Opinion
No. 346032
06-18-2019
In re KENNEDY, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED St. Joseph Circuit Court Family Division
LC No. 2017-000034-NA Before: K. F. KELLY, P.J., and FORT HOOD and REDFORD, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor children under MCL 712A.19b(3)(g) (failure to provide proper care and custody) and (j) (reasonable likelihood that child will be harmed if returned to parent). We affirm.
Although the trial court terminated the parental rights of the minor children's father, father did not appeal, and his parental rights are not at issue in this appeal.
I. BACKGROUND
On January 17, 2017, petitioner, Department of Health and Human Services (DHHS), submitted a petition to the trial court to remove the minor children from respondent's home and care. Petitioner alleged that respondent was unable to provide for the basic needs of the children, including feeding the children, changing the children's diapers, maintaining appropriate and clean housing conditions, parenting the children, and taking the children to school. Petitioner also alleged that respondent was unable to provide stable housing and that respondent had a history of homelessness and employment instability. On March 9, 2017, respondent offered a plea of admission to the allegations in the petition, and the trial court accepted respondent's plea.
Approximately one month before the termination hearing was scheduled to begin, respondent filed a motion seeking public funds to secure an expert to assist her in addressing issues of attachment theory and emotional trauma. Respondent asserted that petitioner intended to call the children's therapists to testify regarding the parent-child relationships, permanency, attachment, and trauma and that she would not be able to effectively cross-examine petitioner's expert witnesses or present alternative theories to petitioner's witnesses' testimonies without the support of an expert. Following a hearing on respondent's motion, the trial court determined that the issues relating to attachment theory and emotional trauma were not of such complexity that they warranted appointment of an expert at public expense to assist respondent in the preparation of her defense. The trial court also concluded that cross-examination could effectively minimize the risk of erroneous deprivation of respondent's due process and parental rights.
Respondent subsequently secured an expert to testify regarding attachment theory, how attachment theory implicated a parent's relationship with his or her child, and how a parent's lack of presence in a child's life on a consistent basis affected attachment. Respondent argued that the expert's testimony was necessary to rebut the testimony of Infant Mental Health specialist Cecily Bierlien that she believed that the children had insecure attachments to respondent on the basis of her alleged unresponsiveness and distractibility. Respondent asserted that her expert could testify regarding how an insecure attachment generally developed and that conclusions related to attachment required expertise. Respondent also asserted that her expert could testify that there were theories and conclusions other than the conclusion that respondent and the children shared insecure attachments that could explain why the children exhibited learned helplessness behaviors. Petitioner objected to respondent's request, arguing that the testimony was not relevant to either the statutory grounds for termination or the trial court's best-interest determination. The trial court determined that respondent's expert's testimony was not necessary because the expert would not be able to testify with actual knowledge of the attachment between respondent and her children. Therefore, the trial court denied respondent's request to allow her expert to testify. At the conclusion of the termination hearing, the trial court determined that (1) statutory grounds to terminate respondent's parental rights were established by clear and convincing evidence and (2) termination was in the minor children's best interests. Respondent now appeals as of right.
II. ANALYSIS
A. DUE PROCESS
On appeal, respondent argues that her due process rights were violated because the trial court denied her request for appointment of an expert to assist with the preparation of her defense in these proceedings. We disagree.
We review de novo constitutional issues, such as whether the child protective proceedings in this case protected the respondent's right to due process. In re Yarbrough Minors, 314 Mich App 111, 121-122; 885 NW2d 878 (2016).
The parent of a child has a fundamental liberty interest in the care, custody, and management of the child. See Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982) (recognizing that the fundamental liberty interest that natural parents have in the care, custody and management of their children will not "evaporate" just because they have not been model parents or the state has taken temporary custody of their children); see also In re Beck, 488 Mich 6, 11; 793 NW2d 562 (2010) (observing that the rights of a parent include his or her fundamental liberty interest in managing the care and custody of their children). The due-process provisions of the United States and Michigan constitutions protect this fundamental liberty. US Const, Am XIV; Const 1963, art 1, §17; In re Yarbrough Minors, 314 Mich App at 111. The state may terminate a parent's parental rights without offending due process if it affords the parent fundamentally fair procedures, which include proof by clear and convincing evidence that termination of parental rights is warranted. Santosky, 455 US at 747-748; In re Yarbrough Minors, 314 Mich App at 122.
At the respondent's request, a trial court may appoint an expert witness at public expense to assist the respondent in preparation of a defense. In re Yarbrough Minors, 314 Mich App at 134. When considering whether to grant a respondent's request for expert witness funding, the trial court must weigh the three factors set forth in Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976). In re Yarbrough Minors, 314 Mich App at 134. In Eldridge, the United States Supreme Court stated:
[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Eldridge, 424 US at 334-335.]
Respondent's argument that she was denied due process because the trial court denied her request for public funds to secure an expert witness to assist in the preparation of her defense is without merit. Our consideration of the Eldridge factors, which the trial court also carefully weighed in its decision, supports this conclusion. As an initial matter, respondent's private interest in her parental rights is no doubt "commanding," as it is a constitutionally protected fundamental liberty interest. In re Yarbrough Minors, 314 Mich App at 134 (citation and quotation marks omitted).
[T]he importance of the private interest at stake here—a parent's fundamental right to direct the care, custody, and control of his or her child free from governmental interference—cannot be overstated. It is a core liberty interest recognized by the Fourteenth Amendment. "Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life." [In re Sanders, 495 Mich 394, 415; 852 NW2d 524 (2014), quoting Santosky, 455 US at 753.]
However, the second Eldridge factor does not support respondent's due-process violation claim. As discussed in In re Yarbrough Minors, a termination of parental rights proceeding is "fundamentally adversarial." In re Yarbrough Minors, 314 Mich App at 136. However, we are not persuaded that expert assistance on the subject of the children's attachments to respondent was pivotal to her defense and would have been beneficial in these proceedings. Cf. In re Yarbrough Minors, 314 Mich App at 132 (concluding that the respondents in that case "amply established that expert consultation was necessary to their defense and would likely benefit them."). Put another way, respondent's "fair opportunity to present [her] defense" in this case was not undermined by the trial court's decision to deny her request seeking the assistance of an expert witness. Ake v Oklahoma, 470 US 68, 76; 105 S Ct 1087; 84 L Ed 2d 53 (1985). The record reflects that the children's insecure attachments to respondent were not a cause for removal of the children from respondent's care, a barrier to reunification, or relevant to the statutory grounds for termination. Likewise, the record does not reflect that attachment theory was a highly contested issue during these child protective proceedings or that evidence pertaining to this theory was unreliable. Cf. In re Yarbrough Minors, 314 Mich App at 135-136 (concluding that "private interests strongly favored funding for an expert witness or consultant" given that the science of "shaken baby syndrome" was greatly contested and "the conventional assumptions underlying medical opinions that a parent abused a child have proven fundamentally flawed."). Unlike in In re Yarbrough Minors, where the petitioner's case "rested exclusively" on complicated expert medical testimony relating to shaken baby syndrome and which involved conclusions formed on the basis of an MRI and CT scan, id. at 120, 131, evidence concerning attachment theory and emotional trauma did not form the crux of petitioner's case against respondent in the instant appeal.
Notably, petitioner presented evidence that respondent struggled with instability in housing and employment, and that during parenting time she had difficulty supervising the children and keeping them safe. On one occasion, ARK was left alone in a public park near a lake for approximately five minutes. Respondent also struggled with attending to her children's basic needs, at one point leaving one of her children in soiled underpants even after the child asked her for help. Respondent also left MIMK alone in her high chair for almost an hour during a parenting time visit. Because respondent had a difficult time responding to the needs of her children, her oldest child, DRK, had to assume the role of mother and caretaker to her younger siblings, which she did not like to do. Respondent's youngest child, MIMK, was unable to walk independently at almost two years of age and DHHS staff attributed this delay to severe neglect by respondent. Respondent did not consistently bring food to her parenting time with the children, and the children verbalized their concern that there would not be enough food in their home with respondent.
Additionally, respondent's counsel was able to vigorously cross-examine Bierlein regarding the basis of her conclusion that the children had insecure attachments to respondent. Bierlein was not qualified as an expert and did not conduct a formal attachment assessment. However, Bierlein observed the relationship between the children and respondent during parenting time. Notably, it was only on respondent's counsel's cross-examination of Bierlein that she suggested that the children had insecure attachments to respondent because the children did not routinely look to respondent to have their needs met. Respondent's counsel questioned Bierlein regarding her observations of the children and respondent, her informal attachment conclusions, and the causes of attachment and the children's behaviors. Respondent's counsel also questioned Bierlein regarding how the circumstances of the parenting time visitations, including the length and location of the visits, affected her observations of respondent's relationship with her children. Although Bierlein testified that training was required to assess attachment and the causes of a child's behavior, the nature of the evidence in this case was not such that it presented highly technical material requiring expert interpretation. Further, because Bierlein did not conduct a formal attachment assessment, there was no evidence that required an expert's guidance to interpret. Instead, Bierlien's testimony focused on her personal observations of (1) respondent's interactions with her children during parenting time, and (2) how the children behaved, such as seeking assistance from other adults, as a result.
Similarly, respondent's counsel offered the testimony of several other witnesses to support her defense. Respondent's husband and father testified that respondent attended to the needs of her children and played with the children during parenting time. Respondent's father also testified that the children appeared content during parenting time. The children's previous foster-care parent testified that the children expressed that they missed respondent after parenting time visits. Thus, we note that respondent's counsel was able to advance a different hypothesis regarding the children's attachments to respondent without expert assistance by vigorously cross-examining Bierlein regarding the basis of her attachment conclusion. Cf. In re Yarbrough Minors, 314 Mich App at 133, 136-137 (observing that the respondents' counsel, without expert assistance, "could not capably question or undermine" key evidence, including the interpretation of a CT scan and MRI, that the petitioner presented in support of its case).
Finally, the government's interest included the fiscal and administrative burden of paying for an expert witness. Respondent's counsel stated that to secure an expert in child trauma and attachment theory would cost at least $2,500. "While this sum is not insubstantial, it hardly qualifies as unreasonable." Id. at 137. However, the government also had "a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings[,]" which included providing the children with a permanent home. Santosky, 455 US at 766. Petitioner presented ample evidence to support termination of respondent's parental rights, and respondent had the opportunity to oppose termination. Although respondent had a significant constitutional interest in her parental rights and the requested funds for the expert were reasonable, we are satisfied that the child protective proceedings in this case provided her with "meaningful alternative evidentiary safeguards" that allowed her to undermine petitioner's evidence against her, and we are not persuaded that her due process rights were violated or that remand to the trial court for a new termination hearing is necessary. Cf. In re Yarbrough Minors, 314 Mich App at 137-138 (ruling that because the respondents did not have "alternative evidentiary safeguards" provided to them to challenge the petitioner's theory that they physically abused their child, their due process rights were violated and remand for a new termination hearing was required).
B. EXPERT TESTIMONY AT THE TERMINATION HEARING
In her next allegation of error, respondent claims that the trial court abused its discretion in disallowing the testimony of an expert on attachment theory at the termination hearing. We disagree.
This Court reviews a trial court's evidentiary rulings in a child protection proceeding for an abuse of discretion. In re Utrera, 281 Mich App 1, 15; 761 NW2d 253 (2008). "An abuse of discretion occurs when the trial court chooses an outcome that falls outside the range of principled outcomes." Id. (quotation marks and citation omitted).
Generally, the trial court may admit expert witness testimony to assist the trier of fact in understanding the evidence or a fact in issue. MRE 702. MRE 702 provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Expert testimony is admissible if "(1) the witness [is] an expert, (2) there are facts in evidence that require or are subject to examination and analysis by a competent expert, and (3) the knowledge is in a particular area that belongs more to an expert than to the common man." Surman v Surman, 277 Mich App 287, 308; 745 NW2d 802 (2007). As a gatekeeper pursuant to MRE 702, the trial court must perform this function competently, adequately and ensure that expert testimony is reliable before allowing its admission. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d 391 (2004) (quotation marks and citation omitted).
In this case, respondent requested that the trial court allow Eric Sauer to testify regarding general principles of attachment theory, how attachment theory implicated a parent's relationship with his or her child, and how a parent's lack of presence in a child's life on a consistent basis affected attachment. Notably, although Sauer reviewed Bierlein's reports and visitation notes, he did not personally meet with the children or respondent or observe their interactions together. Thus, as the trial court correctly recognized, Sauer was not able to apply attachment theory to the facts of this particular case or analyze respondent's and the children's behavior on the basis of his observations of their specific interactions. Therefore, we agree with the trial court's determination that Sauer's testimony would not be of assistance in this case. Contrary to her assertion on appeal, respondent was also able to offer evidence in support of her defense because her husband and father testified that respondent interacted well with her children and that she was responsive to their needs. Moreover, the children's previous foster-care parent testified that the children expressed that they missed respondent after parenting-time visitations. Our review of the record also indicates that petitioner presented ample evidence, independent of any attachment theory evidence, to support termination of respondent's parental rights and there was also ample evidence to support the trial court's determination that termination was in the minor children's best interests. Accordingly, we are not persuaded that the trial court erred in declining to allow the expert evidence.
On appeal, mother does not challenge the trial court's findings with regard to the statutory grounds for termination, the trial court's finding that termination was in the children's best interests, or the trial court's finding that DHHS made reasonable efforts to reunify the family.
III. ADDITIONAL MATTERS
On appeal, respondent also argues that this Court should apply the standard our Supreme Court recently articulated in the context of a criminal case, People v Kennedy, 502 Mich 206; 917 NW2d 355 (2018), to determine whether respondent was entitled to the appointment of an expert witness to assist in the preparation of her defense in these child protective proceedings. We agree.
In Kennedy, our Supreme Court was asked to consider the defendant's claim that his constitutional rights were violated when the trial court denied his request to appoint a DNA expert. Id. at 210. This Court had rejected the defendant's claim, holding that the defendant did not show that the expert testimony would benefit his defense as required by MCL 775.15 and the Michigan Supreme Court's decision in People v Tanner, 469 Mich 437; 671 NW2d 728 (2003). Kennedy, 502 Mich at 210. The Michigan Supreme Court instructed that MCL 775.15 did not apply in the factual context of that case, and instead held that the United States Supreme Court's decision in Ake controlled the inquiry. Kennedy, 502 Mich at 210. Notably, our Supreme Court recognized that in Ake, the United States Supreme Court turned to the three-pronged analysis from Eldridge, that was pivotal to this Court's ruling in In re Yarbrough Minors, in deciding "whether, and under what conditions, the participation of a psychiatrist is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent psychiatric assistance in preparing the defense." Id. at 215-218; Ake, 470 US at 77-83. The Kennedy Court observed that in Ake, when the defendant demonstrated to the trial court that his sanity at the time of the charged offense was a key factor to be decided at trial, the State was required to provide the defendant with access to a competent psychiatrist who would perform an examination of the defendant and assist defense counsel in the preparation and ultimate presentation of the defense. Id. at 218.
In In re Yarbrough Minors, this Court turned to Ake's application of Eldridge for guidance in determining the appropriate standard for discerning whether an expert should be appointed to assist a respondent in child protective proceedings with the preparation of a defense, observing that "[a]lthough the case arises from the criminal law, we find its teachings valuable and relevant here." In re Yarbrough Minors, 314 Mich App at 127. This Court also acknowledged that courts from other jurisdictions had turned to Ake for "guidance in . . . case[s] involving the termination of parental rights." Id. at 130. Perhaps most importantly, this Court observed that "Ake counsels that fulfilment of a respondent's due process rights may sometimes require state-funded access to an expert to assist in the evaluation, preparation, and presentation of a defense." Id.
While acknowledging that Ake is the prevailing law controlling requests by indigent criminal defendants for the appointment of expert witnesses at the expense of the government, the Kennedy Court observed that the United States Supreme Court had not laid out how "this showing [that an expert witness is required] must be made." Kennedy, 502 Mich at 226.
This question is critical. Until an expert is consulted, a defendant might often be unaware of how, precisely, the expert would aid the defense. If, in such cases, the defendant were required to prove in detail with a high degree of certainty that an expert would benefit the defense, the defendant would essentially be tasked with the impossible: to get an expert, the defendant would need to already know what the expert would say. At the same time, the defendant's bare assertion that an expert would be beneficial cannot, without more, entitle him or her to an expert; otherwise, every defendant would receive funds for experts upon request. [Id.]
The Michigan Supreme went on to direct that trial courts should look to the reasonable probability standard set forth in Moore v Kemp, 809 F2d 702 (CA 11, 1987), to discern whether the defendant had made a "sufficient showing to be entitled to expert assistance under Ake[.]" Kennedy, 502 Mich at 210.
[A] defendant must demonstrate something more than a mere possibility of assistance from a requested expert; due process does not require the government automatically to provide indigent defendants with expert assistance upon demand. Rather . . . a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial. Thus, if a defendant wants an expert to assist his attorney in confronting the prosecution's proof—by preparing counsel to cross-examine the prosecution's experts or by providing rebuttal testimony—he must inform the court of the nature of the prosecution's case and how the requested expert would be useful. At the very least, he must inform the trial court about the nature of the crime and the evidence linking him to the crime. By the same token, if the defendant desires the appointment of an expert so that he can present an affirmative defense, such as insanity, he must demonstrate a substantial basis for the defense, as the defendant did in Ake. In each instance, the defendant's showing must also include a specific description of the expert or experts desired; without this basic information, the court would be unable to grant the defendant's motion, because the court would not know what type of expert was needed. In addition, the defendant should inform the court why the particular expert is necessary. We recognize that defense counsel may be unfamiliar with the specific scientific theories implicated in a case and therefore cannot be expected to provide the court with a detailed analysis of the assistance an appointed expert might provide. We do believe, however, that defense counsel is obligated to inform himself about the specific scientific area in question and to provide the court with as much information as possible concerning the usefulness of the requested expert to the defense's case. [Id. at 227, quoting Moore, 809 F2d at 712 (emphasis and footnote added).]
While we acknowledge that this Court in In re Yarbrough Minors apparently disagreed with the trial court's reliance on a reasonable probability standard in denying the respondents' request for funds to allow them to consult with an expert in the preparation of their defense, this Court's ruling was rendered without the benefit of the Michigan Supreme Court's recent decision in Kennedy. The Court of Appeals is bound to follow authority from the Michigan Supreme Court. In re AGD, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 345717); slip op at 4.
We agree with respondent that the standard set forth in Moore that our Supreme Court looked to in Kennedy does apply in the context of child protective proceedings. Again, we take this opportunity to point out that the Kennedy Court relied heavily on Ake in its analysis, and that the Ake Court weighed the Eldridge factors in reaching its ultimate conclusion. Kennedy, 502 Mich at 215-218. Rejecting any assertion that the Legislature intended that MCL 775.15 would encompass requests by indigent criminal defendants "for the appointment of an expert at government expense[,]" our Supreme Court concluded that the Ake due process analysis would govern such requests. Kennedy, 502 Mich at 225. Accordingly, the Michigan Supreme Court's analysis in Kennedy and this Court's analysis in In re Yarbrough Minors are consistent in that they both require a weighing of the Eldridge factors in determining whether an indigent person ought to be provided the assistance of an expert at public expense in the preparation of his or her defense. However, Kennedy has now taken the analysis one step further and provided additional guidance to the courts of this state by instructing how a specific and definitive showing can be made, using the Moore framework, that an indigent individual requires the assistance of an expert. Accordingly, rather than supplanting the analysis that the In re Yarbrough Court carefully crafted, Kennedy has added another step to streamline this analysis. Given that this Court has previously looked to Ake, a criminal law decision, in framing its analysis in the context of child protective proceedings, we conclude that incorporating the Kennedy Court's ruling is both appropriate and necessary here.
However, we are not persuaded that reversal of the trial court's order terminating respondent's parental rights and remand is necessary under the facts of this case, even where the trial court was not specifically guided by Kennedy as it rendered its ruling pertinent to this issue. This is because during these child protective proceedings, respondent was provided with the opportunity to demonstrate to the trial court that (1) the assistance of an expert would be of utility in responding to petitioner's evidence addressing issues of child trauma and attachment theory, and (2) the denial of this assistance would undermine the fundamental fairness of the proceedings. Kennedy, 502 Mich at 227. Respondent initially filed a motion on July 18, 2018, requesting funds to secure an expert to assist in the preparation of her defense. Respondent provided information about the expert that she sought assistance from, including the expert's specialized area of knowledge, and informed the trial court why expert assistance was necessary. Id. Put another way, respondent's counsel did "provide the trial court with as much information as possible concerning the usefulness of the requested expert to [respondent's] case." Id. After considering respondent's arguments and the nature of the case, including petitioner's proposed proofs to be submitted at the termination hearing, the trial court determined that an expert's assistance would not be necessary to allow respondent to effectively meet petitioner's case, and that the fairness of the proceedings would not be undermined by its decision. Subsequently, during the termination hearing, the trial court concluded that the presentation of an expert witness on matters of attachment theory would not be of assistance or value, given that the proposed expert had not personally observed the interactions of respondent with her children during parenting time. Under these circumstances, given the trial court's careful consideration of the Eldridge factors and because respondent was afforded the opportunity to demonstrate to the trial court a reasonable probability that the requested expert would assist her defense and that the denial of her request would undermine her right to fundamental fairness in these proceedings, Kennedy, 502 Mich at 227, we are satisfied that the "procedural safeguards" necessary to protect respondent's due process rights were provided, In re Sanders, 495 Mich at 410, and the trial court's order terminating her parental rights need not be disturbed.
The termination hearing commenced on August 15, 2018.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood