Chapter 8: Placement of a Child

In this chapter. . .

This chapter discusses the court’s requirements in determining whether to order a child out of his or her home or to return the child to his or her parent(s), guardian, or legal custodian pending a trial on the allegations in a petition. It also discusses the court’s placement options, placement of the child, placement of newborns falling under the Safe Delivery of Newborns Law, and a review or change in a child’s placement.

This chapter also includes discussions on the procedures for releasing information concerning the child to the child’s care provider, and the requirements for a child’s medical treatment. It also discusses initial service plans, parenting time or visitation, and ordering an examination or evaluation for a parent, guardian, legal custodian, or a child.

8.1Requirements to Release or Place a Child Pending Trial

If the court authorizes the filing of a petition,1 it must then determine “whether the child should remain in the home, be returned home, or be placed in foster care pending trial.”2 MCR 3.965(B)(12). See also MCL 712A.14(3).

If the court authorizes the filing of the petition, the court may

•release the child to a parent, guardian, or legal custodian (with or without conditions); or

•order placement of the child after finding on the record that it would be contrary to the child’s welfare to remain at home and that reasonable efforts have been made to prevent the child’s removal from the home.3 MCR 3.965(B)(13).

Note: See MCR 3.965(B)(13)(b) and Section 19.13 for preferred placements of Indian children.

A.Requirements to Release a Child to a Parent, Guardian, or Legal Custodian

If the court authorizes the filing of a petition, it may release a child to his or her parent(s), guardian, or legal custodian. MCL 712A.13a(3); MCR 3.965(B)(13)(a). The court may also order reasonable terms and conditions necessary for the child’s physical health or mental well-being. MCL 712A.13a(3); MCR 3.965(B)(13)(a). However,

•if a petition alleges that a child’s parent, guardian, custodian, nonparent adult,4 or other person residing in a child’s home has abused the child, the court must not leave the child in or return the child to the home unless it “finds that the conditions of custody . . . 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).

Note: “As used in [MCL 712A.13a], ‘abuse’ means 1 or more of the following:

(a) Harm or threatened harm by a person to a juvenile’s health or welfare that occurs through nonaccidental physical or mental injury.

(b) Engaging in sexual contact or sexual penetration as those terms are defined in . . . MCL 750.520a, with a juvenile.

(c) Sexual exploitation of a juvenile, which includes, but is not limited to, allowing, permitting, or encouraging a juvenile to engage in prostitution or allowing, permitting, encouraging, or engaging in photographing, filming, or depicting a juvenile engaged in a listed sexual act as that term is defined in . . . MCL 750.145c.

(d) Maltreatment of a juvenile.” MCL 712A.13a(21).

•“[i]f [the] court finds [that] a parent is required by court order to register under the [S]ex [O]ffenders [R]egistration [A]ct,[5] the [DHHS] may, but is not required to, make reasonable efforts to reunify the child with the parent. The court may order reasonable efforts to be made by the [DHHS].” MCL 712A.13a(6).

Additionally, “[n]o one has the right to post bail in a protective proceeding for the release of a child in the custody of the court.”MCR 3.965(C)(6).

B.Requirements to Place a Child Outside His or Her Home

If the court authorizes the filing of a petition, “[t]he court may order placement of the child in foster care[6] if the court finds all of the following conditions:

(a) Custody of the child with the parent presents a substantial risk of harm to the child’s life, physical health, or mental well-being.

(b) No provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from risk as described in subdivision (a).

(c) Continuing the child’s residence in the home is contrary to the child’s welfare.[7]

(d) Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child.[8]

(e) Conditions of child custody away from the parent are adequate to safeguard the child’s health and welfare.”9 MCL 712A.13a(9). See also MCR 3.965(C)(2), which contains substantially similar language.

“[W]hen a statute or court rule requires factual findings as to an enumerated list of factors, the trial court must make a record of its findings as to each and every factor sufficient for [the Court of Appeals] to conduct a meaningful review.” In re Williams, 333 Mich App 172, 183-185 (2020) (reversing and remanding a case in which the trial court removed the minor child from the respondent’s custody without making a record of all the findings listed in MCR 3.965(C)(2) and MCL 712A.13a(9)). “MCR 3.965(C)(2) and MCL 712A.13a(9) explicitly require that the trial court find all the factors prior to removing a child from a parent’s care.” In re Williams, 333 Mich App at 184. Cf. In re Benavides, 334 Mich App 162, 169-170 (2020) (concluding that the children’s placement outside of the home was proper because all provisions of MCL 712A.13a(9) were satisfied and addressed by the referee’s findings, which were subsequently adopted by the trial court; ultimately, the children were not placed outside of the home where they lived at the time because respondent no longer lived in the home and a safety plan was in place with the children’s uncle, who did live in the home).

“If the court orders removal of the child from a parent’s care or custody, the court shall advise the parent, guardian, or legal custodian of the right to appeal that action.” MCR 3.965(B)(15).

“If the child was not released under [MCR 3.965(B)], the court shall receive evidence, unless waived, to establish that the criteria for placement set forth in [MCR 3.965(C)(2)] are present.” MCR 3.965(C)(1). In addition, the respondent must be given the opportunity to cross-examine and subpoena witnesses, and to offer proofs to counter the admitted evidence. MCR 3.965(C)(1).

1    See Section 7.6(B) for information on petition authorization.

2    See also MCL 712A.2(i), which permits, “[i]n a proceeding under [the Juvenile Code] concerning a juvenile’s care and supervision, the court [to] issue orders affecting a party as necessary[ until] . . . May 1, 2018.” For purposes of child protective proceedings, MCL 712A.2(i)(ii) defines party as “the petitioner, department, child, respondent, parent, guardian, or legal custodian, and any licensed child caring institution or child placing agency under contract with the department to provide for a juvenile’s care and supervision.”

3    See Section 8.1(B) and Section 8.4 for more information on making these findings.

4    See Section 7.6(E) for the definition of nonparent adult.

5    “‘Sex [O]ffenders [R]egistration [A]ct’ means the [S]ex [O]ffenders [R]egistration [A]ct, . . . MCL 28.721 to [MCL] 28.730.” MCL 712A.13a(1)(k).

6    For purposes of MCL 712A.13a, foster care is “care provided to a juvenile in a foster family home, foster family group home, or child caring institution licensed or approved under . . . MCL 722.111 to [MCL] 722.128, or care provided to a juvenile in a relative’s home under a court order.” MCL 712A.13a(1)(e).

7    For additional information on contrary to the welfare findings, see Section 8.3.

8    For additional information on reasonable efforts findings, see Section 8.4.

9    If the child is of Indian heritage, see Section 19.13 for preferred placements of Indian children.