Judge’s In Camera Interview With Child Deprived Mother Of Due Process

The trial court in this child protective proceeding improperly conducted an in camera interview with one of the respondent-mother’s children, and this error deprived her of due process, the Michigan Court of Appeals has ruled.

As a result, the Court of Appeals in In re Dirheimer/Rust, Minors (Docket No. 373027) vacated that portion of the trial court’s order changing the goal of the proceedings from reunification to juvenile guardianship. The Court of Appeals also remanded the case to a different judge.

The trial court “plainly erred by conducting an in camera interview of a child in a child protective proceeding,” the Court of Appeals said. “Indeed, petitioner [the Department of Health and Human Services] concedes as much. Yet petitioner asserts that respondent-mother ‘arguably waived’ any argument regarding the interview by indicating acceptance at the hearing. We disagree.”

Judge Colleen A. O’Brien, Judge Mark T. Boonstra and Judge Randy J. Wallace were on the Court of Appeals panel that issued the unpublished opinion.

Background

The children, OD and SD, had been removed twice from the respondent-mother’s care. The first time was in 2020 after their father died of a drug overdose and the mother acknowledged that she had used heroin. This incident led to the children’s removal by the petitioner, Department of Health and Human Services (DHHS). The children were returned to the respondent in December 2019 and the case was closed in 2020.

In 2023, the DHHS again petitioned the Muskegon County Circuit Court for the removal of the children, following incidents of alleged domestic violence, homelessness and substance abuse (all relevant to the present case). The respondent pleaded to the allegations and the trial court took jurisdiction over OD and SD. The children were placed in non-relative foster care and the respondent was ordered to complete a case service plan.

After a dispositional review hearing in July 2024, the children’s lawyer guardian ad litem (LGAL) informed the trial court that OD wanted to speak to the court “on his own just so you could hear from him how he feels about permanency.” At the conclusion of the hearing, the trial court stated that it would interview OD once the hearing adjourned. No party objected to the interview.

At the next dispositional review hearing in October 2024, the trial court changed the goal from reunification to juvenile guardianship for the children. When counsel for the DHHS asked whether a dual goal of juvenile guardianship and reunification could be considered, the trial court stated, in part: “No. This case is over a year old. … I think it’s time for those children to have a little bit of input as to where they want to be. So we will create the order, and we will have a shortened review, and that’s what I expect the Department of Health and Human Services to do.” The trial court entered an order finding that returning SD and OD to the respondent would cause a “substantial risk of harm to the children’s life, physical health, or mental well-being” and that appointing a juvenile guardian was in their best interests.

The respondent appealed.

‘Clear Precedent’

On appeal, the Court of Appeals ruled the trial court erroneously conducted an in camera interview with OD and that this deprived the respondent of due process.

“[T]here is no authority that permits a trial court presiding over a juvenile matter to conduct in camera interviews, on any subject whatsoever, with the children,” the Court of Appeals wrote, finding the trial court “plainly erred” by conducting the interview.

The petitioner, however, asserted the respondent “arguably waived” any objection to the in camera interview by indicating her acceptance at the review hearing.

The Court of Appeals disagreed. “After the trial court indicated that it would interview OD, the trial court stated that it ‘saw heads bobbing.’ Petitioner suggests that this demonstrates ‘approval by the parties’ of the court’s decision to interview OD. However, between the moment when the court stated that it would conduct the interview and when the court ‘saw heads bobbing,’ the trial court made further rulings regarding parenting time and giving the DHHS discretion to return one of the children to the home. Under these circumstances, with the lack of affirmative statements approving the interview on the record, we conclude that respondent-mother merely forfeited her challenge to the trial court’s action, rather than waived it.”

The petitioner further contended that, although plain error had occurred, the respondent did not establish prejudice.

Addressing this argument, the Court of Appeals noted it previously held in In re HRC, 286 Mich App 444 (2009), that “’the trial court’s decision to interview the children in camera fundamentally and seriously affected the basic fairness and integrity of the proceedings below,’ requiring that the trial court’s decision be vacated and the assignment of a different judge on remand.”

The Court of Appeals also explained that the Michigan Supreme Court in In re Ferranti, 504 Mich 1 (2019), agreed with the holding in HRC that “a trial court may not conduct in camera interviews of the children during a termination of parental rights case.” In addition, Ferranti “held th[at] case should be assigned to a different judge on remand.”

In light of this “clear” precedent, “we conclude that the trial court’s error impacted the basic fairness and integrity of the proceedings below and impaired respondent-mother’s fundamental liberty interest in the care and custody of her children at stake in these proceedings,” the Court of Appeals said. Here, the respondent “had no opportunity to learn what testimony was elicited or to counter information obtained, and no way of knowing how that information may have influenced the court’s decision. … Because it is unknown what information the trial court obtained from OD, it cannot be determined ‘whether the trial court would be able to set aside any information obtained in making a new determination.’”

According to the Court of Appeals, “the very nature of the error ‘resulted in an inadequate record for meaningful judicial review at the appellate level’ and therefore fundamentally affected the fairness and integrity of the proceeding below, regardless of respondent-mother’s ability to show outcome-determinative error.”

Therefore, “we hold that the trial court plainly erred by conducting an in camera interview of OD, that the error affected substantial rights or caused prejudice, and that remand is required before a different trial judge,” the Court of Appeals said.