If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
In re Guardianship of VERSALLE, Minors. October 15, 2020
9:00 a.m.
Nos. 351757, 351758
Muskegon Probate Court
LC Nos. 2019-002586-GM;
2019-002589-GM
Before: MURRAY, C.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
In these consolidated appeals, respondent-father appeals by delayed leave granted1 the
probate court’s orders appointing petitioner as guardian of his two minor children. We affirm.
In May 2019, petitioner2 filed petitions seeking to be appointed as the guardian of
respondent’s two minor children under MCL 700.5204(2)(b) of the Estates and Protected
Individuals Code (EPIC), MCL 700.1101 et seq. Petitioner testified that the children had lived
with her since September 2017, after respondent was evicted from his apartment and moved into
a hotel. According to petitioner, respondent permitted the children to live with her because “[h]e
couldn’t provide for them in the hotel” and “didn’t want them to be in the hotel.” However,
respondent did not give petitioner any type of legal authority over the children, such as a power of
attorney. Petitioner testified that respondent did not give her legal authority because he did not
want petitioner to take away his daughters. At the time the petitions for guardianship were filed,
the children lived with petitioner. But, at the time of the hearing on the petitions, the children lived
1
In re Guardianship of Versalle, unpublished order of the Court of Appeals, entered May 1, 2020
(Docket Nos. 351757 & 351758).
2
Petitioner is respondent’s mother, and thus, the paternal grandmother of the children.
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with respondent in Texas because he came to Michigan to take them away. 3 The probate court
granted the petitions for guardianship, and this appeal followed.
Respondent contests the constitutionality of MCL 700.5204(2)(b) by arguing that it does
not impose the presumption in favor of a fit parent, thereby violating his constitutional right to
raise his children. We disagree. “We review de novo questions of law involving statutory
interpretation and questions concerning the constitutionality of a statute.” Hunter v Hunter, 484
Mich 247, 257; 771 NW2d 694 (2009).
We have held that “[p]arents have a constitutionally protected right to make decisions about
the care, custody, and management of their children.” Zawilanski v Marshall, 317 Mich App 43,
49; 894 NW2d 141 (2016). Although this right is not absolute, the United States Constitution
imparts “ ‘a presumption that fit parents act in the best interest of their children’ and that ‘there
will normally be no reason for the State to inject itself into the private realm of the family’ ” by
questioning the ability of fit parents to make the best decisions concerning the raising of their
children. Id., quoting In re Sanders, 495 Mich 394, 410; 852 NW2d 524 (2014), quoting Troxel v
Granville, 530 US 57, 68-69; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (opinion by O’CONNOR, J.).
A “fit parent” has been defined “as a parent who ‘adequately cares for his or her children.’ ”
Geering v King, 320 Mich App 182, 190-191; 906 NW2d 214 (2017), quoting Troxel, 530 US at
68-69. “[T]he Due Process Clause does not permit a State to infringe on the fundamental right of
parents to make child rearing decisions simply because a state judge believes a ‘better’ decision
could be made.” Troxel, 530 US at 72-73 (opinion by O’CONNOR, J.). However, “the state has a
legitimate interest in protecting the moral, emotional, mental, and physical welfare of the minor[.]”
Geering, 320 Mich App at 188 (quotation marks and citations omitted).
Respondent asserts that the statutory presumption favoring natural parents under the Child
Custody Act, MCL 722.21 et seq., should also apply to guardianship proceedings. This statutory
presumption is applicable to child custody disputes between the parent and a third person, and
states as follows: “the court shall presume that the best interests of the child are served by awarding
custody to the parent or parents, unless the contrary is established by clear and convincing
evidence.” MCL 722.25(1). We have stated that “the Legislature plainly recognized the
fundamental constitutional nature of a parent’s interest in childrearing when it enacted the
presumption that in all custody disputes involving natural parents and third persons, absent clear
and convincing evidence to the contrary, parental custody served the child’s best interests.”
Heltzel v Heltzel, 248 Mich App 1, 26; 638 NW2d 123 (2001). In the Child Custody Act context,
this presumption was found to control over the presumption in favor of an established custodial
environment. Hunter, 484 Mich at 263. Our Supreme Court stated that “Troxel established a floor
or minimum protection against state intrusion into the parenting decisions of fit parents.” Id. at
262. “The constitutional protection in Troxel centers on the ‘traditional presumption that a fit
parent will act in the best interest of his or her child.’ ” Id., quoting Troxel, 530 US at 69.
While we have only considered the constitutional protection afforded parents in the child
custody context, such right must also be afforded in the guardianship context. Because “[p]arents
3
The record reflects that petitioner was under the impression that respondent was just taking them
to Texas for a visit. Instead, respondent kept the children.
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have a constitutionally protected right to make decisions about the care, custody, and management
of their children,” this right cannot be dependent on the type of proceeding. Zawilanski, 317 Mich
App at 49. In other words, a parent does not lose his or her constitutional right that would be
afforded in a child custody case just because the parent is part of a guardianship proceeding instead
of a custody case. Although not expressly held, we have stated that “[b]ecause the Child Custody
Act of 1970 . . . and the guardianship statutes have the same purpose of promoting the best interests
of children, the two statutes may be interpreted consistent with each other, or in pari materia.”
Deschaine v St Germain, 256 Mich App 665, 670 n 9; 671 NW2d 79 (2003) (internal citations
omitted).4 Therefore, we conclude that a parent’s constitutional right to raise his or her child is
also applicable in the guardianship context.5
With this right in mind, we next address the constitutionality of MCL 700.5204(2)(b).
“Statutes are presumed to be constitutional, and we have a duty to construe a statute as
constitutional unless its unconstitutionality is clearly apparent.” Mayor of Cadillac v Blackburn,
306 Mich App 512, 516; 857 NW2d 529 (2014) (quotation marks and citation omitted). “Every
reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is
only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates
some provision of the Constitution that a court will refuse to sustain its validity.” Phillips v Mirac,
Inc, 470 Mich 415, 423; 685 NW2d 174 (2004) (quotation marks and citation omitted). We
4
With respect to reading statutes in pari materia, our Supreme Court has stated:
Statutes in pari materia [sic] are those which relate to the same person or
thing, or the same class of persons or things, or which have a common purpose. It
is the rule that in construction of a particular statute, or in the interpretation of its
provisions, all statutes relating to the same subject, or having the same general
purpose, should be read in connection with it, as together constituting one law,
although enacted at different times, and containing no reference one to the other.
[State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998) (quotation
marks and citation omitted).]
5
We reject respondent’s contention that guardianship proceedings are basically custody
proceedings. It is correct that under the Uniform Child Custody Jurisdiction and Enforcement Act
(the UCCJEA), MCL 722.1101 et seq., proceedings for guardianships are included in the definition
“child-custody proceeding.” But the UCCJEA’s purpose is to prescribe “the powers and duties of
the court in a child-custody proceeding involving this state and a proceeding or party outside of
this state[.]” Fisher v Belcher, 269 Mich App 247, 260; 713 NW2d 6 (2005). There are several
proceedings included under the UCCJEA. See MCL 722.1102(d). However, the Child Custody
Act and EPIC both acknowledge the existence of the two distinct proceedings, i.e., a custody
proceeding and a guardianship proceeding. See MCL 722.26b(1) (“a guardian or limited guardian
of a child has standing to bring an action for custody of the child as provided in this act.”); MCL
700.5210 (“Upon receipt of a copy of a judgment or an order of disposition in a child custody
action regarding a minor that is sent to the court as provided in section 6b of the child custody act
of 1970, 1970 PA 91, MCL 722.26b, the court shall terminate the guardianship or limited
guardianship for that minor.”). Therefore, guardianship proceedings are distinct from custody
proceedings in the sense that custody of a minor is a separate determination.
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conclude that the statute in this case, in essence, protects a parent’s decision regarding his or her
child until that decision reflects that the parent is no longer adequately caring for the child. See
Geering, 320 Mich App at 190-191. As discussed below, the statute is not applicable unless a
parent allows a child to permanently reside with another person, and the parent does not grant legal
authority to the other person. MCL 700.5204 provides in relevant part:
(1) A person interested in the welfare of a minor, or a minor if 14 years of
age or older, may petition for the appointment of a guardian for the minor. The
court may order the family independence agency or a court employee or agent to
conduct an investigation of the proposed guardianship and file a written report of
the investigation.
(2) The court may appoint a guardian for an unmarried minor if any of the
following circumstances exist:
* * *
(b) The parent or parents permit the minor to reside with another person and
do not provide the other person with legal authority for the minor’s care and
maintenance, and the minor is not residing with his or her parent or parents when
the petition is filed.
In other words, for the probate court to consider appointing an individual as a guardian, that
individual must establish that (1) the parent permits the children to reside with another person; (2)
the parent does not provide that other person with legal authority for the children’s care; and (3)
the children do not reside with the parent when the petition is filed. See MCL 700.5204(2)(b).
With respect to permission, we have held that “the permission referred to in the statute
must be currently occurring—which would be shown by the child’s actual presence in the care of
another—when the guardianship issue arises[.]” Deschaine, 256 Mich App at 670. Moreover, we
have recognized that a lower court may appoint a guardian “if parents permit their child to
permanently reside with someone else when the guardianship issue arises.” Id. at 669. As stated
more recently, “ ‘residence’ is a place of abode accompanied with the intention to remain.” Berger
v Berger, 277 Mich App 700, 703; 747 NW2d 336 (2008) (quotation marks and citation omitted).
There must also be no grant of legal authority for a child’s care and maintenance, which includes
facilitating the child’s “education and social or other activities,” as well as “medical or other
professional care, treatment, or advice.” MCL 700.5215(c); see also In re Martin, 237 Mich App
253, 257; 602 NW2d 630 (1999) (addressing the powers and duties of a guardian under MCL
700.431, which was the precursor to MCL 700.5215).6
The presumption respondent seeks is that he was a fit parent. As detailed earlier, we agree
that such presumption should apply to guardianship proceedings. “Fit parents” are parents that
adequately provide for their children. See Geering, 320 Mich App at 190-191. This would include
6
MCL 700.431 was repealed by PA 1998, No. 386, § 5215, otherwise known as MCL 700.5215,
in 2000.
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providing for the “moral, emotional, mental, and physical welfare of the minor[.]” See id. at 188
(quotation marks and citation omitted). However, by coming under the purview of
MCL 700.5204(2)(b), respondent had essentially stopped providing adequate care for the children,
i.e., became unfit. In other words, MCL 700.5204(2)(b) provides an opportunity to rebut the
presumption that respondent was a fit parent.7 The record reflects that the children were with
petitioner for two years and that there was never any indication as to when the children would
return to respondent, if ever. Petitioner testified that respondent was evicted from his apartment
here in Michigan and that he allowed the children to live with her while he stayed in a hotel.
Respondent then moved to Texas and still allowed the children to live with petitioner.
Under MCL 700.5204(2)(b), the children had permanently lived with petitioner, and there
is no evidence to indicate that respondent intended anything otherwise.8 There was also evidence
that respondent received death benefits from the mother’s death but he did not provide any of the
money to the children. Furthermore, petitioner testified that she rarely received any money from
respondent to help care for the children. Respondent also never granted petitioner legal authority
to care for the children. Therefore, because respondent had left the children with petitioner
permanently without granting petitioner legal authority to care for the children, respondent had
stopped providing adequate care for the children. The requirements of MCL 700.5204(2)(b)
essentially demonstrate a situation where a parent has stopped providing adequate care to a child
and a guardian needs to step in to provide for the child. Therefore, the statute implicitly protects
a parent’s constitutional right to the care, custody, and maintenance of his or her child by not
allowing a guardianship to be imposed in circumstances where the parent adequately provides for
7
Notably, our Supreme Court has recognized that there is no requirement to demonstrate parental
unfitness in the context of the Child Custody Act. As explained, “Troxel carefully limited the
constitutional scope of the parental presumption to the extent that a court need give decisions by
fit custodial parents only a presumption of validity.” Hunter, 484 Mich at 268 (quotation marks
and citation omitted). The rationale set forth in Hunter persuades us that parental unfitness also
need not be demonstrated in the guardianship context:
Defendant would have the Court require a demonstration of parental
unfitness before allowing the parental presumption to be rebutted where no such
demonstration is required by [the Child Custody Act]. That would in effect, give
unlimited deference to all parenting decisions of parents deemed to be fit.
However, “[a] determination that an individual has a fundamental right does not
foreclose the State from ever limiting it.” In re RA, 153 NH 82, 102, 891 A2d 564
(2005). Such a determination is not constitutionally mandated. To hold that
parental unfitness is a mandatory prerequisite to rebutting the parental presumption
would be inconsistent with the CCA’s emphasis on best interests and lack of
reference to fitness. [Hunter, 484 Mich at 268 n 40.]
8
Respondent was not present at the hearing to contradict anything petitioner testified about.
Therefore, respondent’s contention that “[a]lthough [petitioner] testified that she did now know
that [he] planned for the children to reside with him permanently in Texas, [petitioner] prepared
the petition originally in January 2019 and did not file until May 9, 2019, indicating she was aware
of the potential change” is baseless. There was only evidence to support petitioner’s position.
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the child, i.e., is a fit parent. Such protection prohibits the state from interfering with that parent’s
constitutional right.
Respondent likens this case to Troxel and argues that MCL 700.5204(2)(b) is just as broad
as the Washington statute that was interpreted in Troxel. The Troxel case involved a visitation
dispute between a child’s natural mother and the paternal grandparents. Troxel, 530 US at 60
(opinion by O’CONNOR, J.). The grandparents sought to obtain more frequent visitation with the
child than the respondent-mother wished to offer. Id. at 60-61. There was a statute in place that
permitted “[a]ny person” to petition a superior court “for visitation rights at any time,” and
authorizing that court to grant such visitation rights whenever “visitation may serve the best
interest of the child.” Id. at 60 (quotation marks omitted). The United States Supreme Court
characterized the statute as “breathtakingly broad” and noted that it gave no deference to a child’s
parent. Id. at 67. The Supreme Court also stated that the statute allowed “a court [to] disregard
and overturn any decision by a fit custodial parent concerning visitation whenever a third party
affected by the decision files a visitation petition, based solely on the judge’s determination of the
child’s best interests.” Id. The Supreme Court went on to hold that the visitation statute violated
the respondent-mother’s fundamental right to make decisions regarding her child’s upbringing.
Id. at 68-70 (opinion by O’CONNOR, J.) (stating that there was no allegation the respondent-mother
was unfit and that “there is a presumption that fit parents act in the best interests of their children”).
In this case, the guardianship statute does not interfere with respondent’s fundamental right
to raise his children as the Washington statute did in Troxel. While MCL 700.5204 allows “a
person interested in the welfare of a minor” to petition a court “for the appointment of a guardian
for the minor,” there are specific requirements that must be met under MCL 700.5204(2)(b) before
the court can grant a guardianship. Specifically, it requires that the parent allow the child to
permanently reside with another person, without granting legal authority to the other person. See
Deschaine, 256 Mich App at 669. Unlike Troxel, MCL 700.5204(2)(b) does not allow a presiding
court to makes its own determination of the child’s best interests. Rather, there must be a showing
of permanent residency and lack of legal authority. There must also be a showing that the other
person filed the petition for guardianship while the child was living with him or her. Without
meeting all three of the requirements, the court cannot grant the guardianship. MCL
700.5204(2)(b) is not nearly as broad as the statute in Troxel because it limits the trial court’s
determination to the requirements of the statute. The statute in Troxel allowed anyone to petition
for visitation of a child and left it to the trial court to determine the child’s best interests. The
language of the Washington statute “effectively permit[ted] any third party seeking visitation to
subject any decision by a parent concerning visitation of the parent’s children to state-court
review.” Troxel, 530 US at 67. Under MCL 700.5204(2)(b), a parent’s decision only comes under
state-court review when the parent has effectively stopped providing adequate care to the child.
Therefore, if a parent does not allow a child to permanently live with another person, or grants
legal authority to the person who the child permanently lives with, then that parent’s constitutional
right to raise the child will not be interfered with.
Respondent also argues that there was insufficient evidence to grant a guardianship. We
disagree. “A circuit court’s factual findings are reviewed for clear error, which occurs when this
Court is left with a firm and definite conviction that a mistake was made.” Deschaine, 256 Mich
App at 668.
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Petitioner presented evidence that the children were living with her for two years.
Petitioner testified that she did not know whether respondent would have the children live with
him again and only indicated that he would visit or have the children visit him. We have
recognized that past permission is irrelevant; it is the permission that is ongoing at the time that
the petition for guardianship is filed that is relevant. See Deschaine, 256 Mich App at 671-673.
The petition was filed on May 9, 2019. Respondent retrieved the children on June 15, 2019, a
month after the petition was filed. The record reflects that respondent permitted the children to
live with petitioner at the time that the petition was filed. See id. at 670. (“[T]he permission
referred to in the statute must be currently occurring—which would be shown by the child’s actual
presence in the care of another—when the guardianship issue arises.”). Moreover, the record
reflects that respondent did not provide petitioner with legal authority for the children’s care, such
as a power of attorney delegating parental authority to petitioner, even though the children had
lived with petitioner, with respondent’s permission, for two years. Petitioner testified that
respondent told her that he did not want to give her legal authority. Finally, petitioner presented
evidence that the children lived with her at the time that the petition was filed. It was a month
after the petition was filed that respondent came to Michigan and took the children to Texas.
Because respondent decided not to attend the hearing to present his own evidence, petitioner’s
testimony is uncontradicted.
In sum, we conclude that MCL 700.5204(2)(b) is constitutional and does not infringe on a
parent’s constitutional right to the care, custody, and management of his or her children. See
Zawilanski, 317 Mich App at 49. Rather, the statute implicitly affords a parent the constitutional
presumption that he or she is a fit parent, while also providing a potential guardian the opportunity
to rebut that presumption.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
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