in Re Coh, Erh, Jrg, Kbh Minors ( 2014 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
In re COH, ERH, JRG, & KBH, MINORS
Docket No. 147515. Argued December 10, 2013 (Calendar No. 2). Decided April 22, 2014.
The Department of Human Services (DHS) petitioned the Muskegon Circuit Court,
Family Division, to terminate the parental rights of the mother and two fathers of the minor
children COH, ERH, JRG, and KBH, who had been removed from the mother’s home and
placed in foster care. At the dispositional hearing, Lori Scribner, the biological grandmother of
three of the children, submitted a letter expressing interest in becoming all four children’s
guardian if they were not returned to their mother. The court concluded that terminating the
mother’s rights was not in the children’s best interests, although it granted the petition with
respect to the fathers. The following year, the DHS again petitioned to terminate the mother’s
parental rights. The mother pleaded no contest to the allegations in the petition, and Scribner
moved to be appointed the children’s guardian under MCL 712.19c and MCR 3.979. The court,
William C. Marietti, J., denied Scribner’s motion after considering the best-interest factors from
the Child Custody Act, MCL 722.21 et seq., and admitted the children to the Michigan
Children’s Institute (MCI) under MCL 400.203. Scribner requested consent from the MCI
superintendent to adopt the children, but the superintendent denied it, and the trial court denied
Scribner’s motion to reverse the denial. Scribner appealed both this decision and the order
denying her petition for guardianship. After consolidating the appeals, the Court of Appeals,
TALBOT, P.J., and MARKEY and RIORDAN, JJ., reversed the order denying Scribner’s petition for
guardianship in an unpublished opinion per curiam issued June 25, 2013 (Docket Nos. 309161
and 312691) and remanded for the entry of an order appointing Scribner guardian. The Supreme
Court granted the DHS’s application for leave to appeal. 495 Mich 870 (2013).
In a unanimous opinion by Justice CAVANAGH, the Supreme Court held:
The preference created in MCL 722.954a for a child who has been removed from the
parental home to be placed with relatives applies when the DHS is making its initial placement
decision, but it does not apply to a court’s decision regarding whether to appoint a guardian for
the child under MCL 712A.19c(2). In deciding whether to appoint a guardian under MCL
712A.19c(2), a court must determine whether the guardianship is in the child’s best interests. In
so doing, the court has the discretion to consider the best-interest factors from the Child Custody
Act, MCL 722.23; the Adoption Code, MCL 710.22(g); or any other factors that may be relevant
under the circumstances of a particular case.
1. The Court of Appeals erred by holding that the preference set forth in MCL 722.954a
for placing a child with relatives after the initial removal from a parent’s custody applies to a
court’s decision under MCL 712A.19c whether to appoint a guardian for a child whose parents’
rights have been terminated. MCL 722.954a applies from the moment a child is removed from
his or her parents’ care and throughout the review process, but there is no indication in the
statutory language that the Legislature intended this preference to apply beyond the time frame
identified within MCL 722.954a. Similarly, MCL 712A.19c expressly applies only to instances
in which a child remains in placement following the termination of parental rights, which occurs
after the DHS makes the initial placement decision regulated by MCL 722.954a. Moreover,
MCL 712A.19c(14) expressly provides that MCL 712A.19c, which includes the court’s authority
to appoint a guardian under MCL 712A.19c(2), applies only to cases in which parental rights to
the child were terminated, and MCL 712A.19a(7)(c) establishes a separate process for appointing
a guardian before parental rights have been terminated. The fact that MCL 712A.19c(2) refers
neither to MCL 722.954a nor to “relatives” bolsters the conclusion that the preference for
placement with relatives created in MCL 722.954a does not apply outside the period for
determining a child’s initial placement immediately after removal.
2. MCL 712A.19c(2) provides that at a review hearing for a child who remains in
placement after parental rights were terminated, the trial court may appoint a guardian if it
determines that doing so is in the child’s best interests. Because MCL 712A.19c(2) does not
direct a court to apply certain factors or otherwise limit a court’s method for determining the
child’s best interests, a trial court has discretion to determine the best method for analyzing the
child’s best interests by considering the circumstances relevant to the particular case. While the
Adoption Code factors set forth in MCL 710.22(g) provide a useful list of considerations that
may be relevant to a guardianship decision, neither the language of MCL 712A.19c(2) nor the
similarities between a guardianship and an adoption requires application of the Adoption Code
factors to all guardianship petitions. Depending on the circumstances, a case may more
reasonably lend itself to application of the Child Custody Act factors, some combination of the
Adoption Code and Child Custody Act factors, or a unique set of factors developed by the trial
court for purposes of a particular case.
3. The trial court did not abuse its discretion by applying the best-interest factors from
the Child Custody Act rather than those set forth in the Adoption Code to decide Scribner’s
petition for a guardianship under MCL 712A.19c. The Child Custody Act factors incorporate a
comparative analysis, which was a logical method for determining which of the two placement
options was in the children’s best interests. The court did not clearly err in its factual findings
regarding these factors or in its conclusion that a guardianship with Scribner was not in the
children’s best interests under MCL 722.19c(2). Because the Court of Appeals erroneously
concluded that a preference for placement with relatives existed under MCL 712.19c(2) and
substituted its judgment for the trial courts’ on questions of fact regarding the children’s best
interests, the Court of Appeals judgment was reversed and the case remanded to that Court for
consideration of Scribner’s appeal of the MCI Superintendent’s denial of consent to adopt the
children.
Court of Appeals judgment reversed; case remanded to that Court for further
proceedings.
©2014 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED APRIL 22, 2014
STATE OF MICHIGAN
SUPREME COURT
In re COH, ERH, JRG, & KBH, Minors.
No. 147515
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
This case requires us to consider the interplay between MCL 722.954a and MCL
712A.19c. Specifically, we must determine whether the preference for placement with
relatives created by MCL 722.954a is relevant to a court’s consideration of a petition to
appoint a guardian under MCL 712A.19c(2).
Because we conclude that the two statutes apply at different and distinct stages of
child protective proceedings, we hold that there is no preference for placement with
relatives as part of a guardianship determination under MCL 712A.19c(2). Accordingly,
because the Court of Appeals in this case applied a preference in favor of creating a
guardianship with a relative in support of its decision to reverse the trial court, we
conclude that the Court of Appeals erred. Therefore, we reverse the Court of Appeals
and remand to that Court to consider issues not previously addressed.
I. FACTS AND PROCEDURAL HISTORY
In February 2008, the Department of Human Services (DHS) removed COH,
ERH, JRG, and KBH from their mother’s care under MCL 712A.2(b).1 The children
were initially placed in two separate foster homes; however, in October 2008, all of the
children were placed in their current foster home, with Holy Cross Children’s Services
supervising the placement.
At the December 12, 2008, review hearing, the DHS expressed its intent to seek
termination of the mother’s and both fathers’ parental rights, and, in March 2009, the
DHS petitioned to terminate all parental rights. A dispositional hearing occurred in June
2009, and the trial court terminated the fathers’ parental rights but did not terminate the
mother’s parental rights. The trial court concluded that grounds existed to terminate the
mother’s rights, but that termination of her parental rights was not in the children’s best
interests at that time. One of the exhibits offered during the dispositional hearing was a
letter dated June 2, 2009, written to the trial court by appellant Lori Scribner, who is the
paternal biological grandmother of COH, ERH, and KBH. Scribner requested that the
trial court return the children to the mother and stated that if the children were not
returned to their mother, Scribner “would like to petition the court for guardianship and
would like information on how to proceed.”2
1
JRG does not have the same biological father as COH, ERH, and KBH.
2
Holy Cross’s foster care worker also testified that Scribner first expressed an interest in
a guardianship in May 2009.
2
In July 2010, the DHS again petitioned to terminate the mother’s parental rights.
Scribner moved to intervene and to be appointed the children’s juvenile guardian under
MCL 712A.19c(2) and MCR 3.979. The prosecutor and the mother agreed that the
mother would plead no contest to the allegations that she was unable to provide proper
care and custody for the children, that it was in the children’s best interests to terminate
the mother’s rights, and, if the plea was accepted, the prosecutor would agree that the
children not be committed to the Michigan Children’s Institute (MCI) until the trial court
ruled on Scribner’s guardianship petition. The trial court accepted the mother’s plea
under these conditions.
On August 26, 2010, the trial court held a guardianship hearing. At the hearing,
Scribner testified that she had lived in Florida since 2005. Scribner also testified that she
had frequent contact with the children before moving to Florida, that she traveled to
Michigan in the summer of 2007 to visit the children, and that she continued to have
contact with the children after they were removed from the mother’s care in February
2008. However, Scribner testified that, in her opinion, Holy Cross frustrated her efforts
to contact the children after the children were placed in their current foster home in
October 2008. Regarding her efforts to have the children placed in her home, Scribner
testified that she began the process “a few months after” the children were removed from
the mother’s care. Because Scribner was living in a two-bedroom apartment, she also
began looking for a larger home to accommodate the children, but she did not purchase
the home until July 2009 and did not move into the home immediately. Scribner also
testified that she visited the children in Michigan during the summer of 2010. As part of
3
the guardianship decision process, the trial court permitted the children to visit Scribner
in Florida for Thanksgiving and Christmas in 2010.
A February 2011 evidentiary hearing regarding Scribner’s motion for a
guardianship included, among other things, testimony from multiple witnesses about the
children’s visits to Florida and the foster parents’ living arrangements and parenting
methods, some of which were incompatible with Holy Cross’s procedures.3 Ultimately,
the trial court denied Scribner’s guardianship petition.
In making the guardianship decision, the trial court applied the best-interest factors
from the Child Custody Act, MCL 722.21 et seq., and determined that it was in the
children’s best interests to remain with their foster parents, who had petitioned to adopt
the children. Accordingly, the trial court committed the children to the DHS under MCL
400.203 for permanency planning, supervision, and care and placement.
Scribner requested consent from the MCI superintendent to adopt the children, but
the superintendent denied the request, finding that adoption by the foster parents was in
the children’s best interests. Scribner filed a motion with the trial court under MCL
710.45(2), alleging that the superintendent’s decision was arbitrary and capricious. The
trial court denied the motion.
Scribner appealed by leave granted in the Court of Appeals, which reversed the
trial court’s denial of Scribner’s petition for guardianship. In re COH, ERH, JRG &
3
Testimony established that the foster parents at times required the children to run laps
around the house or consume fish oil and Tabasco sauce as punishment. The foster father
testified that the foster parents discontinued those discipline methods at Holy Cross’s
request.
4
KBH, Minors, unpublished opinion per curiam of the Court of Appeals, issued June 25,
2013 (Docket Nos. 309161 and 312691). The Court of Appeals concluded that the trial
court “failed to recognize the preference for children to be placed with relatives” and
determined that “had the trial court recognized this preference and then given [Scribner]
the special preference and consideration that she was due as the children’s grandmother,
the court would have granted the guardianship petition.” Unpub op at 5. The Court of
Appeals did not address Scribner’s appeal of the denial of consent to adopt, finding the
issue moot under its disposition of the case. We granted the DHS’s application for leave
to appeal. 495 Mich 870 (2013).
II. STANDARD OF REVIEW
This Court reviews de novo issues of statutory interpretation. Detroit v
Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008). “A court’s factual
findings underlying the application of legal issues are reviewed for clear error.” In re
Morris, 491 Mich 81, 97; 815 NW2d 62 (2012).
III. ANALYSIS
This case involves the removal of juveniles from the care of their biological
parents. As explained in In re Rood, 483 Mich 73, 93; 763 NW2d 587 (2009), the
overarching goals guiding the juvenile code, MCL 712A.1 et seq., are established in
MCL 712A.1(3):
This chapter shall be liberally construed so that each juvenile coming
within the court’s jurisdiction receives the care, guidance, and control,
preferably in his or her own home, conducive to the juvenile’s welfare and
the best interest of the state. If a juvenile is removed from the control of his
or her parents, the juvenile shall be placed in care as nearly as possible
5
equivalent to the care that should have been given to the juvenile by his or
her parents.
See, also, MCR 3.902(B).
A. LEGAL BACKGROUND
Child protective proceedings are generally divided into the adjudicative and the
dispositional phases. “The adjudicative phase determines whether the . . . court may
exercise jurisdiction over the child,” In re Brock, 442 Mich 101, 108; 499 NW2d 752
(1993), and includes “a preliminary hearing at which the court may authorize a petition
for removal of a child from his home, MCL 712A.13a(2),” In re Mason, 486 Mich 142,
154; 782 NW2d 747 (2010).
If the court acquires jurisdiction, the dispositional phase determines what action, if
any, will be taken on behalf of the child. In re Brock, 442 Mich at 108. The dispositional
phase includes “review hearings to evaluate the child’s and parents’ progress, MCL
712A.19, permanency planning hearings, MCL 712A.19a, and, in some instances, a
termination hearing, MCL 712A.19b.” In re Mason, 486 Mich at 154. Additionally,
MCL 712A.19c establishes the procedures applicable when a child remains in a
placement after termination of parental rights.
When a child is removed from a parent’s care during the adjudication phase under
MCL 712A.2(b), as in this case, “the court shall order the juvenile placed in the most
family-like setting available consistent with the juvenile’s needs.” MCL 712A.13a(12).
6
The “agency,” which was the DHS in this case,4 must complete an initial services plan
within 30 days of the child’s placement. MCL 712A.13a(10)(a). As part of the initial
services plan, the DHS is required to comply with MCL 722.954a(2), which, at the times
relevant to this case, stated:
Upon removal, . . . the supervising agency shall, within 30 days, identify,
locate, and consult with relatives to determine placement with a fit and
appropriate relative who would meet the child’s developmental, emotional,
and physical needs as an alternative to foster care. [Emphasis added.][5]
The DHS is also required, under former MCL 722.954a(2), to meet the following
requirements not more than 90 days after the child’s removal:
(a) Make a placement decision and document in writing the reason
for the decision.
(b) Provide written notice of the decision and the reasons for the
placement decision to . . . each relative who expresses an interest in caring
for the child . . . .
Finally, former MCL 722.954a(3) provides for review of the DHS’s decision:
4
“Agency” is defined as
a public or private organization, institution, or facility that is performing the
functions under part D of title IV of the social security act, 42 USC 651 to
669b, or that is responsible under court order or contractual arrangement for
a juvenile’s care and supervision. [MCL 712A.13a(1)(a).]
5
The Legislature amended MCL 722.954a, effective December 14, 2010. 2010 PA 265.
Because the trial court decided the issues relevant to the children’s initial placement
before December 14, 2010, we analyze this case under the statutory provisions in effect
when the trial court decided the issues and, as a result, the statutory citations in this
opinion may not correspond to the amended version of MCL 722.954a.
7
A person who receives a written decision described in subsection (2) may
request in writing, within 5 days, documentation of the reasons for the
decision, and if the person does not agree with the placement decision, he
or she may request that the child’s attorney review the decision to
determine if the decision is in the child’s best interest. If the child’s
attorney determines the decision is not in the child’s best interest, within 14
days after the date of the written decision the attorney shall petition the
court that placed the child out of the child’s home for a review hearing.
The court shall commence the review hearing not more than 7 days after the
date of the attorney’s petition and shall hold the hearing on the record.
In this case, Scribner seeks a juvenile guardianship under MCL 712A.19c, which
applies during the dispositional phase of child protective proceedings and states in
relevant part:
(1) [I]f a child remains in placement following the termination of
parental rights to the child, the court shall conduct a review hearing not
more than 91 days after the termination of parental rights and no later than
every 91 days after that hearing for the first year following termination of
parental rights to the child. If a child remains in a placement for more than
1 year following termination of parental rights to the child, a review hearing
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 review hearing thereafter until the case is
dismissed. . . . At a hearing under this section, the court shall review all of
the following:
(a) The appropriateness of the permanency planning goal for
the child.
(b) The appropriateness of the child’s placement.
(c) The reasonable efforts being made to place the child for
adoption or in other permanent placement in a timely manner.
(2) [I]f the court determines that it is in the child’s best interests, the
court may appoint a guardian for the child.
* * *
8
(14) This section applies only to a child’s case in which parental
rights to the child were . . . terminated as the result of a proceeding under
section 2(b) of this chapter . . . . This section applies as long as the child is
subject to the jurisdiction, control, or supervision of the court or of the
Michigan children’s institute or other agency. [Emphasis added.]
B. INTERPLAY BETWEEN MCL 722.954a AND MCL 712A.19c
When interpreting statutes, “our primary task . . . is to discern and give effect to
the intent of the Legislature.” Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596
NW2d 119 (1999) (citations omitted). To accomplish that task, we begin by examining
the language of the statute itself. Id. (citation omitted). “If the language of the statute is
unambiguous, the Legislature must have intended the meaning clearly expressed, and the
statute must be enforced as written.” Id. (citation omitted).
The plain language of MCL 722.954a and MCL 712A.19c establishes that the two
statutes apply at different stages of child protective proceedings. Specifically, MCL
722.954a(2) provides that “[u]pon removal” DHS has a duty to “identify, locate, and
consult with relatives to determine placement with a fit and appropriate relative who
would meet the child’s developmental, emotional, and physical needs” and that duty
must be satisfied “within 30 days” of removal. Accordingly, MCL 722.954a applies
from the moment a child is removed from his or her parents’ care, i.e., before any
placement decision is made, and, consequently, the requirements of MCL 722.954a are
intended to guide the DHS’s initial placement decision.
The preference for placement with relatives is also expressly preserved throughout
the review process established in former MCL 722.954a(2) and (3). Specifically,
subsection (2)(b) requires the DHS to make an initial placement decision within 90 days
9
of removal and “[p]rovide written notice of the decision and the reasons for the
placement decision to . . . each relative who expresses an interest in caring for the
child . . . .” Additionally, subsection (3) permits a relative who receives notice to request
an explanation of the decision and potentially obtain a review hearing if the person does
not agree with the placement decision. However, the review process is limited to a
narrow time period: the request for documentation of the reasons for the placement
decision must be made within 5 days of receiving the placement decision, the potential
petition for a review hearing must be made within 14 days of the written decision, and
the review hearing must be held within 7 days after the petition. MCL 722.954a(3).
Thus, there is no indication within the statutory language of MCL 722.954a that the
Legislature intended that the preference for placement with relatives exists beyond the
time frame identified within MCL 722.954a.
Similarly, the plain language of MCL 712A.19c expressly limits the statute’s
applicability only to instances in which “a child remains in placement following the
termination of parental rights . . . .” MCL 712A.19c(1) (emphasis added). Thus, the
plain language of MCL 712A.19c establishes that the statute only applies after
termination of parental rights, which occurs after the DHS makes the initial placement
decision regulated by MCL 722.954a.
Although when considered in isolation MCL 712A.19c(2) does not expressly state
that the court’s authority to appoint a guardian under that subsection is limited to the
posttermination stage of child protective proceedings, we must consider the subsection’s
“placement and purpose in the statutory scheme.” Sun Valley Foods Co, 460 Mich at 237
10
(quotation marks and citation omitted). As established, the subsection immediately
preceding subsection (2) expressly limits the statute’s applicability to the posttermination
stage. Moreover, subsection (14) expressly provides that “[t]his section,” meaning
section 19c, “applies only to a child’s case in which parental rights to the child were . . .
terminated . . . .” Because the court’s authority to appoint a guardian under MCL
712A.19c(2) is part of section 19c, MCL 712A.19c(14) expressly limits its application to
the posttermination stage of child protective proceedings.
Additionally, MCL 712A.19a establishes the process for appointing a guardian
before termination of parental rights. Specifically, MCL 712A.19a(7) provides that
[i]f the agency demonstrates . . . that initiating the termination of parental
rights to the child is clearly not in the child’s best interests, or the court
does not order the agency to initiate termination of parental rights to the
child . . . then the court shall order 1 or more of the following alternative
placement plans:
* * *
(c) . . . [i]f the court determines that it is in the child’s best interests,
appoint a guardian for the child, which guardianship may continue until the
child is emancipated.
Because the Legislature enacted separate statutes that create distinct processes for
appointing a guardian before and after termination of parental rights, we must interpret
those statutes in a way that avoids rendering either statute surplusage. Whitman v City of
Burton, 493 Mich 303, 311-312; 831 NW2d 223 (2013). We conclude that the process
11
for appointing a guardian under MCL 712A.19c(2) is only applicable at the
posttermination stage of a child protective proceeding.6
Finally, MCL 712A.19c(2) does not refer to MCL 722.954a, nor does it refer to
“relatives,” which bolsters the conclusion that the preference for placement with relatives
created in MCL 722.954a does not apply outside the time period for determining a child’s
initial placement immediately after removal and, therefore, does not apply to a court’s
decision to appoint a guardian under MCL 712A.19c(2) after parental rights are
terminated. Accordingly, although the Court of Appeals accurately concluded that MCL
722.954a creates a statutory preference for placement with relatives, the plain language of
MCL 722.954a limits the applicability of the preference to only the initial stage of the
process, i.e., immediately after a child is removed from his or her parents’ care and
during the statutory review period established in MCL 722.954a(3).7 Therefore, we agree
6
The court rules likewise reflect the fact that the statutory scheme creates different
processes for appointing a guardianship that apply at different stages of child protective
proceedings. Specifically, MCR 3.979(A) states:
Appointment of Juvenile Guardian; Process. If the court determines
at a posttermination review hearing or a permanency planning hearing that
it is in the child’s best interests, the court may appoint a juvenile guardian
for the child pursuant to MCL 712A.19a or MCL 712A.19c. [Emphasis
added.]
Thus, MCR 3.979(A) recognizes that a court may appoint a guardian at a posttermination
review hearing, which is governed by MCL 712A.19c, or at a permanency planning
hearing, which is governed by MCL 712A.19a.
7
As noted, the Legislature amended MCL 722.954a, effective December 14, 2010. 2010
PA 265. We also note that as part of the 2010 amendments, the Legislature added MCL
722.954a(5), which expressly requires the DHS to “give special consideration and
preference to a child’s relative or relatives who are willing to care for the child, are fit to
do so, and would meet the child’s developmental, emotional, and physical needs” and
12
with the Court of Appeals’ conclusion in In re AEG & LEG, unpublished opinion per
curiam of the Court of Appeals, issued November 7, 2013 (Docket No. 316599), that the
plain language of MCL 722.954a “indicates that the Legislature intended the statute to
provide procedural requirements where a child is removed pursuant to a child protective
proceeding,” but that there “is no indication that [MCL 722.954a] was intended to apply
to . . . decisions after termination,” which includes a court’s decision regarding a
guardianship petition under MCL 712A.19c(2).
C. INTERPRETATION OF MCL 712A.19c
Having established that MCL 712A.19c applies after termination of parental rights
and does not include a preference for creating a guardianship with a relative, we must
now determine what a trial court must do to satisfy MCL 712A.19c(2). The plain
language of the statute simply provides that the trial court may appoint a guardian “if the
court determines that [a guardianship] is in the child’s best interests[.]” MCL
712A.19c(2).
As previously discussed, the trial court applied the best-interest factors from the
Child Custody Act, MCL 722.23;8 however, Scribner argues, and the Court of Appeals
requires the DHS to do so “[b]efore determining placement of a child” in the DHS’s care.
Emphasis added. Accordingly, although we do not expressly apply subsection (5) in this
case, we note that our analysis is not inconsistent with this new statutory language,
because subsection (5) expressly applies before the initial placement decision is made.
8
MCL 722.23 states:
As used in this act, “best interests of the child” means the sum total of the
following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
13
agreed, that the best-interest factors in the Adoption Code, MCL 710.22(g),9 should apply
to a guardianship decision under MCL 712A.19c(2). Therefore, the Court of Appeals
(b) The capacity and disposition of the parties involved to give the
child love, affection, and guidance and to continue the education and
raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide
the child with food, clothing, medical care or other remedial care
recognized and permitted under the laws of this state in place of medical
care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed
custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the
child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the
child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was
directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a
particular child custody dispute.
9
MCL 710.22(g) states:
“Best interests of the adoptee” or “best interests of the child” means the
sum total of the following factors to be considered, evaluated, and
14
determined by the court to be applied to give the adoptee permanence at the
earliest possible date:
(i) The love, affection, and other emotional ties existing between the
adopting individual or individuals and the adoptee or, in the case of a
hearing under [MCL 710.39], the putative father and the adoptee.
(ii) The capacity and disposition of the adopting individual or
individuals or, in the case of a hearing under [MCL 710.39], the putative
father to give the adoptee love, affection, and guidance, and to educate and
create a milieu that fosters the religion, racial identity, and culture of the
adoptee.
(iii) The capacity and disposition of the adopting individual or
individuals or, in the case of a hearing under [MCL 710.39], the putative
father, to provide the adoptee with food, clothing, education, permanence,
medical care or other remedial care recognized and permitted under the
laws of this state in place of medical care, and other material needs.
(iv) The length of time the adoptee has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(v) The permanence as a family unit of the proposed adoptive home,
or, in the case of a hearing under [MCL 710.39], the home of the putative
father.
(vi) The moral fitness of the adopting individual or individuals or, in
the case of a hearing under [MCL 710.39], of the putative father.
(vii) The mental and physical health of the adopting individual or
individuals or, in the case of a hearing under [MCL 710.39], of the putative
father, and of the adoptee.
(viii) The home, school, and community record of the adoptee.
(ix) The reasonable preference of the adoptee, if the adoptee is 14
years of age or less and if the court considers the adoptee to be of sufficient
age to express a preference.
(x) The ability and willingness of the adopting individual or
individuals to adopt the adoptee’s siblings.
15
concluded that the trial court erred by using the Child Custody Act factors to compare
Scribner and the foster parents.
In order to define the proper method for determining whether a guardianship is in
the child’s best interest, we must first interpret MCL 712A.19c(2). Issues of statutory
interpretation are reviewed de novo. Ambassador Bridge Co, 481 Mich at 35. The plain
language of MCL 712A.19c(2) does not expressly require application of any particular
set of factors; rather, the statute simply requires the court to base its decision whether to
appoint a guardian on “the child’s best interests.” Because MCL 712A.19c(2) does not
direct a court to apply certain factors or otherwise limit a court’s method for determining
the child’s best interests, the statute grants the court discretion regarding how to
determine what is in the child’s best interests depending on the case-specific
circumstances. See Easton Sch Dist No 4 v Snell, 24 Mich 350, 353 (1872) (holding that
when a statute grants a power “in general terms,” the statute “leaves the details to the
sound discretion” of the entity to whom the power is granted).
Because MCL 712A.19c(2) grants the trial court discretion in determining whether
a guardianship is in the child’s best interest, a trial court’s decision regarding what factors
to consider in making the best-interest determination is reviewed for an abuse of
discretion. “An abuse of discretion occurs when the trial court chooses an outcome
falling outside the range of principled outcomes.” Edry v Adelman, 486 Mich 634, 639;
786 NW2d 567 (2010).
(xi) Any other factor considered by the court to be relevant to a
particular adoption proceeding, or to a putative father’s request for child
custody.
16
A trial court may use its discretion under MCL 712A.19c(2) to determine the best
method for analyzing the child’s best interests by considering the circumstances relevant
to the particular case. The Adoption Code factors are a logical decision-making tool
when only one party petitions for a guardianship, because the court need not compare the
petitioning party to any other party. Rather, determining whether the guardianship is in
the child’s best interests depends solely on whether a guardianship with the petitioning
party is in the child’s best interests. Moreover, a juvenile guardianship has many
characteristics that are similar to an adoption. Thus, the Adoption Code factors provide a
useful list of considerations that may be relevant to a guardianship decision, and trial
courts may therefore be led to apply the Adoption Code factors in deciding some, or
perhaps many, petitions for guardianship.
However, neither the statutory language of MCL 712A.19c(2) nor the similarities
between a guardianship and an adoption require application of the Adoption Code factors
to all guardianship petitions, as the Court of Appeals suggests. Rather, depending on the
circumstances, a case may more reasonably lend itself to application of the Child Custody
Act factors, some combination of the Adoption Code and Child Custody Act factors, or a
unique set of factors developed by the trial court for purposes of a particular case.10
10
In this regard, we note that the Child Custody Act and the Adoption Code factors
permit a court to consider “[a]ny other factor considered by the court to be relevant[.]”
MCL 722.23(l); MCL 710.22(g)(xi). Thus, although MCL 712A.19c(2) does not create
an overarching preference for creating a guardianship with a relative, the statute
nevertheless permits a trial court to consider familial ties in determining whether the
guardianship is in the child’s best interests. However, we stress that if a court concludes
that familial ties are relevant to the guardianship decision under MCL 712A.19c(2), the
familial relationship is only a factor that must be balanced among all the other relevant
factors—it does not give rise to a presumption in favor of creating a guardianship.
17
Finally, we must review the trial court’s findings of fact regarding the best-interest
determination, which are subject to the clear-error standard on appeal. See MCR
2.613(C). See, also, In re BKD, 246 Mich App 212, 219; 631 NW2d 353 (2001)
(applying the clear-error standard to the trial court’s findings of fact regarding the best-
interest factors in the Adoption Code).11 “A finding is ‘clearly erroneous’ if although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been made.” In re Mason, 486 Mich at
152 (quotation marks, brackets, and citation omitted). Thus, under the clear-error
standard, “a reviewing court should not substitute its judgment on questions of fact unless
the factual determination clearly preponderates in the opposite direction.” Pierron v
Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010) (quotation marks, brackets, and
citations omitted).
D. APPLICATION
Because we conclude that MCL 722.954a and MCL 712A.19c apply at different
stages of child protective proceedings, we conclude that the requirements of MCL
722.954a have no bearing on a trial court’s decision regarding a guardianship petition
under MCL 712A.19c. Thus, we conclude that the Court of Appeals erroneously held
that, as a relative of the children, Scribner was entitled to a preference as part of her
petition for a guardianship under MCL 712A.19c.12 However, that conclusion does not
11
Cases in which this Court reviewed the trial court’s factual findings underlying its best-
interest determination for whether they were against the great weight of the evidence did
so under MCL 722.28, which does not apply here.
12
Although our grant order directed the parties to address whether Scribner “was entitled
to [a] preference [for placement with relatives] where her son’s parental rights to the
18
necessarily mandate that we affirm the trial court’s decision to deny Scribner’s
guardianship petition. Rather, we must also consider whether the trial court abused its
discretion when it selected the Child Custody Act’s best-interest factors rather than some
other set of factors to determine whether the guardianship was in the children’s best
interests. Additionally, we must consider whether the trial court clearly erred in its
findings of fact regarding the children’s best interests under MCL 712A.19c.
We conclude that the trial court did not abuse its discretion by applying the best-
interest factors from the Child Custody Act. In this case, the trial court was faced with
two placement options for the children; therefore, logic required the trial court to
compare the two options in order to determine which placement was in the children’s best
interest. Under these circumstances, such a comparison was necessary because, although
both placement options may be qualified to meet the children’s needs, only one of the
placement options can truly be in the children’s best interests. Because the Child
Custody Act factors incorporate a comparative analysis, and because comparison of the
two placement options in this case was a logical method for determining which option
was in the children’s best interests, the trial court’s decision to apply those factors rather
than the Adoption Code factors was not an abuse of discretion.13
children had been terminated,” 495 Mich at 870, that question is dependent on holding
that a preference for placement with relatives applies to MCL 712A.19c(2). Because we
conclude that no such preference exists, we need not consider the impact of the
termination of parental rights on a grandparent’s status as a relative under MCL
722.954a(2).
13
Application of the Child Custody Act best-interest factors outside the context of a
custody dispute is not a novel approach in the area of juvenile law. For example, in In re
Barlow, 404 Mich 216, 236; 273 NW2d 35 (1978), we concluded that consideration of
19
We likewise conclude that the trial court did not clearly err in its application and
findings of fact related to the Child Custody Act’s best-interest factors to decide
Scribner’s petition for a guardianship under MCL 712A.19c. The trial court accurately
emphasized that “the paramount concern is what is best for the children.” The trial court
concluded that the children had developed a strong bond with the foster parents, while
only JRG displayed a similar bond with Scribner. The trial court concluded that the
foster parents had demonstrated the capacity to give the children love and guidance
whereas Scribner expressed a desire to do so, but had not demonstrated the ability to do
so, given that she had not cared for the children for a significant period of time. The trial
court determined that Scribner had a superior financial ability to support the children, but
that the foster parents also had sufficient income to support the children financially. The
trial court also determined that the children’s stability with the foster parents and
desirability of maintaining that stability “overwhelming[ly]” favored denying the
guardianship. The trial court acknowledged that Scribner could have provided similar
stability given the opportunity, but it would be improper to focus on “what may be fair
for” Scribner rather than “the best interests of the children.”
the Child Custody Act factors “for guidance” was proper in the context of termination of
parental rights and adoption cases. We recognize that In re Barlow was decided before
specific best-interest factors were added to the Adoption Code by amendment in 1980
and thus should not be interpreted as condoning the application of different factors in the
face of a statutory requirement to do otherwise. However, In re Barlow is nevertheless
instructive in this case, in which the Legislature has not elected to confine the court’s
decision-making process regarding guardianships to a specific list of statutory factors.
20
The trial court likewise found the children’s school record to be a compelling
reason to deny the guardianship. The trial court recognized that the school district where
Scribner lived was highly regarded, but the court noted that the children made
“significant progress in their school performances” while with the foster parents.
Accordingly, the trial court stated, “[h]ow uprooting them and changing schools would
serve their best interests is highly questionable.” The trial court recognized that
significant testimony was devoted to the children’s preference and concluded that JRG
was agreeable to either outcome, while COH, ERH, and KBH were “decidedly in favor
of remaining in their existing placement [with the foster parents] on a permanent basis.”
Acknowledging that the children’s preference had already been overridden when they
were removed from the care of their biological parents, the trial court determined that it
was not in the children’s best interest to again ignore their preference, particularly when
that preference was for what the trial court determined to be a “stable, loving, secure, and
trustworthy home . . . .” Finally, the trial court lamented its conclusion that neither the
foster parents nor Scribner seemed willing to encourage a relationship with the other
party.
Overall, we are not left with the definite and firm conviction that a mistake was
made in assessing the facts relevant to the children’s best interests and, thus, we conclude
that the trial court’s best-interest determination was not clearly erroneous. First, the trial
court provided an individualized analysis based on the relevant evidence for each of the
applicable factors. Second, the trial court did not take a one-sided view of the evidence;
rather, the court weighed evidence that favored each placement option and acknowledged
that Scribner could likely provide a stable and caring environment for the children if
21
given the opportunity. The trial court also recognized that its decision to deny the
guardianship could appear unfair to Scribner. However, the trial court correctly
explained that its focus remained on the children’s best interests, as required by law. See
MCL 712A.19c(2). Finally, the Court of Appeals’ conclusion that the trial court erred by
denying Scribner’s petition for guardianship under MCL 712A.19c(2) was largely rooted
in its erroneous conclusion that Scribner was entitled to a preference because of her status
as a relative. However, as previously established, the Court of Appeals erroneously
interpreted MCL 722.954a and MCL 712A.19c. Because there is no statutory preference
for creating a guardianship with a relative under MCL 712A.19c(2), the entirety of the
Court of Appeals’ review of the trial court’s best-interest determination is severely
undercut.
Accordingly, we conclude that the Court of Appeals erroneously substituted its
judgment for the trial court’s judgment on questions of fact. Additionally, we conclude
that the trial court did not clearly err in concluding that a guardianship with Scribner was
not in the children’s best interests under MCL 722.19c(2).
IV. CONCLUSION
We hold that MCL 722.954a creates a preference for placement with relatives, but
that preference does not apply to a court’s decision regarding whether to appoint a
guardian under MCL 712A.19c(2). We further hold that, in deciding whether to appoint
a guardian, a court must determine whether the guardianship is in the child’s best
interests, and to do so the court may consider the best-interest factors from the Child
Custody Act, the Adoption Code, or any other factors that may be relevant under the
circumstances of a particular case.
22
Because the Court of Appeals erroneously concluded that a preference for
placement with relatives exists under MCL 712.19c(2) and substituted its judgment for
the trial court’s on questions of fact regarding the children’s best interests, we reverse the
Court of Appeals judgment and remand to that Court to consider Scribner’s appeal of the
MCI Superintendent’s denial of consent to adopt the children.
Michael F. Cavanagh
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
23