in Re Asf Minor ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
In re ASF, Minor. July 14, 2015
9:20 a.m.
No. 324821
Wayne Circuit Court
Family Division
LC No. 14-000396-AO
Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.
PER CURIAM.
Petitioners Samuel Spann and Janet Spann (“petitioners”), the grandparents of the minor
child, ASF, sought to adopt ASF after the parental rights of ASF’s biological parents had been
terminated. The superintendent of the Michigan Children’s Institute’s (MCI) withheld consent to
adopt. Petitioners challenged the superintendent’s decision in circuit court. After conducting a
hearing pursuant to MCL 710.45(2) (“§ 45 hearing”), the circuit court found that the
superintendent’s decision was not arbitrary or capricious and, accordingly, the circuit court
upheld that decision. The lawyer-guardian ad litem (LGAL) for the minor child appeals the
circuit court’s decision, and petitioners have filed a cross-appeal also challenging the circuit
court’s decision. Because the trial court did not clearly err by concluding that petitioners failed
to present clear and convincing evidence demonstrating that the superintendant’s decision was
arbitrary and capricious, we affirm.
In January 2011, ASF and her biological sister, SF,1 were removed from their mother’s
care for a variety of reasons and they were placed with petitioners, who became licensed foster
parents. Petitioner Samuel is ASF’s maternal grandfather and petitioner Janet is his wife, but she
is not a blood relative to ASF or SF. ASF was nine months old at the time of her placement with
petitioners and SF was 11 years old. Although reunification services were provided, ASF’s
biological parents made no progress in their treatment plans, and their parental rights were
terminated in April 2013.
1
Petitioners pursued a guardianship of SF, and that guardianship is not at issue in this appeal.
Another of ASF’s siblings had been adopted by ASF’s aunt at birth and resides in Arizona.
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By all accounts, petitioners took excellent care of SF and ASF for a number of years and,
once termination of parental rights occurred, the adoption agency began to plan for ASF’s
adoption by petitioners. In July 2013, however, petitioner Samuel contacted the adoption worker
and offered his son Damon and daughter-in-law Julie as alternate potential adoptive parents,
citing his age and uncertainty about his own ability to provide long-term care for ASF. Damon,
who was in his mid-40s, and his wife Julie had a young son who was six months older than ASF.
At a family team meeting held a short time later, petitioner Samuel reversed his position
and indicated that he now wanted to proceed with the adoption of ASF. But, in light of the offer
of Damon and Julie as adoptive parents for ASF and their expression of interest, the agency
treated the case as a competing-party adoption. Unfortunately, as a result of this conflict, the
relationship between petitioners and Damon and Julie became strained.
After conducting an adoption assessment and addendum, the adoption worker, Samantha
Slack, recommended that petitioners’ request for consent to adopt be denied. A case conference
was held, but the adoption agency, Bethany Christian Services (BCS), again did not recommend
that petitioners receive consent to adopt. BCS recommended that consent to adopt be given to
Damon and Julie. The BCS recommendation was sent to the MCI superintendent (the
“superintendent”), who denied petitioners’ request for consent to adopt ASF.2 When considering
the request for consent, among many factors, the superintendent weighed: petitioners’ ages,
particularly the significant age difference with ASF, petitioners’ minor health issues, petitioner
Samuel’s vacillation regarding the adoption and his recommendation of Damon and Julie as
adoptive parents, ASF’s sibling relationship with SF, the potential for a companion relationship
between ASF and Damon’s son, the psychological ties between ASF and petitioners, and the
potential for petitioners to continue their relationship with ASF by assuming a grandparent role.
After the superintendent denied consent to the adoption, under MCL 710.45, petitioners
then filed a motion in circuit court challenging the superintendent’s decision. The circuit court
conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to
testify. The LGAL was permitted to participate in the proceeding by cross-examining witnesses
and participating in arguments. After petitioners rested their case, the LGAL was also able to
call Slack, the adoption worker. MCI then moved for involuntary dismissal pursuant to MCR
2.504, and the circuit court granted the motion over the LGAL’s objection. The court concluded
that petitioners failed to demonstrate by clear and convincing evidence that the MCI
superintendent’s decision to withhold consent to adopt was arbitrary and capricious. From this
decision, the LGAL and petitioners now appeal.3
2
The superintendent represents “the state as guardian of each child committed” to the MCI
following termination of parental rights, and the superintendant has the power to make decisions
on behalf of a child committed to the MCI. See MCL 400.203(1), (2). The superintendent’s
specific authority to consent to the adoption of a child is set forth in MCL 400.209.
3
On appeal, the MCI challenges this Court’s jurisdiction in the present case. As a general
matter, this Court has subject matter jurisdiction over appeals from a trial court’s decision on a
motion under MCL 710.45. See MCL 710.45(10). The MCI claims, however, that the LGAL is
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On appeal, the LGAL and petitioners argue that the trial court clearly erred by granting
MCI’s motion for involuntary dismissal pursuant to MCR 2.504(B)(2). Petitioners contend first
of all that the trial court’s decision must be reversed because the trial court failed to make
specific findings of fact and conclusions of law as required by MCR 2.517(A)(1). Further,
petitioners also argue that the superintendent’s decision to deny consent was arbitrary and
capricious because there were no “good reasons” to withhold consent, the superintendent failed
to consider ASF’s individual circumstances, and the denial amounted to discrimination against
petitioners based solely on their age. In addition, the LGAL similarly asserts that the
superintendent’s decision was arbitrary and capricious because he failed to consider, or to
adequately consider, ASF’s unique circumstances including, for example, her attachment to
petitioners and SF as well as the tension between petitioners and Damon. The LGAL also
maintains that the trial court’s grant of the MCI’s motion for involuntary dismissal was
premature because the LGAL had not had a complete opportunity to present her own evidence
regarding the purportedly arbitrary and capricious nature of the superintendent’s decision.
According to the LGAL, by denying the LGAL a full opportunity to participate in the
proceedings, the trial court also denied ASF due process and the equal protection of the law.
This Court reviews questions of law, including the interpretation and application of court
rules and statutes, de novo. Nat’l Waterworks, Inc v Intl Fid & Sur, Ltd, 275 Mich App 256,
258; 739 NW2d 121 (2007). A trial court’s factual findings underlying a decision to dismiss an
action pursuant to MCR 2.504 are reviewed for clear error. Rodenhiser v Duenas, 296 Mich App
268, 272; 818 NW2d 465 (2012). A trial court’s finding is clearly erroneous where, although
there may be evidence to support the finding, the reviewing court is left with a definite and firm
conviction that a mistake occurred. Id. Whether a trial court applied the correct standard to its
not an appropriate party to bring an appeal under MCL 710.45(10) and, that, because the LGAL
lacks statutory standing, this Court lacks jurisdiction. See In re Beatrice Rottenberg Living
Trust, 300 Mich App 339, 355; 833 NW2d 384 (2013). Contrary to the assertion that this Court
lacks jurisdiction, we note that, although the appeal was initiated by LGAL, petitioners timely
filed a cross-appeal, MCR 7.207(A)(2), (B)(2), and a cross-appeal may be prosecuted to its
conclusion even if this Court dismisses the initial appeal, MCR 7.207(D). Thus, even supposing
the LGAL lacks standing to initiate the present appeal, at a minimum, petitioners’ appeal is
properly before this Court. See MCL 710.45(10). Moreover, although the LGAL of an adoptee
under the age of 14 is not considered an “interested party” in adoption proceedings, MCL
710.24a(1), ASF was appointed a LGAL during child abuse and neglect proceedings, see MCL
712A.17c(7), and a LGAL appointed in this manner continues to represent the child’s best
interests provided that, as in this case, the child remains subject to the supervision of the MCI,
see MCL 712A.17c(9). During this time, the LGAL must advocate for the child’s best interests,
and the LGAL is “entitled to full and active participation in all aspects of the litigation.” MCL
712A.17d(1)(b). There is no indication that the LGAL in this case has been discharged and,
consequently, in connection with petitioners’ appeal, we see nothing improper in the LGAL’s
continued participation insofar as she serves as a representative for the child’s best interests, and
we will therefore consider the LGAL’s arguments. See generally MCL 710.45(5); MCL
712A.17c(9); MCL 712A.17d.
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review of the superintendent’s denial of consent to adopt poses a question of law which we
review for clear legal error. In re Keast, 278 Mich App 415, 423; 750 NW2d 643 (2008).
Under MCR 2.504(B)(2), involuntary dismissal of a hearing tried without a jury is
appropriate when, after the presentation of the plaintiff’s evidence, the court determines, based
on the facts and the law, that the plaintiff has no right to relief.4 Samuel D Begola Servs, Inc v
Wild Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995). In full, this provision states:
In an action, claim, or hearing tried without a jury, after the presentation of the
plaintiff's evidence, the court, on its own initiative, may dismiss, or the defendant,
without waiving the defendant's right to offer evidence if the motion is not
granted, may move for dismissal on the ground that, on the facts and the law, the
plaintiff has no right to relief. The court may then determine the facts and render
judgment against the plaintiff, or may decline to render judgment until the close
of all the evidence. If the court renders judgment on the merits against the
plaintiff, the court shall make findings as provided in MCR 2.517. [MCR
2.504(B)(2).]
Pursuant to this rule, “a motion for involuntary dismissal calls upon the trial judge to exercise his
function as trier of fact, weigh the evidence, pass upon the credibility of witnesses and select
between conflicting inferences.” Marderosian v Stroh Brewery Co, 123 Mich App 719, 724; 333
NW2d 341 (1983). The plaintiff is not entitled to the most favorable interpretation of the
evidence. Id.In the instant action, petitioners sought relief pursuant to MCL 710.45, which allows a
petitioner to challenge the superintendent’s withholding of consent to an adoption. Accordingly,
MCI’s motion for involuntary dismissal under MCR 2.504(B)(2) was properly granted if, during
their presentation of evidence, petitioners failed to demonstrate their entitlement to relief under
MCL 710.45. In relevant part, MCL 710.45 provides:
(1) A court shall not allow the filing of a petition to adopt a child if the
consent of a representative or court is required by section 43(1)(b), (c), or (d) of
this chapter unless the petition is accompanied by the required consent or a
motion as provided in subsection (2).
(2) If an adoption petitioner has been unable to obtain the consent required
by section 43(1)(b), (c), or (d) of this chapter, the petitioner may file a motion
with the court alleging that the decision to withhold consent was arbitrary and
capricious. A motion under this subsection shall contain information regarding
both of the following:
4
The general Michigan Court Rules apply to adoption proceedings, except as modified by MCR
3.801-3.807. MCR 3.800(A). MCR 3.800 et seq. does not contain a specific provision regarding
involuntary dismissal.
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(a) The specific steps taken by the petitioner to obtain the consent required
and the results, if any.
(b) The specific reasons why the petitioner believes the decision to
withhold consent was arbitrary and capricious.
***
(7) 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 subjection (2) and dismiss the petition to adopt.
(8) If the court finds by clear and convincing evidence that the decision to
withhold consent was arbitrary and capricious, the court shall issue a written
decision and may terminate the rights of the appropriate court, child placing
agency, or department and may enter further orders in accordance with this
chapter or section 18 of chapter XIIA as the court considers appropriate. In
addition, the court may grant to the petitioner reimbursement for petitioner’s costs
of preparing, filing, and arguing the motion alleging the withholding of consent
was arbitrary and capricious, including a reasonable allowance for attorney fees.
[Footnotes omitted.]
As these provisions make plain, to obtain relief under MCL 710.45 at a § 45 hearing,
petitioners bore the burden of establishing, by clear and convincing evidence, that the
superintendent’s denial of consent was arbitrary and capricious. MCL 710.45(7). In other
words, the family court is not permitted to decide the issue of adoption de novo; rather, “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 at 423-424. The clear and convincing evidence standard is the most
demanding standard applied in civil cases. In re Martin, 450 Mich 204, 226; 538 NW2d 399
(1995). Under this standard, evidence is clear and convincing when it:
produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established, evidence so clear, direct and weighty
and convincing as to enable [the factfinder] to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue. [Id. at 227 (quotation marks
and citation omitted) (alterations added by In re Martin).]
Whether action is arbitrary or capricious is evaluated as follows:
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 424-425 (internal quotation marks and citations
omitted).]
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To decide whether a denial of consent to adopt was arbitrary and capricious, the initial
focus at the § 45 hearing is on the reasons given for withholding consent to the adoption. Id. at
425. “It is the absence of any good reason to withhold consent, rather than the presence of good
reasons to grant it, that indicates that the decision maker has acted arbitrarily and capriciously.”
Id.
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 re Cotton, 208 Mich App 180, 184; 526 NW2d 601
(1994).]
In the present case, among the superintendent’s reasons for denial of consent were the
following: (1) the identification of Damon and Julie as “suitable” relatives who were “very
appropriate” and willing to adopt ASF, (2) the age of petitioner Samuel (age 71) and Janet (age
65) compared to ASF (age 4), particularly when Samuel had expressed doubts about petitioners’
ability to parent ASF into the future, he had identified Damon and Julie as a better option, and
there remained the possibility that petitioners could assume a grandparent role for ASF if she
were adopted by Damon and Julie, (3) petitioners’ heath concerns, including diabetes and
hypertension, as well as SF’s health concerns which required “close monitoring,” and (4)
petitioner Samuel’s lack of steady commitment to parenting ASF for the next 14 years as evinced
by his vacillation on the adoption and his identification of Damon and Julie as a better
alternative.
When reviewing the reasons given by the superintendent, the trial court determined that
there was not clear and convincing evidence that these reasons were arbitrary and capricious, and
for this reason the trial court granted the MIC’s motion for involuntary dismissal. The trial court
explained:
The initial focus is whether the MCI superintendent acted arbitrarily and
capriciously. I’m not supposed to focus on what reasons existed to authorize
adoptions. I’m deeply impressed that Janet and Sam Spann are wonderful people.
They did a wonderful job with the child. But what I have to decide is whether
there’s the absence of any good reason to withhold consent.
***
Well, motion [for involuntary dismissal] granted. [The superintendent]
had reasons for doing what he did. I’ve held four or five now Section 45
hearings, and there are times when I wish he would have considered factors that
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he didn’t and factors that he considered that I didn’t think were that important but
he did think they were that important. I believe that [the superintendent] acted
within the law. He did have a focus on the ages of the parents [sic]. I don’t
believe it’s unconstitutional for him to have considered it but he did.
He was very worried that the abilities of Sam and Janet Spann would not
be up to the needs of the child in ten years. He worries about the commitment
that Mr. Spann had. And he did have the feeling that the relationship between
Sam and Janet Spann would continue in some form. I cannot say there’s the
absence of any good reason to withhold consent. Motion granted.
In reviewing the trial court’s assessment of the superintendent’s decision, initially we
note that, contrary to petitioners’ arguments on appeal, the trial court made findings of fact and
conclusions of law as required by MCR 2.517. The trial court plainly applied the correct legal
standard for review of the superintendent’s decision, recognizing that the focus was on the
reasons for denial and whether those reasons were arbitrary and capricious. See In re Keast, 278
Mich App at 425. Further, as a factual matter, the trial court clearly identified the
superintendent’s main reasons for denial, mainly petitioner Samuel’s vacillation on the adoption,
petitioners’ possible difficulty parenting ASF into the future, and the availability of adoption by
another relative which would allow ASF to continue a relationship with petitioners as her
grandparents. While the trial court’s explanation was relatively concise, the trial court was
plainly aware of the issues involved and “brief, definite, and pertinent findings and conclusions”
regarding these issues were sufficient “without “overelaboration of detail or particularization of
fact.” MCR 2.517(A)(2). See also Triple E Produce Corp v Mastronardi Produce, Ltd, 209
Mich App 165, 176; 530 NW2d 772 (1995). In short, the trial court applied the correct legal
standard and its findings were sufficient to satisfy MCR 2.517.
On appeal, petitioners posit that the circuit court did not comply with MCR 2.517
because the trial court referred to reasons offered by the superintendent that petitioners believe
were contrary to the evidence. For example, petitioners maintain that, contrary to the
superintendent’s determinations, their relationship with ASF may not continue because their
relationship with Damon and Julie is strained, that there is no evidence their age or health affects
their ability to parent ASF, and that there is no evidence petitioner Samuel lacked commitment to
the adoption of ASF. While petitioners frame these arguments in reference to the trial court’s
compliance with MCR 2.517, these arguments actually concern the factual and legal merit of the
superintendent’s decision, not the adequacy of the trial court’s factual findings. That is, the fact
that petitioners disagree with the trial court’s findings regarding the conflicting evidence does
not render the trial court’s findings inadequate under MCR 2.517.
In any event, it is clear that the superintendent’s opinions and the findings of the trial
court were supported by the evidence. For example, evidence was presented that BCS and Slack
were aware that petitioner Samuel and Damon had an amicable relationship until Damon and
Julie were viewed as a prospective adoptive family in lieu of petitioners, at which time the
relationship became strained. Given their past amicable relationship, it was not erroneous to
conclude that the parties could set aside their differences for ASF’s best interests. Further, there
was evidence that petitioner Samuel expressed doubts regarding petitioners’ ability to care for
ASF long term and that he offered Damon and Julie as an alternative, thereby providing a basis
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for the conclusion that he lacked commitment to the adoption. As further support for this
finding, during interviews, both Damon and Samuel’s daughter Deanna reported that Samuel did
not want to proceed with the adoption. Finally, neither the superintendent nor the trial court
concluded that petitioners’ ages and health prevented them from caring for ASF. Rather, their
age and heath were considered as pertinent factors for long-term planning, particularly given the
fact that petitioner Samuel had previously questioned petitioners’ ability to permanently plan for
ASF in light of his age. Though there may have been some conflicting evidence on these points,
these conflicts were resolved by the superintendent and the trial court, and the trial court’s
findings were thus supported by the evidence presented.
Recognizing that there was underlying factual support for the superintendent’s
determinations, contrary to arguments by petitioners and LGAL, we also conclude that the trial
court did not clearly err when, at the close of petitioners’ case, it determined, based on the facts
and laws, that petitioners were not entitled to relief because they had not shown, by clear and
convincing evidence, that the superintendent’s denial of consent was arbitrary and capricious.
See MCL 710.45(7); MCR 2.504(B)(2). In particular, on appeal, petitioners and the LGAL both
argue that the superintendent’s decision was arbitrary and capricious. They further contend that
the decision was discriminatory and a violation of law to the extent that consent to adopt was
withheld because of petitioners’ ages. We disagree.
Preliminarily, petitioners contend that the superintendent’s consideration of their ages
violated MCL 722.957(1) and the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. The
foster care and adoption services act, MCL 722.951 et seq., addresses adoption facilitators and
refusal to provide services. MCL 722.957(1) states, in relevant part:
Except as provided in subsection (2), an adoption facilitator shall not
refuse to provide services to a potential adoptive parent based solely on age, race,
religious affiliation, disability, or income level. A child placing agency shall not
make placement decisions based solely on age, race, religious affiliation,
disability, or income level. [Emphasis added.]
The CRA prohibits a person from denying an individual “the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations of a place of public
accommodation or public service because of religion, race, color, national origin, age, sex, or
marital status.” MCL 37.2302(a) (emphasis added).
In this case, the record clearly establishes that the MCI superintendent did not violate
MCL 772.957(1) because he did not withhold consent to adopt solely because of petitioners’
ages. The superintendent testified that petitioners’ ages was only one factor that he considered.
He identified many other factors involved in his decision to withhold consent, including
petitioners’ health, petitioner Samuel’s vacillation regarding the adoption and his
recommendation of Damon and Julie as adoptive parents, and petitioners’ ability to maintain a
grandparent role in ASF’s life. Thus, there was no violation of MCL 722.957(1). Further, the
superintendent’s consideration of petitioners’ ages did not violate the CRA. The purpose of the
Adoption Code is to provide the adoptee with adoption services, to safeguard the adoptee’s best
interests, and to achieve permanency for the adoptee. MCL 710.21a. It is the best interests of
the adoptee which are the overriding concern, and “[i]f conflicts arise between the rights of the
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adoptee and the rights of another, the rights of the adoptee shall be paramount.” MCL
710.21a(b). In this context, the superintendent did not deny petitioners the full and equal
enjoyment of a public service because of their age. See MCL 37.2302(a). Rather, consent for
adoption was denied because the superintendent found that adoption by petitioners was not in
ASF’s best interests in light of a number of factors, including petitioners’ ability and willingness
to provide long-term care to a four-year-old child. Indeed, it was petitioners who first injected
the issue of their ages as a factor to consider. In short, in assessing ASF’s best interests, it was
not improper, or discriminatory, for the superintendent to consider petitioners’ ages relative to
their ability to provide for ASF’s long-term care.
Given the evidence presented, the circuit court also did not clearly err by concluding that
petitioners did not present clear and convincing evidence to establish that the superintendent’s
decision was arbitrary and capricious. In a close case such as this one, it is important that we
remain mindful of the standard governing our review and that of the circuit court. That is, we are
not insensitive to the facts that the petitioners undisputedly took excellent care of ASF for 3½
years beginning when she was only nine months old and that ASF is closely bonded to
petitioners as well as her sister SF. Given ASF’s close bond to petitioners, and to her sister who
remains in petitioners’ care, reasonable minds might well question the wisdom of denying
petitioners consent to adopt and removing ASF from the continuity of a stable family setting.
See MCL 710.22(g). But, neither we nor the circuit court review the matter de novo, and it is not
for us to say whether the superintendent made the “correct” decision. In re Keast, 278 Mich App
at 423-424; In re Cotton, 208 Mich App at 184. Instead, considering the reasons given for
withholding consent, we look at whether the trial court clearly erred by finding that petitioners
failed to present clear and convincing evidence that the superintendent acted arbitrarily and
capriciously. In re Keast, 278 Mich App at 423-425. “[I]f 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 Cotton, 208 Mich
App at 185. Such is clearly the case here. There may be good reasons why petitioners should
have been permitted to adopt ASF. But, our focus must be on the reasons given for denial, and
considering those reasons—Samuel’s apparent vacillation in his commitment to adoption,
petitioners’ ages and health in relation to their ability to parent ASF in the long term, as well as
the suitability of adoption by Damon and Julie which will allow for a continued relationship
between ASF and petitioners—we cannot find clear error in the trial court’s conclusion that
petitioners failed to present clear and convincing evidence that the superintendent acted
arbitrarily and capriciously.
Moreover, contrary to petitioners’ arguments, the superintendent and the trial court
considered ASF as well as her individual circumstances, and the reasons for denying consent
were not invalid due to these circumstances. See In re CW, 488 Mich 935; 790 NW2d 383
(2010). Most relevant to the arguments by petitioners and the LGAL, the superintendent
acknowledged that petitioners had taken excellent care of ASF for 3½ years, since she was nine
months old. He also recognized that there was a bond between petitioners, SF, and ASF.
Neither the superintendent nor the trial court ignored these important facts; rather, in light of
other considerations, as detailed above, the superintendent nonetheless determined that consent
to adopt should be denied. While petitioners “may be able to marshal evidence” in opposition to
these conclusions, they have not shown by clear and convincing evidence that the
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superintendent’s determinations were frivolous, fanciful, or without factual support. Cf. In re
Cotton, 208 Mich App at 186. Under these circumstances, petitioners and the LGAL have not
shown that the superintendent acted arbitrarily and capriciously by withholding consent.
When challenging the trial court’s grant of the MIC’s motion for involuntary dismissal
under MCR 2.504(B)(2), the LGAL in particular maintains that the motion was prematurely
granted because she was not allowed to present her own case in its entirety before the trial court
determined that petitioners were not entitled to relief. Contrary to the LGAL’s arguments, a
motion under MCR 2.504(B)(2) is properly granted “after the presentation of the plaintiff’s
evidence,” and the “plaintiff” is the party who commences the action, MCR 2.201(A). A § 45
hearing in particular is commenced by a “petitioner” who is unable to obtain consent to adopt.
MCL 710.45(2). By statute, a “petitioner” is defined as an individual who files an adoption
petition with the court. MCL 710.22(r). The petitioner initiates the § 45 proceedings seeking
relief by filing a motion alleging that the withholding of consent was arbitrary and capricious,
and it is the petitioner who bears the burden of proof during the hearing. MCL 710.45(2), (7). In
contrast, the LGAL was not a “petitioner” and, as such, she did not commence the request for a
§ 45 hearing. Further, neither ASF nor the LGAL was an “interested party” to the adoption
proceedings, MCL 710.24a(1), meaning that the LGAL could not, and did not, intervene as a
party to the proceedings to challenge the withholding of consent. See Matter of Toth, 227 Mich
App 548, 555; 577 NW2d 111 (1998); MCL 710.21a(e). Instead, petitioners Samuel and Janet
requested the hearing, petitioners were the parties seeking relief, and it was petitioners who bore
the burden of proof during the hearing. Consequently, at the close of petitioners’ proofs, it was
appropriate for the trial court to consider whether petitioners were entitled to relief given the
facts and the law without providing the LGAL the opportunity to present a case separate from
petitioners.5 MCR 2.504(B)(2).
Moreover, we note that, in this case, the LGAL specifically complains that, most notably,
she was not allowed to present additional evidence regarding ASF’s attachment to petitioners
and SF, including an expert on attachment. However, although the LGAL objected to the MCI’s
motion for involuntary dismissal, the LGAL failed to make an offer of proof in the trial court
regarding this evidence. See MRE 103(a)(2); Detroit v Detroit Plaza Ltd Partnership, 273 Mich
App 260, 291-292; 730 NW2d 523 (2006). Further, based on the minimal information we have
5
We do not suggest that a LGAL is entirely prohibited from participating in a § 45 hearing.
There is support for the proposition that, when a LGAL has been appointed during child abuse
and neglect proceedings, some participation by a LGAL is envisioned during ensuing adoption
proceedings that occur during the LGAL’s continued representation of the child. See MCL
710.45(5); MCL 712A.17c(9); MCL 712A.17d. See also In re Row, unpublished opinion of the
Court of Appeals, issued June 24, 2014 (Docket No. 319389); In re AEG, unpublished opinion of
the Court of Appeals, issued November 7, 2013 (Docket No. 316599). This participation does
not, however, rise to the level of making a LGAL for an adoptee under age 14 an “interested
party” or a “petitioner.” See MCL 710.22(r); MCL 710.24a(1). Because the LGAL was not a
petitioner or even an “interested party,” the trial court could grant a motion for involuntary
dismissal under MCR 2.504(B)(2) before the LGAL completed her presentation of evidence.
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regarding the LGAL’s proffered expert witness, additional evidence regarding ASF’s attachment
to petitioners and SF would not have altered the outcome because the superintendent testified
that he was aware of ASF’s attachment to petitioners and SF, and he acknowledged that because
of that attachment, a change in placement would have to be very careful and monitored. Thus,
the superintendent and trial court were plainly aware of ASF’s circumstances, see In re CW, 488
Mich at 935, and the superintendent in fact recognized that ASF’s attachment with petitioners
favored granting consent to adopt, but he found that other factors provided good reasons to
withhold consent. Given the good reasons for denying consent despite ASF’s attachment to
petitioners, it was not sufficient for the LGAL to show that ASF’s attachment to petitioners
provided a good reason to grant consent and thus, even assuming her evidence would have
established good reasons to grant petitioners consent, such a showing does not establish that the
superintendent acted arbitrarily or capriciously by withholding consent for other reasons. See In
re Cotton, 208 Mich App at 183-185. Consequently, even if the LGAL should have been
permitted to present additional evidence, the LGAL has not shown ASF was prejudiced by this
denial and substantial justice does not require reversal of the trial court’s decision. See MCR
2.613(A); In re Utrera, 281 Mich App 1, 14; 761 NW2d 253 (2008).
Finally, the LGAL maintains that the trial court violated ASF’s rights to due process and
equal protection by refusing to permit the LGAL to present evidence and call witnesses at the
§ 45 hearing. This cursory argument, made without citation to relevant authority or application
of the law to the facts, is insufficiently briefed and we consider it to be abandoned. Yee v
Shiawassee Co Bd of Com'rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Further, without
addressing these claims in detail, we note that the LGAL had notice of the hearing and she
participated in the proceedings on ASF’s behalf by presenting evidence and calling a witness to
testify. Under these circumstances, we fail to see how ASF’s due process rights were violated.
See Cummings v Wayne Co, 210 Mich App 249, 253; 533 NW2d 13 (1995). Regarding the
claimed denial of equal protection, the LGAL fails to even identify a similarly situated group that
was treated differently than ASF and thus this claim must also fail. See Shepherd Montessori
Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 318; 783 NW2d 695 (2010).
Affirmed.
/s/ Joel P. Hoekstra
/s/ Kathleen Jansen
/s/ Patrick M. Meter
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