Brock, In re

Decision Date14 April 1993
Docket NumberNos. 93874,94184,No. 2,s. 93874,2
Citation499 N.W.2d 752,442 Mich. 101
PartiesIn re BROCK, Minors. DEPARTMENT OF SOCIAL SERVICES and James E. Nancarrow, Guardian Ad Litem, Appellants, v. Charles BROCK and Carol Brock, Appellees. Calendar
CourtMichigan Supreme Court

RILEY, Justice.

The Department of Social Services and the guardian ad litem appeal from the Court of Appeals decision reversing the probate court's orders of jurisdiction and placement of respondents' minor children in foster care. 1 We reverse the Court of Appeals decision and uphold the orders of the probate court.


This child protective proceeding was initiated by two reports to the Department of Social Services by respondents' neighbor, who also occasionally baby-sat the minor children. The referent's first contact with the DSS, in November 1990, reported "soft signs" of possible sexual abuse: complaints by the older child that her private areas hurt, 2 blood on her sheets, and the referent's observations that the child's vagina was red and swollen. Because some of the instances described occurred well before the report and because they were not conclusive signs of child abuse, the referent was instructed to contact the DSS if further indications of abuse arose. Shortly thereafter, the referent notified a social worker to report additional concerns. And in January 1991, during an interview with the DSS regarding her concerns, the referent indicated that the child had spontaneously declared "Daddy put his finger in my pookey." The DSS, working with the Family Advocacy Office of the K.I. Sawyer Air Force Base, then scheduled a physical examination of the children and notified the respondents. Following a problematic examination indicating recurrent manipulation of the child's rectum, 3 the children were placed in foster care. 4 The probate court acquired jurisdiction over both children following a jury finding in an adjudicative proceeding. The foster care of the children was continued in the subsequent dispositional hearing.

Respondents appealed the finding of jurisdiction on various grounds. The Court of Appeals reversed the orders of the probate court and remanded for a new trial. 193 Mich.App. 652, 485 N.W.2d 110 (1992). In an order entered July 28, 1992, this Court granted the application for leave to appeal limited to the following two issues:

"(1) whether the respondents had a right to confront their daughter at the adjudication stage of these proceedings and, if so, whether that right was violated by the special arrangements approved by the court, and (2) whether the trial court erred in admitting the testimony of respondent Carol Brock's psychologist and physician." 5


Respondents first contend that their constitutional rights were violated when video depositions of their older child, then almost four years old, were shown to the jury in lieu of live testimony. 6 Respondents maintain that their right of confrontation 7 was violated because they were denied the right to cross-examine the child during the video deposition, as well as to confront her face to face.

At the hearing regarding special arrangements for testimony of the older child, Lieutenant Robin Presley, a clinical social worker with the Air Force, testified that the child would not be capable of responding to questions asked by attorneys or by the court. 8 Lieutenant Presley also testified that the child would be unable to testify in the courtroom because of trauma stemming from her lack of understanding of the physical aspects of the courtroom, the various people in the courtroom, the consequences of what she would be saying, and the courtroom vocabulary. She further testified that it would be traumatic for the child to be confronted with the alleged perpetrators, her parents, and that this trauma of a courtroom appearance would impair later treatment. Moreover, Lieutenant Presley indicated that she believed that the presence of attorneys during an interview and any cross-examination would also be traumatic and impair further treatment. She opined that questioning by a person skilled in interviewing children would elicit the most complete response.

Finding Lieutenant Presley's testimony sufficient to establish that the child would suffer psychological harm that might also impair future treatment were she ordered either to testify in court with the parties present or to testify in the courtroom with the jury present but the parents absent, the court, pursuant to M.C.L. Sec. 712A.17b(9); M.S.A. Sec. 27.3178(598.17b)(9), 9 ordered the child's testimony to be taken by videotape deposition. Pursuant to MCR 5.923(E), 10 the court also found that in order to present the most complete testimony to the finder of fact, an impartial examiner would conduct the deposition. 11

The Court of Appeals held that in the absence of cross-examination, as well as a face-to-face confrontation, respondents' federal and state due process rights were violated. We disagree.

Child protective proceedings are not criminal proceedings. M.C.L. Sec. 712A.1(1); M.S.A. Sec. 27.3178(598.1)(1). The purpose of child protective proceedings is the protection of the child, while criminal cases focus on the determination of the guilt or innocence of the defendant. People v. Gates, 434 Mich. 146, 161, 452 N.W.2d 627 (1990). The juvenile code is intended to protect children from unfit homes rather than to punish their parents. In re Jacobs, 433 Mich. 24, 41, 444 N.W.2d 789 (1989). Furthermore, the rules applicable in child protective proceedings also differ from those applicable in criminal cases. Gates, supra, 434 Mich. at 157, 452 N.W.2d 627. 12 Although the Sixth Amendment of the United States Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him," because the present case is not a criminal case, we conclude that the Sixth Amendment right of confrontation does not apply.

Child protective proceedings are generally divided into two phases: the adjudicative and the dispositional. The adjudicative phase determines whether the probate court may exercise jurisdiction over the child. If the court acquires jurisdiction, the dispositional phase determines what action, if any, will be taken on behalf of the child. Substantial effort is expended to improve the home situation in order to return children to the custody of their parents if at all possible. See Jacobs, supra, 433 Mich. at 38, 444 N.W.2d 789. Respondents may demand a jury determination of the facts in the adjudicative phase, but no jury is allowed at the dispositional hearings. MCR 5.911. To acquire jurisdiction, the factfinder must determine by a preponderance of the evidence that the child comes within the statutory requirements of M.C.L. Sec. 712A.2; M.S.A. Sec. 27.3178(598.2). 13 MCR 5.972(C)(1).

It is well established that parents have a significant interest in the companionship, care, custody, and management of their children. This interest has been characterized as an element of "liberty" to be protected by due process. Reist v. Bay Circuit Judge, 396 Mich. 326, 342, 241 N.W.2d 55 (1976).

"Clearly any legal adjustment of their mutual rights and obligations affects a fundamental human relationship. The rights at stake are 'protected' and encompassed within the meaning of the term 'liberty' as used in the Due Process Clause."

Hence, the question at issue is what procedural due process requirements are implicated in the adjudicative phase of a child protective proceeding wherein a court may acquire jurisdiction over a child.

Although due process often requires confrontation and cross-examination, these are not absolute requirements, Willner v. Committee on Character & Fitness, 373 U.S. 96, 103-104, 83 S.Ct. 1175, 1180-1181, 10 L.Ed.2d 224 (1963) (Goldberg, J., concurring at 106, 83 S.Ct. at 1182), even in Sixth Amendment analysis. Coy v. Iowa, 487 U.S. 1012, 1020, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988) ("rights conferred by the Confrontation Clause are not absolute, and may give way to other important interests"); People v. Kasben, 158 Mich.App. 252, 255, 404 N.W.2d 723 (1987) (the right of confrontation may yield to other compelling interests). Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), establishes that where there are particularized findings of necessity, face-to-face confrontation is not necessary. 14 Therefore, the narrow issue presented in this appeal is whether in the absence of face-to-face confrontation due process requires an opportunity to cross-examine during an adjudicative proceeding.

Respondents contend that their right of due process 15 includes the right to confront the witnesses against them in an adjudicative proceeding. Although we do not hold that such confrontation is unnecessary in every case, we are persuaded that the present factual circumstances support the probate court's determination that the videotape deposition of the older child by an impartial examiner did not deprive respondents of their constitutional right of confrontation. 16

"Due process applies to any adjudication of important rights." In re LaFlure, 48 Mich.App. 377, 385, 210 N.W.2d 482 (1973).

"Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.

* * *

" '[D]ue process is flexible...

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