The Delta County Probate Court improperly exercised jurisdiction in this minor guardianship case and, as a result, erroneously appointed the children’s maternal grandmother as their guardian, the Michigan Court of Appeals has ruled.

Accordingly, the Court of Appeals vacated the Probate Court’s orders appointing the respondent-maternal grandmother as guardian and denying the petitioner-mother’s motion to terminate the guardianship.

In its In re Guardianship of Orta, Minors (Docket Nos. 346399 and 346400) decision, the Court of Appeals examined the guardianship statute, MCL 700.5204(2)(b). That statute says: “(2) The court may appoint a guardian for an unmarried minor if any of the following circumstances exist: … (b) The parent or parents permit the minor to reside with another person and do not provide the other person with legal authority for the minor's care and maintenance, and the minor is not residing with his or her parent or parents when the petition is filed.”

Here, the agreement between the petitioner and the respondent was a temporary living arrangement for the children, the Court of Appeals emphasized. Therefore, because a necessary statutory requirement was lacking, the Probate Court should not have appointed the respondent as the children’s guardian, the appeals court held.

Judges Mark T. Boonstra, Jonathan Tukel and Anica Letica were on the panel that issued the unpublished opinion earlier this year.

The decision was appealed and, on July 1, 2020, the Michigan Supreme Court granted leave to appeal and ordered that oral arguments be scheduled.

Background

In June 2015, the petitioner took her minor children to the respondent’s home in Delta County in the Upper Peninsula. The petitioner, who lived in mid-Michigan in the Lower Peninsula, left the respondent with clothes and supplies for her children, a signed statement consenting to emergency or general treatment for her children, her children’s health insurance cards and her telephone number. It was anticipated the children would remain in the respondent’s care for about one month.

According to the petitioner, after one month passed, she and the respondent had a telephone conversation in which the respondent said that she would keep the children until the petitioner was able to get an apartment. The petitioner asserted that she offered to provide monetary support for the children, but the respondent said that she did not have to provide any.

Over Labor Day weekend 2015, the petitioner borrowed a friend’s car to visit her children (she could not afford her own vehicle). At the time, the petitioner’s main concern was obtaining housing for her family. Although the petitioner had moved various times during the prior years, she had leased an apartment as of October 1, 2015, and now had full-time employment. The petitioner’s employer routinely drug-tested her to confirm that she was drug-free. In addition, the petitioner had no criminal history.

Within a few days of the petitioner’s visit, the respondent filed a guardianship petition in the Delta County Probate Court. The respondent claimed that a temporary guardianship was necessary because the petitioner had seen her children once in three months and had provided “no care or support.” The respondent’s filing indicated the petitioner was homeless and possibly living in Eaton County.

The same day the guardianship petition was filed, the Probate Court appointed the respondent as the grandchildren’s temporary guardian based on the allegation that “the parent[] permit[s] the minor[s] to reside with another person and d[id] not provide the other person with the legal authority for the care and maintenance of the minor[s] who w[ere] not residing with a parent when the petition was filed.” The Probate Court also ordered that any parenting time would be at the respondent’s discretion. The temporary guardianship was set to expire October 9, 2015 but was extended to October 15, 2015. 

The petitioner was allegedly served in Eaton County with notice of the temporary guardianship and her ability to object, along with a notice of hearing on the respondent’s petition for full guardianship. The Department of Human Services (DHHS) was also appointed to investigate and report to the Probate Court.

A short time later, the respondent brought the children to the Lower Peninsula for a funeral. Afterward, the petitioner took one child for a walk (the petitioner could not take the other child because he was in the respondent’s car). The petitioner called the police and reported that her parents were trying to take her children. After the respondent produced the guardianship papers, the police advised the petitioner that she needed to go through the court system. The respondent then again served the petitioner with the guardianship papers, this time at an address in Calhoun County.

During the hearing on the full guardianship petition, the respondent testified that she wanted the petitioner “to be their mom,” but wanted her “to get her life together.” The respondent’s attorney assured the court that respondent would not “build a brick wall around” the children and the petitioner would have to “re-earn the trust of her mother to make sure that these visits go well[.]” The respondent’s attorney also anticipated further DHHS intervention, pointing out the petitioner’s “poor judgment” in providing for her children.

The petitioner, who represented herself at the hearing, said that she was unaware of the temporary guardianship because she had not received any of the guardianship paperwork. She further suggested that her children were being harmed by her inability to visit them because she lived about eight hours away.

The Probate Court ruled that the statutory grounds for imposing a guardianship were met and appointed the respondent as full guardian. The Probate Court’s order left parenting time in the respondent’s discretion and directed DHHS to assist the petitioner with reasonable visits and phone calls. The petitioner was ordered to pay $20 per child in temporary support until the Friend of the Court (FOC) made a support recommendation.

Later the same day, per stipulation of the parties, the Probate Court entered an order setting support at $350 per month for both children, to begin November 1, 2015. According to the Probate Court, the guardianship would be terminated if the petitioner obtained a stable job and housing and continued a relationship with the children.

The petitioner later filed two petitions to terminate the guardianship, one in November 2016 and one in July 2018. The Probate Court denied both petitions. Meanwhile, the Probate Court ordered DHHS to provide the statutorily mandated annual reviews and twice continued the guardianship without conducting a hearing.

The petitioner appealed.

Temporary Arrangement

On appeal, the petitioner argued the Probate Court did not have jurisdiction to appoint the respondent as the children’s guardian in the first place because the requirements in MCL 700.5204(2)(b) were not met.

“Initially, we believe that petitioner’s jurisdictional challenge is better understood as an argument that the trial court misapplied the requirements for establishing a guardianship,” the Court of Appeals said, citing In re Ferranti, 504 Mich 1 (2019). “And, because we agree that the initial guardianship appointment was merely the first phase in a continuous guardianship proceeding, we conclude that petitioner’s challenge to the trial court’s exercise of its jurisdiction is permissible.”

The Court of Appeals explained that a guardian may be appointed when: “[(1)] The parent or parents permit the minor to reside with another person and [(2)] do not provide the other person with legal authority for the minor’s care and maintenance, and [(3)] the minor is not residing with his or her parent or parents when the petition is filed.”

If a parent permits her child “to permanently reside with someone else when the guardianship issue arises, the court may appoint a guardian for the child,” the Court of Appeals said, citing Deschaine v St Germain, 256 Mich App 665 (2003). “In other words, this Court reads ‘resides’ as containing not only a physical presence, but also an accompanying intent element of choosing that place as a permanent residence.”

Here, there was no dispute that the original agreement between the petitioner and the respondent involved a temporary living arrangement for the children, the Court of Appeals emphasized. “Initially, petitioner asked respondent to care for petitioner’s children for about one month. There is no dispute that respondent agreed to this temporary arrangement. And, at the initial hearing on the guardianship, petitioner testified that she and respondent spoke after the month had passed and agreed that respondent would continue to care for petitioner’s children until petitioner moved into her apartment. Again, this was a temporary arrangement and petitioner leased her apartment effective October 1, 2015. Because a necessary statutory requirement was lacking, the trial court erred in appointing respondent the children’s guardian.”

Accordingly, the Court of Appeals vacated the Probate Court’s orders and remanded the case for further proceedings - namely, to return the petitioner’s children to her.

Appeal Granted 

The respondent appealed the Court of Appeals decision. The Michigan Supreme Court has agreed to hear the case.

In its order granting leave to appeal, the Supreme Court said the respondent “shall file a supplemental brief” that addresses these issues:

1. whether In re Ferranti applies to guardianship proceedings.

2. whether, to establish a guardianship under MCL 700.5204(2)(b), a parent must intend that his or her child permanently reside with another person.

The Supreme Court has also invited the State Bar of Michigan Family Law Section and the State Bar of Michigan Children’s Law Section to file amicus briefs in the matter.