Court of Appeals Holds Trial Court Properly Exercised Jurisdiction
Opinion Published: March 14, 2024 (Feeney, P.J., and Redford and Yates, JJ.)
Opinion Authored by Judge Yates
Docket No. 368361
Lenawee County Probate Court
Holding: The trial court properly exercised jurisdiction over ADW because she was living with an individual who was not her parent and who did not have legal authority over her when the petition for appointment of guardian was filed. However, the trial court did not have the authority to order visits between ADW and her maternal siblings under the Estate and Protected Individuals Code. Accordingly, the Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings.
Facts: Dale Warner and Dee Warner married and had one daughter, ADW, who is now nine years old. Dale and Dee each have their own children from prior relationships: Dale has a son named Jaron, and Dee has a daughter named Amber. Through the beginning of ADW’s life, she had good relationships with her half-siblings. In early 2021, Dee mysteriously disappeared. Convinced that Dale was responsible for Dee’s disappearance, Dee’s children became separated from ADW, and their relationships strained.
In early 2022, Dale executed two documents in the Lenawee County Probate Court, including an “Appointment of Guardian and Conservator for Minor Child of Dale J. Warner” to appoint Jaron as ADW’s guardian if he is unable. The next day, Dale was help in contempt of court in Dee’s conservatorship proceedings, and he was sentenced to 93 days in jail. While he was in jail, Dee’s daughter Amber filed a petition to appoint herself as ADW’s guardian. Dale also executed a Power of Attorney (POA) from jail, purporting to appoint Jaron as legal guardian of ADW.
In Amber’s guardianship petition proceedings, the trial court stated that Dale’s purported POA was not legally enforceable because Amber filed her petition five days prior to the execution of the POA. The trial court also appointed Jaron as ADW’s temporary guardian while Dale was in jail on October 11, 2023, and Jaron accepted the appointment. The trial court also ordered the parties to begin facilitating supervised visitations between ADW and her maternal half-siblings on October 25, 2023.
As soon as Dale was released from jail, he filed an emergency petition to terminate the guardianship, and the trial court scheduled a hearing on November 30, 2023. However, Dale was rearrested before that hearing and charged with the murder of Dee. Dale was detained on a $15 million bond. Nevertheless, Dale appealed the trial court’s October 11 and 25 orders.
Key Appellate Holdings:
The trial court properly established jurisdiction over ADW pursuant to MCL 700.5204(2)(b) because ADW was residing with Jaron, who is not her parent, and Jaron did not have legal authority to provide for ADW’s care and maintenance.
A probate court can appoint a guardian for a minor when the parent allows the minor to reside with another person and does not provide the other person with legal authority for the minor’s care and maintenance. In re Guardianship of Versalle, 334 Mich App 173, 181; 963 NW2d 701 (2020). Because ADW is a minor and Dale allowed her to reside with Jaron, the only question to determine if Amber’s petition was proper and if the trial court had jurisdiction was whether Dale vested Jaron with legal authority of ADW. The Court of Appeals held that the several documents Dale executed prior to and during his jail sentence did not provide Jaron with legal authority. The “Appointment of Guardian” document merely allowed a court to appoint Jaron but did not itself appoint Jaron. Moreover, the POA was executed after the trial court was vested authority through Amber’s petition. Thus, the trial court had subject matter jurisdiction.
The trial court did not have the authority to order visits between ADW and her maternal half-siblings because only her parent or guardian, Jaron, has that authority.
The guardian of a minor child has the same authority as the parent who is not deprived of custody of the child, and the authority includes the right to prohibit cists between ADW and nearly all of her relatives. Accordingly, probate courts lack the authority to order visitation in guardianship matters. Rather, probate courts may only order visitation with grandparents because of grandparents’ statutory rights under Michigan law. The Court of Appeals nevertheless emphasized that Jaron, as ADW’s guardian, has the authority to allow visits with ADW’s maternal half-siblings, especially in light of the LGAL and DHHS caseworkers’ opinions that visits between ADW and her siblings would be in ADW’s best interests. Moreover, the probate court does have some authority in this realm, as the guardian is vested with the duty to “facilitate the ward’s . . . social or other activities,” MCL 700.5215(c), and if this duty is not met, the court may address this failure with a court-structured plan.
