Lynn D‘Orio, JD, PLC

Family Law:
Child Abuse and Neglect

Mother and daughter

In the child abuse and neglect arena, Lynn will fight to protect the fundamental right of parents to raise their children.

She is familiar with Child Protective Services and the Department of Human Services (formerly the Family Independence Agency) in Ann Arbor.

She understands the anger and frustration her clients feel when faced with the possible termination of their parental rights.

She will investigate and search for the medical and environmental factors that give rise to the accusations of child abuse and child neglect and will work with her clients to identify needs that should be addressed in light of the accusations.

Procedure for Child Abuse and Neglect Cases

The Child Protective Services division of the Department of Human Services 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.

DHS 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:

A Preliminary hearing is conducted within 24 hours if the child is removed from the home, excluding Sundays and holidays. At the preliminary hearing, the parents (called the Respondents) 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) 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: At a conference the court and the attorneys for the parties may consider any matters that will facilitate the fair and expeditious disposition of the action, including:

Father and daughter

Plea of Responsible:

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:

The plea must be knowingly, understandingly, and voluntarily made. (See link: Sentencing and Plea Bargaining for additional information regarding knowing, understanding and voluntary plea.)

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:

A Respondent can plead no contest or nolo contendre. (See link: Sentencing and Plea Bargaining for more information on no contest pleas.)

Trials: 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 (DHS who is represented by the county prosecutor) 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 6 people. (See link: Criminal Justice Overview, "Jury Selection" for more information.)

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:

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: