The trial court’s decision to deny the plaintiffs’ adoption petitions must be vacated and the case remanded because the trial court made several errors during discovery, the Michigan Court of Appeals has ruled.

It was the second time that In re CADP, Minor (Docket Nos. 366087, 366088) was before the Court of Appeals. The first In re CADP, Minor decision was issued in 2022 (see the Speaker Law Blog for details on the first appellate ruling).

The case involves three competing petitions for adoption of the minor child, CADP.  The parents of CADP are deceased. Yvonne Robinson, Jason and Daena Thibodeau, and David and Donna Prevo all sought consent to adopt CADP. The Michigan Children’s Institute (MCI) granted consent to Robinson and denied consent to the Thibodeaus and the Prevos. The Thibodeaus and the Prevos filed motions pursuant to MCL 710.45 (“§45 motion”) challenging the petition denials. The Kalkaska County Circuit Court denied the motions. The plaintiffs appealed a second time and the appeals were consolidated.

In this second appeal, the Court of Appeals vacated the trial court’s order denying the petitions and remanded the case for further proceedings.

“The lower court ruled that neither the Prevos nor the Thibodeaus were entitled to discovery of adoption materials related to Robinson,” the Court of Appeals said. “This ruling violated the law-of-the-case doctrine because it was contrary to this Court’s opinion in the prior appeal.”

Further, Bethany Christian Services (BCS) “was not a party to the litigation” and, despite this, “attorneys for BCS actively participated in the §45 hearing and even raised objections,” the Court of Appeals observed. “The participation went far beyond the scope of the limited appearances filed by the BCS attorneys, pursuant to MCR 2.117(B)(2)(c), to tend to discovery matters.”

Judge Noah P. Hood, Judge Christopher M. Murray and Judge Allie Greenleaf Maldonado were on the Court of Appeals panel that issued the unpublished opinion.

Judge Maldonado wrote a separate concurrence, explaining that while she agreed with the majority, she wrote separately “to address a string of published opinions from this Court that I believe misinterpreted MCL 710.45 in such a way as to remove any meaningful judicial oversight from these proceedings.”

An application for leave to appeal the decision was filed with the Michigan Supreme Court on April 4, 2024.

Discovery Errors

The petitioners argued on appeal that the Kalkaska County trial court erred by only allowing the Prevos and Thibodeaus to access their own files.

“We agree,” the Court of Appeals said, noting the trial court was barred from making any rulings contrary to the appellate decision in the first appeal. The Court of Appeals “has already concluded that the ‘case files’ were relevant,” the panel said. “Moreover, this Court cited with approval an unpublished opinion in which the petitioner, who had been denied consent to adopt, was allowed to review the entire MCI file. … The Court particularly emphasized the statement that ‘Michigan is strongly committed to a far-reaching and open discovery practice.’”

Moreover, the trial court reasoned that neither the Prevos nor the Thibodeaus were entitled to the information pertaining to Robinson in light of footnote 8 in the first In re CADP decision, the Court of Appeals observed. “But a close reading of In re CADP makes it clear that that footnote was dealing solely with information obtained during the child-protection portion of the proceedings, and it is undisputed that neither the Prevos nor the Thibodeaus are seeking any information relating to those particular proceedings.” When examined, “it is clear that this Court ruled that any information from the abuse-and-neglect case - not information from the adoption case as whole - and pertaining to an applicant for adoption was to be provided only to that applicant. It is not this Court’s role to usurp the ruling of In re CADP.  …  The lower court’s discovery ruling on remand contradicted the rulings of In re CADP.”

Accordingly, because the trial court did not allow discovery into the information pertaining to Robinson, the Thibodeaus and the Prevos were not “’afforded the means to attempt to carry [their] burden’ to establish that MCI’s decision to withhold consent to adopt CADP was arbitrary and capricious,” the Court of Appeals said. “Therefore, we vacate the court’s order denying these petitions, and remand this case for additional proceedings.”

On remand, the trial court “shall allow the Thibodeaus and Prevos to conduct full discovery into CADP’s case files, including those pertaining to Robinson,” the Court of Appeals held. “The court shall then conduct the §45 hearings anew, and shall consider all evidence relevant to CADP’s welfare, rather than limiting the presentation of evidence to that pertaining to the particular petitioner.”

Nonparty Participation

The petitioners also argued the trial court erred by allowing BCS, a nonparty, to participate in the §45 hearing.

“We agree,” the Court of Appeals said. “It is undisputed that BCS does not qualify as an interested party under [MCL 710.24a(1)]; indeed, representatives of BCS repeatedly referred to BCS as a nonparty in the trial court,” the panel said, noting the attorneys for BCS “actively participated” in the §45 hearing and “even raised objections.”

Citing People v Henderson, 382 Mich 582 (1969), where the Michigan Supreme Court discussed the role of attorneys for nonparties, the Court of Appeals emphasized that BCS was not a party to this case. “Therefore, attorneys for BCS had no right to participate in the §45 hearings. … Despite this fact and over petitioners’ objections, attorneys for BCS actively participated in the hearing to an extent suggesting that BCS actually was a party. Allowing this to happen was ‘so inconsistent with our adversary system as to constitute a denial of due process of law’ to petitioners.”

Therefore, the trial court on remand “shall not allow BCS’s attorneys to participate beyond the scope of their limited appearances for the purposes of discovery,” the Court of Appeals held.

“We vacate the trial court’s order denying the Thibodeaus’ and Prevos’ petitions to set aside MCI’s denial of consent to adopt CADP,” the Court of Appeals concluded. “This case is remanded for additional proceedings consistent with this opinion.”