Child Neglect and Child Abuse Cases in Michigan - Your Parental Rights

8/24/2011 Allegations in Michigan involving child neglect and child abuse cases can involve the prosecutor's office or the attorney general's office depending upon the jurisdiction.  The allegations can be handled criminally, in family court, outside of court by child protective services, or a combination of any of these options.   Criminal Cases of Neglect or Abuse In Michigan an individual can be charged with either a misdemeanor or felony charge of child abuse depending upon the circumstances.  The individual charged with such allegation(s) can retain a criminal defense attorney to contest the charge(s), or request a court appointed attorney if he or she is indigent.   For misdemeanor charge(s) (maximum punishment 1 year in jail or less) a Defendant has the right to a trial in front of a Judge or a Jury of 6 people to contest the charge(s).  The prosecution has the sole burden of proving the allegations beyond a reasonable doubt.  The Defense can participate in the jury selection process (if applicable), provide an opening statement, call witnesses, cross examine witnesses, offer exhibits, give a closing argument.  The Defendant can elect to testify or remain silent.  Remaining silent is not supposed to be construed against the Defendant in any way.   For felony charge(s) (maximum punishment over 1 year in jail) a Defendant at the District Court has a right to a preliminary examination to challenge if probable cause exists.  At Circuit Court, the Defendant has the right to a trial in front of a Judge or a Jury of 12 people to contest the charge(s).  The prosecution has the sole burden of proving the allegations beyond a reasonable doubt.  The Defense can participate in the jury selection process (if applicable), provide an opening statement, call witnesses, cross examine witnesses, offer exhibits, give a closing argument.  The Defendant can elect to testify or remain silent.  Remaining silent is not supposed to be construed against the Defendant in any way.   The common defenses for these type of charges often include reasonable parental discipline, reasonable doubt that a particular person committed the neglect or abuse in question, the complaining witness is not being truthful about what occurred, or the opinion of the expert is not credible or flawed in their assessment of an injury.     Sometimes the attorney needs to file motions before the Judge prior to a trial to dismiss charges, suppress evidence, exclude evidence from consideration at trial, etc.  It is neccesary in some cases to retain or consult with an expert in order to rebut the testimony offered by the prosecutor's expert.  A medical expert can testify to the likelihood that the injury was intentional based upon the reported history of the allegation, the type of injury, the age and developmental stage of the child, and the location of the injury.   For sentencing, it is often necessary for a sentencing memorandum to be prepared and submitted to provide more positive details concerning the Defendant.  Judges are often troubled by these types of allegations, and effective representation is required to receive a fair result.   An effective representation concerning criminal charge(s) can make a big difference on how a companion neglect or abuse case is handled.  A good result in a criminal case can sometimes lead to a favorable amendment or dismissal of the neglect or abuse family court case.  A bad result, such as substantial incarceration, can lead to harsher consequences of a pending neglect or abuse family court case.   Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able - just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.     Neglect or Abuse Civil Cases Neglect or abuse cases are usually assigned to a child protective services worker after they receive a referral from a citizen, a police officer, a doctor, teacher, social worker, or other individuals.  For persons in some professions, it is a crime not to report allegations of neglect and/or abuse to child protective services.  Sometimes referrals are made because the person is overly sensitive to this legal requirement.   The worker assigned to the case tries to see whether or not the allegations constitute neglect and/or abuse, and whether or not the allegations can be substantiated.  To substantiate the allegations the worker interviews persons with knowledge of the allegations, reviews records and reports (if any), and reviews any prior child protective services history that may exist.  A parent can retain a lawyer to try and persuade the worker's evaluation of the case.   If neglect and/or abuse is substantiated, the worker assesses the risk involved.  Sometimes the risk is categorized as low, and a recommendation is made to the parent(s) as to how to learn from the situation to avoid it in the future.  Department of Human Services/Child Protective Services can have the parent(s) name added to a central registry in Lansing, that can affect his or her ability to become in the future a foster parent, have a licensed child care facility, etc.  The central registry entry can be challenged administratively if necessary.    Sometimes child protective services feels that the parent(s) can benefit from services which they or another agency provides.  If the parent(s) successfully complies with the services, the file is closed.  When the risk is deemed more serious, or the parent(s) fails to successfully comply with services, a petition that is in most cases coauthored with the prosecutor's office or the attorney general's office is filed with the family court.   At family court an intake hearing is held before a referee to determine whether or not there is probable cause to substantiate the allegations, and to determine where the child(ren) shall reside while the matter is pending.  The parent(s) are allowed to retain attorney(s) to defend the case, or can request the appointment of court appointed counsel due to indigency.    A lawyer (called a guardian ad litem) is appointed by the Court to represent the interest of the child(ren).  The guardian ad litem is at the intake hearing, and continues with the case as long as the Court retains jurisdiction.  Before each Court date (except for the intake hearing), the guardian ad litem has an obligation to visit with the child(ren).   The probable cause hearing can consist of hearsay evidence, which is often offered by the child protective services worker assigned to the case.  Both sides are allowed to present witnesses to challenge or substantiate the allegations.  The parties can elect to waive the probable cause determination and address the matter before a different referee, Judge, or Jury at a later date, but only if all parties agree to do so.  If a parent of the child(ren) are members of a Native American tribe, the rules are stricter and the burden of proof throughout the case is higher.   The decision as to placement of the child(ren) is supposed to be in the most family like setting possible.  Sometimes the child(ren) are allowed to remain with one or both parents as the case progresses.  Sometimes the child(ren) are placed in the care of a relative.  Frequently, the referee determines that setting to be a foster care home, even when family and friends are willing to step forward and be responsible for the child(ren).  The decision as to placement can always be revisited at future hearings.   There are 2 types of petitions that are authorized in neglect and abuse family court cases - temporary wardships and permanent wardships.  Whether or not the case is filed as a temporary wardship or a permanent wardship depends upon the severity of the abuse/neglect alleged.  Also, if the parent has previously had their parental rights terminated to 1 or more children the petitioner has the option to seek permanent wardship.   A neglect or abuse petition can be filed against a parent that did not commit any form of abuse or neglect if he or she failed to protect the child(ren) from the abuse and/or neglect in question.  Furthermore, in cases where there is an allegation of abuse and/or neglect as to one child, but not as to a sibling, an abuse and/or neglect petition can be filed concerning both children under the doctrine of anticipatory neglect.    A temporary wardship means that if the parent(s) plead guilty or no contest to the allegations, or the allegations are substantiated at trial, the parent(s) are required to enter into a parent agency agreement.  A parent agency agreement is a contract that provide conditions for the parent(s) to complete in order to have the child(ren) returned and for court involvement to end.  The conditions are usually things like parenting classes, counseling, drug and alcohol treatment, testing for drugs and alcohol, providing suitable housing, attending parenting sessions with the child(ren), etc.  The conditions are based upon the needs of the parent(s) and child(ren).  Review and permanency planning hearings are held to check on the parent(s) compliance with the parent agency agreement.  If the parent(s) fail to complete the terms of the parent agency agreement, or cannot complete it in a reasonable amount of time, child protective services and the prosecutor's office/ attorney general's office files a petition (or are directed to file a petition) to seek to terminate the parental rights.   A Permanent wardship petition seeks to permanently terminate the parental rights of the parent(s) to the child(ren).  For permanent wardship cases the referee and/or Judge can deny the parents the right to any parenting time while the case is pending.    There are 2 separate trials contained within a permanent wardship case - the adjudication phase, and a best interest hearing.  For the adjudication phase the parent(s) can have a trial in front of a Judge, Jury, or referee in which child protective services and the prosecutor's office/attorney general's office must prove by clear and convincing evidence the allegations contained in the petition.  For members of a Native American tribe the burden is beyond a reasonable doubt.  At trial both sides can participate in jury selection (if applicable), present witnesses, cross examine witnesses, present exhibits, and make opening and closing statements.  If the allegations are not substantiated, the case ends, the jurisdiction of the Court ends, and the child(ren) are returned if they were removed from their parent(s) direct custody and supervision.   If the allegations are substantiated, the matter is scheduled for a best interest hearing.  Sometimes the parent will plead guilty or no contest during the adjudication phase, and challenge the case at the best interest hearing.  At the best interest hearing the burden changes, and the parent(s) must show that termination of parental rights is clearly not in the best interest of the child(ren).  Oftentimes, a psychologist will interview the parent(s) and child prior to the best interest hearing and offer testimony.  The best interest hearing is scheduled before a Judge or referee - a jury is not involved in this proceeding.   At the best interest hearing both sides can present witnesses, cross examine witnesses, present exhibits, and make opening and closing statements.   The referee or Judge can either decide to terminate the parental rights, or amend the petition to a temporary wardship and allow the parent(s) to participate in a parent agency agreement.  Termination of parental rights involve the permanent ceasation of the parent(s) ability to have any legal rights to the child(ren).  In Michigan (unlike some other states), once parental rights are terminated, it cannot be reversed at a later date except through the appellate court process.   Effective legal representation can sometimes lead to the reduction of a case from a permanent wardship to a temporary wardship though a plea bargain.  The lawyer may be able to close the file in a more expediant manner, or lessen the terms of the parent agency agreement, through persuasive representation.   Daniel Hilf, Esq. of the law firm of Hilf & Hilf, PLC, is a lawyer who is driven by a commitment to his clients. His legal career is distinguished by an ability to think on his feet, to analyze issues in both conventional and unconventional ways, and to react effectively against the challenges presented by Prosecutors and Courts.   “There is no greater hardship than to be deprived of your family and freedom, and the quality of the lawyer often makes all the difference. When the government – the prosecutors and the police, with all its power and indifference, chooses to act against you, you need a lawyer with the confidence, the experience and talent to obtain the right result. I cannot let my clients down, and I will fight for them”.