If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re CADP, Minor. February 22, 2024
Nos. 366087; 366088
Kalkaska Circuit Court
Family Division
LC Nos. 22-001067-AM;
22-001066-AM
Before: HOOD, P.J., and MURRAY and MALDONADO, JJ.
MALDONADO, J. (concurring).
I concur fully in the majority opinion. I write separately to address a string of published
opinions from this Court that I believe misinterpreted MCL 710.45 in such a way as to remove any
meaningful judicial oversight from these proceedings.
Section 45 of the Adoption Code, MCL 710.21 et seq., governs these proceedings and
provides in relevant part:
(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 decision to withhold
consent was arbitrary and capricious.
* * *
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(8) If the court finds by clear and convincing evidence that the decision to
withhold consent was arbitrary and capricious, the court shall issue a written
decision and may terminate the rights of the appropriate court, child placing agency,
or department and may enter further orders in accordance with this chapter or
section 18 of chapter XIIA as the court considers appropriate. In addition, the court
may grant to the petitioner reimbursement for petitioner's costs of preparing, filing,
and arguing the motion alleging the withholding of consent was arbitrary and
capricious, including a reasonable allowance for attorney fees. [MCL 710.45.]
Because § 45 proceedings hinge on whether the decision to withhold consent was “arbitrary and
capricious,” the meaning of this term is critical; however, the term is undefined by the statute. See
MCL 710.22. Accordingly, it has been left to this Court to provide guidance.
The foundational case for defining “arbitrary and capricious” in the context of adoption
proceedings is In re Cotton, 208 Mich App 180, 184; 526 NW2d 601 (1994):
The fact that the Legislature in drafting the statute limited judicial review
to a determination whether consent was withheld arbitrarily and capriciously, and
further required that such a finding be based upon clear and convincing evidence,
clearly indicates that it did not intend to allow the probate court to decide the
adoption issue de novo and substitute its judgment for that of the representative of
the agency that must consent to the adoption. Rather, the clear and unambiguous
language terms of the statute indicate that the decision of the representative of the
agency to withhold consent to an adoption must be upheld unless there is clear and
convincing evidence that the representative acted arbitrarily and capriciously.
Thus, the focus is not whether the representative made the “correct” decision or
whether the probate judge would have decided the issue differently than the
representative, but whether the representative acted arbitrarily and capriciously in
making the decision. Accordingly, the hearing under § 45 is not, as petitioners
seem to suggest, an opportunity for a petitioner to make a case relative to why the
consent should have been granted, but rather is an opportunity to show that the
representative acted arbitrarily and capriciously in withholding that consent. It is
only after the petitioner has sustained the burden of showing by clear and
convincing evidence that the representative acted arbitrarily and capriciously that
the proceedings may then proceed to convincing the probate court that it should go
ahead and enter a final order of adoption.
One cannot reasonably dispute that this is an accurate statement of the law. The Legislature
clearly intended that the MCI Superintendent be the decision maker in these matters and that
judicial intervention would only be permitted in the event of an egregious mistake. As a judge, it
is not my place to second guess the Legislature on policy matters, I may only attempt to ascertain
its intent. To that end, I believe the next paragraph in Cotton went too far:
Because the initial focus is whether the representative acted arbitrarily and
capriciously, the focus of such a hearing is not what reasons existed to authorize
the adoption, but the reasons given by the representative for withholding the
consent to the adoption. That is, if there exist good reasons why consent should be
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granted and good reasons why consent should be withheld, it cannot be said that
the representative acted arbitrarily and capriciously in withholding that consent
even though another individual, such as the probate judge, might have decided the
matter in favor of the petitioner. Rather, it is the absence of any good reason to
withhold consent, not the presence of good reasons to grant it, that indicates that
the representative was acting in an arbitrary and capricious manner. [Id. at 185
(emphasis added).]
When it decided In re TEM, 343 Mich App 171, 179; 996 NW2d 850 (2022), this Court left no
doubt regarding what it meant in Cotton: “Michigan authority is clear that the court is to determine
if there is any good reason to support the MCI Superintendent’s decision; if so, the decision must
be upheld.” The “any good reason” standard was also articulated in three additional published
opinions of this Court, including the previous appeal in this case. In re Keast, 278 Mich App 415,
425; 750 NW2d 643 (2008); In re ASF, 311 Mich App 420, 430; 876 NW2d 253 (2015); In re
CADP, 341 Mich App 370, 380; 990 NW2d 386 (2022). Accordingly, the trial court was correct
when it said that its job was only to ascertain whether the Superintendent had any good reason to
grant consent to adopt CADP to Robinson and deny consent to the Prevos and Thibodeaus.
I disagree with this Court’s conclusion in Cotton and its progeny that a decision cannot be
deemed arbitrary and capricious if there is any good reason to support it. Indeed, even the cases
articulating this standard are self-contradictory. For example, in TEM this Court stated that
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 adjustment with reference to principles, circumstances, or significance, decisive
but unreasoned,” and the generally accepted meaning of capricious is ‘apt to change
suddenly; freakish; whimsical; humorsome.’ [TEM, 343 Mich App at 177, quoting
Keast, 278 Mich App at 424-425 (quotation marks and alterations omitted); see also
CADP, 341 Mich App at 380.1]
A “freakish” decision that is “determined by whim” can also be supported by at least one good
reason.
The term “arbitrary and capricious” being construed to mean “unsupported by any good
reason” is unique to this statute in these proceedings, and that standard has not been applied in any
other context. Indeed, in other contexts, the definition provided above is the only one used. See,
e.g., English v Blue Cross Blue Shield of Mich, 263 Mich App 449, 472; 688 NW2d 523 (2004)
(stating that “[a] decision is arbitrary if it is without adequate determining principle, fixed or
arrived at through an exercise of will or by caprice, without consideration or adjustment with
reference to principles, circumstances, or significance, decisive but unreasoned” and that “[a]
1
In CADP, this Court paraphrased Keast as follows: “A decision is arbitrary if, although decisive,
it is reached by whim or caprice rather than being reasoned and driven by reference to principles,
circumstances, or significance. A decision is capricious if it is whimsical, freakish, or humorsome,
or apt to being suddenly changed.” CADP, 341 Mich App at 380 (quotation marks, citations, and
alterations omitted).
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decision is capricious if it is apt to change suddenly; freakish; whimsical; humorsome”). When
the legislature uses a legal term of art, it “must be construed in accordance with its peculiar and
appropriate legal meaning.” Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207
(2008). By limiting judicial intervention to those cases in which a decision was arbitrary and
capricious, the Legislature certainly intended to build a system of strict deference, but this Court
has taken it even further. The “any good reason” standard essentially removes any judicial
oversight and relegates virtually all § 45 petitions to automatic futility. These cases are
inconsistent with the language of the statute and run afoul of the Legislature’s intent.
Notably, the standard articulated by this Court in Cotton and subsequently reaffirmed by
several unpublished opinions has never been adopted by the Supreme Court. However, in a
concurring opinion, Justice Corrigan criticized how Cotton has been interpreted in subsequent
cases:
The lower courts relied on the Court of Appeals opinion in In re Cotton to
conclude, in the words of the trial judge, that a petitioner's burden under MCL
750.45 is “almost impossible.” The Court of Appeals opined that the evidence
proffered by the Martins was essentially irrelevant because it was insufficient for
the trial court to have concluded that there were no good reasons for the
Superintendent to have withheld consent. To support this conclusion, the Court of
Appeals cited In re Cotton for the proposition that “it is the absence of any good
reason to withhold consent, not the presence of good reasons to grant it, that
indicates that the representative was acting in an arbitrary and capricious manner.”
But the tribunals misinterpreted In re Cotton in this regard, thus effectively
rendering their review under MCL 750.45 meaningless. The oft-cited portion of In
re Cotton was primarily aimed at refuting the narrow question posed in that case:
whether the Legislature intended for a reviewing court to decide adoption issues de
novo and substitute its judgment for that of the representative of the agency that
must consent to the adoption. In re Cotton did not establish, as the lower courts
appear to conclude, that the Superintendent's decision must be affirmed as long as
it appears facially reasoned, without regard to the accuracy of the facts or the
thoroughness of the investigation, as long as a single “good” reason supports the
decision. To the contrary, as In re Cotton explicitly suggested, a reviewing court
may address whether the bases for his decision are “without factual support.” [In
re CW, 488 Mich 935, 940-941; 790 NW2d 383 (2010) (CORRIGAN, J., concurring)
(quotation marks and citations omitted).]
As noted above, this Court did not heed Justice Corrigan’s warning, and this Court cemented the
“any good reason” standard in 2022 when it published its opinion in TEM, 343 Mich App at 179.
My hope is that the Supreme Court will take up this issue anew and correct this effective
nullification of judicial oversight of the Superintendent’s decision making.
/s/ Allie Greenleaf Maldonado
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