The trial court in this adoption case improperly denied the petitioners’ motion for discovery and wrongly quashed subpoenas that were issued to the Department of Health and Human Services and Bethany Christian Services, the Michigan Court of Appeals has ruled.

The parents of the child in In re CADP, Minor (Docket Nos. 358271 and 358383) are deceased. The petitioners in the case are the child’s paternal grandparents. When the Michigan Children’s Institute (the MCI) recommended that the child’s maternal grandmother, Yvonne Robinson, adopt the child, the petitioners filed a motion in the Kalkaska County Probate Court, alleging the MCI’s decision was arbitrary and capricious. The probate court scheduled a hearing pursuant to MCL 710.45 (“§45 hearing”).

The petitioners then filed a motion for discovery, claiming the MCI, the Department of Health and Human Services (the DHHS) and Bethany Christian Services (BCS) had not complied with various subpoenas that had been issued. According to the petitioners, they were entitled to certain information pursuant to case precedent and the Michigan Court Rules. The DHHS, however, argued the subpoenas should be quashed for three reasons: 1) the discovery rules do not apply to §45 proceedings because the proceedings do not involve a complaint or “civil action,” 2) the records sought were confidential under statutory law and 3) the request was overbroad.

The Kalkaska Probate Court ruled the petitioners were not entitled to discovery because the general discovery rules do not apply to §45 proceedings. The probate court further ruled the information sought was confidential and the petitioners’ subpoenas were overbroad.

The Court of Appeals reversed in a published and binding opinion. The appeals court held that no provision in Chapter 3 of the Michigan Court Rules limits the right of discovery in adoption proceedings. “[W]e conclude that … the discovery rules apply to petitioners’ §45 motion” and the petitioners’ subpoenas “were not necessarily overbroad,” Judge Mark J. Cavanagh wrote.

Judges Thomas C. Cameron and Michael F. Gadola joined the decision.

§45 Hearing

On appeal, the petitioners maintained they were entitled to the requested discovery because:

1) the discovery rules apply to §45 hearings initiated by motion, 2) the subpoenas were not overbroad and 3) the confidential nature of the information would have been adequately protected by a protective order and in camera inspection while allowing for a meaningful §45 review to occur.

“We agree,” the Court of Appeals stated.

In its opinion, the Court of Appeals pointed out that, under MCL 710.43(1)(b), a person seeking to adopt a child placed with a state agency must obtain consent from that agency.  The appeals court also explained that MCL 710.45 says:

(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.

…

(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 this case, the DHHS and BCS asserted that a motion, not a complaint, was at issue and therefore the discovery rules did not apply. “Legislative and court-rule history is illustrative in considering this argument,” the Court of Appeals observed, noting that discovery was available in adoption proceedings before the Michigan Supreme Court moved the applicable court rules from subchapter 5.750 to subchapter 3.800.

“There is nothing in the statutory provisions governing the family division of the circuit court suggesting that when jurisdiction of adoption proceedings was moved from the probate court, the opportunity for discovery was to be eliminated,” the Court of Appeals wrote. “The creation of the family court and the movement of family-related matters, like adoption, to the jurisdiction of the circuit court was designed to make the courts more comprehensible to Michigan citizens, especially those who are involved in family litigation interweaving different legal issues previously heard in different court divisions. Reorganizing legislation should not be understood as intentionally eliminating an established right unless the language of the legislation makes such a change clear and unambiguous. And … MCR 3.800(A) states, ‘Except as modified by the rules in this chapter, adoption proceedings are governed by Michigan Court Rules.’ No provision in Chapter 3 limits the right of discovery in adoption proceedings.”

However, the DHHS and BCS argued that In re Cotton, 208 Mich App 180 (1994), limited the scope of a §45 review and discovery was not required. “[T]he mere fact that a deferential scope of review applies does not mean that discovery should be withheld,” the Court of Appeals said. “In re Cotton provides no basis to refute the discovery analysis set forth ….”

According to the Court of Appeals, petitioners in a §45 hearing “are entitled to set forth pertinent evidence” and the manner for obtaining such evidence “will often be through the discovery process.” The fact that discovery is available in adoption proceedings “has been recognized in decisions of this court, albeit in unpublished decisions.” Citing various unpublished decision in this regard, the Court of Appeals acknowledged that unpublished opinions are not binding precedent. However, “they can be viewed as instructive and persuasive. … Again, MCR 3.800(A) provides that adoption proceedings are governed by Michigan Court Rules and no provision in Chapter 3 limits the right of discovery in adoption proceedings. Accordingly, we conclude that the discovery rules do, in fact, apply to a §45 hearing.”

The Court of Appeals further said the subpoenas that were issued were not necessarily overbroad. “Petitioners sought the case files relating to CADP, which is relevant evidence under MCR 2.302(B)(1) for the purpose of determining whether MCI’s decision to withhold consent to adopt the minor child was arbitrary and capricious. … Any such evidence may only be obtained through appropriate discovery and specific objections to requested discovery information may be addressed by the trial court, including through a motion for a protective order under MCR 2.302(C) or a request for an in camera review. Because it is petitioners’ burden in a §45 hearing to establish ‘by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious,’ MCL 710.45(7), petitioners must be afforded the means to attempt to carry that burden.”

Meanwhile, the DHHS and BCS also argued that statutory confidentiality provisions in MCL 400.211, MCL 710.67(1), MCL 722.120(3) and (4), and MCL 722.627(2) precluded discovery in adoption proceedings. The Court of Appeals rejected these assertions, addressing each statute and concluding that:

• the MCI records could be inspected only under a protective order, to comply with the confidentiality requirements of MCL 400.211.

• the petitioners’ desire to present evidence in support of their §45 motion was “good cause shown” under MCL 710.67(1).

• the confidentiality requirement mentioned in MCL 722.120(3) does not preclude discovery from BCS.

• records that pertain to the CPL are not available to petitioners but can be used by the court under MCL 722.627(2)(g) if the court deems it necessary.