Amendments of Rules 3.963, 2005-04

Full title: Amendments of Rules 3.963, 3.965, and 3.976 of the Michigan Court Rules

Court: Supreme Court of Michigan

Date published: May 31, 2007

No. 2005-04 (Mich. May. 31, 2007)

Opinion

No. 2005-04

May 31, 2007.

On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendments of Rules 3.963, 3.965, and 3.976 of the Michigan Court Rules are adopted, effective September 1, 2007.

[Additions are indicated by underlining and deletions are indicated by strikeover.]

Rule 3.963 Protective Custody of Child

(A) [Unchanged.]

(B) Court-Ordered Custody.

(1) The court may issue a written order authorizing a child protective services worker, an officer, or other person deemed suitable by the court to immediately take a child into protective custody when, upon presentment of proofs as required by the court, 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, At the time it issues the order or as provided in MCR 3.965(D) , the court shall make a judicial determination that reasonable efforts to prevent removal of the child have been made or are not required. The court may also include in such an order authorization to enter specified premises to remove the child.

(2)-(3) [Unchanged.]

(C) [Unchanged.]

Rule 3.965 Preliminary Hearing

(A)-(C)[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 have been made 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); 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 such aiding and abetting the commission of 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 3.976 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 given one of the following circumstances:

(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.

(b) The parent has been convicted of one 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 the murder of another child of the parent, or aiding and abetting the or such a voluntary manslaughter of another child of the parent, or the attempted murder 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.

(c) The parent has had rights to one of the child's siblings involuntarily terminated.

(2)-(4) [Unchanged.]

(C)-(E)[Unchanged.]

Staff Comment: Revised Paragraph of staff comment as it pertains to Rule 3.963 from the order dated October 24, 2006: The amendment of MCR 3.963(B)(1) reflects 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. Other changes require orders authorizing the removal of a child to be in writing. The amendment also clarifies that the court should make a "reasonable efforts" finding at the child's removal, or within 60 days of the child's removal under MCR 3.965, or make a finding that "reasonable efforts" are not required. Revised Paragraph of staff comment as it pertains to Rule 3.965 from order dated October 24, 2006: The amendments of MCR 3.965(D)(2) 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 make its language consistent with the proposed "reasonable efforts" language in MCR 3.976(B)(1). The amendments add language to clarify that a court can determine that an agency has made reasonable efforts to prevent removal have been made or can determine that reasonable efforts to prevent removal are not required due to aggravated circumstances.

An additional amendment of MCR 3.965(D)(2)(b)(iii) mirrors the provision in the federal Social Security Act at 42 USC 671(a)(15)(D)(ii)(III), which was suggested in a letter from the Department of Health and Human Services. For the full text of the letter, please see the staff comment of MCR 3.976. Revised Paragraph of staff comment as it pertains to Rule 3.972 from order dated October 24, 2006: The amendments of MCR 3.972 conform the rule language to the requirements of the Adoption and Safe Families Act and foster compliance with the timing requirements of that act, thereby helping to ensure that children increase the possibility that children in foster care will receive federal funding. The amendments require that a review hearing be held within 182 days of a child's removal from the home, even if the trial in the proceeding has not been completed.

Staff Comment for MCR 3.976 : The amendment of MCR 3.976(B)(1)(a) deletes a phrase ("guardian, custodian, or nonparent adult") to make the rule more consistent with the federal statute that requires a permanency planning hearing to be held if the court finds that reasonable efforts to prevent removal or reunite the family are not required because the parent (as opposed to the guardian, custodian, or nonparent adult) has subjected the child to aggravated circumstances.

The amendment of MCR 3.976(B)(1)(b)(iii), which is identical to a change made in MCR 3.965(D)(2)(b)(iii), mirrors the provision in the federal Social Security Act at 42 USC 671(a)(15)(D)(ii)(III), as pointed out by the Department of Health and Human Services.

Following the Court's adoption of the 2006 amendments to the juvenile rules, the Court asked the Department of Health and Human Services to review the rules and provide feedback on whether it believed the rules comply with federal regulations regarding Title IV-E cases. HHS responded by letter suggesting several minor amendments as follows:

Dear Chief Justice Taylor:

Dr. Wade Horn has asked that I respond to your letter of November 15, 2006, requesting that the Department of Health and Human Services review and determine whether Michigan's recently amended Court Rules comply with title IV-E of the Social Security Act (the Act).

The courts play an integral role in assuring that the protections afforded to children and families by the Act are achieved, and we appreciate the attention the Michigan court has given to the Federal requirements. We also appreciate the opportunity to provide input on the amended Court Rules. Our observations follow:

(1) We note that Rule 3.976(B)(1)(a) specifies the circumstances under which a reasonable efforts determination is not required by the court and is broader than allowed by Federal statute at section 471(15)(D) [sic]. Federal statute does not require reasonable efforts be made by the State if certain acts have been committed by a parent. However, in addition to the parent, Rule 3.976(b)(1)(a) does not require reasonable efforts to be made if those acts are committed by a guardian, custodian or nonparent adult. To be in compliance with Federal law, the Court Rule must be limited to acts committed by the parent. [This change is made as part of this order.]

(2) We note that under 3.976(E)(3)(b) that the court has the authority to "place the child" and under 3.975(G)(2) to "change the placement of the child." We encourage the court to be sensitive to the requirement under section 472(a)(2)(B) [sic] of the Act that the State agency must have responsibility for placement and care of a child as a condition of title IV-E eligibility. If a court-ordered placement involves the court taking placement responsibility away from the agency and assuming such responsibility by choosing a child's placement, the child would not be eligible for title IV-E foster care maintenance payments. This does not mean that the court must always concur with the agency's recommendation in order for the child to be eligible for title IV-E funding. As long as the court hears the relevant testimony and works with all parties, including the agency with placement and care responsibility, to make appropriate placement decisions, the title IV-E requirement will be met. For further guidance on the requirement for the responsibility for placement and care, please refer to section 8.3A.12 of the Children's Bureau on-line Child Welfare Policy Manual available at: http://www.acf.hhs.gov/j2ee/programs/cb/bylaws_policies /laws/cwpm/index/jsp. [Because judges in Michigan have been well-trained and are sensitive to the requirement that placement and care is typically a State agency (DHS) responsibility, and because HHS notes that even if a judge places a child, such placement may be eligible for federal reimbursement, and finally, because HHS does not recommend a change to this rule, the Court did not adopt a specific change related to this portion of the HHS letter.]

(3) We also note that the language in Rule 3.965(D)(2)(b)(iii) and Rule 3.976(B)(1)(b)(iii) do not contain the same language and that the language in neither mirror that of section 471(15)(D)(III) [sic] of the Act. While provisions, as written, do not conflict with Federal statute, we wanted to bring this to your attention. [The Court adopted language in these two rules conforming it to the federal statutory language.]

We hope these comments are useful as Michigan strives for compliance with title IV-E statutory and regulatory requirements. We encourage the judicial system to continue its close collaboration with the Michigan Department of Human Services. Your on-going collaboration, as well as a partnership, with the State Legislature is key in ensuring that State statute, Court Rules and agency policy are working in concert to comply with Federal child welfare requirements. We appreciate the collaborative approach that Michigan has embarked on to strengthen the State's mission to promote the safety, permanency and well-being of its children and families.

In light of HHS's letter, the Court presumes that in all other respects, the rules now comply with federal requirements for title IV-E purposes.

The staff comment is not an authoritative construction by the Court.