5.2Notice of Hearings in Child Protective Proceedings
Generally, notice of a hearing must be given in writing or on the record at least seven days before the hearing. MCR 3.920(D)(1). However, written notice must be given at least 14 days before a permanency planning hearing or a hearing on a petition requesting termination of parental rights in child protective proceedings.1 MCL 712A.19a(6); MCL 712A.19b(2); MCR 3.920(D)(3).
Note: Written notice in a permanency planning hearing must also contain “a statement of the purposes of the hearing, including a notice that the hearing may result in further proceedings to terminate parental rights[.]” MCL 712A.19a(6).
“When a child is placed outside the home, notice of the preliminary hearing or an emergency removal hearing under MCR 3.974(C)(3)[2] must be given to the parent of the child as soon as the hearing is scheduled.”3 MCR 3.920(D)(2)(b). Notice of the preliminary hearing “may be in person, in writing, on the record, or by telephone.” Id.
“When a party fails to appear in response to a notice of hearing, the court may order the party’s appearance by summons or subpoena.”4 MCR 3.920(D)(4).
“An order directed to a parent or a person . . . is not effective and binding on the parent or other person unless opportunity for hearing is given by
. . . notice as provided in [MCL 712A.12 and MCL 712A.13] and until a copy of the order, bearing the seal of the court, is served on the parent or other person as provided in [MCL 712A.13].”5 MCL 712A.18(4).
A respondent whose counsel had attended two previous hearings at which placement of the respondent’s younger child was disputed and who was aware that investigations into her fitness as a parent were continuing with regard to both her minor children, the older of whom was already in foster care, was not deprived of due process when her younger child was removed from her custody without formal notice or a removal hearing specifically held for that purpose. In re Williams, 333 Mich App 172, 179-180 (2020) (noting that “respondent was on notice that [the child’s] placement was subject to ongoing review and reconsideration at any time, including at the pretrial hearing”).
A.Persons Entitled to Notice of Hearings
In child protective proceedings, the court must ensure that the following persons are notified of each hearing:
“(a) the respondent,6
(b) the attorney for the respondent,
(c) the lawyer-guardian ad litem for the child,
(d) subject to [MCR 3.921(D)],[7] the parents, guardian, or legal custodian, if any, other than the respondent,
(e) the petitioner,
(f) a party’s guardian ad litem appointed pursuant to these rules,
(g) the foster parents, preadoptive parents, and relative caregivers of a child in foster care under the responsibility of the state,
(h) in accordance with the notice provisions of MCR 3.905, if the court knows or has reason to know the child is an Indian child:
(i) the child’s tribe and, if the tribe is unknown, the Secretary of the Interior, and
(ii) the child’s parents or Indian custodian, and if unknown, the Secretary of the Interior, and[8]
(i) any other person the court may direct to be notified.” MCR 3.921(B)(1).
2.Dispositional Review Hearings and Permanency Planning Hearings
Before dispositional review hearings and permanency planning hearings, the court must ensure that the following persons receive written notification of each hearing:
“(a) the agency responsible for the care and supervision of the child,
(b) the person or institution having court-ordered custody of the child,
(c) the parents of the child, subject to [MCR 3.921(D)],[9] and the attorney for the respondent parent, unless parental rights have been terminated,
(d) the guardian or legal custodian of the child, if any,
(e) the guardian ad litem for the child,
(f) the lawyer-guardian ad litem for the child,
(g) the attorneys for each party,
(h) the prosecuting attorney if the prosecuting attorney has appeared in the case,
(i) the child, if 11 years old or older,
(j) if the court knows or has reason to know the child is an Indian child, the child’s tribe,[10]
(k) the foster parents, preadoptive parents, and relative caregivers of a child in foster care under the responsibility of the state,
(l) if the court knows or has reason to know the child is an Indian child and the parents, guardian, legal custodian, or tribe are unknown, to the Secretary of Interior, and
(m) any other person the court may direct to be notified.” MCR 3.921(B)(2). See also MCL 712A.19(5); MCL 712A.19a(6).
MCL 712A.19(5)(f) also requires notification in dispositional review hearings to a nonparent adult who is required to comply with a case service plan.
For children in permanent foster family agreements11 or relative placements12 intended to be permanent under MCL 712A.19(4), the notice provisions of MCL 712A.19(5) apply. MCL 712A.19(5).
3.Hearings on Termination of Parental Rights
“Written notice of a hearing to determine if the parental rights to a child shall be terminated must be given to those appropriate persons or entities listed in [MCR 3.921](B)(2), except that if the court knows or has reason to know the child is an Indian child, notice shall be given in accordance with MCR 3.920(C)(1).” MCR 3.921(B)(3). See also MCL 712A.19b(2), which requires the court to ensure that the following persons receive written notification of a hearing on termination of parental rights:
“(a) The agency. The agency shall advise the child of the hearing if the child is 11 years of age or older.
(b) The child’s foster parent or custodian.
(c) The child’s parents.
(d) If the child has a guardian, the child’s guardian.
(e) If the child has a guardian ad litem, the child’s guardian ad litem.
(f) If tribal affiliation has been determined, the Indian tribe’s elected leader.[13]
(g) The child’s attorney and each party’s attorney.
(h) If the child is 11 years of age or older, the child.
(i) The prosecutor.” MCL 712A.19b(2).
4.Post-termination Review Hearings
“The foster parents (if any) of a child and any preadoptive parents or relative providing care to the child must be provided with notice of and an opportunity to be heard at each hearing.” MCR 3.978(B).
In juvenile guardianship proceedings, the following persons are entitled to notice:
“(1) the child, if 11 years old or older;
(2) the Department of Health and Human Services [DHHS];
(3) the parents of the child, unless parental rights over the child have been terminated;
(4) the juvenile guardian or proposed juvenile guardian;
(5) any court that previously had jurisdiction over the child in a child protective proceeding, if different than the court that entered an order authorizing a juvenile guardianship;
(6) the attorneys for any party;
(7) the prosecuting attorney, if the prosecuting attorney has appeared in the case;
(8) if the court knows or has reason to know the child is an Indian child, the child’s tribe, Indian custodian, or if the tribe is unknown, the Secretary of the Interior;[14]
(9) the Michigan Children’s Institute [MCI] superintendent; and
(10) any other person the court may direct to be notified.” MCR 3.921(C).
B.Special Notice Provisions for Physicians
If the child is placed outside the home and the DHHS is required to review the case with the child’s physician, “then in a judicial proceeding to determine if the child is to be returned to his or her home, the court must allow the child’s attending physician of record during a hospitalization or the child’s primary care physician to testify regarding the case service plan.”15 MCL 712A.18f(7). The court must notify each physician of the time and place of the hearing. Id.
C.Special Notice Provisions for Incarcerated Parties
If a party is incarcerated under the jurisdiction of the Michigan Department of Corrections, specific requirements must be met in order to provide proper notice to the party. MCR 2.004; In re BAD, 264 Mich App 66, 75-76 (2004).
Specifically, MCR 2.004(A) applies to:
“(1) domestic relations actions involving minor children, and
(2) other actions involving the custody, guardianship, neglect, or foster-care placement of minor children, or the termination of parental rights.”
The party seeking an order regarding a minor child must
“(1) contact the [D]epartment [of Corrections] to confirm the incarceration and the incarcerated party’s prison number and location;
(2) serve the incarcerated person with the petition or motion seeking an order regarding the minor child, and file proof with the court that the papers were served; and
(3) file with the court the petition or motion seeking an order regarding the minor child, stating that a party is incarcerated and providing the party’s prison number and location; the caption of the petition or motion shall state that a telephonic or video hearing is required by this rule.” MCR 2.004(B).
The court must issue an order requesting the Department of Corrections to permit the incarcerated party to participate in a hearing or conference “by way of a noncollect and unmonitored telephone call or by videoconferencing technology[.]” MCR 2.004(C). The court’s order must include the date and time of the hearing or conference and the incarcerated party’s name and prison identification number, and must be served “at least 7 days before the hearing or conference by the court upon the parties and the warden or supervisor of the facility where the incarcerated party resides.” Id.
“The initial telephone call or videoconference shall be conducted in accordance with [MCR 2.004(E)]. If the prisoner indicates an interest in participating in subsequent proceedings following an initial telephone call or videoconference pursuant to [MCR 2.004(E)], the court shall issue an order in accordance with this subrule for each subsequent hearing or conference.” MCR 2.004(C).
“The purpose of the initial telephone call or videoconference with the incarcerated party, as described in [MCR 2.004(C)], is to determine[:]
(1) whether the incarcerated party has received adequate notice of the proceedings and has had an opportunity to respond and to participate,
(2) whether counsel is necessary in matters allowing for the appointment of counsel to assure that the incarcerated party’s access to the court is protected,
(3) whether the incarcerated party is capable of self-representation, if that is the party’s choice,
(4) how the incarcerated party can communicate with the court or the friend of the court during the pendency of the action, and whether the party needs special assistance for such communication, including participation by way of additional telephone calls or videoconferencing technology as permitted by the Michigan Court Rules, and
(5) the scheduling and nature of future proceedings, to the extent practicable, and the manner in which the incarcerated party may participate.” MCR 2.004(E).
3.Documentation and Correspondence to Incarcerated Party
All court documents or correspondence mailed to an incarcerated party must include the incarcerated party’s name and prison number on the envelope. MCR 2.004(D).
If the requirements of MCR 2.004 are not satisfied, the court may not grant the relief requested by the moving party. MCR 2.004(F). However, this provision does not apply “if the incarcerated party actually does participate in a telephone call or video conference or if the court determines that immediate action is necessary on a temporary basis to protect the minor child.” Id.
“[T]o comply with MCR 2.004, the moving party and the court must offer the [incarcerated party] ‘the opportunity to participate in’ each proceeding in a child protective action. In re Mason, 486 Mich 142, 154 (2010). “[P]articipation through ‘a telephone call’ [or video conference] during one proceeding will not suffice to allow the court to enter an order at another proceeding for which the [incarcerated party] was not offered the opportunity to participate.” In re Mason, supra at 154-155.
“[E]xcluding a[n incarcerated party from the opportunity to participate] for a prolonged period of the proceedings can[not] be considered harmless error.” In re DMK, 289 Mich App 246, 255 (2010).
The court may impose sanctions if it finds that an attempt was made to prevent an incarcerated party from obtaining information on the case in order to deny the incarcerated party access to the courts. MCR 2.004(G).
6.Parent’s Due Process Right to be Present at Hearing
If a respondent-parent is incarcerated, the court must balance the parent’s compelling interest in his or her parental rights, the incremental risk of an erroneous deprivation of that interest if the parent is not present at the hearing, and the government’s interest in avoiding the burden of securing the parent’s presence at the hearing, to determine whether due process requires the parent’s presence at a hearing to terminate parental rights. Mathews v Eldridge, 424 US 319, 335 (1976); In re Vasquez, 199 Mich App 44, 46-50 (1993) (due process did not require presence of parent in prison in Texas, where parent was well represented by counsel at the hearing); In re Render, 145 Mich App 344, 348-350 (1985) (due process required presence of parent incarcerated in county jail, where parent’s attorney had learned of parent’s incarceration the day of the trial).
D.Notice Requirements Under the Safe Delivery of Newborns Law
The Safe Delivery of Newborns Law,16 MCL 712.1 et seq., regulates a parent’s surrender of a newborn child. The law permits a parent to leave a newborn with an emergency service provider without expressing an intent of returning for the newborn. MCL 712.1(2)(n). Once a child is taken into temporary protective custody under the Safe Delivery of Newborns Law, the child placing agency must, among other responsibilities, make a reasonable effort to identify, locate, and provide notice of the newborn’s surrender to the nonsurrendering parent (including “by publication in a newspaper of general circulation in the county where the newborn was surrendered” if the identity and address of the nonsurrendering parent are unknown). MCL 712.7(f).
1 See SCAO form JC 45, Notice of Hearing, at https://www.courts.michigan.gov/49c068/siteassets/forms/scao-approved/jc45.pdf.
2 Formerly MCR 3.974(B)(3).
3 See Section 6.9 for a detailed discussion of preliminary hearings.
4 See Section 5.1 for information on summonses, and Section 5.5 for information on subpoenas.
5 This rule is significant for purposes of collecting reimbursement of the costs of care and service (see Section 14.2), and for other orders affecting adults pursuant to MCL 712A.6 and MCL 712A.6b (see Section 4.10). See SCAO guidelines for court-ordered reimbursement.
6 “[T]he state deprived respondent of even minimal due process by failing to adequately notify him of proceedings affecting his parental rights and then terminating his rights on the basis of his lack of participation without attempting to remedy the failure of notice.” In re Rood, 483 Mich 73, 118 (2009).
7 MCR 3.921(D) governs establishing paternity in child protective proceedings. See Chapter 6. A putative father must establish paternity before he is entitled to notice of proceedings. In re Gillespie, 197 Mich App 440, 443-446 (1992).
8 See Section 19.5 for additional information on notice of proceedings to the Indian child’s parent and tribe or Secretary of the Interior.
9 MCR 3.921(D) governs establishing paternity in child protective proceedings. See Chapter 6. A putative father must establish paternity before he is entitled to notice of proceedings. In re Gillespie, 197 Mich App at 443-446.
10 See Section 19.5 for additional information on notice of proceedings to the Indian child’s parent and tribe or Secretary of the Interior.
11 “‘Permanent foster family agreement’ means an agreement for a child 14 years old or older to remain with a particular foster family until the child is 18 years old under standards and requirements established by the [DHHS], which agreement is among all of the following: (i) The child. (ii) If the child is a temporary ward, the child’s family. (iii) The foster family. (iv) The child placing agency responsible for the child’s care in foster care.” MCL 712A.13a(1)(i).
12 See Section 8.2(A) for a discussion on relative placements.
13 See Section 19.5 for additional information on notice of proceedings to the Indian child’s parent and tribe or Secretary of the Interior.
14 See Chapter 19 for information on Indian children.
15 See Section 13.5 for a detailed discussion of required case review and testimony by child’s physician.
16 See Section 8.14 for a detailed discussion of child placements under the Safe Delivery of Newborns Law.