Chapter 5: Service of Process in Child Protective Proceedings

5.1   Issuance and Service of Summons in Child Protective Proceedings       5-2

5.2   Notice of Hearings in Child Protective Proceedings       5-9

5.3   Waiving Notice of Hearing or Service of Process       5-18

5.4   Subsequent Services       5-19

5.5   Subpoenas       5-19

5.6   Proof of Service       5-20

5.7   Judgments and Orders       5-22

5.8   Adjournments and Continuances in Child Protective Proceedings       5-22

In this chapter. . .

This chapter discusses the general requirements for issuing and serving summonses and notices of hearings in child protective proceedings. The statutory requirements for service in termination of parental rights proceedings are particularly important because a failure to meet those requirements renders the proceedings void.

This chapter includes a discussion on waiving notice of hearing or service of process and subsequent services.

This chapter also discusses subpoenas, proof of service, judgment orders, and adjournments in child protective proceedings.

5.1​Issuance and Service of Summons in Child Protective Proceedings

After a petition is filed, the court may:

(1) dismiss the petition; or

(2) issue a summons “reciting briefly the substance of the petition, and requiring the person or persons who have custody or control of the child, or with whom the child may be, to appear personally and bring the child before the court at a time and place stated[.]” MCL 712A.12.

A summons may be issued and served on a party before any juvenile proceeding. MCR 3.920(B)(1). The parties in a child protective proceeding include “the petitioner, child, and respondent” and “the parent, guardian, or legal custodian.”¹ MCR 3.903(A)(19)(b)(i)-(ii).

Note: “‘Parent’ means the mother, the father as defined in MCR 3.903(A)(7),^[2] or both, of the minor. It also includes the term ‘parent’ as defined in MCR 3.002(20).”³ MCR 3.903(A)(18). MCR 3.002(20) defines an Indian child’s parent as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the putative father if paternity has not been acknowledged or established.”

“‘Guardian’ means a person appointed as guardian of a child by a Michigan court pursuant to MCL 700.5204 or [MCL] 700.5205, by a court of another state under a comparable statutory provision, or by parental or testamentary appointment as provided in MCL 700.5202, or a juvenile guardian appointed pursuant to MCL 712A.19a or MCL 712A.19c.” MCR 3.903(A)(11).

“‘Legal Custodian’ means an adult who has been given legal custody of a minor by order of a circuit court in Michigan or a comparable court of another state or who possesses a valid power of attorney given pursuant to MCL 700.5103 or a comparable statute of another state. It also includes the term ‘Indian custodian’ as defined in MCR 3.002(15).”⁴ MCR 3.903(A)(14). An Indian custodian is “any Indian person who has custody of an Indian child under tribal law or custom or under state law, or to whom temporary physical care, custody, and control have been transferred by the child’s parent.” MCR 3.002(15).

“An order directed to a parent or a person . . . is not effective and binding on the parent or other person unless opportunity for hearing is given by issuance of summons . . . as provided in [MCL 712A.12 and MCL 712A.13] and until a copy of the order, bearing the seal of the court, is served on the parent or other person as provided in [MCL 712A.13].”⁵ MCL 712A.18(4).

A.​Contents of Summons

If the court issues a summons, the summons must “direct the person to whom it is addressed to appear at a time and place specified by the court and must:

(a) identify the nature of the hearing;

(b) explain the right to an attorney and the right to trial by judge or jury, including, where appropriate, that there is no right to a jury at a termination hearing;

(c) if the summons is for a child protective proceeding, include notice that the hearings could result in termination of parental rights; and

(d) have a copy of the petition attached. The confidential case inventory required by MCR 3.931(A) and MCR 3.961(A) shall not be served on any party.”⁶ MCR 3.920(B)(3).

B.​Service Requirements

“In a child protective proceeding, a summons must be served on any respondent and any nonrespondent parent.” MCR 3.920(B)(2)(b). A person who is not a respondent, but is the child’s guardian or legal custodian must also be notified of the petition and served with notice of hearing.⁷ Id.; MCL 712A.12.

Note: MCR 3.903(C)(12) defines respondent as “the parent,^[8] guardian,^[9] legal custodian,^[10] or nonparent adult^[11] who is alleged to have committed an offense against a child.” Respondent, in termination of parental rights proceedings, does not include “other persons to whom legal custody has been given by court order, persons who are acting in the place of the mother or father, or other persons responsible for the control, care, and welfare of the child.” MCR 3.977(B).¹²

MCR 3.903(C)(8) defines nonrespondent parent as “a parent who is not named as a respondent in a petition filed under MCL 712A.2(b).”

A noncustodial parent must be personally served with notice of hearing and a copy of the petition.¹³ MCL 712A.12; In re Miller (Julie), 182 Mich App 70, 73 (1990).

A summons may also be served on a person having physical custody of the child with the direction to appear with the child for a hearing. MCR 3.920(B)(2)(b). In addition, “[a] [s]ummons may be issued requiring the appearance of any other person whose presence, in the opinion of the judge, is necessary.” MCL 712A.12.

The statutory requirements for issuance and service of summonses to custodial parents, or notice of the petition and the time and place of a hearing to a noncustodial parent, are jurisdictional, which means that if they are not fulfilled, an appellate court may declare all proceedings in a case void. In re Brown (Carrie), 149 Mich App 529, 534-542 (1986) (because the jurisdictional requirement in MCL 712A.12, requiring the respondent be personally served, was not complied with, jurisdiction was never established and the Court of Appeals held that orders arising out of the proceedings were void). Cf. In re Andeson, 155 Mich App 615, 618-619 (1986) (proceedings were not void when the respondent-parent was properly served with a summons before the adjudicative hearing, the hearing was adjourned, and the respondent-parent was later mailed a notice of hearing but failed to appear).

“Once personal jurisdiction [is] established [by properly serving the respondent with the original summons and petition,] . . . petitioner’s preparation and filing of [an] amended petition[] d[oes] not invalidate [] personal jurisdiction that ha[s] already been obtained” even when the respondent is not served with the amended petition. In re Dearmon/Harverson-Dearmon, 303 Mich App 684, 693 (2014) (“[b]ecause [the] respondent was properly served with the initial petition and an accompanying summons,” personal jurisdiction was established[ and] it did not evaporate merely upon the filing of the amended petitions”).

A party’s presence at a hearing does not cure a jurisdictional error. In re Brown (Carrie), 149 Mich App at 541.

Defective service of process on another party to the proceedings does not render those proceedings void with respect to a person to whom service was required. In re Terry, 240 Mich App 14, 21 (2000).

1.​Manner of Service

The petitioner is “charged with providing [sic] that service of process is accomplished in accordance with the court rules.” In re Adair, 191 Mich App 710, 715 (1991). See also MCL 712A.13 (judge may designate peace officer or other suitable person to serve summons, notice, or court orders).

Where practicable, service of a summons should be made by personal service. MCL 712A.13. However, if the judge finds that personal service is impracticable, he or she may order service by registered mail or publication, or both.¹⁴ Id. See also MCR 3.920(B)(4), which states:

“(a) Except as provided in [MCR 3.920(B)(4)(b)], a summons required under [MCR 3.920(B)(2) (for child protective proceedings)] must be served by delivering the summons to the party personally.

(b) If the court finds, on the basis of testimony or a motion and affidavit, that personal service of the summons is impracticable or cannot be achieved, the court may by ex parte order direct that it be served in any manner reasonably calculated to give notice of the proceedings and an opportunity to be heard, including publication.

(c) If personal service of a summons is not required, the court may direct that it be served in a manner reasonably calculated to provide notice.”

Note: Violations of statutory notice provisions constitute jurisdictional defects, while violations of court rule requirements do not. In re Mayfield, 198 Mich App 226, 230-231 (1993). See also In re SZ, 262 Mich App 560 (2004), which discussed a conflict between MCR 3.920(B)(4)(b) (requires court to make its decision to order substitute service “on the basis of testimony or a motion and affidavit”) and MCL 712A.13 (allows court to order substitute service if it “is satisfied that it is impracticable” to personally serve the summons). In In re SZ, supra at 564-565, the respondent argued that the trial court improperly allowed service by publication when it failed to comply with the requirement in MCR 3.920(B)(4)(b) that the court’s finding that personal service is impracticable or cannot be achieved be based on “testimony” or “a motion and affidavit,” and, therefore, lacked jurisdiction over her. The Court of Appeals concluded that MCL 712A.13, not MCR 3.920, controls the determination of whether a court has established jurisdiction over a respondent:

“We believe that MCL 712A.13 reflects our Legislature’s policy considerations concerning the necessary requirements for obtaining jurisdiction over a parent or guardian of a juvenile. Because the issue of service is a jurisdictional one, the statutory provision governs. The plain language of the statute contains no specific requirements concerning what types of evidence a court must consider in determining whether substitute service is indicated, or the form in which the evidence must be received. By its silence, MCL 712A.13 permits a court to evaluate evidence other than testimony or a motion and affidavit when determining whether notice can be made by substituted service. We believe that the . . . court rule requirements . . . found in MCR 3.920(B)(4)(b) are restrictions affecting jurisdiction in matters that are usually time-sensitive and for which the Legislature’s policy is to seek prompt resolution for the sake of the juvenile involved and, as such, conflict with MCL 712A.13. Therefore, the statute prevails.” In re SZ, 262 Mich App at 568.

“While MCL 712A.13 allows for alternative methods of service of process, it still requires that the trial court first determine that personal service is impracticable.” In re Adair, 191 Mich App at 714 (trial court erred by ordering notice by publication before determining whether the Department of Health and Human Services (DHHS) made reasonable efforts to locate the respondent-mother for service by registered mail). “In a child protective proceeding, a parent of a child is entitled to personal service of the summons and notice of proceedings.” In re Lovitt, ___ Mich App ___, ___ (2024). In Lovitt, the trial court plainly erred by proceeding with a termination hearing in respondent’s absence where there was no evidence that respondent had been personally served with the summons and supplemental petition and no evidence that alternate service was requested or granted. Id. at ___. The Court noted that “it [was] difficult to conclude from the record how respondent was provided notice, if at all, of the . . . termination hearing.” Id. at ___. “Because respondent was not served in accordance with the requirements of MCL 712A.13 and the court rules, the trial court lacked jurisdiction to terminate her parental rights . . . .” Lovitt, ___ Mich App at ___. Motions for substituted service must show that personal service of process cannot reasonably be made, and that the substituted method of service is the best method available to provide notice. Krueger v Williams, 410 Mich 144, 167-168 (1981). A motion for substituted service should contain sufficient facts to allow the court to determine what specific efforts were made to serve process and why the substituted method should be used. Krueger, supra at 168-170.

2.​Time of Service

MCL 712A.13 provides that “[i]t shall be sufficient to confer jurisdiction if:

(1) personal service is effected at least 72 hours before the date of hearing;

(2) registered mail is mailed at least five days before the date of hearing if within the state and 14 days if outside the state;

(3) publication is made once in some newspaper printed and circulated in the county in which [the] court is located at least 1 week before the time fixed in the summons or notice for the hearing.”¹⁵ MCL 712A.13.

Failure to meet the requirements of MCL 712A.13 may constitute a jurisdictional defect rendering the proceedings void. In re Mayfield, 198 Mich App at 230-232.

MCR 3.920(B)(5) provides additional time requirements for service of a summons:

“(a) A summons shall be personally served at least:

(i) 14 days before hearing on a petition that sets to terminate parental rights or a permanency planning hearing,

(ii) 7 days before trial or a child protective dispositional review hearing, or

(iii) 3 days before any other hearing.

(b) If the summons is served by registered mail, it must be sent at least 7 days earlier than [MCR 3.920(B)(5)(a)] requires for personal service of a summons if the party to be served resides in Michigan, or 14 days earlier than required by [MCR 3.920(B)(5)(a)] if the party to be served resides outside of Michigan.

(c) If service is by publication, the published notice must appear in a newspaper in the county where the party resides, if known, and, if not, in the county where the action is pending. The published notice need not include the petition itself. The notice must be published

at least once 21 days before a hearing specified in [MCR 3.920(B)(5)(a)(i)],

14 days before trial or a hearing specified in [MCR 3.920(B)(5)(a)(ii)], or

7 days before any other hearing.”

C.​Subsequent Notices After Failure to Appear

“When persons whose whereabouts are unknown fail to appear in response to notice by publication or otherwise, the court need not give further notice by publication of subsequent hearings, except a hearing on the termination of parental rights.” MCR 3.921(E).

Note: If a person fails to appear without reasonable cause after being summoned to do so, he or she may be held in contempt of court and punished accordingly. MCL 712A.13.

5.2​Note of Heariicngs in Child Protective Proceedings

Generally, notice of a hearing must be given in writing or on the record at least seven days before the hearing. MCR 3.920(D)(1). However, written notice must be given at least 14 days before a permanency planning hearing or a hearing on a petition requesting termination of parental rights in child protective proceedings.¹⁶ MCL 712A.19a(6); MCL 712A.19b(2); MCR 3.920(D)(3).

Note: Written notice in a permanency planning hearing must also contain “a statement of the purposes of the hearing, including a notice that the hearing may result in further proceedings to terminate parental rights[.]” MCL 712A.19a(6).

“When a child is placed outside the home, notice of the preliminary hearing or an emergency removal hearing under MCR 3.974(C)(3)^[17] must be given to the parent of the child as soon as the hearing is scheduled.”¹⁸ MCR 3.920(D)(2)(b). Notice of the preliminary hearing “may be in person, in writing, on the record, or by telephone.” Id. 

“When a party fails to appear in response to a notice of hearing, the court may order the party’s appearance by summons or subpoena.”¹⁹ MCR 3.920(D)(4).

“An order directed to a parent or a person . . . is not effective and binding on the parent or other person unless opportunity for hearing is given by
. . . notice as provided in [MCL 712A.12 and MCL 712A.13] and until a copy of the order, bearing the seal of the court, is served on the parent or other person as provided in [MCL 712A.13].”²⁰ MCL 712A.18(4).

A respondent whose counsel had attended two previous hearings at which placement of the respondent’s younger child was disputed and who was aware that investigations into her fitness as a parent were continuing with regard to both her minor children, the older of whom was already in foster care, was not deprived of due process when her younger child was removed from her custody without formal notice or a removal hearing specifically held for that purpose. In re Williams, 333 Mich App 172, 179-180 (2020) (noting that “respondent was on notice that [the child’s] placement was subject to ongoing review and reconsideration at any time, including at the pretrial hearing”).

A.​Persons Entitled to Notice of Hearings

1.​Generally

In child protective proceedings, the court must ensure that the following persons are notified of each hearing:

“(a) the respondent,²¹

(b) the attorney for the respondent,

(c) the lawyer-guardian ad litem for the child,

(d) subject to [MCR 3.921(D)],^[22] the parents, guardian, or legal custodian, if any, other than the respondent,

(e) the petitioner,

(f) a party’s guardian ad litem appointed pursuant to these rules,

(g) the foster parents, preadoptive parents, and relative caregivers of a child in foster care under the responsibility of the state,

(h) in accordance with the notice provisions of MCR 3.905, if the court knows or has reason to know the child is an Indian child:

(i) the child’s tribe and, if the tribe is unknown, the Secretary of the Interior, and

(ii) the child’s parents or Indian custodian, and if unknown, the Secretary of the Interior, and^[23]

(i) any other person the court may direct to be notified.” MCR 3.921(B)(1).

2.​Dispositional Review Hearings and Permanency Planning Hearings

Before dispositional review hearings and permanency planning hearings, the court must ensure that the following persons receive written notification of each hearing:

“(a) the agency responsible for the care and supervision of the child,

(b) the person or institution having court-ordered custody of the child,

(c) the parents of the child, subject to [MCR 3.921(D)],^[24] and the attorney for the respondent parent, unless parental rights have been terminated,

(d) the guardian or legal custodian of the child, if any,

(e) the guardian ad litem for the child,

(f) the lawyer-guardian ad litem for the child,

(g) the attorneys for each party,

(h) the prosecuting attorney if the prosecuting attorney has appeared in the case,

(i) the child, if 11 years old or older,

(j) if the court knows or has reason to know the child is an Indian child, the child’s tribe,^[25]

(k) the foster parents, preadoptive parents, and relative caregivers of a child in foster care under the responsibility of the state,

(l) if the court knows or has reason to know the child is an Indian child and the parents, guardian, legal custodian, or tribe are unknown, to the Secretary of Interior, and

(m) any other person the court may direct to be notified.” MCR 3.921(B)(2). See also MCL 712A.19(5); MCL 712A.19a(6).

MCL 712A.19(5)(f) also requires notification in dispositional review hearings to a nonparent adult who is required to comply with a case service plan.

For children in permanent foster family agreements²⁶ or relative placements²⁷ intended to be permanent under MCL 712A.19(4), the notice provisions of MCL 712A.19(5) apply. MCL 712A.19(5).

3.​Hearings on Termination of Parental Rights

“Written notice of a hearing to determine if the parental rights to a child shall be terminated must be given to those appropriate persons or entities listed in [MCR 3.921](B)(2), except that if the court knows or has reason to know the child is an Indian child, notice shall be given in accordance with MCR 3.920(C)(1).” MCR 3.921(B)(3). See also MCL 712A.19b(2), which requires the court to ensure that the following persons receive written notification of a hearing on termination of parental rights:

“(a) The agency. The agency shall advise the child of the hearing if the child is 11 years of age or older.

(b) The child’s foster parent or custodian.

(c) The child’s parents.

(d) If the child has a guardian, the child’s guardian.

(e) If the child has a guardian ad litem, the child’s guardian ad litem.

(f) If tribal affiliation has been determined, the Indian tribe’s elected leader.^[28] 

(g) The child’s attorney and each party’s attorney.

(h) If the child is 11 years of age or older, the child.

(i) The prosecutor.” MCL 712A.19b(2).

4.​Post-termination Review Hearings

“The foster parents (if any) of a child and any preadoptive parents or relative providing care to the child must be provided with notice of and an opportunity to be heard at each hearing.” MCR 3.978(B).

5.​Juvenile Guardianships

In juvenile guardianship proceedings, the following persons are entitled to notice:

   “(1)    the child, if 11 years old or older;

(2)    the Department of Health and Human Services [DHHS];

(3)    the parents of the child, unless parental rights over the child have been terminated;

(4)    the juvenile guardian or proposed juvenile guardian;

(5)    any court that previously had jurisdiction over the child in a child protective proceeding, if different than the court that entered an order authorizing a juvenile guardianship;

(6)    the attorneys for any party;

(7)    the prosecuting attorney, if the prosecuting attorney has appeared in the case;

(8)    if the court knows or has reason to know the child is an Indian child, the child’s tribe, Indian custodian, or if the tribe is unknown, the Secretary of the Interior;^[29]

(9)    the Michigan Children’s Institute [MCI] superintendent; and

(10)    any other person the court may direct to be notified.” MCR 3.921(C).

B.​Special Notice Provisions for Physicians

If the child is placed outside the home and the DHHS is required to review the case with the child’s physician, “then in a judicial proceeding to determine if the child is to be returned to his or her home, the court must allow the child’s attending physician of record during a hospitalization or the child’s primary care physician to testify regarding the case service plan.”³⁰ MCL 712A.18f(7). The court must notify each physician of the time and place of the hearing. Id.

C.​Special Notice Provisions for Incarcerated Parties

If a party is incarcerated under the jurisdiction of the Michigan Department of Corrections, specific requirements must be met in order to provide proper notice to the party. MCR 2.004; In re BAD, 264 Mich App 66, 75-76 (2004).

Specifically, MCR 2.004(A) applies to:

“(1) domestic relations actions involving minor children, and

(2) other actions involving the custody, guardianship, neglect, or foster-care placement of minor children, or the termination of parental rights.”

1.​Petitioner’s Responsibility

The party seeking an order regarding a minor child must

“(1) contact the [D]epartment [of Corrections] to confirm the incarceration and the incarcerated party’s prison number and location;

(2) serve the incarcerated person with the petition or motion seeking an order regarding the minor child, and file proof with the court that the papers were served; and

(3) file with the court the petition or motion seeking an order regarding the minor child, stating that a party is incarcerated and providing the party’s prison number and location; the caption of the petition or motion shall state that a telephonic or video hearing is required by this rule.” MCR 2.004(B).

2.​Court’s Responsibility

The court must issue an order requesting the Department of Corrections to permit the incarcerated party to participate in a hearing or conference “by way of a noncollect and unmonitored telephone call or by videoconferencing technology[.]” MCR 2.004(C). The court’s order must include the date and time of the hearing or conference and the incarcerated party’s name and prison identification number, and must be served “at least 7 days before the hearing or conference by the court upon the parties and the warden or supervisor of the facility where the incarcerated party resides.” Id.

“The initial telephone call or videoconference shall be conducted in accordance with [MCR 2.004(E)]. If the prisoner indicates an interest in participating in subsequent proceedings following an initial telephone call or videoconference pursuant to [MCR 2.004(E)], the court shall issue an order in accordance with this subrule for each subsequent hearing or conference.” MCR 2.004(C).

“The purpose of the initial telephone call or videoconference with the incarcerated party, as described in [MCR 2.004(C)], is to determine[:]

(1) whether the incarcerated party has received adequate notice of the proceedings and has had an opportunity to respond and to participate,

(2) whether counsel is necessary in matters allowing for the appointment of counsel to assure that the incarcerated party’s access to the court is protected,

(3) whether the incarcerated party is capable of self-representation, if that is the party’s choice,

(4) how the incarcerated party can communicate with the court or the friend of the court during the pendency of the action, and whether the party needs special assistance for such communication, including participation by way of additional telephone calls or videoconferencing technology as permitted by the Michigan Court Rules, and

(5) the scheduling and nature of future proceedings, to the extent practicable, and the manner in which the incarcerated party may participate.” MCR 2.004(E).

3.​Documentation and Correspondence to Incarcerated Party

All court documents or correspondence mailed to an incarcerated party must include the incarcerated party’s name and prison number on the envelope. MCR 2.004(D).

4.​Denial of Relief

If the requirements of MCR 2.004 are not satisfied, the court may not grant the relief requested by the moving party. MCR 2.004(F). However, this provision does not apply “if the incarcerated party actually does participate in a telephone call or video conference or if the court determines that immediate action is necessary on a temporary basis to protect the minor child.” Id.

“[T]o comply with MCR 2.004, the moving party and the court must offer the [incarcerated party] ‘the opportunity to participate in’ each proceeding in a child protective action. In re Mason, 486 Mich 142, 154 (2010). “[P]articipation through ‘a telephone call’ [or video conference] during one proceeding will not suffice to allow the court to enter an order at another proceeding for which the [incarcerated party] was not offered the opportunity to participate.” In re Mason, supra at 154-155.

“[E]xcluding a[n incarcerated party from the opportunity to participate] for a prolonged period of the proceedings can[not] be considered harmless error.” In re DMK, 289 Mich App 246, 255 (2010).

5.​Sanctions

The court may impose sanctions if it finds that an attempt was made to prevent an incarcerated party from obtaining information on the case in order to deny the incarcerated party access to the courts. MCR 2.004(G).

6.​Parent’s Due Process Right to be Present at Hearing

If a respondent-parent is incarcerated, the court must balance the parent’s compelling interest in his or her parental rights, the incremental risk of an erroneous deprivation of that interest if the parent is not present at the hearing, and the government’s interest in avoiding the burden of securing the parent’s presence at the hearing, to determine whether due process requires the parent’s presence at a hearing to terminate parental rights. Mathews v Eldridge, 424 US 319, 335 (1976); In re Vasquez, 199 Mich App 44, 46-50 (1993) (due process did not require presence of parent in prison in Texas, where parent was well represented by counsel at the hearing); In re Render, 145 Mich App 344, 348-350 (1985) (due process required presence of parent incarcerated in county jail, where parent’s attorney had learned of parent’s incarceration the day of the trial).

D.​Notice Requirements Under the Safe Delivery of Newborns Law

The Safe Delivery of Newborns Law,³¹ MCL 712.1 et seq., regulates a parent’s surrender of a newborn child. The law permits a parent to leave a newborn with an emergency service provider without expressing an intent of returning for the newborn. MCL 712.1(2)(n). Once a child is taken into temporary protective custody under the Safe Delivery of Newborns Law, the child placing agency must, among other responsibilities, make a reasonable effort to identify, locate, and provide notice of the newborn’s surrender to the nonsurrendering parent (including “by publication in a newspaper of general circulation in the county where the newborn was surrendered” if the identity and address of the nonsurrendering parent are unknown). MCL 712.7(f).

5.3​Waiving Notice of Hearing or Service of Process

A.​Waiver of Defects by Appearance and Participation in Hearing

If a party appears and participates in a hearing without having been properly served, that party waives any “defects in service with respect to that hearing unless objections regarding the specific facts are placed on the record. If a party appears or participates without an attorney, the court shall advise the party that the appearance and participation waives notice defects and of the party’s right to seek an attorney.” MCR 3.920(H).

B.​Waiver of Notice of Hearing or Service of Process in Writing

A party may waive notice of hearing or service of process by submitting a waiver in writing.³² MCR 3.920(F). When a party waives service of a summons that is required by MCR 3.920(B), the party must be advised of:

(1) the nature of the hearing;

(2) the right to counsel;

(3) the right to trial by judge or jury (unless it is a termination hearing where there is no right to a jury); and

(4) the fact that the hearing could result in termination of parental rights if the summons is for a child protective proceeding. MCR 3.920(B)(3); MCR 3.920(F).

Where only a petition requesting temporary custody of a child has been filed, a respondent-parent’s written waiver of service of process and notice of hearing is not effective to waive the parent’s rights to service of a petition to terminate parental rights. In re Atkins, 237 Mich App 249, 251-252 (1999).

5.4​Subsequent Services

“After a party’s first appearance before the court, subsequent notice of proceedings and pleadings shall be served on that party or, if the party has an attorney, on the attorney for the party as provided in [MCR 3.920(D)], except that a summons must be served for trial or termination hearing as provided in [MCR 3.920(B)].” MCR 3.920(G).³³

Failure to personally serve a parent with a summons as required by MCL 712A.12 before termination of that parent’s parental rights is a jurisdictional defect that renders the proceedings void with regard to that parent. In re Atkins, 237 Mich App 249, 250-251 (1999); In re Gillespie, 197 Mich App 440, 442 (1992). See also In re Lovitt, ___ Mich App ___, ___ (2024). 

Where a dispositional order has been entered placing a child in the temporary custody of the court, the court may not proceed to a hearing on termination of parental rights without issuing and serving a fresh summons. MCL 712A.20; In re Atkins, 237 Mich App at 251.

5.5​Subpoenas

MCR 3.920(E) states that:

“(1) The attorney for a party or the court on its own motion may cause a subpoena to be served upon a person whose testimony or appearance is desired.

(2) It is not necessary to tender advance fees to the person served a subpoena in order to compel attendance.

(3) Except as otherwise stated in this subrule, service of a subpoena is governed by MCR 2.506.”

5.6​Proof of Service

A proof of service must identify the papers being served. MCR 3.920(I)(4). For papers being served on a foster parent, preadoptive parent, or relative caregiver, a proof of service must “be maintained in the confidential social file as identified in MCR 3.903(A)(3)(b)(vii).” MCR 3.920(I)(4).

If a party fails to file a proof of service, it will not affect the validity of the service. MCR 3.920(I)(5).

A.​Proof of Service For Summons

Proof of service of a summons must be made in accordance with MCR 2.104(A). MCR 3.920(I)(1).

MCR 2.104(A) specifies that proof of service may be made by any of the following:

“(1) written acknowledgment of the receipt of a summons and a copy of the complaint, dated and signed by the person to whom the service is directed or by a person authorized under these rules to receive the service of process;

(2) a certificate stating the facts of service, including the manner, time, date, and place of service, if service is made within the State of Michigan by

(a) a sheriff,

(b) a deputy sheriff or bailiff, if that officer holds office in the county in which the court issuing the process is held,

(c) an appointed court officer,

(d) an attorney for a party; or

(3) written statement of the facts of service, verified under MCR 1.109(D)(3). The statement shall include the manner, time, date, and place of service, and indicate the process server’s official capacity, if any.”

“The place of service must be described by giving the address where the service was made or, if the service was not made at a particular address, by another description of the location.” MCR 2.104(A).

B.​Proof of Service For Other Documents

Proof of service of other papers permitted or requiring service must be made in accordance with MCR 2.107(D). MCR 3.920(I)(2).

MCR 2.107(D) specifies that “[e]xcept as otherwise provided by MCR 2.104, [MCR] 2.105, or [MCR] 2.106, proof of service of documents required or permitted to be served must be by written acknowledgment of service, or a written statement by the individual who served the documents verified under MCR 1.109(D)(3). The proof of service may be included at the end of the document as filed. Proof of service must be filed promptly and at least at or before a hearing to which the document relates.”

C.​Proof of Service By Publication

Proof of service by publication must be made in accordance with MCR 2.106(G)(1) and MCR 2.106(G)(3), if the publication is accompanied by a mailing. MCR 3.920(I)(3).

MCR 2.106(G)(1) specifies that proof of service by publication may be proven as follows:

“(1) Publication must be proven by an affidavit of the publisher or the publisher’s agent

(a) stating facts establishing the qualification of the newspaper in which the order was published,

(b) setting out a copy of the published order, and

(c) stating the dates on which it was published.” MCR 2.106(G)(1).

MCR 2.106(G)(3) specifies that proof of service by publication accompanied by a mailing may be proven as follows:

“(3) Mailing must be proven by a verified statement. The person signing the verified statement must attach a copy of the order as mailed, and a return receipt.”

5.7​Judgments and Orders

“The form and signing of judgments are governed by MCR 2.602(A)(1) and [MCR 2.602(A)](2).” MCR 3.925(C).

MCR 2.602(A)(1)-(2) specifically states:

“(1) Except as provided in this rule and in MCR 2.603, all judgments and orders must be in writing, signed by the court, and dated with the date they are signed.

(2) The date of signing an order or judgment is the date of entry.”

“Judgments and orders may be served on a person by first-class mail to the person’s last known address, by e-mail under MCR 2.107(C)(4),^[34] or electronic service under MCR 1.109(G)(6)(a).” MCR 3.925(C).

5.8​Adjournments and Continuances in Child Protective Proceedings

In child protective proceedings, adjourning a trial or hearing should only be granted for good cause after the court takes the child’s best interests into consideration and where the adjournment is for as short of a period as possible.³⁵ MCR 3.923(G). In order for a court to find good cause, “‘a legally sufficient or substantial reason’ must first be shown.” In re Utrera, 281 Mich App 1, 10-12 (2008) (although the court erred by failing to find good cause or consider the child’s best interests to support its multiple adjournments, reversal was not required when the respondent-mother contributed to the adjournments on several occasions and failed to show how she was prejudiced by them).

The court should not adjourn a hearing or grant a continuance if it is solely upon stipulation of counsel or for a party’s convenience. MCL 712A.17(1). Rather, the adjournment must be for good cause with factual findings on the record and where one of the following applies:

“(a) The motion for the adjournment or continuance is made in writing not less than 14 days before the hearing.

(b) The court grants the adjournment or continuance upon its own motion after taking into consideration the child’s best interests. An adjournment or continuance granted under this subdivision shall not last more than 28 days unless the court states on the record the specific reasons why a longer adjournment or continuance is necessary.” MCL 712A.17(1).