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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UNPUBLISHED 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: SAAD, P.J., and BORRELLO and GADOLA, JJ. 

PER CURIAM. 

 Respondent appeals as of right an order vacating his stepparent adoption of KJS because 

the parties “individually or together for their own separate reasons, perpetrated a fraud upon the 

[trial c]ourt in pursuing the step-parent adoption.” We affirm. 

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 online, 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 parties legally married in 2013. In 

March 2015, the parties petitioned for respondent to adopt KJS in a stepparent adoption. 

Thereafter, court officers conducted 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 proceed with the adoption and hoped 

that it would expedite KJS’s American citizenship process. The officers recommended adoption, 

concluding that the parties’ home was a stable and loving environment for KJS, that respondent 

intended to serve as KJS’s provider through the coming years, and that he understood the 

importance of providing a secure family for KJS and petitioner. On November 18, 2015, the trial 

court entered an order finalizing the adoption. 

 The next day, November 19, 2015, the parties fought. Respondent testified that during 

the fight, petitioner threatened to kill him and claimed that she was leaving and taking KJS with 

her. Petitioner denied these claims, but agreed that a fight occurred. She explained that she left 

for work during the fight, and when she returned home, respondent told her he wanted a divorce. 

Petitioner then sent three e-mails to the trial court, requesting a rehearing and seeking to set aside 

the stepparent adoption. Petitioner stated that respondent refused to attend marriage counseling, 

and he only wanted to obtain full custody of KJS and to force her out of the marital home. The 
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trial court treated petitioner’s e-mails as a petition for rehearing, 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 concerned that petitioner would 

attempt to physically harm him or flee with KJS. Respondent also claimed that petitioner made 

death and kidnapping threats “[o]n many occasions,” and he therefore sought an ex parte order 

granting him a mutual property restraining 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 granted respondent’s request for an ex parte order. 

 At the December 9, 2015 hearing in the adoption proceeding, the trial court explained 

that the purpose of the hearing was “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 

intention of the parties at that time.” The court noted that shortly 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 full evidentiary hearing, and asked 

for additional time or a continuance so he could present witnesses, but the trial court denied his 

request, stating that the hearing had been properly noticed. 

 The trial court then took testimony from the parties. Petitioner testified that she lived in a 

shelter during the summer of 2014 due to domestic abuse by respondent. 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 after the adoption was finalized. 

Respondent denied that the parties ever had a stable relationship, and described their marriage as 

“volatile.” He explained that during the four-year marriage, the parties argued nearly every day 

and discussed divorce on multiple occasions. Respondent also suggested 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 relationship 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 the parties never 

disclosed their problematic relationship to court officers, instead 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 very unlikely that the court would have approved the adoption.1

 

1

 This Court stayed enforcement of the order vacating the adoption pending appeal. In re KJS, 

unpublished order of the Court of Appeals, entered December 18, 2015 (Docket No. 330722). 
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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 the 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 rehearing on the record, and the trial court 

failed to provide adequate notice of its decision to grant a rehearing. We disagree. 

 MCR 3.806(A) provides that a “party may seek rehearing [regarding an adoption order] 

under MCL 710.64(1) by timely filing a petition stating the basis for rehearing.” 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 notice to all interested parties, the 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 the petition. The court may grant a 

rehearing only for good cause . . . [and the] reasons for its decision 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 may, after notice, take new evidence 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 writing or on the record.” 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 shall not be made a ward of the 

court after termination of the rights of the other parent.” MCL 710.51(3) (emphasis added). 

MCL 710.51(5) states that the rights of a custodial parent shall 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 termination 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 essence, the stepparent adoption 

statute, MCL 710.51(6), allows a trial court to overcome the presumption that a child’s best 

interests are served by awarding custody to a natural parent “to 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 trial court learned that the parties 

were contemplating ending the marriage underlying the stepparent 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 adoption. The potential, immediate 

dissolution of the marriage that served as the necessary predicate for the adoption constitutes a 

legally sufficient reason to grant rehearing pursuant to MCR 3.806(B). 

 

2

 We review de novo questions involving the interpretation and application of the court rules. 

Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256, 258; 739 NW2d 121 

(2007). 
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 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 or 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 intention of the parties at that time,” and 

“whether or not this was intended to be a long-term family.” The court explained that it 

scheduled the hearing after it received “certain other documents that would indicate that the 

parties are now separated or in a divorce or a custodial conflict.” 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 record. No error occurred in this regard. 

 Respondent next argues that the trial court effectively and improperly combined the 

hearing on petitioner’s request for a rehearing and the rehearing itself into one hearing, and 

erroneously took new evidence on the record without first explicitly 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 evidence addressing the adoption 

rehearing.” We find no error in 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 explains the type of notice required. Black’s Law Dictionary (10th ed) 

defines “due notice” as “[s]ufficient and proper notice” or “notice that is legally adequate given 

the particular circumstance.” 

 On November 24, 2015, the trial court notified the parties of the December 9, 2015 

hearing, and the trial court articulated its reasons for proceeding 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 hearing 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 that the trial court’s notice was 

sufficient and legally adequate to make respondent aware that the trial court could proceed with 

rehearing on December 9, 2015. Moreover, the only adverse impact 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. However, after granting a rehearing, the trial court was not required 

to accept any evidence respondent wished to offer before it affirmed, modified, or vacated its 

previous decision in whole or in part. See MCR 3.806(C) (stating 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 rule is permissive.”). Therefore, 

we perceive no error requiring reversal in this case. 

 Respondent similarly argues that the trial court abused its discretion by denying his 

request for a continuance because MCL 710.25 allows for a continuance if good cause exists. In 

re MKK, 286 Mich App 546, 562; 781 NW2d 132 (2009). We review a trial 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 present additional witnesses because the court was not required to 
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consider any evidence respondent may have sought to present before issuing its decision. 

MCR 3.806(C); Veltman, 261 Mich App at 695. Accordingly, respondent’s argument lacks 

merit. 

III. VACATING THE ADOPTION FOR FRAUD 

 Respondent next argues that the trial court erroneously concluded that the parties 

committed fraud in securing the adoption. We disagree. We review a trial court’s decision to set 

aside an adoption order under MCL 710.64(1) for an abuse of discretion, In re Myers, 131 Mich 

App 160, 163-164; 345 NW2d 663 (1983), and review its factual findings for clear error, BookGilbert v Greenleaf, 302 Mich App 538, 542; 840 NW2d 743 (2013). 

Although good cause is required to grant the rehearing that allows for vacating an 

adoption, neither the court rule, MCR 3.806, nor statute, MCL 710.64, articulate a standard for 

vacating an adoption. MCL 710.64(A) simply states that “the judge 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. See 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 recklessly, without 

any knowledge of its truth and as a positive assertion; (4) that [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 adoptions,” the fraud must be 

significant, positive fraud. Neagos, 176 Mich App at 412. When determining 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 creation 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 and 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 the court finalized the adoption, 

details emerged suggesting that the parties did not intend to remain married or create a twoparent family for KJS. Petitioner informed the court that respondent discussed divorce the day 

after the court finalized the adoption, and respondent described 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 because the filing of the petition 

coincided with the removal of the conditions on petitioner’s green card. This evidence suggests 

that respondent made a material misrepresentation in petitioning for the adoption that he and 
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petitioner intended to create a two-parent family for KJS, which constituted fraud. The trial 

court did not abuse its discretion by concluding on the basis of this evidence that there was 

significant, positive fraud. 

IV. CONSIDERING THE CHILD’S BEST INTERESTS AT REHEARING 

 Finally, respondent argues that the trial court abused its discretion by vacating the 

stepparent adoption without making best-interest findings. We disagree. 

The purpose of the Adoption Code is “[t]o provide procedures and 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 an adoption petition . . . in the 

investigation” of the adoption. MCL 710.46(1)(a). However, MCL 710.64(1) does not discuss 

the need for best-interest findings at a rehearing. Caselaw suggests 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 that trial courts did not abuse 

their discretion by considering 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 that a trial court 

did not err by “failing to articulate on the record its application of the factors evaluating the best 

interests of the child” during a rehearing under MCL 710.64. Because Michigan caselaw allows 

a trial court to decide whether to make best-interest findings during a rehearing, the trial court 

did not abuse its discretion by declining to do so here. 

 Affirmed. 

/s/ Henry William Saad 

/s/ Stephen L. Borrello 

/s/ Michael F. Gadola