7.3Who May Submit a Petition

Any person who suspects child abuse or child neglect may report the matter to the Department of Health and Human Services (DHHS), a law enforcement agency, or the court. MCL 712A.11(1); MCL 722.624. Once reported to the DHHS, the DHHS has 24 hours to either commence its own investigation or refer the case to the prosecuting attorney and the local law enforcement agency.¹ MCL 722.628(1). Following the investigation, either a Children’s Protective Services (CPS) worker or a prosecuting attorney acting on behalf of the DHHS drafts and files a petition seeking court jurisdiction over a child suspected of being abused or neglected. See MCL 712A.11(1); MCL 712A.17(5); MCR 3.914(C).

Note: See Section 2.2(A) for a list of mandatory reporters.

“[A]nyone who complies with MCR 3.961(B)’s petition requirements has standing to initiate child protective proceedings, thereby allowing the trial court to consider the merits of the petition at a preliminary inquiry.”  In re F Nikooyi, ___ Mich App ___, ___ (2022). Specifically, a minor child’s adult sibling may file a petition to initiate child protective proceedings related to the minor child. Id. at ___.

In addition, school officials may file a petition alleging educational neglect under MCL 712A.2(b)(1). See MCL 712A.11(1). The child advocate may also file a petition requesting the court to assume jurisdiction under MCL 712A.2(b) if the child advocate is satisfied that a complainant has contacted the DHHS, the prosecuting attorney, the child’s attorney, and the child’s guardian ad litem, if any, and that none of those persons intend to file a petition.² MCL 722.927(4).

However, where a person or agency other than a prosecuting attorney or the DHHS files a petition, the court may refer the matter to the DHHS for investigation. MCL 712A.11(1); MCR 3.962(A).

Note: The DHHS will not investigate a report alleging only a child’s failure to attend school. See Section 2.2.

A.When DHHS Must Submit a Petition

“[I]f [the statutory requirements of MCL 722.638] [are] satisfied, [the DHHS] must file a petition” and “the child [must] be brought within the jurisdiction of the court, [where] further determinations regarding the child’s well-being and placement are made by the court, not [the DHHS][;]”³ the DHHS “ha[s] no discretion to refrain from filing the petition.” Jasinski v Tyler, 729 F3d 531, 543-544 (CA 6, 2013) (because this Court “cannot say that a reasonable [DHHS] official would understand that the failure to file a petition under [MCL 722.638] would constitute a denial of procedural due process[,]” DHHS officials “are [now put] on notice that if a petition is mandated [under MCL 722.638], the failure to file a petition when [the statutory requirements of MCL 722.628] [are] met may constitute a denial of procedural due process”).

MCL 722.638(1)(a)-(b) require the DHHS to submit a petition seeking the court’s jurisdiction if it determines that one or more of the following apply:

• A parent, guardian, custodian, or a person 18 years of age or older residing with the child has abused the child or the child’s sibling, and the abuse included one or more of the following:

• abandonment of a young child;

• criminal sexual conduct that involved penetration, attempted penetration, or assault with intent to penetrate;

• battering, torture, or other serious physical harm;

• loss or serious impairment of an organ or limb;

• life-threatening injury; or

• murder or attempted murder.

• There is a risk of harm, child abuse, or child neglect to the child at issue and the parent’s parental rights to another child were terminated under MCL 712A.2(b) (or a similar law of another state) and the parent has failed to rectify the conditions that led to the prior termination of parental rights.

• There is a risk of harm, child abuse, or child neglect to the child at issue and the parent voluntarily terminated his or her parental rights to another child following initiation of proceedings under MCL 712A.2(b) (or a similar law of another state), the parent has failed to rectify the conditions that led to the prior termination of parental rights, and the proceeding involved abuse that included one or more of the following:

• abandonment of a young child;

• criminal sexual conduct that involved penetration, attempted penetration, or assault with intent to penetrate;

• battering, torture, or other serious physical harm;

• loss or serious impairment of an organ or limb;

• life-threatening injury;

• murder or attempted murder;

• voluntary manslaughter; or

• aiding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter.

The requirement that the DHHS file a petition under MCL 722.638 to obtain jurisdiction over the sibling(s) of a child who has been abused “and that abuse included life-threatening injury” does not affect the existing jurisdictional requirements in MCL 712A.2. In re Christie, 339 Mich App 1, 6 (2021). In fact, MCL 722.638(1) requires the DHHS to file the petition in a court having jurisdiction under MCL 712A.2(b). Christie, 339 Mich App at 6. “[W]hile MCL 722.638 may satisfy the parental- conduct component of MCL 712A.2, it does not indicate that the location of the life-threatening injury to one sibling[] overcomes the geographic component of the jurisdictional statute as it relates to other siblings.” Christie, 339 Mich App at 7. That is, without satisfaction of the relevant jurisdictional factors in MCL 712A.2, an injury that occurs to one sibling in one county does not give the court in that county jurisdiction over siblings living in a different county. Christie, 339 Mich App at 6, 7.

If the DHHS suspects a parent as the perpetrator of the abuse or suspects that a parent is placing the child at an unreasonable risk of harm due to the parent’s failure to take reasonable steps to intervene to eliminate the risk, the DHHS must include with the mandatory petition filed under MCL 722.638(1) a request for termination of parental rights at the initial dispositional hearing.⁴ MCL 722.638(2). See also DHHS’s Children Protective Services Manual (PSM), Family Court: Petitions, Hearings and Court Orders PSM 715-3, p 4.⁵ For example, where “the DHHS sought termination at the initial dispositional hearing under MCL 722.638 because it believed that [the minor child] suffered severe physical abuse^[6] at the hands of respondent,” and “[t]he DHHS alleged that respondent excessively consumed alcohol while pregnant with [the minor child], causing [the minor child] to be born prematurely with extreme and ongoing medical conditions,” “the trial court found grounds to assume jurisdiction over [the minor child].” In re Rippy, 330 Mich App 350, 357 (2019).⁷

Note: MCL 722.638 does not violate a parent’s procedural due process rights in mandating that a petitioner file a request for termination of parental rights after a parent voluntarily terminated their parental rights to another child, because the request for termination of parental rights does not necessarily mean a court will grant the request, and the petitioner is still required to show a risk of harm to the child at issue and that the child’s parent is a suspected perpetrator or suspected of placing the child at an unreasonable risk of harm due to the parent’s failure to take reasonable steps to intervene or eliminate the risk.⁸ In re AH, 245 Mich App 77, 85 (2001).

Further, although MCL 722.638 creates a separate class of parents by requiring a petitioner to file a request for termination of parental rights of parents who have had their parental rights to another child terminated (voluntarily or otherwise), it does not violate a parent’s fundamental right to the interest in the custody of their child and in the parent-child relationship, because MCL 722.638 is precisely tailored to serve a compelling state interest in protecting children from an unreasonable risk of harm. In re AH, 245 Mich App at 82-84.

If the DHHS determines that a child was severely physically injured, sexually abused, or allowed to be exposed to, or have contact with, methamphetamine production, it must file a petition under MCL 712A.2(b) within 24 hours. MCL 722.637(1). However, the DHHS is not required to file a petition if it determines that the child’s parent or legal guardian is not a suspected perpetrator of the abuse and all of the following apply:

(1) the child’s parent or legal guardian did not neglect or fail to protect the child;

(2) the child’s parent or legal guardian does not have a history that shows a documented pattern of neglect or failing to protect the child; and

(3) the child is safe under the parent’s or legal guardian’s care. MCL 722.637(2).

B.Prosecutor’s Role

A prosecutor has standing to appear in child protective proceedings when:

(1) the DHHS requests it to do so;

(2) the court requests it to do so; or

(3) it files a petition for termination of parental rights after a child has remained in foster care or the custody of a guardian for a specified duration. In re Hill, 206 Mich App 689, 691 (1994).

In the context of child protective proceedings, a prosecutor or prosecuting attorney is defined as the “prosecuting attorney of the county in which the court has its principal office or an assistant to the prosecuting attorney.” MCR 3.903(C)(11).

1.Filing Petition on Behalf of DHHS

Upon request of the DHHS (or an agent of the DHHS under contract with the DHHS), the prosecutor must serve as a legal consultant to the DHHS or its agent at all stages of the child protective proceeding. MCL 712A.17(5); MCR 3.914(C)(1). If the prosecutor does not appear on behalf of the DHHS or its agent, the DHHS may contract with an attorney of its choice for legal representation. MCL 712A.17(5); MCR 3.914(C)(2).

2.Court’s Request

Upon the court’s request, a prosecutor must review a petition for legal sufficiency and appear at any proceeding. MCL 712A.17(4); MCR 3.914(A).

Note: A court’s compliance with a prosecuting attorney’s request for notice of hearings does not constitute a court request to make a formal appearance in a proceeding. In re Hill, 206 Mich App at 692-693.

3.Filing Petition Independent of DHHS

A prosecutor may file a petition independent of the DHHS. In re Jagers, 224 Mich App 359, 362 (1997). In In re Jagers, supra at 362, although the DHHS had retained independent legal counsel, the prosecutor filed a petition alleging abuse and neglect. The Court of Appeals held that a prosecutor has standing, independent of the DHHS, to file a petition in child protective proceedings. Id. Specifically, the Court stated:

“Under the plain language of MCL 712A.11, a petition may be filed by ‘a person’ requesting the court to take action on behalf of a child because of parental abuse or neglect. A prosecutor or an assistant prosecutor assuredly qualifies as ‘a person.’

* * *

Moreover, [the Court] believe[s] that public policy favors allowing prosecutors to act independently of the [DHHS]. . . . [T]he prosecutor and the [DHHS] do not always agree on how a particular case should be handled. When . . . the prosecutor believes that a petition should be filed and the [DHHS], for whatever reason, is not persuaded, the prosecutor should not be precluded from taking any action. The state, and every county within it, has an interest in protecting children from abuse and neglect.” In re Jagers, 224 Mich App at 362, 365.

A prosecutor may also file a petition for termination of parental rights if the child remains in foster care regardless of whether the prosecuting attorney is representing or acting as a legal consultant to the DHHS or any other party. MCL 712A.19b(1); MCR 3.977(A)(2)(f).

A prosecutor may not amend or supplement a petition filed by another party. In re Hill, supra at 692 (prosecutor was prevented from amending and supplementing petitions that were originally submitted by the DHHS, which had obtained legal representation by the attorney general’s office).

C.Petition Requesting Termination of Parental Rights⁹

1.Standing to File Petition Requesting Parental Termination

Only persons granted standing under a statute, court rule, or case law may participate in proceedings to terminate parental rights. In re Foster (Catherine), 226 Mich App 348, 358-359 (1997). As such, a request for termination of parental rights may be made by any one of the following:

(1) the agency;¹⁰

(2) the child;

(3) a guardian, legal custodian, or representative of the child;

(4) a concerned person;

Note: A concerned person is a foster parent who:

(a) a child is living with or has lived with;

(b) has specific knowledge of the parent’s behavior which constitutes grounds for termination under MCL 712A.19b(3)(b) or MCL 712A.19b(3)(g);¹¹ 

(c) has contacted the DHHS, prosecuting attorney, child’s attorney, and child’s guardian ad litem (if any); and

(d) is satisfied that the DHHS, prosecuting attorney, child’s attorney, and child’s guardian ad litem (if any) does not intend to file a petition for termination of parental rights. MCL 712A.19b(6); MCR 3.977(A)(2)(d).

(5) the child advocate; or

(6) the prosecuting attorney (without regard to whether the prosecuting attorney is representing or acting as a legal consultant to the agency or any other party). MCL 712A.19b(1); MCR 3.977(A)(2).

Additionally, a custodial parent has standing to file a petition requesting termination of a noncustodial parent’s parental rights. In re Huisman, 230 Mich App 372, 380-381, 378-383 (1998), overruled in part on other grounds by In re Trejo, 462 Mich 341 (2000)¹² (interpreting “custodian” as used in MCL 712A.19b(1) to include a custodial parent). Although “‘the comprehensive list of parties authorized to file a termination petition under [MCL 712A.19b(1)] does not include the term “parent[,]” . . . given the Legislature’s use of the apparently broad term “custodian” in [MCL 712A.19b(1)], [there is] no statutory basis for excluding a custodial parent from filing a termination petition under the Juvenile Code to terminate the rights of the other natural parent[;] [t]he plain and ordinary meaning of “custodian” certainly encompasses a custodial parent.’” In re Medina, 317 Mich App 219, 235-236 (2016) (quoting In re Huisman, 230 Mich App at 380, and further concluding that “[a]lthough Huisman was partially overruled by Trejo, a close reading of Trejo indicates that the standing analysis from Huisman remains intact”).

However, in In re Swope, 190 Mich App 478, 480-481 (1991), the Court of Appeals held that adoptive parents did not have standing to petition the court under MCL 712A.19b to terminate their own parental rights to their adopted daughter. The Court concluded that parents cannot petition to terminate their own parental rights “because the statute was clearly enacted for the protection of children, rather than for the convenience of parents.” In re Swope, 190 Mich App at 481.

2.Requirements for Filing Petition Requesting Parental Termination

A request for termination of parental rights must be made in an original, amended,¹³ or supplemental petition.^{14, 15} MCR 3.977(A)(2). For termination of parental rights at the initial dispositional hearing, a request for termination of parental rights must be made in an original or amended petition. MCR 3.977(E)(1). For termination of parental rights on the basis of changed circumstances, or after the child has been placed in foster care, the request may be made in a supplemental petition. MCL 712A.19b(4); MCR 3.977(F).

Note: In some cases, MCL 722.638(2) requires the DHHS to file a petition seeking court jurisdiction and termination of parental rights at the initial dispositional hearing. See Section 7.3(A).

If a petition or an amended petition fails to request the termination of parental rights, a subsequent order terminating parental rights must be set aside. In re SLH, 277 Mich App 662, 674 (2008).

Res judicata will not bar a second petition requesting termination of parental rights where the petitioner is not seeking termination on the same grounds in both petitions and new evidence and changed circumstances are presented in the second petition. In re Pardee, 190 Mich App 243, 249-250 (1991). “[W]hen the facts have changed or new facts develop, the dismissal of a prior termination proceeding will not operate as a bar to a subsequent termination proceeding.” In re Pardee, supra at 248.