Opinion
No. 355572
05-13-2021
In re JMC, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Grand Traverse Circuit Court Family Division
LC No. 20-100001-AM Before: MURRAY, C.J., and FORT HOOD and GLEICHER, JJ. PER CURIAM.
The Michigan Children's Institute (MCI) superintendent denied petitioner's request to adopt JMC, the child of a family friend. Petitioner cared for JMC for 11 months during the child's infancy. Although petitioner no doubt loves JMC and could provide a stable home for him, the superintendent's decision to permit the foster family with whom JMC had lived for more than two years to adopt the child was not arbitrary or capricious. We affirm.
I. BACKGROUND
Petitioner describes herself as a family friend of JMC's biological mother. The mother had already lost custody of two children when she gave birth to JMC, and had difficulty caring for him. She left JMC with petitioner for short stays on several occasions and finally left him in petitioner's care fulltime when the child was three months old. The mother gave petitioner power of attorney over the child, but would not agree to a guardianship. Petitioner allegedly reported to authorities that the mother had abandoned JMC in her care, but Child Protective Services (CPS) declined to become involved.
The Department of Health and Human Services (DHHS) took JMC into care in February 2017 after an "incident" between petitioner and the child's mother. The mother and her boyfriend tried to take JMC from petitioner's home by force. The boyfriend threatened future violence. The mother was under the influence of narcotics at the time, and responding officers believed petitioner was under the influence as well. Although petitioner claimed to have nothing in her system, a blood test returned positive for THC and methadone. Petitioner claimed to have taken a single methadone pill prescribed after an earlier accident because of back pain. Petitioner requested to have JMC officially placed in her care, but the DHHS could not do so as petitioner was neither a relative nor a licensed foster parent; the mother continued to refuse to appoint petitioner as the child's guardian; and CPS believed petitioner had been dishonest about her substance use.
JMC was placed in two foster homes in quick succession before being placed with the H family who expressed a desire to adopt him. Early on, JMC exhibited concerning behaviors, including night terrors, head banging, and being inconsolable. An infant mental health therapist believed these early behaviors were the result of traumatic grief from being removed from petitioner's care with no transition. The H family made significant efforts to secure services for JMC. Over time, JMC's behavior improved because of the structure, stability, and support of his foster family, and he became bonded with his foster parents and foster siblings.
Meanwhile, petitioner attempted to stay involved in JMC's life. The week after JMC's removal, petitioner enrolled in foster care classes and became a licensed foster care provider in September 2017, seven months after JMC's removal. Petitioner's requests to be involved in the child protective proceedings were repeatedly denied. Petitioner was finally invited to the table in October 2017 and she was eventually allowed weekly visits of increasing length.
Ultimately, petitioner filed a petition to adopt JMC. Both the adoption caseworker and the child's lawyer guardian ad litem (LGAL) supported reunifying JMC with petitioner. But other service providers favored adoption by the Hs.
The MCI superintendent denied petitioner's request to adopt and granted the foster family's petition. The superintendent noted that JMC had been in his foster placement for 2½ years, since he was only 15 months old. The foster parents, the superintendent noted, "were willing to deal with the challenges of parenting a child who was not easily comforted and who had special needs." JMC had made significant progress in the care of his foster parents and had become attached to his foster parents and siblings, especially seeking out his foster father for comfort. The superintendent concluded: "This is a familiar environment that represents stability and provides a regular routine. These factors are critical to child development, especially for those who have survived trauma. There are insufficient reasons to disrupt [JMC] from his stable and satisfactory environment."
The superintendent relied on the opinions of the CASA worker who was assigned to JMC's case from June 2017 through November 2018. The worker observed JMC with both petitioner and the foster family for extended periods of time. He opined that the foster family "persisted in securing the attention" JMC needed from medical and other service providers. "He recommend[ed] that [JMC] remain in the loving and capable environment where he has resided for two and half years." The superintendent further cited the opinion of JMC's pediatrician that the child was "more likely to experience learning, mood and attention difficulties," because he was exposed to substances in utero. The pediatrician "strongly feels that 'the least traumatic and healthiest place for [JMC] would be in the [H] household.' "
Before denying petitioner's adoption request, the superintendent reasoned:
There is no question that [petitioner] loves [JMC] and has been invested in his welfare since he was an infant. However, he was not placed with her when he was removed from his birth mother's custody for multiple reasons, including the
birth mother's opposition to it, [petitioner's] positive drug test and the fact that she was not a relative or licensed foster home. There was also the fact that there were several different agencies involved in the case who appear to have opposing viewpoints. Nevertheless, any decision in regard to [JMC's] best interests must be determined by facts as they currently exist, not by any perceived missteps in the past.
While [JMC] formed an attachment to [petitioner], after a year of weekly visits, it is difficult to weight this against the bonds he has established with all of the members of his foster family over a period of 2½ years. [Petitioner] has become a familiar person in [JMC's] life, and it is hoped that she can maintain an active role in it. The current foster parents respect that relationship and they seem willing to keep [petitioner] in his life.
Petitioner appealed the superintendent's decision to the circuit court under MCL 710.45(2), arguing that the superintendent's decision was arbitrary and capricious. At the hearing, the superintendent emphasized that her decision was "not about the adults," it was "about the child." When the case came across the superintendent's docket, JMC had been with the foster family for an extended period of time. That home was stable and consistent, and JMC had made significant improvement because of the foster family's efforts. Although the foster mother was concerned about visitation when petitioner first filed her adoption petition, ultimately, the foster family "recognized the importance of [petitioner] in [JMC's] life, and . . . had every intention of continuing to allow her to be involved with him." The superintendent reviewed the reports of the service provider and caseworker who favored placing JMC with petitioner for adoption. "I was looking to see if there was something in the foster home that would lead everyone to feel that he would be better off after two and half years moved, because that is a very unusual stance for any agency to take," but found nothing to warrant this action. The superintendent was skeptical of the infant mental health therapist's evaluation that JMC's behavior stemmed from his removal from petitioner, and stated her belief that when JMC was reunited with petitioner, he likely did not remember her.
The circuit court upheld the superintendent's decision. Petitioner now appeals.
II. ADOPTION DECISION
"Pursuant to 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 Keast, 278 Mich App 415, 423; 750 NW2d 643 (2008). We review for clear legal error whether the trial court properly applied this standard. Id. A trial court commits clear legal error when it "incorrectly chooses, interprets, or applies the law . . . ." Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).
The MCI superintendent "has the power to make decisions on behalf of a child committed to the institute," MCL 400.203(2), including the authority to consent to adoption, MCL 400.209(1). If the superintendent denies a petitioner's request for consent to adopt, the petitioner may file a motion with the court alleging that the superintendent's decision was arbitrary and capricious. MCL 710.45(2). A trial court will reverse the superintendent's decision only if the petitioner establishes by clear and convincing evidence that the decision was arbitrary and capricious. MCL 710.45(7). Evidence is clear and convincing when it "produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In re Martin, 450 Mich 204, 227; 528 NW2d 399 (1995). A decision is "arbitrary" if it is "determined by whim or caprice," "[w]ithout adequate determining principle," or "fixed on or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances or significance, . . . [and] decisive but unreasoned," and is "capricious" if the decision-maker's mind is "[a]pt to change suddenly; freakish; whimsical; humorsome." Goolsby v Detroit, 419 Mich 651, 678; 358 NW2d 856 (1984) (quotation marks and citation omitted).
When reviewing the MCI superintendent's decision, "the focus is not whether the representative made the 'correct' decision or whether the [court] would have decided the issue differently than the representative, but whether the representative acted arbitrarily and capriciously in making the decision." In re Cotton, 208 Mich App 180, 184; 526 NW2d 601 (1994). The court must focus on the "reasons given by the representative for withholding the consent to the adoption," and "it is the absence of any good reason to withhold consent, not the pretense of good reasons to grant it, that indicates that the representative was acting in an arbitrary and capricious manner." Id. at 185. However, a reviewing court must also consider whether the decision of the superintendent was "fanciful or without factual support." Id. at 186.
This was a close case between two competing parties petitioning to adopt JMC. "In a close case such as this one, it is important that we remain mindful of the standard governing our review and that of the circuit court. . . . [N]either this Court nor the circuit court reviews the matter de novo, and it is not for us to say whether the superintendent made the 'correct' decision." In re ASF, 311 Mich App 420, 436; 876 NW2d 253 (2015). "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 might have decided the matter in favor of the petitioner." Id. (cleaned up).
The MCI superintendent based her decision on sound evidence and her decision was neither arbitrary nor capricious. JMC was nearly four years old when the superintendent considered the adoption petitions. It was reasonable for the superintendent to conclude that JMC's life with the H family was the only life he could remember. The H family had made significant efforts to address JMC's trauma and other special needs and he was flourishing. JMC viewed the H family as his own. There was evidence that JMC had not done as well in petitioner's care as represented by some of the service providers. He came into DHHS care with severe language delays that were not explained by separation trauma. Although his other behavioral issues may have been driven by the trauma of losing petitioner as his caregiver, the H family helped JMC overcome those difficulties. And ultimately, the past cannot be changed. Petitioner was not eligible to retain custody of JMC when CPS intervened because she was not a licensed foster parent, was not a relative, and was less than honest before her positive drug screen. We have no ground to interfere with the superintendent's decision, and neither did the circuit court.
III. EXCLUDED TESTIMONY
Petitioner also argues the circuit court improperly limited the scope of testimony at the review hearing. We review for an abuse of discretion the circuit court's evidentiary decisions. Elezovic v Ford Motor Co, 472 Mich 408, 419; 697 NW2d 851 (2005).
Petitioner attempted to elicit testimony about her visitation with JMC and about her preexisting bond with him. The circuit court excluded the testimony as irrelevant, stating that the superintendent had acknowledged the bond between petitioner and JMC. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. The superintendent based her decision, in part, on JMC's bonds with his foster family, while acknowledging the relationship with petitioner. The superintendent did consider evidence of petitioner's preexisting bond with JMC, but determined that given the child's age and the length of time he had been in care, that bond no longer existed. The subject testimony was relevant and likely should have been admitted. However, this testimony would have been cumulative of information supplied in the voluminous reports and documents provided to the circuit court for its review. Any error in the omission of this testimony was harmless. See Nahshal v Fremont Ins Co, 324 Mich App 696, 717; 922 NW2d 662 (2018).
The circuit court also prevented petitioner from testifying regarding her concern that the H family would not allow her to continue visiting JMC. The court determined that this information was not relevant to resolving whether the superintendent's decision was arbitrary and capricious. Again, the superintendent had considered this information in making her decision. And again, the H family's vacillation about visitation was included in the voluminous reports provided to the court, rendering the absence of this testimony harmless. In any event, the decision regarding a third party's ability to see a child always remains with the parent. It will be up the Hs to decide if petitioner's involvement with JMC benefits or harms him going forward, a consideration that could change over time. Petitioner's speculation about the future was not solid evidence for the court to consider.
Finally, the LGAL attempted to ask the infant mental health therapist her opinion about the effect on JMC should he lose either his relationship with petitioner or his foster family. The court ruled that the testimony was irrelevant because it was well known that JMC was bonded to both parties and would be affected by the loss of either. Yet again, this was a relevant issue and a component of the superintendent's decision. But again, this information was presented to the court in other forms. If any error occurred, it was harmless and does not warrant a new review.
We affirm.
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher