Court of Appeals Holds Placement for Child With Power of Attorney Sufficient to Avoid Removal
Opinion Published: July 14, 2026 (M.J. Kelly, P.J. Patel and Korobkin, JJ)
COA Docket No. 378232
Genesee County Circuit Court
Holding: The Trial Court clearly erred by finding the conditions for removal as to respondent-father were satisfied under MCL 712A.13a(9) and MCR 3.965(C)(2).
Facts: DHHS and CPS became involved with the family shortly after the child’s birth in 2016. J.B. was exposed to both alcohol and cocaine in utero and was diagnosed with Down Syndrome and neonatal abstinence syndrome. At the time of DHHS and CPS’s initial involvement, the respondent-father was using cocaine and had been incarcerated for domestic violence involving J.B.’s mother.
In 2016, 2017, 2021, and 2023, DHHS filed petitions for removal due to allegations of substance abuse, domestic violence, improper supervision, and unsafe housing. While the Trial Court took jurisdiction over J.B., the Court terminated its jurisdiction each time after the family completed substance abuse treatment, drug court, or began regular participation in other services.
In August 2025, DHHS filed the petition at issue in this case, alleging substance abuse and domestic violence in the home. At the time of the initial preliminary hearing, J.B. was living with his adult sister, respondent-father was in jail, and J.B.’s mother was at a residential treatment facility. Since J.B. was housed with the adult sister, who had power of attorney over J.B., DHHS determined J.B. was safe and emergency removal was unnecessary. When the preliminary resumed, DHHS sought removal from both parents. The CPS investigator noted that the placement with the adult sister was safe and passed all their checks; however, J.B.’s mother had allegedly attempted to remove J.B. from the sister’s care at least once while she was intoxicated.
The Court authorized the petition noting that if the child was not removed, either parent could go over at any time, as they have in the past, and pick up the child.
Key Appellate Rulings:
There was clear error when the Trial Court removed J.B. from respondent’s care. A trial court cannot make removal findings on the basis of one parent’s behavior and rely solely on such findings to remove the child from both parents.
When the Trial Court evaluated the requirements under MCL 712A.13a(9) it properly found that custody of the child with respondent presented a substantial risk of harm. Further, the Trial Court properly determined reasonable efforts had been made and were unsuccessful. Finally the Trial Court determined that conditions of custody away from respondent were adequate to safeguard the child’s health and welfare. The Court of Appeals agreed with the decision as to MCL 712A.13a(9) a,c,d,e noting that each finding was supported by record evidence.
However, the Court of Appeals held the Trial Court erred in findings under MCL 712A.13a(9)(b), that “[n]o provision of service or other arrangement except removal of the child [was] reasonably available to adequately safeguard the child.” Specifically, the Court of Appeals determined that the placement with J.B.’s adult sister was a reasonably available arrangement which adequately safeguarded the welfare of the child. The Trial Court’s rejection of this placement was based solely on the mother’s behavior of attempting to remove the child—not the actions of respondent-father. A trial court cannot make removal findings on the basis of one parent’s behavior and rely solely on such findings to remove the child from both parents.
As a general matter, the mere duration and revocability of a power of attorney is not a reason to find placement cannot adequately safeguard the child.
DHHS attempted to argue that the Trial Court did not err because absent removal respondent-father could have revoked the power of attorney and bring J.B. back into his care at anytime. The Court of Appeals found this argument unpersuasive and noted the hypothetical nature of this concern. Further, there was no evidence showing respondent-father attempted to remove J.B. or otherwise undermine the safety plan. DHHS merely presented a hypothetical based upon the mother’s alleged behavior, which was not substantially proven at trial. The statutory language of MCL 712A.13a(9) is concerned with protecting a child from current risks, not speculative ones unsupported by record evidence.
