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Family Law:
Child Abuse and Neglect

In the child abuse and neglect arena, Lynn will fight to protect the fundamental right of parents to raise their children.

She is familiar with Child Protective Services and the Department of Human Services (formerly the Family Independence Agency) in Ann Arbor.

She understands the anger and frustration her clients feel when faced with the possible termination of their parental rights.

She will investigate and search for the medical and environmental factors that give rise to the accusations of child abuse and child neglect and will work with her clients to identify needs that should be addressed in light of the accusations.

Procedure for Child Abuse and Neglect Cases

The Child Protective Services division of the Department of Human Services conducts investigations of suspected child abuse or neglect. An investigation may begin because a "mandatory reporter", such as a teacher or a doctor, suspects child abuse or neglect. An investigation may also begin with a call from a concerned friend or neighbor.

DHS will work with families in order to correct any failings in child care. Only the most serious cases go to court. This is the procedure for such cases:

A Preliminary hearing is conducted within 24 hours if the child is removed from the home, excluding Sundays and holidays. At the preliminary hearing, the parents (called the Respondents) can ask for a court-appointed attorney if they do not have representation. Each parent will have their own attorney. At the hearing, the Petitioner (DHS) must prove by probable cause that the child was abused and/or neglected. The parents/respondents can waive this hearing if the desire.

Pre-trial: At a conference the court and the attorneys for the parties may consider any matters that will facilitate the fair and expeditious disposition of the action, including:

• the simplification of the issues;
• the amount of time necessary for discovery;
• the necessity or desirability of amendments to the pleadings;
• the possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;
• the limitation of the number of expert witnesses;
• the consolidation of actions for trial, the separation of issues, and the order of trial when some issues are to be tried by a jury and some by the court;
• the possibility of settlement;
• whether mediation or some other form of alternative dispute resolution would be appropriate for the case;
• the identity of the witnesses to testify at trial;
• the estimated length of trial;
• whether all claims arising out of the transaction or occurrence that is the subject matter of the action have been joined as required by subrule 2.203(A);
• other matters that may aid in the disposition of the action.

Plea of Responsible:

The respondent may make a plea of admission or of no contest to the original petition or to an amended petition.

Before accepting a plea, the court must advise the respondent on the record or in a writing that is made a part of the file:

• of the allegations in the petition;
• of the right to an attorney, if respondent is without counsel;
• that if the court accepts the plea the respondent will give up the rights to;
  • trial by a judge or trial by a jury,
  • have the petitioner prove the allegations in the petition by a preponderance of the evidence,
  • have witnesses against the respondent appear and testify under oath at the trial,
  • cross-examine witnesses,
  • have the court subpoena any witnesses the respondent believes could give testimony in the respondent's favor;
• of the consequences of the plea including that the plea can later be used to terminate parental rights.

The plea must be knowingly, understandingly, and voluntarily made. (See link: Sentencing and Plea Bargaining for additional information regarding knowing, understanding and voluntary plea.)

At the plea, the Respondent provides facts to the court that establish a finding that the child comes within the jurisdiction of the court. The court will have jurisdiction if the child is under 18 years of age; is found within the county and:

• Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. As used in this sub-subdivision:
  • "Education" means learning based on an organized educational program that is appropriate, given the age, intelligence, ability, and psychological limitations of a juvenile, in the subject areas of reading, spelling, mathematics, science, history, civics, writing, and English grammar.
  • "Without proper custody or guardianship" does not mean a parent has placed the juvenile with another person who is legally responsible for the care and maintenance of the juvenile and who is able to and does provide the juvenile with proper care and maintenance.
• Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.
• Whose parent has substantially failed, without good cause, to comply with a limited guardianship placement plan described in section 5205 of the estates and protected individuals code, 1998 PA 386, MCL 700.5205, regarding the juvenile.
• Whose parent has substantially failed, without good cause, to comply with a court-structured plan described in section 5207 or 5209 of the estates and protected individuals code, 1998 PA 386, MCL 700.5207 and 700.5209, regarding the juvenile.
• If the juvenile has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and the juvenile's parent meets both of the following criteria:
  • The parent, having the ability to support or assist in supporting the juvenile, has failed or neglected, without good cause, to provide regular and substantial support for the juvenile for 2 years or more before the filing of the petition or, if a support order has been entered, has failed to substantially comply with the order for 2 years or more before the filing of the petition.
  • The parent, having the ability to visit, contact, or communicate with the juvenile, has regularly and substantially failed or neglected, without good cause, to do so for 2 years or more before the filing of the petition. MCL 712A.2(b).

A Respondent can plead no contest or nolo contendre. (See link: Sentencing and Plea Bargaining for more information on no contest pleas.)

Trials: If child was removed from the home, must commence as soon as possible, but no later than 63 days after the child was removed unless the trial is postponed. If child was not removed from the home, the trial must be held within 6 months after the filing of the petition unless adjourned for good cause

At trial, the petitioner (DHS who is represented by the county prosecutor) must prove that the facts alleged in the petition are true and that they rise to the level of legal neglect. If legal neglect is proved at trial, the court may adjudicate the matter by formally asserting its authority and making the child a temporary ward of the court.

The trial can be in front of a referee, a judge or a judge and jury. The jury is composed of 6 people. (See link: Criminal Justice Overview, "Jury Selection" for more information.)

Standard of Proof: For jurisdiction, the standard of proof is always preponderance of the evidence. For termination, the standard of proof is always clear and convincing. The same evidence can establish both jurisdiction and termination.

Disposition: If jurisdiction is found by either plea or trial, the next step is the dispositional hearing. The disposition involves a determination of what action, if any, will be taken on behalf of the child. This hearing is held within 35 days after the trial or plea. (If good cause is shown, the dispositional hearing may be later.)

Review Hearings: The court may retain jurisdiction for many, many months after it has jurisdiction. The purpose of the review hearing is to see whether the parent has progressed with the parent-agency plan designed to reunite the family. If parental rights were terminated, the court wants to know about plans for the child's permanency (i.e., adoption or guardianship ).

The progress of the parent and child must be reviewed no later than 182 days from the date a petition is filed, and no later than every 91 days after that for the first year that the child is under the jurisdiction of the court. After the first year, the progress of the child must be reviewed no later than 182 days from each preceding review until case is dismissed.

Permanency Planning Hearing: The hearings must be held every twelve months from the date a child was removed from its home. The plan could be to reunite the child with his or her parent. On the other hand, if the parent has not improved and returning the child home would be harmful, the permanency plan could be changed to termination of parental rights.

Termination of Parental Rights: There is no right to a jury in a termination proceeding. Although a referee may hear a termination case, the parties have a right to a judge upon request.

The burden of proof is on the party seeking to terminate the parental rights of respondent. Proofs must be clear and convincing that one or more factual grounds exist under MCL 712A.19b(3) to terminate parental rights.

In the case of an Indian child, parental rights shall not be terminated unless there is evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that parental rights should be terminated because continued custody of the child by the parent or Indian custodian will likely result in serious emotional or physical damage to the child.

The factual grounds for termination are any one of the following:

• The child has been deserted under any of the following circumstances:
  • The child's parent is unidentifiable, has deserted the child for 28 or more days, and has not sought custody of the child during that period. For the purposes of this section, a parent is unidentifiable if the parent's identity cannot be ascertained after reasonable efforts have been made to locate and identify the parent.
  • The child's parent has deserted the child for 91 or more days and has not sought custody of the child during that period.
  • The child's parent voluntarily surrendered the child to an emergency service provider under chapter XII and did not petition the court to regain custody within 28 days after surrendering the child.
• The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
  • The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.
  • The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.
  • A nonparent adult's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse by the nonparent adult in the foreseeable future if placed in the parent's home.
• The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
  • The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
  • Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
• The child's parent has placed the child in a limited guardianship under section 5205 of the estates and protected individuals code, 1998 PA 386, MCL 700.5205, and has substantially failed, without good cause, to comply with a limited guardianship placement plan described in section 5205 of the estates and protected individuals code, 1998 PA 386, MCL 700.5205, regarding the child to the extent that the noncompliance has resulted in a disruption of the parent-child relationship.
• The child has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and the parent has substantially failed, without good cause, to comply with a court-structured plan described in section 5207 or 5209 of the estates and protected individuals code, 1998 PA 386, MCL 700.5207 and 700.5209, regarding the child to the extent that the noncompliance has resulted in a disruption of the parent-child relationship.
• The child has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and both of the following have occurred:
  • The parent, having the ability to support or assist in supporting the minor, has failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of 2 years or more before the filing of the petition or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the petition.
  • The parent, having the ability to visit, contact, or communicate with the minor, has regularly and substantially failed or neglected, without good cause, to do so for a period of 2 years or more before the filing of the petition.
• The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
• The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
• Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful.
• There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.
• The parent abused the child or a sibling of the child and the abuse included 1 or more of the following:
  • Abandonment of a young child.
  • Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
  • Battering, torture, or other severe physical abuse.
  • Loss or serious impairment of an organ or limb.
  • Life threatening injury.
  • Murder or attempted murder.
  • Voluntary manslaughter.
  • Aiding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter.
• The parent's rights to another child were terminated as a result of proceedings under section 2(b) of this chapter or a similar law of another state.
• The parent's rights to another child were voluntarily terminated following the initiation of proceedings under section 2(b) of this chapter or a similar law of another state.
• The parent is convicted of 1 or more of the following, and the court determines that termination is in the child's best interests because continuing the parent-child relationship with the parent would be harmful to the child:
  • A violation of First or Second Degree Murder; First-, Second-, Third-, or Fourth Degree Criminal Sexual Conduct or Assault with Intent to Commit Criminal Sexual Conduct.
  • A violation of a criminal statute that includes as an element the use of force or the threat of force and the parent to will can be sentenced as a habitual offender. (A habitual offender has prior felony convictions and may be sentenced more severely that an offender without any prior convictions.)
  • A federal law or law of another state with provisions substantially similar to a crime or procedure listed or described in subparagraph (i) or (ii).

Best Interests of the Child: If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.

The best interests of the child under the Child Custody Act are:

• The love, affection, and other emotional ties existing between the parties involved and the child.
• The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
• The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
• The permanence, as a family unit, of the existing or proposed custodial home or homes.
• The moral fitness of the parties involved.
• The mental and physical health of the parties involved.
• The home, school, and community record of the child.
• The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
• The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
• Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
• Any other factor considered by the court to be relevant to a particular child custody dispute. MCL 722.23