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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re KJS, Minor. April 21, 2016

No. 330722

Charlevoix Circuit Court Family Division

LC No. 15-001192-AY

Before: S AAD , P.J., and B ORRELLO and G ADOLA , JJ.

P ER C URIAM

.

Respondent appeals as of right an order vacating his stepparen t adoption of KJS because the parties “individually or toge ther for their own separate re asons, perpetrated a fraud upon the [trial c]ourt in pursuing the ste p-parent adoption.” We affirm

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I. BACKGROUND FACTS

KJS was born to petitioner in the Republic of the Philippines. His biological parents never married. After KJS’s birth, petitioner met respondent on line, and the parties participated in a religious marriage ceremony in 2011. Once petitioner secured a fiancé visa for herself and a green card for KJS, they came to the United States, and the par ties legally married in 2013. In March 2015, the parties petitioned for respondent to adopt KJS in a stepparent adoption. Thereafter, court officers c onducted a preadoption home study. Notes from the study described respondent as a father figure and a constant in KJS’s life and stated that KJS had never known another father figure. The officers stated that respondent was attentive and loving toward petitioner, and commented that both parties were pleased to pro ceed with the adoption and hoped that it would expedite KJS’s American citizenship process. The officers recommended adoption, concluding that the parties’ hom e was a stable and loving envir onment for KJS, that respondent intended to serve as KJS’s provider through the coming years, a nd that he understood the importance of providing a secure family for KJS and petitioner. On November 18, 2015, the trial

court entered an order fi nalizing the adoption.

The next day, November 19, 2015, the parties fought. Responde nt testified that during the fight, petitioner threatened to kill him and claimed that s he was leaving and taking KJS with her. Petitioner denied these claims, but agreed that a fight o ccurred. She explained that she left for work during the fight, and when she returned home, responde nt told her he wanted a divorce. Petitioner then sent three e-mails to the trial court, requesti ng a rehearing and seeking to set aside the stepparent adoption. Petiti oner stated that respondent ref used to attend marriage counseling, and he only wanted to obtain full custody of KJS and to force h er out of the marital home. The-2- trial court treated petitioner’s e-mails as a petition for rehe aring, and on November 24, 2015, it notified the parties that a hearing would be held on December 9 , 2015.

After the trial court set the matter for hearing, the parties’ relationship continued to deteriorate. On December 1, 2015, respondent filed for divorce in the Washtenaw Circuit Court. In his complaint, respondent alleged that he did not feel safe being married to petitioner due to her anger and mental health issues. He asserted that he was co ncerned that petitioner would attempt to physically harm him or flee with KJS. Respondent al so claimed that petitioner made death and kidnapping threats “[o]n many occasions,” and he ther efore sought an ex parte order granting him a mutual property re straining order, exclusive use of the parties’ home, joint legal and sole physical custody of KJS, and supervised parenting time for petitioner. On December 2, 2015, the Washtenaw Circuit Court gr anted respondent’s request for an ex parte order.

At the December 9, 2015 hearing in the adoption proceeding, th e trial court explained that the purpose of the hearing was “to determine whether or no t the situation, as it was presented to the Court on the day of finalization of the adoption, was infact a true representation of the intention of the partie s at that time.” The court noted that s hortly after it finalized the adoption, it received information indicating that the parties were separated or in a divorce or custodial conflict. Respondent asserted that he was not prepared for a f ull evidentiary hearing, and asked

for additional time or a continua nce so he could present witnes ses, but the trial court denied his request, stating that the hear ing had been properly noticed.

The trial court then took test imony from the parties. Petitio ner testified that she lived in a shelter during the summer of 2014 due to domestic abuse by resp ondent. Petitioner agreed that the parties fought in September 2015, but stated that when she threatened to stop the adoption, respondent became nicer and never asked for a divorce until aft er the adoption was finalized. Respondent denied that the partie s ever had a stable relationsh ip, and described their marriage as “volatile.” He explained that during the four-year marriage, t he parties argued nearly every day and discussed divorce on multiple occasions. Respondent also s uggested that the filing of the adoption petition had “very coincidental timing to the removal of the conditions for [petitioner’s] green card.” Both parties denied sharing any of their relation ship problems with the court officers who conducted the preadoption home study.

Following the hearing, the trial court vacated the final order of adoption as a result of the parties’ fraud and misrepresentation. The court explained that the purpose of the stepparent adoption was “to create a cohesive family unit for a child” and that a stable relationship was required before the court would approve such an adoption. The court found that t he parties never disclosed their problematic rel ationship to court officers, ins tead presenting themselves as a cohesive and loving couple. The trial court noted that if the parties had revealed the true nature of their relationship, it was ve ry unlikely that the court woul d have approved the adoption. 1

1 This Court stayed enforcement of the order vacating the adopti on pending appeal. In re KJS

, unpublished order of the Court of Appeals, entered December 18, 2015 (Docket No. 330722).-3- II. REHEARING PROCEDURE UNDER MCR 3.806

On appeal, respondent argues that the trial court’s order vacating the stepparent adoption should be overturned because the court failed to comply with th e rehearing procedure in

MCR 3.806. 2 Specifically, respondent argues that there was not good cause to grant a rehearing, the trial court failed to state its reasons for granting a rehe aring on the record, and the trial court failed to provide adequate notice of its decision to grant a re hearing. We disagree.

MCR 3.806(A) provides that a “party may seek rehearing [regard ing an adoption order] under MCL 710.64(1) by timely filing a petition stating the bas is for reheari ng.” MCL 710.64(1) states that “[u]pon the filing of a petition in court within 21 days after entry of any order under this chapter, and after due noti ce to all interested parties, t he judge may grant a rehearing and may modify or set aside the order.” A trial court “must base a decision on whether to grant a rehearing on the record, the pleading filed, or a hearing on th e petition. The court may grant a rehearing only for good cause . . . [and the] reasons for its d ecision must be in writing or stated on the record.” MCR 3.806(B). Good cause is generally defined as “a legally sufficient or

substantial reason.” In re Utrera , 281 Mich App 1, 22; 761 NW2d 253 (2008). “If the court grants a rehearing, the court ma y, after notice, take new evide nce on the record. It may affirm, modify, or vacate its prior decision in whole or in part. The court must state the reasons for its

action in writi ng or on the recor d.” MCR 3.806(C).

Respondent first argues that the trial court lacked good cause to grant a rehearing. The Michigan Adoption Code, MCL 710.21 et seq. , provides that “[i]f the petitioner for adoption is

married to the parent having legal custody of the child, the child sha ll not be made a ward of the

court after termination of the r ights of the other parent.” MC L 710.51(3) (emphasis added). MCL 710.51(5) states that the rights of a custodial parent shal l not be terminated “[i]f a parent having legal custody of the child is married to the petitioner for adoption .” (Emphasis added.) Further, the involuntary termina tion of a noncustodial parent’s rights can only occur “if the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child.” MCL 710.51(6) (emphasis added). In essen ce, the stepparent adoption statute, MCL 710.51(6), allows a trial court to overcome the pr esumption that a child’s best interests are served by awardi ng custody to a natural parent “t o allow the creation of a two-parent family where one did not exist before,” In re Newton , 238 Mich App 486, 493; 606 NW2d 34 (1999), which requires a marriage between the child’s custodial parent and adoptive stepparent.

In this case, good cause existed for a rehearing after the tri al court learned that the parties were contemplating ending the ma rriage underlying the stepparen t adoption. Shortly after the trial court finalized KJS’s adoption, petitioner sent the trial court a series of e-mails indicating that the parties began discussing divorce the day after the ado ption. The potential, immediate dissolution of the marriage that served as the necessary predic ate for the adoption constitutes a legally sufficient reason to gr ant rehearing pursuant to MCR 3. 806(B).

2 We review de novo questions involving the interpretation and a pplication of the court rules. Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd , 275 Mich App 256, 258; 739 NW2d 121 (2007).-4- Next, respondent argues that the trial court erred because it failed to articulate its reasons for finding good cause to grant a rehearing either in writing o r on the record. However, the trial court stated on the record at the December 9, 2015 hearing that it allowed the hearing “to

determine whether or not the situation, as it was presented to the Court on the day of finalization of the adoption, was in fact a true representation of the inten tion of the parties at that time,” and “whether or not this was intended to be a long-term family.” T he court explained that it scheduled the hearing after it r eceived “certain other document s that would indicate that the parties are now separated or in a divorce or a custodial confli ct.” It is clear from the trial court’s statements that it found good cause to proceed with a rehearing pursuant to MCR 3.806(B) in light of documents filed in the r ecord. No error occurred in t his regard.

Respondent next argues that the trial court effectively and im properly combined the hearing on petitioner’s request for a rehearing and the reheari ng itself into one hearing, and erroneously took new evidence onthe record without first expli citly granting rehearing or providing adequate notice of the rehearing as required by MCR 3 .806(C). Respondent argues that this action “adversely impacted his ability to present evi dence addressing the adoption rehearing.” We find no error i n the trial court’s conduct.

Again, MCR 3.806(C) states that “[i]f the court grants a rehearing, the court may, after notice, take new evidence on the record.” The statute on which this rule is based requires that all parties be granted “due notice” of any rehearing. MCL 710.64. Neither the court rule nor the statute defines notice or explai ns the type of notice required. Black’s Law Dictionary (10th ed) defines “due notice” as “[s]ufficient and proper notice” or “no tice that is legally adequate given the particular circumstance.”

On November 24, 2015, the trial c ourt notified the parties of the December 9, 2015 hearing, and the trial court articulated its reasons for procee ding with rehearing at the beginning of the December 9, 2015 hearing. Respondent argues that it was not clear from the notice whether the court would be holding a rehearing or merely a hear ing to address whether it should grant a rehearing, and he therefore lacked sufficient notice to collect and present evidence at the rehearing. Under the circumstances of this case, we believe th at the trial court’s notice was sufficient and legally adequate t o make respondent aware that t he trial court could proceed with rehearing on December 9, 2015. Moreover, the only adverse impa ct claimed by respondent as a result of the trial court’s alleged inadequate notice was that he was not able to present additional witnesses at the rehearing. How ever, after granting a rehearin g, the trial court was not required to accept any evidence respondent wished to offer before it aff irmed, modified, or vacated its previous decision in whole or i n part. See MCR 3.806(C) (stati ng that a trial court “may” take new evidence if it grants a rehearing); Veltman v Detroit Edison Co , 261 Mich App 685, 695; 683 NW2d 707 (2004) (“The use of the word ‘may’ in the court ru le is permissive.”). Therefore, we perceive no error requiri ng reversal in this case.

Respondent similarly argues that the trial court abused its di scretion by denying his request for a continuance because MCL 710.25 allows for a conti nuance if good cause exists. In

re MKK , 286 Mich App 546, 562; 781 NW2d 132 (2009). We review a tria l court’s decision to grant or deny a continuance for an abuse of discretion. In re King , 186 Mich App 458, 466; 465 NW2d 1 (1990). The trial court did not abuse its discretion by denying respondent’s request for a continuance so he could presen t additional witnesses because the court was not required to-5- consider any evidence respondent may have sought to present bef ore issuing its decision. MCR 3.806(C); Veltman , 261 Mich App at 695. Accordingl y, respondent’s argument lack s merit.

III. VACATING THE ADOPTION FOR FRAUD

Respondent next argues that the trial court erroneously conclu ded that the parties committed fraud in securing the adoption. We disagree. We rev iew a trial court’ s decision to set aside an adoption order under MCL 710.64(1) for an abuse of dis cretion, In re Myers , 131 Mich App 160, 163-164; 345 NW2d 663 (1983), and re view its factual findings f or clear error, BookGilbert v Greenleaf , 302 Mich App 538, 542; 840 NW2d 743 (2013).

Although good cause is required to grant the rehearing that all ows for vacating an adoption, neither the court rule, MCR 3.806, nor statute, MCL 7 10.64, articulate a standard for vacating an adoption. MCL 710.64(A) simply states that “the ju dge may . . . set aside the order,” and MCR 3.806(C) states that the trial court “may . . . vacate its prior decision in whole or in part.” Fraud is a potential basis for vacating an adoption. S ee In re Neagos , 176 Mich App 406, 411; 439 NW2d 357 (1989) (recognizing that “the power of equity includes the power to set aside an adoption where fraud at the time of adoption is shown” ); see also In re Kozak , 92 Mich App 579, 580-581, 584; 285 NW2d 378 (1979). To establish fraud , petitioner was required to prove the following:

(1) that [respondent] made a material representation; (2) that it was false; (3) that when [respondent] made it [he] knew it was false, or made it re cklessly, without any knowledge of its truth and as a positive assertion; (4) tha t [respondent] made it with the intention that [it would be] act[ed] upon . . . ; ( 5) that [it was relied upon]; and (6) that . . . injury [occurred]. [ In re Nord , 149 Mich App 817, 821; 386 NW2d 694 (1986).]

However, because courts are “extremely reluctant to set aside a doptions,” the fraud must be significant, positive fraud. Neagos , 176 Mich App at 412. When det ermining whether the fraud in this case constitutes significant, positive fraud, we again consider the underlying purpose of the stepparent adoption statute, which is “to allow the creatio n of a two-parent family where one did not exist before,” Newton , 238 Mich App at 493, predicated on a marriage between the biological custodial parent a nd the stepparent, MCL 710.51(6).

The parties petitioned for a stepparent adoption in March 2015 , and ultimately received a stepparent adoption on November 18, 2015. Immediately after th e court finalized the adoption, details emerged suggesting that t he parties did not intend to r emain married or create a twoparent family for KJS. Petitioner informed the court that resp ondent discussed divorce the day

after the court fina lized the adoption, and respondent describe d the parties’ relationship as consistently volatile. Petitioner testified that the parties’ relationship involved domestic abuse, which caused her to live in a shelter during the summer of 2014 . Respondent testified that the parties fought frequently and discussed suspending the adoption in September 2015. He also challenged petitioner’s motives for seeking the adoption becaus e the filing of the petition coincided with the removal of the conditions on petitioner’s gr een card. This evidence suggests that respondent made a material misrepresentation in petitionin g for the adoption that he and-6- petitioner intended to create a two-parent family for KJS, whic h constituted fraud. The trial court did not abuse its discretion by concluding on the basis o f this evidence that there was significant, positive fraud.

IV. CONSIDERING THE CHILD’S BE ST INTERESTS AT REHEARING

Finally, respondent argues that the trial court abused its dis cretion by vacating the stepparent adoption without mak ing best-interest findings. We disagree.

The purpose of the Adoption Code is “[t]o provide procedures an d services that will safeguard and promote the best interests of each adoptee,” and “the rights of the adoptee shall be paramount.” MCL 710.21a. The Adoption Code lists several best -interest factors, MCL 710.22(g), that must be considered “[u]pon the filing of anadoption petition . . . in the investigation” of the adoption. MCL 710.46(1)(a). However, MC L 710.64(1) does not discuss

the need for best-interest findi ngs at a rehearing. Caselaw su ggests that it is within a trial court’s discretion whether to make best-interest findings when deciding whether to vacate an adoption.

In In re Burns , 236 Mich App 291, 292-293; 599 NW2d 783 (1999), and In re Blankenship , 165 Mich App 706, 713-714; 418 NW2d 919 (1988), this Court held tha t trial courts did not abuse their discretion by cons idering a child’s best interests while holding hearings to vacate adoptions.

In In re Koroly , 145 Mich App 79, 88; 377 NW2d 346 (1985), this Court held tha t a trial court did not err by “failing to artic ulate on the record its applica tion of the factors evaluating the best

interests of the c hild” during a rehearing under MCL 710.64. B ecause Michigan caselaw allows a trial court to decide whether to make best-interest findings during a rehearing, the trial court

did not abuse its discreti on by declining to do so here.

Affirmed.

/s/ Henry William Saad /s/ Stephen L. Borrello

/s/ Michael F. Gadola