Michigan court reverses probate court conservatorship order

By: BridgeTower Media Newswires 

DETROIT, MI — Where a petitioner has challenged probate court orders appointing appellee as conservator for the petitioner’s minor children under MCL 700.5106 and MCL 700.5409, the probate court erroneously relied on a confidential report submitted by a guardian ad litem without first allowing him the opportunity to review it, in violation of MCR 5.121(D)(2)(a).

Reversed.

“Although petitioner did not first bring this issue to the probate court, we exercise our discretion to review this issue. It presents concerns regarding procedural fairness in the probate court’s handling of a confidential GAL report that it received into evidence and expressly relied upon in rendering its decision. The probate court did not provide petitioner an opportunity to examine or respond to that material. A proceeding in which the court relies on undisclosed evidence to resolve a contested issue affecting statutory priority and fiduciary appointment undermines the fundamental fairness of the adjudicative process. In our view, if we declined to review this alleged violation of a court rule designed to safeguard the rights of interested parties in probate proceedings, it would result in a manifest injustice. …

“Here, the probate court appointed the GAL, received the GAL’s confidential report into the record, and relied on that report in rendering its decision. Under these circumstances, the court rules imposed an affirmative obligation on the probate court to ensure that petitioner, as an interested person, was afforded an opportunity to examine and review the report and to controvert it. The court was required to do so regardless of whether petitioner made a formal request. The record does not reflect that petitioner was ever afforded such an opportunity, although evidence of his desire to do so is apparent from the record. Before the hearing, petitioner sent an email to the GAL requesting whether ‘any information can be provided on what is contained in the confidential file that makes [petitioner] unsuitable to serve as conservator?’ The GAL responded that she would ‘need to defer to the court on [her] recommendation,’ due to her discomfort with providing further information. This exchange demonstrates that petitioner affirmatively sought access to the report but the GAL declined. That procedure was inconsistent with the plain language of MCR 5.121(D)(2)(a). Accordingly, petitioner is entitled to a new hearing. On remand, petitioner must be afforded the opportunity to examine any GAL report received into evidence as required by MCR 5.121(D)(2)(a).

“Reversed and remanded for further proceedings consistent with this opinion.”

In re Conservatorship of GT; MiLW No. 07-110568, 18 pages; Michigan Court of Appeals published; Rick, J., joined by Yates, J., Mariani, J.; on appeal from Wayne Probate Court; Elizabeth L. Parker for appellant; Dawn A. Santamarina for appellee. 

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Michigan court reverses probate court conservatorship order