in Re N S a McCarthy Minor ( 2015 )

Order Michigan Supreme Court
Lansing, Michigan
June 5, 2015 Robert P. Young, Jr.,
Chief Justice
151039 & (102)(103) Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein,
Justices
In re N. S. A. McCARTHY, Minor. SC: 151039
COA: 318855
Oakland CC Family Division:
07-739244-NA
____________________________________/
On order of the Court, the motion for immediate consideration and the motion to
expand the record are GRANTED. On May 5, 2015, the Court heard oral argument on
the application for leave to appeal the January 15, 2015 judgment of the Court of
Appeals. The application is again considered and, pursuant to MCR 7.302(H)(1), in lieu
of granting leave to appeal, we REMAND this case to the Oakland Circuit Court for
further proceedings, including, within 60 days, a permanency planning hearing conducted
pursuant to MCL 712A.19c. At that hearing, the court shall consider whether it is in the
child’s best interests to appoint a guardianship with the child’s grandparents. In
determining the best interests of the child, the court may utilize the factors provided in
MCL 722.23, including “[t]he reasonable preference of the child . . . .” In all other
respects, leave to appeal is DENIED, because we are not persuaded that the remaining
questions presented should be reviewed by this Court.
We do not retain jurisdiction.
YOUNG, C.J. (concurring/dissenting).
In denying this appeal, the Court has made no determination that the family court
erred by finding that termination of respondent’s parental rights was in the child’s best
interests. Therefore, I respectfully dissent from that part of the Court’s order that
presumes to direct the family court’s future actions. I see no legitimate basis for this
Court to enter an order remanding for a permanency planning hearing to consider
whether to appoint a guardianship with the child’s grandparents. That may be an
appropriate consideration, but it is not our call to make.
2
The issue raised, briefed, and argued before this Court had nothing to do with the
family court’s posttermination proceedings. The majority’s order in this case is, in my
view, disrespectful of the family court as well as the parties, including the lawyer-
guardian ad litem, who might be expected to follow the law and advance the interests of
the teenaged child in question. There is no live controversy for us to resolve, and the
majority simply has no constitutional basis to intervene in the posttermination
proceedings at this time. See King v Mich State Police Dep’t, 303 Mich App 162, 188
(2013).
The most significant fact undermining the majority’s action is that there is no
indication in the record before us that the family court has failed in any way to consider a
guardianship with the child’s grandparents or to hold the statutorily mandated hearings.
In fact, we know that (1) the family court has a plan in place for the child that has
allowed her to be placed with her grandparents, which has worked well so far as we
know, (2) the family court conducted a review hearing on April 27, 2015, (3) the family
court has scheduled a hearing for July 27, 2015, for a “permanent custody review,” and
(4) the family court held a permanency planning hearing in the past.
In sum, there is no basis in law or equity for this Court to intervene to impose its
views and direct the future proceedings below, especially when it appears that the family
court is meeting its statutory obligations under MCL 712A.19c and is working on a
suitable placement plan for the child.
Therefore, I would simply deny leave to appeal and permit the family court to
continue to exercise its lawful discretion.
VIVIANO, J., joins the statement of YOUNG, C.J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 5, 2015
p0602
Clerk