Petition for children’s removal; Discovery; Children’s Advocacy Center (CAC) interview video recordings; MCR 3.922; Dismissal as a discovery sanction

The court affirmed the trial court's dismissal of "the case without prejudice on the basis that the DHHS violated MCR 3.922 when it did not produce the recordings" of forensic interviews of two of respondent-father's children to respondent. The DHHS argued “in the trial court and on appeal that it did not violate MCR 3.922 when it failed to produce the CAC interview recordings because (1) the recordings were not in its possession or control, and (2) petitioner, as a contract attorney, had no way to obtain possession of the recordings." The court found that “the trial court correctly acknowledged that the enforcement of MCR 3.922 is ‘a question of what you have in your possession.’” It concluded that a “review of the existing record makes clear that petitioner did not have possession of the video recordings in question. To the contrary, at the motion hearing, petitioner explained that it is the CAC’s policy not to release its recordings to the DHHS.” But the record supported “the trial court’s determination that law enforcement had possession of the recordings.” The court held that “the trial court did not abuse its discretion when it determined that law enforcement possessed the recordings, and the DHHS was therefore required to produce the recordings to respondent under MCR 3.922. It makes no difference that the DHHS used a contract attorney. The agency still must comply with its discovery obligations.” The DHHS next argued “that, to the extent that it violated MCR 3.922 and the trial court’s discovery order, the trial court abused its discretion when it ordered dismissal as a discovery sanction.” The court noted that the “trial court discussed on the record that the failure to produce the CAC videos was the only discovery violation. However,” it further “found that the DHHS had policies indicating that it was unable or unwilling to comply with the court rule, such that dismissal without prejudice was proper.” On this record, the court did “not conclude that the trial court’s decision to dismiss was ‘outside the range of reasonable and principled outcomes.’” The court found this was “particularly true when dismissal was made without prejudice, allowing the DHHS to refile its petition once it was able to produce the necessary CAC video recordings.”