Grandparenting time; MCL 722.27b; “Opportunity to be heard” within the meaning of MCL 722.27b(4)(a); Olepa v Olepa; Parental fitness

The court concluded that the trial court denied appellants-Mark and Shannon Schmaus (the Schmauses) “an opportunity to be heard” within the meaning of MCL 722.27b(4)(a) because the term “includes, at a minimum, the right to testify.” As such, it vacated the trial court’s order denying the Schmauses’ motion for grandparenting time and remanded. They “sought visitation with their granddaughter [LM] under Michigan’s grandparenting-time statute, MCL 722.27b.” The court found that although it is “not bound to follow Olepa because this Court decided the case before [11/1/90], it is precedential.” It also found “Olepa persuasive because its holding is consistent with the plain language of the statute.” The court held that reviewing “the provisions of MCL 722.27b as a whole,” the trial court erred. It “erroneously determined that the Schmauses were required to rebut the presumption stated in subsection (4)(b) in order to receive a hearing. The plain language of the statute does not support such an interpretation. Rather, subsection (4)(a) required the court to hold a hearing because the Schmauses requested a hearing.” The trial “court also erred by determining that the Schmauses were not entitled to a hearing at which evidence may be presented. MCL 722.27b(4)(a) entitled the Schmauses to ‘an opportunity to be heard,’ which necessarily includes in this context, at a minimum, the right to testify as this Court determined in Olepa.” Further, the Schmauses argued “that the trial court failed to make any finding that [appellee-LM’s father (Mack)] is a fit parent entitled to the presumption under subsection (4)(b) that his decision to deny them grandparenting time does not create a substantial risk of harm to LM’s mental, physical, or emotional health. The Schmauses are correct.” The record showed “that the trial court did not make any finding regarding Mack’s fitness as it pertains to the presumption under subsection (4)(b).” Thus, the court directed “the trial court to address that issue at the hearing on remand, along with any other issues necessary to its determination under MCL 722.27b.”