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A Better Partnership
June 29, 2016

COA: A child’s videotaped testimony cannot serve as substantive evidence in a parental-rights adjudication hearing

In In re J.R. Martin, Minor, Nos. 330213; 330232, the Court of Appeals held that reliance on videotaped statements, made by witnesses under the age of 16 as substantive evidence, is improper under MCL 712A.17b(5) in a parental-rights adjudication hearing.  Such videotaped statements can be used only to determine whether the person who interviewed the child witness should be able to testify at an adjudication and termination hearing.  If the videotape demonstrates that the “circumstances surrounding the giving of the statement provide adequate indicia of trustworthiness,” then the interviewer may testify at the hearing.
 
In this case, the trial court assessed allegations of sexual abuse against a child as a basis to terminate both his father’s and mother’s parental rights.  First was an allegation that the father had sexually abused the child.  Second was evidence that the mother had exposed the child to a sexual act.  With respect to the first allegation, at the adjudication stage, the trial court relied on the child’s videotaped testimony as substantive evidence of the sexual abuse . MCL 712A.17b, however, prohibits the admission of video statements of those 16 and younger at the adjudication stage.  Moreover, while MCR 3.972(C)(2)(a) allows a statement concerning sexual abuse of a child under the age of 10 to be admitted through another person who heard the statement from the child, that is only where there are sufficient indicia of trustworthiness of the statement.  Here, the interviewer who heard the statement from the child did not testify at the adjudication stage.  Furthermore, the trial court never held that there were sufficient indicia of reliability concerning the child’s testimony.  Accordingly, the trial court erred by relying on the videotape testimony as substantive evidence.  Thus, the Court of Appeals reversed the termination of the father’s parental rights. 
 
The Court did uphold the termination of the mother’s rights however, despite her arguments of ineffective counsel and statutory conflict. The evidence against the mother was derived from statements made by FBI agents who had become involved by way of a related investigation. The Court of Appeals rejected her arguments regarding her counsel’s failure to suppress the agent’s statements, on the ground that, even if a violation occurred, she had not shown that the Fifth Amendment Exclusionary Rule applied to abuse and neglect proceedings and thus had failed to establish requisite prejudice. In addition, considering the perverse nature of the acts in the record, the Court held that counsel did not err in failing to submit greater evidence regarding the child’s best interest.  The Court rejected the mother’s ineffective-counsel arguments due to a lack of necessary prejudice.  Accordingly, the Court of Appeals held that the trial court properly terminated the mother’s parental rights because of the separate incidents testified to by the FBI agents.  The Court affirmed the trial court’s termination of the mother’s rights, reversed the order terminating the father’s rights, and remanded for further proceedings. 

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