IN RE KOENIGBAUER MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of D.K. and J.K., Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
October 22, 2009
Petitioner-Appellee,
v
No. 289371
Wayne Circuit Court
Family Division
LC No. 07-468548-NA
MICHAEL DENNIS KOENIGBAUER,
Respondent-Appellant,
and
HADLEY CRAWFORD,
Respondent-Appellee.
Before: Murphy, P.J., and Meter and Beckering, JJ.
PER CURIAM.
Respondent Michael Koenigbauer (respondent) appeals as of right from an order
terminating his parental rights to the two minor children under MCL 712A.19b(3)(b)(i), (j), and
(k)(ii). We affirm.
The case was initiated after it was alleged that respondent sexually abused one of his
children, hereinafter referred to as “child X,” born on October 9, 2003.
Respondent first argues that the trial court committed an error requiring reversal when it
barred the testimony of Dr. Katherine Okla, respondent’s proposed expert witness on “[f]orensic
interviewing, forensic psychology, child and adolescent psychology, and suggestibility of
children.” During voir dire by petitioner’s attorney, Dr. Okla testified that she had not
interviewed child X but had
reviewed medical records from the pediatrician, medical records from the
Children’s Hospital, Children’s Protective Services Report, summary of, I believe
it was, 2 Care House interviews, clinical notes from Therapist, Ruth Kusiak, and a
report that – that therapist wrote to DHS [Department of Human Services], a
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Police Report, and transcripts of hearings held in this court, on 02/04th and
03/17th.
Dr. Okla testified that she had read the full transcripts of the court hearings held on those days,
during which Ruth Kusiak,1 a child therapist, testified regarding the abuse claims made by child
X. The attorneys for the mother, the children, and petitioner objected to having Dr. Okla testify,
indicating that Dr. Okla’s reading the full transcript of the court proceedings on those days
violated the court’s sequestration order. The court barred the testimony without elaboration,
simply stating, “I don’t believe she can testify.”
We review for an abuse of discretion a trial court’s imposition of a sanction for the
violation of a sequestration order. People v Meconi, 277 Mich App 651, 654-655; 746 NW2d
881 (2008). The pertinent question is whether the court’s decision fell outside the range of
principled outcomes. Id. at 654; Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d
809 (2006).
MRE 615 states:
At the request of a party the court may order witnesses excluded so that
they cannot hear the testimony of other witnesses, and it may make the order of its
own motion. This rule does not authorize exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party which is not a natural person
designated as its representative by its attorney, or (3) a person whose presence is
shown by a party to be essential to the presentation of the party's cause.
[Emphasis added.]
Although Dr. Okla “read” the testimony in question as opposed to “hearing” it, this distinction is
immaterial, seeing as she obtained the same information by reading the testimony as she would
have by hearing it. Although respondent contends that, under the circumstances present here,
involving an expert witness, a sequestration order does not apply because an expert’s review of
testimony is akin to a review of other types of reports, it is important to note that respondent did
not make his argument until after the witness had already read the transcript. In other words,
respondent violated the sequestration order and then tried to justify it, after the fact, instead of
obtaining a prior ruling allowing for a technical violation of the order. The trial court’s
conclusion that respondent violated the sequestration order therefore did not fall outside the
principled range of outcomes. Nor, given the blatant violation of the sequestration order with no
attempt beforehand to justify it, did the trial court abuse its discretion in concluding that Dr. Okla
should be barred from testifying. This was not a situation in which a witness, on her own,
mistakenly remained in the courtroom for opening statements, see Meconi, supra at 653-655, but
rather a situation in which respondent’s attorney intentionally provided full trial transcripts to the
witness in question and only later attempted to justify these actions. Under the circumstances,
we find no basis for reversal.
1
Although spelled “Kuziak” in multiple appellate briefs and in portions of the lower-court
record, the pertinent transcript indicates that the correct spelling of this name is “Kusiak.”
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Respondent next argues that the trial court erred in barring the proposed testimony of Dr.
Melvin Guyer. After the court indicated that Dr. Okra’s testimony would be disallowed,
respondent’s attorney stated that she would need to make a telephone call to “see if [she could]
procure [her] other witness, who has not reviewed transcripts . . . .” She telephoned Dr. Guyer
and offered his testimony by way of speakerphone; the three other attorneys objected to the
testimony, indicating that Dr. Guyer was not listed on the witness list. When asked by the court
how Dr. Guyer’s testimony would assist the trier of fact, respondent’s attorney stated:
He will assist you in being able to explain the differences between the
forensic and the clinical rule, the difference in the information that can elicit the –
he will talk about memory and suggestibility of children, he has a class that helps
and correct me, but I believe that it has been more than 30 years in working with
children in a clinical and a forensic capacity, not the same children, but doing
both, he has been a professor at the University of Michigan in both psychology
and psychiatry department [sic] for a number of years, he will further assist you in
understanding the forensic interviewing protocol, and its requirements, and why it
exists, and why it must be followed.
***
He will be able to assist the [trier] of fact in understanding memory and how
events are in-coded, but how they are repronged and how they are relied upon
research [sic] that shows the indicia of accuracy and reliability of those memories.
During voir dire, Dr. Guyer admitted that he did not know child X, had never reviewed any
materials relating to child X, and had spoken about the case only with respondent’s attorney.
The court, after hearing considerable voir dire testimony, stated: “I am really impressed by the
doctors [sic] resume, but I am not of the opinion that I will be assisted by the doctors [sic]
testimony in this matter, so, I am not going to allow him to testify as an expert.” The court later
added:
the testimony I heard during voir dire is that the doctor doesn’t know anything
about the facts of this case, it would be difficult for him to apply the principles
which I believe he is abundantly skilled in to the facts of the case that he has no
idea of what the facts of the case are [sic]. I think that both prong 1 and prong 3
[of MRE 702] are not met, therefore, I do not feel that I would be assisted by this
particular witness as an expert.
We review a trial court’s evidentiary rulings for an abuse of discretion. See People v
Hine, 467 Mich 242, 250; 650 NW2d 659 (2002). “[T]he determination regarding the
qualification of an expert and the admissibility of expert testimony is within the trial court's
discretion. People v Murray, 234 Mich App 46, 52; 593 NW2d 690 (1999). An abuse of
discretion occurs when the court’s decision falls outside the principled range of outcomes.
Maldonado, supra at 388.
MRE 702 states:
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If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
The court concluded that Dr. Guyer’s testimony met neither prong 1 nor prong 3 of this test. On
appeal, respondent states that “Dr. Guyer may not have been able to discuss the facts of this case,
but as an expert witness he could have answered hypothetical questions concerning the accuracy
and reliability of certain techniques.” Significantly, respondent does not argue, as he did at the
pertinent hearing, that Dr. Guyer could have taken some time to familiarize himself with the
specific facts of this case.
We simply cannot conclude that the court’s decision to exclude Dr. Guyer’s testimony
fell outside the range of principled outcomes. At the very least, the court was within its rights to
conclude that prong 3 of MRE 702 – “the witness has applied the principles and methods reliably
to the facts of the case” – was not satisfied. Respondent himself admits on appeal that “Dr.
Guyer may not have been able to discuss the facts of this case . . . .” While Dr. Guyer may have
been able to testify in general concerning his opinion of certain techniques, it was, of course, the
specific facts and techniques actually employed here that were of critical importance in this case,
and the court did not abuse its discretion in concluding that Dr. Guyer’s “general information”
would not have been helpful to a resolution of the case.
Respondent also argues that the trial court committed errors requiring reversal when it
precluded the testimony of Dr. Richard Leo and Dr. Ira Schaer. We find no basis for reversal.
First, respondent’s briefing of this issue is woefully inadequate. Respondent fails to explain
precisely how these witnesses would have aided his case but instead frames his argument in
generalities. Moreover, he provides no lower-court references and cites no case law or other
pertinent law in discussing the proposed testimony of Dr. Leo and Dr. Schaer. Under these
circumstances, we decline to address the issue. See Mudge v Macomb Co, 458 Mich 87, 105;
580 NW2d 845 (1998).
Also, with regard to Dr. Schaer, the trial court listened to an extensive voir dire and offer
of proof, and concluded that the information Schaer would provide consisted of “things that I
think I have noticed myself and was planning on using in evaluating the evidence already, so,
under Rule 702, I am ruling that I would not be assisted by the Doctor to understand the
evidence, or to determine the fact and issue [sic].” Given these circumstances, we would find no
abuse of discretion even if we were to address the issue of the admissibility of Dr. Schaer’s
testimony.
Dr. Leo’s testimony was offered to show how police interrogations might lead to false
confessions. The trial court indicated that it had doubts about the reliability of the witness’s
principles and methods and that it would not be assisted by the witness’s testimony. The court
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also stated that Dr. Leo’s testimony would be of questionable value because Dr. Leo would not
be able to go into detail about the polygraph examinations administered to respondent.2 Given
that the witness did admit to some criticism of his work, given the lengthy voir dire to which the
court listened before concluding that it would not be helped by the testimony, and given the
order excluding the polygraph examinations from trial, we would find no basis for reversal with
regard to Dr. Leo’s testimony even if we were to review the issue.
Respondent next argues that the trial court should have excluded the disclosures made by
child X to therapist Ruth Kusiak because the disclosures lacked sufficient indicia of reliability.
MCR 3.972(C)(2)(a) indicates that a statement regarding abuse made by a child under 10
years old may be admitted:
regardless of whether the child is available to testify or not, and is substantive
evidence of the act or omission if the court has found, in a hearing held before
trial, that the circumstances surrounding the giving of the statement provide
adequate indicia of trustworthiness. This statement may be received by the court
in lieu of or in addition to the child's testimony.
The trial court held a hearing in accordance with this court rule. During that hearing, Kusiak
testified that she began providing therapy to child X in March 2007, when child X was three and
one-half years old, and was still providing that therapy at the time of her testimony in February
2008. Child X’s mother brought child X to therapy in March 2007 because she was “wetting
herself” and having problems sleeping. Kusiak testified that she was able to determine that child
X knew the difference between the truth and a lie. Kusiak testified that she used a book and a
board to discuss the difference between “good” touches and “bad” touches with the child. She
stated that at the very first session, the child grabbed her own crotch and stated, “Daddy hurt
me.” In subsequent sessions, the child stated that “daddy was mean” and “daddy gave [me] a
rash.” When asked about the rash, she pointed to the “bottom” of a doll. She also got upset
during “play therapy” when the “daddy doll” was near the other dolls.
Kusiak admitted that she was not a “forensic interviewer” and therefore does not follow
the “State Forensic Interview Protocol.” However, she indicated that child X’s statement that her
daddy touched her and gave her a rash were unsolicited and unprompted. Kusiak also admitted
that at a session in September 2007, child X stated that “daddy doesn’t hurt me anymore.”
Kusiak admitted that she had “an idea” from the child’s mother when she first
interviewed the child that there might be “a criminal case” pending. However, she testified that
the child’s mother did not want to believe at that point that “anything had happened to the child.”
The court ruled that Kusiak’s testimony, as well as the testimony of Margo Moltmaker
and the child’s mother, was admissible, stating:
2
Respondent made his incriminating statements during an interview that incorporated two
polygraph examinations. More information regarding this interview is set forth infra.
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I have been reviewing my notes, I don’t think I have had a hearing go this long
ever before. I am going to rule that the indicia of trustworthiness is adequate,
based upon the totality of the circumstances here, the factors that are given to me .
. . spontaneity, consistent repetition, mental state of the juvenile, looking out for
unexpected terminology that would indicate fabrication, and the motive to
fabricate, I believe these statements were spontaneous, they are consistent right
from the first statements made from the juvenile to Ruth Kusiak . . . .
***
I am deeply suspicious, and I have been of a motive to fabricate, and my first
glance at this, it looked to be a custody fight by other means or perhaps,
vengeance, I have been looking strenuously to try to see that, I have not seen it.
Everything that I have seen indicates spontaneity, consistency of repetition, the
juvenile’s mental state from beginning to end seems to be the same, I see nothing
to cause me to worry there. I see no unexpected terminology from a 3 year old,
and again, I have seen no motive to fabricate . . . .
We review the admission of evidence under the abuse of discretion standard. People v
Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). In Matter of Brimer, 191 Mich App 401,
405; 478 NW2d 689 (1991), the Court noted the following concerning admission of a child’s
statements:
Circumstances indicating the reliability of a hearsay statement may
include spontaneity and consistent repetition, the mental state of the declarant, use
of terminology unexpected of a child of a similar age, and lack of motive to
fabricate. Whether particular guarantees of trustworthiness are present depends
on the totality of the circumstances.
Here, Kusiak clearly testified that the statements concerning abuse made by child X were
spontaneous. She also stated that she was able to determine that child X knew the difference
between the truth and a lie. Further, she stated that child X gave repeated abuse-related
information on different days, and there was nothing in her testimony to indicate that child X
used “terminology unexpected of a child of a similar age. . . .” Id. Moreover, Kusiak stated that
even though she had some idea of the abuse allegations when she began seeing child X, she
believed that the mother did not want to believe at that point that abuse had occurred. This
mitigates against the idea of a motive to fabricate.
As in Brimer, a case involving a child of a similar age, “there was no evidence in the
record that the child was coerced or unfairly led into making the accusations.” Id. at 406. It is
also significant that respondent admitted to touching the outside of child X’s vagina
inappropriately “for 5 seconds” and subsequently admitted to putting his finger inside child X’s
vagina on two separate occasions. This lends corroboration to the child’s statements.
Respondent strongly emphasizes that Kusiak did not follow the Forensic Interviewing
Protocol compiled by the Governor’s Task Force on Children’s Justice and the Department of
Human Services. However, MCR 3.972(C)(2)(a) does not require that a statement be made in
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the context of such an interview before it will be deemed admissible. Under the totality of the
circumstances, the trial court did not abuse its discretion in allowing Kusiak’s testimony.
Respondent also argues that the trial court should not have admitted the testimony of
Margo Moltmaker. Moltmaker, a forensic interviewer with Care House, a child advocacy center,
testified that she interviewed child X on April 19, 2007. Moltmaker testified that she used an
anatomically correct drawing and asked the child if anyone had hurt her. Child X responded that
“daddy had hurt her.” Child X then stated that “daddy hurt her bunny.” Moltmaker stated that
she was unable to get a clarification from child X regarding the meaning of the term “bunny.”
Moltmaker testified that she followed the forensic interview protocols that she had been trained
to use, in order to minimize the dangers of suggestibility. Moltmaker admitted that she did not
take contemporaneous notes during her interview with child X, even though “[t]he protocol is
that the interviewer should take these notes . . . .” However, a detective did take
contemporaneous notes of the interview, and Moltmaker reviewed those notes to attempt to
refresh her recollection.
The court allowed Moltmaker’s testimony for the same reasons it admitted Kusiak’s
testimony.3 We find no abuse of discretion with regard to the trial court’s ruling. Moltmaker
testified that she used questions designed to minimize suggestibility and that she only asked the
question involving “hurt” because she was following the protocol of moving from open-ended to
more focused questions. Respondent argues that Moltmaker violated the “Governor’s Protocol,”
such as by failing to take contemporaneous notes of the interview, but we again note that MCR
3.972(C)(2)(a) does not require that a statement be made in the context of an interview
conducted under this protocol before it will be deemed admissible. Moltmaker’s questions were
not unduly suggestive, the child repeated the allegations of being hurt, and Moltmaker testified
that she determined that child X knew the difference between “right” and “wrong.” See Brimer,
supra at 405. Moreover, there is no indication that child X used “terminology unexpected of a
child of a similar age,” id., and, as noted by the trial court, no motive to fabricate has been
demonstrated. Under the circumstances, the trial court’s decision to admit Moltmaker’s
testimony was within the principled range of outcomes. Maldonado, supra at 388.
Respondent next argues that the trial court erred in admitting only portions of an
interview of respondent conducted by Secret Service Agent Michael Suratt.
Suratt administered two polygraph examinations to respondent at the request of the
authorities involved in this case. Respondent, during the course of the interview that
encompassed the polygraph examinations, admitted to inappropriately touching child X’s vagina.
Respondent contends that he made this admission only because Agent Suratt encouraged him to
admit to “some inappropriate but understanding touching.”
Respondent sought any recordings and notes associated with Suratt’s interview of
respondent, and an order of disclosure was entered. Suratt testified that he could not provide a
3
The court made one ruling encompassing the testimony of Kusiak, Moltmaker, and the child’s
mother.
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recording of the examination because it was Secret Service policy to not record polygraph
examinations. Respondent contends that the trial court should have barred Agent Suratt’s
testimony in its entirety because recordings and notes concerning the actual polygraph
examinations were not produced.4
Respondent frames this issue in terms of a discovery violation. We review a trial court’s
decision concerning discovery sanctions for an abuse of discretion. Richardson v Ryder Truck
Rental, Inc, 213 Mich App 447, 450; 540 NW2d 696 (1995). In Richardson, the Court set forth
the following nonexhaustive list of factors applicable to the fashioning of a discovery sanction:
(1) whether the violation was wilful or accidental; (2) the party's history of
refusing to comply with discovery requests . . . ; (3) the prejudice to the
defendant; (4) . . . ; (5) whether there exists a history of plaintiff's engaging in
deliberate delay; (6) the degree of compliance by the plaintiff with other
provisions of the court's order; (7) an attempt by the plaintiff to timely cure the
defect, and (8) whether a lesser sanction would better serve the interests of justice.
[Id. at 451 (internal citation and quotation marks omitted).]
Respondent states that the examinations were audiotaped or videotaped. However, Agent
Suratt testified that he merely marked on the pertinent form that the room was equipped with
audio- or visual-recording equipment but that no recording, to his knowledge, was actually made
of the examination. He explained that it was the policy of the Secret Service to not record
polygraph examinations. There was also information set forth at the pertinent hearing that
federal law prohibits the disclosure of the actual polygraph charts. Under these circumstances,
even assuming that Suratt’s actions can be attributed to petitioner, there was no willful violation
of the discovery order. Moreover, Suratt did provide other documents pertaining to the
interview, such as pre-polygraph documents and defendant’s written statements. In addition,
there is no allegation of a history of delay or noncompliance with discovery orders on the part of
petitioner, and there is insufficient evidence of prejudice. Respondent contends that he needs the
information in question in order to show that Agent Suratt engaged in trickery and “lied about
other critical facts in the proceeding.” However, respondent himself testified at trial and was
free to elaborate on any trickery that he believed occurred. Under these circumstances, the court
did not err in refusing to preclude Agent Suratt’s testimony as a discovery-violation sanction.
Respondent also contends that allowing Agent Suratt’s testimony violated MRE 106,
which states:
When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require the introduction at that time of any other part
or any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it.
4
The court allowed Suratt’s testimony without elaborating on the reasoning for its decision.
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We disagree that this rule was applicable. Two written statements by respondent were
introduced – the two statements he made during the course of Agent Suratt’s interview. These
statements were introduced in their entirety. Respondent is now evidently suggesting that
recordings or charts of the polygraph examinations themselves should have been introduced at
trial, but he himself consented to an order barring the polygraph results from trial. Reversal is
unwarranted.
Respondent next argues that the trial court erred in terminating his parental rights to the
children. The court terminated his rights under MCL 712A.19b(3)(b)(i), (j), and (k)(ii), which
state:
The court may terminate a parent's parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
(b) The child or a sibling of the child has suffered physical injury or
physical or sexual abuse under 1 or more of the following circumstances:
(i) The parent's act caused the physical injury or physical or sexual abuse
and the court finds that there is a reasonable likelihood that the child will suffer
from injury or abuse in the foreseeable future if placed in the parent's home.
***
(j) There is a reasonable likelihood, based on the conduct or capacity of
the child's parent, that the child will be harmed if he or she is returned to the home
of the parent.
(k) The parent abused the child or a sibling of the child and the abuse
included 1 or more of the following:
***
(ii) Criminal sexual conduct involving penetration, attempted penetration,
or assault with intent to penetrate.
To justify the termination of parental rights, petitioner must have established at least one
of the statutory grounds by clear and convincing evidence. In re Trejo, 462 Mich 341; 612
NW2d 407 (2000). We review the trial court’s decision for clear error. Id. at 356.
The trial court evaluated all the evidence and stated, in part:
Based on all of the above, the [c]ourt finds Grounds for Termination . . . .
The father sexually abused one of his daughters, he would do it again to that one
and probably to the other one also, and in the foreseeable future. There is a lot
more than a reasonably [sic] likelihood in the [c]ourt’s mind, based on the
[f]ather’s conduct, that he would do it again if the [j]uveniles were placed in his
home. These [j]uveniles are his daughters, and the [f]ather sexually penetrated
one of them, and this was abuse.
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We conclude that, at a minimum, MCL 712A.19b(3)(k)(ii) was established by clear and
convincing evidence. First, there was the testimony of Kusiak and Moltmaker discussed above.
Additionally, the child’s mother testified that child X informed her that she was having pain
while trying to urinate and that there was a red mark on child X’s vagina. The mother also
testified that child X stated that respondent “kissed her,” and then pointed to her “private parts.”
Further, respondent admitted to Suratt that he penetrated child X’s vagina with his finger. This
evidence adequately supported the trial court’s conclusion that MCL 712A.19b(3)(k)(ii) was
established. While respondent testified at trial that he did not inappropriately touch child X, it
was up to the trial court to judge the credibility of the witnesses. MCR 2.613(C).
Once at least one statutory basis for termination has been established, the court must
order termination of parental rights if it finds that termination would be in the children’s best
interests. MCL 712A.19b(5). We review the trial court’s best-interests determination for clear
error. Trejo, supra at 356-357.
The court stated the following with regard to best interests:
The [c]ourt finds [t]ermination [c]learly in the [c]hildren’s best
[i]nterests.[5] The [c]ourt believes [child X] will remember these events, and
contact with the [f]ather will bring it all back. The [f]ather pays no support. As
stated above, the [c]ourt feels he would do it again.
Given the clear and convincing evidence that respondent committed criminal sexual conduct
involving penetration against child X, given that both child X and her sibling are females of
around the same age, and given that respondent denies having done anything inappropriate, we
simply cannot conclude that the trial court clearly erred in finding that termination was in the
children’s best interests.
Affirmed.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Jane M. Beckering
5
Respondent contends that the trial court should have used the prior version of MCL
712A.19b(5), which stated, in part, that the court must order termination “unless the court finds
that termination of parental rights to the child is clearly not in the child's best interests.” We
need not address this issue, because the fact that the trial court found a basis to terminate under
the current version of MCL 712A.19b(5) necessarily means that the trial court would have found
a basis to terminate under the prior version. In other words, because the court found that
termination was in the children’s best interests, it follows that the court did not find that
termination was “clearly not in the [children’s] best interests.”
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