In re Foust

• Court: Michigan Supreme Court
• Citation: In re Foust, 959 N.W.2d 702(Mem) (Mich. 2021)
• Decision Date: 11 June 2021
• Docket Number: COA: 349545,SC: 162445
• Parties: IN RE FOUST, Minors.

959 N.W.2d 702 (Mem)

IN RE FOUST, Minors.

SC: 162445

COA: 349545

Supreme Court of Michigan.

June 11, 2021

Order

On order of the Court, the application for leave to appeal the December 17, 2020 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

Welch, J. (dissenting).

I respectfully dissent from the Court's order denying leave to appeal.

It is now well settled that, unlike in child custody matters, Michigan law does not permit a trial court presiding over a termination of parental rights case to conduct an in camera interview of a minor for the purpose of determining that minor's best interests. See In re Ferranti , 504 Mich. 1, 35, 934 N.W.2d 610 (2019) (explaining how there is " ‘nothing in the juvenile code, the caselaw, the court rules, or otherwise [that] permits a trial court presiding over a termination of parental rights case to conduct in camera interviews for purposes of determining their best interests’ ") (alteration in original), quoting approvingly In re H.R.C. , 286 Mich. App. 444, 454, 781 N.W.2d 105 (2009). In Ferranti , we recognized the concern that " in camera interviews might unduly influence the trial court's factual findings and termination decision, and because the process provides no opportunity for cross-examination by respondents or their counsel, the practice also prejudices a respondent's ability to impeach the witness and forecloses meaningful review." Ferranti , 504 Mich. at 32, 934 N.W.2d 610.

The current case highlights these exact concerns. The trial court returned one child to respondent-mother's care but terminated respondent-mother's parental rights to two other children. In supporting this split decision, the trial court focused on the relative advantages of the foster home, the possibility of adoption, and the preferences of the children as discerned from an in camera interview. ¹ That in camera interview was attended by the children's guardian ad litem (who had advocated for termination of parental rights) while respondent-mother was able to view the proceedings by video. The Court of Appeals properly recognized that, under Ferranti and H.R.C. , the trial court's use of an in camera interview violated respondent-mother's due-process rights. It nevertheless held that respondent-mother could not establish that the due-process violation affected her substantial rights or that it seriously affected the fairness, integrity, or public reputation of judicial proceedings as required for relief under the plain-error standard of review. I disagree because I believe that it is all too likely that the improper interview procedure unduly influenced the trial court's factual findings and termination decision.

Additionally, I believe the trial court's best-interest analysis did not provide enough detail to "provide a reasoned basis for its decision." Cf. Mich. Dep't of Transp. v. Randolph , 461 Mich. 757, 768, 610 N.W.2d 893 (2000). For a best-interest analysis, it is understood that "[t]he court should consider a wide variety of factors" such as (1) the child's bond to the parent; (2) the parent's parenting ability; (3) the child's need for permanency, stability, and finality; (4) the advantages of a foster home over the parent's home; (5) the parent's history of domestic violence; (6) the parent's compliance with his or her case service plan; (7) the parent's visitation history with the child; (8) the children's well-being in care; (9) the possibility of adoption; and (10) any of the best-interest factors in the child custody context as set forth in MCL 722.23. In re Medina , 317 Mich. App. 219, 237-238, 894 N.W.2d 653 (2016) (quotation marks and citations omitted). MCR 3.977(I)(1), which governs termination proceedings, provides that "[b]rief, definite, and pertinent findings and conclusions on contested matters are sufficient." While there is no expectation that every best-interest factor be analyzed, I find it troublesome in this matter that the trial court failed to address most of the factors, including the existence (or nonexistence) of a parent-child bond. When there is an inadequate basis to facilitate our understanding of the reasoning supporting a particular decision or outcome, we should not hesitate to remand for further proceedings rather than substituting our own views or assumptions. Cf. People v. Adkins , 436 Mich. 878, 878, 461 N.W.2d 366 (1990).

The trial court's limited reasoning is especially problematic in light of its improper reliance on the...