Chapter 3: Obtaining Protective Custody and Ordering Medical Treatment for a Child

In this chapter. . .

This chapter discusses taking temporary protective custody of a child pursuant to the Juvenile Code, the Child Protection Law, the Safe Delivery of Newborns Law, and related court rules. It includes discussions of the procedures required before a child is placed with relatives pending a preliminary hearing, for temporarily placing the child pending a preliminary hearing, and after a child has been placed in protective custody.

This chapter also sets forth law governing a child’s medical treatment and medical examinations, withdrawal of life support, religious objections to a child’s medical examination or treatment, and consent to and use of psychotropic medications.

For a more complete discussion of placements, see Chapter 8. For a discussion of the emergency removal of a child who was not initially placed outside the home or who was returned home from foster care, see Section 15.8.

3.1Acquiring Physical Custody of a Child

A request for court action to protect a child must be by petition, unless exigent circumstances exist. MCR 3.961(A). See Chapter 7 for a detailed discussion of petitions.

In an effort to provide trial courts with a quick practical guide through the process of issuing orders for protective custody, the State Court Administrative Office (SCAO) developed the Order for Protective Custody—Judicial Bench Card. See CWS Toolkit for Judges and Attorneys (Child Welfare Services).

A.Custody of a Child With Court Order

A judge or referee does not always receive a petition at the time a request for removal is made. In emergency situations, the court’s permission may be sought for a child’s removal before the petition is filed.

1.Court Order

“The court may issue a written order,[1] electronically or otherwise, authorizing a child protective services worker, an officer, or other person deemed suitable by the court to immediately take a child into protective custody when, after presentment of a petition or affidavit of facts to the court, the court has reasonable cause to believe that all the following conditions exist, together with specific findings of fact:[2]

(a) The child is at substantial risk of harm or is in surroundings that present an imminent risk of harm and the child’s immediate removal from those surroundings is necessary to protect the child’s health and safety. If the child is an Indian child who resides or is domiciled on a reservation, but is temporarily located off the reservation, the child is subject to the exclusive jurisdiction of the tribal court. However, the state court may enter an order for protective custody of that child when it is necessary to prevent imminent physical damage or harm to the child.

(b) The circumstances warrant issuing an order pending a hearing in accordance with:

(i) MCR 3.965[3] for a child who is not yet under the jurisdiction of the court, or

(ii) MCR 3.974(C)[4] for a child who is already under the jurisdiction of the court pursuant to MCR 3.971 or [MCR] 3.972.[5] 

(c) Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child.

(d) No remedy other than protective custody is reasonably available to protect the child.

(e) Continuing to reside in the home is contrary to the child’s welfare.” MCR 3.963(B)(1). See also MCL 712A.14b(1), which contains substantially similar language.

The court may include in the written order its authorization for entry of certain premises to remove the child. MCR 3.963(B)(2).

2.Title IV-E Funding

The court must make a finding that it is contrary to a child’s welfare to remain in the home in order to establish a child’s eligibility for federal participation in the costs of foster care under Title IV-E of the Social Security Act, 42 USC 670 et seq. 42 USC 672(a)(1)-(2).6 See Chapter 14.

According to MCR 3.903(C)(4), contrary to a child’s welfare “includes, but is not limited to, situations in which the child’s life, physical health, or mental well-being is unreasonably placed at risk.” Specifically, 45 CFR 1356.21(c)-(d) indicates:

“(c) Contrary to the welfare determination. Under [42 USC 672(a)(1)], a child’s removal from the home must have been the result of a judicial determination (unless the child was removed pursuant to a voluntary placement agreement) to the effect that continuation of residence in the home would be contrary to the welfare, or that placement would be in the best interest, of the child. The contrary to the welfare determination must be made in the first court ruling that sanctions (even temporarily) the removal of a child from home. If the determination regarding contrary to the welfare is not made in the first court ruling pertaining to removal from the home, the child is not eligible for title IV-E foster care maintenance payments for the duration of that stay in foster care.[7]

(d) Documentation of judicial determinations. The judicial determination[] regarding contrary to the welfare . . . must be explicitly documented and must be made on a case-by-case basis and so stated in the court order.

(1) If the . . . contrary to the welfare judicial determination[ is] not included as required in the court orders identified in paragraph[] . . . (c) of this section, a transcript of the court proceedings is the only other documentation that will be accepted to verify that [this] required determination[ has] been made.

(2) Neither affidavits nor nunc pro tunc orders will be accepted as verification documentation in support of . . . contrary to the welfare judicial determinations[.]

(3) Court orders that reference State . . . law to substantiate judicial determinations are not acceptable, even if [State] law provides that a removal must be based on a judicial determination that remaining in the home would be contrary to the child’s welfare . . . .” (Emphasis added).

B.Custody of a Child Without Court Order

An officer may immediately take a child into protective custody without a court order if:

•“there is reasonable cause to believe that [the] child is at substantial risk of harm or is in surroundings that present an imminent risk of harm[,]” and

•“the child’s immediate removal from those surroundings is necessary to protect the child’s health and safety[.]” MCL 712A.14a(1). See also MCR 3.963(A)(1), which contains substantially similar language.

Note: “If the child is an Indian child who resides or is domiciled on a reservation, but is temporarily located off the reservation, the officer may take the child into protective custody only when necessary to prevent imminent physical damage or harm to the child.” MCR 3.963(A).

“An officer who takes a child into protective custody under [MCL 712A.14a or MCR 3.963(A)] shall immediately notify the [DHHS].”8 MCL 712A.14a(1); MCR 3.963(A)(2). “While awaiting the arrival of the [DHHS], the child shall not be held in a detention facility.” MCL 712A.14a(1); MCR 3.963(A)(2).

“If a child taken into protective custody under [MCR 3.963(A)] is not released, the [DHHS] shall immediately contact the designated judge or referee as provided in [MCR 3.963(D)] to seek an ex parte court order for placement of the child pursuant to [MCR 3.963(B)(4)].”9 MCR 3.963(A)(3).

For purposes of MCL 712A.14a, an officer means a “local police officer, sheriff or deputy sheriff, state police officer, or county agent or probation officer of a court of record.” MCL 712A.14a(4). See also MCR 3.903(A)(17), which defines an officer as “a government official with the power to arrest or any other person designated and directed by the court to apprehend, detain, or place a minor.”

Note: A Children’s Protective Services (CPS) worker is not included under the definition of an officer under MCR 3.903(A)(17), nor does a CPS worker have authority under MCL 712A.14a(1) to remove a child from his or her home. Thus, a CPS worker must not remove a child from his or her home or arrange placement of a child outside the home without a court order. See the DHHS’s Children’s Protective Services Manual (PSM), Removal and Placement of Children PSM 715-2, p 1.10

C.Custody of a Child Admitted to a Hospital

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, the attending physician must notify the person in charge and the DHHS. MCL 722.626(1). The person in charge may keep the child in protective custody until the court’s next regular business day. Id.

Once notified, the court must do one of the following:

(1) order that the child remain in the hospital or some other suitable place.

(2) order that the child be placed in custody pending a preliminary hearing under MCL 712A.14. See Section 3.2(E) for a discussion of required procedures after a child is in protective custody, and Section 8.2 for a discussion of available placements.

(3) order that the child be released to the child’s parent, guardian, or custodian. MCL 722.626(1).

Note: When a physician sees a child suspected of being abused or neglected, the physician must conduct the necessary examinations and include summaries of those evaluations in a written report to the DHHS. MCL 722.626(2). See Section 2.3(C) for a detailed discussion.

D.Custody of a Child Under the Safe Delivery of Newborns Law

The Safe Delivery of Newborns Law permits a parent to surrender custody of a newborn and leave the newborn with an emergency service provider without expressing any intent of returning for the newborn. See MCL 712.1(2)(n). The Safe Delivery of Newborns Law, MCL 712.1 et seq., governs the procedures for surrendering a newborn. According to MCL 712.1(2)(k), a newborn is “a child who a physician reasonably believes to be not more than 72 hours old.”

Note: See Section 4.2(D) for the court’s jurisdiction over a newborn child surrendered to an emergency service provider, Section 7.9(A) for appointment of a Lawyer-Guardian Ad Litem, and Section 8.14 for information on the placement of a child under the Safe Delivery of Newborns Law.

An emergency service provider is any of the following:

(1) A uniformed or otherwise identifiable on-duty fire department employee or contractor located inside the premises.

(2) A uniformed or otherwise identifiable on-duty hospital employee or contractor located inside the premises.

(3) A uniformed or otherwise identifiable on-duty police station employee or contractor located inside the premises.

(4) A paramedic responding to a 9-1-1 emergency call.

(5) An emergency medical technician responding to a 9-1-1 emergency call. MCL 712.1(2)(f).

1.Emergency Service Provider’s Responsibilities

When a parent surrenders a child to an emergency service provider, the emergency service provider must assume the child is a newborn and immediately take temporary custody of the child. MCL 712.3(1). The emergency service provider need not have a court order to accept the child. Id.

Once an emergency service provider accepts a child, he or she must make a reasonable effort to do all of the following:

(1) Protect the newborn’s physical health and safety.

(2) Inform the parent that in surrendering the newborn he or she is releasing the newborn to a child placing agency for adoption.

(3) Inform the parent that he or she has 28 days to petition the court to regain custody of the newborn.

(4) Provide the parent with DHHS material, which includes at least all of the following statements:

(a) In surrendering a newborn, the parent is releasing the newborn to a child placing agency for adoption.

(b) After surrendering a newborn, the parent has 28 days to petition the court to regain custody of the newborn.

(c) Once the 28-day period elapses, a court hearing is held to determine and terminate parental rights.

(d) There will be public notification of the court hearing, but it will not contain the parent’s name.

(e) The parent will not receive personal notice of the court hearing.

(f) Any information the parent provides to an emergency service provider will not be made public.

(g) A parent may contact the safe delivery hotline for additional information.11 MCL 712.3(1)(a)-(d).

An emergency service provider must also make a reasonable attempt to do all of the following:

(1) Encourage the parent to provide relevant family and medical information.12

(2) Provide the parent with the DHHS’s pamphlet on the Safe Delivery of Newborns Program.13

(3) Inform the parent that he or she may receive counseling or medical attention.

(4) Inform the parent that information he or she provides will not be made public.

(5) Ask the parent for his or her name.

(6) Ask the parent to identify the other parent, informing him or her that a newborn cannot be placed for adoption until a reasonable effort has been made to identify both parents.

(7) Inform the parent that confidential services are available through the child placing agency.

(8) Inform the parent that he or she may sign a release for the newborn that could be used at the termination of parental rights hearing.14 MCL 712.3(2)(a)-(g).

An emergency service provider taking temporary protective custody of a newborn must transfer the newborn to a hospital, unless the emergency service provider is an on-duty hospital employee or contractor. MCL 712.5(1).

Although MCL 722.623 requires that suspected child abuse or child neglect be reported,15 the reporting requirements do not apply to a newborn solely on the basis of his or her surrender to an emergency service provider who is transferring the newborn to a hospital. MCL 712.2(2).

2.Hospital’s Responsibilities

A hospital must accept an emergency service provider’s transfer of a newborn. MCL 712.5(1). A hospital that accepts a newborn into temporary protective custody must have the newborn examined by a physician. MCL 712.5(2).

If the examining physician determines that there is reason to suspect the newborn experienced neglect or abuse (other than its surrender to an emergency service provider), or if the examining physician believes the child is not a newborn, the physician must immediately report the information to the DHHS. MCL 712.5(2). However, when the examining physician does not suspect child abuse or neglect, the hospital must inform a child placing agency that it has taken a newborn into temporary protective custody. MCL 712.5(3).

E.Newborns Under the Born Alive Infant Protection Act

A newborn as defined in the Born Alive Infant Protection Act, MCL 333.1071 et seq., who is born in or transferred to a hospital, is a newborn for purposes of the Safe Delivery of Newborns Law. MCL 333.1073(1); MCL 712.3(3). When an emergency service provider receives a newborn under the Born Alive Infant Protection Act, he or she must comply with MCL 712.3(1)-(2) “to obtain information from or supply information to the surrendering parent by requesting the information from or supplying the information to the attending physician who delivered the newborn.” MCL 712.3(3)(a). See also MCL 333.1073(5).

An emergency service provider must not attempt to directly contact the newborn’s parent or parents. MCL 712.3(3)(b).

Additional requirements and statutory provisions apply to newborns described in the Born Alive Infant Protection Act who are considered surrendered under the Safe Delivery of Newborns Law. See MCL 333.1073; MCL 712.3(3)(c). A detailed discussion of the Born Alive Protection Act is outside the scope of this benchbook.

1    See SCAO form JC 05b, Order to Take Child(ren) Into Protective Custody (Child Protective Proceedings).

2    MCL 712A.14b(2) requires the “ex parte order [to] be supported by written findings of fact.” (Emphasis added).

3    See Section 7.6 for a discussion of MCR 3.965 (preliminary hearings).

4    See Section 15.8(B) for a discussion of MCR 3.974(C) (dispositional review hearings following emergency removal).

5    See Chapter 10 for a discussion of MCR 3.971 (pleas of admission or no contest), and Chapter 12 for a discussion of MCR 3.972 (trials).

6   Failure to make this finding renders the child ineligible for title IV-E funds. See the Department of Health & Human Services, Children’s Bureau Letter to Child Welfare and Judicial Leaders, which details the judicial determinations and proceedings that must be held in order to satisfy Title IV-E requirements as well as suggestions for ensuring courts continue “to practice in a manner consistent with constitutional principles and to serve the best interest of children[.]” Note: The link to the previous resource was created using Perma.cc and directs the reader to an archived record of the page.

7    “[T]he requirement that the state obtain a judicial determination that it was contrary to the welfare of the child to remain in the home for purposes of Title IV-E foster-care funding eligibility [is] not triggered” until a child is “removed from the home and placed into foster care[.]” Ayotte v Department of Health and Human Services, 326 Mich App 483, 485, 494-495 (2018) (“because the temporary detention order [to serve three days in a juvenile detention center] issued against [then 16-year-old] plaintiff [for committing domestic violence against his mother] was not an order removing him from his home and into foster care, the fact that this order did not include a ‘contrary to the welfare’ finding, see 42 USC 672(a)(2)(A)(ii), does not preclude plaintiff’s eligibility for Title IV-E foster-care funding”; “[i]t was the [subsequent] order that indicated that plaintiff’s removal from the home and into care was justified based on adverse family circumstances,” which contained the requisite language making the plaintiff eligible for Title IV-E foster-care funding).

8    MCL 712A.14a(2) requires “the officer or the [DHHS] [to] immediately contact the designated judge or referee as provided in [MCL 712A.14a(3)], to seek a court order for placement of the child pending a preliminary hearing.” MCL 712A.14a(2). See Section 3.2(C) for a detailed discussion.

9    See Section 3.2(A) for information on ex parte placement orders under MCR 3.963(B)(4), and Section 3.2(D) for information on the court’s designation of a judge or referee under MCR 3.963(D).

10   The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.

11    The Michigan Department of Community Health (MDCH) and the DHHS operate a safe delivery of newborns program. See MCL 712.20. For additional information on the safe delivery of newborns program, see http://www.michigan.gov/dhs/0,1607,7-124-5452_7124_7200---,00.html.

12    See DHHS form DHS-4819, Confidential Voluntary Medical Background Form for a Surrendered Newborn. Note: The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.

13    The Michigan Department of Community Health (MDCH) and the DHHS operate a safe delivery of newborns program. See MCL 712.20. For additional information on the safe delivery of newborns program, see http://www.michigan.gov/dhs/0,1607,7-124-5452_7124_7200---,00.html.

14    See DHHS form DHS-4820, Voluntary Release for Adoption of a Surrendered Newborn by Parent. Note: The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.

15    See Section 2.2 for a detailed discussion of reporting suspected child abuse or child neglect, including a list of individuals who are required to report suspected child abuse or child neglect under MCL 722.623(1).