David Burch v. Department of Health and Human Services ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
CHRISTOPHER BURCH, UNPUBLISHED
December 6, 2018
Plaintiff-Appellee,
v No. 340884
Bay Circuit Court
DEPARTMENT OF HEALTH AND HUMAN LC No. 17-003335-AA
SERVICES,
Defendant-Appellant.
DAVID BURCH,
Plaintiff-Appellee,
v No. 340888
Bay Circuit Court
DEPARTMENT OF HEALTH AND HUMAN LC No. 17-003336-AA
SERVICES,
Defendant-Appellant.
Before: METER, P.J., and K. F. KELLY and GLEICHER, JJ.
PER CURIAM.
Defendant, the Michigan Department of Health and Human Services, appeals by leave
granted the order1 reversing defendant’s determination to deny Title IV-E2 foster-care funding
for plaintiffs, minors Christopher and David Burch. We affirm.
These dispositions of these appeals are wholly controlled by this Court’s recent decision
in Ayotte v Department of Health & Human Serv’s, ___ Mich App ___; ___ NW2d ___ (2018)
1
The court issued one consolidated order for both children, who had filed separate actions.
2
See 42 U.S. 670 et seq.
-1-
(Docket No. 339090). The children were taken into custody for delinquency purposes on
September 5, 2016, pursuant to an “Order to Apprehend and Detain” that did not contain
language indicating that it was contrary to the welfare of the children to remain in their home.3
Later, after defendant investigated and learned that the children’s mother was unable to take the
children back home following their detention, defendant filed a petition to begin child-protection
proceedings. A contrary-to-the-welfare determination was made in an October 11, 2016, “Order
After Preliminary Hearing” in the child-protection case. The question is whether Title IV-E
foster-care funding is available even though the Order to Apprehend and Detain did not contain
contrary-to-the-welfare language. See id. at ___; slip op at 2 (discussing the significance of this
language). Ayotte mandates that such funding is in fact available because the October 11, 2016,
order, and not the Order to Apprehend and Detain, was the first order pertaining the children’s
removal into foster care. See id. at ___; slip op at 7. It is this event (removal into foster care)
that requires a contrary-to-the-welfare finding if Title IV-E foster-care funding is to be available.
Id. The trial court properly concluded that the October 11, 2016, order contained the necessary
language and that Title IV-E foster-care funding was available for each child.
Affirmed.
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
/s/ Elizabeth L. Gleicher
3
FOM 902 of the State of Michigan’s Children’s Foster Care Manual states that “[f]ederal
regulations require the court to make a contrary to the welfare or best interest determination in
the first signed court order prior to removing the child from his/her home for title IV
eligibility.”
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