In re HRC et al. – in camera interviews

The Court of Appeals issued another published opinion.  The case involved whether the trial court may conduct unrecorded in camera interviews with minor children to determine best interests.  The CoA held that a trial court may not conduct in camera interviews with minor children in a juvenile proceeding.

In this case, following a hearing on a petition to terminate parental rights, which contained testimony regarding both statutory basis for termination and best interests, the trial court indicated it was not prepared to make a best interests determination.  The trial court conducted in camera interviews with all of the children.  Subequently, the trial court found termination was in the children’s best interests without making reference to the types of questions asked or the information disclosed by the children.

An in camera interview is an ex parte communication off the record in a judge’s chambers and in the absence of the other interested parties and their attorneys.  Generally, these ex parte communications are not permitted except as provided by law.  Michigan Code of Judicial Conduct, Cannon 2.   The Court of Appeals ruled there is no statutory provision or other caselaw that permits a trial court in a juvenile proceeding to conduct an in camera interview.    The Court distinguished juvenile proceedings from custody proceedings under the Child Custody act, which does contain a provision for in camera interviews with children for a very limited purpose. MCL 722.21.  Without an analogous provision in juvenile law, such interviews are impermissible.

The Court also found that the use of unrecorded in camera interviews in termination proceedings violates parents’ due process rights.  Due process requires fundamental fairness, which will involve consideration of the private interest at stake, the risk of erroneous deprivation of such interest through the procedures used, the probable value of additional or substitute procedures and the state or government interest, including the function involved and the fiscal or administrative burdens imposed by substitute procedures. In re Brock, 442 Mich 101, 111; 499 NW2d 752 (1993).   The Court balanced the parent’s fundamental liberty interest in the care and custody of his or her child and the threat of permanently losing that interest against the state’s interest in the welfare of the child. The Court also considered the risks of an erroneous deprivation of parental rights given the nature of the in camera interview in light of the low probative value of the in camera procedure and the risk of unduly influencing a judge’s decision.  The Court ruled 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.

The Court remanded the case to a different trial court judge to make findings as to each child’s best interests before deciding to terminate parental rights.

You can view or download the case here: In re HRC, et al