Counsel’s ‘Deficient’ Performance Prompts New Trial For Father Who Lost Rights

The father in this termination of parental rights case was denied effective assistance of counsel, the Michigan Court of Appeals has ruled, vacating the order of termination and remanding the case for further proceedings.

“A young child discloses sexual abuse by a parent,” the Court of Appeals wrote in In re Casto, Minors (Docket No. 357656). “The child is interviewed several times, and the statements are admitted as substantive evidence during child-protective proceedings. Several experts testify on behalf of the government with respect to coaching and other reliability-related matters, but the parent’s counsel does not offer, or even investigate, an expert to test the government’s case. Moreover, one of the government’s experts vouches for the credibility of the child, without objection. Under these circumstances, the parent’s counsel does not provide effective assistance, in violation of both our state and federal Constitutions.”

As a result, the Court of Appeals vacated the Ottawa County trial court’s admission of “tender-years” statements made by the child (BC), the order of adjudication and the order terminating the respondent-father’s parental rights. The panel remanded the case for further proceedings, including a new “tender-years hearing” if the Department of Health and Human Services (DHHS) again sought to admit BC’s out-of-court statements under MCR 3.972(C)(2).

Court of Appeals Judge Brock A. Swartzle wrote the published and binding opinion. Judges Amy Ronayne Krause and Kristina Robinson Garrett joined the decision.

Counsel’s Performance ‘Fell Short’

On appeal, the respondent primarily argued that he was denied effective assistance of counsel. He also challenged the trial court’s holdings regarding the statutory grounds for termination and the best interests of the children.

“[W]e conclude[] that respondent was denied his constitutional right to the effective assistance of counsel; given this, we do not reach the latter two claims,” the Court of Appeals said.

The respondent asserted his trial counsel was ineffective “by failing to investigate, consult, and call an expert in forensic interviewing and child memory and suggestibility,” the Court of Appeals explained. “Respondent maintains that testimony by an expert such as Dr. [Daniel] Swerdlow-Freed would have provided an effective challenge to the trustworthiness of BC’s statements at the tender-years hearing, meaning the statements would not have been admitted into evidence in the first instance. Even if those statements were not excluded, testimony from Dr. Swerdlow-Freed should have been used at the adjudication trial and dispositional hearing to challenge BC’s statements, creating a reasonable probability of a different outcome.”

The Court of Appeals agreed with the respondent that trial counsel should have obtained an expert in forensic interviewing, child memory and suggestibility. “The expert could have assisted counsel in identifying problems with BC’s disclosures during interviews. The expert could have also provided testimony with respect to child memory and suggestibility, including young children’s susceptibility to source misattribution, as relevant to addressing the reliability and trustworthiness of BC’s disclosures. According to counsel’s own testimony, she did not consider or investigate the possibility of such an expert - indeed, she was unaware of such experts being used in child sexual-abuse cases. We conclude, based on several considerations, that the performance of trial counsel fell short of the controlling objective standard of reasonableness.”

The Court of Appeals continued by finding the trial court erred when it determined, after the hearing held under People v Ginther, 390 Mich 436 (1973) (Ginther hearing), that the views of Dr. Swerdlow-Freed and attorney Lisa Kirsch-Satawa lacked sufficient credibility or weight. “The trial court explained on remand that it discounted their testimony because they did not review transcripts of the adjudication trial or dispositional hearing or talk with trial counsel to determine what steps she took to prepare for the proceedings. Based on this purported failure to prepare, the trial court concluded that neither witness was particularly helpful. Ordinarily, an appellate court must defer to a trial court’s findings on credibility, with respect to both lay and expert witnesses. … In this instance, however, the trial court made a clear legal error when assessing the credibility of these two witnesses.”

Further, the record showed that Dr. James Henry “impermissibly vouched” for the credibility of BC, the Court of Appeals observed. “This case involves allegations of sexual abuse made by a young child, and these reports are the only evidence of wrongdoing. There were no physical signs of abuse, there were no electronic pictures or videos of abuse, and there were no eye-witnesses of abuse. The entirety of the case rests on the credibility and reliability of BC’s disclosures. … [Dr. Henry’s] opinions went beyond the penultimate question of outside coaching and went to the ultimate question of BC’s credibility.” Moreover, even if Dr. Henry had not vouched for BC’s credibility, “there is other evidence in the record to question whether BC could have been influenced by outside sources, whether intentionally or inadvertently,” the Court of Appeals pointed out.

“Trial counsel was certainly aware of the context for BC’s disclosures,” the Court of Appeals wrote. “Indeed, trial counsel testified at the Ginther hearing that her strategy was to attempt to show that BC’s disclosures were not credible and were instead the product of coaching by mother. Yet, despite having formed this strategy, counsel did not investigate - or even consider investigating - an expert who could have provided valuable information on child memory, suggestibility, source misattribution, and forensic-interview protocols, all of which would have been materially useful to supporting the defense’s theory and assisting a fact-finder’s assessment of BC’s disclosures. Further, trial counsel lacked the scientific background to assess independently the interviews in this case.”

In conclusion, the Court of Appeals said the respondent established he was prejudiced by trial counsel’s deficient performance. “[T]his case rises or falls with the credibility and reliability of BC’s disclosures, and an expert should have been consulted by respondent’s trial counsel so that the disclosures could be subjected to the crucible of the adversarial process,” the Court of Appeals wrote. “As our Supreme Court explained in a similar context [in People v Ackley, 497 Mich 381 (2015)], ‘While we cannot say that a battle of the experts would have ensured’ a different outcome, ‘counsel’s failure to prepare or show up for the battle sufficiently undermines our confidence in the outcome of this case to entitle the [respondent] to relief.’”