In this instance, the Superintendent of Michigan Children's Institute, Bill Johnson, whom has been replaced by his crony Bruce Hoffman, refuses to grant adoption to the grandmother of her 3 grandchildren because she was granted custody by the lower court before MCI could throw in its 2 cents.
The issue is technical on timing as to the authority of granting the decision.
Courts of Michigan do not make the judicial decision; it is MCI, or rather the Superintendent.
A legal filing to challenge the decision of the MCI Superintendent must prove the decision was "arbitrary and capricious", not whether it was proper or improper, not whether it was right or wrong, not whether it violated an individual's constitutional right of due process, just whether an attorney can magically get inside the psyche of the Superintendent and prove the process of reading his mind in a court of law.
The standard of "arbitrary and capricious" hails from the infamous Cotton case.
The standard was then enshrined in law.
The time has come to take down that law.
Act 288 of 1939
710.45 Withholding of consent by representative or court; motion by petitioner; decision by court; termination of rights; entering orders; appeal.
Sec. 45.
(1) A court shall not allow the filing of a petition to adopt a child if the consent of a representative or court is required by section 43(1)(b), (c), or (d) of this chapter unless the petition is accompanied by the required consent or a motion as provided in subsection (2).
(2) If an adoption petitioner has been unable to obtain the consent required by section 43(1)(b), (c), or (d) of this chapter, the petitioner may file a motion with the court alleging that the decision to withhold consent was arbitrary and capricious. A motion under this subsection shall contain information regarding both of the following:
(a) The specific steps taken by the petitioner to obtain the consent required and the results, if any.
(b) The specific reasons why the petitioner believes the decision to withhold consent was arbitrary and capricious.
(3) If consent has been given to another petitioner and if the child has been placed with that other petitioner according to an order under section 51 of this chapter, a motion under this section shall not be brought after either of the following:
(a) Fifty-six days following the entry of the order placing the child.
(b) Entry of an order of adoption.
(4) In an adoption proceeding in which there is more than 1 applicant, the petition for adoption shall be filed with the court of the county where the parent's parental rights were terminated or are pending termination. If both parents' parental rights were terminated at different times and in different courts, a petition filed under this section shall be filed in the court of the county where parental rights were first terminated.
(5) The court shall provide notice of a motion brought under this section to all interested parties as described in section 24a(1) of this chapter, the guardian ad litem of the prospective adoptee if one has been appointed during a child protection proceeding, and the applicant who received consent to adopt.
(6) Upon the filing of a petition to adopt a child and the motion described in subsection (2), the court may waive or modify the full investigation of the petition provided in section 46 of this chapter. The court shall decide the motion within 91 days after the filing of the motion unless good cause is shown.
(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.
(8) If the court finds by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court shall issue a written decision and may terminate the rights of the appropriate court, child placing agency, or department and may enter further orders in accordance with this chapter or section 18 of chapter XIIA as the court considers appropriate. In addition, the court may grant to the petitioner reimbursement for petitioner's costs of preparing, filing, and arguing the motion alleging the withholding of consent was arbitrary and capricious, including a reasonable allowance for attorney fees.
(9) If the consent at issue is that required of the court under section 43(1)(c) of this chapter, the motion shall be heard by a visiting judge assigned according to section 8212 of the revised judicature act of 1961, 1961 PA 236, MCL 600.8212.
(10) The court's decision on a motion brought under this section is appealable by right to the court of appeals.
History: Add. 1982, Act 72, Imd. Eff. Apr. 14, 1982 ;-- Am. 1994, Act 239, Eff. July 5, 1994 ;-- Am. 1996, Act 409, Eff. Jan. 1, 1998 ;-- Am. 2004, Act 486, Imd. Eff. Dec. 28, 2004
Popular Name: Probate Code
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