Cotton, In re, Docket No. 165813

• Decision Date: 27 December 1994
• Docket Number: Docket No. 165813
• Citation: 208 Mich.App. 180,526 N.W.2d 601
• Parties: In re Samantha Ann Cotton, a minor. Robert William FRANKS, Sr., and Patricia Anne Franks, Petitioners-Appellants, v. MICHIGAN CHILDREN'S INSTITUTE, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 601

526 N.W.2d 601

208 Mich.App. 180

In re Samantha Ann Cotton, a minor.

Robert William FRANKS, Sr., and Patricia Anne Franks, Petitioners-Appellants, v. MICHIGAN CHILDREN'S INSTITUTE, Respondent-Appellee.

Docket No. 165813.

Court of Appeals of Michigan.

Submitted July 7, 1994, at Detroit.

Decided October 12, 1994.

Approved for Publication

Dec. 27, 1994, at 9:00 a.m.

Released for Publication Feb. 21, 1995.

John P. Brady, Livonia, for petitioners.

Neil A. McQuarrie, Bingham Farms, Guardian Ad Litem for Samantha A. Cotton.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Richard T. O'Neill, Asst. Atty. Gen., for respondent.

Before SAWYER, P.J., and WEAVER and TURNER, ^* JJ.

PER CURIAM.

Petitioners appeal from an order of the probate court denying their motion to compel consent to the adoption of Samantha A. Cotton, a minor child. We affirm.

The child was removed from her natural parents shortly after birth and placed in foster care with petitioners. She remained with petitioners for approximately fifteen months, and petitioners did express an interest in adopting the child during that time. However, the child was not yet then available for adoption, because parental rights had not yet been terminated. While the child remained in foster care with petitioners, protective services received complaints regarding petitioners' alleged neglect or abuse of one or more of their other minor children. ¹ Protective services and foster care licensing authorities conducted separate but concurrent investigations into the complaints. Protective services terminated their investigation as being unsubstantiated. The licensing authorities concluded that petitioners were out of compliance with several rules, requested medical and psychiatric evaluations, and required that petitioners attend classes in child discipline.

Petitioners declined to cooperate and were notified of the department's intent to revoke petitioners' foster care license. Petitioners requested an administrative hearing, but later withdrew that request, allowing their foster care license to lapse. As a result, the minor child and one other foster child then in petitioners' household were removed from petitioners' home. Petitioners, nevertheless, pursued their desire to adopt the child. Home studies were conducted, and the adoption specialist who conducted them recommended against granting consent to petitioners to adopt the child. The specialist testified that he recommended withholding consent because of Mrs. Franks' mood swings, Mr. Franks' heart attack, petitioners' failure to comply with requests of licensing authorities, and alleged verbal abuse of the other children. The superintendent of the Michigan Children's Institute, Susan Leahy, denied consent for the adoption. Petitioners then brought the current action in probate court to compel the granting of consent.

Petitioners first argue that the trial court failed to set forth sufficient findings of fact and conclusions of law in its opinion as required by MCR 2.517. We disagree. First, the court technically was not required to make findings of fact and conclusions of law under the court rule, because that obligation does not apply to decisions on motions. MCR 2.517(A)(4). In any event, a trial court's findings are sufficient under MCR 2.517(A) if it appears that the trial court was aware of the factual issues and has applied the law correctly. People v. Vaughn, 186 Mich.App. 376, 384, 465 N.W.2d 365 (1990). To the extent that the court rule does apply to this case, we are satisfied that the trial court's findings complied with the rule.

Petitioners next complain that the probate court improperly limited the scope of the evidentiary hearing to evidence related to the decision of the superintendent of the Michigan Children's Institute. We disagree. First, petitioners fail to identify any specific evidence that the trial court excluded that they believe should have been admitted. In any event, petitioners appear to argue the more general question whether the focus of the hearing should have been the reason why consent to the adoption was withheld rather than opening the hearing to any evidence that might be relevant to the question why the consent should have been granted.

Judicial review of the withholding of consent to an adoption is governed by M.C.L. § 710.45; M.S.A. § 27.3178(555.45). Under subsection 1, a person who has filed a petition to adopt may move in the court for a determination whether the withholding of consent to adopt is arbitrary and capricious. Under subsection 2, the court may terminate the rights of the representative who must give consent and enter a final order of adoption if the court finds by clear and convincing evidence that the consent was withheld arbitrarily and capriciously. Petitioners suggest that the intent of the Legislature in drafting the statute was not to narrow the review to the question why consent was withheld, but to "empower the Court to review the collective conscious [sic--consciousness?] of [the Department of Social Services] in order to make the appropriate determination under Section 45." We disagree.

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...