-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED December 4, 2014

In re COH, ERH, JRG, and KBH Minors. No. 309161 Muskegon Circuit Court Family Division
LC No. 08-036989-NA

In re COH, ERH, JRG, and KBH Minors. No. 312691 Muskegon Circuit Court Family Division LC Nos. 2011-007780-AF; 2011-007781-AF; 2011-007782-AF;
2011-007783-AF

ON REMAND

Before: T ALBOT , P.J., and M ARKEY and R IORDAN , JJ.

P ER C URIAM

.

In Docket No. 309161, appellant Lori Scribner, paternal grandmother of three of the four minor children, had appealed by leave granted th e trial court’s order denying her petition for a juvenile guardianship with respect to all four minor children. We previously reversed that order and remanded “for entry of an order appointing appellant the j uvenile guardian of the minor
children.” In re COH, ERH, JRG, and KBH Minors, unpublished opinion per curiam of the Court of Appeals, issued June 25, 2013 (Doc ket Nos. 309161 and 312691), slip op at 1. In Docket No. 312691, the superintende nt of the Michigan Children’ s Institute (MCI) had denied Scribner’s request for consent to adopt the children, which decision was upheld by the trial court, and Scribner appealed the court’s order rejecting her cha llenge of the superint endent’s decision. We held that the adoption issue was moot gi ven our holding in Docket No. 309161 that Scribner-2- was to be appointed th e children’s guardian. Id. 1 The Michigan Supreme Court reversed our ruling in Docket No. 309161 in regard to the guardi anship issue and reinst ated the trial court’s order denying Scribner’s guardianship request. In re COH, 495 Mich 184, 187-188, 208; 848 NW2d 107 (2014). With respect to Docket No. 312691 and the adoption issue, our Supreme
Court remanded the matter to us for consideration of Scribner’s appeal relative to the trial court’s rejection of Scribner’s argument that the MCI s uperintendent had improperly denied her request for consent to adopt the children. Id. at 208. We now affirm the trial court’s ruling and the superintendent’s decision concerning Scribner’s reque st for consent to adopt.

The underlying facts and procedural history of this case were extensively set forth in our prior opinion and by the Supreme Court in its opinion, focusing primarily on the guardianship matter. Given the remand order, we turn our at tention to the a doption issue and attendant facts. A preliminary adoption family assessment prepared by Bethany Christian Services (BCS) recommended that Scribner’s petition for consent to adopt the four minor children be denied. The assessment noted that the children had expresse d a wish to remain in the care of their foster parents. The foster parents also sought to a dopt the children. The assessment further indicated that the trial court, in denying Scribner’s earlier guardianship pe tition, had found that it was not entirely clear that Scribner would keep the childr en away from their birth parents, whose parental rights had been terminated. The assessment additionally provided that the children’s behavior regressed after they had visited wi th Scribner and that the children revealed that they did not feel
safe with Scribner. The assessment also noted that the children had bonded with their foster parents and had made significant progre ss since being placedin their home.

The MCI superintendent issued a decisi on denying Scribner’s requ est for consent to adopt the children. The superintendent noted that various factors had beenconsidered. The MCI superintendent observed that the children had special needs resulting from the chronic neglect they had suffered in their birth home and that it was unknown whether Scri bner could meet those needs on a permanent basis. Th e superintendent indicated that the children had resided in their foster home for more than three years, had ove rcome symptoms of anxiety after being removed from their birth home, had bonded with their fost er parents and desired to be adopted by them, and had developed ties in the community. Th e MCI superintendent found that removing the children from their foster home and placing them w ith Scribner in Florida would be traumatic.

Scribner challenged the superinte ndent’s decision in the trial court, arguing that there was clear and convincing evidence that the decision was arbitrary and capricious and petitioning the court to approve her request to adopt the children. The trial court conducted a hearing on the matter, which hearing spanned four days. We thoroughly discuss the supe rintendent’s testimony at the hearing later in this opi nion when analyzing the issues posed on appeal. The trial court issued an initial decision rej ecting Scribner’s challenge of the superintendent’s determination,
but it withdrew that decision af ter additional information became available. In September 2012,

1 Docket Nos. 309161 and 312691 had been consolidated by this Court. In re COH, ERH, JRG,
and KBH Minors , unpublished order of the Court of A ppeals, entered March 26, 2013 (Docket Nos. 309161 and 312691).-3- the trial court issued an am ended opinion and order, upholdi ng the MCI superintendent’s decision and denying Scribner’s petition to adopt the childre n. The court found that the superintendent’s decision was supported by: te stimony from the children’ s counselor that the children would be traumatized by a separation from their foster parents; the fact that the children’s behavior had improved si gnificantly since their placement with the foster parents; the children’s expressed preference to remain with th eir foster parents; and the children’s improved school performance since the placement with thei r foster parents. Th e trial court rejected
Scribner’s assertion that the MCI superintendent’s decision was clearly and convincingly arbitrary and capricious. The court carefully cons idered each of the myriad arguments presented by Scribner in support of her challe nge and found them all to lack merit. We note that the minor
children have now been in the care of thei r foster parents for over six years.

“The MCI superintendent repr esents the state of Michigan as guardian of all children committed to the state by a family court after termination of parental rights.” In re Keast , 278 Mich App 415, 423; 750 NW2d 643 (2008), citi ng MCL 400.203. “The superintendent of the [MCI] or his or her designee is authorized to co nsent to the adoption . . . of any child who may
have been committed to the institute.” MCL 40 0.209(1). “Consent by the superintendent to the adoption of a state ward is requi red before the family court can approve a prospective adoption.”

In re Keast , 278 Mich App at 423, citing MCL 710.43(1) (b). MCL 710.45(1) provides that a court is not permitted to allow the filing of an adoption petition unless the petition is accompanied by the consent required under MCL 710.43(1)(b) or, where no consent was forthcoming, accompanied by a motion brought unde r MCL 710.45(2) challenging the denial of consent. MCL 710.45(2) states that “[i]f an ad option petitioner has been unable to obtain the consent required by section 43(1)(b) . . ., the pe titioner may file a motion with the court alleging
that the decision to withhold consent was arbitrary and capricious .” (Emphasis added.) “Unless the petitioner establishes by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court shall de ny the motion described in [MCL 710.45(2)] and dismiss the petition to adopt.” MCL 710.45(7) (emphasis added).

In In re Keast , 278 Mich App at 423-425, the panel disc ussed the appropriate standard of review and the principles found in MCL 710.45, stating:

Pursuant 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 establ ished clear and convincing evidence that the MCI superintendent's withholding of consent was arbitrar y and capricious. Whether the family court properly applied this standard is a question of law reviewed for clear legal error.

. . .

[T]he family court is not permitted to decide the adoption issue de novo,
but rather must determine whether there is clear and convincing evidence that the decision maker acted arbitrarily and capri ciously. The generally accepted meaning of “arbitrary” is “determined by whim or caprice,” or “arrived at through an exercise of will or caprice, without consid eration or adjustment with reference to principles, circumstances, or significan ce, . . . decisive but unreasoned.” The-4- generally accepted meaning of “capricious” is “apt to change suddenly; freakish; whimsical; humorsome.”

The initial focus of the hearing is on the reasons gi ven for withholding consent to the adoption. It is the absen ce of any good reason to withhold consent, rather than the presence of good reasons to grant it, that indicate s that the decision maker has acted arbitrarily and caprici ously. [Citations a nd internal quotation marks omitted; final ellipsis in original.]

In In re Cotton , 208 Mich App 180, 184; 526 NW2d 601 (1994), this Court similarly explained:

The fact that the Legislature in draf ting the statute limited judicial review
to a determination whether consent was w ithheld arbitrarily and capriciously, and further required that such a finding be based upon clear and convincing evidence, clearly indicates that it di d not intend to allow the pr obate court to decide the adoption issue de novo and substitute its judgment for that of the representative of the agency that must consent to the adoption. Rather, the clear and unambiguous language terms of the statute indicate that the decision of the representative of the agency to withhold consent to an adoption must be upheld unless there is clear and convincing evidence that the represen tative acted arbitrarily and capriciously. Thus, the focus is not whether the representative made the “correct” decision or whether the probate judge would have d ecided 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, as petitioners seem to suggest, an opportunity for a pet itioner to make a case relative to why the consent should have been granted, but rath er is an opportunity to show that the representative acted arbitrarily and caprici ously in withholding that consent. It is only after the petitioner has sustaine d the burden of showing by clear and convincing evidence that the representative acted arbitrarily a nd capriciously that the proceedings may then proceed to convi ncing the probate court that it should go ahead and enter a fina l order of adoption.

Accordingly, the question properly framed is not whether Scribn er should have been granted consent to adopt or whether she was wo rthy of adopting the children, but whether there was clear and convincing ev idence that the superint endent acted arbitraril y and capriciously in withholding consent, which was withheld, effectivel y, on the basis that it was in the best interests of the children to be adopted by the foster parent s. We hold that the MCI superintendent did not reach his decision by whim or caprice, nor was his determination freakish, whimsical, or humorsome. The superintendent’s grounds for denying Scribner’s request for consent to adopt, and the trial court’s reasoning fo r upholding the superintendent’s de cision, were sound and valid. There was not a complete absence of any good reas on to withhold consent. And the trial court properly applied the standardof review.

Scribner argues that the trial court erred in holding that the superint endent’s decision was not arbitrary and capricious, gi ven that the court did not corre ctly apply the arbitrary and capricious standard, where the supe rintendent did not have all of the relevant facts when making-5- his decision, and where much of the information that he did have was inaccurate. Therefore, according to Scribner, the superintendent, absent complete and correct information, could not
have considered each ch ild’s individual circumstances and could not have provided good reasons for denying consent.

The MCI superintendent gave exhaustive tes timony at the court hearing, which we shall review. He acknowledged that hedid not meet with Scribner or the children before rendering his decision. The superintendent testified that he re viewed the preliminary adoption assessment. He indicated that if Scribner disput ed the statement that she had not met the youngest child before the child entered foster care, the dispute should be resolved. The superi ntendent also conceded that a case conference report by BCS indicated th at Scribner had maintained that she had a relationship with the children before the children were placed in foster care. The superintendent further agreed that his decision stated that Scribner had only a limited relationship with the
children. He testified that he did not have info rmation regarding how much time Scribner in fact spent with the children. The superintendent stat ed that he wrote in his decision that it was
unknown if Scribner could care for the children on a full-time permanent basis because she had never done so, notwithstanding the f act that she had indicated that she was willing to do so. He did not deny that Scribner’s training as a regist ered nurse would likely help her in meeting the children’s needs, as would a good school system. The superintende nt testified that he had no reason to dispute the informati on that Scribner gave to BCS.

The MCI superintendent acknowledged that he rescinded his origin al consent decision when he learned that the foster parents had beenthe subject of licensing and protective services investigations because they used corporal punishme nt. The superintendent testified that he relied on reports from the foster care worker, the adoption worker, and the Court Appointed Special Advocate (CASA) worker as support for his stat ement in his amended consent decision that the children had made significant progress after bei ng placed with their fo ster parents. The superintendent conceded that before making his original decision he wa s not aware of a report from a therapist who opined that the children would not be traumati zed by a move to Florida, but he had also reviewed a report from the children’ s regular therapist who indicated that such a move would be traumatic. The superintendent tes tified that he partially based his conclusion that
a move to Florida would be traumatic for the ch ildren on the fact that the children had already
been removed from their mother’s home due to abuse and neglect, and that the children had been together in the foster home for 3 1⁄2 years, forming a strong bond with their foster parents. He recognized that the children could likely adjust to livi ng with Scribner in Flor ida, but opined that the harm of moving them outwei ghed any benefit in doing so.

The superintendent stated that he based hi s conclusion that the children had a significant psychological relationship with their foster pare nts, but not with Scribner, on information he received from various caseworkers, and in partic ular the CASA worker, who told him that some of the children woke up crying wh ile visiting Scribner because they wanted to return to their foster home. The superintendent testified that he based his conclu sion that the children had made significant progress in school and had established community ties after they entered foster care on reports from caseworkers; he believed that the children should be allowed to maintain that progress. He did not recall whether he had personally reviewed school records.-6- The MCI superintendent felt that he could consider the expressed preference of a child regardless of the child’s age. He noted that by statute a child of at least 14 years of age must consent to adoption, see MCL 710.43(2), but he did not believe that he was precluded by statute or policy from considering the opinion of chil dren who were under 14 years of age. The superintendent testified that he did not speak w ith the children directly regarding their wishes.

As indicated earlier, the superintendent’s primary reasons for denying Scribner’s petition to adopt were the children’s str ong attachment to their foster fa mily, their ties to school and the community, the progress they had ma de while in foster care, and thei r desire to remain with their foster family.

On cross-examination by the guardian ad lite m, the superintendent stated that he found both Scribner and the foster parents to be suitable candidates to adopt the children and that he did not reject Scribner’s petition because of anyt hing negative about her. The superintendent reiterated that his decision was based heavily on th e fact that the children had been in the foster home for some time, they had thrived in the en vironment, and they had developed ties to the family. The superintendent was recalled later in the hearing process. He acknowledged that he
had not had access to certain information at th e time he made his original decision, but he
declared that none of the information he had le arned since that time caused him to change his

stance.

Scribner argues that the supe rintendent’s statement that he did not change his mind after receiving additional information established that his ultimate decision was arbitrary and capricious. However, we disagree with that logic, and the tria l court was entitled to find the superintendent’s testimony credible. The supe rintendent provided co gent reasons for his decision to deny Scribner’s petition. Scribner di sagrees with the trial court’s decision, but that disagreement does not establish error on the part of the court. While there may have been problematic and questionable aspects of the s uperintendent’s decision-making process, the superintendent, simply put, did not act arbitrarily and capricious ly in withholding consent, and there certainly was not clear and convincing evidence of an arbitrary and capricious decision justifying reversal. Once again, we conclude that the MCI superinte ndent did not reach his decision by whim or caprice, that his determinat ion was not freakish, whimsical, or humorsome, that the grounds for the supe rintendent’s decision were notdevoid of any good reason to withhold consent, and that the tria l court properly applied the standa rd of review. Also, there is nothing to indicate that the circum stances of any of the children individually dictated a different
conclusion.

Scribner notes that the trial court relied on the opinion of the children’s therapist and the opinion of the CASA worker, and that had those opinions been admitted into evidence it is possible that she could have used them to im peach the MCI superintendent’s testimony. As Scribner acknowledges, however, th e MCI superintendent testif ied that he reviewed both opinions.

Scribner next argues that BCS and the MC I superintendent were biased and were inflexibly determined to deny her petition to ad opt the children, thereby acting in a manner that violated her constitutional right to due process. This Court revi ews de novo consti tutional issues. Goldstone v Bloomfield Twp Pub Library , 479 Mich 554, 558; 737 NW2d 476 (2007). Scribner-7- asserts that because BCS had a financial interest in placing the children in Michigan, bias must be imputed to BCS given that it had a pecuniary interest in the outcome of the proceeding. And the MCI superintendent’s acceptance of the BCS recommendation therefore resulted in an outcome that was arbitrary and capricious. However, there is an absolute dearth of evidence in the record suggesting that BCS considered in any way its financial position when making its
recommendations. The director of BCS’s Grand Rapids office te stified that a discussion of finances is never part of an adoption decision. Scribner points to no evidence that contradicts this testimony.

Similarly, Scribner’s assertion that the supe rintendent showed improper favoritism to the foster parents is without foundation in the record. The superintendent testified that he had no personal animosity against Scribner and that he did not show any favoritism toward the foster parents. Instead, it was contemplation of the surrounding circumstances that drove the superintendent’s decision. The essence of Scribner’s argument is that because she was qualified to adopt the children, the recommendation by BCS th at the foster parents’ petition to adopt be granted and the MCI superintendent’s acceptance of that recommendation mandate a conclusion that BCS and the superintendent were not impartia l. This argument is simply not supported by the record. And the premise is not legally sound , considering that the th reshold question was not whether consent should have been granted in li ght of Scribner’s qualifications, but whether the superintendent acted arbitrarily and capriciously in withholding consent. In re Keast , 278 Mich App at 425 (“It is the absence of any good reason to withhold cons ent, rather thanthe presence of good reasons to grant it, that indicates that the decision maker has acted arbitrarily and capriciously.”). Given the failure of Scribner’ s arguments underlying her due process claim, the due process argument necessarily fails.

Scribner next argues that the MCI superi ntendent and BCS vi olated Scribner’s constitutional right to fair and just treatment by conducting onl y a limited investigation, by making decisions on incomplete and inaccurate in formation, and by failing to contact Scribner. Scribner additionally maintains that both the MCI superintendent and BCS violated MCL 722.954a(5), which provides that a relative must be given “special consideration” when determining the placement of a child. In a suppl emental brief, Scribner argues that the Supreme
Court’s decision in In re COH, 495 Mich 184, which held that MCL 722.954a does not create a preference for relatives when appointing a guardian for a child under MCL 712A.19c(2), does not control the outcome of this appeal.

Again, this Court reviews constitutional issues de novo, Goldstone , 479 Mich at 558, and
we likewise review de novo an is sue of statutory interpretation, In re COH, 495 Mich at 191. The Michigan Constitution provides that “[t]he ri ght of all individuals, fi rms, corporations and voluntary associations to fair an d just treatment in the course of legislative and executive investigations and hearings shal l not be infringed.” Const 1963, art 1, § 17. To the extent that this clause applies in the context of this case, we conclude that Scribner was not denied fair and just treatment for the reasons alre ady articulated in this opinion a nd given that the superintendent and the trial court acted in accordance with the g overning statutes. Revers al is unwarranted.

MCL 722.954a sets forth a prefer ence for relatives when placi ng a child after the initial removal of the child from parental cust ody. MCL 722.954a(5) provi des that “[b]efore determining placement of a child in its care, a supervising agency shall give special-8- consideration and preference to a ch ild's relative or relatives who ar e willing to care for the child, are fit to do so, and would meet the child's de velopmental, emotional, and physical needs.” Subsection (5) of MCL 722.954a was added to the statute when it was amended by 2010 PA 265, becoming effective on December 14, 2010. In the appeal of the guardianship matter, our Supreme Court relied on the version of MCL 722.954a in effect before December 14, 2010, “[b]ecause the trial court decided the issues relevant to the children’s initial placement before December 14, 2010.” In re COH , 495 Mich at 193 n 5. Of course, the same analysis or theory applies now; the date of the initial placement di d not magically change. The Supreme Court held that MCL 722.954a “applies from the moment a child is removed from his or her parents' care, i.e., before any placement decision is made, and, consequently, the requirements of MCL 722.954a are intended to guide the DHS 's initial placement decision.” Id. at 195. The Court
elaborated:

[T]he preference for placement w ith relatives created in MCL 722.954a does not apply outside the time period for determining a child's initial placement immediately after removal and, therefore, does not apply to a c ourt's decision to appoint a guardian under MCL 712A.19c(2) after parental rights are terminated. Accordingly, although the Court of A ppeals accurately c oncluded that MCL 722.954a creates a statutory preference for placement with relatives, the plain language of MCL 722.954a limits the applic ability of the preference to only the initial stage of the process, i.e., immediat ely after a child is removed from his or her parents' care and duri ng the statutory review pe riod established in MCL 722.954a(3). Therefore, we agree with th e Court of Appeals' conclusion in In re AEG & LEG, unpublished opinion per curiam of the Court of Appeals, issued November 7, 2013 (Docket No. 316599), th at the plain language of MCL 722.954a “indicates that the Legislature inte nded the statute to provide procedural requirements where a child is removed pursuant to a child protective proceeding,” but that there “is no indication that [M CL 722.954a] was intended to apply to . . . decisions after termination,” which in cludes a court's decision regarding a guardianship petition under MCL 712A.19c(2). [ In re COH, 495 Mich at 198- 199 (ellipsis and second a lteration in original).]

Clearly, this analysis is equally applicable to adoption petitions after parental rights have been terminated. The 2010 amendment, even if applicable here, would notlater that conclusion, given the Supreme Court’s following comments in In re COH about the amendment:

As noted, the Legislature amended MCL 722.954a, effective December 14, 2010. 2010 PA 265. We also note that as part of the 2010 amendments, the Legislature added MCL 722.954a(5 ), which expressly requires the DHS to “give special consideration and preference to a child's relative or relatives who are willing to care for the child, are fit to do so, and would meet the child's developmental, emotional, and physical n eeds” and requires the DHS to do so “ [b]efore determining placement of a child” in the DHS's care. Emphasis added. Accordingly, although we do not expressly apply subsectio n (5) in this case, we note that our analysis is not inconsistent with this new statutory language, because subsection (5) expressly applies before the initial placement decision is made. [ In
re COH, 495 Mich at 198 n 7.]-9- Accordingly, any claim by Scribner that the superintendent’s decision was arbitrary and capricious or that BCS’s investigation was defici ent because there was a failure to give Scribner the preference in MCL 722.954a accorded to re latives lacks merit; MCL 722.954a simply has no relevance to the post-termination adoption pr oceedings. Scribner ar gues that the Supreme Court’s interpretation of subs ection (5) of MCL 722.954a, quoted above, is dicta and is wrong. We, however, are not prepared to disregard the S upreme Court’s view and, if the footnote is not dicta, we are bound by the analysis and are certainly not at liberty to ignore it. State Treasurer v Sprague , 284 Mich App 235, 242; 772 NW2d 452 (2009). Scribner finally argues that the trial court erred in partially denyi ng her motion to compel discovery, thereby rubber-stamping the superint endent’s decision without having access to complete and accurate information about the ch ildren’s individual circumstances. This Court
reviews for an abuse of discretion a trial court’s decision to grant or deny a motion for discovery. Szpak v Inyang , 290 Mich App 711, 713; 803 NW2d 904 (2010). A court abuses its discretion
when its decision falls outsi de the range of reasonable and principled outcomes. Augustine v
Allstate Ins Co , 292 Mich App 408, 419; 807 NW2d 77 (2011).

Michigan is strongly committed to a far-reaching and open discovery practice. Eyde v Eyde , 172 Mich App 49, 54; 431 NW2d 459 (1988). The rules of discovery should be liberally
construed in order to furthe r the ends of justice. Id . As a general rule , a party may obtain discovery of any non-privileged matter that is rele vant to the subject matter of the pending case. MCR 2.302(B)(1). MCR 3.800(A) provides that adoption proceedings are governed by the general court rules, except as modified by MCR 3.801 thro ugh MCR 3.807. Logically, then, the court rules governing discovery typica lly apply to adoption proceedings.

We hold that Scribner has not established th at the trial court abused its discretion by ruling as it did. Scribner acknow ledges that the court ordered th e MCI superintendent to make
available to Scribner’s counsel for inspection the MCI’s entire file on the children. She complains, however, that had she had access to a ll of the information sought, such as additional facts about the foster family and various policie s, she might have been able to present more compelling arguments or impeach witnesses. We conclude that Scribner’s argument is ultimately based on speculation and seeks to e ngage in a fishing expedition. There is no
indication that there exist facts or informati on that would circumvent or undermine the trial court’s ruling or that would constitute clear and convincing evidence that the MCI superintendent’s decision was arbitrary and capricious. Reversal is unwarranted.

We affirm.

/s/ Michael J. Talbot
/s/ Michael J. Riordan