IN RE PAGE/RACICOT MINORS (Dissenting Opinion)
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
July 28, 2011
In the Matter of M. P., M. P., and D. R., Minors.
No. 296331
Delta Circuit Court
Family Division
LC No. 09-000506; 09-000507;
09-000508
Before: RONAYNE KRAUSE, P.J., and SERVITTO and GLEICHER, JJ.
RONAYNE KRAUSE, P.J. (dissenting)
I respectfully dissent, because I do not agree that the primary issue in this appeal is moot,
and even if it was, I do not agree that it is unlikely to recur yet regularly evade judicial review.
First, the offending order in this matter has not been rescinded. The trial court purported
to rescind it. However, this Court granted leave to appeal that order on June 9, 2010, and the
trial court purportedly rescinded it on July 16, 2010. Once a claim of appeal is filed with this
Court, the trial court is generally divested of any jurisdiction to amend it or set it aside, at least in
the absence of exceptions not present here. MCR 7.208(A); Ypsilanti Fire Marshal v Kircher,
273 Mich App 496, 542; 730 NW2d 481 (2007). This Court has not yet filed a mandate with the
trial court or returned the record, so the trial court lacks the jurisdiction to rescind the offending
order. See People v Kennedy, 384 Mich 339, 343; 183 NW2d 297 (1971). In an interlocutory
appeal, the trial court would not be divested of jurisdiction over the case itself, but it nonetheless
loses jurisdiction over the specific order from which the appeal taken. See Bass v Combs, 238
Mich App 16, 23-24; 604 NW2d 727 (1999), overruled in part on other grounds in Dimmitt &
Owens Financial, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618, 627-628; 752 NW2d 37
(2008). The offending order remains in effect and is therefore not moot.1
Second, even if the trial court had properly and validly rescinded the order, the issue in
this appeal is not the trial court’s specific order, but the fact that the trial court entered the order
at all. I believe that the majority misconstrues the issue before this Court; I have no reason to
1
What apparently has been resolved is the significance of certain specific language that the trial
court inserted into its 2009 orders. The effect, if any, and propriety of that language is not before
this Court.
-1-
doubt that no other Michigan court is likely to encounter any future difficulties with the funding
or placement language underlying the funding dispute in this matter. The legal issue here
pertains to the trial court’s review of the DHS’s funding decision, not the trial court’s use of
certain language in its placement orders. The mere possibility that an issue “‘could’” recur yet
evade judicial review is insufficient to warrant consideration of an otherwise moot issue. Dep’t
of Ed v Grosse Pte Pub Schools, 474 Mich 1117; 712 NW2d 445 (2006). However, I find
persuasive respondent’s argument that recurrence of this issue is more than a mere possibility.2
Finally, and at the heart of the matter, the trial court’s order was clearly outside its
jurisdiction. The trial court’s review in January 2010 was pursuant to a motion to review
placement under MCR 3.966(A). However, placement was not really at issue—the court’s
review was, instead, functionally of the DHS denial of Title IV-E funding, notwithstanding the
fact that the DHS is responsible for administering the Title IV-E program in the state. 42 USC
671(a). At that time, an administrative appeal had already been commenced with a DHS hearing
coordinator, and the trial court acted not only before DHS had rendered a decision, but before
DHS was even able to begin the process. Pursuant to 42 USC 671(a)(12), administrative review
of a Title IV-E funding decision is required, and the circuit court lacks jurisdiction to interfere
with an agency’s decision until all administrative remedies have been exhausted.3 Blair v
Checker Cab Co, 219 Mich App 667, 671; 558 NW2d 439 (1996). The court lacked the
jurisdiction to bypass administrative review.
I would hold that the issue is not moot, and I would hold that the trial court exceeded its
jurisdiction both by attempting to review the DHS decision regarding Title IV-E funding prior to
the exhaustion of available administrative remedies and by purporting to rescind an order from
which an appeal had already been taken. Because the trial court lacked the jurisdiction to rescind
its January 15, 2010, order, I would now vacate it.
/s/ Amy Ronayne Krause
2
Although again, I do not believe this Court even needs to address whether the issue is likely to
recur yet evade judicial review, because I would find that the objected-to order still exists.
3
Subject to a number of exceptions, none of which are applicable here.
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
