Opinion
Docket No. 71312.
Decided June 19, 1985.
William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for the Department of Social Services.
Neil A. McQuarrie, for respondent.
Michael J. Farrug, for the minor children.
Ilene Weiss Fruitman, for the appellee father, James Joiner.
Respondent, Gloria Crowder, appeals as of right from an order entered April 15, 1983, placing two of her children in the temporary custody of the Wayne County Probate Court, Juvenile Division. Respondent raises a single issue, assigning as error her absence from an in camera interview between the hearing referee and one of her children.
Respondent's 13-year-old son Chedonne testified that his mother often hit him and his brothers with her fist and with sticks and that she had thrown a butcher knife at him and hit him with a belt buckle. While admitting that respondent sometimes hit him and his brothers because they were bad, Chedonne indicated that she sometimes hit them for no reason. Respondent admitted to spanking the children, sometimes with a switch, but she denied ever hitting them with sticks or a knife. Following respondent's testimony, the referee asked counsel if they desired respondent's youngest son, Jumamosit, who still lived at home, to be interviewed. The children's attorney responded in the affirmative. The transcript records the following:
"The Court [hearing referee]: Very well, if you'll step out, except Jermomosite [sic], I will talk briefly with him. No, in fact why don't you stay here and we'll go in my office.
"(Court has conference with Jermomosite [sic])
" The Court: Any further witnesses Ms. Kleinplatz?
" Ms. Kleinplatz [respondent's attorney]: None.
" The Court: Alright I have, the record should reflect that I have spoken briefly with Jermomosite [sic] and he denies that there was any incident that he observed involving a knife and he denies that he ever saw his mother hit the other boys other than when they were bad and he describes being bad as either cussing or picking on him. That was the substance of our conversation. Alright, are we ready to proceed to closing argument dispositions?"
Respondent now claims that the in camera interview was error requiring reversal. We agree that error occurred. Although it is generally within the trial court's discretion to exclude witnesses during trial, that rule does not apply to parties. McIntosh v McIntosh, 79 Mich. 198, 203; 44 N.W. 592 (1890).
A limited exception to the right of parties to be present during trial has arisen in child custody cases: the court may question a minor in camera as to the minor's preference for a custodian. Bowler v Bowler, 351 Mich. 398, 406; 88 N.W.2d 505 (1958); Lesauskis v Lesauskis, 111 Mich. App. 811, 815; 314 N.W.2d 767 (1981). Petitioner argues by analogy to the child custody cases, stating, "A child who has been allegedly abused or neglected, or who has information regarding suspected abuse or neglect of a sibling, should not have to testify in front of his parent(s), who may be the abusers, and with whom he may have to live with [sic]. The child should be relieved of having to possibly testify falsely out of fear of retribution from the parent(s)." We fail to find support for petitioner's position on the facts of this case.
In In re Leu, 240 Mich. 240, 248; 215 N.W. 384 (1927), it appears that the trial court, in privately interviewing the minor Richard, reached factual conclusions about the case on issues other than just the boy's wishes as to a custodial parent. The Supreme Court stated: "The finding that Richard was of a nervous temperament and not a strong child physically was a proper matter for proof and foreign to a private interview to ascertain his wishes. It may be disregarded."
In Burghdoff v Burghdoff, 66 Mich. App. 608, 612; 239 N.W.2d 679 (1976), this Court held that an in camera conference in a child custody proceeding must "be confined to those matters reasonably necessary to enable the circuit judge to determine and understand the preference of the child". The Court distinguished the child's statement with respect to preference from "testimony regarding facts which are in dispute". Id., p 613.
In the instant case, the purpose of the private interview was to resolve facts in dispute: whether certain incidents had occurred and, if so, for what reason. These were matters generally to be resolved in the presence of the parties and their attorneys.
Petitioner nevertheless contends that the juvenile court referee or judge must have discretion to interview a child in the privacy of chambers, citing In re Brooks, 63 Ill. App.3d 328; 379 N.E.2d 872 (1978). In that case, the minor "stated that he was afraid to testify in front of his parents. The court took steps to protect respondents' rights: counsel for both sides and a court reporter were present; Errol was subjected to cross-examination; and the interview was read into and made a part of the record." 63 Ill. App.3d 340; 379 N.E.2d 882. The Illinois appellate court found no abuse of discretion. In contrast, in the present case, the referee did not indicate a reason for interviewing Jumamosit in chambers nor were there any of the safeguards as used in Brooks. In the absence of a stated reason, supported by the record, why it was necessary or proper to take evidence out of the hearing of the parties and their attorneys, we find error. However, we do not perceive any grounds on which to reverse. First, we note that respondent has not alleged any prejudice. Even in criminal cases, the absence of defendant from part of a trial does not require reversal where the absence makes no difference in the result reached. People v Morgan, 400 Mich. 527, 536; 255 N.W.2d 603 (1977), cert den sub nom Cargile v Michigan, 434 U.S. 967 (1977). In this case, we think we can place our confidence in the referee's integrity and accept her description of what occurred in the private interview. Cf. Lesauskis, supra, p 816. Jumamosit's in camera statements were purportedly favorable to respondent. Thus, the error was harmless.
Second, we conclude that respondent's failure to object precludes our granting her any relief. Had respondent objected to the private interview, her right to be present would have been brought to the forefront and a reasoned decision could have been made by the referee either to abandon the private interview or to go forward but with certain safeguards. In either event, a record would have been created upon which we could review the referee's exercise of her discretion.
Affirmed.