Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  November 19, 2010                                                                        Marilyn Kelly,
                                                                                               Chief Justice

  140841                                                                            Michael F. Cavanagh
                                                                                      Maura D. Corrigan
                                                                                     Robert P. Young, Jr.
  In re CW, BW, and DW, Minors.                                                      Stephen J. Markman
  _________________________________________/                                         Diane M. Hathaway
                                                                                    Alton Thomas Davis,
  CW, BW, and DW,                                                                                   Justices
             Appellees,
  and
  VALERIU MARTIN and KAREN MARTIN,
           Petitioners-Appellants,
  v                                                       SC: 140841
                                                          COA: 292866
                                                          Genesee CC Family Division:
  DEPARTMENT OF HUMAN SERVICES,                           09-016660-AM
             Respondent-Appellee.
  _________________________________________/

          On October 7, 2010, the Court heard oral argument on the application for leave to
  appeal the February 16, 2010 judgment of the Court of Appeals. On order of the Court,
  the application is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting
  leave to appeal, we REVERSE the judgment of the Court of Appeals, for the reasons
  stated in the Court of Appeals dissenting opinion, we VACATE the June 8, 2009 order of
  the Genesee Circuit Court, Family Division, and we REMAND this case to the circuit
  court for further proceedings. On remand, the circuit court shall allow the petitioners to
  present relevant evidence in support of their claim that the Michigan Children’s Institute
  Superintendent’s decision to withhold consent to adopt the minor children was arbitrary
  and capricious. MCL 710.45(2). After admitting and considering this evidence, the
  circuit court shall determine whether the petitioners have established by clear and
  convincing evidence that the Superintendent’s decision was arbitrary and capricious.
  MCL 710.45(7). The circuit court shall expedite consideration of this matter, and shall
  issue an opinion to be filed with the Clerk of this Court within 56 days of the date of this
  order.

         We retain jurisdiction.

         CORRIGAN, J. (concurring).
                                                                                         2

       The petitioners in this adoption case, Valeriu and Karen Martin, voluntarily raised
the three subject children—two of them from birth—until the children were removed
from the Martins’ home for reasons that a Department of Human Services (DHS) hearing
officer later found baseless. The Michigan Children’s Institute (MCI) Superintendent
subsequently granted consent for a foster family, the Rabers, to adopt the children in part
because the children had bonded with the Rabers after they were wrongfully removed
from the Martins’ home. In making this decision, the Superintendent merely exchanged
an email with the children’s Lawyer Guardian Ad Litem (LGAL), who had requested a
meeting with him to explain why she believed the children’s best interests would be
served by adoption by the Martins. Moreover, at least one of the Superintendent’s
reasons for denying the Martins’ request for consent to adopt was inaccurate; and some
reasons weighing against his decision in favor of the Rabers’ request were not
investigated. As Judge SHAPIRO correctly recognized in his opinion dissenting from the
Court of Appeals majority decision, in reviewing the Superintendent’s decision under
MCL 710.45, the trial court incorrectly concluded that it was essentially powerless to
consider the accuracy of information relied on by the Superintendent or the nature of
facts he failed to consider. On the basis of this erroneous conclusion, the trial court
improperly declined to hear the Martins’ proffered testimony in their favor from social
workers and others familiar with the children.

                             FACTS AND PROCEEDINGS

       The Martins raised the three subject brothers, CW (DOB 11/16/01), BW (DOB
3/2/2004) and DW (DOB 11/11/2005), along with their older sister, AW (DOB 4/9/93),
because the children’s mother, a drug and alcohol user, could not care for them. After the
parental rights of the children’s parents were terminated, the Martins began the process to
adopt them.

       But on April 23, 2007, before completion of the adoption, Child Protective
Services (CPS) received a complaint alleging that Karen Worden, a developmentally
disabled adult who lived with the Martins, had been outside the home “screaming” at and
spanking DW, who apparently was trying to crawl out of his stroller near the street. At a
May 24, 2007 meeting in which the Martins participated, DHS staff stated that the
complaint would not be substantiated. The Martins were thus authorized to complete the
adoption process. Nonetheless, shortly after, at a June 13, 2007 internal meeting, Ingham
County DHS Director Susan Hall ordered all four children removed from the Martins’
home. The children were placed in foster care with the Rabers. AW, who is now 17 and
whose adoption is not at issue, consistently ran away from the Rabers and back to the
Martins. She was placed back with the Martins.

      Worden moved out of petitioners’ house on June 21, 2007. The Martins appealed
the removal of the children to the Foster Care Review Board (FCRB), but the FCRB
dismissed the appeal because the DHS had placed the Martins on the Child Abuse and
                                                                                         3

Neglect Central Registry as a result of the incident involving Worden. The Registry
listing precluded the children from being returned to the Martins and also rendered them
ineligible to adopt.

       The Martins immediately requested a DHS hearing to contest the Registry listing.
Their repeated requests apparently went unheeded for at least a month. Finally, DHS
administrative proceedings commenced before a hearing officer, culminating in a final
hearing that took place on September 29, 2008, over one year after the children had been
removed from the Martins’ home. In a November 5, 2008 decision, the hearing officer
expunged the Martins’ names from the Registry after ruling that the DHS had not proved
that they or Worden had abused or neglected any of the children. The hearing officer
observed that the sole basis for the Registry listing was the Martins’ alleged failure to
protect the children from Worden, yet DW had not been injured during the April 2007
incident and, although there were prior CPS complaints against Worden, none had ever
been substantiated. The hearing officer further stressed that, after the CPS complaint was
brought to the Martins’ attention, they agreed to refrain from permitting Worden to
supervise the children and “no evidence was presented to show that the Martins had
failed to follow through on the agreement.” The hearing officer added that “everyone
who was involved with the family noted the bonding that the Martins had with the
children, and none of the mandated reporters [including doctors and therapists] expressed
any concern about the care the children were receiving.”

      In light of the hearing officer’s favorable ruling, the children’s LGAL requested
placement of the boys back with petitioners for purposes of adoption. But the boys
remained with the Rabers and the MCI Superintendent had already granted consent for
the Rabers to adopt them. The Superintendent then rescinded his decision in favor of the
Rabers in order to allow both families to seek adoption. But, after an investigation of the
Martins, he denied the Martins’ request and again granted the Rabers’ request.

       In a 2½-page decision, the Superintendent concluded that, although removal of the
children from the Martins might have been in error, it was not in the children’s best
interests to be removed from the Rabers’ home where they had lived and formed stable
connections since June 2007. He cited factors including that the Rabers were able to
meet the children’s special needs whereas the Martins’ “ability to meet the developmental
needs of these children was inadequate.” He also opined that the Martins “failed to
recognize the risk to the children of being cared for by Ms. Worden” and had regularly
allowed Worden to watch the children—while being untruthful to DHS workers about
it—although the DHS had instructed them not to do so. Further, the Martins failed to
fully cooperate with the DHS; they were often hostile and failed to provide information
necessary to move forward with the adoption. Finally, because the children had been
placed with the Martins as fictive kin, the Martins were never licensed as a foster home
and further delay for licensing was contrary to the children’s need for permanency.
                                                                                         4

        Petitioners moved for court review of the Superintendent’s decision under MCL
710.45, arguing that his decision was based on inaccurate and incomplete information
and alleging that he had blindly deferred to the recommendations of local DHS officials.
The Superintendent testified that he had reviewed records and had spoken to certain DHS
staff, including the workers assigned to oversee the children while placed with the
Rabers, and the supervisor who had opposed expungement of the Martins’ names from
the Registry before the hearing officer. He also spoke to the children’s former LGAL.
He had found it unnecessary to speak with the Martins or with AW, with whom the boys
were bonded, in making his decision. He also had not spoken to doctors or therapists—
nor had he reviewed medical records—from the time when the Martins cared for the
children. It appears that, although he did not speak to the current LGAL or permit her to
attend DHS meetings, he received her recommendation in favor of petitioners.

       The Martins made an offer of proof outlining additional testimony that the
Superintendent ignored significant evidence in their favor as well as evidence refuting his
positive findings about the Rabers. For example, AW would testify that the Rabers both
worked full time and “provided minimal care to the younger children,” that her brothers
appeared to deteriorate physically and mentally after placement with the Rabers, and that
the Rabers were antagonistic toward AW having contact with her brothers. The Martins
also offered the testimony of a DHS foster care worker who would address “the ongoing
educational, behavioral, and sociological issues experienced by the [children] since being
removed from the Martin home.” A DHS caseworker assigned to the children when they
lived with the Martins would further testify that the Superintendent’s facts and
conclusions concerning the Martins’ care of the children were “flat-out wrong, incorrect,
and baseless.” She would opine that the Martins “did a fine job of meeting the special
needs of the . . . children and that Karen Martin had dedicated herself to doing so on a
nearly fulltime basis.” Health care providers would testify that petitioners provided
“exemplary care” and, when the children were placed with them, the children suffered
from “none of the educational or psychological conditions which require strong
psychotropic medications currently being provided . . . while in the Rabers’ care.” An
MCI consultant would testify that reports prepared for the Superintendent included
“patently false and incorrect” information concerning CPS complaints and care of the
children by petitioners. Finally, the Martins offered other testimony negatively
characterizing the Rabers’ qualifications as caregivers for the three special needs
children.

       The judge refused to admit the proffered evidence and dismissed the Martins’
petition for review. Although the judge was sympathetic to the Martins’ plight and stated
that the events of the case “made [her] sick,” she opined that the proffered evidence was
irrelevant because the court could not consider whether the Superintendent’s decision
was right or wrong, or even whether it was based on “bad” information given to him.
Rather, the court could only consider whether the decision seemed “reasoned.”
                                                                                        5

       The Martins appealed in the Court of Appeals. A majority affirmed over Judge
SHAPIRO’s dissent. The majority expressed some concern about the Superintendent’s
“limited” investigation of the Martins’ abilities to meet the children’s developmental
needs. In re CW, BW and DW, Minors, unpublished opinion per curiam of the Court of
Appeals, issued February 16, 2010 (Docket No. 292866), at 3. But the majority opined
that the Martins’ offer of proof with regard to this issue “was insufficient for the trial
court to have concluded that there were no good reasons for [the Superintendent] to have
withheld consent.” Id. at 4.

       Judge SHAPIRO disagreed, stressing that the court’s duty required it to evaluate
whether the Superintendent’s articulated reasons were made with consideration for the
children’s individual circumstances and thus whether his reasons were valid in light of
the facts of the case. Judge SHAPIRO further concluded that the excluded evidence could
have changed the outcome. In particular, evidence of the Martins’ ability to meet the
children’s needs and of the children’s alleged decline since placement with the Rabers
was directly relevant to whether the Superintendent’s decision was well reasoned. The
Martins’ evidence might also refute the Superintendent’s assumption that petitioners
continued (or would continue) to permit Worden to have contact with the children. The
Superintendent’s focus on the children’s current bond with the Rabers, moreover, was at
odds with their current LGAL’s conclusion that adoption by the Martins was in their best
interests and with the fact that adoption by the Rabers meant splitting them permanently
from AW.

        Finally, Judge SHAPIRO opined that the Superintendent “glosse[d] over” the “crux
of the issue in this case,” which was the erroneous Registry listing and the Martins’
successful efforts to have their names expunged. He asserted that the Martins, “having
done nothing wrong and doing everything within their power to fix an error that was not
theirs, find themselves not only without custody of the three children they have raised
since the children were two years old or younger, but also without recourse.”
Accordingly, “[a]t the very least,” they should have been permitted to present all their
evidence. In re CW, supra, SHAPIRO, J., dissenting, at 4.

                                  DISCUSSION

       The MCI Superintendent “has the power to make decisions on behalf of” children
who are wards of the state, MCL 400.203(2), including the authority to consent to
adoption. MCL 400.209(1). If the superintendent denies a petitioner’s request for
consent to adopt, the petitioner may file a motion with the court alleging that the
superintendent’s decision was arbitrary and capricious. MCL 710.45(2). The court must
determine whether the petitioner has shown by clear and convincing evidence that the
decision was arbitrary and capricious. MCL 710.45(7) & (8); In re Cotton, 208 Mich
App 180, 185-187 (1994). This Court has stated on the basis of United States Supreme
Court jurisprudence:
                                                                                        6


             “Arbitrary is: ‘ “[W]ithout adequate determining principle * * *
      Fixed 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.” ’

            “Capricious is: ‘ “[A]pt to change suddenly; freakish; whimsical;
      humorsome.” ’ [Goolsby v Detroit, 419 Mich 651, 678 (1984) (citations
      omitted.]

“Capricious” also means being “subject to, led by, or indicative of caprice or whim.”
“Caprice,” in turn, may refer to “a tendency to change one’s mind without apparent or
adequate motive.” Random House Webster’s College Dictionary (2nd ed). This Court
has further acknowledged that bad faith is not a necessary element of arbitrary conduct.
Rather, under some circumstances, arbitrariness may be evident in proof that an act was
undertaken “‘in a perfunctory fashion’” or on the basis of ignorance of facts directly
bearing on the matter. Goolsby, 419 Mich at 669, quoting Milstead v International
Brotherhood of Teamsters, Local Union No 957, 580 F2d 232, 235 (CA 6, 1978).

        The lower courts relied on the Court of Appeals opinion in In re Cotton, 208 Mich
App 180, to conclude, in the words of the trial judge, that a petitioner’s burden under
MCL 750.45 is “almost impossible.” The Court of Appeals opined that the evidence
proffered by the Martins was essentially irrelevant because it “was insufficient for the
trial court to have concluded that there were no good reasons for [the Superintendent] to
have withheld consent.” In re CW, supra at 4. To support this conclusion, the Court of
Appeals cited In re Cotton, 208 Mich App at 185, for the proposition that “it is the
absence of any good reason to withhold consent, not the presence of good reasons to
grant it, that indicates that the representative was acting in an arbitrary and capricious
manner.”

       But the tribunals misinterpreted In re Cotton in this regard, thus effectively
rendering their review under MCL 750.45 meaningless. The oft-cited portion of In re
Cotton was primarily aimed at refuting the narrow question posed in that case: whether
the Legislature intended for a reviewing court to decide adoption issues de novo “and
substitute its judgment for that of the representative of the agency that must consent to
the adoption.” Id., 208 Mich App at 184. In re Cotton did not establish, as the lower
courts appear to conclude, that the Superintendent’s decision must be affirmed as long as
it appears facially reasoned, without regard to the accuracy of the facts or the
thoroughness of the investigation, as long as a single “good” reason supports the
decision. To the contrary, as In re Cotton explicitly suggested, a reviewing court may
address whether the bases for his decision are “without factual support.” Id. at 186.
                                                                                          7

       The Court of Appeals further illustrated this concept in In re Keast, 278 Mich App
415, (2008), in which the petitioner argued that the Superintendent’s decision denying
consent was based on “selected and edited reports” and the bias of a DHS worker. Id. at
422, 433. The trial court in Keast took testimony and carefully reviewed the factual
bases for the Superintendent’s reasoning in resolving this claim and, in turn, the appellate
panel reviewed the record in detail to conclude that no facts supported the allegation that
DHS staff were biased. Id. at 433, 434. The panel also reviewed the record in detail
before concluding that the Superintendent’s reasons were supported by facts in the
record. Id. at 430. The panel ultimately ruled that the Superintendent’s decision “was
supported by the documentation provided to him as well as by his independent
investigation and it was not arbitrary or capricious.” Id. at 435.

       Many other Court of Appeals panels have similarly concluded that the accuracy
and completeness of facts underlying a Superintendent’s decision are necessary for court
review under MCL 750.145. Most notable in this regard is In re CLH, unpublished
opinion per curiam of the Court of Appeals, issued June 3, 2003 (Docket No. 244877),
quoted by Judge SHAPIRO. The panel in In re CLH observed that reviewing a decision
for whether it was arbitrary and capricious requires considering whether the articulated
reason for denying consent “was made without consideration of the child’s individual
circumstances” and this “entails examination of whether [the] reason was invalid in light
of the evidence.” Id. at 3. “Otherwise,” said the panel, “review of an agency
representative’s decision under MCL 710.45(5) would amount to nothing more than a
rubber stamp of whatever reason the representative articulated, and the statutory review
procedure would be illusory.” Id. Compare In re Greenwood, unpublished opinion per
curiam of the Court of Appeals, issued August 26, 2008 (Docket No. 277366), at 4
(“[W]hether the superintendent had before him a complete evaluation of the
circumstances of the children, in advance of his adoption decision,” is relevant to whether
his reasons for denying consent “were valid in light of the specific circumstances of the
children” and thus to whether his decision was arbitrary and capricious.); In re Eckles,
unpublished opinion per curiam of the Court of Appeals, issued September 24, 2004
(Docket No. 252893), at 7 (The trial court properly rejected the Superintendent’s decision
denying consent where his reason was factually unfounded.).

       The lower courts here wrongly concluded that the accuracy and completeness of
the facts underlying the Superintendent’s decision were irrelevant to review of his
decision. And the Martins’ proffered evidence directly refuted the facts underlying the
Superintendent’s reasons for denying consent and supported an argument that his
investigation of the Martins was perfunctory.1 Most notably, even the existing record

1
  On this point, I acknowledge that the Superintendent bears a heavy investigative
burden; he testified that he is required to grant or deny requests for consent to adopt in
250 to 275 contested cases every year. When making his decisions, the Superintendent
certainly may rely in part on DHS reports which he reasonably believes to be accurate.
                                                                                         8

clearly confirms that the Superintendent had no factual basis for his conclusion that the
Martins’ “ability to meet the developmental needs of these children was inadequate.”
Rather, the record showed that the Martins had successfully cared for the children—each
of whom had special needs and required weekly doctor and therapist appointments—
when the children lived with them. The Martins’ offer of proof also suggests that the
children had no need of psychotropic medications while under the Martins’ care. Further,
the Superintendent’s failure to speak to doctors, teachers, the Martins or AW about the
boys’ alleged deterioration since their placement with the Rabers undermines his
conclusion that the children’s interests were comparatively better served by placement
with the Rabers. It is also notable that the Superintendent appears not to have
meaningfully consulted with the children’s current LGAL, who strongly supported
placement with the Martins and offered her input to the Superintendent. MCL
400.204(2) expressly provides that the LGAL and the Superintendent “shall consult with
each other” if the LGAL “has an objection or concern” with regard to the child’s
placement or permanency planning.

        Because the lower courts misunderstood their review function—and because the
Martins’ offer of proof was directly relevant to whether the Superintendent’s decision
was arbitrary and capricious as a result of a perfunctory investigation or based on
factually unsupported reasons—I concur in the order remanding for the trial court to
revisit its decision after considering the Martins’ proffered evidence.

      KELLY, C.J., joins the statement of CORRIGAN, J.

      YOUNG, J. (dissenting).

       I dissent from the Court’s order reversing the decisions of the lower courts. The
Michigan Children’s Institute Superintendent’s decision to withhold consent to adopt was
not arbitrary and capricious. Therefore, there is no need to remand for an evidentiary
hearing. The Superintendent provided valid justifications for withholding consent;
specifically, that the children’s best interests were served by keeping them in the home of
the family with whom they developed close psychological bonds and a stable familial
relationship. The relevant statute, MCL 710.45, requires nothing more. I would deny
leave to appeal.

       The children in this case lived with the Martin family from a very young age until
June, 2007. At that time, the Ingham County Department of Human Services removed
the children from the Martins’ care and placed them with the Raber family. Although it
was later determined that the basis for removing the children was incorrect, the children
remained with the Rabers. In early 2009, the Superintendent withheld consent from the

But mere uncritical reliance on DHS reports does not fulfill his statutory duty to make
these decisions as the guardian of wards of the state. MCL 400.203(1).
                                                                                           9

Martins to adopt the children and instead granted consent to the Rabers, with whom the
children continue to reside. Among other reasons given, the Superintendent withheld
consent from the Martins because the Martins were not licensed to operate a foster home
nor were they approved as an adoptive home, the children had established close
psychological bonds to the Rabers, and the children had formed a stable familial
relationship with the Rabers.

      Parties who wish to challenge the Superintendent’s decision to withhold consent to
adopt may do so by bringing a motion before the trial court. A petitioner bringing such a
motion bears a heavy burden. The motion must include the specific reasons why the
Superintendent’s decision was arbitrary and capricious,2 and, unless the evidence is clear
and convincing, the court “shall deny” the challenger’s motion.3

        A decision is arbitrary if it is made “[w]ithout adequate determining principle . . .
Fixed 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.”4 Capricious decisions are “[a]pt to change suddenly; freakish; whimsical;
humorsome.”5 Reviewing courts do not determine whether the Superintendent’s decision
to withhold consent was correct.6 Rather, the inquiry is limited to whether the
Superintendent acted arbitrarily and capriciously in deciding to withhold consent.7 As a
result, judicial review of the Superintendent’s decision is highly deferential. Not only
must a challenging party demonstrate that the decision was arbitrary and capricious, they
must do so by clear and convincing evidence.8

       The evidence adduced at the trial court demonstrates that the Superintendent’s
decision was supported by valid justifications that considered the individual
circumstances of the children. At the time the Superintendent made his decision, the
children, all under age ten, had been living with the Rabers for nearly two years,
2
    MCL 710.45(2).
3
    MCL 710.45(7) (emphasis added).
4
 Goolsby v City of Detroit, 419 Mich 651, 678 (1984) (quotation marks and citation
omitted).
5
    Id. (quotation marks and citation omitted).
6
    In re Cotton, 208 Mich App 180, 184 (1994).
7
    Id.
8
    MCL 710.45(7).
                                                                                                                 10

and had “formed a stable relationship,” and established “close psychological
connections” with the Rabers. The Superintendent also noted that the Martins did not
have a license to operate a foster home and the licensing process would delay
permanency for the children. The Superintendent’s decision to withhold consent to adopt
was premised upon the children’s psychological well-being and stability. Rather than
remove these young children from their home and family a second time in as many years,
the Superintendent reasonably determined that it was in the children’s best interest to
remain with their current family. That justification is even more compelling today, as
these young children have now lived in the same stable, loving home for the past three
and a half years.

        As the Court of Appeals observed in In re Cotton, “it is the absence of any good
reason to withhold consent, not the presence of good reasons to grant it, that indicates
that the [Superintendent] was acting in an arbitrary and capricious manner.”9 Far from an
unreasoned decision reached without reference to circumstance or taken in a whimsical
manner, the Superintendent considered the emotional and psychological well-being of the
children in withholding consent from the Martins. Granting consent to the Rabers to
adopt the children prevented the psychological trauma of changing families once again.

       Because the Superintendent’s decision was not arbitrary and capricious,
remanding for an evidentiary hearing is unnecessary and only delays permanency for
children who have spent their entire lives in foster care. That the children have lived in a
loving, stable home with a family that attends to their needs and with whom the children
have established close emotional bonds will remain unchanged after an evidentiary
hearing. The ongoing need for stability will likewise remain the same for these young
children. The lower courts properly held that the Martins failed to satisfy their
evidentiary burden. Because the majority gives short shrift to the scope of review, and
delays permanency for these young children, I dissent.

         MARKMAN, J. (dissenting).

       Although I have no doubt that the Martins could provide a loving and stable home
for these children, and am cognizant that the original basis for DHS removing these
children from the Martins’ care was in error, I nonetheless agree with the analysis set
forth by Justice YOUNG, and therefore join his dissenting statement.



9
    In re Cotton, 208 Mich App at 185.



                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           November 19, 2010                   _________________________________________
         d1116                                                                 Clerk
