“If an officer has taken a child into protective custody without court order under [MCR 3.963(A)], or if the [DHHS] is requesting the court grant it protective custody and placement authority, the [DHHS] shall present to the court a petition or affidavit of facts and request a written ex parte placement order.” MCR 3.963(B)(4).
“If a judge finds all the factors in [MCR 3.963(B)(1)(a)-(e)] are present, the judge may issue a placement order; if a referee finds all the factors in [MCR 3.963(B)(1)(a)-(e)] are present, the referee may issue an interim placement order pending a preliminary hearing.[1] The written order shall contain specific findings of fact. It shall be communicated, electronically or otherwise, to the [DHHS].” MCR 3.963(B)(4). For the list of factors set out in MCR 3.963(B)(1)(a)-(e), see Section 3.1(A)(1).
B.Before Placing a Child With Relatives Pending Preliminary Hearing
When authorizing a child’s placement, “[t]he court shall inquire [of the person requesting placement] whether a member of the child’s immediate or extended family is available to take custody of the child pending a preliminary hearing, or an emergency removal hearing if the court already has jurisdiction over the child under MCR 3.971 or MCR 3.972[.]” MCR 3.963(B)(3). The court must also inquire whether a central registry clearance has been obtained, and whether a criminal history check has been initiated. Id. See Section 2.5 for information on the DHHS central registry, and Section 2.4(F) for information on the Children’s Protective Services (CPS) LEIN checks.
Note: In all cases, when a child must be removed from his or her home, the DHHS seeks to place the child with a noncustodial parent or a relative caregiver. See the DHHS’s Children’s Protective Services Manual (PSM), Removal and Placement of Children PSM 715-2, p 7.2 In addition to the required central registry and criminal background clearances, the DHHS will immediately conduct risk and needs assessments of a noncustodial parent’s household. Removal and Placement of Children PSM 715-2, supra at p 7. To maintain placement of a child initially placed in their homes, relative caregivers must agree to be licensed as foster parents or waive licensure in writing. DHHS’s Children’s Foster Care Manual (FOM), Placement Selection and Standards FOM 722-03, p 10.3 The DHHS will allow a relative to waive licensure when it is determined that it is in a child’s best interest to be placed or remain with an unlicensed relative and exceptional circumstances exist.4 Placement Selection and Standards FOM 722-03, supra at p 15.
C.Temporary Placement of a Child Pending Preliminary Hearing
Once a child is taken into protective custody, with or without a court order, the officer or other person who took the child into custody must “immediately bring the child to the court for [a] preliminary hearing, or immediately contact the court for instructions regarding placement [of the child] pending the hearing[.]” MCR 3.963(C)(3). See Chapter 8 for a detailed discussion of placements.
Note: MCR 3.903(C)(10) defines placement as a “court-approved transfer of physical custody of a child to foster care, a shelter home, a hospital, or a private treatment agency.” However, MCL 712A.15(4) prevents a child taken into protective custody from being placed in a secure facility5 or in a cell or other part of a secure facility designed to incarcerate adults.6 See also Dwayne B v Granholm, settlement agreement of the United States District Court for the Eastern District of Michigan, filed July 3, 2008 (Docket No. 2:06-cv-13548), which prohibits the DHHS from placing a child taken into protective custody in a jail, correctional facility, or detention facility.7
For a child in protective custody following an emergency removal under MCL 712A.14a, MCL 712A.14a(2) requires “the officer[8] or the [DHHS] [to] immediately contact the designated judge or referee as provided in [MCL 712A.14a(3)], to seek a court order for placement of the child pending a preliminary hearing.” MCL 712A.14a(2). MCL 712A.14a(3) requires a “judge or referee [to] be designated as the contact when a placement order is sought for a child in protective custody under [MCL 712A.14a].”
“[I]f the court is not open, [the] DHHS must contact the person designated under [MCR 3.963(D)9] for permission to place the child pending the hearing.” MCR 3.963(C)(4).
“When the [DHHS] seeks a placement order for a child in protective custody under [MCR 3.963(A)] or [MCR 3.963(B)], [the DHHS] shall contact a judge or referee designated by the court for that purpose.”10 MCR 3.963(D)(1).
“If the court is closed, the designated judge or referee may issue an ex parte order for placement upon receipt, electronically or otherwise, of a petition or affidavit of facts.[11] The order must be communicated in writing, electronically or otherwise, to the appropriate county DHHS office and filed with the court the next business day.” MCR 3.963(D)(2). See also MCL 712A.14a(3), which contains substantially similar language for a child in protective custody following an emergency removal under MCL 712A.14a.
Note that “[w]hen a placement order is issued by a designated referee, the order shall take effect as an interim order pending a preliminary hearing.” MCL 712A.14a(3).
E.After a Child Is in Protective Custody
An officer or other person who takes a child into protective custody must immediately attempt to notify the child’s parent, guardian, or legal custodian of the protective custody. MCR 3.963(C)(1).
The parent, guardian, or legal custodian must also be informed of the date, time, and location of the scheduled preliminary or emergency removal hearing. MCR 3.963(C)(2).
Note: MCR 3.903(A)(11) defines a guardian as “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)(13) defines a juvenile guardian as “a person appointed guardian of a child by a Michigan court pursuant to MCL 712A.19a or MCL 712A.19c. A juvenile guardianship is distinct from a guardianship authorized under the Estates and Protected Individuals Code.”
MCR 3.903(A)(14) defines a legal custodian as “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).”12
The preliminary hearing must begin within 24 hours of a child being taken into protective custody unless the preliminary hearing is adjourned for good cause, or the child must be released. MCL 712A.14(2);13 MCR 3.965(A)(1). The 24-hour time period does not include Sundays or holidays. MCR 3.965(A)(1). See Chapter 7 for a detailed discussion of preliminary hearings.
During the preliminary hearing on the status of the child, the judge or referee must authorize the filing of a complaint14 or the child must be released to his or her parent or parents, guardian, or custodian. MCL 712A.14(2).
Note: The “‘[p]etition authorized to be filed’ refers to written permission given by the court to proceed with placement on the formal calendar. Until a petition is authorized, it remains on the informal calendar.” MCR 3.903(A)(21).
The officer or other person who took the child into protective custody must make sure that the petition is prepared and submitted to the court. MCR 3.963(C)(5). See Chapter 7 for a detailed discussion of petitions.
Note: A petition is “a complaint or other written allegation, verified in the manner provided in MCR 1.109(D)(3), that a parent, guardian, nonparent adult, or legal custodian has harmed or failed to properly care for a child . . . .” MCR 3.903(A)(20).
The officer or other person who took the child into custody must also “file a custody statement with the court that includes:
(a) a specific and detailed account of the circumstances that led to the emergency removal, and
(b) the names of persons notified and the times of notification or the reason for failure to notify.”15 MCR 3.963(C)(6).
1 “[E]ither an attorney or a nonattorney referee may issue an ex parte placement order under MCR 3.963(B).” MCR 3.913(A)(2)(b).
2 The link to this resource was created using Perma.cc and directs the reader to the page.
3 The link to this resource was created using Perma.cc and directs the reader to the page.
4 For additional information on relative licensing waivers, including a list of exceptional circumstances that must exist to forgo licensing, see the DHHS’s Children’s Foster Care Manual (FOM), Placement Selection and Standards FOM 722-03, pp 15-16. Note: The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
5 A secure facility is “any public or private licensed child caring institution identified by the department as designed to physically restrict the movements and activities of the alleged or adjudicated juvenile offender that has the primary purpose of serving juveniles who have been alleged or adjudicated delinquent, other than a juvenile alleged or adjudicated under [MCL 712A.2(a)(2)-(4)].” MCL 712A.1(1)(t).
6 MCL 712A.14a(1) also prevents a child, taken into protective custody, from being held in a detention facility while awaiting the arrival of the DHHS.
7 See the Settlement Agreement in Dwayne B v Ganholm to view the agreement in its entirety. Note: The link to this resource was created using Perma.cc and directs the reader to an archived record of the page. See also http://www.childrensrights.org/reform-campaigns/legal-cases/michigan/ for a summary of the action taken since Governor Snyder took office.
8 For purposes of MCL 712A.14a, an officer means a “local police officer, sheriff or deputy sheriff, state police officer, or county agent or probation officer of a court of record.” MCL 712A.14a(4).
9 See Section 3.2(D) for information on the court’s designation of a judge or referee under MCR 3.963(D).
10 See Section 3.1(A) for information on MCR 3.963(B), taking custody of a child with a court order, and Section (B) for information on MCR 3.963(A), taking custody of a child without a court order.
11 “[E]ither an attorney or a nonattorney referee may issue an ex parte placement order under MCR 3.963(B).” MCR 3.913(A)(2)(b).
12 An “‘Indian custodian’ means 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) (formerly MCR 3.002(7)).
13 MCL 712A.14(2) requires that the preliminary hearing be held “immediately” if a child is not released. The statute does not set forth the 24-hour limit contained in MCR 3.965(A)(1).
14 Petition includes “a complaint or other written allegation.” See MCR 3.903(A)(20).
15 See SCAO form JC 01, Complaint (Request for Action, Child Protective Proceedings), at https://www.courts.michigan.gov/4a7f4f/siteassets/forms/scao-approved/jc01.pdf, and SCAO form JC 05b, Order to Take Child(ren) Into Protective Custody (Child Protective Proceedings), at https://www.courts.michigan.gov/4a7f10/siteassets/forms/scao-approved/jc05b.pdf.