Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Brent

The trial court did not plainly err in admitting photos of the respondents-parents’ home that were taken by CPS investigators or in excluding photos depicting respondents’ improvements to the home after their children were removed, the court affirmed the trial court’s order asserting jurisdiction over the children pursuant to MCL 712A.2(b). The court noted that the trial court later returned the children to respondents’ custody and terminated its jurisdiction over the children. While the petitioner-DHS moved to dismiss on the basis the appeal was moot since the children were no longer subject to the trial court’s jurisdiction, the court previously denied the motion. Respondents argued, inter alia, that the photos taken by CPS investigators were taken without their knowledge or consent in violation of their Fourth Amendment rights, MCL 750.539d, and the DHS’s internal policies. Reviewing the Fourth Amendment claim for plain error, the court noted that there was no factual record as to this issue because respondents failed to raise it in an appropriate motion to suppress. Without an appropriate record to review, the court was unable to find a plain error. Also, the CPS investigator testified at trial that the photos were taken with respondents’ knowledge and without their objection. The court could not conclude based on this record that their Fourth Amendment rights were violated. As to the alleged violation of MCL 750.539d (a criminal statute), the court noted that it was unclear whether the CPS investigators took the photos without respondents’ consent and thus, in violation of the statute. Further, even if the statute was violated, it did not prohibit the admission of the photos into evidence. “Because the statute does not contain any exclusionary provision, suppression of the photographs was not required.” The court also was unable to determine whether the DHS’s alleged internal policy precluded photos taken in violation of the policy from being used as evidence in child protective proceedings. Thus, this argument did not provide a basis for relief.

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