IN RE W MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In re CW, BW and DW, Minors.
CW, BW and DW,
UNPUBLISHED
February 16, 2010
Appellees,
and
VALERIU MARTIN and KAREN MARTIN,
Petitioners-Appellants,
v
No. 292866
Genesee Probate Court
LC No. 09-016660-AM
DEPARTMENT OF HUMAN SERVICES,
Respondent-Appellee.
Before: Meter, P.J., and Borrello and Shapiro, JJ.
PER CURIAM.
In this adoption case, petitioners, Valeriu Martin and Karen Martin, appeal as of right an
order upholding the Michigan Children’s Institute (“MCI”) superintendent, William Johnson’s,
denial of a consent to adoption, and dismissing adoption petitions for CW, BW and DW. For the
reasons set forth in this opinion, we affirm.
I.
Petitioners’ first claim on appeal is that the trial court improperly excluded proposed
witnesses and documentary evidence that would have demonstrated contradictions and omissions
in facts upon which Johnson relied to make his consent decision. Petitioners maintain that the
trial court’s error impaired their ability to demonstrate that Johnson acted arbitrarily and
capriciously. “[A] trial court has the discretion to admit or exclude evidence.” Sherman-Nadiv v
Farm Bureau Gen Ins Co, 282 Mich App 75, 77; 761 NW2d 872 (2008). This Court reviews the
trial court’s decision to admit or exclude evidence for an abuse of discretion. Elezovic v Ford
Motor Co, 472 Mich 408, 419; 697 NW2d 851 (2005); Wolford v Duncan, 279 Mich App 631,
637; 760 NW2d 253 (2008). An abuse of discretion involves far more than a difference in
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judicial opinion. In re Kostin Estate, 278 Mich App 47, 51; 748 NW2d 583, 588 (2008). Rather,
it occurs only when the trial court’s decision is outside the range of reasonable and principled
outcomes. Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).
In an adoption case, an individual who has filed a petition to adopt a state ward, and has
not received consent from the MCI, may file a motion in court to challenge the MCI
superintendent’s denial of consent. MCL 710.45. However, our Court has made clear that the
trial court may not decide the adoption issue de novo.
In In re Cotton, 208 Mich App 180, 185; 526 NW2d 601 (1994) our Court stated:
Because the initial focus is whether the representative acted arbitrarily and
capriciously, the focus of such a hearing is not what reasons existed to authorize
the adoption, but the reasons given by the representative for withholding the
consent to the adoption. That is, 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, such as the probate judge, might have
decided the matter in favor of the petitioner. Rather, it is the absence of any good
reason to withhold consent, not the presence of good reasons to grant it, that
indicates that the representative was acting in an arbitrary and capricious manner.
In Goolsby v Detroit, 419 Mich 651, 678; 358 NW2d 856 (1984), our Supreme Court explained:
The words ‘arbitrary’ and ‘capricious’ have generally accepted meanings[:]
***
Arbitrary is: ‘[Without] adequate determining principle[;] [f]ixed 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.’
Capricious is: ‘[Apt] to change suddenly; freakish; whimsical; humorsome.’
Thus, a determination whether a superintendent’s decision was arbitrary and capricious
necessarily entails an examination of the superintendent’s articulated reasons for the consent
decision and whether those reasons were valid in light of the specific circumstances of the
children.
Petitioners argue that CW, BW and DW’s older sister, AW, and neighbors of the
children’s current foster parents, the Rabers, would have testified regarding; 1) the Rabers’
quality of care, including their discipline, use of profanity, exposure to relatives who smoke
“weed,” and willingness to encourage sibling interaction, and 2) AW’s history of running away
from the Rabers’ home. Petitioners also claim that an adoption licensing caseworker and a
complaints specialist would have addressed complaints regarding the Rabers. This proposed
testimony may have been relevant to a determination of whether the Rabers were qualified to
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adopt the children, but did not tend to make it any more or less probable that petitioners were
qualified to adopt the children. MRE 402. Consequently, the trial court did not abuse its
discretion when it precluded these witnesses’ testimony.
Next, petitioners argue that they would have testified that Johnson relied on “incorrect,
false, and incomplete information.” However, they do not identify the information which was
allegedly incorrect or false. Similarly, petitioners argue that a MCI consultant would have
testified that Johnson relied on reports, which were “patently false and incorrect.” Again,
petitioners do not identify the false reports. Regardless, the scope of the hearing was limited to
whether Johnson’s decision to withhold consent was arbitrary and capricious. In re Cotton, 208
Mich App at 185. Thus, the trial court did not abuse its discretion when it precluded testimony
regarding whether the information Johnson relied upon was accurate.
Finally, petitioners argue that petitioner Karen Martin would have testified regarding the
quality of care they provided, including the scheduling of doctors’ appointments for AW’s
cancer treatment and DW’s clubbed feet surgery. Likewise, petitioners argue that AW could
have compared the quality of care petitioners provided the children from 2003 until the children
were removed from their home in 2007, to the quality of care the Rabers’ provided afterward. In
addition, petitioners argue that many witnesses, including themselves, AW, Judy Raber, a DHS
foster care worker, a DHS caseworker, and the children’s health care and mental health
providers, would have testified that the children’s educational and psychological well-being had
deteriorated since they were removed from petitioners’ home.
In his consent decision, Johnson questioned petitioners’ abilities to address the children’s
developmental needs. However, our review of the record indicates that Johnson’s investigation
into this consideration was limited. He testified that he did not review the children’s medical,
educational, mental health and attachment history while they lived with petitioners. Although
Johnson consulted some DHS staff, he did not consult Angela Davis, who oversaw petitioners’
care of the children and visited the home. Johnson assumed that petitioners addressed the
children’s disabilities, but he was unable to comment on “specific areas.” Rather, it appears that
Johnson focused his investigation on how the Rabers’ currently address the children’s needs.
We concur with petitioners that the issue of whether Johnson had before him a complete
evaluation of the circumstances of the children, including petitioners’ ability to meet the
children’s needs, in advance of his adoption decision, would be relevant in a determination of
whether his decision was arbitrary and capricious. Goolsby, 419 Mich at 678. The issue then
becomes whether the trial court’s decision to exclude the proffered evidence constituted an abuse
of discretion.
From the outset we note that contained within the trial court’s final order is a clear
indication that the proffered testimony was considered. In reaching its conclusion, the trial court
stated: “The Petitioner has submitted said offer of proof, which the Court has read and
considered, along with the arguments, made at the hearing . . . .” Therefore, while we recognize
the difference between allowing the evidence to be submitted in the normal course of the hearing
and an offer of proof, the record clearly reveals that contrary to petitioner’s claims, the trial court
did consider the proffered evidence in reaching its decision that petitioner has failed to meet its
burden by establishing “by clear and convincing evidence that the decision to withhold consent
was arbitrary and capricious . . . .” The trial court’s assertion of the standard of proof in this case
was correct. To prevail, petitioners needed to establish in the trial court by clear and convincing
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evidence, that the decision by Johnson to withhold consent was arbitrary and capricious. MCL
710.45(7). Our Court in In re Cotton 208 Mich App at 185, held that if there exists 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.” Assuming that all the testimony
included in petitioners’ offer of proof was true, we conclude that pursuant to our decision in In re
Cotton, inclusion of the proffered testimony could not have changed the outcome. Additionally,
while the trial court did not allow petitioners to present the testimony during the Section 451
hearing, the trial court did allow petitioners to file an offer of proof. Review of the record clearly
reveals that the trial court considered the proffered testimony in reaching its ultimate
conclusions. While the proffered testimony arguably demonstrated more good reasons to grant
the petition, other relevant evidence considered by the trial court also indicated good reasons for
denial of the petition.2 The trial court also understood its limited role in a Section 45 hearing
when it responded to petitioners’ offer of the proffered testimony by stating:
You might even convince me Mr. Johnson was wrong, but even if you did that, do
you have any evidence to show me his decision was unreasoned? He testified to
all his reasons. Or just whimsical, or just got up this morning, and decided, ya
(sic) know, this is a Friday. I think I’ll send the (minor children) kids here.
Ultimately, we concur with the trial court’s assessment of the proffered testimony, namely that it
failed to prove the absence of any good reason to withhold consent. Rather, the proffered
testimony merely added additional reasons for Johnson to have granted consent. Even if the trial
court had considered the proffered testimony during the normal course of the Section 45 hearing,
the offer of proof, together with all of the other evidence considered by the trial court, was
insufficient for the trial court to have concluded that there were no good reasons for Johnson to
have withheld consent. As stated in In re Cotton, “. . . it is the absence of any good reason to
withhold consent, not the presence of good reasons to grant it that indicates that the
representative was acting in an arbitrary and capricious manner.” In re Cotton, 208 Mich App at
185. Given the trial court’s reliance on our decision in In re Cotton, we cannot find that
exclusion of the proffered testimony during the normal course of the hearing constituted a
decision that was outside the range of reasonable and principled outcomes. Saffia, 477 Mich at
12. Accordingly, we find that the trial court did not abuse its discretion when it excluded the
proffered evidence during the normal course of the hearing.
II.
Next, petitioners maintain that due process requires the admission of evidence to
contradict Johnson’s conclusions. Petitioners fail to support this argument with legal authority
and this Court deems this portion of petitioners’ argument abandoned on appeal. Flint City
Council v Michigan, 253 Mich App 378, 393 n 2; 655 NW2d 604 (2002).
1
MCL 710.45.
2
The reasons listed by Johnson are included in Section III of this opinion.
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Petitioners’ second claim on appeal is that the trial court erred because it denied their
request for psychological evaluations of themselves, the Rabers, and the children, individually
and as a sibling set.
Petitioners argue that the psychological evaluations were requirements of the “full
investigation” addressed in MCL 710.46(1). MCL 710.46(1) provides:
Upon the filing of an adoption petition, the court shall direct a full investigation
by an employee or agent of the court, a child placing agency, or the department.
The court may use the preplacement assessment described in section 23f of this
chapter and may order an additional investigation by an employee or agent of the
court or a child placing agency. The following shall be considered in the
investigation:
(a) The best interests of the adoptee.
(b) The adoptee’s family background, including names and identifying
data regarding the parent or parents, if obtainable.
(c) The reasons for the adoptee’s placement away from his or her parent or
parents.
MCL 710.23f provides, in relevant part:
(1) In a direct placement, an individual seeking to adopt may request, at any time,
that a preplacement assessment be prepared by a child placing agency.
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(5) A preplacement assessment is based upon personal interviews and visits at the
residence of the individual being assessed, interviews of others who know the
individual, and reports received under this subsection. The assessment shall
contain all of the following information about the individual being assessed:
(a) Age, nationality, race or ethnicity, and any religious preference.
(b) Marital and family status and history, including the presence of other
children or adults in the household and the relationship of those individuals to the
adoptive parent.
(c) Physical and mental health, including any history of substance abuse.
(d) Educational and employment history and any special skills and
interests.
(e) Property and income, including outstanding financial obligations as
indicated in a current financial report provided by the individual.
(f) Reason for wanting to adopt.
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(g) Any previous request for an assessment or involvement in an adoptive
placement and the outcome of the assessment or placement.
(h) Whether the individual has ever been the respondent in a domestic
violence proceeding or a proceeding concerning a child who was allegedly
abused, dependent, deprived, neglected, abandoned, or delinquent, and the
outcome of the proceeding.
(i) Whether the individual has ever been convicted of a crime.
(j) Whether the individual has located a parent interested in placing a child
with the individual for adoption and a brief description of the parent and the child.
(k) Any fact or circumstance that raises a specific concern about the
suitability of the individual as an adoptive parent, including the quality of the
environment in the home, the functioning of other children in the household, and
any aspect of the individual’s familial, social, psychological, or financial
circumstances that may be relevant to a determination that the individual is not
suitable. A specific concern is one that suggests that placement of any child, or a
particular child, in the home of the individual would pose a risk of harm to the
physical or psychological well-being of the child.
Petitioners requested psychological evaluations of themselves and the Rabers, who had
also previously expressed interest in adopting the children, but the trial court denied the request.
The plain language of MCL 710.46(1) does not require a trial court to order psychological
evaluations of a party seeking to adopt a child. Arguably, a trial court is permitted to rely on a
MCL 710.23f preplacement assessment of an individual seeking to adopt a child. MCL 710.23f
requires an assessor to collect information about the individual’s physical and mental health, but
it does not expressly require the individual to undergo a psychological evaluation. Had the
Legislature intended the individual seeking to adopt a child to undergo a psychological
evaluation of the individual, it would have included such a requirement in the statute as it
requires a physical examination in MCL 710.23f(7) (“A child placing agency shall request an
individual seeking a preplacement assessment to undergo a physical examination . . . ”). Estate
of Shinholster v Annapolis Hosp, 255 Mich App 339, 359; 660 NW2d 361 (2003) (“expressio
unius est exclusio alterius,” the express mention in a statute of one thing implies the exclusion of
other similar things). Because neither MCL 710.46(1) nor MCL 710.23f expressly require a trial
court to order psychological evaluations of a party seeking to adopt a child and petitioners fail to
cite any other statutory authority requiring such psychological evaluations, the trial court did not
err in failing to order psychological evaluations of petitioners or the Rabers.
Petitioners also unsuccessfully requested psychological evaluations of the children,
individually and as a sibling set. Contrary to petitioners’ claim, even if the preplacement
assessment in MCL 710.23f required a psychological evaluation, it would be limited to the
individual seeking to adopt a child, petitioners in this case, not potential adoptees. Absent any
other statutory authority requiring psychological evaluations of these children, individually or as
a sibling set, the trial court did not err in failing to order them.
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III.
Next, petitioners argue that the trial court clearly erred when it concluded that petitioners
failed to demonstrate by clear and convincing evidence that Johnson’s decision to withhold
consent was arbitrary and capricious. This Court reviews whether the trial court applied the
correct legal principles and the arbitrary and capricious determination for clear error. Boyd v
Civil Service Comm, 220 Mich App 226, 234-235; 559 NW2d 342 (1996), lv den 456 Mich 900
(1997). “[A] finding is clearly erroneous when, on review of the whole record, this Court is left
with the definite and firm conviction that a mistake has been made.” Id. at 235.
As previously stated, an individual seeking to adopt may file a motion with the court
alleging that the decision to withhold consent was arbitrary and capricious. MCL 710.45. A trial
court may dismiss the petition if the individual fails to demonstrate, by clear and convincing
evidence, that the decision was arbitrary and capricious. MCL 710.45(7). On the other hand, if
the individual meets the clear and convincing evidence burden, the trial court may terminate the
rights of the appropriate court, child placing agency, or department and proceed with the
adoption. MCL 710.45(8). The trial court may not decide the adoption issue de novo. In re
Cotton 208 Mich App at 184. “[I]t is the absence of any good reason to withhold consent, not
the presence of good reasons to grant it, that indicates the [superintendent] was acting in an
arbitrary and capricious manner.” Id. at 185. The trial court should focus on the reasons given
by the superintendent for withholding the consent to adoption. Id.
We next examine the decisions listed by Johnson in his denial of the petition for
adoption, and conclude that the reasons listed negate a finding by the trial court that his decision
for denial was arbitrary and capricious.
Meeting the Children’s Developmental Needs
Petitioners argue that Johnson’s decision to withhold consent was arbitrary and
capricious because he concluded that their ability to meet the developmental needs of the
children was inadequate. They maintain that, if he had fully investigated evidence from DHS
caseworkers, the GAL, the ALJ, and petitioners, he would have concluded otherwise. As
previously stated, despite the fact that this evidence could offer additional reasons to grant the
petition for adoption, the trial court did not abuse its discretion when it excluded the evidence.
Rather, the record reveals that Johnson articulated good reasons for his decision, including the
children’s connections and threat of removal, petitioners’ neglect, petitioners’ degree of
cooperation, and petitioners’ failure to obtain a foster care license. Reviewing the record as a
whole we are not left with a definite and firm conviction that a mistake was made by the trial
court in upholding the denial of consent.
Connections and Removal
Johnson concluded that the children had been with the Rabers since June 2007, and had
established a close psychological connection with them. In light of the problems the children
experienced following their abrupt removal from petitioners’ home after living with them for an
extended time, Johnson concluded that it would not be in the children’s best interests to remove
them from another home where they have formed connections. Reviewing the record as a whole,
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we are not left with a definite and firm conviction that a mistake was made by the trial court in
upholding the denial of consent.
Neglect
Johnson also concluded that petitioners failed to assure the safety and well-being of the
children. On appeal, petitioners question Johnson’s consideration, stating that DHS failed to
demonstrate abuse or neglect in the ALJ hearing. However, Johnson explained that, even though
the ALJ concluded that DHS failed to demonstrate abuse or neglect, he was still wary of the
spanking and cursing incident involving Worden and her continued relationship with petitioners.
Prior to the incident, DHS staff had repeatedly warned petitioners not to leave the children in
Worden’s supervision, but petitioners ignored the warnings. After the incident, Worden moved
in and out of the home. Even though petitioners promised Worden would leave if the three
younger children returned to their home, the record reveals that petitioners continued to expose
some of the minor children to Worden.
Cooperation and Hostility
Johnson concluded that petitioners repeatedly failed to cooperate with DHS,
demonstrated hostility or threats, and failed to provide necessary information to pursue the
adoption. Although the record is unclear regarding incidents involving hostility or threats, a
April 24, 2007 assessment confirms that petitioners failed to provide requested information,
thereby requiring DHS to seek it independently and leaving some information unknown. Even
though petitioners claim that the DHS person assigned to them while the minors were residing
with petitioners would have reported positive interactions with them, the trial court’s review was
limited to whether Johnson lacked good reasons to withhold consent, not whether there were also
good reasons to grant it. In re Cotton, 208 Mich App at 185.
Foster Care Providers
Johnson concluded that petitioners were not approved foster care providers. On appeal,
petitioners discount Johnson’s consideration because; 1) they are pursuing a foster care license,
2) a foster care license was not previously required for their care of the younger children, and 3)
DHS currently allows one of the minor children to live with them without a license. Petitioners
do not cite to any authority discounting the foster care license in adoption proceedings. Rather,
Johnson explained that a foster care license would indicate that petitioners had been subject to an
agency assessment process, including training and conditions for approval. Furthermore,
Johnson found that the delay while petitioners pursue a foster care license would further delay
permanence for the minor children. The absence of a foster care license, combined with the fact
that petitioners had not successfully been pre-approved as adoptive parents, served as just one of
Johnson’s considerations in withholding the consent to the adoption.
Overall, because Johnson articulated several good reasons for his decision, this Court
concludes that the trial court did not clearly err when it found Johnson’s decision was not
arbitrary and capricious.
IV.
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Lastly, petitioners request reasonable attorney fees and costs from this Court. This
request is procedurally improper absent a separate motion pursuant to MCR 7.211(C)(8).
Moreover, petitioners fail to support their position with authority. Because this Court will not
search for such authority, this writer concludes that petitioners’ argument is abandoned on
appeal. Flint City Council, 253 Mich App 393 n 2.
Affirmed.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
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