Trial Court Improperly Excluded Recorded Interviews With Children
The trial court in this child-protective case erroneously refused to view and admit video-recorded forensic interviews with the children, who were allegedly abused by their father, the Michigan Court of Appeals has ruled.
As a result, the trial court improperly dismissed a petition requesting that it exercise jurisdiction over the children and terminate the parental rights of both parents, the Court of Appeals held.
The lawyer-guardian ad litem (L-GAL) in In re Belanger, Minors (Docket No. 361779) asked the Benzie County Circuit Court to take jurisdiction over the children, SB and IB. The petition alleged the respondent-father had sexually abused the children, physically assaulted one of them and engaged in domestic violence in front of them. The trial court dismissed the petition. In the first appeal, the Court of Appeals remanded the case, ruling the L-GAL had statutory authority to file the petition and the abuse allegations were never fully litigated. On remand, the trial court found the respondent-father had substantially complied with the treatment plan and again dismissed the L-GAL’s petition. The L-GAL subsequently amended the petition to include the respondent-mother, requesting the termination of her parental rights as well because she knew about the abuse and failed to protect the children. The trial court dismissed the petition, finding no probable cause to authorize it.
The L-GAL appealed, arguing the trial court erred by refusing to admit and view two video-recorded forensic interviews with the children at the preliminary hearing. The Court of Appeals agreed and vacated the trial court’s ruling - and remanded the case to a different judge.
“The trial court’s erroneous exclusion of the videorecordings deprived the LGAL of a full and fair hearing on the issue of whether there existed probable cause to authorize the filing of the petition,” the Court of Appeals said. Because the current judge “would have substantial difficulty putting out of his mind previously expressed views, we therefore direct that this case be reassigned to a different judge on remand.”
Judge Colleen A. O’Brien and Judge Anica Letica joined the unpublished majority opinion. Judge Christopher M. Murray concurred in part and dissented in part.
Fair Hearing Denied
The Court of Appeals began its analysis by explaining what happened at the June 3, 2022 preliminary hearing. “[F]ollowing direct examination of the forensic interviewer, … the LGAL moved to admit the videorecordings of SB’s forensic interviews. After respondents claimed that they had not yet seen the videos, the trial court held the LGAL’s motion in abeyance. During closing arguments, the LGAL renewed his request to admit the videos. At that time, the trial court made it clear that it did not intend to admit the videorecordings or consider them to determine if there was probable cause to authorize the filing of [the petition].”
On appeal, the L-GAL argued the trial court improperly held his motion in abeyance and then erroneously declined to admit and consider the videos. “We agree,” the Court of Appeals said, noting that MCL 712A.17b(5) governs the admissibility of a child’s video-recorded statement in a child-protective proceeding. The statute says, in relevant part: “The videorecorded statement shall be admitted at all proceedings except the adjudication stage instead of the testimony of the witness.”
The plain language of MCL 712A.17b(5) “unequivocally permits the introduction of a child’s videorecorded statement ‘at all proceedings except the adjudication stage,’” the Court of Appeals said. “The statute does not prohibit the introduction of the video evidence at proceedings that take place either before or after the adjudicative stage. … Indeed, under the statute, a trial court is required to admit a videorecording of a child’s forensic interview during a nonadjudicatory stage.”
Here, the L-GAL sought to admit the recordings during the preliminary hearing, the Court of Appeals observed. “At a preliminary hearing, the court decides whether there is probable cause to authorize the filing of the petition. MCR 3.965(B)(12). The preliminary hearing necessarily takes place before the adjudication.” Because the L-GAL sought to admit the video recordings at a proceeding other than the adjudication, “the trial court was required to admit and consider the evidence,” the appeals court said. “By failing to do so, the court violated the mandate of MCL 712A.17b(5). When a trial court excludes evidence based on an erroneous interpretation or application of the law, it necessarily abuses its discretion.”
It is “clear” the trial court’s exclusion of the video recordings deprived the L-GAL of a fair hearing “when one considers the LGAL’s related argument that the trial court erred when it declined to independently view the videos and instead deferred to the police, the prosecuting attorney, and the [Department of Health and Human Services] regarding the credibility of SB’s disclosures,” the Court of Appeals said. “Indeed, the record demonstrates that the court completely abdicated its responsibilities when it deferred to these other entities to decide whether SB’s allegations were believable. … Because the trial court’s legal error deprived the LGAL of a fair hearing, we vacate the trial court’s order dismissing the LGAL’s petition to terminate respondents’ parental rights and remand for further proceedings on the petition.”
The Court of Appeals further held that, on remand, the case should be assigned to a different judge. “[W]e conclude that the original trial judge will have difficulty putting aside previously expressed views and findings, and that reassignment is necessary to preserve the appearance of justice. … On more than one occasion, the trial court has demonstrated an inclination to avoid a meaningful analysis of the available evidence and to instead defer to the findings of law enforcement, the [Department of Health and Human Services] caseworkers, and the prosecuting attorney.”
According to the Court of Appeals, “Not only has the court repeatedly and on a wholesale level deferred to other entities, it demonstrated a misunderstanding of this Court’s decision in the prior appeal. While an error of law is not grounds for disqualification, … much more than that is transpiring in this case. The court appears disinclined to even entertain the possibility that SB’s accusations are credible, and it has refused to even review and consider the videorecordings of SB’s forensic interviews in which he allegedly disclosed the sexual abuse by respondent-father. The court was entitled to determine what weight to give this evidence after considering it, but the court outright refused to even consider the evidence in the first instance. The court appears entrenched in its position, despite that the LGAL presented witness corroboration of SB’s allegations of sexual abuse, which even respondent-mother initially deemed credible.”
In conclusion, the Court of Appeals vacated the trial court’s order dismissing the L-GAL’s petition and remanded for further proceedings before a different judge.
Dissent: No Evidence Of Bias
Judge Murray agreed with the majority’s decision to reverse the trial court’s ruling to not admit the video recordings. However, he dissented from the majority’s decision to remand to a different judge.
“The LGAL’s brief on appeal sets forth 11 reasons why the trial court should not hear this matter on remand,” he wrote. “However, each of those 11 reasons relates to decisions made by the court during the proceedings, and Michigan law is well-settled that judicial decisions cannot be a basis to ascribe judicial impartiality to a judge.”
Furthermore, “[i]n my view, the LGAL has set forth legally impermissible reasons to conclude that the trial court will have any difficulty handling this case in an unbiased and appropriate manner on remand,” Judge Murray wrote. “Though the decision to preclude admission of the video-recordings into evidence was an abuse of discretion, nothing in that ruling (or any other) reflects a particular disposition as to the ultimate outcome of the case. Nor do the other statements or rulings relied upon by the majority. … I would not remand to a different judge.”
