State of Michigan Supreme Court In the Matter of: Jordan Gonzalez, dob: 9/5/2001 Esdeanna Heeren, dob: 10/26/2002

Kylea Heeren, dob: 2/16/2004 Carmen Heeren, dob: 10/03/2005 Chad D. Catalino (P64377) Guardian Ad Litem for Minor Children 1189 Peck Street Muskegon, MI 49442 (231) 722-2222 Supreme Court No. 147515 Court of Appeals No. 309161 (Consolidated with No. 312691) Circuit Court No. 08-036989-NA Muskegon Co. Cir. Court Hon. William C. Marietti Scott Bassett (P33231) Attorney for Appellee Lori Scribner 2407 89th Street NW Bradenton, FL 34209-9443 (941) 794-2904

Charles F. Justian (P35428) Muskegon County Prosecutors Office Attorney for Appellant DHS Michael E. Kobza Hall of Justice 990 Terrace Street - 5th Floor Muskegon, MI 49442 (231) 724-6435 _______________________________________________________________________

Appellee Lori Scribners Answer Opposing Application for Leave to Appeal Proof of Service

Submitted by: Scott Bassett (P33231) Attorney for Appellee 2407 89th Street NW Bradenton, FL 34209-9443 941-794-2904 August 27, 2013

Table of Contents Page: Index of Authorities ........................................................................................................................ ii Counter-Statement of Order Appealed and Relief Sought ............................................................ iv Counter-Statement of Questions Presented ................................................................................... ix Counter-Statement of Basis of Jurisction ........................................................................................x Counter-Statement of Facts..............................................................................................................1 Argument A. The Court of Appeals correctly determined that DHS and the trial court failed to apply the required preference for relative placement throughout the grandmothers requests for placement of the children with her, including, but not limited to, the juvenile guardianship process .....................................................................22 B. The Court of Appeals correctly determined that the trial court misapplied the Juvenile Guardianship statute and court rule by using the best interests factors to engage in a comparison between the paternal grandmother of the children and the foster parents ......................................................................................................................28 C. The Court of Appeals correctly determined the trial court erroneously analyzed the childrens best interests using the factors in MCL 722.23 when it should have used the factors in MCL 710.22(g) ................................................................36 D. The Court of Appeals correctly determined trial courts findings concerning the best interests of the children were against the great weight of the evidence. ..............40 E. Because this appeal is consolidated with the grandmothers Section 45 appeal (COA No. 312691) by order of the Court of Appeals, and because the Court of Appeals expressly declined to address the issues in the Section 45 appeal based on its grant of juvenile guardianship to the grandmother, any grant of leave to appeal in this appeal requires this Court to also grant leave and address the issues in the Section 45 appeal in order to bring finality to the placement of the minor children. ........46 Conclusion/Relief Requested .........................................................................................................48

Index of Authorities Page: Cases Foskett v Foskett, 247 Mich App 1, 634 NW2d 363 (2001) .................................................................................40 In re Mathers, 371 Mich 516, 124 NW2d 878 (1963) .....................................................................................29 Matley v Matley, 234 Mich App 535, 594 NW2d 850, vacated on other grounds, 461 Mich 897, 603 NW2d 780 (1999) ....................................................................................................................22, 28, 36 Federal Statutes 42 USC 671a(19) ........................................................................................................................23 State Statutes Child Custody Act of 1970, MCL 722.21 et seq. ..................................................29, 32, 34, 36, 40 MCL 400.203 ...................................................................................................................................1 MCL 700.5204 ...............................................................................................................................31 MCL 700.5205 ...............................................................................................................................31 MCL 710.22(g) ...................................................................................................................... passim MCL 710.22(g)(x)..........................................................................................................................34 MCL 710.45 ...................................................................................................................................31 MCL 710.45(10) ............................................................................................................................31 MCL 712A.1(3) .............................................................................................................................29 MCL 712A.1 et seq. .................................................................................................................29, 36 MCL 712A.18(1)(b) .......................................................................................................................29 MCL 712A.19 ................................................................................................................................37 MCL 712A.19a ........................................................................................................................30, 36 MCL 712A.19c ..............................................................................................................................36 MCL 722.23 ........................................................................................................................... passim MCL 722.23(j) ...............................................................................................................................34 MCL 722.23(k) ..............................................................................................................................35 MCL 722.875b ....................................................................................................................... passim MCL 722.875b(d) ..........................................................................................................................29 MCL 722.881 .................................................................................................................................37 MCL 722.954a ...............................................................................................................................23 ii

MCL 722.954a(1) ..........................................................................................................................23 MCL 722.954a(2) ..........................................................................................................................29 MCL 722.954a(4) ..........................................................................................................................29 MCL 733.954a(5) ..........................................................................................................................23 Public Act 15 of 2009 ....................................................................................................................27 Court Rules MCR 2.117.....................................................................................................................................21 MCR 3.965(C)(2)...........................................................................................................................29 MCR 3.979............................................................................................................................. passim MCR 3.979(A) ...............................................................................................................................29 MCR 3.979(A)(3) ..........................................................................................................................31 MCR 3.979(e) ................................................................................................................................37 MCR 3.993(A)(4) ......................................................................................................................2, 31 MCR 7.202(6)(a)(i) ..........................................................................................................................2 MCR 7.202(6)(a)(iii)........................................................................................................................2 Other Authorities Child Guardianship Manual (GDM) ..............................................................................................25 DHSs Adoption Services Manual (ADM) ....................................................................................25 DHSs Childrens Foster Care Manual (FOM), Foster Care Placement (FOM) ................. 24-25

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Counter-Statement of Order Appealed and Relief Sought The trial court proceeding was a petition/complaint filed in an existing neglect matter by the paternal grandmother seeking permanent juvenile guardianship the four minor children pursuant to MCL 722.875b and MCR 3.979 (juvenile guardianship). This was not a minor guardianship proceeding under EPIC (MCL 700.5204). DHS, through the Muskegon County Prosecutor, and the childrens LGAL, opposing the grandmothers petition. After an evidentiary hearing, the trial court issued a written opinion dated March 21, 2011, denying the paternal grandmother's request for juvenile guardianship. Appendix A. On May 3, 2011, an order was entered incorporating the trial courts opinion. Appendix B. The trial court then attempted to commit the children to the Department of Human Services Michigan Childrens Institute (MCI) for permanency planning and possible adoption by the children's foster parents. However, as held by the Court of Appeals at p 5 of its decision, that courts reversal of the juvenile guardianship denial constitutes revocation of the commitment to MCI. The grandmother argued on appeal that the trial court erroneously applied the juvenile guardianship statute and improperly used the best interest factors in MCL 722.23 to engage in a comparison between the paternal grandmother and the foster parents. She also argued that the trial courts findings concerning the childrens best interests were clearly erroneous and against the great weight of the evidence. While the juvenile guardianship appeal was pending, the grandmother requested consent from the MCI superintendent to adopt the children. The MCI superintendent denied her consent, finding that adoption by the foster care parents was in the childrens best interests. The

grandmother then filed a motion with the trial court, under MCL 710.45(2), and alleged that the MCI superintendents decision was arbitrary and capricious. The trial court denied the motion

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and the grandmother appealed that decision to the Court of Appeals. The juvenile guardianship appeal was argued in the Court of Appeals on December 5, 2012. Aware of the grandmothers pending Section 45 appeal, the Court of Appeals ordered the juvenile guardianship appeal and the Section 45 appeal consolidated on March 26, 2013. In addition, the Court of Appeals requested supplemental briefs from all parties to both appeals. Oral argument in the Section 45 appeal was dispensed with in favor of the briefs already filed and the supplemental briefs required by the consolidation order. On June 25, 2013, the Court of Appeals (TALBOT, P.J., and MARKEY and RIORDAN, JJ.), issued a unanimous unpublished per curiam decision reversing the trial courts denial of the grandmothers request to be named juvenile guardian of the children. Appendix C. The Court of Appeals held that DHS ignored its statutory obligation to favor placement of the children with a relative. Further, the trial court erred in using the best interest factors in MCL 722.23 (Child Custody Act) to compare the grandmother with the foster parents. A juvenile guardianship is similar to an adoption. Comparisons of prospective adoptive homes are not generally allowed in adoption proceedings. The trial court also erred when it failed to give any special consideration or preference for placement of the children with their grandmother. As stated by the Court of Appeals at p 4 of its decision: Looking at the undisputed facts set forth on the record, it is patent that appellant is an appropriate juvenile guardian for the minor children; she is willing and able to meet their needs. Appellant is in her early 50s, has no health problems, and enjoys physical activity. Appellant is not married, but she raised five sons, mostly as a single parent. Her sons, like the minor children, are multi-racial. Appellant has family members, including her parents, a sister, and a niece, who live in Florida. Appellant is a registered nurse. After she moved to Florida, appellant worked parttime and lived in an apartment with a roommate. But, when DHS told appellant a few months after the children were removed from their mothers care, that she would need adequate space if she wanted the children placed with her, appellant requested additional work hours from her employer. Appellant secured fulltime employment in July 2009, and she earned a salary of $87,000 in v

2010. Although appellant works 40 hours per week, she has the option to work only 32 or 36 hours per week. Moreover, soon after appellant obtained fulltime employment and in response to DHSs advising her that she would need adequate space, she purchased a five-bedroom house. The house has approximately 2,600 square feet. Appellant also became a licensed foster care provider; her license specifically allows the minor children to be placed with her. The local school district, which has been rated A by the state of Florida for several years, was the number one district in the state. Appellant has visited the school the children would attend. In sum, appellant not only quickly fulfilled every DHS requirement, she went significantly above and beyond any legal requirements to ensure she would be well prepared to care for her grandchildren. [Emphasis added.] On this basis, the Court of Appeals found inexplicable the position of the prosecutor and GAL opposing the grandmothers request for juvenile guardianship, stating: There was no testimony that appellant was unwilling or unable to care for the children or would not be able to provide an appropriate home for them. In fact, neither the prosecutor nor the childrens guardian ad litem disputed that appellant would be an appropriate juvenile guardian for the children. The guardian ad litem told that the trial court that appellant deeply loved and cared for the children. The prosecutor told the trial court that appellant was a fit and suitable relative placement: she had a positive relationship with the children; she loved them, and would act in their best interests. Nonetheless, they inexplicably both requested that appellants guardianship petition be denied because the children had found stability with the foster care parents. The trial court then denied appellants guardianship petition because it did not want to undermine the stability and comfort that the children experienced with their foster care parents. [Emphasis added.] The Court of Appeals correctly recognized that from the outset, the grandmother was not given proper consideration as a placement for the children after they were removed from the care of their parents. The actions of DHS and its contractor, Holy Cross, were found equally

inexplicable by the Court of Appeals at pp 4-5 of its decision: Additionally, appellant was never considered by DHS or Holy Cross as a possible permanent placement for the minor children. Although the permanency plan when the children were removed from their mothers care was reunification, this fact did not preclude DHS or Holy Cross from working with appellant to allow her to be a possible permanency provider. See MCL 712A.19(12) (Reasonable efforts to finalize an alternate permanency plan may be made concurrently with reasonable efforts to reunify the child with the family.); MCL 712A.19(13) -5vi

(Reasonable efforts to place a child for adoption or with a legal guardian, including identifying appropriate in-state or out-of-state options, may be made concurrently with reasonable efforts to reunify the child and family.). Again inexplicably--there is no evidence that DHS or Holy Cross contacted appellant or even considered her as a placement for the children when the permanency plan was changed from reunification to termination in December 2008 or when DHS petitioned a second time to terminate the mothers parental rights in March 2010. The case worker from Holy Cross testified that appellant contacted her about becoming the childrens guardian in May 2009 and then again in October 2009. The case worker did not volunteer to help appellant obtain a guardianship, nor did she inform DHS of appellants request. To the case workers knowledge, no one from DHS ever offered to help appellant become the childrens guardian. Appellant testified that after she purchased her five-bedroom house, she contacted DHS and was told that she would need to have the house inspected. After she moved into the house, she again contacted DHS and was then sent back-and-forth between DHS and Holy Cross for quite some time. Eventually, an ICPC contract was sent to Florida. Only then was appellant toldby the state of Floridathat she needed to obtain a foster care license, which she promptly obtained. Although the minor children may have found greater stability with the foster care parents than they had with their mother, this stability stems primarily from the failure of DHS and Holy Cross to consider appellant as a possible permanency provider for the children. This type of bootstrapping is clearly an inappropriate basis upon which to decide this type of matter, i.e., to justify the best interests of the children. [Emphasis added.] Because granting juvenile guardianship to the grandmother rendered her appeal of the Section 45 adoption determination moot, the Court of Appeals expressly declined to address the issues in the consolidated Section 45 appeal, COA No. 312691. The matter was remanded to the trial court with instructions to enter an order granting the grandmother juvenile guardianship of the children. Concerned that DHS would continue its inexplicable pattern of placing unreasonable roadblocks in the way of placing the children with the grandmother, she filed a motion for immediate effect of the Court of Appeals decision so that the children could be transferred to her prior to the start of school in Florida on August 19, 2013. The Court of Appeals on July 22, 2013, ordered that its decision be given immediate effect. Appendix D. In the same order, it

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denied motions for reconsideration and remand filed by DHS and MCI and also struck DHSs answer to the immediate effect motion for including improper extra-record material. The trial court declined the grandmothers request for an immediate hearing following the July 22 order from the Court of Appeals and instead scheduled a hearing for approximately two weeks later on August 5, 2013. On that date, the prosecutor, on behalf of DHS, file its

application for leave to appeal to this Court. That filing was apparently followed by a motion for stay pending appeal and a motion for immediate consideration, neither of which were served on the grandmothers sole appellate counsel in the juvenile guardianship appeal. The trial court entered an order implementing the Court of Appeals decision on August 6, 2013, and the children were transferred to the grandmother and brought to her home in Florida. Without verifying that the grandmothers sole appellate counsel in the juvenile guardianship appeal had been served or providing any opportunity for a response to the prosecutors stay motion, this Court entered on order on August 7, 2013, staying the effect of the Court of Appeals decision. The grandmothers motion to vacate the stay on substantive and due process grounds was denied by this Court in an order dated August 13, 2013. The children have been returned to foster care pending resolution of this appeal.

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Counter-Statement of Questions Presented A. Whether the Court of Appeals correctly determined that DHS and the trial court failed to apply the required preference for relative placement throughout the grandmothers requests for placement of the children with her, including, but not limited to, the juvenile guardianship process? B. Whether the Court of Appeals correctly determined that the trial court misapplied the Juvenile Guardianship statute and court rule by using the best interests factors to engage in a comparison between the paternal grandmother of the children and the foster parents? C. Whether the Court of Appeals correctly determined that trial court erroneously analyzed the childrens best interests using the factors in MCL 722.23 when it should have used the factors in MCL 710.22(g) ? D. Whether the Court of Appeals correctly determined that trial courts findings concerning the best interests of the children were against the great weight of the evidence ? E. Whether any decision to grant leave to appeal in the juvenile guardianship matter requires this Court to also grant leave to appeal and consider the issues in the grandmothers Section 45 appeal (COA No. 312691) that is consolidated with this appeal by order of the Court of Appeals because the Court of Appeals expressly declined to address the issues in the Section 45 appeal based on its grant of juvenile guardianship to the grandmother and resolution of those issues is necessary to grant complete relief to the parties and finalize placement of the minor children? To Each Question: Grandmother: Yes DHS: GAL: TC: COA:

No No No Yes

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Counter-Statement of Basis of Jurisdiction Appellee does not dispute appellants Statement of Jurisdiction.

Counter-Statement of Facts Introduction and Procedural History: Appellee Lori Scribner (Lori) is the paternal grandmother of three of the four minor children involved in this action. Lori is a registered nurse (RN) licensed in both Michigan and Florida. Her son, Joseph, was the biological and legal father of all of the children but the oldest, Jordan. On July 1, 2010, Lori filed a motion to intervene in the pending abuse/neglect action in Muskegon County. Lori asked to be appointed the juvenile guardian of all four minor children pursuant to a newly enacted statute, MCL 722.875b, and newly adopted court rule, MCR 3.979. The trial court conducted an evidentiary hearing over several days spanning more than six months in during the second half of 2010 and continuing into 2011. On March 21, 2011, the trial court issued a written opinion analyzing appellees juvenile guardianship requests using the best interest factors found in MCL 722.23 and compared the Loris home with the home offered by the foster parents. Appendix A. Based on that comparison, and emphasizing its stated goal of maintaining the continuity of the foster care placement, the trial court denied Loris motion. An order incorporating the trial courts ruling was entered on May 3, 2011. Appendix B. After denying Loris motion for juvenile guardianship, the trial court committed the children to DHS/MCI for permanency planning, supervision, care, and placement under MCL 400.203. March 21, 2011, opinion, p 5. The parental rights of Joseph Heeren (father of the three younger children) and Richard Bellow (father of the oldest child) were terminated prior to Loris juvenile guardianship request. The parental rights of the mother were terminated during the pendency of the juvenile guardianship proceedings. During the juvenile guardianship

proceedings, the foster parents filed a petition to adopt the children. Contrary to the statement at p 22 of appellants application for leave to appeal, the foster parents have not adopted the

children. Lori filed a timely appeal by right from the trial courts May 3 order on May 11, 2011. As the functional equivalent of an order affecting child custody and/or denying adoption, Lori believed the May 3 order was a final order appealable by right under MCR 7.202(6)(a)(iii). Also, based on the final and permanent impact on the Loris right to seek juvenile guardianship/custody of her grandchildren, she believed the trial courts was a final order under MCR 3.993(A)(4) [any final order] and MCR 7.202(6)(a)(i) [the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties.]. The Court of Appeals administratively dismissed Loris appeal by right in an order dated June 15, 2011, because this case is a child protective proceeding, not a domestic relations action. Loris motion for reconsideration of the dismissal order was denied by the Court of Appeals Court on July 20, 2011. Lori then filed a delayed application for leave to appeal. The Court of Appeals granted leave to appeal by order dated July 23, 2012. After briefs by all parties, oral argument took place on December 5, 2012. Neither the prosecutor nor the GAL appeared for argument. Meanwhile, after the trial court denied Loris guardianship petition, the children were committed to MCI, which contracted with Bethany Christian Services for adoption planning. Lori immediately contacted Bethany and advised them of her interest in adopting her grandchildren. Without ever speaking with Lori or reviewing her completed paperwork, the caseworker at Bethany recommended that Lori not be allowed to adopt. After a review by the MCI Superintendent, who also never spoke with Lori, consent to adopt the children was granted to the foster parents instead of Lori. On October 17, 2011, Lori filed petitions to adopt her grandchildren, along with her

Section 45 motions.

The hearings on the Section 45 motions took place over four days:

February 10, May 2, May 3, and July 25, 2012. The trial court denied the motions in an opinion dated September 14, 2012. Lori, through different appellate counsel, filed an appeal by right from the Section 45 denial. That appeal was assigned Docket No. 312691. After oral argument in the juvenile guardianship appeal and receiving briefs from Lori, the GAL, and MCI/DHS in the Section 45 appeal, the Court of Appeals issued an order on March 26, 2013, consolidating the Section 45 and juvenile guardianship appeals. Appendix E. In that order, the Court of Appeals ordered supplemental briefs from all parties in both cases addressing how review and disposition of the issues in each appeal would affect that other appeal. For inexplicable reasons, the prosecutor on behalf of DHS does not mention this order of consolidation anywhere in its application to this Court. Nor does the prosecutor make any mention at all the Section 45 proceedings in the trial court or the subsequent appeal. It is as if the consolidated appeal does not exist. After receiving the supplemental briefs, the Court of Appeals issued its decision on June 25, 2013, reversing the trial courts denial of the grandmothers request to be named juvenile guardian of the children. Appendix C. As more fully described in the Counter-Statement of Order Appealed and Relief Sought above, the Court of Appeals determined that the grant of juvenile guardianship to Lori rendered her adoption appeal moot and therefore declined to address the issues raised by Lori in that appeal. Factual History: The four children involved in this case are Jordan Gonzalez, DOB 09/05/2001; Esdeanna Heeren, DOB 10/26/2002; Kylea Heeren, DOB 02/16/2004; and Carmen Heeren, DOB 10/03/2005. The biological father of Jordan is Richard Bellow. The biological father of the other three children is Joseph Heeren. The biological mother of the children is

Kathleen Boduc. The children were removed from their home on February 8, 2008. They were initially placed in two separate foster homes by DHS. Jordan was placed in the Cottrell foster home in Spring Lake. The girls were placed in the Blain foster home in Muskegon. Once it was determined that there was no need for Jordan to be separated from his sisters, the Blain home requested that he be placed there. Despite this request, all four children were moved to the Koetje foster home in Tustin, Michigan, on October 10, 2008, where they currently remain. These children are the first foster children to be placed with the Koetje family. The parental rights of the fathers were terminated on June 4, 2009. The mother

consented termination of her parental rights in July of 2010 for the purpose of allowing Lori Scribner to pursue her request for juvenile guardianship of the children. Lori consistently requested that all four children be placed with her starting in the summer of 2008 when the children had been in foster care only a few months. T 8/26/10, p 131. The prosecutor

erroneously asserts that Loris efforts to provide a home for the children began with her juvenile guardianship petition in the trial court in mid-2010. This ignored the two years she attempted to work within the system to obtain placement of her grandchildren before resorting to litigation. Loris relationship with the children was always regular, consistent, and long-standing. T 11/17/10, 70-71. It was a relationship that went all the way back to the birth of Jordan, the oldest child, in 2001. T 8/26/10, 122-126. Although Jordon is not Loris biological grandchild, she always viewed him as my grandson. T 8/26/10, 122. DHS and the GAL also consistently treated Lori and Jordans grandmother throughout the trial court proceedings. acknowledged by the Court of Appeals at pages 3 and 5 of its decision. The children spent one to two weeks each summer with Lori and she watched them This was

frequently on other occasions. T 8/26/10, 122. The summer of 2007, before the children were placed in their initial foster home in early 2008, Lori came up from Florida to spend 12 days with the children. T 8/26/10, 124. Numerous photographs were admitted into evidence showing the children enjoying various activities and spending time with Lori. Petitioners Hearing Exhibit D. She also was able to spend three days with the children in the summer of 2008 during the childrens visit with their mother. T 8/26/10, 145-146. She also saw the children during the summer of 2009 at a visit arranged at a McDonalds restaurant by Andrea Hagen of Holy Cross, the foster placement agency. T 8/26/10, 147. In addition to face-to-face contact, there was frequent, typically weekly, telephone contact between Lori and the children even after they were removed from their mothers home. T 8/26/10, 126. When the three younger children were in their original foster placement, Lori was able to maintain regular telephone contact with them by directly calling the foster home. T 8/26/10, 126-127. She had less contact with Jordan during much of 2008 because he was in a different foster home before all four children were placed in their current foster home in October of that year. T 8/26/10, 127. Not only did Lori repeatedly request that DHS place the children with her in Florida, she went to extraordinary efforts to maintain contact with the children after they were placed in their current foster home. When telephone contact directly with the children at their current foster home was rebuffed, Lori persisted by maintaining phone contact with the children during the childrens regular visits with their mother. T 8/26/10, 128. She also was able to spend three days with the children in the summer of 2008 during the childrens visit with their mother. T 8/26/10, 145-146. Because the current foster home was identified by DHS and the private foster care

agency, Holy Cross, as a potential adoptive placement, both agencies did their best to cut-off contact between Lori and the children, going so far as to refusing to arrange for visits and cutting off direct telephone communication. T 8/26/10, 128; Petitioners Hearing Exhibit E. After approximately 25 attempts contacting Holy Cross, Lori was finally at the end of May 2010 allowed to resume regular telephone contact with the children. T 8/26/10, 130. She was never allowed to call the foster home directly to speak with the children, but instead was required to call the caseworkers phone. T 8/26/10, 130. It was clear to Lori that DHS and Holy Cross saw her as a threat to their plan to have the children adopted by their new foster parents. Lori also attempted to maintain contact by always sending the children birthday and Christmas presents throughout the time they were in foster care. The gifts were routed through the foster care agency, Holy Cross, as instructed by caseworker Andrea Hagen during Loris initial telephone contact with her in October of 2008. Unfortunately, for reasons that were never satisfactorily explained to Lori, the gifts she sent were returned unopened. Undeterred, rather than sending actual gifts, Lori sent gift cards to the children through Holy Cross for Christmas of 2008. They too were returned. It wasnt until Christmas of 2009 that her gifts to the children were received, but that was only because she routed them through the childrens mother, Kathy, who still had court-ordered visitation. T 8/26/10, 171-173, 176-185. In addition to fighting the system in order to maintain contact with her grandchildren, Lori continued to advance her request that the children be placed with her. In the midst of an economic downturn, she struggled to increase her work hours to earn enough money to purchase a large home to accommodate the children as suggested by Muskegon DHS. T 8/26/10, 131. By July of 2009, she had increased her hours and saved enough money to purchase a five-bedroom 2600 to 2700 square foot home in an excellent neighborhood with good schools in St. Augustine,

FL. T8/26/10 137-140; Petitioners Hearing Exhibit F. The school district in which Lori resides, St. Johns County, was rated A and ranked the best in Florida. T 8/26/10, 140. It offered highquality services to meet all of the childrens special needs. T 8/26/10, 140-142; Petitioners Hearing Exhibit G. With a fine home and excellent schools ready for the children, Lori notified DHS she was ready to accept them into her home. T 8/26/10, 132-133, 137. Continuing to delay and place obstacles in Loris way, DHS responded that Lori needed to have her home inspected before the children could be placed with her. Lori attempted for many months to arrangement for an inspection. She called DHS and Holy Cross about twice weekly. T 8/26/10 133-134. DHS and Holy Cross passed the buck back and forth trying to determine which was responsible for contacting Florida authorities to arrange for the inspection. T 8/26/10, 134. It wasnt until March that Lori was contacted by Florida authorities to schedule the inspection belatedly requested by Michigan through the Interstate Compact on the Placement of Children (ICPC). T 8/26/10, 24. At that time, Lori was told by Florida authorities that she would not only need to have her home inspected, but that she would also need to become a licensed foster parent. T 8/26/10, 134-135. Lori promptly applied for her foster care license and took the required training ten-week training class starting in April 2010. T 8/26/10. After a thorough investigation by Florida authorities, Lori became licensed as a foster parent in August of 2010. T 8/26/10, 26, 29.. Meanwhile, Loris persistence in seeking restoration of actual rather than telephone contact with the children finally met with success in July of 2010. This was their first actual contact in approximately a year. The children were smiling and happy to see their grandmother after being kept apart for almost a year. T 8/26/10, 147-149. Lori saw no problems during that

initial two-hour visitation on July 27, 2010. T 8/25/10, 150. There was a second visit the following day at the same park in Cadillac that last more than the scheduled 2 hours. T 8/25/10, 148, 151-153. The second visit was equally successful, with the children happy, playful, and hugging Grandma Lori. T 8/25/10, 154; Petitioners Hearing Exhibit H. The third visit, July 29, did not start well. The children came to the visit fearful and it appeared to Lori that theyd been traumatized. T8/26/10, 155. The children reported that they had a family meeting with their foster parents the night before, but that they were not allowed to talk about it. T 8/26/10, 155. Esdeanna in particular, and also Kylea, seemed more fearful than Carmen and Jordan. T 8/26/10, 155. Even Carmen stated that the foster mother told her she wasnt safe with Lori. T 8/26/10, 162-163. Throughout the visit, the children repeated that they would be in trouble if they talked about what was discussed in the family meeting. T 8/26/10, 163. Although the planned trip by Lori and the children to the zoo was not scheduled to be supervised, Holy Cross sent two people plus a transporter because the children were afraid. T 8/26/10, 157. The implication that the children were afraid of her upset Lori. She was

convinced that the childrens reaction at the start of the visit was the result of psychological abuse inflicted on them in an effort to turn them against her for the purpose of facilitating the childrens adoption by their foster parents. T 8/26/10, 157-158. When they stopped at a restaurant on the way to the zoo, Esdeanna remained fearful and didnt want to go into the restaurant. She told Lori that she wasnt supposed to come near her and would get in trouble if she did. T 8/26/10, 159. At the zoo, as the visit progressed, the children relaxed. However, at the end of the visit as they were getting ready to leave the zoo, Esdeanna had to go to the bathroom. When there was a problem getting the stall door closed in

time, she wet her pants and became very upset. She expressed fear that she would by physically punished by her foster parents if they learned that she wet her pants. T 8/26/10, 160-161. The childrens fearfulness and comments so concerned Lori that she raised the issue with one of the Holy Cross supervisors who said he would discuss it with the foster parents. T 8/26/10, 163. The next day, July 30, Lori remained concerned and called DHS to express her concerns. T 8/26/10, 164. When she heard nothing, she made a follow up call several days later on August 4, 2010. Id. Loris legitimate expression of concern from the children only further hardened the position of DHS and Holy Cross against her. She was forced to file two motions to obtain visitation with the children at her home in Florida. As part of that process, she paid the fees for an independent psychological assessment of the children. That assessment included the question of whether the children would be traumatized, as alleged by DHS and Holy Cross, if the children were allowed spend time with Lori in Florida. It also included an interview with, but not evaluation of, Lori. The psychologist who conducted that assessment, Joseph Auffrey, Ph.D., concluded that trauma was unlikely and that the children could transition to residing with Lori in Florida if ordered by the court. T 11/17/10, 13-15. Dr. Auffrey testified that coaching of the children to hold a negative view of their grandmother (Lori) or an overly positive view of the foster home by either the foster parents or those allied with them was a good possibility. T 11/17/10, 9. In his written report, which was admitted into evidence as Petitioners Hearing Exhibit I at the November 17, 2010, hearing, Dr. Auffrey elaborated on the question of the children being influenced against their grandmother for the alleged purpose of promoting their adaptation to their foster home: These children, individually and collectively, have obviously been subjected to indoctrination and alienation in regard to the various parent figures in their lives. 9

It seems highly likely that the Child Protective Services and Foster Care system has tried to steer these children in the direction of adapting to a new life after parental termination. Probably many well-intended individuals have "helped" the children to shape their interpretations. More recently, perhaps, the foster-parent home may have introduced the children to a new value system, which is now seen as preferred and superior to alternatives. * * * Petitioners Hearing Exhibit I, Report of Dr. Auffrey, 9/1/2010, p 10, attached as Appendix F. This indoctrination and alienation included DHS, Holy Cross, and the foster parents telling the children they missed a planned vacation in order to have a visit with their grandmother shortly after a court date on August 26, 2010. T 11/17/10, 47. Despite Dr. Auffreys report and testimony and the availability of Florida foster care officials to monitor the visits, DHS steadfastly opposed or ignored for several months Lori request for visitation with the children at her home in Florida over Thanksgiving and again at Christmas. T 11/17/10, 43-44; 93. Under oath in open court, Holy Cross social worker Ruth Andres spoke of her own fear of flying and, on that basis alone, concluded that the children would be afraid of flying to Florida to visit Lori. T 11/17/10, pp 82-83. At the conclusion of the November 17, 2010, hearing date, the trial court granted Loris request for visitation with the children at her home in Florida over the Thanksgiving and Christmas breaks. The court reserved the right to cancel the Christmas visitation if either Dr. Auffrey or Ruth Andres, after meeting with the children upon their return from Florida, concluded that the Thanksgiving visit was problematic. T 11/17/10, pp 99-102. An order providing for the Thanksgiving and Christmas visitation in Florida was signed by the trial court on December 1, 2010. Lori Scribner and her daughter-in-law, Kim Heeren, flew with the children from Michigan to Florida at the beginning of the first court-ordered Florida visitation over Thanksgiving break. T2/9/11, 22, 43. The children were brought to the airport by a Holy Cross 10

worker and were a little nervous at first, but once on the plane they were excited about the trip and competed for a window seat. T 2/9/11, 23, 43. Once in Florida with Lori, the children enjoyed a variety of activities ranging from attending a Christmas lighting ceremony in downtown St. Augustine, taking trolley ride, visiting a fort and the fountain of youth, attending church, swimming, and trying different foods they had not previously eaten. T 2/9/11, 23, 43-44, 49. They also visited the school they would attend if allowed to live with their grandmother. They thought it was awesome. T 2/9/11, 24-25. They also liked the church Lori attends in St. Augustine. T 2/9/11, 25. Both Lori and her daughter-in-law, Kim Heeren, testified that the children enjoyed the visit, were not traumatized in any way, and were sad to leave at the end of the visit. T 2/9/11, 25, 44-47. Patricia Swan, a Florida foster care licensing specialist, observed the four children while in Loris care at Thanksgiving. Ms. Swan found the children to be happy and talkative. T 2/9/11, 40. Kim Heeren escorted the children back to Michigan from Florida after the

Thanksgiving visit. T 2/9/11, 22. After the Thanksgiving visit, there was disagreement between the parties as to how the visit went. Holy Cross social work Ruth Andres testified that she thought the children were angry after they returned from Florida. T 1/12/11, 12. When she questioned them at the foster home, the three girls stated they did not want to return to Florida for Christmas. Jordan did not offer an opinion one way or the other. T 1/12/11, 14. However, according to the independent psychologist, Dr. Auffrey, the visit went well for the children. In a December 1, 2010, letter following the Thanksgiving visit, Dr. Auffrey wrote: Each child is interviewed individually. The children were unanimous in their reports of favorable adjustment on the trip without any indications of acrimony or symptom display. Each child reported favorable impressions of the home setting and family management by Grandma Lori. 11

Petitioners Hearing Exhibit 9, attached Appendix G. Dr. Auffrey testified that the children were seen directly following their return from Florida after the Thanksgiving visit. Concerning Esdeanna, Dr. Auffrey noted a very distinct contrast between her earlier pessimistic outlook and her ebullient description of the time spent with her grandmother over Thanksgiving. T 2/9/11, 6. Jordan description of the visit led Dr. Auffrey to conclude that he had a uniformly positive time in Florida with Lori. T 2/9/11, 6. Carmen was less emotionally expressive, but also in answering specific questions about the visit, Dr. Auffrey again concluded that her experience was also positive. T 2/9/11, 7. Finally, Kylea didnt report any trouble with the visit, said she enjoyed the airplane trip and gave a favorable report about all of the activities she participated in while in Florida with her grandmother over Thanksgiving. T 2/9/11, 7-8. There was nothing in the childrens report to Dr. Auffrey to indicate that the visit produced anxiety, trauma, or had any kind of negative impact on the children. T 2/9/11, 8. Despite the favorable report from Dr. Auffrey, Holy Cross delayed giving permission for the children to travel to Florida for the Christmas break until just a few days before the children were scheduled to leave. T 2/9/11, 52. That delay substantially increased the cost of airfare paid by Lori to fly the children to Florida for the Christmas visit. T 2/9/11, 54. Kim Heeren also escorted the children to and from Florida for the Christmas visit. She reported that when the Holy Cross worker brought the children to the airport, all were excited to return to Florida except Esdeanna (Esde). Then, once the Holy Cross worker left, Esdes attitude changed and she too expressed excitement to go. T 2/9/11, 27. During the Christmas visit, the children spend much time with extended family and enjoyed it. T 2/9/11, 28, 30-31, 48-49. Patricia Swan also observed the children during the Christmas visit and concluded that they were having a very good time. T 2/9/11, 41. Ms. Swan, a foster care case manager for 12

five years and foster care licensing specialist for three years, said the children were very happy with their grandmother and thought they could adjust to living with her. T 2/9/11, 42. The Christmas visit lasted a few extra days due to a weather-related cancelation of the childrens return flight by the airline. T 2/9/11, 50-52. Following the Christmas visit, Dr. Auffrey met with the children on January 12, 2011. Although the adults may have been concerned about the weather-related delay in returning to Michigan, the children viewed it as an adventure. As with the Thanksgiving visit, each of the children (except Carmen, who was sleeping) reported that they had a good time on the visit with their grandmother in Florida. T 2/9/2011, 9-10. In summarizing his findings, Dr. Auffrey wrote in a letter dated January 12, 2011: All 4 of the Gonzales/Heeren children are seen this date, although the youngest, Carmen cannot be roused from deep sleep for interview. The 3 older kids are reporting positive experiences on their recent Christmas [sic] visit to Grandma Loris home in Florida. They uniformly display positive mood state and also indicate favorable readjustments to school in Michigan. There is no pathology to report or indications of adjustment problems. Petitioners Hearing Exhibit 10, attached as Appendix H. Following successful completion of the Thanksgiving and Christmas visits, Ruth Andres, the Holy Cross social worker who provided counseling services to the children, testified that it didnt matter that Lori could provide an appropriate home, was a licensed foster parent, or that she was the childrens grandmother. The fact that the children had formed a bond in their current foster home, alone, made the risk of placing the children with Lori greater than the benefit. T 1/12/11, 29. In rejecting the concept that the children might benefit from being placed with family, Andres boldly stated that biological ties dont mean anything to children. T 1/12/11, 29. She stated that she was unaware of any law that gave placement priority to relatives of minor children. T 1/12/11, 30. If such a law exists, Andres would disagree with it. T 1/12/11, 30. 13

Andres testified that children in foster care should be placed with a relative only if they were not doing well where they are now. T 1/21/11, 46. Notably, Andres never spoke with Lori at any time during the trial court proceedings before stating her view that it was too risky to place the children with her and that they should remain in the foster home. However, she spoke with the foster parents many times. 1/12/11, 38. Contrary to Ms. Andres testimony, Dr. Auffrey saw no reason to believe that the children were uncomfortable with their grandmother or would be traumatized if placed permanently in her care. T 2/9/11, 11-13. He concluded that the kids have established a relationship with Grandma Lori and her entire surroundings and situation enough so that they, they feel it's a significant part of them. They identify it as part of their family constellation. T 2/9/11, 20. If the children expressed negative feelings about their grandmother when seen by Ms. Andres, Dr. Auffrey attributed such comments to the children perceiving that Ms. Andres wanted to hear them say negative things about Lori. Children can become savvy about the expectations of an interviewer. T 2/9/11, 13-14. This problem may have been exacerbated by Ms. Andres decision to interview the children in the home of the foster parents and to do so while all four children were together in the same room. T 2/9/11, 14-16. The foster father, Terry Koetje, testified. He works full-time doing log home restoration and made $26,000 in 2010. His wife, Derise, works half-time as a secretary earning $11,000 to $12,000 per year. Two of their biological daughters, ages 18 and 14, also live in the home. T 2/9/11, 92. A third daughter is away at college. T 2/9/11, 109. For their foster services taking care of the four Gonzalez/Heeren children, the Koetjes receive approximately $1,150 every two weeks. T 2/9/11, 91. 1/12/11, 38.

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This was the Koetjes first time having foster children. T 2/9/11, 80. Mr. Koetje acknowledged being told by Holy Cross that some of the discipline techniques he and his wife used on the children were not acceptable. These include making the children drink fish oil, putting drops of tabasco sauce on their tongues, and making them run laps around the house. T 2/9/11, 97-99. Terry Koetje thought the children were quite well bonded to himself, his wife, and their children. Initially, the foster parents encouraged the children refer to them as Aunt Derise and Uncle Terry because that was more in keeping with their role as foster parents. However, after about a year, they let the children refer to them as mom and dad. T2/9/11, 67. The foster parents filed an adoption petition concerning the children which was pending during the hearing on Lori Scribners juvenile guardianship request. Terry admitted that he and his wife were committed to adopt the children from the day they were placed with them and had discussed adoption for many years. T2/9/11, 68. Holy Cross records show that the Koetjes asked about adoption even before parental rights were terminated. T 2/9/11, 165-166. Mr. Koetje expressed disappointment that the court did not terminate parental rights and make the children available for adoption when the termination issue first came up in 2009. T 2/9/1, 80-81. The children had been in the Koetje foster home for only two months when the Koetjes had their first indirect contact with Lori Scribner. She sent a box of Christmas gifts. T2/9/11, 70. The Koetjes made no effort to contact Lori to thank her for the presents or to have the children do so. T2/9/11, 84-85. The Koetjes were also aware that the children saw Grandma Lori during the childrens supervised visits with their mother in 2009. T2/9/11, 71. Once Lori began having her own visits with the children separate from the mothers visits, Mr. Koetje reported that the two of the children, Esdeanna and Kylea, were quite terrified at the prospect

15

of visiting their grandmother in Florida.

T 2/9/11, 72.

However, he noticed no school

performance or behavior issues related to the childrens Thanksgiving and Christmas trips to Florida. T 2/9/11, 74. The relationship between the Koetjes and Lori Scribner was not positive. The Koetjes obtained a Personal Protection Order (PPO) against the childrens grandmother on the advice of the executive director of Holy Cross as a result of postings to the Internet made by Lori Scribners brother. T 2/9/11, 149-150. The PPO remained in effect at the close of the trial courts hearings. T 2/9/11, 85. The PPO prevented Lori from calling the children at the Koetjes home or sending gifts to the children there. T 2/9/11, 86. From Mr. Koetjes perspective, the PPO also prevented the Koetjes from calling or otherwise contacting the children when they were at Loris home in Florida over Thanksgiving and Christmas. T 2/9/11, 104. Although weekly telephone contact between the children and their grandmother was finally arranged in 2010, Mr. Koetje testified that he and the Holy Cross caseworkers and supervisor decided to give the children the power to opt-out of the weekly calls from Lori. T 2/9/11, 75-76. This was in response to what he perceived to be the childrens reluctance to speak with Lori on the telephone. T 2/9/11, 75. Mr. Koetje stated that if he and his wife are permitted to adopt the children, they would look at the option of allowing the children to maintain a relationship with their grandmother if we feel it is in their best interest. T 2/9/11, 80. The Court Appointed Special Advocate (CASA) for the children, Victoria Brezna, testified that she spoke with the children after the Thanksgiving and Christmas visits to Florida. Jordan wanted to live with both the Koetjes and Grandma Lori. The girls, however, wanted to stay with the Koetjes. The CASA worker recommended that the children remain with the

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Koetjes because theyve been there for long. T2/9/11, 125. She also acknowledged that she never met or spoke with Lori Scribner at any time during her service as the childrens CASA, nor did she attempt to do so. T2/9/11, 126. She also did not attempt to speak with Dr. Auffrey. T2/9/11, 128. The Holy Cross foster care worker, Andrea Hagen, testified that she was first contacted by Lori Scribner in October of 2008, shortly after the children were placed in the Koetje home. However, the case file she received at the time Holy Cross became involved as the foster care agency showed contact from Lori Scribner in July of 2008, which was several months before the children were placed in the Koetje foster home. T 2/9/11, 156-157. Ms. Hagen acknowledged that by May of 2009, when the children had been with the Koetjes only seven months, Lori contacted her directly asking for placement of the children with her in Florida. T 2/9/11, 130133. At that time, Ms. Hagen testified that the children were not yet emotionally bonded with the foster parents. That bond was slow to build. T 2/9/11, 148. Ms. Hagens records show that Lori continued to contact her on a regular basis requesting guardianship and seeking greater contact with the children. T 2/9/11, 134-137. In response to Loris testimony that she called Ms. Hagen many additional times, Hagen admitted that she was having cell phone problems, needed a new phone, and didnt get calls or messages. T 2/9/11, 139. At no time did Ms. Hagen offer to assist Lori in obtaining guardianship of the children or contact DHS to have them provide assistance. T 2/9/11, 158-159. Indeed, she never asked Lori for her address. T 2/9/11, pp 160-161. Ms. Hagen was not aware that Lori had regular unsupervised telephone contact with the children when they were in their prior foster placements prior to Holy Cross becoming involved in October of 2008. T 2/9/11, 171. She relied entirely on DHS for information and never

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contacted the prior foster parents. T 2/9/11, 171. Nor did Ms. Hagen ever contact the childrens biological mother for information on the nature and extent of the relationship between Lori and the children prior to Holy Cross becoming involved in the case. T 2/9/11, 176-177 Hagen testified that DHS refused to consider Lori as a potential placement for the children because she lived in Florida and, at the time Lori first requested placement, the goal remained to reunify the children with their mother in Michigan. However, once the goal

changed to termination of parental rights, no effort was made to contact Lori or reconsider her request for placement. Ms. Hagen blamed this oversight on inexperience. T 2/9/11, 161. No family members were ever contacted about adopting the children, only the Koetjes. T 2/9/11, 177. Trial Court Ruling: The trial courts opinion of March 21, 2011, relies almost

exclusively on the fact that the children had been in their foster home for approximately two years and that the foster parents had an adoption petition pending. O 1. Nowhere in its decision did the trial court acknowledge that Lori requested placement of all four children with her starting in the summer of 2009 when the children had been in their current foster home only a few months. T 8/26/10, 131. Nor did the trial court mention that Loris relationship with the children was regular and long-standing, going all the way back to the birth of Jordan, the oldest child, in 2001. T 8/26/10, 122-126. Also not mentioned in the trial courts decision were the steps taken by Lori in preparation to have the children move in with her. An order incorporating the trial courts opinion was entered on May 3, 2011. Court of Appeals Decision: The Court of Appeals understood and acknowledged the unreasonable obstacles placed in Loris path by DHS and Holy Cross. In its decision of June 25, 2013, it found their conduct, and the positions of the prosecutor and GAL, to be inexplicable.

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It concluded at p 4 of its decision that: [A]ppellant [Ms. Scribner] not only quickly fulfilled every DHS requirement, she went significantly above and beyond any legal requirements to ensure she would be well-prepared to care for her grandchildren. The Court of Appeals also determined that DHS and Holy Cross entirely ignored Loris requests for placement of the children and violated their legal obligation to prefer relative placement over foster care placement with legal and biological strangers. This error was

exacerbated when the trial court also failed to give proper consideration to Loris juvenile guardianship request. The Court of Appeals held at p 5 of its decision: The trial court failed to recognize the preference for children to be placed with relatives. And, we and all the entities involved below have essentially regarded JRG the same as his siblings even though he is their half-brother as there seems to be no suggestion that it is not in his best interest to do so. From the evidence, it is clear that had the trial court recognized this preference and then given appellant the special preference and consideration that she was due as the childrens grandmother, the court would have granted the guardianship petition. Appellant has an established and continuing relationship with the children, is a fit placement, and is willing and able to care for the children. Aware of the great lengths to which DHS had gone to prevent the childrens placement with her, and with school in Florida set to start on August 19, Lori filed a motion asking the Court of Appeals to give its decision immediate effect. She asked that the children be place with her in time to start school even if DHS sought reconsideration in the Court of Appeals or filed an application for leave to appeal with this Court. DHS, through the prosecutor, responded opposing to motion immediate effect, but permeated its response with extra-record information. On Loris motion, that response was stricken by the Court of Appeals as part of its July 22, 2013, order. Appendix D. DHS also filed motions to remand and for reconsideration. Those motions were denied as part of the July 22 order. The key portion of the July 22 order granted Loris motion for immediate effect.

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Lori, through her trial counsel, Scott Nichol, Esq., sought an immediate hearing in the trial court for entry of an order granting Lori juvenile guardianship as directed by the Court of Appeals. The trial court declined to do so. Instead, it set a hearing for approximately two weeks later on the afternoon of August 5, 2013. On the morning of August 5, the prosecutor made improper email contact directly with the trial courts judicial assistant (See JI-134) to advise her an application for leave to appeal was filed with this Court. Appendix I. In that email, the prosecutor attempted to influence the trial courts substantive decision in the afternoon hearing by arguing (incorrectly) that the mere filing of an appeal with this Court stayed the Court of Appeals decision. He ignored the July 22 order for immediate effect, failing completely to mention it in his email. The contemporaneous copying of the email to Loris counsel does not make the communication proper. RI-243. At the hearing, the trial court recognized that the July 22 order of the Court of Appeals meant that the mere filing of an appeal with this Court did not stay the Court of Appeals decision. The trial court nonetheless refused to enter an order for juvenile guardianship

transferring custody of the children to Lori on that date. Instead, the trial court indicated it would sign the order if this Court did not enter a stay order within 24 hours - that period to expire at approximately 3:30 p.m. on August 6, 2013. The prosecutor then apparently filed a motion for stay and motion for immediate consideration with this Court. That motion neglected to advise this Court of the 24-hour

deadline imposed by the trial court. Moreover, the prosecutor failed to serve the stay and immediate consideration motions on Loris sole appellant counsel in the juvenile guardianship appeal. Instead, the prosecutor served trial counsel, Mr. Nichol, and filed with this Court a false proof of service indicating that Mr. Nichol was Loris appellate counsel and that personal service

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was completed. Nichol never filed an appearance in the juvenile guardianship appeal and there was no basis for the prosecutor to believe that service of appellate documents on Nichol was proper. MCR 2.117 states unequivocally that an attorney's appearance applies only in the court in which it is made. Although Loris sole appellate counsel in the juvenile guardianship matter telephoned the office of this Courts Clerk on August 5 to confirm that an appeal had been filed, the Clerks office confirmed the filing of the prosecutors application for leave to appeal, but never mentioned the filing of a stay motion or motion for immediate consideration. The prosecutor was not the only government entity to make improper contact with the trail court in an attempt to influence its decision on the grandmothers motion to have the children immediately placed with her. Although not a party to the juvenile guardianship case, the Michigan Attorney General, faxed a letter directly to the trial court immediately at 2:11 p.m. on August 6, 2013, shortly before the trial courts hearing on the grandmothers motion for immediate placement of the children per the Court of Appeals decision be denied. Appendix J. The Attorney General attempted to justify this improper contact with the trial court by disingenuously claimed to be unaware of the July 22 Court of Appeals order for immediate effect even though they were served with the grandmothers motion when it was filed (Appendix K) and the order was publicly posted on the Court of Appeals web site as of the early morning of July 23. This communication was, like the early communication, improper pursuant to RI-243. Despite the improper machinations of the prosecutor and Attorney General, late in the afternoon of August 6 the trial court entered its order granting Lori juvenile guardianship of the four children and immediately placing them with her. The order expressly allowed Lori to remove the children to her residence in Florida. The actual transfer took place a few hours later

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at the Fremont office of Bethany Christian Services despite unnecessary upset to the children caused by the unprofessional conduct of the Holy Cross caseworker in charge of the case. By the next day, Lori and the children were in Florida. Loris counsel was therefore shocked and outraged that, while traveling to his mothers memorial service, at approximately 12:48 p.m. on August 7, 2013, he received an email from Inger Meyer of this Court. Attached to that email was a PDF file purporting to be an order of this Court staying the Court of Appeals decision and trial court order for immediate placement of the children with their grandmother. This order was entered contrary to due process and based on a false proof of service filed by the prosecutor on behalf of DHS. Loris counsel was given no opportunity to respond to the stay request. The outrageous defects in the process by which the stay order was obtained were fully explained in a motion to vacate the stay filed with this Court by Loris counsel. Without explanation, this Court denied that motion in an order dated August 13, 2013. The children were returned to the custody of DHS on August 15, 2013. As a result of the inappropriate handling of this matter by the prosecutor, along with this Courts failure to verify that the stay motion was properly served, the childrens lives were needlessly disrupted. Argument A. The Court of Appeals correctly determined that DHS and the trial court failed to apply the required preference for relative placement throughout the grandmothers requests for placement of the children with her, including, but not limited to, the juvenile guardianship process. Standard of Review: Questions of law are reviewed de novo. Matley v Matley, 234 Mich App 535, 537, 594 NW2d 850, vacated on other grounds, 461 Mich 897, 603 NW2d 780 (1999). Applicable Law: DHS incorrectly claims that the preference for relative placement of 22

children removed from their parents and placed in foster case is not applicable in the instant case. DHS is wrong. The preference for relative placement over placement with strangers, such as state contracted foster parents, permeates Michigan law and is the undisputed public policy of this State. The prosecutor argues that the Court of Appeals did not properly construe MCL 722.954a. The prosecutor is wrong and fails to acknowledge that family preference applies in this case even under the facts and law as they allege them to be, which as will be shown later in this brief, are so incorrect as to constitute fabrication. For example, MCL 722.954a(1) states: If a child has been paced in a supervising agency's care under chapter . . . 712A1 to 712A.32, the supervising agency shall comply with this section and sections 4b and 4c. Therefore, the family preference statute applies, by its own terms, to decisions made in abuse and neglect cases. Next, in MCL 733.954a(5), the statute provides: Before determining placement of a child in its care, a supervising agency shall give special consideration and preference to a child's relative or relatives . . . . The supervising agency's placement decision shall be made in the best interests of the child. That subsection does not limit the placement decision to only the initial decision following removal. And the statute applies to all supervising agenc[ies], not just DHS. The agencies with which DHS contracted in this case, Holy Cross and Bethany, were also obligated to follow the statute. It is also undisputed that all private child foster care and child placing contract agencies must also follow DHS policies, state law, and federal law. The federal statute on which MCL 722.954a is based requires states to have relative preference statutes in their state plans to receive federal funding. 42 USC 671a(19) ((19) provides that the State shall consider giving

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preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards[.] As a result, for Michigan to receive federal funding, it must consider giving preference, but the Michigan statute goes farther. It requires that the agencies shall give special

consideration and preference . . . . Under the Michigan statute, the agency does not merely consider, giving that preference. It must actually give it. DHSs own policies reinforce this interpretation. First, the Children's Foster Care The child placing agency

Manual, FOM 721, defines Supervising Agency as follows:

supervising the family foster care placement of a child. This may be either the local DHS office or the private child placing agency under contract with DHS to provide foster care services. Furthermore, all of the applicable DHS policies recognize that whenever a placement decision is made, relatives must receive a preference: Under FOM 722-3, When children must be removed from their home and placed in out-of-home care, preference must be given to placement with a fit and willing relative. Therefore, it is crucial to identify relatives prior to removal (CPS) and throughout the case (foster care) as potential placements and permanency providers; see FOM 722-6, Relative Notification. However, specific requirements and procedures must occur prior to placing children with relatives. Refer to Placement With Relatives within this section for all requirements. [Emphasis added].. FOM 722-3, beginning at page 8 and continuing through page 15 discusses why placement with relatives is better for children and stresses that there's a preference for relatives not only at the time of initial placement, but also at the time of any replacement. FOM 722-6 also recognizes the value of placement within the extended relative network: o The participation of parents and members of the extended family/relative network is viewed as essential to achieving permanency and is to be actively sought. In general, the findings of the federal Child and Family Service Reviews found that relative placements: Support reunification. Provide placement stability. 24

Provide for a childs need for safety, well-being and permanency. Maintaining family connections is crucial for children in foster care. Family connections need to be supported no matter where a child is living while in foster care.

FOM 722-7 specifically approves of guardianships where reunification or adoption have been ruled out. Note that the policy says reunification OR adoption, not reunification AND adoption. Juvenile guardianship is available for temporary and permanent court wards and state wards when reunification or adoption have been ruled out as permanency goals. Refer to the Child Guardianship manual (GDM 110, 600-700) for policy requirements. Note that these children were court wards when the trial court held the guardianship hearing. They were not state wards and had not been committed to the MCI for adoption planning until after the guardianship hearing ended and the appeal was pending. FOM 722-7 also explains when the Permanent Placement With a Fit and Willing Relative should be considered: The permanency planning goal, permanent placement with a fit and willing relative (PPFWR), should only be considered after reunification, adoption and guardianship have been ruled out as the permanency plan for the child. If, after the FC worker has explained the benefits of adoption and legal guardianship for the child, the selected relative is not willing to pursue either of the preferred permanency goals, the relatives reasons must be documented in the current and all subsequent case service plans (ISP/USP/PWSP). Note: The policy requires that the foster care worker explain the options to the relative. And the policy requires that reunification, adoption, and guardianship be ruled out. Even then, the children can be placed with relatives, but the caseworker must document the reasons for the recommendation. DHSs own Adoption Services Manual (ADM) similarly stresses the search for and placement with relatives: ADM 610: Consideration for the adoption of a specific child means that the childs adoption worker will explore the childs relationship with relatives and other families who have a history with the child and/or a relationship that is significant to the child. The familys relationship with the child and their interest in adopting must be documented on the DHS-1926, Preliminary Adoptive Assessment, the BCAL- 3130, Initial Foster Home/Adoption Evaluation, or the DHS-612, Adoptive Family Assessment Addendum. A child placing agency must always seek out appropriate relatives as a foster care placement option when a child is initially removed from the parental home. The child placing

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agency must also consider relatives at the time the permanency plan becomes adoption. Relatives may be an appropriate placement when they have an established relationship with the child and/or provide a familiar environment for the child. Argument: DHS acts as if the relative preference issue was not raised and fully argued in both the trial court and the Court of Appeals. It is one of the alleged reasons DHS wants this Court to grant leave to appeal. However, DHS is simply wrong on this issue as they have been throughout their mishandling of this matter. Loris brief in the Court of Appeals includes nine citations to testimony or argument on the question of the relative preference in child placement. In the consolidated Section 45 appeal, the preference for relative placements was a central issue and is mentioned at least a dozen times in Loris brief filed with the Court of Appeals. It was further addressed in Loris reply brief in the Section 45 appeal. Therefore, to the extent that the DHS argues that the issue was not fully considered by the Court of Appeals, that argument is pure fallacy. It cannot be disputed that one of the central purposes of the juvenile guardianship legislation was to give the courts greater flexibility in finding permanent placements for children with relatives. As stated in the Senate Fiscal Agencys First Analysis to SB 668-672 completed November 27, 2007, the purpose of the legislation was: To provide more options and to help children move more quickly to permanent placements, it has been suggested that relatives or other individuals could be named as guardians for foster children, allowing them to maintain ties with their parents while being raised by others. In addition, the companion legislative providing for financial assistance to juvenile guardians, also contained a clear rationale supporting relative placements: When a child who has been the victim of abuse or neglect is under the jurisdiction of the family court, grandparents or other relatives often are willing to care for the child, either temporarily or as permanent guardians if necessary. Many believe 26

that such arrangements are in the best interest of the child, who may feel more comfortable staying with a known relative than being placed in the foster care system. Senate Fiscal Agency Analysis as Enacted of SB 227, Public Act 15 of 2009. After the juvenile guardianship legislation was passed, Kelly Howard, the Manager of Child Welfare Services for the State Court Administrative Office (SCAO) create and distributed a document dated June 3, 2009, called Juvenile Guardianship FAQs. This

document also reflected the intent that juvenile guardianships be a vehicle for relative placements of children. Under the section entitled Benefits of Juvenile Guardianship, the following is listed among the benefits of the new law: Allows child to exit foster care, but maintains family court jurisdiction. Permanency/stability. More contact with siblings. Pre-termination, maintains relationship with parents. Some children do not want to be adopted and/or break ties with their birth parents. Maintain family history and culture. Some cultures believe that termination of parental rights defies important societal norms of extended family. Therefore, one of the central purposes of the juvenile guardianship law is to place children permanently with relatives who are able to preserve the norms and culture of the extended family. In this case, as noted by the Court of Appeals at p 4 of its decision, Appellant [Ms. Scribner] is not married, but she raised five sons, mostly as a single parent. Her sons, like the minor children, are multi-racial. Appellant has family members, including her parents, a sister, and a niece, who live in Florida. It is not an overstatement to conclude that the juvenile guardianship statute was created for cases such as this one. Conclusion: The question of the preference for relative placement was fully litigated in the trial court and in the Court of Appeals. It seems that DHS is not dissatisfied with the quality 27

of the arguments it made in both of those venues and now wants a do over. That is not an appropriate basis for an appeal to this Court. The Court of Appeals was correct when it wrote at pp 3-4 of its decision: Moreover, the trial court failed to give any special consideration or preference to appellant, the grandmother of the minor children. Here, where appellant is the grandmother of the children and where appellant has an established and continuing relationship with the minor children, the trial court should have considered whether appellant was an appropriate juvenile guardian for the children without regard to the foster care parents. This Court should deny leave to appeal and allow these children to immediately and permanently reside with their grandmother as juvenile guardian. B. The Court of Appeals correctly determined that the trial court misapplied the Juvenile Guardianship statute and court rule by using the best interests factors to engage in a comparison between the paternal grandmother of the children and the foster parents. Standard of Review: Questions of law are reviewed de novo. Matley v Matley, 234 Mich App 535, 537, 594 NW2d 850, vacated on other grounds, 461 Mich 897, 603 NW2d 780 (1999). Applicable Law: MCL 722.875b, effective April 9, 2009, authorizes a new judicially created relationship under the Juvenile Code that involves the transfer of parental rights to the guardian including custody, care, and control of a minor that is intended to be permanent and self-sustaining. The legislative history for MCL 722.875b makes it clear that the new juvenile guardianship relationship was intended to facilitate the permanent placement of children under the jurisdiction of the family court with grandparents or other relatives rather than continue in foster care. MCR 3.979, effective July 1, 2009, provided a procedure framework for proceedings under the new statute. The rule expressly provides that a juvenile guardian may be appointed if

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the court determines that doing so is in the childs best interests. MCR 3.979(A). A hearing for the appointment of a juvenile guardian is similar to a child custody proceeding because its focus is the best interest of the child. The rights adjudicated in the hearing under MCL 722.875b include custody. MCL 722.875b(d). However, there are important differences between a juvenile guardianship proceeding in a neglect (NA) case and a custody dispute under the Child Custody Act of 1970, MCL 722.21 et seq. Child Custody Act proceedings nearly always involve competing parties with a

constitutionally protected right to the child (typically one legal and/or biological parent against the other). For that reason, the best interest factors contained in MCL 722.23 obligate the court to directly compare the competing homes. They expressly include a requirement to decide between the parties involved. This is a subjective test. Juvenile guardianship is a permanency planning option under the Juvenile Code, MCL 712A.1 et seq. In Juvenile Code proceedings, there are important public policy considerations governing placement of a child. Those considerations are incorporated into the Michigan law. For example, the law presumes that a child should be placed in the most family-like setting that will objectively meet his or her needs. MCL 712A.1(3); MCR 3.965(C)(2). Whenever a child is removed from his or her home, the agency providing supervision of the child has 30 days to identify, locate, notify and consult with relatives to determine if there is a suitable relative with whom to place the child. MCL 722.954a(2). The agency has 90 days to decide whether to place the child with a relative. MCL 722.954a(4). If a family member such as a grandparent (see MCL 712A.18(1)(b)) is available and able to objectively meet the childs needs, the child should be placed there. In making that decision, placement with an objectively suitable relative should not be subjectively compared with any particular foster home or foster care in general. In re

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Mathers, 371 Mich 516, 530, 124 NW2d 878 (1963). Because a juvenile guardianship proceeding, like all placement decisions under the Juvenile Code, is designed to assess the merits of the prospective guardian in that proceeding without making specific comparisons between the petitioner and other placements, it resembles an adoption hearing. Adoption applications are judged on their own merits without direct comparison to other prospective adoptees. It is an objective test. As evidence of the different approaches to determining best interests, the best interest factors used in the Adoption Code omit the parties involved comparison language found in the MCL 722.23 (Section 3 of the Child Custody Act). Instead, the Adoption Code best interest factors found at MCL 710.22(g) require an objective analysis of the petitioner and the child rather than subjective analysis comparing competing parties. The court rule implementing the juvenile guardianship statute, MCR 3.979, does not provide for comparison between prospective guardian and other placement options. Instead, all of the references in are singular, strongly implying that the prospective juvenile guardian is to be assessed on his or her own merits without a subjective comparison with a foster placement or other possibilities. In addition, a juvenile guardianship can be created at two different points of the neglect proceedings. The guardianship can be put in place at the time of the permanency planning hearing, before parental rights are terminated, or after termination. MCL 712A.19a. If the court is asked to make the determination of the best interests of the minor child to grant a juvenile guardianship pre-termination, the court must take into account the rights of the parents. If the request is made after parental rights are terminated, there is no party with a constitutionally protected right to the child against which to compare the proposed guardian. Foster parents have no such rights. That leaves only a purely objective standard when assessing the proposed

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guardians request. Consistent with the permanent quasi-adoption nature of a juvenile guardianship, a posttermination appointment of a juvenile guardian a post-termination appointment of a juvenile guardian requires the consent of the MCI superintendent. MCR 3.979(A)(3). If that consent is denied, MCR 3.979(A)(3) sets up a process essentially identical to a Section 45 (MCL 710.45) adoption hearing. That lends even greater support for the view that the Legislature intended to create a status and process similar to an adoption. It is significantly different from a general or limited guardianship of a minor under EPIC, MCL 700.5204 and MCL 700.5205. This also suggests that an order granting or denying a juvenile guardianship in a neglect proceeding should be treated as a final order for appeal purposes under MCR 3.993(A)(4) in the same way that an order granting or denying an adoption petition is treated as final order appealable by right to this Court under MCL 710.45(10). Argument: The overriding strategy of both the prosecutor (on behalf of DHS) and the GAL when opposing Lori Scribners juvenile guardianship request was to draw comparisons between her and the foster parents, the Koetjes. The prosecutor began his written closing argument with the statement, The Court is now faced with a decision as to whether to remove these children from their loving, caring, nurturing home and place them with their grandmother. Prosecutors Closing Argument, p 1. Without citing any legal authority, the prosecutor asserted that a clear and convincing evidence burden should be placed on Ms. Scribner if she wanted to change the established custodial environment of the children. Prosecutors Closing Argument, pp 9-10. The balance of the prosecutors closing argument was an analysis of the MCL 722.23 factors directly comparing the foster home with the proposed home offered by the grandmother. Prosecutors Closing Argument, pp 13-16.

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These comparisons were inherently unfair and improper.

They were based on the

extended time the children were in their current foster home with the Koetjes (over two years at the time of the trial courts decision) compared to the few weeks the children were allowed to spend with their grandmother. This was especially egregious given that almost from the

beginning of the childrens placement in the current foster home, their grandmother made good faith, indeed extraordinary, efforts to have the children placed with her. Instead of working with Ms. Scribner and facilitating the childrens placement with her, the foster care agency, Holy Cross, actively impeded the request to place the children in the most family-like setting with their grandmother. That the trial court followed the prosecutors lead and engaged in an improper subjective comparison of the grandmothers home with the foster home is evident. It viewed this as a child custody dispute between competing parties under the Child Custody Act. Reference was made to competing parties when the trial court wrote at p 1 of its Opinion, it is not a matter of what is fair for those competing for their custody. [Emphasis added.] The trial court made the childrens extended stay in foster care the central focus for its subjective comparison of that home with the home offered by the grandmother. After a very brief introductory paragraph, the trial court made findings of the best interest factors. As will be addressed in Argument B, the trial court used the Child Custody Act factors from MCL 722.23, which invite subjective comparison, instead of the more appropriate objective factors in MCL 710.22(g).. In assessing factor (a) [love, affection, and other emotional ties], the trial court failed to make an objective finding as to whether the childrens bond with their grandmother was sufficient to allow them adjust to placement in her home. Such a finding was all that was

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necessary to determine if consideration of this factor supported a finding that placement of the children with their grandmother was in their best interests. Instead, the trial court directly compared the childrens bond with the Koetjes with the bond they have with their grandmother. O, 1. With factor (b), the trial court again failed to make an objective finding as to the grandmothers capacity and disposition to provide the children with love, affection, and guidance. Instead, it focused exclusively on a subjective comparison between Ms. Scribner and the Koetjes. O, 2. Factor (c) was again a comparison, although this time if favored Ms. Scribner because she had greater financial wherewithal to support the child. An objective analysis would have simply concluded that Ms. Scriber has sufficient income and assets to provide for the children. O, 2. The trial court emphasized factor (d) as central to its decision to deny the juvenile guardianship request. Yet the trial courts findings on this factor only briefly alludes to and speculates about Ms. Scribners ability to provide a stable, satisfactory environment. O, 2. No actual finding is made as to whether the childrens grandmother could provide similar stability. Instead, the trial court again focuses on the current foster home, not the prospective judicial guardian. The trial court reaches no conclusion as to factor (e), the permanence, as a family unit of the proposed guardians home. Instead, the court merely states the configuration of the foster family and the grandmothers family. O, 3. This says nothing about the childrens best interests. There was no finding as to factor (f) moral fitness. The trial court stated simply, There was no evidence submitted on this factor. O, 3.

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On factor (g), mental and physical health, the trial court made one of its few objective findings, stating simply, There are no health issues that would impact the rearing of the children. No subjective comparison between the grandmother and the foster family was

required nor made. The trial court also cited factor (h), home, school, and community record of the children as key to its decision. As with factor (d), the trial court focused almost entirely on the foster parents and made only a passing comment about the quality of the schools where Ms. Scribner resides. O, 3. Once more, this was a subjective comparative analysis when the law calls for an objective finding. Factor (i) is the reasonable preference of the children. The trial court found that

deference should be given to the childrens wishes. O, 4. The problem is that the children were asked by several people, including the GAL and the CASA worker, to express a choice, essentially make a subjective comparison, between the foster home and the home of their grandmother. The proper approach would be to determine objectively if the children would be willing to live with their grandmother without directly comparing her home with that of the foster parents. The trial courts finding on factor (j) highlights the inapplicability of the Child Custody Act factors in MCL 722.23 to a juvenile guardianship request. MCL 722.23(j) asks whether a parent in a custody dispute will encourage a close relationship between the child and the other parent to that dispute. Contrary to the erroneous view of the prosecutor and the trial court, this is not a custody dispute. Had the trial court instead looked to the objective equivalent of factor (j) contained in the Adoption Code, it would have found that MCL 710.22(g)(x), addresses the willingness of the adopting individual to also adopt the childrens siblings. Here, in the context

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of what was intended by the Legislature to be a permanent adoption-like placement, the trial court needed to make an objective finding as to whether Ms. Scriber was willing to serve as juvenile guardian for all four children. Instead, the trial court focused on the conflict between the foster parents and Ms. Scribner. O, 4-5. The trial court declined to make a finding as to MCL 722.23(k), domestic violence, stating that no evidence was submitted on this factor. O, 5. MCL 722.23(k), any other factor, was not mentioned at all in the trial courts opinion. Conclusion: As stated at p 10 of the brief filed by Ms. Scribners trial court attorney at the conclusion of the juvenile guardianship hearing, This is not a case of the foster family vs. Lori Scribner. There are no competing parties. The only issue is whether it is in the best interests of the minor children by a preponderance of the evidence to be in a juvenile guardianship rather than to remain in foster care with DHS, which is the current situation of the children. Unfortunately, nearly all of the trial courts best interests analysis involved a

subjective comparison between the foster home and the grandmothers home. This was an erroneous application of that portion of the juvenile guardianship law imposing a best interests test. The Legislative could not have intended that courts engage in such a comparison. A juvenile guardianship is a dispositional option in an abuse/neglect case under the Juvenile Code. The standard for determining if a relative is an appropriate placement in neglect proceedings is objective, not subjective. Ms. Scribers request to be appointed juvenile guardian should have been evaluated on its own objective merits. Using a subjective test here was especially unfair given the lengths to which the foster care agency went to impede the relationship between the children and their grandmother and stall her efforts to have the children live with her. The trial court was correctly

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reversed by the Court of Appeals on this issue. C. The Court of Appeals correctly determined the trial court erroneously analyzed the childrens best interests using the factors in MCL 722.23 when it should have used the factors in MCL 710.22(g). Standard of Review: Questions of law are reviewed de novo. Matley v Matley, 234 Mich App 535, 537, 594 NW2d 850, vacated on other grounds, 461 Mich 897, 603 NW2d 780 (1999). Applicable Law: The Child Custody Act, MCL 722.21 et seq., guides the court when hearing custody disputes between competing parties. It requires a subjective analysis of a childs best interests by comparing the competing parties on each of the factors contained in MCL 722.23. A juvenile guardianship proceeding is not a dispute between competing parties. It is a permanency planning option approved by the Legislature for use in abuse/neglect proceedings under the Juvenile Code, MCL 712A.1 et seq. The legislative history for MCL 722.875b makes it clear that the new juvenile guardianship relationship was intended to facilitate the permanent placement of children under the jurisdiction of the family court with relatives such as grandparents. MCR 3.979 took effect on April 9, 2009. It states in relevant part, If the court

determines at a posttermination review hearing or a permanency planning hearing that it is in the childs best interests, the court may appoint a juvenile guardian for the child pursuant to MCL 712A.19a or MCL 712A.19c. The enabling statutes for this rule are MCL 712A.19a, MCL 712A.19c, and MCL 722.875b. MCL 722.875b states: The legal guardianship shall be a judicially created relationship as provided for under sections 19a and 19c of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.19a and MCL 712A.19c, between the child and his or her guardian that is intended to be permanent and self-sustaining as evidenced by the 36

transfer to the guardian of the following parental rights with respect to the child: (a) Protection. (b) Education. (c) Care and control of the person. (d) Custody of the person. (e) Decision making. Prior to the adoption of MCR 3.979 and enactment of the enabling statutes, guardianships in abuse/neglect proceedings were created under the Estates and Protected Individuals Code (EPIC). Such guardianships were designed to be temporary. MCR 3.979(e). While often used in neglect proceedings, guardianships under EPIC were not meant to be part of a larger permanency planning goal in the life of a neglected or abused child. The juvenile guardianship statute and court rule changed the nature of guardianship in abuse/neglect proceedings. The new law provides authorizes creation of guardianships that offer a lasting and permanent relationship with the child. The Legislature underscored the

permanency of juvenile guardianship by denying parents standing to terminate the guardianship (pre- or post-termination), MCL 712A.19. Further, the permanency is supported by funding, support payments, and post-permanency services at the same level as an adoptive placement under the Guardianship Assistance Act, MCL 722.881. As a permanent and self-sustaining arrangement, a juvenile guardianship is much like an adoption. Therefore, the best interest factors contained in the Adoption Code should be used by courts when analyzing a juvenile guardianship request. 710.22(g): (g) "Best interests of the adoptee" or "best interests of the child" means the sum total of the following factors to be considered, evaluated, and determined by the court to be applied to give the adoptee permanence at the earliest possible date: (i) The love, affection, and other emotional ties existing between the adopting individual or individuals and the adoptee or, in the case of a 37 Those factors are found at MCL

hearing under section 39 of this chapter, the putative father and the adoptee. (ii) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, the putative father to give the adoptee love, affection, and guidance, and to educate and create a milieu that fosters the religion, racial identity, and culture of the adoptee. (iii) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, the putative father, to provide the adoptee with food, clothing, education, permanence, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (iv) The length of time the adoptee has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (v) The permanence as a family unit of the proposed adoptive home, or, in the case of a hearing under section 39 of this chapter, the home of the putative father. (vi) The moral fitness of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, of the putative father. (vii) The mental and physical health of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, of the putative father, and of the adoptee. (viii) The home, school, and community record of the adoptee. (ix) The reasonable preference of the adoptee, if the adoptee is 14 years of age or less and if the court considers the adoptee to be of sufficient age to express a preference. (x) The ability and willingness of the adopting individual or individuals to adopt the adoptee's siblings. (xi) Any other factor considered by the court to be relevant to a particular adoption proceeding, or to a putative father's request for child custody. Unlike the best interest factors contained in MCL 722.23, these factors do not call for a subjective or comparative analysis. Instead, the suitability of the adopting individual is

objectively analyzed without comparison to a competing party. It is logical to assume that the 38

Legislature intended that juvenile guardianship requests be assessed using an objective rather than subjective standard given the similarities between adoption and juvenile guardianships. Argument: The trial court utilized the best interest factors in MCL 722.23, not the factors in MCL 710.22(g). This error is understandable given that this was likely the first juvenile guardianship request heard by the trial court under what was at the time a very new statute. But understandable errors are not necessarily harmless errors. Here, the entire thrust of the prosecutors argument on behalf of DHS, and the entire basis for the trial courts rejection of the grandmothers juvenile guardianship request, was a subjective comparison of the grandmothers home with the home of the foster parents. Given the childrens placement in the foster home for more than two years at the time of the trial courts decision, and the persistent efforts by Holy Cross to impede the grandmothers contact with the children, a subjective analysis is inherently improper. Had the trial court utilized the best interest factors in MCL 710.22(g), it could not have engaged in the improper comparison of the grandmothers proposed home with that of the foster parents. The Adoption Code factors do not call for a comparison between the parties involved. They focus exclusively on the merits of the petitioner. Objectively, any reasonable analysis of the evidence presented to the trial court would reveal that Ms. Scriber satisfied the best interest requirements. It was undisputed that Ms. Scriber met all of the licensing requirements of the State of Florida to serve as a foster parent. The Holy Cross caseworker, Ms. Hagen, acknowledged that Ms. Scriber would also meet Michigans foster care standards and was a suitable placement for the children. T 2/9/11, 161162. Based on her limited contact with Ms. Scriber, she had no concerns about Ms. Scriber. T 2/9/11, 162. Yet, neither Holy Cross nor DHS provided any assistance to Ms. Scriber in

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obtaining placement of the children even after a decision was made to seek termination of parental rights. T 2/9/11, 163-164. The only logical explanation is that DHS and Holy Cross decided at the beginning of the process that the Koetjes would be allowed to adopt the children. Indeed, the referral for adoption was made to Bethany Christian Services on April 30, 2009, well prior to termination of parental rights. T 2/9/11, 164-166. No other options, including the childrens grandmother, would be considered no matter how many hoops she jumped through to meet all of the requirements for a juvenile guardianship. Conclusion: Just as the trial court erred in its subjective analysis of the best interest factors as explained in Argument B, the trial court erred in its use of the inherently subjective best interest factors contained in the Child Custody Act. Instead, the trial court should have used the objective factors contained in the Adoption Code. Had it done so, it might have avoided the erroneous comparison of the grandmothers proposed home with that of the foster parents. The trial courts denial of the juvenile guardianship was properly reversed by the Court of Appeals. D. The Court of Appeals correctly determined trial courts findings concerning the best interests of the children were against the great weight of the evidence. Standard of Review: A trial courts findings must be independently supported or corroborated by the evidence on the record and thus amenable to appellate review. A trial courts discretion is not unbridled; its ultimate decision must comport with the great weight of the evidence. Foskett v Foskett, 247 Mich App 1, 13, 634 NW2d 363 (2001). Applicable Law: The best interests of the children should have been determined using the objective factors contained in MCL 710.22(g). Argument: The trial courts findings were against the great weight of the evidence.

Had it properly analyzed the best interest factors - and used the correct factors as set forth in

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MCL 710.22(g) there would have been no error. On each factor, as outlined below, the trial court made factual errors. (i) The love, affection, and other emotional ties existing between the adopting individual or individuals and the adoptee or, in the case of a hearing under section 39 of this chapter, the putative father and the adoptee. The bond that Ms. Scribner has with the children dates back to their birth. DHS and Holy Cross argued that Ms. Scribner was a stranger to the children prior to the children entering foster care. The claim was that the children did not remember their grandmother or did not like her. This was completely untrue and contrary to the record. Admitted into evidence at the hearing were photographs showing that she had been with the children numerous times before they were placed in foster care. Ms. Scribners daughter-in-law, Ms. Kim Heeren, testified that Ms.

Scribner was a regular visitor and influence on her childrens lives and those that are involved in this legal action. Prior to Ms. Scribner, moving to Florida, the three oldest children in this case (the youngest was not yet born), stayed over at the home of Ms. Scribner and spent weekends and holidays with her. DHS/Holy Cross claimed that the children were scared of their grandmother, were experiencing extreme anxiety about being with her and were afraid she would hurt them. None of this was supported by the record. The children loved the time they spent with their

grandmother, as testified to by Ms. Scribner and her daughter-in-law. The court-appointed psychologist, Dr. Auffrey, stated that the children had wonderful adventures with their grandmother, and displayed favorable adjustment. Dr. Auffrey testified that every child

expressed good things about the trip and their grandmother. The children have been in three collective foster care homes. In each home, the children have displayed a bond to their caregivers. As stated by Dr. Auffrey, these are children that

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transition well and that will adapt to a change in residence and environment without substantial difficulty. (ii) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, the putative father to give the adoptee love, affection, and guidance, and to educate and create a milieu that fosters the religion, racial identity, and culture of the adoptee. Ms. Scribner testified to the church that she attends and the religious programs that the church offered as well as the Sunday school program that the children attended on each visit to her home. Her daughter-in-law testified to how well she interacts with other grandchildren in the family and her ability to provide a strong, nurturing, and guiding bond to all of her grandchildren. The fact that these children are bi-racial is also a factor as Ms. Scribner is in a good position to foster the childrens culture and identity. (iii) The capacity and disposition of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, the putative father, to provide the adoptee with food, clothing, education, permanence, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. Currently the needs of the children are met through subsidized payments to the foster family. Ms. Scribner may qualify for such funds, but has the independent ability to support the children without the funds if necessary. Ms. Scribner is a full-time RN earning a substantial income. She owns her own home (bought specifically to benefit the children) and she has paid for the childrens transportation to and from Florida as well as paid for her own travel to the multiple hearings in the trial court. She also paid for the independent psychologist. She is secure financially and able to full provide for the children at all levels. (iv) The length of time the adoptee has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. The current placement is meant to be a temporary placement, based on the nature of

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foster care. It is the second placement for all of the children. The current placement has served its purpose in providing a safe environment. The environment has had some challenges with unusual forms of punishment that were outside of foster care standards (hot sauce in the mouth, drinking fish oil, and running laps around the house). Further, when the children were moved to this placement in October of 2008, reports filed with the trial court established that the children that were doing well academically, socially and behaviorally. However, by the time of the first termination trial in June of 2009, the Koetjes reported that the children ate like animals, suffered horrible nightmares, and were doing poorly in school. There were reports of violence between the siblings and inappropriate play and conversation. This was not reported in the prior foster care homes. The foster care parents later reported that most of this behavior improved, until Ms. Scribner filed her petition. It is noteworthy that Ms. Scribner did not witness any of this behavior when the children were with her. There was testimony from Ms. Hagen and Mr. Koetje that it took the children a long time for the children to fully transition to the current foster home. Ms. Scribner lives in St Augustine, Florida. She is well established in her career as a RN. She purchased a home suitable for the children and plans on that being the home of the children until they are old enough to live on their own. She has set up a network of childcare, education, medical and mental health providers in preparation for the children coming to her home. The community that she lives in was named in US News and World Report as one of the ten best cities to live in. The city is rich with culture and history, having been founded by the Spanish and is the oldest continually occupied city in the United States. The community has a rich Latino History. All of the children are of Latino/Hispanic descent and bear the physical characteristics of their ethnic heritage. (v) The permanence as a family unit of the proposed adoptive home, or, in the case of a hearing under section 39 of this chapter, the home of the putative father. 43

Ms. Scribner lives next to her son, Jared, in her home in Florida. Jared was 28 years old at the time of the trial court proceedings and is a college graduate. The childrens great grandmother and great grandfather also live in Florida. Ms. Scribner continues to maintain a relationship with the childrens biological mother and would be agreeable to that relationship continuing with the children if the trial court found it was in the childrens best interests. Further, Ms. Scribner has a close relationship with the rest of her children and grandchildren and they visit back and forth often. The only family member that would not have access to the minor children is Joseph Heeren, the father of three of the children, based on his terminated rights and prior Court orders. (vi) The moral fitness of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, of the putative father. Ms. Scribner is an RN and a licensed foster care parent. She has no criminal history. She lives alone. (vii) The mental and physical health of the adopting individual or individuals or, in the case of a hearing under section 39 of this chapter, of the putative father, and of the adoptee. Ms. Scribner works full time and has no physical or mental health concerns and none were raised by any party. (viii) The home, school, and community record of the adoptee. Since entering foster care, the children have attended two different school districts. Jordan started in Spring Lake and the girls in Muskegon. The children were moved in October of 2008 to their current foster home. At that time, the children were all doing well in school and performing at grade level, according to DHS reports filed with the trial court. Testimony from Mr. Koetje was that the children are receiving reading assistance and Title 9 assistance for

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learning deficiencies. He indicated that the school system (he is a school board member) has a very high reduced and free lunch population at 60%. In Ms. Scribners care, the children would be attending a highly rated school in St. Augustine. This is an affluent community with a broad cultural base. (ix) The reasonable preference of the adoptee, if the adoptee is 14 years of age or less and if the court considers the adoptee to be of sufficient age to express a preference. The oldest child in this matter is Jordan. He was seven at the time of the trial courts proceedings. The children are not of a sufficient age to state a preference and make a decision of this nature. The trial court did not interview the children and therefore there is nothing on the record from which to make on finding on this factor. (x) The ability and willingness of the adopting individual or individuals to adopt the adoptee's siblings. Ms. Scribner is willing to provide a permanent home for all four of the children. The fact that Jordan is not her biological grandson is not relevant to her. She has always been his grandmother from a psychological perspective. (xi) Any other factor considered by the court to be relevant to a particular adoption proceeding, or to a putative father's request for child custody. In a divorce or custody case, the court can continue a relationship with both parents even grandparents. In a neglect/abuse case, the court can only continue all relationships the children currently have only through a juvenile guardianship. No other option exists that will continue biological family and third party contact. Denying Ms. Scribners request will result in the children being placed for adoption. This will end the courts review and supervision of these children. It will also sever all ties these children have with their biological family. Conclusion: Had the trial court objectively analyzed the testimony in light of the proper

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best interest factors, it would have concluded that it was in the childrens best interests to reside with their grandmother, Lori Scribner. The trial courts findings of fact were against the great weight of the evidence and should be reversed. As determined by the Court of Appeals, the juvenile guardianship should have been granted. E. Because this appeal is consolidated with the grandmothers Section 45 appeal (COA No. 312691) by order of the Court of Appeals, and because the Court of Appeals expressly declined to address the issues in the Section 45 appeal based on its grant of juvenile guardianship to the grandmother, any grant of leave to appeal in this appeal requires this Court to also grant leave and address the issues in the Section 45 appeal in order to bring finality to the placement of the minor children. Standard of Review: There is no applicable Standard of Review on this issue. Argument: As noted in the Statement of Facts, the Court of Appeals consolidated this appeal with Ms. Scribners Section 45 appeal, COA No. 312691. supplemental briefs ordered by the Court of Appeals. On June 25, 2013, the Court of Appeals issued its opinion ordering that Ms. Scribner be named juvenile guardian of the children and therefore holding that Ms. Scribners appeal of the denial of her petition to adopt her grandchildren was now moot. It stated at p 6 of the Slip Opinion: Appellant argues that the trial court erred in denying her consent to adopt the minor children. This Court may decline to review issues that are moot. Visser v Visser, 299 Mich App 12, 16; 829 NW2d 242 (2012). An issue is . . . moot when a judgment, if entered, cannot for any reason have a practical effect on the existing controversy. Gen Motors Corp v Dept of Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010). Because in Docket No. 309161 we reverse the trial courts order denying appellants petition for guardianship, which committed the children to the MCI, and remand for an order appointing appellant the juvenile guardian of the minor children, a judgment from this Court in Docket No. 312691 can have no practical effect on the existing controversy. Indeed, we seriously question how the adoption action was instituted in the lower court when the guardianship matter was already pending before this court and note that the trial court itself ultimately precluded further proceedings until the guardianship case was resolved here. Consequently, since the minor children are no longer wards of 46 All parties filed the

the MCI following this courts decision, appellant need not procure the consent of the MCI superintendent to adopt the children. Accordingly, we decline to address the issues raised by appellant in Docket No. 312691. In fact, in her supplemental brief, appellant states that if this Court orders the trial court to grant her guardianship petition and there are no further appeals, she will dismiss the adoption petitions and her appeal in Docket No. 312691. Ms. Scribner, based on her longstanding relationship with and her love for her grandchildren, sought to be their guardian. And in ordering the lower court to appoint her the guardian of her grandchildren, the Court of Appeals recognized that a juvenile guardianship, which is a judicially created relationship, is intended to be a relationship that is permanent and self-sustaining. MCL 722.875b. The parental rights of protection, education, care and control of the juvenile, custody of the juvenile, and decision making are transferred to the guardian. COA Slip Opinion, p 2.. Indeed, the Court of Appeals recognized at p 3 of its decision that the juvenile guardianships creation of that permanent and self-sustaining relationship . . . is similar to adoption. As a result, the Court of Appeals did not address or decide the merits of Ms. Scribners adoption appeal because, as stated at p 6 of the decision, a decision in the adoption appeal would have no practical effect on the existing controversy. DHS, in its Application for Leave to Appeal, inexplicably failed to mention this portion of the Court of Appeals decision and has, in effect, ignored the consolidation order. Conclusion: This Court cannot consider the DHS application for leave to appeal without recognizing that the guardianship appeal and the adoption appeal were consolidated by order of the Michigan Court of Appeals. Ms. Scribners appeal in her adoption case was rendered moot only because the Court of Appeals ordered the lower court to appoint her the guardian of her grandchildren. Ms. Scribner strongly opposes any grant of leave to appeal in the guardianship case. But 47

if this Court does grant leave to appeal in the juvenile guardianship matter, it should also hear the merits of the adoption appeal. In the alternative, if this Court hears and decides the juvenile guardianship appeal, and particularly if this Court reverses the Court of Appeals decision, then this Court must remand to the Court of Appeals for it to decide Ms. Scribners adoption appeal on its merits. Conclusion/Relief Requested The conduct of DHS, Holy Cross, the Muskegon Prosecutor, and most recently the Attorney General, have in this case been truly inexplicable. DHS and their contracted foster care agency, Holy Cross, made a premature decision to allow the foster parents to adopt these four children as soon as parental rights could be terminated. The childrens grandmother, Lori Scribner contacted Holy Cross as soon as the children were placed in the Koetje foster home. She requested that the children be placed with her in Florida. She did everything she was asked to do in order to prepare to have the children live with her. Yet nothing she did was good enough for Holy Cross. DHS/Holy Cross stalled so long that the delay itself gave them their primary argument. They claimed that because the children had been in their current foster home for two years, it would be bad to move them. This was directly contradicted by the court-ordered psychologist who felt that the children would transition well into the home of their grandmother. The trial court rewarded the stalling strategy of DHS/Holy Cross and relied exclusively on the childrens long-term residence in foster care in denying the grandmothers juvenile guardianship request. This was error for the reasons stated in the Court of Appeals decision. The Court of Appeals was correct in reversing the trial court. It was also correct in ordering immediate effect to its decision so that the childrens permanent placement with their

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fully fit, capable, and loving grandmother would not be further delayed by the machinations of DHS and MCI. This Court should not further delay permanency for these four children. The application for leave to appeal should be denied. Furthermore, the leave denial order should be given immediate effect to avoid the inevitable stalling tactic by DHS in seeking reconsideration of this Courts order. Finally, sanctions should be considered against the prosecutor and the Attorney General for their improper contact with the trial court in trying to influence that courts substantive decision on the grandmothers motion an order immediately placing the children with her as mandated by the Court of Appeals. In addition, sanctions should be considered against the prosecutor for failing to properly serve Ms. Scribners sole appellate counsel in the juvenile guardianship appeal and then filing a false proof of service with this Court. Respectfully submitted,

By:_______________________ Scott Bassett (33231) Attorney for Appellee, Lori Scribner 2407 89th Street NW Bradenton, FL 34209-9443 941-794-2904

Dated: August 27, 2013

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State of Michigan Supreme Court In the Matter of: Jordan Gonzalez, dob: 9/5/2001 Esdeanna Heeren, dob: 10/26/2002 Kylea Heeren, dob: 2/16/2004 Carmen Heeren, dob: 10/03/2005 Chad D. Catalino (P64377) Guardian Ad Litem for Minor Children 1189 Peck Street Muskegon, MI 49442 (231) 722-2222 Charles F. Justian (P35428) Muskegon County Prosecutors Office Attorney for Appellant DHS Michael E. Kobza Hall of Justice 990 Terrace Street - 5th Floor Muskegon, MI 49442 (231) 724-6435 Supreme Court No. 147515 Court of Appeals No. 309161 (Consolidated with No. 312691) Circuit Court No. 08-036989-NA Muskegon Co. Cir. Court Hon. William C. Marietti Scott Bassett (P33231) Attorney for Appellee Lori Scribner 2407 89th Street NW Bradenton, FL 34209-9443 (941) 794-2904 Evelyn K. Calogero (P45512) Attorney for Lori Scribner in No. 312691 300 S. Capitol Ave. P.O. Box 13038 Lansing, MI 48901 (248) 709-3466

H. Daniel Beaton, Jr. (P43336) Michigan Dept. of Attorney General Attorney for DHS/MCI in No. 312691 525 W. Ottawa Street P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 _______________________________________________________________________ Proof of Service Scott Bassett (P33231), attorney for appellee, Lori Scribner, verifies that on August 27, 2013, he served a copy of the attached Answer Opposing Application for Leave to Appeal and Appendix on each attorney listed above at their respective addresses listed above by United States First Class Mail, postage prepaid.

By:__________________________________ Dated: August 27, 2013 Scott Bassett (P33231) Attorney for Appellee Lori Scribner