We see the same confusion in nearly every case that hinges on something a young child said outside the courtroom: parents assume that because a statement is “hearsay,” it can’t be used against them. In Michigan CPS cases, that’s not how it works — and the rules change depending on where you are in the case. What controls at the preliminary hearing isn’t what controls at trial, and knowing the difference can matter a great deal in how we defend a case.
What a CPS Petition Has to Include
Before any of this comes into play, DHHS or CPS has to file a petition in family court that actually holds up. The petition must identify the child, name the parents or custodian if known, lay out the essential facts that give the court jurisdiction, cite the specific provision of the Juvenile Code being relied on, and state what relief is being requested. If CPS wants the child removed, it has to say so specifically. Michigan’s Child Protection law provides for this. When removal isn’t requested, and the child isn’t already in temporary custody, the court can start with a preliminary inquiry rather than jumping straight to a removal hearing.
Why Hearsay Can Come In at the Preliminary Hearing
This is where many parents get blindsided. Michigan’s preliminary hearing rule doesn’t follow ordinary trial rules. At this stage, the court decides whether to authorize the petition at all and, if so, whether the child stays home, goes home, or is placed in foster care while the case moves forward. The rule expressly states that the Michigan Rules of Evidence—apart from privileges—don’t apply at this stage, and the family court judge can adjourn the hearing for up to 14 days to secure witnesses or for other good cause.
For placement decisions specifically, the court may also rely on hearsay as long as it has adequate indicia of trustworthiness. In practice, that’s often how a caseworker’s account of what a child disclosed, a parent’s statement, or another adult’s report shapes the court’s early decisions—sometimes well before the case ever reaches adjudication (a trial).
What the Tender Years Rule Actually Covers
The Tender Years rule is not a general rule for CPS petitions, and it doesn’t apply at the preliminary hearing stage. In Michigan child protective proceedings, MCR 3.972(C)(1) applies the civil rules of evidence at trial. MCR 3.972(C)(2) then allows certain statements made by a child under 10 — or by an incapacitated individual under 18 with a developmental disability — to be admitted through the testimony of whoever heard the child say it. But that only happens after a separate hearing where the court makes a specific finding that the statement carries adequate indicia of trustworthiness. That happens at a “tender years hearing.”
Michigan’s Court of Appeals has treated that trustworthiness inquiry as a totality-of-the-circumstances analysis. Published decisions point to factors like spontaneity, whether the statement was repeated consistently, the child’s mental state, use of terminology that seems out of place for the child’s age, and whether there’s any apparent motive to fabricate.
There’s also a notice requirement that’s easy to overlook. Whoever wants to use the child’s statement has to give written notice of that intent under MCR 3.972(C)(2), identify who the statement was made to, describe the circumstances that led to it, and set out the statement itself. The opposing party then has a short window to file a rebuttal notice.
Why the Distinction Between Hearings Matters
The Michigan Court of Appeals has been clear that MCR 3.972(C)(2) governs adjudication trials — it’s the mechanism for deciding whether the person who heard the child’s statement can testify about it at trial. The court has also held that a video recording of the child cannot be used as substantive proof at trial in place of that testimony; that’s never permitted.
That’s exactly why the early CPS hearing and the later adjudication trial shouldn’t be treated as the same fight. A statement might be enough to get a petition authorized or to support temporary placement, but if the State wants to use that same statement at trial, it still has to meet the separate evidentiary requirements that apply there, which is the tender years hearing.
What This Means If You’re a Parent Facing a CPS Case
“It’s just hearsay” is not, by itself, going to stop CPS from moving forward at the first hearing. At the preliminary stage, the court can consider hearsay, and the real question is usually whether the information is reliable enough to justify the court stepping in right away. The stronger fight at that point is often about whether the petition should be authorized at all, whether removal is genuinely necessary, and whether the State is leaning on statements that are too vague, too thin, or too untested to justify taking a child out of the home.
That said, the case doesn’t end at the preliminary hearing. If CPS intends to use a child’s statement later at adjudication, we look closely at the MCR 3.972 notice, whether a proper trustworthiness hearing was held, the ages and circumstances involved, and whether the State is trying to admit the statement the right way — or cutting corners to get it in.
Frequently Asked Questions
Can CPS use a child’s statement at the petition hearing even if the child doesn’t testify? Yes. At the preliminary hearing, the court can rely on hearsay, and for placement findings, the rule permits hearsay that has adequate indicia of trustworthiness. This hearing isn’t governed by the standard trial evidence rules, which are explained in our Michigan Rules of Evidence.
Does the Tender Years rule apply to the CPS petition itself? No. In Michigan child protective proceedings, the Tender Years rule under MCR 3.972(C)(2) applies at the adjudication trial, not at the preliminary hearing on the petition.
Does CPS have to give notice before using a child’s statement under Tender Years? Yes. MCR 3.922(F) requires written notice of intent to admit an out-of-court statement under MCR 3.972(C)(2), including who heard the statement and what the statement was.
What does a Michigan court look at when deciding whether a statement is trustworthy? Published Michigan decisions point to factors such as spontaneity, consistent repetition, the child’s mental state, age-inappropriate terminology, and the absence of a motive to fabricate.
Can the preliminary hearing be delayed if witnesses aren’t available? Yes. MCR 3.965 allows the preliminary hearing to be adjourned for up to 14 days to secure witnesses or for other good cause.tutes.
The Bottom Line
The Tender Years rule is real, but it doesn’t control the first removal hearing in a Michigan CPS case. At the preliminary stage, the law allows the court to rely on hearsay that’s reliable enough to support an immediate protective decision. At adjudication/the trial, the State has to clear the separate bar that Tender Years sets before a young child’s out-of-court statement can be used the way the rule allows.
If a CPS petition against you rests on something a child said, The Kronzek Firm can review the stage of your hearing, the notice that was given, and the evidence being offered — and respond with the right challenge at the right time. Our CPS team can be reached at contactus@kronzek.law or by calling our main office at 800-576-6035.