SB-0529, As Passed Senate, December 9, 2015

 

 

 

 

 

 

 

 

 

 

 

HOUSE SUBSTITUTE FOR

 

SENATE BILL NO. 529

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 2008 PA 260, entitled

 

"Guardianship assistance act,"

 

by amending sections 2, 3, 4, 5a, 5b, 6, 7, 8, and 9 (MCL 722.872,

 

722.873, 722.874, 722.875a, 722.875b, 722.876, 722.877, 722.878,

 

and 722.879), sections 2, 3, 4, and 9 as amended and sections 5a

 

and 5b as added by 2009 PA 15 and section 6 as amended by 2011 PA

 

229, and by adding sections 5c and 5d.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2. As used in this act:

 

     (a) "Child" means a person less than 18 years of age.

 

     (b) "Department" means the department of health and human

 

services.

 

     (c) "Eligible child" means a child who meets the eligibility

 


criteria set forth in section 3 for receiving guardianship

 

assistance.

 

     (d) "Guardian" means a person appointed by the court to act as

 

a legal guardian for a child under section 19a or 19c of chapter

 

XIIA of the probate code, MCL 712A.19a and 712A.19c.

 

     (e) "Guardianship assistance agreement" means a negotiated

 

binding agreement regarding financial support as described in

 

section 5 for children who meet the qualifications for guardianship

 

assistance as specified in this act or in the department's

 

administrative rules.

 

     (f) "Legal custodian" means an individual who is at least 18

 

years of age in whose care a child remains or is placed after a

 

court makes a finding under section 13a of chapter XIIA of the

 

probate code, MCL 712A.13a.

 

     (g) "Probate code" means the probate code of 1939, 1939 PA

 

288, MCL 710.21 to 712A.32.712B.41.

 

     (h) "Relative" means an individual who is at least 18 years of

 

age and related to the child by blood, marriage, or adoption, as

 

grandparent, great-grandparent, great-great-grandparent, aunt or

 

uncle, great-aunt or great-uncle, great-great-aunt or great-great-

 

uncle, sibling, stepsibling, nephew or niece, first cousin or first

 

cousin once removed, or the spouse of any of the above, even after

 

the marriage has ended by death or divorce. The parent of a man who

 

the court has found probable cause to believe is the putative

 

father if there is no man with legally established rights to the

 

child may be considered a relative under this act but this is not

 

to be considered as a finding of paternity and does not confer

 


legal standing on the putative father.

 

     (i) "Successor guardian" means a person appointed by the court

 

to act as a legal guardian when the preceding guardian is no longer

 

able to act as a result of his or her death or incapacitation under

 

section 19a or 19c of chapter XIIA of the probate code, MCL

 

712A.19a and 712A.19c. Successor guardian does not include a person

 

appointed as a guardian if that person's parental rights to the

 

child have been terminated or suspended.

 

     (j) (i) "Title IV-E" refers to the federal assistance provided

 

through the United States department Department of health Health

 

and human services Human Services to reimburse states for foster

 

care, adoption assistance payments, and guardianship assistance

 

payments.

 

     Sec. 3. A child is eligible to receive guardianship assistance

 

if the department determines that all of the following apply:

 

     (a) The child has been removed from his or her home as a

 

result of a judicial determination that allowing the child to

 

remain in the home would be contrary to the child's welfare.

 

     (b) The child has resided in the home of the prospective

 

guardian for, at a minimum, 6 consecutive months.

 

     (c) Reunification or and placing the child for adoption is are

 

not an appropriate permanency option.options.

 

     (d) The child demonstrates a strong attachment to the

 

prospective guardian and the guardian has a strong commitment to

 

caring permanently for the child until the child reaches 18 years

 

of age.

 

     (e) If the child has reached 14 years of age, he or she has

 


been consulted regarding the guardianship arrangement.

 

     Sec. 4. (1) Subject to subsection (2), a guardian who meets

 

all of the following criteria may receive guardianship assistance

 

on behalf of an eligible child:

 

     (a) The guardian is the eligible child's relative or legal

 

custodian.

 

     (b) The guardian is a licensed foster parent and approved for

 

guardianship assistance by the department. The approval process

 

shall include criminal record checks and child abuse and neglect

 

central registry checks on the guardian and all adults living in

 

the guardian's home as well as fingerprint-based criminal record

 

checks on the guardian. If the guardian's fingerprints are stored

 

in the automated fingerprint identification system under section 5k

 

of 1973 PA 116, MCL 722.115k, the department shall use those

 

fingerprints for the criminal record check required in this

 

subdivision.

 

     (c) The eligible child has resided with the prospective

 

guardian in the prospective guardian's residence for a minimum of 6

 

months before the application for guardianship assistance is

 

received by the department.

 

     (2) Only a relative who is a licensed foster parent caring for

 

a child who is eligible to receive title IV-E-funded foster care

 

payments for 6 consecutive months is eligible for federal funding

 

under title IV-E for guardianship assistance. A child who is not

 

eligible for title IV-E funding who is placed with a licensed

 

foster parent, related or unrelated, and who meets the requirements

 

of section 3(a) to (e) may be eligible for state-funded

 


guardianship assistance.

 

     (3) If a child is eligible for title IV-E-funded guardianship

 

assistance under section 3 but has a sibling who is not eligible

 

under section 3, both of the following apply:

 

     (a) The child and any of the child's siblings may be placed in

 

the same relative guardianship arrangement in accordance with

 

chapter XIIA of the probate code, of 1939, 1939 PA 288, MCL 712A.1

 

to 712A.32, if the department and the relative agree on the

 

appropriateness of the arrangement for the sibling.

 

     (b) Title IV-E-funded relative guardianship assistance

 

payments may be paid on behalf of each sibling placed in accordance

 

with this subsection.

 

     (4) A successor guardian may receive guardianship assistance

 

payments if the eligibility criteria set forth in section 3 are

 

met.

 

     Sec. 5a. For a child whose permanency plan includes placement

 

with a guardian and will include the receipt of guardianship

 

assistance payments, the department shall include in the case

 

service plan for the child all of the following:

 

     (a) The steps that the child placing agency or the department

 

has taken to determine that reunification or and placing the child

 

for adoption is are not an appropriate permanency option.options.

 

     (b) The reason for any separation of siblings during

 

placement.

 

     (c) The reason a permanent placement through guardianship is

 

in the child's best interest.

 

     (d) The way in which the child meets the eligibility criteria

 


for a guardianship assistance payment.

 

     (e) The efforts the child placing agency or the department has

 

made to discuss adoption by the prospective guardian as a permanent

 

alternative to legal guardianship and , in the case of a relative

 

foster parent who has chosen not to pursue adoption, documentation

 

of the reasons the prospective guardian has chosen not to pursue

 

adoption.

 

     (f) In cases where the parental rights have not been

 

terminated, the efforts the department has made to discuss with the

 

child's birth parent or parents the guardianship assistance

 

arrangement, or the reasons why the efforts were not made.

 

     Sec. 5b. The legal guardianship shall be a judicially created

 

relationship as provided for under sections 19a and 19c of chapter

 

XIIA of the probate code, of 1939, 1939 PA 288, MCL 712A.19a and

 

712A.19c, between the child and his or her guardian that is

 

intended to be permanent and self-sustaining as evidenced by the

 

transfer to the guardian of the following parental rights with

 

respect to the child:

 

     (a) Protection.

 

     (b) Education.

 

     (c) Care and control of the person.

 

     (d) Custody of the person.

 

     (e) Decision making.

 

     Sec. 5c. (1) Subject to provisions of this act, the department

 

may pay guardianship assistance to an eligible successor guardian

 

on behalf of an eligible child.

 

     (2) The successor guardian shall apply for guardianship

 


Senate Bill No. 529 as amended December 3, 2015

assistance under this act to the department.

 

     (3) The preceding guardianship assistance agreement may be

 

transferred to a successor guardian who has been appointed by the

 

court. This occurs when the successor guardian enters into a

 

written, binding guardianship assistance agreement with the

 

department.

[(4) Payment of guardian assistance shall not be made to a successor guardian until the court appoints a successor guardian. If the successor guardian began caring for the child before the court appoints the successor guardian, guardianship assistance payments can be made retroactively to either the date of death of the relative guardian, the date of incapacity of the relative guardian, or the date the successor guardian assumed care of the child, whichever is later.

     (5)] A successor guardian may be eligible to receive

guardianship assistance on behalf of an eligible child if the

 

department determines that all of the following apply:

 

     (a) A guardianship assistance agreement for the child was in

 

effect before the appointment of the successor guardian.

 

     (b) The successor guardian was appointed by the court as a

 

result of the death or incapacitation of the preceding guardian.

 

     (c) The preceding guardian had an active guardianship

 

assistance agreement for the child before his or her death or

 

incapacitation.

 

     (d) The successor guardian meets all of the conditions set

 

forth in this act.

 

     Sec. 5d. The department may promulgate rules according to the

 

administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to

 

24.328, that are necessary to implement and administer the program

 

under this act in compliance with federal law.

 

     Sec. 6. (1) Except as provided in subsection (2), the

 

department shall not provide guardianship assistance after 1 of the

 

following occurs:

 

     (a) The child reaches 18 years of age.

 

     (b) The department determines that the guardian is no longer

 


legally responsible for support of the child.

 

     (c) The department determines that the child is no longer

 

receiving any support from the relative guardian.

 

     (d) The death of the child.

 

     (e) The child is adopted by the guardian or another individual

 

under the Michigan adoption code, chapter X of the probate code,

 

MCL 710.21 to 710.70, or the adoption laws of any other state or

 

country.

 

     (f) The guardianship is terminated by order of the court

 

having jurisdiction in the guardianship proceeding.

 

     (g) The death of the guardian unless a successor guardian has

 

been appointed by the court.

 

     (2) The department may provide extended guardianship

 

assistance until the youth reaches the age of 21 if the youth meets

 

the requirements set forth in the young adult voluntary foster care

 

act, 2011 PA 225, MCL 400.641 to 400.671.

 

     (3) The department shall send notice of termination of

 

guardianship assistance under this section by mail to the guardian

 

at the guardian's current or last known address and to the court

 

with jurisdiction over the guardianship case. Notice mailed under

 

this subsection shall include a statement of the department's

 

reason for termination.

 

     Sec. 7. The guardian or successor guardian shall apply for and

 

maintain on behalf of the child any public or private medical

 

insurance or assistance for which the child is eligible, including

 

eligibility under applicable laws providing financial assistance

 

for medical or health care expenses.

 


     Sec. 8. (1) The department is responsible for collecting,

 

assembling, and reporting all data and information required for

 

reporting purposes.

 

     (2) The guardian or successor guardian shall cooperate with

 

the department and provide all information that the guardian or

 

successor guardian possesses as requested by the department to

 

facilitate compliance with this section.

 

     Sec. 9. An applicant for guardianship assistance under this

 

act or a guardian, successor guardian, or child who has received

 

guardianship assistance under a guardianship assistance agreement

 

may appeal a decision of the department denying the application,

 

establishing or modifying the guardianship assistance, or

 

terminating guardianship assistance according to the administrative

 

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.