Child Abandonment During a Sex Crime Case in Michigan

Child abandonment is a severe offense and can result in criminal and civil proceedings. There are two types of child abandonment. There is criminal abandonment of a child defined by MCL 750.135, and there is civil child abandonment that is used in child protective proceedings under MCL 712A.19a. This section outlines the differences between criminal child abandonment and civil child abandonment in Michigan.

Criminal Child Abandonment in Michigan

Child abandonment is charged by a prosecutor in a local circuit court. Under MCL 750.135, abandonment of a child is a felony and can result in a penalty of up to 10 years in prison. The courts have stated that the definition of child abandonment has remained relatively unchanged since its first interpretation by the Michigan Supreme Court in 1858. MCL 750.135 defines child abandonment as any mother or father of a child under the age of six years who exposes a child in any street, field, house, or other places, with the intent to injure or wholly abandon the child.

The primary elements of abandonment are that the child is under six years of age, and exposed. Exposure means leaving a child open or unprotected that could result in possible hazardous injury. Additionally, there must be an intent to “wholly abandon” the child. Exposing the child is considered the substantive act and the intent to abandon is a secondary factor that must be proven to complete the offense of child abandonment.

Civil Child Protective Proceedings for Abandonment by Child Protective Services

If Child Protective Services receives a complaint, initiates an investigation, and proves abuse, neglect, or abandonment of a child by a preponderance of the evidence, then it may file a petition for removal of a child with the Family Division of the Circuit Court where the child resides. Child protective proceedings are civil proceedings that do not include the possibility of jail time or probation. However, the proceedings can result in the removal of a child from their home or the termination of parental rights.

Abandonment is a form of neglect of a child. Child Protective Services is required to initiate an investigation of a family whenever a complaint of abuse or neglect is submitted. There are mandatory reporters under the Child Protection Law that are required to submit a complaint if they suspect child abuse or neglect. There are five types of neglect under MCL 712A.2(b)(1) and abandonment is one type of child neglect.

The Michigan Department of Health and Human Services encompasses Child Protective Services and defines abandonment as leaving a child with an agency, person or other entity such as a hospital, mental health facility, or with the Department of Health and Human Services without obtaining an agreement with that person or entity to assume responsibility for the child, or without cooperating to provide for the care and custody of the child.

Child Protective Services Petition and Termination of Parental Rights for Abandonment

If Child Protective Services files a petition alleging a form of abuse and neglect, including abandonment recognized by statute, then a preliminary hearing will be held to determine if there is probable cause that abuse or neglect, including abandonment, has occurred. The court will determine if probable cause exists. If the probable cause of abuse or neglect, including abandonment exists, then the court will authorize the petition to move forward to the adjudicative hearing. If the court does not authorize the petition, then the case will be dismissed, and the child will be returned home to the parents or guardian.

If the court does decide there is probable cause that abuse or neglect, including abandonment exists, then it will also decide on the temporary placement of the child pending an adjudicative hearing. An adjudicative hearing is essentially a trial that will determine if there is a preponderance of the evidence that abuse or neglect, including abandonment, took place. However, before the adjudicative hearing, the judge or referee must determine the temporary placement of the child at the preliminary hearing after the decision to authorize the petition has been made. The court may either release the child back into the care and custody of the parent or guardian pending the adjudicative hearing or temporarily place the child with a relative or in foster care.

Civil Hearing to Determine if the Child is Under the Jurisdiction of the Court

An adjudicative hearing is a mandatory hearing to determine whether a child comes under the jurisdiction of the court. An adjudicative hearing is similar to a trial, and the court will decide if there is a preponderance of the evidence that abuse or neglect, including abandonment, occurred. If the court finds a preponderance of the evidence of abandonment, then the child is said to come under the jurisdiction of the court. If a child comes under the jurisdiction of the court, then an initial dispositional hearing will be held. An initial dispositional hearing is similar to a sentencing hearing for a criminal offense, and determinations about the placement of the child and plans for the family will be made at an initial dispositional hearing. However, before a child comes under the jurisdiction of the court, the petitioner must prove by a preponderance of the evidence that abuse or neglect, such as abandonment, has taken place.

If the petitioner seeks to terminate parental rights, the child must first be brought under the jurisdiction of the court by proving abuse or neglect by a preponderance of the evidence. Next, the petitioner must prove by clear and convincing evidence that one of the statutorily defined circumstances listed under MCL 712.19b are present, and the court must find that termination of parental rights are in the best interest of the child. A determination for termination of parental rights may be made after the child comes under the jurisdiction of the court at either an initial dispositional hearing, a dispositional review hearing, or a permanency planning hearing.

An initial dispositional hearing may take place immediately following the verdict from the adjudicative hearing and before a dispositional review hearing or a permanency planning hearing. For termination of parental rights, a statutory factor listed under MCL 712.19b must be proven by clear and convincing evidence, and the court must find that termination is in the best interest of the child. The focus of this section is on abandonment or desertion of a child, and abandonment or desertion of a child is codified under MCL 712A.19b(3)(a).

If either of the following two circumstances exists, then a child is considered abandoned or deserted under MCL 712A.19b(3)(a). First, if the parent or guardian has deserted the child for 91 days or more and has not sought custody of the child during that period. For example, if a father moved out of state, and did not provide support or care for the child, and did not visit the child since he or she was removed from the mother's home, then he may be determined to have abandoned or deserted the child.

Second, if the child’s parent has deserted the child for 28 days or more and has not sought custody of the child during that period, and was unidentifiable. A parent is considered unidentifiable if after reasonable efforts the parent’s identity can still not be ascertained. For example, if a father did not visit a child after he or she had been removed from the mother’s house and the father could not be located, then the father may be determined to be unidentifiable and having abandoned or deserted the child.

Permanency Planning Hearing: Abandonment or Desertion of a Child

If parental rights have not been terminated, but the child remains in foster care, then the court must hold a permanency planning hearing within 12 months from the date the child was removed from the home. The purpose of the permanency planning hearing is to review the progress toward returning the child home. The same definition of child abandonment applies, but the court may also consider if the parent or guardian has maintained the parent-child relationship by continuing visitation and support of the child.

Grabel and Associates is the Premier Child Abandonment and Child Protective Services Law Firm in Michigan

Grabel & Associates has been representing clients facing criminal charges of abandonment and civil allegations of abuse, neglect, or abandonment for nearly 20 years, and understands that it takes expert legal representation to get a favorable outcome. Grabel & Associates is available 24 hours a day, seven days a week. Call 1-800-883-2138 today for your free consultation.