In re CW – Section 45 Hearings

I always image the MCI Superintendent like the Wizard of Oz – an all-powerful man behind the curtain.  The MCI Superintendent “has the power to make decisions on behalf of” children who are wards of the state, MCL 400.203(2), including the authority to consent to adoption. MCL 400.209(1).  If the superintendent denies a petitioner’s request for consent to adopt, the petitioner may file a motion with the court alleging that the superintendent’s decision was arbitrary and capricious. MCL 710.45(2).  The court must determine whether the petitioner has shown by clear and convincing evidence that the decision was arbitrary and capricious. MCL 710.45(7) & (8); In re Cotton, 208 Mich App 180, 185-187 (1994).  Because the MCI Superintendent has such broad discretion and the standard for review is so high, most Section 45 motions are denied and appellate courts  generally uphold that denial.

In In re CW, the children were placed in the care of the Martins for three years.  After the parents’ parental rights were terminated, the Martins began the process to adopt the children.  The adoption was cut short because of an incident in which it was alleged that a developmentally disabled adult that lived with the Martins abused one of the children.  Based on the allegations, the children were removed from the Martins’ care and placed with the Rabers.  Due to the allegations, the adoption was halted.  After approximately a year of administrative wrangling, it was ultimately determined that the abuse allegations were unfounded and the Martins did not fail to protect the child.

After the Martins were cleared of any abuse or neglect, the LGAL requested that the boys be returned to the Martins, but the boys remained with the Rabers and the MCI Superintendent had already granted consent for the Rabers to adopt them.  While it appeared he would reconsider his decision, he ultimately stuck with his decision to consent to adoption by the Rabers.  Essentially, the MCI Superintendent found “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,” among other reasons.

The Martins 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 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.  The trial court refused to admit the proffered evidence and dismissed the Martins’ petition for review.  The trial court opined that the court could not consider whether the Superintendent’s decision was right or wrong, or even whether it was based on “bad” information given to him. Rather, the court could only consider whether the decision seemed “reasoned.”

The Martins appealed.  The majority affirmed the trial court’s dismissal holding the proffered evidence “was insufficient for the trial court to have concluded that there were no good reasons for [the Superintendent] to have withheld consent.”  Judge Shapiro Dissented.  Judge Shapiro found that the court’s duty required it to evaluate whether the Superintendent’s articulated reasons were made with consideration for the children’s individual circumstances and thus whether his reasons were valid in light of the facts of the case.  Judge Shapiro further concluded that the excluded evidence could have changed the outcome.

The Martins filed an application for leave to appeal to the Supreme Court.  In lieu of granting leave to appeal, the Supreme Court issued an order reversing the trial court’s dismissal of the Martin’s motion, adopting Judge Shapiro’s dissenting opinion.   Justice Corrigan concurred in the Order, but wrote that the lower courts have misapplied the standard for reviewing the MCI Superintendent’s consent to an adoption under Section 45.  She held that courts have established an almost impossible burden.  She held that the accuracy and completeness of facts underlying a Superintendent’s decision are necessary for court review under MCL 750.145.

Based on this decision, it is appropriate to explore whether the MCI Superintendent’s determination was based on 1) a full and complete record regarding the facts and circumstances surrounding the child and 2) an accurate set of facts.  There appear to be some cracks in the nearly impossible standard at Section 45 hearings.

You can download the Supreme Court’s Order here: In re CW (Supreme Ct)

You can download the Court of Appeals’ majority opinion here: In re CW (Majority)

You can download the Court of Appeals dissenting opinion here: In re CW (Dissent)