(dissenting). The "initial phase wherein the [probate] court acquires jurisdiction”1 of a child is critical. Once a probate court acquires jurisdiction, its decision at the dispositional phase *121is largely screened from appellate review.2 therefore disagree with the effort of the majority to minimize the significance of the jurisdictional phase.
Custody of a child, found at the jurisdictional stage to have been sexually abused by a parent, will not — viewed realistically — be restored to the parent at the dispositional phase.
The United States Supreme Court has said that the liberty interest of parents in the care, custody, and management of their children, requires fundamentally fair procedures when the state seeks to deprive them of their parental rights.3 It is therefore beside the point that parental rights termination proceedings are not criminal proceedings, and thus parents may not invoke the Confrontation Clause.4 The Due Process Clause requires a "hearing” when the state seeks to terminate parental rights.5
*122The United States Supreme Court has said that "[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”6 (Emphasis added.)
The United States Supreme Court has also said that where the "evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy,” the right to show that the testimony is untrue depends on cross-examination. The Court has observed that it has been "zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.”7 (Emphasis added.)_
*123After noting that both confrontation and cross-examination assure the integrity of the fact-finding process, the United States Supreme Court, in Coy v Iowa, 487 US 1012, 1020; 108 S Ct 2798; 101 L Ed 2d 857 (1988),8 said:
[F]ace-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.
Although Coy was a criminal prosecution, the rationale underlying the foregoing statement applies as well to the right of cross-examination in this case where the child made inconsistent statements at various times, including during the two video depositions.9
No case has been cited in which any court, in parental rights termination proceedings, has held that parents may be deprived of cross-examination on the basis of a prediction that the child will be traumatized by cross-examination, especially a prediction in the form of an opinion so clearly grounded in theory and not in experience. The Court of Appeals observed that "Lieutenant Presley stated that although she had never seen a child witness testify, she based her conclusion that *124complainant would suffer psychologically on information she had accumulated as a student.”10 (Emphasis added.)
Lt. Presley was not an independent expert, but one of the persons who first questioned the child after a report was made to the authorities that she had been sexually abused.
Lt. Presley’s testimony shows that her views were based on general assumptions about who is qualified to question a child alleged to have been sexually abused. Her assumptions are similar to the assumptions of the Iowa Legislature in enacting a statutory presumption that child victims of sexual abuse cannot endure in-court confrontation with their alleged abusers. That assumption was disapproved in Coy v Iowa, supra, where the United States Supreme Court said that there must be a showing of harm to the particular child by in-court confrontation before alternative out-of-court procedures may be employed to question the child. The requirement of a specific showing of harm was reiterated by the Court in Maryland v Craig, 497 US 836; 110 S Ct 3157; 111 L Ed 2d 666 (1990). Carefully read, Lt. Presley’s testimony is more general than it is specific respecting the child in the instant case.
In the case, cited by the majority, claimed to be factually most in point, In re James A, 505 A2d 1386, 1391 (RI, 1986), "the attorneys were asked to leave only when it was obvious that the child had become emotional.” (Emphasis added.) Here, the probate court ruled, before the child took the stand, that the parents’ lawyers could not cross-examine her. Because the court ruled before the child testified, there was no evidence that she had in fact been traumatized by direct examination by a lawyer who was an advocate for the people or by *125cross-examination by a lawyer who is an advocate for the parents.
In this regard, it is noteworthy that, in the instant case, the child, at the first interview, "denied that anyone had ever touched or hurt her pookey.”11 After the child had begun "therapy,” the probate court ordered a second interview, during which, the Court of Appeals said, there was "prodding.”12 In light of that pretrial history, the state cannot properly be heard to express concern, absent evidence other than an opinion grounded in theory, that lawyers13 would necessarily traumatize the child by questioning her.
The parents are entitled, as an aspect of due process, to cross-examination by their lawyer, an advocate, not by an "impartial” "trained” examiner, unless possibly if there were evidence that cross-examination by a lawyer had in fact resulted in the child being traumatized or unable to go on. And even then, the "trained” examiner should be one selected by the parents, not a "trained” examiner selected by the court. And, of course, paid for by the state when the parents are indigent.
The parents are entitled at least to cross-examination by a "trained” examiner who is an advocate for the parents, no less an advocate for the parents than the trained persons who before the trial "examined” the child for the state, who testified at the trial as advocates for the state. Cross-examination by an "impartial” person, a person who is not supposed to be an advocate, does not comport with the requirements of due process.
Finally, for the reasons set forth in the opinion *126of the Court of Appeals,14 I would affirm its decision that the child protection law15 does not abrogate the physician-patient privilege other than where a report of child abuse has been made pursuant to that law.
Ante, p 115.
In re Cornet, 422 Mich 274; 373 NW2d 536 (1985), adopting the clearly erroneous standard of appellate review for parental rights termination proceedings. See also In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989), reiterating that an appellate court should not reverse the findings of a trial court unless the findings are clearly erroneous.
Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). The Court disapproved New York’s parental termination standard that required a showing by a fair preponderance of the evidence to support a finding that a child had been permanently neglected. The Court concluded that a parent’s interest in a child was "fundamental” and therefore protected by the Due Process Clause. As a result, the state’s burden of proof was the heightened clear and convincing evidence standard, rather than a fair preponderance.
Ante, p 108.
Stanley v Illinois, 405 US 645, 649; 92 S Ct 1208; 31 L Ed 2d 551 (1972). The Court disapproved an Illinois ■ law that declared the children of unmarried fathers, upon the death of the mother, to be dependents, without a hearing on parental fitness and without proof of neglect, although such a hearing and proof were required before the state could assume custody of children of married or divorced parents or unwed mothers. The Court held that the law violated the Due Process Clause by assuming that unwed fathers were unsuitable and neglectful parents and that the father was entitled to a hearing under the Due Process Clause.
Goldberg v Kelly, 397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970) (welfare recipients were entitled to a hearing before termination of benefits). See also Interstate Commerce Comm v Louisville & Nashville R Co, 227 US 88, 93-94; 33 S Ct 185; 57 L Ed 431 (1913) (overturned a decision by the icc because the railroad did not have a hearing before the icc set aside certain class and commodity rates as being unreasonable); Willner v Committee on Character & Fitness, 373 US 96, 103-104; 83 S Ct 1175; 10 L Ed 2d 224 (1963) (the plaintiff, who had been denied admission to the New York bar, was entitled to a hearing at which he could confront and cross-examine witnesses).
Greene v McElroy, 360 US 474, 496-497; 79 S Ct 1400; 3 L Ed 2d 1377 (1959). The plaintiff was an aeronautical engineer employed by a private manufacturer that produced goods for the armed services. The Court struck down procedures, used to strip plaintiff of his security clearance based on his alleged Communist sympathies, because the procedures denied him access to much of the information adverse to him and denied an opportunity to cross-examine witnesses.
See also Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976). The Court held, under the Fifth Amendment, that the Due Process Clause required that recipients of Social Security disability benefits be provided an opportunity for an evidentiary hearing before benefits were terminated. The Court pronounced a multipronged test to determine how much process is due: the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used; the probable value, if any, of additional or substitute procedural safeguards; and the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
The Court held that an Iowa court procedure placing a screen between a child witness testifying in a sexual abuse case so that the witness could not see the defendant violated the defendant’s right to confrontation absent individualized findings that the particular child witness needs special protection.
A probate court proceeding, to acquire jurisdiction of a child on the basis that a parent abused the child, may be the prelude to a criminal prosecution. See People v Gates, 434 Mich 146; 452 NW2d 627 (1990), where this Court held that the principles of collateral estoppel do not bar the prosecution of a parent after the jury found no jurisdiction in a probate court parental rights termination proceeding.
193 Mich App 652, 655; 485 NW2d 10 (1992).
Id, p 656.
Id
In the instant case, the lawyers representing the parents were appointed by the probate court. Surely, the court appointed lawyers in whom it had confidence.
In re Brock, supra, p 666.
MCL 722.621 et seq.-, MSA 25.248(1) et seq.