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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

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

No. 333682 Wayne Circuit Court Family Division

LC No. 16-000117-AO

Before: W ILDER , P.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

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Petitioners, proceeding in propria persona , appeal as of right a circuit court order denying their § 45 challenge, MCL 710.45, to the decision of th e Michigan Children Institute’s superintendent withholding consen t to adopt, and dismissing pet itioners’ petition to adopt the

two minor children. We affirm.

I. FACTS AND PROCEEDINGS

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

The parental rights of AW were eventually terminated in June 2 015. 1 Petitioners subsequently filed a petition with respondent, the Michigan Chi ldren’s Institute (MCI), requesting the MCI superintende nt’s consent to their adoption o f the minor children. Following

1 This Court affirmed that decision in In re Wilson , unpublished opinion per curiam of the Court of Appeals, issued May 26, 2016 (Docket No. 328388).-2- an investigation, the superinte ndent denied petitioners consent to adopt. 2 Petitioners requested a § 45 hearing in circuit court, MCL 710.45, to challenge the sup erintendent’s decis ion. Following a hearing, the circuit court found that the superintendent’s de cision to withhold consent to adopt was not arbitrary or capricious, and therefore, denied petition ers’ motion and dismissed their petition to adopt. Petitione rs appeal that decision.

II. REVIEW OF THE MCI SUP ERINTENDENT’S DECISION

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

MCL 710.45(2) provides that if an adoption petitioner is denied consent to adopt, “the petitioner may file a motion with the court alleging that the d ecision to withhold consent was arbitrary and capricious.” “Unle ss the petitioner establishes by clear and convincing evidence

that the decision to withhold cons ent was arbitrary and caprici ous, the court shall deny the motion . . . and dismiss the petition to adopt.” MCL 710.45(7) . Thus, “[p]ursuant to MCL 710.45, a family court’s review of the superintendent’s decisio n to withhold consent to adopt a state ward is limited to determining whether the adoption petit ioner has established clear and convincing evidence that the MCI superintendent’s withholding o f consent was arbitrary and capricious.” In re Keast , 278 Mich App 415, 423; 750 NW2d 643 (2008). Whether the circ uit court properly applied this sta ndard is a question of law, whic h this Court reviews for clear legal

error. Id

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

When reviewing the MCI superint endent’s decision, “if there ex ist good reasons why consent should be granted and good reasons why consent should b e withheld, it cannot be said that the representative acted ar bitrarily and cap riciously in w ithholding that consent even though another individual . . . might have decided the matter in favor of the petitioner.” In re ASF , 311 Mich App 420, 436; 876 NW2d 253 (2015), quoting In re Cotton , 208 Mich App 180, 185; 526 NW2d 601 (1994). The generally accepted meaning of “arbitrary” is “determined by whim or caprice,” or “arrived at through a n exercise of will or by capr ice, without consideration or adjustment with reference to principles, circumstances, or sign ificance, . . . decisive but

unreasoned.” Goolsby v Detroit , 419 Mich 651, 678; 358 NW2d 856 (1984) (quotation marks and citations omitted). The generally accepted meaning of “cap ricious” is “[a]pt to change suddenly; freakish; whimsical; humorsome.” Id. (quotation marks and citations).

2 The superintendent later granted a competing application for c onsent to adopt filed by the children’s foster parents.-3- Petitioners argue that the circ uit court “abused [its] discret ion” and improperly believed that it “didn’t have any discretion in making a decision based on [its] faulty interpretation of the legislature[’]s intentions of the law.” The record discloses t hat the circuit court accurately recited the governing standard. Indeed, its recitation of the law is a nearly verbatim statement of the applicable legal standard set forth in this Court’s decisio n in In re ASF , 311 Mich App at 436. The court properly acted within the narrow confines of MCL 710. 45. It did not have discretion to revisit the superintendent’s decision based on its own evalu ation of the evidence, or based on a finding that the superintendent should have subjected the foste r parents to greater scrutiny. The

circuit court also did not have discretion or authority to requ ire the superintende nt to compare the foster family and petitioners on an equal basis. The superinte ndent was not required to start with a presumption of equality between petitioners and the foster fa mily; rather, she was prohibited from deciding the matter arbitra rily (by whim or caprice) or ca priciously (freakish or apt to change suddenly). See MCL 710.45(7); Goolsby , 419 Mich at 678; In re ASF , 311 Mich App at

436. The record discloses that t he circuit court properly conf ined its review to whether the MCI superintendent withheld consent for reasons that were arbitrary and capricious.

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

Petitioners assert that the circuit court judge was unprofessi onal, that he repeatedly expressed his dislike of adoption cases, and that he was biased in respondent’s favor. A party “claiming judicial bias must overc ome a heavy presumption of ju dicial impartiality.” Jackson

, 292 Mich App at 598 (internal quotation marks and citation omit ted). “[A] trial judge’s remarks made during trial, which are critical of or hostile to counsel, the parties, or their cases, ordinarily do not establish disqualifying bias.” In re MKK , 286 Mich App 546, 567; 781 NW2d 132 (2009). Bias is not established “merely by repeated rulings ag ainst a litigant, even if the rulings

are erroneous.” Id . at 566.

We have reviewed the challenged conduct and comments by the ci rcuit court judge and

find no indication that he was bi ased or partial against petiti oners or in favor of respondent. Although the judge candidly admitt ed his discomfort with compet ing adoption cases, there is no indication that he was partial to one side or the other, or ina ttentive to this case. On the contrary, the judge was fully engaged in the hearing. He actively addres sed the attorneys’ arguments, even when they became redundant. Viewed in context, the judge’ s comments about his displeasure with adoption cases p ertained to the emotionally ch arged nature of the proceedings and the recognition that his decisions in such cases are diffic ult because children’s futures are at stake. The judge’s comments re flect conscientiousness, not ind ifference.-4- The circuit court judge’s conduct and remarks do not evince bi as against petitioners or in favor of respondent. The judge gave petitioners substantial le eway in allowing their counsel to question the MCI superintendent outside the narrow scope of the arbitrary and capricious inquiry. The judge demonstrated patience with petitioners’ cou nsel’s repeated arguments that the arbitrary and capricious sta ndard allowed him to delve into the details of the superintendent’s investigation. The instance in which the judge invited an obje ction on respondent’s behalf, but respondent’s counsel replied that she had no objection, involve d petitioners’ questions to the superintendent regarding infor mation obtained from the guardian ad litem, which implicated the attorney-client privilege. The judge did not overrule petition ers’ objections to respondent’s opening remarks based on “professional courtesy.” Rather, he r ejected petitioners’ characterization of the argument as “eliciting testimony,” and replied that the attorneys have substantial freedom in opening statements. Regardless, the tri al was not a jury trial, so there was no danger of a jury confusing a rguments with evidence.

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

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioners argue that the attorney who represented them at th e outset of this case, and the attorney who assumed their representation, committed numerous e rrors that amounted to

ineffective assistance of counsel. Petitioners seek a new tria l on that basis. The question whether ineffective assistance of counsel is grounds for relief in an adoption case is a question of law, which is reviewed de novo. Estes v Titus , 481 Mich 573, 578-579; 751 NW2d 493 (2008).

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

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The criminal law concept of ineffective assistance of counsel applies by analogy to child protection proceedings. In re J R Martin , ___ Mich App ___; ___ NW2d ___ (2016) (Docket Nos. 330231; 330232); slip op at 5. The basis for applying the concept of ineffective assistance of counsel to child protection proceedings is the recognition t hat “ ‘[p]arents have a significant interest in the companionship, care, custody, and management of their children, and the interest is an element of liberty protected by due process.’ ” In re Sanders , 495 Mich 394, 409; 852 NW2d 524 (2014), quoting In re JK , 468 Mich 202, 210; 661 NW2d 216 (2003).-5- The constitutional interests aris ing from criminal prosecution s and child protection proceedings do not apply to this case. Unlike parents, grandpa rents do not have a fundamental right to a relationship with their grandchildren. Brinkley v Brinkley , 277 Mich App 23, 31; 742 NW2d 629 (2007). In Brinkley , a case involving grandparents’ right to visitation with their grandchildren, this Court noted that MCL 722.27b, which limits the circumstances in which grandparents can petition for visitation, was amended to correc t constitutional deficiencies in the prior version of the statute. Id . at 32. The prior version was constitutionally defective beca use it infringed upon “the parents’ fundamental right to manage the up bringing of their children.” Id

. When parental rights have been terminated, as occurred in this case, there is no longer a conflict between the rights of parents a nd the interests of grandparents . Because petitioners do not have a constitutionally protected interest in their right to a relatio nship with the minor children, there is no basis for applying the concep t of ineffective assistance of counsel to their legal representation in this adoption case. Accordingly, we reject petitioners’ req uest for relief on this ground.

IV. ACCUSATIONS OF UNETHICAL CONDUCT

Petitioners accuse the MCI superintendent, the children’s guar dian ad litem, and the foster parents of improper and unethical misconduct. These cla ims are without merit.

Petitioners contend that the MCI superintendent fabricated evi dence and presented false testimony. Although petitioners q uestioned the foundation for some of the superintendent’s conclusions, there is no indica tion that the superintendent fab ricated evidence or presented false evidence. The superintendent exp lained what documents and evid ence she consulted, and which items she considered important. The superintendent candidly ad mitted that she did not conduct an in-depth investigation of all of petitioners’ circumstances. She explained that maintaining the continuity of the children’s pl acement with their foster parent s weighed against placing them with petitioners. The superintendent was not inconsistent in he r testimony regarding petitioner LP’s health problems or petitioner GP’s CPS history and expunge d conviction. The superintendent testified that pe titioner LP’s cancer was not a significant consideration in her decision to withhold consent to adopt because it was in remissi on. The superintendent did not contradict herself on this matter. The superintendent stated t hat she did not place a lot of emphasis on petitioner GP’s prior conviction for child abuse, b ut explained that the incident was

of some concern because it was re flective of his ability to con trol his temper.

Petitioners’ accusations against the children’s GAL primarily involve an unrelated case in which the attorney was involved as a party. Petitioners have n ot shown that these accusations have any relevancy to this case. Likewise, petitioners’ remain ing accusations against the GAL and against the foster parents have no relevance to the determi nation whether the MCI-6- superintendent’s decision denyi ng petitioners’ request for cons ent to adopt was arbitrary and capricious.

Affirmed.

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