Thursday, January 7, 2010
A Michigan Court of Appeals recently ruled that an unrecorded in camera interview with 4 children involved in a proceeding to terminate their parents' rights resulted in a due process violation.
The family involved in these proceedings has a protracted history with protected services.Before the petition was filed in the instant matter, the family had been referred to protective services 24 times. These referrals concerned allegations of physical abuse, truancy, or physical and educational neglect. Physical abuse was suspected because the male children often had bruises, while physical neglect was suspected because the children often came to school improperly dressed or having poor hygiene. In addition, the children missed school often, approximately 20 to 30 days per year, and arrived to school late without excuses. There were also ongoing concerns regarding suspected medical and educational neglect of one child, S.H.C., who was deaf and had very little knowledge of American Sign Language (ASL).
A petition was filed to terminate parental rights based on allegations of sexual abuse, physical abuse, and educational neglect. Before making the decision to terminate parental rights, the court conducted in camera interviews with all 4 children to determine whether the TPR would be in the children's best interests. Distinguishing custody disputes and other family law matters in which in camera examinations are permitted, the court held that:
given the fundamental parental rights involved in termination proceedings, the risk of an erroneous deprivation of those rights given the in camera procedure, and the fact that the information is otherwise easily obtained, it is clear that the child’s interest in avoiding the discomfort caused by testifying in open court does not outweigh the parents’ interest in having the child testify on the record. Thus, it is our view that the use of an unrecorded and off the record in camera interview in the context of a juvenile proceeding, for whatever purpose, constitutes a violation of parents’ fundamental due process rights.
Read the opinion here.