DHHS Violated Discovery Order: Termination Petition Properly Dismissed
The Michigan Department of Health and Human Services violated the court rules in this termination of parental rights case when, at the father’s request, it did not produce video recordings of interviews conducted with his minor children, the Michigan Court of Appeals has ruled.
In the case of In re Johnson, Minors (Docket No. 376919), the Department of Health and Human Services (the DHHS) filed a termination of parental rights petition with the Wexford County Circuit Court, asking it to remove the respondent-father’s three minor children from his care after it was reported that he had sexually abused one of his daughters. The Children’s Advocacy Center (CAC) subsequently conducted a forensic interview with two of the children and those interviews were video recorded.
When the respondent asked the DHHS to provide him the video-recorded interviews, the agency indicated that it could not because it did not have possession of the recordings. As a result, the trial court dismissed the case without prejudice, finding the DHHS violated Michigan Court Rule 3.922 (MCR 3.922) by not providing the recordings to the respondent.
The DHHS appealed the trial court’s dismissal. The agency argued that it did not violate the court rules and, even if it had, dismissal was not an appropriate sanction.
The Court of Appeals affirmed the trial court’s decision.
“[T]he trial court did not abuse its discretion when it determined that law enforcement possessed the recordings, and the DHHS was therefore required to produce the recordings to respondent under MCR 3.922,” the Court of Appeals said. “The agency … must comply with its discovery obligations.”
Judge Allie Greenleaf Maldonado, Judge Michael J. Kelly and Judge Christopher M. Trebilcock were on the panel that issued the unpublished opinion.
Background
After the Wexford County trial court authorized the termination of the parental rights petition and set a date for an adjudication trial, it ordered the parties to produce all discovery required under MCR 3.922 within 21 days of the trial date.
In the meantime, the respondent filed a motion to dismiss the termination of parental rights petition. He asserted the DHHS had not produced certain material governed by MCR 3.922 – namely, the video-recorded interview of the children.
The DHHS subsequently produced much of the required discovery material by the deadline date. However, the DHHS acknowledged that it had not produced the CAC interview recordings, maintaining that it did not have those recordings. In fact, the DHHS indicated that it has a policy against possessing CAC recordings. According to the DHHS, the CAC would not release the recordings to the DHHS and the prosecutor’s office ignored DHHS’s requests for help in obtaining the recordings. The DHHS contended that it did not violate MCR 3.922 because its contracted attorney could not compel the prosecutor’s office to respond or turn over discovery materials. The DHHS asked the trial court to grant an adjournment, rather than dismissing the petition, so the recordings could ultimately be produced.
The trial court determined the DHHS had a duty to produce the CAC interview recordings because they were necessary for the respondent’s defense to impeach his daughter’s credibility.
The trial court held that “granting an adjournment [was not] gonna solve the problem” because DHHS had a policy of not possessing CAC videos. Therefore, the trial court dismissed the petition without prejudice.
The DHHS appealed.
Court Rule Violation
On appeal, the DHHS argued it did not violate MCR 3.922 because 1) the video recordings were not in its possession or control, and 2) it had no way to obtain possession of the recordings through its contract attorney.
“We disagree,” the Court of Appeal said, explaining that MCR 3.922 governs pre-trial procedures in child-protection proceedings. The court rule says, in relevant part:
“… (1) The following materials are discoverable as of right in all proceedings and shall be produced no less than 21 days before trial, even without a discovery request:
(a) all written or recorded statements and notes of statements made by the juvenile or respondent that are in possession or control of petitioner or a law enforcement agency, including oral statements if they have been reduced to writing;
(b) all written or recorded statements made by any person with knowledge of the events in possession or control of petitioner or a law enforcement agency, including, but not limited to, police reports, allegations of neglect and/or abuse included on a complaint submitted to Child Protective Services, and Child Protective Services investigation reports, except that the identity of the reporting person shall be protected in accordance with MCL 722.625. …”
According to the Court of Appeals, “[n]either this plain language nor any other legal authority that this Court is aware of supports [the DHHS’s] argument that contract attorneys should be excused from complying with this (or any) discovery rule. Thus, MCR 3.922 requires the disclosure of CAC videos, without a subpoena or discovery motion, but only if they are in the possession or control of the [DHHS] or a law enforcement agency. In this case, the trial court correctly acknowledged that the enforcement of MCR 3.922 is ‘a question of what you have in your possession.’”
Upon reviewing the record, the Court of Appeals noted it was “clear” that the DHHS did not have possession of the video recordings. “To the contrary, at the motion hearing, [the DHHS] explained that it is the CAC’s policy not to release its recordings to the DHHS. [The DHHS] made several requests for the recordings in this case, and the CAC responded that ‘[a] CAC video should never be in the possession of [Michigan] DHHS staff.’ The CAC response went on to state that if anyone contacted the DHHS to request videos, the DHHS should put the requestor in touch with the CAC, who would inform the requestor ‘that [Michigan] DHHS is not in possession of the CAC video and cannot provide the video.’ The DHHS likewise has a policy against possessing CAC recordings. After being turned away by the CAC, [the DHHS] reached out to the county prosecutor for assistance but received no reply. This is pretty clear evidence that [the DHHS] did not possess the video recordings at issue in this case.”
The trial court “reached a different conclusion based, in part, on its interpretation of the definitions in MCL 600.2163a of the Revised Judicature Act, MCL 600.101 et seq.,” the Court of Appeals said. “Under MCL 600.2163a(1)(e), a ‘videorecorded statement’ is defined as a ‘witness’s statement taken by a custodian of the videorecorded statement.’ In turn, ‘[c]ustodian of the videorecorded statement’ means the [DHHS], investigating law enforcement agency, prosecuting attorney, or department of attorney general or another person designated under the county protocols established as required by section 8 of the child protection law, 1975 PA 238, MCL 722.628.”
MCL 600.2163a “applies to criminal cases involving charges of criminal sexual conduct, child abuse, and child sexually abusive activity,” the Court of Appeals pointed out. “Child protective proceedings are not criminal proceedings. … Moreover, the video recordings in this case were not taken by the ‘custodian of the videorecorded statement,’ i.e., the DHHS or law enforcement –the statements were taken and recorded by the CAC. Accordingly, MCL 600.2163a does not establish that the DHHS had possession of the CAC recordings.”
Looking at the plain language of MCR 3.922, “the record supports the trial court’s determination that law enforcement had possession of the recordings,” the Court of Appeals observed. “The record is clear that law enforcement investigated respondent’s daughter’s allegation of sexual abuse, alongside the DHHS. Moreover, it is the DHHS’s policy that when a CAC interview is recorded, ‘the recording is immediately copied and provided to law enforcement via a password protected thumb drive or cloud-based digital file.’”
Based on the foregoing, “the trial court did not abuse its discretion when it determined that law enforcement possessed the recordings, and the DHHS was therefore required to produce the recordings to respondent under MCR 3.922,” the Court of Appeals said. “It makes no difference that the DHHS used a contract attorney. The agency still must comply with its discovery obligations.”
Dismissal As Discovery Sanction
The DHHS further argued that, to the extent that it violated MCR 3.922 and the discovery order, the trial court abused its discretion by ordering dismissal as a discovery sanction.
“We disagree,” the Court of Appeals said, noting that under MCR 2.313(B)(2), “if a party … fails to obey an order to provide or permit discovery … the court in which the action is pending may order such sanctions as are just, including, but not limited to the following … (c) … dismissing the action or proceeding or a part of it ….”
The Court of Appeals emphasized that “[d]ismissal is a drastic step that should be taken cautiously” and the trial court “must give careful consideration” to several factors before dismissing a case. In addition, the trial court must “consider[] all of its options in determining what sanction was just and proper in the context of the case before it.”
Here, the trial court indicated on the record that the failure to produce the CAC video recordings was the only discovery violation, the Court of Appeals observed. “However, the trial court also acknowledged that a lesser sanction – adjournment – would be appropriate to cure the discovery defect. The trial court found that the DHHS had policies indicating that it was unable or unwilling to comply with the court rule, such that dismissal without prejudice was proper.”
Therefore, upon reviewing the record, “we do not conclude that the trial court’s decision to dismiss was ‘outside the range of reasonable and principled outcomes,’” the Court of Appeals held. “This is particularly true when dismissal was made without prejudice, allowing the DHHS to refile its petition once it was able to produce the necessary CAC video recordings. Affirmed.
