Termination of Parental Rights and Sexual Abuse in Michigan

Termination of parental rights ends the legal relationship between a parent and a child. In Michigan a court may order it only after finding, by clear and convincing evidence, at least one ground listed in MCL 712A.19b(3).^[1] Several of those grounds involve sexual abuse, and one is based on a parent's conviction of criminal sexual conduct (CSC).^[2][3][4]

If you or a child are in danger, call 911. Michigan's VOICES4 sexual assault hotline can be reached by call or text at 1-855-864-2374.^[7] The National Sexual Assault Hotline is free, confidential and open 24 hours a day at 800-656-HOPE (4673).^[8]

This page lists the grounds that involve sexual abuse, explains the two findings a court must make, and describes when the state is required to file a petition. It does not cover the court rules for child protective proceedings, which were not read for this guide.

How is termination different from a custody ruling or a criminal case?

Three separate systems can deal with the same allegation.

Proceeding	What it decides	Standard in the statutes cited here
Criminal prosecution	Guilt and sentence	Covered elsewhere in this guide; see what happens at a CSC trial
Custody or parenting-time case under the Child Custody Act	Where the child lives and what contact a parent has	Best interests of the child control, with specific CSC bars[9][10]
Termination under the juvenile code	Whether the legal parent-child relationship ends	Clear and convincing evidence of a listed ground, plus best interests[1][6]

The three proceedings apply different statutes and standards. The custody rules are covered in custody and parenting time after a sex-offense conviction.

Which statutory grounds involve sexual abuse?

MCL 712A.19b(3) lists the grounds by letter. This page describes the ones that refer to sexual abuse or a CSC conviction, and the general likelihood-of-harm ground. The statute's opening words are that the court "may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following."^[1]

Ground (b): the child or a sibling suffered sexual abuse

This ground applies where the child or a sibling has suffered physical injury or physical or sexual abuse in one of three circumstances:^[2]

• The parent's act caused the abuse, and the court finds a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.^[2]
• The parent had the opportunity to prevent the abuse and failed to do so, and the court makes the same finding about the foreseeable future.^[2]
• A nonparent adult's act caused the abuse, and the court finds a reasonable likelihood that the child will suffer injury or abuse by that nonparent adult in the foreseeable future if placed in the parent's home.^[2]

Ground (k): abuse that included criminal sexual conduct

This ground applies where the parent abused the child or a sibling, the abuse included one of a list of serious acts, and there is a reasonable likelihood that the child will be harmed if returned to the care of the parent. The list includes "criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate" and sexual abuse as that term is defined in the Child Protection Law.^[3]

Ground (m): a criminal conviction

This ground applies where the parent is convicted of one or more listed crimes "and the court determines that termination is in the child's best interests because continuing the parent-child relationship with the parent would be harmful to the child." The listed crimes include violations of sections 520b, 520c, 520d, 520e and 520g of the Penal Code, which are first- through fourth-degree CSC and assault with intent to commit CSC.^[4]

The ground also reaches a conviction under a federal law or a law of another state with provisions substantially similar to the listed crimes.^[11]

Unlike grounds (b) and (k), ground (m) is not limited by its words to an offense against the parent's own child or the child's sibling.^[4][2][3] What it requires in addition to the conviction is the harm determination quoted above.^[4]

Ground (j): likelihood of harm

A more general ground applies where there is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if returned to the home of the parent.^[12]

Ground	Is a criminal conviction part of the ground?	Whose abuse?	Additional finding in the ground
(b)(i)	No[2]	The parent's act	Reasonable likelihood of injury or abuse in the foreseeable future if placed in the parent's home[2]
(b)(ii)	No[2]	Another's act the parent had the opportunity to prevent	The same[2]
(k)(ii), (k)(ix)	No[3]	The parent abused the child or a sibling	Reasonable likelihood of harm if returned to the parent's care[3]
(m)(i)	Yes[4]	The parent's convicted conduct	Termination is in the child's best interests because continuing the relationship would be harmful[4]

Two more grounds refer to sexual abuse through an earlier case. Ground (i) applies where parental rights to one or more siblings were terminated due to serious and chronic neglect or physical or sexual abuse and the parent has failed to rectify the conditions that led to that termination. Ground (l) applies where the parent's rights to another child were voluntarily terminated after child-protective proceedings began, that proceeding involved abuse that included criminal sexual conduct involving penetration, attempted penetration or assault with intent to penetrate, or sexual abuse as defined in the Child Protection Law, and the parent has failed to rectify the conditions.^[13]

This is not the full list of grounds in the statute. Others, such as desertion and failure to provide proper care, are outside the scope of this page.

What does the court have to find?

There are two findings.

1. A statutory ground. The court must find one or more of the listed grounds by clear and convincing evidence.^[1]
2. Best interests. If the court finds that there are grounds for termination and that termination of parental rights is in the child's best interests, the court shall order termination and order that additional efforts for reunification of the child with the parent not be made.^[6]

The first step is permissive in its wording ("may terminate"); once both findings are made, the statute is mandatory ("shall order").^[1][6]

The court must state on the record or in writing its findings of fact and conclusions of law, and must issue an opinion or order within 70 days after the commencement of the initial hearing on the petition.^[14]

Who can ask for termination?

A termination hearing is held on the petition of the prosecuting attorney, the child, a guardian, a custodian, a concerned person, an agency, or the child advocate.^[14]

When must the state file a petition?

The Child Protection Law requires a petition in listed cases. The department "shall submit a petition for authorization by the court" if it determines that a parent, guardian, or custodian, or a person 18 years of age or older who resides for any length of time in the child's home, has abused the child or a sibling of the child and the abuse included one of several listed acts. One of them is "criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate."^[5]

When such a petition is required and a parent is a suspected perpetrator, or is suspected of placing the child at an unreasonable risk of harm by failing to take reasonable steps to intervene, the department must include a request for termination of parental rights at the initial dispositional hearing.^[15]

A petition is also required where the department determines there is risk of harm, child abuse or child neglect to the child and the parent's rights to another child were voluntarily terminated in a proceeding that involved abuse including criminal sexual conduct involving penetration, attempted penetration or assault with intent to penetrate, and the parent has failed to rectify the conditions that led to that termination.^[13]

That mandatory petition is triggered by the department's own determination. The statute does not make it depend on a criminal charge or conviction.^[5] How the investigation that precedes it works is covered in CPS investigations of sexual abuse, and the duty of professionals to report in mandated reporters of child abuse.

Can termination happen at the start of the case?

It can. If a petition to terminate parental rights is filed, the court may enter an order terminating parental rights at the initial dispositional hearing. The court may also suspend parenting time for a parent who is a subject of the petition.^[16]

How does a pending criminal case fit in?

The two cases run in different courts under different rules, and the statutes cited on this page do not tie the timing of one to the other. A few points follow from the text of the grounds.

• Grounds (b) and (k) contain no conviction requirement, so a termination petition can proceed on them without one.^[2][3]
• Ground (m) depends on a conviction.^[4]
• How counseling and medical records are handled in the criminal case is discussed in counseling and medical records in CSC cases.

A parent who is both a respondent in a child protective case and a suspect or defendant in a criminal case faces decisions about testifying and making statements in one case that can affect the other. Those are questions for a lawyer; this guide does not advise on them. The children's side of the process is described in forensic interviews of children and child witnesses in Michigan courts.

What people get wrong

• "A sex-offense conviction terminates parental rights automatically." Ground (m) needs a court determination that termination is in the child's best interests because continuing the relationship would be harmful to the child.^[4]
• "No conviction, no termination." Grounds (b) and (k) are based on abuse found by the family court by clear and convincing evidence, with no conviction element.^[1][2][3]
• "Only the abuser's rights are at risk." One ground covers a parent who had the opportunity to prevent the abuse and failed to do so.^[2]
• "The agency can choose whether to go to court." Where it determines the abuse included criminal sexual conduct involving penetration, attempted penetration or assault with intent to penetrate, the statute says it shall submit a petition.^[5]

Parents responding to a disclosure can begin with when a child discloses sexual abuse. Offenses within families are explained in CSC involving relatives and household members.