Rule 3.974.Procedures for Child at Home; Petition Authorized

MCR 3.974 handles the child protective case in which the child is at home. A petition has been authorized, the court is watching, and the questions are how often progress gets reviewed and what has to happen before the child can be removed. The rule answers both, and adds an emergency track for the times when waiting is not safe.

Reviewing progress

Subrule (A)(1) requires the court to review periodically the progress of a child not in foster care over whom it has taken jurisdiction. For a child never removed from the home, subrule (A)(2) puts the first review no later than 182 days from the date the petition was authorized, then no later than every 91 days after that for the first year the child is subject to the court's jurisdiction. After that first year, reviews run no later than every 182 days from each preceding hearing until the court terminates jurisdiction. A review also occurs no later than 182 days after the child returns home and is no longer in foster care. If the child was removed and later returned home, the schedule in MCR 3.975 governs instead.

Moving a child out of the home

Subrule (A)(3) states the default: except as provided in subrule (C), the court may not order a change in placement without a hearing. If it comes to the court's attention at a review hearing that the child should be removed, the court may order placement, but the parent must be present and the court must comply with the placement provisions in MCR 3.965(C). If the parent is not present, the court proceeds under subrule (C) before it may order removal. For an Indian child, the court must also conduct a removal hearing in accordance with MCR 3.967.

Subrule (B) splits the petition route by posture. Preadjudication, where a child with an authorized petition is not yet under the court's jurisdiction and an amended petition seeks removal, the court conducts a hearing on the petition. Postadjudication, under subrule (B)(2), the court conducts a hearing on the supplemental petition, gives notice as provided in MCR 3.920 and MCR 3.921, and unless the child remains home must make a written determination that the placement criteria listed in MCR 3.965(C)(2) are satisfied.

Emergency removal

Under subrule (C)(1) the court may order a child taken into protective custody pending an emergency removal hearing, on the conditions listed in MCR 3.963(B)(1) and on receipt, electronically or otherwise, of a petition or affidavit of fact. Where the child is an Indian child who resides or is domiciled within a reservation but is temporarily located off it, protective custody is available only when necessary to prevent imminent physical damage or harm. Subrule (C)(3) requires the 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). The parent from whom the child was removed must receive a written statement of the reasons and be advised of the rights to counsel, to contest continuing placement at a hearing within 14 days, and to use compulsory process.

After placement

Subrule (D) picks up where placement leaves off. If no dispositional hearing has been held under MCR 3.973, one must be conducted within 28 days after the child is placed by the court, except for good cause shown. If disposition has already happened, a dispositional review hearing must commence no later than 14 days after placement, again except for good cause, and it may be combined with the Indian child removal hearing prescribed by MCR 3.967. The court must also advise the parent, guardian, or legal custodian of the right to appeal the removal order.