Preliminary Hearing of Child Protective Services During a Sex Crime
Any person in the state of Michigan who suspects child abuse or neglect may be taking place can report the matter to the Department of Health and Human Services, Child Protective Services, law enforcement, or the police. According to MCL 722.628(1), Child Protective Services has 24 hours to begin an investigation. If a Child Protective Services caseworker believes a preponderance of evidence exists that abuse or neglect of a child has occurred and that the child needs to be removed, then either a Child Protective Services worker or the prosecuting attorney acting on behalf of the Department of Health and Human Services will file a petition for removal.
Once a petition is received, a preliminary hearing will be scheduled to determine if probable cause exists in at least one of the allegations. The preliminary hearing in a child custody case for abuse and neglect is a pivotal stage in the court proceedings.
There are two critical questions that are decided at the preliminary hearing. First, the judge or referee are required to decide whether to authorize the petition. If the petition is authorized, then the petitioner can formally file a petition with the court clerk and proceed to trial for abuse and neglect. If the judge or referee does not authorize the petition, then the case will be dismissed and the child released back to the parents or guardian.
The second critical question decided at a preliminary hearing for child custody is where should the child be placed? If the petition is not authorized, then according to MCL 712.14(2), the child must be released to his or her parents or guardian. If the court does authorize the petition, then it must also decide whether to order pretrial placement of the child.
Purposes of a Preliminary Hearing:
- Determine whether to authorize the petition
- If the petition is granted, determine placement of the child
- Determine the jurisdictional facts
- Initiate consideration of potential relatives the child could be placed with
- Assess the risk to the child
- Consider a request for immediate protective placement
- Begin the discovery process
The preliminary hearing is required to be scheduled to begin within 24 hours of a child being taken into protective custody by law enforcement under exigent circumstances or by an ex parte removal order. However, the hearing can be adjourned for up to 14 days if good cause is shown. A preliminary hearing can only be adjourned for good cause after the court takes into account the best interest of the child, and the adjournment must be for as short of time as possible. If the hearing is not scheduled to begin within 24 hours of the child being placed in protective custody, then the child must be released unless there was a proper adjournment for good cause.
Lawyer Guardian Ad Litem and the Prosecutor
Under MCR 3.965(B)(3), the child is required to be represented by lawyer guardian ad litem at the preliminary hearing. A lawyer guardian ad litem is appointed by the court, and appears to protect the rights of the child. There is also a possibility of a prosecutor appearing at a child custody preliminary hearing. Either the Department of Health and Human Services or the court requests a prosecutor to appear. Additionally, a referee presiding over a preliminary hearing is required to be a licensed attorney. Therefore, obtaining your own experienced Child Protective Services lawyer counsel is a good step towards obtaining a favorable outcome.
Preliminary Hearing Procedures
The law under MCR 3.965(B)(4) requires that the judge or referee read the allegations contained in the petition in open court, unless the respondent chooses to waive the reading. The court is required to confirm that the respondent has a copy of the petition.
The court will also advise a parent or guardian of the right to assistance by an attorney at the preliminary hearing as well as at any necessary subsequent hearings. The right to assistance of counsel for child custody preliminary hearings and any necessary subsequent hearings is codified in MCR 3.915(B)(1)(a). The parent or guardian will also have an opportunity at the preliminary hearing to respond to the allegations by denying or admitting the allegations, and the parent or guardian will have an opportunity to make a statement explaining the situation or justifying the circumstances.
The Decision: Dismissal, Referral for Services, or Proceeding to Trial
The judge will rule if the petition should be dismissed or if the case should be referred for community services. If the court dismisses the petition or refers the case out for alternative community services, then the child will be released back to the parents. If the court authorizes the petition, then the parent or guardian has the right to proceed to trial.
If the court does not dismiss the petition, then it is still possible to win the case at pretrial or trial by challenging the allegations contained in the petition. The trial is held in front of a referee. A referee who presides over the adjudication portion of the proceedings is required to be a licensed attorney, and is similar to a magistrate that specializes in family law. However, a parent may exercise their right under MCR 3.911 or MCR 3.912 to request a trial by jury or have a judge preside over the case. A parent or guardian should consult with their attorney to discuss the best course of action based on their particular situation.
If only one parent is named in the petition, then the other parent is called a “nonrespondent parent.” The nonrespondent parent has a right to request that the judge or referee order the child to be placed with him or her at his or her home. If the alleged offender lives with a nonrespondent parent, then a judge or referee may order removal of the alleged offender from the child’s home so that the child can remain home with the nonrespondent parent.
Authorization of the Petition
The most crucial decision and at a preliminary hearing is whether to authorize the petition. A petition may only be authorized after the court makes a judicial determination that there is probable cause that the allegations contained in the petition are true, and if those facts were proven at trial would qualify as abuse or neglect under MCL 712.A2(b). The court must find probable cause that the allegations contained in the petition could be true, and if the allegations were proven in court then it would qualify as abuse or neglect under MCL 712.A2(b).
The respondent parent may choose to waive the probable cause determination which means that they will not force the petitioner to present evidence that probable cause exists. There are several limited circumstances where this might be advantageous. It is essential to discuss litigation decisions and strategy with your attorney.
If the respondent parent does not waive the probable cause determination, then the petitioner may present witnesses to prove probable cause as to the truth of the allegations claimed in the petition. However, the respondent has an opportunity to cross examine those witnesses, and if a rebuttal witness is deemed necessary to counter evidence presented, then the respondent may subpoena witnesses. A preliminary hearing that is aggressively contested can turn into a miniature trial.
Placement of the Child
If the court dismisses the petition, then the child is automatically released back into the care and custody of the parent or guardian. However, if the court does authorize the petition, then the child can still be released to the parents if the statutory requirements under MCL 712A.13a(5) are met. The statute requires that if the petition contains allegations that the parent or guardian abused the child, then the court cannot release the child to the parent or guardian unless, it finds that the conditions of custody are adequate to safeguard the child from the risk of harm to the child’s life, physical health, or mental well-being. Additionally, before the court can release the child back to the parents or guardian it must find that it is not contrary to the welfare of the child.
If the petition is authorized, then the court must decide where the child should be placed. If the court does not release the child to the parents or guardian, then the court may place order placement of the child to the child supervising agency. The child supervising agency is the Michigan Department of Health and Human Services. The supervising agency is responsible for administering placement of children in temporary housing and foster care.
The court is required to investigate potential immediate or extended family members of the child who may qualify to care for the child before the preliminary hearing. A relative of the child’s must pass a criminal background check and obtain a central registry clearance to qualify to be a noncustodial parent or the child.
Order to Remove a Parent or Guardian from the Child’s Home
Another potential outcome for a preliminary hearing is for the judge or referee to order removal of a parent or guardian accused of child abuse or neglect from the child’s home. The court may order an alleged offender not to return to the child’s home if it believes that removal is necessary to protect the physical health or mental well-being of the child.
When a court orders a parent or guardian not to return to a child’s home, the court must do three things. First, the judge or referee must authorize the petition alleging abuse or neglect. Next, the court must find probable cause that the alleged offender committed the alleged offense of abuse or neglect. Finally, the judge or referee must find on the record that the presence of the alleged offender in the child’s home presents a substantial risk of harm to the child’s life, physical health, or mental well-being. However, the court may also consider whether the alleged offender is the homeowner or is married to the other parent in making its decision.
Additional Conditions for Removal of a Parent or Guardian
In addition to the order for removal of the parent or guardian from the child’s home, the court may add other conditions to the order. According to MCL 712A.13a(8), the court may include any reasonable term or condition necessary for the child’s physical or mental well-being necessary to protect the child. The judge or referee is also permitted to order the alleged offender to surrender any and all firearms or weapons to local law enforcement. Finally, the court may require the alleged offender to pay appropriate support to maintain a suitable home environment for the child during the duration of the order. If a law enforcement officer has reasonable cause to believe that a person who was ordered to be removed from the child’s home is acting in violation of the court order, then the officer can arrest the person without a warrant.
Contact Grabel & Associates to Schedule a Free Consultation and Discuss Your Case
Child custody issues are complex, the complexity is further compounded by the addition of a sex crime charge for criminal sexual conduct, public indecency, or criminal sexually abusive materials. If you are facing a Child Protective Services investigation or a child custody dispute and an investigation of charge for a sex crime, then you need an attorney who understands how it all fits together. Grabel & Associates provides clients with cohesive and comprehensive approach to legal defense. We will work with you no matter what stage in the process you are at to determine the best course of action to obtain a favorable outcome. Grabel & Associates is available 24 hours a day, seven days a week. Contact us online or call us at 1-800-883-2138 to schedule your free consultation today.