In Re Casto Minors

            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS


                                                                     FOR PUBLICATION
In re CASTO, Minors.                                                 December 8, 2022
                                                                     9:05 a.m.

                                                                     No. 357656
                                                                     Ottawa Circuit Court
                                                                     Family Division
                                                                     LC No. 20-093901-NA


Before: SWARTZLE, P.J., and RONAYNE KRAUSE and GARRETT, JJ.

SWARTZLE, P.J.

        A young child discloses sexual abuse by a parent. The child is interviewed several times,
and the statements are admitted as substantive evidence during child-protective proceedings.
Several experts testify on behalf of the government with respect to coaching and other reliability-
related matters, but the parent’s counsel does not offer, or even investigate, an expert to test the
government’s case. Moreover, one of the government’s experts vouches for the credibility of the
child, without objection. Under these circumstances, the parent’s counsel does not provide
effective assistance, in violation of both our state and federal Constitutions. Accordingly, we must
vacate the termination of parental rights and remand for new proceedings.

                                       I. BACKGROUND

        Respondent-father appeals as of right the order terminating his parental rights to his
children, BC and AC, under MCL 712A.19b(3)(b)(i), (g), (j), (k)(ii), and k(ix). Respondent and
mother were married in 2013, but separated in 2018 and finalized their divorce in 2019. BC was
born in 2014 and AC was born in 2018. Respondent is an independent sales representative in the
manufacturing industry, and his territory covers Indiana, Ohio, and Michigan. During the
marriage, mother was a hair stylist, but after the separation and divorce, mother became an
unlicensed life coach and sales associate. With respect to her life-coach work, mother explained
that she helps women process “similar things that [she has] gone through,” including with “their
sexuality and their self-esteem.” Her work involves producing social-media content.

        In September 2020, the Department of Health and Human Services (the “Department”)
filed a petition seeking termination of respondent’s parental rights at the initial dispositional
hearing. The Department alleged that respondent sexually abused BC and AC, including acts of


                                                -1-
anal penetration, sexual touching, and taking video and photos of the abuse. The allegations arose
from out-of-court statements made by BC about acts of sexual abuse experienced by BC and AC,
from when BC was three to five years old and AC was less than two years old. Respondent’s basic
defense was that BC’s mother, respondent’s ex-wife, influenced BC to make these allegations out
of anger toward respondent following their divorce and out of a desire not to share custody.

       The Department filed a notice of intent to admit BC’s statements under MCR 3.972(C)(2).
The Department sought to introduce statements made by BC to (1) his mother; (2) BC’s therapist,
Renee Orr; and (3) Olga Mathis and Emily Friberg, forensic interviewers with the Child Advocacy
Center in Ottawa County. The Department also sought to introduce statements made to mother’s
boyfriend, but the Department later withdrew that request, acknowledging that the statements did
not meet the criteria in MCR 3.972(C)(2).

        Tender-Years Evidentiary Hearing. At a tender-years evidentiary hearing before trial,
mother, Orr, Friberg, and Mathis testified about BC’s disclosures. According to mother, prior to
the couple’s separation, she never suspected that respondent was sexually abusing either child.
After the separation, BC began to disclose abuse, beginning in October 2019 when he was four
years old. Thereafter, BC and mother had several more conversations about the abuse, and BC
made additional disclosures to mother.

        Not long after making disclosures to mother, BC began discussing abuse with his therapist,
Orr. She explained that when she first started to see BC in the fall of 2019 for problems involving
the couple’s separation, he was “practically non-verbal” and was having social difficulties at
school; Orr suspected that BC might be autistic. Orr testified that BC disclosed that respondent
sexually abused him. He never mentioned anything that would provide an alternative explanation
for his knowledge about mature topics. Orr testified that there has “never been any . . . kind of
reason to doubt that he’s -- what he’s saying is -- is his truth.” When BC made a disclosure, Orr
would tell him how “proud” she was and how “brave” he was for telling her.

        As a mandatory reporter, Orr reported the disclosures to Children’s Protective Services
(“CPS”), and BC was forensically interviewed three times. Each interview was recorded and
entered in evidence. In the first interview with Mathis in October 2019, BC made no disclosures
of abuse by respondent. During an interview with Friberg in March 2020, and an additional
interview with Mathis in June 2020, BC made disclosures of sexual abuse, naming respondent as
the perpetrator. Mathis testified that, in her experience, it was not uncommon for a child to need
more than one forensic interview before the child feels ready to make a disclosure about abuse.
During the third interview, BC claimed that respondent abused him “[l]ike 60 times,” including at
the marital home in Jackson and on a family vacation to Disney World in Florida before the
separation. Neither of the forensic interviewers observed any indication of coaching.

       As for AC, BC first alleged in April 2020 that respondent also sexually abused his younger
brother. AC—who was less than two years old when BC began making disclosures—has never
made any disclosures of abuse, and because of his age, he was not forensically interviewed.

       The trial court viewed the videos of BC’s forensic interviews, and the parties stipulated to
the admission of a trauma-assessment report by Dr. James Henry, director of the Western Michigan
University Children’s Trauma Assessment Center (“CTAC”). The trial court also heard testimony


                                               -2-
from Trooper Maxwell Roy Nichols, who testified that a forensic analysis of five of respondent’s
electronic devices uncovered no evidence to support BC’s reports. The trooper explained that he
attended the latter two of BC’s forensic interviews and included a summary of BC’s statements to
the local prosecutor. The local prosecutor declined to pursue criminal charges against respondent.

        Respondent also testified, denying the allegations of abuse, maintaining that mother
harbored considerable anger toward respondent because of an affair that ended their marriage. (He
subsequently testified during the dispositional hearing that there were actually two affairs, and
mother learned about the affairs after she tested positive for a sexually transmitted disease.)
Respondent explained that mother had previously taken actions to frustrate respondent’s access to
the children by, for example, moving from Jackson to Jenison without informing respondent.

        Following the hearing, the trial court admitted BC’s statements to Orr, Mathis, and Friberg.
With regard to mother, the trial court admitted BC’s initial disclosure to mother. The trial court
excluded the remainder of BC’s statements to mother, concluding that they lacked sufficient
indicia of trustworthiness because the statements were “made in the context of a contested custody
and parenting time post-divorce relationship, along with the prior knowledge mother has gained
from” BC.

        Adjudication Trial. The matter then proceeded to the adjudication stage with a bench trial,
consisting of testimony from mother, Orr, Mathis, and Friberg about BC’s disclosures. The
Department also presented testimony from Dr. Henry and a CPS investigator, Allison Wrobel.

        With respect to her life-coaching work, mother testified that she does “a lot of [her] work
when [her sons are] not in the home.” She admitted, however, that they were present for “a handful
maybe” of the “sexualized podcasts.” Mother elaborated, “And yeah, I’m pretty free about what
I talk around them. I don’t try to hide it.” She clarified, though, that she does not talk about
“specific sexual content” around them.

        Mother further testified that in 2019, while still living in Jackson, she took BC to an
emergency room because of a swollen anus. He was examined by the hospital’s children’s
protective team, but they found no conclusive evidence of sexual abuse; rather, they diagnosed the
problem as stemming from poor hygiene. On another occasion in 2019, BC was diagnosed with a
rash called molluscum.

        Dr. Henry testified as an expert in trauma, trauma assessment, child maltreatment, and
child development and sexual abuse. He described BC’s IQ and language skills to be within the
average range, and BC’s physical examination showed no abnormalities. BC’s communication
skills and behaviors “were consistent with potential autism, high order autism,” but Dr. Henry did
not believe that this would prohibit BC from communicating effectively about past trauma.

        With regard to the CTAC report that had previously been stipulated to by the parties, Dr.
Henry described his understanding of the purpose of the evaluation of BC as follows: “The family
court judge on the case ordered a CTAC assessment and is hoping to have another source to verify
that [BC’s] disclosures are credible regarding the sexual abuse of his father.” Dr. Henry concluded
in his report that the history of BC’s disclosures and other circumstances “all support the veracity
of [BC’s] statements.” During his testimony, Dr. Henry further explained that he tests to see if a



                                                -3-
child is displaying signs of coaching and that, in this case, “there was no evidence of scripting at
all.” On the basis of an interview with BC and questionnaires completed by mother, Dr. Henry
concluded that BC exhibited signs of trauma, including dysregulation and emotional responses
when discussing the abuse, sexualized behavior, and guilt and shame. He opined that BC’s sexual
knowledge and behavior were consistent with sexual abuse as opposed merely to being exposed
to sexual information. Orr likewise testified as an expert and concluded that she did not see any
signs of coaching.

       Respondent did not have an opportunity to provide any input before Dr. Henry prepared
the CTAC report. Through no fault of respondent’s, incorrect contact information was given to
CTAC. After the CTAC report had already been completed, respondent was given an opportunity
to speak with Dr. Henry. This delayed interview with respondent did not change Dr. Henry’s
opinions.

       Respondent presented no witnesses at the adjudication trial.

       The trial court concluded by a preponderance of the evidence that respondent sexually
abused the children. In reaching this conclusion, the trial court noted the custody dispute between
mother and respondent, recognizing that this was a consideration when assessing the
trustworthiness of mother’s testimony about BC’s disclosures. But regardless of mother’s
testimony, the trial court found that allegations of sexual abuse had been established by the
testimony from professional witnesses and experts, who detailed BC’s disclosures about
respondent’s sexual abuse.

        Dispositional Hearing. The case then proceeded to the dispositional phase, during which
the Department again presented testimony from Dr. Henry, Wrobel, Orr, and mother, all of whom
opined that termination of respondent’s parental rights was in the children’s best interests. Another
CPS employee, Tracy Osterman-Pierce, also testified that termination was in the children’s best
interests. The trial court took judicial notice of the court file, including the testimony offered at
the adjudication trial. The trial court admitted the videos of BC’s forensic interviews.

        Respondent testified during the dispositional hearing, again denying the allegations of
abuse, detailing the contentious nature of his divorce from mother, and describing past actions by
mother to frustrate his access to the children. According to respondent, mother had started to make
allegations of abuse in January 2019. She took BC to several medical providers prior to October
2019 with suspicions of sexual abuse, though these suspicions were not substantiated by those
providers.

         In support of his version of events, respondent called several lay witnesses to describe
mother’s behavior during their separation and divorce and to disavow seeing respondent engage
in any inappropriate behavior with children. These witnesses included two of mother’s own
sisters, respondent’s sister, respondent’s mother, respondent and mother’s former pastor, BC’s
former play therapist, respondent’s therapist, and a family friend who had known both mother and
respondent since they were teenagers. Several of the witnesses, including one of mother’s sisters,
described mother’s podcasts and videos as containing “graphic sexual content” and that the boys
were in the same room when mother made some of the content. Respondent also called Trooper




                                                -4-
Nichols, who again testified that nothing to support BC’s reports was found on respondent’s
electronic devices.

        Respondent’s final witness was Dr. Richard L. Rickman, a forensic psychologist, whom
respondent retained to conduct a psychological evaluation of respondent. According to Dr.
Rickman, respondent met and exceeded the “minimum standard of parenting capacity.” Dr.
Rickman qualified this opinion, however, by noting that, if the allegations of abuse were found to
be true, the existence of sexual abuse would present “a huge red flag.”

        Following the hearing, the trial court found that clear and convincing evidence supported
statutory grounds for termination of respondent’s parental rights and that termination was in the
children’s best interests. The trial court found that BC’s statements to mother, Orr, Mathis, and
Friberg were “trustworthy, credible, and form the foundation for the Court’s findings regarding
statutory basis pursuant to MCL 712A.19b(3)(b)(i).” The trial court further explained, “The
credible testimony of behavioral health professionals Renee Orr and Dr. James Henry specifically
refute the idea that the statements are coached.” The trial court entered an order terminating
respondent’s parental rights.

        Ginther Hearing. Respondent appealed to this Court as of right. Respondent also moved
this Court to remand for a hearing under People v Ginther, 

; 

 (1973),
and a different panel of this Court granted his motion and remanded for an evidentiary hearing.
Briefly stated, respondent maintained that his trial counsel provided ineffective assistance by
failing to retain an expert to challenge the reliability and indicia of trustworthiness surrounding
BC’s disclosures of abuse.

        To support his ineffective-assistance claim during the Ginther hearing, respondent
presented the expert report and testimony of a clinical psychologist, Daniel Swerdlow-Freed, Ph.D.
The psychologist provided a detailed overview of child memory and suggestibility, including the
vulnerability of children—particularly those three to six years old—to source-monitoring errors.
The trial court accepted Dr. Swerdlow-Freed as an expert in the areas of (1) children’s memory
and suggestibility, and (2) forensic interviewing of children.

        Dr. Swerdlow-Freed described in detail the concept of “source monitoring,” which relates
to the epistemological problem of how people know the information that they know. For children
three to six years old, they are still learning to monitor their sources of information. Until children
master this idea of source monitoring, they are vulnerable to recalling inaccurately how they
obtained information. For example, they may believe that they experienced something that they
only overheard being discussed by adults or saw in a video. Dr. Swerdlow-Freed described this
as a “developmental vulnerability” arising from the child’s “incomplete state of cognitive
development.” Notably, according to Dr. Swerdlow-Freed, when a child makes a source-
monitoring error and accepts a false memory, that memory can seem “the same” to a child as an
actual memory of a real experience. False memories can even include emotional expressions.

       In view of this vulnerability to source-monitoring errors, Dr. Swerdlow-Freed also
explained the importance of using developmentally appropriate questioning with children, such as
those embodied in the forensic-interview protocols. He also explained the risks of questioning by
individuals, such as parents, who are not trained in forensic-interview protocols, and the potential


                                                 -5-
for a parent to introduce—intentionally or even unintentionally—false or misleading information
that the child will accept as a memory and incorporate into subsequent interviews. Positive
reinforcement—such as praising a child for disclosures—can reinforce and encourage repetition
of false memories.

        In addition to providing general information, Dr. Swerdlow-Freed reviewed materials
related to this case, including the forensic interviews, the CPS investigation reports, transcripts of
the tender-years hearing, and the CTAC report. Statistically, he testified that, in 85% of the cases
he has reviewed, he has found no substantial mistakes relevant to a young child’s disclosure of
abuse; it was only the remaining 15% of cases, including the current one, in which he found
substantial problems.

        Dr. Swerdlow-Freed identified several areas of concern in the forensic interviews and the
circumstances surrounding BC’s disclosures. Overall, he opined that there was a good basis to
question the reliability of BC’s disclosures because of the various features of the interviews.
According to Dr. Swerdlow-Freed, if retained as an expert, he could have educated respondent’s
trial counsel on topics related to children’s memory, suggestibility, child development, and
forensic interviewing. He could have more specifically identified problem areas in the forensic
interviews and the circumstances surrounding BC’s disclosures to aid in cross-examination.

        As one of the red flags noted by Dr. Swerdlow-Freed, Orr reported to CPS as follows:
“[Orr] reported that after seeing [BC] Tuesday, [mother] reached out on Wednesday and scheduled
another appointment to bring [BC] back in stating that he was ready to disclose.” Later, in 2020,
CPS spoke with Orr, and:

       [Orr] stated that she does worry sometimes that [mother] pushes the kids really
       hard, but [Orr] stated that she also understands that [mother] comes from a place of
       being a mom and wanting to protect her kids. [Mother] does push [BC] to tell [Orr]
       the things that he tells her, and often wants him to disclose things before he is ready,
       but at this time she believes that the disclosures are all valid.


Dr. Swerdlow-Freed answered that he would have been willing to testify in this case as an expert
in these areas.

        With respect to his preparation for the Ginther hearing, Dr. Swerdlow-Freed testified that
he did not review any transcripts from the adjudication trial or dispositional hearing. He explained
that he wanted to review only the materials to which trial counsel would have had access when she
formulated her litigation strategy.

        Respondent’s trial counsel also testified at the hearing. Trial counsel’s basic theory of the
case was that BC’s disclosures had been influenced by mother, who was upset about respondent’s
affairs and the break-up of their family. In preparing the case, counsel reviewed the CPS and
police materials, spoke with respondent, and interviewed respondent’s witnesses.

        Having reviewed the forensic interviews herself, she did not see any “glaring” problems,
but she also acknowledged that she is not an expert in this area. Indeed, counsel testified that she
did not have any specialized training in forensic interviews, and she had “no idea” of the science


                                                 -6-
or research on which the forensic protocols are based. When preparing respondent’s case, she did
not investigate or consider consulting an expert in forensic interviewing or child memory and
suggestibility. According to counsel, she was unaware of such experts being used in abuse-and-
neglect cases.

        To support trial counsel’s theory of the case, she intended to rely on Dr. Henry’s testimony
and have respondent undergo a psychological evaluation with Dr. Rickman with the hopes that
this evaluation would show that respondent was “not predisposed to being an offender.” Trial
counsel explained that she discussed with respondent the tactic of relying on Dr. Henry after the
first day of the tender-years hearing. She further explained that she believed respondent did not
abuse his children, she had never seen Dr. Henry “get it wrong,” and she trusted that Dr. Henry
would “get to the bottom of whether there was coaching or influence happening, or if the abuse
even happened.” Because CTAC could not be retained privately, trial counsel requested and
stipulated to the trial court making a referral to Dr. Henry at the end of the second day of the
tender-years hearing.

       Thereafter, Dr. Henry produced a report that trial counsel described as “a wholly one-sided
and slanted referral which produced no substantive evidence of trauma yet suggests termination of
parental rights based heavily on statements made by the Agency and [mother].” During the
Ginther hearing, trial counsel admitted that she stipulated to the admission of the report, believing
that any objection to its admission would be futile. Furthermore, she did not object to any
statement that might have vouched for BC’s credibility; and although she acknowledged that she
could have asked the trial court for additional time (but noting that the Department likely would
have objected), and she could have tried to find another expert to refute Dr. Henry, she made no
attempt to do so.

       Respondent also testified at the hearing, confirming that his trial counsel did not suggest
engaging an expert and noting that he would have paid for such an expert had she suggested one.

        Finally, respondent presented testimony from an attorney, Lisa Kirsch-Satawa, who
specializes in child-abuse and child-sexual-assault cases, including both criminal and termination
cases. In her practice, Kirsch-Satawa routinely consults and employs experts in areas related to
forensic interviewing. To prepare for the Ginther hearing, Kirsch-Satawa reviewed the forensic
interviews, the CPS report, and the Department’s petition; she did not review the transcripts of the
adjudication trial or dispositional hearing, nor did she review Dr. Swerdlow-Freed’s report because
she wanted “to identify the issues as an attorney that I would be consulting with the expert for, not
the issues that the expert already determined in this case.”

        Based on her review of the interviews, she noted several red-flags that would have
prompted her to consult an expert. For example, she identified a lack of hypothesis testing (e.g.,
no questions designed to consider whether there was a non-abuse explanation for BC’s statements);
the specific disclosures did not correspond to pre-interview allegations; and repetitive questions to
which BC answered that he did not know—she actually counted, and BC answered with “I don’t
know” a total of 109 times. She concluded that, in her opinion, it was unreasonable not to consult
with an expert in this case, particularly given BC’s age, his inconsistent statements, the occurrence
of multiple interviews, and BC’s participation in therapy.



                                                -7-
        Following the hearing, the trial court concluded that respondent had not been denied the
effective assistance of counsel. The trial court discounted the testimonies of Dr. Swerdlow-Freed
and Kirsch-Satawa because neither of them had reviewed the testimonies of witnesses from the
adjudication trial or dispositional hearing. For instance, the trial court noted that Dr. Swerdlow-
Freed had not reviewed respondent’s trial counsel’s cross examination of various witnesses, and
this “significantly impacted the value of his testimony for purposes of this hearing” and “some of
his unsupported conjecture hurt his credibility.” As the trial court summarized,

               The Court is reluctant to give Dr. Swerdlow-Freed’s testimony as much
       weight as respondent-appellant may hope in regard to the issue before the court as
       it contains a lot of conjecture without foundational knowledge about what witnesses
       actually said and did at trial and without any knowledge of the lengths that trial
       counsel went to in preparation for trial.

Similarly with respect to Kirsch-Satawa, the trial court questioned her value as a witness because
“her entire focus was on the three forensic interviews,” rather than a broader view that would have
included the adjudication trial and dispositional hearing.

        The trial court concluded that trial counsel’s performance did not fall below an objective
standard of reasonableness. The trial court observed that trial counsel’s “ongoing trial strategy
was to have the case evaluated by the Child Trauma Assessment Center under the supervision of
Dr. Henry.” The trial court rhetorically asked, “[h]ow can a court find the work of the trial attorney
ineffective when, through her work, the reliability of the child’s statements was reduced to the
point that respondent’s preferred expert, Dr. Henry, became involved in the evaluation of the
case?” With respect to prejudice, the trial court placed considerable weight on the testimonies of
Orr and Dr. Henry: “Ms. Orr and Dr. Henry provided significant information that would support
the end result in this case even if the statements made by the child at the forensic interviews were
excluded. . . . There was sufficient evidence independent of the forensic interviews to support the
end result.” The trial court concluded that respondent had “not established the claim of ineffective
assistance of counsel raised in his motion to remand.”

       This matter is now ready for appellate review.

                                           II. ANALYSIS

        Respondent claims on appeal that he was denied the effective assistance of counsel,
notwithstanding the trial court’s decision to the contrary. Respondent also takes issue with the
trial court’s holdings with respect to statutory grounds for termination of parental rights and the
best interests of the children. As explained below, we conclude that respondent was denied his
constitutional right to the effective assistance of counsel; given this, we do not reach the latter two
claims.

                                  A. STANDARD OF REVIEW

        “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law. A judge first must find the facts, and then must decide whether those
facts constitute a violation of the defendant’s constitutional right to effective assistance of
counsel.” People v LeBlanc, 

; 

 (2002). We review a trial court’s


                                                 -8-
factual findings for clear error, and questions of constitutional law are reviewed de novo. People
v Armstrong, 

; 

 (2011). “Clear error exists if the reviewing court
is left with a definite and firm conviction that the trial court made a mistake.” 

 Whether a
respondent can show prejudice is reviewed de novo. People v Dendel, 

, 132 n 17;

 (2008), amended 

 (2008). “[T]he test for prejudice is an objective
test,” and “appellate courts should not simply defer to the trial court’s judgment regarding
prejudice, even if the trial court was the fact-finder at the original trial, as in this case.” 

    B. CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

        Both the Michigan and federal Constitutions guarantee the right to the assistance of counsel
in criminal cases. Const 1963, art 1, § 20; US Const, Am VI. Given the nature of accusations and
consequences in child-protective proceedings, this right has been extended to these civil
proceedings. In re Martin, 

; 

 (2016).

        Respondent argues that his trial counsel provided ineffective assistance of counsel by
failing to investigate, consult, and call an expert in forensic interviewing and child memory and
suggestibility. Respondent maintains that testimony by an expert such as Dr. Swerdlow-Freed
would have provided an effective challenge to the trustworthiness of BC’s statements at the tender-
years hearing, meaning the statements would not have been admitted into evidence in the first
instance. Even if those statements were not excluded, testimony from Dr. Swerdlow-Freed should
have been used at the adjudication trial and dispositional hearing to challenge BC’s statements,
creating a reasonable probability of a different outcome.

        “To be constitutionally effective, counsel’s performance must meet an objective standard
of reasonableness. . . . To obtain relief for the denial of the effective assistance of counsel, the
[respondent] must show that counsel’s performance fell short of this objective standard of
reasonableness and that, but for counsel’s deficient performance, there is a reasonable probability
that the outcome of the [respondent’s] trial would have been different.” People v Ackley, 

; 

 (2015) (cleaned up). The effective assistance of counsel is
presumed, and a party claiming ineffective assistance bears a heavy burden of proving otherwise.
People v Solmonson, 

; 

 (2004).

                    1. OBJECTIVE STANDARD OF REASONABLENESS

        When reviewing a claim of ineffective assistance of counsel, this Court must be cognizant
of, and guard against, the bias of applying 20/20 hindsight to counsel’s performance. The Court
cannot substitute its judgment for that of counsel’s on matters of litigation strategy, and counsel’s
performance must be judged based on the knowledge, expertise, and information reasonably
available when counsel formulated and implemented the litigation strategy. People v Unger, 

; 

 (2008). In reviewing counsel’s performance, this Court must
“determine whether the strategic choices were made after less than complete investigation, and
any choice is reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation. Counsel always retains the duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations unnecessary.” People v
Trakhtenberg, 

; 

 (2012) (cleaned up).




                                                -9-
         Respondent’s claim centers on trial counsel’s failure to consult or call an expert witness.
In some cases, “the only reasonable and available defense strategy requires consultation with
experts or introduction of expert evidence.” Hinton v Alabama, 

; 

;

 (2014) (cleaned up). Counsel’s selection of an expert is considered an example of
litigation strategy; however, this is true only when a decision regarding an expert is made “after
thorough investigation of the law and facts in a case.” Ackley, 

 (cleaned up).
Counsel “may be deemed ineffective, in part, for failing to consult an expert when counsel had
neither the education nor the experience necessary to evaluate the evidence and make for [herself]
a reasonable, informed determination as to whether an expert should be consulted or called to the
stand.” Trakhtenberg, 

 n 9 (cleaned up).

       Specifically with respect to child-sexual-abuse cases, the potential significance of expert
testimony is well-recognized. See People v Peterson, 

; 

(1995), amended 

 (1995). “Given the nature of the offense and the terrible
consequences of a miscalculation—the consequences when an individual, on many occasions a
family member, is falsely accused of one of society’s most heinous offenses, or, conversely, when
one who commits such a crime would go unpunished and a possible reoccurrence of the act would
go unprevented—appropriate safeguards are necessary.” Id. at 374. Indeed, “reliability problems
created by children’s suggestibility” give rise to “special considerations” related to the role of
experts. Id. at 371; see also People v Musser, 

; 

 (2013).

        In this case, respondent argues that his trial counsel should have obtained an expert in
forensic interviewing, child memory, and suggestibility. The expert could have assisted counsel
in identifying problems with BC’s disclosures during interviews. The expert could have also
provided testimony with respect to child memory and suggestibility, including young children’s
susceptibility to source misattribution, as relevant to addressing the reliability and trustworthiness
of BC’s disclosures. According to counsel’s own testimony, she did not consider or investigate
the possibility of such an expert—indeed, she was unaware of such experts being used in child-
sexual-abuse cases.

        We conclude, based on several considerations, that the performance of trial counsel fell
short of the controlling objective standard of reasonableness. First, the trial court erred in a key
respect when it determined after the Ginther hearing that the views of Dr. Swerdlow-Freed and
Kirsch-Satawa lacked sufficient credibility or weight. The trial court explained on remand that it
discounted their testimony because they did not review transcripts of the adjudication trial or
dispositional hearing or talk with trial counsel to determine what steps she took to prepare for the
proceedings. Based on this purported failure to prepare, the trial court concluded that neither
witness was particularly helpful.

        Ordinarily, an appellate court must defer to a trial court’s findings on credibility, with
respect to both lay and expert witnesses. MCR 2.613(C); see also In re Medina, 

; 

 (2016) (“We must defer to the special ability of the trial court to judge
the credibility of witnesses.”). In this instance, however, the trial court made a clear legal error
when assessing the credibility of these two witnesses.

        As previously noted, it is critical that, when reviewing an attorney’s performance through
the lens of our ineffective-assistance-of-counsel standard, a court must not apply 20/20 hindsight.


                                                -10-
In preparing for the Ginther hearing, respondent sought to guard against this hindsight bias. Both
Dr. Swerdlow-Freed and Kirsch-Satawa reviewed only the materials that would have been
available to them had they been engaged just prior to the adjudication trial. They did not read
transcripts of the subsequent trial and dispositional hearing precisely because those transcripts
would not have existed when the original litigation strategy was being developed by counsel. By
not reading those latter transcripts, the two witnesses ensured that their views about what strategy
counsel should have selected and how counsel should have prepared were based on information
that counsel had available to her at the time she formulated her strategy, i.e., prior to the
adjudication trial. This should have enhanced their credibility during the Ginther hearing, not
detracted from it, ceteris paribus.

        Second, although not within the scope of the Ginther hearing (and therefore not before the
trial court on remand), the record shows that Dr. Henry impermissibly vouched for the credibility
of BC. This case involves allegations of sexual abuse made by a young child, and these reports
are the only evidence of wrongdoing. There were no physical signs of abuse, there were no
electronic pictures or videos of abuse, and there were no eye-witnesses of abuse. The entirety of
the case rests on the credibility and reliability of BC’s disclosures.

        One concern in a case like this can arise when an expert vouches for the credibility of a
complainant. Credibility is a matter for the fact-finder, not an expert witness. People v Thorpe,

, 260; 

 (2019) (“Because the trial turned on the jury’s assessment of
[the victim’s] credibility, the improperly admitted testimony wherein [the expert] vouched for [the
victim’s] credibility likely affected the jury’s ultimate decision.”). Indeed, under MRE 702, an
expert cannot vouch for the credibility of the complainant or another witness. In re Brimer, 

; 

 (1991). The rules of evidence apply to adjudication trials in
child-protective proceedings, MCR 3.972(C)(1), and Dr. Henry testified during the adjudication
trial and his report was admitted into evidence.

       Whether Dr. Henry’s expert views about outside coaching crossed the line into
impermissible vouching is a question we need not answer today. See, e.g., People v Douglas, 

; 

 (2014) (concluding that testimony that there was no indication of
coaching amounted to improper vouching). We need not answer this question because Dr. Henry
went beyond outside coaching in his report. For example, he described his role in this case to
include verifying whether BC’s disclosures “are credible.” He then did, in fact, conclude that the
circumstances surrounding BC’s statements “all support the veracity of [BC’s] statements.” These
opinions went beyond the penultimate question of outside coaching and went to the ultimate
question of BC’s credibility. Although trial counsel may have had reason to believe it would have
been futile to object to the admission of the report in the abstract, trial counsel stipulated to the
admission of the report in its entirety and offered no specific objection with respect to Dr. Henry’s
opining on the credibility of BC.

        And third, even had Dr. Henry not vouched for BC’s credibility, there is other evidence in
the record to question whether BC could have been influenced by outside sources, whether
intentionally or inadvertently. By all accounts and as already recounted, the divorce was quite
contentious. Notably, there is evidence in the record that mother’s conduct and statements after
her separation from respondent—and well before BC’s disclosures—raised concerns regarding her
desire not to share custody with respondent and her anger with respondent, both of which would


                                                -11-
provide a motive for mother to influence BC, and her behavior suggested a willingness to disparage
respondent to ensure the custody outcome she desired.

       For instance, by her own admission, prior to separation, mother did not suspect that
respondent was abusing the children. But shortly after the separation, mother took BC to medical
providers with the suspicion of sexual abuse, though abuse was not substantiated by the physical
exams. Multiple family members, including her own sisters, testified that mother made
disparaging comments about respondent involving the boys, again before any disclosures had been
made by BC. And it is undisputed that she abruptly moved with the boys more than two hours
away from respondent, without discussing the matter with, or even informing respondent.

         Mother was the first person who reported that BC made a disclosure of abuse. Following
this initial conversation, mother had additional conversations with BC before he was forensically
interviewed. As described in Orr’s statements to CPS, mother encouraged—even “pushed”—BC
to make disclosures to Orr. Dr. Swerdlow-Freed explained that mother’s actions raised a red flag
that should have been more thoroughly evaluated by an expert. Although the trial court questioned
the basis for Dr. Swerdlow-Freed’s concerns regarding mother pushing BC to disclose, the record
confirms that Dr. Swerdlow-Freed relied on Orr’s statements to CPS. “It is well-settled that an
expert witness may rely on hearsay evidence when the witness formulates an opinion.” People v
Lonsby, 

; 

 (2005).

         Trial counsel was certainly aware of the context for BC’s disclosures. Indeed, trial counsel
testified at the Ginther hearing that her strategy was to attempt to show that BC’s disclosures were
not credible and were instead the product of coaching by mother. Yet, despite having formed this
strategy, counsel did not investigate—or even consider investigating—an expert who could have
provided valuable information on child memory, suggestibility, source misattribution, and
forensic-interview protocols, all of which would have been materially useful to supporting the
defense’s theory and assisting a fact-finder’s assessment of BC’s disclosures. Further, trial counsel
lacked the scientific background to assess independently the interviews in this case. Ackley, 

 (considering counsel’s lack of personal qualifications and education on a topic when
considering whether counsel was ineffective for failing to consult an expert).

        Particularly concerning, trial counsel testified that she was not aware of such experts being
used in child abuse-and-neglect cases. Effective counsel, particularly an attorney practicing in
areas involving child-sexual abuse, should be aware of the availability of experts in topics such as
child memory, suggestibility, source misattribution, and forensic-interview protocols. Indeed, the
“reliability problems created by children’s suggestibility” are well-recognized in this area of law.
Peterson, 

. Trial counsel failed to exercise reasonable professional judgment by
not investigating the possibility of an expert in the first instance, an omission that cannot be
excused as trial strategy. See Ackley, 

; Trakhtenberg, 

.

        Although she did not consider the possibility of an expert with Dr. Swerdlow-Freed’s area
of expertise, trial counsel did have a trial strategy involving the use of other experts, namely Dr.
Henry and Dr. Rickman, neither of whom claimed expertise in forensic-interviewing protocols and
related topics like child memory and suggestibility. Given counsel’s admitted unawareness of the
possibility of employing experts with Dr. Swerdlow-Freed’s area of expertise, trial counsel lacked
sufficient information to legitimize her choice of other experts. See Ackley, 

.


                                                -12-
        Regarding Dr. Henry in particular, we emphasize that a person does not receive ineffective
assistance of counsel solely because counsel pursues a risky strategy that ultimately backfires. See
In re Ayres, 

; 

 (1999), superseded in part by statute on other
grounds as stated in People v Dipiazza, 

; 

 (2009). In other words,
the bare fact that trial counsel gambled on Dr. Henry, only to lose that gamble, does not per se
render her assistance ineffective. Nevertheless, a risky strategy must be a sound one. As discussed,
trial counsel chose to rely on Dr. Henry completely sight-unseen and without investigating or
considering any other options. Furthermore, following the receipt of Dr. Henry’s adverse expert
opinion, trial counsel should have at least considered the possibility of consulting an expert to
provide a different perspective. At the Ginther hearing, trial counsel expressed concern that if the
Department became aware that she had consulted with another expert who then also provided
negative information, the Department could subpoena that expert. See MCR 3.922(A)(1)(f). If
the expert, however, was not actually called to testify and gained no firsthand factual knowledge
that would warrant calling the expert as a fact witness, counsel’s mere consultation with an expert
would likely be covered under the work-product doctrine. See People v Tronti, 

; 

 (1989); Kissel v Nelson Packing Co, 

; 

 (1978). Ultimately, trial counsel’s reliance on Dr. Henry’s opinions—without investigating
the possibility of an alternate expert to refute those opinions—was not sound trial strategy.

        With regard to Dr. Rickman, he conducted a general psychological evaluation of
respondent. He did not see BC or review the forensic interviews. He was not an expert in forensic
interviewing or child memory and suggestibility. Frankly, Dr. Rickman had nothing to offer that
would bear on the reliability of BC’s statements. At the Ginther hearing, trial counsel testified
that she sought Dr. Rickman’s evaluation to show that respondent was “not predisposed to being
an offender.” Expert testimony, however, is not generally permitted regarding whether an
individual has characteristics of a sex offender, and in particular, cannot be used to establish the
truth of whether sexual offenses were committed. See People v Dobek, 

;

 (2007). At most, Dr. Rickman’s opinions on respondent’s mental health and
parenting ability may have had some minimal bearing on the children’s best interests. But the
choice of such a minimally relevant expert—without investigating the possibility of an expert with
Dr. Swerdlow-Freed’s qualifications—was not based on sufficient information, and it was not a
reasonable strategic decision. Ackley, 

; Trakhtenberg, 

.

                                          2. PREJUDICE

        The question remains whether respondent can establish prejudice from counsel’s deficient
performance. To establish prejudice, a party claiming ineffective assistance “must show that but
for counsel’s deficient performance, a different result would have been reasonably probable.”
Trakhtenberg, 

 (cleaned up). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Ackley, 

 (cleaned up).

         Under this standard, a respondent does not have to show that the evidence would have
ensured a different result, 

, nor must a respondent show that counsel’s failure more likely
than not altered the outcome, Harrington v Richter, 

; 

; 

 (2011). “[W]here there is relatively little evidence to support a guilty verdict to begin with
(e.g., the uncorroborated testimony of a single witness), the magnitude of errors necessary for a
finding of prejudice will be less than where there is greater evidence of guilt.” Trakhtenberg, 493


                                                -13-
Mich at 56 (quotation marks and citation omitted). Although corroboration is not generally
required to support allegations of sexual abuse, the lack of corroboration may nevertheless be
considered when addressing the question of prejudice. See Douglas, 

 n 6.

       BC’s out-of-court statements made to third parties were central to the Department’s case.
BC did not testify, and there was no physical evidence or corroborating eye-witnesses. Despite
claims that respondent filmed acts of sexual abuse, no such evidence was found on his electronic
devices. Respondent denied the abuse, and after investigating the matter, the local prosecutor
declined to pursue charges against respondent. Given that the case hinged on BC’s statements,
undermining the credibility and reliability of those statements was critical to any reasonable
defense. See 

.

        To bolster the credibility and reliability of BC’s statements, the Department presented the
testimony of several experts. In the face of this expert evidence, and despite the centrality of BC’s
credibility and reliability, trial counsel failed to present or even investigate expert testimony on
forensic interviewing, child memory, and suggestibility. The result was a one-sided presentation
of experts to support the Department’s theory of the case. Ackley, 

 (“Because of
counsel’s omissions and the resulting absence of suitable expert assistance, the prosecution’s
expert testimony appeared uncontested and overwhelming.”). Indeed, the Department emphasized
the one-sided nature of the expert testimony during closing, arguing: “When we look at the
professionals who have testified in this case, they have all squarely sided on the side of the child
and given compelling testimony that was in this proceeding that supports that . . . these sex acts
did in fact occur.”

        The case need not have been so one-sided. Dr. Swerdlow-Freed’s report and his testimony
at the Ginther hearing make clear that there was expert assistance available to provide the fact-
finder with information on child memory and development, the science underlying the forensic
protocols, and concepts like source misattribution, all of which would have been relevant to an
assessment of BC’s credibility and reliability as well as helpful to respondent’s defense strategy
that mother influenced BC. Indeed, particularly given BC’s young age—only four and five years
old—when he began making disclosures and undergoing forensic interviews, Dr. Swerdlow-
Freed’s expertise on child memory and suggestibility establishes a reasonable probability of a
different outcome had counsel exercised reasonable professional judgment in investigating and
presenting expert testimony to support the defense’s theory of the case.

         In reaching this conclusion, two final points warrant brief mention. First, the record shows
that trial counsel did not sit on her hands, but instead marshalled several witnesses to bolster
respondent’s case. Trial counsel also engaged in vigorous cross-examination, and, as the trial court
found, she did inquire into various reasons to doubt BC’s disclosures. Nothing in this opinion
should be read to downplay the work that trial counsel did. With that said, our courts have
recognized that lay testimony is often unlikely to counter expert testimony in cases like this.
Peterson, 

; see also Ackley, 

 (“The defendant’s own testimony
and that of his lay character witnesses were extremely unlikely to counter this formidable expert
testimony. Therefore, the absence of expert assistance in the defendant’s favor was critical.”). As
both the federal Supreme Court and our Supreme Court have recognized, “a single, serious error
may support a claim of ineffective assistance of counsel.” Kimmelman v Morrison, 

; 

; 

 (1986); Ackley, 

.


                                                -14-
        Second, in concluding that respondent was not denied the effective assistance of counsel
following the Ginther hearing, the trial court viewed Dr. Swerdlow-Freed’s testimony as centered
solely on the three forensic interviews. The trial court reasoned that, even if the forensic interviews
were excluded, BC made statements to Orr and Dr. Henry outside of those interviews, and these
statements “provided significant information that would support the end result.” But we do not
read Dr. Swerdlow-Freed’s testimony as so circumscribed. Dr. Swerdlow-Freed (and Kirsch-
Satawa) raised several specific, concrete areas of concern that went to the very heart of this case—
were BC’s disclosures credible and reliable? If one was to assume for the sake of argument that
the disclosures were not credible and reliable, then this would necessarily have to cast the trauma
assessments of Orr and Dr. Henry in a much different light, at the very least in terms of what was
causing the signs of trauma that Orr and Dr. Henry observed.

       In the final summation, this case rises or falls with the credibility and reliability of BC’s
disclosures, and an expert should have been consulted by respondent’s trial counsel so that the
disclosures could be subjected to the crucible of the adversarial process. See People v Joly, 

, 396; 

 (2021) (“The truth-seeking function of the judicial process
depends on a party subjecting all of the evidence—its own and the opposing party’s evidence—to
the crucible of critical analysis, cross-examination, and forceful argument.”). As our Supreme
Court explained in a similar context, “While we cannot say that a battle of the experts would have
ensured” a different outcome, “counsel’s failure to prepare or show up for the battle sufficiently
undermines our confidence in the outcome of this case to entitle the [respondent] to relief.” Ackley,

.

                                        III. CONCLUSION

       As explained, respondent was denied the effective assistance of counsel. We do not reach
respondent’s other claims on appeal. Accordingly, we vacate the trial court’s decision to admit
BC’s tender-years statements, the order of adjudication, as well as the order terminating
respondent’s parental rights. We remand the case for new proceedings, including a new tender-
years hearing should the Department again seek to introduce BC’s out-of-court statements under
MCR 3.972(C)(2).

       Vacated and remanded for further proceedings. We do not retain jurisdiction.

                                                               /s/ Brock A. Swartzle
                                                               /s/ Amy Ronayne Krause
                                                               /s/ Kristina Robinson Garrett




                                                 -15-