in Re Yarbrough Minors

STATE OF MICHIGAN

COURT OF APPEALS

FOR PUBLICATION

In re YARBROUGH, Minors. January 19, 2016

9:00 a.m.

Nos. 326170; 326171

Wayne Circuit Court

Family Division

LC No. 14-516963-NA

Before: JANSEN, P.J., and CAVANAGH and GLEICHER, JJ.

GLEICHER, J.

The Department of Human Services filed a petition alleging that one or both respondent-

parents physically abused their five-month-old son, JPY. Respondents denied hurting their child

and sought funds for consultation with a medical expert regarding alternate causes for his

injuries. The circuit court rejected their request, ruling that respondents had not established a

reasonable probability that an expert would assist their defense. The issue presented is whether

this decision denied respondents due process of law.

We conclude that the circuit court applied an incorrect standard for determining

respondents’ entitlement to expert assistance funding. Because a parent’s interest in the accuracy

of a decision to terminate his or her parental rights is “commanding,” Lassiter v Dep’t of Social

Servs of Durham Co, 452 US 18, 27; 101 S Ct 2153; 68 L Ed 2d 640 (1981), the proper inquiry

weighs the interests at stake under the due process framework established in Mathews v

Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976). Application of the Eldridge

factors necessitated affording respondents with reasonable funds for expert consultation. We

vacate the order terminating respondents’ parental rights and remand for further proceedings.

I.

Respondents are the parents of JPY and a three-and-a-half-year-old daughter. On June

11, 2014, mother noticed that JPY’s left eye appeared to deviate and had a “red dot” in it.

Mother took the child to his pediatrician, who performed an examination and wrote an order for

an MRI reciting: “baby not moving his left eye, please evaluate for mass or space occupying

lesion or reason for [abducens] nerve dysfunction.” Mother brought JPY directly to St. John

Hospital for the procedure. The child was assessed in the St. John Hospital Emergency Room

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that afternoon and no abnormalities were noted other than a “crossed eye.” The MRI, performed

with and without contrast material, revealed a normal, uninjured brain:

There is nothing to indicate an abnormal fluid collection, space-occupying

mass, focal signal abnormality, or focal enhancing lesion. There is no mass or

abnormal signal involving the brainstem, and no space-occupying process within

the prepontine or interpeduncular cisterns, nor suprasellar or cavernous sinus

regions, on this MRI of the entire brain. No restricted diffusion is demonstrated.

The ventricles, basal cisterns, and sulci over the convexities are within normal

limits. The midline structures are within normal limits. The myelination pattern

is within normal limits.

Mother and JPY left St. John at 7:00 p.m. Mother was instructed to watch JPY “carefully

for breathing issues” and to return to the emergency department if any were noted.1

Mother noted that JPY felt a little warm that evening, but took a bottle and fell asleep.

The next day, June 12, JPY continued to seem warm, acted “fussy,” and took only four ounces of

formula. Father arrived in the late afternoon to care for the children so mother could get

something to eat.2 Within five to 10 minutes of mother’s departure, father saw “milky”

“bubbles” coming from JPY’s nose and mouth as the child lay on his back on a bed. JPY took

three breaths and slumped “like a rubber doll.” Father called 911 and requested an ambulance.

The dispatcher instructed him how to perform CPR while awaiting the emergency personnel.

Mother returned shortly after JPY’s collapse and took over the CPR. When eight or nine

minutes elapsed with no sign of an ambulance, the parents drove to St. John Hospital as mother

continued CPR in the car.

On arrival at the hospital JPY was flaccid, unconscious, and had no pulse. He took only

intermittent gasping breaths. After prolonged resuscitation JPY developed a heart rate. A

physician noted that the infant’s estimated “downtime” was approximately 30 minutes, and that

the child had been ill with upper respiratory infection symptoms during the preceding week.3 A

1

The St. John records do not explain why the child was at risk for “breathing issues.” Mother

attempted to answer questions on this subject at the termination hearing, but the trial court ruled

that “the second [someone] open[s] their mouth” and makes an out-of-court statement, “it would

be hearsay” and inadmissible. The trial court’s misperception of the hearsay rule permeated the

trial of this case, as the trial court ruled virtually every out-of-court statement offered in evidence

as automatically and incontrovertibly inadmissible. Of course, an out-of-court statement offered

for a purpose other than proving the truth of the matter asserted within the statement is not

hearsay. MRE 801(c). Further, multiple exceptions to the hearsay rule permit the admission of

certain out-of-court statements. See MRE 803 and 804.

2

The parents did not reside in the same home. Father worked during the day and would visit and

care for the children in the evening, when mother worked.

3

A blood test at St. John later proved positive for parainfluenza virus 3.

-2-

CT scan of JPY’s brain obtained that evening revealed no acute findings and did not suggest a

traumatic injury:

There is no evidence of acute intracranial hemorrhage. The ventricular

system is not dilated. Motion artifact is noted obscuring the left posterior parietal

region.

No masses or focal fluid collections are noted. Gray-white matter

differentiation is grossly well-maintained given limits of low-dose technique. No

sulcal effacement or evidence of mass effect.

The orbits and paranasal sinuses are normal in appearance. The calvarium

and overlying soft tissues are unremarkable.

The working diagnosis at St. John was that the child had suffered a prolonged cardiorespiratory

arrest. He remained comatose.

A St. John social worker performed an evaluation and found no evidence to suspect child

abuse. She noted in relevant part:

Both parents and maternal grandmother exhibit appropriate concern for the

patient. All 3 were tearful and disheartened by the entire event. The consultation

for abuse and neglect does not, in the opinion of this worker, appear to be valid

and social work sees no evidence of any maltreatment. This worker also spoke

with the medical staff, who are in agreement that abuse or neglect does not appear

to be the case for this family.

Late the next evening, St. John transferred JPY to Children’s Hospital of Michigan for

continuing intensive care. The physicians at Children’s reviewed the MRI and CT scans

performed at St. John and concluded that both demonstrated significant abnormalities, in contrast

with the entirely normal findings reported by the radiologists who interpreted the same images at

St. John. A Children’s Hospital radiologist concluded that the St. John MRI revealed an “[i]nfra

and supratentorial bilateral subdural hematoma” suggestive of prior trauma, and that the CT scan

reflected the same subdural hematoma, as well as widening of the sutures and a “[r]ight parietal

healing fracture with soft tissue swelling over the parietal convexity.” A Children’s Hospital

ophthalmologist examined JPY and reported that the child had bilateral retinal hemorrhages.

Physicians at Children’s concluded that JPY was “a severely injured baby with subdural

hemorrhages, bilateral retinal hemorrhages, skull fracture from abusive trauma.” Petitioner filed

a permanent custody petition on June 18, 2014.4 The court authorized the petition on June 30,

2014.

4

The Department of Human Services was the original petitioner. The department has since been

reconfigured as the Department of Health and Human Services.

-3-

On September 22, 2014, mother filed a motion “for appointment of expert witness.” The

motion set forth the child’s medical history and the conflicting diagnoses, asserting:

In order to adequately rebut the anticipated expert opinion testimony

presented by the State, Respondent must be able to retain and call her own expert

to review the evidence of medical staff and to present an opinion (i.e., that the

type of injuries to the child is not necessarily indicative of abuse by the parent;

that there may be other explanations for the injury than abuse), particularly since

the Mother adamantly denies any abuse or nonaccidental injury occurred.

The motion urged that mother was without funds to hire an expert, and “[i]n the interests of

fairness, Respondent should be provided the same opportunity as the State to consult with a

medical expert and call said expert to the stand to offer an opinion concerning causation of the

injury.”5

Father filed a concurring pleading. He averred that “only through the use of an

independent, impartial expert can this party obtain a fair and impartial Trial inasmuch as the

medical records and condition of this child are so involved and so difficult as to render [father’s]

counsel unable to appropriately cross exam[ine] the expert witnesses which will be provided and

presented by the Attorney General’s Office.”

The family division judge declined to hear respondents’ motions, as a Wayne County

Local Administrative Order permits only the chief judge to authorize the payment of

extraordinary fees in family division cases. During oral argument before the chief judge,

mother’s counsel outlined the medical background and requested funds for “an independent

expert.” Counsel estimated that “up to [$]2,500” would be needed. Father’s lawyer stressed,

“[w]e simply do not have the medical skills to be able to properly cross-examine the medical

experts from Children’s Hospital in a manner in which will provide the Court with sufficient

information to reach an independent and informed conclusion.” In response to the chief judge’s

suggestion that counsel arrange to speak to the treating physicians at both hospitals without

payment, mother’s counsel responded: “we would certainly prefer an independent expert” due to

the implicit criticism of St. John’s radiologic diagnoses lodged by the Children’s Hospital child

abuse unit physicians. “[I]n order to be fair to the parents and the parties in this case . . . and to

level the playing field,” counsel insisted, the parents were entitled to their own expert.

The chief judge denied the parents’ funding request, relying on People v Tanner, 469

Mich 437, 443-444; 671 NW2d 728 (2003), and People v Leonard, 224 Mich App 569; 569

NW2d 663 (1997). The Court opined that the lawyers needed to learn “how to review medical

records” on their own, and that a request for assistance in going through the records was

insufficient to support funding for an expert. “You also have to demonstrate that it would be

fundamentally unfair if I didn’t appoint an expert,” the court continued, “and you haven’t

demonstrated that to me.”

5

The last page or two of the brief accompanying mother’s motion are missing from the court

record.

-4-

The termination hearing commenced on December 8, 2014. Dr. Conrad Giles, a

Children’s Hospital ophthalmologist, testified that JPY had retinal hemorrhages apparent in all

four quadrants of both eyes, consistent with “a Shaken Baby Syndrome.” According to Dr.

Giles, JPY had been shaken on “multiple” occasions well before June 14, 2014. Dr. Giles denied

that any cause other than severe trauma could explain the hemorrhages, although he admitted

that he had not reviewed the St. John records and lacked awareness of anything that had occurred

before JPY’s arrival at Children’s Hospital, including JPY’s respiratory and cardiac arrests. Dr.

Deniz Altinok, a pediatric neuroradiologist, testified that JPY’s St. John MRI revealed a subdural

hematoma and that the CT scan showed evidence of prior head trauma. In Dr. Altinok’s view,

JPY had been severely shaken and his head subjected to an impact. Additional x-rays obtained

at Children’s demonstrated rib, leg and vertebral fractures. Dr. Altinok opined that the fractures

resulted from deliberately inflicted trauma. Two additional physicians from Children’s Hospital

expressed expert opinions that JPY was the victim of severe abuse.

Mother and father denied causing JPY’s injuries and offered no explanation for their

etiologies. Mother called as a witness Dr. Beata Ruprecht, a St. John Hospital pediatric

neurologist who had participated in JPY’s evaluation and care. The court prevented Dr.

Ruprecht from offering any opinions concerning the St. John MRI, finding her unqualified to do

so.6

The court terminated respondents’ parental rights under MCL 712A.19b(3)(b)(i), (b)(ii),

(g), (j), and (k)(iii), (k)(iv), and (k)(v), and found that termination of parental rights served the

children’s best interests. Both parents now appeal, contending that the chief judge abused his

discretion by denying their requests for expert witness funding.

II.

In a criminal case, MCL 775.15 provides a judge with the authority to appoint an expert

witness at public expense. Tanner, 469 Mich at 438. Appellate courts review such decisions for

an abuse of discretion. People v Carnicom, 272 Mich App 614, 616; 727 NW2d 399 (2006). As

this is a civil matter, MCL 775.15 does not apply. MRE 706, which permits a court to appoint

and compensate an expert witness to assist the court, is likewise inapplicable; counsel sought an

expert witness who would consult with and assist respondents, not the court.7 On appeal,

6

As a pediatric neurologist, Dr. Ruprecht testified that she regularly reviews and interprets brain

imaging studies despite that she is not a radiologist. The trial court ruled that because Dr.

Ruprecht was not an expert in radiology, she was unqualified to testify regarding the MRI

findings.

7

MRE 706 is identical to FRE 706. FRE 706 permits a trial court to appoint its own expert,

particularly when the parties’ retained experts “are in such wild disagreement that the trial court

might find it helpful and in furtherance of the search for truth to appoint an independent expert.”

Saltzburg, Martin, & Capra, 3 Federal Rules of Evidence Manual (10th ed), § 706.02[1], p 706-3.

“Quite simply, ‘litigant assistance’ is not the purpose of Rule 706.” Carranza v Fraas, 471 F

Supp 2d 8, 11 (D DC, 2007).

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respondent-father has linked his request for funding to respondents’ constitutional right to due

process of law. We review de novo questions of constitutional law, including whether a child

protective proceeding complied with a respondent’s right to due process. In re Williams, 286

Mich App 253, 271; 779 NW2d 286 (2009).

III.

Parents possess a fundamental interest in the companionship, custody, care and

management of their children, an element of liberty protected by the due process provisions in

the Fourteenth Amendment of the United States Constitution and article 1, § 17, of the Michigan

Constitution. Because child protective proceedings implicate “an interest far more precious than

any property right,” Santosky v Kramer, 455 US 745, 758-759; 102 S Ct 1388; 71 L Ed 2d 599

(1982), “to satisfy constitutional due process standards, the state must provide the parents with

fundamentally fair procedures.” Hunter v Hunter, 484 Mich 247, 257; 771 NW2d 694 (2009)

(quotation marks and citation omitted).

Here, we consider whether the termination proceedings were fundamentally fair despite

respondents’ inability to retain expert consultation. Our analysis of this question draws on a

series of cases addressing the “age-old problem” of “[p]roviding equal justice for poor and rich,

weak and powerful alike.” Griffin v Illinois, 351 US 12, 16; 76 S Ct 585; 100 L Ed 2d 891

(1956). We find one such case, MLB v SLJ, 519 US 102; 117 S Ct 555; 136 L Ed 2d 473 (1996),

particularly instructive. In MLB, the United States Supreme Court held that the state of

Mississippi could not constitutionally require indigent parents appealing the termination of their

parental rights to pay record and transcript preparation fees. Id. at 127-128. In reaching this

decision, the Supreme Court majority dubbed Griffin “the foundation case.” Id. at 110.

Griffin struck down a rule that conditioned appeals of criminal convictions on an indigent

defendant’s procurement of trial transcripts that he could not afford, the MLB Court summarized.

Id. Although the MLB dissenters argued against extending Griffin to civil cases involving the

termination of parental rights, the MLB majority rejected that argument for reasons that resound

here:

[W]e have repeatedly noticed what sets parental status termination decrees apart

from mine run civil actions, even from other domestic relations matters such as

divorce, paternity, and child custody. To recapitulate, termination decrees work a

unique kind of deprivation. In contrast to matters modifiable at the parties’ will

or based on changed circumstances, termination adjudications involve the

awesome authority of the State to destroy permanently all legal recognition of the

parental relationship. Our Lassiter[8] and Santosky[9] decisions, recognizing that

8

In Lassiter, 452 US 18, the Supreme Court analyzed whether the indigent respondent was

unconstitutionally denied appointed counsel in a proceeding that terminated her parental rights.

The Court’s due process determination rested on its application of the factors set forth in

Mathews v Eldridge to the particular facts of that case.

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parental termination decrees are among the most severe forms of state action have

not served as precedent in other areas. We are therefore satisfied that the label

“civil” should not entice us to leave undisturbed the Mississippi courts’

disposition of this case. [Id. at 127-128 (quotation marks and citations omitted).]

In MLB, the Court emphasized that proceedings to terminate a parent’s relationship with

a child implicate rights “of basic importance in our society,” demanding “the close consideration

the Court has long required when a family association so undeniably important is at stake.” Id.

at 116-117 (quotation marks and citation omitted). Quoting Santosky, the Court highlighted that

“[f]ew forms of state action . . . are both so severe and so irreversible.” Id. at 118. The Court

acknowledged that its precedents concerning access to judicial proceedings draw on both equal

protection and due process principles, elucidating that “in the Griffin-line cases,” due process

and equal protection theories “converge.” Id. at 120 (quotation marks and citation omitted). The

Court located MLB “within the framework established by our past decisions in this area.” Id.

Without identifying the “framework” by name, the Court proceeded to employ the three-part

procedural due process analysis formally introduced in Eldridge.

In Eldridge, 424 US at 323-324, the Supreme Court considered whether a state agency

may terminate a recipient’s social security disability benefits without affording the recipient an

opportunity for an evidentiary hearing. The Court painstakingly described the “elaborate” web

of procedures that precede a final decision terminating disability benefits. Id. at 337-339. It then

analyzed the constitutional adequacy of those procedures according to a three-factor balancing

framework:

[I]dentification 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. [Id.]

Eldridge concluded that the Due Process Clause did not mandate a hearing prior to the initial

termination of a claimant’s benefits. Id. at 343. In large measure, the Supreme Court rested its

decision on “the fairness and reliability of the existing predetermination procedures,” which

entailed a low risk of error. Id. at 343-345.

The Court reached a different result when it applied the Eldridge framework in MLB.

Weighing the interests of the petitioner-parent (“forced dissolution of her parental rights”)

against the state’s “pocketbook interest in advance payment for a transcript,” MLB, 519 US at

121, the Court found the latter interest less compelling. The Court turned to the “risk of error”

9

In Santosky, 455 US at 758, the Supreme Court again applied the Eldridge factors in a

termination of parental rights case, concluding: “Evaluation of the three Eldridge factors

compels the conclusion that use of a ‘fair preponderance of the evidence’ standard in such

proceedings is inconsistent with due process.”

-7-

attending Mississippi’s appeal procedures and observed that the Chancellor’s opinion

terminating MLB’s rights consisted merely of statutory language and described no evidence or

reasons for the Chancellor’s findings. “Only a transcript can reveal to judicial minds other than

the Chancellor’s the sufficiency, or insufficiency, of the evidence to support his stern judgment.”

Id. at 121-122. The fiscal obligation imposed by a transcript requirement did not tilt the scale, in

the Court’s view, as in parental termination cases “appeals are few, and not likely to impose an

undue burden on the State.” Id. at 122. “In accord with the substance and sense of our decisions

in Lassiter and Santosky,” the Court concluded, “we place decrees forever terminating parental

rights in the category of cases in which the State may not ‘bolt the door to equal justice.’ ” Id. at

124 (citation omitted).

Our Supreme Court recently employed Eldridge to strike down the one-parent doctrine,

which permitted courts to obtain jurisdiction over a child and proceed to disposition with respect

to both parents based on an adjudication of only one. In re Sanders, 495 Mich 394, 408; 852

NW2d 524 (2014). The Court described that “[i]n essence, the Eldridge test balances the costs

of certain procedure safeguards . . . against the risks of not adopting such procedures.” Id. at

411. Tracking the Eldridge guideposts, the Supreme Court first considered “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, [which] cannot be overstated.” Id. at 415. As to the

second and third Eldridge factors, the Court continued:

[I]t is undisputed that the state has a legitimate and important interest in

protecting the health and safety of minors and, in some circumstances, that the

interest will require temporarily placing a child with a nonparent. It is this

interest that lies at the heart of the state’s parens patriae power. But this interest

runs parallel with the state’s interest in maintaining the integrity of the family unit

whenever possible. MCL 712A.1(3) (“This chapter shall be liberally construed so

that each juvenile coming within the court's jurisdiction receives the care,

guidance, and control, preferably in his or her own home, conducive to the

juvenile's welfare and the best interest of the state.”) (emphasis added). When a

child is parented by a fit parent, the state’s interest in the child’s welfare is

perfectly aligned with the parent’s liberty interest. But when a father or mother is

erroneously deprived of his or her fundamental right to parent a child, the state’s

interest is undermined as well: “[T]he State registers no gain towards its declared

goals when it separates children from the custody of fit parents.” In other words,

the state ordinarily has an equally strong interest in ensuring that a parent’s

fitness, or lack thereof, is resolved before the state interferes with the parent-child

relationship. Thus, the probable value of extending the right to an adjudication to

each parent in a child protective proceeding benefits both public and private

interests alike. [Id. at 415-417 (case citations omitted, second and third

alterations in original).]

Although the Court found that an adjudication of both parents would “increase the burden on the

state in many cases,” the Court held that this process was nevertheless indispensable, as “an

adjudication would significantly reduce any risk of a parent’s erroneous deprivation of the

parent’s right to parent his or her children.” Id. at 417. Guided by the Eldridge factors, the

Court concluded that the burden of extending the right to an adjudication to all parents did not

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outweigh the risk that a parent could be deprived of her child’s custody absent a finding of

unfitness. Id. at 418-419.10

One additional Eldridge case informs our decision. Although the case arises from the

criminal law, we find its teachings valuable and relevant here.

In Ake v Oklahoma, 470 US 68, 77; 105 S Ct 1087; 84 L Ed 2d 53 (1985), the United

States Supreme Court declared, “a criminal trial is fundamentally unfair if the State proceeds

against an indigent defendant without making certain that he has access to the raw materials

integral to the building of an effective defense.” The Court grounded this pronouncement in the

Due Process Clause, which guarantees that an indigent defendant facing the judicial power of the

State must have “a fair opportunity to present his defense.” Id. at 76. While this principle does

not require a state to “purchase for the indigent defendant all the assistance that his wealthier

counterpart might buy,” it does obligate the state to provide the “ ‘basic tools of an adequate

defense[.]’ ” Id. at 77, quoting Britt v North Carolina, 404 US 226, 227; 92 S Ct 431; 30 L Ed

2d 400 (1971).

In Ake, the “basic tool” was the assistance of a consulting psychiatrist. The United States

Supreme Court framed the issued presented in that case as “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.” Ake, 470 US at 77.11 The Court analyzed this question by weighing the

three guideposts for determining the process due in a particular case set forth in Eldridge.

The Supreme Court observed in Ake, “[t]he interest of the individual in the outcome of

the State’s effort to overcome the presumption of innocence is obvious and weighs heavily[.]”

Id. at 78. The State’s interest is solely economic: husbanding the public fisc. This is so because

“the State’s interest in prevailing at trial – unlike that of a private litigant – is necessarily

tempered by its interest in the fair and accurate adjudication of criminal cases.” Id. at 78-79.

“[A] State may not legitimately assert an interest in maintenance of a strategic advantage over

the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict

obtained.” Id. at 79. The Supreme Court determined in Ake that the first two Eldridge criteria

weighed heavily in the defendant’s favor: “We therefore conclude that the governmental interest

in denying Ake the assistance of a psychiatrist is not substantial, in light of the compelling

interest of both the State and the individual in accurate dispositions.” Id.

10

Sanders was not the first Michigan child protective case to employ Eldridge. See also In re

Rood, 483 Mich 73, 92; 763 NW2d 587 (2009).

11

A number of courts have applied Ake’s reasoning to a defendant’s requests for expert

assistance in areas other than psychiatry. For a list and summary of the cases, see Giannelli, Ake

v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L

Rev 1305, 1367-1368 (2004), and Moore v State, 390 Md 343, 409 n 12; 889 A2d 325 (2005)

(“The majority of courts have concluded that Ake extends beyond psychiatric experts.”).

-9-

The last Eldridge component examines the “probable value of the additional or substitute

procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected

interest if those safeguards are not provided.” Id. In Ake, the Supreme Court’s evaluation of

this factor centered on the critical role played by a psychiatric expert in a trial involving a

defendant’s mental condition. The Court elucidated:

[T]he assistance of a psychiatrist may well be crucial to the defendant’s ability to

marshal his defense. In this role, psychiatrists gather facts, through professional

examination, interviews, and elsewhere, that they will share with the judge or

jury; they analyze the information gathered and from it draw plausible

conclusions about the defendant’s mental condition, and about the effects of any

disorder on behavior; and they offer opinions about how the defendant’s mental

condition might have affected his behavior at the time in question. They know

the probative questions to ask of the opposing party’s psychiatrists and how to

interpret their answers. Unlike lay witnesses, who can merely describe symptoms

they believe might be relevant to the defendant’s mental state, psychiatrists can

identify the “elusive and often deceptive” symptoms of insanity and tell the jury

why their observations are relevant. Further, where permitted by evidentiary rules,

psychiatrists can translate a medical diagnosis into language that will assist the

trier of fact, and therefore offer evidence in a form that has meaning for the task at

hand. Through this process of investigation, interpretation, and testimony,

psychiatrists ideally assist lay jurors, who generally have no training in

psychiatric matters, to make a sensible and educated determination about the

mental condition of the defendant at the time of the offense. [Id. at 80-81(citation

omitted).]

The Court’s meticulous depiction of the function of a psychiatrist appointed to aid the

defense in an insanity case bears special significance here. The medical assistance sought by

respondents parallels that described by the Supreme Court in Ake. Just as a psychiatrist can

“translate a medical diagnosis into language that will assist the trier of fact,” a radiologist can

decode black and white images on a scan, or analyze tests that have been performed to determine

whether the results were normal or abnormal, or if additional medical studies would have

provided critical diagnostic information.

We are not the first appellate court to look to Ake for guidance in a case involving the

termination of parental rights. See State ex rel Children Youth & Families Dep’t v Kathleen DC,

141 NM 535, 540; 157 P3d 714 (2007) (“[I]n certain circumstances, due process may require the

appointment of an expert witness at the State’s expense to an indigent parent in a neglect and

abuse proceeding.”); In re Shaeffer Children, 85 Ohio App 683, 691; 621 NE2d 426 (1993)

(applying Eldridge and Ake in holding due process required the appointment of a psychiatric

expert to assist the mother “in the preparation of her defense”). And 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.

IV.

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Petitioner and the children’s guardian ad litem assert that the trial court’s decision fell

within the range of principled outcomes, as respondents failed to identify an actual expert who

would likely benefit the defense, and offered only an “amorphous” request rather than a “well-

reasoned argument” in support of their motion for funding of an expert witness or consultant.

The chief judge reached a similar conclusion in denying respondents’ motion. We reject these

arguments, as respondents plainly demonstrated that petitioner’s case rested exclusively on

expert medical testimony involving complex, controversial medical issues, and that counsel

lacked the tools necessary to challenge petitioner’s experts. Child abuse science was not

collateral or unimportant to these proceedings; expert testimony formed the whole of petitioner’s

proofs. The record amply supports that petitioner’s case rose or fell on the trial court’s

assessment of the science advocated by petitioner, as no other evidence suggested that

respondents had deliberately harmed their son. Without physician-witnesses to translate the

medical records and to express expert conclusions, petitioner would have lacked any evidence to

seek termination of respondents’ rights. This fact supplied the requisite nexus between

respondents’ request and the issues presented, and established a reasonable probability that an

expert would be of meaningful assistance.

Nor are we persuaded by the two cases cited by the chief judge as authority for denying

respondents’ motion, Tanner, 469 Mich 437, and Leonard, 224 Mich App 569. Tanner

concerned the construction of MCL 775.15, a statute that applies only in criminal cases. We

discuss Tanner only to explain why it lacks relevance even by way of analogy.

The defendant in Tanner sought expert assistance regarding the interpretation of DNA

evidence that actually excluded the defendant as the perpetrator of the crime. Tanner, 469 Mich

at 440. Although serological testing of other samples tended to inculpate the defendant, her

counsel did not seek to have the blood retested so that the serology results could be confirmed.

Id. In the trial court, counsel argued that “he wanted an expert to help him better understand the

DNA evidence and possibly to testify at trial.” Id. at 441. The trial court denied the request, and

the Supreme Court held that the trial court had not abused its discretion. Because the DNA

evidence was exculpatory, the defendant failed to show that “she could not safely proceed to

trial” without the assistance of a DNA expert. Id. at 444. Although the serology evidence linked

the defendant to the crime, the Supreme Court determined that the defendant “did not establish

that an expert serologist would offer testimony that would ‘likely benefit the defense,’ ” as

required by MCL 775.15. Id. at 443-444.

Here, respondents amply established that expert consultation was necessary to their

defense and would likely benefit them. The medical records confirmed the existence of a

profoundly important contradiction. On one hand, St. John physicians determined that JPY’s

MRI and CT scans showed no evidence of trauma or any other abnormality. On the other hand,

the Children’s medical experts determined that the same films demonstrated powerful evidence

of abuse. Respondents’ counsel were incapable of resolving or understanding this critical

evidentiary inconsistency without expert assistance.

While we agree that counsel should strive to read and understand medical records and to

conduct independent medical research, it is simply unrealistic to expect that such concerted study

will yield the expertise necessary to interpret MRI or CT scans, or effectively cross-examine an

adversary expert witness steeped in years of medical training, knowledge and experience.

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Absent expert assistance, respondents’ lawyers could not capably question or undermine the

brain imaging evidence, which formed an essential part of petitioner’s case.12 Nor could

respondents put forth any alternative theories regarding the cause of JPY’s retinal hemorrhages,

such as prolonged hypoxia followed by resuscitation and ventilation.13 Realistically, without

expert assistance respondents’ counsel had no serviceable tools that would assist them in fairly

evaluating the strengths and weaknesses of petitioner’s medical evidence, or in advancing a

different hypothesis.

Nor do we find that the trial court properly relied on Leonard. This Court concluded in

Leonard that the defendant’s lack of a DNA expert at trial did not deprive him of due process of

law. Leonard, 224 Mich App at 583. We further noted that defense counsel neglected to file a

formal motion seeking an expert witness, and “did not indicate that he required expert assistance

to cross-examine the prosecution’s experts.” Id. at 585. These facts fully distinguish Leonard

from the case at hand. Moreover, a federal district court ultimately granted Leonard’s petition

seeking a writ of habeas corpus, finding that “[d]efense counsel’s overall ignorance of DNA

analysis and lack of preparedness rendered his assistance” constitutionally ineffective. Leonard

v Michigan, 256 F Supp 2d 723, 728 (WD Mich, 2003). The prosecution did not appeal that

ruling to the Sixth Circuit Court of Appeals. Thus, Leonard provides petitioner with no support

for its contention that the chief judge appropriately denied respondents’ request for funding.

V.

Respondent-mother’s motion for “the appointment of an expert witness” cited no specific

statute or court rule, but relied instead on “the interests of fairness.” Respondent-father premises

his argument in this Court on due process principles. We acknowledge the dearth of published

decisions in the child welfare arena regarding the standards a court should apply when

considering a request for expert witness funding. At its core, respondents’ request for funding

relates to “the essential fairness of the state-ordered proceedings,” MLB, 519 US at 120.

Accordingly, we follow the lead of the United States and Michigan Supreme Courts and situate

our legal analysis within the Eldridge framework. In deciding whether the chief judge abused

his discretion by denying respondents’ funding motion, we examine the private and

governmental interests at stake, the extent to which the procedures otherwise available to

respondents served their interests, and the burden on the state of providing expert funding in this

case. Eldridge, 424 US at 335.

12

It is similarly unrealistic to expect counsel to have found an expert willing to review the

imaging studies and the voluminous medical records in this case for free, on the “if come” that a

court might someday agree to some funding. Such medical volunteers likely are exceedingly

rare. We also reject the notion that counsel could and should have presciently ascertained a

potential expert’s opinions without consulting with an expert.

13

See Squier, The “Shaken Baby” Syndrome: Pathology and Mechanisms, 122 Acta

Neuropathol 519, 530 (2011).

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We need spend little time on Eldrige’s first rung: the private interests at stake. For

respondents, the “accuracy and []justice” of a decision terminating their rights to their children is

“a commanding one.” Lassiter, 452 US at 27. As emphasized in Sanders, 495 Mich at 415, the

importance of the fundamental rights at risk in a termination proceeding “cannot be overstated.”

Petitioner, too, has a compelling interest in the safety and welfare of children. Importantly, this

parens patriae interest “favors preservation, not severance, of natural family bounds.” Santosky,

455 US at 766-767. Alternatively stated, “[s]ince the State has an urgent interest in the welfare

of the child, it shares the parent’s interest in an accurate and just decision.” Lassiter, 452 US at

27. Petitioner’s interest in prevailing at a trial must yield to its interest in a fair proceeding that

protects a parent’s constitutional rights.

In this case, the private interests strongly favored funding for an expert witness or

consultant. As we have stated, the medical evidence conflicted concerning whether JPY

sustained trauma to his brain before his respiratory arrest. The science swirling around cases

involving “shaken baby syndrome” and other forms of child abuse is “highly contested.” People

v Ackley, 497 Mich 381, 394; 870 NW2d 858 (2015). Dr. Giles’s opinion that JPY’s retinal and

subdural hemorrhages could manifest only child abuse has been vigorously challenged by

scientists worldwide and in courtrooms throughout this country. See Findley et al, Shaken Baby

Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right, 12 Hous J Health &

Policy 209 (2012). As the Findley article discusses in detail, many of the conventional

assumptions underlying medical opinions that a parent abused a child have proven fundamentally

flawed. Recent scientific studies and careful reviews of older studies have called into question

the reliability of certain findings, including subdural and retinal hemorrhage, in confirming child

abuse. Indeed, even skeletal findings thought to confirm abuse also may be accurately explained

by “accidental trauma, metabolic bone disease and/or nutritional deficiencies.” Id. at 255.14

Getting it right, medically and scientifically, protects the shared interests of petitioner and

respondents. Handicapping one side’s ability to present relevant evidence hampers rather than

enhances the search for truth.

Next, we consider whether the nature of the child welfare proceedings adequately

safeguarded respondents’ interests, absent funding for an independent expert. This inquiry

requires us to focus on the due process safeguards incorporated in the child protective process.

In Eldridge, the Supreme Court determined that the procedures governing administrative claims

challenging the termination of disability benefits provided “effective process” for asserting the

claim, and “also assure[d] a right to an evidentiary hearing, as well as to subsequent judicial

review,” before the denial of a claim became final. Eldridge, 424 US at 349. The interconnected

web of state and federal procedures required to terminate social security disability benefits

sufficed for due process purposes.

In contrast, a termination of parental rights proceeding is fundamentally adversarial and

lacks the “checks and balances” built into the disability benefit process. Thus, when only one

14

During cross-examination, one of the prosecution’s experts (Dr. Mary Lou Angelilli) conceded

that no tests were performed to determine whether metabolic causes existed for JPY’s fractures.

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side possesses the funds necessary to pay an expert witness, the opposing side must rely on

cross-examination to attack the experts’ testimony. In a case involving highly technical matters

which few laypeople readily understand, the task of cross-examination without expert

consultation presents a steep uphill climb. Lacking an expert’s guidance, respondents’ counsel

could not interpret the CT or MRI scans, or understand whether additional specific laboratory

tests should have been ordered or likely would have supplied pertinent clinical information.

Furthermore, even when counsel confronted several of the Children’s Hospital witnesses with

potential evidentiary contradictions or the existence of other theories regarding child abuse

science, counsel were stuck with the answers they elicited. Counsel had no evidence to offer in

rebuttal or to employ in establishing a testimonial weakness. We are unconvinced that the

availability of cross-examination uninformed by expert consultation adequately reduces the risk

of error in a termination proceeding engulfed with scientific and medical evidence, as was this

one.

Lastly, we look to the government’s interest, including the fiscal and administrative

burdens that payment for an expert would impose. Here, mother’s counsel estimated that

respondents needed “up to $2,500” to secure expert consultation. While this sum is not

insubstantial, it hardly qualifies as unreasonable. We are unconvinced that the burden of a

payment in this range should have outweighed the interests of these indigent parents, who

otherwise lack the financial resources to retain expert medical consultation.

In sum, after weighing the respective private and public interests, we hold that the chief

judge abused his discretion by failing to employ the requisite due process analysis under

Eldridge, and by refusing to authorize reasonable expert witness funding in this case. We

highlight that the Eldridge due process framework is inherently fact-specific: “due process is

flexible and calls for such procedural protections as the particular situation demands.” Eldridge,

424 US at 334 (quotation marks, citation, and alteration omitted). Under the circumstances

presented here, no meaningful alternative evidentiary safeguards afforded respondents an

opportunity to challenge petitioner’s child abuse theory, despite that the St. John evidence clearly

called the reliability of that evidence into question. This abridgment of respondents’ due process

rights requires a new termination hearing, should respondents elect to request one after they have

been afforded a reasonable fee for expert consultation.

We vacate the order terminating respondents’ parental rights and remand for proceedings

consistent with this opinion. We do not retain jurisdiction.

/s/ Elizabeth L. Gleicher

/s/ Mark J. Cavanagh

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