In re ASF, Docket No. 324821.

Decision Date14 July 2015
Docket NumberDocket No. 324821.
Citation311 Mich.App. 420,876 N.W.2d 253
Parties In re ASF.
CourtCourt of Appeal of Michigan — District of US

Evelyn K. Calogero for petitioners.

Laura Dunbar Kellett, Grosse Pointe Farms, lawyer-guardian ad litem, and Hugh R. Marshall, Warren for ASF.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Chantal B. Fennessey, Assistant Attorney General, for the Michigan Children's Institute.

Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.


Petitioners Samuel Spann and Janet Spann, the grandparents of the minor child, ASF, sought to adopt ASF after the parental rights of ASF's biological parents were terminated. The superintendent of the Michigan Children's Institute (MCI) withheld consent to adopt. Petitioners challenged the superintendent's decision in circuit court. After conducting a hearing pursuant to MCL 710.45(2)

(§ 45 hearing), the circuit court found that the superintendent's decision was not arbitrary and capricious, and accordingly, the circuit court upheld that decision. The lawyer-guardian ad litem (LGAL) for the minor child appeals the circuit court's decision, and petitioners have filed a cross-appeal also challenging the circuit court's decision. Because the trial court did not clearly err by concluding that petitioners failed to present clear and convincing evidence demonstrating that the superintendent's decision was arbitrary and capricious, we affirm.

In January 2011, ASF and her biological sister, SF,1 were removed from their mother's care for a variety of reasons and they were placed with petitioners, who became licensed foster parents. Samuel is ASF's maternal grandfather and Janet is his wife, but she is not a blood relative of ASF or SF. ASF was nine months old at the time of her placement with petitioners, and SF was 11 years old. Although reunification services were provided, ASF's biological parents made no progress in their treatment plans, and their parental rights were terminated in April 2013.

By all accounts, petitioners took excellent care of SF and ASF for a number of years, and once termination of parental rights occurred, the adoption agency began to plan for petitioners' adoption of ASF. In July 2013, however, Samuel contacted the adoption worker and suggested his son, Damon, and daughter-in-law, Julie, as alternate potential adoptive parents, citing his age and his uncertainty about his own ability to provide long-term care for ASF. Damon, who was in his mid–40s, and his wife, Julie, had a young son who was six months older than ASF.

At a family team meeting held a short time later, Samuel reversed his position and indicated that he now wanted to proceed with the adoption of ASF. But in light of the offer of Damon and Julie as adoptive parents for ASF, and their expression of interest, the agency treated the case as a competing-party adoption. Unfortunately, as a result of this conflict, the relationship between petitioners and Damon and Julie became strained.

After conducting an adoption assessment, the adoption worker, Samantha Slack, recommended that petitioners' request for consent to adopt be denied. A case conference was held, but the adoption agency, Bethany Christian Services (BCS), again recommended that consent to adopt be denied. BCS recommended that consent to adopt be given to Damon and Julie. The BCS recommendation was sent to the MCI superintendent, and he denied petitioners' request for consent to adopt ASF.2 When considering the request for consent to adopt, the superintendent weighed, among many factors, the following: (1) petitioners' ages, particularly the significant age difference between petitioners and ASF, (2) petitioners' minor health issues, (3) Samuel's vacillation regarding the adoption and his recommendation of Damon and Julie as adoptive parents, (4) ASF's sibling relationship with SF, (5) the potential for a companion relationship between ASF and Damon's son, (6) the psychological ties between ASF and petitioners, and (7) the potential for each petitioner to continue his or her relationship with ASF by assuming the role of a grandparent.

After the superintendent denied consent to the adoption, petitioners filed a motion in circuit court challenging the superintendent's decision. See MCL 710.45

. The circuit court conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to testify. The LGAL was permitted to participate in the proceedings by cross-examining witnesses and participating in arguments. After petitioners rested their case, the LGAL was also able to call Slack, the adoption worker, to testify. The MCI moved for involuntary dismissal pursuant to MCR 2.504(B), and the circuit court granted the motion over the LGAL's objection. The court concluded that petitioners failed to demonstrate by clear and convincing evidence that the MCI superintendent's decision to withhold consent to adopt was arbitrary and capricious. From this decision, the LGAL and petitioners now appeal.3

On appeal, the LGAL and petitioners argue that the trial court clearly erred under MCR 2.504(B)(2)

by granting the MCI's motion for involuntary dismissal. Petitioners first contend that the trial court's decision must be reversed because the trial court failed to make specific findings of fact and conclusions of law as required by MCR 2.517(A)(1). See MCR 2.504(B)(2). Petitioners further argue that the superintendent's decision to deny consent was arbitrary and capricious because there were no "good reasons" to withhold consent, the superintendent failed to consider ASF's individual circumstances, and the denial amounted to discrimination against petitioners based solely on their ages. In addition, the LGAL similarly asserts that the superintendent's decision was arbitrary and capricious because he failed to consider, or to adequately consider, ASF's unique circumstances, including, for example, her attachment to petitioners and to SF, as well as the tension between petitioners and Damon. The LGAL also maintains that granting the MCI's motion for involuntary dismissal was premature because the LGAL was not given a full opportunity to present her own evidence regarding the purportedly arbitrary and capricious nature of the superintendent's decision. According to the LGAL, denying her a full opportunity to participate in the proceedings also denied ASF her rights to due process and the equal protection of the law.

This Court reviews de novo questions of law, including the interpretation and application of court rules and statutes. Nat'l Waterworks, Inc. v. Int'l Fidelity & Surety, Ltd., 275 Mich.App. 256, 258, 739 N.W.2d 121 (2007)

. A trial court's decision to dismiss an action under MCR 2.504 is reviewed for clear error. Rodenhiser v. Duenas, 296 Mich.App. 268, 272, 818 N.W.2d 465 (2012). A trial court's finding is clearly erroneous when, although there is evidence to support it, "the reviewing court ... is left with the definite and firm conviction that a mistake has been made." Id. (Quotation marks and citation omitted.) Whether a trial court applied the correct standard to its review of the superintendent's denial of consent to adopt poses a question of law that we review for clear legal error. In re Keast, 278 Mich.App. 415, 423, 750 N.W.2d 643 (2008).

Under MCR 2.504(B)(2)

, involuntary dismissal of a hearing tried without a jury is appropriate when, after the presentation of the plaintiff's evidence, the court determines, based on the facts and the law, that the plaintiff has no right to relief.4

Samuel D. Begola Servs., Inc. v. Wild Bros., 210 Mich.App. 636, 639, 534 N.W.2d 217 (1995). In full, MCR 2.504(B)(2) states:

In an action, claim, or hearing tried without a jury, after the presentation of the plaintiff's evidence, the court, on its own initiative, may dismiss, or the defendant, without waiving the defendant's right to offer evidence if the motion is not granted, may move for dismissal on the ground that, on the facts and the law, the plaintiff has no right to relief. The court may then determine the facts and render judgment against the plaintiff, or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in MCR 2.517


Under this rule, "a motion for involuntary dismissal calls upon the trial judge to exercise his function as trier of fact, weigh the evidence, pass upon the credibility of witnesses and select between conflicting inferences." Marderosian v. Stroh Brewery Co., 123 Mich.App. 719, 724, 333 N.W.2d 341 (1983)

. The plaintiff is not entitled to the most favorable interpretation of the evidence. Id.

In the instant action, petitioners sought relief under MCL 710.45

, which allows a petitioner to challenge the superintendent's withholding of consent to an adoption. Accordingly, the MCI's motion for involuntary dismissal under MCR 2.504(B)(2) was properly granted if, during their presentation of evidence, petitioners failed to demonstrate their entitlement to relief under MCL 710.45

. In relevant part, MCL 710.45 provides:

(1) A court shall not allow the filing of a petition to adopt a child if the consent of a representative or court is required by section 43(1)(b), (c), or (d) of this chapter unless the petition is accompanied by the required consent or a motion as provided in subsection (2).
(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

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