Temporary and Permanent Child Placement During Sex Crime Investigation in Michigan

In Michigan, the law mandates many professionals, organizations, and the friend of the court to report suspected abuse and neglect to Child Protective Services. Consequently, if a person is under investigation for a sex crime, even a crime not related to their child, they will most likely be investigated by Child Protective Services for abuse and neglect.

Child Protective Services investigations move swiftly, and the department can petition the court for an ex parte order for removal. Ex parte petitions are conducted without the presence of the parent, and can result in an order to immediately have the child removed from the home and placed in protective custody. Fortunately, the law requires a formal preliminary hearing within 24 hours of the judge or referee signing an ex parte removal and placement order. Therefore, even if temporary placement occurs, the child may be returned home quickly.

Grabel & Associates has been specializing in the legal defense of sex crimes and Child Protective Services issues for nearly 20 years, and we have the experience, understanding, and knowledge to help you obtain a favorable outcome in your sex crime and child custody cases.

Placement of the Child at Preliminary Hearings

Potential Outcomes:

• If the court dismisses the petition, then the child is automatically released back into the care and custody of the parents or guardian.
• If the court authorizes the petition, then the court may release the child back to the parent or parents if it is not contrary to the welfare of the child.
• The court is required to investigate child placement with a qualified relative of the child.
• The court can transfer custody of the child to the Department of Health and Human Services for placement with a relative of the child, temporary housing facility, or foster care.
• The court can order placement of the child with foster care at the initial dispositional hearing and the dispositional review hearings.
• The court can permanently place a child with a foster family or adoption agency at a permanency planning hearing.

Child Placement Pending a Preliminary Hearing

The judge or referee is required to make a decision about placement of the child at a preliminary hearing. There are a number of potential options the court can issue as part of the ex parte placement order. The court is required to investigate whether an immediate or extended family member is capable of taking the child until the preliminary hearing. However, placing a child with a relative of the parents is contingent upon the relative passing a criminal background check and obtaining a child abuse and neglect registry clearance.

The Department of Health and Human Services is the child placement agency in Michigan, and all placements of children into protective custody and foster care are arranged by the department. If the child placement agency places a child in protective custody of a child’s relative, then the law requires both the criminal background check and central registry clearance to be completed within seven days of placement with a child’s relative. Therefore, it is possible for the placement agency to place the child in protective custody of one of the child’s immediate or extended family members without violating the investigation and background requirements. After the criminal background check and central registry clearance is obtained, the Department of Health and Human Services will also immediately perform a needs assessment and risk assessment of the relative’s household. If protective custody is granted to a child’s relative, then that person or persons is known as a “noncustodial parent.”

A noncustodial parent is either required to become a licensed foster care provider or waive licensure. The noncustodial parent is permitted to waive licensure when the Department of Health and Human Services has determined that it is in the best interest of the child to be placed with an unlicensed relative. The child can also be placed in a temporary emergency placement facility, foster care, shelter home, hospital, or a private treatment agency until the preliminary hearing.

Release of Child to the Parents

The important thing to remember is that if the judge or referee dismisses the petition, then the child will automatically be released back into the care and custody of his or her parents or guardian. If the judge or referee authorizes the petition, then the petitioner may formally file their claim. However, authorization of the petition does not automatically mean that the child will not be released to the parents or guardian.

At a preliminary hearing there are two major decisions. First, whether to authorize the petition. Second, where should the court place the child until the adjudication of the abuse and neglect trial. Therefore, the judge or referee could authorize the petition for the claim to move forward to trial, but still release the child to the parents.

If the court authorizes a petition, then there are certain statutory conditions that must be met under MCL 712A.13a(5) before a child can be released to a parent or guardian. If a petition contains allegations that the respondent abused the child, then the court cannot release the child back to the parents unless “it finds that the conditions of custody are adequate to safeguard the child from the risk of harm to the child’s life, physical health, or mental well-being.” Further, if the court determines that releasing the child to the parents or guardian is contrary to the welfare of the child, then the court will not release the child to the parents or guardian.

According to MCR 3.903(C)(4), contrary to a child’s welfare is defined as a situation where the child’s life, physical health, or mental well-being is unreasonably placed at risk. The judge or referee is required to make a judicial finding on the record if release to the parents would be contrary to the child’s welfare. Findings include specific conditions that make the home an unsafe place for the child requiring removal.

Title IV-E federal funding regulations requires the court to make a judicial finding that it is contrary to a child’s welfare to remain in the home. Title IV-E is a federal program that provides funding for foster care maintenance payments. 45 CFR 1356.21(c)-(d) requires the court to explicitly document the judicial determination that remaining in the home would be contrary to the child’s welfare at the first related judicial hearing. If the court does not explicitly document a finding of being contrary to a child’s welfare, then the child will not be eligible for Title IV-E funding for foster care maintenance payments.

Placement with Relatives

The court is required to investigate potential immediate or extended family members of the child. However, the relatives still pass criminal background checks and obtain central registry clearance. Therefore, if the court does not release the child to the parents or guardian, then the court will transfer custody of the child to the child placing agency. In Michigan, the child placing agency is the Michigan Department of Health and Human Services, and the child placing agency is responsible for overseeing and administering the placement of children into temporary housing and foster care.

According to MCL 722.954a(5), the child placing agency must give special consideration and preference to the child’s relatives who are willing and fit to care for the child and can meet the child’s developmental, emotional, and physical needs. However, under MCL 722.954a, the preference for placement with relatives only applies to the initial placement immediately following removal. Consequently, the requirement to give preference to placing children with relatives does not apply for any subsequent placements after the initial placement. Thankfully, according to the Michigan Health and Human Services Placement Handbook, the department strives to make the first placement, the best placement which includes being as close to home as possible.

Placement with Child Supervising Agency – Michigan Department of Health and Human Services

A court can order placement of a child with the child supervising agency during a preliminary hearing. The child supervising agency is the Michigan Department of Health and Human Services, and the department supervises placement of children into temporary housing and foster care. “Placement” is defined in MCR 3.903(C)(10) as a court approved transfer of physical custody of a child to foster care, a shelter home, a hospital or a private treatment agency. If the court does not release the child to the parents or guardian, then there are five criteria that must be met to place the child in foster care:

• Custody of the child with the parent or guardian presents a substantial risk of harm to the child’s life, physical health, or mental well-being
• There are no other community services available or other alternatives except removal of the child to adequately safeguard the child from substantial risk of harm to the child’s life, physical health, or mental well-being
• Continuing the child’s residence in the home is contrary to the child’s welfare
• Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child
• Conditions of child custody away from the parent or guardian are adequate to safeguard the child’s health and welfare

After the preliminary hearing the court will decide whether to release the child back to the parents or guardian. If the court does not release the child to the parents, then the court will examine the evidence to determine if the five criteria for foster care placement are met. If the five conditions are met then the child may be placed with the child supervising agency to be placed into foster care.

Child Supervising Agency Initial Service Plans

If the court orders transfer of custody to the child supervising agency for placement, then the child supervising agency assumes immediate responsibility for the child. The first step towards determining the initial placement of a child is creation of the initial service plan. The child supervising agency must prepare an initial service plan within 30 days after the department receives the custody. Participation by the parents or guardian in the initial service plan is voluntary.

There is also a 30 day requirement for the child supervising agency to identify, locate, and consult with the child’s relatives to determine if a relative might be the appropriate place for the child. The child supervising agency must make a placement decision within 90 days of removal of the child. Written notification of the placement decision must also be delivered to the parents or guardian within 90 days of the removal.

The initial service plan contains information about the background of the child and family, the expected length of stay in foster care, and the specific goals and projected time frames for meeting the goals. The parent or guardian has a right to have the court review the initial service plan, and the court has the authority and jurisdiction to modify the plan for the best interest of the child. To utilize the right to judicial review, the parent or guardian must make a motion. Therefore, it may be worth discussing with your attorney to see if submission of a motion for judicial review of the initial service plan may be of benefit to you.

After the preliminary hearing if the court transfers custody to the child supervising agency for placement, then the court will order the agency to identify, locate, notify, and consult with a child’s relatives to determine if placement with an immediate or extended family member is in the best interest of the child.

Under MCL 722.954a(2), the agency is required to locate, identify, and notify the child’s relatives to determine if placement with a relative would meet the child’s developmental, emotional, and physical needs. However, the law is very clear that the requirement to seek out and give preference to family relatives is only effective for the initial placement of the child immediately after removal. Consequently, for subsequent placements the child’s relatives will not be given legal preference.

Placement Principles – The Department of Health and Human Services

Placement of a child and multiple different placements impact the daily functioning of a child in foster care. According to the Department of Health and Human Services Handbook, to support the safety, permanency, and well-being of the child, all placement decisions must take into consideration the following three principles:

• First, strive for the first placement to be the best placement, which includes placing the child in his or her community or as close to home as possible.
• Second, minimize the trauma experienced by the child and family during the placement process.
• Third, place the child in the most appropriate and family-like setting that will meet his or her needs.

Additionally, the overarching principle is to act in the best interest of the child.

Temporary Placement with Foster Care

The court can also order the child into temporary foster care if the petition is authorized and the following five conditions are met:

• Custody of the child with the parent(s) or guardian presents a substantial risk of harm to the child’s life, physical health, or mental well-being
• There are no other community services available or other alternatives except removal of the child to adequately safeguard the child from substantial risk of harm to the child’s life, physical health, or mental well-being
• Continuing the child’s residence in the home is contrary to the child’s welfare
• Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child
• Conditions of child custody away from the parent or guardian are adequate to safeguard the child’s health and welfare

If all five of the conditions are met, then the court may order temporary placement of the child into foster care pending adjudication.

Temporary Placement Review Hearing

MCR 3.972(A) requires that if a child has been removed from the home a review hearing must be held within 182 days even if the adjudication has not been completed before the end of the 182 days period.

Initial Dispositional Hearing, Dispositional Review, and Foster Care

If the parent is found guilty of being an unfit parent at the child protective custody adjudication hearing, then the child will be placed under the jurisdiction of the court. The court will decide placement of the child at the initial disposition hearing following the adjudication. If the court decides to terminate jurisdiction over the child, then the petition will be dismissed and the child returned home. If the child is placed in foster care, then a review of the appropriateness of the placement and a decision whether to return the child to their home will be made at every subsequent disposition review hearing. The court evaluates the parent or guardian’s compliance with judicial orders and the case service plan in determining whether to continue foster care or return the child home.

The initial disposition hearing must take place within 28 days of the adjudication on the merits, but can occur immediately after the verdict. Dispositional review hearings are scheduled not more than 182 days after the child was removed from their home, and every 91 days after that for the first year. After the first year of foster care, the dispositional review hearings will be held every 182 days. However, there is an opportunity to have the dispositional review hearings scheduled sooner at the court’s discretion. The court must decide at every review hearing whether to return the child home and whether to schedule the next dispositional review hearing earlier. The court will take into consideration the willingness and motivation of the parent or guardian to make the changes necessary to provide a suitable home environment for the child, and the reasonable likelihood that the child will be ready to return home earlier than the next scheduled dispositional review hearing.

Permanency Planning Hearing

If parental rights have not been terminated, but the child remains in foster care, then the court must commence a permanency planning hearing within 12 months from the date the child was removed from his or her home. The purpose of a permanency planning hearing is to review the progress made toward returning the child home, and to demonstrate why the child should not be made a permanent ward of the court.

The court is required to determine whether and when the following steps at a permanency planning hearing should take place:

• Review the permanency plan for a child in foster care and determine whether and when
• the child should return home
• When the petition to terminate parental rights should be filed
• The child may be placed in a legal guardianship
• The child may be permanently placed with a fit and willing relative
• The child may be placed in another permanent living arrangement, but only in cases where the agency presents a compelling reason as to why one of the first four options are not followed

The hearings may seem peculiar because they simultaneously plan to return the child home and to terminate parental rights, but it is a contingency plan and is used to motivate the parent or guardian to comply with the dispositional orders and the case service plan.

As long as a person still has their parental rights, there is always another opportunity to win their children back. Grabel & Associates has been helping restore and reunite families for nearly 20 years and it does not matter if you are being investigated by Child Protective Services, have a preliminary hearing scheduled, or a permanency planning hearing, Grabel & Associates can help you obtain a favorable result.

Grabel & Associates Approach

Grabel & Associates understands how difficult losing custody of a child can be, even if it is only temporary, but that is why we work so hard with families, Child Protective Services, the prosecutor, and the courts to help see families restored and reunited.

Grabel & Associates will meticulously defend you and your family’s rights. If you are being investigated by Child Protective Services our objective is to prevent a petition from being filed to avoid court proceedings and removal of your child from home. If Child Protective Services has already filed a petition, then our focus shifts to prevent the court from authorizing a petition at the preliminary hearing, and consequently, the case will be dismissed. If the petition has already been authorized, then our primary objective becomes preparing to win at trial.

We are available 24 hours a day, seven days a week to begin the process of formulating your individualized, aggressive, and comprehensive, legal defense strategy to help you obtain a favorable outcome and reunite and restore your family. Contact us online or call us at 1-800-883-2138 to schedule your free consultation.