Due Process ‘Lacking’: Motion To Terminate PPO Wrongly Denied

The trial court erred in denying the respondent’s motion to terminate a personal protection order (PPO) that was issued against him because the court proceedings “lacked the due process needed for continuation of the PPO,” the Michigan Court of Appeals has ruled.

In HMM, Minor v JS (Docket No. 367586), the petitioner obtained an ex parte PPO against the respondent in Wayne County Circuit Court. The respondent subsequently filed a motion to terminate the PPO, asserting that he had never inappropriately touched the petitioner, as she had alleged. The trial court denied the respondent’s motion to terminate the PPO. The respondent appealed.

The Court of Appeals vacated the trial court’s decision and remanded the case for a new hearing.

“The heart of this appeal is due process,” the Court of Appeals said. “Personal-protection orders … offer trial courts a critical tool for protecting society’s most vulnerable persons. But, as with all critical tools of our constitutional government, PPOs must be used in ways consistent with fundamental notions of due process.”

In this case, the petitioner “testified off-camera for no discernible reason; cross-examination was curtailed by the [trial] court; and, most critically, the [trial] court shifted the burden of proof from the petitioner to the respondent …,” the Court of Appeals said. Therefore, “the proceedings lacked the due process needed for continuation of the PPO.”

Judge Brock A. Swartzle wrote the published and binding opinion, joined by Judge Thomas C. Cameron and Judge Kathleen Jansen.

Background

The 17-year-old petitioner asked the Wayne County trial court to issue an ex parte PPO against the respondent, her uncle, alleging that she had a “reasonable apprehension of sexual assault” because the respondent had “inappropriately” touched her when she was younger. The petitioner indicated that a criminal investigation was pending.

The trial court entered the ex parte PPO, which prohibited the respondent from various actions, including contacting the petitioner and purchasing or possessing a firearm. The PPO took immediate effect and was to remain effective until April 20, 2024. The order was submitted to the Law Enforcement Information Network (LEIN) and served on the respondent.

The respondent filed a motion to terminate the PPO, denying that he had ever inappropriately touched the petitioner.

The trial court held a Zoom hearing on the respondent’s motion. At the hearing, the petitioner was not represented by counsel and, at the beginning of the hearing, the petitioner’s father (RM) told the trial court that the petitioner was in a separate room. The trial court stated the petitioner needed to be in the room to testify, to which RM responded the petitioner was concerned about seeing the respondent. The trial court then indicated the petitioner could turn off her camera.

Thereafter, the respondent’s attorney requested the respondent be seated off-camera while the petitioner remained on-camera, so the petitioner could be seen while testifying. The trial court denied this request, directing that the respondent would be off-camera and the petitioner’s camera would be turned off. The respondent’s attorney asked why the respondent would be off-camera and the trial court said it was “going to do everything to protect the child.”

RM then stated that he would get the petitioner. The petitioner’s mother, CM, was also in the room with RM. The trial court asked the petitioner to identify herself, which she did. The trial court asked why the petitioner did not want the PPO terminated and she responded, “I feel like it’s fair considering I recently just came out about what happened to me when I was a child.” The petitioner said she wanted “protection” while the criminal investigation was pending. The trial court asked the petitioner what she needed protection from, to which the petitioner replied that she did not want the respondent to contact her.

When the respondent’s attorney asked the petitioner to explain what had happened to her, she stated that she “did not want to talk about that right now.” At this point, RM began to speak and the trial court told him that he could not testify. The trial court then interceded and asked the petitioner, “Was there a sexual assault?” The petitioner responded, “Yeah.”

The respondent’s attorney then asked the petitioner when the sexual assault occurred. The petitioner said that she could not remember, but that it happened “a few times when [she] was younger.” The petitioner explained, “It’s kind of hard to remember when you were seven years old and like around that age and it happened often enough where I thought it was a normal event at the time. It wasn’t until I was older that I realized that it was – that something wrong was happening to me.” The respondent’s attorney asked how old the petitioner was when the abuse began, to which the trial court interjected, “She just said it.” The petitioner then stated the abuse occurred when she was around seven years old, but she could not say the exact age.

Thereafter, the trial court asked the respondent’s attorney what the respondent would like to tell the court because “[t]he burden had shifted” to him. The respondent’s attorney stated that she wanted to question the petitioner about what happened, noting the petitioner had not even identified her assailant. The trial court asked the petitioner who sexually assaulted her. RM interjected and explained the petitioner was “having a very hard time right now” and that she had given a complete statement at “Care House” that had been witnessed by a detective. The trial court asked if the person who had assaulted the petitioner was a family member. The petitioner asked, “What?” RM repeated the question and the trial court said the petitioner had to state the name of the person who had assaulted her. The petitioner eventually identified the assailant as her uncle, the respondent.

When the respondent’s attorney began to ask another question, the trial court stated, “Counsel, that’s going to be all the questions we’re going to ask with regard to that. You know what the burden of proof is in this.” The respondent’s attorney asserted the petitioner had not testified about what the respondent had done, to which the trial court said, “It’s enough for this court.” The trial court then stated, “So, what is it that your client now would like – what is it that – it’s now his burden of proof. We’re done with the questioning.”

The respondent’s attorney objected to “the lack of questioning” and argued the respondent had “not even heard an allegation in terms of what it is that he supposedly did.” The respondent’s attorney argued that she wanted to continue the questioning so the respondent would have notice about why they were there. The trial court overruled the objection and again noted the burden of proof had shifted to the respondent. The respondent’s attorney stated they did not have further evidence to present.

The trial court denied the respondent’s motion to terminate the PPO. The respondent appealed.

 Due Process ‘Undermined’

On appeal, the respondent challenged the denial of his motion to terminate the PPO, arguing the trial court “undermined” his right to due process by:

• allowing the petitioner’s off-camera testimony.

• curtailing cross-examination.

• shifting the burden of proof.

The Court of Appeals first addressed the respondent’s off-camera testimony argument, noting the petitioner was the “sole witness” to testify and her credibility was “crucial” in determining whether to grant the motion to terminate the PPO. “Here, however, the [trial] court limited its own ability to judge petitioner’s demeanor when it allowed her to testify off-camera,” the appeals court said.

Citing People v Heller, 316 Mich App 314 (2016), the Court of Appeals pointed out that “[a]bundant social science research demonstrates that video conferencing as a mediating technology may color a viewer’s assessment of a person’s credibility, sincerity, and emotional depth.” In the present case, “[t]his risk was compounded when the [trial] court intentionally limited itself to listening to petitioner’s testimony, prohibiting itself from judging petitioner’s physical demeanor via the video feed.”

In addition, “at least one of petitioner’s parents was in the room with her while she testified,” the Court of Appeals observed. “Allowing petitioner to testify off-camera may have prevented respondent and the [trial] court from viewing any interactions between petitioner and those present with her during her testimony. The [trial] court indicated that its intent was to protect petitioner, a 17-year-old minor.”

According to the Court of Appeals, the Confrontation Clause of the Sixth Amendment does not apply in non-criminal settings like this one. “With that said,” the appeals court continued, “PPO proceedings have significant liberty interests at stake. With the limited testimony and inability of the [trial] court to see petitioner, the court did not have the ability to assess petitioner’s credibility fully. Nor did respondent’s counsel have the opportunity to see petitioner testify and respond accordingly to her demeanor or credibility. But respondent was also off-camera, so it is unclear how petitioner being off-camera further protected her.”

Regarding the respondent’s cross-examination argument, the record “confirms” the trial court “curtailed respondent’s opportunity to cross-examine petitioner,” the Court of Appeals said. The trial court denied the respondent “the opportunity to know and respond to the evidence when, even after petitioner’s testimony was brief and vague, the court did not allow respondent to cross-examine her about her allegations. Petitioner stated that it was difficult to remember, but the assaults occurred a ‘few times’ when she was ‘around’ seven years old. When respondent’s counsel attempted to elicit further information, the circuit court interjected and told counsel ‘that’s going to be all the questions we’re going to ask with regard to that,’ and stated that counsel knew ‘what the burden of proof is in this.’ The [trial] court even went so far as to shift the ‘burden of proof’ to respondent, but then exclaimed, ‘We’re done with the questioning.’”

By “depriving” the respondent of the opportunity to cross-examine the petitioner about the alleged sexual assault, the trial court “increased the risk of erroneously depriving respondent of significant liberty interests,” the Court of Appeals said. “Allowing respondent to cross-examine petitioner properly would have diminished that risk.”

Lastly, the Court of Appeals addressed the respondent’s burden of proof argument, finding the trial court “impermissibly” shifted the burden to the respondent. “[I]t appears clear that the [trial] court shifted not just the burden of going forward with evidence, but also the burden of persuasion, from petitioner to respondent. … [The trial] court did not ‘hear[] all the evidence,’ but instead … restricted its own access to petitioner’s testimony to audio only and cut short respondent’s attempts at cross-examination.”

The petitioner “provided little testimony beyond stating that respondent sexually assaulted her ‘a few times’ … when she was approximately seven years old,” the Court of Appeals observed. “When asked about specifics, petitioner stated that she did not ‘really want to talk about that right now.’ Beyond stating that she did not want respondent to contact her during the police investigation, petitioner also did not explain what put her in reasonable apprehension of sexual assault. … When respondent’s counsel attempted to cross-examine petitioner, the [trial] court cut counsel off.” As a result, the trial court “abused its discretion by prohibiting respondent’s counsel from fully cross-examining petitioner.”

The errors committed by the trial court in this case were “plain,” the Court of Appeals stated. “The errors affected respondent’s substantial rights, specifically his liberty interests. These errors were ‘inconsistent with substantial justice,’ MCR 2.613(A), and ‘seriously affected the fairness, integrity, [and] public reputation’ of these PPO proceedings …. Accordingly, we must vacate the [trial] court’s denial of respondent’s motion to terminate the PPO.”

In conclusion, the Court of Appeals rejected the respondent’s argument that the case should be assigned to a different judge on remand. “Although the [trial] court erred as explained here, there is no basis in the record to find that the … judge would have difficulty setting aside her previous findings or that the appearance of justice requires that another judge preside over the matter.”

Based on the foregoing, “[w]e vacate the [trial] court’s order denying respondent’s motion to terminate the PPO and remand for further proceedings ….”