11.3Abrogation of Privileges in Child Protective Proceedings

“MCL 722.631 governs privileges in child protective proceedings.” MCR 3.901(A)(3). MCL 722.631 states:

“Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy^[1] in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made or for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to [the Child Protection Law]. This section does not relieve a member of the clergy from reporting suspected child abuse or child neglect under [MCL 722.623] if that member of the clergy receives information concerning suspected child abuse or child neglect while acting in any other capacity listed under [MCL 722.623].”

“[A] communication [between a member of the clergy and a church member] [was] within the meaning of ‘similarly confidential communication’ when the church member d[id] not make an admission, but ha[d] a similar expectation that the information [would] be kept private and secret.” People v Prominski, 302 Mich App 327, 328, 336-337 (2013) (where the parishioner “went to [her pastor] ‘for guidance[ and] advice’” to discuss “her concerns that her husband was abusing her daughters” and “‘expected that the conversation be kept private[,]’” the parishioner’s communication with the pastor was a confidential communication as contemplated by MCL 722.631, and the pastor was not required to report the suspected child abuse under the mandatory reporting statute, MCL 722.623(1)(a)).

Abrogation of privileges under MCL 722.631 does not depend on whether the person initiating the child protective proceeding was required to report the suspected abuse, or whether the proffered testimony directly addresses the abuse or neglect that gave rise to the protective proceeding. In re Brock, 442 Mich 101, 116-120 (1993) (physician and psychologist were permitted to testify concerning a parent’s past history of mental illness despite the fact that a neighbor reported the suspected neglect that gave rise to the proceeding). See also MCR 3.973(E)(1), which states in relevant part that, “as provided by MCL 722.631, no assertion of an evidentiary privilege, other than the privilege between attorney and client, shall prevent the receipt and use, at the dispositional phase, of materials prepared pursuant to a court-ordered examination, interview, or course of treatment.”