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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UNPUBLISHED 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: WILDER, P.J., and CAVANAGH and K. F. KELLY, JJ. 

PER CURIAM. 

 Petitioners, proceeding in propria persona, appeal as of right a circuit court order 

denying their § 45 challenge, MCL 710.45, to the decision of the Michigan Children Institute’s 

superintendent withholding consent to adopt, and dismissing petitioners’ 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 prior child protection proceeding 

because of ongoing physical abuse inflicted by their mother’s boyfriend. Petitioners offered their 

home as a placement setting for the children in the prior proceeding. Their request was denied, 

in part, because petitioner GP had been placed on Child Protective 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-degree 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 against contact with relatives due to 

the trauma the children had suffered from their exposure to abuse. Therefore, the children were 

placed in non-relative foster care. 

 The parental rights of AW were eventually terminated in June 2015.1

 Petitioners 

subsequently filed a petition with respondent, the Michigan Children’s Institute (MCI), 

requesting the MCI superintendent’s consent to their adoption of 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 This Court affirmed that decision in In re Wilson, unpublished opinion per curiam of the Court 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). 
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an investigation, the superintendent denied petitioners consent to adopt.2

 Petitioners requested a 

§ 45 hearing in circuit court, MCL 710.45, to challenge the superintendent’s decision. Following 

a hearing, the circuit court found that the superintendent’s decision to withhold consent to adopt 

was not arbitrary or capricious, and therefore, denied petitioners’ motion and dismissed their 

petition to adopt. Petitioners appeal that decision. 

II. REVIEW OF THE MCI SUPERINTENDENT’S DECISION 

Petitioners argue that the circuit court’s decision denying their § 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 decision to withhold consent was 

arbitrary and capricious.” “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 . . . 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 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). Whether the circuit 

court properly applied this standard is a question of law, which this Court reviews for clear legal 

error. Id. 

 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 plain error affecting petitioners’ 

substantial rights. Id.

 When reviewing the MCI superintendent’s decision, “if 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 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 an exercise of will or by caprice, without consideration or 

adjustment with reference to principles, circumstances, or significance, . . . decisive but 

unreasoned.” Goolsby v Detroit, 419 Mich 651, 678; 358 NW2d 856 (1984) (quotation marks 

and citations omitted). The generally accepted meaning of “capricious” is “[a]pt to change 

suddenly; freakish; whimsical; humorsome.” Id. (quotation marks and citations).

 

2

 The superintendent later granted a competing application for consent to adopt filed by the 

children’s foster parents. 
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 Petitioners argue that the circuit court “abused [its] discretion” 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 that 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 decision 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 evaluation of the evidence, or based on a 

finding that the superintendent should have subjected the foster parents to greater scrutiny. The 

circuit court also did not have discretion or authority to require the superintendent to compare the 

foster family and petitioners on an equal basis. The superintendent was not required to start with 

a presumption of equality between petitioners and the foster family; rather, she was prohibited 

from deciding the matter arbitrarily (by whim or caprice) or capriciously (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 the circuit court properly confined its review to whether the MCI 

superintendent withheld consent for reasons that were arbitrary and capricious. 

 The superintendent explained that she denied petitioners’ request for consent to adopt 

because moving the children out of a stable home, where they had begun to recover from the 

trauma of their abusive home, and where they had formed attachments with the foster parents, 

would be traumatic and disruptive for the very young children. This decision was not whimsical; 

it was based on reports by social workers and therapists who had been in contact with the 

children and the foster family. Moreover, the superintendent testified that she also gave weight 

to petitioner LP’s equivocations regarding her daughter AW’s failure to protect the children, and 

to petitioner GP’s past incident of abuse against AW. These facts raised reasonable concerns 

about the children’s possible contact with their mother, and the concern that GP might lose 

control of his temper as he did with his AW. The superintendent’s testimony established that 

good reasons for denying consent to adopt existed. See In re ASF, 311 Mich App at 436. 

 Petitioners assert that the circuit court judge was unprofessional, that he repeatedly 

expressed his dislike of adoption cases, and that he was biased in respondent’s favor. A party 

“claiming judicial bias must overcome a heavy presumption of judicial impartiality.” Jackson, 

292 Mich App at 598 (internal quotation marks and citation omitted). “[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 against a litigant, even if the rulings 

are erroneous.” Id. at 566. 

 We have reviewed the challenged conduct and comments by the circuit court judge and 

find no indication that he was biased or partial against petitioners or in favor of respondent. 

Although the judge candidly admitted his discomfort with competing adoption cases, there is no 

indication that he was partial to one side or the other, or inattentive to this case. On the contrary, 

the judge was fully engaged in the hearing. He actively addressed the attorneys’ arguments, 

even when they became redundant. Viewed in context, the judge’s comments about his 

displeasure with adoption cases pertained to the emotionally charged nature of the proceedings 

and the recognition that his decisions in such cases are difficult because children’s futures are at 

stake. The judge’s comments reflect conscientiousness, not indifference. 
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 The circuit court judge’s conduct and remarks do not evince bias against petitioners or in 

favor of respondent. The judge gave petitioners substantial leeway 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’ counsel’s repeated arguments that 

the arbitrary and capricious standard allowed him to delve into the details of the superintendent’s 

investigation. The instance in which the judge invited an objection on respondent’s behalf, but 

respondent’s counsel replied that she had no objection, involved petitioners’ questions to the 

superintendent regarding information obtained from the guardian ad litem, which implicated the 

attorney-client privilege. The judge did not overrule petitioners’ objections to respondent’s 

opening remarks based on “professional courtesy.” Rather, he rejected petitioners’ 

characterization of the argument as “eliciting testimony,” and replied that the attorneys have 

substantial freedom in opening statements. Regardless, the trial was not a jury trial, so there was 

no danger of a jury confusing arguments with evidence. 

 In sum, the record does not support petitioners’ claims that the circuit court improperly 

applied the law, or that its decision was the product of judicial bias or misconduct. 

III. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Petitioners argue that the attorney who represented them at the outset of this case, and the 

attorney who assumed their representation, committed numerous errors that amounted to 

ineffective assistance of counsel. Petitioners seek a new trial 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 defendant may obtain relief from a conviction if the 

performance of defense counsel “was so objectively deficient that 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 defendant’s constitutional right to 

liberty, and the concept of ineffective assistance as grounds for 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 estoppel did 

not preclude a criminal defendant from raising a claim of ineffective assistance of counsel in a 

criminal matter although that defendant had failed to prevail in 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 from his interest in asserting his 

constitutional right to effective counsel in the criminal proceeding.” Id. at 51. The Court 

explained that the defendant “sought monetary gain in the malpractice case, whereas in his 

criminal case he seeks protection of a constitutional right and his liberty.” Id. 

 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 that “ ‘[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). 
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 The constitutional interests arising from criminal prosecutions and child protection 

proceedings do not apply to this case. Unlike parents, grandparents 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 correct constitutional deficiencies in the 

prior version of the statute. Id. at 32. The prior version was constitutionally defective because it 

infringed upon “the parents’ fundamental right to manage the upbringing 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 and the interests of grandparents. Because petitioners do not have a 

constitutionally protected interest in their right to a relationship with the minor children, there is 

no basis for applying the concept of ineffective assistance of counsel to their legal representation 

in this adoption case. Accordingly, we reject petitioners’ request for relief on this ground. 

IV. ACCUSATIONS OF UNETHICAL CONDUCT 

 Petitioners accuse the MCI superintendent, the children’s guardian ad litem, and the 

foster parents of improper and unethical misconduct. These claims are without merit. 

 Petitioners contend that the MCI superintendent fabricated evidence and presented false 

testimony. Although petitioners questioned the foundation for some of the superintendent’s 

conclusions, there is no indication that the superintendent fabricated evidence or presented false 

evidence. The superintendent explained what documents and evidence she consulted, and which 

items she considered important. The superintendent candidly admitted that she did not conduct 

an in-depth investigation of all of petitioners’ circumstances. She explained that maintaining the 

continuity of the children’s placement with their foster parents weighed against placing them 

with petitioners. The superintendent was not inconsistent in her testimony regarding petitioner 

LP’s health problems or petitioner GP’s CPS history and expunged conviction. The 

superintendent testified that petitioner LP’s cancer was not a significant consideration in her 

decision to withhold consent to adopt because it was in remission. The superintendent did not 

contradict herself on this matter. The superintendent stated that she did not place a lot of 

emphasis on petitioner GP’s prior conviction for child abuse, but explained that the incident was 

of some concern because it was reflective of his ability to control 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 not shown that these accusations 

have any relevancy to this case. Likewise, petitioners’ remaining accusations against the GAL 

and against the foster parents have no relevance to the determination whether the MCI 

 
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superintendent’s decision denying petitioners’ request for consent to adopt was arbitrary and 

capricious. 

 Affirmed. 

/s/ Kurtis T. Wilder 

/s/ Mark J. Cavanagh 

/s/ Kirsten Frank Kelly