Court Of Appeals Vacates Child Removal Order Over Due Process Violations
Opinion Published: June 9, 2026 (Cameron, P.J., and Boonstra and Swartzle, JJ.)
Docket No. 377819
Ogemaw Circuit Court
Holding: The trial court plainly erred when it ordered respondent’s children removed from her care. Under MCR 3.974(C)(3)(a), the hearing held by the trial court was not an emergency removal hearing. Since the trial court did not follow the procedural requirements to remove the children from her care, the court violated respondent’s procedural due process rights. The Court of Appeals vacated the removal order and remanded for further proceedings consistent with the opinion.
Facts: The Department of Health and Human Services (DHHS) filed a petition requesting that the trial court exercise jurisdiction over the children but did not request the children’s removal from respondent’s care. Respondent appeared for the preliminary hearing on August 6, confirmed she received and understood the petition, and trial court adjourned the hearing so she could obtain a court-appointed attorney. After the first day of the preliminary hearing, counsel was appointed and the preliminary hearing was adjourned until September 29.
Following an incident involving respondent-parent, DHHS filed an amended petition on September 5 requesting an order removing the children from respondent’s care, including allegations related to the incident. The same day, the trial court held what it called an emergency removal hearing. Respondent was not present and substitute counsel appeared, confirming he received a copy of the amended petition but stated he did not know where respondent was nor had he heard from her. The CPS investigator stated that respondent was notified of the hearing and provided the amended petition, but the investigator had not received a response.
The trial court noted it would address the amended petition at the already scheduled hearing on September 29, then entered an order to take the children into protective custody, finding that the notice of proceedings had been provided as required by law. Respondent appealed.
Key Appellate Holdings:
The September 5th hearing was not a valid emergency removal hearing.
The trial court entered an order to take the children into protective custody before holding the required emergency removal hearing. The 24-hour window for the trial court to hold an emergency hearing was triggered by the protective custody order, which purported to arise from an emergency hearing. Yet the trial court had not authorized either the original or amended petition to remove the children, so under MCR 3.974(C), when the court held that the September 5 hearing, it did not constitute to an emergency removal hearing.
The trial court did not have the authority to order the removal of the children.
Even if the trial court had reasonable cause to believe the removal was necessary, without an authorized petition, the court lacked the authority. The trial court did not comply with the necessary procedures required for emergency protective custody and emergency removal hearings.
The trial court did not provide the proper notice required.
The trial court failed to hold a procedurally valid emergency removal hearing, so it should have followed the requirements of an ordinary preliminary hearing. The trial court did not satisfy the required notice to respondent-parent, so it erred when it held that the notice of proceedings was given. The court was required to adjourn the hearing to secure respondent’s appearance, stated that it would adjourn the hearing until the originally scheduled date of September 29, but proceeded to take testimony and make findings on September 5 that would constitute to a preliminary hearing and order, but without the required 7-days’ notice under MCR 3.920(D)(1).
The procedural errors affected respondent’s substantial rights.
The trial court made its findings from the defective removal hearing which offered respondent no opportunity to be heard. At the defective hearing, respondent was represented by substitute counsel who had not had any contact with respondent. If proper notice were given, or the hearing properly adjourned to secure respondent’s appearance, then her counsel would have had more time to prepare a defense. The procedurally deficient hearing seriously affected the integrity of the judicial proceedings.
