CHILD ABUSE AND NEGLECT PROCEEDINGS

FAQ REGARDING CHILD ABUSE AND NEGLECT
 
How does Michigan define child abuse and neglect?
The following definitions of child abuse and neglect are based on Michigan's Child Protection Law and are in the Child Protective Services Policy manual.  

Physical abuse
Physical abuse is a non-accidental injury to a child by the person responsible for the child's health and welfare. Physical abuse may include, but is not limited to, burning, beating, kicking, and punching. It is usually the easiest abuse to identify because of the physical evidence of bruises, burns, broken bones or other unexplained injuries. Internal injuries may not be readily apparent.

Sexual Abuse
Sexual abuse encompasses several different types of inappropriate sexual behavior:
• Sexual contact meaning any intentional touching that can be reasonably construed as being for the purposes of sexual arousal, gratification, or any other improper purpose.
• Sexual penetration.
• Accosting, soliciting, or enticing a child to commit, or attempt to commit, an act of sexual contact or penetration, including prostitution.

Maltreatment
Maltreatment is defined as the treatment of a child that involves cruelty or suffering that a reasonable person would recognize as excessive. Possible examples of maltreatment are:
• A parent, who knowing that their child has a phobia or deep fear of closed places, utilizes locking the child in a closet as a means of punishment.
• A parent who forces their child to eat dog food out of a dog bowl during dinner as a method of punishment and/or humiliation.
• A parent who is found to be teaching their child how to be an accessory in their criminal activities, e.g., shop-lifting.
• A parent who responds to their child's bed-wetting by subjecting them to public humiliation, such as hanging a sign on the child at school, which lets others know that the child has wet his or her bed.

Mental Injury
A psychological condition (diagnosed by a mental health practitioner) caused by physical or verbal acts, omissions, (including the denial of appropriate treatment), or maintaining an environment by the person responsible for the child's health and welfare which: renders the child chronically anxious, agitated, depressed, socially withdrawn, psychotic, or unreasonable fear that his or her life and/or safety or that of another family member is threatened, or chronically interferes with the child's ability to accomplish age appropriate milestones.
 
Neglect
Child neglect encompasses several areas:
• Neglect - harm or threatened harm to a child's health or welfare by the person responsible for the child's health and welfare through failure to provide the child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding those situations solely attributable to poverty.
• Failure to Protect - knowingly allowing another person to mistreat or abuse the child without taking appropriate measures to stop such mistreatment or abuse and prevent it from recurring when the person is able to do so and has, or should have had, knowledge of the mistreatment.Improper Supervision - placing the child in or failing to remove the child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and results in bodily injury or a substantial risk of immediate harm to the child.
• Abandonment - The person responsible for the child's health and welfare leaves a child with an agency, person, or other entity (DHS, hospital, mental health facility, etc.) unable or unwilling to assume responsibility for the child.
• Medical Neglect - The failure to seek, obtain, or follow through with medical care for the child, with the failure resulting in or presenting substantial risk of death, disfigurement or bodily harm or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child.
 
Potential Indicators of Child Abuse and/or Neglect
Determining when to report suspected child abuse or neglect can be difficult. A bruise on a toddler's forehead may be the result of learning to walk or the result of abuse. When in doubt, contact the local DHS office for consultation.
Below are some of the commonly accepted physical and behavioral indicators of abuse and/or neglect. Please note that the physical and behavioral indicators listed are not the only indicators of child abuse and neglect and if present, do not always mean a child is being abused or neglected. 

Physical Neglect - Physical Indicators 
• Unattended medical needs.
• Lack of supervision.
• Regular signs of hunger, inappropriate dress, poor hygiene.
• Distended stomach, emaciated.
• Significant weight change.

Physical Neglect - Behavioral Indicators 
• Regularly displays fatigue or listlessness, falls asleep in class.
• Steals/hoards food, begs from classmates.
• Reports that no caretaker is at home.

Physical Abuse - Physical Indicators 
• Unexplained bruises (in various stages of healing), welts, loop marks.
• Adult/human bite marks.
• Bald spots or missing clumps of hair.
• Unexplained burns/scalds.
• Unexplained fractures, skin lacerations/punctures or abrasions.
• Swollen lips/chipped teeth. 
• Linear/parallel marks on cheeks and temple area. 
• Crescent-shaped bruising. 
• Puncture wounds. 
• Bruising behind the ears. 

Physical Abuse - Behavioral Indicators 
• Self-destructive/self-mutilation.
• Withdrawn and/or aggressive-behavior extremes.
• Uncomfortable/skittish with physical contact.
• Arrives at school late or stays late as if afraid to be at home.
• Chronic runaway (adolescents).
• Complains of soreness or moves uncomfortably.
• Wears clothing inappropriate to weather, to cover body.
• Lack of impulse control (e.g. inappropriate outbursts).

Sexual Abuse - Physical indicators 
• Pain or itching in genital area.
• Bruises or bleeding in genital area.
• Sexually transmitted disease.
• Frequent urinary or yeast infections.
• Extreme or sudden weight change.
• Pregnancy under 12 years of age.

Sexual Abuse - Behavioral Indicators 
• Withdrawal, chronic depression.
• Sexual behaviors or references that are unusual for the child's age.
• Seductive or promiscuous behavior.
• Poor self-esteem, self-devaluation, lack of confidence.
• Suicide attempts (especially adolescents).
• Hysteria, lack of emotional control.

Procedure for Child Abuse and Neglect Cases
The Child Protective Services division of the Department of Health and Human Services ("DHHS") conducts investigations of suspected child abuse or neglect. An investigation may begin because a "mandatory reporter", such as a teacher or a doctor, suspects child abuse or neglect. An investigation may also begin with a call from a concerned friend or neighbor.

DHHS will work with families in order to correct any failings in child care. Only the most serious cases go to court. This is the procedure for such cases:

Preliminary hearing - conducted within 24 hours if the child is removed from the home, excluding Sundays and holidays. At the preliminary hearing, the parents can ask for a court-appointed attorney if they do not have representation. Each parent will have their own attorney. At the hearing, the Petitioner (DHS), represented by the office of the prosecuting attorney, must prove by probable cause that the child was abused and/or neglected. The parents/respondents can waive this hearing if the desire.

Pre-trial conference - the court and the attorneys for the parties meet to consider any matters that will facilitate the fair and expeditious disposition of the action, including:
• the simplification of the issues;
• the amount of time necessary for discovery;
• the necessity or desirability of amendments to the pleadings;
• the possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;
• the limitation of the number of expert witnesses;
• the consolidation of actions for trial, the separation of issues, and the order of trial when some issues are to be tried by a jury and some by the court;
• the possibility of settlement;
• whether mediation or some other form of alternative dispute resolution would be appropriate for the case;
• the identity of the witnesses to testify at trial;
• the estimated length of trial;
• whether all claims arising out of the transaction or occurrence that is the subject matter of the action have been joined as required by subrule 2.203(A);
• other matters that may aid in the disposition of the action.

Plea of Responsibility - The respondent may make a plea of admission or of no contest to the original petition or to an amended petition.  Before accepting a plea, the court must advise the respondent on the record or in a writing that is made a part of the file:
• of the allegations in the petition;
• of the right to an attorney, if respondent is without counsel;
• that if the court accepts the plea the respondent will give up the rights to;
• trial by a judge or trial by a jury,
• have the petitioner prove the allegations in the petition by a preponderance of the evidence,
• have witnesses against the respondent appear and testify under oath at the trial,
• cross-examine witnesses,
• have the court subpoena any witnesses the respondent believes could give testimony in the respondent's favor;
• of the consequences of the plea including that the plea can later be used to terminate parental rights.

The plea must be knowingly, understandingly, and voluntarily made. 

At the plea, the Respondent provides facts to the court that establish a finding that the child comes within the jurisdiction of the court.

The court will have jurisdiction if the child is under 18 years of age; is found within the county and:

Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. As used in this sub-subdivision:

"Education" means learning based on an organized educational program that is appropriate, given the age, intelligence, ability, and psychological limitations of a juvenile, in the subject areas of reading, spelling, mathematics, science, history, civics, writing, and English grammar.

"Without proper custody or guardianship" does not mean a parent has placed the juvenile with another person who is legally responsible for the care and maintenance of the juvenile and who is able to and does provide the juvenile with proper care and maintenance.

Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.

Whose parent has substantially failed, without good cause, to comply with a limited guardianship placement plan described in section 5205 of the estates and protected individuals code, 1998 PA 386, MCL 700.5205, regarding the juvenile.

Whose parent has substantially failed, without good cause, to comply with a court-structured plan described in section 5207 or 5209 of the estates and protected individuals code, 1998 PA 386, MCL 700.5207 and 700.5209, regarding the juvenile.

If the juvenile has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and the juvenile's parent meets both of the following criteria:

The parent, having the ability to support or assist in supporting the juvenile, has failed or neglected, without good cause, to provide regular and substantial support for the juvenile for 2 years or more before the filing of the petition or, if a support order has been entered, has failed to substantially comply with the order for 2 years or more before the filing of the petition.

The parent, having the ability to visit, contact, or communicate with the juvenile, has regularly and substantially failed or neglected, without good cause, to do so for 2 years or more before the filing of the petition. MCL 712A.2(b).

A Respondent can plead no contest. 

Trial - If child was removed from the home, must commence as soon as possible, but no later than 63 days after the child was removed unless the trial is postponed. If child was not removed from the home, the trial must be held within 6 months after the filing of the petition unless adjourned for good cause.

At trial, the petitioner must prove that the facts alleged in the petition are true and that they rise to the level of legal neglect. If legal neglect is proved at trial, the court may adjudicate the matter by formally asserting its authority and making the child a temporary ward of the court.

The trial can be in front of a referee, a judge or a judge and jury. The jury is composed of six people.

Standard of Proof - for jurisdiction, the standard of proof is always preponderance of the evidence. For termination, the standard of proof is always clear and convincing. The same evidence can establish both jurisdiction and termination.
Disposition: If jurisdiction is found by either plea or trial, the next step is the dispositional hearing. The disposition involves a determination of what action, if any, will be taken on behalf of the child. This hearing is held within 35 days after the trial or plea. (If good cause is shown, the dispositional hearing may be later.)

Review Hearings - the court may retain jurisdiction for many, many months after it has jurisdiction. The purpose of the review hearing is to see whether the parent has progressed with the parent-agency plan designed to reunite the family. If parental rights were terminated, the court wants to know about plans for the child's permanency (i.e., adoption or guardianship).
The progress of the parent and child must be reviewed no later than 182 days from the date a petition is filed, and no later than every 91 days after that for the first year that the child is under the jurisdiction of the court. After the first year, the progress of the child must be reviewed no later than 182 days from each preceding review until case is dismissed.
Permanency Planning Hearing: The hearings must be held every twelve months from the date a child was removed from its home. The plan could be to reunite the child with his or her parent. On the other hand, if the parent has not improved and returning the child home would be harmful, the permanency plan could be changed to termination of parental rights.

Termination of Parental Rights - there is no right to a jury in a termination proceeding. Although a referee may hear a termination case, the parties have a right to a judge upon request.

The burden of proof is on the party seeking to terminate the parental rights of respondent. Proofs must be clear and convincing that one or more factual grounds exist under MCL 712A.19b(3) to terminate parental rights.

In the case of an Indian child, parental rights shall not be terminated unless there is evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that parental rights should be terminated because continued custody of the child by the parent or Indian custodian will likely result in serious emotional or physical damage to the child.

The factual grounds for termination are any one of the following:
 
• The child has been deserted under any of the following circumstances:
o The child's parent is unidentifiable, has deserted the child for 28 or more days, and has not sought custody of the child during that period. For the purposes of this section, a parent is unidentifiable if the parent's identity cannot be ascertained after reasonable efforts have been made to locate and identify the parent.
o The child's parent has deserted the child for 91 or more days and has not sought custody of the child during that period.
o The child's parent voluntarily surrendered the child to an emergency service provider under chapter XII and did not petition the court to regain custody within 28 days after surrendering the child.

• The child or a sibling of the child has suffered physical injury or physical or sexual abuse under one or more of the following circumstances:
o The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.
o The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.
o A nonparent adult's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse by the nonparent adult in the foreseeable future if placed in the parent's home.

• The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
o The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
o Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.

• The child's parent has placed the child in a limited guardianship under section 5205 of the estates and protected individuals code, 1998 PA 386, MCL 700.5205, and has substantially failed, without good cause, to comply with a limited guardianship placement plan described in section 5205 of the estates and protected individuals code, 1998 PA 386, MCL 700.5205, regarding the child to the extent that the noncompliance has resulted in a disruption of the parent-child relationship.

• The child has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and the parent has substantially failed, without good cause, to comply with a court-structured plan described in section 5207 or 5209 of the estates and protected individuals code, 1998 PA 386, MCL 700.5207 and 700.5209, regarding the child to the extent that the noncompliance has resulted in a disruption of the parent-child relationship.

• The child has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and both of the following have occurred:

• The parent, having the ability to support or assist in supporting the minor, has failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of two years or more before the filing of the petition or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the petition.
• The parent, having the ability to visit, contact, or communicate with the minor, has regularly and substantially failed or neglected, without good cause, to do so for a period of 2 years or more before the filing of the petition.

• The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.

• The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding two years, and the parent has not provided for the child's proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.

• Parental rights to one or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful.

• There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.

• The parent abused the child or a sibling of the child and the abuse included 1 or more of the following:
o Abandonment of a young child.
o Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
o Battering, torture, or other severe physical abuse.
o Loss or serious impairment of an organ or limb.
o Life threatening injury.
o Murder or attempted murder.
o Voluntary manslaughter.
o Aiding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter.

• The parent's rights to another child were terminated as a result of proceedings under section 2(b) of this chapter or a similar law of another state.

• The parent's rights to another child were voluntarily terminated following the initiation of proceedings under section 2(b) of this chapter or a similar law of another state.

• The parent is convicted of one or more of the following, and the court determines that termination is in the child's best interests because continuing the parent-child relationship with the parent would be harmful to the child:
o A violation of First or Second Degree Murder; First-, Second-, Third-, or Fourth Degree Criminal Sexual Conduct or Assault with Intent to Commit Criminal Sexual Conduct.
o A violation of a criminal statute that includes as an element the use of force or the threat of force and the parent to will can be sentenced as a habitual offender. (A habitual offender has prior felony convictions and may be sentenced more severely that an offender without any prior convictions.)
o A federal law or law of another state with provisions substantially similar to a crime or procedure listed or described in subparagraph (i) or (ii).

Best Interests of the Child - if the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.

The best interests of the child under the Child Custody Act are:
• The love, affection, and other emotional ties existing between the parties involved and the child.
• The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
• The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
• The permanence, as a family unit, of the existing or proposed custodial home or homes.
• The moral fitness of the parties involved.
• The mental and physical health of the parties involved.
• The home, school, and community record of the child.
• The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
• The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
• Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
• Any other factor considered by the court to be relevant to a particular child custody dispute.