in Re Rc Minor

STATE OF MICHIGAN

COURT OF APPEALS

In re RC, Minor.

LUCINDA CARRIER, UNPUBLISHED

January 3, 2019

Petitioner-Appellee,

v No. 343736

Wayne Circuit Court

MICHIGAN CHILDREN’S INSTITUTE, Family Division

LC Nos. 17-000510-AO

Respondent-Appellant. 14-518511-NA

Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

PER CURIAM.

Petitioner, Lucinda Carrier, the paternal aunt of the minor child RC, sought consent to

adopt RC after the parental rights of RC’s biological parents were voluntarily released. The

superintendent of the Michigan Children’s Institute (MCI) withheld consent to adopt.1 Carrier

challenged the denial of consent to adopt in the circuit court. After conducting a hearing

pursuant to MCL 710.45(2) (Section 45 hearing), the circuit court found that the superintendent’s

decision to deny consent was arbitrary and capricious. The MCI appeals that decision as of right.

1

“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 NW2d 643 (2008). See also MCL 400.203. The MCI superintendent is

authorized to consent to the adoption of any child committed to its care. MCL 400.209. Indeed,

“[c]onsent by the superintendent to the adoption of a state ward is required before the family

court can approve a prospective adoption.” Keast, 278 Mich App at 423. 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 superintendent may file a motion with the court to challenge the denial. In re ASF,

311 Mich App 420, 427; 876 NW2d 253 (2015). Specifically, MCL 710.45(2) provides that “[i]f

an adoption petitioner has been unable to obtain the consent required by [MCL 710.43(1)(b)], the

petitioner may file a motion with the court alleging that the decision to withhold consent was

arbitrary and capricious.”

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Because the trial court did not clearly err by concluding that Carrier had presented clear and

convincing evidence demonstrating that the superintendent’s decision was arbitrary and

capricious, we affirm.

I. BASIC FACTS

RC was born in July 2014. Approximately five months later she was removed from her

parents’ care following allegations that her birth parents were physically abusing her. RC was

placed with Carrier, and, in January 2015, a petition to terminate RC’s biological parents’

parental rights was filed. RC’s biological parents voluntarily relinquished their rights, and RC

was committed to the MCI for adoption planning. She remained in the care of Carrier who

obtained a foster care license. In February 2017, Carrier requested consent to adopt RC.

Fostering Futures, the adoption agency responsible for RC, submitted Carrier’s request to the

MCI. Fostering Futures’ initial recommendation was that Carrier be granted consent to adopt.

Although RC was a ward of the MCI, the MCI superintendent did not have any personal

involvement in her case until March 2017. The superintendent testified that until that point

“there was nothing of any concern noted” in Fostering Futures’ recommendation that Carrier be

allowed to adopt and there was “absolutely” no reason to deny consent.

However, on March 20, 2017, RC (who was just under three years old) was discovered

unsupervised outside her paternal grandfather’s home with another toddler. The children were

wholly unsupervised and were inadequately dressed for March weather in Michigan. The record

reflects that Carrier left RC at RC’s parental grandfather’s home while she ran some errands.

Also present in the home was RC’s biological father and several other adults. Although Carrier

asserts that she left the child in the child’s grandfather’s care, the superintendent noted that there

were conflicting statements as to who was actually supposed to be watching RC when she and

the other toddler got out of the house. Because of the incident, Fostering Futures withdrew its

recommendation so that Child Protective Services (CPS) and the foster-care licensing agency

could complete their investigations. Additionally, two safety plans were put in place to ensure

RC’s continuing safety. It is undisputed that Carrier followed the safety plans.

The superintendent testified that she participated in two phone conferences: one on

March 24, 2017 and the second on March 30, 2017. During the conversations, she discussed the

preliminary findings of the investigations, the likelihood that CPS would substantiate neglect,

RC’s safety, and whether to remove RC from Carrier’s home. She testified that she was told that

Carrier would be substantiated for neglect and placed on the Central Registry for Child Abuse.

Subsequently, on April 10, 2017, at a Family Team Meeting (FTM), Carrier was advised

that RC was going to be removed from her care.2 Tabitha Hallett, the case worker from

Fostering Futures, testified that at that point Fostering Futures started looking for new families

for RC. Prior to the meeting, Carrier testified that she was also advised that the superintendent

2

It should be noted that RC’s guardian ad litem (GAL) did not recommend removal because

there were safety plans already in place and she was concerned about inflicting unnecessary

trauma on RC.

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would be denying her consent to adopt, that RC would be removed from her care, and that a new

family had been found for her. The superintendent testified that it was “true” that before the

FTM she advised Fostering Futures that she was not “considering [Carrier] for adoption.” The

removal was scheduled for April 27, 2017. The superintendent testified that the slow removal

was because Fostering Futures did not feel that RC was at “imminent risk” of harm.

Carrier protested the removal. The superintendent testified that if a petitioner challenges

a removal, the appeal is before the Foster Care Review Board. If the Foster Care Review Board

agrees with the petitioner that the removal is improper, the matter is submitted to the MCI

superintendent for a final decision on whether the child should or should not be removed. In this

case, on April 12, 2017, the Foster Care Review Board sent the superintendent the following e-

mail:

I received a request for a foster parent appeal from Ms. Lucinda Carrier,

regarding [RC]. In speaking with the caseworker Ms. Hallett, I was advised that

you had requested that they move the child to another home and that consent to

adopt would be denied. If consent will be denied, would you be able to send me a

reply stating that? We won’t do an appeal if those are the facts.

Approximately one and a half hours later, the superintendent replied:

There was a case conference with Maltreatment in Care and they are likely

going to substantiate and place Lucinda Carrier on Central Registry. I cannot

consent to her adopting [RC] unless I make an exception, which is rarely done

and must be based on the merits of the case.

Lucinda left [RC] with the birth father and her own invalid father. The

birth father’s girlfriend left to be drug-screened and [RC] walked out the door

with the woman’s 4 year old child. No one was attending the children. They was

[sic] gone for more than twenty minutes, found in the street with no shoes or

socks in March. They could have been killed or kidnapped. Then Lucinda lied

about it. It is [sic] appears that Lucinda, 26, is not ready to be a responsible

parent. I cannot make an exception under these circumstances and will be

denying her consent to adopt [RC]. [Emphasis added.]

At the Section 45 hearing, the superintendent testified that she had not actually made a

decision on whether she was going to deny consent to adopt, and she acknowledged that at that

point she had not done any independent investigation nor had she spoken or otherwise

communicated with Carrier. The superintendent added that she regretted sending the e-mail, and

testified that “it was premature for [her] to make that statement.” She testified that “it usually

takes us three months to determine everything.” She added that lots of documentation needed to

be considered before a decision could be reached, including what the child’s needs are and how

the child is doing in her placement.

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Because of the superintendent’s e-mail, Carrier was not initially given an appeal before

the Foster Care Review Board. The Board explained that it:

denied the appeal, as we received a memo from the MCI Superintendent, Mary

Rossman which advised that she was denying Ms. Carrier consent to adopt [RC].

Since consent was denied and the replacement was to an identified pre-adoptive

home, it was agreed upon by the MCI Superintendent and the [Foster Care

Review Board] that Ms. Carrier’s recourse would now fall under the adoption

code rather than the statute regarding foster placement moves.

On April 27, 2017, Carrier was placed on the Central Registry. On May 3, 2017, she was

found to be in violation of her foster-care-licensing requirements. Notably, both of these reports

were submitted weeks after the superintendent’s stated to Fostering Futures and the Foster Care

Review Board that she would be denying consent.

Carrier retained a lawyer to challenge the removal decision. On April 27, 2017, the day

RC was to be removed, the circuit court entered an order staying the removal. A hearing was

scheduled for May 11, 2017 to determine whether to lift the stay or continue it and order a Foster

Care Review Board review of the removal. Before the hearing, Fostering Futures, the

Department of Health and Human Services (DHHS), and an MCI consultant held a phone

conference. In a report authored by Hallett, the conversation is summarized as follows:

It is MCI’s position that MCI has verbally given a denial and that [the

Foster Care Review Board] will not hear the case. Placement for [RC] is

determined by MCI. All are in agreement that the child should be moved

following the hearing on 5/11/17. [Emphasis added.]

Following the May 11, 2017 hearing, however, the circuit court entered an order continuing the

stay and ordering the Foster Care Review Board to review the removal plan.

One day later, on May 12, 2017, an MCI consultant, Carita Fox, sent the following e-mail

to Hallett, the case worker from Fostering Futures. The e-mail stated:

Is there any possible way you would be able to complete the adoption

denial request and route to me prior to [the superintendent’s] return so that she

can make a decision prior to the next hearing or shortly after that? [Emphasis

added.]

Hallett responded:

[The Department of Health and Human Services] requested an additional

licensing investigation be opened after the previous motion on 4/27. I certainly

have enough to write my denial now, but wasn’t sure if I should wait for this

second investigation be conpleted [sic].

Let me know which you prefer and I certainly can do either.

-4-

The case services plan report summarized the above contact as follows:

Emailed licensing special evaluation to Ms. Fox per her request. Ms. Fox

also requested that a denial DHS 612 be completed and denial consent be routed

as soon as possible to ensure that a formal denial can be made by MCI prior to the

hearing scheduled for 6/8/17. [Emphasis added.][3]

At the Section 45 hearing, Hallett agreed with Carrier’s lawyer that the documents essentially

provided that after RC was not removed on May 11, 2017, “the very next day there’s

communications back and forth, do the denial, hurry up and do the denial, we need to do a

formal denial before the next court hearing.” Hallett also agreed that once MCI decides where

the child will go, Fostering Futures just follows its “marching orders.” She also added, however,

that no one from the MCI told her to submit a denial and she was, in fact, going to recommend

denial herself.

On May 22, 2017—before the next court hearing on the removal—Hallett sent a

recommendation to deny Carrier consent to adopt. Thereafter, on May 23, 2017, the Foster Care

Review Board issued a report stating that it agreed with the removal decision.4 Relevant to this

appeal, the Foster Care Review Board stated in its finding that “Fostering Futures advised that

they planned to replace [RC] from the care of her paternal aunt, Lucinda Carrier to an identified

pre-adoptive home subsequent to receiving notice from the MCI Superintendent, Mary Rossman,

that she was denying consent for Ms. Carrier to adopt [RC].” The Board also stated that it had

been recently informed by “Carita Fox from the MCI Superintendent’s office . . . that a decision

has been made to deny consent for Lucinda Carrier to adopt [RC], and that decision will be

finalized and communicated to Fostering Futures and Ms. Carrier upon the MCI Superintendent,

Mary Rossman’s return to the office in early June 2017.”

On June 9, 2017, RC was removed from Carrier’s care and placed with a pre-adoptive

foster family. Carrier was allowed four visits with RC, but during each visit the new foster

parents were present. On June 16, 2017, Hallett arranged a Skype visit between RC and Carrier.

It was reported that RC was reluctant to talk at first, but then showed Carrier all the new things in

her foster home and told Carrier that she missed her. Hallett testified that RC was “very upset”

but eventually calmed down. She reported her observations to the superintendent, and the

superintendent recommended that the next visit be observed by someone not familiar with the

case.

3

Hallett testified that redacted copies of the reports were provided to Carrier. She also agreed

that although Carrier was CC’d on some of the e-mails, when it was noticed that she was being

included it was determined that she needed to be taken off the e-mail chain.

4

Hallett testified that at the time of the Foster Board Review hearing, she knew that the

superintendent was denying consent to adopt because that was “what had been stated.”

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The superintendent testified that at that point in time she was aware that there would be a

Section 45 hearing and she “figured there would be some credibility issues and so [she] wanted

to make sure that there was, whoever was observing was objective.” She denied, however, that

she was plotting everything out based on the fact that she had “a Section 45 hanging over me.”

In any event, the second visit occurred on July 10, 2017 at the agency and was an in-person visit.

The caseworker testified that RC “seemed a little nervous at first and was clinging to her foster

mother,” but she eventually warmed up and began playing with Carrier’s boyfriend. She also

stated that when Carrier requested a hug, RC had a “meltdown,” cried, and went to her foster

father for consoling. The worker opined that the agency where the transition originally took

place might trigger RC’s memories of her removal from Carrier. She also noted that RC seemed

secure around her foster parents.

On July 28, 2017, another visit took place, this time at a park. Hallett observed the visit

and she testified that RC warmed up quicker and played with Carrier and Carrier’s boyfriend, but

that she would return to her foster parents. She also stated that RC hesitated to hug Carrier, but

was able to give a group hug when held by her foster mother.

Because of RC’s response in the prior visits, the superintendent opted to personally

observe the final visit, which took place on August 29, 2017 at a library. The superintendent

stated that RC stayed at her foster parents’ side during the visit and clung to them. She stated

that, at the foster parent’s encouragement, RC eventually began to engage Carrier and that she

allowed Carrier to hug her at the end of the visit without showing signs of distress. Overall, the

superintendent testified that RC’s behavior during the visits was alarming given that she had

been in Carrier’s care for most of her life.

On September 7, 2017, the superintendent officially denied Carrier consent to adopt. She

based her decision on a number of factors, including RC’s reaction to the separation and

Carrier’s perceived lack of honesty and credibility based on her response to the investigation and

her failure to previously report changes in daycare. She referenced the fact that Carrier had been

substantiated for neglect and placed on the Central Registry and the fact that her foster-care

license was revoked because of several licensing violations. At the Section 45 hearing, she

testified that the primary reason was her concerns about how RC reacted after the removal.

Carrier appealed the decision to the circuit court under MCL 710.45(2). Following a

lengthy five-day hearing, the court found that the decision to deny consent to adopt was arbitrary

and capricious.

This appeal follows.

II. DENIAL OF CONSENT TO ADOPT

A. STANDARD OF REVIEW

The MCI contends that the trial court misapplied the standard of review when it reversed

the superintendent’s decision to deny consent to adopt. Specifically, the MCI contends that the

trial court erred by ignoring relevant evidence supporting that the superintendent had good

reasons to deny consent when she issued her decision. It also asserts that the trial court

improperly substituted its judgment for the superintendent’s judgment. “Pursuant to MCL

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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). Whether the circuit

court properly applied this standard is a question of law, which this Court reviews for clear legal

error. Id.; see also In re ASF, 311 Mich App 420, 426; 876 NW2d 253 (2015). “When a court

incorrectly chooses, interprets, or applies the law, it commits legal error that the appellate court

is bound to correct.” Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).

Additionally, a trial court’s factual findings are reviewed for clear error, “giving particular

deference to the trial court’s superior position to determine witness credibility.” Miller-Davis Co

v Ahrens Constr, Inc, 495 Mich 161, 172; 848 NW2d 95 (2014). “A factual finding is clearly

erroneous if there is no substantial evidence to sustain it or if, although there is some evidence to

support it, the reviewing court is left with the definite and firm conviction that a mistake has

been committed.” Id. at 172-173.

B. ANALYSIS

Whether the superintendent acted arbitrarily and capriciously is the “initial focus” of a

Section 45 hearing. In re Cotton, 208 Mich App 180, 185; 526 NW2d 601 (1994). When

reviewing the superintendent’s decision, the focus of the circuit court “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.” Id. at 184. The reviewing 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 presence of good reasons to grant it, that

indicates that the representative was acting in an arbitrary and capricious manner.” Id. at 185.

As this Court has explained, “ ‘[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 representative acted

arbitrarily and capriciously in withholding that consent even though another individual . . . might

have decided the matter in favor of the petitioner.’ ” In re ASF, 311 Mich App 420, 436; 876

NW2d 253 (2015), quoting In re Cotton, 208 Mich App at 185 (second alteration in original).

The generally accepted meaning of “arbitrary” is “determined by whim or caprice,” or

“[f]ixed 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.” Goolsby v Detroit, 419 Mich 651, 678; 358 NW2d 856 (1984) (quotation marks

and citations omitted). The generally accepted meaning of “capricious” is “[a]pt to change

suddenly; freakish; whimsical; humorsome.” Id. (quotation marks and citations). Further, under

some circumstances, arbitrariness may be evident in proof that an act was undertaken “ ‘in a

perfunctory fashion’ ” or on the basis of ignorance of facts directly bearing on the matter. Id. at

669, quoting Milstead v International Brotherhood of Teamsters, Local Union No 957, 580 F2d

232, 235 (CA 6, 1978).

Here, the superintendent gave numerous reasons to support her September 7, 2017 denial

of consent for Carrier to adopt RC. At the outset, the trial court found that much of the

information that the superintendent relied upon as a basis for her denial of consent to adopt was

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based on false and misleading information and that she was or should have been aware that the

information was not accurate.5 More importantly, the trial court found:

On April 12, 2017, [the superintendent] issued an email to Jacqueline

Poindexter of the Foster Care Review Board in which she stated she “will be

denying her (Ms. Carrier’s) consent to adopt [RC.]” This unequivocal statement

was made before any complete review of the circumstances was done and before

Ms. Carrier had an opportunity to respond to all the faulty claims that had been

made regarding her. As can be seen in the discussion herein various claims

regarding Ms. Carrier and her actions which were used to establish her as a

careless and irresponsible caregiver who could not be trusted to keep [RC] safe

were flat out wrong.

And yet denial of consent was [the superintendent’s] position, and once

she reached this conclusion her actions appear to be more of an effort to muster

5

On appeal, the MCI argues that the court’s “findings” that the facts the MCI relied upon were

false or misleading amounts to a substitution of the trial court’s judgment for that of the

superintendent. Such a substitution of judgment is improper. Cotton, 208 Mich App at 184.

Yet, the court is nevertheless tasked with determining whether there is a factual basis for the

superintendent’s decision. See id. at 185 (suggesting that a reviewing court can review whether

allegations are frivolous, fanciful, or without “factual support” when determining if the

superintendent’s decision to withhold consent is arbitrary and capricious). See also In re CW,

488 Mich 935, 940-941 (2010 (CORRIGAN, J., concurring) (“In re Cotton did not establish . . .

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.’

”). Thus, if the superintendent’s decision is based on false and misleading information that the

superintendent knew was false or misleading, then, arguably, the decision of the superintendent

was arbitrary and capricious. We need not resolve this matter, however, as the trial court found

that the superintendent made her decision to deny on April 12, 2017, repeated that decision

multiple times, and then, after having made her decision, marshalled evidence in support of it.

On appeal, the MCI dismisses the above findings by contending that the trial court should have

credited the superintendent’s explanation for the April 12, 2017 e-mail. However, the court was

free to weigh the superintendent’s credibility and was not, in fact, required to believe her.

Additionally, the MCI seemingly suggests that the April 12, 2017 e-mail was proper

because it was communicated to the Foster Care Review Board, not Carrier, and because Carrier

was permitted to submit information thereafter. However, neither fact is relevant. MCL

710.45(2) does not immunize an arbitrary and capricious decision simply because it was not

communicated to the individual seeking to adopt or because that individual was invited to submit

information after the decision had already been made.

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support for this decision than to fairly evaluate Ms. Carrier’s request for consent

to adopt. [The superintendent’s] did testify that she assured this court in June that

she hadn’t made a decision but her statement to the Foster Care Review Board

was clear. At the section 45 hearing [the superintendent] attempted to distance

herself from this statement saying it was “premature” but by that time she had

concluded that Ms. Carrier lied about the March 20th incident because the police

report it [sic] said she knew the father was in the home and then she subsequently

denied he was there. . . .

* * *

The evidence is clear about [the superintendent’s] position on April 12,

2017, as can be seen in the full discussion herein. . . .

* * *

[The superintendent] testified that she didn’t deny on April 12, 2017 when

she issued her email stating that she will be denying consent. She stated she

“didn’t intend it to be a final decision.” However, at this point, she had already

approved a removal of [RC] from Ms. Carrier’s home in spite of the fact that Ms.

Carrier was reported to be in 100% compliance with the safety plan and there was

no evidence of any further risk to [RC]. In light of the compliance with the safety

plan by Ms. Carrier, one has to ask why would [the superintendent] have [RC]

removed unless she was denying consent. At one point in her testimony, [the

superintendent] stated that “removal was a foster care decision.” However, she

later indicated that she agreed to the removal, despite the fact that there were no

violations regarding the safety plan.

Inasmuch as there was no risk of harm reported regarding [RC], the only

reason for removal would be that [the superintendent] was going to do exactly

what she said she was going to do in her April 12th email that is that she would

deny consent to Ms. Carrier. [The superintendent] admitted that she had received

an email from Ms. Hallett, the foster care and adoption worker confirming the

compliance with the safety plan, however, she said the staff was “worried about

the child’s safety.” Ms. Hallett, the foster care worker testified that on May 22,

2017, when Fostering Futures issued its recommendation to deny consent, that she

“knew [the superintendent] would deny” the consent for Ms. Carrier. [Emphasis

in original.]

In other words, the trial court found that the superintendent made the decision to deny

consent on April 12, 2017, and that, after that point in time, her actions were taken to support

that decision. For example, the court found that the superintendent opted to use the failure to

report a change in daycare against Carrier despite the fact that the adoption agency had been

aware of irregularities with the daycare prior to March 20, 2017 and had not given Carrier any

indication that she was violating the terms of her foster care license. The court also found it

significant that the superintendent opted to judge Carrier’s bond with RC only after the removal

that she had ordered. The court noted that the superintendent “testified that she knew that when

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she denied Ms. Carrier consent to adopt her decision would be contested in court” and “[h]er

choice to observe Ms. Carrier and [RC] only after she had decided she was going to deny

consent to Ms. Carrier and well after she had ordered [RC] removed appears to be more of an

attempt to justify the hasty decision she made than a straightforward attempt to evaluate the

bond.” Additionally, the court found that RC’s reaction during the post-removal visits was not

the main reason for the denial given that it was stated as a reason for the denial “four months

after [the superintendent] had already stated in writing numerous times that she would deny Ms.

Carrier consent.” The court found that the bonding-reason was not a genuine reason to deny

consent to adopt and was instead “an 11th hour attempt to justify a hasty and arbitrary decision

for removal.”

As further support for its finding that the April 12, 2017 e-mail reflected the

superintendent’s denial decision, the court noted that during the section 45 hearing, “every time

[the superintendent] was confronted by the fact that something she stated in her emails or her

denial to adopt was either wholly untrue or unsupported by the evidence she said that she didn’t

rely on it “too heavily” or she didn’t hold it against Ms. Carrier.” The court added:

In her email [the superintendent] claimed Ms. Carrier was unfazed by the March

incident but she didn’t use it against her. In her denial to adopt she noted that

there were Facebook photos of [RC] with her birth parents whose rights had been

terminated, suggesting that this was inappropriate contact that showed Ms. Carrier

was an irresponsible caregiver. However, when confronted with the fact that

supervised contact had been approved, and she had the reports to prove it, she said

she didn’t rely on the Facebook photos “too heavily.” Yet her denial wholly

ignores the fact that supervised contact had been approved and her denial refers to

contact between [RC] and her father as “prohibited contact.” Then there was the

issue of Ms. Carrier not reporting her full time employment to the Fostering

Futures agency. This was proven to be false based on the pay stubs [Carrier’s

lawyer] provided to [the superintendent]. But unfortunately [the superintendent]

had already committed herself to denial and removal by the time [the lawyer]

even knew this was an issue and had an opportunity to expose it as false. Then

there was the alleged failure to report a change in day care which Ms. Carrier

actually did report though it may have been six or so weeks later.

In her denial to adopt [the superintendent] said Ms. Carrier was on Central

Registry but this was only because she had a “license” which held her to a higher

standard. The Central Registry was being contested by Ms. Carrier and [the

superintendent] admitted even if Ms. Carrier wasn’t successful in her Central

Registry appeal it was not a barrier to adoption.

In addition [the superintendent] said [RC] had to be removed to maintain

her safety, yet when the March 20 incident occurred there was no immediate

removal request. And it was not until after the March 20th incident that for the

very first time there was a safety plan and a direction that [RC] was not to be

around her father. Ms. Hallett, the foster care worker, testified that there was no

immediate risk of harm and no violation of the safety plan put in place after the

incident. [RC] wasn’t removed to maintain her safety, she was removed, and

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traumatized, for one simple reason—[the superintendent] had decided to deny

consent to Ms. Carrier. What possible reason could there be for removal unless

[the superintendent] was committed to the denial of consent for Ms. Carrier to

adopt? [Emphasis in original.]

Again, the trial court found that the decision to deny consent was made on April 12,

2017. The court found that the superintendent then knowingly relied on information she knew

was false or misleading in order to justify her decision to deny consent. It also found that the

superintendent’s reliance on the outcome from the visits between RC and Carrier was not the

true reason for the denial, as the decision had already been made. The court’s finding did not

amount to a substitution of its judgment for that of the superintendent. Rather, the court found

that the superintendent’s stated reasons were, essentially, manufactured in support of her

premature April 12, 2017 decision. The court is permitted to find that the superintendent’s stated

reasons were not genuine reasons. See Miller-Davis Co, 495 Mich at 172.

Based on our review of the record, the court’s findings are amply supported by the

testimony and documentation submitted. The record reflects that the superintendent first stated

that she would deny consent to adopt before April 10, 2017, as Hallett and Carrier both testified

that information was relayed to Carrier at the FTM held that day. At that point in time, a full

investigation had not been conducted and the superintendent admitted such an investigation

would typically take three months. Subsequently, on April 12, 2017, the superintendent

unequivocally stated that she intended to deny Carrier consent to adopt. She made that statement

to the Foster Care Review Board which relied on it and denied Carrier an appeal of the removal

decision. Although the superintendent testified that she had not yet made up her mind at that

point, her future actions belie that statement. Primarily, when Carrier successfully obtained a

stay of the removal in circuit court, the MCI and Fostering Futures had a phone conference

before the follow-up court hearing, during which it was stated that MCI’s “position” was consent

had been “verbally” denied and that the Foster Care Review Board should not hear the case.

When the circuit court continued the stay and ordered the Foster Care Review Board to hear the

case, the MCI e-mailed Fostering Futures with a request that they “complete the adoption denial

request and route to [an MCI consultant] prior to [the superintendent’s] return so that she can

make a decision prior to the next hearing or shortly after that?” Hallett responded that an

additional licensing investigation had been requested, but she would write the denial earlier at

MCI’s request. At the Section 45 hearing, she stated that it was her own decision to deny, but

the trial court was not required to credit that decision, especially in light of the fact that Hallett

repeatedly testified (and stated in writing) that she knew the superintendent’s decision was going

to be to deny consent. Given the above facts, it is unsurprising that the recommendation to deny

was submitted before the Foster Care Review Board actually reviewed the removal decision.

Furthermore, in light of the above, it is equally unsurprising that the Foster Care Review Board

stated in its opinion that the superintendent had made a decision to deny consent to adopt to

Carrier and that the decision would be finalized in June 2017.

We note that the decision was, in fact, not “finalized” until September 2017. However,

the record reflects that the superintendent was aware that her decision would be challenged at a

Section 45 hearing. In fact, she testified that she wanted an independent person to observe one

of the visits so as to have an objective witness to testify. She also personally observed one of the

visits. The court found that her reliance on RC’s reluctance to engage Carrier was not, in fact, a

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genuine reason for the removal decision. Based on the record before this Court, we are not left

with a definite and firm conviction that this was a mistake.

The trial court did not commit clear legal error in its application of the standard of

review. Further, it did not clearly err by finding that the superintendent’s reasons for denying

consent to adopt were arbitrary and capricious.

Affirmed.

/s/ Michael J. Kelly

/s/ Patrick M. Meter

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