In re HRC

• Decision Date: 15 December 2009
• Docket Number: 290214.,Docket No. 290213
• Citation: 781 N.W.2d 105
• Parties: In re H.R.C.
• Court: Court of Appeal of Michigan — District of US

781 N.W.2d 105

In re H.R.C.

Docket Nos. 290213, 290214.

Court of Appeals of Michigan.

Submitted October 6, 2009, at Detroit.

Decided December 15, 2009, at 9:15 a.m.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William P. Nichols, Prosecuting Attorney, and Michael C. Brown, Assistant Prosecuting Attorney, for the Department of Human Services.

Lambrix & Bartlett, PLC (by James P. Bartlett), Monroe, MI, for Rosie Lee Compton.

LaVoy & Zagorski, P.C. (by Jill M. LaVoy), Monroe, MI, for Ronnie Compton, Sr.

Before: KIRSTEN FRANK KELLY, P.J., and JANSEN and FITZGERALD, JJ.

KIRSTEN FRANK KELLY, P.J.

In these consolidated appeals of an order terminating parental rights we must decide whether a trial court presiding over a juvenile proceeding may conduct unrecorded, in camera interviews of the minor children when considering whether termination is in their best interests. See MCL 712A.19b(5). The trial court made no ruling on this issue and respondents now appeal as of right the order terminating their rights to the children and raise other additional grounds for relief. We hold that a trial court presiding over a juvenile proceeding has no authority to conduct in camera interviews of the minor children. Accordingly, we vacate the trial court's findings regarding the children's bests interests and remand for further proceedings consistent with this opinion.

I. BASIC FACTS AND PROCEDURAL HISTORY

The family involved in these proceedings has a protracted history with protected services. Before the petition was filed in the instant matter, the family had been referred to protective services 24 times. These referrals concerned allegations of physical abuse, truancy, or physical and educational neglect. Physical abuse was suspected because the male children often had bruises, while physical neglect was suspected because the children often came to school improperly dressed or having poor hygiene. In addition, the children missed school often, approximately 20 to 30 days a year, and arrived to school late without excuses. There were also ongoing concerns regarding suspected medical and educational neglect of one child, SHC, who was deaf and had very little knowledge of American Sign Language (ASL).

On May 30, 2008, the oldest child, SRC,¹ ran away from home after her father, Ronnie, had grounded her. When the police found the child, she told an officer that Ronnie had physically and sexually abused her. SRC did not reveal, at the time, that she had fought with Ronnie and her mother, Rosie. On June 1, 2008, the officer interviewed SRC's younger sister, HRC, who also alleged that Ronnie and David, one of Ronnie's adult sons, had sexually abused her. Consequently, petitioner obtained a court order requiring that the children be removed from respondents' home. Respondents, however, fled the state with their children. The children were eventually found in Indiana, at their grandmother's house. Petitioner removed the children and had them placed in foster care.² On June 11, 2008, petitioner filed a petition to terminate respondents' parental rights on the basis of sexual abuse, as well as allegations of physical abuse and educational neglect.

Before the adjudication hearing on July 24, 2008, however, petitioner learned that SRC had reported the sexual abuse when she was mad at her parents and also that HRC had recanted her allegations that Ronnie had sexually abused her. Accordingly, at the hearing, petitioner decided not to pursue termination of respondents' parental rights, but only sought temporary custody of the children, in exchange for respondents' pleas admitting the physical abuse and educational neglect. Rosie admitted the educational neglect and Ronnie admitted both the educational neglect and physical abuse. As part of the plea agreement, respondents agreed that visitation would be suspended until each respondent had a psychological evaluation. The trial court accepted the pleas and asserted jurisdiction over the children. Sibling visits were ordered.

The initial dispositional hearing was held on August 13, 2008, but the psychological examinations of respondents had not been completed. Thus, the hearing was continued to August 28, 2008. At that hearing, petitioner indicated that it would be re-filing a termination petition because it had received new evidence regarding the sexual abuse. Petitioner renewed its petition to terminate respondents' parental rights on September 5, 2008, and the trial court authorized that petition. In response, respondents moved to withdraw their plea agreements.

Petitioner then filed an amended petition on September 22, 2008. It alleged that Ronnie had sexually abused SRC, HRC, and KEC, that David had also sexually abused HRC and KEC, and that Rosie had failed to protect the children from the sexual abuse despite knowing about it. Petitioner also alleged that Ronnie had physically abused the children and that respondents had failed to provide the children with proper education and proper hygiene. In addition, petitioner claimed that respondents had failed to provide proper medical care for SHC, whose cochlear ear implant required regular medical examination in order to prevent infection. Respondents' alleged failure to take SHC to these appointments had exposed him to serious health risks. Petitioner also alleged that SHC had suffered educational neglect because he knew very little ASL and had no effective way of communicating.

Subsequently, the trial court granted respondents' motions to withdraw their pleas and also excluded the psychological evaluations conducted in conjunction with the plea agreements. Respondents exercised their right to a jury trial on the question of jurisdiction and a trial began on October 21, 2008. After hearing the testimony of the witnesses, the jury returned a verdict finding that the statutory grounds for jurisdiction under MCL 712A.2(b) had been proven by a preponderance of the evidence as to HRC, AMC, REC, PLC, SHC, WSC, TMC, and KEC.

Before making a decision on termination, the trial court heard testimony from each child's counselor regarding whether termination was in each child's best interests, as well as from respondents. On November 25, 2008, the trial court found that the statutory grounds for termination under MCL 712A.19b(3)(b)(i) and (ii), (j), and (k)(ii) and (iii) had been proven by clear and convincing evidence.³ However, the trial court, noting the strong ties between the parents and siblings, stated, "The Court is not prepared to terminate today." The trial court then reserved its ruling on termination and ordered:

The sibling visits will continue. The Court will order that DHS provide an opportunity for the—for HRC, AMC, REC, and PLC, . . . in their individual therapy sessions, to have a meeting with their parents.

* * *

And 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. At that point, the Court will decide whether to make such an attempt with regard to the younger four children. . . .

Petitioner moved for reconsideration of this order on the basis that joint counseling could cause psychological trauma and interfere with the pending criminal investigation of Ronnie's sexual assaults. The trial court stayed the order for joint counseling and proceeded with off the record, in camera interviews of all the children. Subsequently, on January 15, 2009, the trial court terminated respondents' parental rights to all the children. It stated, "The Court having considered the testimony and also the subsequent interviews of the children and all of the record as a whole, the Court finds that termination of parental rights is in the best interests of the children. . . ." Respondents appealed separately, and their appeals were consolidated.

II. DUE PROCESS

Respondents first argue that the trial court erred by conducting in camera interviews of the children in making its best interests determination, thereby violating their due process rights. Specifically, respondents contend that Michigan law permits in camera interviews of children only for the limited purpose of determining a child's parental preference in the context of a custody dispute. We agree. Because respondents did not object to the trial court's decision to conduct the interviews, our review is for plain error affecting substantial rights. Wolford v. Duncan, 279 Mich.App. 631, 637, 760 N.W.2d 253 (2008). Further, whether the court's decision to conduct an in camera interview violated respondents' due process rights presents a question of constitutional law that we review de novo. In re Rood, 483 Mich. 73, 91, 763 N.W.2d 587 (2009).

A. IN CAMERA INTERVIEWS

An understanding of the in camera interview's use in the context of familial disputes will inform our decision. Thus, before addressing respondents' argument, we first consider the in camera interview's purpose and its due process implications.

An in camera interview is an ex parte communication that occurs off the record in a judge's chambers and in the absence of the other interested parties and their attorneys. See Black's Law Dictionary (8th ed). Generally, such ex parte communications are not permitted except as provided by law. Michigan Code of Judicial Conduct, Canon 3. In most circumstances, the in camera interview, or review, is reserved for purposes of determining whether certain evidence or testimony is admissible during the proceedings. See, e.g., MRE 612 (permitting in camera review to redact irrelevant material from documentary evidence); MCR 6.201 (allowing in camera review to excise privileged material); Davis v. O'Brien, 152 Mich.App. 495, 505, 393 N.W.2d 914 (1986) (requiring in camera review to redact privileged material).

The Child Custody Act (CCA), MCL 722.21 et seq., permits the use of in camera interviews, but for a different reason: When the court...