In Michigan, the Department of Health and Human Services (DHHS) can petition to remove a newborn baby if a parent previously had their parental rights terminated to another child. However, the prior termination alone is not enough for the court to automatically remove the baby. CPS must still show, under Michigan law, that there is a current risk of harm or unrectified conditions that justify court involvement.
The Law: MCL 712A.19b(3)(i) and MCL 722.638
Under MCL 712A.19b(3)(i), a court may terminate parental rights if:
“Parental rights to one or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights.”
This means that the prior termination creates a presumption that the parent’s new child may also be at risk, but it still requires proof that the problems that led to the earlier termination remain unaddressed.
Additionally, MCL 722.638 directs DHHS to file a termination petition if a parent’s rights to another child were previously terminated, but the statute does not guarantee removal or termination. The agency must still prove a “risk of harm” and that the parent is a suspected perpetrator or failed to protect the child from harm.
Michigan Case Law: Lessons from In re Dittrick and In re LeFleur
In re Dittrick, 80 Mich App 219 (1977)
In Dittrick, the Michigan Court of Appeals held that the court cannot take jurisdiction over an unborn child, but once the baby is born, CPS may act immediately if the facts show a continuing risk of abuse or neglect. The doctrine of anticipatory neglect allows the court to intervene based on a parent’s prior conduct toward other children.
In re LeFleur, 306 Mich App 377 (2014)
The Court clarified that “anticipatory neglect” must be supported by specific evidence of risk—not assumptions. CPS cannot remove or terminate rights based solely on past issues or substance use without showing how those problems currently endanger the new child.
What This Means for Michigan Parents
- CPS cannot automatically take your newborn just because your rights were terminated in the past.
- They must still prove current risk, either by showing that the conditions leading to the past termination still exist or that the newborn faces danger.
- Courts must find clear and convincing evidence before removing or terminating parental rights.
- Due process rights apply—you are entitled to notice, a hearing, and representation before your baby can be taken from your custody.
What to Do if CPS Targets Your Newborn
If you had prior parental rights terminated, contact a Michigan CPS defense attorney immediately—especially if you are pregnant or just gave birth. An attorney can:
- Prepare evidence of your progress and rehabilitation;
- Demand that DHHS make “reasonable efforts” at reunification unless aggravated circumstances apply;
- Challenge any petition for removal or termination.
- Protect your constitutional parental rights.
FAQs
❓Can CPS take my baby from the hospital in Michigan?
Yes, but only if a judge authorizes it through an emergency removal order based on specific risk factors. CPS cannot remove your baby solely because of a past termination.
❓What if my prior termination was years ago, and I’ve changed?
That matters. Courts look at whether you’ve “rectified the conditions” that led to the prior termination. Completing treatment, securing stable housing, and maintaining sobriety can make a major difference.
❓Does the law treat voluntary and involuntary terminations the same?
MCL 712A.19b(3)(l) governs voluntary terminations involving abuse or severe neglect. Even in those cases, CPS still must show that the dangerous conditions were not corrected before seeking termination again.
❓What can I do before giving birth?
Work with an attorney to gather documentation of progress, obtain evaluations or treatment letters, and prepare for possible CPS involvement.
Bottom Line
A prior termination does not automatically mean you will lose your newborn—but it does put you under intense CPS scrutiny. Michigan courts require proof that your current circumstances still present a risk before they can remove your baby. The best defense is early legal preparation and strong evidence of rehabilitation.
If CPS is threatening to remove your newborn in Michigan, contact an experienced family law attorney immediately.
Your parental rights and your child’s future depend on it.