Background
The Department of Health and Human Services and Children’s Protection Services became involved with this family in 2016 after the child’s birth, when the child had been exposed to alcohol and cocaine in utero and was diagnosed with Down syndrome and neonatal abstinence syndrome. The father had a history of cocaine use and domestic violence involving the child’s mother. After initial involvement, the parents participated in substance abuse treatment and the case was dismissed. A second petition in 2017 resulted in court jurisdiction but no removal; the case was closed after parents completed drug-treatment court. In May 2024, jurisdiction was terminated after the parents made progress on sobriety, housing, and services.
In August 2025, DHHS filed a new removal petition citing continued substance abuse and domestic violence. By the preliminary hearing in September 2025, the child was living with the child’s adult sister, the father was incarcerated, and the mother was in residential treatment. The father had voluntarily delegated power of attorney to his adult sister and agreed to a safety plan placing the child in her care. DHHS acknowledged the sister’s home was safe and appropriate, having “passed all of our checks.” However, DHHS alleged the mother had attempted to retrieve the child while intoxicated in violation of the safety plan. The trial court authorized the removal petition and ordered the child removed from both parents.
The Court’s Holding
The Michigan Court of Appeals reversed the removal order, finding the trial court clearly erred in its analysis under MCL 712A.13a(9). That statute permits removal only if all enumerated conditions are satisfied, including that “no provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from the risk” of harm. The appellate court agreed with the father that this condition was not met because the child was already voluntarily placed with the adult sister under a valid power of attorney arrangement that DHHS itself had confirmed was safe and appropriate.
The court found fatal errors in the trial court’s reasoning. First, the trial court improperly attributed the mother’s alleged attempted retrieval to the father in order to justify removing from him, violating the principle that removal findings cannot rest on one parent’s conduct when applied to both parents. Second, the trial court’s concern that the father “might” revoke the power of attorney was purely speculative—there was no evidence in the record that the father had attempted to interfere with the sister’s custody or had any intention of doing so. The court rejected arguments based on prior cases about power of attorney, finding those cases addressed jurisdictional issues rather than the specific question of whether power-of-attorney placements can adequately safeguard children for removal purposes.
Key Takeaways
- In child removal proceedings, all statutory conditions under MCL 712A.13a(9) must be satisfied; failure to satisfy even one requires reversal.
- Safe relative placements approved by child protective services can constitute adequate safeguards without removal, even when made through a revocable power of attorney.
- Trial courts cannot base removal on one parent’s conduct to justify removing the child from both parents; factual findings must rest on that specific parent’s behavior.
- Speculative concerns about what a parent might do—without evidence the parent has actually attempted or plans to interfere with a stable arrangement—are insufficient to override an existing safe placement.
Why It Matters
This decision provides meaningful protection for parents who make responsible voluntary arrangements for their children while addressing personal struggles like substance abuse or domestic violence. The ruling clarifies that when a parent cooperates with child protective services and ensures the child is placed in a safe, CPS-approved relative home through documented legal authority, the mere theoretical possibility of revocation does not justify removal. Courts must ground removal decisions in actual evidence of risk and interference, not speculation about what parents might do.
For practitioners, the opinion reinforces that removal is not automatic once jurisdiction is established. Each statutory factor must be carefully evaluated with current evidence, and existing safe arrangements must be considered as alternatives to removal. The decision may encourage parents to engage in voluntary placements as part of case plans, knowing such arrangements will receive genuine consideration rather than being dismissed as inadequate merely because they are technically revocable.