ICLE Homepage | Other Proposed Amendments to MCRs
April 13, 2006
ADM File No. 2005-04
Proposed Amendments of Rules
3.915, 3.963, 3.965, 3.966, 3.972, 3.973,
3.974, 3.975, 3.976, and 3.978 of the
Michigan Court Rules
On order of the Court, this is to advise that the Court is considering amendments
of Rules 3.915, 3.963, 3.965, 3.966, 3.972, 3.973, 3.974, 3.975, 3.976, and 3.978 of the
Michigan Court Rules. Before determining whether the proposal should be adopted,
changed before adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to suggest
alternatives. The Court welcomes the views of all. This matter will be considered at a
public hearing. The notices and agendas for public hearings are posted on the Court's
website at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on
the subject, nor does it imply probable adoption of the proposal in its present form.
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been deleted.
Bold text indicates new text.
Rule 3.915 Assistance of Attorney
(A) [Unchanged.]
(B) Child Protective Proceedings.
(1) [Unchanged.]
(2) Child.
(a) The court must appoint a lawyer-guardian ad litem to
represent the child at every hearing, including the preliminary
hearing. The child may not waive the assistance of a lawyer-
guardian ad litem. The duties of the lawyer-guardian ad litem are as
provided by MCL 712A.17d. At each hearing, the court shall
inquire whether the lawyer-guardian ad litem has met or had
contact with the child, as required by the court or
MCL 712A.17d(1)(d) and if the [attorney] lawyer-
guardian ad litem has not met or had contact with the
child, the court shall require the lawyer-guardian ad litem to state,
on the record, [his or her] the reasons for failing to
do so.
(b) [Unchanged.]
(C)-(E)[Unchanged.]
Rule 3.963 Protective Custody of Child
(C) [Unchanged.]
(B) Court-Ordered Custody.
(1) The court may issue a written order authorizing a child
protective services worker or designee [an officer or other
person] to immediately take a child into protective custody when,
[after] upon presentment of proofs as required
[to] by the court [of a petition], [a] the
judge or referee has reasonable grounds to believe that conditions or
surroundings under which the child is found are such as would endanger
the health, safety, or welfare of the child and that remaining in the home
would be contrary to the welfare of the child. When appropriate, the
court shall make a judicial determination that reasonable efforts to prevent
removal of the child have been made. The court may also include in
such an order authorization to enter specified premises to remove the child.
(2) The written order must indicate that the judge or referee
has determined that continuation in the home is contrary to the welfare of
the child and must state the basis for that determination.
(3) [Unchanged.]
(C) [Unchanged.]
Rule 3.965 Preliminary Hearing
(1) [Unchanged.]
(B) Procedure.
(1)-(10)[Unchanged.]
(11) Unless the preliminary hearing is adjourned, the court must decide
whether to authorize the filing of the petition and, if authorized,
whether the child should remain in the home, be returned home, or be
placed in foster care [the placement of the child] pending trial.
The court may authorize the filing of the petition upon a showing of
probable cause, unless waived, that one or more of the allegations in the
petition are true and fall within MCL 712A.2(b). The Michigan Rules of
Evidence do not apply, other than those with respect to privileges, except to
the extent that such privileges are abrogated by MCL 722.631.
(12)-(13)[Unchanged.]
(C) Pretrial Placement; Contrary to the Welfare Determination.
(1)-(2)[Unchanged.]
(2) Findings. If placement is ordered, the court must make a statement of
findings, in writing or on the record, explicitly including the finding that it
is contrary to the welfare of the child to remain at home and the
reasons supporting that finding. If the "contrary to the welfare of the
child" finding is placed on the record and not in a written statement of
findings, it must be capable of being transcribed. The findings may be
made on the basis of hearsay evidence that possesses adequate
indicia of trustworthiness.
(4)-(7)[Unchanged.]
(D) Pretrial Placement; Reasonable Efforts Determination. In making the
reasonable efforts determination under this subrule, the child's health and safety
must be of paramount concern to the court.
(1) When the court has placed a child with someone other than the
custodial parent, guardian, or legal custodian, the court must determine
whether the agency has made reasonable efforts to prevent the removal of
the child or that reasonable efforts to prevent removal are not required.
The court must make this determination at the earliest possible
time, but no later than 60 days from the date of removal, and must state
the factual basis for the determination in the court order. Nunc pro tunc
orders or affidavits are not acceptable.
(2) Reasonable efforts to prevent a child's removal from the home are
not required if a court of competent jurisdiction has determined that
(a) the parent has subjected the child to aggravated
circumstances as listed in Sections 18(1) and (2) of the Child
Protection Law, MCL 722.638(1) and (2)
[712A.19b(3)(k)]; or
(b) the parent has been convicted of 1 or more of the
following:
(i) murder of another child of the parent,
(ii) voluntary manslaughter of another child of the parent,
(iii) aiding or abetting, or attempting, conspiring,
or soliciting to commit [such] a murder, or
aiding and abetting the commission of [such]
a voluntary manslaughter, of another child of the parent,
or
(iv) a felony assault that results in serious bodily injury to
the child or another child of the parent; or
(c) parental rights of the parent with respect to a sibling have
been terminated involuntarily.
(E) [Unchanged.]
Rule 3.966 Other Placement Review Proceedings
(A) Review of Placement Order and Initial Service Plan.
(1) On motion of a party, the court must review the [custody
order,] placement order[,] or the initial service plan, and may
modify the[those] order[s] and plan if it is in the
best interest of the child and, if removal from the parent, guardian, or legal
custodian is requested, determine whether the conditions in MCR
3.965(C)(2) exist.
(2) If the child is removed from the home and disposition is
not completed, the progress of the child must be reviewed no later than 182
days from the date the child was removed from the home.
(B)-(C) [Unchanged.]
Rule 3.972 Trial
(A) Time. If the child is not in placement, the trial must be held within 6
months after the filing of the petition unless adjourned for good cause under
MCR 3.923(G). If the child is in placement, the trial must commence as soon as
possible, but not later than 63 days after the child is [placed by the court]
removed from the home unless the trial is postponed:
(1) on stipulation of the parties for good cause;
(2) because process cannot be completed; or
(3) because the court finds that the testimony of a presently unavailable
witness is needed.
When trial is postponed pursuant to subrule (2) or (3), the court shall
release the child to the parent, guardian, or legal custodian unless the court finds
that releasing the child to the custody of the parent, guardian, or legal custodian
will likely result in physical harm or serious emotional damage to the child.
If the child has been removed from the home, a review hearing must
be held within 182 days of the date of the child's removal from the home, even if
the trial has not been completed before the expiration of that 182-day period.
(B)-(E) [Unchanged.]
Rule 3.973 Dispositional Hearing
(A)-(B)[Unchanged.]
(D) Time. The interval, if any, between the trial and the dispositional hearing is within
the discretion of the court. When the child is in placement, the interval may not be
more than [35] 28 days, except for good cause.
(D)–(H)[Unchanged.]
Rule 3.974 Post-Dispositional Procedures: Child at Home
[(A) ]Review of Child's Progress.
(1) General. The court shall periodically review the progress of a child not in
foster care over whom it has retained jurisdiction. [A progress review
does not require a hearing.
]
(2) Time. If the child was never removed from the home,
[T]the progress of the child must be reviewed no later than 182
days from the date the petition was filed and no later than every 91
days after that for the first year that the child is subject to the jurisdiction of
the court. After that first year, a review hearing shall be held no later than
182 days from the immediately preceding review hearing before the end of
the first year and no later than every 182 days from each preceding hearing
until the court dismisses its jurisdiction. [after entry of the original
order of disposition if the child remained at home following the initial
dispositional hearing.] The review shall occur no later than 182 days
after the child returns home when the child is no longer in foster care.
If the child was removed from the home and subsequently returned to the
home, review hearings shall be held in accordance with MCR 3.975.
(3) [Change of Placement.]Subsequent Removal. The court may
not order a child removed from his or her home solely on the basis of a
review hearing. If it appears from evidence presented at a review hearing
that a child may be at risk, the court may order that the child be taken into
protective custody in accordance with MCR 3.963, and a supplemental
petition must be filed and a preliminary hearing held in accordance with
MCR 3.965. [Except as provided in subrule (B), the court may not
order a change in the placement of a child solely on the basis of a progress
review. If the child over whom the court has retained jurisdiction remains
at home following the initial dispositional hearing or has otherwise
returned home from foster care, the court must conduct a hearing before it
may order the placement of the child. Such a hearing must be conducted in
the manner provided in MCR 3.975(E).
]
[(B) Emergency Removal
]
[(1)] [General. If the child, over whom the court has retained
jurisdiction, remains at home following the initial dispositional hearing or
has otherwise returned home from foster care, the court may order
temporary removal of the child to protect the health, safety, or welfare of
the child, pending an emergency removal hearing.
(2)] [Notice. The court shall ensure that the parties are given notice
of the hearing as provided in MCR 3.920 and MCR 3.921.
(3)] [Emergency Removal Hearing. If the court orders removal of the
child from the parent, guardian, or legal custodian to protect the child's
health, safety, or welfare, the court must conduct an emergency removal
hearing no later than 24 hours after the child has been taken into custody,
excluding Sundays and holidays as defined in MCR 8.110(D)(2). Unless
the child is returned to the parent pending the dispositional review, the
court must make a written determination that the criteria for placement
listed in MCR 3.965(C)(2) are satisfied.
(a)] [At the emergency removal hearing, the respondent
parent, guardian, or legal custodian from whom the child is
removed must receive a written statement of the reasons for removal
and be advised of the following rights:
(i)] [to be represented by an attorney at the
dispositional review hearing;
(ii)] [to contest the continuing placement at the
dispositional review hearing within 14 days; and
(iii)] [to use compulsory process to obtain witnesses for
the dispositional review hearing.
(b)] [At an emergency removal hearing, the parent, guardian,
or legal custodian from whom the child was removed must be given
an opportunity to state why the child should not be removed from,
or should be returned to, the custody of the parent, guardian, or
legal custodian.
(C)] [Dispositional Review Hearing; Procedure. If the child is in placement
pursuant to subrule (B), the dispositional review hearing must commence no later
than 14 days after the child is placed by the court, except for good cause shown.
The hearing must be conducted in accordance with the procedures and rules of
evidence applicable to a dispositional hearing.
]
Rule 3.975 Post-Dispositional Procedures: Child in Foster Care
(A)-(B)[Unchanged.]
(C) Time. The court must conduct dispositional review hearings at intervals as
follows, as long as the child remains in foster care:
(1) not more than 182 days after the child's removal from his or her home
and no later than every 91 days [following entry of the original
order of disposition ]after that for the first year that the child is
subject to the jurisdiction of the court. After the first year that the child has
been removed from his or her home and is subject to the jurisdiction of the
court, a review hearing shall be held not more than 182 days from the
immediately preceding review hearing before the end of that first year and
no later than every 182 days from each preceding review hearing thereafter
until the case is dismissed; or
(2) if a child is under the care and supervision of the agency and is either
placed with a relative and the placement is intended to be permanent or is
in a permanent foster family agreement, not more[no later]
than [every ]182 days after the child has been removed from
his or her home and no later than 182 days after that as long as the child is
subject to the jurisdiction of the court, the Michigan Children's Institute, or
other agency[first permanency planning hearing if the child is
subject to a permanent foster family agreement or in a relative placement
that is intended to be permanent] as provided in MCR 3.976(E)(3).
A review hearing under this subrule shall not be canceled or delayed beyond
the number of days required in this subrule, regardless of whether a petition to
terminate parental rights or another matter is pending.
(D)-(F)[Unchanged.]
(G) Dispositional Review Orders. The court, following a dispositional review
hearing, may:
(1) order the return of the child home,
[(2)] [order placement of the child if removal from the parent,
guardian, or legal custodian would be appropriate for the welfare of the
child,
]
(2[3]) change the placement of the child,
(3[4]) modify the dispositional order,
(4[5]) modify any part of the case service plan,
(5[6]) enter a new dispositional order, or
(6[7]) continue the prior dispositional order.
[(H)] [Returning Child Home Without Dispositional Review Hearing. Unless
notice is waived, if not less than 7 days written notice is given to all parties before
the return of a child to the home, and if no party requests a hearing within the 7
days, the court may issue an order without a hearing permitting the agency to
return the child home.
]
Rule 3.976 Permanency Planning Hearings
(A) [Unchanged.]
(B) Time.
(1) An initial permanency planning hearing must be held within 28 days after a
judicial determination that reasonable efforts to reunite the family or to
prevent removal are not required on the basis of one of the following
circumstances: [petition has been adjudicated and both of the
following occur]:
(a) There has been a judicial determination that the child's parent,
guardian, custodian, or nonparent adult has subjected the child to
aggravated circumstances as listed in sections 18(1) and (2) of the
Child Protection Law, 1975 PA 238, MCL 722.638, or [A
court of competent jurisdiction has determined that
(i)] [a parent is found to have abused the child, or a
sibling of the child, and the abuse included one or more of the
circumstances in MCL 712A.19a(2), or
]
[(ii)] [the parent's rights to another child were
terminated involuntarily, and
(b)] [the court has determined that reasonable efforts are not
required to reunify the child and the family.
]
(b) the parent has been convicted of one or more of the
following:
(i) murder of another child of the parent;
(ii) voluntary manslaughter of another child of the
parent;
(iii) aiding or abetting, or attempting, conspiring, or
soliciting to commit the murder of another child of the parent,
or aiding and abetting the voluntary manslaughter of another
child of the parent, or the attempted murder of the child or
another child of the parent; or
(iv) a felony assault that results in serious bodily
injury to the child or another child of the parent.
(c) the parent has had rights to one of the child's siblings
involuntarily terminated.
(2) If subrule (1) does not apply, the court must conduct an initial
permanency planning hearing no later than [one year] 12
months after the child's removal from the home, regardless of
whether any supplemental petitions are pending in the case. [an
original petition has been filed.] [The hearing must not be extended
or delayed for reasons such as a change or transfer of staff or workers at the
supervising agency.
]
(3) Requirement of Annual Permanency Planning Hearings. During the
continuation of foster care, the court must hold permanency planning
hearings beginning no later than [one year] 12 months
after the initial permanency planning hearing. The interval between
permanency planning hearings is within the discretion of the court as
appropriate to the circumstances of the case, but must not exceed 12
months. The court may combine the permanency planning hearing with a
[dispositional ]review hearing.
(4) The judicial determination to finalize the court-approved
permanency plan must be made within the prescribed time limits.
(C) Notice. The parties entitled to participate in a permanency planning hearing
include the parents of the child, if the parent's parental rights have not been
terminated, the child, if the child is of an appropriate age to participate, foster
parents, pre-adoptive parents, and relative caregivers. Written notice of a
permanency planning hearing must be given as provided in MCR 3.920 and MCR
3.921(B)(2). The notice must include a brief statement of the purpose of the
hearing, and must include a notice that the hearing may result in further
proceedings to terminate parental rights. The notice must inform the parties of
their opportunity to participate in the hearing and that any information they wish
to provide should be submitted in advance to the court, the agency, the lawyer-
guardian ad litem for the child, or an attorney for one of the parties.
(D) [Unchanged.]
(E) Determinations; Permanency Options.
(1)-(2)[Unchanged.]
(3) Other Permanency[Placement] Plans. If the court does not
return the child to the parent, guardian, or legal custodian, and if
the agency demonstrates that termination of parental rights is not in the best
interest of the child, the court [must] may [either]
(a) continue the placement of the child in foster care for a limited
period to be set by the court while the agency continues to
make reasonable efforts to finalize the court-approved permanency
plan for the child, [if the court determines that other
permanent placement is not possible,] or
(b) place the child with a fit and willing relative, or [in
foster care on a long-term basis if the court determines that it is in
the child's best interests.]
(c) upon a showing of compelling reasons, place the child in
an alternative planned permanent living arrangement.
The court must articulate the factual basis for its determination in the
court order adopting the permanency plan.
Rule 3.978 Post-Termination Review Hearings
(A) Review Hearing Requirement. [Unless the child has been placed in a
permanent foster family agreement or is placed with a relative and the placement
is intended to be permanent,] [i]If a child remains in foster
care following the termination of parental rights to the child, the court must
conduct a hearing not more than 91 days after the termination of parental rights
and [at least] not later than every 91 days after that hearing
for the first year following termination of parental rights to the child. At the
post-termination review hearing, the court shall[to] review the child's
placement in foster care and the progress toward the child's adoption or other
permanent placement, as long as the child is subject to the jurisdiction, control, or
supervision of the court, or of the Michigan Children's Institute or other agency.
If the child is residing in another permanent planned living arrangement or is
placed with a fit and willing relative and the child's placement is intended to be
permanent, the court must conduct a hearing not more than 182 days from the
preceding review hearing.
(B)-(D) [Unchanged.]
Staff Comment: The proposed amendment of Michigan Court Rule
3.915 corresponds with the January 3, 2005 amendments of MCL 712A.17d enacted in
2004 PA 475. Other changes in MCR 3.915 are stylistic changes of the rule's language.
The proposed amendment of MCR 3.963(B)(1) would reflect the reality that
family division judges or referees are not always presented with a petition when a request
is made to remove a child from the home. In emergency circumstances, a police officer
or social worker may seek the court's permission to remove a child from a home, but will
not have an opportunity to draft a petition before seeking the child's removal.
The proposed amendment of MCR 3.965(B)(11) would more accurately reflect
the decisions made at the preliminary hearing in family division courts.
The proposed amendments of MCR 3.965(C)(3) would require not only that the
findings be made, but that the reasons supporting the findings be explicitly set forth.
The proposed amendments of MCR 3.965(D)(2) would conform the rule language
to that of the recent amendments of the "reasonable efforts" language in MCL 712A.19a,
as amended by 2004 PA 473 and would make its language consistent with the proposed
"reasonable efforts" language in MCR 3.976(B)(1).
The proposed amendments of MCR 3.966 would delete the term "custody order,"
and add the requirement from 2004 PA 477 that a review hearing occur within 182 days
of a child's removal from the home.
The proposed amendments of MCR 3.972 would conform the rule language to the
requirements of the Adoption and Safe Families Act and would foster compliance with
the timing requirements of that act, thereby ensuring that children in foster care will
receive federal funding.
The proposed amendment of MCR 3.973(C), reducing the time for holding a
dispositional hearing from 35 to 28 days, would conform the time for resolving an abuse
and neglect case to the mandatory federal time lines for ensuring that a child removed
from the home receives federal foster care funding.
The proposed amendment of MCR 3.974(A)(2) would conform the review
hearing time lines to recent statutory amendments of MCL 712A.19 as implemented by
2004 PA 477. The proposed amendment of subrule B would clarify that removal of a
child who remained at home following disposition must be conducted pursuant to MCR
3.963 and MCR 3.965.
The proposed amendment of MCR 3.975 would conform the review hearing time
lines to statutory amendments of MCL 712A.19 as implemented by 2004 PA 477.
The proposed amendments of MCR 3.976(B)(1) would track amendments of
MCL 712A.19a of the Juvenile Code as adopted by 2004 PA 473. The change of the
phrase "one year" to "12 months" in subrules B(2) and (3) would conform the rule's
language to that used in the Juvenile Code and to the other family division rules that
generally mention time limits in terms of months rather than years. The additional
language in subrule 2 and new subrule 4 would ensure that the permanency planning
hearing is completed within the time limitations required by the Adoption and Safe
Families Act (ASFA), 42 USC 675(5)(C). Compliance with ASFA is necessary for a
child placed in foster care to receive federal funds. 42 USC 672. Proposed amendments
of MCR 3.975(C) would clarify, in compliance with federal regulations, which specific
parties are entitled to participate in permanency planning hearings. Proposed
amendments of MCR 3.976(E)(1) would clarify the kinds of placement decisions courts
must make in order to comply with the Children's Bureau's interpretation of the ASFA
regarding qualifying placements for federal foster care funds.
The proposed amendment of MCR 3.978(A) would clarify a misconception
created by the existing language of the subrule. Because the current language appears to
create an exception for relative placements and permanent foster care arrangements,
courts often failed to hold the requisite post-termination review hearings in such
situations. The proposed amendment would make it clear to family division courts that
they are required to hold post-termination review hearings even where the child is placed
with a relative or in a long-term foster care setting. The phrase "permanent planned
living arrangement" replaces the reference to "permanent foster family agreement." The
substituted phrase comports with the Children's Bureau's interpretation of the ASFA
regarding qualifying permanent placements for receipt of federal foster care funds.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State
Court Administrator so that they can make the notifications specified in MCR 1.201.
Comments on these proposals may be sent to the Supreme Court Clerk in writing or
electronically by August 1, 2006, at P.O. Box 30052, Lansing, MI 48909, or
MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No.
2005-04. Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/Resources/Administrative/index.htm.