Department of Human Services (DHS)
All current policy manuals that CPS is required to use in the course of their work.
Statutes and Regulations
Child Abuse and Neglect
- Mich. Comp. Laws § 722.622 — Definitions.
The definitions used by DHS and family court in child protective matters.
In Michigan, a “person responsible for the child’s health or welfare” means a parent, legal guardian, person age 18 or older who resides for any length of time in the same home as the child. It can also mean a “nonparent adult,” or a person over age 18 who may or may not reside in the same house as the child but who has “substantial and regular contact with the child,” a “close personal relationship with the child’s parent or with a person responsible for the child’s health or welfare,” and is not otherwise related to the child by blood or affinity to the third degree. This means that a sibling, friend of sibling, distant cousin, or almost any person can be a “person responsible for the child’s health or welfare” if they have a regular and close relationship with the child or the child’s parent.
“Physical abuse” includes “maltreatment by a parent, a legal guardian, or any other person responsible for the child’s health or welfare.” However, “neglect” is defined as “harm or threatened harm to a child’s health or welfare” from “negligent treatment” or “placing a child at an unreasonable risk to the child’s health or welfare by failure to intervene to eliminate that risk when that person is able to do so and has, or should have, knowledge of the risk.” This means that the actions of a fourth or even fifth party can be proof of child neglect resulting in CPS involvement in a family’s life, if DHS believes that the party’s actions placed the child at risk and that the child’s adult caretaker should have acted to protect the child from them.
- Mich. Comp. Laws § 722.623 — Individual required to report child abuse or neglect.
A list of “mandated reporters,” or professionals who are required to report known or suspected child abuse or neglect to OCFS, and the rules for when and how they must report.
- Mich. Comp. Laws § 722.628 — Referring report or commencing investigation.
- Mich. DHS Policy Manual 712-1 — Initial receipt of complaint.
- Mich. DHS Policy Manual 712-8 — CPS intake completion.
- Mich. DHS Policy Manual 713-1 — CPS investigation – General instructions and checklist.
How the department must respond to allegations of abuse and/or neglect, how investigations must be conducted, and the department’s duties and procedures. The initial allegation must only “minimally meet the child protection law definitions of child abuse and/or neglect” for DHS to commence an investigation or assessment. To substantiate the allegation following an investigation, only a “preponderance of evidence” is required, meaning that DHS has a burden of proof to show only that it is “more likely than not” that the abuse or neglect occurred. As per 713-9, investigations must be fully completed in thirty days from the department receiving the allegation.
- Mich. Comp. Laws § 722.628d — Categories and departmental response.
- Mich. DHS Policy Manual 300 — Program overview.
List of five categories of severity, designated for every report of child neglect received by DHS. Category V is designated when there is no evidence of the abuse or neglect, and no services are required. Category IV is when DHS does not have enough information to show by a preponderance of evidence (“more likely than not”) that child abuse and/or neglect occurred, but where future risk to the child is indicated and voluntary services are recommended. Category III is when DHS has established, more likely than not, that the abuse or neglect has occurred, and has labeled the case “low or moderate risk,” requiring some services. Category II requires evidence that the abuse or neglect occurred, and the child is at “high or intensive risk.” Finally, Category I is for the most serious abuse or neglect cases, requiring a court petition for jurisdiction over the child’s care and protection, emergency removal from the home, and/or a criminal referral to the District Attorney. When a family’s case is designated Category II, but the parent is not compliant with services, the case is bumped up to Category I. Being moved up a category can be true with every category except Category V. Agency regulations include the “structured decision-making tool” the department must use to place a case in these categories or change the category of an existing case.
- Mich. Comp. Laws § 722.623a — Knowledge or suspicion of alcohol, controlled substance, or metabolite of controlled substance in body of newborn. (eff. Mar. 31, 1997)
- Mich. DHS Policy Manual 716-7 — Drug and alcohol exposed infants.
A mandated reporter who knows, or given the child’s symptoms, has “reasonable cause to suspect” that a newborn infant has “a controlled substance, or a metabolite of a controlled substance in his or her body” must make a report to DHS. However, a mandated reporter is not required to make a report if the controlled substance, metabolite, or infant’s symptoms are “the result of medical treatment administered to the newborn infant or his or her mother.” Thus, the baby of medical marijuana patient should not be reported if the mother is under a doctor’s care and has received a valid recommendation for her ailment.
The newborn exposure section of policy 716-7 spells out how DHS must respond to and investigate reports of positive infant drug tests, including requirements to “assess the mother’s attitude and behavior with the infant,” assess the need for a substance abuse referral for the mother, and assess her “willingness and capacity to provide adequate care of the newborn and any other children in the home.” The assessment process also includes “contact[ing] relatives or other individuals who may have knowledge about the mother’s use of … drugs and the impact of such use on any other children in the home.” If a medical opinion finds that the infant has any amount of alcohol or drugs in his or her body that were not the result of medical treatment, DHS is required to confirm the report as physical abuse and classify it as Category I, II, or III (based on severity). A list is also provided by the department for caseworkers to better identify “Characteristics of Infants Which May Suggest Prenatal Exposure to Drugs or Alcohol” in 716-7. Furthermore, if the newborn requires medical treatment or hospitalization and a doctor states that his or her health or physical well-being is impaired, DHS is required to petition a court within 24 hours for protective order over the child.
- Mich. DHS Policy Manual 716-7 — Substance abuse cases.
The department has issued general guidance on parental substance abuse. This guidance states that substance abuse alone is not evidence of child abuse or neglect, and specifically mentions medical marijuana: “Parents use drugs (including, but not limited to, legally or illegally obtained controlled drugs such as medically prescribed marijuana …) … to varying degrees and many remain able to care for their child without harming the child. A careful evaluation must be made to determine whether a child is at risk.” This means that DHS requires a case-by-case investigation of reports involving parenting medical marijuana patients to assess whether they are able to properly care for their child(ren) or whether the child is at risk for abuse or neglect.
However, if marijuana is sold or traded as well as used in a home, it is considered a “drug house.” It is assumed that “criminality”, “loss of household control,” “unsecured weapons,” presence of substances, a high likelihood of violence, “general neglect” (e.g., “squalor” or “lack of food”), “unmet needs of the child,” and the “presence of individuals who endanger the child’s welfare” are conditions which are likely to exist in a drug house. General concerns of this nature (i.e., that drugs are being sold in a home) are always referred to law enforcement, as DHS does not decide whether a home is considered a “drug house.” DHS is always notified if a drug raid has occurred in a home and children were found residing there.
Administrative Appeals and Records
- Mich. Comp. Laws § 722.627 — Central registry.
- Mich. Comp. Laws § 722.627d — Release of information.
DHS records concerning particular cases of abuse or neglect are generally accessible only to professionals engaged in providing services or treatment for the family, including law enforcement, physicians, foster care agencies, and others. However, the director of the department may release “specified information” if there is “clear and convincing evidence” that the release is in the best interests of the child. The director can also release specified information if its release is “not in conflict with the best interests of the child,” and one or more of the following is true: (1) release is in the best interests of members of the child’s family (including grandparents and siblings); (2) release would clarify actions taken by the department on a specific case; (3) “all or part of the record is publicly disclosed in a judicial proceeding;” (4) the case “has been part of the subject matter of a published or broadcast media story,” or a number of other reasons.
- Mich. Comp. Laws § 722.627 — Central Registry; notice and review.
- Mich. Comp. Laws § 722.628(11) — Child Protective Service Information (CPSI) system.
- Mich. DHS Policy Manual 713-13 — Child Abuse and Neglect Central Registry (CA/NCR).
- Mich. DHS Policy Manual 717-3 — Administrative hearing procedures.
Michigan DHS keeps records on every case it investigates, and these are held in the Child Protective Service Information (CPSI) system, which is internal to DHS. Reports are maintained in CPSI “until the child about whom the investigation is made is age 18 or until 10 years after the investigation was commenced, whichever is later.”
However, cases that are substantiated and designated Category I or Category II are also placed on the state’s Central Registry. Central Registry cases are those in which “relevant and accurate evidence of child abuse or neglect is found to exist.” Before July 1, 1999, any substantiated allegation of child abuse or neglect was placed on the Central Registry, but after that date, only Category I and II cases are listed. A parent or guardian who is the alleged perpetrator of a report being placed on the Central Registry must be notified within 30 days of the designation by DHS, and can request that the record be amended or expunged (erased) for inaccuracies. If DHS refuses or does not act within 30 days of receiving that request, DHS must hold an administrative hearing to determine whether the report should be amended or erased. The standard at that hearing is, again, “preponderance of the evidence.” If the parent being listed as a perpetrator on the Central Registry wishes to further appeal this result after the administrative hearing, he or she must request judicial review through the state’s Administrative Procedures Act. Once a report is placed on the Central Registry, it remains there permanently and will not be removed until DHS “receives reliable information” that the alleged perpetrator of the abuse or neglect is dead.
State Marijuana Laws
Marijuana is not decriminalized in Michigan. However, in the city of Ann Arbor (with the exception of the University of Michigan campus), it has been decriminalized since the 1970s through the city charter, § 16.2, with a $25 fine for a first offense, $50 for a second, and $100 for a third. Ann Arbor has some of the most lenient cannabis laws in the country; however, none of them provide any CPS protections for parents, legal guardians, or other adults responsible for the care of children.
- Mich. Comp. Laws §§ 333.26421 et seq. — Michigan Medical Marihuana Act (eff. December 4, 2008)
- Mich. Admin. Code R. §§ 333.101 et seq. — Michigan Medical Marijuana rules. (eff. April 4, 2009)
Michigan’s medical marijuana law, passed by voters at the 2008 election, and full program rules. Overseen by the Michigan Department of Community Health (MDCH).
Government website of the medical marijuana program, administered by the Health Professions Division in the Bureau of Health Care Services within LARA, with more information on the program including full rules and policies, FAQ, statistics, notices of past and upcoming public hearings, forms, and more.
Extensive resources and information about medical marijuana and the Michigan program for Michigan patients, caregivers, compassion clubs, and health professionals. Includes a message board and a chat room.
- Mich. Comp. Laws § 333.26424 — Arrest, prosecution, or penalty prohibited.
This section of Michigan’s medical marijuana law grants broad protections to qualifying patients and caregivers, providing that anyone “who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege” for medical marijuana use that complies with the Medical Marihuana Act. Subsection (c) specifically creates CPS protections, stating: “A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.” In theory, this law protects custodial parents, non-custodial parents, and legal guardians who are legal medical marijuana patients or caregivers; it does not protect pregnant women. However, there is no definition of “unreasonable danger” or “clearly articulated and substantiated,” and no court has yet interpreted these provisions.
- Mich. Comp. Laws § 333.26427 — Scope of act; limitations.
Gives a list of actions which would make an approved medical marijuana patient fall foul of the medical marijuana act. Patients are not allowed to “undertake any task under the influence of marihuana, when doing so would constitute negligence,” drive a car or other moving vehicle, or perform other tasks when doing so could endanger others’ safety or welfare. This may include parenting or otherwise being responsible for a child’s care.
- Mich. Comp. Laws § 333.26428 — Defenses.
Michigan has affirmative defense and dismissal for persons charged with state crimes related to legal medical marijuana use. This means that a medical marijuana patient or caregiver “may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid,” as long as certain conditions are met. Importantly, the affirmative defense does not apply to a legal patient facing CPS actions or family court proceedings, because these are not criminal prosecutions.
- Mich. Att’y Gen. Op. No. 7271 (May 10, 2013) — Application of Michigan Medical Marihuana Act to child-protective proceedings.
In response to an inquiry by Michigan State Senator Rick Jones, Michigan’s Attorney General, Bill Schuette, released an advisory opinion on the application of the protections in the Michigan Medical Marihuana Act to CPS proceedings. Attorney General opinions do not have the force of law, but may be considered by courts deciding novel legal issues. Schuette’s opinion states that parents and legal guardians are provided with a general protection from penalty as long as they hold valid doctor’s recommendations and a patient or caregiver registration card from the state. According to Schuette, patients may not use the affirmative defense (discussed above) in response to a CPS proceeding. Schuette also believes that the provision specifically applying to parents (§ 333.26424(c), above) does not create “an independent source of immunity or protection” separate from the general protections for all legal patients and caregivers. Instead, Schuette’s opinion states that the parental-protective provision actually limits the general immunity and protections, denying protection to parents and caregivers when their behavior “creates an unreasonable danger to the minor that can be clearly articulated and substantiated.” Thus, parents are not always eligible for the general protections from penalty granted under § 333.26424(a) and (b).
Schuette’s opinion gives non-binding guidance on the application of the parental-protective provision of the medical marijuana law, although no Michigan court has issued a decision interpreting that section. Schuette suggests that agencies and courts “require a fact-specific inquiry based on the particular circumstances of each case” — in other words, that DHS conduct a case-by-case assessment or investigation to determine whether the parent-protective provision applies to a particular case, utilizing the department’s existing internal guidance (discussed above). Still, CPS and juvenile court may not determine who is or is not a patient or caregiver, as that is determined by the issuance of a valid registration card.
Schuette summarizes, “In other words … the medical use of marihuana alone does not create an unreasonable danger to a child. But if the marihuana use affects the parent or caregiver’s ability to adequately care for a child, or if the marihuana use presents a particular danger, say to an asthmatic child, such circumstances could create an unreasonable danger to the child.” Additionally, “any assertion that a person’s behavior associated with the medical use of marihuana presents an unreasonable danger to a child must be clearly expressed and supported by evidence” meeting the legal standard required for the case at issue.
All Michigan Laws & Penalties (NORML)
Last updated: December 7, 2013 at 15:23 pm