8.3Keeping Child at Home is Contrary to the Welfare Findings
If the court orders foster care placement, it must find, among other factors, that “[c]ontinuing the child’s residence in the home is contrary to the child’s welfare.” MCR 3.965(C)(2)(c). See also MCR 3.965(C)(3). “If [the court finds that] continuing the child’s residence in the home is contrary to the welfare of the child, the court shall not return the child to the home, but shall order the child placed in the most family-like setting available consistent with the child’s needs.” MCR 3.965(C)(3).
Note: MCR 3.903(C)(4) defines contrary to the welfare of the child as “includ[ing], but [] not [being] limited to, situations in which the child’s life, physical health, or mental well-being is unreasonably placed at risk.”
The court may base its findings on “hearsay evidence that possesses adequate indicia of trustworthiness.” MCR 3.965(C)(3).
If the court orders placement, it must make a statement of findings in writing or on the record that explicitly includes “the finding that it is contrary to the welfare of the child to remain at home and the reasons supporting that finding.” MCR 3.965(C)(3). If the court elects to place its findings on the record, the finding “must be capable of being transcribed.” MCR 3.965(C)(3).
Note: To establish eligibility for federal funding of a child’s foster care placement, a court must make a finding in its first order that sanctions a child’s removal from his or her home that “continuation of residence in the home would be contrary to the welfare . . . of the child.”1 45 CFR 1356.21(c). This finding must be detailed “explicitly documented and must be made on a case-by-case basis and so stated in the court order.” 45 CFR 1356.21(d). Affidavits, nunc pro tunc orders, or orders simply referencing a Michigan statute or court rule are insufficient. 45 CFR 1356.21(d)(2)-(3).2
Additionally, if a petition alleges that a parent, guardian, custodian, nonparent adult, or other person residing in a child’s home has abused the child, the court may not place the child in unlicensed foster care, i.e., with a relative, unless it “finds that the conditions of custody at the placement and with the individual with whom the child is placed are adequate to safeguard the child from the risk of harm to the child’s life, physical health, or mental well-being.” MCL 712A.13a(5).3
1 “[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, 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).
2 See Section 3.1(A) and Section 14.1 for further discussion of these requirements.
3 See Section 7.6(C) for information on ordering an alleged abuser from a child’s home.