7.3Adoption Petitioner’s Motion Regarding Withholding Consent to Adopt
When a child is released to a child placing agency, the department, or the court, the child placing agency, the department, or the court to which the child is released must consent to the child’s adoption.4 MCL 710.43(1)(b)-(d). If the child placing agency, the department, or the court withholds its consent to adopt, the adoption petitioner may file a motion claiming that the decision to withhold consent was arbitrary and capricious. MCL 710.45(2). “[T]he motion is a required, not discretionary, part of the petition process.” In re CADP, 341 Mich App 370, 380 (2022). However, the motion may not be filed under MCL 710.45 if:
•The child placing agency, the department, or the court consented to the child’s adoption by another petitioner, MCL 710.45(3), and
•The child has been placed with the other petitioner under MCL 710.51,5 MCL 710.45(3), and
•Fifty-six days have elapsed since the placement order was entered, MCL 710.45(3)(a), or
•An adoption order has already been entered, MCL 710.45(3)(b).
“[A] hearing under [MCL 710.45] is not . . . 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.” In re Cotton, 208 Mich App 180, 184 (1994). See also In re JCR II, ___ Mich App ___, ___ (2024) (“[I]t 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.”), quoting In re Cotton, 208 Mich App at 185.
“If an adoption petitioner has been unable to obtain the consent required by [MCL 710.43(1)(b), (c), or (d)], the petitioner may file a motion with the court alleging that the decision to withhold consent was arbitrary and capricious.” MCL 710.45(2). A motion under MCL 710.45(2) must 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.” MCL 710.45(2).
“In an adoption proceeding in which there is more than 1 applicant, the petition for adoption shall be filed with the court of the county where the parent’s parental rights were terminated or are pending termination. If both parents’ parental rights were terminated at different times and in different courts, a petition filed under this section shall be filed in the court of the county where parental rights were first terminated.” MCL 710.45(4). See Section 4.3(A) for a discussion of proper venue for adoption petitions.
“The court shall provide notice of a motion brought under [MCL 710.45] to all interested parties as described in [MCL 710.24a(1)], the guardian ad litem of the prospective adoptee if one has been appointed during a child protection proceeding, and the applicant who received consent to adopt.” MCL 710.45(5). “If the court knows or has reason to know the adoptee is an Indian child,” the court must also provide notice of the motion to the Indian child’s tribe and Indian custodian (if applicable), or where the Indian child’s parent, Indian custodian, or tribe is unknown, the Secretary of the Interior. MCR 3.800(B)(1)-(2).
For a discussion on interested parties as described under MCL 710.24a(1) and MCR 3.800(B), see Section 6.6(D). For a discussion on adoption proceedings involving an Indian child, see Chapter 11.
B.Discovery Rules Apply to § 45 Hearings When Determining Whether Withholding Consent Was Arbitrary and Capricious
MCR 3.800(A) states that the Michigan Court Rules govern adoption proceedings. Adoption proceedings had been within the probate court’s jurisdiction before the family division of circuit court was created.6 After the Legislature gave the family court exclusive jurisdiction over adoption proceedings, the court rules governing adoption were moved from Chapter 5 (probate court proceedings) to Chapter 3 (special proceedings and actions). In re CADP, 341 Mich App 370, 381-382 (2022). The general discovery rules applied to probate proceedings when adoption was within probate court jurisdiction, and “[t]here is nothing in the statutory provisions governing the family division of the circuit court suggesting that when jurisdiction of adoption proceedings was moved from the probate court, the opportunity for discovery was to be eliminated.” Id. at 383. Further, “[n]o provision in Chapter 3 [of the Michigan Court Rules] limits the right of discovery in adoption proceedings.” Id. at 383.
“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.” CADP, 341 Mich App at 386, quoting MCL 710.45(7). The discovery process is often the means by which a petitioner obtains evidence to meet that burden. CADP, 341 Mich App at 384. See also In re JCR II, ___ Mich App ___, ___ (2024) (holding that “the circuit court abused its discretion by declining to permit discovery of information relevant to the Section 45 hearing”).
1.Scope of Information Sought
A decision to withhold consent may result from reasons shown “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.” In re CADP, 341 Mich App 370, 386 (2022). Any evidence relevant to examining the validity of the information relied on “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.” CADP, 341 Mich App at 386.
In CADP, the petitioners’ subpoenas to obtain information from another party for purposes of showing that the decision to withhold consent was arbitrary and capricious “were not necessarily overbroad.” CADP, 341 Mich App at 386, 395. Petitioners issued a subpoena to the Michigan Children’s Institute (MCI)7 seeking discovery of “[t]he complete MCI file regarding [CADP].”8 Id. at 376 (second alteration in original). Petitioners issued a subpoena requesting similar information from DHHS and BCS (Bethany Christian Services).9 Id. at 376. See also In re JCR II, ___ Mich App ___, ___ (2024) (holding that generally, “any document that is relevant and not privileged is freely discoverable upon request,” and specifically, 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”) (quotation marks and citations omitted).
2.Discovery and Relevant Statutory Provisions
MCL 400.211 indicates that MCI records must be “filed as confidential” and “are not to be made public except as authorized by DHHS.” In re CADP, 341 Mich App 370, 388 (2022). The CADP Court noted that MCL 400.211 did not appear to mandate that all MCI records were not to be disclosed, only that such records must not be made public “‘except[] as the [DHHS] shall authorize, when deemed necessary for the best interest of the child.’” CADP, 341 Mich App at 377, quoting MCL 400.211. According to the Court, “[t]he records . . . can remain ‘filed as confidential,’ yet still be subject to inspection for discovery purposes.” CADP, 341 Mich App at 388. The Court further stated that disclosure was not prohibited “particularly when a protective order would satisfy the confidentiality requirement as worded in the statute.” Id. at 388.
With a few exceptions, MCL 710.67(1) requires that “records of proceedings in adoption cases, . . . and the papers and books relating to the proceedings shall be kept in separate locked files and [are not] open to inspection or copy except upon order of a court of record for good cause shown expressly permitting inspection or copy.” CADP, 341 Mich App at 388 (emphasis omitted). Petitioners in CADP sought discovery of “‘papers’ related to an adoption proceeding,” which MCL 710.67(1) prohibits, unless circumstances exist that would allow disclosure. CADP, 341 Mich App at 389. “Papers” and other material related to an adoption proceeding may be inspected or copied if a court of record orders that “inspection or copy” of the records be permitted “for good cause shown.” Id. at 389, quoting MCL 710.67(1). In CADP, after noting that the petitioners had cared for the child, the Court concluded that the petitioners’ efforts to obtain evidence to support their § 45 motion “should, indeed, be deemed ‘good cause shown,’ subject to the issuance of a protective order[.]” Id. at 389.
MCL 722.120 does not protect from disclosure the material the petitioners in CADP were seeking. CADP, 341 Mich App at 392. MCL 722.120 addresses the disclosure of information gathered by DHHS in its investigation of a child-care organization. CADP, 341 Mich App at 392. “[MCL 722.120] does not expressly create an evidentiary privilege in the circumstances at issue in this matter, particularly where a protective order can be entered to properly safeguard the information.” CADP, 341 Mich App at 392.
MCL 722.627 states that with the exception of specified information released under MCL 722.627d,10 written reports, documents, or photographs filed with the DHHS are confidential records available only to the individuals and entities listed in MCL 722.627(1)(a)–(y).11 CADP, 341 Mich App at 394. Documents, reports, or records created by or obtained from an entity other than the DHHS are not subject to release or inspection unless one of the specific conditions in MCL 722.627(5) applies.13 CADP, Mich App at 390-391.
On the filing of an adoption petition, MCL 710.46(1) requires the court to direct an employee or agent of a child placing agency, the department, or the court, to conduct a full investigation.14 If a motion regarding withheld consent is filed with the adoption petition, the court may waive or modify the full investigation of the petition. MCL 710.45(6).
“The court shall decide the motion [regarding withheld consent] within 91 days after the filing of the motion unless good cause is shown.” MCL 710.45(6). If the court is withholding consent, the adoptive parent’s motion must be heard by a visiting judge. MCL 710.45(9).
“To decide whether a denial of consent to adopt was arbitrary and capricious, a trial court initially focuses [at the § 45 hearing] on the reasons for withholding consent to the adoption.” In re ASF, 311 Mich App 420, 429-430 (2015). When considering a court’s decision to withhold consent “‘[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.’”In re CADP, 341 Mich App 370, 380 (2022), quoting In re Keast, 278 Mich App 415, 425 (2008) (alteration in original); see also In re JCR II, ___ Mich App ___, ___ (2024).
On review of the decision to withhold consent, “the trial court [must] ma[k]e findings of fact and conclusions of law as required by MCR 2.517.” See In re ASF, 311 Mich App at 432. “[T]he fact that [the] petitioners disagree with the trial court’s findings regarding the conflicting evidence does not render the trial court’s findings inadequate under MCR 2.517.” In re ASF, 311 Mich App at 432-433 (finding that “the trial court applied the correct legal standard, and its findings were sufficient to satisfy MCR 2.517” where “the trial court clearly identified the superintendent’s primary reasons for denial: [the petitioner‘s] vacillation on the adoption, [both] petitioners’ potential difficulty parenting [the child] into the future, and the availability of another relative to adopt [the child] that would allow [the child] to continue a relationship with [both] petitioners as [the child’s] grandparents[, and w]hile the trial court’s explanation was relatively concise, the trial court was plainly aware of the issues involved and its ‘[b]rief, definite, and pertinent findings and conclusions’ regarding these issues were sufficient ‘without ‘overelaboration of detail or particularization of facts.’ MCR 2.517(A)(2).”) (ninth alteration in original).
1.Granting or Denying the Motion
The petitioner bears the burden of proof and must establish by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious. See MCL 710.45(7); In re ASF, 311 Mich App 420, 438 (2015) (“at the close of petitioners’ proofs, it was appropriate for the trial court to consider whether petitioners were entitled to relief given the facts and the law without providing the [lawyer-guardian ad litem (LGAL)] an opportunity to present a case separate from petitioners[]”).15
When the court decides whether a child placing agency, the department, or the court arbitrarily and capriciously withheld consent, the judge must not substitute his or her judgment for that of the person or agency withholding consent. In re Cotton, 208 Mich App 180, 184 (1994). Specifically, the Court indicated:
“[T]he clear and unambiguous language terms of [MCL 710.45] 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 . . . judge would have decided the issue differently than the representative, but whether the representative acted arbitrarily and capriciously in making the decision. . . .
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 . . . 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 re Cotton, 208 Mich App at 184-185.
“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 [the Adoption Code] or [MCL 712A.18] 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(8).
If the petitioner fails to demonstrate by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court must deny the motion and dismiss the petition for adoption. MCL 710.45(7). See In re ASF, 311 Mich App 420, 433-434 (2015) (finding that “the trial court did not clearly err when, at the close of petitioners’ case, it determined, based on the facts and law, that petitioners were not entitled to relief because they had not shown by clear and convincing evidence that the [MCI] superintendent’s denial of consent was arbitrary and capricious” where there was “underlying factual support for the [MCI] superintendent’s determinations”). See also In re TEM, 343 Mich App 171, 178, 179 (2022), where the Court agreed with the trial court that the MCI superintendent’s decision was not arbitrary and capricious. Rather, the Court concluded that in contrast to being an arbitrary and capricious decision, the trial court’s decision to uphold the MCI superintendent’s decision denying petitioners’ request to adopt only one of the two siblings, was a decision “supported by thoughtful analysis and adequate investigation.” Id. at 179.
In denying the motion, the court must state the reason for the denial on the record or in writing. MCL 710.63.
2.Appealing the Court’s Decision
The court’s decision is appealable by right to the Court of Appeals. MCL 710.45(10). Under MCL 710.45(10) generally, the Court of Appeals “has subject-matter jurisdiction over appeals from a trial court’s decision on a motion under MCL 710.45.” In re ASF, 311 Mich App 420, 425 fn 3 (2015) (where the petitioning party does not initiate the appeal under MCL 710.45(10) but timely files a cross-appeal, “[the] cross-appeal may be prosecuted to its conclusion even if th[e Court of Appeals] dismisses the initial appeal[]”).16
See Section 7.4 for a detailed discussion of appealing a decision to the Court of Appeals.
4. For a discussion on consent, see Section 2.6.
5. Among other things, MCL 710.51 describes orders issued under its authority that involve terminating the parental rights a parent has to a child.
6. See 1996 PA 388, effective January 1, 1998.
7.According to the DHHS, “‘[t]he MCI falls under the umbrella of MDHHS and should therefore be treated as the same party in all the proceedings.’” CADP, 341 Mich App at 375 n 2 (DHHS statement in CADP appeal).
8. Information sought included “documents, reports, memorandums [sic], case notes, interview notes or any other information that was gathered in the investigation relating to the minor child . . . [and] all email communication, and case conference notes documenting communication with any person.” CADP, 341 Mich App at 376 (first alteration in original).
9.Information sought from DHHS and BCS included “[a]ny and all documents relating to [CADP,] . . . documents, reports, memorandums [sic], case notes, interview notes or any other information that was gathered in the course of your assessment or case assignment relating to the minor child.” CADP, 341 Mich App at 376 (second and third alterations in original).
10. MCL 722.627d lists the persons and entities to which the DHHS director may release specified information and under what circumstances specified information may be disclosed.
11.Effective November 1, 2022, 2022 PA 68 amended MCL 722.627, which resulted in renumbering subsection (2) to subsection (1). 2022 PA 68 also added subdivision (y) to the list of individuals, courts, and agencies having access to confidential records.
.Effective November 1, 2022, 2022 PA 68 amended MCL 722.627, which resulted in renumbering subsection (10) to subsection (5).
13.Documents, reports, and records may be released or inspected if they “are requested for a child abuse or child neglect case or for a criminal investigation of a child abuse or child neglect case conducted by law enforcement.” CADP, 341 Mich App at 394.
14. For a detailed discussion on investigative reports, see Section 5.6.
15. In In re ASF, the Court noted that “when an LGAL has been appointed during child abuse and neglect proceedings, some participation by an LGAL is anticipated during ensuing adoption proceedings that occur during the LGAL’s continued representation of the child. This participation does not, however, make an LGAL for an adoptee under age 14 an ‘interested party’ or a ‘petitioner.’ Because the LGAL was not a petitioner or an interested party, the trial court could grant a motion for involuntary dismissal under MCR 2.504(B)(2) before the LGAL completed her presentation of evidence.” In re ASF, 311 Mich App at 438-439 n 5 (citations omitted). For additional information on LGALs appointed during child protective proceedings, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 7. For a list of interested parties in a child’s adoption, see Section 2.6(B).
16. In In re ASF, the child’s lawyer-guardian ad litem (LGAL), having been appointed during the child protective proceedings and continuing representation during the adoption proceedings, filed the initial appeal. In re ASF, 311 Mich App at 425 n 3. Even though LGALs of “adoptee[s] under the age of 14 [are] not considered an ‘interested party’ in adoption proceedings[,]” the Court of Appeals considered the LGAL’s arguments on appeal where the LGAL was appointed to the child during the child abuse and neglect proceedings and the LGAL’s responsibilities to the child continued while the child remained under the MCI’s supervision. Id. See MCL 712A.17d(1)(b), which provides the LGAL with, among other powers and duties, “entitle[ment] to fully and actively participate in all aspects of the litigation[.]” For additional information on LGALs appointed during child protective proceedings, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 7.