STATE OF MICHIGAN

IN THE MICHIGAN SUPREME COURT

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

Docket No:
COA No: 312691

Lori Scribner,
v

Circuit Court File Nos.

11-7780-AF, 11-7781-AF, 11-7782-AF,
11-7783-AF
Muskegon Circuit Court,
Family Division
Adoption Petitioner/Appellant,

William Johnson, Superintendent,

Michigan Childrens Institute;
Michigan Childrens Institute; and
Michigan Department of Human Services,
Respondents/Appellees.
____________________________________________________________________________/
Evelyn K. Calogero (P45512)
Attorney for Adoption Petitioner/
Appellant, Lori Scribner
Evelyn K. Calogero, PLLC
215 N. Main St.
Olivet, MI 49076
(269) 749-9600
Email: evelyn@olivetlawyer.com

H. Daniel Beaton, Jr. (P43336)

Michigan Dept. of Attorney General
Attorneys for Respondents/Appellees
Department of Human
Services, Michigan Childrens Institute,
Michigan Childrens Institute
Superintendent, William Johnson
525 W. Ottawa St.
P.O. Box 30758
Lansing, MI 48909
(517) 373-7700
Email: beatond@michigan.gov
Fred Johnson (P36283)
Muskegon County Public Defender
LGAL for COH, ERH, JRG, and KBH
165 E. Apple Ave., Suite 301
Muskegon, MI 49442
(231) 724-6144
johnsonfr@co.muskegon.mi.us

Adoption Petitioner Lori Scribners Application for Leave to Appeal

JUDGMENT OR ORDER APPEALED FROM AND RELIEF SOUGHT

Appellant, Lori Scribner, appeals the Muskegon County Circuit Court, Family Division,
Opinion and Order dated September 12, 2012, in which it denied Ms. Scribners motion brought
under MCL 710.45 that challenged the Michigan Childrens Institutes Superintendents decision
to deny her request to adopt her four grandchildren and dismissed her adoption petition. Circuit
Court Order, Appendix at 1-8.
Ms. Scribner also appeals the decision on remand of the Michigan Court of Appeals in 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re COH, ERH, JRG, and KBH Minors (On Remand), unpublished opinion per curiam of the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), Appendix at 10.
And Ms. Scribner appeals the Court of Appeals denial of her timely filed Motion for
Reconsideration of its opinion and order on remand. In re COH, ERH, JRG, and KBH Minors
(On Remand), unpublished order of the Court of Appeals, issued January 29, 2015 (Docket No.
312691), Appendix at 21.
Ms. Scribner respectfully asks that this Court grant Leave to Appeal, and on appeal
reverse the decisions of the Court of Appeals and the Muskegon Circuit Court, Family Division,
recognize that the MCI Superintendents decision to deny Ms. Scribners request to adopt her
grandchildren was arbitrary and capricious, order that these four children be placed with their
grandmother, and grant Ms. Scribners Petition for Adoption.

QUESTIONS PRESENTED FOR REVIEW

I.

Should this Court grant leave to appeal because bench and bar need this Courts
explanation and application of arbitrary and capricious when the Michigan Childrens
Institute 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 Superintendents decision to withhold consent to adopt arbitrary and

capricious when the process it follows to reach it violates statutes, DHS policies, or the
Michigan 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 arbitrary
and capricious because unless the relative has been allowed to maintain contact with the
children, the relatives will always fall short in the comparison?
Adoption Petitioner/Appellant says, Yes.
Respondent/Appellee will say, No.
The Court of Appeals and the Family Court did not address the questions.

IV.

Does a process that violates the Michigan Constitutions Fair and Just Treatment clause
result in an arbitrary and capricious decision to withhold consent?
Adoption Petitioner/Appellant says, Yes.
Respondent/Appellee will say, No.
The Court of Appeals and the Family Court did not address the questions.

V.

Does preparing to prove by clear and convincing evidence that the Superintendent acted
arbitrarily and capriciously in withholding consent to adopt require the Adoption
Petitioner to have copies, either paper or digital, of all of the information the MCI
Superintendent had access to, including the family courts entire file in the abuse or
neglect case, the MCI Superintendents 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?
Adoption Petitioner/Appellant says, Yes.
Respondent/Appellee will say, No.
The Court of Appeals and the Family Court did not address the questions.

ii

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 Scribners 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 COURTS EXPLANATION AND APPLICATION OF ARBITRARY
AND CAPRICIOUS WHEN THE MICHIGAN CHILDRENS INSTITUTE
WITHHOLDS ITS CONSENT TO ADOPT A STATE WARD. .......................................... 12
II.
THE MCI SUPERINTENDENTS DECISION TO WITHHOLD CONSENT TO
ADOPT IS ARBITRARY AND CAPRICIOUS WHEN THE PROCESS IT FOLLOWS TO
REACH IT VIOLATES STATUTES, DHS POLICIES, OR THE MICHIGAN
CONSTITUTION. ................................................................................................................... 16
A.
The courts 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 MCIs decision violates the United States and Michigans
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
iii

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 CONSTITUTIONS FAIR AND
JUST TREATMENT CLAUSE RESULTS IN AN ARBITRARY AND CAPRICIOUS
DECISION 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
COURTS ENTIRE FILE IN THE ABUSE OR NEGLECT CASE, THE MCI
SUPERINTENDENTS 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 Superintendents 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 Superintendents decision and thus it was not arbitrary and capricious. ....... 41
CONCLUSION ....................................................................................................................... 43
REQUEST FOR RELIEF ....................................................................................................... 44

iv

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
v

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 Intl 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

vi

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

vii

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, 503504, 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

viii

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
ix

Other Authorities
Bryan A . Garner, The Redbook A Manual on Legal Style (3d ed) ............................................ 33
Childrens Foster Care Manual (FOM),
FOM 722-03, Placement Selection and Standards............................................................ 13, 31
Childrens Foster Care Manual, FOM 722-3, Placement Selection and Standards,
http://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/72203.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-careinformation/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
x

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

xi

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 Childrens
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 Michigans 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
childs 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,
Michigans 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 states 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 MCIs 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

charged with maintaining childrens 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 actions
and 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 convinced
we have trampled one of lifes most important relationships: that of grandparents and
grandchildren.
The rationale for this decision and that in the earlier placement case is readily
distilled: Leave the children where the system first hastily placed and left them the
longest, then justify it all by simply completing the illogical circle by righteously
declaring that theyre best off where theyve now been the longest! This contrived,
bootstrapping analysis by the Supreme Court, which reversed this panels original
decision and which now essentially compels the instant decision of this Court to justify
the resolution of these cases, is at best embarrassing, and at worst a sad, shameful
example of a process and a system that failed this family. [In re COH, unpublished
opinion 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 doesnt 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 childs only placement, that doesnt always happen. See Childrens Foster Care Manual
(FOM), FOM 722-03, Placement Selection and Standards, at 1
2

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 childs
relative receives special consideration and preference. MCL 722.954a(5).
Seven years have passed since these four children were taken into the States custody.
During these seven years, the agencies involved not only trampled on Ms. Scribners 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 MCIs
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

ignored legislative mandates, knowingly used inaccurate and incomplete information to reach its
decision, an ultimately violated Ms. Scribners 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 preference
to Ms. Scribner each time an agency decided placement and replacement for her four
grandchildren.
2. The child placing agency was not an unbiased, disinterested decision maker because
it had a financial stake in the outcome of the decision it made; as a result, the
agencys assessment of Ms. Scribner was incomplete and inaccurate.
3. The MCIs finding that the childrens best interests were served by withholding
consent to adopt from their grandmother was based on the agencies refusals to allow
her to continue a relationship with them.
4. The agencies compared Ms. Scribners relationship with her grandchildren to the
foster parents relationship to the children when the agencies should have used the
Adoption Codes best interest factors that evaluate an adoption petitioner without
comparison to another.
Granting Ms. Scribners 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. Scribners 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
mothers care and placed with strangers. Ms. Scribner petitioned for guardianship of her

grandchildren, and the Muskegon Circuit Court denied her request. Ms. Scribner appealed the
Circuit Courts guardianship decision.
After the Muskegon Circuit Court denied Ms. Scribners 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 MCIs 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.
Scribners 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 Courts adoption decision. The Court of Appeals
consolidated the adoption appeal with the guardianship appeal, reversed the Muskegon Circuit
Courts order denying Ms. Scribners 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).

On remand, the Court of Appeals affirmed the Circuit Courts determination that the
Michigan Childrens 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 Scribners fight to ensure that her grandchildren would stay
connected to their siblings, their extended family, and their network of
significant adults.
Since 2008, Lori Scribner has struggled with DHS, Holy Cross Childrens Services (a

private foster care agency), Bethany Christian Services (a private adoption agency), and the
Michigan Childrens 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. Petitioners Exhibit
4, Amended Consent Decision at 2. Ms. Scribners son is the biological father of three of the
children, Esdeanna, Kylea, and Carmen. Id. Even though Ms. Scribner is not Jordans
biological grandmother, he has always been her grandchild in her heart. Tr. Vol. III, 5/3/2012, at

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 childrens 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 childrens
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 mothers
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 Arguments 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 familys goal was reunification, DHS would not place the
children with her at that time. Id. But DHS would keep her in mind. Id.

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 Childrens Services. Id. This is the
foster family to whom the MCI Superintendent granted consent to adopt Ms. Scribners
grandchildren. Petitioners 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 wasnt 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

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. Scribners grandchildren to have contact with any of their
relatives. Id. at 10.
Meanwhile, Ms. Scribner, knowing that the courts plan was still to reunify their mother
with her four children, invited them all to come and live with her in Florida. The childrens
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 mothers 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

was preordained to fail. Id. Moreover, Ms. Scribner believed that the childrens mother would
not have to lose her parental rights if Ms. Scribner was appointed the childrens guardian. Id.
Ms. Scribner filed her guardianship petition on June 2, 2010. Id. at 169. The court
terminated the mothers 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. Scribners 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. Scribners petition for
guardianship.
After the family court denied Ms. Scribners guardianship petition, it committed Ms.
Scribners grandchildren to the Michigan Childrens 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. Petitioners 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.

As an aside, as the childrens Lawyer Guardian Ad Litem explained it, apparently in Muskegon
County the parent consents to rights being terminated by pleading no contest to the allegations in
the termination petition in exchange for that termination not being used to justify taking a new
infant 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 case
under the adoption code so that the parent can surrender her rights to her child. Id. at 53. It
seems that this process circumvents many requirements under the adoption code, among them
that a parent must receive counseling before surrendering her rights to her children. See e.g.,
MCL 710.28 and 710.29.
1

10

Scribners 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. Scribners paperwork to arrive before she made her
recommendation that Ms. Scribners not be allowed to adopt her grandchildren. Id. at 91. At an
MCI employees 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. Scribners
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 shed received them. Id. at 109-11.
Because Ms. Stray did not have Ms. Scribners 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.

11

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 . . . . Petitioners Hearing Exhibit 11, Bethanys 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 Bethanys 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. Petitioners 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 grandchildrens safety. Tr. Vol. I, 2/10/12 at 32. He never spoke
to Ms. Scribner because he didnt think it was necessary. Id. at 34. The MCI Superintendent
issued his Amended Consent to Adoption Decision on December 2, 2011. Petitioners Exhibit 4.
ARGUMENT
I.

This Court should grant leave to appeal because bench and bar need this Courts
explanation and application of arbitrary and capricious when the Michigan
Childrens Institute withholds its consent to adopt a state ward.
This Court reviews the family courts 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

12

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 Childrens
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 applicants 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
Superintendents 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,

13

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 adjustment
with reference to principles, circumstances, or significance . . . decisive but
unreasoned. Goolsby v Detroit, 419 Mich 651, 678; 358 NW2d 856 (1984) . . . The
generally 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 the
English 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 Superintendents withholding consent is arbitrary and capricious.
The arbitrariness standard is difficult to define. However, we think a decision to be
nonarbitrary must be (1) based upon relevant, permissible . . . factors which excludes the
possibility of it being based upon motivations such as personal animosity or political
favoritism; (2) a rational result of the consideration of those factors; and (3) inclusive of a
fair and impartial consideration of the interests of [the applicant]. [Id. at 667 n 4, quoting
Tedford 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

14

669, quoting Milstead v Intl 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 Courts 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 Blacks 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 rather
than 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 of
law. 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 Superintendents 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, for
example, they reached the decisions by violating a constitution, statute, or policy, see In
re Rood, 483 Mich 73, 93, 125; 763 NW2d 587 (2009) (recognizing that following the
law and DHS policies are important components of protecting a parents due process
interest);
2. stated reasons that are invalid in light of the evidence, because the decision maker (or
those 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, issued
February 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 uncritical
reliance on DHS reports does not fulfill his statutory duty to make these decisions as the
guardian of wards of the state. MCL 400.203(1).); or
15

4. are motivated by favoritism, personal animosity, or pecuniary interests and therefore do

not include a fair and impartial consideration of the adoption applicant, see Goolsby, 419
Mich at 667 n 4.
Neither of the published Michigan Court of Appeals decisions have considered these
other definitions for arbitrary and capricious. Nor did the Court of Appeals in its decision in this
case.
As stated earlier, a Section 45 hearing is the only way an adoption petitioner can
challenge the Superintendents withholding of consent. The Superintendent or a person he
designates is the only person in the entire state of Michigan who can consent to adoption of a
state ward when two people ask to adopt the same children. The DHS cannot review the MCI
decision to withhold consent before the MCI releases the decision. MCL 400.209(3).
While the Legislature may have set a high burden of proof, surely it did not mean to
foreclose the only avenue of review it had granted. The MCI must state only one good reason to
prevent the court from changing the result of the decision. This Court should grant leave to
appeal to guide bench and bar about the other ways a decision can be arbitrary and capricious,
and return meaningful review to the MCI decision.
II.

The MCI Superintendents decision to withhold consent to adopt is arbitrary and

capricious when the process it follows to reach it violates statutes, DHS policies, or
the Michigan Constitution.
A.

The courts focus should be on the process followed to make the decision.

In the examples of arbitrary and capricious stated above, the courts have focused on the
process the decision maker used to reach the end result. Yet the courts focus on one good
reason to withhold consent relies basically on the substance. If the process used to reach that
substance is flawed, like the ubiquitous legal syllogism, the substance will also be flawed. So if
the decision maker does not have all of the information needed for a decision, or if the decision
16

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 statutes
language.

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

MCL 710.43. At that time, the Michigan Childrens 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 Childrens 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
childs best interests. Id.
It wasnt 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) of
this chapter has not executed a consent within a reasonable period of time, a person who
has filed a petition to adopt may file a motion with the court to determine whether the
withholding of consent is arbitrary and capricious.
(2) Finding of arbitrariness, termination of rights of representative or court. If at a
hearing, the court finds clear and convincing evidence that a consent required under
section 43(1)(b) to (d) of this chapter is being arbitrarily and capriciously withheld, the
court may terminate the rights of that representative or court, and enter a final order of
adoption 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
childrens institute, the petitioner waited for the MCI Superintendent to grant consent. If that
17

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 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. (emphasis added)
....
(5) [now (7)] Unless the petitioner establishes by clear and convincing evidence that the
decision to withhold consent was arbitrary and capricious, the court shall deny the
motion 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 makers 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.

18

Families dont 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 Courts 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
childs only placement, that doesnt always happen, See Childrens Foster Care Manual (FOM),

19

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 give
special consideration and preference to a child's relative or relatives who are willing to
care 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 Codes 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, 503504, 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
available at http://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/72203.pdf#pagemode=bookmarks
2

20

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 outof-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 relative
or relatives who are willing to care 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.
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 childs parents 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 DHSs 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 Childrens Foster Care Manual, 722-03B, Relative Engagement and
Placement, at 2, http://www.mfia.state.mi.us/OLMWEB/EX/FO/Public/FOM/72203B.pdf#pagemode=bookmarks (last accessed March 8, 2015), requires:
The relative search must begin prior to the child being removed from the home and
continues until legal permanency for the child is achieved. The assigned caseworker
must pursue the identification and notification of relatives and document the initial and
ongoing efforts in each investigation report/case service plan. Note: The CPS caseworker
must, at a minimum, ask the parents and age-appropriate children to identify the paternal
and maternal relatives. (emphasis in original)

21

The Manual continues:

Ongoing Search and Notification: Throughout the case, the assigned caseworker must
continue to identify, notify, and engage relatives until legal permanency for the child is
achieved. The ongoing efforts must be documented in each case service plan. [Id. at 3.]
And if the childs 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.
Childrens 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 states 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).

22

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 childrens grandmother. Her very last
opportunity for that special consideration and preference was with the Department of Human
Servicess MCIs 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. Scribners 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
23

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. Scribners 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 familys 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.
Petitioners 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. Scribners 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. Scribners Application to Adopt and the answers
to the relative questionnaire, she did not update her assessment, she did not send the documents
In the Court of Appeals decision here on remand, it mentions a revised trial court opinion. The
trial court never withdrew an opinion and order or issued a new one. The MCI Superintendent
did, however, withdraw an earlier decision in which he withheld consent to adopt her
grandchildren from Ms. Scribner.
3

24

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 shed 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 courts
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
grandmothers home in Florida. Auffrey Evaluation at 11, Appendix at 32. He also did not see
that in Dr. Auffreys opinion the children had been subjected to indoctrination and alienation in
regard to the various parent figures in their lives. Id. at 10. The Superintendents 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 childrens 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 childrens special needs were, he answered, stability, structure, consistency, to know whats
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

25

that she had to have taken care of them 24 hours a day, 7 days a week, 365 days a year, id. at 7576, 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 childs 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. Shed 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.

26

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 didnt know any of this. The adoption worker at Bethany had given
him only her incomplete assessment, Petitioners Hearing Exhibit 2, and the case conference
summary, Petitioners 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 didnt 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. Rossmans
telling the adoption worker that MCI didnt 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

27

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 agencys 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 agencys 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 states 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 workers acceptance of an applicants story without
further demand for proof might signal agency favoritism, as would reporting physical
punishment to an agencys licensing arm but not to the States 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

28

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 arbitrary and capricious standard. This court should grant leave to appeal and
reverse.
E.

A decision that relies on reports from a child placing agency that has a
pecuniary interest in the outcome of the MCIs decision violates the United
States and Michigans Constitutions guarantee of due process and is arbitrary
and capricious.

Recommendations that are made by supervising agencies who have a pecuniary interest
in their outcomes do not result from a fair and impartial consideration of an adoption applicant
and the decisions made based on those recommendations are arbitrary and capricious. See
Goolsby, 419 Mich at 667 n 4. And even if the recommender or decision maker does not for one
second think about the money the agency stands to earn from placing four children for adoption,
bias must be imputed to the decision maker.
Both the United States and Michigan Constitutions prevent state actors from depriving a
person of life, liberty, or property without due process of law. US Const, Ams V & XIV; Const
1963, art 1, 17; Hinky Dinky Supermarket, Inc v. Dep't of Community Health, 261 Mich App
604, 605-606; 683 NW2d 759 (2004). The due process obligation applies not only to traditional
courts, but also to administrative agencies. Due process is not necessarily judicial process.
Administrative process, which has been regarded as necessary in government, and sanctioned by
29

long usage, is as much due process as any other. Automotive Service Councils of Michigan v
Secretary of State, 82 Mich App 574, 589; 267 NW2d 698, 706 (1978), quoting Attorney
General ex rel Rich v Jochim, 99 Mich 358, 371; 58 NW 611, 615 (1894). Anyone appearing
before an agency decision maker is entitled to procedural due process. [T]he agency cannot act
arbitrarily and must provide adequate procedural due process to the parties involved. City of
Livonia v Department of Social Services, 423 Mich 466, 505; 378 NW2d 402, 420 (1985).
At its very core, procedural due process means fundamental fairness. Reed v Reed, 265
Mich App 131, 159; 693 NW2d 825 (2005). And to be fundamentally fair, proceedings must be
in a fair tribunal. Morris v Metriyakool, 418 Mich 423, 431-32; 344 NW2d 736, 738-39
(1984), citing In re Murchison, 349 US 133, 136; 75 S Ct 623, 625; 99 LEd 942 (1955); Withrow
v Larkin, 421 US 35, 46; 95 SCt 1456, 1464; 43 L.Ed.2d 712 (1975). A tribunal is not fair if an
impartial decision maker does not preside over it. Crampton v Dep't of State, 395 Mich 347,
351; 235 NW2d 352 (1975).
Thus, one of the hallmarks of the procedural due process right is the right to an impartial,
unbiased decision maker. Palo Group Foster Care, Inc v DSS, 228 Mich App 140, 151; 577
NW2d 200 (1998). That impartial decision maker, moreover, need not be a judicial officer, an
administrative law judge, or an official agency tribunal. Id. Even an individual employee who is
charged with making decisions must not be biased because that bias violates procedural due
process. Id. (analyzed due process rights where an adult foster care licensing worker and that
workers supervisor were allegedly actually biased against the license applicant.)
Furthermore, a litigant need not show actual biasfavoritism or personal animosityto
show that an agencys decision maker was biased. The bias will be imputed to the agency if it
has a financial interest in the decisions outcome.

30

The United States Supreme Court has disqualified judges and decision makers without a
showing of actual bias in situations where experience teaches that the probability of
actual bias on the part of the judge or decision maker is too high to be constitutionally
tolerable.' Among the situations identified by the Court as presenting that risk are where
the judge or decision maker
(1) has a pecuniary interest in the outcome . . . . [Crampton v Michigan Dept. of State,
395 Mich 347, 351; 235 NW2d 352, 354 (1975) (citations omitted). See also City of
Livonia, supra at 508-09.]
Consequently, the agency need not have actually considered its financial position when it
made its decision. The rule strictly requires that there be no appearance that such things could
happen. Schlossberg v State Bar Grievance Bd, 388 Mich 389, 396-97; 200 NW2d 219, 221-22
(1972).
All adoptions in Michigan go through private agencies. Due to changes at the state
level, Michigan Department of Human Services offices no longer provide adoption services.
Therefore, you will need to identify a private agency that can provide the adoption services you
require. Adopt US Kids.org, Michigan Foster Care and Adoption Guidelines, available at
http://www.adoptuskids.org/for-professionals/state-adoption-and-foster-careinformation/michigan, (last visited March 8, 2015). As Cara Stray, the child placing agencys
adoption worker, testified, speed and volume is how the private adoption agencies make their
money. Tr. Vol. III, 5/3/12 at 114. I know that speed, volume is the best way to make money,
getting cases done as soon as possible. Tr. Vol. III at 114. Its on a volume basis. The faster
you can turn cases over the more it would [get paid]. Id. at 115. [W]hen you finish a case
sooner, you get a higher reimbursement rate than if the case takes longer. So yes, that would be
an incentive, yes. Id.
This is because the contract between DHS and Bethany Christian Services (or any private
adoption agency in Michigan) provides that if Bethany places a child for adoption with a family

31

in Michigan within 150 days of when Bethany received the case from DHS, it will receive the
maximum incentive level payment of $11,500 per child. Contract at 14 Appendix at 58. See
also, Tr. Vol. IV, 7/25/12 at 78 (testimony of Donna Abbot, Director of Bethanys Grand Rapids
branch).
The contract also contains a different payment if the agency places a child for adoption
with a family in another state, for example Florida where Ms. Scribner lives, and that child was
not already with that out-of-state family: Contract at 9 Appendix at 53. That rate is $3500 per
child, no matter how long it takes to place the child with that out-of-state family. Id. Here, four
children were available for adoption, and when the adoption agency received the case from DHS,
those children were already living with the family who was eventually given consent to adopt
them. Had Ms. Scribner not applied to adopt her grandchildren, the agency would have placed
them for adoption within those 150 days of when it received the case. As a result, when all was
said and done, the agency would have received $46,000. Had the agency recommended Ms.
Scribner, an out of state relative with whom the children had not been placed for foster care, it
would have received only $14,000 total, a difference of $32,000.
The Family Court and the Court of Appeals refused to impute bias based on a financial
interest to the agency that provided the incomplete and inaccurate information in its perfunctory
Preliminary Family Assessment on which the Superintendent relied when he decided to
withhold consent from Ms. Scribner. The agencys director had testified that the employees
dont think about the financial incentives when assessing candidates as adoptive parents. The
financial incentive had obviously been talked about at some point during the adoption workers
employment at the agency. She knew that the faster she placed children for adoption, the more
money the agency would get. Refusing to impute bias was legal error because neither court

32

abided by the mandate that bias be imputed even if the decision maker did not think about the
financial incentive.
III.

A decision that results from a comparison of the foster parents to the relative is
arbitrary and capricious because unless the relative has been allowed to maintain
contact with the children, the relatives will always fall short in the comparison.
In In re COH, this Court held that a trial court had the discretion to use the child custody

best interest factors when deciding whether a guardianship is in the childs best interests because
the guardianship statute involved, MCL 712A.19c(2), did not identify which factors to use to
determine a childs best interests. Unlike the guardianship decision at issue in In re COH, this
decision was controlled by the Michigan Adoption Code, MCL 710.21, et. seq., which does
contain specific factors the court should use to determine what is in a childs best interests. MCL
710.22(g)(i-x).
The most important difference between the Adoption Codes best interest factors and
those used in the custody act is, as Ms. Scribner argued in the In re COH guardianship appeal,
that the custody best interest factors require the court to compare one person seeking custody
against the other. MCL 722.23. Under the Adoption Code, the best interest factors contemplate
looking at only one person the adoption petitioner to see how she satisfies them.
Comparing the relative who does not have custody does not consider the preference to be
given to relatives in making placement decisions, and it ignores that the Petition to Adopt and the
Motion under MCL 710.45 are filed under the Adoption Code. The Adoption Code does have its
own best interest factors, and not one of them mentions anything about comparing an adoption
petitioner to a foster parent with physicial custody. Yet that is what the Superintendent did, and,
not surprisingly, he found Ms. Scribner lacking.

33

Using the custody best interest factors also does not consider that the agency itself is
responsible for creating the reason it then uses to withhold consent from a relative. An agency
may not intentionally create the grounds it then relies on to take negative or damaging action
against a person. In re B and J, 279 Mich App 12; 756 NW2d 234 (2008). For example, DHS
could not remove children from illegal immigrant parents, then report the parents to Immigration
and Customs Enforcement for deportation, and then attempt to terminate the parents rights to
their children because the parents could not provide proper care and custody for them. Id. at 19.
A state may not, consistent with due process of law, create the conditions that will strip the
individual of an interest protected under the due process clause. Id., quoting In re Valerie D,
223 Conn 492, 534; 613 A2d 748 (1992).
In this instance, both the process used to reach the decision to withhold consent and the
reasons for that decision are arbitrary and capricious. First, rather than allow the children and
their mother to move to Florida with Ms. Scribner when their mother wanted to, the agencies
placed these children in foster care with their current foster family. The agencies disrupted Ms.
Scribners relationship with her grandchildren when they allowed only limited, supervised
contact with Ms. Scribner. Then, the agencies relied on that limited contact to report to the MCI
that Ms. Scribner had only a limited relationship with her grandchildren without a significant
psychological bond. The MCI Superintendent relied, without investigating further, on the
relationship that the children have with their foster parents and agency-created alleged lack of a
relationship they have with Ms. Scribner to deny Ms. Scribners request to adopt them. This
reason for the decision is not a good reason because the agency destroyed the bond and then
used that to violate Ms. Scribners statutory right to special consideration and preference to
placement with her.

34

The family court dismissed this Courts opinion in In re B & J, and its reliance on
Valerie D, as standing only for the proposition that the state could not create the conditions that it
would later use to terminate a parents rights. Opinion Re; Consent to Adopt at 7. Because it
was not reviewing the termination of the childrens parents rights, the decision did not apply.
The Court of Appeals did not address this issue at all.
The family court also cited a policy of placing children with their foster parents if they
have been with them for over two years a policy that is no longer in force and hasnt been since
at least 2009. This author could find nothing in the pre-2009 or post-2009 adoption or foster care
policy manuals that stated that policy. Then, relying on information to which Ms. Scriber was
denied access as discovery, the family courts opinion states that the Superintendent could not
have been biased because he relied in part on the CASAs opinions, and CASA workers are
supposed to be unbiased. Opinion Re: Consent to Adopt at 4.

The family court misstated

and misinterpreted the law. This Court should reverse its decision.
This Court should grant leave to appeal to confirm that whether process-based or
substance-based, an agency cannot set the relative who does not have custody of the children up
to fail by destroying the relatives relationship with the children and then using the lack of a
relationship to recommend withholding consent to adopt, or recommend granting consent to
adopt based on the bond formed by the agencys allowing the foster family to prevent contact
with a grandmother. This Court should reverse the trial courts decision and order it to enter an
Order of Adoption naming Lori Scribner as the childrens adoptive parent.
IV.

A process that violates the Michigan Constitutions Fair and Just Treatment clause
results in an arbitrary and capricious decision to withhold consent.
Michigans Constitution provides: The right of all individuals . . . to fair and just

treatment in the course of . . . executive investigations and hearings shall not be infringed.
35

Const 1963, art 1, 17. An investigation occurs when an agency does a searching inquiry for
ascertaining facts [or] conduct[s] a detailed or careful examination of the events surrounding [an
incident or incidents]. Carmacks Collision, Inc v City of Detroit, 262 Mich App 207, 211; 684
NW2d 910, 913 (2004), citing Messenger v Dep't of Consumer & Industry Servs, 238 Mich App
524, 534-535; 606 N.W.2d 38 (1999). The executive in this constitutional guarantee refers to the
executive branch of government. Id. at 9, n 5. A state agency is generally considered a part of
the executive branch of government. See Straus v Governor, 230 Mich App 222, 231; 583
NW2d 520 (1998), aff'd 459 Mich 526 (1999). Id.
If a private entity, as the Superintendent may argue that the adoption agency is,
investigates or holds a hearing, the entitys conduct must be fairly attributable to the state,
Moore v Detroit Entertainment, LLC, 279 Mich App 195, 203; 755 N.W.2d 686 (2008) . . . .
Dept of Community Health v Rahe, unpublished opinion per curiam of the Court of Appeals,
issued February 12, 2009 (Docket No. 280763) slip op at 4. Here, the adoption agencys conduct
can be attributed to the state because DHS, a state agency, has delegated its statutory function of
providing adoption services to it. See DHS/BCS contract at 2-9. In addition, under both the
contract and DHS policies, private agencies must follow all of DHSs policies and state law
when it investigates an applicant for adoption. ADM 230, Adoption Services By A Contracted
Adoption Agency,
http://www.mfia.state.mi.us/OLMWEB/EX/AD/Public/ADM/0230.pdf#pagemode=bookmarks
(last accessed March 8, 2015).
The right to fair and just treatment is not the same as the Michigan Constitutions right to
due process. Jo-Dan, Ltd v Detroit Bd of Educ, unpublished opinion per curiam of the Court of
Appeals, issued July 14, 2000 (Docket No. 201406), slip op at 15. While the courts and the other

36

branches of government may ultimately find that some of the procedures and other hallmarks of
due process would be useful to enforce the right to fair and just treatment, the subtleties of the
due process doctrine do not define or expand the fair and just treatment clause because they are
separate rights. Id. slip op at 14-15.
Determining what is fair and what is just is no easy task, as the court in Jo-Dan Ltd
recognized. Id. slip op at 15-16. It summarized the purpose of the clause: [T]he fair and just
treatment clause was designed to encourage the government to police itself in legislative and
executive investigations and hearings. Id. slip op at 16. And if the government does not enact
statutes or policies to police itself, the 1963 Constitution still provides the minimum standard
for conduct; simply put, the failure of the Legislature, executive branch, or courts to define what
constitutes fair and just treatment and to put safeguards in place does not diminish the right to
that treatment. Id. As a result, to determine if the agency has treated someone unfairly or
unjustly in an investigation or in a hearing, the most logical avenue of inquiry is to focus first
on whether the allegedly offending governmental unit disobeyed any rules, laws, or other
guidelines that have the effect of enforcing fair and just treatment. Id.
If no laws rules or other guidelines exist, a court must determine if the agency employee
treated the individual with courtesy and fairness, that [the individuals] personal reputation
should not be impugned . . . . Id. at 14, quoting 1 Official Record, Constitutional Convention
1961, p 549 (emphasis in original). The court should look to see if the employees conduct
during the investigation would not be ordinary ... decent human conduct . . . . Id. slip op at
16, quoting 1 Official Record, Constitutional Convention 1961, p 550.
Here, the following conduct violated the Fair and Just Treatment Clause:
1. both the adoption worker and the MCI violated MCL 722.954a(5), the relative preference
statute;
37

2. both the adoption agency and the MCI Superintendent unfairly and unjustly engaged in
only a limited investigation of Ms. Scribner, her circumstances, and her relationship with
her grandchildren;
3. the Superintendent withheld consent to adopt her four grandchildren knowing that the
information he had about Ms. Scribner was incomplete; and
4. neither the Superintendent nor the adoption worker showed Ms. Scribner any courtesy or
ordinary, decent human conduct neither of them ever contacted Ms. Scribner to get the
information they knew they lacked.
The MCI Superintendent withheld consent to adopt based on the agencys assessment of
Ms. Scribners suitability to adopt her grandchildren. During the assessment process, the agency
violated the Fair and Just Treatment Clause. The agency treated Ms. Scribner and her
grandchildren so horribly during the entire process that the workers ignored their duties to the
children to support their relationships with relatives. Those relationships could have been
maintained by helping Ms. Scribner provide all of the information the agency would require had
it wanted to conduct a fair investigation. The MCI, in refusing to go further than just the agency
reports, acted arbitrarily and capriciously in withholding consent from Ms. Scribner.
The Family Court made light of this argument with its sarcastic description of the
agencies treatment of Ms. Scribner, essentially saying that just because the MCI Superintendent
didnt return her phone calls, that didnt mean that he had treated her unfairly and unjustly. And
the Court of Appeals relied on its interpretation of the relative preference statute to say that the
agencies did not violate the statute, therefore they did not treat Ms. Scribner unfairly or injustly.
As shown here, however, the agencies violated the Fair and Just Treatment Clause by
doing more than failing to comply with the relative preference statute. And those violations
resulted in the information the Superintendent relied on in reaching his decision. That process
was arbitrary and capricious, and the lower courts erred when they did not recognize that.

38

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 courts entire file in the abuse or
neglect case, the MCI Superintendents 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.
No published decision of the Court of Appeals and no decision of this Court has

acknowledged that discovery is available in an adoption case. This Court should grant leave to
appeal to affirm that portion of the Court of Appeals decision that discovery is available, but
reverse that courts decision that the Family Court did not abuse its discretion here.
A.

Standard of Review

This Court reviews a trial courts decision to grant or deny discovery for an abuse of
discretion. In re Pott, 234 Mich App 369, 373; 593 NW2d 685, 687-88 (1999). An abuse of
discretion occurs when the trial courts ruling falls outside a range of reasonable and principled
outcomes. Saffian v Simmons, 477 Mich 8, 12, 727 NW2d 132 (2007). But while [a] trial
court's decision regarding discovery is reviewed for abuse of discretion[,] People v
Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994)[, i]nterpretation of a court rule is treated
like interpretation of a statute, it is a question of law that is reviewed de novo. CAM Const v
Lake Edgewood Condominium Ass'n, 465 Mich 549, 553; 640 NW2d 256 (2002). People v
Phillips, 468 Mich 583, 587; 663 NW2d 463 (2003).
If this Court peremptorily reverses the decisions of the Court of Appeals and the Family
Court and orders that Ms. Scribner receive consent to adopt her grandchildren, then this issue
becomes moot.
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

39

to know before it could determine if the Superintendents decision was arbitrary

and capricious.
Because discovery is available in adoption proceedings, and because Ms. Scribners
former attorney had sent her new attorney only some of the material in Ms. Scribners file, on
January 25 and January 26, 2012, Ms. Scribners new attorney contacted the Assistant Attorney
General in this matter to request discovery. Petitioners Motion to Compel Discovery at 8,
Appendix at 72. The Assistant Attorney General stated that he did not believe that Ms. Scribner
was entitled to any discovery, and he refused to provide anything. Id.
On January 27, 2012, Ms. Scribners new attorney filed a Motion to Compel Discovery.
In it, counsel asked for everything that the MCI Superintendent had in his file, whether paper or
electronic, and everything that the MCI Superintendent had access to when he made his decision,
including all of the agencies files (DHS, the foster care agency, and the adoption agency) and
the family courts entire abuse and neglect file. Id. at 16-17, pgs 3-7.
The family court granted only part of Ms. Scribners request. It allowed Ms. Scribners
attorney to inspect, but not copy the MCI Superintendents file. Order entered 2/6/2012 at 1.
It did not allow Ms. Scribners attorney access to the agencies files or to the courts abuse and
neglect files because this entire discovery request is well beyond the scope of what this hearing
is about. This hearing is about a determination, as I said, as to whether or not the decision by the
superintendent was arbitrary and capricious. And for that reason the discovery in this matter will
be limited to an inspection, and Ill authorize that inspection by Mr. Nichol, of the information
that the superintendent relied upon in arriving at his decision. Tr. 2/1/12 at 19.
Although the court recognized that to determine if the Superintendent acted arbitrarily
and capriciously would require it to look at the information that the Superintendents conclusions
were based on, Tr. 2/1/12 at 19, the court did not accurately apply the legal principles controlling
40

the arbitrary and capricious determination. As a result, the court not only abused its discretion
when it denied Ms. Scribners attorney access to all of the discovery he had requested, it also
committed legal error by not recognizing that the material in the agencies files and in the courts
files would show that the Superintendent did not consider the childrens individual circumstances
all of their circumstances before he made his decision.
The extremely limited discovery that the court allowed Ms. Scribner to have did anything
but further the ends of justice. Pott, supra at 376. Because Ms. Scribner did not have all of
the information she requested, neither did the family court.
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 Superintendents decision and thus it was not
arbitrary and capricious.

At different points throughout the hearing, the childrens Lawyer Guardian Ad Litem,
who had been present for almost all of the hearings in the abuse/neglect case, and who had
access to all of the childrens files at the agencies and at the court, stated that as he understood it,
the family court would be taking judicial notice of the earlier proceedings in this case, in all of
which The Hon. William C. Marietti had been the judge. Tr. Vol. II, 5/2/12 at 60, Tr. Vol. IV,
7/25/12 at 146. While nothing in the transcripts shows the court stating that it would be taking
judicial notice of the earlier proceedings, one of Ms. Scribners attorneys did remind the court
that she and co-counsel had not been involved in the case since its inception and that, although
they had asked for all of the files, the court had denied that motion. Tr. Vol. IV, 7/25/12 at 157.
Nevertheless, and to make matters worse, the trial court relied on documents in the
courts and agencies files, to which Ms. Scribners attorney was not granted access, when it held
that there is an abundance of good reasons to support the superintendents decision . . . .
Opinion Re: Denial of Consent to Adopt at 2. First, the trial court cited an opinion of Ruth
41

Andrus, the childrens therapist. Id. at 2. Ms. Andrus did not testify during the Section 45
hearing, and her reports or other notes were not entered as evidence during the Section 45
hearing. The only expert testimony regarding the childrens mental health or potential trauma
from leaving the foster family was provided by Dr. Joseph Auffrey, who testified that the
children would not suffer trauma by moving to live with Grandma Lori. See, e.g., Tr. Vol. I,
2/10/12 at 24; see also Petitioners Exhibit 1, Report of Dr. Joseph Auffrey at 11. At one point,
though, the court asked the Superintendent if he had reviewed any reports from Ruth Andrus and
had considered her opinion. Tr. Vol. I at 86. The Superintendent said yes. Id.
Second, the trial court relied on the opinions of the CASA (Court Appointed Special
Advocate) who also did not testify and whose reports also were not admitted during the hearing.
Opinion, supra at 4. The Superintendent testified that he had reviewed information from the
CASA. Tr. Vol. I at 66, 71, 73, and 91. For example, at one point the Superintendent testified
that the CASA had told him that the children woke up crying during their visit to Ms. Scribners
home in Florida but that he was never told why they did. Id. at 73. Eighteen pages later, he
repeated that the CASA never told him why the children woke up crying. Id.at 91. But a few
lines later, he testified that the CASA told him that the children woken up crying because they
wanted to return to their foster home. Id. at 91. Having access to the agencies and to the courts
files, which would have contained CASA reports, would have helped Ms. Scribners attorney test
the veracity of and possibly impeach the Superintendents statement.
The error was not harmless; it prejudiced Ms. Scribners ability to meet her burden of
proving by clear and convincing evidence that in withholding consent to adopt her grandchildren,
the Superintendent had acted arbitrarily and capriciously.

42

This Court should grant leave to appeal to guide bench and bar about the extent of
permissible discovery when an adoption petitioner is trying to meet her heavy burden in a
Section 45 hearing. At the very least, this Court should reverse the decision of the family court
denying Ms. Scribner access to the agencies, the MCIs, and the Courts entire files because
failure to do so would be inconsistent with substantial justice. MCR 2.613(A). This Court
should vacate the decisions of the Court of Appeals and the Family Court and remand for a new
hearing where Ms. Scribner has full access to everything that the LGAL and the MCI
superintendent had access to. Justice demands that Ms. Scribner be able to test the veracity of
the information the agencies gave to the Superintendent about her and about her grandchildren.
Contrary to Michigans adoption philosophy, these children will be forever severed from
their extended family and network of significant adults, including Grandma Lori, if Ms.
Scribner does not have an opportunity to see exactly what information the agencies were
reporting to the MCI and what information the agencies were keeping from it. These children,
and Michigans foster children in any competing party adoption deserve nothing less.
CONCLUSION
This Court should grant Ms. Scribners Application for Leave to Appeal to address the
agencies egregious conduct in conducting their assessments and in withholding consent to adopt
her grandchildren. This case provides the right vehicle for this Court to determine if arbitrary
and capricious refers to the process used to reach the decision to withhold consent or if it refers
to the substance of the decision itself. The language of the entire MCL 710.45 leads to the
conclusion that it refers to process. But even if it refers to substance, this Court should then
determine when a reason for withholding consent is a good reason and thus the decision to
withhold consent is not arbitrary and capricious.

43

Under either interpretation, the MCI acted arbitrarily and capriciously and the MCIs
decision here was substantively arbitrary and capricious when it withheld consent to adopt her
grandchildren from Lori Scribner. And because Ms. Scribner did not have access to everything
that all of the other parties and the Family Court had access to, Ms. Scribners chances of
satisfying the heavy burden of proving substantive arbitrary and capricious diminished
considerably. She started in a pit and never got out.
REQUEST FOR RELIEF
Lori Scribner respectfully asks this Court to grant leave to appeal and reverse the
decisions of the Muskegon Circuit Court, Family Division and the Michigan Court of Appeals.
In addition, she asks this Court to order the Family Court to grant her petition to adopt her
grandchildren and order the adoption agency, Bethany Christian Services, to immediately
transfer custody of her grandchildren to her.
In the alternative, Ms. Scribner asks this Court to peremptorily reverse the lower courts
decisions and again to order the Family Court to grant her petition to adopt her grandchildren and
order the adoption agency to immediately transfer custody of her grandchildren to her.
As another alternative, if this Court determines that the Family Court should hold a new
hearing on the MCIs withholding of consent to adopt, Ms. Scribner asks that this Court order the
Family Court to grant Ms. Scribners motion for full access and copying of everything the MCI,
the agencies, the LGAL, and the court had before the hearing began, including agency reports or
correspondence that mentions Ms. Scribner in any context.
Respectfully Submitted,
/s/ Evelyn K. Calogero (P45512)
Evelyn K. Calogero, PLLC
Attorney for Adoption Petitioner/Appellant
215 N. Main St.
44

Olivet, MI 49076
269-749-9600
evelyn@olivetlaw
yer.com
Dated: March 12, 2015.

45

Page 1

STATE

OF

MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF MUSKEGON

FAMILY DIVISION
****
In the Matter of:

HON. WILLIAM C. MARIETTI

CARMEN OLIVIA HEEREN

ESDEANNA RENAE HEEREN
JORDAN RICKY GONZALEZ
KYLEA BRADON HEEREN

Case No. 11-7780-AF

11-7781-AF
11-7782-AF
11-7783-AF
--~/
H. DANIEL BEATON, JR. (P43336)
GERALDINE A. BROWN (P67601)
Attorneys for Respondents
William Johnson, MCI Superintendent
and Dept. of Human Services

SCOTT M. NICHOL (P75209)

EVELYN K. CALOGERO (P45512)
Attorneys for Adoption Petitioner
Lori Scribner
CHAD D. CATALINO (P64377)
Lawyer Guardian ad Litem
****

OPINION RE: DENIAL OF CONSENT TO ADOPTION

Following a denial by the Mel superintendent of consent to adoption by Lori
Scribner, she filed a petition for a review of the decision pursuant to MCL 710.45.
alleges that the superintendent's

She

denial was arbitrary and capricious.

The Court convened a hearing which extended over several days and
included an abundance

of testimony, exhibits and arguments.

During this time, the

superintendent consented to adoption of the four children involved herein by their foster
parents.
The Petitioner must establish that the superintendent

acted arbitrarily and

capriciously in making the decision to withhold consent. In re Cotton, 208 Mich App 180;
526 NW2d 601 (1994).

Arbitrary means "[W]ithout determining principle ....

Fixed or

arrived at through an exercise of will or by caprice, without consideration or adjustment with

Page 2

reference to principles, circumstances or significance, ... decisive or unreasoned." Bundo

v Walled Lake, 395 Mich 679,703, n17; 238 NW2d 154 (1976). Capricious means "[A]pt
to change suddenly; freakish; whimsical; humorsome."

Id.

The burden of proof is clear and convincing evidence. MCL 710.45(5). This
has been defined as evidence that produces a "[F]irm belief or conviction as to the truth
of the allegations sought to be established, eVjidenCe so clear, direct and weighty and
convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of
the truth of the precise fasts in issue." Kefgen

y Davidson,

241 Mich App 611, 625; 617

NW2d 351 (2000).

The focus of the Court's attention is on the basis for the denial.

"It is the

absence of any good reason to withhold consent ... that indicates that the decision maker
has acted arbitrarily and capriciously."

(emphasis supplied"

In re Keast, 278 Mich App

415, 426 n4; 750 NW2d 643 (2008).

In this case not only is there "any" good reason, there is an abundance of
good reasons to support the superintendent's

decision, to-wit:

1 the opinion of Ruth

Andrus, the children's longtime counselor, that the children would suffer emotional trauma
if removed from the foster home and placed with the Petitioner': 2 the significant

1 The Court recognizes that Dr. Auffrey performed psychological evaluations, met with
the children following their parenting times with the Petitioner and offered the opinion that any
emotional impact from placement with the grandmother would be ephemeral. However, the
superintendent also heard that testimony and persisted in his opinion that the consent should
be denied. See, In re Keast, 278 Mich App 415; 750 NW2d 643 (2008). Certainly, the
significantly greater length of time that Ms. Andrus spent with counseling these children would
justify the superintendent in giving greater weight to her opinion. In addition, it should also be
noted that Dr. Auffrey clarified his opinion by stating he was not recommending that the children
be removed from their existing placement because it was a good, stable environment where
they would do well if they remained.

Page 3

improvement in the behavior of the children while in the care of the foster parents; 3 the
expressed preference of the children to multiple sources to remain with the foster parents":
and, 4 the performance

in school while in the foster home in contrast with previous

achievement.
There is nothing about the superintendent's decision that could be described
as unreasoned, freakish or whimsical. Anyone of those factors would remove the denial
of consent from the classification of arbitrary anjd capricious.
Nevertheless, the Petitioner would have the Court overrule the denial of
consent because the process by which the superintendent arrived at his decision violated
her rights to due process and fair and just treatment.

US Const, AMS V & XIV; Const

1963, art 1 sec 17. She alleges that the adoption agency and superintendent were biased,
he violated DHS policy and the law in considering the preference of the children, and
treated her unfairly, unjustly and discourteously

in limiting his investigation

of her

circumstances without having a telephone conversation with her about her petition.
We have a statute that provides for the procedure to be followed when there
are competing adoption petitions following a termination of parental rights. MCL 710.45.
That statute was complied with in this case.
The Petitioner submitted proof that the adoption agency will receive a fee for
consummating the adoption with the foster parents that exceeds what it would receive if

2The Petitioner notes that the DHS Adoption Services Manual states that the
superintendent may consider the preference of an adoptee who is 14 or older. The use of the
term "may" is precatory. There is no prohibition from considering the preference of a younger
child and, indeed, that would seem to be an important factor to consider in this case given the
numerous times some of these children have expressed their preference to remain where they
are.

Page 4

the children were placed with her.

adoption agency's office director.

This point was addressed in the testimony of the

She confirmed that the remuneration is higher for an

adoption by foster parents because they are in-state and the Petitioner is in Florida.
However, there is a legitimate reason for this. When an out-of-state adoption is involved,
the adoption agency has substantially less work to do. The case is, essentially, transferred
to the other state's adoption workers. Obviously, less work means less pay. The director
testified that financial considerations play no role in the decision to recommend a family
for adoption.

There is not clear and convincing evidence of bias and the Court declines

to follow Petitioner's suggestion that this be imputed.

The Petitioner contends that the superintendent

failed to act impartially

because the best interest factors he cited in his decision were designed to favor the foster
parents. Initially, the Court notes that the factors cited were those that were relevant to this
case. Bias implies a decision that is unreasoned or irrational. The Court of Appeals has
recognized the existence of a policy that favors adoptive placement with an existing foster
family where children have resided for over two years. See, In re Keast, supra, at 434.
Moreover, one of the key sources of information for the decision was provided by a Court
Appointed

Special Advocate.

The CAS A worker disclosed the emotional stress the

children experienced during their visits with the Petitioner. She also advised that the foster
home provided a wonderful family life forthe children and they enjoyed being there. These
folks have no conceivable motivations or prejudices. They are appointed by the Court to
provide an objective analysis and accept their responsibilities without reward save for the
satisfaction of helping children in distress. The superintendent also took into account the
recommendation of the children's guardian ad litem that it was in the best interest of the
4

Page 5

children to remain with the foster parents. As with the CASA worker, the guardian is solely
concerned with the welfare of the children. There is not clear and convincing evidence of
bias or impartiality on the part of the superintendent.
The Petitioner claims that the decision was neither fair nor just because the
superintendent considered the preference of some of the children. She cites MCL 71 0.22g
and the Adoption Services Manual for the proposition that the superintendent is prohibited
from considering the preference of a child under 14. As noted, supra, the language of the
Manual is precatory not mandatory.

In addition, the statute provides that one of the best

interest factors for adoption is "The reasonable preference of the adoptee, if the adoptee
is 14 years of age or less and if the court considers the adoptee to be of sufficient age to
express a preference."

(emphasis supplied) MCL 71 0.22g(ix). Thus, the superintendent

did not act contrary to the statute when he considered the wishes of the children in this
case. This makes sense since no order of adoption may enter without the consent of an
adoptee over 14 years of age. MCL 71 0.43(2). Moreover, both the Manual and the statute
allow consideration of any other factor relevant to the particular adoption proceeding. The
superintendent did not act contrary to the law.
Petitioner seeks to overturn the decision to deny because the investigation
of her was limited, incomplete and she was not contacted on the telephone. She contends
that this was unfair and unjust treatment.

Clearly, there was more information that could

have been provided before the decision was made; but was that the result of fair and
unjust treatment by the superintendent?

The adoption agency solicited the Petitioner's

position on the adoption in April, 2011. Nothing was forthcoming until the middle of May
when Petitioner's attorney advised she wished to adopt.
5

She was promptly mailed an

Page 6

application. At the end of May, the agency requested additional information.

provided

until July 2.

In the meantime,

the adoption

It was not

worker forwarded

to the

superintendent what information she had acquired from the foster care file, the hearing on
Petitioner's application for guardianship and interviewing the children. She also considered
the fact that Petitioner's home had been approved in a home study for licensure.
The adoption worker recommended that consent be denied. On July 26 a
case conference was convened at the Petitioner's

request.

Before the conference

commenced, the Petitioner was provided with a copy of the preliminary family assessment
which set forth the reasons for the recommendation to deny consent. She was invited to
explain to the adoption worker and her supervisor why their
consent was unjustified.

recommendation

to deny

The worker supplied the superintendent with the results of the

conference. Thus, Petitioner had the opportunity to present any information that she felt
was pertinent to the superintendent.'

She was treated fairly.

Petitioner claims that her constitutional rights were violated when the children
were placed in the foster home instead of her's because this action created the grounds
relied upon to take negative action against her. In re Band J, 279 Mich App 12; 756 NW
2d 234 (2008). A careful examination of the Band J opinion reveals that the holding was
the state may not deliberately take action "with the purpose of 'virtually assur[ing] the
creation of a ground for termination of parental rights' and then" seek termination on that

3Petitioner contends that there were inaccuracies in the summary of the case
conference that was provided to the superintendent. She telephoned the superintendent's
office twice but was unable to speak to him. She abandoned further efforts to contact him or
correspond in writing because her attorney advised her it would be to no avail. Two unreturned
telephone calls followed by a measured decision to refrain from communicating in writing does
not amount to unconstitutional unfair and unjust treatment by the superintendent.
6

Page 7

very ground.

Id at 20.

This court is not charged with reviewing the validity of the

termination of Petitioner' son and daughter-in-Iaw's parental rights. The principle holding
in the Band J case is not pertinent here and simply diverts attention from the task at hand
which is to determine if the superintendent's denial of consent was arbitrary and capricious.
Even if the holding in that case was applicable here, there is simply no
evidence that DHS deliberately placed these children in a foster care home in 2008 with
the purpose of virtually assuring the creation of a ground for denying consent to an
adoption by the Petitioner four years later.
In fact, according to Petitioner, DHS initiated contact with her in April of 2008
to ascertain her level of interest in taking the children.

Her two (2) bedroom apartment

would not accommodate all four children and it was not in their best interest to split them
up. The next contact wasn't until six months later when Petitioner said she was still
interested in placement.

However, the goal in the case was reunification with the mother

who remained in Michigan.

Obviously, it would be impractical to have the children in

Florida and the mother in Michigan while working towards reunification."

important to note that this Petitioner is not a relative of Jordan.

Finally, it is

She did not even

commence the process for becoming a licensed foster care home until201 0, long after the
children were placed in foster care in Michigan.

It clearly was a reasonable decision by

4The mother of the children testified that she told the Holy Cross worker in October of
2008 that Petitioner had offered to give her a place to live with the children in Florida and that
she was planning on getting them back and doing that. However, the children had already
been removed from the mother's care at that point. They were not living with her and were not
ready to be reunified. In fact, the petition had been filed and the children had been removed
several months earlier and the mother testified that she had made no mention of moving to
Florida to any of the DHS workers during this time period. In December of 2008 the mother
moved in with a friend in Michigan.
7

Page 8

DHS not to separate Jordan and to keep these siblings together in the same home. The
DHS did not act with the purpose of assuring the Petitioner's request for consent to adopt
would be denied.
This court finds that the superintendent did not act arbitrarily or capriciously
in declining to consent to the adoption of these children by the Petitioner. The motion is
DENIED and the petition to adopt is DISMISSED.

Dated: September 14,2012

Page 9

STATE

OF

MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF MUSKEGON

FAMILY DIVISION
* * **

In the MaUer of:

HON. WILLIAM C. MARIETTI

CARMEN OLIVIA HEEREN

ESDEANNA RENAE HEEREN
JORDAN RICKY GONZALEZ
KYLEA BRADON HEEREN

___________________________

Case No. 11-7780-AF

11-7781-AF
11-7782-AF
11-7783-AF

PROOF OF SERVICE
****

I hereby certify that I served a copy of the Opinion re: Denial of Consent to
Adoption, properly addressed to the following person(s) on this 18th day of September
2012 by the method indicated below.
Scott M. Nichol
1650 Kendale Blvd., Suite 110
East Lansing, MI 48823
U.S. mail

H. Daniel Beaton, Jr.

Office of Attorney General
P.O. Box 30758
Lansing, MI 48909
U.S. mail

Evelyn K. Calogero
P.O. Box 13038
Lansing, MI 48901
U.S. mail

Geraldine A. Brown
Office of Attorney General
P.O. Box 30758
Lansing, MI 48909
U.S. mail

Chad D. Catalino
1189 Peck Street
Muskegon, MI 49441
U.S. mail

, Secretary

Page 10

STATE OF MICHIGAN
COURT OF APPEALS

UNPUBLISHED
December 4, 2014
In re COH, ERH, JRG, and KBH Minors.

No. 309161
Muskegon Circuit Court
Family Division
LC No. 08-036989-NA

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

No. 312691
Muskegon Circuit Court
Family Division
LC Nos. 2011-007780-AF;
2011-007781-AF;
2011-007782-AF;
2011-007783-AF

ON REMAND
Before: TALBOT, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
In Docket No. 309161, appellant Lori Scribner, paternal grandmother of three of the four
minor children, had appealed by leave granted the trial courts order denying her petition for a
juvenile guardianship with respect to all four minor children. We previously reversed that order
and remanded for entry of an order appointing appellant the juvenile guardian of the minor
children. In re COH, ERH, JRG, and KBH Minors, unpublished opinion per curiam of the
Court of Appeals, issued June 25, 2013 (Docket Nos. 309161 and 312691), slip op at 1. In
Docket No. 312691, the superintendent of the Michigan Childrens Institute (MCI) had denied
Scribners request for consent to adopt the children, which decision was upheld by the trial court,
and Scribner appealed the courts order rejecting her challenge of the superintendents decision.
We held that the adoption issue was moot given our holding in Docket No. 309161 that Scribner

-1-

Page 11

was to be appointed the childrens guardian. Id.1 The Michigan Supreme Court reversed our
ruling in Docket No. 309161 in regard to the guardianship issue and reinstated the trial courts
order denying Scribners guardianship request. In re COH, 495 Mich 184, 187-188, 208; 848
NW2d 107 (2014). With respect to Docket No. 312691 and the adoption issue, our Supreme
Court remanded the matter to us for consideration of Scribners appeal relative to the trial courts
rejection of Scribners argument that the MCI superintendent had improperly denied her request
for consent to adopt the children. Id. at 208. We now affirm the trial courts ruling and the
superintendents decision concerning Scribners request for consent to adopt.
The underlying facts and procedural history of this case were extensively set forth in our
prior opinion and by the Supreme Court in its opinion, focusing primarily on the guardianship
matter. Given the remand order, we turn our attention to the adoption issue and attendant facts.
A preliminary adoption family assessment prepared by Bethany Christian Services (BCS)
recommended that Scribners petition for consent to adopt the four minor children be denied.
The assessment noted that the children had expressed a wish to remain in the care of their foster
parents. The foster parents also sought to adopt the children. The assessment further indicated
that the trial court, in denying Scribners earlier guardianship petition, had found that it was not
entirely clear that Scribner would keep the children away from their birth parents, whose parental
rights had been terminated. The assessment additionally provided that the childrens behavior
regressed after they had visited with Scribner and that the children revealed that they did not feel
safe with Scribner. The assessment also noted that the children had bonded with their foster
parents and had made significant progress since being placed in their home.
The MCI superintendent issued a decision denying Scribners request for consent to
adopt the children. The superintendent noted that various factors had been considered. The MCI
superintendent observed that the children had special needs resulting from the chronic neglect
they had suffered in their birth home and that it was unknown whether Scribner could meet those
needs on a permanent basis. The superintendent indicated that the children had resided in their
foster home for more than three years, had overcome symptoms of anxiety after being removed
from their birth home, had bonded with their foster parents and desired to be adopted by them,
and had developed ties in the community. The MCI superintendent found that removing the
children from their foster home and placing them with Scribner in Florida would be traumatic.
Scribner challenged the superintendents decision in the trial court, arguing that there was
clear and convincing evidence that the decision was arbitrary and capricious and petitioning the
court to approve her request to adopt the children. The trial court conducted a hearing on the
matter, which hearing spanned four days. We thoroughly discuss the superintendents testimony
at the hearing later in this opinion when analyzing the issues posed on appeal. The trial court
issued an initial decision rejecting Scribners challenge of the superintendents determination,
but it withdrew that decision after additional information became available. In September 2012,

Docket Nos. 309161 and 312691 had been consolidated by this Court. In re COH, ERH, JRG,
and KBH Minors, unpublished order of the Court of Appeals, entered March 26, 2013 (Docket
Nos. 309161 and 312691).

-2-

Page 12

the trial court issued an amended opinion and order, upholding the MCI superintendents
decision and denying Scribners petition to adopt the children. The court found that the
superintendents decision was supported by: testimony from the childrens counselor that the
children would be traumatized by a separation from their foster parents; the fact that the
childrens behavior had improved significantly since their placement with the foster parents; the
childrens expressed preference to remain with their foster parents; and the childrens improved
school performance since the placement with their foster parents. The trial court rejected
Scribners assertion that the MCI superintendents decision was clearly and convincingly
arbitrary and capricious. The court carefully considered each of the myriad arguments presented
by Scribner in support of her challenge and found them all to lack merit. We note that the minor
children have now been in the care of their foster parents for over six years.
The MCI superintendent represents the state of Michigan as guardian of all children
committed to the state by a family court after termination of parental rights. In re Keast, 278
Mich App 415, 423; 750 NW2d 643 (2008), citing MCL 400.203. The superintendent of the
[MCI] or his or her designee is authorized to consent to the adoption . . . of any child who may
have been committed to the institute. MCL 400.209(1). Consent by the superintendent to the
adoption of a state ward is required before the family court can approve a prospective adoption.
In re Keast, 278 Mich App at 423, citing MCL 710.43(1)(b). MCL 710.45(1) provides that a
court is not permitted to allow the filing of an adoption petition unless the petition is
accompanied by the consent required under MCL 710.43(1)(b) or, where no consent was
forthcoming, accompanied by a motion brought under MCL 710.45(2) challenging the denial of
consent. MCL 710.45(2) states that [i]f an adoption petitioner has been unable to obtain the
consent required by section 43(1)(b) . . ., the petitioner may file a motion with the court alleging
that the decision to withhold consent was arbitrary and capricious. (Emphasis added.) Unless
the petitioner establishes by clear and convincing evidence that the decision to withhold consent
was arbitrary and capricious, the court shall deny the motion described in [MCL 710.45(2)] and
dismiss the petition to adopt. MCL 710.45(7) (emphasis added).
In In re Keast, 278 Mich App at 423-425, the panel discussed the appropriate standard of
review and the principles found in MCL 710.45, stating:
Pursuant to MCL 710.45, a family court's review of the superintendent's
decision to withhold consent to adopt a state ward is limited to determining
whether the adoption petitioner has established clear and convincing evidence that
the MCI superintendent's withholding of consent was arbitrary and capricious.
Whether the family court properly applied this standard is a question of law
reviewed for clear legal error.
...
[T]he family court is not permitted to decide the adoption issue de novo,
but rather must determine whether there is clear and convincing evidence that the
decision maker acted arbitrarily and capriciously. 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. The
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Page 13

generally accepted meaning of capricious is apt to change suddenly; freakish;

whimsical; humorsome.
The initial focus of the hearing is on the reasons given for withholding
consent to the adoption. It is the absence of any good reason to withhold consent,
rather than the presence of good reasons to grant it, that indicates that the decision
maker has acted arbitrarily and capriciously. [Citations and internal quotation
marks omitted; final ellipsis in original.]
In In re Cotton, 208 Mich App 180, 184; 526 NW2d 601 (1994), this Court similarly
explained:
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.
Accordingly, the question properly framed is not whether Scribner should have been
granted consent to adopt or whether she was worthy of adopting the children, but whether there
was clear and convincing evidence that the superintendent acted arbitrarily and capriciously in
withholding consent, which was withheld, effectively, on the basis that it was in the best interests
of the children to be adopted by the foster parents. We hold that the MCI superintendent did not
reach his decision by whim or caprice, nor was his determination freakish, whimsical, or
humorsome. The superintendents grounds for denying Scribners request for consent to adopt,
and the trial courts reasoning for upholding the superintendents decision, were sound and valid.
There was not a complete absence of any good reason to withhold consent. And the trial court
properly applied the standard of review.
Scribner argues that the trial court erred in holding that the superintendents decision was
not arbitrary and capricious, given that the court did not correctly apply the arbitrary and
capricious standard, where the superintendent did not have all of the relevant facts when making
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Page 14

his decision, and where much of the information that he did have was inaccurate. Therefore,
according to Scribner, the superintendent, absent complete and correct information, could not
have considered each childs individual circumstances and could not have provided good reasons
for denying consent.
The MCI superintendent gave exhaustive testimony at the court hearing, which we shall
review. He acknowledged that he did not meet with Scribner or the children before rendering his
decision. The superintendent testified that he reviewed the preliminary adoption assessment. He
indicated that if Scribner disputed the statement that she had not met the youngest child before
the child entered foster care, the dispute should be resolved. The superintendent also conceded
that a case conference report by BCS indicated that Scribner had maintained that she had a
relationship with the children before the children were placed in foster care. The superintendent
further agreed that his decision stated that Scribner had only a limited relationship with the
children. He testified that he did not have information regarding how much time Scribner in fact
spent with the children. The superintendent stated that he wrote in his decision that it was
unknown if Scribner could care for the children on a full-time permanent basis because she had
never done so, notwithstanding the fact that she had indicated that she was willing to do so. He
did not deny that Scribners training as a registered nurse would likely help her in meeting the
childrens needs, as would a good school system. The superintendent testified that he had no
reason to dispute the information that Scribner gave to BCS.
The MCI superintendent acknowledged that he rescinded his original consent decision
when he learned that the foster parents had been the subject of licensing and protective services
investigations because they used corporal punishment. The superintendent testified that he relied
on reports from the foster care worker, the adoption worker, and the Court Appointed Special
Advocate (CASA) worker as support for his statement in his amended consent decision that the
children had made significant progress after being placed with their foster parents. The
superintendent conceded that before making his original decision he was not aware of a report
from a therapist who opined that the children would not be traumatized by a move to Florida, but
he had also reviewed a report from the childrens regular therapist who indicated that such a
move would be traumatic. The superintendent testified that he partially based his conclusion that
a move to Florida would be traumatic for the children on the fact that the children had already
been removed from their mothers home due to abuse and neglect, and that the children had been
together in the foster home for 3 years, forming a strong bond with their foster parents. He
recognized that the children could likely adjust to living with Scribner in Florida, but opined that
the harm of moving them outweighed any benefit in doing so.
The superintendent stated that he based his conclusion that the children had a significant
psychological relationship with their foster parents, but not with Scribner, on information he
received from various caseworkers, and in particular the CASA worker, who told him that some
of the children woke up crying while visiting Scribner because they wanted to return to their
foster home. The superintendent testified that he based his conclusion that the children had made
significant progress in school and had established community ties after they entered foster care
on reports from caseworkers; he believed that the children should be allowed to maintain that
progress. He did not recall whether he had personally reviewed school records.

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Page 15

The MCI superintendent felt that he could consider the expressed preference of a child
regardless of the childs age. He noted that by statute a child of at least 14 years of age must
consent to adoption, see MCL 710.43(2), but he did not believe that he was precluded by statute
or policy from considering the opinion of children who were under 14 years of age. The
superintendent testified that he did not speak with the children directly regarding their wishes.
As indicated earlier, the superintendents primary reasons for denying Scribners petition
to adopt were the childrens strong attachment to their foster family, their ties to school and the
community, the progress they had made while in foster care, and their desire to remain with their
foster family.
On cross-examination by the guardian ad litem, the superintendent stated that he found
both Scribner and the foster parents to be suitable candidates to adopt the children and that he did
not reject Scribners petition because of anything negative about her. The superintendent
reiterated that his decision was based heavily on the fact that the children had been in the foster
home for some time, they had thrived in the environment, and they had developed ties to the
family. The superintendent was recalled later in the hearing process. He acknowledged that he
had not had access to certain information at the time he made his original decision, but he
declared that none of the information he had learned since that time caused him to change his
stance.
Scribner argues that the superintendents statement that he did not change his mind after
receiving additional information established that his ultimate decision was arbitrary and
capricious. However, we disagree with that logic, and the trial court was entitled to find the
superintendents testimony credible. The superintendent provided cogent reasons for his
decision to deny Scribners petition. Scribner disagrees with the trial courts decision, but that
disagreement does not establish error on the part of the court. While there may have been
problematic and questionable aspects of the superintendents decision-making process, the
superintendent, simply put, did not act arbitrarily and capriciously in withholding consent, and
there certainly was not clear and convincing evidence of an arbitrary and capricious decision
justifying reversal. Once again, we conclude that the MCI superintendent did not reach his
decision by whim or caprice, that his determination was not freakish, whimsical, or humorsome,
that the grounds for the superintendents decision were not devoid of any good reason to
withhold consent, and that the trial court properly applied the standard of review. Also, there is
nothing to indicate that the circumstances of any of the children individually dictated a different
conclusion.
Scribner notes that the trial court relied on the opinion of the childrens therapist and the
opinion of the CASA worker, and that had those opinions been admitted into evidence it is
possible that she could have used them to impeach the MCI superintendents testimony. As
Scribner acknowledges, however, the MCI superintendent testified that he reviewed both
opinions.
Scribner next argues that BCS and the MCI superintendent were biased and were
inflexibly determined to deny her petition to adopt the children, thereby acting in a manner that
violated her constitutional right to due process. This Court reviews de novo constitutional issues.
Goldstone v Bloomfield Twp Pub Library, 479 Mich 554, 558; 737 NW2d 476 (2007). Scribner
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asserts that because BCS had a financial interest in placing the children in Michigan, bias must
be imputed to BCS given that it had a pecuniary interest in the outcome of the proceeding. And
the MCI superintendents acceptance of the BCS recommendation therefore resulted in an
outcome that was arbitrary and capricious. However, there is an absolute dearth of evidence in
the record suggesting that BCS considered in any way its financial position when making its
recommendations. The director of BCSs Grand Rapids office testified that a discussion of
finances is never part of an adoption decision. Scribner points to no evidence that contradicts
this testimony.
Similarly, Scribners assertion that the superintendent showed improper favoritism to the
foster parents is without foundation in the record. The superintendent testified that he had no
personal animosity against Scribner and that he did not show any favoritism toward the foster
parents. Instead, it was contemplation of the surrounding circumstances that drove the
superintendents decision. The essence of Scribners argument is that because she was qualified
to adopt the children, the recommendation by BCS that the foster parents petition to adopt be
granted and the MCI superintendents acceptance of that recommendation mandate a conclusion
that BCS and the superintendent were not impartial. This argument is simply not supported by
the record. And the premise is not legally sound, considering that the threshold question was not
whether consent should have been granted in light of Scribners qualifications, but whether the
superintendent acted arbitrarily and capriciously in withholding consent. In re Keast, 278 Mich
App at 425 (It is the absence of any good reason to withhold consent, rather than the presence
of good reasons to grant it, that indicates that the decision maker has acted arbitrarily and
capriciously.). Given the failure of Scribners arguments underlying her due process claim, the
due process argument necessarily fails.
Scribner next argues that the MCI superintendent and BCS violated Scribners
constitutional right to fair and just treatment by conducting only a limited investigation, by
making decisions on incomplete and inaccurate information, and by failing to contact Scribner.
Scribner additionally maintains that both the MCI superintendent and BCS violated MCL
722.954a(5), which provides that a relative must be given special consideration when
determining the placement of a child. In a supplemental brief, Scribner argues that the Supreme
Courts decision in In re COH, 495 Mich 184, which held that MCL 722.954a does not create a
preference for relatives when appointing a guardian for a child under MCL 712A.19c(2), does
not control the outcome of this appeal.
Again, this Court reviews constitutional issues de novo, Goldstone, 479 Mich at 558, and
we likewise review de novo an issue of statutory interpretation, In re COH, 495 Mich at 191.
The Michigan Constitution provides that [t]he right of all individuals, firms, corporations and
voluntary associations to fair and just treatment in the course of legislative and executive
investigations and hearings shall not be infringed. Const 1963, art 1, 17. To the extent that
this clause applies in the context of this case, we conclude that Scribner was not denied fair and
just treatment for the reasons already articulated in this opinion and given that the superintendent
and the trial court acted in accordance with the governing statutes. Reversal is unwarranted.
MCL 722.954a sets forth a preference for relatives when placing a child after the initial
removal of the child from parental custody. MCL 722.954a(5) provides that [b]efore
determining placement of a child in its care, a supervising agency shall give special
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consideration and preference to a child's relative or relatives who are willing to care for the child,
are fit to do so, and would meet the child's developmental, emotional, and physical needs.
Subsection (5) of MCL 722.954a was added to the statute when it was amended by 2010 PA 265,
becoming effective on December 14, 2010. In the appeal of the guardianship matter, our
Supreme Court relied on the version of MCL 722.954a in effect before December 14, 2010,
[b]ecause the trial court decided the issues relevant to the childrens initial placement before
December 14, 2010. In re COH, 495 Mich at 193 n 5. Of course, the same analysis or theory
applies now; the date of the initial placement did not magically change. The Supreme Court held
that MCL 722.954a applies from the moment a child is removed from his or her parents' care,
i.e., before any placement decision is made, and, consequently, the requirements of MCL
722.954a are intended to guide the DHS's initial placement decision. Id. at 195. The Court
elaborated:
[T]he preference for placement with relatives created in MCL 722.954a
does not apply outside the time period for determining a child's initial placement
immediately after removal and, therefore, does not apply to a court's decision to
appoint a guardian under MCL 712A.19c(2) after parental rights are terminated.
Accordingly, although the Court of Appeals accurately concluded that MCL
722.954a creates a statutory preference for placement with relatives, the plain
language of MCL 722.954a limits the applicability of the preference to only the
initial stage of the process, i.e., immediately after a child is removed from his or
her parents' care and during the statutory review period established in MCL
722.954a(3). Therefore, we agree with the Court of Appeals' conclusion in In re
AEG & LEG, unpublished opinion per curiam of the Court of Appeals, issued
November 7, 2013 (Docket No. 316599), that the plain language of MCL
722.954a indicates that the Legislature intended the statute to provide procedural
requirements where a child is removed pursuant to a child protective proceeding,
but that there is no indication that [MCL 722.954a] was intended to apply to . . .
decisions after termination, which includes a court's decision regarding a
guardianship petition under MCL 712A.19c(2). [In re COH, 495 Mich at 198199 (ellipsis and second alteration in original).]
Clearly, this analysis is equally applicable to adoption petitions after parental rights have
been terminated. The 2010 amendment, even if applicable here, would not later that conclusion,
given the Supreme Courts following comments in In re COH about the amendment:
As noted, the Legislature amended MCL 722.954a, effective December
14, 2010. 2010 PA 265. We also note that as part of the 2010 amendments, the
Legislature added MCL 722.954a(5), which expressly requires the DHS to give
special consideration and preference to a child's relative or relatives who are
willing to care for the child, are fit to do so, and would meet the child's
developmental, emotional, and physical needs and requires the DHS to do so
[b]efore determining placement of a child in the DHS's care. Emphasis added.
Accordingly, although we do not expressly apply subsection (5) in this case, we
note that our analysis is not inconsistent with this new statutory language, because
subsection (5) expressly applies before the initial placement decision is made. [In
re COH, 495 Mich at 198 n 7.]
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Accordingly, any claim by Scribner that the superintendents decision was arbitrary and
capricious or that BCSs investigation was deficient because there was a failure to give Scribner
the preference in MCL 722.954a accorded to relatives lacks merit; MCL 722.954a simply has no
relevance to the post-termination adoption proceedings. Scribner argues that the Supreme
Courts interpretation of subsection (5) of MCL 722.954a, quoted above, is dicta and is wrong.
We, however, are not prepared to disregard the Supreme Courts view and, if the footnote is not
dicta, we are bound by the analysis and are certainly not at liberty to ignore it. State Treasurer v
Sprague, 284 Mich App 235, 242; 772 NW2d 452 (2009).
Scribner finally argues that the trial court erred in partially denying her motion to compel
discovery, thereby rubber-stamping the superintendents decision without having access to
complete and accurate information about the childrens individual circumstances. This Court
reviews for an abuse of discretion a trial courts decision to grant or deny a motion for discovery.
Szpak v Inyang, 290 Mich App 711, 713; 803 NW2d 904 (2010). A court abuses its discretion
when its decision falls outside the range of reasonable and principled outcomes. Augustine v
Allstate Ins Co, 292 Mich App 408, 419; 807 NW2d 77 (2011).
Michigan is strongly committed to a far-reaching and open discovery practice. Eyde v
Eyde, 172 Mich App 49, 54; 431 NW2d 459 (1988). The rules of discovery should be liberally
construed in order to further the ends of justice. Id. As a general rule, a party may obtain
discovery of any non-privileged matter that is relevant to the subject matter of the pending case.
MCR 2.302(B)(1). MCR 3.800(A) provides that adoption proceedings are governed by the
general court rules, except as modified by MCR 3.801 through MCR 3.807. Logically, then, the
court rules governing discovery typically apply to adoption proceedings.
We hold that Scribner has not established that the trial court abused its discretion by
ruling as it did. Scribner acknowledges that the court ordered the MCI superintendent to make
available to Scribners counsel for inspection the MCIs entire file on the children. She
complains, however, that had she had access to all of the information sought, such as additional
facts about the foster family and various policies, she might have been able to present more
compelling arguments or impeach witnesses. We conclude that Scribners argument is
ultimately based on speculation and seeks to engage in a fishing expedition. There is no
indication that there exist facts or information that would circumvent or undermine the trial
courts ruling or that would constitute clear and convincing evidence that the MCI
superintendents decision was arbitrary and capricious. Reversal is unwarranted.
We affirm.
/s/ Michael J. Talbot
/s/ Michael J. Riordan

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STATE OF MICHIGAN
COURT OF APPEALS

UNPUBLISHED
December 4, 2014
In re COH, ERH, JRG, and KBH Minors.

No. 309161
Muskegon Circuit Court
Family Division
LC No. 08-036989-NA

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

No. 312691
Muskegon Circuit Court
Family Division
LC Nos. 2011-007780-AF;
2011-007781-AF;
2011-007782-AF;
2011-007783-AF

ON REMAND
Before: TALBOT, P.J., and MARKEY and RIORDAN, JJ.
MARKEY, J. (dissenting).
I dissent, not because the majority mistakenly cites or analyzes the now applicable law
and burdens of proof, they do not, but because I am compelled to at least express my dismay at
this final resolution of these matters. While I truly believe that we have the best legal system in
the world, it is not perfect, and justice is not always achieved. This case and its companion case,
previously decided by the Supreme Court, stand as sad, examples of its failure, at least with this
particular family.
We are here today with this resolution because of a confluence of many actions and
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 convinced we have
trampled one of lifes most important relationships: that of grandparents and grandchildren. I
will not speculate as to why.
The rationale for this decision and that in the earlier placement case is readily distilled:
Leave the children where the system first hastily placed and left them the longest, then justify it
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all by simply completing the illogical circle by righteously declaring that theyre best off where
theyve now been the longest! This contrived, bootstrapping analysis by the Supreme Court,
which reversed this panels original decision and which now essentially compels the instant
decision of this Court to justify the resolution of these cases, is at best embarrassing, and at worst
a sad, shameful example of a process and a system that failed this family.
/s/ Jane E. Markey

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Page 21

Court of Appeals, State of Michigan

ORDER
In re COH, ERH, JRG, KBH Minors

Michael J. Talbot
Presiding Judge

Docket No.

3 12691

Jane E. Markey

LC No.

2011-007780; 007781 ; 007782 ; 007783-AF

Michael J. Riordan
Judges

The Court orders that the motion for reconsideration is DENIED.

Markey, J., would grant the motion for reconsideration.

A true copy entered and certified by Jerome W. Zimmer Jr. , Ch ief Clerk, on

JAN 2 9 2015
Date

Page 22

MICHIGAN DEPARTMENT OF HUMAN SERVICES

MICHlGAN CHILDREN'S INSTITUTE

CONSENT TO ADOPTION DECISION

AMENDED
In the matter of:

Jordan Ricky Gonzalez (DOB: 9/05/2001)

Case Number: X3470836A
Esdeanna Renae Heeren (DOB: 10/26/2002)
Case Number: X3470853A
Kylea Bradon Heeren (DOB: 2/16/2004)
Case Number: X3470773A
Carmen Olivia Heeren (DOB: 10/03/2005)
Case Number: X3470836A
Court File Number: 08-036989-NA

Prospective Adoptive
Family:

Lori Scribner
22 Poinciana Avenue
St. Augustine, Florida 32086

Relationship to Children:

Paternal grandmother to Heeren children

Adoption Worker:

Cara Stray
Bethany Christian Services 1 Fremont

Date of Termination of
Parental Rights:

June 8, 2009 (Fathers)

July 12,2010 (Mother)
Muskegon County Circuit Court-Family Division
Judge William C. Marietti

Introduction
Following termination of parental rights, the children listed in this report are available for
adoption. The adoption agency has been responsible for assessing parties who wish to be
considered for adoption. The adoption agency has presented information to the Michigan
Children's Institute (MCI) in support of their recommendation about adoption. This information
has been carefully reviewed. The interested family listed above has been notified of the agency's
recommendation and of their opportunity to present additional information to this office.

In the matter of: Jordan Gonzalez, Esdeanna Heeren, Kylea Heeren and Carmen Heeren

Page 23

A Consent To Adoption Decision had previously been issued by the MCl office denying the
request of Lori Scribner to be approved for adoption of these children. After additional
information came to the attention of the Mcr office, that decision was withdrawn so that further
review of this matter could be completed.
Background Infonnation
Jordan, Esdeanna, Kylea and Carmen were removed from parental custody and placed in foster
care on February 8, 2008 due to physical neglect, medical neglect and lack of supervision. They
were subsequently transferred to their current foster home in October of2008.
The children have different fathers. Jordan has a different biological father from the three other
children. Ms. Scribner is the paternal grandmother to the three girls. Ms. Scribner came
forward requesting placement of her three grandchildren. When she was informed that the
siblings would be kept together, she indicated that she would take the brother Jordan as well. Ms.
Scribner resides in Florida and an Interstate Compact request was submitted. Ms. Scribner was
initially denied due to not being licensed for foster care. She did eventually obtain a foster home
license in Florida. She was approved for placement by Florida on September 3,2010. At that
time, the permanency plan for the children continued to be reunification with their mother.
The Muskegon County Family Court terminated the parental rights of the mother on July 12,
2010. At that time, the court did not commit the children to DRS as Mcr wards. Instead, the
court retained authority over the children as permanent court wards. Ms. Scribner petitioned the
Muskegon County Circuit Court for legal guardianship of all four children. The children were
sent to visit with Ms. Scribner and further evaluation was done before the court had a hearing on
Ms. Scribner's petition for guardianship. On March 21, 2011 the court issued a written Opinion
denying Ms. Scribner's petition. The court also committed the children to DRS as MCl wards
on that date. Ms. Scribner has requested to be considered for adoption of the children; however
she is not being recommended by the agency. The agency is recommending adoption by the
foster parents with whom the children have been placed since October, 2008.
The MCl office has reviewed information provided by the agency as well as by Ms. Scribner.
Additional reports and documents were also reviewed. In addition, the MCl office contacted
child welfare staff from the assigned private agencies and from Muskegon County DRS and the
CASA worker for the children to obtain clarification of other matters.
Factors Considered
The following factors were considered in making this decision:
o

Ability of tbe prospective adoptive parent to meet the children's physical and
emotional needs. These four children experienced chronic neglect in their birth home at
critical periods in their development. Their basic needs for food, comfort and protection
were not met, consequently these children entered care with severe emotional and
behavioral issues. While they have made remarkable progress during the past two years,
they continue to have special needs. Lori Scribner is a single person who has four adult
children. Since she has had limited involvement with Jordan, Esdeanna, Kylea and

In the matter of: Jordan Gonzalez, Esdeanna Heeren, Kylea Heeren and Carmen Heeren

Page 24

Carmen, it is not known if she could provide for all of the special needs of these four
children on a permanent basis.

The length of time the children has lived in a stable, satisfactory environment and
the desirability of maintaining continuity. Jordan, Esdeanna, Kylea and Carmen have
resided in their current foster home since October of 2008, a period of over three years.
All of the children had experienced a chaotic environment with a parent who neglected
them and did not supervise them. Consequently the children had difficulty developing a
sense of safety, security and trust. This was evident in many oftheir symptoms of anxiety
such as wetting their pants, explosive fits of anger and completely withdrawing from
others. However, due to the affection and attention they have received in their current
placement, they are much calmer and feel protected in their present environment. The
children are all bonded with their caregivers and they have expressed a strong desire to be
adopted by them. They have also received multiple services within their community and
they have established relationships that are important to them. Therefore it would be
traumatic to separate the children from this family and move them to another state.

The psychological relationship that exists between the children and the prospective
adoptive parent. Lori Scribner had only limited contact with these children prior to their
entering foster care In February of2008. She had not met Carmen, who was two years old
at time. While Jordan, the oldest child, seemed to have memories of her, her actual
grandchildren did not appear to make the same connection. The children did spent a few
weeks visiting Ms. Scribner in Florida recently. However, there does not appear to be a
significant psychological relationship between them.

The home, school, and community record of the children. All of the children are
school age and had previously exhibited academic delays. They have made significant
progress in their school performance. They also demonstrate a strong connection to lllt:ir
school and classmates. This is an important connection to maintain.

The expressed preference of the children. The children continue to have telephone
contact with Ms. Scribner. In the past they have also visited with Ms. Scribner at her
home in Florida. However, the children express a very strong desire to remain in their
current family home and not to be removed for placement in the home of Ms. Scribner.
In addition, the children express dismay when Ms. Scribner makes negative comments
about the current foster parents.

Decision
After reviewing all the information that was provided, it is the decision of the MCI office that it
is not in the best interests of the children to be adopted by Ms. Scribner . Therefore, the request
of Lori Scribner to be granted consent to adoption of Jordan Gonzalez, Esdeanna Heeren,
Kylea Heeren and Carmen Heeren is denied.
Consent to adoption of the children by their current foster parents is in their best interests.
Consent to adoption documents will be completed and forwarded to the adoption agency so that
the agency can proceed with additional steps toward adoption.

In the matter of: Jordan Gonzalez, Esdeanna Heeren. Kylea Heeren and Carmen Heeren

Page 25

Section 45 of the Michigan Adoption Code pemlits someone who wishes to adopt a child to file
a petition in the court that teffilinated parental rights if they believe that they have been
arbitrarily and capriciously denied consent to adoption. If you wish to pursue this option. it is
recommended that you consult with an attorney.

December 2, 2011
Michigan Children's Institute

cc: Lori Scribner

Attorney Shon Cook I
Attorney Chad Catalino, LGAL
Cara Stray, Bethany Christian Services

Page 26

PRELIMINARY ADOPTIVE FAMILY ASSESSMENT

Adoption Services
Michigan Department of Human Services
APPLICANT INFORMATION
Mother's Name

Dale of Birth

Lori Scribner

12 / 06/1958

Father's Name

Dale of Birth

Address

Phone Number

22 Poinciana Ave, St, Augustine FL 32086

(904) 824-6735

Name of Child(ren) available for adoption,

Dale of Birth

Jordan Gonzalez
Esdeanna Heeren
Kylea Heeren
Carmen Heeren

09/05/2001
10/26/2002
02/16/2004

10/03/2005

OTHER HOUSEHOLD MEMBERS

Children In the Home

10 Applicant (birth,

Adults in t he Home (other t han applicants)

Adults Name

Date of Birth

No other adults are reported to be in the home.

RetaUonshlp to Applicant

DATES OF CONTACT
04/19/2011
04/21 / 2011

04/27/2011
05/03/2011
05/06/2011
05/09/2011
05 / 10 / 2011
05 / 10 / 2011
05 / 10 / 2011
05/13/2011
05/18/2011
05/19 / 2011

05/23/2011
05/23/2011
OS/26/2011
05/26/2011
05 / 31/2011
05/31/2011
06/02/2011

Mary Rossman , Patrice and Wenc;iy (DBS)

Mary Rossman
Lori Scribner
Andrea, Judge Marietti, Shon Cook, Chad (GAL)

Andrea , Judge Marietti , Shon Cook

Mary Ros srnan
Andrea (Holy Cross , foster care worker)
Mary Rossman
Lori Scribner
Attorney Shon Cook
Lori Scribner
DHS, Andrea, Holy Cross Supervisors
Attorney Shon Cook
Andrea Hagen
foster care worker
Shon Cook
Lori Scribner
Chad - DBS supervisor
Mary Rossman
MCI
Mary Rossman

RELATIONSHIP WITH CHILD

OHS-1926 (Rev. 1-O9) MS Word

Email : case update

Email: case update
Mail to : DRS 4809
FF; PTR hearing
Hearing to postpone
Email: case update
Email : case update
Email : case update
TC from : questions
Mail from : Signed 4809
Letter to: request pw
FF , discuss visits
Mail from; consent
Email: Cook's request
Letter to: consent
Lette r to: request pw
TC from : visits
Email to/ from: visit
Email from/to : Consent

Page 27

Lori reports to have four adult children: Seth Heeren (DOB 06 / 12 / 1974) , Shaun Heeren (DOB
03 / 26/ 1979) , Joshua Heeren (DOB 12 / 04 / 1982) and Joseph Heeren (DOB 0 4 /02 / 198 4 ). Joseph
Heeren is the legal father to Esdeanna Heeren , Ky1ea Heeren and Carman Heeren.
(No bir th
father is listed on any of the girl's birth certificates . Joseph Heeren has been
determined to be the legal father to the children due to him signing an AIfidavit of
Paren tage . )
According t o the children, their paternal grandmother had limited contact with them prior
to them coming into care. When a package from their grandmother arrived at their foster
family ' s home , only Jordan appeared to know who this grandmother was. (It should be
noted that Jordan is not a biological grandchild of Lori Scribner). Lori admitted during
the guardianship hearing that she had not met Carmen before the foster care case. (Carmen
was two years old when she came into care).
It is clear that she did not have an ongoing
relationship with them prior to their being in foster care. Lori did not return a
relative relationship questionnaire to this worker, so this worker does not know
specifically what Lori would say her contact with the children was prior to the children
coming into care.
During the foster care case , Lori Scribner did make efforts to have the children placed
with her. These efforts were reportedly not right as the case began , but months into the
case. Workers involved in the case also state that initially she asked for placement of
the girls only , not Jordan.
When she was told they all would remain together , she then
included Jordan in her request.
She became a licensed foster home through the State of
Florida . This worker has made repeated requests of Lori buy both phone and letter to
send her licensing home study report, but Lori has not sent it yet.
Lori Scribner petitioned the court for guardianship of all four children. This hearing
was held by Muskegon County Court Judge Marietti. The guardianship was denied in a
written report by the judge dated March 21 , 2011 . The reasons for the denial included
the fact that while Jordan appeared to be equally bonded to Lori Scribner as he was to
the foster parents, the three girls were clearly more bonded to the foster parents and
not to their paternal grandmother. The judge did not feel placement with Lori Scribner
was in the best interest of the children , given the bond the children have developed with
their foster parents over the last two years.
The children were a "mess" (according to
the judge) when they came into care , and they have made huge strides throughout their
time in their foster home.
The judge felt it very important to take into consideration
the desires of the children, who have already been removed from their birth home.
The
children all request that they remain in their current foster home.

MOTIVATION TO ADOPT
Lori is the paternal grandmother to Esdeanna , Kylea and Carmen ; she has requested to
adopt all four of the siblings (including Jordan) . She has not stated her motivation to
adopt to this worker.
Lori did state to this worker that her first choice would be to have a guardianship with
the children . When asked why, Lori stated this was because it would be easier to do than
to adopt, but if a guardianship is not an option , then she would like to adopt the
children.

SOC IAL HISTORY OF A PPLICA NTS (self reported)

Maternal
This information is unknown.
This worker requested that Lori complete an adoption
application , fill out some forms to provide this information, and supply this worker with
a copy of her licensing home study from the State of Florida. Lori Scribner has not met
any of these requests.
Therefore, this worker has been unable to obtain this
information.
Paternal

OHS-1 926 (Rev. 109) MS Word

Page 28

IThere is no paternal applicant.

living Together Partner

This worker is not aware of any live in-partner.

FINANCIAL (Self Reported)

Lori stated in a phone conversation with this worker that she is financially stable and
would be willing to adopt the children without the assistance of Support Subsidy.
HOME AND COMMUNITY(Self Reported)

This information has not been supplied to this worker by Lori Scribner .

ADDITIONAL DOCUMENTATION
Lori Scribner petitioned the court for guardianship of these children .
judge's order is enclosed along with this report .

A copy of the

ABILITY TO MEET THE CHILD'S NEEDS

According to the judge's decision in the denial of the guardianship , the judge does not
feel Lori Scribner is the family best able to meet the children's needs. In addition to
the judge ' s statements, the re are significant concerns that Lori would not keep the
children safe from the~r birth parents. Jordan has stated that Lori told him he could
see his b~rth mother all the time if he lived with Lori.
This worker does not know Lori's assessment of the mistreatment and neglect that led to
the children being in care . This worke~ has been told that the children state their
grandmother has told them that they are in foster care because they were poor and that is
the only reason .

RECOMMENDATION
The judge ' s written order of the den~al of the guardianship outlines very specific
reasons why the children should not live with Lori Scribner.
In addition to those
reasons, significant concern is raised based on the children's behaviors following visits
with Lori Scribner. The difficult behaviors that were present when they first came into
care resurface (such as their having nightmares, the girls crying in their rooms , and
inappropriate sexual acting out behaviors) . They appear to act as they did back when
they were in their birth home , an environment of abuse and neglect. The children
themselves state that they do not feel safe with Lori. There is additional concern that
Lori would not keep the children safe from their birth parents . The most compelling
reason, as also reported in the judge's statement, is that the children do not want to
live with Lori Scribner. The girls have maintained all along that they want to stay in
their current placement . Jordan has gone back and forth between wanting to live with
Lori and wanting to stay where he is. Be is now saying h. wants to stay where he is , but
most importantly , he wants to be where his sisters are . These childre n have been in
foster care a very long time . They have found a home where they feel safe and loved .
They themselves state that they do not wan~ to leave this security that they have found .
For these reason, Bethany Christian Services rQcommends that Lori Scribner be denied

DHS-1926 (Rev. 1-(9) MS Word

Page 29
Co n s ent t o adopt t hes e four c h i l dre n .

Date

Date

AUTHORITY:
COMPLE TI ON:
PENALlY:

PA 288 of 1939, as amended, MCLA-710.27(5)

Voluntary.
None

DHS-1926 (Rev. 1-09) MS Word

Department of Human Services (DHS) will not discriminate against any

individual Of group because of race, sex, religion, age, national origin, color,
height. we ight, marital status, political beliefs or disability. If you need help
with reading. writing, hearing, etc., under the Americans with Disabilities Act,
you are invited to make your needs known to a OHS office in your area.

Bethany Christian Services

6995 W 48 th Street
Fremont MI 49412

Page 30

06/23/2011

LORI SCRIBNER
22 POINCIANA AVE

ST. AUGUSTINE, FL 32086

Re:

Heeren / Gonzalez
Child's Name (if applicable)

Dear Ms. Scribner

After careful consideration, it has been determined that we cannot recommend you for
adoption. Enclosed is a copy of your Adoptive Family Assessment. The following
concerns were considered in this decision:
The judge's written order of the denial of the guardianship outlines very specific
reasons why the children should not live with Lori Scribner. In addition to those
reasons, significant concern is raised based on the children's behaviors following visits
with Lori Scribner. The difficult behaviors that were present when they first came into
care resurface (such as their having nightmares, the girls crying in their rooms, and
inappropriate sexual acting out behaviors). They appear to act as they did back when
they were in their birth home, an environment of abuse and neglect. The children
themselves state that they do not feel safe with Lori. There is additional concern that
Lori would not keep the children safe from their birth parents. The most compelling
reason, as also reported in the judge's statement, is that the children do not want to live
with Lori Scribner. The girls have maintained all along that they want to stay in their
current placement. Jordan has gone back and forth between wanting to live with Lori
and wanting to stay where he is. He is now saying he wants to stay where he is, but
most importantly, he wants to be where his sisters are. These children have been in
foster care a very long time. They have found a home where they feel safe and loved.
They themselves state that they do not want to leave this security that they have found.
F or these reason, Bethany Christian Services recommends that Lori Scribner be denied
Consent to adopt these four children.

You may request a case conference (in person or by telephone) within 14 days of
receipt of this letter to discuss information contained in your family assessment. At
the case conference, you may be accompanied by an attorney or other person(s) of
your choice.
The case conference provides an opportunity for you and the adoption agency to
thoroughly review the decision. You may present additional information. The case
conference will be conducted by the agency director or designee. A request for a case
conference may be made to Cara Stray at 231-924-3390, Susanne Jordan at 231-9243390 or Dave Glerum at 231-924-3390 at Bethany Christian Services, 6995 W. 48 th St.,
Fremont, MI 49412.
DHS-605 (Rev. 3-09) MS Word

If you applied for adoption of a specific child, we will be submitting our

Page 31
recommendation to the Superintendent of the Michigan Children's Institute, who will
make the final decision regarding consent to adoption. You may provide additional
information directly to the Michigan Children's Institute office, attention: William
Johnson, MCI Superintendent, Michigan Department of Human Services, 235 S. Grand
Ave., Suite 412, P.O. Box 30037, Lansing, MI 48909 (Phone: 517-335-6421).

Sincert5S~

caraQay
Adoption Worker
cc: GAL
Shon Cook

DHS-605 (Rev. 3-09) MS Word

JOSEPH J. AUFFREY,

Ph.D.

Page 32

Clinical Psychology
19100 Fruitport Road
Spring Lake, Michigan 49456
Telephone (616) 842-2125

September 1, 2010

Honorable William C. Marietti

Muskegon County Circuit Court Family Division
990 Terrace Street, 4th Floor
Muskegon, MI 49442

Re:'

Jordan Gonzalez, DOB: 9-5-03

Esdeanna Heeren, DOB: 10-26-02
Kylea Heeren, DOB: 2-16-04
Carmen Heeren, DOB: 10-3-05
Psychological Exams
Date of Exams: 8-30-10
Court File No. 08-36989-NA

Dear Judge Marietti:

In accord with your recent Court Order, I have conducted psychological
examinations of the Gonzalez-Heeren children, including Jordan Gonzalez,
Esdeanna Heeren, Kylea Heeren, and Carmen Heeren.
As you are aware, I have previously examined the mother, Kathy Bolduc, and
issued a report to DHS, Shundrice Brown, dated May 26, 2008. It also should be
noted that I have reviewed voluminous documentation of this case, as offered by
Attorney Shon Cook and by Andrea Hagen of Holy Cross Children's Services. I
have elicited further information from conversation with Ms. Hagen and also with
grandmother, Lori Scribner. In addition to individual examinations of the children
in this office. I have observed grandmother, Lori Scribner, interacting with the
children in this office.
A complete report of my findings follows:

Page 33

Honorable William C. Marietti

Re: Gonzalez-Heeren Children
September 1, 2010
Page 2

INTERVIEW NOTES
JORDAN GONZALEZ

Jordan appears for evaluation escorted by a caseworker. He correctly identifies

his chronological age as 8, although he is only a week short of his September 5th
9-year birthday. This fellow is trim and apparently fit and of average size for a
boy of his age. He is initially quiet, but cooperative and responsive to directives.
He shows a bit of wiggly hyperactivity as the interview proceeds, and becomes
notably agitated when questioned about matters conceming his foster parents,
his grandmother, and other uncomfortable topics. His mood could be described
as variable and appropriate. He speaks with positive articulation and a normalrange vocabulary .
Jordan requires little structure to talk about his developmental years and various
residential and custody situations. He does not identify any specific locations of
residence, but knows that he lives currently in a locale far away from his mother's
home. Jordan reports early childhood experiences with mother, Kathy, and
stepfather, Joey. He seems to know that his real dad is Ted, but he apparently
has not had much contact that he remembers.
Jordan correctly delineates his three sisters and their ages. Jordan reports
several residences with his mother, although he cannot distinguish between
perhaps four locations or twenty locations. Jordan is rather quick to step back to
an "I don't know" response whenever he is asked for specific details. Jordan
does not remember any specific employments for his mother or his stepfather.
Jordan reports that he has been attending an unnamed or unremembered school
in the Tustin area for the past two years, most recently involving 1st-grade-level
studies with Miss Anderson as his teacher. He indicates that Miss Anderson is
generally a nice person, but could sometimes be "mean" if some of his
classmates were "naughty."
Jordan is reporting that he has lived in the Tustin area in a foster home for "a
long time." He reports his current residence in the home of Aunt Dorice and
Uncle Terry. Jordan reports that Aunt Dorice works at a local church a few days
a week, and Uncle Terry is employed as a builder. He correctly identifies

Page 34
Honorable William C. Marietti
Re: Gonzalez-Heeren Children
September 1, 2010
Page 3

Hannah, Erin, and Jenna as biological daughters in his household. He notes that
Hannah is a full-time college student usually living away from the home. Jenna
apparently attends a nearby college, and Erin is a high school student.
Cognitive screening of Jordan Gonzalez reveals overall functioning in the lower
part of the normal range. This child accomplishes perceptual motor and fine
motor drawing tasks at the upper part of the normal range. He also displays an
average-level vocabulary. He responds to various components of the Wechsler
Intelligence Scale for Children and the K-BIT Short Form Intelligence Test,
revealing full-scale functioning in the lower part of the normal range. His scores
seem to be much higher in perceptual motor functioning tasks. Academic
screening reveals Jordan as a nonreader.
Jordan Gonzalez is reporting a current residence with foster parents in the Tustin
area involving a big house with lots of rooms, which he describes as being clean
and well-kept. He seems to be contrasting his current residence with houses in
the past, shared with his mother, which involved "cockroaches." He describes
his current home as being out in the country as opposed to a neighborhood area
where mother apparently lived on several occasions.
Jordan reports that he is living with foster parents currently because his mom
was involved in "bad things, drugs, and stealing." He thinks that he might like to
return to residence with his mother at some point, but does not know that might
be possible. He thinks that there is also a possibility that he could live with
Grandma Lori in Florida, but he has never been there and seems unsure about
the prospect. He thinks he would like to visit Florida and swim in the ocean. At a
later time in the interview, Jordan expresses a vague dislike for Grandma Lori,
and he eschews any more specific delineation of this concept.
Jordan Gonzalez talks about his preferences and dislikes in a very ageappropriate fashion. He thinks he would like to live in a house with a big
refrigerator containing cheese, ice cream, juice, and milk. He does not like to eat
pickled beets, but cannot think of any other food item that he would refuse.
Jordan is cooperative with general interview questioning, but seems to reach the
end of his attention span after about 45 minutes. This fellow becomes very
squirmy under repetitive or detailed questioning, and seems to want to "just get it
over with." The general tenor and content of his responses could be described

Page 35

Honorable William C. Marietti

Re: Gonzalez-Heeren Children
September 1, 2010
Page 4

as highly orchestrated and filled with adult cliches. Nevertheless, Jordan seems
to want to offer moderate and nonjudgmental responses whenever possible. He
eschews clear-cut opinions about his circumstance.

INTERVIEW NOTES
ESDEANNA HEEREN

Esde appears for evaluC)tion as a slightly built lass of apparent physical fitness.
She comes across immediately as bubbly and articulate. She is dressed
appropriately in a loose, casual manner and well-groomed. She seems anxious
to talk with the examiner and has many important things to say.
Esde does not remember much about her residential location in early childhood,
but states, "We moved around to lots of different places." She estimates that she
lived "50 places" with real mom, Kathy. Esde is able to report her current age as
7 years and an upcoming birthday October 26.
Esde reports mother, Kathy, age 26, and she does not know where Kathy
currently lives. She believes that Joey was her "real dad," although there were
"lots of dads." She remembers that Joey was "mean," but is unable to offer any
specific observations of behavior or remembrances of Joey's "mean" behavior.
Esde believes that she was removed from her mother's home due to "She was
making very bad choices and wrong choices."
Esde remembers living with a foster parent, Miss Ruth; this residence involved
only Esde and her two sisters; Jordall was placed elsewhere.
Esde Heeren is reporting a current residence in "Michigan"; she cannot be more
specific about the location. She knows that she lives with foster parents Dorice
and Terry for "two months." She later thinks maybe it has been two years. She
describes the residence of Dorice and Terry as a country location with lots of
animals, including dogs, cats, chickens, goats, and a bees nest.

Page 36
Honorable William C. Marietti
Re: Gonzalez-Heeren Children
September 1, 2010
Page 5

Esde describes the composition of the home involving three biological children
for the foster parents, including Hannah, a full-time college student. She reports
that Dorice is "way older than my mom" and is employed at a local church. She
describes foster father Terry employed as "He fixes and builds houses." She
describes three to four vehicles in the household, including Terry's work truck.
Esde describes her siblings - Jordan, aged 8; Carmen, aged 4; and Kylea, aged
6. Esde describes Carmen as a troublemaker, whiny, and demanding. She
recalls an instance in which Carmen was burned on the muffler of a recreational
vehicle at the foster home. She reports that Carmen displays regular tantrums
and meltdowns.
Esde is reporting attendance during the last school year at Leroy School or the
"eit?mentary school." She attended kindergarten last year, but thinks she will be
in 2 nd grade this year. She recalls Miss Peterson as her teacher, and identifies
this woman as "nice." Esde believes that she is one of the smart kids. She does
not recall attending any school when living with her biological mother.
Cognitive screening of Esde Heeren reveals apparent overall functioning in the
normal range. This child easily accomplishes age-appropriate perceptual motor
tasks. She speaks with good articulation and adequate vocabulary. Her
verbiage is notably sprinkled with adult cliches, which are heavily value-laden.
Intellectual screening utilizing the Wechsler Intelligence Scale for Children and
the K-Bit Short Form Intelligence Test reveals a full-scale IQ in the normal range.
Nevertheless, academic skills are marginal for this child. She is a nonreader, but
is able to accomplish some basic addition and subtraction math skills.
With little structure or questioning, Esde offers replete statements and opinions
about her current residential situation and other custodial opportunities. She
talks about her great affection and attachment to the present foster parents, the
Koetje family, and she describes a large extended family configuration, including
a grandmother, aunts and uncles, and cousins. In cliche fashion, Esde reports
that the Koetjes are "a great family and a great fit for me." She also states, "They
discipline us the right way." She talks about apparent disciplinary use offish oil
and Tabasco sauce by the Koetjes, although "Some people think it's wrong."
Esde remembers an incident in which she fell through the ice and soaked herself
with freezing water. She recalls that she was punished with fish oil and "running
laps."

Page 37

Honorable William C. Marietti

Re: Gonzalez-Heeren Children
September 1, 2010
Page 6

Esde reports her aversion to Grandma Lori in no uncertain terms. She speaks in
a well-rehearsed fashion about "Grandma Lori said untrue things about Dorice
and Terry." She further states, "Dorice and Terry told us the real stuff." She also
reports that Dorice and Terry had told her that they are very concerned that she
would lack supervision if she were living in Florida, and that she might be forced
to have contact with her biological mother.

INTERVIEW NOTES
KYLEA HEEREN

Kylea is interviewed after a brief delay; she was rendered deep asleep during the
ride to the office and required considerable reawakening. She, nevertheless,
appears alert and responsive during interview.
This girl appears generally trim and fit and appropriate size for her age group.
She is dressed in a somewhat disheveled, casual manner, but generally wellgroomed. This is a talkative child who offers replete details regarding her
neighborhood and her interactions with almost anybody in her environment. She
requires little structure to babble incessantly about her circumstances and
opinions, which are apparently derived from various figures involved in her life.
Kylea reports her belief that she was living at home with her biological mother,
Kathy, during early childhood, but removed about two months ago. She was
living with foster mother, Ruth, in a city setting, but eventually placed with current
foster parents, Dorice and Terry. She describes Dorice and Terry as living in a
rural setting with some remote neighbors. Kylea believes that she was removed
from her mother's home due to "Dad was beating me up." She also reports that
her brother, Jordan, may have abused her. She further reports that her biological
parents were "not good people."
Kylea talks about her current foster placement with Terry and Dorice. She is
unable to estimate the ages of her foster parents or whether they might be older
or younger than her biological parents. She believes that Terry is involved
working "downstate" at "all sorts of places." She believes that Dorice works
periodically at a local church and "We usually go there to sing." Kylea also
describes foster sister Jenna as age 18, and working a job at a local feeding

Page 38

Honorable William C. Marietti

Re: Gonzalez-Heeren Children
September 1, 2010
Page 7

center. She describes foster sister Erin as age 14, and a high school student.
She describes foster sister Hannah as 20 years old and attending a remote
college, along with boyfriend Matt.
Kylea talks about 7-year-old Alex, who died from lung cancer in the home of
Terry and Dorice sometime in the past. She also reports frequent contact with
Uncle Mitch and Uncle Mike. She talks about three, four or five vehicles involved
in family transportation. She indicates that there are "lots of animals" around the
foster residence, including goats, dogs, and chickens. She reports, "We had to
take the dog to the doctor; he was suffering, and we had to put him down." She
talks about going swimming at Uncle Dale's and Aunt Suzy's - apparent relatives
of Terry and Dorice.
Cognitive screening of Kylea Heeren reveals apparent functioning in the upper
part of the normal range. She responds to perceptual motor tasks with ageappropriate accomplishment. Intellectual screening utilizing the K-BIT Short
Form Intelligence Test reveals a verballQ somewhat above average. She is not
academically developed at this point.
Kylea Heeren is reporting that she would be traveling to the home of foster
cousins following this evaluation. She further indicates that Dorice and Terry are
on a vacation in Colorado, but will soon return and have arranged for a family
vacation to a hotel and water park. Kylea expresses much enjoyment about
visiting with her foster cousins at Aunt Candy's house. She also likes to talk
about favorable interactions with many extended relatives of the foster parents.
She particularly likes to go to Aunt Doreen and Uncle Keith's house, where they
are able to cool off in the downstairs living quarters .

Kylea does not remember anything in particular about living in her mother's
house. She cannot state with any surety that there was anything wrong at mom's
house or that mom misbehaved in any specific manner. She, nevertheless,
reports that she has a clear preference for her current foster home as a
residence. She likes Terry and Dorice because "they tuck us in" at bedtime. She
describes frequent family activities. She thinks that her foster father, Terry, sings
a nice song when they go to church.
Kylea does not seem to be expressing any particular preference for visiting with
her biological mother. At one point, she indicates that she simply does not want
to visit, with no particular reason in mind. At another time, she indicates that

Page 39

Honorable William C. Marietti

Re: Gonzalez-Heeren Children
September 1, 2010
Page 8

mom might bring gifts, and she has enjoyed this in the past. Kylea seems
reluctant to comment about her grandmother, Lori. At one point, she thinks that
she would be interested in visiting in Florida. At another time, she seems to be
imitating her older sister, commenting that Grandma Lori "lies to Terry and
Dorice." She also says Grandma Lori is "rude."

INTERVIEW NOTES
CARMEN HEEREN
Carmen Heeren is escorted to her interview by a "new" caseworker; Carmen
cannot remember her name. She appears trim and fit and socially affable upon
interview, although she has been notably whining and crying while waiting in the
outer office. She seems to enjoy the individual adult attention during interview
and responds in an articulate fashion. This girl is dressed appropriately in a
casual manner and well-groomed.
Carmen talks openly and with little structure regarding her current foster-care
placement with Aunt Dorice and Uncle Terry. She reports that this is a large
home, with two older parents and three older biological children. She describes
at least three operational vehicles for transportation in the family. She is able to
name her siblings with appropriate ages. She does not know much about Uncle
Terry's employment, but she indicates that Dorice works at a church, perhaps a
different one than they regularly attend.
Carmen describes the family setting involving a large home with many rooms and
a downstairs living room and play room with a television. She reports a barn
near the house and numerous animals, including goats, chickens, dogs, and a
cat.
Carmen talks about her preschool experiences last year at "elementary school."
She remembers her teacher, Mrs. Porter. She thinks that Mrs. Porter is generally
"nice," but she yells at the children when they are causing trouble. Carmen
indicates that she will be attending the "young fives" program this year.
Carmen responds to a variety of intellectual and developmental screening
techniques utilizing the Wechsler Preschool and Primary Scale of Intelligence,
the Beery Perceptual Motor Integration Test, and the K-BIT Short Form

Page 40
Honorable William C. Marietti
Re: Gonzalez-Heeren Children
September 1, 2010
Page 9

Intelligence Test. She also accomplishes various block-configuration

assignments. Her overall functioning is definitely within normal limits and
possibly somewhat above average. There are no indications of developmental
deficiency.
Carmen Heeren, with little structure, offers her interpretation of her
developmental circumstances and current living arrangement. She believes that
she was living with her mother, Kathy, in "Michigan" until removed to her current
foster-care home. She expresses openly, "I really, really, really want to live with
Kathy." She reports, "She's still our mom." She goes on to say that her brother,
Jordan, has a different father because mother, Kathy, "slept with different
dadies."
Carmen believes that her biological father, "Joey," was incarcerated, but she
does not know if he currently is. She has not had any contact with him recently.
She does not remember anything about him and cannot offer a physical
description of any sort. She believes that her father, Joey, "was mean, but now
he's in college to have a better life." Carmen believes she was 2 years old at her
last contact with the father.
Carmen talks openly about possible residential arrangements. As noted above,
she clearly expresses a preference for living with her mother, Kathy. She,
however, indicates that she does not want to live with Grandma Lori. She is
unable to offer any specific reasons and states, "Just 'cuz." Carmen also knows
that she does not want to visit or live with her father, Joey, because "he stealed a
lot" and "did very bad things." She cannot recall where she may have obtained
this information, indicating, "I just know."

DIAGNOSTIC IMPRESSIONS AND RECOMMENDATIONS

The current assessment seeks to evaluate the general mental health status of
the Gonzalez-Heeren children and to identify any vulnerabilities in regard to the
present and future residential-custody placement:

Page 41
Honorable William C. Marietti
Re: Gonzalez-Heeren Children
September 1,2010
Page 10

1. The general mental health status of these children is not seen as a

deter-mining factor in their custody or placement. While it is ascertained that
the children have been through some degree of instability, neglect, and
perhaps abuse, they are not functioning as mentally ill children at present. All
these children are of normal intelligence and appropriate social development
for their age group. There are no indications of serious depression or any
sort of psychotic symptoms. All of the children - but most notably Esde display anticipatory anxiety about anticipated changes in their lives, but this is
seen as a normal reaction under the circumstances. Basically, these are
mentally healthy children with every opportunity to develop normally into
.adolescence and adulthood. Each of the children displays an ability to use
psychological defenses in order to maintain their adjustment. They use such
stniltegies as avoidance (Jordan) and passive-aggressive behavior (Esde),
.but also simply childish tantrum outbursts (Carmen). These behaviors are
seen as normal for children trying to adapt to unpredictable circumstances.
2. These children, individually and collectively, have obviously been subjected to
indoctrination and alienation in regard to the various parent figures in their
lives. It seems highly likely that the Child Protective Services and Foster
Care system has tried to steer these children in the direction of adapting to a
new life after parental termination. Probably many well-intended individuals
have "helped" the children to shape their interpretations. More recently,
perhaps, the foster-parent home may have introduced the children to a new
value system, which is now seen as preferred and superior to alternatives.
The paternal grandmother may be trying a bit too hard to sell the children on
an opportunity for a new life in Florida.
3. There can be little doubt that the children collectively are firmly entrenched as
a part of the current foster family, with uniformly positive interpretations of
their experience in that home.
4. The Gonzalez-Heeren children may be suffering from a surplus of parent-andauthority input offered in a charitable fashion to help the children adjust to a
difficult circumstance. The children may also have been offered a surplus of
credibility. These children may find that their comments and preferences are
seemingly regarded as valid in the adult world. They may have been overly
encouraged to think that they are in charge of their own fate. This may create

Page 42
Honorable William C. Marietti
Re: Gonzalez-Heeren Children
September 1, 2010
Page 11

a situation where the children are spontaneously overresponsive and

overopinionated, as well as easily influenced by any new information offered
by adults.
5. This examiner believes that the Gonzalez-Heeren children would adjust
favorably in any stable, nurturant, and protective home offered to them on a
consistent basis. Although they would collectively like to stay in their current
foster placement and avoid future disruption and adjustment, it is also highly
likely that they would adjust eventually (six months) in Grandma Lori's house.
The only current contraindication to movement would be short-term anxiety,
misbehavior, and adjustment symptoms, which would be experienced by any
new caregiver.
6 .. Continuing adjustnient counseling for the children is suggested only if that
counseling focuses on adaptation to a new residential situation. These
children are not seen as generally mentally ill or in need of treatment for
mental illness.
I hope this has been helpful.
Sincerely,

~W-7LJ.::I- ~
Joseph J. Auffrey, Ph.D.
Licensed Psychologist
JJA:pt

-.

Page 43

Contract/Grant No.:
Amendment No:
Method of Payment:

A12-62001
1
Unit Rate

STATE OF MICHIGAN
DEPARTMENT OF HUMAN SERVICES

WHEREAS, the Department of Human Services of the State of Michigan (hereinafter referred
to as the "DHS") entered into a contractual Agreement effective April 1,2012 with Bethany
Christian Services, having a mailing address of 901 Eastern Ave., NE, Grand Rapids, MI
49501, Fremont, MI 49412 (hereinafter referred to as "Contractor"), for the provision of
certain services as set forth therein; and,
WHEREAS,
Agreement.

it is mutually desirable to DHS and to the Contractor to amend the aforesaid

THEREFORE, in consideration of the promises and mutual covenants hereinabove and

hereinafter contained, the parties hereto agree to the following amendment of said
Agreement:
Article I
In Section I., CONTRACTOR RESPONSIBILITIES,

Item G., Client Eligibility Criteria, Service

# 1 of 2 shall be deleted and replaced with:

1. Eligible Clients
The Contractor shall perform activities for permanent wards that are title IV-E
funded and Michigan Children's Institute (MCI) wards for which adoption is
the plan.
Article II
In Section I., CONTRACTOR
be amended as follows:

RESPONSIBILITIES,

Item K., Services to be Delivered, shall

The Contractor shall comply with all applicable DHS policy and DHS policy
amendments. Where a conflict exists between DHS policy and the requirements
of this Agreement, DHS policy shall prevail. Throughout the terms of this
Agreement, the Contractor shall ensure that it provides all applicable DHS policy
and DHS policy amendments to social service staff. The Contractor shall ensure
that social service staff complies with all applicable requirements. DHS policies
and DHS policy amendments are published on the following internet link:
http://www.michigan.gov/dhs.

CM-F901 (Rev. 10-09) Previous edition obsolete. MS Word

t.

,~

Page 44

This Amendment shall be attached to the Agreement, and is effective April 1,2012, said
Agreement being hereby reaffirmed and made a part hereof.
The Undersigned has the lawful authority to bind the Contractor to the terms set forth in this
Agreement.

Date d at

this

Grand

M' hi
IC Igan

February

201 2

Rapids

day of

Bethany Christian Services

By:

e Vos
Michigan

Dated at

this

Mb '

U~I!,

LdaYOf~,

DEPARTMENT OF HUMAN SERVICES

Michigan

W}~

By:

Contract # A 12-62001

-2CM-F901 (Rev. 10-09) Previous edition obsolete. MS Word

Operations

~~~~~~~~-----------

Page
45
RECEIVED
[:IeRS

Contract No: .
Method of Payment:

A12-62001
Unit Rate

AGREEMENT
Between

Michigan Department of Human

(hereinafter referred to as "DHS")
235 South Grand Avenue
P.O. Box 30037
Lansing, Michigan 48909

Services

& (hereinafter referred to as "Contractor")

Bethany Christian Services
901 Eastern Ave., NE, Grand Rapids,
MI49501

This Agreement is effective from October 1, 2011 through September 30,2014.

I.

CONTRACTOR RESPONSIBILITIES
A.

Obligations
The Contractor shall comply with all of its obligations pursuant to this Agreement.
Failure by the Contractor to cure a breach, if requested in writing by DHS, will be
considered a breach of this Agreement, and DHS may terminate this Contract
pursuant to the provisions of Section 111(A)(3)of this Agreement.
If the Contractor fails to comply with obligations set forth in this Agreement, and
within the mutually established period of time, DHS may, at its discretion, invoke
sanctions on the Contractor which may include actions to collect disallowed costs
and cancellation or termination of the Agreement under the provisions of Section
III(A) ofthis Agreement

H.

Email Address
The Contractor authorizes DHS to use the contact information below to send
Agreement related communications. The Contractor shall provide DHS with
updated contact information if it changes. The Contractor confirms that this
person is either authorized to sign Agreements or is recognized by this
organization to assume this responsibility.
Contact email address: BDV@Bethany.org

C.

Requests for Information

The Contractor may be required to meet and communicate with DHS
representatives and from time to time DHS may require that the Contractor create
reports or fulfill requests for information as necessary to fulfill the DHS' obligations

Page 46

under statute. The Contractor agrees that it will comply with DHS' requests for
information or requests for reports as required in this subsection.
D.

Licensing
The Contractor shall ensure that, for the duration of this agreement, it shall
maintain a license for those program areas and services that are provided for in
this Agreement. If the Contractor fails to comply with this section, DHS may
terminate this Agreement for default.
The Contractor is licensed to provide service under this agreement under the
following license number(s):

# CB620200977
E.

Geographic Area
The Contractor shall perform
geographic area:

activities

described

herein in the following

Statewide
F.

Location of Facilities
The Contractor shall provide services described herein at the following location(s):
6995 West 48th Street, Fremont, M I 49412

G.

Client Eligibility Criteria

1. Eligible clients
Services provided by the Contractor under this Agreement are limited to those
youth and families for whom DHS can legally provide care and services and for
whom DHS makes a State payment.
County child-care funded children referred to DHS for care and supervision by
probate court order but for whom DHS may have no legal responsibility to
make a payment are also eligible clients.
2. Method for Determination of Eligibility
Determination of eligibility will be made by DHS.

H.

Program Statement

Page 47

The Contractor shall provide DHS with copies of its program statements for all
programs covered under this Agreement. The program statement shall comply
with the requirements of DHS Bureau of Children and Adult Licensing standards
specific to the license listed in Section 1(0) and DHS policy. The Contractor shall
inform DHS of any changes made to tile program statement at any point during
the term of this Agreement and provide copies of the new statement to DHS
within 60 days.
I.

Credentials
The Contractor shall assure that all staff performing functions under this
Agreement, including contractor employees and/or subcontractors, are
appropriately credentialed or trained.

J.

Compliance with DHS Modified Settlement Agreement

The Contractor shall ensure compliance with the applicable requirements of the
following sections in Dwayne B. v. Rick Snyder Modified Settlement Agreement
hereinafter referred to as the Modified Settlement Agreement:

1. Section VI. Staff Qualifications, Training, Caseloads and Supervision

Section VII. Assessments, Case Planning and Provision of Services
Section VIII. Services and Placement Resources Development and Utilization

2.
3.
4.
5.

Section X. Placement Standards and Limitations

Section XI. Limitations on Use of Psychotropic
Punishment, and Seclusionllsolation
6. Section XII. DHS Supervision of Contract Agencies

K.

Medications,

Corporal

Services to be Provided
The Contractor shall comply with all applicable DHS policy and DHS policy
amendments. Where a conflict exists between DHS policy and the requirements
of this Agreement, the requirements of the Agreement shall prevail.
DHS policies and DHS policy amendments are published on the following internet
link: http://www.mfia.state.mi.us/olmweb/exlhtmll
Additional Requirements:
1. General Adoption Responsibilities
a. Place the child for adoption under the provisions of this Agreement or
assist in the child's placement by another private agency or DHS local
office.

Page 48

b. The Contractor that has the identified adoptive family shall be the agency to
perform adoptive activities including: placement, case management,
supervision and court related requirements.
c. When the Contractor has an identified adoptive family fora child under
supervision of another agency the Contractor shall work cooperatively with
the child's agency in coordinating and sharing responsibility for preplacement activities and associated costs for transportation and other case
services.
d. When a placement for adoption disrupts or a finalized adoption dissolves
within eighteen (18) months of the date of the order for placement or
finalization the Contractor shall be, unless ordered or directed otherwise by
the Court or DHS, responsible to provide full adoption services for the
child/youth as detailed in this contract. The responsible contractor is
defined as the Contractor that had adoption planning responsibilities for the
child when the initial adoption placement occurred. The exception shall be
in a contested case where a child is placed in an adoptive home against
the recommendation of the contractor.
e. Provide guidance to the child's foster parent in preparation of the child for
adoption or in facilitating a transfer of the child's attachment to the adoptive
parents.
f.

In instances where the child's agency has performed pre-placement

activities for the adoptive family's agency, the adoptive family's agency
shall provide the child's agency with a copy of the court order placing the
child in the adoptive home within thirty (30) working days, after receipt of
said order.

g. The Contractor shall develop plans for the effective use of crossjurisdictional resources to facilitate timely adoptive or permanent
placements for waiting children. This shall include photo listing on the
MARE website, networking with other private agencies in determining
availability of resource families and other recruitment activities that are
statewide and national in nature. The Contractor shall respond to and
actively work with, perspective adoptive parents outside of the State of
Michigan.
h. The Contractor shall maintain documentation of completion of the above
listed requirements in the child's adoption case file for review by DHS.
2. Adoption Recruitment. Orientation and Training

Page 49

a. The Contractor shall provide adoption recruitment activities in collaboration

with other private agencies and DHS local offices to focus on children
registered on Michigan Adoption Resource Exchange (MARE).
b. The Contractor shall work cooperatively with other contracted adoption
agencies, DHS and trained adoptive parents to provide orientation and
training. It is recommended that adoptive parent peer mentors be matched
to prospective and new adoptive parents.
c. The Contractor shall involve youth in the planning and organizing of
adoption recruitment events.
d. The Contractor shall develop supports for children and youth moving to
permanency though adoption. Best practice research indicates that support
groups, peer mentors, informational sessions and individual counseling are
effective tools. Developing appropriate rituals and recognition for the
transitions experienced shall be part of the adoption process.
e. The Contractor shall be responsible for providing information to the
prospective adoptive parent(s) regarding the adoption subsidy program on
behalf of all eligible children. If the Contractor fails to provide information or
to apply for subsidy, and it is later determined that the child is eligible for
subsidy, the Contractor shall be responsible for providing financial support
to the family equal to the subsidy amount and eligible Medicaid coverage,
from the time the family makes the request for the re-determination of
eligibility and the date DHS determines that an error occurred based on the
Contractor's failure to inform or apply to subsidy.
3. Mare Related Responsibilities
The Contractor shall cooperate with MARE related activities
responsibilities, as detailed in this document including but not limited to:

and

a. The Contractor shall appropriately inform and prepare children concerning

the process of photo listing. Children shall be adequately attired and well
groomed. Adequately attired is defined as that which a parent would
provide for their child in a school photo. The Contractor is responsible for
securing photography services and may request coupons or assistance
from the MARE office.
The Contractor is responsible for facilitating
transportation to key photo sites and supervision of the child(ren) during the
process.
b. The Contractor shall, as appropriate to the child's ability, involve youth over
age nine (9) in developing individual recruitment materials and narratives
for MARE photo listing.

Page 50

c. The Contractor must submit a copy of the Order Placing Child after
Consent to the MARE office within ten (10) working days of its issuance by
the court.
d. Upon determination by the Contractor that the MARE potential family
'match' is appropriate, the child and family agencies shall begin the process
towards adoption within ten (10) working days.
e. The Contractor shall provide a written brochure (developed by MARE) to
adoptive families regarding their right to be included in the MARE
prospective family registry and provide an explanation of this process
during orientation. This brochure and information shall again be provided to
the prospective family during the formal training process.
f.

The Contractor shall ensure all age appropriate youth available for
adoption have knowledge of and access to the MARE newsletter for youth.

g. The Contractor shall notify MARE no less than quarterly of planned

adoption related events, scheduled or tentatively scheduled for the next
quarter. These activities shall include but are not limited to orientation,
training dates, workshops, adoption fairs, recruitment activities, post
adoption support activities and guest speakers. The Contractor will indicate
if the events are open to the public or limited to a specific audience and any
costs for family participation.
h. If the local court is participating, the Contractor shall cooperate with MARE
during planning and implementation of National Adoption Day activities and
regionally based adoption events.
i.

The Contractor shall ensure MARE staff has access to case records, the
child, child's worker, and other material or persons necessary for the
development and updating of the child's MARE file and recruitment
material.

j.

The Contractor shall submit the completed Disruption/Dissolution survey to

MARE within thirty (30) days of receipt of the survey from MARE.

k. The Contractor shall provide to MARE by October

following:

so" of

each year the

1. The address of all offices.

2. Names, telephone numbers and email addresses of all adoption
workers and supervisors.
3. Types of services provided by the contractor.

Page 51

I.

L.

The Contractor shall ensure that a supervisor attends the regionally based
MARE informational session annually. This individual shall then be
responsible to disseminate MARE information and material to appropriate
agency staff.

Unit Definitions
1.

Unit Title: Per Diem Payments

For each child where the adoption case is referred to the Contractor by DHS,
the Contractor shall receive payment of $20.00 per diem for each day of
adoptive services from acceptance of the case to date of placement, or for
one hundred fifty (150) days, whichever comes first. The maximum per diem
payment amount per child is $3,000.
The total amount paid for the per diem rate will be deducted from the
applicable placement rate when the child is placed for adoption.
The Contractor must submit the DHS-3600 with the date of acceptance
indicated and the completed payment voucher (DHS-1582).

2.

Unit Title: Placement

All unit definitions below are based on the length of time from the receipt
the written order from the court terminating all parental rights to placement
an adoptive home or, the date on which the DHS-3600 is fully executed,
the case has been transferred from DHS to the Contractor, whichever
later.

of
in
if
is

The Contractor must submit the Order Terminating Parental Rights, the
Order Placing Child and the Acceptance of Case Transfer documents if
applicable. The document indicating the date of acceptance must be signed
by a DHS representative as verification. If there was a per diem payment for
the case prior to placement the Contractor must denote "per diem billed" in
box 18 of the payment voucher (DHS-1582).
3.

Unit Title: Finalization

Unit Definition: One unit equals receipt of an Order of Adoption for a child for
whom a Placement rate was paid.

4.

Unit Title: Permanency

Unit Definition: One unit equals an adoption that does not end in dissolution
within 182 days of the issuance of an Order of Adoption. The Permanency
Unit Rate shall be paid at the same time as the Finalization Unit Rate. The
Contractor will be responsible for repayment of the Permanency Unit Rate for
those cases for which the adoption ended in dissolution as documented in
the Department's annual Child and Family Services Review (CFSR) report.

Page 52

5.

Unit Title: Baseline

Unit Definition: The Order Placing Child is signed by the court more than two
hundred ten (210) days, but two hundred forty (240) or fewer days after the
date of placement as defined in subsection 2 above.

6.

Unit Title: Early Adoption Incentive - Level 1

Unit Definition: The Order Placing Child is signed by the court more than one
hundred fifty (150) but two hundred ten (210) or fewer days after the date of
placement as defined in subsection 2 above.

7.

Unit Title: Early Adoption Incentive - Level 2

Unit Definition: The Order Placing Child is signed by the court one hundred
fifty (150) or fewer days after the date of placement as defined in subsection
2 above.

8.

Unit Title: Late Adoption Penalty - Level 1

Unit Definition: The Order Placing Child is signed by the court more than two
hundred forty (240) days, but three hundred (300) or fewer days after the
date of placement as defined in subsection 2 above.

9.

Unit Title: Late Adoption Penalty - Level 2

Unit Definition: The Order Placing Child is signed by the court more than
three hundred (300) days, but three hundred sixty (365) or fewer days after
the date of placement as defined in subsection 2 above.

10. Unit Title: Late Adoption Penalty - Level 3

Unit Definition: The Order Placing Child is signed by the court more than
three hundred sixty (365) days after the date of placement as defined in
subsection 2 above.
11. Unit Title: MARE
Unit Definition: The court signs the Order Placing Child who has been
registered for photo listing on MARE.
The Contractor is not eligible for the MARE rate if the Contractor photo lists
the child. The exception to allow for payment of the MARE rate to the
supervising agency would require that the child was photo listed for six (6)
months and documentation can be provided to demonstrate the family is a
newly approved recruited family and the following conditions are true:
a.
b.

The identified family is not a relative or foster parent to the adoptive

child.
The identified family has not previously provided care for the child.

The Contractor is eligible for the MARE rate if the child's foster care case
remains with DHS and, at the time of referral, there was no identified

Page 53

adoptive resource. The Contractor must register the child for photo listing
within 30 days of acceptance of the case if no adoptive resource has been
identified. If the Contractor applies for the MARE rate there must be a written
explanation of why the adoptive family was not identified as a potential
adoptive resource within the first 30 days after acceptance of the case.
12. Unit Title: Residential
Unit Definition: The court signs the Order Placing Child for a child who has
been placed in residential care (defined as staffed institutional care, not
including foster group homes) and the child is under the Contractor's
supervision for Adoption Services.
13. Unit Title: MARE and Residential Rate with Pre-placement
Unit Definition: When a child photo-listed with MARE or in a Residential
facility is placed into a prospective adoptive home through a foster care
placement to allow for a period of adjustment and supervision (prior to
petition to place for adoption), the reimbursement for the appropriate rate
shall be calculated based on the date the pre-placement began.
The MARE, and Residential Rate will be applied when the court signs the
Order Placing Child within one hundred eighty (180) days of placing the child
in the home for foster care services.
14. Unit Title: In-State Transfer Services
Unit Definition: The Contractor completes satisfactory services requested for
pre-placement activities for a child under the supervision of the Contractor
and referred for adoptive placement to another contractor or DHS local office.
The DHS monitor for the foster care case shall define satisfactory services.
15. Unit Title: Interstate Transfer Existing Services
Unit Definition: A child under the adoption services supervision of the
Contractor is referred for adoptive placement through a private or public
agency in the state where the adoptive family resides and the child has
previously been placed with the family through Interstate foster/relative care.
16. Unit Title: Interstate Transfer New Services
Unit Definition: A child under the adoption services supervision of the
Contractor is referred for adoptive placement through a private or public
agency in the state where the adoptive family resides and the child has not
been placed with the family through Interstate fosterlrelative care.
M.

Adoptive Family Records

The Contractor shall retain in the case record verification of training provided to
the adoptive family. Including but not limited to:

Page 54

1.
2.
3.
4.
N.

Type of training provided.

Date training provided.
Subject material covered during training.
Actual signature of participants at the specified training.

Service Documentation

The Contractor agrees to maintain personnel time reporting, accounting and

payroll records to document staff activities.
O.

Fiscal Requirements
The Contractor shall maintain a record system that documents the total number
of units of service as defined in this Agreement and delivered during the term of
this Agreement. These records shall also document the specific units billed to
DHS under this Agreement.

P.

Billing Method
The Unit Rate Billing Method shall be used in claiming reimbursement under this
Agreement.

Q.

Billing Procedure
The Contractor shall submit a "Payment Voucher", DHS-1582, to the
Permanency Division Suite 415, Department of Human Services, Post Office Box
30037, Lansing, Michigan 48909. The DHS-1582 shall indicate the title of the
service provided and the pre adoptive and adoptive name, case number and date
of birth of the child served.
The payment voucher and any subsequent
corrections must be completed and received in the Permanency Division within
120 days of the date of the placement or finalization, whichever is applicable, as
those terms are defined in Section I(L)(2-3) of this Agreement.
1. Billing for all designated services including: per diem, placement, finalization,
permanency, immediate confirmation or disruptions require a copy of the
Order Terminating Parental Rights (Permanent Court Ward/Commitment),
and Order Placing Child (OTR-Placing).
2. The MARE rates require a copy of the MARE photo listing.

3. The Residential rate requires a copy of the discharge summary from the
residential facility and a copy of the placement record including placement
with the prospective adoptive parent prior to filling the petition.
4. Billing for finalizations or disruptions requires an Order
commitment order, and a photocopy of the placement check.

10

of Adoption,

Page 55

5. Billing for delayed referrals must include a copy of the Contractors

acceptance form with the referral date and statement by DHS that includes
the child's commitment date. The referral form must be signed by a DHS
representative and must have "Delayed Referral" designated on the payment
voucher.
6.

Billing for placement after per diem payments have been made must include
a copy of the referral/acceptance form, Order Terminating Parental Rights
and Order Placing Child.

7. Disruptions require an Ex Parte Order, or order dismissing, a copy of the

initial placement order, initial commitment order, documentation verifying the
medical condition of the family member if appropriate, a copy of the
placement check and agency disruption report.
8. Legal Risk - Order Placing Child Filed: In cases where a birth parent,
individually or through an attorney, has filed a petition to appeal the
termination of parental rights the Contractor shall submit a payment voucher
(DHS-1582) requesting payment (placement and finalization). Contractor
must also submit a photocopy of the Claim, filed in conformity with MCR
7.203.
9. When billing for the per diem, each payment voucher shall be child specific.
Attached to the initial payment voucher the following documents must be
included: the DHS 3600 with the date of acceptance indicated and the
signed agreement of intent to adopt by a relative or identified family. Billings
should be submitted on a monthly basis. Contractor shall identify in box 18 of
the payment voucher the number of days covered, date range, and the
number of per diem billings submitted on behalf of the child.
10. When requesting an exception to the payment rate it is the responsibility of
the Contractor to demonstrate
that requests for subsidy eligibility
determination or MCI consent sent to DHS Central Office delayed adoption
placement. If the delay was caused by submission of incomplete paperwork
or a lack of response to requests for information the consideration for
exception will be denied. The request for exception must be submitted with
the completed payment voucher (DHS-1582).
R. Criminal Background Check
As a condition of this Agreement, the Contractor certifies that the Contractor shall,
prior to any individual performing work under this Agreement, conduct or cause to
be conducted for each new employee, employee, subcontractor, subcontractor
employee or volunteer who works directly with:

11

Page 56

1. Clients under this Agreement, or who has access to client information, an

Internet Criminal History Access Tool (ICHAT) check and a National and State
Sex Offender Registry check.
Information about ICHAT can be found at http://apps.michigan.gov/ichat.
The
Michigan
Public
Sex
http://WNW.mipsor.state.mi.us.

Offender

Registry

web

address

is

The National Sex Offender Public Website address is http://www.nsopw.gov.

2. Children under this Agreement, a Central Registry (CR) check.
Information about CR can be found at http://www.mi.gov/dhs/0,1607,7-1245452 7119 48330-180331--,00.html.
The Contractor shall require each employee, subcontractor, subcontractor
employee or volunteer who works directly with clients or who has access to
client information, under this Agreement to timely notify the Contractor in
writing of criminal convictions (felony or misdemeanor) and/or pending felony
charges or placement on the Central Registry as a perpetrator.
Additionally, the Contractor shall require each new employee, employee,
subcontractor, subcontractor employee or volunteer who works directly
with clients under this Agreement or who has access to client information
and who has not resided or lived in Michigan for each of the previous ten
(10) years to sign a waiver attesting to the fact that they have never been
convicted of a felony or identified as a perpetrator, or if they have, the
nature and recency of the felony.
The Contractor further certifies that the Contractor shall not submit claims
for or assign to duties
under this Agreement,
any employee,
subcontractor,
subcontractor
employee,
or volunteer
based on a
determination by the Contractor that the results of a positive ICHAT and/or
a CR response or reported criminal felony conviction or perpetrator
identification make the individual ineligible to provide the services.
The Contractor must have a written policy describing the criteria on which
its determinations shall be made and must document the basis for each
determination. The Contractor may consider the recency and type of crime
when making a determination. Failure to comply with this provision may be
cause for immediate cancellation of this Agreement. In addition, the
Contractor must further have a written policy regarding acceptable
screening practices of new staff members and volunteers who have direct
access to clients and/or client's personal information, which serve to
protect the organization and its clients that is clearly defined. The

12

Page 57

Contractor must also assure that any subcontractors

written policies.

have both of these

If DHS determines that an individual provided services under this Agreement

for any period prior to completion of the required checks as described above,
DHS may require repayment of that individual's salary, fringe benefits, and all
related costs of employment for the period that the required checks had not
been completed.
S.

Adoptive Homes Recruitment. Retention and Support

The Contractor shall develop and implement a plan for adoptive home
recruitment, retention, and support consistent with the DHS Bureau of Child and
Adult Licensing Standards specific to the Contractor's license specified in Section
1(0) and as detailed in Section VIII, Services and Placement Resources,
Development and Utilization of the Modified Settlement Agreement.

T.

Additional Provisions:
The Contractor shall comply with the provisions of:
1.1984 Public Act, 114, as amended, being M.C.L. 3.711 et seq., Interstate
Compact on the Placement of Children.
2.1939 Public Act 288, Chapter X, being M.C.L. 710.1 et seq., Michigan
Adoption Code.
3.1984 Public Act 203, as amended, being M.C.L. 722.951 et seq., Michigan
Foster Care and Adoption Services Act.
4. The Social Security Act as amended by the Multiethnic Placement Act of 1994
(MEPA); Public Law 103-382, and as amended by Section 1808 of the Small
Business Job Protection, the Interethnic Adoption Provision (lEAP).
5. The Indian Child Welfare Act (ICWA); Public Law 95-608 being 25 U.S.C.
1901 et seq.
6. P.L. 110-351, known as the Fostering Connections to Success and Increasing
Adoptions Act of 2008

U.

Performance Outcomes

1. Fewer than 5% of placements for adoption will end in disruption.

2. Fewer than 5% of finalized adoptions will end in dissolution.
3. By September 30, 2012, 70% of adoptions for children with a goal of adoption
on September 30, 2011 shall be finalized.
4. By September 30,2013,77% of adoptions for children with a goal of adoption
on September 30,2012 shall be finalized.

13

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II.

DEPARTMENT RESPONSIBILITIES
A.

Referrals
1. At the time of referral to a private agency, DHS shall provide that aqency with a
complete referral packet as prescribed in Section 210 of the Adoption Services
Manual (ADM 210).
2. When an eligible child is photo-listed on MARE and the Contractor notifies the
local DHS county office that the Contractor has a studied and approved
available family, DHS shall send a copy of the case file to the Contractor within
ten (10) working days of receipt of notification.

B.

Payment
DHS shall make payments to the Contractor pursuant to MCL 17.51-17.57 and
State of Michigan Financial Management Guide, Part II-Accounting and Financial
Reporting, Chapter 25, Section 100, "Prompt Payment for Goods and Services."
1. DHS shall make the following payments to the Contractor:

Rate Category
Early Adoption Incentive Level 2
Early Adoption Incentive Level 1
Baseline
Late Adoption Penalty Level 1
Late Adoption Penalty Level 2
Late Adoption Penalty Level 3
MARE
Residential
In-State Transfer Services
Inter-State Transfer Existina Services
Inter-State Transfer New Services

Placement
$6,900
$6,000
$5,400
$4,800
$4,200
$3,000
$12,240
$7,980
$1,800
$1,800
$3,500

Finalization
$3,450
$3,000
$2,700
$2,400
$2,100
$1,500
$6,120
$3,990

Permanency
$1,150
$1,000
$900
$800
$700
$500
$2,040
$1,330

2. Per Diem Payments

For each child where the adoption case is referred to the Contractor by DHS,
the Contractor shall receive payment of $20.00 per diem for each day of
adoptive services from acceptance of the case to date of placement, or for one
hundred fifty (150) days, whichever comes first. The maximum per diem
payment amount per child is $3,000.

14

Page 59

Payment of the initial placement rate: the total of all per diem payments for
each child shall be deducted from the applicable placement rate to be paid as
listed in subsection 1 above.
3. Adoption Training Payments
A payment will be made to the Contractor for each staff that completes
training and passes competency tests as required in Section VI. Staff
Qualifications, Training, Caseloads and Supervision of the Modified
Settlement Agreement according to the following schedule:
a. Completion of the Caseworker Training
Payment will be $6,000 for completion of DHS a pre-service training
that includes a total of 270 hours of competency-based classroom and
field training.
b. Completion of the 40-hour Child Welfare Supervisor Training.
Payment will be $1500 for completion of the Supervisor Training if the
supervisor passes the competency evaluation including the written
exam.
c. Completion of the 13 day adoption program specific transfer training
(PSTT) within 6 months of hire.
Payment will be $3,900 for completion of the adoption PSTT training.
This training is the same as the Adoption Core Training for adoption
caseworkers.
If a supervisor has completed this training as a
caseworker since April 1, 2006, the training does not need to be
repeated.
d. Completion of the Child Welfare Training Institute adoption pre-service
training that includes at least 270 hours of competency-based
classroom and field training.
Payment will be $6,000 for completion of the Child Welfare Training
Institute pre-service training. The 13 day adoption program specific
transfer training (PSTT) is included in the 270 hours and cannot be
billed separately.
4. The Contractor must submit the following with the completed payment
voucher (DHS-1582) to the Adoption Services Unit in central office:

15

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a. A copy of the transcript reflecting the completion

service training for each adoption worker.

of the CWTI pre-

b. A statement confirming that 50% of the adoption worker's case load will
be children in the DHS foster care system.
5. Placement Disruption:
Payment after Placement for adoptions ending in disruption will only be made
in the following cases;
a. Disruption Due to Medical Condition of Prospective Family Member: If the
adoptive family experiences a documented chronic medical condition
requiring long term care or a condition anticipated to result in the death of a
family member after the adoptive placement of a child, the Contractor shall
be eligible for a per-diem rate. The payment shall be a portion of the
appropriate rate for finalization, which shall be established by dividing the
duration (number of days) of the adoptive placement until disruption by 182
days. The disruption rate shall not exceed the rate that would have
otherwise been paid had finalization occurred.
b. Death of an Adoptive Child: In cases where a child dies between order
placing in the adoptive home and the final order of adoption, the Contractor
shall be eligible for a per-diem from the date of placement to the date of
death (unless cause of death is determined to be neglect or abuse) not to
exceed the rate that would have otherwise been paid had finalization
occurred.
c. Disruption after Order Placing Child in the adoptive home: When the
disruption order is issued more than 182 days from the date of the order
placing the child in the adoptive home, the Contractor shall be paid the full
finalization rate.
d. Disruption of Placement Determined by MCI Superintendent: In a case
where the child is placed in a home based on the decision of the MCI
Superintendent, against the recommendation of the Contractor, the
Contractor shall be eligible for a per-diem rate. The payment shall be a
portion of the appropriate rate for finalization, which shall be established by
dividing the duration (number of days) of the adoptive placement until
disruption by 182 days. The disruption rate shall not exceed the rate that
would have otherwise been paid had finalization occurred. Payment for
subsequent placements will not reflect a disruption.
6. Adoption Dissolution:

16

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DHS shall recover, from the Contractor, the Permanency Unit Rate for
adoptions that end in dissolution within 182 days of issuance of an Order of
Adoption as documented in the Departmenfs annual Child and Family
Services Review (CFSR) report.
7. Payment - Re-Placement of Child after Disruption by Same Contractor:
Re-placement of child photo listed on MARE or from a Residential facility:
Subsequent adoptive placement and finalization by the same Contractor (that
placed the child in the disrupted/dissolved home) for a child previously
reimbursed at one of the MARE rates or the Residential rate, shall not exceed
the Baseline rate for a second adoptive placement/finalization. The maximum
rate for any re-placement of a child photo listed on MARE or from a Residential
facility beyond the second placement shall not exceed the Late Adoption
Penalty Level 3 rate if paid to the same Contractor.
Re-placement by the same Contractor of a child under any rate other than a
MARE or Residential rate shall not exceed the Baseline rate.
Exceptions may be made to the re-placement rate. Contractors must submit
documentation of efforts that were required to prepare a child for subsequent
placement and the recruitment of an adoptive family. Submit request for
exceptions to the Adoption Analyst in DHS Central Office and stipulate the rate
requested.
C.

Monitoring
1. DHS shall be responsible for performance reviews as outlined in Section III(H)
of this Agreement.
2. DHS shall be responsible for contract compliance audits as outlined in Section
111(1) of this Agreement.

III.

GENERAL PROVISIONS - PRIVATE, NON-PROFIT AND PRIVATE, PROPRIETARY

A.

Conclusion, Termination, and Cancellation Terms

1.

Cancellation for Convenience

DHS may cancel this Contract for its convenience, in whole or part, if DHS
determines that such a cancellation is in the State's best interest. Reasons
for such cancellation shall be left to the sole discretion of DHS and may
include, but not necessarily be limited to (a) DHS no longer needs the

17

Page 62

services or products specified in this Contract, (b) relocation of office,

program changes, changes in laws, rules, or regulations make performance
of the services under this Contract no longer practical or feasible, and (c)
unacceptable prices for additional services requested by DHS. DHS may
cancel this Contract for its convenience, in whole or in part, by giving the
Contractor written notice 30 days prior to the date of cancellation. If DHS
chooses to cancel this Contract in part, the charges payable under this
Contract shall be equitably adjusted to reflect those services that are
cancelled.
2.

Non-Appropriation
DHS may cancel this Contract in the event that funds to enable DHS to
effect continued payment under this Contract are not appropriated or
otherwise made available.
The Contractor acknowledges that, if this
Contract extends for several fiscal years, continuation of this Contract is
subject to annual appropriation or availability of funds for this Contract. If
funds are not appropriated or otherwise made available, DHS shall have the
right to cancel this Contract at the end of the last period for which funds
have been appropriated or otherwise made available by giving written
notice of cancellation to the Contractor. DHS shall give the Contractor
written notice of such non-appropriation or unavailability within 30 days after
it receives notice of such non-appropriation or unavailability.

3.

Material Breach by the Contractor

In the event that the Contractor breaches any of its material duties or
obligations under this Contract, which are either not capable of or subject to
being cured, or are not cured within the time period specified in the written
notice of breach provided by DHS, or pose a serious and imminent threat to
the health and safety of any person, or the imminent loss, damage or
destruction of any real or tangible personal property, DHS may, having
provided written notice of cancellation to the Contractor, cancel this Contract
in whole or in part, for cause, as of the date specified in the notice of
cancellation.
In the event that this Contract is cancelled for cause, in addition to any legal
remedies otherwise available to DHS by law or equity, the Contractor shall
be responsible for all costs incurred by DHS in canceling this Contract,
including but not limited to, administrative costs, attorney's fees and court
costs, and any additional costs DHS may incur to procure the services
required by this Contract from other sources. All excess re-procurement
costs and damages shall not be considered by the parties to be
consequential, indirect or incidental, and shall not be excluded by any other
terms otherwise included in this Contract.

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Page 63

In the event the State chooses to partially cancel this Contract for cause
charges payable under this Contract will be equitably adjusted to reflect
those services that are cancelled.
In the event this Contract is cancelled for cause pursuant to this section,
and it is therefore determined, for any reason, that the Contractor was not in
breach of contract pursuant to the provisions of this section, that
cancellation for cause shall be deemed to have been a cancellation for
convenience, effective as of the same date, and the rights and obligations of
the parties shall be limited to that otherwise provided in this Contract for a
cancellation for convenience.
4.

Criminal Conviction
DHS may immediately cancel this Agreement without further liability to DHS
or its employees if the Contractor, an officer of the Contractor, or an owner
of a 25% or greater share of the Contractor is convicted of a criminal
offense incident to the application for or performance of a State, public, or
private contract or subcontract; or convicted of a criminal offense including
but not limited to any of the following: embezzlement, theft, forgery, bribery,
falsification or destruction of records, receiving stolen property, attempting to
influence a public employee to breach the ethical conduct standards for
State of Michigan employees; convicted under State or Federal antitrust
statutes; or convicted of any other criminal offense which, in the sole
discretion of DHS, reflects on the Contractor's business integrity.
Pursuant to MCL 722.119, if the Contractor is a child care organization as
defined in MCL 722.111(1)(a), it shall:
a.

Not allow a licensee, registrant, adult household member, licensee

designee, or chief administrator to be present in the child care
organization if he or she has been convicted of either of the following:
1. Child abuse under section 136b of the Michigan penal code, 1931
PA 328, MCL 750.136b, or neglect under section 145 of the
Michigan penal code, 1931 PA 328, MCL 750.145.
2. A felony involving harm or threatened harm to an individual within
the 10 years immediately preceding the date of hire or appointment.

b.

Not allow a staff member, or unsupervised volunteer to have contact

with children who are in the care of the child care organization if he or
she has been convicted of either of the following:
1. Child abuse under section 136b of the Michigan penal code, 1931
PA 328, MCL 750.136b, or neglect under section 145 of the
Michigan penal code, 1931 PA 328, MCL 750.145.

19

Page 64

2. A felony involving harm or threatened harm to an individual within the

10 years immediately preceding the date of hire or appointment.
c. Not allow any licensee, registrant, adult household member, licensee
designee, chief administrator, staff member, or unsupervised volunteer
to be present in the child care organization until the licensee, registrant,
adult household member, licensee designee, chief administrator, staff
member, or unsupervised volunteer provides the child care organization
with documentation from DHS that he or she has not been names in a
central registry case as the perpetrator of child abuse or child neglect.
The Contractors failure to comply with these terms is cause for cancelation
of the Agreement.
B.

Notice and Right to Cure

In the event of a curable breach by the Contractor, DHS shall provide the
Contractor written notice of the breach and a time period to cure said breach
described in the notice. This section requiring notice and an opportunity to cure
shall not be applicable in the event of successive or repeated breaches of the
same nature or if DHS determines in its sole discretion that the breach poses a
serious and imminent threat to the health or safety of any person or the imminent
loss, damage or destruction of any real or tangible personal property.

C.

Closeout Responsibilities
1.

Closeout
When this Agreement is concluded or terminated, the Contractor shall
provide DHS with all financial, performance and other reports required as a
condition of the Agreement. DHS shall reimburse the Contactor for any
allowable costs not previously reimbursed. The Contractor shall reimburse
DHS for any payments or funds advanced to the Contractor in excess of
allowable costs.

2.

Continuing Responsibilities
Termination, conclusion, or cancellation of this Agreement shall not be
construed as terminating the ongoing responsibilities or rights of the
Contractor or DHS outlined in this Agreement.

D.

Compliance with Rules and Regulations

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Page 65

The Contractor shall comply with all Federal, State and local statutes, regulations
and administrative rules, and any amendments thereto, as they may apply to the
performances of this Agreement. These include but are not limited to:
1. 31 U.S.C. 1352, as implemented at 28 CFR Part 69, for persons entering into
a grant or cooperative agreement over $100,000, as defined at 28 CFR Part
69.
2. 1975 PA 238, as amended, being MCL 722.621 et seq., the Child Protection
Law.
3. 1982 PA 162, as amended, being MCL 450.2101 et seq., the Nonprofit
Corporation Act.
4. 1994 PA 204, as amended, being MCL 722.921 et seq., the Children's
Ombudsman Act.
5. 1973 PA 116, as amended, being MCL 722.111 et seq., the Child Care
Organizations Act.
6. PL 91-230, known as the Federal Individuals with Disabilities Education Act
(IDEA) 20 U.S.C. 1400 et seq.
7. 41 U.S.C. 51-58 commonly referred to as the "Anti-Kickback Act of 1986."
8. 1976 PA 442, as amended, MCL 15.231, et seq., the Freedom of Information
Act.
9. 42 U.S.C. 604a 0), regarding sectarian worship, instruction, or proselytization.
10. Department of Civil Service Rules 2-20 regarding Workplace Safety and 1-8.3
regarding Discriminatory Harassment.
11.1976 PA 453, as amended, MCL 37.2101, et seq., the Elliot Larsen Civil
Rights Act.
12.1976 PA 220, as amended, MCL 37.1101 et. seq., the Persons with
Disabilities Civil Rights Act and Section 504 of the Federal Rehabilitation Act
of 1973, P.L. 93-112.
13. Americans with Disabilities Act of 1990 (ADA), P.L. 101-336
The Contractor shall keep informed of federal, state, and local laws, ordinances,
rules, regulations, orders, and decrees of bodies or tribunals having any
jurisdiction/authority that in any manner affect those engaged in or employed on
the work done under this Agreement or that in any manner affect the conduct of
the work done under this Agreement.
E.

Fees and Other Sources of Funding

The Contractor guarantees that any claims made to DHS under this Agreement
are not duplicative of claims financed by any source other than DHS.
Other third party funding sources, e.g., insurance companies, may be billed for
contracted client services.

F.

Confidentiality

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Page 66

The use or disclosure of personally identifying information concerning services,

applicants or recipients obtained in connection with the performance of this
Agreement shall be restricted to purposes directly connected with the
administration of the programs implemented by this Agreement. Disclosure shall
be made only when required by federal and state laws, rules and regulations,
court orders/subpoenas, or subpoenas issued by a grand jury. Such disclosures
must conform to all state and federal confidentiality provisions, including the
Health Insurance Portability and Accounting Act.
G.

Maintenance of Records
The Contractor will be required to maintain all pertinent financial and accounting
records and evidence relevant to this Agreement in accordance with generally
accepted principles of accounting and other procedures specified by the State of
Michigan. These records shall be made available, upon request, to Federal
auditors, the State of Michigan, its designees, or the Michigan Auditor General at
any time within the duration of this Contract and any extension thereof, and for six
(6) years from the expiration date and final payment on this Contract or extension
thereof.

H.

Performance Reviews
DHS may review with the Contractor their performance under the Agreement. At
the discretion of the Department, performance reviews may be conducted
quarterly, semi-annually or annually depending on Contractor's past performance
with DHS. Performance reviews shall include the contractor's achievement of the
Performance Measures as specified in Section I(U) of this Agreement.
Upon a finding of poor performance, which has been documented by DHS, the
Contractor shall be given an opportunity to respond and take corrective action. If
corrective action is not taken in a reasonable amount of time as determined by
DHS, the Contract may be canceled for default.

I.

Audit of Contract Compliance

The Contractor agrees that DHS may, upon 24-hour notice, perform an audit at
Contractor's location(s) to determine if the Contractor is complying with the
requirements of this Contract. The Contractor agrees to cooperate with DHS
during the audit and produce all records and documentation that verify
compliance with the requirements of this Contract.

J.

Financial Audit Requirements

1.

The Contractor shall have an annual financial audit conducted

independent certified public accountant.

22

by an

Page 67

K.

2.

The Contractor shall submit to DHS all audited financial statements,

including a Statement of Functional Expenses, opinions and management
letters no later than the fifteenth day of the fifth month following the end of
the Contractor's fiscal year.

3.

If an OMB-133 Audit is required because of other Federal funding sources,

the Contractor is required to provide the A-133 report and all opinions and
management letters to DHS.

Recoupment of Funding and Repayment of Debts.

1.

Overpayments
Overpayments identified by the Contractor shall be refunded to DHS within
60 days. The Contractor shall, upon documented reconciliation with any
underpayment, return the net overpayment to DHS.

2.

Repayment of Debts
By entering into this Agreement, the Contractor agrees to honor all prior
repayment agreements established by DHS with the Contractor. The
Contactor agrees to establish a repayment agreement with DHS, if none
exists, to take effect within 90 days after the effective date of this
agreement.

L.

News Releases
News releases pertaining to this Contract or the services, study, data, or project to
which it relates will not be made without prior written State approval, and then
only in accordance with the explicit written instructions from the State. No results
of the program are to be released without prior approval of the State and then
only to persons designated.

M.

Subcontracts
The Contractor shall not have the right to assign this Contract or to assign or
delegate any of its duties or obligations under this Contract to any other party
(whether by operation of law or otherwise), without the prior written consent of
DHS. Any purported assignment in violation of this section shall be null and void.
Further, the Contractor may not assign the right to receive money due under this
Contract without the prior written consent of DHS.
The Contractor shall not delegate any duties or obligations under this Contract to
a subcontractor other than a subcontractor named in the bid unless DHS has
given written consent to the delegation.

23

Page 68

If subcontracting, the Contractor must obligate the subcontractors to maintain the

confidentiality of DHS' client information as stipulated in Section III(F) of this
Agreement.
N.

Entire Agreement
This Contract constitutes the complete and exclusive agreement and
understanding of the parties as it relates to this transaction.
This Contract
supersedes all proposals, or other prior agreements, and all other
communications between the parties relating to this transaction.

O.

Relationship of the Parties

The relationship between the State and the Contractor is that of Client and
Independent Contractor. No agent, employee, or servant of the Contractor or any
of its subcontractors shall be or shall be deemed to be an employee, agent, or
servant of the State for any reason. The Contractor will be solely and entirely
responsible for its acts and the acts of its agents, employees, servants and
subcontractors during the performance of this Contract.

P.

Unfair Labor Practices

Pursuant to 1980 Public Act 278, as amended, MCL 423.231, et seq, the State
shall not award a Contract or subcontract to an employer whose name appears in
the current register of employers failing to correct an unfair labor practice
compiled pursuant to section 2 of the Act. This information is compiled by the
United States National Labor Relations Board.
A Contractor of the State, in relation to the Contract, shall not enter into a Contract
with a subcontractor, manufacturer, or supplier whose name appears in this
register. Pursuant to section 4 of 1980 Public Act 278, MCL 423.324, the State
may void any Contract if, subsequent to award of the Contract, the name of the
Contractor as an employer, or the name of the subcontractor, manufacturer or
supplier of the Contractor appears in the register.

Q.

Insurance Coverages
The Contractor shall provide and maintain public liability insurance in such
amounts as necessary to cover all claims which may arise out of the Contractor's
operations under the terms of this Agreement and provide proof of such
insurance coverage to DHS prior to the effective date of this Agreement. The
purpose of this coverage shall be to protect the State from claims which may arise
out of or result from the Contractor's performance of services under the terms of
this Contract, whether such services are performed by the Contractor, or by any
subcontractor, or by anyone directly or indirectly employed by any of them, or by
anyone for whose acts they may be liable.
Unemployment compensation

24

Page 69

coverage and workers compensation insurance shall be maintained

accordance with applicable Federal and State laws and regulations.

in

The Contractor shall provide and maintain general, professional, medical and/or
automobile liability including non-owned auto insurance in such amounts as
necessary to cover all claims which may arise out of the Contractor's operations
under the terms of this Agreement. The Contractor shall provide proof to DHS of
such insurance coverage (on the standard Acord form) to DHS prior to the
effective date of this Agreement For private non-profit and proprietary agencies,
the minimum amount is $1,000,000.00 (one million dollars). The Contractor
agrees to provide evidence that all required insurance policies related to the
Contractor's negligence arising out of the requirements of this contractual
agreement will not cause policy to be cancelled, materially changed, or not
renewed without thirty (30) days prior written notice to DHS. The Contract must
list the State of Michigan as an additional insured on the general liability insurance
and, if a motor vehicle is used to provide services under this Agreement, on the
vehicular liability insurance.
The Contractor shall maintain all required insurance coverage throughout the
term of the Agreement and any extensions thereto.
R.

General Indemnification
For purposes of Indemnification as set forth in this Contract, DHS means the
Michigan Department of Human Services, its departments, divisions, agencies,
offices, commissions, officers, employees and agents.
To the fullest extent permitted by law, the Contractor shall indemnify, defend and
hold harmless DHS from and against all losses, expenses, liabilities, penalties,
fines, damages, and claims (including taxes), and all related costs and expenses
(including reasonable attorneys' fees and costs of investigation, litigation,
settlement, judgments, interest and penalties), arising from or in connection with
any claim, demand, action, citation or legal proceeding against DHS arising out of
or resulting from the performance of services provided by the Contractor,
provided that any such loss, expense, liability, penalty, fine, damage, or claim 1)
is attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property including the loss of use resulting therefrom and
2) is caused in whole or in part by any negligent act or omission of the Contractor,
any subcontractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable, regardless of whether or not it
is caused in part by a party indemnified hereunder.
The Contractor's duty to indemnify continues in full force and effect,
notwithstanding the expiration or early cancellation of the Contract, with respect to
any claims based on facts or conditions that occurred prior to expiration or
cancellation.

25

Page 70

S.

Severability
Each provision of this Contract shall be deemed to be severable from all other
provisions of this Contract and, if one or more of the provisions of this Contract
shall be declared invalid, the remaining provisions of this Contract shall remain in
full force and effect.

T.

Governing Law
This Contract shall in all respects be governed by, and construed in accordance
with, the laws of the State of Michigan. Any dispute arising herein shall be
resolved in the State of Michigan.

U.

Survivor
Any provisions of this Contract that impose continuing obligations on the parties
including, but not limited to the Contractor's indemnity and other Obligations shall
survive the expiration or cancellation of this Contract for any reason.

V.

Options to Renew
At the discretion of DHS, an awarded contract may be renewed in writing by an
amendment not less than 30 days before its expiration. The contract may be
renewed for up to two, one additional year periods.

26

Page 71

IN WITNESS WHEREOF, DHS and the Contractor have caused this Agreement to be
executed by their respective officers duly authorized to do so.
The Undersigned has the lawful authority to bind the Contractor to the terms set forth in this
Agreement.

Grand Rapids

Dated at ______

september

19th
this

__

, Michigan

___

day of

1.1
,20. _

Operations

Dated at

this

lO

Witness:

~n5llLl
day of

~.%
\

' Michigan

ex;-- ,

()

200@D ( (

DEPARTMENT OF HUMAN SERVICES

By:

l~

Contract #: A 12-62001

27

Page 72

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF MUSKEGON
FAMIL Y DIVISION
IN THE MATTER OF:
Jordan Gonzalez; dob: 9/5/2001
Esdeanna Heeren; dob: 10/26/2002
Kylea Heeren; dob: 2/1612004
Carmen Heeren; dob: 10/03/2005

File No. 11-7780-AF, 11-7781-AF,

11-7782-AF, U-7783-AF
PETITIONERS FIRST MOTION
FOR ADJOURNMENT
PROOF OF SERVICE
Hon. William C. Marietti

Chad Catalino, P64377

Guardian Ad Litem
1189 Peck Street
Muskegon,MI49442
(231) 722-2222
Geraldine Anne Brown, P67601
Michigan Dept. of Attorney General
525 W Ottawa St.
P. O. Box 30758
Lansing, MI 48909
(517) 373-1110

Scott M. Nichol, P75209

Attorney for Adoption Petitioner
Lori Scribner
Moody & Nichol PLLC
1650 Kendale Blvd., Ste 110
East Lansing, MI 48823
(517) 583-0520
Fax: (517) 583-0521
E-mail: scott@moodynicholpllc.com

PETITIONER'S FIRST MOTION FOR ADJOURNMENT

Petitioner, through her attorney, Scott M. Nichol, respectfully requests that the court
grant her motion for an adjournment under MCR 2.503.
Petitioner states in support of this motion:
1. This matter has been set for a hearing on February 10,2012, at 10 AM.

2. On December 12,2011, Adoption Petitioner was informed by her attorney Shon

A. Cook that the amended denial Df CDnsent tD adDpt had been received and that a
new Section 45 request and adoption petition would he filed.

Page 73

3. Adoption Petitioner infonned her fonner attorney, Shon A. Cook, on December

19, 2011, via email, that she was seeking alternate counsel for the Hearing under
MCL 710.45 to show that the DHS decision to deny her consent to adopt her
grandchildren is arbitrary and capricious.
4. Adoption Petitioner's fonner attorney did not infonn Adoption Petitioner until
January 9, 2012, that a hearing regarding the adoption petition and Section 45
Motion had been set for February 10,2012.
5. Adoption Petitioner's fonner attorney Shon A. Cook originally filed a motion for
the Hearing under MCL 710.45 on October 17,2011.
6. On December 2,2011, the MCl Superintendent William Johnson issued an
Amended Denial of Consent to Adopt for Adoption Petitioner Lori Scribner.
7. As of January 24, 2012, an Amended Motion for Hearing under MCL 710.45 has
not been filed.
8. Adoption Petitioner intends to file an Amended Motion for a Hearing under MCL
710.45 to address the additional reasons for denying consent to adopt in the
amended denial from December 2, 2011.
9. Adoption Petitioner and her new attorney need adequate time to prepare the
Amended Motion for a Hearing under MCL 710.45.
10. On January 5, 2012, Adoption Petitioner made initial contact with a new attorney,
Scott M. Nichol, about possible representation regarding the Hearing under MCL
710.45.
11. On January 9, 2012, Adoption Petitioner and Attorney Scott M. Nichol agreed
that he would represent Adoption Petitioner in the Hearing under MCL 710.45.
12. On January 10,2012, Adoption Petitioner signed Substitution of Counsel fonns
requesting that the court allow her to replace Ms. Cook with her new attorney for
the Hearing under MCL 710.45.
13. As of January 18,2012, Adoption Petitioner had requested that Ms. Cook forward
her file regarding the Hearing under MCL 710.45 to Attorney Scott M. Nichol.

14. On January 20,2012, Attorney Nichol received some, but not all, documentation
from Ms. Scribner's case file from Ms. Cook.
15. The above action under MCL 710.45 is an adoption proceeding under the probate
code; therefore, it is governed by the Probate Court Ru1es and the Special
Proceedings rules covering adoption MCR 3.800-3.807.

Page 74

16. The Michigan Court Rules set out the process that is due to Adoption Petitioners.
17. In addition, "In In re Rood, 483 Mich 73, 92; 763 NW2d 587 (2009) (opinion by
Corrigan, J.), our Supreme Court described 'the most basic requirements of
procedural due process~ by referencing the following excerpt from Dow v.
Michigan, 396 Mich 192, 205-206; 240 NW2d 450 (1976):
The fundamental requisite of due process of law is the opportunity to be
heard. Grannis v. Ordean, 234 U. 385, 394; 34 SCt 779,58 LEd 1363
(1914). The hearing must be at a meaningful time and in a meaningful
manner. Armstrong v Manzo, 380 US 545, 552; 85 SCt 1187; 14 LEd2d
62 (1965). Goldberg. Kelly, 397 US 254, 267; 90 SCt 1011; 25 LEd2d
287 (1970). [Internal quotation omitted.]
"Due process requires fundamental fairness, which is determined in a
particular situation first by considering any relevant precedents and then
by assessing the several interests that are at stake." Rood, 483 Mich. at 92,
763 N.W.2d 587 (internal quotation omitted). The Supreme Court
in Rood reiterated that the three factors set forth in Mathews v.
Eldridge, 424 U.S. 319,335,96 S.Ct. 893,47 L.Ed.2d 18 (1976), supply
proper guideposts for determining the process due in a particular case:
"First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and fmally, the
Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail."
These factors recognize that due process "is flexible and calls for such
procedural protections as the particular situation demands." Id. at 334,
quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33
L.Ed.2d 484 (1972). [In re Ignelzi , unpublished opinion per curiam of the
Court of Appeals, issued Jan 26,2010 at *3-4 (Docket No. 292818)].
18. Here the private interest that is at stake is the children's interest in continued
contact with their birth family and the Adoption Petitioner's interest in raising her
grandchildren, both step and biological. In addition, the Agency has an interest in
ensuring that these children receive a permanent home.
19. If this Court does not allow the Adoption Petitioner sufficient time to engage in
discovery to determine whether the facts on which MCI Superintendent based his
decision to deny her request to adopt these children were in fact true, the parties
may erroneously be deprived of these interests.

Page 75

20. And finally, the.fiscal and administrative burdens on the state by following the
Michigan Court Rules and producing any discovery the Petitioner requests are
few. The State is already required to produce documents.
21. ''Except as modified by MCR 3.801-3.806, adoption proceedings, are governed by
the rules generally applicable to civil proceedings." MCR 3.800(A).
22. According to MCR 5.142, Pretrial Motions in contested proceedings are governed
by the rules applicable in civil actions in circuit court.
23. According to MCR 2.503(D), the Court in its discretion may grant a motion for an
adjournment to promote the cause of justice.
24. Adoption Petitioner intends to ask for discovery of all documents pertaining to the
Gonzalez/Heeren children that were available to MCl Superintendent William
Johnson from: MCl Superintendent William Johnson; the Adoption Agency,
Bethany Christian Services; the Foster Care Agency, Holy Cross Children's
Services; and the Michigan Department of Human Services.
25. According to MCR 5.131, the general discovery rules apply to probate
proceedings.
26. Nothing in MCR 3.801-3.806 modifies the general discovery rules in MeR 2.3002.316.
27. Where a court "can determine the applicable facts and the reason for the decision,
[from a Supreme Court order on an application for leave to appeal] the
peremptory order constitutes a binding precedent. People v Crall, 444 Mich 463,
464,510 NW2d 182 (1993)." Wechsler v Wayne County Road Com'n, 215 Mich
App 579,592 n 8,546 NW2d 690,696 (1996). See also John J Fannon Co v
Fannon Prods, LLC,269MichApp 162, 165-67; 712 NW2d 731 (2005)(calling
a Michigan Supreme Court peremptory order binding precedent because "the
Court's underlying rationale is easily discernible .... ").
28. Discovery is available to prepare for the Section 45 hearing. See, e.g., In re CW,
unpublished opinion per curiam of the Court of Appeals, issued February 16,
2010 at *24-25 ((listing among the items that the trial court ordered released to
the petitioners the childrens' entire DHS file) (Shapiro, dissenting) (Docket No.
292866), adopted as the opinion of the Michigan Supreme Court, In re Cw, 488
Mich 935; 790 NW2d 383,383 (2010) ("in lieu of granting leave to appeal, we
REVERSE the judgment of the Court of Appeals, for the reasons stated in the
Court of Appeals dissenting opinion .... ").
29. Further, in a review of the decision of the MCl Supervisor on whether to grant or
deny consent to adopt "the accuracy and completeness of facts underlying a
Superintendent's decision are necessary for court review under MCL 750.145 ....
4

Page 76

The panel in In re CLH observed that reviewing a decision for whether it was
arbitrary and capricious requires considering whether the articulated reason for
denying consent "was made without consideration of the child's individual
circumstances" and this "entails examination of whether [the] reason was invalid
in light ofthe evidence." Id. at 3. "Otherwise," said the panel, " review of an
agency representative's decision under MCL 710.45(5) would amount to nothing
more than a rubber stamp of whatever reason the representative articulated, and
the statutory review procedure would be illusory." In re Cw, 488 Mich 935; 790
NW2d 383,388 (2010). (citing, In re CLH, unpublished opinion per curiam of
the Court of Appeals; issued June 3, 2003 (Docket No. 244877), 2003 WL
21278916)).
30. Therefore, discovery is available because in determining whether the MCI
Superintendent's Decision was "arbitrary and capricious," Adoption Petitioner is
entitled to discovery of all information reviewed by MCI Superintendent William
Johnson and all information available for review when the decision to deny
Adoption Petitioner consent to adopt was made.
31. "Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates to
the claim or defense of the party seeking discovery or to the claim or defense of
another party, including the existence, description, nature, custody, condition, and
location of books, documents, or other tangible things, or electronically stored
information and the identity and location of persons having knowledge of a
discoverable matter. It is not ground for objection that the information sought will
be inadmissible at trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence." MCR 2.302(B).
32. Adoption Petitioner and her attorney Scott M. Nichol need adequate time to
prepare discovery, receive responses to discovery, and review discovery
responses. In short, Petitioner should receive all the process that is due to her
under the Michigan Court Rules in this adoption matter.
33. The cause of justice will be promoted by an adjournment in this case because the
Adoption Petitioner should be allowed the time necessary for her new attorney to
adequately prepare for the Section 45 hearing including filing an Amended
Motion for a Hearing under Section 45, requesting and reviewing discovery, and
reviewing the case file.
34. Allowing Petitioner's new attorney extra time also promotes the cause of justice
for the children. Nothing is more important to these children than to find a
permanent home. And Michigan law requires, "Before determining placement of
a child in its care, a supervising agency shall give special consideration and
preference to a child's relative or relatives who are willing to care for the child,
are fit to do so, and would meet the child's developmental, emotional, and

Page 77

physical needs. The supervising agency's placement decision shall be made in the
best interests of the child." MCL 722.954a(5).
Therefore, Adoption Petitioner Lori Scribner respectfully asks this Court to grant
her motion under MCR 2.503 and adjourn the Section 45 Hearing scheduled for February
10,2012, at 10 AM to allow her new attorney time to adequately review the case and
properly prepare to meet Petitioner's burden of proving that the MCI Superintendent's
decision to deny her request to adopt these four children was arbitrary and capricious.

By/~ 9it4[[

Scott M. Nichol, P75209

Attorney for Adoption Petitioner
1650 Kendale Blvd., Ste. 110
East Lansing, MI 48823
(517) 583-0520

Page 78

PROOF OF SERVICE
I certify that on January 27, 2012, I served a copy of Petitioner's First Motion for
Adjournment, on Chad Catalino, Guardian Ad Litem, by mail at 1189 Peck Street,
Muskegon, MI 49442; and on Geraldine Anne Brown, P67601; Michigan Dept. of
Attorney General, by Hand Delivery at 525 W Ottawa St, P. O. Box 30758, Lansing, MI
48909.

By

/s/-+- 5Mt
- - - - -'-~
wl-,,---L

SCOttM.Nichol, P75209
Attorney for Adoption Petitioner
1650 Kendale Blvd., Ste. 110
East Lansing, MI 48823
(517) 583-0520

Page 79

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF MUSKEGON
FAMIL Y DIVISION

IN THE MATTER OF:

Jordan Gonzalez; doh: 9/5/2001
Esdeanna Heeren; doh: 10/26/2002
Kylea Heeren; doh: 2/1612004
Carmen Heeren; doh: 10/03/2005

File No.1l-7780-AF, 11-7781-AF,

11-7782-AF,1l-7783-AF

PETITIONERS MOTION TO
COMPEL DISCOVERY
PROOF OF SERVICE
Hon. William C. Marietti

Chad Catalino, P64377

Guardian Ad Litem
1189 Peck Street
Muskegon, Ml 49442
(231) 722-2222
Geraldine Anne Brown, P67601
Michigan Dept. of Attorney General
P. O. Box 30758
Lansing, MI 48909

Scott M. Nichol, P75209

Attorney for Adoption Petitioner
Lori Scribner
Moody & Nichol PLLC
1650 Kendale Blvd., Ste 110
East Lansing, MI 48823
(517) 583-0520
Fax: (517) 583-0521
E-mail: scott@moodynicholpllc.com

(517) 373-7700

PETITIONERS' MOTION TO COMPEL DISCOVERY

The Adoption Petitioner, through her attorney, Scott M. Nichol, states the
following in support of their Motion to Compel Discovery:
1. Ms. Scribner has filed a petition to adopt her grandchildren: Esdeanna Hereen,
Kylea Hereen, Carmen Heeren, and their brother Jordan Gonzalez.
2. The Michigan Children's Institute Superintendant, William Johnson, has denied
Ms. Scribner's request for consent to adopt the GonzalezlHereen children.
3. Ms. Scribner has filed a motion for an evidentiary hearing under MCL 710.45
because Johnson's denial of consent to Ms. Scribner to adopt the
GonzalezlHereen children was arbitrary and capricious.
4. "Except as modified by MCR 3.801-3.806, adoption proceedings, are governed by
the rules generally applicable to civil proceedings." MeR 3.800(A).
1

Page 80

5. Nothing in MCR 3.801-3.806 modifies the discovery rules in MCR 2.300-2.316.

6. Discovery is available to prepare for the Section 45 hearing. See, e.g., In re Cw,
unpublished opinion per curiam of the Court of Appeals, issued February 16,
2010 at *24-25 ( (listing among the items that the trial court ordered released to
the petitioners the childrens' entire DHS file) (Shapiro, dissenting) (Docket No.
292866), adopted as the opinion of the Michigan Supreme Court, In re Cw, 488
Mich 935; 790 NW2d 383, 383 (2010) ("in lieu of granting leave to appeal, we
REVERSE the judgment of the Court of Appeals, for the reasons stated in the
Court of Appeals dissenting opinion .... ").
7. "Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates to
the claim or defense of the party seeking discovery or to the claim or defense of
another party, including the existence, description, nature, custody, condition, and
location of books, documents, or other tangible things, or electronically stored
information and the identity and location of persons having knowledge of a
discoverable matter. It is not ground for objection that the information sought will
be inadmissible at trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence." MCR 2.302(B).
8. On January 25 and January 26, 2012, Mr. Scott M. Nichol and Mr. Beaton
discussed discovery. Mr. Beaton indicated that he did not believe that Adoption
Petitioner was entitled to discovery and that he would not turn over any discovery.
9. Petitioners request that Mr. Beaton produce the following documents, all of which
are relevant to Ms. Scribner's claim that Mr. Johnson's decision to deny her the
consent to adopt the Gonzalez/Heeren children is arbitrary and capricious. MCR
2.302(B).
10. All of the documents that Petitioners are asking Mr. Beaton to produce are also
relevant to the "claim ... of another party," the Koetje's and to Mr. Johnson's
decision to deny Ms. Scribner's request for consent to adopt the GonzalezlHeeren.
MCR 2.302(B).
11. While MCL 710.67(1) provides that court records relating to adoption are
confidential, this Court may order their release for good cause shown. Id. In this
case, Ms. Scribner has good cause to ask for the records because these records
were available to Mr. Johnson while he was considering all parties' requests for
consent to adopt.

Page 81

12. Under In re CW, supra ~ 6, the party who has been denied consent to adopt is
entitled to see everything that Mr. Johnson had in his possession or had access to
during that decision making process. Id at *6, *24 ("[the trial court] ordered
respondent to provide them [the petitioners] with the DHS file regarding the
children and all of the information Johnson considered").
13. An order to Mr. Johnson to turn over his entire file on Esdeanna Hereen, Kylea
Hereen, Carmen Heeren, and Jordan Gonzalez, including (whether on paper or
electronic) reports, notes of conversations, and all correspondence about all of the
parties asking for consent to adopt, will help this Court to determine if Mr.
Johnson "acted arbitrarily and capriciously.... [S]uch a determination can only
be made by evaluating whether Johnson's articulated reasons were made without
consideration for the children's individual circumstances or made whimsically,
Goolsby v Detroit, 419 Mich 651,678; 358 NW2d 856 (1984), which can only be
achieved by examining whether Johnson's reasons were invalid in light of the
evidence." In re Cw, supra at *25.
14. Accordingly, to show that "Johnson's reasons were invalid in light of the
evidence," id., like the Petitioners in In re CW, Ms. Scribner must have access to
"all of the information Johnson considered," id at *24, when he made his
decision.
15. Moreover, to show that "Johnson's reasons were invalid in light of the evidence,"
id., Ms. Scribner is entitled to know what Mr. Johnson had access to but did not
consider in making his decision. "[U]nder some circumstances, arbitrariness may
be evident in proofthat an act was undertaken '''in a perfunctory fashion'" or on
the basis of ignorance of facts directly bearing on the matter. Goolsby v Detroit,
419 Mich 651,669; 358 NW2d 856 (1984), quoting Milstead v International
Brotherhood a/Teamsters, Local Union No. 957, 580 F2d 232, 235 (CA 6,
1978)." In re Cw, 488 Mich 935; 790 NW2d 383,387 (2010) (Corrigan, J.
concurring).
16. As a result, Ms. Scribner asks this court to order Mr. Johnson, Bethany Christian
Services (BCS), Holy Cross Children's Services (HCCS) and the Department of
Human Services (DHS) to produce the following documents:

The Child's entire DHS file, including (but not limited to) any paper or
digital correspondence, notes of conversations, notes of meetings, and
notes of visits with any person, any employee's personal notes about any
of the children, Ms. Scribner, and the Kotjis, and also including but not
limited to:
o

Any files maintained by the Mecosta County or Mukegon County

DHS regarding the Gonzalez/Heeren children.

Page 82

Any letters, emails, notes of telephone conversations, treatment notes,

social worker notes, any other employee notes in either an electronically
stored format or paper format, received from any source, that mention any
of the following names in connection with the Gonzalez/Heeren case:
o
o
o
o
o
o

The Child's entire BCS file including (but not limited to) any paper or
digital correspondence; notes of conversations, meetings, and visits with
any person, and also including, but not limited to any letters, emails, notes
of telephone conversations, treatment notes, social worker notes, any other
employee notes in either an electronically stored format or paper format,
received from any source, that mention any of the following names in
connection with the Gonzalez/Heeren case:
o
o
o
o
o
o

Lori Scribner
Terry Koetje and Dorice Koetje
Jordan Gonzalez
Kylea Heeren
Esdeanna Heeren
Carmen Heeren

Lori Scribner
Terry Koetje and Dorice Koetje
Jordan Gonzalez
Kylea Heeren
Esdeanna Heeren
Carmen Heeren

The Child's entire HCCS file including (but not limited to) any paper or
digital correspondence; notes of conversations, meetings, and visits with
any person, and also including, but not limited to any letters, emails, notes
of telephone conversations, treatment notes, social worker notes, any other
employee notes in either an electronically stored format or paper format,
received from any source, that mention any of the following names in
connection with the GonzalezlHeeren case:
o
o
o
o
o
o

Lori Scribner
Terry Koetje and Dorice Koetje
Jordan Gonzalez
Kylea Heeren
Esdeanna Heeren
Carmen Heeren

Page 83

The Michigan Children's Institute's entire files on Jordan Gonzalez, Kylea

Heeren, Esdeanna Heeren, and Carmen Heeren
o All "additional information [that] came to the attention of the MCI
office" that motivated the withdrawal of the original consent
decision. (mentioned in denial letter to Ms. Scribner, pg 2).
o All information received from BCS and HCCS (the private
agencies), as well as Muskegon County DHS, and the CASA
worker to support its recommendation about adoption (mentioned
in denial letter to Ms. Scribner, page 2)
o

"Information provided by the agency [BCS]" (mentioned in denial

letter to Ms. Scribner, pg 2)
.

"[l]nformation provided... by Ms. Scribner" that Johnson had

access to in making his decision. (mentioned in denial letter to Ms.
Scribner, pg. 2).

Copies of all written communication (whether paper or electronic)

between William Johnson and LGAL Chad Catalino regarding
Esdeanna Hereen, Kylea Hereen, Carmen Heeren, and Jordan
Gonzalez.

All information, in any form, that William Johnson received, from

any source, regarding each visit Lori Scribner had with the
GonzalezlHeeren children.

o All information, in any form, that William Johnson received, from

any source, to support his conclusion that the GonzalezlHeeren
children "continue to have special needs." (mentioned in denial
letter to Ms. Scribner, pg. 2).
o All information, in any form, that William Johnson received, from
any source, to support his conclusion that "it is not known if she
[Lori Scribner] could provide for the special needs of these four
children on a permanent basis." (mentioned in denial letter to Ms.
Scribner, pg. 3).

o All information William Johnson received and relied on to

conclude that the relationship between the GonzalezlHeeren
children and Lori Scribner is not "a significant psychological
relationship." (mentioned in denial letter to Ms. Scribner, pg. 3).

Page 84

All information, in any form received from any person to support

William Johnson's conclusion that the GonzalezlHeeren children
have "made significant progress in their school performance . . ..
[and) demonstrate strong connection to their school and
classmates" (mentioned in denial letter to Ms. Scribner, pg. 3).

All information, in any form received from any person to support

William Johnson's conclusion that the GonzalezlHeeren children
"express a very strong desire to remain in their current family
home and not be moved for placement in the home of Ms.
Scribner." (mentioned in denial letter to Ms. Scribner, pg. 3).

Any letters, emails, notes of telephone conversations, in either an

electronically stored format or paper format, received from any source,
that mention any of the following names in connection with the
Gonzalez/Heeren case:
o
o
o
o
o
o

Lori Scribner
Terry Koetje and Dorice Koetje
Jordan Gonzalez
Kylea Heeren
Esdeanna Heeren
Carmen Heeren

17. Ms. Scribner also asks this Court to order the following entities to produce the
following documents, all of which are necessary to determine if Mr. Johnson
considered the GonzalezlHeeren children's entire circumstances, including any
legal or policy violations committed by BCS, HCCS or DHS, when he decided to
deny Ms. Scribner's request for consent to adopt:

From Holy Cross Children's Services and Bethany Christian Services

o

Copies of material that HCCS uses to train prospective foster

parents.

Copies of material that BCS uses to train prospective adoptive

parents.

Copies ofHCCS's policies and procedures for foster care workers

that were in force in October 2008 and all changes to those policies
that have been adopted since October 2008.

Page 85

Copies of BCS' s policies and procedures for adoption workers that

were in force in October 2008 and all changes to those policies that
have been adopted since October 2008.

o Notes of any meetings among any ofthe employees ofHCCS or

BCS regarding Lori Scribner or regarding any of the
Gonzalez/Heeren children.

Copies of payments HCCS has received from any funding source

since the Gonzalez/Heeren children taken into DHS custody that
come to HCCS to provide care for the Gonzalez/Heeren children,
including payment for their foster care and payments for
administrative expenses.

Copies of all payments made to Terry and Dorice Koetje for foster
care for GonzalezlHeeren children.

A copy of any "Competing Parties Assessment Regarding the

Gonzalez/Heeren children," performed by BCS.

Copy ofHCCS document retention policy.

Copy of BCS document retention policy

FromDHS
o

Copy ofDHS document retention policy.

o Copies of any contracts between DHS and BCS and between DHS
and HCCS.
18.

"The motion must state that the movant has in good faith conferred or attempted
to confer with the party not making the disclosure in an effort to secure the
disclosure without court action." MCR 2.310(C)(3).

19.

Mr. Scott M. Nichol has conferred in good faith with Mr. Beaton in an effort to
secure the disclosure without court action.

20.

The Section 45 hearing is scheduled for February 10,2012; therefore, the

Petitioner asks the court to order that the Respondent produce all of the
documents Petitioner have asked for no later than five days after the entry of this
order.

Page 86

Because the Respondent will not produce any more documents unless this Court
orders it to, the Petitioner asks this court to order that the Respondent produce the
documents identified in this motion.

~spec~: ::bm~aL
Scott M. Nichol, P75209
Attorney for Adoption Petitioner
1650 Kendale Blvd., Ste. 110
East Lansing, MI 48823
(517) 583-0520

Page 87

PROOF OF SERVICE

I certify that on January 27, 2012, I served a copy of Petitioner's Motion to Compel
Discovery, on Chad Catalino, Guardian Ad Litem, by mail at 1189 Peck Street,
Muskegon, MI 49442; and on Geraldine Anne Brown, P67601, Michigan Dept. of
Attorney General, by Hand Delivery, at 525 W Ottawa St, P. O. Box 30758, Lansing, MI
48909.

By lsi
Attorney for Adoption Petitioner
1650 Kendale Blvd., Ste. 110
East Lansing, MI 48823
(517) 583-0520

Page 88

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF MUSKEGON
FAMILY DIVISION

][N THE MATTER OF:

Jordan Gonzalez; dob: 9/5/2001
Esdeanna Heeren; dob: 10/26/2002
Kylea Heeren; dob: 2116/2004
Carmen Heeren; dob: 10/03/2005

File No. 11-7780-AF, 11-7781-AF,

11-7782-AF, 11-7783-AF
NOTICE OF HEARING
PROOF OF SERVICE
Hon. William C. Marietti

Chad Catalino, P64377

Guardian Ad Litem
1189 Peck Street
Muskegon,MI49442
(231) 722-2222
Geraldine Anne Brown, P67601
Michigan Dept. of Attorney General
525 W Ottawa St.
P. O. Box 30758
Lansing, MI 48909

Scott M. Nichol, P75209

Attorney for Adoption Petitioner
Lori Scribner
Moody & Nichol PLLC
1650 Kendale Blvd., Ste 110
East Lansing, MI 48823
(517) 583-0520
Fax: (517) 583-0521
E-mail: scott@moodynicholpllc.com

i517) 373-1110

NOTICE OF HEARING
PLEASE TAKE NOTICE that a HEARING on Petitioner's First Motion for

Adjournment and Petitioner's Motion to Compel Discovery has been scheduled, before the Hon.
'William C. Marietti, in the Michael E. Kobza Hall of Justice, FOURTH FLOOR, located in the City
of Muskegon on:

WEDNESDAY, FEBRUARY 1st, 2012 at 2:00 PM

Dated: January 27,2012.

2JaL(

Scott M. Nichol
Attorney for Lori Scribner
Adoption Petitioner

Page 89

PROOF OF SERVICE
I certify that on January 27,2012, I served a copy of Notice of Hearing, on Chad Catalino,
Guardian Ad Litem, by mail at 1189 Peck Street, Muskegon, MI 49442; and on Geraldine Anne
Brown, P67601, Michigan Dept. of Attorney General, by Hand Delivery at 525 W Ottawa St,
P. O. Box 30758, Lansing, MI 48909.

BYM~

Scott M. Nichol, P75209

Attorney for Adoption Petitioner
1650 Kendale Blvd., Stc. 110
East Lansing, MI 48823
(517) 583-0520