Appendix C (MRE & SOP Table)

Appendix C: Table Summarizing Application of the Rules of Evidence and Standards of Proof in Child Protective 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).

For most hearings, the applicability of the Michigan Rules of Evidence and the required standard of proof is explained in the following table.^¹

Stage of Proceeding	Application of Rules of Evidence	Standard of Proof	Authorities and Cross-References
Order to Take Child Into Protective Custody	The rules of evidence do not apply.	Following “presentment of a petition or affidavit of facts to the court, the court has reasonable cause to believe that all of the following conditions exist, together with specific findings of fact: (a) The child is at substantial risk of harm or is in surroundings that present an imminent risk of harm and the child’s immediate removal from those surroundings is necessary to protect the child’s health and safety. If the child is an Indian child who resides or is domiciled on a reservation, but is temporarily located off the reservation, the child is subject to the exclusive jurisdiction of the tribal court. However, the state court may enter an order for protective custody of that child when it is necessary to prevent imminent physical damage or harm to the child. (b) The circumstances warrant issuing an order pending a hearing in accordance with: (i) MCR 3.965 [(preliminary hearing)] for a child who is not yet under the jurisdiction of the court, or (ii) MCR 3.974(C) [(emergency removal hearing)] for a child who is already under the jurisdiction of the court under MCR 3.971 or [MCR] 3.972. (c) Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child. (d) No remedy other than protective custody is reasonably available to protect the child. (e) Continuing to reside in the home is contrary to the child’s welfare.”	MCR 3.963(B)(1). See also MCL 712A.14b(1)(a)-(e). See Section 3.1(A).
Emergency Removal	The rules of evidence do not apply.	Officer has “reasonable grounds to believe that a child is at substantial risk of harm or is in surroundings that present an imminent risk of harm and the child’s immediate removal from those surroundings is necessary to protect the child’s health and safety.”	MCL 712A.14a(1); MCR 3.963(A)(1). See Section 3.1(B).
Emergency Removal of Indian Child	The rules of evidence do not apply.	If the Indian child resides or is domiciled on a reservation but is temporarily off the reservation, reasonable grounds to believe that the Indian child must be removed to prevent imminent physical damage or harm to the Indian child. See the Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, C.1 (2016), which extends emergency proceedings to non-reservation-resident Indian children. See Section 19.12(A).	25 USC 1922; MCL 712B.7(2); MCR 3.963(A)(1); MCR 3.974(C)(1); 25 CFR 23.113. See Section 15.8.
Preliminary Inquiries	The rules of evidence do not apply.	Probable cause that one or more allegations in the petition are true. Probable cause may be established with such information and in such manner as the court deems sufficient.	MCL 712A.13a(2); MCR 3.962(B)(3). See Section 7.5(B).
Hearings to Determine Whether to Order Alleged Abuser Out of Child’s Home	The rules of evidence do not apply.	Probable cause to believe that the person ordered to leave the home committed the alleged abuse, and that person’s presence in the home presents a substantial risk of harm to the child’s life, physical health, or mental well-being.	MCL 712A.13a(4). See Section 7.6(C).
Preliminary Hearings	The rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. Findings regarding placement of a child may be on the basis of hearsay evidence that possesses adequate indicia of trustworthiness.	Probable cause that one or more allegations in the petition are true and fall within MCL 712A.2(b). “The court may order placement of the child into foster care if the court finds all of the following: (a) Custody of the child with the parent presents a substantial risk of harm to the child’s life, physical health, or mental well-being. (b) No provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from risk as described in subrule (a). (c) Continuing the child’s residence in the home is contrary to the child’s welfare. (d) Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child. (e) Conditions of child custody away from the parent are adequate to safeguard the child’s health and welfare.” Probable cause that leaving the child in his or her home is contrary to the child’s welfare. Reasonable efforts to prevent the removal of the child have been made or are not required.	MCL 712A.13a(2); MCR 3.965(B)(12). See Section 7.6(B). MCL 712A.13a(9); MCR 3.965(C)(2). See Section 8.1(B). MCR 3.965(C)(3). See Section 8.3. MCR 3.965(C)(4). See Section 8.4.
Review of Child’s Placement	The rules of evidence do not apply.	Best interests of the child.	MCR 3.966. See Section 8.12.
Removal Hearing—Indian Child	The rules of evidence do not apply.	Clear and convincing evidence that active efforts designed to prevent breakup ^1.\t of Indian family have been made and were unsuccessful, and continued custody by Indian parent or custodian is likely to result in serious emotional or physical damage to child. Evidence must include testimony by at least one qualified expert witness with knowledge of the child rearing practices of the Indian child’s tribe stating that the continued custody of the Indian child with the parent or Indian custodian is likely to result in serious physical or emotional damage to the Indian child	25 USC 1912(d)-(e); MCL 712B.15(2); MCR 3.967(D); 25 CFR 23.120(a); 25 CFR 23.121(a). See Section 19.12(B).
Hearing to Identify Father	The rules of evidence do not apply.	Probable cause that an identified person is the child’s legal father. Paternity must be established by a preponderance of the evidence.	MCR 3.921(D). See Section 6.11.
Trials	Except as specifically provided in the court rules, the rules of evidence for civil proceedings apply.	Preponderance of the evidence, even where the initial petition contains a request for termination of parental rights.	MCR 3.972(C)(1). See Section 12.5.
Initial Disposition Hearings (not terminating parental rights)	The rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. All relevant and material evidence may be received and relied on to the extent of its probative value.	Appropriate for welfare of child and society.	MCL 712A.18(1); MCR 3.973(E). See Section 13.4.
Review of Out-of-Home Placement Following Initial Disposition	The rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. All relevant and material evidence may be received and relied on to the extent of its probative value.	Appropriate for welfare of child and society.	MCL 712A.18(1); MCR 3.973(E); MCR 3.974(D)(2). See Section 15.7.
Review of Emergency Removal of Child Following Initial Disposition	The rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. All relevant and material evidence may be received and relied on to the extent of its probative value.	Appropriate for welfare of child and society.	MCL 712A.18(1); MCR 3.973(E); MCR 3.974(D)(2). See Section 15.8.
Dispositional Review Hearings for Child in Foster Care	The rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. All relevant and material evidence may be received and relied on to the extent of its probative value.	Appropriate for welfare of child and society.	MCL 712A.18(1); MCL 712A.19(12); MCR 3.973(E); MCR 3.975(E). See Section 15.4.
Hearings on Supplemental Petitions Alleging Additional Abuse or Neglect	If termination of parental rights is requested, see Hearings to Terminate Parental Rights below. If termination of parental rights is not requested, the rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. All relevant and material evidence may be received and relied on to the extent of its probative value.	See Hearings to Terminate Parental Rights below. Appropriate for welfare of child and society.	MCR 3.973(J)(1); MCR 3.977. See Section 13.13. MCL 712A.18(1); MCR 3.973(E); MCR 3.973(J)(2); MCR 3.974; MCR 3.975. See Section 13.13.
Permanency Planning Hearings	The rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. All relevant and material evidence may be received and relied on to the extent of its probative value.	Returning child to home would cause substantial risk of harm to life, physical health, or mental well-being of child. Keeping child in out-of-state care must be appropriate and in child’s best interests. Initiating proceedings to terminate parental rights is not in best interest of child.	MCL 712A.19a(14); MCR 3.976(D)(2); MCR 3.976(E)(1); MCR 3.976(E)(2); MCR 3.976(E)(3). See Section 16.1; Section 16.6.
Hearings to Terminate Parental Rights at Initial Disposition	1. Trial: except as specifically provided in the court rules, the rules of evidence for civil proceedings apply. 2. Factfinding phase of termination hearing: the rules of evidence apply, other than those with respect to privileges, unless abrogated by MCL 722.631. 3. Best interests phase of termination hearing: the rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. All relevant and material evidence may be received and relied on to the extent of its probative value.	1. Preponderance of the evidence. 2. Clear and convincing evidence from trial or plea proceedings or that is introduced at initial disposition that one or more allegations in the petition are true and establish grounds for termination under MCL 712A.19b(3)(a)-(b), MCL 712A.19b(3)(d)-(m). 3. Termination of parental rights is in the child’s best interests.	MCL 712A.19b(4)-(5); MCR 3.977(E). See Section 17.3.
Hearings to Terminate Parental Rights Based on Different Circumstances	1. Factfinding phase of termination hearing: the rules of evidence apply, other than those with respect to privileges, unless abrogated by MCL 722.631. 2. Best interests phase of termination hearing: the rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. All relevant and material evidence may be received and relied on to the extent of its probative value.	1. Clear and convincing evidence that one or more allegations in the supplemental petition are true and establish grounds for termination under MCL 712A.19b(3)(a)-(b), MCL 712A.19b(3)(c)(ii), MCL 712A.19b(3)(d)-(g), or MCL 712A.19b(3)(i)-(m). 2. Termination of parental rights is in the child’s best interests.	MCR 3.977(F)(1). See Section 17.4.
Hearings to Terminate Parental Rights: Other Cases	The rules of evidence do not apply, other than those with respect to privileges, unless abrogated by MCL 722.631. All relevant and material evidence may be received and relied on to the extent of its probative value.	Clear and convincing evidence admitted under MCR 3.977(G)(2) that one or more allegations in the petition are true and come within MCL 712A.19b(3), and that termination of parental rights is in the child’s best interests.	MCL 712A.19b(1); MCR 3.977(H). See Section 17.5.
Hearings to Terminate Parental Rights to Indian Child* *To terminate parental rights of an Indian child, the ICWA and the MIFPA requirements, and the statutory grounds for termination under state law must be met.	State law requirements: See Hearings to Terminate Parental Rights above. ICWA and MIFPA requirements: See above.	See Hearings to Terminate Parental Rights above. Beyond a reasonable doubt, including testimony of at least one qualified expert witness, that continued custody with the parent or Indian custodian will likely result in serious emotional or physical damage to the Indian child.	MCR 3.977(G); In re Elliott, 218 Mich App 196, 209-210 (1996). See Section 17.10; Section 19.12(D). 25 USC 1912(f); MCL 712B.15(4); MCR 3.977(G); 25 CFR 23.121(b). See Section 17.10; Section 19.12(D).
Post-termination Review Hearings	The rules of evidence do not apply.	Reasonable efforts to establish permanent placement. Court may enter orders it considers necessary in the child’s best interests, including appointment of a juvenile guardian pursuant to MCL 712A.19c and MCR 3.979.	MCR 3.978(C). See Section 18.2.

^1.\t“[25 USC 1912(d)] applies only in cases where an Indian family’s ‘breakup’ would be precipitated by the termination of the parent’s rights. The term ‘breakup’ refers in this context to ‘[t]he discontinuance of a relationship,’ or ‘an ending as an effective entity[.]’” Adoptive Couple v Baby Girl, 570 US 637, __ (2013) (where a biological Indian-parent abandons his or her child before the child’s birth and never exercises legal or physical custody over the child, 25 USC 1912(d) is inapplicable because “there is no ‘relationship’ that would be ‘discontinu[ed]’–and no ‘effective entity’ that would be ‘end[ed]’–by the termination of the Indian parent’s rights[, and i]n such a situation, the ‘breakup of the Indian family’ has long since occurred”) (citations omitted). See Section 19.12(D) for a detailed discussion of involuntary termination of a parent’s parental rights.