Preliminary Hearing – Michigan Children’s Protective Services
In every case where the petition filed by Children’s Protective Services requests that the child be placed out of the home or where the child is in temporary custody, the court must hold a preliminary hearing. MCR 3.965(A)(1) If your child was removed from the home and taken into “protective custody”, the hearing must commence within 24 hours of the child’s removal. If the hearing doesn’t commence within 24 hours, the child must be released, unless the court has adjourned the hearing for good cause. MCR 3.965(A)(1), MCL 712A.14(2) In calculating the 24 hour period, Sundays are excluded.
Prior to the preliminary hearing, the government must provide notice to the child’s parents or legal guardians of the date, time, and location of the preliminary hearing. If the child is placed outside of the home, the parent must be immediately notified of the hearing pursuant to MCR 3.920(D)(2)(b).
Lawyer-Guardian Ad Litem
When the court schedules the preliminary hearing, it will also appoint a Lawyer-Guardian Ad Litem to represent the children. This person is an attorney who is supposed to represent the best interests of your child. This person is supposed to be independent and working for the best interests of the child. The actual performance of the L-GAL varies wildly from attorney to attorney. Some L-GALs do a fantastic job while others just rubber stamp everything the Department of Human Services and the Child Protection Worker says.
Reading the Allegations
At the preliminary hearing in a child abuse proceeding, the Court must read the allegations contained in the petition in open court, unless you waive it. These are the things that Children’s Protective Services is saying you did to abuse or neglect your child. Because these proceedings can move so quickly, this may be the first time you actually hear the allegations against you. You should listen carefully and be ready to discuss the allegations with your attorney, if a recess is taken.
If you are present at the preliminary hearing, the Court must also ensure that you have received a copy of the petition containing the allegations against you.
Right to Assistance of Attorney
At the preliminary hearing and every hearing after that, you have the right to have an attorney represent you. You should exercise this right. In fact, you should hire the best CPS Defense Attorney you can afford and you should do it at the earliest possible date. If you don’t have an attorney at the preliminary hearing, the court may appoint one to represent you. If you have a court-appointed attorney at this hearing, you should make sure that you fully understand the advice he is giving you. Do not waive any hearings or rights unless you fully understand what you are doing. The decisions you make at the preliminary hearing will affect you and your children for the rest of your life.
Authorizing the Petition
At the preliminary hearing, either a judge or referee will decide whether to authorize the filing of the petition. In order to authorize the petition, the judge or referee must find probable cause to believe that one or more of the allegations contained in the petition are true. MCL 712A.14. If the judge or referee does not authorize the filing of the petition, the child must be released to his or her parents.
At the preliminary hearing, the Michigan Rules of Evidence do not apply. This means that the government can present hearsay testimony. Frequently the government will only call one witness — the Children’s Protective Services (CPS) worker. As you can imagine, the CPS worker who filed the petition is likely to say the things necessary to have the judge authorize the petition. To have the best shot at defeating the petition early, you should bring your own witnesses to the hearing who can contradict the testimony of the CPS worker.
Placement after Authorization of the Petition
If the court authorizes the petition, a decision will have to be made about where your child is going to live while the case is being defended. Generally speaking, there are three scenarios that we see after a petition is authorized:
- the child is allowed to live with one of the parents while the other is ordered to have no contact,
- the child is placed with a relative, or
- the child is placed in licensed foster care.
Occasionally the child will be returned home to both parents with conditions put in place to protect the child, but this is much less common.
If the court removes the child from one or both parents’ care, the court must allow parenting time with the child. Frequently this will be supervised by DHS or Children’s Protective Services. The location of supervised parenting time varies from county to county. Some counties will supervise the parenting time in the home while others will require it be done at the DHS office.