future if placed in

the parent's home.

this chapter, 182 or more days have elapsed since the issuance of

an initial dispositional order, and the court, by clear and

convincing evidence, finds either of the following:

(i) The conditions that led to the adjudication continue to

exist and there is no reasonable likelihood that the conditions

will be rectified within a reasonable time considering the child's

age.

(ii) Other conditions exist that cause the child to come

within the court's jurisdiction, the parent has received

recommendations to rectify those conditions, the conditions have

not been rectified by the parent after the parent has received

notice and a hearing and has been given a reasonable opportunity to

rectify the conditions, and there is no reasonable likelihood that

the conditions will be rectified within a reasonable time

considering the child's age.

(d) The child's parent has placed the child in a limited

guardianship under section 5205 of the estates and protected

individuals code, 1998 PA 386, MCL 700.5205, and has substantially

failed, without good cause, to comply with a limited guardianship

placement plan described in section 5205 of the estates and

protected individuals code, 1998 PA 386, MCL 700.5205, regarding

the child to the extent that the noncompliance has resulted in a

disruption of the parent-child relationship.

(e) The child has a guardian under the estates and protected

individuals code, 1998 PA 386, MCL 700.1101 to 700.8206, and the

parent has substantially failed, without 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 child to the extent that the

noncompliance has resulted in a disruption of the parent-child

relationship.

(f) The child has a guardian under the estates and protected

individuals code, 1998 PA 386, MCL 700.1101 to 700.8206, and both

of the following have occurred:

(i) The parent, having the ability to support or assist in

supporting the minor, has failed or neglected, without good cause,

to provide regular and substantial support for the minor for a

period of 2 years or more before the filing of the petition or, if

a support order has been entered, has failed to substantially

comply with the order for a period of 2 years or more before the

filing of the petition.

(ii) The parent, having the ability to visit, contact, or

communicate with the minor, has regularly and substantially failed

or neglected, without good cause, to do so for a period of 2 years

or more before the filing of the petition.

(g) The parent, without regard to intent, fails to provide

proper care or custody for the child and there is no reasonable

expectation that the parent will be able to provide proper care and

custody within a reasonable time considering the child's age.

(h) The parent is imprisoned for such a period that the child

will be deprived of a normal home for a period exceeding 2 years,

and the parent has not provided for the child's proper care and

custody, and there is no reasonable expectation that the parent

will be able to provide proper care and custody within a reasonable

time considering the child's age.

(i) Parental rights to 1 or more siblings of the child have

been terminated due to serious and chronic neglect or physical or

sexual abuse, and prior attempts to rehabilitate the parents have

been unsuccessful.

(j) There is a reasonable likelihood, based on the conduct or

capacity of the child's parent, that the child will be harmed if he

or she is returned to the home of the parent.

(k) The parent abused the child or a sibling of the child and

the abuse included 1 or more of the following:

(i) Abandonment of a young child.

(ii) Criminal sexual conduct involving penetration, attempted

penetration, or assault with intent to penetrate.

(iii) Battering, torture, or other severe physical abuse.

(iv) Loss or serious impairment of an organ or limb.

(v) Life-threatening injury.

(vi) Murder or attempted murder.

(vii) Voluntary manslaughter.

(viii) Aiding and abetting, attempting to commit, conspiring

to commit, or soliciting murder or voluntary manslaughter.

(ix) Sexual abuse as that term is defined in section 2 of the

child protection law, 1975 PA 238, MCL 722.622.

(l) The parent's rights to another child were terminated as a

result of proceedings under section 2(b) of this chapter or a

similar law of another state.

(m) The parent's rights to another child were voluntarily

terminated following the initiation of proceedings under section

2(b) of this chapter or a similar law of another state and the

proceeding involved abuse that included 1 or more of the following:

(i) Abandonment of a young child.

(ii) Criminal sexual conduct involving penetration, attempted

penetration, or assault with intent to penetrate.

(iii) Battering, torture, or other severe physical abuse.

(iv) Loss or serious impairment of an organ or limb.

(v) Life-threatening injury.

(vi) Murder or attempted murder.

(vii) Voluntary manslaughter.

(viii) Aiding and abetting, attempting to commit, conspiring

to commit, or soliciting murder or voluntary manslaughter.

(ix) Sexual abuse as that term is defined in section 2 of the

child protection law, 1975 PA 238, MCL 722.622.

(n) The parent is convicted of 1 or more of the following, and

the court determines that termination is in the child's best

interests because continuing the parent-child relationship with the

parent would be harmful to the child:

(i) A violation of section 136, 136a, 316, 317, 520b, 520c,

520d, 520e, or 520g of the Michigan penal code, 1931 PA 328, MCL

750.136, 750.136a, 750.316, 750.317, 750.520b, 750.520c, 750.520d,

750.520e, and 750.520g.

(ii) A violation of a criminal statute that includes as an

element the use of force or the threat of force and that subjects

the parent to sentencing under section 10, 11, or 12 of chapter IX

of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11,

and 769.12.

(iii) A federal law or law of another state with provisions

substantially similar to a crime or procedure listed or described

in subparagraph (i) or (ii).

(4) If a petition to terminate the parental rights to a child

is filed, the court may enter an order terminating parental rights

under subsection (3) at the initial dispositional hearing. If a

petition to terminate parental rights to a child is filed, the

court may suspend parenting time for a parent who is a subject of

the petition.

(5) If the court finds that there are grounds for termination

of parental rights and that termination of parental rights is in

the child's best interests, the court shall order termination of

parental rights and order that additional efforts for reunification

of the child with the parent not be made.

(6) As used in this section, "concerned person" means a foster

parent with whom the child is living or has lived who has specific

knowledge of behavior by the parent constituting grounds for

termination under subsection (3)(b) or (g) and who has contacted

the department, the prosecuting attorney, the child's attorney, and

the child's guardian ad litem, if any, and is satisfied that none

of these persons intend to file a petition under this section.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.