Chapter 1: Introduction

1.1   Summary of Benchbook Contents       1-2

1.2   Purpose of Child Protective Proceeding       1-5

1.3   General Overview of Child Protective Proceedings       1-5

1.4   Application of Michigan Court Rules to Family Division
Proceedings       1-7

1.5   Application of the Michigan Rules of Evidence to Family Division Proceedings       1-11

1.6   Applicable Federal Law and Regulations       1-11

1.7   Use of Videoconferencing Technology in Child Protective and Juvenile Guardianship Proceedings       1-12

In this chapter . . .

This chapter provides an overview of the topics addressed in this benchbook. This chapter also discusses the Michigan court rules, statutes, and rules of evidence as well as the federal law and regulations that govern child protective proceedings.

Included in this benchbook, are also the following appendices:

•​Appendix A, which contains a table summarizing statutes and court rules that govern procedures in child protective proceedings.

•​Appendix B, which contains a table of time and notice requirements applicable to child protective proceedings.

•​Appendix C, which contains a table summarizing the rules of evidence and standards of proof applicable to child protective proceedings.

In an effort to create a general overview of the procedures and applicable court forms required for child protective proceedings, the State Court Administrative Office (SCAO) created the Child Protective Proceedings - Timeline and Court Forms (Non-Indian Children).

Michigan Legal Help also created a Child Protective Services (CPS) Process Flowchart to help provide a basic understanding of the CPS process for non-Indian children.

1.1​Summary of Benchbook Contents

This benchbook explains the procedures required in child protective proceedings, from reporting and investigating suspected child abuse and neglect, to required court hearings in the Family Division of the Circuit Court,1 to appeals to the Michigan Court of Appeals and Michigan Supreme Court. Although child protective proceedings involve a complex interplay between the judicial and social services systems, detailed coverage is given only to required court procedures. The following limitations on subject matter should be noted:

•​internal Department of Health and Human Services (DHHS) policies governing child protective workers, foster care workers, and supervising agency workers are cited when relevant but are not discussed in-depth;

•​rules governing the regulation of foster care homes and institutions are not discussed in detail; and

•​detailed treatment of the legal requirements for adoptions are discussed in the Michigan Judicial Institute’s Adoption Proceedings Benchbook.

The organization of this benchbook is intended to follow a typical child protective proceeding. Chapter 2 explains the requirements for reporting and investigating suspected child abuse or neglect. A report of suspected abuse or neglect culminates in action by the DHHS’s Children’s Protective Services (CPS) Division. This action may involve either offering services and counseling to the family or filing a petition requesting formal court action.

A child may be taken into temporary protective custody following an investigation but prior to the filing of a petition in court. If the court is presented with a petition, the court must follow certain procedures when deciding whether to take jurisdiction over the child and place him or her outside of the home. These preliminary steps are explained in the following chapters:

•​Chapter 3 explains the procedures for obtaining temporary protective custody of a child with or without a court order.

•​Chapter 4 explains the court’s authority to act when there are allegations of child abuse or neglect.

•​Chapter 5 summarizes the time and notice requirements applicable to all stages of a child protective proceeding.

•​Chapter 6 discusses the procedures required for identifying a child’s father or determining that he cannot be found.

•​Chapter 7 discusses petition requirements and the court’s option of using a preliminary inquiry if the child is not in custody and custody is not requested. Chapter 7 also details the procedures required at a preliminary hearing, during which the court must decide whether to authorize the petition to be filed and whether to place the child outside of his or her home pending trial. The court may also order a child’s alleged abuser out of the child’s home, rather than removing the child from the home.

•​Chapter 8 discusses the court’s obligation to determine whether to order a child out of his or her home, or to return the child to his or her home pending a trial on the allegations in a petition. Chapter 8 also details the court’s placement options.

If the court authorizes the filing of the petition, a trial will be held, unless the parent enters a plea of admission or no contest, to determine whether the court will take personal jurisdiction over the child. This stage of the proceedings, known as the “adjudicative phase,” is detailed in the following chapters:

•​Chapter 9 discusses pretrial conferences, discovery, and motions.

•​Chapter 10 explains the procedures for taking a parent’s plea of admission or no contest.

•​Chapter 11 discusses common evidentiary issues in child protective proceedings.

•​Chapter 12 explains the required procedures for trials in child protective proceedings.

If the court takes jurisdiction over the child, the case moves into the “dispositional phase.” During the dispositional phase, the family must participate in court-ordered services and counseling designed to improve the conditions leading to court jurisdiction and, if possible, to reunify the family. If, at the initial dispositional hearing, regularly held review hearings, or a permanency planning hearing, the court determines that the family should not be reunified, a hearing on termination of parental rights will be held. The dispositional phase is described in the following chapters of this benchbook:

•​Chapter 13 discusses initial dispositional hearings.

•​Chapter 14 contains an overview of funding sources that may be used to pay the costs of child protective proceedings and child placements.

•​Chapter 15 explains the procedures for conducting dispositional review hearings, and for conducting emergency removal hearings when the agency supervising a child who was not removed from the home believes that the child is in immediate danger of harm.

•​Chapter 16 discusses permanency planning hearings, which are held to decide upon a permanent plan for the child, and whether to proceed with a hearing on termination of parental rights.

•​Chapter 17 explains in detail the procedures required for terminating parental rights to a child, either at an initial dispositional hearing or at a later hearing.

•​Chapter 18 explains the post-termination review process, during which efforts to find a permanent adoptive or foster family are monitored by the court.

•​Chapter 19 explains the heightened procedural requirements that must be observed in child protective proceedings involving Indian children.

The final two chapters cover matters that are applicable to all stages of child protective proceedings:

•​Chapter 20 discusses appeals in child protective proceedings.

•​Chapter 21 explains the court’s recordkeeping obligations, confidentiality of and access to records, and the retention and destruction of records and files.

1.2​Purpose of Child Protective Proceeding

“‘Child protective proceedings are not criminal proceedings,’ and unlike criminal proceedings, the ‘purpose of child protective proceedings is the protection of the child’ rather than to determine a defendant’s guilt or innocence. ‘The juvenile code[, which governs child protective proceedings,] is intended to protect children from unfit homes rather than to punish their parents.’” In re Richardson, 329 Mich App 232, 254 (2019), quoting In re Brock, 442 Mich 101, 107-108 (1993). “[P]roceedings may be initiated by anyone who has information that a child is in need of the court’s protection.[2] To maximize protection of the child, and at the same time safeguard the interests of parents whose children are the subject of a petition, the court rules provide for expedited proceedings. The [trial] court’s protective function is also promoted by procedure which allows for a rehearing or a new trial whenever new evidence comes to light suggesting that the child needs court protection.”3 People v Gates, 434 Mich 146, 161-162 (1990) (protective proceedings distinguished from criminal proceedings).

1.3​General Overview of Child Protective Proceedings

“Child protective proceedings are governed by the juvenile code, MCL 712A.1 et seq., and Subchapter 3.900 of the Michigan Court Rules.” In re Ferranti, 504 Mich 1, 14 (2019).

“A child protective proceeding is a single continuous proceeding that begins with a petition, proceeds to an adjudication, and—unless the family has been reunified—ends with a determination of whether a respondent’s parental rights will be terminated.” Ferranti, 504 Mich at 23 (internal citations and quotation marks omitted).

Petition. A petition must be filed to initiate child protective proceedings.4 MCR 3.961(A). “[The] petition must contain, among other things, ‘[t]he essential facts’ that, if proven, would allow the trial court to assume jurisdiction over the child.” Ferranti, 504 Mich at 15, citing MCR 3.961(B)(3) and MCL 712A.2(b). “After receiving the petition, the trial court must hold a preliminary hearing and may authorize the filing of the petition upon a finding of probable cause that one or more of the allegations are true and could support the trial court’s exercise of jurisdiction under MCL 712A.2(b).”5 Ferranti, 504 Mich at 15.

Adjudicative phase. “If the court authorizes the petition, the adjudication phase follows. The question at adjudication is whether the trial court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights. The court can exercise jurisdiction if a respondent-parent enters a plea of admission or no contest to allegations in the petition, see MCR 3.971, or if the Department proves the allegations at a trial, see MCR 3.972. ‘If a trial is held, the respondent is entitled to a jury, the rules of evidence generally apply, and the petitioner has the burden of proving by a preponderance of the evidence one or more of the statutory grounds for jurisdiction alleged in the petition.’ . . . The adjudication divests the parent of her constitutional right to parent her child and gives the state that authority instead.” In re Ferranti, 504 Mich at 15, quoting In re Sanders, 495 Mich 394, 405-406 (2014) (internal citation omitted). For a discussion on pleas of admission or no contest, see Chapter 10, a discussion on evidentiary issues, see Chapter 11, and a discussion on trials, see Chapter 12.

Dispositional phase. “Once the trial court’s jurisdiction is established, the case moves to the dispositional phase. In this phase, the trial court has ‘broad authority’ to enter orders that are ‘“appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained.”’ During the dispositional phase the court must hold review hearings ‘to permit court review of the progress made to comply with any order of disposition and with the case service plan [i.e., the family treatment plan] . . . and court evaluation of the continued need and appropriateness for the child to be in foster care. If the child is removed from the family home, the court must conduct a permanency planning hearing within 12 months from the date of removal. MCL 712A.19a(1); MCR 3.976(B)(2). This hearing results in either the dismissal of the petition and family reunification, or the court ordering the Department to petition for the termination of parental rights. MCL 712A.19a(4); MCR 3.976(A).” Ferranti, 504 Mich at 16, quoting Sanders, 495 Mich at 406. A dispositional hearing also permits “the court to approve or disapprove of the child’s initial or continued placement in a qualified residential treatment program.” MCR 3.975(A). For a discussion on the dispositional phase and review hearings, see Chapter 13 and Chapter 15, and a discussion on the permanency planning hearings, see Chapter 16.

Termination of parental rights. “If the Department files a termination petition, the court holds a termination hearing. See MCR 3.977. The court acts as fact-finder, MCR 3.977(I), and the rules of evidence generally do not apply [at the hearing], MCR 3.977(H)(2).” Ferranti, 504 Mich at 16. “Parties shall make disclosures as detailed in MCR 3.922(A) at least 21 days prior to the termination hearing and have rights to discovery consistent with that rule.” MCR 3.977(H)(2). “If the court determines that one or more statutory grounds for termination exist and that termination is in the child’s best interests, the court must enter an order terminating the respondent’s parental rights and order that additional efforts for reunification not be made. MCL 712A.19b(5).” Ferranti, 504 Mich at 16. For a discussion on termination hearings, see Chapter 17.

Indian child. The Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., apply if the child is an Indian child. For a discussion on child custody proceedings involving an Indian child, see Chapter 19.

1.4​Application of Michigan Court Rules to Family Division Proceedings6

Subchapter 3.900 of the Michigan Court Rules governs proceedings involving child protective proceedings.

MCR 3.901(A) provides in relevant part:

“(1) The rules in [subchapter 3.900], in subchapter 1.100 [(general provisions regarding applicability and construction of court rules)], and in subchapter 8.100 [(adoption proceedings)] govern practice and procedure in the family division of the circuit court in all cases filed under the Juvenile Code.

(2) Other Michigan Court Rules apply to juvenile cases in the family division of the circuit court only when [subchapter 3.900] specifically provides.”

See also MCR 1.103 (“Rules stated to be applicable . . . only to a specific type of proceeding apply only . . . to that type of proceeding and control over general rules.”).

Statutory rules of procedure, if not in conflict with the court rules governing child protective proceedings, apply to such proceedings. See MCR 1.104 (“Rules of practice set forth in any statute, if not in conflict with any of these rules, are effective until superseded by rules adopted by the Supreme Court.”). Where a statute and court rule conflict, “the court rule prevails if it governs purely procedural matters.” Donkers v Kovach, 277 Mich App 366, 373 (2007).

Other court rules that specifically apply to child protective proceedings are listed below:

•​MCR 2.003 (disqualification of a judge);7

•​MCR 2.004 (notice and opportunity to participate in proceedings for incarcerated parties);8

•​MCR 2.104(A) (proof of service of a summons);9

•​MCR 2.106(G)(1) and MCR 2.106(G)(3) (proof of service by publication);10

•​MCR 2.107(D)11 (proof of service of documents other than a summons);12

•​MCR 1.109(D)(3) (verification of petitions);13

•​MCR 2.117(B) (appearance of attorney);14

•​MCR 2.119 (motion practice);15

•​MCR 2.313 (sanctions for disclosure or discovery violations);16

•​MCR 2.401 (scope and effect of pretrial conferences, “except as otherwise provided in or inconsistent with the rules of [subchapter 3.900]”);17

•​MCR 2.406 (filing of records using facsimile communication equipment);18

•​MCR 2.506 (service of subpoenas);19

•​MCR 2.508-MCR 2.516, except as modified by MCR 3.911 (jury procedure in child protective cases);20

•​MCR 2.602(A)(1)-(2) (form and signing of judgments);21

•​MCR 2.613 (limitations on correction of error);22

•​MCR 3.205 (manner of notice from Family Division to another Michigan court with jurisdiction over a child);23

•​MCR 1.109(D)(2) (required case initiation information and identification of other Family Division matters involving members of the same family);24

•​MCR 3.606 (contempts committed outside the presence of the court);25

•​MCR 1.109(D) (form and filing of papers);26

•​MCR 1.112 (filings by incarcerated individuals);27

•​Chapter 7 of the Michigan Court Rules, except as modified by MCR 3.993 (appeals);28 and

•​MCR 8.108 or as provided by statute (records of proceedings).29

MCR 2.116, which governs motions for summary disposition in civil cases, does not apply to child protective proceedings. In re PAP, 247 Mich App 148, 153-154 (2001).

MCR 2.603, which governs defaults and default judgments in civil cases, does not apply to child protective proceedings. In re Collier, 314 Mich App 558, 569 (2016) (finding that the Michigan Court Rules “are clear that a default cannot be entered in child protective proceedings[;] MCR 3.901(A)(1) sets forth the court rules that are applicable to child protective proceedings[, and] the rule pertaining to defaults, MCR 2.603 et seq., is not among the rules specifically incorporated in juvenile or child protective proceedings”).

MCR 3.902 provides for the construction and interpretation of court rules relating to child protective proceedings:

“(A) In General. The rules are to be construed to secure fairness, flexibility, and simplicity. The court shall proceed in a manner that safeguards the rights and proper interests of the parties. Limitations on corrections of error are governed by MCR 2.613.

(B) Philosophy. The rules must be interpreted and applied in keeping with the philosophy expressed in the Juvenile Code. The court shall ensure that each minor coming within the jurisdiction of the court shall:

(1) receive the care, guidance, and control, preferably in the minor’s own home, that is conducive to the minor’s welfare and the best interests of the public; and

(2) when removed from parental control, be placed in care as nearly as possible equivalent to the care that the minor’s parents should have given the minor.”30

1.5​Application of the Michigan Rules of Evidence to Family Division Proceedings

“The Michigan Rules of Evidence, except with regard to privileges, do not apply to proceedings under this subchapter, except where a rule in this subchapter specifically so provides.” MCR 3.901(A)(3). See also MRE 1101(b)(7) (the Michigan Rules of Evidence, other than those with respect to privileges, do not apply wherever a rule in Subchapter 3.900 states that they do not apply).

See Appendix C for the applicability of the Michigan Rules of Evidence during child protective proceedings.

1.6​Applicable Federal Law and Regulations

Several federal statutes and regulations apply to child protective proceedings in Michigan. Applicable federal statutes and regulations include the following:

•​Title IV-E of the Social Security Act, 42 USC 670 et seq. This act requires courts to make certain findings regarding removal of a child from the home, including findings that continued custody by the parent or legal guardian would be “contrary to the child’s welfare” and that “reasonable efforts” have been made to prevent removal or to reunify the family. The act also provides for review and permanency hearings.31

•​Regulations implementing Title IV-E, 45 CFR 1355.10 et seq. These regulations detail required court and agency procedures.

•​Indian Child Welfare Act (ICWA), 25 USC 1901 et seq. This act sets out the procedures required when an Indian child is involved in a child protective or other custody proceeding.32

•​Regulations implementing ICWA, 25 CFR Part 23. These regulations detail required court and agency procedures.

1.7​Use of Videoconferencing Technology in Child Protective and Juvenile Guardianship Proceedings

MCR 3.904(B) provides:

“(1) Except as provided in subrule (B)(2), courts may allow the use of videoconferencing technology by any participant, as defined in MCR 2.407(A)(1),[33] in any proceeding.

(2) As long as the respondent is either present in the courtroom or has waived the right to be present, on motion of either party showing good cause, the court may use videoconferencing technology to take testimony from an expert witness or any person at another location in the following proceedings:

(a) removal hearings under MCR 3.967 and evidentiary hearings; and

(b) termination of parental rights proceedings under MCR 3.977 and trials, with the consent of the parties. A party who does not consent to the use of videoconferencing technology to take testimony from a person at trial shall not be required to articulate any reason for not consenting.”

“The use videoconferencing technology under this rule must be in accordance with the standards established by the State Court Administrative Office. All proceedings at which videoconferencing technology is used must be recorded verbatim by the court.” MCR 3.904(C).34

When a party has specifically consented to the use of videoconferencing technology to conduct a hearing, the court is not required to separately advise the party that he or she has “a right to be present in-person” during the hearing. In re Smith-Taylor, 339 Mich App 189, 208 (2021), rev’d on other grounds 509 Mich 935 (2022).

1. Throughout this benchbook, “Family Division” is used to describe the Family Division of the Circuit Court. References to the probate court or “juvenile court” used in statutes, court rules, or case law may have been altered to conform to this usage. MCR 3.903(A)(4) states that “court” generally means the Family Division of the Circuit Court when used in Subchapter 3.900. In addition, MCL 600.1009 states that a reference to the former Juvenile Division of the Probate Court in any statute shall be construed as a reference to the Family Division of Circuit Court.

2. See Section 2.2 for a detailed discussion on reporting suspected abuse or neglect.

3. See Section 12.12 for a detailed discussion of rehearings and new trials.

4. See Chapter 3 for a detailed discussion of protective custody of a child, and Chapter 6 for a detailed discussion of petitions.

5. “If the child is not in protective custody and the petition does not request placement outside the family home, then a preliminary hearing is not required. Instead the probable-cause determination (and the appropriate course of action) is made through a preliminary inquiry, a comparatively less formal process.” Ferranti, 504 Mich at 15 n 6. See Section 7.5 for a discussion on preliminary inquiries, and Section 7.6 for a discussion on preliminary hearings.

6. See Appendix A for a table summarizing the statutes and court rules that govern procedures involving child protective proceedings.

7. See MCR 3.912(D).

8. See MCR 3.920(A)(2).

9. See MCR 3.920(I)(1).

10. See MCR 3.920(I)(3).

11.”Notwithstanding any other provision of [MCR 2.107], until further order of the Court, all service of process except for case initiation must be performed using electronic means (e-Filing where available, email, or fax, where available) to the greatest extent possible. Email transmission does not require agreement by the other party(s) but should otherwise comply as much as possible with the provisions of [MCR 2.107(C)(4)].” MCR 2.107(G).

12. See MCR 3.920(I)(2).

13. See MCR 3.903(A)(20).

14. See MCR 3.915(C).

15. See MCR 3.922(D).

16. See MCR 3.922(A)(4).

17. See MCR 3.922(E).

18. See MCR 3.929.

19. See MCR 3.920(E)(3).

20. See MCR 3.911(C).

21. See MCR 3.925(C).

22. See MCR 3.902(A).

23. See MCR 3.927.

24. See MCR 3.961(A).

25. See MCR 3.928(B). Contempt of court proceedings are also governed by MCL 600.1711 (contempt committed in presence of court) and MCL 600.1715 (punishment for contempt violation).

26. See MCR 3.961(A).

27.A pleading or other document filed by an individual who is not represented by an attorney and who is incarcerated in a prison or jail “must be deemed timely filed if it was deposited in the institution’s outgoing mail on or before the filing deadline.” MCR 1.112. Proof that the document was timely filed “may include a receipt of mailing, a sworn statement setting forth the date of deposit and that postage has been prepaid, or other evidence (such as a postmark or date stamp) showing that the document was timely deposited and that postage was prepaid.” Id.

28. See MCR 3.993(C)(1).

29. See MCR 3.925(B).

30. See also MCL 712A.1(3), which contains substantially similar language.

31. See Chapter 14 for a detailed discussion of Title IV-E. “Despite the public health crisis that exists, it is critical that child welfare agencies and courts work together to ensure that the requisite judicial proceedings continue during this time of uncertainty.” See the Department of Health & Human Services, Children’s Bureau Letter to Child Welfare and Judicial Leaders, which details the judicial determinations and proceedings that must be held in order to satisfy Title IV-E requirements as well as suggestions for ensuring courts continue “to practice in a manner consistent with constitutional principles and to serve the best interest of children[.]”Note: The link to the previous resource was created using Perma.cc and directs the reader to an archived record of the page.

32. Michigan law sets out similar provisions in the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq. See Chapter 19 for a detailed discussion of the Indian Child Welfare Act (ICWA) and the MIFPA.

33.MCR 2.407(A)(1) defines participant as including, but not limited to, “parties, counsel, and subpoenaed witnesses, but do[es] not include the general public.”

34. Pursuant to Administrative Order No. 2014-25, the State Court Administrative Office established the Michigan Trial Court Standards for Courtroom Technology, which sets forth standards for digital recording, video recording, and videoconferencing technology.