Opinion
366087 366088
02-22-2024
In re CADP, Minor.
UNPUBLISHED
Kalkaska Circuit Court Family Division LC Nos. 22-001067-AM; 22-001066-AM
Before: HOOD, P.J., and MURRAY and MALDONADO, JJ.
PER CURIAM.
These consolidated appeals involve three competing petitions for adoption of a minor child, CADP. Yvonne Robinson; Jason and Daena Thibodeau; and David and Donna Prevo all sought consent to adopt CADP, and respondent, the Michigan Children's Institute (MCI), granted consent to Robinson and denied consent to the Thibodeaus and the Prevos. The Thibodeaus and the Prevos (collectively: "petitioners") filed motions pursuant to MCL 710.45 ("§ 45 motions"), challenging the denials of consent, and these petitions were denied. We vacate the trial court's order denying the petitions and remand for additional proceedings.
I. BACKGROUND
This is the second time that these petitions have been before this Court, and the prior appeal resulted in a published opinion reversing the trial court's decision on a discovery matter. See In re CADP, 341 Mich.App. 370; 990 N.W.2d 386 (2022). The facts underlying these petitions are set forth in this Court's prior opinion:
The parents of CADP, who was born in 2018, are deceased. [The Prevos] are the paternal grandparents who filed a petition seeking to adopt CADP. [The Prevos'] daughter and son-in-law, Daena and Jason Thibodeau, also wished to adopt CADP, as did CADP's maternal grandmother, Yvonne Robinson .... The Michigan Children's Institute (MCI) recommended Yvonne for the adoption. [The Prevos] then filed a motion under MCL 710.45, alleging that MCI's decision to
withhold consent for petitioners to adopt CADP was arbitrary and capricious. [Id. at 374-375.]
As explained in In re Keast, 278 Mich.App. 415, 423; 750 N.W.2d 643 (2008):
The MCI superintendent represents the state of Michigan as guardian of all children committed to the state by a family court after termination of parental rights. MCL 400.203. The superintendent is authorized to consent to the adoption of any child committed to the MCI as a state ward. MCL 400.209. Consent by the superintendent to the adoption of a state ward is required before the family court can approve a prospective adoption. MCL 710.43(1)(b). Under MCL 710.45(2), a person who has filed a petition to adopt a state ward and has not received consent from the MCI may file a motion in family court to challenge the MCI superintendent's denial of consent.
With respect to the first appeal, petitioners had sent subpoenas to DHHS and BCS seeking "[a]ny and all documents relating to CADP," but "the court concluded that petitioners were not entitled to discovery because the general discovery rules do not apply to § 45 proceedings; the information sought was confidential, in any event; and petitioners' subpoenas were overbroad." Id. at 376-377 (quotation marks and alteration omitted). This Court, however, agreed with petitioners that "the discovery rules apply to a § 45 hearing initiated by motion, their subpoenas were not overbroad, and the confidential nature of the information would have been adequately safeguarded by a protective order or in camera inspection while allowing for a meaningful § 45 review to occur." Id. at 378-379. Therefore, this Court reversed the trial court's orders denying discovery and quashing the subpoenas. Id. at 374, 396.
Following remand from this Court, the circuit court divided the case into three distinct case files: one for the Prevos, one for the Thibodeaus, and one for Robinson. The Thibodeaus and Prevos sought discovery of the entirety of CADP's case files, but despite this Court's previous order, BCS contended that it could only disclose those files related to the specific prospective adopter who sought discovery. The trial court adopted a narrow construction of this Court's opinion and reasoned that this Court did not deem the entirety of the files necessarily discoverable to each party. Therefore, the discovery requests were denied, and the § 45 hearings proceeded without petitioners ever getting access to the case files relating to Robinson. In its final orders, the trial court concluded that the MCI superintendent's decision to grant consent to Robinson and deny consent to the Thibodeaus and the Prevos was not arbitrary and capricious.
II. DISCOVERY
Petitioners argue that the trial court erred by only allowing the Prevos and Thibodeaus to access their own files. We agree.
This argument was raised both by the Thibodeaus in Docket No. 366087 and by the Prevos in Docket No. 366088.
This Court "review[s] a trial court's decision to grant or deny discovery for [an] abuse of discretion." Mercy Mt Clemens Corp v Auto Club Ins Ass'n, 219 Mich.App. 46, 50; 555 N.W.2d 871 (1996). To the extent this issue requires interpreting a statute, review is de novo. Elba Twp v Gratiot Co Drain Comm'r, 493 Mich. 265, 278; 831 N.W.2d 204 (2013).
The lower court ruled that neither the Prevos nor the Thibodeaus were entitled to discovery of adoption materials related to Robinson. This ruling violated the law-of-the-case doctrine because it was contrary to this Court's opinion in the prior appeal. As explained in Rott v Rott, 508 Mich. 274, 286-287; 972 N.W.2d 789 (2021):
The law-of-the-case doctrine is a judicially created, self-imposed restraint designed to promote consistency throughout the life of a lawsuit. The idea is that if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same. Thus, as a general rule, an appellate court's determination of an issue in a case binds lower tribunals on remand and the appellate court in subsequent appeals. The purpose of the doctrine is primarily to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. [Quotation marks and citations omitted.]
In other words, the lower court was barred from making any rulings contrary to this Court's decision in the prior appeal.
When it decided In re CADP, 341 Mich.App. at 386, this Court made the following statements:
Petitioners [i.e., the Prevos] sought the case files relating to CADP, which is relevant evidence under MCR 2.302(B)(1) for the purpose of determining whether MCI's decision to withhold consent to adopt the minor child was arbitrary and capricious. In other words, the reasons supporting MCI's decision to withhold consent may be determined to be invalid if, for example, the information relied upon was inaccurate, the child's circumstances were not properly considered, or certain facts were not considered. Any such evidence may only be obtained through appropriate discovery, and specific objections to requested discovery information may be addressed by the trial court, including through a motion for a protective order under MCR 2.302(C) or a request for an in camera review. Because it is petitioners' burden in a § 45 hearing to establish "by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious," MCL 710.45(7), petitioners must be afforded the means to attempt to carry that burden. [Emphasis added.]
This passage indicates that this Court has already concluded that the "case files" were relevant. Moreover, this Court cited with approval an unpublished opinion in which the petitioner, who had been denied consent to adopt, was allowed to review the entire MCI file. See In re CADP, 341 Mich.App. at 384-385, citing In re COH, ERH, JRG, &KBH (On Remand), unpublished per curiam opinion of the Court of Appeals, issued December 4, 2014 (Docket Nos. 309161 and 312691). The Court particularly emphasized the statement that "Michigan is strongly committed to a far-reaching and open discovery practice." Id. at 385, quoting In re COH, upub op at 9.
The lower court also reasoned that neither the Prevos nor the Thibodeaus were entitled to the information pertaining to Robinson in light of footnote 8 in In re CADP. But a close reading of In re CADP makes it clear that that footnote was dealing solely with information obtained during the child-protection portion of the proceedings, and it is undisputed that neither the Prevos nor the Thibodeaus are seeking any information relating to those particular proceedings. The In re CADP Court discussed MCL 722.627 and noted that it deals with cases of abuse and neglect. In re CADP, 341 Mich.App. at 393-395. MCL 722.627 provided, at the pertinent time:
There has since been a renumbering and a minor rewording of this statute. See 2022 PA 68.
(2) Unless made public as specified information released under section 7d, a written report, document, or photograph filed with the department as provided in this act is a confidential record available only to 1 or more of the following:
* * *
(g) A court for the purposes of determining the suitability of a person as a guardian of a minor or that otherwise determines that the information is necessary to decide an issue before the court, or in the event of a child's death, a court that had jurisdiction over that child under section 2(b) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2.
* * *
(k) A child placing agency licensed under 1973 PA 116, MCL 722.111 to 722.128, for the purpose of investigating an applicant for adoption, a foster care applicant or licensee or an employee of a foster care applicant or licensee, an adult member of an applicant's or licensee's household, or other persons in a foster care or adoptive home who are directly responsible for the care and welfare of children, to determine suitability of a home for adoption or foster care. The child placing agency shall disclose the information to a foster care applicant or licensee under 1973 PA 116, MCL 722.111 to 722.128, or to an applicant for adoption.
In the prior appeal, this Court stated that the act referred to was the Child Protection Law (CPL), MCL 722.621 et seq., and it concluded that the lower court could preclude from discovery information pertaining to abuse and neglect. In re CADP, 341 Mich.App. at 395. This Court stated:
But petitioners have explicitly stated the following:
There was only a one month period of time from when the court took jurisdiction over [CADP] and when his mother died, and to the extent any of the case file contained information relating to
the abuse and neglect case against her, that information could have been excluded and still can be.
In other words, petitioners agree that information pertaining to abuse and neglect can be excluded from discovery. While petitioners did not explicitly state this in their motion for discovery, the court, in exercising its discretion, could have recognized this limitation on otherwise allowable discovery. [Id. at 395 (alteration and footnote omitted).]
This Court, in connection with this ruling, added footnote 8, which provides:
The parties also cite MCL 722.627(2)(k), which speaks to a child-placing agency's provision of information obtained from DHHS to "an applicant for adoption." BCS is a child-placing agency.... [and] it seems that the information to be provided by the agency to the applicant for adoption is the information pertaining to that applicant. Petitioners noted below that BCS had, indeed, agreed to provide records pertaining specifically to petitioners. [In re CADP, 341 Mich.App. at 395 n 8.]
When read in context, it is clear that this Court ruled that any information from the abuse-and-neglect case-not information from the adoption case as whole-and pertaining to an applicant for adoption was to be provided only to that applicant. It is not this Court's role to usurp the ruling of In re CADP. "Even if the prior decision was erroneous, that alone is insufficient to avoid application of the law of the case doctrine." Duncan v Michigan, 300 Mich.App. 176, 189; 832 N.W.2d 761 (2013). The lower court's discovery ruling on remand contradicted the rulings of In re CADP.
We are not indicating that the ruling in In re CADP was erroneous but are merely stating that even if it was, it must be applied.
Because the trial court did not allow discovery into the information pertaining to Robinson, the Thibodeaus and the Prevos were not "afforded the means to attempt to carry [their] burden" to establish that MCI's decision to withhold consent to adopt CADP was arbitrary and capricious. Therefore, we vacate the court's order denying these petitions, and remand this case for additional proceedings. On remand, the court shall allow the Thibodeaus and Prevos to conduct full discovery into CADP's case files, including those pertaining to Robinson. The court shall then conduct the § 45 hearings anew, and shall consider all evidence relevant to CADP's welfare, rather than limiting the presentation of evidence to that pertaining to the particular petitioner. Because we vacate the court's orders on these grounds, we decline to address petitioners' arguments pertaining to the court's ultimate conclusion that MCI's decision was not arbitrary and capricious.
Petitioners and amici also raise arguments relating to the trial court's statements suggesting that its decision hinges on whether MCI had "any good reason" to grant consent to Robinson. However, this standard is firmly established by Michigan caselaw. See In re TEM, 343 Mich.App. 171, 179; 996 N.W.2d 850 (2022) ("Michigan authority is clear that the court is to determine if there is any good reason to support the MCI Superintendent's decision; if so, the decision must be upheld."). In this instance, we are also bound by the law of the case. See CADP, 341 Mich.App. at 380 ("Regarding the withholding of consent to adopt, 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." (Quotation marks, citation, and alteration omitted.)).
III. PARTICIPATION OF BCS
Petitioners argue that the trial court erred by allowing BCS, a nonparty, to participate in the § 45 hearing. We agree.
This argument was raised both by the Thibodeaus in Docket No. 366087 and by the Prevos in Docket No. 366088.
"Whether due process has been afforded is a constitutional issue that is reviewed de novo." Elba Twp v Gratiot Co Drain Comm'r, 493 Mich. 265, 277; 831 N.W.2d 204 (2013).
MCL 710.24a(1) delineates the interested parties in an adoption petition, and it provides:
Interested parties in a petition for adoption are all of the following:
(a) The petitioner or petitioners.
(b) The adoptee, if over 14 years of age.
(c) A minor parent, adult parent, or surviving parent of an adoptee, unless 1 or more of the following apply:
(i) The rights of the parent have been terminated by a court of competent jurisdiction.
(ii) A guardian of the adoptee, with specific authority to consent to adoption, has been appointed.
(iii) A guardian of the parent, with specific authority to consent to adoption, has been appointed.
(iv) The rights of the parent have been released.
(v) The parent has consented to the granting of the petition.
(d) The department or a child placing agency to which the adoptee has been, or for purposes of subsection (3) is proposed to be, released or committed by an order of the court.
(e) A parent, guardian, or guardian ad litem of an unemancipated minor parent of the adoptee.
(f) The court with permanent custody of the adoptee.
(g) A court with continuing jurisdiction over the adoptee.
(h) A child placing agency of another state or country that has authority to consent to adoption.
(i) The guardian or guardian ad litem of an interested party.
While not pertinent to this case, when an Indian child is at issue, "the Indian child's tribe have a right to intervene at any point" during the proceeding. MCL 712B.7(6).
It is undisputed that BCS does not qualify as an interested party under any of these designations; indeed, representatives of BCS repeatedly referred to BCS as a nonparty in the trial court. Despite being a nonparty, attorneys for BCS actively participated in the § 45 hearing and even raised objections. The participation went far beyond the scope of the limited appearances filed by the BCS attorneys, pursuant to MCR 2.117(B)(2)(c), to tend to discovery matters.
In People v Henderson, 382 Mich. 582, 585-586; 171 N.W.2d 436 (1969), the Michigan Supreme Court discussed the role of attorneys for those who are not parties to the litigation:
A witness to a lawsuit has a perfect right to hire his own lawyer, and have him attend the trial as a spectator. He has a right to the advice of his counsellor before taking the stand, or during any recess. In a proper case, the court in its discretion might grant a recess for that very purpose.
But if an attorney does not represent one of the parties to the litigation, there is no basis for him to participate as an advocate before the bar.
If he objects, and his objection is sustained erroneously, against whom is the error committed? Against whom is the appeal to be taken? If his objection be overruled erroneously, can the error be saved to the witness? Surely witnesses have no right of appeal.
A decision to object or not object is often a matter of trial strategy. On whose doorstep is that strategy to be laid?
The notion of permitting witnesses' attorneys to participate in civil trials or in criminal trials generally is so inconsistent with our adversary system as to
constitute a denial of due process of law, to an objecting party. [Emphasis added, footnote omitted.]
The application of Henderson to the facts before us is simple. BCS was not a party to this litigation. Therefore, attorneys for BCS had no right to participate in the § 45 hearings. See id. Despite this fact and over petitioners' objections, attorneys for BCS actively participated in the hearing to an extent suggesting that BCS actually was a party. Allowing this to happen was "so inconsistent with our adversary system as to constitute a denial of due process of law" to petitioners. Id. Therefore, on remand, the trial court shall not allow BCS's attorneys to participate beyond the scope of their limited appearances for the purposes of discovery.
IV. DISQUALIFICATION
The Prevos argue that the trial court erred by denying their motion for a recusal. We disagree.
Both parties moved to disqualify the trial court in October 2022. After a hearing, the trial court denied the motion on the basis that it was untimely, and even if it wasn't, there was no basis for establishing judicial bias. On de novo review, the Chief Judge agreed, issuing a thorough opinion as to why the motion was both untimely and without merit. We review this decision for an abuse of discretion, which "occurs when the trial court's decision is outside the range of reasonable and principled outcomes." Moore v Secura Ins, 482 Mich. 507, 516; 759 N.W.2d 833 (2008).
It is clear that both the trial court and Chief Judge of that court were right: the joint motion to disqualify was untimely-by years. MCR 2.003(D)(1)(a) provides that "all motions for disqualification must be filed within 14 days of the discovery of the grounds for disqualification. If the discovery is made within 14 days of the trial date, the motion must be made forthwith." When seeking disqualification, the Prevos relied upon three pieces of evidence: (1) certain comments made on the record by the trial court in child protection proceedings that occurred in 2019; (2) a case note from the present case in which a BCS worker stated that the trial judge had made it evident in the autumn of 2019 that Donna Prevo was inappropriate for placement of CADP, and (3) information from an MCI employee, who stated on January 28, 2021, that the judge "has a strong opinion of Prevo grandparents," "has made it clear she doesn't like Prevos from removal," and "[h]as a favorable view of [Robinson]." As both trial courts recognized, the Prevos had the transcripts containing the comments years before the filing of the motion for disqualification on October 12, 2022, and the Prevos themselves acknowledge that they learned of the case note in "mid-August 2022." Although the Prevos apparently only learned of the MCI employee comment on September 30, 2022, bringing it within the 14-day deadline, this comment appears to be a summation of the earlier comments of which the parties were already aware. That the trial court mentioned, during a hearing on October 7, 2022, the mere possibility that a party might suggest grounds for disqualification existed did not "reset" the period for filing the motion for disqualification.
Even if the motion was timely, it was meritless. It is well established that "judicial rulings, in and of themselves, almost never constitute a valid basis for a motion alleging bias, unless the judicial opinion displays a deep-seated favoritism or antagonism that would make fair judgment impossible and overcomes a heavy presumption of judicial impartiality." Armstrong v Ypsilanti Twp, 248 Mich.App. 573, 597; 640 N.W.2d 321 (2001) (quotation marks and citation omitted); see also Bayati v Bayati, 264 Mich.App. 595, 603; 691 N.W.2d 812 (2004). Indeed, "[r]epeated rulings against a litigant, even if erroneous, are not grounds for disqualification. The court must form an opinion as to the merits of the matters before it. This opinion, whether pro or con, cannot constitute bias or prejudice." Band v Livonia Assoc, 176 Mich.App. 95, 118; 439 N.W.2d 285 (1989), citing Mahlen Land Corp v Kurtz, 355 Mich. 340, 350; 94 N.W.2d 888 (1959). This Court presumes that the trial judge is impartial and the party asserting otherwise bears a heavy burden to overcome that presumption. In re MKK, 286 Mich.App. 546, 566; 781 N.W.2d 132 (2009).
Here, the only comments actually made by the trial court-the 2019 comments-were made in the context of deciding a placement issue in the child protection proceedings. Importantly, the comments were not from extraneous sources but instead were made by the presiding judge on the basis of what had been observed by the court, or at minimum reported to it, during the proceedings. These relevant, on-the-record comments do not constitute evidence of improper bias. See In re MKK, 286 Mich.App. at 566-567 (a trial judge's remarks, which are hostile to or critical of the parties, their cases, or their counsel, ordinarily will not establish a disqualifying bias). Indeed, the trial court was performing its proper function when making the comments, the comments were relevant to those prior proceedings, and the court expressly stated that it had no bias against any of the parties.
The law on disqualification is clear, and its faithful application leads to the dual conclusions that the motion was untimely and contained no proper basis to remove the trial court.
V. CONCLUSION
We vacate the trial court's order denying the Thibodeaus' and Prevos' petitions to set aside MCI's denial of consent to adopt CADP. This case is remanded for additional proceedings consistent with this opinion. We do not retain jurisdiction.
MALDONADO, J. (concurring).
I concur fully in the majority opinion. I write separately to address a string of published opinions from this Court that I believe misinterpreted MCL 710.45 in such a way as to remove any meaningful judicial oversight from these proceedings.
Section 45 of the Adoption Code, MCL 710.21 et seq., governs these proceedings and provides in relevant part:
(2) If an adoption petitioner has been unable to obtain the consent required by section 43(1)(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.
* * *
(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 section 18 of chapter XIIA 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. [MCL 710.45.]
Because § 45 proceedings hinge on whether the decision to withhold consent was "arbitrary and capricious," the meaning of this term is critical; however, the term is undefined by the statute. See MCL 710.22. Accordingly, it has been left to this Court to provide guidance.
The foundational case for defining "arbitrary and capricious" in the context of adoption proceedings is In re Cotton, 208 Mich.App. 180, 184; 526 N.W.2d 601 (1994):
The fact that the Legislature in drafting the statute limited judicial review to a determination whether consent was withheld arbitrarily and capriciously, and further required that such a finding be based upon clear and convincing evidence, clearly indicates that it did not intend to allow the probate 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 representative acted arbitrarily and capriciously. 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, as petitioners seem to suggest, 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.
One cannot reasonably dispute that this is an accurate statement of the law. The Legislature clearly intended that the MCI Superintendent be the decision maker in these matters and that judicial intervention would only be permitted in the event of an egregious mistake. As a judge, it is not my place to second guess the Legislature on policy matters, I may only attempt to ascertain its intent. To that end, I believe the next paragraph in Cotton went too far:
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. [Id. at 185 (emphasis added).]
When it decided In re TEM, 343 Mich.App. 171, 179; 996 N.W.2d 850 (2022), this Court left no doubt regarding what it meant in Cotton: "Michigan authority is clear that the court is to determine if there is any good reason to support the MCI Superintendent's decision; if so, the decision must be upheld." The "any good reason" standard was also articulated in three additional published opinions of this Court, including the previous appeal in this case. In re Keast, 278 Mich.App. 415, 425; 750 N.W.2d 643 (2008); In re ASF, 311 Mich.App. 420, 430; 876 N.W.2d 253 (2015); In re CADP, 341 Mich.App. 370, 380; 990 N.W.2d 386 (2022). Accordingly, the trial court was correct when it said that its job was only to ascertain whether the Superintendent had any good reason to grant consent to adopt CADP to Robinson and deny consent to the Prevos and Thibodeaus.
I disagree with this Court's conclusion in Cotton and its progeny that a decision cannot be deemed arbitrary and capricious if there is any good reason to support it. Indeed, even the cases articulating this standard are self-contradictory. For example, in TEM this Court stated that
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," and the generally accepted meaning of capricious is 'apt to change suddenly; freakish; whimsical; humorsome.' [TEM, 343 Mich.App. at 177, quoting Keast, 278 Mich.App. at 424-425 (quotation marks and alterations omitted); see also CADP, 341 Mich.App. at 380.]
In CADP, this Court paraphrased Keast as follows: "A decision is arbitrary if, although decisive, it is reached by whim or caprice rather than being reasoned and driven by reference to principles, circumstances, or significance. A decision is capricious if it is whimsical, freakish, or humorsome, or apt to being suddenly changed." CADP, 341 Mich.App. at 380 (quotation marks, citations, and alterations omitted).
A "freakish" decision that is "determined by whim" can also be supported by at least one good reason.
The term "arbitrary and capricious" being construed to mean "unsupported by any good reason" is unique to this statute in these proceedings, and that standard has not been applied in any other context. Indeed, in other contexts, the definition provided above is the only one used. See, e.g., English v Blue Cross Blue Shield of Mich, 263 Mich.App. 449, 472; 688 N.W.2d 523 (2004) (stating that "[a] decision is arbitrary if it is without adequate determining principle, fixed 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" and that "[a] decision is capricious if it is apt to change suddenly; freakish; whimsical; humorsome"). When the legislature uses a legal term of art, it "must be construed in accordance with its peculiar and appropriate legal meaning." Brackett v Focus Hope, Inc, 482 Mich. 269, 276; 753 N.W.2d 207 (2008). By limiting judicial intervention to those cases in which a decision was arbitrary and capricious, the Legislature certainly intended to build a system of strict deference, but this Court has taken it even further. The "any good reason" standard essentially removes any judicial oversight and relegates virtually all § 45 petitions to automatic futility. These cases are inconsistent with the language of the statute and run afoul of the Legislature's intent.
Notably, the standard articulated by this Court in Cotton and subsequently reaffirmed by several unpublished opinions has never been adopted by the Supreme Court. However, in a concurring opinion, Justice Corrigan criticized how Cotton has been interpreted in subsequent cases:
The lower courts relied on the Court of Appeals opinion in In re Cotton to conclude, in the words of the trial judge, that a petitioner's burden under MCL 750.45 is "almost impossible." The Court of Appeals opined that the evidence proffered by the Martins was essentially irrelevant because it was insufficient for the trial court to have concluded that there were no good reasons for the Superintendent to have withheld consent. To support this conclusion, the Court of Appeals cited In re Cotton for the proposition that "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."
But the tribunals misinterpreted In re Cotton in this regard, thus effectively rendering their review under MCL 750.45 meaningless. The oft-cited portion of In re Cotton was primarily aimed at refuting the narrow question posed in that case: whether the Legislature intended for a reviewing court to decide adoption issues de novo and substitute its judgment for that of the representative of the agency that must consent to the adoption. In re Cotton did not establish, as the lower courts appear to conclude, that the Superintendent's decision must be affirmed as long as it appears facially reasoned, without regard to the accuracy of the facts or the thoroughness of the investigation, as long as a single "good" reason supports the decision. To the contrary, as In re Cotton explicitly suggested, a reviewing court may address whether the bases for his decision are "without factual support." [In re CW, 488 Mich. 935, 940-941; 790 N.W.2d 383 (2010) (CORRIGAN, J., concurring) (quotation marks and citations omitted).]
As noted above, this Court did not heed Justice Corrigan's warning, and this Court cemented the "any good reason" standard in 2022 when it published its opinion in TEM, 343 Mich.App. at 179.
My hope is that the Supreme Court will take up this issue anew and correct this effective nullification of judicial oversight of the Superintendent's decision making.