                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re KRS, Minor.                                                    June 9, 2015

                                                                     No. 325134
                                                                     Shiawassee Circuit Court
                                                                     Family Division
                                                                     LC No. 14-003768-AF


Before: RIORDAN, P.J., and DONOFRIO and BECKERING, JJ.

PER CURIAM.

        In this adoption dispute, the trial court vacated the decision of Michigan Children’s
Institute (MCI) Superintendent William J. Johnson to deny his consent for the adoption of the
minor child by his maternal grandmother and step-grandfather, the petitioners. For the reasons
stated below, we reverse the trial court’s order and remand the case to the trial court for dismissal
of petitioners’ petition to adopt.

         Petitioners took custody of the minor from the parents, with respondent’s consent, after a
case worker visited the parents and determined that they were under the influence of drugs. The
minor was in petitioners’ custody for only four days before he was placed in the care of his
paternal grandparents, apparently because petitioners could not transport him to his court-ordered
visitation with the parents, although a caseworker also understood that the maternal grandmother
was “too overwhelmed.”

        There was evidence that the minor’s mother “had reported to service providers that she
began drinking alcohol when she was twelve years old and began smoking marijuana shortly
after when she was fourteen; and, began using opiates, Vicodin, and then heroin when she was
seventeen years old.” This information appeared in two evaluations, and a caseworker reported
that she had no reason to believe the information was inaccurate, as she did not see why the
mother would have lied to two separate evaluators. These reports also indicated that the mother
was living on her own when she was 16 years old. Petitioners disputed that the mother was
intoxicated when she was 12 or 14 years old and asserted that it “would be impossible” for her to
have hidden an alcohol problem at that age. They also presented witnesses who stated that they
never observed her under the influence of alcohol before high school. They attributed the
information regarding her early use of alcohol to the minor’s father. Petitioners indicated that
they did not suspect that the mother had any substance abuse problem until they received an
anonymous letter alleging that she was abusing heroin when she was 18 or 19 years old. At that
point, they took her to rehabilitation but to no avail. There was also testimony that one of the

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petitioners was struck with a beer bottle by her son; petitioners admitted there was an altercation
but denied the existence of a beer bottle.

        The mother of the minor in this case died of a drug overdose, and the father voluntarily
relinquished his parental rights. A caseworker testified that petitioners had stated that they
blamed the minor’s father for the mother’s death. Petitioners would not allow him to attend the
mother’s funeral. Also, the adoption worker testified that petitioners believed that the father was
hiding some of their daughter’s belongings and was being assisted by his mother. There was
significant tension between the maternal and paternal relatives.

        Based on consideration of which of four prospective adoptive parents would maintain the
minor’s relationships with both sides of the family, the adoption worker recommended that
petitioners not be approved for the adoption. MCI Superintendent Johnson denied petitioners
consent to adopt. He had concerns regarding petitioners’ willingness and ability to assure the
physical and emotional well-being of the child. This was premised upon the mother’s reported
early substance abuse and the son’s “anger problem,” as evidenced by the beer-bottle-assault,
and the fact that the minor’s in utero exposure to drugs could result in developmental and
emotional issues and it was “not known” if petitioners could provide sufficient permanent care.
He also cited the fact that the minor did not remain in petitioners’ care following removal and
that he was bonded to the adoptive relatives. After petitioners challenged this decision in the
trial court, Johnson testified that he did not have concerns regarding petitioners’ ability to
physically care for the minor but had concerns about emotional well-being and ongoing
relationships with extended family. He stated he had no reason to doubt the mother’s self-
reported early substance abuse, but that if it was inaccurate, it would remove that factor from
consideration. He emphasized that family tension was his chief reason for denying consent to
adopt to petitioners. Johnson testified that he relied upon the reports he was given and a case
conference with the adoption worker and his staff. He stated he had enough information to make
a decision and stood by that decision after hearing all the testimony.

        The trial court stated that in its “opinion” petitioners’ decision to restrict the father from
the funeral was “a decision reasonable people could find right or wrong.” It opined that if
Superintendent Johnson relied upon inadequate or unfounded evidence to make his decision,
then his decision would be arbitrary or capricious. The court then found that “there is no way”
the mother’s reported substance abuse “could be true” and disagreed that someone who was self-
reporting would tend to minimize their drug use. The court found that the family tension and
hostility was based only on circumstances following shortly after the mother’s death and that this
was not an “appropriate foundational block” for the superintendent’s decision. It summarized
that it did “not find credibility” in the adoption worker’s facts and concluded that the
superintendent’s decision was therefore factually unsupported and arbitrary and capricious.

        “Judicial review of the withholding of consent to an adoption is governed by MCL
710.45.” In re Cotton, 208 Mich App 180, 183; 526 NW2d 601 (1994). Where consent has not
been granted, “the petitioner may file a motion with the court alleging that the decision to
withhold consent was arbitrary and capricious.” MCL 710.45(2). “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 described in subsection (2) and dismiss the
petition to adopt.” MCL 710.45(7).

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        Whether the trial court applied the proper review of the superintendent’s decision under
MCL 710.45 is “a question of law reviewed for clear legal error.” In re Keast, 278 Mich App
415, 423; 750 NW2d 643 (2008). “When a court incorrectly chooses, interprets, or applies the
law, it commits legal error that the appellate court is bound to correct.” Fletcher v Fletcher, 447
Mich 871, 881; 526 NW2d 889 (1994).

        The statute “clearly indicates that [the Legislature] did not intend to allow the probate
court to decide the adoption issue de novo and substitute its judgment for that of the
representative of the agency that must consent to the adoption.” In re Cotton, 208 Mich App at
184. The focus when reviewing the superintendent’s decision “is not whether the representative
made the ‘correct’ decision or whether the probate judge would have decided the issue
differently than the representative, but whether the representative acted arbitrarily and
capriciously in making the decision.” Id. The reviewing court must focus on “the reasons given
by the representative for withholding the consent to the adoption,” and “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.” Id. at 185.

               The generally accepted meaning of “arbitrary” is “determined by whim or
       caprice,” or “arrived at through an exercise of will or caprice, without
       consideration or adjustment with reference to principles, circumstances, or
       significance, . . . decisive but unreasoned.” The generally accepted meaning of
       “capricious” is “apt to change suddenly; freakish; whimsical; humorsome.” [In re
       Keast, 278 Mich App at 424-25 (internal quotation marks and citations omitted).]

       The trial court failed to follow the standard set forth in In re Keast and In re Cotton.
Rather than determine whether Superintendent Johnson acted arbitrarily and capriciously in
making the decision, the trial court improperly engaged in a de novo review where it disagreed
with the caseworkers’ conclusions, found that certain facts were not “an appropriate foundational
block” for the decision, and did “not find credibility in the foundation of alleged facts.” The trial
court improperly determined credibility and weighed evidence to determine whether
Superintendent Johnson made the correct determination. In re Cotton, 208 Mich App at 184.1

        Superintendent Johnson testified that several factors influenced his decision to deny
petitioners’ request to adopt. He stated that the central reason was the bond between the minor’s
family members and which family would be most likely to foster a bond with all sides, which is
a reason petitioners wholly ignore on appeal. The parties admitted that there was tension
following the mother’s death. Petitioners pictured the father as the source of information
regarding her substance abuse, even though that information was self-reported. They did not
dispute that they blamed him for her death. Where the superintendent was concerned about
family bonding, it is significant that petitioners did not know the names of the minor’s half-


1
  Petitioners claim that our Supreme Court has “clarified” that In re Cotton has wrongly been
interpreted, but they cite to a concurring opinion of one justice in the order In re CW, 488 Mich
935; 790 NW2d 383 (2010) (CORRIGAN, J., concurring), which is not binding. Dean v Chrysler
Corp, 434 Mich 655, 661 n 7; 455 NW2d 699 (1990).


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sisters and did not know anything about his relationship with them. That petitioners’ currently
have visitation does not show that they would foster relationships with the other family members
but only illustrates that the paternal relatives did not frustrate petitioners’ relationship with the
minor. Finally, although there was conflicting testimony regarding hidden property and
regarding anger issues within petitioners’ family, those credibility questions were for resolution
by the superintendent, not by the reviewing trial court.

        The trial court is not empowered to conduct a de novo review, make credibility
determinations, and assess the correctness of the superintendent’s decision. Id. An underlying
investigation by staff is sufficient to create a factual foundation for the superintendent’s decision,
and it is not enough for the petitioners to marshal evidence against the conclusions of the
investigators. Id. at 186. The testimony showed that the superintendent’s decision was based on
the factual record and not determined by whim or apt to change suddenly. In re Keast, 278 Mich
App at 424-25. The superintendent’s decision centered on the family dynamic, and there were
reasons in the record supporting his conclusion that respondents would not facilitate a
relationship with all sides of the family. Accordingly, the trial court erred in finding that it was
arbitrary and capricious.

        We reverse the trial court’s order and remand the case to the trial court for dismissal of
petitioners’ petition to adopt. We do not retain jurisdiction.



                                                              /s/ Michael J. Riordan
                                                              /s/ Pat M. Donofrio
                                                              /s/ Jane M. Beckering




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