In Re Cw
| Decision Date | 19 November 2010 |
| Docket Number | Docket No. 140841.,COA No. 292866. |
| Citation | 790 N.W.2d 383 |
| Parties | In re CW, BW, and DW, Minors. CW, BW, and DW, Appellees, and Valeriu Martin and Karen Martin, Petitioners-Appellants, v. Department of Human Services, Respondent-Appellee. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Prior report: 2010 WL 537741.
On October 7, 2010, the Court heard oral argument on the application for leave to appeal the February 16, 2010 judgment of the Court of Appeals. On order of the Court, the application is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, for the reasons stated in the Court of Appeals dissenting opinion, we VACATE the June 8, 2009 order of the Genesee Circuit Court, Family Division, and we REMAND this case to the circuit court for further proceedings. On remand, the circuit court shall allow the petitioners to present relevant evidence in support of their claim that the Michigan Children's Institute Superintendent's decision to withhold consent to adopt the minor children was arbitrary and capricious. MCL 710.45(2). After admitting and considering this evidence, the circuit court shall determine whether the petitioners have established by clear and convincing evidence that the Superintendent's decision was arbitrary and capricious. MCL 710.45(7). The circuit court shall expedite consideration of this matter, and shall issue an opinion to be filed with the Clerk of this Court within 56 days of the date of this order.
We retain jurisdiction.
The petitioners in this adoption case, Valeriu and Karen Martin, voluntarily raised the three subject children-two of them from birth-until the children were removed from the Martins' home for reasons that a Department of Human Services (DHS) hearing officer later found baseless. The Michigan Children's Institute (MCI) Superintendent subsequently granted consent for a foster family, the Rabers, to adopt the children in part because the children had bonded with the Rabers after they were wrongfully removed from the Martins' home. In making this decision, the Superintendent merely exchanged an email with the children's Lawyer Guardian Ad Litem (LGAL), who had requested a meeting with him to explain why she believed the children's best interests would be served by adoption by the Martins. Moreover, at least one of the Superintendent's reasons for denying the Martins' request for consent to adopt was inaccurate; and some reasons weighing against his decision in favor of the Rabers' request were not investigated. As Judge SHAPIRO correctly recognized in his opinion dissenting from the Court of Appeals majority decision, in reviewing the Superintendent's decision under MCL 710.45, the trial court incorrectly concluded that it was essentially powerless to consider the accuracy of information relied on by the Superintendent or the nature of facts he failed to consider. On the basis of this erroneous conclusion, the trial court improperly declined to hear the Martins' proffered testimony in their favor from social workers and others familiar with the children.
The Martins raised the three subject brothers, CW (DOB 11/16/01), BW (DOB 3/2/2004) and DW (DOB 11/11/2005), along with their older sister, AW (DOB 4/9/93), because the children's mother, a drug and alcohol user, could not care for them. After the parental rights of the children's parents were terminated, the Martins began the process to adopt them.
But on April 23, 2007, before completion of the adoption, Child Protective Services (CPS) received a complaint alleging that Karen Worden, a developmentally disabled adult who lived with the Martins, had been outside the home “screaming” at and spanking DW, who apparently was trying to crawl out of his stroller near the street. At a May 24, 2007 meeting in which the Martins participated, DHS staff stated that the complaint would not be substantiated. The Martins were thus authorized to complete the adoption process. Nonetheless, shortly after, at a June 13, 2007 internal meeting, Ingham County DHS Director Susan Hall ordered all four children removed from the Martins' home. The children were placed in foster care with the Rabers. AW, who is now 17 and whose adoption is not at issue, consistently ran away from the Rabers and back to the Martins. She was placed back with the Martins.
Worden moved out of petitioners' house on June 21, 2007. The Martins appealed the removal of the children to the Foster Care Review Board (FCRB), but the FCRB dismissed the appeal because the DHS had placed the Martins on the Child Abuse and Neglect Central Registry as a result of the incident involving Worden. The Registry listing precluded the children from being returned to the Martins and also rendered them ineligible to adopt.
The Martins immediately requested a DHS hearing to contest the Registry listing. Their repeated requests apparently went unheeded for at least a month. Finally, DHS administrative proceedings commenced before a hearing officer, culminating in a final hearing that took place on September 29, 2008, over one year after the children had been removed from the Martins' home. In a November 5, 2008 decision, the hearing officer expunged the Martins' names from the Registry after ruling that the DHS had not proved that they or Worden had abused or neglected any of the children. The hearing officer observed that the sole basis for the Registry listing was the Martins' alleged failure to protect the children from Worden, yet DW had not been injured during the April 2007 incident and, although there were prior CPS complaints against Worden, none had ever been substantiated. The hearing officer further stressed that, after the CPS complaint was brought to the Martins' attention, they agreed to refrain from permitting Worden to supervise the children and “no evidence was presented to show that the Martins had failed to follow through on the agreement.” The hearing officer added that “everyone who was involved with the family noted the bonding that the Martins had with the children, and none of the mandated reporters [including doctors and therapists] expressed any concern about the care the children were receiving.”
In light of the hearing officer's favorable ruling, the children's LGAL requested placement of the boys back with petitioners for purposes of adoption. But the boys remained with the Rabers and the MCI Superintendent had already granted consent for the Rabers to adopt them. The Superintendent then rescinded his decision in favor of the Rabers in order to allow both families to seek adoption. But, after an investigation of the Martins, he denied the Martins' request and again granted the Rabers' request.
In a 2 1/2-page decision, the Superintendent concluded that, although removal of the children from the Martins might have been in error, it was not in the children's best interests to be removed from the Rabers' home where they had lived and formed stable connections since June 2007. He cited factors including that the Rabers were able to meet the children's special needs whereas the Martins' “ability to meet the developmental needs of these children was inadequate.” He also opined that the Martins “failed to recognize the risk to the children of being cared for by Ms. Worden” and had regularly allowed Worden to watch the children-while being untruthful to DHS workers about it-although the DHS had instructed them not to do so. Further, the Martins failed to fully cooperate with the DHS; they were often hostile and failed to provide information necessary to move forward with the adoption. Finally, because the children had been placed with the Martins as fictive kin, the Martins were never licensed as a foster home and further delay for licensing was contrary to the children's need for permanency.
Petitioners moved for court review of the Superintendent's decision under MCL 710.45, arguing that his decision was based on inaccurate and incomplete information and alleging that he had blindly deferred to the recommendations of local DHS officials. The Superintendent testified that he had reviewed records and had spoken to certain DHS staff, including the workers assigned to oversee the children while placed with the Rabers, and the supervisor who had opposed expungement of the Martins' names from the Registry before the hearing officer. He also spoke to the children's former LGAL. He had found it unnecessary to speak with the Martins or with AW, with whom the boys were bonded, in making his decision. He also had not spoken to doctors or therapists-nor had he reviewed medical records-from the time when the Martins cared for the children. It appears that, although he did not speak to the current LGAL or permit her to attend DHS meetings, he received her recommendation in favor of petitioners.
The Martins made an offer of proof outlining additional testimony that the Superintendent ignored significant evidence in their favor as well as evidence refuting his positive findings about the Rabers. For example, AW would testify that the Rabers both worked full time and “provided minimal care to the younger children,” that her brothers appeared to deteriorate physically and mentally after placement with the Rabers, and that the Rabers were antagonistic toward AW having contact with her brothers. The Martins also offered the testimony of a DHS foster care worker who would address “the ongoing educational, behavioral, and sociological issues experienced by the [children] since being removed from the Martin home.” A DHS caseworker assigned to the children when they lived with the Martins would further testify that the Superintendent's facts and conclusions concerning the Martins' care of the children were “flat-out wrong, incorrect, and baseless.” She would opine that the Martins “did a fine job of meeting the special needs of the ... children and...
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