P in Re Belanger Minors ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re BELANGER, Minors. April 20, 2023
No. 361779
Benzie Circuit Court
Family Division
LC No. 20-003109-NA
Before: O’BRIEN, P.J., and MURRAY and LETICA, JJ.
MURRAY, J. (concurring in part and dissenting in part).
I concur in the majority’s decision to reverse the trial court’s decision to not admit the two
video-recorded interviews, as MCL 712A.17b(5) requires admission of a properly authenticated
recording that is not being used in the adjudicative phase. However, for the reasons briefly
explained below, I dissent from the majority’s decision to remand to a different judge.
A trial judge is presumed impartial, and the party who asserts otherwise has a heavy burden
of overcoming that presumption. Cain v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d
210 (1996). Remand to a different judge is appropriate where the original judge would have
difficulty setting aside previously expressed views or findings, or if reassignment is advisable to
preserve the appearance of justice and would not entail excessive waste or duplication. People v
Walker, 504 Mich 267, 285-286; 934 NW2d 727 (2019) (quotation marks and citation omitted);
Bayati v Bayati, 264 Mich App 595, 602-603; 691 NW2d 812 (2005).
The LGAL’s brief on appeal sets forth 11 reasons why the trial court should not hear this
matter on remand. 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. “The mere fact that a judge ruled against a litigant, even if
the rulings are later determined to be erroneous, is not sufficient to require disqualification or
reassignment.” In re Contempt of Henry, 282 Mich App 656, 680; 765 NW2d 44 (2009).
“[J]udicial rulings, in and of themselves, almost never constitute a valid basis for a motion alleging
bias, unless the judicial opinion displays a deep-seated favoritism or antagonism that would make
fair judgment impossible and overcomes a heavy presumption of judicial impartiality.” Id.(alteration in original; citation and quotation marks omitted).
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In 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.
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. In one
instance cited by the majority, the court simply noted that it required “fresh evidence” because
some of the issues were already fleshed out while addressing issues in a prior matter, while in the
other ruling regarding the sexual abuse allegations, the court referenced the fact that neither the
DHHS nor the prosecutor had pursued charges or criminal charges based upon the accusations,
and that those two facts, coupled with a therapist’s report, supported not pursuing the allegations
any further.
Setting aside whether these decisions and statements were correct, they contain no evidence
of bias or an inability to resolve the case impartially. I would not remand to a different judge.
/s/ Christopher M. Murray
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