in Re Foust Minors ( 2021 )

Order Michigan Supreme Court
Lansing, Michigan
June 11, 2021 Bridget M. McCormack,
Chief Justice
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
162445 Elizabeth T. Clement
Megan K. Cavanagh
In re FOUST, Minors. SC: 162445 Elizabeth M. Welch,
COA: 349545 Justices
Genesee CC Family Division:
16-133553-NA
_______________________________________/
On order of the Court, the application for leave to appeal the December 17, 2020
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
WELCH, J. (dissenting).
I respectfully dissent from the Court’s order denying leave to appeal.
It is now well settled that, unlike in child custody matters, Michigan law does not
permit a trial court presiding over a termination of parental rights case to conduct an in
camera interview of a minor for the purpose of determining that minor’s best interests.
See In re Ferranti, 504 Mich 1, 35 (2019) (explaining how there is “ ‘nothing in the
juvenile code, the caselaw, the court rules, or otherwise [that] permits a trial court
presiding over a termination of parental rights case to conduct in camera interviews for
purposes of determining their best interests’ ”) (alteration in original), quoting
approvingly In re HRC, 286 Mich App 444, 454 (2009). In Ferranti, we recognized the
concern that “in camera interviews might unduly influence the trial court’s factual
findings and termination decision, and because the process provides no opportunity for
cross-examination by respondents or their counsel, the practice also prejudices a
respondent’s ability to impeach the witness and forecloses meaningful review.” Ferranti,
504 Mich at 32.
The current case highlights these exact concerns. The trial court returned one
child to respondent-mother’s care but terminated respondent-mother’s parental rights to
two other children. In supporting this split decision, the trial court focused on the relative
advantages of the foster home, the possibility of adoption, and the preferences of the
2
children as discerned from an in camera interview.1 That in camera interview was
attended by the children’s guardian ad litem (who had advocated for termination of
parental rights) while respondent-mother was able to view the proceedings by video. The
Court of Appeals properly recognized that, under Ferranti and HRC, the trial court’s use
of an in camera interview violated respondent-mother’s due-process rights. It
nevertheless held that respondent-mother could not establish that the due-process
violation affected her substantial rights or that it seriously affected the fairness, integrity,
or public reputation of judicial proceedings as required for relief under the plain-error
standard of review. I disagree because I believe that it is all too likely that the improper
interview procedure unduly influenced the trial court’s factual findings and termination
decision.
Additionally, I believe the trial court’s best-interest analysis did not provide
enough detail to “provide a reasoned basis for its decision.” Cf. Mich Dep’t of Transp v
Randolph, 461 Mich 757, 768 (2000). For a best-interest analysis, it is understood that
“[t]he court should consider a wide variety of factors” such as (1) the child’s bond to the
parent; (2) the parent’s parenting ability; (3) the child’s need for permanency, stability,
and finality; (4) the advantages of a foster home over the parent’s home; (5) the parent’s
history of domestic violence; (6) the parent’s compliance with his or her case service
plan; (7) the parent’s visitation history with the child; (8) the children’s well-being in
care, (9) the possibility of adoption; and (10) any of the best-interest factors in the child
custody context as set forth in MCL 722.23. In re Medina, 317 Mich App 219, 237-238
(2016) (quotation marks and citations omitted). MCR 3.977(I)(1), which governs
termination proceedings, provides that “[b]rief, definite, and pertinent findings and
conclusions on contested matters are sufficient.” While there is no expectation that every
best-interest factor be analyzed, I find it troublesome in this matter that the trial court
failed to address most of the factors, including the existence (or nonexistence) of a
parent-child bond. When there is an inadequate basis to facilitate our understanding of
the reasoning supporting a particular decision or outcome, we should not hesitate to
remand for further proceedings rather than substituting our own views or assumptions.
Cf. People v Adkins, 436 Mich 878, 878 (1990).
The trial court’s limited reasoning is especially problematic in light of its improper
reliance on the children’s in camera interviews. The record reflects that the trial court
and the minor children’s lawyer-guardian ad litem joined together in a one-sided manner
to ask the minor children (who were not placed under oath) questions without any
opportunity for cross-examination. Cross-examination is the quintessential example of
1
An in camera interview is one conducted “[i]n the judge’s private chambers.” Black’s
Law Dictionary (11th ed). The particular interview procedure employed in this case
physically occurred in the trial court judge’s chambers although it was not entirely
“private” because it was transcribed and simultaneously broadcast into the courtroom for
the benefit of the parties and, presumably, any public spectators.
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the procedural safeguards necessary to permit effective, accurate, and reliable fact-
finding. Other witnesses’ views are not its substitute. Absent the opportunity for a
respondent-parent to ask direct follow-up questions to clarify a point or to cross-examine
as to stated facts elicited by an opposing attorney’s questioning, it is unknown whether
the information obtained is worthy of reliance. For that exact reason, a respondent-parent
is “afforded the opportunity to present evidence and witnesses at a hearing on the
termination of parental rights and to confront and cross-examine evidence and witnesses
used against the respondent.” See In re Trejo Minors, 462 Mich 341, 355 (2000).
Although the “primary beneficiary” of the best-interest inquiry is and must always be the
child, the fact-finding related to the application of the best-interest test also serves to
protect the respondent-parent. See id. at 356.
The trial court’s analysis was too limited and irreversibly colored by a process that
our precedent already recognizes as a violation of respondent-mother’s due-process
rights. This defect is especially concerning given that the trial court still thought well
enough of respondent-mother to conclude that termination of parental rights was not in
the best interests of one of the children, thereby splitting these brothers into different
homes despite record evidence indicating that they maintained a preference for remaining
together. Admittedly, the existence of a transcribed record and the fact that respondent-
mother could view the examination simultaneously via video distinguishes this case from
Ferranti and HRC. I do not think, however, that a transcribed record and video feed
serve as a cure-all given the one-sided nature of the in camera examination. In any event,
because Ferranti and HRC both held that a trial court cannot reasonably be expected to
un-ring the bell and set aside any improper influence resulting from the in camera
interview, I would have relied on the example of those precedents by vacating the trial
court’s best-interest determination and remanding for additional fact-finding. For these
reasons, I respectfully dissent from the denial of leave.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 11, 2021
b0608
Clerk