STATEMENT AS TO WHY LEAVE TO APPEAL SHOULD BE DENIED
Appellant  has  failed  to  articulate  any  ground  for  appeal  as  required  by  MCR  7.302(B).  The grounds upon which  this application is based have been rendered moot by
subsequent actions of the  trial court  the Court of Appeals.  On April 17, 2007, the Court of
Appeals issued an order reversing  several of  the Trial Court's actions,  including the Trial
Court's decision to change the  placement of  the girls, its  decision that  reasonable efforts
had not  been  made to  place  the children, and  in revoking  the children's  commitment to
MCI. (Exhibit A, COA Order 4/17/07)  Many  of the  issues raised by the Attorney General's application to the Court of Appeals and the Maternal Grandparents' subsequent application
to  this  Court  are  no  longer  viable  issues  and  this  application  should  be  denied.  For
instance,  since April 17, 2007, the  trial court  has held  a best  interests hearing,  has ruled
that  the  MCI's decision  to deny consent  to the Maternal  Grandparents  was arbitrary and 
capricious,  has decommitted  MCI, has  denied consent to adopt to the Foster Mother, and                                     
has  awarded  the Maternal  Grandparents  grandparent  visitation.  Several   of  these Trial
Court actions are currently the subject of appeals in the Court of Appeals.
           The Foster Mother filed an appeal on August 9,2007 (Docket Number 279820)
seeking emergency relief from the Trial Court's award of grandparent visitation to the Maternal Grandparents. In an order dated August 9,2007, the Court of Appeals granted
the Foster Mother's application, stayed enforcement of the Trial Court's grandparent visitation order, and additionally ordered that "further proceedings are STAYED pending
resolution of this appeal or further order of this Court." (COA Order, 8/9/07)
           The Attorney General's office also filed a claim of appeal on August 8, 2007 (Docket
Number TBA) from the Trial Court's ruling that MCI was arbitrary and capricious when it
 
                                                                      1

denied the Maternal Grandparents consent to adopt and then decommitted the children
as wards of MC!. (Exhibit V)

COUNTER-STATEMENT OF QUESTIONS INVOLVED

(1)	Did the Trial Court err in changing custody of minor children during the course of
    adoption proceedings and terminating MCI guardianship in its March 5, 2007  order          
    without first conducting a best interests analysis where there was no indication that a
    change in custody was immediately necessary?

          Appellant Grandparents answer:           No.
         Appellee Attorney General answers:     Yes.
         Appellee Foster Mother answers:          Yes.
         Trial Court answers:                               No.
(2)	Did the Trial Court commit reversible error by failing to comply with the procedural   requirements of the Michigan Adoption Code by using post-termination proceedings as a vehicle to change custody of children wbo were in the process of being adopted by their Foster Mother?

         Appellant Grandparents answer:          No.    
         Appellee Attorney General answers:    Yes.
         Appellee Foster Mother answers:         Yes.
         Trial Court answers:                              No.
(3)	Did the Trial Court incorrectly terminate MCI guardianship of the children where the
         record lacks clear and convincing evidence that the MCI's denial of consent to adopt   
    to the Maternal Grandparents was arbitrary and capricious?
         Appellant Grandparents answer:          No.    
         Appellee Attorney General answers:    Yes.
         Appellee Foster Mother answers:         Yes.
         Trial Court answers:                              No.

                                                                 2

(4)      Did the Trial Court commit reversible error and deny the Foster Mother her due
          process rights by hearing the Maternal Grandparents' petition to adopt without
          providing the Foster Mother notice and opportunity to be heard, as required by the
         Adoption Code?

         Appellant Grandparents answer:          No.    
         Appellee Attorney General answers:    Yes.
         Appellee Foster Mother answers:         Yes.
         Trial Court answers:                              No.

                      
                                                                3
COUNTER-STATEMENT OF FACTS
Appellee Foster Mother does not accept Appellant's statement of facts, and would draw this Court's attention to the following additional facts:
The minor children whose futures are at stake in this appeal are Alyssa Keast (age 6) and Amber Keast (age 4). They have lived with their foster mother, Nicole Coppess
("Foster Mother") for more than two years. By the account of every agency who has examined this matter-including the Trial Court-these young girls are closely bonded to
their Foster Mother and want to live with her forever. The Foster Mother has been able to
provide these girls the security, stability, and nurturing" environment that was so
conspicuously absent from their lives prior to their placement with their Foster Mother.
	Sadly, the girls were removed from the home of their biological mother after the
police raided the home that the biological mother shared with the girls for drug trafficking. The biological mother had a long history of substance abuse that resulted in the Newaygo
County Prosecutor's Office conducting an abuse and neglect investigation. The biological
mother's substance abuse history began when she was 14 years old and smoked
marijuana with her father. In fact, the Trial Court (with the same judge presiding) removed the girls from placement at the Maternal Grandparents' home in July 2005 because it
determined that it was not in the children's best interests to remain with their Maternal Grandparents. The Trial Court reached this conclusion after it was disclosed that the
maternal grandfather had smoked marijuana as recently as March 2005 and that the Maternal Grandparents had allowed the girls to see their biological mother unsupervised
and that biological mother had also exposed the girls to her boyfriend, all in contravention of the Maternal Grandparents' agreement with the Department of Human Services ("DHS").

                                                                 4
In evaluating the adoption petition of Barb and Tim Atwood ("Maternal Grandparents"), the Trial Court ignored the evidence that the maternal grandfather had a
long history of drug abuse, that his history of drug abuse and smoking marijuana with his
daughter starting when she was 14 years old and as recently as 2004, might have had
some bearing on the disaster that the biological mother's life had become. . Needless to
say, the biological mother's inability to control her own life directly led to the abuse and
neglect proceedings and the termination of her parental rights of Alyssa and Amber in
March 2006. The termination proceedings were concluded after the girls were returned to
their biological mother's care for one week in December 2005.

During that shortopportunity for the biological mother to be with her daughters, the biological mother attempted to suicide in front of her daughters, then aged 3 and 5. Her suicide attempt caused the girls to regress from what progress they had made during the previous 6 months they had lived in their Foster Mother's home.

                                                                5

ARGUMENT
I.	The Trial Court's decision to move the children to their Maternal
          Grandparents' home was incorrect as the Trial Court failed to
          Conduct a best interest analysis in spite of being presented with
          evidence that removing the children from the foster Mother's home
          was not in the children's best interest, and had the statutory analysis
          been conducted the majority of the factors would have weighed in the
          Foster Mother's favor and the children would have properly stayed 
          with the Foster Mother

The Trial Court committed reversible error by failing to weigh or even consider the best interests of the two minor children when it granted the Maternal Grandparents' Petition
to Adopt and denied the Foster Mother's Petition to Adopt the two children.
Whenever a court or government agency examines the custody or placement of a
child, the best interest of the child is the paramount concern. The best interest of the child
is grafted into virtually every Michigan statute that affects the placement of the child,
including the Adoption Code, the Probate Code, and Child Custody Act. The Adoption
Code states that its goal is to "provide procedures and services that will safeguard and
promote the best interests of each adoptee in need of adoption and that will protect the rights of all parties concerned." MCL 710.21a(b) (emphasis added). As part of this
purpose, the Adoption Code includes the goal of achieving "permanency and stability for adoptees as quickly as possible." MCL 710.21a(e).
The Adoption Code outlines the elements for the court to consider in evaluating the best interests of the child. More precisely, the best interest factors are to be "considered,
evaluated and determined by the court to be applied to give the adoptee permanence at
the earliest possible date." MCL 710.22(g). The factors enumerated in the Adoption Code are very similar to the factors set forth in the Child Custody Act. Compare MCL 71 0.22(g)
                                                                6
with MCL 722.27. The "sum total" of the factors in the Adoption Code that the trial court

is obligated to consider, evaluate, and determine are as follows:

(i)       The love, affection, and other emotional ties existing between the adopting
Individual or individuals and the adoptee . . . .

(ii)	The capacity and disposition of the adopting individual or individuals . . . to
            give the adoptee love, affection, and guidance, and to educate and create a
            milieu that fosters the religion, racial identity, and culture of the adoptee.

(iii)	The capacity and disposition of the adopting individual or individuals . . . to
            provide the adoptee with food, clothing, education, permanence, medical care
           or other remedial care recognized and permitted under the laws of this state in
           place of medical care, and other material needs.

           (iv)       The length of time the adoptee has lived in a stable, satisfactory environment,
                     and the desirability of maintaining continuity. 
(v)	The permanence as a family unit of the proposed adoptive home. . .
(vi)	 The moral fitness of the adopting individual or individuals. . . .
(vii)	 The mental and physical health of the adopting individual or individuals. . . .
(viii)	 The home, school, and community record of the adoptee.

(ix)	 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.

(x)	The ability and willingness of the adopting individual or individuals to adopt
           the adoptee's siblings.

(xi)	Any other factor considered by the court to be relevant to a particular adoption
           proceeding. . . .

MCL 710.22(g). These best interests of the children are important at every stage of the proceedings-from termination of parental rights to foster care placement, to permanent

                                                               7
placement in an adoptive home.

Michigan Court Rules point to the best interest of the child in the procedure governing post-termination review hearings. The trial court may enter orders that it
considers necessary following the termination of parental rights, but those orders must be
in the best interests of the child. MCR 3.978(C). Once a parent's parental rights have been terminated, the trial court can approve the placement of a child, but only if the judge is
satisfied that "the best interest of the adoptee will be served by the adoption." MCL
710.51.
The Probate Code also requires the Foster Care Review Board to weigh the best interests of the child when making a change in foster placement. MCL 712A.13b. The
foster care review board is required to investigate the foster care placement and if the

board determines that the "move is in the child's best interest, the agency may move the

child" but if the "move is not in the child's best interest, the agency shall maintain current

[foster] placement." MCL 712A.13b(4), (5).

These numerous statutory provisions demonstrate the legislature's objective of ensuring that any placement of a child is in that child's best interests. Contrary to the
statutory obligations, the trial court in this case failed to conduct any best interests analysis. Instead, in deciding to grant the Maternal Grandparents' petition to adopt, the trial court
simply asked the grandfather one question about his prior drug use:
          THE COURT:       Is there-do you understand this business about, apparently this drug
                                         use, that's got to be a thing of the past, do you understand that?

          MR. ATWOOD:  Yes, and I did, your honor.

          THE COURT:      The Court will grant your petition and consent to the adoption by the
                                       maternal grandparents.

                                                                8

 (Exhibit N, Transcript hearing 1/3/07, at p 5)* The Trial Court conducted this cursory
examination in spite of the fact that the Trial Court had removed these children from the
Maternal Grandparents home in July 2005 because the grandfather had recently engaged in drug use with the children's biological mother. (Exhibit G at p 1; Exhibit H; Exhibit I)
The following month when the Foster Mother's petition to adopt came before the trial court, the trial court refused to hear the attorney representing the Foster Mother. (Exhibit
R, Transcript 4/4/07 at 8-10) Instead, the Trial Court reiterated its previous ruling which granted the Maternal Grandparents' petition to adopt. (Exhibit R, Transcript, 4/4/07 at 6-7)  In the previous hearings regarding the Maternal Grandparents' petition and in the hearing on the Foster Mother's petition to adopt, there is a complete lack of any analysis regarding the best interests of the child. In fact, the Trial Court's refusal to follow the statutory scheme that is designed to protect the best interests of.the children starkly contrasts the Trial Court's own recognition that the children were closely bonded with their foster mother and that the children were doing well with their placement in the foster home that now wanted to adopt them. (Exhibit R, Transcript 4/4/07 at 4; Exhibit B, Order, 3/5/07)
The followings facts are part of the record that the trial court had available to it to determine what placement was in the best interests of the children:

_________________________

      *    All the letter exhibits referenced in this answer refer to the exhibits attached to the Attorney General's Answer to Application for Leave to Appeal; the number exhibits refer to the exhibits attached to the Maternal Grandparents' Application for Leave to Appeal. A few of the exhibits referenced in this Answer are only attached to the Attorney General's Application in the Court of Appeals, and are noted accordingly in this Brief.

                                                                        9

         A.    Evidence Demonstrating that Adoption by the Foster Mother is in Best
                Interests of Children

1.	An Adoption Progress Report of Bethany Christian Services dated February 6, 2007   stated that "Alyssa and Amber continue to do very well in their current foster home placement. They remain closely bonded to their foster mother, who has indicated a desire to adopt both girls. Alyssa and Amber have likewise indicated their desire to stay with their foster mother." (Exhibit V)
2.          According to the Bethany Christian Services Report, Alyssa has made a

            "tremendous amount of change" over the prior six months while she was in foster

            care. Although Alyssa has significant behavioral problems arising from her life

            before foster care, the Foster Mother uses time outs and takes away privileges to

            discipline Alyssa. The Foster Mother has also started a behavior incentive program

            with both girls that has proven successful with Alyssa. (Exhibit G, at p 6)

3.         Alyssa is being exposed to cultural beliefs/identity and practices and traditions 
            within her foster family. (Exhibit G, at p 6)

4.         Although Amber has been diagnosed with Attention-Deficit/Hyperactivity Disorder,
           Oppositional Defiant Disorder, and Post-traumatic stress disorder, her Foster Mother
           participates directly with Amber's counselor. The Foster Mother disciplines
           Amber with time outs and takes away privileges. (Exhibit G, at p 8-9)
5.        Bethany Christian Services noted that the girls are "very close to their current foster
          mother and her parents." The Foster Mother "loves both girls" and her friends and
          their children are also an emotional support for both the foster mom and the girls.
          (Exhibit G, at p 9)
                                                                10

6.       Before Bethany Christian Services evaluated the Foster Mother as an adoptive
           family, it noted that "It is anticipated that it will be very difficult for both girls to face
          the  reality of moving into an adoptive home. It is believed that the foster mother will
          be extremely helpful in the transition to a new home if she feels that home can meet 
          the girls' mental and emotional needs. Her support will be vital to the success of the
          placement, as the girls place a great deal of trust in her." (Exhibit G, at p 9)
7.       In examining the girls' special physical, emotional and educational needs, Bethany
          Christian Services noted that "Amber and Alyssa have experienced a great deal of
          trauma in their young lives. Thy are doing very well in their current placement [with
          their Foster Mother], which offers consistency, stability, security, and love." (Exhibit
          G, atp 10)
8.       Bethany Christian Services reported that "[g]iven their choice, it is believed that both
          girls would say they want to stay with their foster mother forever. They love her and
          are bonded to her. It will be hard for them to face moving." (Exhibit G, at p 11)
9.       Bethany Christian Services conducted written interviews of 5 references as part of 
     their  review of Foster Mother's application to adopt. These references highly
     recommended Foster Mother as an adoptive parent and detailed the loving and
    secure environment that the Foster Mother had created for these girls. (Exhibits B-1
          through 8-5 attached to Exhibit 0 of the Attorney General's Application in the Court
          of Appeals)
10.     Bethany Christian Services performed an Adoptive Family Assessment of Foster
          Mother. The assessment concluded that "Nicole Coppess appears physically,
          emotionally, and financially stable to pursue adoption." She has proven as the
                                                                  11

          Foster Mother that she can "provide for their physical, mental, and emotional needs. 
          She has provided a secure, stable, nurturing home that provides a validating home
          environment where drugs are not used. She has demonstrated her love for the girls 
          in countless ways." (Exhibit B-7 attached to Exhibit 0 of the Attorney General's
          Application in the Court of Appeals)
11.     The foster care worker, Lacey Gonzalez-Borstler, testified that the children were
          doing well in foster care and the children have indicated that they would like to stay
          with their foster mother. (Exhibit 0, Transcript, 2n/07 at 3-4)

12.      In the trial court's Order After Post Termination Review, the trial court found that
          Alyssa is closely bonded with her foster mother and that Amber is a loving child
          closely bonded to her foster mother. (Exhibit B, 3/5/07 Order at p 2)

B.	Evidence Demonstrating that Adoption by Maternal Grandparents is not in
the Best Interests of the Children

1.       The Michigan Children's Institute Superintendent reviewed the Maternal
          Grandparents request to adopt, but in a notification d__ed January 17, 2007 the MCI
          decided that adoptive placement of the girls in their Maternal Grandparents' home
         would not be in the girls' best interest. (Exhibit M)
2.      Bethany Christian Services noted that after the girls were removed from their
         biological mother's care, they were placed with their Maternal Grandparents.
         However, the "girls were removed from their grandparent's care following the
         grandfather's admitted recent use of marijuana with the girls's mother and the fact
         that they had allowed the mother to take the children to the boyfriend's home,

                                                                       12
           clearly breaking the parent-agency agreement" (Exhibit G, at p 1)
3.        In a psychological intake of the biological mother, she stated that she thought that

          her father might have sexually abused the girls when the girls had been left in their
           grandfather's care. The girls' mother also stated in court in November 2005 that she
           and her father used to roll joints together and smoked them starting when the
           biological mother was 14 years old. (Exhibit G, at p 2,4-5)

4.       Bethany Christian Services commented that neither girl has a current relationship

           with any of their relatives. Although the Maternal Grandparents had indicated a

          desire to adopt the girls, they have not seen the girls since the girls were removed

          from the Maternal Grandparents home in July 2005. (Exhibit G, at p 10) When

          Alyssa was asked if she remembered her Maternal Grandparents, she "dropped her

          head and hesitantly related a story of walking into the house and into their bedroom

          and seeing their bare butts." (Exhibit G, at p 10)
5.       In a County Mental Health assessment of Alyssa dated August 31, 2006, the
          therapist stated that the biological mother was suff_ring from bipolar disorder,
          depression, and borderline personality disorder. Research has shown that
           borderline personality disorder is caused from an "invalidating home environment"
          The County Mental Health therapist noted that "this would be a huge concern if
          Alyssa or sister were placed in an environment that is invalidating because biological
          mother struggled in her parents' home and she continues to struggle as an adult Due
          to the drug history, possible sexual abuse, and invalidating environment Alyssa 
          should not be placed back into her maternal grandparents home." (Exhibit G, at p 11)

                                                                      13
6.        Bethany Christian Services performed a family assessment of the Maternal
           Grandparents and conducted a case conference with them. The Maternal
           Grandparents were not recommended for placement. (Exhibit B-6 attached to
           Exhibit 0 of Attorney General's Application in the Court of Appeals, Adoption
           Progress Report, dated 12/19/06)
7.       The Foster Care Review Board's review ofthe Maternal Grandparents' appeal when
           the girls were removed from their home in July 2005 provides insight into the
           problems that the Board saw with the Maternal Grandparents' home. The Board
           concluded that the "Agency demonstrated that Amber and Alyssa were at risk of
           harm [in their Maternal Grandparents' home]; their needs were not being met under
           [Maternal Grandparents'] care and moving Alyssa and Amber were in their best
           interest." (Exhibit H)
8.        The Adoptive Family Assessment of the Maternal Grandparents noted that the
           grandfather can "be pushed into doing things that he later regrets" like" 'giving in'
           to his daughter and smoking marijuana with her outside while Amber and Alyssa	.
           were inside the home." He knew at that time that drugs played a key role in the
           problems his daughter was having, yet he lacked the strength to resist her pleading.
           (Exhibit I, at p 9) His behavior showed "poor self-control, lack of judgment, and 
           failure to put the girls welfare first" (Exhibit I, at p 16) There was also an

           unsubstantiated report of abused that the grandmother had pushed Amber into a

           wall. (Exhibit \, at p 6)

9.        The Foster Care Review Board made findings, conclusion, and recommendations

           on 03/20/07 regarding the girls' placement. The Board agreed with the Agency's

                                                                       14
          recommendation not to return the children to the Maternal Grandparents. DHS also
          advised that they believed it not be to be in the children's best interest to be
          removed from their Foster Mother's care. (Exhibit E attached to Attorney  General's
          Application in the Court of Appeals, at p 2) The Board concluded that their "current 
          placement was in their best interests and moving the children would have an adverse          
          or traumatic impact on them and on their safety and well being." (Exhibit 
          E attached to Attorney General's Application in the Court of Appeals, at p 4)

Contrary to the evidence in the record that demonstrated that adoption by the Foster Mother would be in the children's best interest, the trial court denied the Foster Mother an
opportunity to be heard and granted the Maternal Grandparents adoption petition. (Exhibit
N, Transcript, 1/3/07; Exhibit R, Transcript, 4/4/07) The trial court failed to consider,
evaluate, and determine what was in the children's best interest; its decision must be
reversed.

II.       The Trial Court committed many significant procedural errors when it disregarded the
          statutory requirements for post termination proceedings that caused it to render a
          factually unsupported order changing the children's custody, without providing the
          children's Foster Mother or the Michigan Children's Institute any notice or opportunity
          to be heard

          The Adoption Code outlines the proper procedures for placement of children in
cases such as this, where parental rights are terminated. As part of the procedural
scheme, the Michigan Children's Institute ("MCI") has guardianship and statutory authority
to consent to petitions to adopt children under its care. MCL 400.203. In this instance, the

                                                                15

trial court completely ignored the MCI authority when it entered its January 3, 2007 order granting the Maternal Grandparents' petition to adopt. At that point, Bethany Christian
Services had recommended that the children should not be placed with the Maternal
Grandparents, but the MCI Superintendent had not made a final determination.
          A.     The January 3, 2007 Order Was Premature and Unsupported

The January 3, 2007 hearing that ended in an order granting the grandparent's petition to adopt was held prematurely because the MCI Superintendent had not  officially denied consent to adopt at that time. Additionally, not all interested parties received notice of the premature hearing. In fact, only the Maternal Grandparents and their counsel were present. (Exhibit N, Transcript Hearing, 1/3/07 at p 1) As a  result, the Trial Court based
its decision to grant the adoption petition on the representations of the Maternal
Grandparents' counsel. During the short proceeding, the Trial Court was led to believe that
the only reason for the anticipated denial of consent. by the Superintendent was the
concern about the maternal grandfather's marijuana use. (Exhibit N, Transcript Hearing,
1/3/07 at 3)
           However, the MCI's consent to adopt was also withh-eld because of the Maternal
Grandparents' repeated violations of the no-contact order. (Exhibit G, Adoption
Assessment at p 5) Pursuant to the order, the children were not to have any contact
whatsoever with their biological mother. Nonetheless, the Maternal Grandparents
facilitated unsupervised visits with the girls' biological mother and the mother's boyfriend. In addition, Bethany Christian Services noted that the children's biological mother feared
that the children had been sexually abused by their maternal grandfather. (Exhibit G,
Adoption Assessment, at p 8) That assessment report also referred to the Maternal

                                                                16

Grandparents' home as an "invalidating environment" (Exhibit G, Adoption Assessment,
atp11)  
          The biological mother's mental conditions and criminal involvement with drugs
caused her parental rights to be terminated. On an attempted reunification visit with the
children, she attempted suicide in front of the girls (then ages 3 and 5). (Order, 5/3/06) The gravity of exposing the children to their biological mother is immense. Both children
already display behavioral and emotional problems which are likely to worsen if they lack a stable home life. (Exhibit G, Adoption Assessment, at p 5) The Maternal Grandparents'
willingness to "give in" to their daughter is evidence that they will expose the children to her
in the future. 
          Although this is a serious risk with the possibility of grave consequences for the

children, the Trial Court did not consider it before granting the Maternal Grandparents'

adoption petition. Actually, the Trial Court specifically referred to the grandfather's drug

use as the only reason for denial of consent, to which counsel for the Maternal

Grandparents agreed. (Exhibit N, Transcript Hearing, 1/3/07at p 3)
	
          Moreover, without all the interested parties present at the hearing, the Trial Court
was led to believe that nobody else was interested in adopting the children and that the placement process was virtually stagnant (Exhibit N, at p 4) The Foster Mother expressed
an interest in adopting the two girls in November 2006 and had begun the adoption process by the time of the January 2007 hearing. (Exhibit K at p 5) However, the Trial
Court was led to believe that the Foster Mother did not wish to adopt simply because she had not filed her petition at that time. (Exhibit N, Transcript Hearing 1/3/07, at p 4)
Contrary to what counsel for the Maternal Grandparents advised the Trial Court at that
                                                   
                                                                      17

hearing, significant progress had been made towards the Foster Mother's adoption ofthese

two girls. (Exhibit K, at p 5)

       B.       The Trial Court Erred in Terminating MCI Guardianship over the
                 Children

       The Trial Court made an inexcusable error when it terminated the MCI

Superintendent's authority over the children for lack of progress. MCL 400.201. First and

foremost, as counsel for the Department of Health and Human Services explained in its

Application, there is no statutory authority permitting the Trial Court to dismiss MCI's
authority in termination review proceeding. Instead, the Trial Court was attempting to finalize its erroneous conclusion from the January 3,2007 hearing by using MCL 712A.19c.
Secondly, MCR 3.978(C) provides that a court can enter such orders as it considers
necessary in the best interest of the child, but this language does not provide the Trial Court with a license to freely make custody dispositions where the MCI has statutory
authority and has already denied consent to adopt to an interested party. Petition of Wehr,
88 Mich App 187; 277 NW2d 179 (1979).
Further, even if the Trial Court's action was procedurally permissible, its basis for
relieving MCI of guardianship was inaccurate. (Order, 2nl07) The Trial Court dismissed MCI for lack of progress toward permanency. However, the Adoption Assessment
prepared by Bethany Christian Services in October of 2006 explained that other placement was being explored. (Exhibit G, Adoption Assessment, at p 11) Additionally, the Foster
Mother expressed interest in adopting the children as early as November 2006. (Exhibit K, Motion for Reconsideration, at p 5) That interest was confirmed in writing on December

                                                                18

19, 2006 in an Adoption Progress Report. (Exhibit K, at p 6) Therefore, the Trial Court's
decision was clearly erroneous and should be reversed.
If this Court permits actions that are in complete derogation of statutory purpose,
the goals of the Adoption Code will be hampered, and the interests of the children will not
be preserved. For example, if a court is able to disengage the guardianship rights of the
MCI to escape the procedural requirement of a proper section 45 hearing in this case; it
is likely that the same court will continue to circumvent statutory purpose and the rights of interested parties in the future by using this tactic.
 
          C.     The Court Erred When it Denied the Foster Mother's Motion for a Section
                    45 Hearing

           Unlike the Maternal Grandparents, the Foster Mother was denied a section 45
hearing when the Trial Court withheld its consent for her to adopt the children. At a hearing
held in response to the Trial Court's decision to change custody of the children, Mr.
Sherlund. trial counsel for the Foster Mother was not permitted to speak. (Exhibit R, at 810) When he tried to object to the lack of notice sent prior t_._lhe post-termination hearing
held February 7,2007, the Trial Court told him that he would not be heard. (Exhibit R, at 8-10) Mr. Sherlund proceeded to make an oral motion for consent to adopt on behalf of
the Foster Mother which was denied on the spot. (Exhibit R, at 9) Following the denial of
that motion, counsel made a motion for a section 45 hearing for review of the denial of
consent, which was also denied. (Exhibit R, at 9-10)
	Pursuant to MCL 710.45, the Trial Court did not have authority to deny the Foster
Mother's motion for a statutory hearing. By denying the Foster Mother review under the

                                                                        19

arbitrary and capricious standard listed in section 45, the Trial Court was virtually creating its own rule, resulting in an essentially unreviewable decision to deny consent. Neither the
Foster Mother, nor her counsel, had an opportunity to present clear and convincing
evidence showing that the denial of consent was arbitrary and capricious.

III.      The Trial Court committed reversible error by granting the Maternal  
          Grandparents' adoption petition without any evidence that MCI's denial 
          of  consent to adopt was arbitrary or capricious

         The Maternal Grandparents filed their motion for a section 45 hearing before the

Superintendent made his decision denying consent. The same judge who had previously

taken the children out ofthe Maternal Grandparents' home in 2005 due to concerns of drug

use and violation of a no-contact order, began that section 45 hearing and approved the

Maternal Grandparent's adoption petitions without providing notice to the interested parties.

(Exhibit N, Transcript 1/3/07)

The procedure for appealing a denial of consent by t!,e MCI is clearly outlined in MCL 710.45. This section permits a party who is denied consent to adopt the opportunity
for a hearing. In the course ofthe hearing, the movant must show by clear and convincing evidence that the Superintendent's decision to deny consent was arbitrary and capricious.
In the case at bar, the record indicates no such showing by the Maternal Grandparents. In fact, "clear and convincing" has been defined in this context to mean evidence that:
          [P]roduces in the mind of the trier of fact a firm belief or conviction as to the
          truth of the allegations ought to be established, evidence so clear, direct and 
          weighty and convincing as to enable the fact-finder to come to a clear
          conviction, without hesitancy, of the truth of the precise facts in issue.

                                                                     20

In re Martin, 450 Mich 204,227; 538 NW2d 399 (1995) (quoting In re Jobes, 529 A2d 434

(NJ 198)).

          On the other hand, the Superintendent's position was backed by a DHS review and
a review by Bethany Christian Services. Both of these qualified agencies conducted
extensive investigations each culminating with a recommendation that the grandparent's
should not have-custody of the children. (Exhibits G and I) Such overwhelming support shows that the Superintendent's recommendation could not have been either arbitrary or
capricious.
Moreover, the Trial Court's abrupt, spontaneous, and feebly supported order granting the Maternal Grandparents' adoption petition before all of the statutory
requirements were met was clearly erroneous. (Exhibit N, Transcript Hearing, 1/3/07 at 8)
A Trial Court may properly consider relatives when making determinations on care and
custody of a child, but the simple fact that a petitioning party is a relative is not dispositive.
In re Futch, 144 Mich App 163,170 (1984). Atthe January 3,2007 hearing, the Trial Court
expressed his preference for sending the children to live with family and not with
"strangers." (Exhibit N, 1/3/2007 Hearing at 6) The Trial Court ignored the fact that the
child had lived with the foster mother for two years and apparently did not appreciate that
she had, in essence, become the girls' only family.
Further, at the hearing, the only mention of "arbitrary and capricious" was in the very
last sentence where the Trial Court made its finding that the denial of consent (although
it had not occurred) was arbitrary and capricious without citing any particular reason.
(Exhibit N, 1/3/2207 Hearing, at p 8) The decision of the child's representative must be
upheld unless clear and convincing evidence exists to show that the representative acted
                                                                      
                                                                      21

arbitrarily and capriciously. The Trial Court may not substitute its own judgment for that

of the representative. If good reasons existed to both grant and withhold consent, the

representative cannot be said to have acted arbitrarily and capriciously. In re Cotton, 208

Mich App 180, 185; 526 NW2d 601 (1994). Cotton illustrates that even if the Trial Court

was legally permitted to review what was only an anticipated denial of consent to the

Maternal Grandparents, it was not possible for it to conclude correctly that the denial was

arbitrarily made.

REQUEST FOR RELIEF

Appellee requests this Court deny Appellant's Application for Leave to Appeal.

                                                                      Respectfully Submitted:
	
August 14, 2007                                           ____________________
                                                                           Liisa R. Speaker_65728}
                                                                      Speaker Law Firm, PLLC 
                                                                      230 N. Sycamore St, Suite D
                                                                      Lansing, MI 48933
                                                                             (517) 482-8933

                                                               22