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A Better Partnership
January 21, 2016

Due process concerns may necessitate public funding for expert witnesses in parental termination proceedings, says the COA

In In re Yarbrough Minors, Nos. 326170 and 326171, the Court of Appeals held that in parental termination proceedings, parents may be entitled to funding for an expert witness.  To properly make this determination, the Court noted, a trial court must apply the due process balancing test established in Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976).
Respondents were parents of a five-month-old son, JPY.  Mother noticed that JPY’s eye had a “red dot” in it, so she took him to the hospital.  The child was examined, but no major abnormalities were found.  Mother was instructed to watch JPY for breathing issues.  The next day, when Father came to watch the children, JPY had difficulty breathing and passed out.  Father called 911 and attempted CPR while waiting for the ambulance.  When one did not arrive, Respondents drove JPY to the hospital.  JPY was unconscious and required resuscitation.  A social worker assessed JPY and found no evidence of child abuse.  JPY was later referred to the Children’s Hospital of Michigan, where the physicians examined JPY and concluded that he had injuries consistent with physical abuse.  The Department of Human Services subsequently filed a petition alleging that Respondents physically abused JPY.  Respondents denied hurting JPY and sought funds for consultation with a medical expert regarding alternative causes of JPY’s injury.  The circuit court rejected Respondents’ request, ruling that Respondents had not established a reasonable probability that an expert would assist their defense.  After a hearing, the court terminated Respondents’ parental rights.  Respondents appealed, claiming that the court’s decision denied them due process of law.
The Court of Appeals concluded that the trial court had applied an incorrect standard for determining whether Respondents were entitled to expert assistance funding.  Because a parent’s interest in the accuracy of a decision to terminate his or her parental rights is “commanding,” the Court concluded that the proper inquiry weighs the relevant interests under the three-factor due process balancing framework established in Eldridge. In this case, application of the Eldridge factors required that Respondents be afforded with reasonable funding for expert consultation.  Accordingly, the Court vacated the order terminating Respondents’ parental rights and remanded for further proceedings.
Judge Jansen concurred, but emphasized that the holding was specific to this case because of the conflicting theories regarding the cause of JPY’s injuries.  She further noted that the right to expert witness funding does not automatically extend to every termination case involving allegations of abuse.  Instead, courts must employ the Eldridge balancing test in each case to determine whether to authorize reasonable expert witness funding. 

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