Brock, In re
| Decision Date | 20 April 1992 |
| Docket Number | Nos. 141365,141656,s. 141365 |
| Citation | 193 Mich.App. 652,485 N.W.2d 110 |
| Parties | In re BROCK. |
| Court | Court of Appeal of Michigan — District of US |
Gary L. Walker, Pros. Atty., and Joni Brandon, Asst. Pros. Atty., Marquette, for Department of Social Services.
James E. Nancarro, Marquette, for the minor children.
Murphy & Clark by F. Gregory Murphy, Marquette, for Charles Brock.
Peacock, Ingleson, Stenton, Elzinga & Maynard, P.C. by Cheryl L. Hill, Marquette, for Carol Brock.
Before FITZGERALD, P.J., and HOOD and CAVANAGH, JJ.
Respondents appeal as of right from (1) an adjudicative order of jurisdiction over their two daughters pursuant to a jury's finding and (2) a subsequent dispositional order placing the children in foster care. We are persuaded by respondents' constitutional challenge of the procedure employed in the trial phase, and reverse the orders of the probate court.
This case came to the attention of Department of Social Services workers after respondents' neighbor and occasional babysitter reported that the complainant, respondents' three-year-old child was probably being sexually abused. According to a DSS employee, the neighbor noticed blood on complainant's sheets and irritation of complainant's vagina. In addition, complainant later made statements to several persons, including the neighbor, that both respondents had hurt her private parts. On other occasions, complainant denied that this was true.
Before trial, and over the objection of counsel for respondents, the court qualified Lieutenant Robin Presley as an expert on child abuse. Lt. Presley had recently received a master's degree in social work and had studied child abuse as an academic subject. However, she had never worked with child witnesses in court and had never testified in court.
Lt. Presley spoke with complainant for two to three hours before testifying at a pretrial hearing on petitioner's motion for a videotaped deposition. Lt. Presley opined that complainant would be traumatized if she either faced respondents or appeared in court. Lt. Presley stated that although she had never seen a child witness testify, she based her conclusion that complainant would suffer psychologically on information she had accumulated as a student. Lt. Presley recommended that complainant be interviewed on videotape and that the interview be conducted by a trained, impartial questioner. She further stated that if complainant were examined by anyone not academically trained in dealing with victims of child abuse, complainant would be traumatized. In addition, Lt. Presley suggested that if forced to testify in open court, complainant would testify differently than if she were questioned out of court by a trained questioner. Lt. Presley stated that complainant had not yet begun therapy sessions because the court proceedings had not been completed. She admitted on cross-examination that she had no reason to believe that complainant feared her parents.
The court allowed the interview to take place as proposed by Lt. Presley in the interest of obtaining the "most complete" testimony possible. Respondents ' attorneys were not allowed to be present in the interview room or to directly pose questions to complainant, but they were permitted to submit questions in advance and to confer during breaks with the interviewer, a licensed psychologist.
At the first interview, which took place in March 1991, complainant was given dolls equipped with genitalia and asked to identify various body parts. She referred to the penis, vagina, and rectal area as "pookeys." Complainant denied that anyone had ever touched or hurt her pookey. When asked to draw a picture of herself she drew a picture of a sad little girl who missed her parents.
Subsequently, the court granted petitioner's motion for a second videotaped interview, which was held after complainant began therapy. The interviewer began by reminding complainant that they had been in the interview room the day before. This time, complainant stated and indicated that her father had put his finger in her pookey (pointing to a doll's and to her own vagina) and that her mother had "poked" her pookey. However, she said that when she told her parents to stop, they did. No one touched her "pookey on her back" (complainant's attention being drawn to the doll's rectal area). At first, complainant denied that anyone had touched her little sister's pookey, but she then stated that respondents had done so. After a break in the interview, complainant again was questioned about having her pookey touched by her parents. She stated that her clothes were on when her parents touched her pookey. After further prodding, complainant became impatient, and she stated that she had already answered and wanted to go home. Although she resisted discussing further questions about her pookey, she became absorbed in drawing pictures. In response to a question whether she was afraid of her parents, complainant answered "No." Complainant stated that she would like to go back to living with her parents. She denied that she talked to other persons, including DSS workers and her foster parents, about her pookey. She also denied any recollection of having been examined by a doctor. Later, the interviewer removed the toys from complainant and asked her again about her pookey being touched. Complainant, after saying that she did not want to talk about it, stated that it had happened while she was living with her parents.
Major Gregory Toussaint, M.D., Chief of Pediatrics at Sawyer Air Force Base, was qualified as an expert in pediatrics and child sexual abuse. Major Toussaint had examined complainant at the request of the DSS in December 1990, and he stated that while the appearance of complainant's vagina was unremarkable, her rectum displayed signs of having been penetrated repeatedly. Major Toussaint stated that he had no doubt that such penetration had occurred, and he estimated that complainant's rectum had been penetrated frequently. This conclusion was based on several observations. First, Major Toussaint stated that his examination of complainant's rectum, performed while complainant was kneeling, indicated an absence of the "anal wink," a reflexive opening and closing of the sphincter that occurs after the buttocks are parted. Instead, complainant's anus remained "gaping." Second, there was redness around complainant's rectum. Third, complainant had decreased sphincter tone. Major Toussaint opined that such a condition would not result from passing hard stools or from the insertion of a rectal thermometer. In addition, Major Toussaint reported that he inserted a gloved finger into complainant's rectum and asked, "Does anyone ever do this to you?" Complainant responded without hesitation: "Daddy puts his finger in my pookey." He did not conduct more extensive questioning because the DSS was planning to do a more formal interview. Major Toussaint conducted a second examination in April 1991, during which he observed that the condition of complainant's rectum had returned to normal. Finally, Major Toussaint stated that his vaginal and rectal examination of complainant's sister indicated nothing unusual, but he cautioned that a normal examination does not necessarily mean that no abuse has occurred.
In addition to the statement to Major Toussaint described above, several inculpatory hearsay statements by complainant to other persons were admitted against respondents. These included statements to the neighbor who first contacted the DSS, to complainant's foster mother, and to a social worker. According to the testimony of the children's foster mother, complainant stated that her father had "made water" on her pookey, that it had hurt, and that she had cried. In addition, while complainant told social workers that her father had not hurt her pookey, she also stated that her father had told her to say that. Complainant also responded "Yes" to questions whether Santa Claus and a social worker had hurt her pookey.
The jury deliberated five hours before returning a verdict that the probate court had jurisdiction over both children.
At the subsequent dispositional hearing, respondent-father unsuccessfully requested the court to return his daughters to his custody on the basis of two successful polygraph tests and a Minnesota Multiphasic Personality Inventory (MMPI) examination placing him in the "normal" range. In addition, the court rejected a similar request by respondent-mother. Both requests were supported by the opinion of a psychologist. The court indicated that it would not disregard the jury's determination and ordered the continuation of the children's placement in foster care.
Respondents contend that the procedure adopted by the probate court to secure the testimony of complainant violated their due process rights under the state and federal constitutions. 1
The court recognized the novelty of the procedure adopted during the trial. While acknowledging the potential for error, the court determined that the jury's need to view "the most complete testimony of the child" justified eliminating examination of complainant by the parties in favor of an impartial psychiatrist or psychologist.
This Court recently examined this issue in In re Vanidestine, 186 Mich.App. 205, 209-211, 463 N.W.2d 225 (1990). In that case, this Court reviewed a challenge of the use of closed-circuit television testimony in a juvenile proceeding brought under M.C.L. Sec. 712A.2(a)(1); M.S.A. Sec. 27.3178(598.2)(a)(1), in which a jury determined that the respondent had perpetrated criminal sexual conduct against a child. The Court concluded that constitutional standards had been satisfied, citing Maryland v. Craig, 497 U.S. 836, ----, 110 S.Ct. 3157, 3167-3169, 111 L.Ed.2d 666, 683-685 (1990) (...
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