                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                   UNPUBLISHED
In re CAW and EDGW, Minors.                                        February 14, 2017

                                                                   No. 333682
                                                                   Wayne Circuit Court
                                                                   Family Division
                                                                   LC No. 16-000117-AO


Before: WILDER, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

       Petitioners, proceeding in propria persona, appeal as of right a circuit court order
denying their § 45 challenge, MCL 710.45, to the decision of the Michigan Children Institute’s
superintendent withholding consent to adopt, and dismissing petitioners’ petition to adopt the
two minor children. We affirm.

                               I. FACTS AND PROCEEDINGS

        Petitioners are the maternal grandmother and step-grandfather of the two minor children.
The children were removed from their mother’s custody in a prior child protection proceeding
because of ongoing physical abuse inflicted by their mother’s boyfriend. Petitioners offered their
home as a placement setting for the children in the prior proceeding. Their request was denied,
in part, because petitioner GP had been placed on Child Protective Services (CPS) Central
Registry for an incident of abuse against the minor children’s mother, AW, in 2003, when AW
was a teenager, which resulted in GP’s conviction of fourth-degree child abuse. In addition,
there were concerns that petitioners did not fully acknowledge AW’s responsibility for the
children’s abuse, and the children’s therapist recommended against contact with relatives due to
the trauma the children had suffered from their exposure to abuse. Therefore, the children were
placed in non-relative foster care.

       The parental rights of AW were eventually terminated in June 2015.1 Petitioners
subsequently filed a petition with respondent, the Michigan Children’s Institute (MCI),
requesting the MCI superintendent’s consent to their adoption of the minor children. Following


1
 This Court affirmed that decision in In re Wilson, unpublished opinion per curiam of the Court
of Appeals, issued May 26, 2016 (Docket No. 328388).


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an investigation, the superintendent denied petitioners consent to adopt.2 Petitioners requested a
§ 45 hearing in circuit court, MCL 710.45, to challenge the superintendent’s decision. Following
a hearing, the circuit court found that the superintendent’s decision to withhold consent to adopt
was not arbitrary or capricious, and therefore, denied petitioners’ motion and dismissed their
petition to adopt. Petitioners appeal that decision.

                II. REVIEW OF THE MCI SUPERINTENDENT’S DECISION

       Petitioners argue that the circuit court’s decision denying their § 45 challenge was the
product of judicial bias and misconduct, as well as the court’s misunderstanding and
misapplication of the applicable law. We disagree.

        MCL 710.45(2) provides that if an adoption petitioner is denied consent to adopt, “the
petitioner may file a motion with the court alleging that the decision to withhold consent was
arbitrary and capricious.” “Unless the petitioner establishes by clear and convincing evidence
that the decision to withhold consent was arbitrary and capricious, the court shall deny the
motion . . . and dismiss the petition to adopt.” MCL 710.45(7). Thus, “[p]ursuant to MCL
710.45, a family court’s review of the superintendent’s decision to withhold consent to adopt a
state ward is limited to determining whether the adoption petitioner has established clear and
convincing evidence that the MCI superintendent’s withholding of consent was arbitrary and
capricious.” In re Keast, 278 Mich App 415, 423; 750 NW2d 643 (2008). Whether the circuit
court properly applied this standard is a question of law, which this Court reviews for clear legal
error. Id.

       Because petitioners did not move for the circuit court judge’s disqualification or
otherwise raise the issue of judicial bias or misconduct before the circuit court, these claims are
not preserved. See MCR 2.003(D); People v Jackson, 292 Mich App 583, 597; 808 NW2d 541
(2011). Accordingly, we review the unpreserved claims for plain error affecting petitioners’
substantial rights. Id.

        When reviewing the MCI superintendent’s decision, “if there exist good reasons why
consent should be granted and good reasons why consent should be withheld, it cannot be said
that the representative acted arbitrarily and capriciously in withholding that consent even though
another individual . . . might have decided the matter in favor of the petitioner.” In re ASF, 311
Mich App 420, 436; 876 NW2d 253 (2015), quoting In re Cotton, 208 Mich App 180, 185; 526
NW2d 601 (1994). The generally accepted meaning of “arbitrary” is “determined by whim or
caprice,” or “arrived at through an exercise of will or by caprice, without consideration or
adjustment with reference to principles, circumstances, or significance, . . . decisive but
unreasoned.” Goolsby v Detroit, 419 Mich 651, 678; 358 NW2d 856 (1984) (quotation marks
and citations omitted). The generally accepted meaning of “capricious” is “[a]pt to change
suddenly; freakish; whimsical; humorsome.” Id. (quotation marks and citations).



2
  The superintendent later granted a competing application for consent to adopt filed by the
children’s foster parents.


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         Petitioners argue that the circuit court “abused [its] discretion” and improperly believed
that it “didn’t have any discretion in making a decision based on [its] faulty interpretation of the
legislature[’]s intentions of the law.” The record discloses that the circuit court accurately
recited the governing standard. Indeed, its recitation of the law is a nearly verbatim statement of
the applicable legal standard set forth in this Court’s decision in In re ASF, 311 Mich App at 436.
The court properly acted within the narrow confines of MCL 710.45. It did not have discretion
to revisit the superintendent’s decision based on its own evaluation of the evidence, or based on a
finding that the superintendent should have subjected the foster parents to greater scrutiny. The
circuit court also did not have discretion or authority to require the superintendent to compare the
foster family and petitioners on an equal basis. The superintendent was not required to start with
a presumption of equality between petitioners and the foster family; rather, she was prohibited
from deciding the matter arbitrarily (by whim or caprice) or capriciously (freakish or apt to
change suddenly). See MCL 710.45(7); Goolsby, 419 Mich at 678; In re ASF, 311 Mich App at
436. The record discloses that the circuit court properly confined its review to whether the MCI
superintendent withheld consent for reasons that were arbitrary and capricious.

         The superintendent explained that she denied petitioners’ request for consent to adopt
because moving the children out of a stable home, where they had begun to recover from the
trauma of their abusive home, and where they had formed attachments with the foster parents,
would be traumatic and disruptive for the very young children. This decision was not whimsical;
it was based on reports by social workers and therapists who had been in contact with the
children and the foster family. Moreover, the superintendent testified that she also gave weight
to petitioner LP’s equivocations regarding her daughter AW’s failure to protect the children, and
to petitioner GP’s past incident of abuse against AW. These facts raised reasonable concerns
about the children’s possible contact with their mother, and the concern that GP might lose
control of his temper as he did with his AW. The superintendent’s testimony established that
good reasons for denying consent to adopt existed. See In re ASF, 311 Mich App at 436.

        Petitioners assert that the circuit court judge was unprofessional, that he repeatedly
expressed his dislike of adoption cases, and that he was biased in respondent’s favor. A party
“claiming judicial bias must overcome a heavy presumption of judicial impartiality.” Jackson,
292 Mich App at 598 (internal quotation marks and citation omitted). “[A] trial judge’s remarks
made during trial, which are critical of or hostile to counsel, the parties, or their cases, ordinarily
do not establish disqualifying bias.” In re MKK, 286 Mich App 546, 567; 781 NW2d 132
(2009). Bias is not established “merely by repeated rulings against a litigant, even if the rulings
are erroneous.” Id. at 566.

        We have reviewed the challenged conduct and comments by the circuit court judge and
find no indication that he was biased or partial against petitioners or in favor of respondent.
Although the judge candidly admitted his discomfort with competing adoption cases, there is no
indication that he was partial to one side or the other, or inattentive to this case. On the contrary,
the judge was fully engaged in the hearing. He actively addressed the attorneys’ arguments,
even when they became redundant. Viewed in context, the judge’s comments about his
displeasure with adoption cases pertained to the emotionally charged nature of the proceedings
and the recognition that his decisions in such cases are difficult because children’s futures are at
stake. The judge’s comments reflect conscientiousness, not indifference.


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        The circuit court judge’s conduct and remarks do not evince bias against petitioners or in
favor of respondent. The judge gave petitioners substantial leeway in allowing their counsel to
question the MCI superintendent outside the narrow scope of the arbitrary and capricious
inquiry. The judge demonstrated patience with petitioners’ counsel’s repeated arguments that
the arbitrary and capricious standard allowed him to delve into the details of the superintendent’s
investigation. The instance in which the judge invited an objection on respondent’s behalf, but
respondent’s counsel replied that she had no objection, involved petitioners’ questions to the
superintendent regarding information obtained from the guardian ad litem, which implicated the
attorney-client privilege. The judge did not overrule petitioners’ objections to respondent’s
opening remarks based on “professional courtesy.”             Rather, he rejected petitioners’
characterization of the argument as “eliciting testimony,” and replied that the attorneys have
substantial freedom in opening statements. Regardless, the trial was not a jury trial, so there was
no danger of a jury confusing arguments with evidence.

       In sum, the record does not support petitioners’ claims that the circuit court improperly
applied the law, or that its decision was the product of judicial bias or misconduct.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Petitioners argue that the attorney who represented them at the outset of this case, and the
attorney who assumed their representation, committed numerous errors that amounted to
ineffective assistance of counsel. Petitioners seek a new trial on that basis. The question
whether ineffective assistance of counsel is grounds for relief in an adoption case is a question of
law, which is reviewed de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).

        In the criminal context, a defendant may obtain relief from a conviction if the
performance of defense counsel “was so objectively deficient that counsel was not performing as
the attorney guaranteed by the constitution.” People v Orlewicz, 293 Mich App 96, 107-108;
809 NW2d 194 (2011). The relationship between a criminal defendant’s constitutional right to
liberty, and the concept of ineffective assistance as grounds for relief in a criminal case, is
reflected in our Supreme Court’s decision in People v Trakhtenberg, 493 Mich 38; 826 NW2d
136 (2012). In Trakhtenberg, the Supreme Court held that the doctrine of collateral estoppel did
not preclude a criminal defendant from raising a claim of ineffective assistance of counsel in a
criminal matter although that defendant had failed to prevail in a legal malpractice action against
the attorney in a related civil case. Id. at 50-51. The Supreme Court held that a “defendant’s
interest when pursuing his civil malpractice claim differed from his interest in asserting his
constitutional right to effective counsel in the criminal proceeding.” Id. at 51. The Court
explained that the defendant “sought monetary gain in the malpractice case, whereas in his
criminal case he seeks protection of a constitutional right and his liberty.” Id.

        The criminal law concept of ineffective assistance of counsel applies by analogy to child
protection proceedings. In re J R Martin, ___ Mich App ___; ___ NW2d ___ (2016) (Docket
Nos. 330231; 330232); slip op at 5. The basis for applying the concept of ineffective assistance
of counsel to child protection proceedings is the recognition that “ ‘[p]arents have a significant
interest in the companionship, care, custody, and management of their children, and the interest
is an element of liberty protected by due process.’ ” In re Sanders, 495 Mich 394, 409; 852
NW2d 524 (2014), quoting In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003).

                                                -4-
         The constitutional interests arising from criminal prosecutions and child protection
proceedings do not apply to this case. Unlike parents, grandparents do not have a fundamental
right to a relationship with their grandchildren. Brinkley v Brinkley, 277 Mich App 23, 31; 742
NW2d 629 (2007). In Brinkley, a case involving grandparents’ right to visitation with their
grandchildren, this Court noted that MCL 722.27b, which limits the circumstances in which
grandparents can petition for visitation, was amended to correct constitutional deficiencies in the
prior version of the statute. Id. at 32. The prior version was constitutionally defective because it
infringed upon “the parents’ fundamental right to manage the upbringing of their children.” Id.
When parental rights have been terminated, as occurred in this case, there is no longer a conflict
between the rights of parents and the interests of grandparents. Because petitioners do not have a
constitutionally protected interest in their right to a relationship with the minor children, there is
no basis for applying the concept of ineffective assistance of counsel to their legal representation
in this adoption case. Accordingly, we reject petitioners’ request for relief on this ground.

                       IV. ACCUSATIONS OF UNETHICAL CONDUCT

        Petitioners accuse the MCI superintendent, the children’s guardian ad litem, and the
foster parents of improper and unethical misconduct. These claims are without merit.

       Petitioners contend that the MCI superintendent fabricated evidence and presented false
testimony. Although petitioners questioned the foundation for some of the superintendent’s
conclusions, there is no indication that the superintendent fabricated evidence or presented false
evidence. The superintendent explained what documents and evidence she consulted, and which
items she considered important. The superintendent candidly admitted that she did not conduct
an in-depth investigation of all of petitioners’ circumstances. She explained that maintaining the
continuity of the children’s placement with their foster parents weighed against placing them
with petitioners. The superintendent was not inconsistent in her testimony regarding petitioner
LP’s health problems or petitioner GP’s CPS history and expunged conviction. The
superintendent testified that petitioner LP’s cancer was not a significant consideration in her
decision to withhold consent to adopt because it was in remission. The superintendent did not
contradict herself on this matter. The superintendent stated that she did not place a lot of
emphasis on petitioner GP’s prior conviction for child abuse, but explained that the incident was
of some concern because it was reflective of his ability to control his temper.

       Petitioners’ accusations against the children’s GAL primarily involve an unrelated case in
which the attorney was involved as a party. Petitioners have not shown that these accusations
have any relevancy to this case. Likewise, petitioners’ remaining accusations against the GAL
and against the foster parents have no relevance to the determination whether the MCI




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superintendent’s decision denying petitioners’ request for consent to adopt was arbitrary and
capricious.

       Affirmed.



                                                         /s/ Kurtis T. Wilder
                                                         /s/ Mark J. Cavanagh
                                                         /s/ Kirsten Frank Kelly




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