Child Protective Proceedings
Child protection law is complex, confusing, and could result in the termination of your parental rights. Heckler Law Office is here to help you prevent removal or achieve reunification.
The following material is intended to answer some of your questions about child protective proceedings in general. It is not intended to answer specific questions about your particular case, since each case is different.Involvement in a child protective proceeding can be a traumatic experience. Your attorney and the staff at Heckler Law Office are well aware of the emotional involvement of the parties. Though we are not behavioral specialists, we try to relieve your anxiety by attempting to assist in solving the problems that you face during this case.
Constitutional Protection for Family Relationships
Child protective proceedings by their nature involve the intrusion of the state into the affairs of family life. As such, every child protective proceeding implicates important constitutional rights of both the parent and the child. Familial relationships have long been accorded constitutional protection. This unique relationship is an element of the liberty protected by the due process clause and enjoys the status of a fundamental constitutional right. The rights at issue in a child protective proceeding are the reciprocal rights of a parent and his or her child to remain together as a family. The Michigan Supreme Court has observed that “[t]he interest of parent and child in their mutual support and society are of basic importance in our society and their relationship occupies a basic position in this society’s hierarchy of values.”
Unfortunately, a parent risks losing the very important right to the care and custody of his or her children if the parent doesn't have an attorney that values this right and is prepared to zealously advocate for the client. Therefore, choosing the right attorney is one of the most important first steps in successfully reuniting with your children.
Unfortunately, a parent risks losing the very important right to the care and custody of his or her children if the parent doesn't have an attorney that values this right and is prepared to zealously advocate for the client. Therefore, choosing the right attorney is one of the most important first steps in successfully reuniting with your children.
Preliminary Hearings
A preliminary hearing is a formal review of a petition. A preliminary hearing must be held within 24 hours after a child is taken into protective custody or within 24 hours after the submission of a petition alleging severe physical injury or sexual abuse when the child has not been taken into protective custody. When the petition does not allege severe physical or sexual abuse and the child has not been taken into protective custody, the preliminary hearing may be scheduled as the court’s docket permits, although it should be scheduled as soon as possible.
The court must answer two questions at a preliminary hearing. First, the court must determine whether to authorize the petition for filing. If it does, it must determine whether to place the children outside the familial home.
The court may authorize the petition for filing if, after the preliminary hearing, the court determines that there is probable cause to believe (1) that one or more of the allegations in the petition is true and (2) those allegations, if proven, would bring the child within the court’s protective jurisdiction pursuant to statute. The Michigan Rules of Evidence do not apply to this determination, and the court may consider any relevant evidence. A petition is “authorized to be filed” when the petitioner has received the court’s written permission to file the petition formally alleging child maltreatment.
If the court authorizes the petition, it must then determine the child’s placement. Whatever decision the court makes regarding the child’s placement, it must detail its reasons for the finding either on the record or in writing. The law presumes that a child should be placed in the most family-like setting that will meet his or her needs. Thus, on authorizing a petition, the court may release a child to a parent, guardian, or legal custodian. If the court does so, it “may order such reasonable terms and conditions” as are necessary to safeguard the child’s welfare.
Alternatively, the court may order the child placed outside the familial home. The court may order a child placed in foster care after a preliminary hearing if all of the following conditions apply:
The court must answer two questions at a preliminary hearing. First, the court must determine whether to authorize the petition for filing. If it does, it must determine whether to place the children outside the familial home.
The court may authorize the petition for filing if, after the preliminary hearing, the court determines that there is probable cause to believe (1) that one or more of the allegations in the petition is true and (2) those allegations, if proven, would bring the child within the court’s protective jurisdiction pursuant to statute. The Michigan Rules of Evidence do not apply to this determination, and the court may consider any relevant evidence. A petition is “authorized to be filed” when the petitioner has received the court’s written permission to file the petition formally alleging child maltreatment.
If the court authorizes the petition, it must then determine the child’s placement. Whatever decision the court makes regarding the child’s placement, it must detail its reasons for the finding either on the record or in writing. The law presumes that a child should be placed in the most family-like setting that will meet his or her needs. Thus, on authorizing a petition, the court may release a child to a parent, guardian, or legal custodian. If the court does so, it “may order such reasonable terms and conditions” as are necessary to safeguard the child’s welfare.
Alternatively, the court may order the child placed outside the familial home. The court may order a child placed in foster care after a preliminary hearing if all of the following conditions apply:
- placement with a parent would present a substantial risk of harm to the child’s life, physical health, or mental well-being;
- no services can be provided to the family that would keep the child safe in the home;
- continuing the child’s placement in the home is contrary to the child’s welfare;
- reasonable efforts consistent with the situation have been made to maintain the family; and
- conditions in the court-ordered placement will safeguard the child’s health and welfare.
Pretrial Hearings
In a child protective proceeding, the court may convene one or more pretrial conferences. There are two basic purposes for such a hearing: resolving the case without a trial by entering a plea, or preparing for trial.
Pleas
A parent, guardian, or legal custodian may enter a plea admitting to some or all of the allegations in a petition. Some courts require filing an amended petition with only those allegations that will be admitted. Heckler Law Office will always draft an amended petition before advising a client to take a plea and will always seek to include an agreement about disposition in any plea deal. The court rules also permit a plea of no contest (depending on the circumstances). A plea may be offered at any time after the petition is filed as long as the petitioner and the child’s Lawyer-Guardian Ad Litem ("L-GAL") have been apprised of the plea and are provided an opportunity to object before the plea is accepted.
Trial
Any party may, by a timely filed written demand, assert the right to have a judge or a jury hear the case. The demand must be filed by the later of 14 days after the court gives notice of a right to a jury trial or within 14 days after the attorney or L-GAL files an appearance. Generally, the demand must be filed at least 21 days before trial. The right to demand a jury is waived if a demand is not filed timely. The court may excuse a late filing.
The jury in a protective proceeding consists of six individuals. The jury has reached a verdict when five of its members agree. The purpose of the jury is to find facts, that is, to determine whether the court has jurisdiction pursuant to statute. When a jury determines that the facts presented do not bring the child within the jurisdictional provisions of the statute, the court must dismiss the case. The right to a jury is available only at the adjudicative phase of the proceedings. There is no right to a jury trial when a supplemental petition is filed.
While child protective proceedings are generally informal, the adjudication is conducted in a formal manner. At trial, the Michigan Rules of Evidence that apply to civil proceedings generally apply. However, the court rules permit the court to admit the hearsay statements of a child describing acts of child abuse or neglect perpetrated on the child if at a pretrial hearing the court has found that the statements have adequate indicia of reliability. Some forms of child maltreatment require the presentation of complex medical or mental health evidence. The petitioner must prove that the allegations in the petition are true by a preponderance of the evidence. This is a lower standard than the “beyond a reasonable doubt” standard applicable in criminal cases.
The jury in a protective proceeding consists of six individuals. The jury has reached a verdict when five of its members agree. The purpose of the jury is to find facts, that is, to determine whether the court has jurisdiction pursuant to statute. When a jury determines that the facts presented do not bring the child within the jurisdictional provisions of the statute, the court must dismiss the case. The right to a jury is available only at the adjudicative phase of the proceedings. There is no right to a jury trial when a supplemental petition is filed.
While child protective proceedings are generally informal, the adjudication is conducted in a formal manner. At trial, the Michigan Rules of Evidence that apply to civil proceedings generally apply. However, the court rules permit the court to admit the hearsay statements of a child describing acts of child abuse or neglect perpetrated on the child if at a pretrial hearing the court has found that the statements have adequate indicia of reliability. Some forms of child maltreatment require the presentation of complex medical or mental health evidence. The petitioner must prove that the allegations in the petition are true by a preponderance of the evidence. This is a lower standard than the “beyond a reasonable doubt” standard applicable in criminal cases.
Dispositional Phase
After adjudication, if the court asserts jurisdiction, the case moves into an extended dispositional phase. The dispositional phase of a child protective proceeding consists of an initial dispositional hearing, periodic review hearings, and possibly one or more permanency planning and termination of parental rights hearings. In the dispositional phase, the rules of evidence generally do not apply and the court may rely on any relevant and material evidence to the extent of its probative value. Therefore, the court may rely on reports not formally admitted into evidence, including the results of any court-ordered assessments, drug testing, or treatment. The court may even consider a parent’s no contest plea to criminal charges involving child abuse in the dispositional phase.
Before entering a disposition, the court must consider the treatment plan developed by the agency (also called a parent-agency agreement). That plan must outline what efforts were made to preserve the family unit, the recommended placement of the child, efforts made by the parents to achieve the child’s return to the parental home, and a schedule of services aimed at rehabilitating the parent and meeting the child’s needs. The case plan must provide for parenting time at least once per week unless parenting time, even if supervised by the agency, would be harmful to the child’s well-being. However, the question of whether there will be parenting time, as well as the frequency and the duration of any parenting time granted between adjudication and the filing of a supplemental petition seeking the termination of parental rights, is left to the sound discretion of the trial court.
The agency must make reasonable efforts to provide services aimed at reunifying the child with the parent. The parent, for his or her part, has a duty to comply with those services. The phrase “reasonable efforts” is not defined in either the statute or the court rules, however, recent amendments to the Juvenile Code make clear that what constitutes “reasonable efforts” will depend on the facts of the particular case. A parent can be successfully reunited with his or her child when the parent’s demonstrates compliance with the court-ordered services and that he or she has substantially benefited from those services.
Before entering a disposition, the court must consider the treatment plan developed by the agency (also called a parent-agency agreement). That plan must outline what efforts were made to preserve the family unit, the recommended placement of the child, efforts made by the parents to achieve the child’s return to the parental home, and a schedule of services aimed at rehabilitating the parent and meeting the child’s needs. The case plan must provide for parenting time at least once per week unless parenting time, even if supervised by the agency, would be harmful to the child’s well-being. However, the question of whether there will be parenting time, as well as the frequency and the duration of any parenting time granted between adjudication and the filing of a supplemental petition seeking the termination of parental rights, is left to the sound discretion of the trial court.
The agency must make reasonable efforts to provide services aimed at reunifying the child with the parent. The parent, for his or her part, has a duty to comply with those services. The phrase “reasonable efforts” is not defined in either the statute or the court rules, however, recent amendments to the Juvenile Code make clear that what constitutes “reasonable efforts” will depend on the facts of the particular case. A parent can be successfully reunited with his or her child when the parent’s demonstrates compliance with the court-ordered services and that he or she has substantially benefited from those services.
Attorney Representation
Child protective proceedings are difficult and extensive work may be necessary, we may use a team effort: other attorneys, paralegals, and legal assistants in the office are available to assist us. As
your attorney, Christine Heckler, has substantial experience and expertise in
the field of child protection law. Everyone at Heckler Law Office is aware of
the pressures and the personal difficulties faced by a person involved in the
process. We will attempt to ease these pressures and work toward reuniting you with your child. If you have any questions, please do
not hesitate to call or arrange for an appointment.
Image courtesy of phanlop88 at FreeDigitalPhotos.net
HECKLER LAW OFFICE - 915 N MICHIGAN AVE, SUITE 207, HOWELL, MI 48843 - (810) 599-2696