in Re R J K Timon Minor ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re R. J. K. TIMON, Minor. May 2, 2017
Nos. 333788; 333789
Wayne Circuit Court
Family Division
LC No. 13-512300-NA
Before: O’CONNELL, P.J., and GLEICHER and BOONSTRA, JJ.
GLEICHER, J. (concurring in part and dissenting in part).
I concur that statutory grounds exist warranting the termination of both respondents’
parental rights to RJKT. I respectfully disagree with the majority’s analysis regarding whether
RJKT’s best interests would be served by termination of respondents’ parental rights.
RJKT was placed with his maternal grandmother, Arlene Woods, in 2013. RJKT’s two
older brothers also resided with Woods pursuant to the court’s order. By all accounts, RJKT
thrived in Woods’s care. The three children shared a close bond. Supervised visits with
respondents enhanced RJKT’s life. The many caseworkers assigned to the family found no
flaws in the children’s custodial arrangement.
Under MCL 712A.19a(6)(a), a court is not required to pursue the termination of parental
rights if “[t]he child is being cared for by relatives.” Our Supreme Court has construed this
circumstance as “weigh[ing] against termination,” expounding that placement with family is “an
explicit factor to consider in determining whether termination was in the children’s best
interests[.]” In re Mason, 486 Mich. 142, 164; 782 NW2d 747 (2010). In MCL 712A.19a(4), the
Legislature expressed its intent that permanency planning must include consideration of a
guardianship and permanent placement “with a fit and willing relative:”
(4) At or before each permanency planning hearing, the court shall determine
whether the agency has made reasonable efforts to finalize the permanency plan.
At the hearing, the court shall determine whether and, if applicable, when the
following must occur:
(a) The child may be returned to the parent, guardian, or legal custodian.
(b) A petition to terminate parental rights should be filed.
(c) The child may be placed in a legal guardianship.
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(d) The child may be permanently placed with a fit and willing relative. . . .
At the final permanency planning hearing, the circuit court approved a kinship
guardianship with Woods for the two older children, ages 17 and 16 at the time. But the court
refused to even consider a guardianship for RJKT, age 7, explaining that for children under age
14 guardianships “create an environment where their permanents [sic] is compromised
depending on how the case plays out. And sometimes it takes years to happen.” According to
other exchanges of record, the circuit court judge assigned to these proceedings has a personal,
hard-and-fast rule that children under age 14 (the statutory age at which a minor may petition for
a guardianship, see MCL 700.5204) are not eligible for a kinship guardianship. Respondent
mother’s counsel made more than one attempt to introduce evidence regarding potential benefits
of Woods’s guardianship for RJKT; the court rebuffed each attempt because it had precluded
guardianship as an option for RJKT based on the child’s age.
I believe the court clearly erred by enforcing its personal guardianship predilection in the
absence of evidence that would have shed light on Woods’s ability and willingness to provide
permanence for RJKT. The United States Supreme Court said it best:
Procedure by presumption is always cheaper and easier than
individualized determination. But when, as here, the procedure forecloses the
determinative issues of competence and care, when it explicitly disdains present
realities in deference to past formalities, it needlessly risks running roughshod
over the important interests of both parent and child. It therefore cannot stand.
[Stanley v Illinois, 405 U.S. 645, 656-657; 92 S. Ct. 1208; 31 L. Ed. 2d 551 (1972).]
The circuit court’s conclusive presumption that a guardianship would not serve a young
child’s best interests undermines a court’s ability to fashion a truly individualized permanency
plan. It may be that many kinship guardianships established for children of RJKT’s age do not
last for the entirety of the child’s minority. But the record offers no evidence of this, and I am
wary of imposing a guiding and rather arbitrary principle lacking any empiric justification.
Every family is unique, and so is every guardianship. Given that more than one DHHS
worker familiar with the family recommended guardianship rather than termination, I would hold
that the court clearly erred by taking this option off the table.
The majority points out that “the juvenile code does not specifically require or allow the
trial court to consider whether a child should be placed in a guardianship instead of finding that
termination is in a child’s best interests as part of a termination hearing described under MCL
712A.19b.” In my view, the majority has unnecessarily narrowed its focus. Although the circuit
court most clearly articulated its policy at the conclusion of the termination hearing, its age-
based presumption against guardianship permeated the proceedings. By limiting the full range of
permanency planning tools made available by the Legislature, the circuit court may have
inadvertently lessened the likelihood of both permanency and emotional stability for RJKT; the
caseworker most familiar with the family testified strongly in favor of the guardianship option.
Just as a policy mechanically requiring guardianships instead of termination for all children over
age 14 would frustrate the will of the Legislature, so does a blanket rule disapproving them for
all children under that age.
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I would remand for a new permanency planning hearing, opening the evidentiary door to
testimony regarding whether a kinship guardianship with Woods would best serve RJKT’s
interests.
/s/ Elizabeth L. Gleicher
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