In Re Casto Minors
344 Mich. App. 590
Mich. Ct. App.2022Background
- Father (respondent) was accused of repeatedly sexually abusing his two young sons based on out-of-court disclosures by the older child (BC); no physical evidence, no eyewitnesses, and criminal charges were declined.
- BC made disclosures to his mother, to therapist Renee Orr, and in three recorded forensic interviews; the trial court admitted most of those statements and videos under the tender-years rule.
- The Department presented expert testimony (Dr. James Henry and others) supporting BC’s credibility and finding signs of trauma; one expert’s report stated BC’s statements were "veracious."
- Respondent’s trial counsel did not investigate or retain an expert on child memory, suggestibility, source-monitoring, or forensic-interview protocols; instead she relied on CTAC/Dr. Henry and a general psychological evaluation of respondent (Dr. Rickman).
- On remand (a Ginther hearing), respondent presented Dr. Daniel Swerdlow-Freed (expert on child memory/suggestibility) criticizing the interviews and explaining source-monitoring errors and risks of suggestive questioning; trial counsel admitted she never considered such an expert.
- The Court of Appeals held counsel’s failure to investigate/consult an expert on child memory and forensic interviewing was objectively unreasonable and prejudicial given the centrality of BC’s statements and the one-sided expert presentation; it vacated adjudication and termination and remanded for new proceedings.
Issues
| Issue | Respondent's Argument | Department's / Trial Court's Argument | Held |
|---|---|---|---|
| Whether respondent was denied effective assistance by counsel’s failure to consult/call an expert on child memory/forensic interviewing | Counsel failed to investigate or call an available expert (Swerdlow-Freed) whose testimony could undermine BC’s disclosures | Counsel reasonably relied on CTAC/Dr. Henry and a general psychological evaluation; expert consultation was not considered necessary strategy | Counsel’s performance was objectively unreasonable for failing to investigate/consult an expert in this specialized area; deficient performance established |
| Whether Dr. Henry’s opinions impermissibly vouched for BC’s credibility | Dr. Henry’s report/opinion went to the ultimate question (veracity) and thus improperly invaded the fact-finder’s role | Trial court treated Dr. Henry’s involvement as part of the case evaluation and did not find reversible error on that precise point | Court noted Dr. Henry did opine that BC’s statements were "veracious," which improperly touched ultimate credibility; this factored into the ineffective-assistance analysis (court did not need to fully resolve vouching doctrine) |
| Whether respondent was prejudiced by counsel’s omission (reasonable probability of different outcome) | One-sided expert evidence and the centrality of BC’s statements meant expert rebuttal would likely have changed the result | Trial court found other evidence (Orr, Dr. Henry, lay witnesses) would support outcome even without forensic interviews | Prejudice shown: undermining BC’s statements by expert testimony would have created a reasonable probability of a different outcome given lack of corroboration and the decisive role of BC’s disclosures |
| Remedy and scope of appellate review | Respondent sought vacatur and new proceedings based on ineffective assistance | Department defended trial outcome; trial court denied Ginther relief | Court vacated the tender-years admission, adjudication, and termination order; remanded for new proceedings (including new tender-years hearing if statements again offered) |
Key Cases Cited
- People v Ackley, 497 Mich 381 (counsel may be ineffective for failing to consult experts; prejudice analysis)
- People v Trakhtenberg, 493 Mich 38 (duty to investigate and obtain experts when necessary; strategic choices judged on available information)
- Hinton v Alabama, 571 US 263 (there are cases where expert consultation is necessary for effective assistance)
- People v Peterson, 450 Mich 349 (children’s suggestibility raises special reliability concerns; need for safeguards)
- People v Douglas, 496 Mich 557 (expert testimony that vouches for a victim’s credibility can be improper and affect the result)
- Kimmelman v Morrison, 477 US 365 (a single serious error can support ineffective-assistance relief)
- People v LeBlanc, 465 Mich 575 (standard for mixed factual and constitutional questions in ineffective-assistance claims)
- In re Martin, 316 Mich App 73 (right to counsel extends to child-protective proceedings)
- People v Thorpe, 504 Mich 230 (credibility is for the fact-finder; experts may not vouch for witnesses)
- People v Unger, 278 Mich App 210 (avoid 20/20 hindsight; counsel’s choices judged by information reasonably available)