15.8Emergency Removal of a Child Placed at Home

“If a child for whom the court has authorized an original petition remains at home or is returned home following a hearing pursuant to the rules in this subchapter, the court may order the child to be taken into protective custody pending an emergency removal hearing pursuant to the conditions listed in MCR 3.963(B)(1)[1] and upon receipt, electronically or otherwise, of a petition or affidavit of fact. If the child is an Indian child and the child resides or is domiciled within a reservation, but is temporarily located off the reservation, the court may order the child to be taken into protective custody only when necessary to prevent imminent physical damage or harm to the child.” MCR 3.974(C)(1). 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.2 See also 25 USC 1922, MCL 712B.7(2), and 25 CFR 23.113, which provide the court with limited emergency jurisdiction under the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA), where a reservation-resident Indian child is temporarily off the reservation and the state has removed the Indian child in an emergency situation to prevent imminent physical damage or harm to the Indian child.

“If the court orders the child to be taken into protective custody under MCR 3.963,[3] the court must conduct an emergency removal hearing no later than 24 hours after the child has been taken into custody, excluding Sundays and holidays as defined in MCR 8.110(D)(2).” MCR 3.974(C)(3). “If the child is an Indian child, the court must also conduct a removal hearing in accordance with MCR 3.967[4] in order for the child to remain removed from a parent or Indian custodian.”MCR 3.974(C)(3).

“If a child for whom a petition has been authorized under MCR 3.962 or MCR 3.965[5] is not yet under the jurisdiction of the court, the emergency removal hearing shall be conducted in the manner provided by MCR 3.965.” MCR 3.974(C)(3)(a).

“If a child is under the jurisdiction of the court, unless the child is returned to the parent pending disposition or dispositional review, the court shall comply with the placement provisions in MCR 3.965(C) and must make a written determination that the criteria for placement listed in MCR 3.965(C)(2) are satisfied.[6] The parent, guardian, or legal custodian from whom the child was removed must be given an opportunity to state why the child should not be removed from, or should be returned to, the custody of the parent, guardian, or legal custodian.” MCR 3.974(C)(3)(b).

“If the court orders removal of the child from a parent’s care or custody, the court shall advise the parent, guardian, or legal custodian of the right to appeal that action.” MCR 3.965(B)(15).

In an effort to provide trial courts with a quick practical guide through the process of emergency removal hearings, the State Court Administrative Office (SCAO) developed the Toolkit for Judges and Attorneys:Emergency Removal Hearing (MCR 3.974(C)7/MCL 712A.13a).

A.Notice of Emergency Removal Hearing

“The court shall ensure that the parties are given notice of the emergency removal hearing as provided in MCR 3.920 and MCR 3.921.”8MCR 3.974(C)(2).

B.Postadjudication Hearing Following Emergency Removal of Child From Home

“If the child is in placement under . . . [MCR 3.974(C)(3)(b) (postadjudication hearing following emergency removal of child from home)], the court shall proceed as follows:

“(1) If the court has not held a dispositional hearing under MCR 3.973,[9] the court shall conduct the dispositional hearing within 28 days after the child is placed by the court, except for good cause shown.

(2) If the court has already held a dispositional hearing under MCR 3.973, a dispositional review hearing must commence no later than 14 days after the child is placed by the court, except for good cause shown. The dispositional review hearing may be combined with the removal hearing for an Indian child prescribed by MCR 3.967.[10] The dispositional review hearing must be conducted in accordance with the procedures and rules of evidence applicable to a dispositional hearing.[11]

(3) The court shall advise the parent, guardian, or legal custodian of the right to appeal the order removing the child from a parent’s care or custody.” MCR 3.974(D).

At the postadjudication hearing held under MCR 3.974(D), “[t]he respondent parent, guardian, or legal custodian from whom the child is removed must receive a written statement of the reasons for removal and be advised of the following rights . . . :

(i) to be represented by an attorney at the hearing;

(ii) to contest the continuing placement at the hearing within 14 days; and

(iii) to use compulsory process to obtain witnesses for the hearing.” MCR 3.974(C)(3)(b).

1    For the list of conditions set out in MCR 3.963(B)(1), see Section 3.1(A)(1).

2    For additional information on emergency proceedings involving an Indian child, see Section 19.12(A).

3    For additional information on taking custody of a child with a court order under MCR 3.963, see Section 3.1(A).

4    See Section 19.12 for a detailed discussion of removal hearings for Indian children under MCR 3.967.

5    See Section 7.5(B) for petition authorization under MCR 3.962 and Section 7.6(B) for petition authorization under MCR 3.965.

6    See Section 8.1(B) for a detailed discussion of requirements on placing a child outside the home under MCR 3.965(C)(2).

7    Formerly MCR 3.974(B).

8    See Chapter 5 for notice requirements under MCR 3.920 and MCR 3.921.

9    For a discussion on the dispositional phase of child protective proceedings, see Chapter 13.

10    See Section 19.12 for a detailed discussion of removal hearings for Indian children under MCR 3.967.

11    See Section 13.4 for a discussion on rules of evidence applicable in dispositional hearings.