2.3Investigating Allegations of Child Abuse or Child Neglect

Any person who suspects child abuse or neglect may report the matter to the Department of Health and Human Services (DHHS), a law enforcement agency, or the court.¹ MCL 712A.11(1); MCL 722.624; MCL 722.632. 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.² 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.³ See MCL 712A.11(1); MCL 712A.17(5); MCR 3.914(C).

Note: Within 24 hours of receiving a report for suspected child abuse or neglect, the DHHS “shall refer the report to the prosecuting attorney and the local law enforcement agency if the report meets the requirements of [MCL 722.628(3)(a), MCL 722.628(3)(b), or MCL 722.628(3)(c)] or [MCL 722.623(6) or MCL 722.623(9)] or shall commence an investigation of the child suspected of being abused or neglected.” MCL 722.628(1).

Within 24 hours of receiving a report for suspected child abuse or neglect from a reporting person or the DHHS, “the local law enforcement agency must refer the report to the [DHHS] if the report meets the requirements of [MCL 722.623(7)] or must commence an investigation of the child suspected of being abused or neglected or exposed to or who has had contact with methamphetamine production.”⁴ MCL 722.628(1).

In the course of an investigation, the DHHS must:

•determine whether the child is abused or neglected;

•“cooperate with law enforcement officials, courts of competent jurisdiction, and appropriate state agencies providing human services in relation to preventing, identifying, and treating child abuse and child neglect;”

•“provide, enlist, and coordinate the necessary services, directly or through purchasing services from other agencies and professions;” and

•“take necessary action to prevent further abuses, to safeguard and enhance the child’s welfare, and to preserve family life where possible.”⁵ MCL 722.628(2).

“In conducting its investigation, the [DHHS] must seek the assistance of and cooperate with law enforcement officials within 24 hours after becoming aware that 1 or more of the following conditions exist:

(a) Child abuse or child neglect is the suspected cause of a child’s death.

(b) The child is the victim of suspected sexual abuse or sexual exploitation.

(c) Child abuse or child neglect resulting in serious physical harm to the child.

(d) Law enforcement intervention is necessary for the protection of the child, a [DHHS] employee, or another person involved in the investigation.

(e) The alleged perpetrator of the child’s injury is not a person responsible for the child’s health or welfare.^[6]

(f) The child has been exposed to or had contact with methamphetamine production.”⁷ MCL 722.628(3).

Note: “Involvement of law enforcement officials [in an investigation] does not relieve or prevent the [DHHS] from proceeding with its investigation or treatment if there is reasonable cause to suspect that the child abuse or child neglect was committed by a person responsible for the child’s health or welfare.” MCL 722.628(5).

MCL 722.628e(1) requires the DHHS to “implement an investigation checklist to be used in each investigation of suspected abuse and neglect handled by the [DHHS].” The DHHS must not close the investigation until the checklist is complete. MCL 722.628e(2).

On completion of an investigation, “the law enforcement agency or the [DHHS] may inform the person who made the report as to the disposition of the report.” MCL 722.628(15). “If the person who made the report is mandated to report under [MCL 722.623], upon completion of the investigation by the [DHHS], the [DHHS] must inform the person in writing as to the disposition of the case and must include in the information at least all of the following:

(a) What determination the [DHHS] made under [MCL 722.628(12)] and the rationale for that decision.^[8]

(b) Whether legal action was commenced and, if so, the nature of that action.

(c) Notification that the information being conveyed is confidential.” MCL 722.628(16).

“[The Child Protection Law] does not preclude or hinder a hospital, school, or other agency from investigating reported claims of child abuse or neglect by its employees or from taking disciplinary action based upon that investigation against its employees.” MCL 722.632a. Moreover, “[i]f there is reasonable cause to suspect that a child in the care of or under the control of a public or private agency, institution, or facility is an abused or neglected child, the agency, institution, or facility must be investigated by an agency administratively independent of the agency, institution, or facility being investigated[, and] [i]f the investigation produces evidence of a violation of . . . MCL 750.145c [(child sexually abusive material or activity)], and [MCL] 750.520b[–MCL] 750.520g [(criminal sexual conduct)], the investigating agency must transmit a copy of the results of the investigation to the prosecuting attorney of the county in which the agency, institution, or facility is located.” MCL 722.628(7).

A.Investigation Involves Indian Child

“In every investigation of alleged child abuse or neglect, the family must be asked whether the child is known to have American Indian heritage[;] [t]his inquiry must be documented in the case record and appropriate action taken.” DHHS’s Children Protective Services Manual (PSM), Special Case Situations - American Indian Child PSM 716-1, p 1, available at http://www.mfia.state.mi.us/olmweb/ex/PS/Public/PSM/716-1.pdf.

“A complaint of suspected child abuse or neglect of an American Indian child who resides or is domiciled on lands within exclusive jurisdiction of the tribe must not [] be investigated by the [DHHS] unless a special written agreement exists between the tribe and the [DHHS] for responding to after hours and weekend emergencies.” Special Case Situations - American Indian Child PSM 716-1, supra at p 1.

“A complaint of suspected child abuse or neglect involving an American Indian child who resides off the reservation requires that the [DHHS] worker take affirmative steps to determine at this initial stage whether an American Indian child is involved.” Special Case Situations - American Indian Child PSM 716-1, supra at p 1.

B.Interviewing Abused or Neglected Child

1.Interview Child Outside Presence of Suspected Abuser

“During an investigation of suspected child abuse or neglect, the child reported to have been abused or neglected shall not be interviewed in the presence of an individual suspected to have perpetrated the abuse.” MCL 722.628c.

2.Required Procedures for Contacting Child at School

“A school or other institution must cooperate with the [DHHS] during an investigation of a report of child abuse or neglect.” MCL 722.628(8).⁹ “Cooperation includes allowing access to the child without parental consent if access is determined by the [DHHS] to be necessary to complete the investigation or to prevent child abuse or child neglect[.]”¹⁰ Id.

Note: In OAG, 1995, No 6869, p 92 (September 6, 1995),¹¹ the Attorney General found that a school administration may not impose conditions upon a Children’s Protective Services (CPS) worker’s interview of a child at school, and the school may not deny access to a child, require that the CPS worker establish in writing the need to interview the child, require that a school employee be present during the interview, or require parental consent before allowing access to the child.

“The [DHHS]must notify the person responsible for the child’s health or welfare about the [DHHS’s] contact with the child at the time or as soon afterward as the person can be reached.” MCL 722.628(8). The DHHS may delay notifying the person responsible for the child’s health or welfare about the DHHS’s contact with the child “if the notice would compromise the safety of the child or child’s siblings or the integrity of the investigation, but only for the time 1 of those conditions exists.” Id.

Note: The DHHS is not required to notify a nonparent adult¹² after interviewing a child at a school or other institution. See MCL 722.622(cc) (excluding a nonparent adult from its definition of a “[p]erson responsible for the child’s health and welfare” when that term appears in MCL 722.628(8)).

Unless the DHHS has obtained a court order,¹³ “[a] child must not be subjected to a search at a school that requires the child to remove his or her clothing to expose his buttocks or genitalia or her breasts, buttocks, or genitalia[.]” MCL 722.628(10).

3.Videorecording a Child’s Statement

A DHHS employee, an investigating law enforcement agency, a prosecuting attorney or assistant attorney general, or another person designated to do so under a county protocol established under MCL 722.628(6) may take a child’s videorecorded statement. MCL 712A.17b(5). “The videorecorded statement shall be admitted at all proceedings except the adjudication stage instead of the live testimony of the witness.” MCL 712A.17b(5). See In re Martin, 316 Mich App 73, 83-84 (2016) (reversing the trial court’s order of adjudication with respect to the respondent-father and the order terminating his parental rights where the trial court erroneously relied on the child’s videorecorded statement contained in a DVD instead of live testimony to adjudicate the respondent-father).¹⁴

The child must be “an alleged victim of [child abuse or neglect, MCL 712A.17b(2)(b),]” who is under 16 years of age or over age 16 and developmentally disabled.¹⁵ MCL 712A.17b(1)(e).

Note: MCL 712A.17b(7) permits “[a] custodian of the videorecorded statement^[16] [to] release or consent to the release or use of a videorecorded statement or copies of a videorecorded statement to a law enforcement agency, an agency authorized to prosecute the criminal case to which the videorecorded statement relates, or an entity that is part of county protocols established under . . . MCL 722.628.”

“The videorecorded statement shall state the date and time that the statement was taken; shall identify the persons present in the room and state whether they were present for the entire video recording or only a portion of the video recording; and shall show a time clock that is running during the taking of the statement.” MCL 712A.17b(5).

In addition, the questioning of a child during a videorecorded statement “should be full and complete; shall be in accordance with the forensic interview protocol implemented as required by . . . MCL 722.628; and, if appropriate for the witness’s developmental level, shall include, but need not be limited to, all of the following areas:

(a) The time and date of the alleged offense or offenses.

(b) The location and area of the alleged offense or offenses.

(c) The relationship, if any, between the witness and the respondent.

(d) The details of the offense or offenses.

(e) The names of other persons known to the witness who may have personal knowledge of the offense or offenses.” MCL 712A.17b(6).

“MCL 712A.17b(5) requires a trial court to admit videorecordings of a child’s forensic interview during a non-adjudicatory stage,” rather than a “forensic [interviewer’s] interpretation of [the child’s] statements.” In re Brown/Kindle/Muhammad, 305 Mich App 623, 632, 633 (2014).

To protect a child’s privacy, a court must enter a protective order regarding a videorecorded statement that has become part of a court record. MCL 712A.17b(10).

MCL 712A.17b(11) provides that a videorecorded statement:

•“shall not be copied or reproduced in any manner except as provided in [MCL 712A.17b].

•is exempt from disclosure under the freedom of information act[.]

•is not subject to release under another statute[.]

•is not subject to disclosure under the Michigan court rules governing discovery.” (Bullets added).

MCL 712A.17b(11) “does not prohibit the production or release of a transcript of a videorecorded statement.”

C.Physician Suspecting Child Abuse or Child Neglect

When a physician attends to a child suspected of being abused or neglected, the physician must conduct the necessary examinations and include summaries of those evaluations, including medical test results, in a written report¹⁷ to the DHHS.¹⁸ MCL 722.626(2). See MCL 722.623(1), which specifically requires the physician to immediately report suspected child abuse or child neglect to centralized intake (the DHHS’s “statewide centralized processing center for reports of suspected child abuse and child neglect[,]” MCL 722.622(e)).

Note: In addition, MCL 722.626(1) requires an attending physician to notify the person in charge and the DHHS when a child suspected of being abused or neglected is brought to a hospital for outpatient services or admitted to a hospital as an inpatient, and the attending physician determines that releasing the child would endanger the child’s health or welfare.

“If a report is made by a person other than a physician, or if the physician’s report is not complete, the [DHHS] may request a court order for a medical evaluation of the child.”¹⁹ MCL 722.626(3). “The [DHHS] shall have a medical evaluation made without a court order if either of the following occurs:

(a) The child’s health is seriously endangered and a court order cannot be obtained.

(b) The child is displaying symptoms suspected to be the result of exposure to or contact with methamphetamine production.” MCL 722.626(3).

Note: The court, a child placing agency, or the department²⁰ may consent to routine, nonsurgical medical care, or emergency medical and surgical treatment if the minor is placed outside the home. MCL 722.124a(1). See Section 3.3 for a detailed discussion of ordering medical treatment for a child.

See Lavey v Mills, 248 Mich App 244, 256 (2001) (police officer and CPS worker violated MCL 722.626(3) by taking a child to a doctor’s office and authorizing a gynecological examination without a court order and without evidence that the child’s health was seriously endangered).

D.Use of Court Orders in Investigating Suspected Child Abuse or Child Neglect

After a petition is filed initiating child protective proceedings, the court may make orders to further investigate the allegations of abuse or neglect, including an evaluation or examination of a child or a parent, guardian, or legal custodian by a physician, dentist, psychologist, or psychiatrist. MCL 712A.12; MCR 3.923(B).²¹ 

However, “a trial court in a child protection proceeding [does not] have the authority to order a minor child alleging sexual assault to submit to a court-ordered forensic sexual-assault examination[.]” In re Bell, 341 Mich App 596, 602 (2022) (explaining that a complainant’s allegation of sexual assault “does not put his or her physical condition at issue [as does] a plaintiff alleging physical injury in a tort suit”). In Bell, the respondent petitioned the trial court to order the complainant to undergo an independent medical examination (IME) to determine whether there was evidence that the complainant had been sexually assaulted. Id. at ___. The trial court erred in its analysis of the factors in Mathews v Eldridge, 424 US 319 (1976), to balance the interests involved—(1) the respondent’s “fundamental interest in the companionship, custody, care, and management of [her child], an element of liberty protected by the due process provisions in the federal and state Constitutions,” (2) the child’s “interest in her own general welfare, which includes her interests in privacy and bodily autonomy,” and (3) the state’s “legitimate interest in safeguarding the health and welfare of children.” In re Bell, ___ Mich App at ___ (quotation marks and citation omitted). “Balancing the highly invasive nature of an IME and its potentially harmful effect on an unconsenting minor against the limited evidentiary value that an IME may provide [given the facts of the case], the trial court erred by concluding that a court-ordered IME to look for evidence of sexual assault was necessary to afford respondent-mother the due process to which she was entitled.” Id. at ___.

Note: A request for court action to protect a child must be by petition, unless exigent circumstances exist. MCR 3.961(A). See Chapter 3 for a detailed discussion of protective custody of a child, and Chapter 6 for a detailed discussion of petitions.

E.Category Classifications and DHHS Required Response Following Investigation

Based on the results of its completed investigation, the DHHS must classify the allegation of child abuse or child neglect under a single category listed in MCL 722.628d.²² MCL 722.628(12). The DHHS must also “determine whether the child abuse or child neglect must be classified as a central registry case.” Id.

The categories appearing in MCL 722.628d, and the response required by the DHHS for each category, are:

•Category V. No services are needed. MCL 722.628d(1)(a). After conducting its field investigation, an allegation is classified as category V if “the [DHHS] determines that there is no evidence of child abuse or child neglect.” Id.

•Category IV. Community services are recommended. MCL 722.628d(1)(b). An allegation is classified as category IV after the DHHS has conducted its field investigation when “the [DHHS] determines that there is not a preponderance of evidence of child abuse or child neglect, but the structured decision-making tool indicates that there is future risk of harm to the child.” Id. Allegations classified as category IV require the DHHS to “assist the child’s family in voluntarily participating in community-based services commensurate with the risk to the child.” Id.

•Category III. Community services are needed. MCL 722.628d(1)(c). An allegation is classified as category III when “[t]he [DHHS] determines that there is a preponderance of evidence of child abuse or child neglect, and the structured decision-making tool indicates a low or moderate risk of future harm to the child.” Id. Allegations classified as category III require the DHHS to “assist the child’s family in receiving community-based services commensurate with the risk to the child.” Id. “If the family does not voluntarily participate in services, or the family voluntarily participates in services, but does not progress toward alleviating the child’s risk level, the [DHHS] must consider reclassifying the case as category II.” Id.

•Category II. Child protective services are required. MCL 722.628d(1)(d). An allegation is classified as category II when “[t]he [DHHS] determines that there is evidence of child abuse or child neglect, and the structured decision-making tool indicates a high or intensive risk of future harm to the child.” Id. In category II cases, “[t]he [DHHS] must open a protective services case and provide the services necessary under [the Child Protection Law].” Id.

•Category I. A court petition is required. MCL 722.628d(1)(e). An allegation is classified as category I when the DHHS, after having conducted its field investigation, determines that (1) there is evidence of child abuse or child neglect, and (2) any of the following are true:

•Another provision of the Child Protection Law requires a court petition. MCL 722.628d(1)(e)(i).

•A petition for removal of the child is needed because the child is not safe. MCL 722.628d(1)(e)(ii).

•The case was previously classified as category II, and the child’s family has failed to voluntarily participate in services. MCL 722.628d(1)(e)(iii).

•There is a violation involving the child for any of the following crimes:

•assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520g,

•a felonious attempt to commit or a felonious conspiracy to commit criminal sexual conduct,

•an assault punishable as a felony,

•child sexually abusive material or child sexually abusive activity, MCL 750.145c,

•or first- or second-degree child abuse, MCL 750.136b. MCL 722.628d(1)(e)(i)-(iv). See also MCL 722.628a(1)(b)-(d), and MCL 722.628a(1)(f).

According to MCL 722.628d(2), when responding to a category I classification, the DHHS must do both of the following:

“(a) If a court petition is not required under another provision of [the Child Protection Law], submit a petition for authorization by the court under . . . [MCL 712A.2(b)].

(b) Open a protective services case and provide the services necessary under [the Child Protection Law].” MCL 722.628d(2).

.

“If a case involves a child’s death, serious physical harm of a child, or sexual abuse or sexual exploitation of a child, the [DHHS] must refer the case to the prosecuting attorney^[23] for the county in which  the child is located.” MCL 722.628b(1).

In addition, the DHHS must refer a central registry case to the prosecuting attorney²⁴ for the county where the child is located if the case involves “a child’s exposure to or contact with methamphetamine production[.]” MCL 722.628b(2).