In re Prepodnik

337 Mich.App. 238

975 N.W.2d 66

IN RE PREPODNIK, Minor.

No. 352041

Court of Appeals of Michigan.

Submitted April 9, 2021, at Grand Rapids.

Decided May 13, 2021, 9:00 a.m.

Law Office of Steven J. Tinti (by Hannah L. Goodman) for the Iron County Department of Health and Human Services.

Kendricks, Bordeau, Keefe, Seavoy & Larsen, PC, Marquette (by Stephen F. Adamini and Erica N. Payne ) for Shirley Ridolphi.

Before: Murray, C.J., and Markey and Letica, JJ.

Per Curiam.

In this action regarding a juvenile guardianship, appellant Shirley Ridolphi, the guardian and maternal grandmother of EP, appeals by leave granted¹ the trial court's order denying Ridolphi's challenge to the trial court's authority to grant visitation with EP's paternal relatives. We reverse.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Department of Health and Human Services (DHHS) initiated neglect proceedings regarding EP after his father's death and because of his mother's struggle with substance abuse. Eventually, the trial court judge in the neglect proceedings determined that it would be in EP's best interests to appoint a juvenile guardian for EP and not to terminate his mother's parental rights. Ridolphi and EP's paternal aunt, Jeanann Upperstrom, were the only two who sought to be appointed as EP's guardian. After an evidentiary hearing on the issue, the court in the neglect proceedings awarded the juvenile guardianship to Ridolphi. That court cautioned Ridolphi that it believed it was in EP's best interests to maintain a meaningful relationship with his paternal family, even if a specific court order was required to ensure that.

Given that a juvenile guardianship had been established, the present case was opened to monitor it. Issues between the Upperstroms and Ridolphi arose almost immediately and continued through to this appeal. The trial court, relying largely on the decision in the neglect proceedings, awarded significant visitation with the Upperstroms, who lived in Green Bay, Wisconsin. Indeed, the order was similar to those typically issued to a noncustodial parent—EP spent one weekend per month, alternating holidays, and half of the summer in Green Bay. An order setting out those specific dates was set to expire in August 2019, and the trial court was considering entering another similar order for the next year. Ridolphi, citing her status as EP's full legal guardian, challenged the issuance of the new order, contending that the Upperstroms had no legal basis to request court-ordered visitation, and thus, the trial court had no authority to grant it. There was some implication in the proceedings that Upperstrom was coordinating visitation for EP's paternal grandmother, Patsy Prepodnik. Prepodnik, however, did not participate in the case except for attending a mediation session in November 2017.

After a two-day evidentiary hearing in October 2019, the trial court determined that it did have the authority to order Ridolphi, as full legal guardian, to allow EP to have significant visitation with the Upperstroms in Green Bay. This appeal followed.

II. JUVENILE GUARDIANSHIPS AND VISITATION

Ridolphi argues that the trial court did not have authority to grant, and Upperstrom did not have authority to request, parenting time with EP. We agree.

A. STANDARDS OF REVIEW

In a recent case involving requested visitation by a nonparent relative—a grandparent—this Court provided the following summary of law regarding the appropriate standards of review:

"Orders concerning [grand]parenting time must be affirmed on appeal unless the trial court's findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue." Keenan v. Dawson , 275 Mich. App. 671, 679, 739 N.W.2d 681 (2007) (quotation marks and citation omitted). The Court should affirm a trial court's findings of fact unless the evidence "clearly preponderate[s] in the opposite direction." Fletcher v. Fletcher , 447 Mich. 871, 879, 526 N.W.2d 889 (1994) (quotation marks and citation omitted; alteration in original). A trial court abuses its discretion on a custody matter when its "decision is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias." Berger v. Berger , 277 Mich. App. 700, 705, 747 N.W.2d 336 (2008). We conclude that this standard should also apply to decisions about parenting and grandparenting time. A court commits clear legal error "when it incorrectly chooses, interprets, or applies the law."

McIntosh v. McIntosh , 282 Mich. App. 471, 475, 768 N.W.2d 325 (2009). [ Geering v. King , 320 Mich. App. 182, 188, 906 N.W.2d 214 (2017) (alterations in original).]

B. LAW AND ANALYSIS

The trial court committed a clear legal error when it determined that it had the authority to order visitation with EP's paternal relatives, including his paternal grandmother, organized by Upperstrom.

Ridolphi contends that Upperstrom did not have legal authority to request, and the trial court did not have legal authority to grant, parenting time with the Upperstroms in Green Bay. This juvenile guardianship, unlike a typical guardianship, arose during neglect proceedings involving EP and his mother. MCR 3.979(E) ("A juvenile guardianship approved under these rules is authorized by the Juvenile Code and is distinct from a guardianship authorized under the Estates and Protected Individuals Code [ MCL 700.1101 et seq. ]."). During neglect proceedings, courts are required to hold permanency planning hearings, at which "the court shall determine whether and, if applicable, when the ... child may be placed in a legal guardianship." MCL 712A.19a(4)(c). Indeed, under MCL 712A.19a(9)(c), juvenile guardianships are one of a few options available to a court when it determines that termination of parental rights is not in the best interests of the minor child. In the neglect case involving EP, the judge decided that a guardianship with Ridolphi, without terminating the parental rights of EP's sole living parent, was in EP's best interests. Id.

When a trial court finds that appointment of a juvenile guardian is in the best interests of the minor child, it is required to enter an order establishing a guardianship and appointing the guardian. MCR 3.979(B). The chosen guardian, then, must file an acceptance of that appointment, which "at a minimum" must state "that the juvenile guardian accepts the appointment, submits to personal jurisdiction of the court, will not delegate the juvenile guardian's authority, and will perform required duties." MCR 3.979(B)(1). Subsequently, the court issues "letters of authority" to the guardian, in which "[a]ny restriction or limitation of the powers of the juvenile guardian must be set forth ..., including but not limited to, not moving the domicile of the child from the state of Michigan without court approval." MCR 3.979(B)(2). Despite being separate from typical guardianships in Michigan, "[a] guardian appointed under [ MCL 712A.19a(9)(c) ] has all of the powers and duties set forth under ... MCL 700.5215." MCL 712A.19a(10). See also MCR 3.979(E) ("A juvenile guardian has all the powers and duties of a guardian set forth under section 5215 of the Estates and Protected Individuals Code."). In that regard, according to MCL 700.5215, "[a] minor's guardian has the powers and responsibilities of a parent who is not deprived of custody of the parent's minor and unemancipated child ...."

After appointing a juvenile guardian in a neglect case, the statutory scheme requires that the neglect proceedings be dismissed. MCL 712A.19a(12) ("The court's jurisdiction over a juvenile under [ MCL 712A.2(b) ] must be terminated after the court appoints a guardian under this section and conducts a review hearing under section 19 of this chapter, unless the juvenile is released sooner by the court."); MCR 3.979(C)(1)(a) ("The court's jurisdiction over a juvenile under section 2(b) of the Juvenile Code, MCL 712A.2(b), ... shall be terminated after the court appoints a juvenile guardian under this section and conducts a review hearing ...."). The court's jurisdiction over the juvenile guardianship, however, "must continue until released by court order." MCL 712A.19a(13). See also MCR 3.979(C)(1)(a) ("[T]he court's jurisdiction over a juvenile guardianship shall continue until terminated by court order."). "The court shall review a guardianship created under this section annually and may conduct additional reviews as the court considers necessary." MCL 712A.19a(13). Those annual review hearings must continue until the child turns 18 years old. MCR 3.979(D)(1). When reviewing juvenile guardianships, the trial court is required to consider an abundance of issues and factors, including "any written or oral information concerning the child from the child's parent, guardian, custodian, foster parent, child caring institution, relative with whom the child is placed, or guardian ad litem in addition to any other evidence, including the appropriateness of parenting time , offered at the hearing." MCL 712A.19a(14) (emphasis added).

In sum, then, the statutory law, MCL 712A.19a(10), and court rule, MCR 3.979(E), governing juvenile guardianships created during neglect proceedings provide that a juvenile guardian "has the powers and responsibilities of a parent ...."

MCL 700.5215. This Court, in a recent opinion, determined that a parent of a child subject to a juvenile guardianship who has not had their parental rights terminated may seek a court order for parenting time. In re Ballard , 323 Mich. App. 233, 237-238, 916 N.W.2d 841 (2018). This Court in Ballard reasoned that, "[b]ecause MCL 712A.19a(14) plainly envisions a trial court having an authoritative role with respect to parenting time during the course of a guardianship, we construe MCL 712A.19a(14) as providing a court with authority to order parenting time for a parent...