Opinion
367472
05-23-2024
In re JCR II/JCR/JCR/JCR, Minors.
St. Clair Circuit Court Probate Division LC Nos. 23-000023-AM 23-000024-AM 23-000025-AM 23-000026-AM
Before: MALDONADO, P.J., and PATEL and N. P. HOOD, JJ. N. P. HOOD, J.
N. P. HOOD, J.
Petitioner, Louann Ballard, sought to adopt her four grandchildren after the circuit court terminated the parental rights of the children's biological parents. The superintendent of the Michigan Children's Institute (MCI) withheld consent to adopt. Petitioner challenged the superintendent's decision in the circuit court. After conducting a hearing pursuant to MCL 710.45(2) (a Section 45 hearing), the circuit court concluded that the superintendent's decision to withhold consent was not arbitrary and capricious, upheld that decision, and dismissed petitioner's adoption petition. Petitioner, proceeding in propria persona, appeals as of right. Because the circuit court did not allow complete discovery of information relevant to the Section 45 hearing, we vacate the circuit court's order dismissing petitioner's adoption petition and remand for additional proceedings. On remand, the circuit court shall allow petitioner to conduct discovery regarding the children's case files maintained by MCI, the Department of Health and Human Services (DHHS), and the involved adoption agency. The circuit court shall then hold a new Section 45 hearing.
Petitioner's claim of appeal and appellate brief incorrectly characterize the Louann Katherine Ballard Family Living Trust as the petitioner when, in fact, the trust had no role in the adoption proceedings.
Our holding does not limit the circuit court's ability to address objections to petitioner's discovery requests on other grounds. As this Court explained in In re CADP, 341 Mich.App. 370, 386; 990 N.W.2d 386 (2022) (CADP I), "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."
I. BACKGROUND
This appeal arises out of adoption proceedings concerning four siblings: JCR I, JCR II, JCR III, and JCR IV. During the proceedings, JCR I and JCR III resided together with their paternal aunt and uncle, Theresa and Raymond Fuller. JCR II and JCR IV resided together with their licensed foster parents, Nicholas and Tavi Lupu-Karayanis. The Fullers and the Lupu-Karayanises expressed to MCI that they wished to adopt the respective children in their care. Petitioner also expressed to MCI that she wished to adopt all four children. MCI prepared adoption assessments for each child. Ultimately, the MCI superintendent withheld consent for petitioner to adopt the children and granted consent for the Fullers and the Lupu-Karayanises to adopt the respective children in their care.
After the MCI superintendent's adoption decision, petitioner filed a petition to adopt all four children. Petitioner also moved for a Section 45 hearing, arguing that the MCI superintendent's decision to withhold consent for adoption was arbitrary and capricious. In turn, the Fullers and the Lupu-Karayanises filed competing petitions to adopt the respective children in their care. The circuit court scheduled a Section 45 hearing in accordance with petitioner's motion.
Before the Section 45 hearing took place, petitioner served subpoenas on MCI, DHHS, and an involved adoption agency, requesting unredacted copies of "the entire file with respect to the children, parents, grandparents, and all persons with whom the children have been placed." In response, DHHS moved to quash the subpoenas. Petitioner then moved to compel discovery, arguing that she was entitled to the entire file maintained by MCI, DHHS, and the adoption agency in order to support her adoption petition and Section 45 motion.
According to representations made by counsel on the record, DHHS agreed to produce portions of the file subject to a stipulated protective order. We observe that, in addition to limiting disclosure of information in the discovery, the proposed stipulated protective order would also have limited the scope of discovery. Petitioner declined to execute the proposed order, citing the belief that it was overbroad.
The circuit court addressed petitioner's motion to compel discovery immediately before the Section 45 hearing. It denied petitioner's motion, reasoning that she was only entitled to documents relevant to the Section 45 hearing, which she had already received, and she was not permitted to engage in a "fishing expedition." The circuit court explained its reasoning, in part, as follows:
You are not entitled, Counsel, to the entire file. You are entitled to anything that may be relevant to the superintendent's decision to deny. Not as to, I mean it's not a comparison about whether your client should be better than the ones who were consented. It's not a comparison between the parties, it's just whether or not there are good reasons your client was denied. That's the focus of this hearing, and you've been supplied that information because that information was given to your client. And so your motion is denied and we will proceed with this [hearing].
The circuit court continued to hold the Section 45 hearing and concluded that the MCI superintendent's decision to withhold consent for adoption was not arbitrary and capricious. The circuit court denied petitioner's Section 45 motion and dismissed her adoption petition. This appeal followed.
II. PROCEEDINGS UNDER MCL 710.45
"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." In re Keast, 278 Mich.App. 415, 423; 750 N.W.2d 643 (2008), citing MCL 400.203. "The superintendent is authorized to consent to the adoption of any child committed to the MCI as a state ward." In re Keast, 278 Mich.App. at 423, citing MCL 400.209. Under 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 established clear and convincing evidence that the MCI superintendent's withholding of consent was arbitrary and capricious." In re TEM, 343 Mich.App. 171, 176-177; 996 N.W.2d 850 (2022), quoting In re Keast, 278 Mich.App. at 423. "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[.]" In re TEM, 343 Mich.App. at 177, quoting In re Keast, 278 Mich.App. at 424425 (cleaned up). Likewise, "the generally accepted meaning of capricious is apt to change suddenly; freakish; whimsical; [or] humorsome." In re TEM, 343 Mich.App. at 177, quoting In re Keast, 278 Mich.App. at 424-425 (cleaned up).
In determining whether the MCI superintendent's decision to withhold consent to adopt a state ward was arbitrary and capricious, a circuit court must not decide the adoption issue de novo and substitute its judgment for that of the superintendent. In re Cotton, 208 Mich.App. 180, 184; 526 N.W.2d 601 (1994). "[I]f there exist good reasons why consent should be granted and good reasons why consent should be withheld, it cannot be said that the [MCI superintendent] acted arbitrarily and capriciously in withholding that consent ...." Id. at 185. In this context, this Court has explained 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." Id.
III. DISCOVERY
Petitioner argues that the circuit court erred by concluding that she was not entitled to discovery regarding the children's files maintained by MCI, DHHS, and the involved adoption agency. We agree.
"A trial court's decision to grant or deny discovery is reviewed for an abuse of discretion." In re CADP, 341 Mich.App. 370, 379; 990 N.W.2d 386 (2022) (CADP I). An abuse of discretion occurs when the trial court's decision was outside the range of reasonable and principled outcomes. Id. (citation and quotations marks omitted).
MCR 2.302(B)(1) governs the general scope of civil discovery in Michigan. It provides:
Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claims or defenses and proportional to the needs of the case, taking into account all pertinent factors, including whether the burden or expense of the proposed discovery outweighs its likely benefit, the complexity of the case, the importance of the issues at stake in the action, the amount in controversy, and the parties' resources and access to relevant information. Information within the scope of discovery need not be admissible in evidence to be discoverable.
"Michigan follows an open, broad discovery policy that permits liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending case." Reed Dairy Farm v Consumers Power Co, 227 Mich.App. 614, 616; 576 N.W.2d 709 (1998) (citations omitted). A matter is "relevant" when it has a "practical . . . bearing" on a party's claim or defense or is "pertinent" to it. McClellan v Collar (On Remand), 240 Mich.App. 403, 410; 613 N.W.2d 729 (2000) (quotation marks and citation omitted). MRE 401 provides that evidence is relevant if it "has any tendency" to make a fact of consequence more or less probable than without the evidence. MRE 401(a) and (b). Thus, as a general rule, "any document that is relevant and not privileged is freely discoverable upon request." Hartmann v Shearson Lehman Hutton, Inc, 194 Mich.App. 25, 28; 486 N.W.2d 53 (1992). The court rules ensure that discovery requests are fair and legitimate by providing that discovery may be circumscribed to prevent excessive, abusive, irrelevant, or unduly burdensome requests. See MCR 2.302(C). As a specific rule, we have held that the case files relating to an adoptive child "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." CADP I, 341 Mich.App. at 386.
In CADP I, this Court confirmed that discovery is permissible in adoption cases and that the court rules governing civil discovery generally apply to adoption proceedings. CADP I, 341 Mich.App. at 380. There, the petitioners sought through a discovery request the "complete" files from MCI, DHHS, and the involved adoption agency. Id. at 376. The trial court denied the request, concluding that the petitioners were not entitled to discovery because the general discovery rules did not apply to Section 45 proceedings, the information sought was confidential, and the petitioners' subpoenas were overbroad. Id. at 377. Petitioners appealed, and this Court reversed and remanded. It held, in part, that "the discovery rules do, in fact, apply to a § 45 hearing[,]" and "[the] petitioners' subpoenas were not necessarily overbroad." Id. at 386. In doing so, this Court explained as follows:
[The] [p]etitioners 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 [the] 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), [the] petitioners must be afforded the means to attempt to carry that burden. [CADP I, 341 Mich.App. at 386.]
This Court revisited the CADP adoption matter in In re CADP, unpublished per curiam opinion of the Court of Appeals, issued February 22, 2024 (Docket Nos. 366087 and 366088) (CADP II). After remand, the trial court limited the scope of discovery by precluding the competing parties from discovering information related to one another's adoption petitions before proceeding with the Section 45 hearing. Id. at 2. In the following appeal, this Court held that the trial court erred by only allowing the petitioners access to their own adoption-related files. Id. It reasoned that the trial court's discovery ruling contradicted the holding in CADP I, thereby violating the law of the case doctrine. Id. at 3. It further explained that, because the trial court did not allow discovery of information related to the competing parties, the petitioners were not afforded the means to attempt to carry their burden to establish that the MCI superintendent's decision to withhold consent for adoption was arbitrary and capricious. Id. at 4.
"Although MCR 7.215(C)(1) provides that unpublished opinions are not binding under the rule of stare decisis, a court may nonetheless consider such opinions for their instructive or persuasive value." Cox v Hartman, 322 Mich.App. 292, 307; 911 N.W.2d 219 (2017) (citation omitted).
"Generally, the law of the case doctrine provides that an appellate court's decision will bind a trial court on remand and the appellate court in subsequent appeals." Duncan v Michigan, 300 Mich.App. 176, 188-189; 832 N.W.2d 761 (2013) (quotation marks and citation omitted).
Here, the circuit court abused its discretion by declining to permit discovery of information relevant to the Section 45 hearing. As this Court explained in CADP I, a child's case files are relevant for purposes of determining whether the MCI superintendent's decision to withhold consent for adoption was arbitrary and capricious. CADP I, 341 Mich.App. at 386. The basis for the MCI superintendent's decision may have been determined invalid if, for example, petitioner presented evidence that the information relied upon was inaccurate or the children's circumstances were not properly considered. See id. Because petitioner was not able to access the children's case files maintained by MCI, DHHS, and the involved adoption agency in discovery, she was deprived of meaningful discovery related to a hearing where her burden was to establish by clear and convincing evidence that the decision to withhold consent for adoption was arbitrary and capricious. The circuit court abused its discretion by declining to permit discovery of information relevant to the Section 45 hearing. We, therefore, vacate the circuit court's order dismissing petitioner's adoption petition and remand for additional proceedings. Because remand is warranted and the trial court must hold a new Section 45 hearing, we decline to address petitioner's arguments pertaining to the trial court's ultimate conclusion that the MCI superintendent's decision was not arbitrary and capricious.
IV. BIAS
Petitioner also argues that the circuit court, MCI, DHHS, and the children's guardian ad litem (GAL) were biased against her and that this bias and impartiality deprived her of a fair hearing. Petitioner, however, failed to preserve these claims by raising them below or in an appropriate motion for disqualification. See PC v JLS, ____ Mich.App. ____, n 2; _____ NW3d (2023). Moreover, she has not presented any facts or any citations to the record to support her allegations of bias or misconduct. Our independent review of the record also failed to disclose support for petitioner's claims. Accordingly, petitioner has abandoned this claim of error. "It is not sufficient for a party simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position." Wilson v Taylor, 457 Mich. 232, 243; 577 N.W.2d 100 (1998) (quotation marks and citation omitted). There is nothing to suggest that either the trial court, MCI, DHHS, or the GAL were biased against petitioner.
V. ICWA AND MIFPA
During the pendency of this appeal, petitioner filed what she characterized as notice of the children's eligibility for membership in the Cherokee Indian tribe. Congress enacted the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and our Legislature enacted the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., in efforts to protect and preserve American Indian tribes and families. See In re England, 314 Mich.App. 245, 251; 887 N.W.2d 10 (2016). The statutes each establish substantive and procedural protections applicable when American Indian children are involved in child custody proceedings. Id. The statutes contain notice provisions, which generally require that proper notice of child custody proceedings be given to a child's actual or putative American Indian tribe. In re Williams, 501 Mich. 289, 296; 915 N.W.2d 328 (2018). Because we have already concluded that remand is warranted, we need not determine whether the ICWA and MIFPA provide independent bases for reversal under these circumstances. On remand, however, the circuit court must address the applicability of the ICWA and MIFPA in light of petitioner's claim regarding the children's eligibility for membership in an American Indian tribe. See In re Morris, 491 Mich. 81, 108; 815 N.W.2d 62 (2012) (explaining that, under the ICWA, "[o]nce sufficient indicia of [American] Indian heritage are presented to give the court a reason to believe the child is or may be an [American] Indian child, resolution of the child's and parent's tribal status requires notice to the tribe or, when the appropriate tribe cannot be determined, to the Secretary of the Interior.").
VI. CONCLUSION
We vacate the circuit court's order dismissing the petition to set aside MCI's denial of consent to adopt. We remand for additional proceedings consistent with this opinion. We do not retain jurisdiction.
To the extent that petitioner's appellate brief purports to raise additional issues, we consider them abandoned. Although petitioner's brief identifies 20 issues in her Statement of Questions Involved, her issue statements are often incomplete, unclear, or redundant. The deficiencies in petitioner's brief make it difficult to discern the rationale underlying many of her claims of error. In recognition of petitioner's pro se status, we have addressed those issues that could be discerned from petitioner's brief. See Hein v Hein, 337 Mich.App. 109, 115; 972 N.W.2d 337 (2021). But under the circumstances, any other issue that petitioner is purporting to raise must be deemed abandoned. See Blackburne & Brown Mtg Co v Ziomek, 264 Mich.App. 615, 619; 692 N.W.2d 388 (2004) ("An appellant may not merely announce its position or assert an error and leave it to this Court to discover and rationalize the basis for its claims, unravel or elaborate its argument, or search for authority for its position. Insufficiently briefed issues are deemed abandoned on appeal.") (quotation marks and citations omitted).
ALLIE GREENLEAF MALDONADO, P.J. (CONCURRING).
I fully concur in the lead opinion. I write separately to reiterate the concerns that I raised when this Court decided In re CADP, unpublished per curiam opinion of the Court of Appeals, issued February 22, 2024 (Docket Nos. 366807 and 366808) (MALDONADO, J. concurring). The standard this Court has adopted for judicial review of MCR Superintendent decisions is far more deferential than what was anticipated by the Legislature when it enacted Section 45. Because the issue and the analysis are identical to CADP, I have left my restatement of the prior concurrence largely unchanged.
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 the judiciary 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).
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 this "any good reason" 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.
Importantly, 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 described 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.
Once again, I hope that the Supreme Court will take up this issue anew and correct this effective nullification of judicial oversight of the Superintendent's decision making. Notably, the appellants in CADP II have sought leave to appeal in the Supreme Court, relying significantly on my concurring opinion. CADP II presents the Supreme Court with the perfect opportunity to finally resolve this issue and determine the exact scope of review in Section 45 hearings. Since this country's inception, our system of government has relied on checks and balances to ensure fair treatment of its citizens and to mitigate the risk of mistakes. Accordingly, the Legislature enacted a system through which the executive branch decides whether to consent to an adopt and the judicial branch ensures that the decision was not arbitrary and capricious. It is time for this judicial check on the exercise of executive discretion to be restored.