michigan application for leave to appeal from court of appeals on denying relative adoption

8/9/2019 Michigan Application for Leave to Appeal from Court of Appeals on Denying Relative Adoption

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STATE OF MICHIGAN

IN THE MICHIGAN SUPREME COURT

In re COH, ERH, JRG, and KBH Minors. Docket No:

COA No: 312691

Circuit Court File Nos.

11-7780-AF, 11-7781-AF, 11-7782-AF,11-7783-AFMuskegon Circuit Court,Family Division

Lori Scribner,Adoption Petitioner/Appellant,

v

William Johnson, Superintendent,Michigan Children’s Institute;

Michigan Children’s Institute; and

Michigan Department of Human Services,

Respondents/Appellees. ____________________________________________________________________________/

Evelyn K. Calogero (P45512) H. Daniel Beaton, Jr. (P43336)Attorney for Adoption Petitioner/ Michigan Dept. of Attorney General Appellant, Lori Scribner Attorneys for Respondents/AppelleesEvelyn K. Calogero, PLLC Department of Human215 N. Main St. Services, Michigan Children’s Institute,Olivet, MI 49076 Michigan Children’s Institute(269) 749-9600 Superintendent, William JohnsonEmail: [email protected] 525 W. Ottawa St.

P.O. Box 30758Lansing, MI 48909(517) 373-7700Email: [email protected]

Fred Johnson (P36283)

Muskegon County Public DefenderLGAL for COH, ERH, JRG, and KBH165 E. Apple Ave., Suite 301Muskegon, MI 49442(231) 724-6144

[email protected]

Adoption Petitioner Lori Scribner’s Application for Leave to Appeal


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QUESTIONS PRESENTED FOR REVIEW

I. Should this Court grant leave to appeal because bench and bar need this Court’sexplanation and application of “arbitrary and capricious” when the Michigan Children’sInstitute withholds its consent to adopt a state ward?

Adoption Petitioner/Appellant says, “Yes.”Respondent/Appellee will say, “No.”The Court of Appeals and the Family Court did not address the questions.

II. Is the MCI Superintendent’s decision to withhold consent to adopt arbitrary andcapricious when the process it follows to reach it violates statutes, DHS policies, or theMichigan Constitution?

Adoption Petitioner/Appellant says, “Yes.”Respondent/Appellee will say, “No.”

The Court of Appeals and the Family Court did not address the questions.

III. Is a decision that results from a comparison of the foster parents to the relative arbitraryand capricious because unless the relative has been allowed to maintain contact with thechildren, the relatives will always fall short in the comparison?


IV. Does a process that violates the Michigan Constitution’s Fair and Just Treatment clauseresult in an arbitrary and capricious decision to withhold consent?


V. Does preparing to prove by clear and convincing evidence that the Superintendent actedarbitrarily and capriciously in withholding consent to adopt require the AdoptionPetitioner to have copies, either paper or digital, of all of the information the MCISuperintendent had access to, including the family court’s entire file in the abuse orneglect case, the MCI Superintendent’s entire file, and the agencies’ files, including allcorrespondence to or among anyone regarding the children, all social work contact notes,all therapy notes, and all reports regarding the children and the families who wanted toadopt them?



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TABLE OF CONTENTS

JUDGMENT OR ORDER APPEALED FROM AND RELIEF SOUGHT ........................... I

QUESTIONS PRESENTED FOR REVIEW ......................................................................... II

TABLE OF CONTENTS ....................................................................................................... III

INDEX OF AUTHORITIES .................................................................................................... V

STATEMENT OF THE FACTS AND PROCEEDINGS ....................................................... V

I. INTRODUCTION ..........................................................................................................1

II. STATEMENT OF PROCEEDINGS .............................................................................4

III. STATEMENT OF THE FACTS ....................................................................................6

A. “Grandma Lori” Scribner’s fight to ensure that her grandchildren would stay

connected to their siblings, their extended family, and their network of significant adults. ...6

ARGUMENT ........................................................................................................................... 12

I. THIS COURT SHOULD GRANT LEAVE TO APPEAL BECAUSE BENCH AND

BAR NEED THIS COURT’S EXPLANATION AND APPLICATION OF “ARBITRARY

AND CAPRICIOUS” WHEN THE MICHIGAN CHILDREN’S INSTITUTE

WITHHOLDS ITS CONSENT TO ADOPT A STATE WARD. .......................................... 12

II. THE MCI SUPERINTENDENT’S DECISION TO WITHHOLD CONSENT TO

ADOPT IS ARBITRARY AND CAPRICIOUS WHEN THE PROCESS IT FOLLOWS TOREACH IT VIOLATES STATUTES, DHS POLICIES, OR THE MICHIGAN

CONSTITUTION. ................................................................................................................... 16

A. The court’s focus should be on the process followed to make the decision. ............... 16

B. A process that violates the relative preference statute, MCL 722.954a(5), which

applies to any supervising agency, including the DHS, the MCI and child placing agencies,

is arbitrary and capricious. ................................................................................................... 18

C. A decision process that relies on inaccurate or incomplete information and therefore

states reasons that are “invalid in light of the evidence,” is arbitrary and capricious. ......... 23

D. If the MCI uncritically relies on the agencies’ reports the superintendent acts

arbitrarily and capriciously when he decides to withhold consent to adopt a state ward. ..... 28 E. A decision that relies on reports from a child placing agency that has a pecuniary

interest in the outcome of the MCI’s decision violates the United States’ and Michigan’s

Constitutions’ guarantee of due process and is arbitrary and capricious. ............................ 29

III. A DECISION THAT RESULTS FROM A COMPARISON OF THE FOSTER

PARENTS TO THE RELATIVE IS ARBITRARY AND CAPRICIOUS BECAUSE


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UNLESS THE RELATIVE HAS BEEN ALLOWED TO MAINTAIN CONTACT WITH

THE CHILDREN, THE RELATIVES WILL ALWAYS FALL SHORT IN THE

COMPARISON. ...................................................................................................................... 33

IV. A PROCESS THAT VIOLATES THE MICHIGAN CONSTITUTION’S FAIR AND

JUST TREATMENT CLAUSE RESULTS IN AN ARBITRARY AND CAPRICIOUSDECISION TO WITHHOLD CONSENT. ............................................................................ 35

V. PREPARING TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT

THE SUPERINTENDENT ACTED ARBITRARILY AND CAPRICIOUSLY IN

WITHHOLDING CONSENT TO ADOPT REQUIRES THE ADOPTION PETITIONER

TO HAVE COPIES, EITHER PAPER OR DIGITAL, OF ALL OF THE INFORMATION

THE MCI SUPERINTENDENT HAD ACCESS TO, INCLUDING THE FAMILY

COURT’S ENTIRE FILE IN THE ABUSE OR NEGLECT CASE, THE MCI

SUPERINTENDENT’S ENTIRE FILE, AND THE AGENCIES’ FILES, INCLUDING

ALL CORRESPONDENCE TO OR AMONG ANYONE REGARDING THE

CHILDREN, ALL SOCIAL WORK CONTACT NOTES, ALL THERAPY NOTES, AND

ALL REPORTS REGARDING THE CHILDREN AND THE FAMILIES WHO

WANTED TO ADOPT THEM............................................................................................... 39

A. Standard of Review ................................................................................................ .... 39

B. The trial court abused its discretion and committed legal error when it denied the

discovery requests because the court did not correctly state what facts it had to know before

it could determine if the Superintendent’s decision was arbitrary and capricious. .............. 39

C. The error in limiting discovery was not harmless because the court apparently took

judicial notice of material in its own files to find that “an abundance of good reasons”

supported the Superintendent’s decision and thus it was not arbitrary and capricious. ....... 41

CONCLUSION ....................................................................................................................... 43

REQUEST FOR RELIEF ....................................................................................................... 44


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INDEX OF AUTHORITIES

Cases

Attorney General ex rel Rich v Jochim,

99 Mich 358; 58 NW 611 (1894) ........................................................................................... 41

Automotive Service Councils of Michigan v Secretary of State, 82 Mich App 574; 267 NW2d

698 (1978) ............................................................................................................................. 41

CAM Const v Lake Edgewood Condominium Ass'n, 465 Mich 549; 640 NW2d 256 (2002). .... 50

Carmacks Collision, Inc v City of Detroit,

262 Mich App 207; 684 NW2d 910 (2004) ........................................................................... 47

City of Livonia v Department of Social Services, 423 Mich 466; 378 NW2d 402 (1985)..... 41, 42

Crampton v Dep't of State,

395 Mich 347; 235 NW2d 352 (1975) ............................................................................. 41, 42

Dept of Community Health v Rahe, unpublished opinion per curiam of the Court of Appeals,

issued February 12, 2009 (Docket No. 280763) ..................................................................... 47

Fletcher v Fletcher,

447 Mich 871; 526 NW2d 889 (1994) ............................................................................. 23, 24

Goolsby v Detroit,

419 Mich 651; 358 NW2d 856 (1984) ............................................................................ passim

Hinky Dinky Supermarket, Inc v. Dep't of Community Health, 261 Mich App 604; 683 NW2d

759 (2004) ............................................................................................................................. 40

In re B & J, ............................................................................................................................... 46

In re B and J,

279 Mich App 12; 756 NW2d 234 (2008) ............................................................................. 45


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In re COH, ERH, JRG, and KBH Minors

(On Remand), unpublished opinion per curiam of the Court of Appeals, issued December 4,

2014 (Docket No. 312691) .......................................................................................... 1, 13, 17

In re Keast,

278 Mich App 415; 750 NW2d 643 (2008)............................................................... 23, 25, 39

In re Murchison,

349 US 133; 75 SCt 623; 99 LEd. 942 (1955)........................................................................ 41

In re Pott,

234 Mich App 369; 593 NW2d 685 (1999) ..................................................................... 50, 52

In re Rood,

483 Mich 73; 763 NW2d 587 (2009) ..................................................................................... 26

In re Valerie D,

223 Conn 492; 613 A2d 748 (1992) ...................................................................................... 45

Jo-Dan, Ltd v Detroit Bd of Educ,

unpublished opinion per curiam of the Court of Appeals, issued July 14, 2000 (Docket No.

201406), .......................................................................................................................... 48, 49

Messenger v Dep't of Consumer & Industry Servs, 238 Mich App 524; 606 NW2d 38 (1999)... 47

Milstead v Int’l Bhd of Teamsters, Local Union No. 957,

580 F2d 232 (CA 6, 1978) ..................................................................................................... 26

Moore v Detroit Entertainment, LLC,

279 Mich App 195; 755 N.W.2d 686 (2008).......................................................................... 47

Morris v Metriyakool,

418 Mich 423; 344 NW2d 736 (1984) ................................................................................... 41


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Palo Group Foster Care, Inc v DSS,

228 Mich App 140; 577 NW2d 200 (1998) ........................................................................... 41

People v Phillips,

468 Mich 583; 663 NW2d 463 (2003) ................................................................................... 50

People v Stanaway,

446 Mich 643; 521 NW2d 557 (1994) ................................................................................... 50

Saffian v Simmons,

477 Mich 8; 727 NW2d 132 (2007) ....................................................................................... 50

Schlossberg v State Bar Grievance Bd,

388 Mich 389; 200 NW2d 219 (1972) ................................................................................... 42

Straus v Governor,

230 Mich App 222; 583 NW2d 520 (1998), aff'd 459 Mich 526 (1999) ................................. 47

Tedford v Peabody Coal Co,

533 F2d 952 (CA 5, 1976) ..................................................................................................... 25

US v Carmack,

329 US 230; 67 SCt 252; 91 LEd 209 (1946)......................................................................... 25

Valerie D .................................................................................................................................. 46

State Cases

In re CNS/JLM,

unpublished opinion per curiam of the Court of Appeals, issued September 21, 2010 ( Docket

No. 297298) ................................................................................................ .......................... 39


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In re COH,

495 Mich 870 (2013) ............................................................................................................. 16

In re COH, 495 Mich 184, 188; 848 NW2d 107 (2014). ...................................................... 16, 30

In re COH, ERH, JRG, KBH, Minors,

unpublished opinion of the Michigan Court of Appeals, issued June 25, 2013, (Docket Nos.

309161, 312691) ................................................................................................................... 16

In re COH, ERH, JRG, and KBH Minors (On Remand), unpublished order of the Court of

Appeals, issued January 29, 2015 (Docket No. 312691) ..........................................................1

In re Complaint of Consumers Energy Co.,

255 Mich App 496, 503–504, n4; 660 NW2d 785 (2003) ..................................................... 31

In re Cotton,

208 Mich App 180; 526 NW2d 601 (1994) ............................................................... 25, 29, 34

In re Couturier,

unpublished opinion per curiam of the Court of Appeals, issued October 21, 2003 (Docket No.

245206) ................................................................................................................................. 39

In re CW, BW, & DW,

unpublished opinion per curiam of the Court of Appeals, issued February 16, 2010 (Docket

No. 292866) at 3 (Shapiro, J dissenting) .......................................................................... 26, 34

In re CW, BW, and DW,

488 Mich 935; 790 NW2d 383 (2010) ............................................................................. 26, 40

In re Fightmaster,

unpublished opinion per curiam of the Court of Appeals, issued October 3, 1997 at 4 (Docket

No. 200437) ................................................................................................ .......................... 39


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Federal Statutes

42 U.S.C. 671(a)(19)(2010) ................................................................................................. 30, 31

Statutes

MCL 400.202 ............................................................................................................................ 24

MCL 400.209 ...................................................................................................................... 24, 27

MCL 400.226 ............................................................................................................................ 24

MCL 710.21, et. seq. ................................................................................................................. 44

MCL 710.22 .............................................................................................................................. 31

MCL 710.22(g) ......................................................................................................................... 44

MCL 710.28 .............................................................................................................................. 21

MCL 710.29 .............................................................................................................................. 21

MCL 710.43 ........................................................................................................................ 24, 28

MCL 710.45 ....................................................................................................................... passim

MCL 722.23 .............................................................................................................................. 44

MCL 722.952(l) ........................................................................................................................ 31

MCL 722.954a ................................................................................................................... passim

Constitutions

Const 1963, art 1, § 17 ........................................................................................................ 40, 47

US Const, Am V ....................................................................................................................... 40

US Const, Am XIV ................................................................................................................... 40

State Regulations

Mich Admin Code, R 400.12101(s) ........................................................................................... 31

R 400.12207 .............................................................................................................................. 31


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Other Authorities

Bryan A . Garner, The Redbook A Manual on Legal Style (3d ed) ............................................ 33

Children’s Foster Care Manual (FOM),

FOM 722-03, Placement Selection and Standards............................................................ 13, 31

Children’s Foster Care Manual, FOM 722-3, Placement Selection and Standards,

http://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-

03.pdf#pagemode=bookmarks (last accessed March 8, 2015). ............................................... 33

Hon. Leonard Edwards, Examining the Benefits and Challenges of Placing Children with

Relatives,

http://www.casaforchildren.org/site/c.mtJSJ7MPIsE/b.7792495/k.8FF1/JP_1_Edwards.htm#_f

tn1 (accessed March 8, 2015). ............................................................................................... 30

1 Official Record, Constitutional Convention 1961 ............................................................. 48, 49

Adopt US Kids.org, Michigan Foster Care and Adoption Guidelines, available at

http://www.adoptuskids.org/for-professionals/state-adoption-and-foster-care-

information/michigan, (last visited Dec. 12, 2012)................................................................. 42

Black's Law Dictionary (9th ed. 2009) ...................................................................................... 26

Department of Human Services, Adoption Services Manual, ADM-100, available at

http://www.mfia.state.mi.us/olmweb/ex/adm/100.pdf, last visited November 28, 2012 .......... 12

Funk & Wagnalls New Standard Dictionary of the English Language (1944) ...................... 25, 26

Public Acts

1939 PA 288 ............................................................................................................................. 28

1981 PA 72 ............................................................................................................................... 28


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1994 PA 239 ............................................................................................................................. 29

1994 PA 470 ............................................................................................................................. 24

Pleadings

Motion for Consent, Termination of Jurisdiction of MCI,

and to Grant Petition to Adopt, dated October 17, 2011 ......................................................... 16


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STATEMENT OF THE FACTS AND PROCEEDINGS

I. Introduction

This Application for Leave to Appeal presents this court with the opportunity to address

an issue that involves legal principles of major significance to the state's jurisprudence – does the

phrase “arbitrary and capricious” in MCL 710.45 refer to the process the Michigan Children’s

Institute uses to reach a decision to withhold consent from a person wishing to adopt a state

ward, or does it refer to the substance of the decision itself – the reasons for the decision to

withhold consent to adopt?

Despite Michigan’s Adoption Program Philosphy that states, . “In Michigan, we believe .

. . [c]onnections with siblings, extended family and a network of significant adults is crucial to a

child’s well-being.” Department of Human Services, Adoption Services Manual , ADM-100 at 1

http://www.mfia.state.mi.us/OLMWEB/EX/AD/Public/ADM/0100.pdf#pagemode=bookmarks,

Michigan’s state wards, its “legal orphans,” are not receiving the thoughtful consideration they

deserve when the State and its private contractors make decisions about with whom they will live

and which extended family or significant adult connections the State and its agencies will allow

them to maintain.

If arbitrary and capricious refers to the decision-making process, then the state’s children

will receive that thoughtful consideration. If arbitrary and capricious refers to the substance of

the decision, then one good reason, the ubiquitous bonds children have formed with foster

families, will allow the MCI’s decision-making process to escape judicial scrutiny.

This Application for Leave to Appeal also allows this Court to rectify the material

injustice that has been visited on these children and their Granma Lori when the agencies


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charged with maintaining children’s wellbeing instead kept these children from their

grandmother and other extended family members.

The Hon. Jane Markey of the Michigan Court of Appeals described this case best:

We are here today with this resolution because of a confluence of many actionsand decisions by many people at many levels: from DHS through the judiciary. I do not believe many have acted in the best interests of these children and am firmly convincedwe have trampled one of life’s most important relationships: that of grandparents andgrandchildren.

The rationale for this decision and that in the earlier placement case is readilydistilled: Leave the children where the system first hastily placed and left them thelongest, then justify it all by simply completing the illogical circle by righteouslydeclaring that they’re best off where they’ve now been the longest! This contrived,

bootstrapping “analysis” by the Supreme Court, which reversed this panel’s originaldecision and which now essentially compels the instant decision of this Court to justifythe resolution of these cases, is at best embarrassing, and at worst a sad, shamefulexample of a process and a system that failed this family. [ In re COH , unpublishedopinion per curiam of the Court of Appeals, issued December 4, 2014 (Docket No.312691] (Markey, J dissenting).]

Judge Markey accurately described what happens to many state wards when “arbitrary

and capricious” refers to the reason for the decision to withhold consent to adopt a state ward.

What happens, then, is an E Pluribus Unum (Out of Many, One) approach to granting or

withholding consent to adopt a state ward: The first placement is the only time the supervising

agency must place children entrusted to its custody with a “fit and appropriate relative . . . as an

alternative to foster care.” MCL 722.954a(2). And if the state or a private agency doesn’t find a

relative within the first 90 days after a child has been removed from home, in addition to losing

her parents, the child loses all connections to extended family.

This E Pluribus Unum approach does not consider that supervising agencies make many

placement decisions for any one child. And while DHS policy would have this first placement

be the child’s only placement, that doesn’t always happen. See Children’s Foster Care Manual

(FOM), FOM 722-03, Placement Selection and Standards, at 1


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http://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-03.pdf#pagemode=bookmarks

(last accessed March 8, 2015). As a result, this Court concluded that out of many placements,

only the first one must be with a relative.

But the reality of more than one placement for a foster child compels an E Unum

Pluribus approach – for [out of] one child can come many placements. And for each of those

placements, the Legislature mandated that “when determining placement” for a child, a child’s

relative receives “special consideration and preference.” MCL 722.954a(5).

Seven years have passed since these four children were taken into the State’s custody.

During these seven years, the agencies involved not only trampled on Ms. Scribner’s relationship

with her grandchildren, but, despite proof to the contrary, the State, through its public employees

and private agencies, decided that she had had no relationship with them to begin with.

So they trampled and continued trampling: Once the private agencies placed the children

in their current foster home, they would not tell Ms. Scribner where they were, limited her

contact with them, and eventually allowed the foster father to get a personal protection order

issued against Ms. Scribner so that she could not try to see her grandchildren at the foster home.

They ignored legislative mandates to give special consideration and preference to her request to

first be their foster parent, then be their guardian, and finally to adopt them.

If “arbitrary and capricious” refers to the process the agencies followed, the paths they

used to reach the decision to withhold consent to adopt from a relative or other person, then this

injustice can be rectified.

This Court should grant leave to appeal and on appeal should hold that the MCI’s

withholding of consent from Ms. Scribner is arbitrary and capricious first because arbitrary and

capricious refers to the process by which the MCI decided to withhold consent. That process


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ignored legislative mandates, knowingly used inaccurate and incomplete information to reach its

decision, an ultimately violated Ms. Scribner’s right to Fair and Just Treatment. And, even if

arbitrary and capricious is substance-based, the MCI stated no good reason for withholding

consent. None of the reasons given are good reasons because:

1. No child placing agency (including the MCI) gave special consideration or preferenceto Ms. Scribner each time an agency decided placement and replacement for her fourgrandchildren.

2. The child placing agency was not an unbiased, disinterested decision maker becauseit had a financial stake in the outcome of the decision it made; as a result, theagency’s assessment of Ms. Scribner was incomplete and inaccurate.

3. The MCI’s finding that the children’s best interests were served by withholding

consent to adopt from their grandmother was based on the agencies’ refusals to allowher to continue a relationship with them.

4. The agencies compared Ms. Scribner’s relationship with her grandchildren to thefoster parent’s relationship to the children when the agencies should have used theAdoption Code’s best interest factors that evaluate an adoption petitioner withoutcomparison to another.

Granting Ms. Scribner’s Application for Leave to Appeal will allow this Court to educate

bench and bar about how to determine if withholding consent to adopt is arbitrary and capricious,

and revisit its decision regarding placement preferences to relatives in light of the amendment to

MCL 722.954a, which added subsection 5. On appeal, this Court should reverse the lower

courts’ decisions and order that the Circuit Court, Family Division order the agencies to place

these children with their grandmother and grant Ms. Scribner’s petition to adopt them.

II. Statement of Proceedings

This is the second time that Lori Scribner and her grandchildren have been before you.

Ms. Scribner is the paternal grandmother to the four children who were removed from their

mother’s care and placed with strangers. Ms. Scribner petitioned for guardianship of her


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grandchildren, and the Muskegon Circuit Court denied her request. Ms. Scribner appealed the

Circuit Court’s guardianship decision.

After the Muskegon Circuit Court denied Ms. Scribner’s petition for guardianship, Ms.

Scribner sought to adopt her grandchildren. The MCI withheld its consent to adopt from Ms.

Scribner, and she filed a petition to adopt her grandchildren along with the required motion,

MCL 710.45(2), which showed how the MCI’s decision to withhold consent from her was

arbitrary and capricious. Motion for Consent, Termination of Jurisdiction of MCI, and to Grant

Petition to Adopt, dated October 17, 2011. That motion hearing occurred over five days in

February, May, and July 2012. The Circuit Court denied the motion and dismissed Ms.

Scribner’s petition to adopt her grandchildren. Opinion Re: Denial of Consent to Adoption,

unpublished opinion of the Muskegon County Circuit Court, Family Division, issued September

14, 2012 (Docket Nos. 11- 7780-AF, 11-7781-AF, 11-7782-AF, and 11-7783-AF).

Ms. Scribner also appealed the Circuit Court’s adoption decision. The Court of Appeals

consolidated the adoption appeal with the guardianship appeal, reversed the Muskegon Circuit

Court’s order denying Ms. Scribner’s request for guardianship, and ordered the Circuit Court to

appoint Ms. Scribner the guardian of her grandchildren. The Court of Appeals did not address

the adoption appeal because having ordered what it did, the adoption was moot. In re COH,

ERH, JRG, KBH, Minors, unpublished opinion of the Michigan Court of Appeals, issued June

25, 2013, (Docket Nos. 309161, 312691).

This Court granted leave to appeal the Court of Appeals’ decision in the guardianship

case, In re COH , 495 Mich 870 (2013), reversed the Court of Appeals, and remanded to the

Court of Appeals for it to decide the adoption appeal. In re COH , 495 Mich 184, 188; 848

NW2d 107 (2014).


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On remand, the Court of Appeals affirmed the Circuit Court’s determination that the

Michigan Children’s Institute Superintendent had not acted arbitrarily or capriciously when he

withheld his consent to adopt her grandchildren. In re COH (On Remand), unpublished opinion

per curiam of the Court of Appeals, issued December 4, 2014 (Docket No. No. 312691). Ms.

Scribner timely filed a motion for reconsideration on December 26, 2014. The Court of Appeals

denied that motion on January 29, 2015. Order Denying Reconsideration, Appendix at 21.

This appeal is the result.

III. Statement of the Facts

A. “Grandma Lori” Scribner’s fight to ensure that her grandchildren would stay

connected to their siblings, their extended family, and their network ofsignificant adults.

Since 2008, Lori Scribner has struggled with DHS, Holy Cross Children’s Services (a

private foster care agency), Bethany Christian Services (a private adoption agency), and the

Michigan Children’s Institute to ensure that her grandchildren did not lose their relationship with

their grandmother and the extended family that Jordan, Esdeanna, Kylea, and Carmen are part of.

Tr. Vol. III, 5/3/12, at 141-43 (DHS); 144-46 (Holy Cross); 179-86 (Bethany). Ms. Scribner

firmly believed – as the Michigan Adoption Philosphy states – that her grandchildren would

suffer from the loss of all of their aunts, uncles, cousins with whom the children had always been

close. Tr. Vol. IV, 7/25/12 at 10.

Lori Scribner is the biological paternal grandmother to three of the four children she has

struggled to keep connected to herself and the rest of their biological family. Petitioner’s Exhibit

4, Amended Consent Decision at 2. Ms. Scribner’s son is the biological father of three of the

children, Esdeanna, Kylea, and Carmen. Id. Even though Ms. Scribner is not Jordan’s

biological grandmother, he has always been her grandchild in her heart. Tr. Vol. III, 5/3/2012, at


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143-44. She was in the delivery room when Jordan was born. Tr. Vol. II, 5/2/12, at 139. In fact,

Ms. Scribner, a registered nurse, was present for each one of these children’s births. Id.

From the start, her son told DHS and the judge that he wanted his children, all four of

them, placed with his mother, their grandmother, Lori Scribner. Id. at 139-140. The children’s

birth mother not only told DHS that she wanted the children placed with their grandmother, but

she also told Holy Cross and Bethany Christian Services. Id. at 30. Joe gave his mother’s

contact information to DHS worker Shaundrice Brown. Id. at 140. So when Ms. Brown called

Grandma Lori in April 2008 to ask whether Ms. Scribner would be interested in providing her

grandchildren a safe, stable, and nurturing place to live, she immediately said, “Yes!” Id. at 142.

What follows is a brief explanation of just some of the treatment that “shocked” Ms.

Scribner because she expected to be treated professionally but was not. Tr. Vol. IV, 7/25/12, at

38-39. To avoid repetition, more specific facts about the treatment she experienced will be

added in the Argument’s discussion of each issue.

Obstacles already existed. After the DHS worker asked Ms. Scribner about her living

space, that worker told Ms. Scribner that because she lived in a home with only two bedrooms,

she could not take all four children. Tr. Vol. III, 5/3/12 at 142. The worker asked if Ms.

Scribner would be willing to take just the girls, Ms. Scribner said yes, and then asked whether

Jordan could come to live with her too “if I had a bigger place.” Id. The DHS answer?

“Possibly.” Id. The DHS worker also asked Ms. Scribner about her employment status. Id. at

143. When she told the worker that she was working part-time as a registered nurse, the worker

told her she would have to work full- time to get the children. Id. And after all that, the worker

then told Ms. Scriber that because the family’s goal was reunification, DHS would not place the

children with her at that time. Id. But DHS would “keep her in mind.” Id.


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Meanwhile, Ms. Scribner kept in touch with her grandchildren through phone calls to

them at their respective foster homes. The girls’ foster family had given Ms. Scribner their

phone number and had encouraged her to call any time. Id. at 145.

The children were reunited with their siblings and placed together into another foster

home in October 2008, one provided through Holy Cross Children’s Services. Id. This is the

foster family to whom the MCI Superintendent granted consent to adopt Ms. Scribner’s

grandchildren. Petitioner’s Hearing Exhibit 4, Amended Consent Decision at 3, Appendix at 22.

Ms. Scribner contacted Linda Hagen, their Holy Cross foster care worker, to request placement

of her grandchildren with her. Id.

Nobody at DHS or Holy Cross would tell Ms. Scribner what she had to do have her

grandchildren placed with her. Id. at 155. It wasn’t until Ms. Scribner contacted her local

agency, the Florida Family Integrity Program, that she was told she would need to be licensed as

a foster parent before her grandchildren could live with her. Id. The worker at the Florida

agency also told Ms. Scribner about the Interstate Compact on the Placement of Children and

that someone at the Michigan DHS would have to initiate the process and ask Florida to evaluate

Ms. Scribner. Id.

The Michigan DHS did start the ICPC process. But when the Florida licensing worker

contacted Ms. Hagen at Holy Cross, Hagen said that she was not willing to place the children

with Ms. Scribner in Florida. Tr. Vol III, 5/3/12 at 166. Ms. Scribner received her foster care

license and Florida approved her as a foster care placement on September 3, 2010. Amended

Consent Decision, at 2.

During her first telephone call to Holy Cross in October 2008, Ms. Scribner asked the

worker if she would be able to call her grandchildren and send them gifts at their new foster


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home as she had been able to at their former foster home. Id. at 146. The Holy Cross worker

told her in no uncertain terms that Ms. Scribner was not to have a relationship with the foster

family: she was never to call them, never to send gifts to the children at the foster home, and

never to meet the foster parents. Tr. Vol. IV, 7/25/12 at 54. In short, she was never to have any

contact with the foster family. Id. The foster family had made it clear to the worker at Holy

Cross that they did not want Ms. Scribner’s grandchildren to have contact with any of their

relatives. Id. at 10.

Meanwhile, Ms. Scribner, knowing that the court’s plan was still to reunify their mother

with her four children, invited them all to come and live with her in Florida. The children’s

mother asked her Holy Cross worker, Linda Hagen, about moving to Florida with her children

and continuing reunification efforts there. Tr. Vol. II, 5/2/2012 at 36-37 (Bolduc testimony); 7-8

(Hagen testimony). Ms. Hagen, who conceded that she knew nothing about how a Michigan

agency would go about placing children in Florida, id. at 6, told her that she could not make any

moves with her children until the court no longer had jurisdiction. Id. at 7-8. Ms. Hagen never

even tried to research the question to see if that move was possible. Id. at 8.

Ms. Scribner then asked Ms. Hagen about becoming a guardian to her four grandchildren.

Id. at 7. Ms. Hagen told her that guardianship had to be pursued through the court, id. but that

the agencies would be pursuing permanency through adoption, and that Ms. Scribner could not

adopt the children until their mother’s rights were terminated. Tr. Vol. III, 5/3/12 at 166. So Ms.

Scribner hired an attorney, id., who told her that the adoption agencies always recommend the

foster parents as adoptive parents and that the MCI Superintendent rarely rejects that

recommendation. Id. at 168. Ms. Scribner chose to pursue a guardianship over an adoption that


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was preordained to fail. Id. Moreover, Ms. Scribner believed that the children’s mother would

not have to lose her parental rights if Ms. Scribner was appointed the children’s guardian. Id.

Ms. Scribner filed her guardianship petition on June 2, 2010. Id. at 169. The court

terminated the mother’s rights to her children on July 12, 2010. Id. She pleaded no contest to

the allegations in the termination petition because, in a small conference room at the court house,

just before the termination trial was set to begin, her lawyer, Ms. Scribner’s former lawyer, and

“somebody from Holy Cross” told her that if she gave up her rights, the children would go to Ms.

Scribner. Transcript Vol. II, 5/2/12 at 39-40; 62 -63.1

On March 11, 2011, the family court ultimately denied Ms. Scribner’s petition for

guardianship.

After the family court denied Ms. Scribner’s guardianship petition, it committed Ms.

Scribner’s grandchildren to the Michigan Children’s Institute as state wards, and DHS referred

their case to Bethany Christian Services for adoption planning. The children now had a new

worker, adoption worker Cara Stray. She did not fare better with Ms. Stray than she had with

Ms. Hagen, the Holy Cross worker.

In April 2011, Ms. Scribner contacted Ms. Stray and told her that she wanted to adopt her

grandchildren. Petitioner’s Hearing Exhibit 2, Preliminary Adoptive Family Assessment at 1,

Appendix at 26. Ms. Stray sent her an Intent to Adopt form on April 27, 2011, and Ms.

1 As an aside, as the children’s Lawyer Guardian Ad Litem explained it, apparently in MuskegonCounty the parent consents to rights being terminated by pleading no contest to the allegations inthe termination petition in exchange for that termination not being used to justify taking a newinfant from the parent directly from the hospital if the parent has more children. Id. at 51. The parent pleads no contest to the allegation rather than the court having to open up a new caseunder the adoption code so that the parent can surrender her rights to her child. Id. at 53. Itseems that this process circumvents many requirements under the adoption code, among themthat a parent must receive counseling before surrendering her rights to her children. See e.g.,MCL 710.28 and 710.29.


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Scribner’s then-attorney returned that to Ms. Stray on May 13, 2011. Id. On May 18, 2011,

Stray sent Ms. Scribner an application for adoption, and on May 26, 2011, she sent Ms. Scribner

a relative questionnaire. Tr. Vol. III, 5/3/12 at 89-90. Ms. Scribner did not receive the material

until the second week in June 2011 because she had been out of town. Id. at 179. As soon as she

received that questionnaire, she contacted Ms. Stray and told her that she would be working on

the answers. Id. at 180. Ms. Stray received those answers on July 2, 2011. Id. at 91.

But Ms. Stray did not wait for Ms. Scribner’s paperwork to arrive before she made her

recommendation that Ms. Scribner’s not be allowed to adopt her grandchildren. Id. at 91. At an

MCI employee’s request, “in an effort to move the case along,” she sent her Preliminary

Adoptive Family Assessment of Ms. Scribner to the MCI less than a week after she had sent the

relative questionnaire to Ms. Scribner. Id. at 91, 116. Ms. Stray and the MCI knew that the

information in the Preliminary Adoptive Family Assessment was incomplete, but the MCI

employee said “send it now.” Id. at 91. And even after Ms. Stray received Ms. Scribner’s

Application to Adopt and the answers to the relative questionnaire, she did not update her

Assessment, she did not send those documents to the MCI, and she did not tell the MCI their

contents, even though she told the MCI office that she’d received them. Id. at 109-11.

Because Ms. Stray did not have Ms. Scribner’s answers to any of the questions she had

sent to her, Ms. Stray based her assessment and recommendation on information she gathered

from the foster care files or from her understanding of what happened during the guardianship

hearing based on what others had told her. Id. at 97. She talked to the children, to foster care

worker Andrea Hagen, to the foster parents, but she never talked to Lori Scribner. Id. at 100,

117.


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Ms. Stray sent notice to Ms. Scribner that she was not being recommended to adopt her

grandchildren on June 23, 2011, even though she had sent that recommendation to the MCI three

weeks earlier. Id. at 107. Ironically, that letter begins with these words, “After careful

consideration . . . .” Petitioner’s Hearing Exhibit 11, Bethany’s “Not Recommending” Letter, at

1, Appendix at 30. As required by DHS policy, the letter notified Ms. Scribner that she was

entitled to a case conference to discuss Bethany’s recommendation. Id. That case conference

was held on July 26, 2011, almost two weeks after the MCI Superintendent sent Ms. Scribner his

notice that he was denying his consent to adopt her grandchildren on July 15, 2011. Tr. Vol. I,

2/10/12 at 32.

Ms. Stray did send a copy of the case conference summary to the MCI Superintendent in

July 2011. Tr. Vol. III, 5/3/12 at 109. In it, the MCI Superintendent saw that Ms. Scribner “has

concerns about whether the children are safe in the foster home.” Petitioner’s Hearing Exhibit 3,

supra at 1. It was not until October 2011, however, that the Superintendent recalled the consent

denial and its grant of consent to adopt to the foster parents, to investigate the reason why Ms.

Scribner was concerned for her grandchildren’s safety. Tr. Vol. I, 2/10/12 at 32. He never spoke

to Ms. Scribner because he “didn’t think it was necessary.” Id. at 34. The MCI Superintendent

issued his Amended Consent to Adoption Decision on December 2, 2011. Petitioner’s Exhibit 4.

ARGUMENT

I. This Court should grant leave to appeal because bench and bar need this Court’s

explanation and application of “arbitrary and capricious” when the Michigan

Children’s Institute withholds its consent to adopt a state ward.

This Court reviews the family court’s application of the arbitrary and capricious standard

as a question of law, reviewed de novo for clear legal error. In re Keast, 278 Mich App 415; 750

NW2d 643 (2008), citing Fletcher v Fletcher , 447 Mich 871, 877; 526 NW2d 889 (1994). Clear


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legal error occurs if a court incorrectly choses, applies, or interprets the law. Fletcher , 447 Mich

at 881. Both the Muskegon County Circuit Court, Family Division, and the Michigan Court of

Appeals incorrectly interpreted and applied the law in this case.

When a person wants to adopt a state ward, that person must get consent from “the

authorized representative of the department or his or her designee or of a child placing agency to

whom the child has been released.” MCL 710.43(1)(d). The “department” is the Department of

Human Services. See MCL 400.226, Executive Reorganization Order. The Michigan Children’s

Institute is part of the “department.” MCL 400.202. And its Superintendent is authorized to

grant to or withhold consent from a person who has applied to adopt a state ward. MCL

400.209(2).

If the Superintendent withholds consent to adopt a ward from the adoption applicant, the

applicant can nevertheless file a petition to adopt that ward together with a motion that states

what steps the applicant took to get consent, was there a response or result of those actions, and

was the result a withholding of consent. MCL 710.45(2)(a). The applicant’s motion must also

state why withholding consent to adopt is arbitrary and capricious. MCL 710.45(2)(b). A

petitioner must prove “by clear and convincing evidence that the decision to withhold consent

was arbitrary and capricious . . . .” MCL 710.45(7). This is the only review that the

Superintendent’s decision to withhold consent gets. Since 2004, the Department can no longer

review the denial of consent to adopt before that decision is released. 1994 PA 470. “The

department shall discontinue the Michigan children's institute preliminary consent denial review

process.” MCL 400.209(3).

This Court has never issued an opinion that analyzes and applies the language of MCL

710.45. The Michigan Court of Appeals has issued only two published decisions, In re Cotton,


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208 Mich App 180; 526 NW2d 601 (1994), decided under the 1982 statute, and In re Keast , 278

Mich App 415; 750 NW2d 643 (2008), decided under the present, 2004, version. It has decided

39 unpublished cases.

A decision to withhold consent is not arbitrary and capricious if it is based on

“allegations that are not frivolous or fanciful or without factual support.” Cotton, 208 Mich App

180, 186. If none of the reasons given for withholding consent are “good reasons,” then

withholding consent to adopt is arbitrary and capricious. Id. at 185. Stated otherwise, a

decision to withhold consent is not arbitrary and capricious even if the decision is supported by

only “one good reason.” Keast , 278 Mich App 435.

MCL 710.45 does not define arbitrary or capricious; the Legislature left it to the courts to

define.

The generally accepted meaning of “arbitrary” is “‘determined by whim or caprice,’” or“‘arrived at through an exercise of will or caprice, without consideration or adjustmentwith reference to principles, circumstances, or significance . . . decisive butunreasoned.’” Goolsby v Detroit, 419 Mich 651, 678; 358 NW2d 856 (1984) . . . Thegenerally accepted meaning of “capricious” is “apt to change suddenly; freakish;whimsical; humorsome.” Id. (citing US v Carmack , 329 US 230, 246 n 14; 67 SCt 252,260; 91 LEd 209 (1946), quoting Funk & Wagnalls New Standard Dictionary of theEnglish Language (1944)). [ In re Keast, 278 Mich App 424-25.]

But a closer reading of Goolsby, 419 Mich 671, shows that there are other ways in which

the Superintendent’s withholding consent is arbitrary and capricious.

“The arbitrariness standard is difficult to define. However, we think a decision to benonarbitrary must be (1) based upon relevant, permissible . . . factors which excludes the possibility of it being based upon motivations such as personal animosity or politicalfavoritism; (2) a rational result of the consideration of those factors; and (3) inclusive of afair and impartial consideration of the interests of [the applicant].” [ Id. at 667 n 4, quotingTedford v Peabody Coal Co, 533 F2d 952, 957 (CA 5, 1976).]

In addition, if a decision is made “‘in a perfunctory fashion’” or without the decision

maker knowing about facts directly bearing on the matter, it is capricious. Goolsby, 419 Mich at


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669, quoting Milstead v Int’l Bhd of Teamsters, Local Union No. 957, 580 F2d 232, 235 (CA 6,

1978).

Other, more recent definitions exist for arbitrary and capricious. Keeping in mind that

the Legislature added the arbitrary and capricious language in 1982, the Goolsby Court’s reliance

on a 1944 edition of a Funk & Wagnalls Dictionary for its definitions of arbitrary and capricious

is outdated. A brief look at the definitions of “arbitrary” and “capricious” in a dictionary that has

been revised since 1944, a more recent Black’s Law Dictionary for example, supports these other

ways in which withholding consent to adopt is arbitrary and capricious.

arbitrary, adj. . . . 2. (Of a judicial decision) founded on prejudice or preference ratherthan on reason or fact. This type of decision is often termed arbitrary and capricious.Cf. CAPRICIOUS. [Black's Law Dictionary (9th ed. 2009) (emphasis added).]

capricious . . . adj. . . . 2. (Of a decree) contrary to the evidence or established rules oflaw. Cf. ARBITRARY. [Black's Law Dictionary (9th ed. 2009) (emphasis added).]

Relying, then, on these examples and definitions – and placing them into the context of

the adoption consent process – the Superintendent’s withholding consent to adopt is arbitrary

and capricious if the Superintendent or those who make recommendations to him:

1. acted “contrary . . . to established rules of law,” Black's Law Dictionary, because, forexample, they reached the decisions by violating a constitution, statute, or policy, see Inre Rood , 483 Mich 73, 93, 125; 763 NW2d 587 (2009) (recognizing that following thelaw and DHS policies are important components of protecting a parent’s due processinterest);

2. stated reasons that are “invalid in light of the evidence,” because the decision maker (orthose recommending a decision to him) did not have complete and accurate information, In re CW, BW, & DW, unpublished opinion per curiam of the Court of Appeals, issuedFebruary 16, 2010 (Docket No. 292866) at 3 (Shapiro, J dissenting), without having all of

the relevant facts, therefore, making the decision in a perfunctory manner see Goolsby, 419 Mich at 669;

3. made them by uncritically relying on the agencies’ reports; see In re CW, BW, and DW,488 Mich 935; 790 NW2d 383, 389 n 1 (2010) (Corrigan, J concurring) (“mere uncriticalreliance on DHS reports does not fulfill his statutory duty to make these decisions as theguardian of wards of the state. MCL 400.203(1).”); or


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maker has inaccurate information, or if the information given to the decision maker is based on

personal animosity of the person gathering the information, or if, in gathering the information,

the investigators violate statutes or policies, the conclusion reached from the improper gathering

of information will also be flawed.

Focusing on the decision-making process is consistent with the evolution of the statute’s

language. In 1939, the Michigan Legislature enacted the statute that would eventually become

MCL 710.43. At that time, the Michigan Children’s Institute, established in 1935, was an actual

place where children lived. http://www.michmarkers.com/startup.asp?startpage=S0530.htm

1939 PA 288 required the superintendent of the Michigan Children’s Institute to grant consent to

adopt if “said child is legally an inmate of the Michigan children's institute . . . .” Id. The county

agent of the state welfare commission also had to grant consent; the county probate court had to

be satisfied that the consent to adopt was genuine and within the legal authority of the person

who signed the consent document; and the probate court had to find that the adoption was in the

child’s best interests. Id.

It wasn’t until 1982 that the Legislature enacted a procedure to follow if anyone required

to give consent withheld consent by not acting at all. 1981 PA 72 Sec. 45.

(1) If a representative or court whose consent is required under section 43(1)(b) to (d) ofthis chapter has not executed a consent within a reasonable period of time, a person whohas filed a petition to adopt may file a motion with the court to determine whether thewithholding of consent is arbitrary and capricious.

(2) Finding of arbitrariness, termination of rights of representative or court. If at ahearing, the court finds clear and convincing evidence that a consent required undersection 43(1)(b) to (d) of this chapter is being arbitrarily and capriciously withheld , thecourt may terminate the rights of that representative or court, and enter a final order ofadoption in accordance with this chapter. (emphasis added)

So a person filed a petition to adopt and, if the child was an “inmate of the Michigan

children’s institute,” the petitioner waited for the MCI Superintendent to grant consent. If that


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consent was not forthcoming, then the petitioner could file a motion to have the court determine

why the MCI was withholding consent. If the reasons for withholding consent (the process), i.e.

taking no action to grant consent, were “frivolous or fanciful or without factual support,” In re

Cotton, 208 Mich App 180, 186, the withholding of consent was arbitrary and capricious.

Cotton was decided under the original 1982 language and process.

In 1994 the Legislature required an adoption petitioner to first get the consent to adopt,

and if the decision maker withheld that consent, the petitioner could file the petition to adopt but

was also required to file the motion stating that the decision to withhold consent was arbitrary

and capricious. 1994 PA 239, Sec. 45(1).

(2) If an adoption petitioner has been unable to obtain the consent required . . . the petitioner may file a motion with the court alleging that the decision to withhold consentwas arbitrary and capricious. A motion under this subsection shall contain informationregarding both of the following:

(a) The specific steps taken by the petitioner to obtain the consent required andthe results , if any.

(b) The specific reasons why the petitioner believes the decision to withholdconsent was arbitrary and capricious. (emphasis added)

. . . .

(5) [now (7)] Unless the petitioner establishes by clear and convincing evidence that thedecision to withhold consent was arbitrary and capricious, the court shall deny themotion described in subsection (2) and dismiss the petition to adopt.

Under this language, an actual denial of consent is not necessary to file the petition to

adopt and the motion contesting withholding a decision (“if any” language in Id. § (2)(a)). If no

decision has been made at all, the motion contests the decision maker’s failure to act.

B. A process that violates the relative preference statute, MCL 722.954a(5), which

applies to any supervising agency, including the DHS, the MCI and child

placing agencies, is arbitrary and capricious.


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Families don’t need the intervention of a social services agency to tell them to look to

their relatives for support. When families have troubles, they turn to other family members for

help. Hon. Leonard Edwards, Examining the Benefits and Challenges of Placing Children with

Relatives,

http://www.casaforchildren.org/site/c.mtJSJ7MPIsE/b.7792495/k.8FF1/JP_1_Edwards.htm#_ftn

1 (accessed March 8, 2015). Social service agencies did not always look to relatives when they

sought to place children in foster care. Id. But Congress recognized the importance of relative

care and mandated that states give special consideration and preference to relatives as a

prerequisite to receiving federal funds. 42 U.S.C. 671(a)(19)(2010).

The Michigan Legislature complied with the federal funding mandate and enacted the

relative preference in MCL 722.954a(5). And based on the language it chose, the preference

applies in all stages of child welfare proceedings – from initial removal to adoptive placement

decisions.

As noted earlier, E Pluribus Unum resulted from this Court’s first interpretation of MCL

722.954a(5) in In re COH, ERH, JRG, & KBH , 495 Mich 184, 198 n7. Stated otherwise, that

decision and its dicta in n7 resulted in this: The first placement is the only time the “supervising

agency” must place children entrusted to its custody with a “fit and appropriate relative . . . as an

alternative to foster care.” MCL 722.954a(2). Thus, out of many placements, only one must be

with a relative.

This E Pluribus Unum approach ignored that supervising agencies make many placement

decisions for any one child. And while DHS policy would have this first placement be the

child’s only placement, that doesn’t always happen, See Children’s Foster Care Manual (FOM),


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FOM 722-03, Placement Selection and Standards at 1.2 Reality compels an E Unum Pluribus

approach – for one child can come many placements.

Congress, in 42 U.S.C. 671(a)(19)(2010) and the Michigan Legislature in MCL

722.954a(5) took the E Unum Pluribus, Out of One, Many approach:

Before determining placement of a child in its care, a supervising agency shall givespecial consideration and preference to a child's relative or relatives who are willing tocare for the child, are fit to do so, and would meet the child's developmental, emotional,and physical needs. The supervising agency's placement decision shall be made in the best interests of the child.

“Placement” and “Supervising agency” are terms of art in child welfare law. Under the

Adoption Code’s definition, “‘Placement’ or ‘to place’ means selection of an adoptive parent for

a child and transfer of physical custody of the child to a prospective adoptive parent according to

this chapter.” MCL 710.22(s). Ms. Scribner filed her petition under the adoption code. Under

the DHS administrative regulations that govern child placing agencies, “’Placement’ means

moving a child to an out-of-home living arrangement for purposes of foster care, adoption, or

independent living; or from out-of-home placement to another out-of-home placement .” Mich

Admin Code, R 400.12101(s) (rules for child placing agencies) (emphasis added). And one of

the responsibilities for a social service worker in a child placing agency is placing children in out

of home care and assessing children for adoptive placement . R 400.12207(3)(a), (3)(d). While

not binding on this Court, an administrative agency's interpretation of its own rule is entitled to

deference. In re Complaint of Consumers Energy Co., 255 Mich App 496, 503–504, n4; 660

NW2d 785 (2003). “’Supervising agency’ means the department (DHS, as noted earlier) if a

child is placed in the department's care for foster care, or a child placing agency in whose care a

child is placed for foster care.” MCL 722.952(l ). “‘Child placing agency’ means a private

2 available at http://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-03.pdf#pagemode=bookmarks

http://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-03.pdf#pagemode=bookmarkshttp://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-03.pdf#pagemode=bookmarkshttp://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-03.pdf#pagemode=bookmarkshttp://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-03.pdf#pagemode=bookmarkshttp://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-03.pdf#pagemode=bookmarkshttp://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-03.pdf#pagemode=bookmarks


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organization licensed under 1973 PA 116, MCL 722.111 to 722.128, to place children for

adoption.”

When substituting the definitions for the terms in MCL 722.954a(5), the subsection

reads:

Before determining placement [ selection of an adoptive parent for a child and transfer of physical custody of the child to a prospective adoptive parent or moving a child to an out-of-home living arrangement for purposes of foster care, adoption, or independent living; or from out-of-home placement to another out-of-home placement .”] of a child in its care,a supervising agency shall give special consideration and preference to a child's relativeor relatives who are willing to care for the child, are fit to do so, and would meet thechild's developmental, emotional, and physical needs. The supervising agency's placement decision shall be made in the best interests of the child.

The definitions, then, clarify when the supervising agency (DHS or a child placing

agency) must give special consideration and preference to a relative – any time it moves a child

either from the child’s parent’s home into foster care, from one foster home to another, and from

a foster home to a pre-adoptive placement. Because the supervising agency is DHS, and because

the MCI and its staff fall under the DHS, even the MCI must apply the special consideration and

preference to a relative who has requested placement.

The DHS’s own policies recognize and require the consideration and preference for

relative placement from the time the child is removed from a parent until the child is placed for

adoption. For example, the Children’s Foster Care Manual, 722-03B, Relative Engagement and

Placement, at 2, http://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-

03B.pdf#pagemode=bookmarks (last accessed March 8, 2015), requires:

The relative search must begin prior to the child being removed from the home andcontinues until legal permanency for the child is achieved. The assigned caseworkermust pursue the identification and notification of relatives and document the initial andongoing efforts in each investigation report/case service plan. Note: The CPS caseworkermust, at a minimum, ask the parents and age-appropriate children to identify the paternaland maternal relatives. (emphasis in original)


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The Manual continues:

Ongoing Search and Notification: Throughout the case, the assigned caseworker mustcontinue to identify, notify, and engage relatives until legal permanency for the child isachieved. The ongoing efforts must be documented in each case service plan. [ Id. at 3.]

And if the child’s placement must be changed, “When it is necessary to move a child, the

original placement selection criteria and standards apply. First consideration must be given to

returning the child to the parent or placing the child with siblings or with a suitable relative.”

Children’s Foster Care Manual, FOM 722-3, Placement Selection and Standards, at 17,

http://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/722-03.pdf#pagemode=bookmarks

(last accessed March 8, 2015).

In short, the Department of Human Services clearly recognizes its federal and state

requirements to give special consideration and preference to a relative who wants to care for a

child in the state’s custody.

Moreover, the plain language of MCL 722.954a(5) states “Before determining placement

of a child in its care . . . .” (emphasis added). Conspicuous by its absence is the definite article

“the” between determining and placement. The definite article “the” “signal[s] a specific person,

place, or thing[,]” as opposed to the indefinite article which “signal[s] a generic reference.”

Bryan A . Garner, The Redbook A Manual on Legal Style (3d ed) § 10.39, p 206. Had the

legislature intended subsection (5) to apply only to the placement decision following removal of

a child from its home, the legislature could have used that definite article, “the.” Indeed, in

subsection (4)(a), the legislature used “a placement decision,” the generic placement that the

agency must make within 90 days after the child has been removed from home. And in

subsection (4)(b), the legislature used “the placement decision,” referring to the decision made

under subsection (4)(a).


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Here, Ms. Scribner asked the agencies from the get-go to place her grandchildren with

her. Tr. Vol. II, 5/2/12, at 139-142. When the agencies told her she needed more income, she

got a better job. Tr. Vol. III, 5/3/12 at 142-143. When the agencies told her she needed more

space to care for four children, she bought a new house. Id. When the Florida agency told her

that she needed to be licensed for foster care, she went to classes and became a licensed foster

parent. Id. at 155.

All was for naught. Not one of the agencies she contacted gave her that special

consideration and preference that was her due as the children’s grandmother. Her very last

opportunity for that special consideration and preference was with the Department of Human

Services’s MCI’s placement decision. And its employees did exactly the opposite: it gave her

incomplete consideration and no preference. The MCI ignored and violated the legislative

mandates. As a result, any decision it made was “frivolous or fanciful or without factual

support.” In re Cotton, 208 Mich App at 186. Its decision was, therefore, arbitrary and

capricious as a matter of law.

This Court should grant Ms. Scribner’s application for leave to appeal to allow it to show

how the relative placement preference applies to the DHS, a private child placing agency, and

the MCI when they make placement decisions.

C. A decision process that relies on inaccurate or incomplete information and

therefore states reasons that are “invalid in light of the evidence,” is arbitrary

and capricious.

As noted earlier, the Court in both Goolsby, 419 Mich at 669, and In re CW, (Docket No.

292866) at 3 (Shapiro, J dissenting), recognized that a decision can be arbitrary and capricious if

it is the result of a perfunctory process that did not use all of the available information or relied

on inaccurate information. Indeed, as the adoption worker admitted, she gave the MCI


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incomplete information about Ms. Scribner, and the MCI knew it. The adoption worker

provided only a perfunctory “Preliminary Adoption Assessment” and nothing more. So the

information the agencies sent to the MCI Superintendent was incomplete and incorrect, which

made the decision to deny Ms. Scribner’s request for consent to adopt arbitrary and capricious.

As a threshold matter, the Superintendent recalled his original July 20113 consent

decision because he had no information about the licensing violations the foster parents had

committed and because he had no information about the Child Protective Services investigations

into the foster family’s conduct. Tr. Vol. I, 2/10/12, at 32. The adoption worker had not told

him about those investigations. Id. at 66. Moreover, the Superintendent issued that July 15,

2011, consent decision before Ms. Scribner had even had her case conference with the adoption

agency after it refused to recommend her as the adoptive placement for her grandchildren.

Petitioner’s Hearing Exhibit 3, dated July 26, 2011.

As noted, the adoption worker, Cara Stray, admitted that she did not wait until she had all

of Ms. Scribner’s information before she sent her preliminary assessment and her

recommendation to the MCI. Tr. Vol. III, 5/3/12 at 91. Even more egregious, it was an MCI

employee, Mary Rossman, who told Ms. Stray not to wait for additional information, the case

had to move along, “just send what you have.” Id. at 91, 116; Tr. Vol IV, 7/25/12 at 82. Of all

people, the MCI employees should know best that they need all information about each

competing party before the Superintendent can make a decision.

And even after Ms. Stray received Ms. Scribner’s Application to Adopt and the answers

to the relative questionnaire, she did not update her assessment, she did not send the documents

3 In the Court of Appeals decision here on remand, it mentions a revised trial court opinion. Thetrial court never withdrew an opinion and order or issued a new one. The MCI Superintendentdid, however, withdraw an earlier decision in which he withheld consent to adopt hergrandchildren from Ms. Scribner.


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she received from Ms. Scribner to the MCI, and she did not tell the MCI their contents, even

though she told the MCI office that she’d received them. Id. at 109-11.

Moreover, the MCI Superintendent himself admitted that he did not have all of the

information about each of these children. For example, he did not have the psychological

evaluation that Dr. Joseph Auffrey completed on each of the children, at the family court’s

request , after the children had spent two separate holiday visits, Thanksgiving and Christmas

2010, with their grandmother in Florida. Tr. Vol. I, 2/10/12 at 74. As a result, he did not know

that Dr. Auffrey had concluded that the children would not suffer trauma if they moved to their

grandmother’s home in Florida. Auffrey Evaluation at 11, Appendix at 32. He also did not see

that in Dr. Auffrey’s opinion the children had been “subjected to indoctrination and alienation in

regard to the various parent figures in their lives.” Id. at 10. The Superintendent’s admission

should be enough for this Court to determine that his decision to withhold consent was arbitrary

and capricious because he did not have all of the information about the children’s circumstances.

In addition, the Amended Consent decision itself states several things about Ms. Scribner

that are “unknown,” and the MCI Superintendent did not “think it was necessary” to contact Ms.

Scribner to find out. Tr. Vol. I at 34. For example, the Amended Consent Decision, at 3, notes

“it is not known if she could provide for all of the special needs of these four children on a

permanent basis.” Even at the hearing, the Superintendent admitted that he still did not know if

Ms. Scribner could provide for their special needs. Tr. Vol. I, 2/10/12 at 49. When asked what

the children’s special needs were, he answered, “stability, structure, consistency, to know what’s

happening to them, and to be together.” Id. Moreover, he admitted that he had no information

that Ms. Scribner could not provide that for her grandchildren. Id. Yet he still insisted that Ms.

Scribner had not shown that she could care for the children independently, which to him meant


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that she had to have taken care of them 24 hours a day, 7 days a week, 365 days a year, id. at 75-

76, an impossible standard to meet if the person has not had physical custody of the children as a

foster parent or a guardian.

The Amended Consent Decision, at 3, also states that “there does not appear to be a

significant psychological relationship between [the children and Ms. Scribner].” The

Superintendent based that equivocal conclusion on the inaccurate information he received from

the adoption worker that Ms. Scribner had not met her granddaughter Carmen until after Carmen

was two years old. Tr. Vol. I, 2/10/12 at 38. When pressed, the Superintendent admitted that he

did not know if that information was true or not. Id. at 36. Yet he never attempted to verify its

accuracy. Id. at 38. That inaccurate information also led him to believe that Ms. Scribner had

had only “limited contact” with her grandchildren before they entered foster care. Amended

Consent Decision at 3. To the Superintendent, limited contact or involvement with her

grandchildren meant that Ms. Scribner had never cared for the children as a parent figure, Tr.

Vol. I. 2/10/12 at 72, another impossible standard to meet if one did not have physical custody of

the children.

But Ms. Scribner had had more than just “limited” contact or involvement with her

grandchildren both before and after she moved to Florida in 2005. Since each child’s birth in

2001, 2002, 2004, and 2005, before she moved to Florida, Ms. Scribner often babysat for all 4 of

her grandchildren, and she would care for them every other weekend from Friday through

Sunday. Tr. Vol. III, 5/3/12 at 139-140, see also Tr. Vol. II, 5/2/12 at 138-39, 41-44, 12-14.

After she moved to Florida, in 2006 she would come back to visit “every couple of months” to

spend time with her grandchildren. Tr. Vol. III at 140. She’d stay at a hotel for 1-2 weeks at a

time and would have her grandchildren with her at the hotel her entire stay. Id. at 194, 195, 196.


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In 2007 she visited only once that summer for two weeks, and again she had the children with

her the entire time. Id. at 194.

The Superintendent didn’t know any of this. The adoption worker at Bethany had given

him only her incomplete assessment, Petitioner’s Hearing Exhibit 2, and the case conference

summary, Petitioner’s Hearing Exhibit 3, Tr. Vol. I, 2/10/12 at 45. But even the case conference

summary that she gave to the MCI did not contain the revisions that Ms. Scribner had asked her

to make to accurately reflect how much time she had spent with her grandchildren before they

were placed into foster care. Tr. Vol. III, 5/3/12 at 188.

The Superintendent conceded that even the inaccurate case conference summary report,

which reported that Ms. Scribner had had an ongoing relationship with her grandchildren that

was disrupted when they went into foster care, conflicted with the limited contact or involvement

with the children that the adoption worker had reported in her hasty, incomplete assessment. Id.

at 46. As stated earlier, he never contacted Ms. Scribner about anything because he “didn’t think

it was necessary” to contact Ms. Scribner at all. Id. at 34. Moreover, the Amended Consent

Decision states at 2, that Ms. Scribner provided information to the MCI office; she never did. Tr.

Vol. III, 5/3/12 at 203.

Neither the Family Court nor the Court of Appeals performed any in-depth analysis of

just how much the MCI did not know. Its employees had already decided to withhold consent

from Ms. Scribner. That is the only inference one can logically draw from Ms. Rossman’s

telling the adoption worker that MCI didn’t need more information. And no amount of

information Ms. Scribner could give him would change that result.

Once again, all of the agencies ignored that special consideration a relative should receive

from a supervising agency before it determines any placement for court or state wards. Clear


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legal error occurs if a court incorrectly interprets or applies the law. Here both courts did not

correctly apply definitions of arbitrary and capricious. This Court should grant leave to appeal to

remind the supervising agencies, bench, and bar that a decision is arbitrary and capricious if, in

the process of making it, the decision maker relies on incomplete or inaccurate information.

D. If the MCI uncritically relies on the agencies’ reports the superintendent acts

arbitrarily and capriciously when he decides to withhold consent to adopt a

state ward.

The MCI Superintendent has often said that “he has a reasonable expectation that the

information provided through state-contracted and licensed agencies is accurate and that he can

rely on it.” Keast , 278 Mich App at 427, see also In re Couturier , unpublished opinion per

curiam of the Court of Appeals, issued October 21, 2003 at 10 (Docket No. 245206) (reliance on

child placing agency’s reports was “not unfounded.”), In re Fightmaster , unpublished opinion

per curiam of the Court of Appeals, issued October 3, 1997 at 4 (Docket No. 200437) (child

placing agency’s reports had been approved by the local DHS workers), In re CNS/JLM ,

unpublished opinion per curiam of the Court of Appeals, issued September 21, 2010, at 3 (

Docket No. 297298) (can rely on “detailed reports”).

But as guardian of the state’s wards, the MCI Superintendent cannot just close his eyes to

agency recommendations that are incomplete or that should set off alarm bells indicating that

something is amiss – for example, an agency worker’s acceptance of an applicant’s story without

further demand for proof might signal agency favoritism, as would reporting physical

punishment to an agency’s licensing arm but not to the State’s Child Protective Services

investigators. A guardian must use more care and caution in making a decision for a ward than

would the ordinary person without that special relationship. See MCL 700.1212, see also In re

CW, BW, and DW , 488 Mich 935 n 1 (Corrigan, J concurring) (“mere uncritical reliance on DHS


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reports does not fulfill his statutory duty to make these decisions as the guardian of wards of the

state. MCL 400.203(1).”).

The Superintendent knew that the reports were incomplete, yet he did nothing to gather

more information. The Superintendent knew that his consent decision did not contain definitive

answers to some of his own questions, yet he did nothing to gather more information. By

remaining willfully ignorant of material that did not support his analysis, the process by which he

made his decision was arbitrary and capricious. Once again, the Family Courts misapplied and

misinterpreted the ar

michigan application for leave to appeal from court of appeals on denying relative adoption

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