                           STATE OF MICHIGAN

                            COURT OF APPEALS



In re RC, Minor.


LUCINDA CARRIER,                                                     UNPUBLISHED
                                                                     January 3, 2019
               Petitioner-Appellee,

v                                                                    No. 343736
                                                                     Wayne Circuit Court
MICHIGAN CHILDREN’S INSTITUTE,                                       Family Division
                                                                     LC Nos. 17-000510-AO
               Respondent-Appellant.                                         14-518511-NA


Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

O’BRIEN, J. (dissenting)

        I respectfully dissent. This case is not about whether the superintendent properly denied
petitioner consent to adopt RC. Rather, this case is about whether the trial court utilized the
proper standard when reviewing the superintendent’s decision. The trial court’s review of the
superintendent’s decision was limited by MCL 710.45, under which “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). In turn, we review whether the trial court “properly
applied” MCL 710.45 to the superintendent’s decision, which “is a question of law” that we
review “for clear legal error.” Id. In Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889
(1994) (opinion of BRICKLEY, J.), our Supreme Court explained that there is no distinction
between “clear legal error” and “ordinary ‘legal error,’ ” so a court commits clear legal error
when it “incorrectly chooses, interprets, or applies the law[.]” Because I would conclude that the
trial court misapplied MCL 710.45, I would reverse the trial court and reinstate the
superintendent’s decision to deny petitioner consent to adopt RC.

        This case arises out of the voluntary release of parental rights to RC by her birth parents
during child protective proceedings related to abuse and neglect. Those proceedings were
instituted after petitioner, who is RC’s paternal aunt, reported the parents’ neglect of RC to Child
Protective Services (CPS). RC was removed from her parents’ care in December 2014—when
she was five months old—and placed with petitioner, with whom she remained for more than
two years. A lawyer-guardian ad litem (the LGAL) was appointed to represent RC and remained

                                                -1-
in that position throughout the proceedings below. The LGAL believed that petitioner was a
“good choice” for RC’s placement, opining that petitioner provided the child with “excellent
care.” In the April 30, 2016 order terminating the birth parents’ rights, RC was committed to the
custody of the Department of Health and Human Services (DHHS). Upon her commitment to
the DHHS, RC became a ward of the state and, by operation of MCL 400.203(1), Michigan
Children Institute’s (MCI) superintendent became RC’s guardian.

        Before March 20, 2017, there had been “nothing of any concern” that would have
prevented the superintendent giving petitioner consent to adopt RC. Indeed, at that time,
petitioner’s request for consent to adopt was likely “days away” from receiving the
superintendent’s approval. But on March 20, 2017, petitioner left RC at the home of her paternal
grandfather, who is elderly and has limited mobility. RC’s biological father also lives in the
home, along with another child and several other adults, who were also present. After petitioner
left, RC and the other child—both still in diapers—were not properly supervised and went
outside alone, without shoes or weather-appropriate attire. A concerned neighbor called the
police and kept the children from wandering into the street.

        As a result of the March 20, 2017 incident, CPS instituted an investigation. Following
that investigation, on June 9, 2017, RC was removed from petitioner’s care and placed with a
new foster family. On September 7, 2017, the superintendent denied petitioner’s request for
consent to adopt RC. In making her decision to deny consent to adopt, the superintendent was
aware that petitioner had provided a safe home for the child for more than two years, that RC
was strongly bonded to petitioner, and that petitioner was the individual who had initially
protected RC from her parents’ abuse by filing the CPS report that initiated the child protective
proceedings. The superintendent indicated that she reviewed a large “packet” of information
provided by petitioner, which cited numerous reasons militating in favor of granting petitioner
consent to adopt RC. The superintendent also acknowledged that, as a general rule, she prefers
to place children with family members for adoption if possible and will give preference to such
individuals over nonfamily. Despite these considerations, the superintendent denied petitioner
consent to adopt because of, among other things, (1) petitioner’s credibility, particularly with
regard to her statements that she would never leave RC at the grandfather’s house again or in
similarly inappropriate circumstances, (2) the concerns for RC’s safety and well-being expressed
during “fairly lengthy conferences” by caseworkers from, among others, CPS, the adoption
agency, and the foster care review team, (3) petitioner’s inconsistent prior statements concerning
whether her not-agency-approved 18-year-old brother had been providing daycare to RC before
the March 20, 2017 incident, (4) petitioner’s failure to duly report any change in daycare as soon
as it occurred, which was a foster-care licensing violation, (5) the March 20, 2017 incident in
general, its potential lethality for RC, and petitioner’s inability to identify which of the
“unreliable individuals” who were present during that incident—all of whom later denied that
they had been placed in charge of RC—had actually been charged with supervising RC, (6)
concerns that petitioner might, in the future, cave to familial pressure to permit RC’s biological
father to spend time with RC, (7) the seeming deterioration of the bond RC felt toward petitioner
following her removal from petitioner and placement with another foster family, and (8) RC’s
high degree of attachment to her new foster family after several months of placement with them,
RC’s fear of being separated from her new foster family and seeming preference for them over
petitioner, the superintendent’s observation that RC seemed “extremely happy” with the new
foster family, and the possibility of “devastating” repercussions for RC if she was removed from

                                               -2-
the new foster family. The superintendent highlighted the importance of the last factor, stating
that “if it hadn’t of [sic] been for the way [RC] had responded” to the new foster family, the
superintendent may have granted petitioner consent to adopt.

        Petitioner filed a motion for review of the superintendent’s decision under MCL 710.45
(the § 45 motion). The § 45 hearing took place over the course of five days in February and
March of 2018. Ultimately, the trial court held that respondent had proven, by clear and
convincing evidence, that the superintendent’s decision to deny consent to adopt was arbitrary
and capricious. On appeal, MCI argues that the trial court committed clear legal error by so
ruling. I agree.

       As explained earlier:

              Pursuant 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.
       Whether the family court properly applied this standard is a question of law
       reviewed for clear legal error. [In re Keast, 278 Mich App at 423.]

A court commits “clear legal error” when it “incorrectly chooses, interprets, or applies the
law[.]” Fletcher, 447 Mich at 881 (opinion of BRICKLEY, J.).

       Under MCL 400.203(1), MCI’s superintendent “shall represent the state as guardian of
each child committed” to the DHHS “beginning with the day the child is admitted and” generally
“continuing until the child is 19[.]” “The superintendent of the institute has the power to make
decisions on behalf of a child committed to the institute,” MCL 400.203(2), and “[c]onsent by
the superintendent to the adoption of a state ward is required before the family court can approve
a prospective adoption,” In re Keast, 278 Mich App at 423.

       As for the “general purposes” of the Adoption Code, MCL 710.21a provides:

               The general purposes of this chapter are:

              (a) To provide that each adoptee in this state who needs adoption services
       receives those services.

               (b) To provide procedures and services that will safeguard and promote
       the best interests of each adoptee[1] in need of adoption and that will protect the
       rights of all parties concerned. If conflicts arise between the rights of the adoptee
       and the rights of another, the rights of the adoptee shall be paramount.



1
 For these purposes, the phrase “best interests of the adoptee” is statutorily defined by MCL
710.22(g).


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              (c) To provide prompt legal proceedings to assure that the adoptee is free
       for adoptive placement at the earliest possible time.

              (d) To achieve permanency and stability for adoptees as quickly as
       possible.

               (e) To support the permanency of a finalized adoption by allowing all
       interested parties to participate in proceedings regarding the adoptee. [Emphasis
       added.]

       In In re Cotton, 208 Mich App 180, 184; 526 NW2d 601 (1994), this Court explained the
scope of a trial court’s review under MCL 710.45 of the superintendent’s decision to withhold
consent to adopt:

               The fact that the Legislature in drafting the statute limited judicial review
       to a determination whether consent was withheld arbitrarily and capriciously, and
       further required that such a finding be based upon clear and convincing evidence,
       clearly indicates that it 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. Rather, the clear and unambiguous
       language terms of the statute indicate that the decision of the representative of the
       agency to withhold consent to an adoption must be upheld unless there is clear
       and convincing evidence that the representative acted arbitrarily and capriciously.
       Thus, the focus 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. Accordingly, the hearing under § 45 is not . . . an
       opportunity for a petitioner to make a case relative to why the consent should
       have been granted, but rather is an opportunity to show that the representative
       acted arbitrarily and capriciously in withholding that consent. It is only after the
       petitioner has sustained the burden of showing by clear and convincing evidence
       that the representative acted arbitrarily and capriciously that the proceedings may
       then proceed to convincing the probate court that it should go ahead and enter a
       final order of adoption.

In other words, the superintendent’s denial of consent to adopt in a given case cannot be held as
arbitrary and capricious “if there exists a good reason for it,” and this remains true even if there
are good reasons militating in favor of the opposite result. In re Keast, 278 Mich App at 415; see
also In re ASF, 311 Mich App 420, 436; 876 NW2d 253 (2015) (explaining that if good reasons
exist both for granting and withholding consent to adopt, then “it cannot be said that the
representative acted arbitrarily and capriciously in withholding that consent”) (quotation marks
and citation omitted.)

        As alluded to earlier, the narrow issue on appeal is whether the trial court erred by
incorrectly choosing, interpreting, or applying the law. In other words, as was true of the trial
court, this Court’s review is not de novo, and we are not called upon to decide whether we agree
with the superintendent’s decision.

                                                -4-
         While the trial court clearly chose the correct law, I would conclude that it misapplied
that law. It did so by disregarding or discounting at least two “good reasons” that the
superintendent emphasized were important to her decision. First, the trial court completely
disregarded the superintendent’s safety concerns stemming from petitioner’s admission that she
had permitted her 18-year-old brother, who was not an approved substitute caregiver (i.e., had
not been subject to agency background checks), to provide daycare for RC.2 Indeed, the trial
court’s opinion does not mention the rather extensive testimony concerning the brother, instead
seeming to confuse the evidence about him with evidence about petitioner’s other brother (i.e.,
RC’s biological father). Given that the superintendent described petitioner’s admitted reliance
on unapproved substitute care providers as “an important issue” and a “big concern of
everyone,” the trial court misapplied the law—and therefore committed clear legal error—by
failing to consider the matter.3

       The trial court also erred by refusing to consider another reason that the superintendent
gave for withholding consent to adopt: RC’s strong bond to her new foster family, RC’s apparent
preference for her new foster family over petitioner, and the potential damaging repercussions to
RC if she was removed from her foster family. It seems that, based on the trial court’s
conclusion that RC should never have been removed from petitioner in the first instance, the trial
court refused to consider the superintendent’s reliance on RC’s placement and circumstances
following removal. In pertinent part, the trial court reasoned:

              And even if there was some awkwardness [between RC and petitioner] . . .
       it was caused by a removal which was unjustified in the first place, [so] this
       should not now be allowed to serve as a reason to deny consent.

                                             * * *

       [The superintendent’s] claim that there was no appropriate bond because of the
       awkward lack of engagement at a visit observed three months after removal from
       [petitioner’s] care is not a valid reason for denial, when as pointed out above,
       there was no valid reason for the removal in the first place.

                                             * * *

              Furthermore, [the superintendent’s] fear that [RC] will be traumatized by
       being reunited with her “mommy,” [petitioner], is not a valid reason for denial


2
 The trial court seemed to dismiss the importance of the agency’s substitute-caregiver policies as
nothing more than bureaucratic red tape. But it is not the judiciary’s role to second-guess the
wisdom of policy judgments made by coequal branches of government. Allard v Allard, 318
Mich App 583, 603 n 6; 899 NW2d 420 (2017).
3
 The majority, like the trial court, does not mention this stated reason. Nor does the majority
explain how the trial court’s mistake in not addressing this reason does not amount to a
misapplication of the law.


                                               -5-
       when, as stated above, any issues [RC] may have with reunification are a result of
       [the superintendent’s] initial unnecessary decision to remove [RC] from
       [petitioner’s] care when she was not at risk. Returning [RC] to [petitioner] from a
       much shorter stay in foster care to her “mommy” of two and a half years should
       be much less challenging than the original removal.

        As the Courts of this state have repeatedly noted, actions that impact the rights, care, or
custody of minor children are inherently different than other types of legal proceedings. See,
e.g., Allard v Allard, 318 Mich App 583, 601; 899 NW2d 420 (2017) (“Time and again, our
Courts have recognized that the parties to a divorce cannot, even by mutual agreement, relieve a
circuit court of its duty to independently safeguard the interests of minor children who are
involved.”); In re Medina, 317 Mich App 219, 239; 894 NW2d 653 (2016) (“[t]he primary
beneficiary of the best-interest analysis is intended to be the child”) (quotation marks and citation
omitted); In re Bibi Guardianship, 315 Mich App 323, 335; 890 NW2d 387 (2016) (“In
situations such as this, when our courts are entrusted with safeguarding the interests of minor
children, res judicata must be applied with great care.”). Our Legislature echoed a similar
sentiment in MCL 710.21a(b), noting that, for purposes of the Adoption Code, “[i]f conflicts
arise between the rights of the adoptee and the rights of another, the rights of the adoptee shall be
paramount.” Put differently, “[t]he best interests of the adoptee are the overriding concern,” not
those of the other stakeholders. In re ASF, 311 Mich App 420, 435; 876 NW2d 253 (2015).

        The trial court here lost sight of this fundamental principle, shifting its focus primarily to
what it perceived as unfairness to petitioner resulting from the superintendent’s decision to
remove RC. But the proceedings under MCL 710.45 did not entail review of the removal
decision; the trial court’s only inquiry was whether the superintendent’s decision to deny consent
to adopt was arbitrary and capricious. And in order to make that determination, the trial court
needed to consider the superintendent’s reasons for denying consent, including what the court
recognized as her “primary” reason: her concern that, since removal, RC’s bond with petitioner
had withered, while her bond with her new foster parents had flourished. By not addressing the
superintendent’s consideration of RC’s placement and strong bond to the new foster family—
dismissing such considerations as the inequitable results of an improper removal decision—the
trial court ended up valuing petitioner’s interests more highly than those of RC.4 More


4
  The trial court’s disregard of RC’s actual circumstances (including her placement with a new
foster family) is especially troubling because of its temporal context. RC was removed from
petitioner and placed with her new foster family in early June of 2017. Petitioner filed her § 45
motion on November 28, 2017, and the initial hearing took place on December 20, 2017, at
which time RC had already been placed with her new foster family for more than six months.
Despite the requirement in MCL 710.45(6) that a trial court “shall decide” a § 45 motion “within
91 days after the filing of the motion unless good cause is shown,” and that adoption proceedings
must “be considered to have the highest priority and shall be advanced on the court docket so as
to provide for their earliest practicable disposition,” MCL 710.25(1), the trial court did not rule
on petitioner’s § 45 motion until April 19, 2018, nearly five months after it was filed and almost
a year after RC had been placed with the new foster family.


                                                 -6-
importantly, the trial court shirked its duty to consider one of the principal reasons the
superintendent gave in support of her decision. For this reason as well, I would conclude that the
trial court misapplied the law and, by doing so, committed clear legal error.

        This is not to suggest that the trial court’s reaction to the evidence here is inconceivable
or even unexpected. With the benefit of hindsight, the removal decision may have been
somewhat rushed and possibly misguided. Given that petitioner had been acting as RC’s sole
parental figure for the vast majority of the child’s life, the wait-and-see approach—which was
advocated for by the LGAL—would probably have been more prudent. But there is, regrettably,
no “pause” button in proceedings involving minor children, nor any way to reverse the hands of
clock. See, e.g., Pierron v Pierron, 282 Mich App 222, 262; 765 NW2d 345 (2009). Although
reasonable minds might disagree with the wisdom of removing RC from petitioner, such
disagreement does not render the superintendent’s later decision to deny petitioner consent to
adopt RC—under changed circumstances—either arbitrary or capricious. See In re ASF, 311
Mich App at 436 (“reasonable minds might well question the wisdom of denying petitioners
consent to adopt and of removing ASF from the continuity of a stable family setting. . . . But
neither this Court nor the circuit court reviews the matter de novo, and it is not for us to say
whether the superintendent made the ‘correct’ decision.”).

        The majority views this case differently. According to the majority, the trial court made
a factual finding “that the superintendent’s stated reasons were not genuine reasons” based on
evidence that “the superintendent’s stated reasons were, essentially, manufactured in support of
her premature April 12, 2017 decision.” The majority then cites evidence supporting that the
superintendent made her decision on April 12, 2017, concluding that the trial court’s factual
finding that the superintendent’s reasons were not genuine was not clearly erroneous.

        In my opinion, this approach runs contrary to established caselaw, and adds new and
unlawful standards to a trial court’s review of the superintendent’s decision to withhold consent
to adopt. There is no caselaw to support that a trial court can simply refuse to consider the
superintendent’s reasons for withholding consent to adopt, even if those reasons appeared to be
manufactured or not genuine. To the contrary, our caselaw is clear that the trial court’s “initial
focus” should be “on the reasons given for withholding consent to the adoption.” In re Keast,
278 Mich App at 425. Our caselaw is also clear for when the superintendent’s reasons for
withholding consent are arbitrary and capricious: “it is the absence of any good reason to
withhold consent . . . that indicates that the representative was acting in an arbitrary and
capricious manner.” In re Cotton, 208 Mich App at 185. See also In re Keast, 278 Mich App at
425; In re ASF, 311 Mich App at 430. In other words, the trial court’s review of whether the
superintendent’s decision was arbitrary and capricious must focus on the superintendent’s
reasons for denying consent; if there was “a good reason” to withhold consent, then the decision
was not arbitrary and capricious. In re Keast, 278 Mich App at 425.

        Yet, according to the majority, a trial court can refuse to consider the superintendent’s
reasons for withholding consent if the court finds that the reasons are “not genuine.” But the trial
court is not reviewing the superintendent’s underlying motivations for withholding consent; it is
supposed to be reviewing the superintendent’s reasons themselves. Indeed, the trial court’s
entire determination of whether the superintendent’s decision was arbitrary and capricious
depends on whether the superintendent gave good—not “genuine”—reasons. So I would hold

                                                -7-
that, even if the superintendent appears to have “manufactured” reasons for denying consent to
adopt, so long as those reasons are “good” and based on true facts that objectively support the
superintendent’s decision, then there were good reasons to withhold consent.5

        This leads to an ancillary, yet more troubling, problem with the majority’s holding. If a
trial court can refuse to address the superintendent’s reasons because it finds the reasons are “not
genuine,” then the trial court’s review of these cases effectively becomes de novo: if a trial court
simply disagrees with the superintendent’s decision, it can dismiss the superintendent’s reasons
as “not genuine,” conclude that the lack of “genuine” reasons for the superintendent’s decision
makes the decision arbitrary and capricious, and then reverse.6 This is in stark contrast to the
highly deferential standard that trial courts are supposed to afford the superintendent’s decision
to deny consent to adopt, see In re Cotton, 208 Mich App at 184, and so I cannot agree that a
trial court may disregard the superintendent’s reasons as “not genuine.” Instead, as explained,
the trial court must address whether the superintendent gave any good reasons to withhold
consent, and if so, the trial court must affirm. See In re Keast, 278 Mich App at 425.




5
  In a different example, the reason why may be clearer. Assume a petitioner wants to adopt a
child and the superintendent sought to “manufacture” reasons to deny the petitioner consent to
adopt. In this hypothetical, the superintendent, on her own initiative, orders a medical exam of
the child to investigate possible child abuse. The medical exam reveals that the child has been
repeatedly abused over several months, and an interview of the child reveals that the petitioner
had been abusing him that entire time. In this situation, the superintendent would have an
objectively good reason to deny the petitioner consent to adopt. And even if the superintendent
admitted to the trial court that she sought to “manufacture” reasons to withhold consent, the trial
court would be derelict in its duty if it let a petitioner who repeatedly abused a child to then
adopt that child.
       I believe that the same reasoning from the example applies here: if the superintendent’s
reasons for denying petitioner consent to adopt are objectively reasonable, then it does not matter
whether the reasons appeared to be “manufactured”; the trial court must still address the reasons
and determine whether they are good reasons to withhold consent to adopt.
6
  According to the majority, this conclusion by the trial court would be a factual finding, so this
Court’s review would be limited to clear error, giving deference to the trial court’s determination
of the superintendent’s credibility. See Miller-Davis Co v Ahrens Constr, Inc, 495 Mich 161,
172; 848 NW2d 95 (2014). In other words, for purposes of this Court’s review, it would not
matter whether the trial court properly applied the law, i.e., whether it determined if the
superintendent had any good reason to withhold consent. See In re Cotton, 208 Mich App at
185; In re Keast, 278 Mich App at 425; In re ASF, 311 Mich App at 430. All that would matter
was whether there was sufficient evidence—including the trial court’s determination that
statements of the superintendent were not credible—so that this court was not “left with the
definite and firm conviction that” the trial court made “a mistake” by finding that the
superintendent’s reasons were manufactured. Miller-Davis Co, 495 Mich at 172.


                                                -8-
        In sum, I believe that the trial court misapplied the law; it was required to address the
superintendent’s reasons for withholding consent to adopt, and it failed to do so. Because I
would hold that this failure amounted to clear legal error warranting reversal, I respectfully
dissent.



                                                           /s/ Colleen A. O’Brien




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