Why Can CPS Remove My Child from My Home During a Sex Crime Investigation in Michigan?
Child Protective Services (CPS) moves swiftly and can petition the court for ex parte removal without the presence of either parent. Convincing the judge or referee not to authorize the petition at the preliminary hearing is compulsory to obtain a dismissal early. Knowledge and preparation are instrumental in developing a strong defense.
Grable & Associates has been specializing in the legal defense of sex crimes and child custody issues for nearly 20 years. We have the experience, understanding, and knowledge to help you obtain a favorable outcome and see your family reunited and restored. In this section, we are going to discuss the law and the three methods of removal of children from their home used by Child Protective Services or law enforcement.
Child Protective Services Investigation
According to MCL 722.623, medical professionals, law enforcement officers, counselors, and school officials are required to report suspected incidences of child abuse or neglect. Additionally, under MCL 522.520(2), the friend of the court is required to notify Child Protective Services of procedural developments in the case until a final order. Therefore, if a person is under investigation or has been charged with a sex crime, then there will likely be a mandatory complaint filed with Child Protective Services. After a complaint is received, it will be evaluated as part of the intake process. The only requirement to initiate a field investigation is that the alleged victim was under 18 years of age and the alleged offender is responsible for the child’s welfare.
A Child Protective Services investigation is required to begin within 24 hours of the initial complaint, and will include interviews with children at their home. If after the investigation Child Protective Services determines there is a preponderance of evidence that abuse or neglect occurred and the child is not safe, then the case will be classified as a category one. Once a case is designated as a category one a court petition for removal of the child from their home is necessary.
Our Child Protective Services attorneys objective is to prevent a petition from being filed to avoid charges and keep the child in their home. If a petition has already been filed, then the focus shifts to getting a dismissal at the preliminary hearing, or winning the case at trial. We work with clients at all stages of Child Protective Services investigations and protective custody proceedings.
There are three primary ways that a child can be removed from their home:
- Without a court order - Under exigent emergency circumstances by law enforcement without a court order (CPS cannot use this method)
- Petition to court - The Department of Health and Human Services may be required to file a petition for removal and to file for termination of parental rights at the initial disposition
- Ex parte petition for removal and placement – The Department of Health and Human Services may file a petition seeking an ex parte order for removal and placement
Removal Without a Court Order: Exigent Circumstances
If there is reasonable cause to believe that a child is at substantial risk of harm and the child’s immediate removal from those surroundings are necessary to protect the child’s health and safety, then a law enforcement officer can remove the child from their home without a court order.
MCL 712A.14a allows a law enforcement officer to remove a child from the child’s home under certain circumstances without a petition or a court order. The law enforcement officer is allowed to remove a child without a court order if the officer’s investigation satisfies the two requirements enumerated in 712A.14a. First, there must be a reasonable cause to believe that the child is at substantial risk of harm or is in surroundings that present an imminent risk of harm. Second, the child’s immediate removal from the situation is necessary to protect the child’s health and safety. If the officer believes these two conditions are met, then he or she can remove the child from their home without violating the parent or child’s due process rights.
Law Enforcement Officer’s Responsibilities to the Parent and Child
If an officer takes a child into protective custody under either of MCL 712A.14a or MCR 3.963, then the officer is required to immediately report the removal to the Department of Health and Human Services. It is illegal for a police officer to confine a child under these circumstances to a detention center at this juncture until the Department of Human Services arrives. If the child must be kept in a detention facility, then he or she must be kept alone where the child will have no contact with people in jail.
When a law enforcement officer takes a child into protective custody, he or she is obligated under MCR 3.963(C)(2) to immediately attempt to notify the parent, guardian, or legal custodian. Additionally, the parent or guardian must be informed of the date, time, and location of the scheduled preliminary hearing or the emergency removal hearing.
The officer also must file a custody statement with the court that includes both a specific detailed account that led to the emergency removal, and the names and times of the people notified, or why he or she failed to notify the parties. If it is decided that the child will not be released back to their home, then the Department of Health and Human Services is required to immediately contact a judge that is designated to receive such calls to seek an ex parte order for placement of the child.
Who Can Remove a Child Without a Petition or Court Order?
Only law enforcement officers can remove a child from their home without a court order. A law enforcement officer is defined under MCL 712A.14a(4) as a local police officer, sheriff or deputy sheriff, state police officer, county agent, or a probation officer of a court of record. Thankfully, this does not include Child Protective Services workers, so no matter what a caseworker may tell you, a Child Protective Services worker cannot take your child without the due process of a petition and an order signed by a judge.
Ex Parte Petition for Removal and Placement
Ex parte is a Latin term that means “for one party.” An ex parte petition means that the entire proceeding is conducted without the presence of either of the parents. An ex parte petition for removal and placement is when the court reviews the petition and issues an order to remove the child and place him or her in protective custody without the presence of either parent.
The Department of Health and Human Services may petition the court seeking an ex parte removal and placement order for a child before a preliminary hearing is held. First, the court receives the petition for removal, and reviews the petition, affidavits, and documents. If the judge believes the petition meets the necessary criteria, then the judge may issue an ex parte removal and placement order. The judge can also include permission for law enforcement to enter into the child’s house without a warrant to remove the child. An ex parte order is considered a temporary measure, because a formal preliminary hearing is required to be scheduled within 24 hours of the judge or referee signing an order for removal and placement.
In Michigan, the Department of Health and Human Services can submit a petition for removal and placement seeking an ex parte order electronically, and the judge can sign the order and send it back electronically without the presence of either parent or conducting a hearing.
When Can the Judge Issue an Ex Parte Protective Custody and Placement Order?
There are five requirements enumerated in MCL 712A.14b necessary for a judge to grant an ex parte removal and placement order. Additionally, three of the five criteria require a judicial determination on the record. The judge or referee reviews the petition, affidavit of facts, and documents submitted to the court before making an ex parte decision. If the court finds reasonable cause that the five requirements in MCL 712A.14b exist, then the court may issue an ex parte child protective custody and placement order.
First, there must be reasonable cause to believe that the child is at a substantial risk of harm, or is in a surrounding that presents an imminent risk of harm and removal is necessary to protect the health and safety of the child. Second, the circumstances warrant issuing an ex parte order until the preliminary hearing. A situation warrants an ex parte action by the court when the situation appears to demand immediate action. Third, reasonable efforts were made to prevent or eliminate the need for removal of the child, and fourth, there is no other adequate remedy except for removal of the child. Fifth, remaining in the home is contrary to the health and welfare of the child.
Necessary Judicial Findings to Order Removal and Placement of a Child
The first judicial determination the judge must find is a substantial harm that necessitates immediate removal. This finding is the central determination that must be made to order immediate removal of the child from his or her home. The other two determinations are both required under Title IV-E of the Social Security Act codified in 42 USC 670. Title IV-E is a federal funding program focused on providing safe and stable out-of-home care for children. Title IV-E funds are available for monthly maintenance payments for daily care and supervision of eligible children. If the judge or referee does not make the necessary findings, then the child won’t be eligible for the program.
The second determination the court must find is that allowing the child to remain in the home would be contrary to the health and safety of the child’s welfare. Under 45 CFR 1356.21(c)-(d) for Title IV-E, the court is required to explicitly document the judicial determination that remaining in the home would be contrary to the child’s welfare at the first related judicial hearing. According to MCR 3.903(C)(4), contrary to a child’s welfare means situations where the child’s life, physical health, or mental well-being is unreasonably placed at risk. Findings must include specific facts of conditions that make the home an unsafe place requiring removal of the child. If the court does not explicitly document this finding at the first related hearing, then the child will not be eligible for Title IV-E funding for foster care maintenance payments.
The third judicial finding that must be made on the record is that reasonable efforts were made to prevent or eliminate the need for removal. This determination does not need to be made before the court issues a removal and placement order, because the federal regulations for providing federal funding only requires the finding to be made within 60 days of removing the child from the home. Therefore, a judicial determination of reasonable efforts to prevent or eliminate the need for removal is not necessary before the judge signs an ex parte order for removal and placement.
Procedural Issues Worth Noting
According to MCR 3.963(B)(3), the court must inquire whether a member of the child’s immediate or extended family is available to take custody of the child until a preliminary hearing is held. The law requires the background check and central registry clearance to be obtained within seven days of placement with a relative. Therefore, a child may be placed with a relative immediately pending a preliminary investigation. Additionally, the preliminary hearing is required to be scheduled within 24 hours of the judge or referee ordering removal and placement. Therefore, with the help of an experienced and knowledgeable attorney, a person can refute the allegation and be home the next day after spending one night with a relative.
Child Placement at a Preliminary Hearing
If a petition for removal is filed, then the court will schedule a preliminary hearing. There are two significant decisions the court must make at the preliminary hearing. First, whether the court should authorize the petition to allow the claim for abuse or neglect to be formally filed with the court clerk. If the petition is authorized, then the second decision that must be made is placement of the child. If the petition is denied, then the case is dismissed and the child is automatically released home to the parent or guardian. However, if the petition is authorized, then the court must make a placement decision.
According to MCL 712A.13a(5), if a petition is authorized, then certain statutorily defined conditions must be met before the court may release the child to the parent or guardian. The
statute requires that the court make a finding that release of the child back to the parents is not contrary to the welfare of the child. MCR 3.903(C)(4) defines the “contrary to the child’s welfare” as a situation where the child’s life, physical health, or mental well-being is unreasonably placed at risk. Judicial findings of a home that is contrary to the child’s welfare include specific conditions that render the home as an unsafe place for the child.
The other statutory requirement for releasing the child to the parents when the petition has been authorized is applicable when the petition alleges that the parent or guardian abused the child.
If the petition alleges that the parent or guardian abused the child, then the court cannot release the child to the parents unless it finds adequate measures to safeguard the child from the risk of harm to the child’s life, physical health, or mental well-being. If the court finds these statutory conditions are met, then it may release the child to the parent or guardian pending the trial.
Placement with a Relative of the Child
The court is required to inquire about potential immediate or extended family relatives of the child for potential placement until the trial. According to MCL 722.954a(5), the child placing agency must give special consideration and preference to the child’s relatives who are willing and fit to care for the child and can meet the child’s developmental, emotional, and physical needs. If a child is placed in the care of a relative, then that relative is known as a “noncustodial parent.” To qualify as a noncustodial parent the person must pass a criminal background check and obtain a central registry clearance. However, the law specifies that the background check and central registry clearance must be obtained within seven days of placement with a relative, so the child can be ordered to be placed with a relative immediately.
Temporary Placement with Foster Care
If the court authorizes the petition, then the court can order a temporary transfer of custody to the child supervising agency for placement. The child supervising agency is the Michigan Department of Health and Human Services, and it administers placement of children into temporary housing and foster care. 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. The child supervising agency may place the child in a temporary housing facility until the adjudication.
The court can also order the child into temporary foster care if the petition is authorized and the following five conditions are met:
- Custody of the child with the parent or guardian presents a substantial risk of harm to the child’s life, physical health, or mental well-being
- There are no other community services available or other alternatives except removal of the child to adequately safeguard the child from substantial risk of harm to the child’s life, physical health, or mental well-being
- Continuing the child’s residence in the home is contrary to the child’s welfare
- Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child
- Conditions of child custody away from the parent or guardian are adequate to safeguard the child’s health and welfare.
If the conditions are met, the court may order temporary placement of the child into foster care pending adjudication.
Temporary Placement Review Hearing
According to MCR 3.972(A), if a child has been removed from the home, a review hearing must be held within 182 days even if the adjudication has not been completed before the end of the 182 days period.
Removal and Foster Care after Adjudication – Permanent Placement
If a person is found guilty of being an unfit parent at the adjudication hearing, then the child comes under the jurisdiction of the court. The child may be allowed to live with the parent or guardian, or placed with a relative or in foster care. If the child is placed with a relative or in foster care, then the next opportunity to have the child return home is at the initial dispositional review hearing. The hearing must be held within 28 days of the verdict. The judge will issue an initial dispositional order that may return the child, or place the child with a relative or in foster care. If the child remains in foster care or is placed with a relative, then the next opportunity for the child to return home is at the dispositional review hearing. The dispositional review hearing will be 91 days after the initial dispositional review hearing. The judge may release the child or modify the placement. Dispositional review hearings will be held 91 days apart for the first year.
If after a year the child is not returned home, then the court will schedule a permanency planning hearing 182 days after the last dispositional review hearing. At a permanency planning hearing the judge will determine plans for both the child returning home and when a termination of parental rights hearing should be held. Plans for if and when a permeant placement with an adoption agency will be made.
Grabel & Associates Approach to Child Custody During Investigation of a Sex Crime
Grabel & Associates will work with you no matter which stage in the legal process you are in. If you are currently being investigated by Child Protective Services, then our goal is to avoid a petition for removal to avoid legal proceedings. If Child Protective Services has filed a petition for removal, the objective becomes to convince the court to deny authorization for the petition, so the case will be dismissed and the children returned home. If the petition has already been authorized, then our primary objective is to prepare for trial to win. Grabel & Associates works diligently with clients, prosecutors, and the courts to avoid having convictions and reunite and restore families. We are available 24 hours a day, seven days a week. Call Grabel & Associates today at 1-800-883-2138 to schedule your free consultation.