Michigan Court of Appeals Holds Child's Video Recorded Statements Must Be Admitted in Tender Years Hearing

On June 12th, 2014, the Michigan Court of Appeals held in a termination of parental rights case that trial courts must admit a child's video recorded statements in non-adjudicatory hearings, including tender years hearings, under MCL 712A.17b(5).

In In re Brown/Kindle/Muhammad, Minors, Docket No. 318357, the Michigan Court of Appeals addressed an appeal from a family court order terminating a mother's rights to her children.  The mother argued on appeal that the trial court erred in failing to admit at a tender years hearing video recorded statements made by at least one of her children during a forensic interview.  

The Michigan Court of Appeals agreed with the mother that the failure to admit the video recorded statements was clear error by the trial court, but further held that the trial court did not err in ultimately terminating the mother's parental rights based on the totality of the circumstances.

The Court first recited the facts of the case.

The petition alleged that respondent failed to protect the minor children from sexual abuse by repeatedly sending them to stay at the apartment of James Lester, whom the children called [']Uncle Lenny,['] even after the children told respondent that they were being abused. The petition sought termination at original disposition. 

Pursuant to MCR 3.972(C), petitioner moved to admit into evidence statements that each of the three children made to Child Protective Services (CPS) workers, and Sandra Brown, MB’s paternal grandmother. Petitioner also sought to admit the children’s statements made to the Kids-TALK Children’s Advocacy Center (CAC) forensic interviewers. The trial court conducted a two-day tender years hearing and received the testimony of a number of witnesses. 

Jenette Lippiello, a Kids-TALK forensic interviewer, was qualified as an expert in forensic interviewing. AM told Lippiello that she was taken from her mother’s care because Lester touched her [']coo-coo,['] indicating her genital area, when she was spending the night at his home with her brothers. AM had been sleeping at the time, but knew something happened because [']she remembered it, and because . . . it felt like something crawling on her.['] AM also told Lippiello that she knows it happened because respondent told her. AM told Lippiello that respondent found out about the touching because her mother’s friend saw it on the news. Respondent did not make AM visit Lester after that. AM did not report seeing any abuse directed at either of her brothers. 

Lippiello also interviewed MB. MB told Lippiello that every time he and his brother would go to Lester’s, Lester would [']bother['] their [']privates.['] Lippiello asked MB what he meant by the word [']bother,['] and MB answered, that Lester [']would put his mouth on [MB’s] private, and [put] his mouth on [AK’s] private.['] MB stated that the abuse started when he was still seven. Lippiello asked MB to tell her about the last time Lester abused him and AK. MB said that they were spending the night at Lester’s when Lester put his mouth on MB’s private and sucked it. MB then saw Lester go over to AK, place his private in AK’s mouth and made AK suck it. MB indicated that he told his mother after the first instance of abuse and she told him they would not have to go back. However, they did go back after Lester asked respondent if he could see the boys. MB said respondent [']made them['] return to Lester’s apartment. 

On the second day of the tender-years hearing, respondent objected to the forensic interviewers’ testimony regarding the content of children’s statements, arguing that [']the Court actually seeing [the videorecorded Kids-TALK interview] would be . . . the best evidence rather than having someone interpret them.['] The fathers and Lester joined in the request. Petitioner offered to produce the videorecorded interview under seal, to be reviewed only by the trial court and further requested that it be kept secured. The trial court overruled the objection, declined to admit or view the actual interview, but left open the opportunity to revisit the issue at trial . . .

The Court's analysis of the video recording issue followed.

Respondent first argues that the trial court abused its discretion when it admitted the minor children’s out-of-court statements made to the forensic interviewers but denied respondent’s request to review the actual videorecorded interviews in camera. We agree that the trial court’s refusal to admit the videotapes was contrary to the clear language of MCL 712A.17b(5). However, the trial court’s error does not warrant reversal in this case . . .

There is no issue in this case that the videorecorded statement complied with the requirements of the statute. And, MCL 712A.17b(5) unambiguously provides that, in proceedings brought under MCL 712A.2(b): [']The videorecorded statement shall be admitted at all proceedings except the adjudication stage instead of the live testimony of the witness.['] (Emphasis added.) Thus, while the trial court correctly invoked the court rule in general, it inexplicably ignored the statutory mandate that the children’s videorecorded statements be admitted into evidence. 

We hold that MCL 712A.17b(5) requires a trial court to admit videorecordings of a child’s forensic interview during a non-adjudicatory stage, here a tender years hearing. [']As always, the goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. The touchstone of legislative intent is the statute’s language. If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written.['] Harris, 495 Mich at 127 (internal quotation marks omitted). The language contained in MCL 712A.17b(5) could not be more clear: [']The videorecorded statement shall be admitted at all proceedings except the adjudication stage instead of the live testimony of the witness.[']