HOUSE BILL No. 5986

 

November 8, 2012, Introduced by Rep. Johnson and referred to the Committee on Judiciary.

 

     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 115.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

CHAPTER XIIA

 

     Sec. 19b. (1) Except as provided in subsection (4) or (6), 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.

 

     (c) The child's parents.

 

     (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 any 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.

 

     (iii) The child's parent voluntarily surrendered the child to an

 

emergency service provider under chapter XII and did not petition

 

the court to regain custody within 28 days after surrendering the

 

child.

 

     (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.

 

     (c) The parent was a respondent in a proceeding brought under

 

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 316, 317, 520b, 520c, 520d, 520e, or

 

520g of the Michigan penal code, 1931 PA 328, MCL 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) Upon sentencing for criminal sexual conduct described in

 

subsection (3)(k)(ii), the sentencing court shall enter an order

 

terminating parental rights to the child without requiring a

 

separate hearing be held on termination of parental rights.

 

     (7) (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.