The Proper Way to Perform a Child Interview During Child Protective Proceedings

The Michigan Supreme Court ruled on an issue of first impression in In re Ferranti (June 12, 2019, Docket No. 157907) when it decided on the propriety of a trial court in conducting an in camera interview of a subject child in the context of child protective proceedings.

The case arose when the Department of Health and Human Services petitioned the Otsego Circuit Court, Family Division, to remove minor JF from her parents. The Department alleged that JF’s parents had failed to adequately attend to JF’s medical needs by missing several of her medical appointments; not refilling her prescription medications; and failing to provide adequate living conditions for JF, describing how the clutter left around the house made it difficult for JF to maneuver her wheelchair and how JF’s bathroom was “filthy,” among other allegations.

The Court decided to conduct the interview off the record and out of the presence of the parties before one of the Respondents’ upcoming parenting-time visits because it was concerned that testifying on the record and in the presence of the parties and counsel would make JF uncomfortable.

Relying on that unrecorded in camera interview, the Trial Court determined that JF could not thrive in the inappropriate living environment. This decision substantially contributed to the Trial Court’s determination that Respondent’s parental rights to JF be terminated.

After the Trial Court ordered termination of Respondents’ parental rights, Respondents appealed.

On appeal, the Michigan Court of Appeals affirmed the Trial Court’s termination of JF’s parents’ parental rights and held that Respondents had waived their claim that the in camera interview was erroneous in an unpublished per curiam opinion issued on May 10, 2018 (Docket Nos. 340117 and 340118).

Respondents argued in front of the Michigan Supreme Court that their due-process rights had been violated by the Court’s in camera interview with JF because the specifics to the interview were not shared with the parties or counsel and was conducted off the record without either side present. Counsel argued that they should have been given the opportunity to be present and the option of conducting their own examination of JF. They requested the Court of Appeals to vacate the Trial Court’s order and remand to a different judge. The Department argued that Respondents had waived their due-process claim when their counsel supported the Trial Court’s suggestion that the interview be conducted.

While the Court did ask counsel whether there was any opposition to the interview, the question was phrased generally. It was not apparent from the record whether Respondents had intended to agree to an on-the-record interview or whether they intended the interview to take place off the record. Further, there was no indication as to whether either side knew they would not be given the opportunity to conduct their own examination of JF. The logistical conversation regarding the time and place of the interview involved only the Court, its clerk, the Department, and the Respondents. Their counsel was not included. “The Court never sought – and the respondents never gave – their agreement about how that conversation would take place.”

In lieu of granting Respondent’s appeal, the Michigan Supreme Court issued an opinion, holding that the Court of Appeals was correct in finding that because the Court did not provide either side any details of the interview on the record and because Counsel’s agreement only applied to the general idea of the court speaking to JF, Respondent’s due process rights had been violated and they had not waived their right to have that interview comport with due process.