In January 2011, ASF and her biological sister, SF,
By all accounts, petitioners took excellent care of SF and ASF for a number of years, and once termination of parental rights occurred, the adoption agency began to plan for petitioners’ adoption of ASF. In July 2013, however, Samuel contacted the adoption worker and suggested his son, Damon, and daughter-in-law, Julie, as alternate potential adoptive parents, citing his age and his uncertainty about his own ability to provide long-term care for ASF. Damon, who was in his mid-40s, and his wife, Julie, had a young son who was six months older than ASF.
At a family team meeting held a short time later, Samuel reversed his position and indicated that he now wanted to proceed with the adoption of ASF. But in light of the offer of Damon and Julie as adoptive parents for ASF, and their expression of interest, the agency treated the case as a competing-party adoption. Unfortunately, as a result of this conflict, the relationship between petitioners and Damon and Julie became strained.
After the superintendent denied consent to the adoption, petitioners filed a motion in circuit court challenging the superintendent’s decision. See MCL 710.45. The circuit court conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to testify. The LGAL was permitted to participate in the proceedings by cross-examining witnesses and participating in arguments. After petitioners rested their case, the LGAL was also able to call Slack, the adoption worker, to testify. The MCI moved for involuntary dismissal pursuant to MCR 2.504(B), and the circuit court granted the motion over the LGAL’s objection. The court concluded that petitioners failed to demonstrate by clear and convincing evidence that the MCI superintendent’s decision to withhold consent to adopt was arbitrary and capricious. From this decision, the LGAL and petitioners now appeal.
This Court reviews de novo questions of law, including the interpretation and application of court rules and statutes. Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd,
Under MCR 2.504(B)(2), involuntary dismissal of a hearing tried without a jury is appropriate when, after the presentation of the plaintiffs evidence, the court determines, based on the facts and the law, that the plaintiff has no right to relief.
In an action, claim, or hearing tried without a jury, after the presentation of the plaintiffs evidence, the court, on its own initiative, may dismiss, or the defendant, without waiving the defendant’s right to offer evidence if the motion is not granted, may move for dismissal on the ground that, on the facts and the law, the plaintiff has no right to relief. The court may then determine the facts and render judgment against the plaintiff, or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shallmake findings as provided in MCR 2.517.
Under this rule, “a motion for involuntary dismissal calls upon the trial judge to exercise his function as trier of fact, weigh the evidence, pass upon the credibility of witnesses and select between conflicting inferences.” Marderosian v Stroh Brewery Co,
In the instant action, petitioners sought relief under MCL 710.45, which allows a petitioner to challenge the superintendent’s withholding of consent to an adoption. Accordingly, the MCI’s motion for involuntary dismissal under MCR 2.504(B)(2) was properly granted if, during their presentation of evidence, petitioners failed to demonstrate their entitlement to relief under MCL 710.45. In relevant part, MCL 710.45 provides:
(1) A court shall not allow the filing of a petition to adopt a child if the consent of a representative or court is required by [MCL 710.43(1)(b), (c), or (d)] unless the petition is accompanied by the required consent or a motion as provided in subsection (2).
(2) If an adoption petitioner has been unable to obtain the consent required by [MCL 710.43(l)(b), (c), or (d)] of this chapter, the petitioner may file a motion with the court alleging that the decision to withhold consent was arbitrary and capricious. A motion under this subsection shall contain information regarding both of the following:
(a) The specific steps taken by the petitioner to obtain the consent required and the results, if any.
(b) The specific reasons why the petitioner believes the decision to withhold consent was arbitrary and capricious.
(7) 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 described in subsection (2) and dismiss the petition to adopt.
(8) If the court finds by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court shall issue a written decision and may terminate the rights of the appropriate court, child placing agency, or department and may enter further orders in accordance with this chapter or [MCL 712A.18] as the court considers appropriate. In addition, the court may grant to the petitioner reimbursement for petitioner’s costs of preparing, filing, and arguing the motion alleging the withholding of consent was arbitrary and capricious, including a reasonable allowance for attorney fees.
As these provisions make plain, to obtain relief under MCL 710.45 at a § 45 hearing, petitioners bore the burden of establishing, by clear and convincing evidence, that the superintendent’s denial of consent was arbitrary and capricious. MCL 710.45(7). In other words, the family court is not permitted to decide the issue of adoption de novo; rather, “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.” Keast,
producéis] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. [Id. (quotation marks and citation omitted).]
Whether action is arbitrary and capricious is evaluated as follows:
The generally accepted meaning of “arbitrary” is “determined by whim or caprice,” or “arrived at through an exercise of will or caprice, without consideration or adjustment with reference to principles, circumstances, or significance, ... decisive but unreasoned.” The generally accepted meaning of “capricious” is “apt to change suddenly; freakish; whimsical; humorsome.” [Keast,278 Mich App at 424-425 (quotation marks and citations omitted).]
To decide whether a denial of consent to adopt was arbitrary and capricious, a trial court initially focuses on the reasons for withholding consent to the adoption. Id. at 425. “It is the absence of any good reason to withhold consent, rather than the presence of good reasons to grant it, that indicates that the decision maker has acted arbitrarily and capriciously.” Id.
Thus, the focus is not whether the representative made the “correct” decision or whether the probate judge would have decided 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... an opportunity for a petitioner to make a case relative to why the consent should have been granted, but rather is an opportunity to show that the representative acted arbitrarily and capriciously in withholding that consent. It is only after the petitioner has sustained the burden of showing by clear and convincing evidence that the representative acted arbitrarily and capriciously that the proceedings may then proceed to convincing the probate court that it should go ahead and enter a final order of adoption. [In re Cotton,208 Mich App 180 , 184;526 NW2d 601 (1994).]
In the present case, among the superintendent’s reasons for denial of consent were the following; (1) the identification of Damon and Julie as “suitable” relatives who were “very appropriate” and willing to adopt ASF, (2) the ages of Samuel (age 71) and Janet (age 65) in relation to ASF (then age 4), particularly when Samuel had expressed doubts about petitioners’ ability to parent ASF into the future, (3) there remained the possibility that each petitioner could assume a grandparent role to ASF if she were to be adopted by Damon and Julie, (4) petitioners’ health conditions, including diabetes and hypertension, as well as SF’s health concerns that required “close monitoring,” and (5) Samuel’s lack of steady commitment to parenting ASF for the next 14 years as evinced by his vacillation on the adoption and his identification of Damon and Julie as a better alternative.
When reviewing the reasons given by the superintendent, the trial court determined that there was not clear and convincing evidence that these reasons were arbitrary and capricious, and for this reason the trial court granted the MCI’s motion for involuntary dismissal. The trial court explained:
The initial focus is whether the MCI superintendent acted arbitrarily and capriciously. I’m not supposed to focus onwhat reasons existed to authorize adoptions. I’m deeply impressed that Janet and Sam Spann are wonderful people. They did a wonderful job with the child. But what I have to decide is whether there’s the absence of any good reason to withhold consent.
Well, motion [for involuntary dismissal] granted. [The superintendent] had reasons for doing what he did. I’ve held four or five now Section 45 hearings, and there are times when I wish he would have considered factors that he didn’t and factors that he considered that I didn’t think were that important but he did think they were that important. I believe that [the superintendent] acted within the law. He did have a focus on the ages of the parents [sic]. I don’t believe it’s unconstitutional for him to have considered it but he did.
He was very worried that the abilities of Sam and Janet Spann would not be up to the needs of the child in ten years. He worries about the commitment that Mr. Spann had. And he did have the feeling that the relationship between Sam and Janet Spann would continue in some form. I cannot say there’s the absence of any good reason to withhold consent.
In reviewing the trial court’s assessment of the superintendent’s decision, we initially note that, contrary to petitioners’ arguments on appeal, the trial court made findings of fact and conclusions of law as required by MCR 2.517. The trial court plainly applied the correct legal standard to its review of the superintendent’s decision, recognizing that the focus was on the reasons for denial and whether those reasons were arbitrary and capricious. See Keast,
On appeal, petitioners posit that the circuit court did not comply with MCR 2.517 because the court referred to reasons offered by the superintendent that petitioners believe were contrary to the evidence. For example, petitioners maintain that, contrary to the superintendent’s determinations, their relationship with ASF may not continue because their relationship with Damon and Julie is strained, there is no evidence that their age or health will affect their ability to parent ASF, and there is no evidence that Samuel lacked commitment to the adoption of ASF. While petitioners frame these arguments in relation to the trial court’s compliance with MCR 2.517, these arguments actually concern the factual and legal merit of the superintendent’s decision, not the adequacy of the trial court’s factual findings. That is, the fact that petitioners disagree with the trial court’s findings regarding the conflicting evidence does not render the trial court’s findings inadequate under MCR 2.517.
Recognizing the underlying factual support for the superintendent’s determinations, contrary to arguments by petitioners and the LGAL, we also conclude that the trial court did not clearly err when, at the close of petitioners’ case, it determined, based on the facts and law, that petitioners were not entitled to relief because they had not shown by clear and convincing evidence that the superintendent’s denial of consent was arbitrary and capricious. See MCL 710.45(7); MCR 2.504(B)(2). In particular, petitioners and the LGAL both argue that the superintendent’s decision was arbitrary and capricious. They further contend that the decision was discriminatory and a violation of law to the extent that consent to adopt was withheld because of petitioners’ ages. We disagree.
Preliminarily, petitioners contend that the superintendent’s consideration of their ages violated MCL 722.957(1) and the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. The Foster Care and Adoption Services Act, MCL 722.951 et seq., addresses adoption facilitators and the refusal to provide services. MCL 722.957(1) states, in relevant part:
Except as provided in subsection (2), an adoption facilitator shall not refuse to provide services to a potential adoptive parent based solely on age, race, religious affiliation, disability, or income level. A child placing agency shall not make placement decisions based, solely on age, race, religious affiliation, disability, or income level. [Emphasis added.]
The CRA prohibits a person from “[d]eny[ing] an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.” MCL 37.2302(a) (emphasis added).
In this case, the record clearly establishes that the MCI superintendent did not violate MCL 722.957(1), because he did not withhold consent to adopt solely on the basis of petitioners’ ages. The superintendent testified that petitioners’ ages were only one factor that he considered. He identified many other factors involved in his decision to withhold consent, including petitioners’ health, Samuel’s vacillation regarding the adoption and his recommendation of Damon and Julie as adoptive parents, and petitioners’ ability to maintain
As we have previously noted, the circuit court did not clearly err by concluding that petitioners did not present clear and convincing evidence to establish that the superintendent’s decision was arbitrary and capricious. In a close case such as this one, it is important that we remain mindful of the standard governing our review and that of the circuit court. That is, we are not insensitive to the fact that petitioners indisputably took excellent care of ASF for 3V2 years beginning when she was only nine months old, and the fact that ASF is closely bonded to petitioners as well as to her sister, SF. Given ASF’s close bond to petitioners and to her sister, who remains in petitioners’ care, reasonable minds might well question the wisdom of denying petitioners consent to adopt and of removing ASF from the continuity of a stable family setting. See MCL 710.22(g). But neither this Court nor the circuit court reviews the matter de novo, and it is not for us to say whether the superintendent made the “correct” decision. Keast,
Instead, considering the reasons given for withholding consent, we look at whether the trial court clearly erred by finding that petitioners failed to present clear and convincing evidence that the superintendent acted arbitrarily and capriciously. Keast,
Moreover, contrary to petitioners’ arguments, the superintendent and the trial court considered ASF’s individual circumstances,
When challenging the trial court’s grant of the MCI’s motion for involuntary dismissal under MCR 2.504(B)(2), the LGAL, in particular, maintains that the motion was prematurely granted because she was not allowed to present her own case in its entirety before the trial court determined that petitioners were not entitled to relief. Contrary to the LGAL’s arguments, a motion under MCR 2.504(B)(2) is properly granted “after the presentation of the plaintiffs evidence.” (Emphasis added.) The “plaintiff’ is the party who commences the action. MCR 2.201(A). A § 45 hearing is commenced by a petitioner who is unable to obtain consent to adopt. MCL 710.45(2). By statute, a “petitioner” is defined as “the individual or individuals who file an adoption petition with the court.” MCL 710.22(r). The petitioner initiates a § 45 proceeding by filing a motion alleging that the withholding of consent was arbitrary and capricious, and the petitioner bears the burden of proof during the hearing. MCL 710.45(2) and (7). Samuel and Janet are the petitioners in this case. In contrast, the LGAL is not a “petitioner,” and as such, she could not request a § 45 hearing. Further, neither ASF nor the LGAL is an “interested party” in the adoption proceedings. MCL 710.24a(l). The LGAL could not intervene as a party in the proceedings to challenge the withholding of consent. See In re Toth,
Moreover, we note that in this case, the LGAL specifically complains that she was not allowed to present additional evidence regarding ASF’s attachment to petitioners and to SF, including expert testimony on attachment. However, although
Finally, the LGAL maintains that the trial court violated ASF’s rights to due process and equal protection by refusing to permit the LGAL to present evidence and call witnesses at the § 45 hearing. This cursory argument, made without citation to relevant authority or application of the law to the facts, is insufficiently briefed, and we consider it to be abandoned. Yee v Shiawassee Co Bd of Comm’rs,
Affirmed.
Notes
Petitioners pursued a guardianship of SF, and that guardianship is not at issue in this appeal. Another of ASF’s siblings was adopted at birth by ASF’s aunt and resides in Arizona.
The superintendent “represent[s] the state as guardian of each child committed” to the MCI following termination of parental rights, MCL 400.203(1), and the superintendent “has the power to make decisions on behalf of a child committed to the [MCI].” MCL 400.203(2). The superintendent’s specific authority to consent to the adoption of a child is set forth in MCL 400.209(1).
On appeal, the MCI challenges this Court’s jurisdiction over the case. As a general matter, this Court has subject-matter jurisdiction over appeals from a trial court’s decision on a motion under MCL 710.45. MCL 710.45(10). The MCI claims, however, that the LGAL is not an appropriate party to bring an appeal under MCL 710.45(10), and that because the LGAL lacks statutory standing, this Court lacks jurisdiction. See In re Beatrice Rottenberg Living Trust,
The Michigan Court Rules apply to adoption proceedings, except as modified by MCR 3.801 to MCR 3.807. MCR 3.800(A). Those rules do not contain a specific provision regarding involuntary dismissal.
We do not suggest that an LGAL is entirely prohibited from participating in a § 45 hearing. There is support for the proposition that, when an LGAL has been appointed during child abuse and neglect proceedings, some participation by an LGAL is anticipated during ensuing adoption proceedings that occur during the LGAL’s continued representation of the child. See MCL 710.45(5); MCL 712A.17c(9); MCL 712A.17d. See also In re Row, unpublished opinion per curiam of the Court of Appeals, issued June 24, 2014 (Docket No. 319389); In re AEG, unpublished opinion per curiam of the Court of Appeals, issued November 7, 2013 (Docket No. 316599). This participation does not, however, make an LGAL for an adoptee under age 14 an “interested party” or a “petitioner.” See MCL 710.22(r); MCL 710.24a(l). Because the LGAL was not a petitioner or an interested party, the trial court could grant a motion for involuntary dismissal -under MCR 2.504(B)(2), before the LGAL completed her presentation of evidence.