ICLE Homepage | Other Proposed Amendments
to MCRs
November 28, 2001
98-50
01-19
Proposed Amendments of Rules
5.901-5.993 and 6.901-6.937
of the Michigan Court Rules,
and Proposed New Rules 5.917,
5.945, 5.946, 5.966, 5.975-5.978
and 6.938
On order of the Court, this is to advise that the Court is
considering amendments of Rules 5.901-5.993 and 6.901-6.937 of
the Michigan Court Rules and proposed new Rules 5.917, 5.945,
5.946, 5.966, 5.975-5.978, and 6.938. Before determining whether
the proposals should be adopted, changed before adoption, or
rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the
proposals. The Court welcomes the views of all who wish to
address the proposals or to suggest alternatives. Before
adoption or rejection, the proposals will be considered by the
Court at a public hearing. Notice of future public hearings will
be provided by the Court and posted on the Court's website,
www.supremecourt.state.mi.us.
Publication of these proposals does not mean that the Court
will issue an order on the subject, nor does it imply probable
adoption of the proposals in their present form.
Comment: The proposed amendments were submitted by the
Family Division Joint Rules Committee appointed by the Supreme Court.
The proposals include revision of most of the rules in Subchapter 5.900,
which govern procedure in cases formerly heard in the juvenile division
of probate court, and in Subchapter 6.900, which covers criminal cases
brought against juveniles, as well as several new rules.
The comments following the individual rules
are published only for the benefit of the
bench and bar and are not an authoritative
construction by the Court.
. [The present language would be amended as indicated below.]
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
Rule 5.901 Applicability of Rules
(A) [Unchanged.]
(B) Application. Unless the context otherwise indicates:
(1) MCR 5.901 - [5.927] 5.928, 5.980,
and 5.991-5.993 apply to delinquency proceedings and child
protective proceedings;
(2) - (3) [Unchanged.]
(4) MCR 5.961 -[5.974] 5.978 apply only to
child protective proceedings;
(5) [Unchanged.]
Comment: References to the rules applicable to various types of
proceedings are changed to reflect the addition of new rules.
Rule 5.902 Construction [Unchanged.]
Rule 5.903 Definitions
(A) General Definitions. When used in this subchapter, unless
the context otherwise indicates:
(1) "Case" means an action initiated in the
family division of the circuit court by:
(a) submission of an original complaint,
petition, or citation;
(b) acceptance of transfer of an original
action from another court or tribunal; or
(c) filing or registration of a foreign
judgment or order.
[(1)](2) "Child born out of wedlock" means a
child conceived and born to a woman who [is unmarried]
was not married from the conception to the birth of the
child, or a child whom a court has determined, [by
judicial notice or otherwise to have been] after notice
and a hearing, to be a child conceived or born during a
marriage, but who is not the issue of that marriage.
[(2)](3) "Child protective proceeding" means a
proceeding concerning an offense against a child.
[
] [(18)](4) "Confidential file[s]" means
[all materials] that part of a file made
confidential by statute or court rule including, but not limited
to, the diversion record of a minor pursuant to the Juvenile
Diversion Act, [1988 PA 13,] MCL 722.821 et seq.;
the separate statement about known victims of juvenile offenses,
as required by the Crime Victim Rights Act, [1988 PA
22] MCL 780.[781]751 et seq.; the testimony
taken during a closed proceeding pursuant to MCR 5.925(A)(2) and
[§ 17 of the Juvenile Code,] MCL 712A.17; the
dispositional reports pursuant to MCR 5.943(C)(3) and
[MCR] 5.973(A)(4)(c); fingerprinting material required to
be maintained for reportable juvenile offenses pursuant to MCL
28.243 et seq., [as amended by 1988 PA 40;] reports of
sexually motivated crimes, MCL 28.247; test results of those
charged with certain sexual offenses or substance abuse offenses,
MCL 333.5129; and court materials or records that the court has
determined to be confidential.
[(3)](5) "Delinquency proceeding" means a
proceeding concerning an [offense] act by a
juvenile that violates a criminal statute, a criminal
ordinance, a provision of MCL 712A.2(a) or (d) or an act that
violates a traffic law.
[(20)](6) "Designated proceeding" means a
proceeding in which the prosecuting attorney has designated, or
has requested the court to designate, the case for trial in
juvenile court in the same manner as an adult.
[(4)](7) "Father" means:
(a) a man married to the mother at any time from a
minor's conception to the minor's birth, unless the minor
is determined to be a child born out of wedlock;
(b) a man who legally adopts the minor;
(c) a man who was named on a Michigan birth
certificate for a minor born after July 20, 1993, as provided by
MCL [333.21532] 333.2824; [or]
(d) a man judicially determined to have
parental rights; or
[(d)](e) a man whose paternity is
established in one of the following ways within time limits, when
applicable, set by the court pursuant to this subchapter:
(i) the man and the mother of the minor
acknowledge that he is the minor's father by completing and
filing an acknowledgment of[ paternity] parentage in
accord with the provisions of the acknowledgment of parentage
act. The man and mother shall each sign the acknowledgment
of [paternity in the presence of 2 witnesses, who shall also
sign the acknowledgment, and in the presence of a judge, clerk of
the court, or] parentage before a notary public
appointed in this state. The acknowledgment shall be filed at
either the time of birth or another time during the child's
lifetime with the [probate court in the mother's county of
residence or, if the mother is not a resident of this state when
the acknowledgment is executed, in the county of the child's
birth] state registrar.
[(ii)] [the man and the mother file a
joint written request for a correction of the certificate of
birth pertaining to the minor that results in issuance of a
substituted certificate recording the birth;]
[(iii)] [the man acknowledges that he is
the minor's father by completing and filing an acknowledgment of
paternity, without the mother joining in the acknowledgment if
she is disqualified from signing the acknowledgment by reason of
mental incapacity, death, or any other reason satisfactory to the
probate judge of the county of the mother's residence or, if the
mother is not a resident of this state when the man signs the
acknowledgment, of the county of the minor's birth.]
[(iv)](ii) a man who by order of
filiation or by judgment of paternity is determined judicially to
be the father of the minor.
(8) "File" means a repository for collection
of the pleadings and other documents and materials related to a
case. A file may include more than one case involving a
family.
[(5)](9) An authorized petition is deemed "filed"
when it is delivered to, and accepted by, the [registrar
or] clerk of the court.
[(6)](10) "Formal calendar" means the judicial
phases other than a delinquency proceeding on the consent
calendar, a preliminary inquiry, or a preliminary hearing of a
delinquency or child protective proceeding.
(11) "Guardian" means a person appointed as
guardian of a child by a court of competent jurisdiction in
Michigan pursuant to MCL 700.5204 or 700.5205, a court of another
state under a comparable statutory provision, or by parental or
testamentary appointment as provided in MCL 700.5202.
(12) "Jurisdiction" means the authority of the
court to hear cases, make decisions, and enter orders on
cases.
[(7)](13) "Juvenile Code" means 1944 (1st Ex Sess)
PA 54, MCL 712A.1 et seq.[], as amended.
[(8)](14) "Juvenile court" or "court" means the
family division of the circuit court.
(15) "Legal Custodian" means an adult who has
been given legal custody of a minor by order of a circuit court
in Michigan or a comparable court of another state or who
possesses a valid power of attorney given pursuant to MCL
700.5103 or a comparable statute of another state.
[(10)](16) "Minor" means a person under the age of
18, and may include a person of age 18 or older concerning whom
proceedings are commenced in the juvenile court and over whom the
juvenile court has continuing jurisdiction pursuant to MCL
712A.2[].
[(11)](17) "Officer" means a government official
with the power to arrest or any other person designated and
directed by the court to apprehend, detain, or place a minor.
[(12)](18) "Parent" means [a person who is
legally responsible for the control and care of the minor,
including a mother, father, guardian, or custodian, other than a
custodian of a state facility, a guardian ad litem, or a juvenile
court- ordered custodian] the mother, [or] the
father[,] as defined in MCR 5.903(A)(7), or both, of the
minor.
[(13)](19) "Party" includes the
(a) petitioner[,] and juvenile[, or
parent] in a delinquency proceeding; and
(b) petitioner, child, [respondent ]parent,
[or other parent or ]guardian, or legal custodian
in a protective proceeding.
[(14)](20) "Petition" means a complaint or other
written [accusation] allegation, verified in the
manner provided in MCR 2.114(A), that a parent, guardian,
nonparent adult, or legal custodian has harmed or failed to
properly care for a child, or that a juvenile has committed an
offense.
[(15)](21) "Petition authorized to be filed" refers
to written permission given by a judge or a referee to file the
petition containing the formal allegations against the juvenile
or respondent with the [register or] clerk of the court.
[(16)](22) "Petitioner" means the person or agency
who requests the court to take action [against a juvenile or
on behalf of a child].
[(17)](23) "Preliminary inquiry" means informal
review by the court to determine appropriate action on a
petition.
(24) "Putative father" means a man who is not a
father of the child as defined in MCR 5.903(A)(7), but who is
alleged to be the biological father of a child who has no father
as defined in MCR 5.903(A)(7).
[(9)](25) "Records" means the pleadings, motions,
authorized petition, notices, memoranda, briefs, exhibits,
available transcripts, findings of the court, register of
actions, and court orders.
(26) "Register of actions" means the permanent
case history maintained in accord with the Michigan Supreme Court
Case File Management Standards.
[(19)](27) "Trial" means the fact-finding
adjudication of [a case on the formal calendar on a charge
contained in] an authorized petition to determine if the
minor comes within the jurisdiction of the court.
(B) Delinquency Proceeding[(]s[)]. When used in
delinquency proceedings, unless the context otherwise indicates:
(1) "Detention" means court-ordered [control of a
juvenile including court-approved] removal of a juvenile from
[parental] custody of a parent, guardian, or legal
custodian, pending trial, disposition, commitment, or further
order.
(2) "Graduated sanctions" means escalating the
severity of sanctions, which may include imposing additional
conditions of probation, extending the term of probation,
imposing additional costs, ordering a juvenile who has been
residing at home into an out-of-home placement, ordering a more
restrictive placement, ordering state wardship for a child who
has not previously been a state ward, or any other conditions
deemed appropriate by the court. Imposition of adult sanctions
in juvenile court on a juvenile who has not previously received
adult sanctions shall also be considered a graduated sanction.
Waiver of jurisdiction to adult criminal court, either by
authorization of a warrant or by judicial waiver, is not
considered a sanction for purposes of these rules.
[(2)](3) "Juvenile" means a minor
[defendant] alleged or found to be within the jurisdiction
of the court [because of] for having committed an
offense.
[(3)] ["Major offense" means an offense by a
juvenile which would be a felony if committed by an adult.]
(4) "Offense by a juvenile" means an act [which]
that violates a criminal statute, a criminal ordinance,
[an act which violates] or a provision of MCL 712A.2(a) or
(d)[], or an act [which] that violates a
traffic law [other than an offense designated as a civil
infraction].
(5) "Prosecuting attorney" means the prosecuting attorney
for a county, an assistant prosecuting attorney for a county, the
attorney general, the deputy attorney general, an assistant
attorney general, a special prosecuting attorney, and, in
connection with the prosecution of an ordinance violation, an
attorney for the political subdivision or governmental entity
[which] that enacted the ordinance, charter, rule,
or regulation upon which the ordinance violation is based.
(6) "Reportable juvenile offense" means any offense or
attempted offense that would constitute a crime as designated
below, and any other offense made reportable by statute:
(a)-(x) [Unchanged.]
(C) Child Protective Proceedings. When used in child protective
proceedings, unless the context otherwise indicates,
(1) [Unchanged.]
(2) "Child" means a minor alleged or found to be within the
jurisdiction of the court [on grounds of abuse, dependency, or
neglect] pursuant to MCL 712A.2(b).
[(3)] ["Concerned person" means a foster parent
with whom the child is living or has lived who has specific
knowledge of behavior by the parent constituting grounds for
termination under MCL 712A.19b(3)(b) or (g), and who has
contacted the department of social services Family Independence
Agency, the prosecuting attorney, the child's attorney, and the
child's guardian ad litem, if any, and is satisfied that none of
these persons intends to file a petition to terminate parental
rights.]
(3) "Contrary to the welfare of the child"
includes, but is not limited to, situations in which the child's
life, physical health, or mental well-being is unreasonably
placed at risk.
(4) "Court Appointed Special Advocate" or
"special advocate" means a nonparty appointed by the court to
gather and present information for the court's consideration and
to make recommendations concerning the best interests of a
child.
[(4)](5) "Foster care" means 24-hour a day
substitute care for children placed away from their parents,
[or] guardians, or legal custodians and for whom the court
has given the Family Independence Agency placement and care
responsibility, including, but not limited to, care provided
to a child in a foster family home, foster family group home, or
child caring institution licensed or approved under MCL 722.111
et seq.[], or care provided to a child in a relative's
home pursuant to an order of the court.
(6) "Lawyer-guardian ad litem" means that term
as defined in MCL 712A.13a(1)(f).
(7) "Nonparent adult" means a person who is
eighteen years of age or older and who, regardless of the
person's domicile, meets all the following criteria in relation
to a child over whom the court takes jurisdiction under this
chapter:
(a) has substantial and regular contact
with the child,
(b) has a close personal relationship
with the child's parent or with a person responsible for the
child's health or welfare, and
(c) is not the child's parent or a person
otherwise related to the child by blood or affinity to the third
degree.
[(5)](8) "Offense against a child" means an act
or omission by a [person other than the child] parent,
guardian, nonparent adult, or legal custodian asserted as
grounds for bringing the child within the jurisdiction of the
court pursuant to the Juvenile Code.
[(6)](9) "Placement" means court-approved
[removal] transfer of physical custody of a child
[from the parental home and placement in] to foster
care, [in] a shelter home, [in] a hospital, or
[with] a private treatment agency.
[(7)](10) "Prosecutor" or "prosecuting attorney"
means the prosecuting attorney of the county in which the court
has its principal office or an assistant to the prosecuting
attorney.
[(8)](11) "Respondent" means the parent,
guardian, or legal custodian who is alleged to have committed
an offense against a child or as defined in MCR 5.974(B).
(D) Designated Proceedings.
(1) - (7) [Unchanged.]
(8) "Specified juvenile violation" means any offense,
attempted offense, conspiracy to commit an offense, or
solicitation to commit an offense, as enumerated in
MCL 712A.2d, that would constitute a violation of any of the
following:
(a)-(r) [Unchanged.]
(9) [Unchanged.]
(E) Minor Personal Protection Order Proceedings. When used in
minor personal protection order proceedings, unless the context
otherwise indicates:
(1)-(2) [Unchanged.]
(3) "Prosecutor" or "prosecuting attorney"
means the prosecuting attorney of the county in which the court
has its principal office or an assistant to the prosecuting
attorney.
Comment: The proposals would add several new definitions and
modify others. Among the changes are the following:
The definition of "delinquency proceeding" in
subrule (A)(5) is modified to be consistent with the
definition of "offense by a juvenile" in subrule (B)(4).
In subrule (A)(7), changes are made in the definition of
"father" to conform to statutory amendments. See MCL 333.2824,
333.21532, 722.1001 et seq.
New definitions of "guardian" and "legal custodian" are
added in subrules (A)(11) and (15). In subrule (A)(18), the definition of
"parent" is shortened to include only the mother and father of the
child. In a number of other rules "parent, guardian, or legal
custodian" is used in place of the current "parent."
The definition of "putative father" is added in
subrule (A)(24).
In subrule (B)(1), the definition of "detention" is limited to
court ordered removal of the juvenile from the parent or custodian.
"graduated sanctions" is defined in subrule (B)(2). That
term is used in MCR 5.943(E)(2).
The definition of "major offense" is deleted from current
MCR 5.903(B)(3) consistent with the elimination of that term from MCR
5.935(D)(2)(b).
In subrule (C)(3), a definition of the phrase "contrary to
the welfare of the child" is added.
Subrule (C)(4) defines "court appointed special advocate."
The provisions regarding the duties of such a special advocate are
found in proposed rule 5.917.
Additional details are added to the definition of "foster
care" in subrule (C)(5).
The statutory definition of "lawyer-guardian ad litem" is
incorporated in subrule (C)(6).
Subrule (C)(7) adds a definition of a "non-parent adult."
The term includes someone who has a close relationship with the person
responsible for the child's care and regular contact with the child.
The definition of "placement" in subrule (C)(9) is modified
so as not to be limited to removal from the parental home.
The definition of "prosecutor" is added in subrule (E)(3),
limiting that term to the county prosecutor, i.e., excluding city and
township attorneys in the context of personal protection orders.
Rule 5.911 Jury
(A) [Unchanged.]
(B) Jury Demand. A party who is entitled to a trial by jury may
demand a jury by filing a written demand with the court within:
(1) [Unchanged.]
(2) 14 days after [the filing of] an
appearance [of counsel ]by an attorney or lawyer-
guardian ad litem, whichever is later, but no later than
[7]21 days before trial. The court may excuse a
late filing in the interest of justice.
(C) Jury Procedure. Jury procedure in the juvenile court is
governed by MCR 2.[510].508-2.516, except as
provided in this subrule.
(1)-(4) [Unchanged.]
Comment: Under current MCR 5.911(B)(2), a jury demand may be made
no later than 7 days before trial. The proposal would increase the
tmie to 21 days.
Rule 5.912 Judge
(A) [Unchanged.]
(B) Demand. A party may demand that a judge rather than a
referee serve as factfinder at a nonjury trial by filing a
written demand with the court within:
(1) [Unchanged.]
(2) [within] 14 days after [the filing of]
an appearance [of counsel] by an attorney or
lawyer-guardian ad litem, whichever is later, but no later
than [7]21 days before trial. The court may excuse
a late filing in the interest of justice.
(C) Disqualification of Judge. The disqualification of a
[juvenile court] judge is governed by MCR 2.003.
Comment: Under current MCR 5.911(B)(2), a jury demand may be made
no later than 7 days before trial. The proposal would increase the
time to 21 days.
Rule 5.913 Referees
(A) Assignment of Matters to Referees.
(1)-(2) [Unchanged.]
(3) Child Protective Proceedings. Only a person licensed
to practice law in Michigan may serve as a referee at a child
protective proceeding other than a preliminary inquiry,
preliminary hearing, [or] a progress review under MCR
5.97[3]4(D), or an emergency removal hearing
under MCR 5.974(E).
(4) [Unchanged.]
(5) Minor Personal Protection Actions. [Only a referee
licensed to practice law in Michigan may preside at a hearing for
the enforcement of a minor personal protection order, including
preliminary hearings, violation hearings, dispositional phases,
and supplemental disposition hearings.] A nonattorney
referee may preside at a preliminary hearing for enforcement of a
minor personal protection order. Only a referee licensed to
practice law in Michigan may preside at any other hearing for the
enforcement of a minor personal protection order and make
recommended findings and conclusions.
(B) [Unchanged.]
(C) [Advise] Advice of Right to [Appeal]
Review of Referee's Recommendations. [At the conclusion
of the dispositional hearing,] During a hearing held by a
referee, the referee must inform the [minor, the parent,
and the respondent ]parties of the right to file a
request for review of the referee's recommended findings and
conclusions as provided in MCR 5.991(B).
Comment: The amendments of subrule (A) clarify the kinds of
proceedings in which a non-attorney referee may preside.
Rule 5.914 Prosecuting Attorney
(A) - (B) [Unchanged.]
(C) Child Protective Proceedings.
(1) Legal Consultant to [Department] Agency.
On request of the Michigan [department of social services]
Family Independence Agency or of an agent under contract
with the [department] agency, the prosecuting
attorney [must] shall serve as a legal consultant
to the [department of social services] Family
Independence Agency or agent under contract with the
[department] agency at all stages of a child
protective proceeding.
(2) Appearance. In a child protective proceeding the
[department] agency may retain legal representation
of its choice when the prosecuting attorney does not appear on
behalf of the [department] agency or on behalf of
an agent under contract with the [department]
agency.
(D) [Unchanged.]
(E) Minor Personal Protection Orders. Unless the
petitioner retains an attorney to prosecute the criminal contempt
proceeding, the prosecuting attorney shall prosecute the
proceeding. If the prosecuting attorney determines that the
personal protection order was not violated or that it would not
be in the interest of justice to prosecute the criminal contempt
violation, the prosecuting attorney need not prosecute the
proceeding.
Comment: In subrule (C)(1), references to the Department of Social
Services are changed to the Family Independence Agency.
New subrule (E) defines the role of the prosecuting
attorney in personal protection order cases involving minor
respondents. See MCR 5.987; MCL 764.15(b)(7).
Rule 5.915 Assistance of Attorney
(A) Delinquency Proceedings.
(1) [Unchanged.]
(2) Appointment of an Attorney. The court shall appoint an
attorney to represent the juvenile in a delinquency proceeding
if:
(a) the parent, guardian, or legal custodian
refuses or fails to appear and participate in the proceedings,
(b) the parent, guardian, or legal custodian is
the complainant or victim,
(c)-(e) [Unchanged.]
(2) Waiver of Attorney. The juvenile may waive the
right to the assistance of an attorney except where a
parent [or], guardian, legal custodian, or
guardian ad litem objects or when the appointment is based on
subrule (A)(2)(e). The waiver by a juvenile must be made in open
court to the judge or referee, who shall find and place on the
record that the waiver was voluntarily and understandingly made.
(B) Child Protective Proceedings.
(1) Respondent.
(a)-(b) [Unchanged.]
(c) The respondent may waive the right to an attorney,
except that the court shall not accept the waiver by a respondent
who is a minor when a parent [or], guardian, legal
custodian, or guardian ad litem objects to the waiver.
(2) Child. The court must appoint an attorney as a
lawyer-guardian ad litem to represent the child at every
hearing, including the preliminary hearing. The child may
not waive the assistance of [an attorney] a lawyer-
guardian ad litem. In the event a conflict arises between
the lawyer-guardian ad litem and the child regarding the child's
best interests, the court may appoint an attorney to represent
the child's stated interests.
[
] [(a)] [The attorney for the child must
be present at every hearing for which the attorney receives
notice.]
[(b)] [The appointed attorney shall observe
and, dependent upon the child's age and capability, interview the
child.]
[(c)] [If the child is placed in foster
care, the attorney shall, before representing the child in each
proceeding or hearing subsequent to a preliminary hearing or
emergency removal hearing, review the agency case file and
consult with the foster parents and the caseworker.]
[(d)] [The court may permit another
attorney to temporarily substitute for the child's attorney at a
hearing, if that would prevent the hearing from being adjourned,
or for other good cause. An attorney who temporarily substitutes
for the child's attorney must be familiarized with the case and,
for hearings other than a preliminary hearing or emergency
removal hearing, must review the agency case file and consult
with the foster parents and caseworker prior to the hearing
unless the child's attorney has done so and communicated that
information to the substitute attorney. The court shall inquire
on the record whether the attorneys have complied with the
requirements of this subrule.]
[(e)] [The attorney appointed to represent
the child must receive compensation as determined by the court,
including compensation for all out- of-court consultations as
required by statute or court rule.]
(C) [Unchanged.]
(D) Duration. An attorney retained by a party may
withdraw only on order of the court. An attorney or lawyer-
guardian ad litem appointed by the court to represent a party
shall serve until discharged by the court.
[(D)](E) Costs. When an attorney is appointed for
a party under this rule, the court may enter an order assessing
costs of the representation against the party or against a person
responsible for the support of that party, which order may be
enforced [through contempt proceedings] as provided by
law.
[(E)] [Discharge. An attorney appointed by the court
to represent a party shall serve until discharged by the
court.]
Comment: Subrule (B)(2) is modified in light of the statute creating
the lawyer-guardian ad litem concept. See MCL 712A.17c(7), 712A.17d.
Rule 5.916 Guardian Ad Litem
(A)-(C) [Unchanged.]
(D) Costs. The court may assess the cost of providing a
guardian ad litem against the party or a person responsible for
the support of the party, and may enforce the order of
reimbursement [through contempt proceedings] as
provided by law.
Rule 5.917 Court Appointed Special Advocate
(A) General. The court may, upon entry of an
appropriate order, appoint a special advocate to assess and make
recommendations to the court concerning the best interests of the
child in any matter pending in the family division.
(B) Qualifications. All court appointed special
advocates shall receive appropriate screening, training, and
supervision as the appointing court shall require.
(C) Duties. Each court appointed special advocate
shall maintain regular contact with the child, investigate the
background of the case, gather information regarding the child's
status, provide written reports to the court and all parties
before each hearing, and appear at all hearings when required by
the court.
(D) Term of Appointment. A court appointed special
advocate shall serve until discharged by the court.
(E) Access to Information. Upon appointment by the
court, the special advocate may be given access to all
information, confidential or otherwise, contained in the court
file if the court so orders. The special advocate shall consult
with the child's lawyer-guardian ad litem.
Comment: New Rule 5.917 would define the role of court appointed
special advocates.
Rule 5.920 Service of Process
(A) [Unchanged.]
(B) Summons.
(1) [Unchanged.]
(2) When Required. Except as otherwise provided in these
rules, the court shall direct the service of a summons in the
following circumstances:
(a) In a [juvenile court] delinquency
proceeding, [the] a summons must be [issued
and] served on the parent or parents, guardian, or legal
custodian having physical custody of the juvenile
[or person with whom the minor resides, other than a
court- ordered custodian,] directing such person to appear
with the [minor] juvenile for trial. The
juvenile must also be served with a summons to appear for
trial. [If the person summoned is not the parent, the
parent shall] A parent without physical custody must
be notified by service as provided in subrule
[(B)(4)](C), unless the whereabouts of the parent
remain unknown after a diligent search. [The court may
direct that the child's appearance in court is unnecessary.
]
(b) [In a delinquency proceeding, the juvenile
shall be summoned and personally served to appear for trial.]
In a child protective proceeding, a summons must be served on
the respondent. A summons may be served on a person having
physical custody of the child directing such person to appear
with the child for hearing. []A mother, father, guardian,
or legal custodian who is not a respondent must be served with
notice of hearing in the manner provided by subrule (C).
(c) [In a child protective proceeding, the summons
must be issued and served on the parent or person with whom the
child resides, other than a court- ordered custodian, for a
hearing on a petition seeking the termination of parental rights.
The court may direct that the child's appearance in court is
unnecessary. If the person summoned is not the respondent,
respondent shall be notified by service as provided in subrule
(B)(4).]In a personal protection order enforcement
proceeding involving a minor respondent, a summons must be served
on the minor. A summons must also be served on the parent or
parents, guardian, or legal custodian, unless their whereabouts
remain unknown after a diligent search.
(3) Content. The summons shall direct the person to whom
it is addressed to appear [with the minor (unless the minor's
appearance has been excused under subrule [B][2])] at a time
and place specified by the court and must:
(a) [Unchanged.]
(b) explain the right to an attorney and the right to
trial by judge or jury, except that there is no right to a
jury at a termination hearing;
(c) [Unchanged.]
(d) have a copy of the petition attached[ to the
summons].
(4) Manner of Serving Summons.
(a) Except as provided in subrules (B)(4)(b) [and
(c)], a summons required under subrule (B)(2) must be served
by delivering the summons to the party personally.
(b) If the court finds that personal service of
the summons is impracticable or cannot be achieved on the
basis of testimony or a motion and affidavit, the court may
by ex parte order direct that it be served [by
registered or certified mail addressed to the last known address
of the party, return receipt requested] in any manner
reasonably calculated to give notice of the proceedings and an
opportunity to be heard, including publication.
[(c)] [If the court finds service cannot be
made because the whereabouts of the person to be summoned has not
been determined after reasonable effort, the court may direct any
manner of substituted service, including publication.]
[(d)](c) If personal service of a summons is
unnecessary, the court may direct that it be served in a manner
reasonably calculated to provide notice.
(5) [Unchanged.]
(C)-(E) [Unchanged.]
(F) Subsequent Notices. After a party's first appearance before
the court, subsequent notice of proceedings and pleadings shall
be served on that party or, if the party has an attorney, on the
attorney for the party, except that a summons must be served
[before] for trial or termination hearing as
provided in subrule (B)[ unless a prior court appearance of
the party in the case was in response to service by summons].
(G) Notice Defects. The appearance and
participation of a party at a hearing is a waiver by that party
of defects in service with respect to that hearing unless
objections regarding the specific defect are placed on the
record. If a party appears or participates without an attorney,
the court shall advise the party of the consequences of the
appearance or participation and of the party's right to seek an
attorney.
Comment: The provisions on service of the summons in delinquency
and child protective proceedings are rewritten. A new provision on the
service of a summons in personal protection order cases is added in
subrule (B)(2)(c).
The provisions of subrule (B)(4) covering substitute
service are revised, deleting references to registered or certified mail
and allowing the court to direct service in any manner reasonably
calculated to give notice.
Subrule (F), regarding subsequent notices, is modified in
light of In re Atkins, 237 Mich App 249 (1999).
New subrule (G) covers waiver of notice defects by
appearance at a hearing.
Rule 5.921 Persons Entitled to Notice
(A) Delinquency Proceeding. [In a delinquency proceeding, the
court shall direct that the following persons be notified of each
hearing:]
[(1)] [the juvenile,]
[(2)] [the parent of the juvenile,]
[(3)] [the guardian ad litem of a party
appointed pursuant to these rules, and]
[(4)] [the attorney retained or appointed to
represent the juvenile.]
[The petitioner must be notified of the first hearing on
the petition.
]
(1) General. In a delinquency proceeding, the
court shall direct that the following persons be notified of each
hearing except as provided in subrule (A)(3):
(a) the juvenile,
(b) the custodial parents, guardian, or
legal custodian of the juvenile,
(c) the noncustodial parent who has
requested notice at a hearing or in writing,
(d) the guardian ad litem of a juvenile
appointed pursuant to these rules,
(e) the attorney retained or appointed to
represent the juvenile, and
(f) the prosecuting attorney.
(2) Notice to the Petitioner. The petitioner
must be notified of the first hearing on the petition.
(3) Parent Without Physical Custody. A parent
of the minor whose parental rights over the minor have not been
terminated at the time the minor comes to court, must be notified
of the first hearing on the formal calendar, unless the
whereabouts of the parent are unknown.
(B) Protective Proceedings.
(1) General. In a child protective proceeding other than a
dispositional review hearing concerning a child in foster care,
other than a permanency planning hearing, and other than a
hearing on a petition requesting the termination of parental
rights, the court shall ensure that the following persons are
notified of each hearing:
(a)-(b) [Unchanged.]
(c) [the child or the attorney] the lawyer-
guardian ad litem for the child,
(d) [a] subject to paragraph (C), the
parents, [or ]guardian, or legal custodian,
if any, other than the respondent,
(e) [Unchanged.]
(f) [the] a party's guardian ad
litem, [or] [a party] appointed pursuant to
these rules, and
(g) [Unchanged.]
(2) Dispositional Review Hearings and Permanency Planning
Hearings. [Prior to] Before a dispositional review
hearing or a permanency planning hearing, the court shall ensure
that the following persons are notified in writing of each
hearing:
(a) [Unchanged.]
(b) [the foster parent or custodian] the
person or institution having court-ordered custody of the
child,
(c) the parents of the child, subject to paragraph
(C), and the attorney for the respondent parent, unless
parental rights have been terminated,
(d) the guardian or legal custodian of the
child, if any,
(e) [Unchanged.]
(f) the [attorney for the child] lawyer-
guardian ad litem for the child,
(g)-(k) [Unchanged.]
(3) [Unchanged.]
[
(C)] [Mother or Father Without Physical Custody. A
mother or father of the minor, who, at the time the minor comes
to court, does not otherwise fall within the definition of parent
or party in MCR 5.903(A)(12), (13), and whose parental rights
over the minor have not been terminated, must be notified of the
first hearing on the petition in either a delinquency or
protective proceeding. Subsequent notice need only be given when
this person requests further notice.]
[(D)](C) Putative Fathers. If, at any time during
the pendency of a proceeding, the court determines that the
minor has no father as defined in MCR
5.903(A)[(4)](7), the court may, in its discretion,
take appropriate action as described in this subrule.
(1) The court may take initial testimony on the tentative
identity and address of the natural father. If the court finds
probable cause to believe that an identifiable person is the
natural father of the minor, the court shall direct that notice
be served on that person in [the] any manner [as
provided in MCR 5.920]reasonably calculated to provide
notice to the putative father, including publication if his
whereabouts remain unknown after diligent search. Any notice by
publication must not include the name of the putative father. If
the court finds that the identity of the natural father is
unknown, the court must direct that the unknown father be given
notice by publication. The notice [shall] must
include the following information:
(a) if known, the name of the child, the
name of the child's mother, and the date and place of birth of
the child;
(b)-(d) [Formerly (a)-(c), redesignated, but
otherwise unchanged.]
(2) After notice to the putative father as provided in
subrule [(D)](C)(1), the court may conduct a
hearing and determine that[:]
(a) the putative father has been
[personally served or] served in [some
other] a manner [which] that
the court finds to be reasonably calculated to provide
notice to the putative father. If so, the court may
proceed in the absence of the putative father.
(b) a preponderance of the evidence establishes that
the putative father is the natural father of the minor and
justice requires that he be allowed 14 days to establish his
relationship according to MCR 5.903(A)[(4)](7)[;
provided that if the court decides the interests of justice so
require, it shall not be necessary for the mother of the minor to
join in an acknowledgment]. The court may extend the time
for good cause shown.
(c) there is probable cause to believe that another
identifiable person is the natural father of the minor. If so,
the court shall proceed with respect to the other person in
accord with subrule [(D)](C).
(d) after diligent inquiry, the identity of the
natural father cannot be determined. If so, the court may
proceed without further notice [or court-appointed] and
without appointing an attorney for the unidentified person.
(3) The court may find that the natural father waives all
rights to further notice, including the right to notice of
termination of parental rights, and the right to [legal
counsel] an attorney if:
(a)-(b) [Unchanged.]
(D) [Formerly (E), redesignated, but otherwise unchanged.]
Comment: In subrule (A), the provisions regarding persons to be
notified in delinquency proceedings are reorganized, and the
prosecuting attorney is added.
The changes in subrule (B) regarding child protective
proceedings are largely in terminology, consistent with other
proposed changes.
The provisions regarding notice to putative fathers in
subrule (C) are rewritten.
Rule 5.922 Pretrial Procedures in Delinquency and Child
Protection Proceedings
(A) Discovery.
(1) The following materials are discoverable as of right in
all proceedings provided they are requested no later than 21 days
before trial unless the interests of justice otherwise
dictate:
(a) all written or recorded statements and notes of
statements made by the juvenile or respondent [which]
that are in possession or control of petitioner or a law
enforcement agency, including oral statements if they have been
reduced to writing;
(b)-(c) [Unchanged.]
(d) a list of all [physical or tangible objects
which are] prospective [evidence] exhibits;
(e) a list of all physical or tangible
objects that are prospective evidence that are in the possession
or control of petitioner or a law enforcement agency;
[(e)](f) the results of all scientific,
medical, or other expert tests or experiments, including the
reports or findings of all experts, [which] that
are [prospective evidence in the matter] relevant to
the subject matter of the petition;
(g)-(h) [Formerly (f)-(g), redesignated, but
otherwise unchanged.]
(2) [Unchanged.]
(3) Depositions may only be taken as
authorized by the court.
(4) Failure to comply with subrules (1) and
(2) may result in such sanctions, as applicable, as set forth in
MCR 2.313.
(B) [Unchanged.]
(C) Motion Practice. Motion practice in juvenile court is
governed by MCR 2.119[, except that a motion to suppress
evidence must be filed at least 7 days before trial or, within
the court's discretion, at trial].
(D) [Unchanged.]
(E) Notice of Intent.
(1) Within 21 days after the parties have been
given notice of the date of trial, but no later than 7 days
before the trial date, the proponent must file written notice
with the court and serve all parties of the intent to:
(a) use a support person, including the
identity of the support person, the relationship to the witness,
and the anticipated location of the support person during the
hearing.
(b) request special arrangements for a
closed courtroom or for restricting the view of the
respondent/defendant from the witness or other special
arrangements allowed under law and ordered by the court.
(c) use a videotape deposition as
permitted by law.
(d) admit out-of-court hearsay
statements, including the identity of the persons to whom a
statement was made, the circumstances leading to the statement,
and the statement to be admitted.
(2) Within 7 days after receipt or notice, but
no later than 2 days before the trial date, the nonproponent
parties must provide written notice to the court of an intent to
offer rebuttal testimony or evidence in opposition to the above
and must include the identity of persons to be called.
(3) Notwithstanding the periods specified in
this rule, the court may order a shorter period if good cause is
shown.
Comment: Several changes are made in the discovery provisions.
In subrule (A)(1), the language regarding listing of
exhibits, tangible objects, and the results of tests or experiments is
modified.
New subrule (A)(3) expressly provides that depositions
may be taken only with court authorization.
New subrule (A)(4) provides that failure to comply with
discovery provisions subjects a party to MCR 2.313 sanctions.
In subrule (C), the special provision on the time for filing
motions to suppress is deleted.
A new subrule (E) is added requiring parties to give notice
of intent to request certain procedures, including use of a "support
person," special arrangements for a closed courtroom or restricted
view of a witness, use of a video-taped deposition, or admission of
hearsay. See MCL 712A.17b; MCR 5.972(C).
Rule 5.923 Miscellaneous [Hearing] Procedures
(A) [Unchanged.]
(B) Examination or Evaluation. The court may order that a minor
or parent, guardian, or legal custodian be examined or
evaluated by a physician, dentist, psychologist, or psychiatrist.
(C) Fingerprinting and Photographing. A juvenile must be
fingerprinted when required by law. The court may permit
fingerprinting or photographing or both of a minor [when the
minor is in court custody] concerning whom a petition has
been filed. Fingerprints and photographs must be placed in
the confidential files, capable of being located and destroyed on
court order.
(D) [Unchanged.]
(E) Electronic Equipment; Support Person. The court may allow
the use of closed-circuit television, speaker telephone, or other
similar electronic equipment to facilitate hearings or to protect
the parties. The court may allow the use of videotaped
statements and depositions, anatomical dolls, support persons,
and take other measures to protect the child witness as
authorized by, and enumerated in, [1987 PA 45,] MCL
712A.17b[; MSA 27.3178(598.17b)].
(F) Impartial Questioner. The court may appoint an impartial
[psychologist or psychiatrist] person to ask
questions of a child witness at a hearing as the court
directs.
(G) Adjournments. [At each stage of a child protective
proceeding, the court shall adhere to the time limits specified
in these rules.] Adjournments or continuances of trials or
hearings in child protective proceedings [shall]
should be granted only:
(1) [on written motion of a party filed no later than 14
days prior to the hearing, or] for good cause
(2) [on motion of the court for good cause, for a period
not to exceed 28 days,] after taking into
consideration the best interests of the child[.],
and
(3) for as short a period of time as
necessary.
Comment: Subrule (C) gives the court additional discretion to
require fingerprinting and photographing of a minor, as well as
specifically stating that fingerprinting must be done when required by
law.
Current MCR 5.923(F) allows the judge to appoint a
psychologist or psychiatrist to question a child witness. A proposed
amendment would allow anyone to be designated as such a questioner.
The adjournment provisions of subrule (G) are simplified,
giving the judge more flexibility, and deleting the motion requirement.
Rule 5.924 Information Furnished on Request By Court
Persons or agencies providing testimony, reports, or other
information, including otherwise confidential information,
records, or reports that are relevant and material to the
proceedings following authorization of a petition, [and
]at the request of the court, are immune from any subsequent
legal action with respect to furnishing the information to the
court.
Comment: The provision on immunity for persons providing
information to the court is modified to expressly encompass otherwise
confidential information.
Rule 5.925 Open Proceedings; Judgments and Orders; Records
Confidentiality; [Expungement] Destruction of Court
Files; Setting Aside Adjudications
(A) Open Proceedings.
(1) [Unchanged.]
(2) Closed Proceedings; Criteria. The court, on motion of
a party or a victim, may close the proceedings to the public
during the testimony of a child or during the testimony of the
victim to protect the welfare of either. In making such a
determination, the court shall consider the nature of the
proceedings, the age and maturity of the witness and the
preference of the witness, and the preference of a parent,
guardian, or legal custodian if the witness is a child, that
the proceedings be open or closed. The court may not close the
proceedings to the public during the testimony of the juvenile if
jurisdiction is requested under MCL 712A.2(a)(1)[].
(B) Record of Proceedings. A record of the proceedings on the
formal calendar must be made and preserved by stenographic
recording or by mechanical or electronic recording as provided by
statute or MCR 8.108. A plea of admission must be
recorded. Unless otherwise provided in this subchapter, a
record of other hearings may be made and preserved by a written
memorandum executed by the judge or referee setting forth
findings and procedures followed.
(C) Judgments and Orders. The form and signing of judgments are
governed by [subchapter 5.600] MCR 2.602(A)(1) and
(2). Judgments and orders may be served on a person by
first-class mail to the person's last known address.
(D) Public Access to Records; Confidential File.
(1) [Unchanged.]
(2) Confidential Files. Only persons who are found by the
court to have a legitimate interest may be allowed access to the
confidential files. In determining whether a person has a
legitimate interest, the court shall consider the nature of the
proceedings, the welfare and safety of the public, [and
]the interest of the minor, and any restriction imposed by
state or federal law.
(E) [Expunging] Destruction of Court Files
and Records. This subrule governs the destruction of court
files and records.
[(1)] [Definitions. When used in this subrule,
unless the context otherwise indicates:]
[(a)] ["expunge" means to obliterate or
destroy;]
[(b)] ["set aside" means to negate or
rescind.]
[(2)] [Court Files and Records.]
[(a)](1) [General] Effect. The court
may at any time for good cause [expunge] destroy
its own files and records pertaining to an offense by or against
a minor [other than an adjudicated offense described in
subrule (E)(3)(a) and (b)], except that the register of
actions must not be destroyed. Destruction of a file does
not negate, rescind, or set aside an adjudication.
[(b)](2) Delinquency Files and Records.
(a) The court for any reason may destroy
the files and records pertaining to a person's juvenile offenses,
subject to any limitations specified in the remainder of this
subrule.
[(a)](b) The court must [expunge]
destroy the diversion record of a juvenile within 28 days
after the juvenile becomes 17 years of age. [The court must
expunge the files and records pertaining to a person's juvenile
offenses, other than any adjudicated offense described in subrule
(E)(3)(a) and (b), when the person becomes 30 years of age.
]
(c) The court must destroy all files of
matters heard on the consent calendar within 28 days after the
juvenile becomes 17 years of age or after dismissal from court
supervision, whichever is later, unless the juvenile subsequently
comes within the jurisdiction of the court on the formal
calendar. If the case is transferred to the consent calendar and
a register of actions exists, the register of actions shall be
maintained as a nonpublic record.
(d) If the court destroys the files of
juvenile offenses heard on the formal calendar, it shall maintain
the following information: the register of actions, the nature of
the proceeding, the record of adjudication, the ultimate
disposition, and whether the juvenile was represented by an
attorney or waived representation.
[(c)](3) Child Protective Files and Records.
(a) The court, for any reason,
[shall] may [expunge] destroy child
protective proceeding files and records pertaining to [the
minor] a child, other than orders terminating parental
rights, 25 years after the jurisdiction over the
[last] child [in the family ]ends.
(b) All orders terminating parental
rights to a child must be kept as a permanent record of the
court.
[(3)](F) Setting Aside Adjudications.
[(a)](1) Life Offenses and Criminal Traffic
Violations. The court may not set aside an adjudication of an
offense [which ]that if committed by an adult would
be a felony for which the maximum punishment is life
imprisonment, or an offense, which if committed by an adult would
be a criminal traffic violation.
[(b)](2) [Redesignated, but otherwise unchanged.]
[(c)](3) On written request, the court may set
aside the adjudication of nonreportable juvenile offenses that
are not criminal traffic violations for good cause shown. Before
setting aside any such adjudication, the prosecuting attorney
must be given 14 days to object in writing. The court must
consider any objection by the prosecuting attorney in determining
whether to set aside any such adjudication. [Upon the
entry of an order setting aside an adjudication, the court shall:
] [(i)] [send a copy of the order to the
Central Records Division of the Department of State Police and to
the law enforcement agency involved in the apprehension of the
juvenile; and]
[(ii)] [expunge its own files and records
pertaining to the offense by the juvenile.]
(4) [Unchanged.]
[(F)](G) Access to Juvenile Offense Record of
Convicted Adults. When the juvenile offense record of an adult
convicted of a crime is made available to the appropriate agency,
as provided in MCL 791.228(1)[; MSA 28.2298(1)], the
record must state whether, as to each adjudication, the juvenile
had [counsel] an attorney or voluntarily waived
[counsel] an attorney.
Comment: Subrule (B) would provide that a plea of admission must be
recorded.
Subrule (C) incorporates the circuit court rule regarding
signing of judgments and orders, MCR 2.602(A), in place of the current
provision, which refers to Subchapter 5.600. Judgments and orders may
be served by first-class mail to the person's last known address.
The provision on confidentiality of files in subrule (D)(2)
adds an explicit recognition of restrictions imposed by law.
Subrule (E) regarding destruction of files and records is
substantially rewritten.
The provisions regarding setting aside adjudications are
placed in a separate subrule (F). Subrule (F)(3) expressly requires
notice to the prosecuting attorney and consideration of any
objections by the prosecutor.
Rule 5.926 Transfer of Jurisdiction; Change of Venue
(A) [Unchanged.]
(B) Transfer to County of Residence. When a minor is brought
before a juvenile court in a county other than where the minor
resides, the court may transfer the case to the court in the
county of residence [prior to] before trial.
(1) If both parents reside in the same county,
or if the child resides in the county with a parent who has been
awarded legal custody, a guardian, a legal custodian, or with the
child's sole legal parent, that county will be presumed to be the
county of residence.
(2) In circumstances other than those
enumerated in subsection (1) of this section, the court shall
consider the following factors in determining the child's county
of residence:
(a) The county of residence of the parent
or parents, guardian, or legal custodian.
(b) Whether the child has ever lived in
the county, and, if so, how long.
(c) Whether either parent has moved to
another county since the inception of the case.
(d) Whether the child is subject to the
prior continuing jurisdiction of another court.
(e) Whether a court has entered an order
placing the child in the county for purposes of adoption.
(f) Whether the child has expressed an
intention to reside in the county.
(g) Any other factor the court considers
relevant.
(3) If the child has been placed in a county
by court order, or by placement by a public or private agency,
the child shall not be considered a resident of the county in
which he or she has been placed, unless the child has been placed
for purposes of adoption.
(C) Costs. When a juvenile court other than the court in a
county where the minor resides orders disposition, it will be
responsible for any costs incurred in connection with such order
unless:
(1) [Unchanged.]
(2) the minor is made a state ward pursuant to the youth
rehabilitation services act, [1974 PA 150,] MCL 803.301 et
seq.[;MSA 25.399(51) et seq.], and the county of residence
withholds consent to a transfer of the case.
(D) [Unchanged.]
(E) Bifurcated Proceeding. If the judge of the
transferring court and the judge of the receiving court agree,
the case may be bifurcated to permit adjudication in the
transferring court and disposition in the receiving court. The
case may be returned to the receiving court immediately after the
transferring court enters its order of adjudication.
[(E)](F) Transfer of Records. The court entering
an order of transfer or change of venue shall send the
original pleadings and documents, or certified copies of the
pleadings and documents, to the receiving court without charge.
Where the courts have agreed to bifurcate the proceedings the
court adjudicating the case shall send any supplemented pleadings
and record or certified copies of the supplemented pleadings and
record to the court making disposition of the case.
(G) [Formerly (F), redesignated, but otherwise
unchanged.]
Comment: Details are added to subrule (B) regarding the county to
which a case may be transferred.
New subrule (E) covers the subject of bifurcating
proceedings, allowing adjudication in one county and disposition in
another. See MCL 712A.2(d). Language regarding transfer of records
is included in subrule (F).
Rule 5.927 Prior Court Orders [Unchanged.]
Rule 5.928 Contempt of Court; Attendance; Contempt
[If a parent or guardian of a juvenile who is within the
court's jurisdiction under MCL 712A.2(a)(1) fails to attend a
hearing before a judge or referee after having received a summons
earlier in the proceedings and, subsequently, been given notice
of the hearing by the court, the parent or guardian may be held
in contempt of court and fined, although not jailed, as provided
in MCL 600.1715 unless the court had, before the hearing, excused
the parent's attendance or unless, at a hearing to consider the
issue of contempt, the parent or guardian shows good cause for
failure to attend the juvenile's hearing. The parent or guardian
is entitled to a due process hearing. The contempt shall be
considered criminal in nature. If the parent or guardian fails
to pay the fine within a reasonable time set by the court,
proceedings to enforce the fine may be either civil or criminal
in nature and may include jail as provided in MCL 600.1715
].[
]
(A) General. MCL 600.1701 controls contempt of
court proceedings, except as provided herein.
(B) Procedure. MCR 3.606 sets forth the procedure
for contempt of court alleged to have been committed outside the
immediate presence of the court.
(C) Contempt by Parent, Guardian, or Legal
Custodian. A parent, guardian, or legal custodian of a juvenile
who is within the court's jurisdiction and who fails to attend a
hearing, after having been given proper notice of the hearing,
may be held in contempt and fined, but not jailed. The procedure
for this type of contempt is set forth in MCR 3.606.
(D) Contempt by Juvenile. A juvenile under court
jurisdiction who is convicted of criminal contempt of court and
who was at least 17 years of age when the contempt was committed
may be sentenced to up to 30 days in the county jail as a
disposition for such contempt. Juveniles sentenced pursuant to
this rule need not be lodged separate and apart from adult
prisoners.
Comment: The contempt of court provisions are largely rewritten,
incorporating statutory (MCL 600.1701, et seq) and court rule (MCR
3.606) provisions. Separate provisions on contempt by the parent or
custodian (covered by the current rule) and the juvenile (new) are
included in subrules (C) and (D).
Rule 5.931 Initiating Delinquency Proceedings
(A) [Unchanged.]
(B) Content of Petition. A petition must contain the following
information[, if known]:
(1) the juvenile's name, address, and date of birth, if
known;
(2) the names and addresses, if known, of
(a) [Unchanged.]
(b) the [parent] guardian, legal
custodian, or person with whom the juvenile is in custody, if
other than a mother or father,
(c) the nearest known relative of the juvenile, if no
parent, guardian, or legal custodian can be found, and
(d) [Unchanged.]
(3) [the essential facts] sufficient
allegations [which] that, if true, would
constitute an offense by the juvenile;
(4) - (8) [Unchanged.]
(C) Citation or Appearance Ticket. A citation or appearance
ticket [which] that conforms to the
requirements for valid issuance to an adult may serve as a
petition [as] with respect to an offense other than
a [major] felony-level offense when presented to
the court. A citation or appearance ticket shall not serve as a
basis for pretrial detention.
(D) [Unchanged.]
Comment: Most of the changes in Rule 5.931 are in terminology.
Rule 5.932 Summary Initial Proceedings
(A) Preliminary Inquiry. When a petition is not accompanied by
a request for detention of the juvenile, the court[, at a
preliminary inquiry,] may conduct a preliminary inquiry.
Except in cases involving offenses enumerated in the Crime
Victim's Rights Act, MCL 780.786b(1), the preliminary inquiry
need not be conducted on the record. The court may, in the
interest of the juvenile and the public:
(1) [Unchanged.]
(2) refer the matter to a public or private agency
providing available services pursuant to the Juvenile Diversion
Act, [1988 PA 13,] MCL 722.821 et seq.; [MSA 25.243(51)
et seq.;]
(3) direct that the juvenile and parent, guardian, or
legal custodian be notified to appear for further informal
inquiry on the petition;
(4) proceed on the consent calendar as provided in subrule
[(B)](C); or
(5) place the matter on the formal calendar as provided in
subrule [(C)](D).
(B) Preliminary Procedures for Offenses Enumerated
in the Crime Victim's Rights Act. A case involving the alleged
commission of an offense enumerated in the Crime Victim's Rights
Act, MCL 780.786b(1), may only be removed from the adjudicative
process upon compliance with the procedures set forth in the
Crime Victim's Rights Act.
[(B)](C) Consent Calendar. If the court
receives a petition, citation, or appearance ticket and
it appears that protective and supportive action by the court
will serve the best interests of the juvenile and the public, the
court may[, on authorizing the filing of a petition or on
receipt of a citation or appearance ticket, and with consent of
the juvenile and parent,] proceed [informally to hear the
matter] on the consent calendar [in the manner provided in
this subrule] without authorizing a petition to be filed.
No case may be placed on the consent calendar unless the juvenile
and the parent, guardian, or legal custodian agrees to have the
case placed on the consent calendar. The court may transfer a
case from the formal calendar to the consent calendar at any time
before disposition.
(1) Notice. Formal notice is not required for cases
placed on the consent calendar except as required by Article 2 of
the Crime Victim's Rights Act, MCL 780.781 et seq.
(2) [Limited Disposition. If, after hearing, the court
finds the accusation is true, it may dispose of the matter
pursuant to MCL 712A.18, except that the juvenile shall not be
removed from the custody of the parent. If, after hearing, the
court finds that the juvenile has violated the Michigan Vehicle
Code, MCL 257.1 et seq., the court must fulfill the reporting
requirements imposed by MCL 712A.2b(d), 257.732, 9.2432.]
Adjudication. No formal plea may be entered in a consent
calendar case and the court must not enter an adjudication.
(3) [Transfer to Formal Calendar. Failure to appear or
violation of conditions of a disposition under subrule (B)(2) may
result in transfer of the case from the consent calendar to the
formal calendar on the charges contained in the authorized
petition. Upon transfer, the court shall inform the juvenile of
the rights, when applicable, as set forth in MCR 5.935(B)(4).
Statements made by the juvenile during the informal proceeding
pursuant to this subrule may not be used against the juvenile at
a trial on the formal calendar based upon the same charge.]
Conference. The court shall conduct a consent calendar
conference with the juvenile and parent, guardian, or legal
custodian at which the allegations shall be discussed. The
victim may, but need not, be present.
(4) Case Plan. If it appears to the court
that the juvenile has engaged in conduct that would subject the
juvenile to the jurisdiction of the juvenile court, the court may
issue a written consent calendar case plan.
(5) Custody. A consent calendar case plan
must not contain a provision removing the juvenile from the
custody of the parent, guardian, or legal custodian.
(6) Disposition. No order of disposition may
be entered by the court in a case placed on the consent
calendar.
(7) Closure. Upon successful completion by
the juvenile of the consent calendar case plan, the court shall
close the case and may destroy all records of the proceeding. No
report or abstract may be made to any other agency nor may the
court require the juvenile to be fingerprinted for a case
completed and closed on the consent calendar.
(8) Transfer to Formal Calendar. If it
appears to the court at any time that the proceeding on the
consent calendar is not in the best interest of either the
juvenile or the public, the court may, without hearing, transfer
the case from the consent calendar to the formal calendar on the
charges contained in the original petition, citation, or
appearance ticket. Statements made by the juvenile during the
proceeding on the consent calendar may not be used against the
juvenile at a trial on the formal calendar on the same
charge.
[(C)](D) Formal Calendar. The court may authorize
a petition to be filed and docketed on the formal calendar if it
appears to the court that formal court action is in the best
interest of the juvenile and the public. The court shall not
authorize an original petition [that requests the court to
take jurisdiction of a juvenile] alleging an offense
under MCL 712A.2(a)(1)[; MSA 27.3178(598.2(a)(1)], unless
the prosecuting attorney has approved submitting the petition to
the court. At any time before disposition, the court may
transfer the matter to the consent calendar.
Comment: Several provisions are modified in recognition of the
requirements of the Crime Victims Rights Act, MCL 780.751 et seq.
The provisions governing proceedings on the consent
calendar are substantially rewritten. See subrule (C).
Rule 5.933 Acquiring Physical Control of Juvenile
(A) Custody Without Court Order. When an officer apprehends a
juvenile for an offense without court order and does not warn and
release the juvenile, does not refer the juvenile to a diversion
program, or does not have authorization from the prosecuting
attorney to file a complaint and warrant charging the juvenile
with an offense as though an adult pursuant to MCL 764.1f, the
officer may:
(1) [Unchanged.]
(2) accept a written promise of the parent, guardian, or
legal custodian to bring the juvenile to court, if requested,
at a date and time to be set by the court, and release the
juvenile to the parent, guardian, or legal custodian; or
(3) take the juvenile into custody and submit a petition,
if:
(a) [Unchanged.]
(b) a parent, guardian, or legal custodian
cannot be located or [the parent] has
[refuses] refused to take custody of the juvenile.
(B) [Unchanged.]
(C) Notification of Court. The officer who apprehends a
juvenile must immediately contact the court when:
(1) [Unchanged.]
(2) the officer is unable to reach a parent, guardian,
or legal custodian who will appear promptly to accept custody
of the juvenile, or
(3) the parent, guardian, or legal custodian will
not agree to bring the juvenile to court as provided in subrule
(A)(2).
(D) Separate Custody of Juvenile. While awaiting arrival of the
parent, guardian, or legal custodian, appearance before
the court, or otherwise, the juvenile must be maintained
separately from adult prisoners to prevent any verbal, visual, or
physical contact with an adult prisoner.
Rule 5.934 Arranging Court Appearance; Detained Juvenile
(A) General. Unless the prosecuting attorney has authorized a
complaint and warrant charging the juvenile with an offense as
though an adult pursuant to MCL 764.1f[], when a juvenile
is apprehended and not released, the officer shall:
(1)-(2) [Unchanged.]
(3) notify the parent, guardian, or legal custodian
of the detaining of the juvenile, and of the need for the
presence of the parent, guardian, or legal custodian at
the preliminary hearing;
(4) [Unchanged.]
(B) Temporary Detention; Court Not Open.
(1) Grounds. A juvenile apprehended without court order
when the court is not open may be detained pending preliminary
hearing if the offense or the juvenile meets a circumstance set
forth in MCR 5.935(D)(2), or if no parent, guardian, or legal
custodian can be located.
(2) [Unchanged.]
Rule 5.935 Preliminary Hearing
(A) Time.
(1) Commencement; Preliminary Hearing. The preliminary
hearing must commence no later than 24 hours after the juvenile
has been taken into court custody, excluding Sundays and
holidays, as defined by MCR 8.110(D)(2), or the juvenile
must be released.
(2) General Adjournment. The court may adjourn the hearing
for up to 14 days:
(a) to secure the attendance of the juvenile's
parent[s], guardian, or legal custodian or
[witnesses] of a witness, or
(b) [Unchanged.]
(3) Special Adjournment; [Life Offense. This subrule
shall apply to a juvenile accused of an offense that allegedly
was committed between the 15th and 17th birthdate of the juvenile
and which, if committed by an adult, would constitute a life
offense as specifically listed in MCL 712A.2(a)(1) . On request
of a prosecuting attorney who has approved the submission of a
petition with the court, conditioned on the opportunity to
withdraw it within 5 days if the prosecuting attorney authorizes
the filing of a complaint and warrant with a magistrate, the
court shall comply with subrules (3)(a) through
(c).]Specified Juvenile Violation. This subrule shall
apply to a juvenile accused of an offense that allegedly was
committed between the juvenile's 14th and 17th birthdays and that
would constitute a specified juvenile violation as specifically
listed in MCL 712A.2(a)(1).
(a) On a request of a prosecuting
attorney who has approved the submission of a petition with the
court, conditioned on the opportunity to withdraw it within 5
days if the prosecuting attorney authorizes the filing of a
complaint and warrant with a magistrate, the court shall comply
with subrules (i) through (iii).
[(a)](i) [Redesignated, but otherwise
unchanged.]
[(b)](ii) The court, during the special
adjournment under subrule 3(a), must defer a decision [as
to] regarding whether to authorize the filing of the
petition.
[(c)](iii) [Redesignated, but
otherwise unchanged.][
]
(b) If, at the resumption of the preliminary
hearing following special adjournment, the prosecuting attorney
has not authorized the filing of a criminal complaint and warrant
on the charge with a magistrate concerning the juvenile, approval
of the petition by the prosecuting attorney shall no longer be
deemed conditional and the court shall proceed with the
preliminary hearing and decide whether to authorize the petition
to be filed.
(c) This rule shall not preclude the
prosecuting attorney from moving for a waiver of jurisdiction
over the juvenile under MCR 5.950.
(B) Procedure.
(1)-(4) [Unchanged.]
(5) If the charge is a violation of MCL 712A.2(a)(2)-
[(6)](4) or (d)[; MSA 27.3178(598.2)(a)(2)-(6)
or (d)], the court [shall] must inquire if the
juvenile or the parent is a registered member of any American
Indian tribe or band, or if the juvenile is eligible for such
membership. If so, the court must determine and notify
the tribe or band and follow the procedures set forth in MCR
5.980.
(6) [Unchanged.]
(7) Unless the preliminary hearing is adjourned, the court
must decide whether to authorize the petition to be filed
pursuant to MCR 5.932(C). If it authorizes the filing of the
petition, the court must:
(a) [release the juvenile pursuant to subrule (C),
or ]determine if fingerprints must be taken as provided by
MCR 5.936; and
(b) [order detention of the juvenile as provided in
subrule (D); and] determine if conditions warrant
detention pursuant to subrule (C); or
(c) [determine if fingerprints must be taken as
provided by MCR 5.936]release the juvenile.
(8) A juvenile may be detained pending the
completion of the preliminary hearing if it appears to the court
that one of the circumstances in (C)(1)(b) is present.
[(D)](C) Pretrial Detention.
(1) Conditions for Detention. A juvenile
[shall not be removed from the parent pending trial or further
court order unless:] may be ordered detained or continued
in detention as the court designates provided the following
conditions are met:
[(1)](a) the court finds probable
cause[ exists] to believe the juvenile committed
[an] the offense[,]; and[
] [(2)](b) [the court finds] one
or more of the following circumstances [to be] are
present:[
]
[(a)](i) the offense alleged [to
have been committed by the juvenile] is so serious that
release would endanger the public safety;
[(b)](ii) [Redesignated but otherwise
unchanged.]
[(i)-(iii)](A)-(C) [Redesignated, but
otherwise unchanged.]
[(c)](iii) there is a substantial
likelihood that if the juvenile is released to the parent,
guardian, or legal custodian, with or without conditions, the
juvenile will fail to appear at the next court proceeding;
[(d)](iv) [pretrial detention is
otherwise specifically authorized by law] the home
conditions of the juvenile make detention necessary;
(v) the juvenile has run away from
home;
(vi) the juvenile has failed to
remain in a detention facility or nonsecure facility or placement
in violation of a valid court order; or
(vii) pretrial detention is otherwise
specifically authorized by law.
[(3)](2) Waiver. A juvenile [in custody ]may
waive the probable cause phase of a detention determination only
if the juvenile is represented by an attorney.
[(4)](3) Evidence; Findings. The juvenile may
contest the sufficiency of evidence [to support detention]
by cross-examination of witnesses, presentation of defense
witnesses, or by other evidence. The court shall permit the use
of subpoena power to secure attendance of defense witnesses.
[A finding of probable cause under subrule (D)(1) may be based
on hearsay evidence which possesses adequate guarantees of
trustworthiness. ]The Michigan Rules of Evidence do not
apply, other than those with respect to privileges. The
findings of the court to support detention of the juvenile shall
be in writing or placed on the record.
[(5])(4) Type of Detention. The detained
juvenile must be placed in the least restrictive environment that
will meet the needs of the juvenile and the public, and that will
conform to the statutory requirements of [1987 PA 72,
]MCL 712A.15, 712A.16[; MSA 27.3178(598.15),
27.3178(598.16)].
[(C)](D) Release of Juvenile with
Conditions. If detention may be ordered pursuant to
subrule (C), [T]the court may, in its
discretion, release a juvenile to a parent, guardian, or
legal custodian pending the resumption of the preliminary
hearing, [pending] the trial, or until further
order [without conditions, or may release a juvenile on the
basis of any lawful conditions]. The release may be
ordered on the basis of any lawful condition, including the
requirement that bail be posted in any manner determined by
the court.
(1) [Factors. A juvenile may be released and conditions
set after the court considers available information on] If
the court determines that release with conditions will reasonably
ensure the appearance of the juvenile as required and will
reasonably ensure the safety of the public, the court may order
the release of the juvenile on the conditions or combination of
conditions that the court determines to be appropriate,
including, but not limited to:
(a) [family ties and relationships,] that
the juvenile will not commit any offense while released,
(b) [the juvenile's prior delinquency record,]
that the juvenile will not use alcohol, any controlled
substance or tobacco product,
(c) [the juvenile's record of appearance or
nonappearance at court proceedings,] that the juvenile
will participate in a substance abuse assessment, testing, or
treatment program,
(d) [the violent nature of the alleged
offense,] that the juvenile will participate in a
treatment program for a physical or mental condition,
(e) [the juvenile's prior history of committing
acts that resulted in bodily injury to others,] that the
juvenile will comply with restrictions on personal associations
or place or residence,
(f) [the juvenile's character and mental
condition,] that the juvenile will comply with a specified
curfew,
(g) [the court's ability to supervise the juvenile
if placed with a parent or relative, and] that the
juvenile will maintain appropriate behavior and attendance at an
educational program, and
(h) [any other factor indicating the juvenile's
ties to the community, the risk of nonappearance, and the danger
to the juvenile or the public if the juvenile is released.]
that the juvenile's driver's license or passport will be
surrendered.
(2) Violation of Conditions of Release. If a
juvenile is alleged to have violated the conditions set by the
court, the court may order the juvenile apprehended and detained
immediately. The court may then modify the conditions or revoke
the juvenile's release status after providing the juvenile an
opportunity to be heard on the issue of the violation of
conditions of release.
[(2)](3) [Cash or Surety Bond.] Bail. In
addition to any other conditions of release, the court may
require a parent, guardian, or legal custodian to post
bail. The right to bail exists only if the juvenile is
detained under MCR 5.935(C)(1)(b)(iii), (iv), (v), (vi), or
(vii). There is no right to bail under MCR 5.935(C)(1)(b)(i) or
(ii).
(a) Cash or Surety Bond. The court may
require a parent, guardian, or legal custodian to post a
surety bond or cash in the full amount of the bail, at the
option of the parent['s], guardian, or legal
custodian[ option]. A surety bond must be written
by a person or company licensed to write surety bonds and who is
approved by the court. Except as otherwise provided by this
rule, MCR 3.604 applies to bonds posted under this rule.
[(3)](b) Option to Deposit Cash or 10
Percent of Bail. Unless the court requires a surety bond or cash
in the full amount of the bail as provided in subrule
[(C)(2)](D)(3)(a), the court shall advise the
parent, guardian, or legal custodian of the option to
satisfy the monetary requirement of bail by:
[(a)](i) posting either cash
or a surety bond in the full amount of bail set by the
court or a surety bond written by a person or company licensed to
write surety bonds, or
[(b)](ii) [Redesignated, but otherwise
unchanged.]
[(4)] [Findings. The court must state the
reasons for its decision to grant or deny release on the record
or in a written memorandum. The court's statement need not
include a finding on each of the enumerated factors.]
(c) Factors. In determining bail, the
court should consider, but need not make findings concerning:
(i) family ties and
relationships,
(ii) the juvenile's prior
delinquency record,
(iii) the juvenile's record of
appearance or nonappearance at court proceedings,
(iv) the violent nature of the
alleged offense,
(v) the juvenile's prior history of
committing acts that resulted in bodily injury to others,
(vi) the juvenile's character and
mental condition,
(vii) the court's ability to supervise
the juvenile if placed with a parent, guardian or legal custodian
or relative, and
(viii) any other factor indicating the
juvenile's ties to the community, the risk of nonappearance, and
the danger to the juvenile or the public if the juvenile is
released.[
]
[(5)](d) Revocation or Modification by
Court. The court may modify or revoke the bail for good
cause after providing the parties notice and an opportunity to be
heard.
[(6)](e) Return of [Bail
]Money. If the conditions of bail are met, the court
shall discharge any surety.
[(a)](i) If disposition imposes
reimbursement or costs, the bail money posted by the parent,
guardian, or legal custodian must first be applied to the
amount of reimbursement and costs, and the balance, if any,
returned.
[(b)](ii) [Redesignated, but otherwise
unchanged.]
[(7)](f) Forfeiture. If the conditions of
bail are not met, the court may issue [a writ] an
order for the apprehension of the juvenile and enter an order
declaring the bail money, if any, forfeited.
[(a)](i) The court must immediately
mail notice of the forfeiture order to the parent, guardian,
or legal custodian at the last known address and to any
surety.
[(b)](ii) [Redesignated, but otherwise
unchanged.]
Comment: The changes in subrules (A) and (B) are in terminology and
organization.
The provisions on pretrial detention and release are
substantially rewritten. See subrules (C) and (D). A new list of
conditions that may be imposed on release are included in
subrule (D)(1).
Rule 5.936 Fingerprinting
(A) General. The court must permit fingerprinting of a juvenile
pursuant to MCL 712A.11, 712A.18[], and as provided in
this rule.[ Notice of fingerprinting retained by the court is
confidential.]
(B)-(D) [Unchanged.]
Rule 5.939 Case Transferred From District Court Pursuant to
Subchapter 6.900
(A) [Unchanged.]
(B) Probable Cause Finding of Magistrate. The court may use the
probable cause finding of the magistrate made at the preliminary
examination to satisfy the requisite probable cause in MCR
5.935[(D)](C).
Rule 5.941 Pleas of Admission or No Contest
(A) [Unchanged.]
(B) [Qualified] Conditional Pleas. The court may
accept a plea of admission or of no contest conditioned on
preservation of an issue for appellate review.
(C) Plea Procedure. Before accepting a plea of admission or of
no contest, the court must personally address the juvenile and
must comply with subrules (1)-(4).
(1)-(3) [Unchanged.]
(4) [Parental] Support for Plea. The court shall
inquire of the parent, guardian, legal custodian, or
guardian ad litem, if present, whether [the parent or
guardian ad litem knows of] there is any reason why
the court should not accept the plea tendered by the juvenile.
[Agreement or objection by the parent or guardian ad litem to
a plea of admission or of no contest by a juvenile must be placed
on the record if the parent or guardian ad litem is present.
]
(D) [Unchanged.]
Comment: Most of the changes are in terminology. The language
requiring that the parent's or guardian ad litem's agreement or
objection to a plea be on the record is deleted. Under the proposed
amendment of Rule 5.925, all pleas of admission must be recorded.
Rule 5.942 Trial
(A) [Unchanged.]
(B) Preliminary Matters.
(1) The court shall determine whether all parties are
present.
(a) The juvenile has the right to be present at the
trial along with an attorney, parent[s],
guardian, legal custodian, or guardian ad litem, [and
attorney ]if any.
(b) The court may proceed in the absence of a
parent, guardian, or legal custodian properly noticed to
appear.
(c) The victim has the right to be present at trial as
provided by MCL 780.789 [751 et seq.,; MSA 28.1287(751)
et seq., as added by 1988 PA 22].
(2) [Unchanged.]
(3) The court shall inform the juvenile of the right to the
assistance of an attorney pursuant to MCR 5.915 unless [legal
counsel] an attorney appears with the juvenile. If
the juvenile requests to proceed without the assistance of
[counsel] an attorney, the court [must]
shall advise the juvenile of the dangers and disadvantages
of self-representation and make sure the juvenile is literate
and competent to conduct the defense [and literate].
(C) [Unchanged.]
(D) Verdict. In a delinquency proceeding, the
verdict must be guilty or not guilty of either the offense
charged or a lesser-included offense.
Comment: Most of the changes are in terminology. new subrule (D)
would expressly provide that in delinquency cases, the verdict may be
on the charged offense or a lesser included one.
Rule 5.943 Dispositional [Phase] Hearing
(A) General. A dispositional hearing is conducted to determine
what measures the court will take [concerning ]with
respect to [the] a juvenile [who is]
properly found within [the] its jurisdiction [of
the court], and, when applicable, against any [adult]
other person, once the court has determined following trial or
plea that the juvenile is guilty of an offense.
(B) [Unchanged.]
(C) Evidence.
(1) The Michigan Rules of Evidence do not apply, other
than those with respect to privileges. [At]
In the dispositional [hearing ]phase all
relevant and material evidence, including oral and written
reports, may be received by the court and may be relied upon to
the extent of its probative value, even though such evidence may
not be admissible at trial.
(2)-(3) [Unchanged.]
(D) Presence of Juvenile and Victim.
(1) [Unchanged.]
(2) The victim has the right to be present at the
dispositional hearing and to make an impact statement as
provided by MCL 780.751 et seq.[; MSA 28.1287(751) et seq., as
added by 1988 PA 22.]
(E) Dispositions.
(1) [Unchanged.]
(2) In making second and subsequent
dispositions in delinquency cases, the court must consider
imposing graduated sanctions as defined in MCR 5.903(B)(2).
(3)-(4) [Formerly (2)-(3), redesignated, but otherwise
unchanged.]
(5) If the court enters an order pursuant to
the Crime Victim's Rights Act, MCL 780.751, et seq., the court
shall only order the payment of one assessment at any
dispositional hearing, regardless of the number of offenses.
(6) The court shall prepare and forward to the
Secretary of State an abstract of its findings at such times and
for such offenses as are required by law.
(7) [Formerly (4), redesignated, but otherwise
unchanged.]
Comment: Subrule (A) is modified to make clear that a dispositional
hearing takes place only after a finding that the juvenile is guilty of
an offense.
Subrule (C)(1) would be amended to specify that the rules
of evidence do not apply in dispositional phase proceedings, except
those with respect to privileges.
The amendment of subrule (D) would recognize the right
of the victim to make an impact statement.
New subrule (E)(2) would direct the consideration of
graduated sanctions in second and subsequent dispositions.
New subrule (E)(5) provides that only one assessment
under the Crime Victims Rights Act is to be made regardless of the
number of offenses.
New subrule (E)(6) specifically requires forwarding an
abstract of findings to the secretary of state as required by law.
Rule 5.944[] [Supplemental Dispositions; Dispositional
Rehearings] Probation Violation
Comment: The provisions of current MCR 5.944 are split into two
rules, with new Rule 5.944 covering probation violation, and new 5.945
covering dispositional review.
The provisions of current MCR 5.944(B)-(E) are relocated
to Rule 5.945.
[](A) [Probation Violation Hearings] Petition;
Temporary Custody.
[(1)] [When it is alleged that a juvenile has
violated a condition of probation the court may:]
[(a)] [authorize preparation and filing of
a supplemental petition; and]
[(b)] [direct that the juvenile be notified
pursuant to MCR 5.920 to appear for a hearing on the alleged
violation, or order that the juvenile be apprehended and brought
to the court for a preliminary hearing as provided in MCR
5.935.]
[(2)] [At a preliminary appearance on the
alleged violation or in the notice to appear for the probation
violation hearing, the juvenile shall be provided a copy of the
supplemental petition and advised of the right:]
[(a)] [to have witnesses against the
juvenile appear at a hearing and to question the witnesses;]
[(b)] [to have the court order any
witnesses for the juvenile's defense to appear at the
hearing;]
[(c)] [to remain silent and to not have the
juvenile's silence used against the juvenile;]
[(d)] [to an attorney as provided in MCR
5.915.]
[(3)] [The juvenile may admit the
violation.]
[(4)] [If the juvenile denies the allegation,
the court shall schedule a probation violation hearing within 42
days after the filing of the supplemental petition.]
[(5)] [The juvenile shall have the right to
appear, present evidence, and cross- examine witnesses at the
hearing. The standard of proof for establishing the violation of
probation is a preponderance of the evidence. The rules of
evidence, other than those with respect to privileges, do not
apply. There is no right to a jury.]
[(6)] [If the court finds that a violation has
occurred, the court may make a supplemental disposition including
revoking probation and committing the juvenile.]
(1) Upon receipt of a sworn supplemental
petition alleging that the juvenile has violated any condition of
probation, the court may:
(a) direct that the juvenile be notified
pursuant to MCR 5.920 to appear for a hearing on the alleged
violation, which notice must include a copy of the probation
violation petition and a notice of the juvenile's rights as
provided in subrule (C)(1); or
(b) order that the juvenile be
apprehended and brought to the court for a detention hearing,
which must be commenced within 24 hours after the juvenile has
been taken into court custody, excluding Sundays and holidays as
defined in MCR 8.110 (D)(2).
(2) When a juvenile is apprehended pursuant to
court order as provided in subrule (A)(1)(b), the officer
must:
(a) forthwith take the juvenile
(i) to the court for a detention
hearing, or
(ii) to the place designated by the
court pending the scheduling of a detention hearing; and
(b) notify the custodial parent,
guardian, or legal custodian that the juvenile has been taken
into custody, of the time and place of the detention hearing, if
known, and of the need for the presence of the parent, guardian,
or legal custodian at the detention hearing.
(B) Detention Hearing; Procedure. At the detention
hearing:
(1) the court must determine whether a parent,
guardian, or legal custodian has been notified and is present.
If a parent, guardian, or legal custodian has been notified but
fails to appear, the detention hearing may be conducted without a
parent, guardian, or legal custodian if a guardian ad litem or
attorney appears with the juvenile.
(2) the court must provide the juvenile with a
copy of the petition alleging probation violation.
(3) the court must read the petition to the
juvenile, unless the attorney or juvenile waives the reading.
(4) the court must advise the juvenile of the
juvenile's rights as provided in subrule (C)(1) and of the
possible dispositions.
(5) the juvenile must be allowed an
opportunity to deny or otherwise plead to the probation
violation. If the juvenile wishes to admit the probation
violation or plead no contest, the court must comply with subrule
(D) before accepting the plea.
(a) If the juvenile admits the probation
violation, or pleads no contest and the court accepts the plea,
the court may modify the existing order of probation or may order
any disposition available under MCL 712A.18 or MCL 712A.18a.
(b) If the juvenile denies the probation
violation or remains silent, the court must schedule a probation
violation hearing, which must commence within 42 days. The court
may order the juvenile detained without bond pending the
probation violation hearing if there is probable cause to believe
the juvenile violated probation. If the hearing is not commenced
within 42 days and the delay in commencing the hearing is not
attributable to the juvenile, the juvenile must be released
pending hearing without requiring that bail be posted.
(C) Probation Violation Hearing.
(1) At the probation violation hearing, the
juvenile has the following rights:
(a) the right to be present at the
hearing,
(b) the right to an attorney pursuant to
MCR 5.915(A),
(c) the right to have the petitioner
prove the probation violation by a preponderance of the
evidence,
(d) the right to have the court order any
witnesses to appear at the hearing,
(e) the right to question witnesses
against the juvenile,
(f) the right to remain silent and not
have the juvenile's silence used against the juvenile, and
(g) the right to testify at the hearing,
if the juvenile wants to testify.
(2) At the probation violation hearing, the
Michigan Rules of Evidence do not apply, other than those with
respect to privileges. There is no right to a jury.
(3) If it is alleged that the juvenile
violated probation by having been found guilty, pursuant to MCR
5.941 or MCR 5.942, of committing an offense, the juvenile may
then be found guilty of violation of probation pursuant to this
rule.
[
](D) Pleas of Admission or No Contest. If the
juvenile wishes to admit the probation violation or plead no
contest, the court must, before accepting the plea:
(1) tell the juvenile the nature of the
alleged probation violation,
(2) tell the juvenile the possible
dispositions,
(3) tell the juvenile that if the plea is
accepted, the juvenile will not have a contested hearing of any
kind, so the juvenile would give up the rights that the juvenile
would have at a contested hearing, including the rights as
provided in subrule (C)(1),
(4) confirm any plea agreement on the
record,
(5) ask the juvenile if any promises have been
made beyond those in the plea agreement and whether anyone has
threatened the juvenile,
(6) establish support for a finding that the
juvenile violated the juvenile's probation either:
(a) by questioning the juvenile or by
other means when the plea is a plea of admission, or
(b) by means other than questioning the
juvenile when the juvenile pleads no contest. The court shall
also state why a plea of no contest is appropriate.
(7) inquire of the parent, guardian, legal
custodian, or guardian ad litem whether there is any reason why
the court should not accept the juvenile's plea. Agreement or
objection by the parent, guardian, legal custodian, or guardian
ad litem to a plea of admission or of no contest by a juvenile
shall be placed on the record if the parent, guardian, legal
custodian, or guardian ad litem is present, and
(8) determine that the plea is accurately,
voluntarily and understandingly made.
(E) Disposition of Probation Violation;
Reporting.
(1) If, after hearing, the court finds that a
violation of probation has occurred, the court may modify the
existing order of probation or order any disposition available
under MCL 712A.18 or MCL 712A.18a.
(2) If, after hearing, the court finds that a
violation of probation occurred on the basis of the juvenile
having committed an offense, such finding must be recorded as a
violation of probation only and not a finding that the juvenile
is guilty of the underlying offense. Such finding must not be
reported to the State Police or the Secretary of State as an
adjudication or a disposition.
Comment: The probation violation provisions are much more
detailed than those found in current MCR 5.944(A).
Subrule (A)(2) covers notice to the juvenile's parents after
apprehension of the juvenile under a court order.
Subrule (B) sets up procedures for a hearing regarding
detention pending disposition of the violation charges.
Subrule (C) adds details regarding the rights of the
juvenile at the probation violation hearing and other procedural
provisions, which are briefly stated in current MCR 5.944(A)(5).
new subrule (D) has detailed provisions regarding pleas of
admission and no contest, which include the sort of advice that is given
in other plea proceedings.
Rule 5.945 Dispositional Review
Comment: Changes are shown from the language of current
MCR 5.944(B)-(E).
[(C)] [Progress Review of Court-Committed
Juveniles.]
[(1)] [General. The court shall review the
progress of a juvenile it has committed to a facility or
institution under MCL 712A.18(1)(e) when the court has retained
jurisdiction over the juvenile as required by law.]
[(2)] [Time. The court must conduct the
progress review no later than 182 days after entry of the order
of commitment, and semiannually thereafter, so long as the
juvenile remains in placement.]
[(3)] [Review Report. The court shall examine
the report prepared by the department of social services covering
placement, services being provided the juvenile, and the progress
of the juvenile.]
[(4)] [No Restrictive Placement Change Without
Hearing. If not specified in its order, the court may not order
a more physically restrictive level of placement of the juvenile
or order more restrictive treatment absent a hearing as provided
in subrule (D)(4).]
[(E)] [Dispositional Review Hearings. An order
entered in any delinquency case may be supplemented or amended in
accordance with MCL 712A.18, as long as the juvenile remains
under the jurisdiction of the court. If not specified in the
order of the court, the juvenile shall not be moved to a more
physically restrictive level of placement absent a hearing and
further order of the court, or absent the consent of the
juvenile. If the juvenile is in foster care, the court shall
hold a dispositional review hearing no later than every 182 days
as provided in MCL 712A.19(2).]
(A) Dispositional Review Hearings.
(1) Generally. The court must conduct
periodic hearings to review the dispositional orders in
delinquency cases. Such review hearings must be conducted at
intervals designated by the court, or may be requested at any
time by a party, including the probation officer or community
service worker. The victim has a right to make a statement at
the hearing or submit a written statement for use at the hearing,
or both. At a disposition review hearing, the court may modify
or amend the dispositional order or treatment plan to include any
disposition permitted by MCL 712A.18 and MCL 712A.18a or as
otherwise permitted by law. The Michigan Rules of Evidence,
other than those with respect to privileges, do not apply.
(2) Required Review Hearings.
(a) If the juvenile is placed in out-of-
home care, the court must hold dispositional review hearings no
later than every 182 days after the initial disposition, as
provided in MCL 712A.19(2).
(b) A review hearing is required before a
juvenile is moved to a more physically restrictive type of
placement, unless the court in its dispositional order has
provided for a more physically restrictive type of placement. A
review hearing is not required if the juvenile and a parent
consent to the new placement in writing filed with the court. A
juvenile, who has been ordered placed in a juvenile facility, can
be released only with the approval of the court.
[(D)](B) [Commitment Review] Hearing to
Extend Jurisdiction.
(1) [General. The objectives of the commitment review
hearing include deciding whether to release a court-committed
juvenile, whether to continue jurisdiction over the court-
committed juvenile until age 21 pursuant to MCL 712A.18d and to
give the juvenile an opportunity to be heard before moving a
juvenile to a more physically restrictive level of placement or
ordering more restrictive treatment.]
When Required. When a juvenile is committed under
MCL 712A.18(1)(e) for a reportable offense, other than MCR
5.903(B)(6)(h), (n), and (o), and the juvenile remains under
court jurisdiction after the juvenile's eighteenth birthday, and
it appears that the juvenile has not been rehabilitated or
presents a serious risk to public safety, the court must conduct
a hearing to determine whether or not to extend the court's
jurisdiction to age 21, pursuant to MCL 712A.18d.
[(2)] [Notice. Notice of the hearing must be
given to the prosecuting attorney, the agency or the
superintendent of the facility to which the juvenile has been
committed, the juvenile, and the parent of the juvenile if the
parent's address or whereabouts are known, at least 14 days prior
to the hearing.]
[(3)] [Required Commitment Review Hearing. When
a juvenile has been placed in a facility or institution under MCL
712A.18(1)(e) for having committed, after October 1, 1988, a
reportable juvenile offense other than (h), (n) and (o) of MCR
5.903(B)(6), the court shall schedule a commitment review hearing
to be held within 42 days before the juvenile attains age 19
unless adjourned for good cause.]
[(a)] [Notice. Notice of the required
hearing must clearly indicate that the court may extend
jurisdiction over the juvenile until age 21 years. The notice
shall include advice to the juvenile and the parent of the
juvenile that the juvenile has the right to an attorney.]
(a) Time of Hearing. The court must
schedule and hold, unless adjourned for good cause, a commitment
review hearing as near as possible to, but before, the juvenile's
nineteenth birthday.
(b) Notice of Hearing. Notice of the
hearing must be given to the prosecuting attorney, the agency or
the superintendent of the institution or facility to which the
juvenile has been committed, the juvenile, and, if the address or
whereabouts are known, the parent, guardian or legal custodian of
the juvenile, at least 14 days before the hearing. The notice
must clearly indicate that the court may extend jurisdiction over
the juvenile until the juvenile attains the age of 21 years and
must include advice to the juvenile and the parent, guardian, or
legal custodian of the juvenile that the juvenile has the right
to an attorney.
(2)[(b)] Appointment of [an]
Attorney. The court must appoint an attorney to represent the
juvenile at the required hearing unless an attorney
[legal counsel] has been retained.
(3) Evidence; Commitment Report. The Michigan
Rules of Evidence do not apply, other than those with respect to
privileges. The institution, agency, or facility must prepare a
report for use at the hearing to extend jurisdiction. The report
must contain information required by MCL 803.225. The court must
consider this information in determining whether to extend
jurisdiction beyond age 19.
(4) Burden of Proof; Findings. The court must
extend jurisdiction over the juvenile until age 21, unless the
juvenile proves by a preponderance of the evidence that the
juvenile has been rehabilitated and that the juvenile does not
present a serious risk to public safety.
[(c)] [Burden of Proof; Evidence; Criteria. The
juvenile has the burden of proving by a preponderance of the
evidence that the juvenile has been rehabilitated and that the
juvenile does not present a serious risk to public safety.
Evidence shall be received under the rules applicable to a
dispositional hearing pursuant to MCR 5.943(C).] In making
the determination, the court must consider the following factors:
[(i)] (a) the extent and nature of the
juvenile's participation in education, counseling, or work
programs;
[(ii)] (b) the juvenile's willingness to
accept responsibility for prior behavior;
[(iii)] (c) the juvenile's behavior in the
current placement;
[(iv)] (d) the juvenile's prior record,
character, and physical and mental maturity;
[(v)] (e) the juvenile's potential for
violent conduct as demonstrated by prior behavior;
[(vi)] (f) the recommendations of the
institution, agency, or facility charged with the juvenile's care
for the juvenile's release or continued custody; and
[(vii)] (g) any other information the
prosecuting attorney or the juvenile may submit.
[(4)] [Other Commitment Review Hearings. The
court, on motion of the institution, agency, or facility to which
the juvenile is committed, may at any time discharge a juvenile
upon a showing by a preponderance of evidence that the juvenile
has been rehabilitated and is not a risk to public safety. The
notice provisions and criteria in subrule (3) shall apply.
Evidence shall be received under the same rules as applicable to
a Dispositional hearing pursuant to MCR 5.943(C). The court must
appoint an attorney to represent the juvenile at the hearing
unless legal counsel has been retained. The court, upon notice
and opportunity to be heard, may order the juvenile moved to a
more physically restrictive level of placement or may order more
restrictive treatment.]
(C) Review of Extended Jurisdiction Cases.
(1) Out-of-Home Care. If the juvenile is
placed outside the home, the court must hold a dispositional
review hearing no later than every 182 days after the hearing to
extend jurisdiction.
(2) Periodic Review. If the institution,
agency, or facility to which the juvenile was committed, believes
that the juvenile has been rehabilitated and that the juvenile
does not present a serious risk to public safety, the
institution, agency or facility may petition the court to conduct
a review hearing at any time before the juvenile becomes 21 years
of age.
[(B)](D) Juvenile on Conditional Release. The
procedures set forth in [subrule (A)] MCR 5.944
apply to juveniles committed under MCL 712A.18 who have allegedly
violated a condition of release after being returned to the
community on release from a public institution. The court need
not conduct such a hearing when there will be an administrative
hearing by the agency to which the juvenile is committed provided
the court has not retained jurisdiction.
Comment: Rule 5.945 has the provisions regarding post-disposition
reviews and hearings now found in MCR 5.944, with additional details.
Subrule (A) has general provisions directing review
hearings in all delinquency cases. Specific time limts are set in subrule
(A)(2) for cases in which the juvenile is in out-of-home care and before
the juvenile is moved to a more restrictive environment.
Subrule (B) deals with extension of the court's
jurisdiction after a juvenile's 18th birthday, as permitted by MCL
712A.18d. The provision has more detail than current MCR 5.944(D)(3)
on matters such as the time and notice of hearing, appointment of
counsel, rules of evidence, and burden of proof, as well as the factors
that are to be considered in making the decision. See MCL 712A.18d(1).
The burden of proof is on the juvenile to prove both rehabilitation and
that the juvenile does not present a serious risk to public safety. See
MCL 712A.18d(1).
Subrule (C) covers review hearings in extended
jurisdiction cases.
Rule 5.946 Postdispositional Secure Detention Pending
Return to Placement
(A) If a juvenile who has been found to have
committed an offense []that would be a misdemeanor or a
felony if committed by an adult has been placed out of home by
court order or by the Family Independence Agency, and the
juvenile leaves such placement without authority, upon being
apprehended the juvenile may be detained without the right to
bail. Any detention must be authorized by the court.
(B) If a juvenile is placed in secure detention
pursuant to this rule and no new petition is filed []that
would require a preliminary hearing pursuant to MCR 5.935 or no
probation violation petition is filed, the court must conduct a
detention hearing within 48 hours after the juvenile has been
taken into custody, excluding Sundays and holidays as defined by
MCR 8.110(D)(2).
(C) At the detention hearing the court must:
(1) assure that the custodial parent,
guardian, or legal custodian has been notified, if that person's
whereabouts are known,
(2) advise the juvenile of the right to be
represented by an attorney,
(3) determine whether the juvenile should be
released or should continue to be detained.
Comment: Rule 5.946 is a new provision dealing with a situation in
which a juvenile has been placed out of home by court order or by the
Family Independence Agency for having committed an offense that
would be a crime if committed by an adult.
Subrule (A) provides that if the juvenile leaves that
detention without authority, on apprehension the juvenile may be
confined without the right to bail. Under subrule (B), if no new petition
is filed, the court is to hold a detention hearing within 48 hours.
Subrule (C) covers notice and the right to advice
regarding representation by an attorney.
Rule 5.950 Waiver of Jurisdiction
(A) Waiver of Jurisdiction. Only a judge assigned
to hear cases in the family division of the circuit court of the
county where the offense is alleged to have been committed may
waive jurisdiction pursuant to MCL 712A.4.
[(A)](B) Motion by Prosecuting Attorney. A motion
by the prosecuting attorney requesting that the juvenile
court waive its jurisdiction to a court of general criminal
jurisdiction must be in writing and must clearly indicate the
charges and that if the motion is granted the juvenile will be
prosecuted as though an adult.
(1) A motion to waive jurisdiction of the juvenile must be
filed within 14 days after the [filing of the] petition
has been authorized to be filed. Absent a timely motion
and good cause shown, the juvenile shall no longer be subject to
waiver of jurisdiction on the charges.
(2) A copy of the motion seeking waiver must
[shall] be personally served on the juvenile and the
parent, guardian, or legal custodian of the juvenile, if
their addresses or whereabouts are known or can be determined by
the exercise of due diligence.
[(B)](C) Hearing Procedure. The waiver hearing
shall consist of two phases. Notice of the date, time, and
place of the hearings may be given either on the record directly
to the juvenile or to the attorney for the juvenile, the
prosecuting attorney, and all other parties, or in writing,
served on each individual.
(1) First Phase. The first-phase hearing is to determine
whether there is probable cause that an offense has been
committed [which] that if committed by an adult
would be a felony, and that there is probable cause that the
juvenile who is 14 years of age or older committed the offense.
(a)-(b) [Unchanged.]
(c) The court need not conduct the first phase of the
waiver hearing, if:
(i) the court has found the requisite probable
cause at a hearing under MCR 5.935[(D)](C)(1),
provided that at the earlier hearing only legally admissible
evidence was used to establish probable cause that the offense
was committed and probable cause that the juvenile committed the
offense; or
(ii) [Unchanged.]
(2) Second Phase. If the court finds the requisite
probable cause at the first-phase hearing, or if there is no
hearing pursuant to subrule (B)(1)(c), the second-phase hearing
shall be held to determine whether the interests of the juvenile
and the public would best be served by granting the motion,
unless the juvenile has previously been subject to the general
criminal jurisdiction of the circuit court under MCL 712A.4[;
MSA 27.3178(598.4)] or [MCL] 600.606[; MSA 27A.606,
or the Recorder's Court of the City of Detroit under MCL 712A.4
or MCL 725.10a]. If the juvenile has been subject to the
general criminal jurisdiction of either the circuit court [or
Recorder's Court] under MCL 712A.4[,] or
[MCL] 600.606[, or MCL 725.10a], the court shall
waive jurisdiction of the juvenile to the court of general
criminal jurisdiction without holding the second-phase hearing.
(a)-(e) [Unchanged.]
(D)-(E) [Formerly (C)-(D), redesignated, but otherwise
unchanged.]
[(E)](F) Psychiatric Testimony.
(1) [Unchanged.]
(2) The juvenile's consent may only be given:
(a) in the presence of an attorney representing the
juvenile or, if no [legal counsel] attorney
represents the juvenile, in the presence of a parent,
guardian, or legal custodian;
(b)-(c) [Unchanged.]
(3) [Unchanged.]
(G) [Formerly (F), redesignated, but otherwise unchanged.]
Comment: Most of the changes are in terminology. new subrule (A)
makes clear that only a judge assigned to the family division of circuit
court may waive jurisdiction under MCL 712A.4.
Rule 5.951 Initiating Designated Proceedings [Unchanged.]
Rule 5.952 Designation Hearing [Unchanged.]
Rule 5.953 Preliminary Examination in Designated Cases
(A)-(F) [Unchanged.]
(G) Confinement. If the court has designated the case and finds
probable cause that a felony or an offense for which an adult
could be imprisoned for more than one year has been committed and
probable cause that the juvenile committed the offense, the judge
may confine the juvenile in the county jail pending trial. If
the juvenile is under 17 years of age, the juvenile may be
confined in jail only if the juvenile can be separated by sight
and sound unless otherwise ordered by the court from adult
prisoners and if the sheriff has approved the confinement.
Comment: The proposal would modify the current rule, which
requires separating juveniles by "sight and sound" from adult
prisoners, to allow the court to order otherwise.
Rule 5.954 Trial of Designated Cases
Trials of designated cases are governed by subchapter 6.400 of
the Michigan Court Rules except for MCR 6.402(A). The court may
not accept a waiver of trial by jury until after the juvenile has
been offered an opportunity to consult with a lawyer. Pleas in
designated cases are governed by subchapter 6.300 of the Michigan
Court Rules.
Comment: The proposal would make Subchapter 6.300 applicable to
pleas in designated cases.
Rule 5.955 Sentencing or Disposition in Designated Cases
(A) If a juvenile is convicted under MCL 712A.2d[; MSA
27.3178(598.2d)], sentencing or disposition shall be made as
provided in MCL 712A.18(1)(n)[; MSA 27.3178(598.18)(1)(n)]
and the Crime Victim's Rights Act, MCL 780.751 et seq, if
applicable. In deciding whether to enter an order of
disposition, or impose or delay imposition of sentence, the court
shall consider all the following factors, giving greater weight
to the seriousness of the offense and the juvenile's prior
record:
(1)-(6) [Unchanged.]
(B)-(E) [Unchanged.]
Comment: A reference to the Crime Victims Rights Act, MCL 780.751
et seq, is added.
Rule 5.956 Review Hearings; Probation Violation [Unchanged.]
Rule 5.961 Initiating Child Protective Proceedings
(A) [Unchanged.]
(B) Content of Petition. A petition must contain the following
information, if known:
(1) [Unchanged.]
(2) the names and addresses of:
(a) [Unchanged.]
(b) the parent, guardian, legal custodian, or
person who has custody of the child, if other than a mother or
father,
(c) the nearest known relative of the child, if no
parent, guardian, or legal custodian can be found, and
(d) [Unchanged.]
(3) the essential facts [which] that
constitute an offense against the child under the Juvenile Code;
(4)-(5) [Unchanged.]
(6) the type of relief requested[, including whether
temporary or permanent custody is sought]; however,
a request for removal of the child or a parent or for termination
of parental rights at the initial disposition must be
specifically stated; and
(7) [Unchanged.]
(C) Waiver from Divorce Proceeding. If, after notice
and hearing, a judge waives jurisdiction over a child pursuant to
MCL 712A.2(c), the family division, upon presentment of a
petition, must conduct a preliminary inquiry pursuant to MCR
5.962 or a preliminary hearing pursuant to MCR 5.965. If the
petition is authorized to be filed, the court must proceed
pursuant to subchapter 5.900. The referring judge must be
notified if no petition is submitted to the court within 28 days
of the date of the waiver of jurisdiction or if a petition is
submitted but not authorized. If a petition is authorized and
the case is subsequently dismissed before or after adjudication
but before termination of parental rights, the court must notify
the referring judge of the dismissal. If parental rights are
terminated, the court must notify the referring judge of the
termination of the parent's rights.
Comment: The proposed amendment of subrule (B)(6) would require
that a request for removal of a child or parent or for termination of
parental rights be specifically stated in the petition.
New subrule (C), concerning waiver of jurisdiction from a
divorce proceeding, relates to MCL 712A.2(c).
Rule 5.962 Preliminary Inquiry
(A) Purpose. When a petition is not accompanied by a request
for placement of the child and the child is not in
[temporary] protective custody, the court may
conduct a preliminary inquiry to determine the appropriate action
to be taken on a petition.
(B) Action by Court. A preliminary inquiry need not be
conducted on the record or in the presence of the parties.
At the preliminary inquiry, the court may:[
] (1) [dismiss the complaint or] deny
authorization of the petition,[
] (2) refer the matter to alternative services, or
[
] (3) authorize the filing of a petition [upon a
showing of probable cause that 1 or more of the allegations in
the petition are true and fall within MCL 712A.2(b)] if
the petition contains the information required by MCR
5.961(B). When used in this subrule, a showing of probable
cause may be established with such information and in such a
manner as the court deems sufficient.
Comment: The proposal would modify subrule (B) to provide that the
preliminary inquiry need not be conducted on the record or in the
presence of the parties. The amendment of subrule (B)(3) would provide
that the filing of a petition should be authorized if it contains the
required information, omitting the currently required showing of
probable cause that the allegations are true.
Rule 5.963 [Acquiring Physical] Protective
Custody of Child
(A) Taking Custody Without Court Order. An officer may without
court order remove a child from the child's surroundings and take
the child into [temporary] protective custody if,
after investigation, the officer has reasonable grounds to
conclude that the health, safety, or welfare of the child is
endangered.
(B) Court-Ordered Custody. The court may order an officer or
other person to immediately take a child into protective
custody when, after presentment to the court of a petition, a
judge or referee has reasonable grounds to believe that
conditions or surroundings under which the child is found are
such as would endanger the health, safety, or welfare of the
child and that remaining in the home would be contrary to the
welfare of the child. The court shall inquire whether a
member of the child's immediate or extended family is available
to take custody of the child pending preliminary hearing and
whether there has been a central registry clearance and whether a
criminal history check has been initiated. The order must
indicate that the judge or referee has determined that
continuation in the home is contrary to the welfare of the child
and must state the basis for the court's determination. The
court may also include in such an order[: (1)] an
authorization to enter specified premises to remove the
child[, and]
[(2)] [a directive to place the child in
protective custody pending preliminary hearing.
]
(C) Arranging for Court Appearance. An officer or other
person who takes a child into protective custody must:
(1) immediately attempt to notify the child's parent,
guardian, or legal custodian of the protective
custody;
(2) inform the parent, guardian, or legal custodian
of the date, time, and place of the preliminary hearing scheduled
by the court;
(3) [Unchanged.]
(4) if the court is not open, contact the person designated
under MCR 5.934(B)(2) for permission to place[ or release]
the child pending preliminary hearing;
(5) [Unchanged.]
(6) prepare a custody statement similar to the statement
required for detention of a juvenile as provided in MCR
5.934(A)(4) and submit it to the court[ or leave it at the
placement facility].
Comment: The proposal substitutes "protective" for "temporary"
custody. It also adds the requirement that there be a showing that
continuation of the child's residence in the home would be contrary to
the child's welfare. This is related to federal statutes and
implementing regulations. See 45 CFR 1356.21(c), (d).
Rule 5.965 Preliminary Hearing
(A) Time for Preliminary Hearing [of Child in Custody].
(1) Child in protective custody. The
preliminary hearing [must] shall commence no later
than 24 hours after the child has been taken into[ court]
protective custody, excluding Sundays and holidays, as
defined by MCR 8.110(D)(2), unless adjourned for good cause
shown, or the child must be released.
(2) Severely physically injured or sexually
abused child. When the family independence agency submits a
petition in cases in which the child has been severely physically
injured, as that term is defined in MCL 722.628(3)(c), or
sexually abused, the preliminary hearing must commence no later
than 24 hours after the agency submits a petition or on the next
business day following the submission of the petition.
(B) Procedure.
(1) The court must [shall] determine if the
parent, guardian, or legal custodian has been notified
and[, if the parent is not present, direct that an attempt be
made to secure the presence of the parent and] if the
lawyer-guardian ad litem for the child is present. The
preliminary hearing may be adjourned for the purpose of securing
the appearance of [a] an attorney, parent,
guardian, or legal custodian or may be conducted in the[
parent's] absence of the parent, guardian, or legal
custodian if notice has been given or if the court finds that a
reasonable attempt to give notice was made.
(2) The child's [attorney] lawyer-guardian ad
litem must [shall] be present to represent the child
at the preliminary hearing. The court may make temporary orders
for the protection of the child pending the appearance of
[counsel] an attorney or pending the completion of
the preliminary hearing. The court must direct that the
lawyer-guardian ad litem for the child receive a copy of the
petition.
(3) If the respondent is present, the court must assure
that the respondent has a copy of the petition. The court
must [shall] read the allegations in the petition
in open court, unless waived.
(4) [Unchanged.]
(5) The court must [shall] advise the
respondent of the right to the assistance of an attorney at
the preliminary hearing and any subsequent hearing pursuant
to MCR 5.915.
(6) The court must [shall] advise the
respondent of the right to trial on the allegations in the
petition and that the trial may be before a referee unless the
required demand for a judge or jury is filed pursuant to MCR
5.911 or 5.912[ or 5.913].
(7) The court must inquire whether the child
is subject to the continuing jurisdiction of another court and,
if so, which court.
[(7)](8) The court must [shall]
inquire if the child or either parent is a registered
member of any American Indian tribe or band[, or if the child
is eligible for such membership]. If [so,] a
parent is a tribal member and the child is eligible for
membership in the tribe, the court must determine the
identity of the child's tribe and notify the tribe or band
and follow the procedures set forth in MCR 5.980.
(9) If the preliminary hearing is adjourned,
the court may make temporary orders for the placement of the
child when necessary to assure the immediate safety of the child,
pending the completion of the preliminary hearing and subject to
the factors in both subrule (C) and subrule (D).
[(8)](10) [Redesignated, but otherwise
unchanged.]
[(9)](11) Unless the preliminary hearing is
adjourned, the court must [shall] decide whether to
authorize the filing of the petition and, if authorized, the
placement of the child pending trial.
(a) The court may authorize the filing of
the petition upon a showing of probable cause, unless waived,
that one or more of the allegations in the petition are true and
fall within MCL 712A.2(b)[; MSA 27.3178(598.2)(b)].
[The court shall indicate whether temporary or permanent
custody is sought, and must direct that the respondent and the
attorney for the child receive a copy of the petition authorized
to be filed.] The Michigan Rules of Evidence do not apply,
other than those with respect to privileges, except to the extent
that such privileges are abrogated by MCL 722.631.
(b) The court may adjourn the hearing for
up to 14 days to secure the attendance of witnesses or for other
good cause shown.
[(10)](12) If the court authorizes the filing of
the petition[ as provided in subrule (B) (9)], the
court:[
] (a) may release the child to a
parent, guardian, or legal custodian[, or the
court] and may [place the child with someone other
than a parent as provided in subrule (C). Release of the child to
a parent following the authorization of a petition may be
accompanied by] order such reasonable terms and
conditions believed necessary to protect the physical health or
mental well-being of the child; or
(b) may order placement of the child
after making both the determinations in subrule (C) and the
findings in subrule (D) if those determinations have not
previously been made.
(C) Pretrial Placement; Contrary to the Welfare
Determination.
(1) Placement; Proofs. If the child was not released under
subrule (B), the court shall receive evidence, unless
waived, to establish that the criteria for placement set
forth in MCR 5.965(C)(2) are present. The respondent shall be
given an opportunity to cross-examine witnesses, to subpoena
witnesses, and to offer proof to counter [the allegations
against respondent] said evidence.[ The court may
permit the respondent to waive the probable cause determination
or the court may adjourn the hearing for up to 14 days to secure
the attendance of witnesses or for other good cause shown.]
(2) Criteria. [The court may place the child with
someone other than the parent, guardian, or legal custodian
pending trial or further court order if the court determines that
all of the following conditions exist:] If continuing the
child's residence in the home is contrary to the welfare of the
child, the court shall not return the child to the home, but
shall order the child placed in the most family-like setting
available consistent with the child's needs.
[(a)] [custody of the child with the
parent, guardian, or legal custodian presents a substantial risk
of harm to the life, physical health, or mental well being of the
child;]
[(b)] [no provision of service or other
arrangement except removal of the child is reasonably available
to adequately safeguard the child from the risk as described in
subrule (C)(2)(a); and]
[(c)] [conditions of child custody away
from the parent, guardian, or legal custodian are adequate to
safeguard the health and welfare of the child.]
(3) Findings. If placement is ordered, the court must make
a written statement of findings, explicitly including the
"contrary to the welfare of the child" finding, or place them
on the record. If the "contrary of the welfare of the child"
finding is placed on the record and not in a written statement of
findings, it must be capable of being transcribed. The
findings may be on the basis of hearsay evidence that possesses
[an] adequate [degree] indicia of
trustworthiness.
(4) [Type of Placement.] Record Checks; Home
Study. [If the child is not released, the child must be
placed in the most family-like setting consistent with the needs
of the child. The court shall inquire whether a member of the
child's immediate or extended family is available to take custody
of the child, whether there has been a central registry
clearance, and whether a criminal history check has been
initiated.] If the child has been placed in a relative's
home,
(a) the court may order the Family
Independence Agency to report the results of a criminal record
check and central registry clearance of the residents of the home
to the court before or within 7 days of the placement, and
(b) the court must order the Family Independence
Agency to perform a home study with a copy to be submitted to the
court not more than 30 days after the placement.
(5) No Right to Bail. [The respondent shall not
have] No one has the right to post bail in a
protective proceeding for the release of a child in the
custody of the court.
[(6)] [Advice, Initial Service Plan. If
placement is ordered, the court must, orally or in writing,
inform the parties:]
([a) that the agency designated to care and
supervise the child will prepare an initial service plan no later
than 30 days of the placement;]
([b) that participation in the initial service
plan is voluntary unless otherwise ordered by the court; and]
([c) that the general elements of an initial
service plan include:]
([i) the background of the child and the
family;
]
([ii) an evaluation of the experiences and
problems of the child;]
[(iii) a projection of the expected length of
stay in foster care; and]
([iv) an identification of specific goals and
projected time frames for meeting the goals.]
[] [(7)](6) Parenting Time or
Visitation.
(a) Unless the court suspends parenting
time pursuant to MCL 712A.19b(4), or unless the child has a
guardian or legal custodian, [T]the court
must [shall] [ensure that the] permit
each parent [is allowed ]frequent [visitation of
]parenting time with a child in placement unless
[visitation] parenting time, even if supervised,
[would] may be harmful to the child.
(b) If the child was living with a
guardian or legal custodian, the court must determine what, if
any, visitation will be permitted with the guardian or legal
custodian.
(7) Medical Information. Unless the court has
previously ordered the release of medical information, the order
placing the child in foster care must include:
(a) an order that the child's parent,
guardian, or legal custodian provide the supervising agency with
the name and address of each of the child's medical providers,
and
(b) an order that each of the child's
medical providers release the child's medical records.
[(8)] [Review of Placement Order and Initial
Service Plan. On motion of a party, the court must review the
custody order, placement order, or the initial service plan, and
may modify those orders and plan if it is in the best interest of
the child.]
(D) Pretrial Placement; Reasonable Efforts
Determination. In making the reasonable efforts determination
under this subrule, the child's health and safety must be of
paramount concern to the court.
(1) When the court has placed a child with
someone other than the custodial parent, guardian, or legal
custodian, the court must determine whether the agency has made
reasonable efforts to prevent the removal of the child. The
court must make this determination no later than 60 days from the
date of removal, and must state the factual basis for the
determination in the court order. Nunc pro tunc orders or
affidavits are not acceptable.
(2) Reasonable efforts to prevent a child's
removal from the home are not required if a court of competent
jurisdiction has determined that
(a) the parent has subjected the child to
aggravated circumstances as listed in MCL 712A.19b(3)(k); or
(b) the parent has been convicted of:
(i) murder of another child of the
parent,
(ii) voluntary manslaughter of
another child of the parent,
(iii) aiding or abetting, attempting,
conspiring, or soliciting to commit such a murder or such a
voluntary manslaughter, or
(iv) a felony assault that results in
serious bodily injury to the child or another child of the
parent; or
(c) parental rights of the parent with
respect to a sibling have been terminated involuntarily.
[(6)](E) Advice; Initial Service Plan. If
placement is ordered, the court must, orally or in writing,
inform the parties:
[(a)-(c)] (1)-(3) [Redesignated, but
otherwise unchanged.]
[]
(4) that, on motion of a party, the court
shall review the initial service plan and may modify the plan if
it is in the best interests of the child.
Comment: A new subrule (A)(2) is added, providing that in the case of
a petition involving a child who has been severely physically injured or
sexually abused, the preliminary hearing must begin no later than 24
hours after submission of the petition, or the next business day.
Subrule (B), regarding procedure at the hearing, is
substantially rewritten. Subrule (B)(1) permits the hearing to go
forward in the absence of the parent, guardian, or legal custodian if
notice has been given or if a reasonable attempt to do so was made.
Other provisions include requirements that a copy of the
petition be provided to various persons [subrules (B)(2)-(3)]; that
inquiries be made regarding whether the child is subject to the
jurisdiction of another court and about american indian tribe
membership [subrules (B)(7)-(8)]; and providing for temporary orders
for placement of the child where the hearing is adjourned [Subrule (9)].
Subrule (B)(11) provides that the Rules of Evidence do not
apply, except those regarding privileges. However, the privilege
provision is qualified by incorporation of MCL 722.631, which abrogates
certain privileges.
Subrule (B)(12) provides that if a court authorizes the
petition, it may order the child released to the parent, guardian, or
legal custodian or , on making appropriate findings, the court may
order placement of the child.
Subrules (D) and (C) are substantially rewritten. A
number of the changes are designed to comply with the requirements of
42 USC 671, and associated regulations. 45 CFR 1356.21.
Subrule (C)(2) would add a requirement that if the child is
removed from the home, the child is to be placed in the most family-like
setting available, consistent with the child's needs. See MCL
712A.13a(10).
Subrule (C)(4) provides for a criminal record check and
central registry clearance, as well as a Family Independence Agency
home study if the child is placed in a relative's home.
Subrule (C)(6) provides for visitation with a guardian or
legal custodian with whom the child has been living.
Subrule (C)(7) requires that an order placing a child in
foster care direct the child's parent or custodian to provide the
agency with the name and address of the child's medical providers, and
the order is to direct the providers to release medical records.
New subrule (D) includes a number of provisions regarding
the determination whether reasonable efforts have been made to avoid
removing the child from the home. Exceptions are created where the
parent has subjected the child to certain aggravating circumstances
listed in MCL 712A.19b(3)(k) or committed certain serious crimes.
Rule 5.966 Miscellaneous Child Protective Proceeding
Matters
(A) Review of Placement Order and Initial Service
Plan. On motion of a party, the court must review the custody
order, placement order, or the initial service plan, and may
modify those orders and plan if it is in the best interest of the
child and, if removal from the parent, guardian, or legal
custodian is requested, determine whether the conditions in MCR
5.965(C)(2) exist.
(B) Petitions to Review Placement Decisions by
Supervising Agency.
(1) General. The court may review placement
decisions when all of the following apply:
(a) a child has been removed from the
home;
(b) the supervising agency has made a
placement decision after identifying, locating, and consulting
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 nonrelative foster care;
(c) the supervising agency has provided
written notice of the placement decision;
(d) a person receiving notice has
disagreed with the placement decision and has given the child's
lawyer-guardian ad litem written notice of the disagreement
within 5 days of the date on which the person receives notice;
and
(e) the child's lawyer-guardian ad litem
determines the decision is not in the child's best interest.
(2) Petition for Review. If the criteria in
subrule (1) are met, within 14 days after the date of the
agency's written placement decision, the child's lawyer-guardian
ad litem must file a petition for review.
(3) Hearing on Petition. The court must
commence a review hearing on the record within 7 days of the
filing of the petition.
(C) Disputes Between Agency and Foster Care Review
Board Regarding Change In Placement.
(1) General. The court must conduct a hearing
upon notice from the foster care review board that, after an
investigation, it disagrees with a proposed change in placement
by the agency of a child who is not a permanent ward of the
Michigan Children's Institute.
(2) Procedure.
(a) Time. The court must set the hearing
no sooner than 7 days and no later than 14 days after receipt of
the notice from the foster care review board that there is a
disagreement regarding a placement change.
(b) Notice. The court must provide
notice of the hearing date to the foster parents, each interested
party, and the prosecuting attorney if the prosecuting attorney
has appeared in the case.
(c) Evidence. The court may hear
testimony from the agency and any other interested party. The
court may consider any other evidence bearing upon the proposed
change in placement. The Rules of Evidence do not apply to a
hearing under this rule.
(d) Findings. The court must order the
continuation or restoration of placement unless the court finds
that the proposed change in placement is in the child's best
interests.
Comment: Most of this rule is new, although it does include the
provisions of current MCR 5.965(C)(8) in new subrule (A).
New subrule (B) sets forth a procedure for review of
placement decisions by the supervising agency. The review is initiated
by the child's lawyer-guardian ad litem when certain conditions are
met.
New subrule (C) governs resolution of disputes between
an agency and the Foster Care Review Board regarding changes in
placement.
Rule 5.971 Pleas of Admission or No Contest
(A) General. A respondent may make a plea of admission or of no
contest to the original [charge] allegations in the
petition. The court has discretion to allow a respondent to
enter a plea of admission or a plea of no contest to an amended
petition. The plea may be taken at any time after the filing of
the petition, provided that the petitioner and the
attorney of the child have been notified of a plea offer to an
amended petition and have been given the opportunity to object
before the plea is accepted.
(B) Advice of Rights and Possible Disposition. Before accepting
a plea of admission or plea of no contest, the court must advise
the respondent on the record or in a writing that is made a part
of the file:
(1) [Unchanged.]
(2) of the right to an attorney, if respondent is without
[counsel] an attorney;
(3) [Unchanged.]
(4) of the consequences of the plea, including that
the plea can later be used as evidence in a proceeding to
terminate parental rights if the respondent is a parent.
(C) Voluntary, Accurate Plea.
(1) [Unchanged.]
(2) Accurate Plea. The court shall not accept a plea of
admission or of no contest without establishing support for a
finding that [the child comes within the jurisdiction of the
court,] one or more of the statutory grounds alleged in
the petition are true, preferably by questioning the
respondent unless the offer is to plead no contest. If the plea
is no contest, the court shall not question the respondent, but,
by some other means, shall obtain support for a finding that
[the respondent committed the offense against the child.]
one or more of the statutory grounds alleged in the petition
are true. The court shall state why a plea of no contest is
appropriate.
Comment: Subrule (B)(4) is modified to provide that a plea may be
used as evidence in a proceeding to terminate parental rights only if
the respondent is a parent.
Language of subrule (C)(2) is modified to refer to a finding
that the statutory grounds alleged in the petition are true, rather
than to a finding that the child is within the jurisdiction of the court.
Rule 5.972 Trial
(A) Time. If the child is not in placement, the trial must be
held within 6 months after the filing of the petition unless
adjourned for good cause in accord with the provisions of MCR
5.923(G). If the child is in placement, the trial must
commence as soon as possible but not later than 63 days after the
child is placed by the court unless the trial is postponed:
(1)-(3) [Unchanged]
When trial is postponed pursuant to subrule (2) or (3), the
court shall release the child to the parent, guardian, or
legal custodian unless the court finds that [returning
]releasing the child to the custody of the parent,
guardian, or legal custodian will likely result in physical
harm or serious emotional damage to the child.
(B) Preliminary Proceedings.
(1) [Unchanged.]
(2) The court shall read the allegations in the petition,
unless waived[, and explain the nature of the
proceedings].
(C) [Evidence; Standard of Proof] Evidentiary
Matters.
(1) Evidence; Standard of Proof. Except as
otherwise provided in these rules, the rules of evidence for a
civil proceeding and the standard of proof by a preponderance of
evidence apply at the trial, notwithstanding that the petition
contains a request to terminate parental rights.
(2) Child's Statement. [A]Any
statement made by a child under [ten] 13 years of
age or an incapacitated individual under 18 years of age with
a developmental disability as defined in MCL 330.1100a(20)
describing or denying an act of child abuse, child
neglect, sexual abuse, or sexual exploitation, as defined in
[section 2(c) of the child protection law,] MCL
722.622[(c)] (e),(f),(q),(r), or, (s) [; MSA
25.248(2)(c)], performed with or on the child by another
person[, not otherwise admissible under an exception to
the hearsay rule,] may be admitted into evidence
[at the trial] through the testimony of the person to
whom the statement is made, whether the child is available to
testify or not, and is substantive evidence of the act or
omission if the court has found, in a hearing held [prior
to] before trial, that the [nature and
]circumstances surrounding the giving of the statement
provide adequate indicia of trustworthiness[, and that there
is sufficient corroborative evidence of the act]. This
statement may be received by the court in lieu of or in addition
to the child's testimony.
(D) Jurisdictional Recommendation. At the
conclusion of the proofs, the lawyer-guardian ad litem for the
child may make a recommendation to the finder of fact regarding
whether one or more of the statutory grounds alleged in the
petition have been proven.
(E) Verdict. In a child protective proceeding, the
verdict must be whether one or more of the statutory grounds
alleged in the petition have been proven.
Comment: Subrule (A) would expressly authorize adjournment of a
trial for good cause in accordance with MCR 5.932(G).
Current MCR 5.972(C)(2) allows use of hearsay regarding
statements by a child under 10 years of age. The proposal would raise
the age to under 13 years, or under 18 years for an incapacitated
individual with a developmental disability.
New subrule (D) would permit the lawyer-guardian
ad litem for the child to make a recommendation regarding whether
the statutory grounds alleged have been proven.
New subrule (E) specifies that the verdict is to address
whether one or more of the statutory grounds alleged in the petition
has been proven.
Rule 5.973 Dispositional [Phase] Hearing
Comment: The provisions of current MCR 5.973(B)-(E) are deleted
and relocated to new Rules 5.974 [subrules (D)-(E)], 5.975 [subrule (B)],
and 5.976 [subrule (D)].
[(A)] [General.] A dispositional hearing is
conducted to determine what measures [to be taken
by] the court will take with respect to [the]
a child properly within its jurisdiction and, when
applicable, against any adult, once the court has determined
following trial, plea of admission, or plea of no contest that
[the child comes within its jurisdiction] one or more
of the statutory grounds alleged in the petition are true.
[](A)-(B) [Formerly (A)(1)-(2), redesignated, but
otherwise unchanged.]
[(3)](C) Presence of Parties.
[(a)](1) The child may be excused from the
dispositional hearing as the interests of the child require[
provided that the child's guardian ad litem or attorney is
present at the hearing].
[(b)](2) The respondent has the right to be
present or may appear through [legal counsel] an
attorney.
[(c)](3) [Redesignated but otherwise unchanged.]
[(4)](D) Evidence.
[(a)](1) The Michigan Rules of Evidence do not
apply at the initial dispositional hearing, other than those
with respect to privileges, except to the extent such privileges
are abrogated by MCL 722.631. All relevant and material
evidence, including oral and written reports, may be
received and may be relied on to the extent of its probative
value[, even though such evidence may not be admissible at
trial]. The court shall consider the case service plan and
any written or oral information concerning the child from the
child's parent, guardian, legal custodian, foster parent,
child caring institution, or relative with whom the child is
placed. If the agency responsible for the care and supervision
of the child recommends not placing the child with the parent,
guardian, or legal custodian, the agency shall report in
writing what efforts were made to prevent removal, or to rectify
conditions that caused removal, of the child from the home.
(2)-(4) [Formerly (A)(4)(b -(d), redesignated, but
otherwise unchanged.]
[(5)](E) Dispositional Orders.
[(a)](1) The court shall enter an order of
disposition as provided in the Juvenile Code and [the]
these rules.
[(b)](2) The court shall not enter an order of
disposition until it has examined the case service plan as
provided in MCL 712A.18f[; MSA 27.3178(598.18f)]. The
court may order compliance with all or part of the case service
plan and may enter such orders as it considers necessary in the
interest of the child.
[(c)](3) [Redesignated, but otherwise unchanged.]
(a)-(b) [Formerly (A)(5)(c)(i)-(ii),
redesignated, but otherwise unchanged.]
(4) Medical Information. Unless the court has
previously ordered the release of medical information, the order
placing the child in foster care must include the following:
(a) an order that the child's parent,
guardian, or legal custodian provide the supervising agency with
the name and address of each of the child's medical providers,
and
(b) an order that each of the child's medical
providers release the child's medical records.
(F) Subsequent Review. When the court does not
terminate jurisdiction upon entering its dispositional order, it
must:
(1) follow the review procedures in MCR
5.974(A) for a child in placement, or
(2) review the progress of a child at home
pursuant to the procedures of MCR 5.974(B).
[
](G) Supplemental Petition Alleging Additional
Abuse or Neglect. The court may take action on a supplemental
petition that alleges additional abuse or neglect of a child who
is under the jurisdiction of the court. The supplemental
petition must contain the essential facts that constitute an
offense against the child under MCL 712A.2(b).
(1) A supplemental petition seeking
termination of parental rights is governed by the provisions of
MCR 5.977.
[
] (2) A supplemental petition that does not
seek the termination of parental rights shall be governed by the
provisions of MCR 5.974 for a child who is at home or MCR 5.975
for a child who is in foster care.
Comment: Like the current rule, subrule (B)(1) would permit the
child to be excused from the dispositional hearing, but would remove
the condition that the child's guardian ad litem or attorney be
present.
The provision of subrules (D)(1) regarding the Michigan
Rules of Evidence is modified to say that they do not apply at the initial
dispositional hearing. language regarding privileges is also added.
New subrule (E)(4) would provide for release of medical
information in connection with an order placing a child in foster care.
New subrules (F) and (G) deal with subsequent review and
supplemental petitions alleging additional abuse and neglect.
Rule 5.974 Post-Dispositional Procedures: Child at
Home
Changes shown are from the current language of MCR 5.973(D) and (E).
The provisions of current MCR 5.974 are moved to new Rules 5.977 and
5.978.
[(D)](A) Review of Child's Progress[ at
Home].
(1) General. The court shall periodically review the
progress of a child not in foster care over whom it has retained
jurisdiction. A progress review does not require a
hearing.
(2) Time. The progress of the child must be reviewed no
later than 182 days after entry of the original order of
disposition if the child remained at home following the initial
dispositional hearing. The review shall occur no later than 182
days after the child returns home when the child is no longer in
foster care. The court may [not] order a change in the
placement of a child [solely] on the basis of a progress
review pending an emergency removal hearing.
[(E)](B) [Child at Home;] Change in
Placement; Hearing Required.
(1) General. If the child, over whom the court has
retained jurisdiction, remains at home following the initial
dispositional hearing or has otherwise returned home from foster
care, the court [must conduct a hearing before it may order
the placement] may order temporary removal of the child to
protect the health, safety or welfare of the child,
pending an emergency removal hearing.
(2) [Unchanged.]
(3) Emergency Removal Hearing. If the court orders removal
of the child from the parent, guardian, or legal custodian
to protect the child's health, safety, or welfare, the court must
conduct an emergency removal hearing no later than 24 hours after
the child has been taken into custody, excluding Sundays and
holidays as defined in MCR 8.110(D)(2). Unless the child
is returned to the parent pending the dispositional review, the
court must make a written determination that the criteria
for placement as listed in MCR 5.965(C)(2) are satisfied.
(a) At the emergency removal hearing, the respondent
parent, guardian, or legal custodian from whom the child is
removed must [shall] receive a written statement of
the reasons for removal[.] and [The respondent
parent shall also] be advised of [his or her] the
following rights:[
] (i) to be represented by [counsel
pursuant to MCR 5.915, unless the parent is already
represented] an attorney at the dispositional review
hearing;[
] (ii) to contest the continuing placement at
[a subsequent] the dispositional review hearing
within 14 days; and
[
] (iii) to compulsory process to obtain
witnesses for the dispositional review hearing.
(b) At an emergency removal hearing, the parent,
guardian, or legal custodian from whom the child was removed
must [shall] be given an opportunity to state why the
child should not be removed from or should be returned to
the[ parent's] custody of the parent, guardian, or
legal custodian[ pending further hearings].
(4) Dispositional Review Hearing; Procedure. If the
child is in placement pursuant to subrule
[(E)](B)(3), the dispositional review
hearing must commence no later than 14 days after the child
is placed by the court, except for good cause shown. The hearing
must [shall] be conducted in accordance with the
procedures and rules of evidence applicable to [the]
a dispositional [review] hearing.
Comment: This new rule contains the provisions of former
MCR 5.973(D)-(E). Most of the changes are in terminology.
Subrule (A)(1) makes clear that the court's progress
review does not require a hearing.
Subrule (B) permits removal of the child to protect the
child's health, safety, or welfare pending an emergency removal
hearing. At such a hearing, a written determination of the criteria for
placement is required.
Rule 5.975 Post-Dispositional Procedures: Child in Foster
Care
Changes shown are from the current language of MCR 5.973(B).
[(B)](A) Dispositional Review Hearings. A
dispositional review hearing is conducted to permit court
review of the progress made to comply with any order of
disposition and with the case service plan prepared pursuant to
MCL 712A.18f and court evaluation of the continued need and
appropriateness for the child to be in foster care.
[(1)] [General. The main objectives of a
dispositional review hearing are:]
[(a)] [court review of the progress made to
comply with any order of disposition and with the case service
plan prepared pursuant to MCL 712A.18f ; and]
[(b)] [court evaluation of the continued
need and appropriateness for the child to be in foster care.]
(B) [(4)] [Formerly MCR 5.973(B)(4),
redesignated, but otherwise unchanged.]
(C) [(2)] Time. The court must conduct
dispositional review hearings at intervals as follows,
[so] as long as the child remains in foster care:
(1) [(a)] no later than every 91 days
[for the first year] following entry of the
original order of disposition; or
(2) [(b)] no later than every 182 days
after the first permanency planning hearing if the child is
subject to a permanent foster family agreement or in a relative
placement that is intended to be permanent as provided in MCR
5.976(E)(3). [year following entry of the original order
of disposition (the calculation to commence from the date of the
first permanency planning hearing); and]
[(c)] [no later than every 91 days for the
first year after placement of a child in foster care following a
dispositional review hearing or a hearing under MCR 5.973(E), and
every 182 days thereafter.]
(D) [(3)] [Irregularly Scheduled
Hearings] Early Review Option. At the initial
dispositional hearing and at every regularly scheduled
dispositional review hearing, the court must decide whether it
will conduct the next dispositional review hearing before what
would otherwise be the next regularly scheduled dispositional
review hearing as provided in subrule (2). In deciding whether
to shorten the interval between review hearings, the court shall,
among other factors, consider:
(1) [(a)] the ability and motivation of
the parent, guardian, or legal custodian to make changes
needed to provide the child a suitable home environment;
(2) [(b)] [Redesignated, but otherwise
unchanged.]
(E) [(5)] Procedure. Dispositional review
hearings must [shall] be conducted in accordance
with the procedures and rules of evidence applicable to the
initial dispositional hearing. The report of the agency that is
filed with the court must be accessible to the parties and
offered into evidence. The court shall consider any written or
oral information concerning the child from the child's parent,
guardian, legal custodian, foster parent, child caring
institution, or relative with whom a child is placed, in addition
to any other evidence at the hearing. The court, on request of a
party or on its own motion, may accelerate the hearing to
consider any element of a case service plan.
(F) [(6)] Criteria.
(1) [(a)] Review of Case Service Plan.
The court, in reviewing the progress toward compliance with the
case service plan, must consider:
(a) [(i)] the services provided or
offered to the child and parent, guardian, or legal
custodian of the child;
(b) [(ii)] whether the parent,
guardian, or legal custodian has benefitted from the services
provided or offered;
(c)[(iii)] the extent of
[parental] parenting time or visitation, including
a determination [as to] regarding why
[visitation ]either was not frequent or never
occurred;
(d) [(iv)] the extent to which the
parent, guardian, or legal custodian complied with each
provision of the case service plan, prior court orders, and any
agreement between the parent, guardian, or legal custodian
and the agency;
(e) [(v)] [Unchanged.]
(f) [(vi)] likely harm to the child if
the child is returned to [his or her] the parent,
guardian, or legal custodian.
(2) [(b)] Progress Toward
[Return] Returning Child Home [of the
Child]. The court must decide the extent of the progress
made toward alleviating or mitigating conditions that caused the
child to be, and to remain, in foster care.
(G) [(7)] [Supplemental Orders]
Dispositional Review Orders. The court, following a
dispositional review hearing, may:
[(a)] [General. The court, following
a dispositional review hearing, may:]
(1) [(i)] order the return of the
child home,
(2) order placement of the child if
removal from the parent, guardian, or legal custodian would be
appropriate for the welfare of the child,
(3) change the placement of the
child,
(4) [(ii)] modify the dispositional
order,
(5) [(iii)] modify any part of
the case service plan,
(6) [(iv)] enter a new dispositional
order, or
(7) [(v)] continue the prior
dispositional order.
(H) [(b)] Returning Child Home
[of Child ]Without Dispositional Review Hearing. Unless
notice is waived, if not less than 7 days written notice
is given to all parties [prior to] before the
return of a child to the home, and if no party requests a hearing
within the 7 days, the court may issue an order without a hearing
permitting the agency to return the child home.
Comment: This new rule includes the provisions of current
MCR 5.973(B). Most of the changes are in terminology.
Subrule (C) would adjust the times for dispositional
review hearings to coordinate with the modified provisions on
permanency planning hearings in new rule 5.976 and recent amendments
of MCL 712A.19a, 712A.19c.
In subrule (G), two new options for orders following a
dispositional review hearing are added.
Rule 5.976 Permanency Planning Hearings
Changes shown are from current language of MCR 5.973(C).
[
(C)] [Permanency Planning Hearing.]
[(1)](A) [Purpose] General. [When
a child who is within the]
[jurisdiction of the court under MCL 712A.2(b) remains in
foster care for an extended time and without parental rights to
the child having been terminated, the court shall conduct a post-
disposition permanency planning hearing. At the hearing the
court may determine that the child is to return home, that the
child is to continue in foster care for a limited specified time
or on a long-term basis, or that the agency failed to demonstrate
that initiating the termination of parental rights to the child
is clearly not in the best interest of the child.] At each
permanency planning hearing, the court must make the following
determinations:
(1) Reasonable Efforts. At or before the
permanency planning hearing, the court must determine whether the
agency has made reasonable efforts to finalize the permanency
plan.
(2) Permanency Plan. At the permanency
planning hearing, the court must review the permanency plan for a
child in foster care. The court must determine whether and, if
applicable, when:
(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;
(d) the child may be permanently placed
with a fit and willing relative; or
(e) the child may be placed in another
planned permanent living arrangement, but only in those cases
where the agency has documented to the court a compelling reason
for determining that it would not be in the best interests of the
child to follow one of the options listed in subrules (a)-
(d).
[(2)](B) Time. [The court must conduct the
permanency planning ] [hearing no later than 364 days
after entry of the original order of disposition. The interval
between permanency planning hearings shall be no later than every
364 days while the child remains in foster care. The court may
combine the permanency planning hearing with a dispositional
review hearing.]
(1) An initial permanency planning hearing
must be held within 28 days after a petition has been adjudicated
and both of the following occur:
(a) A court of competent jurisdiction has
determined that
(i) a parent is found to have abused
the child or a sibling of the child, and the abuse included one
or more of the circumstances in MCL 712A.19a(2), or
(ii) the parent's rights to another
child were terminated involuntarily, and
(b) the court has determined that
reasonable efforts are not required to reunify the child and the
family.
(2) If subsection (1) does not apply, the
court must conduct an initial permanency planning hearing no
later than one year after an original petition has been filed.
The hearing must not be extended or delayed for reasons such as a
change or transfer of staff or worker at the supervising
agency.
(3) Requirement of Annual Permanency Planning
Hearings. During the continuation of foster care, the court must
hold permanency planning hearings beginning one year after the
initial permanency planning hearing. The interval between
permanency planning hearings must not exceed 12 months. The
court may combine the permanency planning hearing with a
dispositional review hearing.
[(3)](C) Notice. Written notice of a permanency
planning hearing must [shall] be given as
provided in MCR 5.920 and MCR 5.921(B)(2). The notice must
include a brief statement of the purpose of the hearing, [such
as to review the status of the child, the progress made toward
returning the child home, or why the child should not be placed
in permanent custody of the court] and must include a notice
that the hearing may result in further proceedings to terminate
parental rights.
[(4)](D) Hearing Procedure; [Options]
Evidence.
(1) Procedure. Each permanency planning
hearing must be conducted by a judge or a referee. Paper
reviews, ex parte hearings, agreed orders, or other actions that
are not open to the participation of (a) the parents of the
child, unless parental rights have been terminated; (b) the
child, if of appropriate age; and (c) foster parents or
preadoptive parents, if any, are not permanency planning
hearings.
[(a)](2) Evidence. The Michigan Rules of
Evidence do not apply, other than those with respect to
privileges, except to the extent such privileges are abrogated by
MCL 722.631. At the permanency planning hearing all relevant
and material evidence, including oral and written reports, may be
received by the court and may be relied upon to the extent of its
probative value[, even though such evidence may not be
admissible at trial]. The court must [shall]
consider any written or oral information concerning the child
from the child's parent, guardian, custodian, foster parent,
child caring institution, or relative with whom the child is
placed, in addition to any other evidence offered at the hearing.
The parties must [shall] be afforded an opportunity
to examine and controvert written reports so received and may be
allowed to cross-examine individuals who made the reports when
those individuals are reasonably available.
(E) Determinations; Permanency Options.
[(b)](1) [Determine] Determining
Whether to Return Child Home. At the conclusion of [the]
a permanency planning hearing, the court must order the
child returned home unless it determines that the return would
cause a substantial risk of harm to the life, the physical
health, or the mental well being of the child. Failure to
substantially comply with the case service plan is evidence that
return of the child to the parent may cause a substantial risk of
harm to the child's life, physical health, or mental well being.
In addition, the court shall consider any condition or
circumstance of the child that may be evidence that a return to
the parent would cause a substantial risk of harm to the child's
life, physical health, or mental well-being.
[(c)](2) [Continue] Continuing
Foster Care Pending Determination on Termination of Parental
Rights. If the court determines at a permanency planning
hearing that the child [will] should not be
returned home, it [shall order continuation of foster care,
and shall] must order the agency to initiate
proceedings to terminate parental rights, no later than 42 days
after the permanency planning hearing, unless the agency
demonstrates to the court and the court finds that it is
clearly not in the best interest of the child to presently begin
proceedings to terminate parental rights.
[(d)](3) Other Placement Plans. If the court
does not return the child to the parent, guardian, or legal
custodian and if the agency demonstrates that termination of
parental rights is not in the best interest of the child, the
court must either:
[(i)](a) continue the placement of the child
in foster care for a limited period to be set by the court if
the court determines that other permanent placement is not
possible, or
[(ii)](b) place the child in foster care on a
long-term basis if the court determines that it is in the
child's best interests.
Comment: New rule 5.976 includes the provisions now found in
MCR 5.973(C). A number of the changes in its provisions regarding
permanency planning hearings are designed to comply with federal
statutes and regulations. See, e.g., 45 CFR 1356.21(b)(2); 1355.20(a).
Subrule (B) substantially modifies the provisions
regarding the time for permanency planning hearings. See 45 CFR
1356.21(b)(3); MCL 712A.19a(2). It also includes language based on MCL
722.945b(1) to emphasize that extensions of the hearing date beyond the
one-year period are not to be granted because of a change in agency
staff.
Subrule (D)(1) makes clear that certain kinds of reviews
are not considered permanency planning hearings. See 45 CFR 1355.20.
The language changes in subrules (E)(2) and (3) is based on
MCL 712A.19a(7) and (8).
Rule [5.974] 5.977 Termination of Parental
Rights[; Termination]
(A) General.
(1) This rule applies to all proceedings in which
termination of parental rights is sought [except those which
involve an Indian child as defined by 25 USC 1901 et seq].
Proceedings for termination of parental rights involving an
Indian child as defined by 25 USC 1901 et seq. are [to
be] governed by MCR 5.980 in addition to this rule.
(2) Parental rights of the respondent over the child may
not be terminated unless termination was requested in an
original, amended, or supplemental petition [made] by the
agency, the child, the guardian, legal custodian,
or representative of the child, a concerned person as defined in
[MCR 5.903(C)(3)]MCL 712A.19b(6), the state
children's ombudsman, or the prosecuting attorney, whether or not
the prosecuting attorney is representing or acting as a legal
consultant to the agency or any other party.
(3) [Unchanged.]
(B) Definition. When used in this rule, unless the context
otherwise indicates, "respondent" includes:
(1) [Unchanged.]
(2) the father of the child as defined by MCR
5.903(A)[(4)](7).
"Respondent" [shall] does not include other
persons to whom legal custody has been given by court order,
persons who are acting in the place of the mother or father, or
other persons responsible for the control, care, and welfare of
the child.
(C) [Unchanged.]
(D) Suspension of Parenting Time. If a petition to
terminate parental rights to a child is filed, parenting time for
a parent who is a subject of the petition is automatically
suspended and, except as otherwise provided in this subsection,
remains suspended at least until a decision is issued on the
termination petition. If a parent whose parenting time is
suspended establishes, and the court determines, that parenting
time will not harm the child, the court may order parenting time
in the amount and under the conditions the court determines
appropriate.
[(D)](E) Termination of Parental Rights at the
Initial
Disposition. The court shall order termination of the
parental rights of a respondent at the initial dispositional
hearing held pursuant to MCR 5.973(A), and shall order that
additional efforts for reunification of the child with the
respondent shall not be made, if
(1) the original, or amended, petition for
jurisdiction contains a request for termination;
(2) at the trial or plea proceedings on the issue of
assumption of court jurisdiction, the trier of fact [found
]finds by a preponderance of the evidence that the
child comes under the jurisdiction of the court on the basis of
MCL 712A.2(b); [MSA 27.3178(598.2)(b);]
(3) at the initial disposition hearing, the court
finds on the basis of clear and convincing legally admissible
evidence that had been introduced at the trial[,]
or [at ]plea proceedings, on the issue of assumption of
court jurisdiction, that one or more facts alleged in the
petition:
(a) are true, and
[(b)] [justify terminating parental rights
at the initial dispositional hearing, and]
[(c)](b) [fall under] come
within MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h),
(i), (j), (k), (l), (m), or (n); [MSA 27.3178(598.3);]
unless the court finds by clear and convincing
evidence, in accordance with the rules of evidence as
provided in subrule [(F)](G)(2), that termination
of parental rights is [clearly ]not in the best interest
of the child.
[(E)](F) Termination of Parental Rights on the
Basis of [Changed] Different Circumstances. The
court may take action on a supplemental petition that seeks to
terminate the parental rights of a respondent over a child
already within the jurisdiction of the court on the basis of one
or more circumstances new or different from the offense that led
the court to take jurisdiction. [The new or different
circumstance must fall within MCL 712A.19b(3), and must be
sufficient to warrant termination of parental rights.]
[(1)] [Fact-finding Step. Legally admissible
evidence must be used to establish the factual basis of parental
unfitness sufficient to warrant termination of parental rights.
Except as provided in MCR 5.980, the proofs must be clear and
convincing.]
(1) The court must order termination of the
parental rights of a respondent, and must order that additional
efforts for reunification of the child with the respondent must
not be made, if
(a) the supplemental petition for
termination of parental rights contains a request for
termination;
(b) at the hearing on the supplemental
petition, the court finds on the basis of clear and convincing
legally admissible evidence that one or more of the facts alleged
in the supplemental petition:
(i) are true; and
(ii) come within MCL 712A.19b(3)(a),
(b), (c)(ii), (d), (e), (f), (g), (i), (j), (k), (l), (m), or
(n);
unless the court finds by clear and convincing
evidence, in accordance with the rules of evidence as provided in
subrule G(2), that termination of parental rights is not in the
best interest of the child.
[(2)] [Best Interest Step. Once it is
established that one or more grounds exist under MCL 712A.19b(3),
to terminate the parental rights of respondent over the child,
the court shall order termination of the respondent's parental
rights and order that additional efforts for reunification of the
child with the respondent shall not be made, unless the court
finds in accordance with the rules of evidence as provided in
subrule (F)(2) that termination is clearly not in the best
interest of the child.]
(2) Time for Hearing on Petition. The hearing
on a supplemental petition for termination of parental rights
under this subrule shall be held within 42 days after the filing
of the supplemental petition. The court may, for good cause
shown, extend the period for an additional 21 days.
[(F)](G) Termination of Parental Rights; [Child
in Foster Care] Other. If the parental rights of
[the] a respondent over the child [are]
were not terminated pursuant to subrule (E) at the
initial dispositional hearing or pursuant to subrule (F) at a
hearing on a supplemental petition on the basis of different
circumstances, and the child is [in foster care in the
temporary custody] within the jurisdiction of the
court, the court must, if the child is in foster care, or may,
if the child is not in foster care, following a dispositional
review hearing under MCR 5.975, a progress review hearing
under MCR 5.974, or a permanency planning hearing under MCR
[5.973] 5.976, [may] take action on a
supplemental petition that seeks to terminate the parental rights
of a respondent over the child on the basis of one or more
grounds listed in MCL 712A.19b(3)[; MSA
27.3178(598.19b)].
(1) Time.
(a) Filing Petition. The supplemental petition for
termination of parental rights [shall] may be filed
[no later than 42 days after a dispositional review hearing or
permanency planning hearing where the court has initially
determined that the child should not be returned to the parent
and the agency has failed to demonstrate that initiating
termination proceedings is not clearly in the child's best
interest] at any time after the initial dispositional
review hearing, progress review, or permanency planning hearing,
whichever occurs first.
(b) Hearing on Petition. The hearing on a
supplemental petition for termination of parental rights under
this subrule must be held within 42 days after the filing of the
supplemental petition. The court may, for good cause shown,
extend the [time] period for an additional 21 days.
(2) Evidence. The Michigan Rules of Evidence do not
apply, other than those with respect to privileges, except to the
extent such privileges are abrogated by MCL 722.631. At the
hearing all relevant and material evidence, including oral and
written reports, may be received by the court and may be relied
upon to the extent of its probative value[, even though such
evidence may not be admissible at trial]. The [respondent
and the petitioner] parties must [shall]
be afforded an opportunity to examine and controvert written
reports so received and shall be allowed to cross-examine
individuals who made the reports when those individuals are
reasonably available.
(3) [Standard of Proof] Order. [Except as
provided in MCR 5.980, the proofs must be clear and convincing
that one or more grounds exist under MCL 712A.19b(3) sufficient
to warrant termination of parental rights. If the court finds
that the requisite factual basis of parental unfitness exists,
the court shall order termination of the respondent's parental
rights and order that additional efforts for reunification of the
child with the respondent shall not be made,] The court
must order termination of the parental rights of a respondent and
must order that additional efforts for reunification of the child
with the respondent must not be made, if the court finds on the
basis of clear and convincing evidence admitted pursuant to
subrule (G)(2) that one or more facts alleged in the
petition:
(a) are true, and
(b) come within MCL 712A.19b(3);
unless the court finds by clear and convincing
evidence that termination of parental rights to the child is
[clearly] not in the best interest of the child.
[(G)](H) [Redesignated, but otherwise unchanged.]
[(H)](I) Advice of Right: to Appeal, to an
Attorney, to Transcripts; About Identifying
Information.
(1) Advice. Immediately after entry of an order
terminating parental rights, the court shall advise the
respondent parent orally or in writing that
(a)-(b) [Unchanged.]
(c) a request for the assistance of an attorney must
be made within 21 days after notice of the order is given. The
court must then give a form to the respondent with the
instructions (to be repeated on the form) that if respondent
desires the appointment of an attorney, the form must be returned
to the court within the required period [of time] (to be
stated on the form); and
(d) [Unchanged.]
(2)-(3) [Unchanged.]
[(I)](J) [Redesignated, but otherwise unchanged.]
Comment: New rule 5.977 includes the provisions now found in
MCR 5.974 governing termination of parental rights.
Subrule (A)(1) is amended to make clear that with regard
to termination of parental rights involving an indian child, in addition
to satisfying the federal standard, state grounds for termination
must be established. There is a corresponding change in MCR 5.980(D).
New subrule (D) automatically suspends the parenting
time of a parent as to whom a petition to terminate parental rights is
filed. The court can reinstate parenting time on an appropriate
showing. See MCL 712A.19b(4).
Subrule (E) would be modified to more specifically state
the grounds on which termination of parental rights may be ordered at
the first dispositional hearing.
Subrule (F), regarding termination of parental rights on a
supplemental petition alleging different circumstances, is modified to
more closely correspond to the procedures applicable to the initial
termination hearing.
Subrule (G) is modified to reflect case law holding that
the provisions of the rule and MCL 712A.19b(1) apply both where the
child is in foster care and where the child is not in foster care. See
In re Marin, 198 Mich App 560 (1993).
Subrule (G)(1) would make clear that a supplemental
petition for termination of parental rights may be filed at any time
after the initial dispositional review hearing, progress review, or
permanency planning hearing.
Subrule (G)(2) includes a provision regarding the
applicability of the Rules of Evdience, similar to that found in a
number of the other proposals.
Subrule (G)(3) is modified to require termination of
parental rigths if the grounds for doing so are established, unless
there is clear and convincing evidence that termination is not in the
best interests of the child. See In re Trejo, 462 Mich 341, 354-356
(2000).
Rule 5.978 Post-Termination Review Hearings
Changes shown are from current language of MCR 5.974(J).
[(J)] [Post-termination Review Hearing. If a child
remains in foster care following the termination of parental
rights to the child, the court shall conduct a review hearing, at
least every 182 days, as required by MCL 712A.19c to review the
progress toward permanent placement of the child. The court
shall make findings on whether reasonable efforts have been made
to establish permanent placement for the child, and may enter
such orders as it considers necessary in the best interest of the
child.]
Unless the child has been placed in a permanent foster family
agreement or is placed with a relative and the placement is
intended to be permanent, if a child remains in foster care
following the termination of parental rights to the child, the
court must conduct a hearing not more than 91 days after the
termination of parental rights and at least every 91 days after
that hearing to review the child's placement in foster care and
the progress toward the child's adoption or other permanent
placement, 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. The foster parents (if
any) of a child and any preadoptive parents or relative providing
care to the child must be provided with notice of and an
opportunity to be heard at each hearing. The court must make
findings on whether reasonable efforts have been made to
establish permanent placement for the child, and may enter such
orders as it considers necessary in the best interest of the
child. The jurisdiction of the court in the child protective
proceeding may terminate when a court of competent jurisdiction
enters an order terminating rights of the entity with legal
custody and enters an order placing the child for adoption.[
]
Comment: New Rule 5.978 covers review hearings after termination
of parental rights, a subject now dealt with in MCR 5.974(J). The
provision is modified to conform to the shortened time limit provided by
statute. MCL 712A.19c. It would also exclude from review hearings
cases in which a child has been placed under permanent foster family
agreement, or placed with a relative and the placement is intended to
be permanent. The rule also adds details regarding the conduct of the
hearing.
Rule 5.980 [Child Custody Proceeding Concerning]
American Indian Children
(A) [Unchanged.]
(1)-(3) [Unchanged.]
(B) Emergency Removal. An Indian child who resides or is
domiciled on a reservation, but is temporarily located off
the reservation, must [shall] not be removed from a
parent or Indian custodian unless the removal is to prevent
immediate physical harm to the child. An Indian child not
residing or domiciled on a reservation may be temporarily removed
if [the] [child's health, safety, or welfare is
endangered] reasonable efforts have been made to prevent
removal of the child, and continued placement with the parent or
Indian custodian would be contrary to the welfare of the
child.
(C) [Placement.] Removal Hearing. A removal hearing
must be completed within 28 days of removal from the parent or
Indian custodian.
(1) Evidence. [Except in cases of emergency
removal, an Indian child shall not be removed from the home
unless there is clear and convincing evidence, including
testimony by qualified expert witnesses, that services designed
to prevent the break-up of the Indian family have been furnished
to the family and that continual custody of the child by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.]
(a) An Indian child must not be removed
from a parent or Indian custodian without clear and convincing
evidence that services designed to prevent the break-up of the
Indian family have been furnished to the family and that
continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical injury to
the child.
(b) Evidence at the removal hearing must
include the testimony of expert witnesses who have knowledge
about the child-rearing practices of the Indian child's
tribe.
(2) The Indian child, if removed from [his or her]
home, must [shall] be placed, in descending order
of preference, with:
(a)-(c) [Unchanged.]
(d) an institution for children approved by an Indian
tribe or operated by an Indian organization [which]
that has a program suitable to meet the child's needs.
The court may order another placement for good cause
shown.
(D) Termination of Parental Rights. In addition to the
required findings under MCR 5.977, [T]the
parental rights of a parent of an Indian child must
[shall] not be terminated unless there is also
evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, that parental rights should be
terminated because continued custody of the child by the parent
or Indian custodian will likely result in serious emotional or
physical damage to the child.
Comment: In subrule (B), regarding temporary removal of an indian
child not residing or domiciled on a reservation, a requirement is added
that reasonable efforts must have been made to prevent removal.
Subrule (C) (1)(b) requires that the evidence at a removal
hearing include testimony from expert witnesses who have knowledge
about the child-rearing practices of the tribe.
Subrule (D) is modified to require not only that the
standard for removal mandated by federal law be met, but also that
the state standards for termination of parental rights under MCR
5.977 be satisfied.
Rule 5.981 Minor Personal Protection Orders; Issuance;
Modification; Recision; Appeal [Unchanged.]
Rule 5.982 Enforcement of Minor Personal Protection Orders
(A)-(B) [Unchanged.]
[(C)] [Supplemental Petition.]
[(1)] [Any request for court action against a
minor for purposes of enforcing a minor personal protection order
must be in writing by means of a supplemental petition. The
supplemental petition must contain a specific description of the
facts constituting a violation of the personal protection
order.]
[(2)] [The supplemental petition may be
submitted only by the original petitioner, a law enforcement
officer, a prosecuting attorney, a probation officer, or a
caseworker.]
[(D)](C) [Redesignated, but otherwise unchanged.]
Comment: Current subrule (C), concerning supplemental petitions, is
deleted. The substance of those provisions would be included in
proposed Rule 5.983(A).
Rule 5.983 Initiation of Contempt Proceedings by [Original
Petitioner] Supplemental Petition
(A) Filing; Scheduling. If a respondent allegedly violates a
minor personal protection order, the original petitioner, a
law enforcement officer, a prosecuting attorney, a probation
officer, or a caseworker may submit a supplemental petition
in writing to have the respondent found in contempt.
The supplemental petition must contain a specific description
of the facts constituting a violation of the personal protection
order. Upon receiving the supplemental petition, the court
must [shall] either:
(1)-(2) [Unchanged.]
(B) Service. If the court sets a date for a preliminary hearing
upon receiving the supplemental petition, the petitioner shall
serve, at least 7 days before the preliminary hearing,
[serve,] as provided in MCR 5.920, the supplemental
petition and summons on the respondent and, if the relevant
address or addresses is or are known or easily ascertainable
upon diligent search, on the parent or parents, guardian,
or custodian.
(C) [Unchanged.]
Comment: The changes in subrule (A) are the result of adding
provisions now found in MCR 5.982(C) regarding supplemental petitions.
In subrule (B), a requirement of diligent search for the
address of the minor's parent, guardian, or custodian is added.
Rule 5.984 Apprehension of Alleged Violator [Unchanged.]
Rule 5.985 Preliminary Hearing [Unchanged.]
Rule 5.986 Pleas of Admission or No Contest
(A)-(B) [Unchanged.]
(C) Support of Plea by Parent, Guardian, Custodian. The court
shall inquire of the parent[(]s[)], guardian,
custodian, or guardian ad litem whether [he or she knows
of] there is any reason why the court should not
accept the plea tendered by the minor. Agreement or objection by
the parent, guardian, custodian, or guardian ad litem to a plea
of admission or of no contest by a minor must be placed on the
record if [he or she] that person is present.
(D) [Unchanged.]
Rule 5.987 Violation Hearing
(A)-(B) [Unchanged.]
(C) Preliminary Matters. The court shall
(1)-(2) [Unchanged.]
(3) inform the minor of the right to the assistance of an
attorney unless [legal counsel] an attorney appears
with the minor, and inform the minor that, if the court
determines it might sentence the respondent to jail or place the
respondent in secure detention, [then] the court
will appoint a lawyer at public expense if the respondent wants
one and is financially unable to retain one. If the juvenile
requests to proceed without the assistance of [counsel]
an attorney, the court must advise the minor of the
dangers and disadvantages of self-representation and make sure
the minor is literate and competent to conduct the defense
[and is literate].
(D)-(G) [Unchanged.]
Rule 5.988 Dispositional [Phase] Hearing
(A)-(D) [Unchanged.]
Rule 5.989 Supplemental Dispositions [Unchanged.]
Rule 5.991 Review of Referee Recommendations
(A) General. A judge of the court shall review a referee's
recommended findings and conclusion when requested by a
party.
[(1)] [by a party in a case on the formal
calendar heard by a referee,]
[(2)] [by a juvenile or petitioner from a
determination as to bail or probable cause to support
detention,]
[(3)] [by a party from a determination as to
placement, or]
[(4)] [to avoid manifest injustice in any
case.]
(B) Form of Request; Time. The request for review of either a
referee recommendation or an order based on a referee
recommendation must:
(1)-(2) [Unchanged.]
(3) be filed with the court within 7 days after the
conclusion of the [disposition if the basis for review is as
stated in subrule (A)(1), or within 7 days after the conclusion
of the hearing which resulted in the recommendation if the basis
for review is as provided in subrule (A)(2) or (A)(3).]
inquiry or hearing or within 7 days after the issuance of the
referee's written recommendations, whichever occurs later,
and
(4) be served on the interested parties by the
person requesting review at the time of filing the request for
review with the court. A proof of service must be filed.
(C) Response. A party may file a written response
within 7 days after the filing of the request for review.
[(C)](D) [Redesignated, but otherwise unchanged.]
[(D)](E) Review Standard. The judge must
[shall] [deny the request for review] affirm the
referee's recommendation unless:
(1)-(2) [Unchanged.]
[(E)-(F)](F)-(G) [Redesignated, but otherwise
unchanged.]
Comment: Subrule (A) would be amended to provide for review by a
judge of the referee's recommended findings whenever requested by a
party, deleting the current four specific situations in which review may
be sought. There are corresponding changes in the time for seeking
review in subrule (B)(3).
New subrule (B)(4) is added, explicitly requiring service of
the request for review on interested parties.
New subrule (C) sets the time for a party to file a written
response to a request for review.
The review standard of subrule (E) would be modified to
refer to affirmance of the referee's recommendation, rather than
denial of the request for review.
Rule 5.992 Rehearings; New Trial
(A) Time and Grounds. Except for the case of a juvenile tried
as an adult in the juvenile court for a criminal offense, a party
may seek a rehearing or new trial by filing a written motion
stating the basis for the relief sought within 21 days after
[decision of disposition or supplemental disposition]
the date of the order resulting from the hearing or trial.
The court may entertain an untimely motion for good cause shown.
A motion will not be considered unless it presents a matter not
previously presented to the court, or presented but not
previously considered by the court, which, if true, would cause
the court to reconsider the case.
(B)-(F) [Unchanged.]
Comment: In subrule (A), the language regarding the time for
requesting a new trial or rehearing is modified to refer to the date of
the order resulting from the hearing.
Rule 5.993 Appeals
(A)-(B) [Unchanged.]
(C) Procedure; Delayed Appeals.
(1) Except as modified by this rule, Chapter 7 of
the Michigan Court Rules governs appeals from the juvenile court.
(2) [Formerly (1), redesignated, but otherwise
unchanged.]
[(2)] [Use of Minor's Initials in Published
Opinions. On appeal from a judgment of the juvenile court in a
child protective proceeding, the Supreme Court Reporter shall
delete the full name of the minor and replace the name with the
minor's initials before the Court of Appeals or Supreme Court
opinion is published.]
Comment: MCR 5.933(C)(2), requiring the use of a minor's initials in
published opinions, would be deleted.
Rule 6.901 Applicability
(A) [Unchanged.]
(B) Scope. The rules apply to criminal proceedings in
the district court and[,] the circuit court[,
and the Recorder's Court] concerning a juvenile against whom
the prosecuting attorney has authorized the filing of a criminal
complaint charging a specified juvenile violation [and
warrant charging an enumerated life offense] instead of
approving the filing of a petition in the juvenile court. The
rules do not apply to a person charged solely with an offense in
which the juvenile court has waived jurisdiction pursuant to
MCL 712A.4.[]
Comment: The changes in subrule (B) conform the terminology to
recent statutory amendments, MCL 712A.2a(1); 764.1f(2), and the
elimination of the Recorder's Court for the City of Detroit. See 1996
PA 374.
Rule 6.903 Definitions
When used in this subchapter, unless the context otherwise
indicates:
(A) and (B) [Unchanged.]
(C) "Court" means the circuit court [and the Recorder's Court
of the City of Detroit] as provided in MCL 600.606 [and
MCL 725.10a(1)(c).] and does not include the family
division of the circuit court.
(D) "Juvenile" means a person [15] 14 years of age
or older who is subject to the jurisdiction of the court for
having allegedly committed a [life offense] specified
juvenile violation on or after the person's [15th]
14th birthday and before the person's 17th birthday.
(E) "Juvenile court" means the [juvenile division of the
probate court.] family division of the circuit court.
(F)-(G) [Unchanged.]
(H) ["Life offense"] "Specified Juvenile
Violation" means one or more of the following offenses
allegedly committed by a juvenile in which the prosecuting
attorney has authorized the filing of a criminal complaint and
warrant instead of proceeding in the juvenile court:
(1) burning a dwelling house, MCL 750.72;
[(1)](2) assault with intent to commit murder,
MCL 750.83[; 28.278];
(3) assault with intent to maim, MCL 750.86;
[(2)](4) assault with intent to rob while armed,
MCL 750.89[; 28.284];
[(3)](5) attempted murder, MCL 750.91[;
28.286];
[(4)](6) first-degree murder, MCL 750.316[;
28.548];
[(5)](7) second-degree murder, MCL 750.317[;
28.549];
(8) kidnapping, MCL 750.349;
[(6)](9) first-degree criminal sexual conduct,
MCL 750.520b[; 28.788(2)];
[(7)](10) armed robbery, MCL 750.529[;
28.797];
(11) carjacking, MCL 750.529a;
(12) bank, safe, or vault robbery, MCL
750.531;
(13) assault with intent to do great bodily
harm, MCL
750.84, if armed with a dangerous weapon;
(14) first-degree home invasion, MCL
750.110a(2), if armed
with a dangerous weapon;
(15) escape or attempted escape from a medium-
security or
high-security juvenile facility operated by the Family
Independence Agency, or a high-security facility
operated by a private agency under contract with
the Family Independence Agency, MCL 750.186a;
[(8)](16) possession of [MCL
333.7403(2)(a)(i)] or manufacture, delivery, or possession
with intent to manufacture or deliver of 650 grams or more
of a[ny schedule I or II] controlled substance[, MCL
333.7401-333.7403; MSA 12.15(7401);14.15(7403).] [MCL
333.7401(2)(a)(i)];
(17) any attempt, MCL 750.92; solicitation, MCL
750.157b; or conspiracy, MCL 750.157a; to commit any of the
offenses listed in subrules (1) through (16);
(18) any lesser-included offense of an offense
listed in
subsections (1) through (17) if the juvenile is charged
with a specified juvenile violation;
(19) any other violation arising out of the
same transaction if the juvenile is charged with one of the
offenses listed in subsections (1)-(17).
(I) "Dangerous Weapon" means one of the following:
(1) a loaded or unloaded firearm, whether
operable or inoperable;
(2) a knife, stabbing instrument, brass knuckles,
blackjack, club, or other object specifically
designed or customarily carried or possessed for use as a weapon;
(3) an object that is likely to cause death or bodily
injury when used as a weapon and that is used as a
weapon, or carried or possessed for use as a weapon;
(4) an object or device that is used or fashioned
in a manner leading a person to believe the object or device is
an object or device described in subsections (a) through (c).
(J)-(M) [Formerly (J)-(L), redesignated, but otherwise
unchanged.]
Comment: The changes in the definitions conform to recent
statutory amendments abolishing the Recorder's Court for the City of
Detroit; creating the Family Division of circuit court; reducing the age
of juveniles subject to the provisions to 14 years; and defining
"specified juvenile violations" and "dangerous weapon." See
MCL 712A.2a; 764.1f; 600.606; 600.1001; 1996 PA 374.
Rule 6.907 Arraignment on Complaint and Warrant
(A) Time. When the prosecuting attorney authorizes the filing
of a complaint and warrant charging a juvenile with a [life
offense] specified juvenile violation instead of
approving the filing of a petition in juvenile court, the
juvenile in custody must be taken to the magistrate for
arraignment on the charge. The prosecuting attorney must make a
good-faith effort to notify the parent of the juvenile of the
arraignment. The juvenile must be released if arraignment has
not commenced:
(1) within 24 hours of the arrest of the juvenile; or
(2) within 24 hours after the prosecuting attorney
authorized the complaint and warrant during special adjournment
pursuant to MCR 5.935(A)(3), provided the juvenile is being
detained in a juvenile facility.
(B) Temporary Detention Pending Arraignment. If the prosecuting
attorney has authorized the filing of a complaint and warrant
charging a [life offense] specified juvenile
violation instead of approving the filing of a petition in
juvenile court, a juvenile may, following apprehension, be
detained pending arraignment:
(1)-(3) [Unchanged.]
(C) [Unchanged.]
Comment: The changes would conform the terminology to recent
statutory amendments defining "specified juvenile violation." MCL
712A.2a; 764.1f; 600.606.
Rule 6.909 Releasing or Detaining Juveniles Prior to Trial or
Judgment of Sentence
(A)-(B) [Unchanged.]
(C) Speedy Trial. Within 7 days of the filing of a motion, the
court shall release a juvenile who has remained in detention
while awaiting trial for more than 91 days to answer for the
[life offense] specified juvenile violation
or unless the trial has commenced. In computing the
91-day period, the court is to exclude delays as provided in MCR
6.004(C)(1) through (6) and the time required to conduct the
hearing on the motion.
Comment: The changes would conform the terminology to recent
statutory amendments defining "specified juvenile violation." MCL
712A.2a; 764.1f; 600.606.
Rule 6.911 Preliminary Examination
(A) [Unchanged.]
(B) Transfer to Juvenile Court. If the magistrate, following
preliminary examination, finds that there is no probable cause
that a [life offense] specified juvenile violation
occurred or that there is no probable cause that the juvenile
committed the [life offense] specified juvenile
violation, but that some other offense occurred that if
committed by an adult would constitute a crime, and that there is
probable cause to believe that the juvenile committed that
offense, the magistrate shall transfer the latter to the juvenile
court of the county where the offense is alleged to have been
committed for further proceedings. If the court transfers the
matter to juvenile court, a transcript of the preliminary
examination shall be sent to the juvenile court without charge
upon request.
Comment: The changes would conform the terminology to recent
statutory amendments defining "specified juvenile violation." MCL
712A.2a; 764.1f; 600.606.
Rule 6.931 Juvenile Sentencing Hearing
(A) General. If the juvenile has been convicted of an offense
listed in MCL 769.1(1)(a)-(l), the court must sentence the
juvenile in the same manner as an adult. Unless a juvenile is
required to be sentenced in the same manner as an adult, a judge
of a court having jurisdiction over a juvenile shall
[After a juvenile has been convicted, the court must]
conduct a juvenile sentencing hearing unless the hearing is
waived as provided in subrule (B). At the conclusion of the
juvenile sentencing hearing, the court shall determine whether to
impose a sentence against the juvenile as though an adult
offender or whether to place the juvenile on juvenile probation
and commit the juvenile to state wardship pursuant to MCL
769.1b.
(B) No Juvenile Sentencing Hearing; Consent. The court need not
conduct a juvenile sentencing hearing if the prosecuting
attorney, the juvenile, and the attorney of the juvenile, consent
that it is not in the best interest[s] of the [juvenile
and the] public to sentence the juvenile as though an adult
offender. If the juvenile sentence hearing is waived,
[In the absence of a juvenile sentencing hearing,] the
court shall not impose a sentence as provided by law for an adult
offender. The court must place the juvenile on juvenile
probation and commit the juvenile to state wardship.
(C) Notice of Juvenile Sentencing Hearing Following Verdict.
If a juvenile sentencing hearing is required,
[T]the prosecuting attorney, the juvenile, and the
attorney of the juvenile must be advised on the record
immediately following conviction of the juvenile by a guilty plea
or verdict of guilty that a hearing will be conducted at
sentencing, unless waived, to determine whether to sentence the
juvenile as an adult or to place the juvenile on juvenile
probation and commit the juvenile to state wardship as though a
delinquent. The court may announce the scheduled date of the
hearing. On request, the court shall notify the victim of the
juvenile sentencing hearing.
(D) [Unchanged.]
(E) Juvenile Sentencing Hearing Procedure.
(1) [Unchanged.]
(2) [Burden of Proof. The prosecuting attorney has the
burden of establishing by a preponderance of the evidence that
the best interests of the juvenile and the public would be served
by imposing a sentence against the juvenile as though the
juvenile were an adult offender.] Standard of Proof. The
court must sentence the juvenile in the same manner as an adult
unless the court determines by a preponderance of the evidence,
except as provided in subsection (3)(c), that the best interests
of the public would be served by placing the juvenile on
probation and committing the juvenile to state wardship.
(3) Alternative Sentences For Juveniles Convicted of
Delivery or Possession of 650 Grams or More of Schedule 1 or 2
Narcotics or Cocaine. If a juvenile is convicted of a violation
or conspiracy to commit a violation of MCL 333.7401(2)(a)(i) or
333.7403(2)(a)(i), the court shall determine whether the best
interests of the public would be served by:
(a) imposing the sentence provided by law for an
adult offender;
(b) placing the individual on probation and
committing the individual to a state institution or agency as
provided in MCL 769.1(3); or
(c) imposing a sentence of imprisonment for
any term of years but not less than 25 years, if the court
determines by clear and convincing evidence that such a sentence
would serve the best interests of the public.
In making its determination, the court shall use the
criteria set forth in subrule (4).
[(3)](4) Criteria. The court shall consider the
following
criteria in determining whether to impose a sentence
against the juvenile as though an adult offender or whether to
place the juvenile on juvenile probation and commit the juvenile
to state wardship, giving [each weight as appropriate to the
circumstances] more weight to the seriousness of the
alleged offense and the juvenile's prior record of
delinquency:
[(a)] [the juvenile's prior record and
character, physical and mental maturity, and pattern of living;
] [(b)] [the seriousness and
circumstances of the offense;
] [(c)] [whether the offense is part of
a repetitive pattern of offenses which would lead to the
determination:
] [(i)] [that the juvenile is not
amenable to treatment, or
]
([ii)] [that, despite the juvenile's
potential for treatment, owing to the nature of the delinquent
behavior, the juvenile is likely to disrupt the rehabilitation of
others in the treatment program owing to the nature of the
delinquent behavior;
] [(d)] [whether, despite the juvenile's
potential for treatment, the nature of the juvenile's delinquent
behavior is likely to render the juvenile dangerous to the public
when released at age 21;
] [(e)] [whether the juvenile is more
likely to be rehabilitated by the services and facilities
available in the adult programs and procedures than in the
juvenile programs and procedures; and
] [(f)] [what is in the best interests
of the public welfare and the protection of the public security.
] (a) the seriousness of the alleged
offense in
terms of community protection, including, but not
limited to, the existence of any aggravating factors recognized
by the sentencing guidelines, the use of a firearm or other
dangerous weapon, and the impact on any victim;
(b) the culpability of the juvenile in
committing the alleged offense, including, but not limited
to, the level of the juvenile's participation in planning and
carrying out the offense and the existence of any aggravating or
mitigating factors recognized by the sentencing guidelines;
(c) the juvenile's prior record of delinquency,
including, but not limited to, any record of
detention, any police record, any school record, or any other
evidence indicating prior delinquent behavior;
(d) the juvenile's programming history,
including, but not limited to, the juvenile's past
willingness to participate meaningfully in available programming;
(e) the adequacy of the punishment or
programming
available in the juvenile justice system; and
(f) the dispositional options available for the
juvenile.[
]
[(4)](5) [Redesignated, but otherwise unchanged.]
(F) Postjudgment Procedure; Juvenile Probation and Commitment to
State Wardship. If the court retains jurisdiction over the
juvenile, places the juvenile on juvenile probation, and commits
the juvenile to state wardship, the court shall comply with
subrules (1) through (11):
(1) The court shall enter a judgment which shall contain a
provision for reimbursement by the juvenile or those responsible
for the juvenile's support, or both, for the cost of care and
services pursuant to MCL 769.1[(6)](7)[].
An order assessing such cost against a person responsible for the
support of the juvenile shall not be binding on the person,
unless an opportunity for a hearing has been given and until a
copy of the order is served on the person, personally or by first
class mail to the person's last known address.
(2)-(11) [Unchanged.]
Comment: Subrule (A) is modified to conform to the statute
regarding offenses for which a juvenile must be sentenced in the same
manner as an adult, MCL 769.1(1), and provides for a juvenile
sentencing hearing in other cases.
In subrule (E)(2), the standard of proof at the juvenile
sentencing hearing is established. the juvenile must be sentenced as an
adult unless the court determines that the best interests of the public
would be served by placing the juvenile on probation and committing
the juvenile to state wardship.
Subrule (E)(3) contains provisions regarding alternate
sentences for juveniles convicted of offenses involving 650 grams or
more of controlled substances.
Subrule (E)(4) revises the criteria that the court is to
consider in deciding whether to impose an adult or juvenile sentence.
Rule 6.933 Juvenile Probation Revocation
(A) [Unchanged.]
(B) Disposition In General.
(1) Certain Criminal Offense Violations. If the court
finds that the juvenile has violated juvenile probation by being
convicted of a felony or a misdemeanor punishable by more than
one year's imprisonment, the court must revoke the probation of
the juvenile and order the juvenile committed to the Department
of Corrections for a term of years not to exceed the penalty that
could have been imposed for the offense that led to the
probation. The court in imposing sentence shall grant credit
against the sentence as required by law.
(2) Due Process Requirement. Revocation of probation
in the absence of advice by the trial court at the original
sentencing that, pursuant to MCR 6.931(f)(2), subsequent
conviction of a felony or a misdemeanor punishable by more than
one year's imprisonment would result in the revocation of
juvenile probation and in the imposition of a sentence of
imprisonment at resentencing deprives the juvenile of due
process. The juvenile cannot thereafter have the juvenile's
probation revoked for failure to comply with this condition of
probation.
[(2)](3) [Redesiganted, but otherwise unchanged.]
[(3)](4) If the court revokes juvenile probation
pursuant to subrule (B)(1), the court must receive an updated
presentence report and comply with MCR 6.445(G) before it imposes
a prison sentence on the juvenile.
(C) Disposition Regarding Specific Underlying
Offenses.
(1) Controlled Substance Violation Punishable
by Mandatory Nonparolable Life Sentence For Adults. A juvenile
who was placed on probation and committed to state wardship for
manufacture, delivery, or possession with the intent to deliver
650 grams or more of a controlled substance, MCL
333.7401(2)(a)(i), may be resentenced only to a term of years or
to a parolable life sentence, following mandatory revocation of
probation for commission of a subsequent felony or a misdemeanor
punishable by more than one year of imprisonment.
(2) First-Degree Murder. A juvenile convicted of first-
degree murder who violates juvenile probation by being convicted
of a felony or a misdemeanor punishable by more than one year's
imprisonment may only be sentenced to a term of years, not
nonparolable life.
[(C)](D) Review. The juvenile may appeal as of
right from the imposition of a sentence of incarceration
after a finding of juvenile probation violation.
Comment: New subrule (B)(2) specifies the consequences of failure to
give certain advice to the juvenile at the original sentencing
regarding probation violation.
New subrule (C) limits the sentencing options following
probation violation in cases in which the underlying offense was first-
degree murder or involved 650 grams or more of a controlled
substance.
Rule 6.935 [Semiannual] Progress Review of
Court-Committed Juveniles
(A) General. When a juvenile is placed on probation and
committed to a state institution or agency, the court retains
jurisdiction over the juvenile while the juvenile is on probation
and committed to that state institution or agency. The court
shall review the progress of a juvenile it has placed on juvenile
probation and committed to state wardship. [under MCL
769.1].
(B) Time.
(1) Semiannual Progress Reviews. The
court must conduct [the ]a progress review no later than
182 days after the entry of the order placing the juvenile on
juvenile probation and committing the juvenile to state wardship.
The review shall be made semiannually thereafter as long as the
juvenile remains in state wardship.
(2) Annual Review. The court shall conduct an
annual
review of the services being provided to the juvenile,
the juvenile's placement, and the juvenile's progress in that
placement.
(C) Progress Review Report. In conducting these reviews,
[T]the court shall examine the progress review
report prepared by the [department of social services]
Family Independence Agency, covering placement and
services being provided the juvenile, and the progress of the
juvenile[.], and the court shall also examine the
juvenile's annual report prepared under section 3 of the Juvenile
Facilities Act, MCL 803.223. The court may order changes in the
juvenile's placement or treatment plan including, but not limited
to, committing the juvenile to the jurisdiction of the Department
of Corrections, on the basis of the review.
(D) []Hearings for Progress and Annual Reviews.
Unless the court orders a more restrictive placement or treatment
plan, there shall be no requirement that the court hold a hearing
when conducting a progress review for a court-committed juvenile
pursuant to MCR 6.935(B). However, [T]the
court may not order a more physically restrictive change in the
level of placement of the juvenile or order more restrictive
treatment absent a hearing as provided in MCR 6.937.
Comment: The proposed amendments add details regarding the
reviews to be conducted for juveniles who have been placed on juvenile
probation and committed to state wardship.
Rule 6.937 Commitment Review Hearing
(A) Required Hearing Before Age 19 for Court-Committed
Juveniles. The court shall schedule and hold, unless
adjourned for good cause, a commitment review hearing as near as
possible to, but before, the juvenile's 19th birthday.
(1) Notice. The [department of social services]
Family Independence Agency or agency, facility, or
institution to which the juvenile is committed, shall advise the
court at least 91 days before the juvenile attains age 19 of the
need to schedule a commitment review hearing. Notice of the
hearing must be given to the prosecuting attorney, the agency or
the superintendent of the facility to which the juvenile has been
committed, the juvenile, and the parent of the juvenile if the
parent's address or whereabouts are known, at least 14 days prior
to the hearing. Notice must clearly indicate that the court may
extend jurisdiction over the juvenile until age 21. The notice
shall include advice to the juvenile and the parent of the
juvenile that the juvenile has the right to an attorney.
(2) [Unchanged.]
(3) Reports. The state institution or agency
charged with the care of the juvenile must prepare a commitment
report as provided in MCL 803.225 of the Juvenile Facilities Act.
MCL 769.1b(4) and MCR 6.903(B). A commitment report must contain
all of the following:
(a) the services and programs currently being
utilized by, or offered to, the juvenile and the juvenile's
participation in those services and programs;
(b) where the juvenile currently resides and
the juvenile's behavior in the current placement;
(c) the juvenile's efforts toward
rehabilitation; and
(d) recommendations for the juvenile's release
or
continued custody. MCL 803.225(1)(a)-(d).
The report created pursuant to MCL 803.223 for purposes
of annual reviews may be combined with a commitment review
report.
[(3)](4) [Redesignated, but otherwise unchanged.]
(B) [Unchanged.]
Comment: The proposed amendment of subrule (A) emphasizes that
the review hearing is to be held as close as possible to, but before, the
juvenile's 19th birthday.
New subrule (A)(3) mandates the preparation of a
commitment report under the Juvenile Facilities Act containing
specified information. See MCL 803.225; MCL 769.1b(5).
Rule 6.938 Final Review Hearings
(A) General. The court must conduct a final review of the
juvenile's probation and commitment not less than 3 months before
the end of the period that the juvenile is on probation and
committed to the state institution or agency. If the court
determines at this review that the best interests of the public
would be served by imposing any other sentence provided by law
for an adult offender, the court may impose that sentence.
(B) Notice Requirements. Not less than 14 days before a
final review hearing is to be conducted, the prosecuting
attorney, juvenile, and, if addresses are known, the juvenile's
parents or guardian must be notified. The notice must state that
the court may impose a sentence upon the juvenile and must advise
the juvenile and the juvenile's parent or guardian of the right
to legal counsel.
(C) Appointment of Counsel. If legal counsel has not
been retained or appointed to represent the juvenile, the
court must appoint legal counsel and may assess the cost of
providing counsel as costs against the juvenile or those
responsible for the juvenile's support, or both, if the persons
to be assessed are financially able to comply.
(D) Criteria. In determining whether the best interests
of the public would be served by imposing sentence, the court
shall consider the following:
(1) the extent and nature of the juvenile's
participation
in education, counseling, or work programs;
(2) the juvenile's willingness to accept
responsibility for prior behavior;
(3) the juvenile's behavior in the current placement;
(4) the prior record and character of the juvenile
and the juvenile's physical and mental maturity;
(5) the juvenile's potential for violent conduct as
demonstrated by prior behavior;
(6) the recommendations of the state institution or
agency charged with the juvenile's care for the juvenile's
release or continued custody;
(7) the effect of treatment on the juvenile's
rehabilitation;
(8) whether the juvenile is likely to be dangerous to
the
public if released;
(9) the best interests of the public welfare and the
protection of public security; and
(10) other information the prosecuting attorney
or juvenile may submit.
(E) Credit for Time Served On Probation. If a sentence
is imposed, the juvenile must receive credit for the period of
time served on probation and committed to a state agency or
institution.
Comment: This new rule implements MCL 769.1b(5)-(7), providing for a
final review hearing preceding the end of the period for which the
juvenile is on probation and committed to state wardship. At the
hearing the court is to determine, using criteria drawn from MCL
769.1(b)(1), whether to sentence the juvenile as though an adult.
____________________________________________
A copy of this order will be given to the secretary of
the State Bar and to the State Court Administrator so that they
can make the notifications specified in MCR 1.201. Comments on
this proposal may be sent to the Supreme Court Clerk in writing
or electronically by March 1, 2002. P.O. Box 30052, Lansing, MI
48909, or MSC_clerk@jud.state.mi.us. When filing a comment,
please refer to files 98-50 and 01-19.