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Fighting CPS and the Court to Get Your Children Back

Michigan has a Juvenile Code that covers proceedings to terminate parental rights based on abuse or neglect. When there is a complaint to CPS about abuse or neglect, CPS has the obligation to “investigate” the claim and substantiate it if there is enough evidence to support the allegation of abuse or neglect. If a claim is substantiated and there is a court action as a result, the parent faces a two-stage proceeding. The first stage asks whether there was, in fact, abuse or neglect of a child—and whether the responding parent was responsible for that abuse or neglect. This is the adjudicative stage.

If the court finds that there was abuse or neglect of a child and that the parent was responsible for it, then the case proceeds to the dispositional stage. During the dispositional stage, the court tries to resolve the situation with services if possible and reunite the child with the parent. If that effort fails, then the court considers terminating parental rights.

In In re Holt, Minors, Case No. 326338 in the Court of Appeals, the father’s rights were terminated after efforts to resolve the situation were unsuccessful. In that case as in other cases involving abuse and neglect, there was a “service plan” that the court adopted and which the parent was required to follow. The initial service plan required that the father (a) undergo mental health services; (b) find and maintain suitable housing; (c) address his lack of resources; and (d) improve his parenting skills. This is a typical service plan. Other plans might involve drug treatment, demands that an abusive partner move out of the home, employment, suitable housing, anger management counseling, parenting classes, and the like.

When the father in Holt failed to participate in and benefit from the many services offered to him, his rights were terminated. In fact, while he eventually completed a psychological evaluation, the father failed to attend counseling sessions and/or refused to participate in them. As a result, he was discharged from treatment due to his inappropriate behavior and then failed to obtain any further treatment. The father did not obtain or maintain suitable housing. He wanted to live with his parents, but that option was considered inappropriate because both his parents had criminal convictions.

During the visits the father had during the case, he was uninvolved with the children. According to the court decision, “[H]e would often be on his phone, arrive late or leave early, and, on more than one occasion, fall asleep. There was also testimony that respondent frequently became aggressive during parenting-time visits. On one occasion, he yelled and used profanity in front of employees and his children, and left the facility after law enforcement arrived.”

The father repeatedly refused to take drug tests or tested positive. He was incarcerated during the proceeding for forging a prescription and resisting arrest, and he had serious mental health issues.

This case is a virtual handbook on how not to behave when you are charged with abuse or neglect and when a court is “watching” you. While parents who end up in the “system” often think that CPS and/or the court are being “mean” to them or are pushing their buttons (as the father in the Holt case claimed), the fact is that these cases are about children primarily and not about their parents. When a court finds that a child’s best interest conflicts with his or her parent’s conduct or choices, the court will almost always side with the child.

The nice thing is that the “service plan” is a virtual recipe for how to get your children back. It is a check list—and the check list is almost always achievable and do-able unless the parent continues to use drugs, refuses mental health treatment, fails to find a job and/or housing, and/or rejects services that are offered. If services are accepted, but the parent fails to benefit from them, parental rights can be terminated on that basis.

The court will appoint an attorney for parents who cannot afford one if termination of parental rights is a possibility. The problem is that attorneys are not magicians. While attorneys are trained to be zealous advocates, they are stuck with their client’s drug test results, their client’s history of income, and their client’s attitude when dealing with CPS and the Court. If you want to get your kids back, then you have to at least act like you care.

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