In the matter of H.R.C., A.M.C., S.H.C., W.S.C., T.M.C., R.E.C., P.L.C., AND K.E.C., Minors, ___Mich App___, (2009), #290213, 12/15/09
Juvenile Review MenuThe respondents appealed the order terminating their parental rights. Before the Child Protective Services division of the Department of Human Services filed this petition, the family was referred to CPS 24 times. The referrals alleged physical abuse, truancy, and physical and educational neglect. The children had poor hygiene. The children missed 20-30 days of school a year, and the male children often had bruises. Also one child, SHC, was deaf and had little knowledge of American Sign Language.
On May 30, 2008, SRC, the oldest child, ran away from home and when found by police claimed her father had physically and sexually abused her. (SRC reached the age of majority by the time that matter went to trial.) On June 1, 2008, an officer interviewed HRC, a younger sister, and she also alleged that their father had sexually abused her. Additionally, HRC alleged that one of their father’s adult sons had sexually abused her.
DHS obtained a court order placing the children in foster care, but the Respondents took the children and fled to another state. Once the children were returned, they were placed in foster care. On June 11, 2008, petitioner filed a petition to terminate Respondents’ parental rights based on the allegations of sexual and physical abuse and educational neglect. Before the adjudication hearing, HRC recanted her story of sexual abuse. The petitioner did not pursue termination at disposition but sought temporary custody of the children.
On August 28, 2008, at the dispositional hearing, petitioner indicated they would refile the termination petition because there was new evidence of sexual abuse. On September 5, 2008, the trial court authorized the renewed termination petition. On September 22, 2008, the petitioner amended the petition to include allegations of sexual abuse, failure to protect, improper education and improper hygiene. A jury trial was held on October 21, 2008, and the statutory grounds for jurisdiction were proven by a preponderance of the evidence as to all 8 children.
On November 25, 2008, the trial court found statutory grounds for termination under MCL 712A.19(3)(b)(i), (3)(j), and (3)(k)(ii) and (iii); however, the Court did not terminate the parental rights, stating “ . . . I am going to want to review the matter in about thirty days and hear from the therapists, and the Court will also conduct interviews with the children in chambers, of those four children. . . . ” The trial court proceeded with in camera interviews of the children. The Court considered the testimony, subsequent in camera interviews, and the record as a whole, and on January 15, 2009, the Court terminated Respondents’ parental rights to all of the children.
The Respondents argue that the trial court erred and violated their due process rights by permitting in camera interviews of the children in making its best interests determination. Respondents argue that Michigan law permits in camera interviews of children for the limited purpose of determining a child’s parental preference in a custody dispute. The Respondents did not object when the trial court conducted the interviews, so the review is for plain error affecting substantial rights. Wolford v Duncan, 279 Mich App 631, 637; 760 NW2d 253 (2008). Additionally, the in camera interview procedure provides no opportunity for cross-examination, impeachment, or meaningful appellate review which could violate the Respondents’ due process rights and that issue is reviewed de novo. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009).
In camera interviews are off the record, ex parte communication held in the absence of the other interested parties and their attorneys. Typically, in camera interviews are used to determine if certain evidence or testimony is admissible during the proceedings. The Child Custody Act (CCA) allows for in camera interviews to determine the minors’ parental preferences. Surman v Surman, 277 Mich App 287, 297-298; 745 NW2d 802 (2007). No provision of the CCA explicitly permits use of an in camera interview, but MCL 722.23(i) does require a court to consider a child’s parental preference as one factor in the best interests determination. The court’s authority to conduct the interview is derived from this factor and case law.
The lower court erred in applying the Child Custody Act (CCA) and conducting the in camera interviews. This case was governed by the Juvenile Code, and the Court is not free to pick and choose procedures from the CCA and implant them into juvenile proceedings. See In re AP, 283 Mich App 574, 595; 770 NW2d 403 (2009). There is no statutory provision or case law that would permit a trial court presiding over a juvenile proceeding to conduct an in camera interview. The CCA’s substantive and procedural requirements are not applicable to proceedings conducted under the Juvenile Code. The key point was cited in Molloy v Molloy, 247 Mich App 348, 350 (2001), stating “[a] court’s concern for a child’s well-being in a custody proceeding must not outweigh considerations of fundamental fairness in proceedings that affect parental rights.”
Additionally, the Court held that in camera interviews violate parents’ due process rights because it could potentially unduly influence a judge’s decision and could affect the judge’s findings with regard to the statutory grounds for termination, not just the best interests. The private interest at stake in a termination hearing is a parent’s fundamental liberty interest in the care and custody of his or her child. In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003). Respondents had no opportunity to learn what testimony was elicited or how that affected the judge’s decision. It also resulted in an inadequate record for judicial review and affected the basic fairness and integrity of the proceedings.
The court held the trial court plainly erred in conducting the in camera interviews with the children because it had no authority to do so, and the error affected the Respondents' substantial rights. The court vacated the trial court’s findings as to the children’s best interests, and remanded the case to be assigned to a different judge to make best interests findings. Respondents argued four additional issues on appeal. The Court of Appeals found no standing to challenge the effectiveness of counsel and declined to address the merits. Additionally, the Court found no error that grounds for termination were proven by clear and convincing evidence. Finally, the Court found that the issue of failure to provide services lacked merit and also that the jury followed the trial court’s substantive instructions, so reversal was not required. Affirmed in part, vacated in part, and remanded.
Note: Portions of the transcripts were not available on appeal because of equipment failure and the case was on appeal on stipulated facts. Respondents did not object to the in camera review.
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