Opinion
No. 345959 No. 346102
10-17-2019
In re RC, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC Nos. 17-000465-AM 17-000510-AO Before: GADOLA, P.J., and BOONSTRA and SWARTZLE, JJ. PER CURIAM.
In these consolidated appeals, appellants appeal the trial court's order removing the minor child, RC, from their care and placing her with appellee for adoption. We affirm.
Appellants appeal by leave granted in Docket No. 345959, In re RC Minor, unpublished order of the Court of Appeals, entered November 27, 2018 (Docket No. 345959), and appeal as of right in Docket No. 346102.
I. FACTS
These appeals arise out of the same adoption matter that was at issue in In re RC Minor, unpublished per curiam opinion of the Court of Appeals, issued January 3, 2019 (Docket No. 343736) (In re RC Minor I). Appellee is the paternal aunt of the minor child. Appellants are prospective adoptive parents with whom the child was placed before the trial court issued the order now appealed.
We will refer to appellants individually by their first names only, Chelse and Christopher.
When the child in this case was five months old, she was removed from the care of her biological parents in the wake of allegations of physical abuse. She was placed in the care of appellee, who became a licensed foster care provider. Eventually, the biological parents agreed to voluntarily relinquish their parental rights to the child, who remained in appellee's care while being committed to the Michigan Children's Institute (MCI) for adoption planning. Appellee thereafter sought consent to adopt the child. Fostering Futures, the adoption agency then responsible for the child, initially recommended to MCI that appellee be permitted to adopt RC. However, on March 17, 2017, appellee left the child in the care of family members, including the biological father. The child, then two years old, was discovered by a neighbor outside the relative's home with another toddler, without supervision and without adequate clothing for the cold weather. As a result of the incident, Fostering Futures withdrew their recommendation in support of appellee adopting the child while Child Protective Services and the foster care licensing agency investigated the incident.
The superintendent of the MCI acts as the guardian of any child committed to the state by the family court after termination of the parental rights of the child's parents. MCL 400.203; In re Keast, 278 Mich App 415, 423; 750 NW2d 643 (2008). Generally, before the trial court can approve the adoption of a child who is a state ward, the MCI superintendent must consent to the adoption. MCL 710.43(1)(b); Keast, 278 Mich App at 423.
After investigation, the child was removed from appellee's care on June 9, 2017, and placed with appellants, licensed foster care providers who previously had adopted a child and who were hoping to adopt a second child. Appellants agreed to be foster parents for RC with the objective of adopting her. Appellants also agreed with the agency that appellee could have limited supervised visits with RC. Appellants had an "open adoption" with their adopted child, and the biological parents of that child periodically had supervised visits; appellants agreed that they were amenable to a similar situation with RC and appellee.
On September 7, 2017, the superintendent of the MCI denied appellee consent to adopt the child under § 45 of the Michigan Adoption Code, MCL 710.45. On October 18, 2017, the MCI superintendent granted appellants consent to adopt RC, and on October 23, 2017, appellants filed an adoption petition seeking to adopt her. On November 15, 2017, the trial court entered a formal placement order approving the placement of RC with appellants for adoption.
On November 28, 2017, in a separate action, appellee filed a competing petition to adopt RC, together with a motion challenging the MCI superintendent's denial of consent to adopt under § 45. The trial court held a hearing on the motion challenging the denial of consent under § 45, and thereafter issued a decision dated April 19, 2018, holding that the MCI's decision to deny appellee consent to adopt RC had been arbitrary and capricious. MCI appealed the trial court's decision to this Court.
Appellee earlier had attempted to file a petition for adoption, but the trial court determined that the petition was premature.
While MCI's appeal to this Court of the § 45 decision was pending, the trial court held a lengthy hearing on the competing adoption petitions over the course of several days. At the conclusion of the hearing, the trial court issued an opinion and order dated October 5, 2018. Applying the best-interest factors set forth in the Adoption Code, MCL 710.22(g), the trial court held that it was in RC's best interests to be adopted by appellee, and ordered that the child be removed from appellants' care and placed with appellee.
Appellants filed an emergency application for leave to appeal to this Court, seeking an order preventing RC's removal from their care pending this Court's decision in the MCI's § 45 appeal. This Court entered an order staying the removal of the child from appellants' care pending further order of this Court. On January 3, 2019, this Court issued its decision in the § 45 appeal (In re RC Minor I), affirming the decision of the trial court that the MCI superintendent's decision had been arbitrary and capricious. This Court thereafter granted appellee's motion to lift the stay of transfer. Appellants now appeal to this Court, challenging the trial court's decision on the competing adoption petitions.
In re RC Minor, unpublished order of the Court of Appeals, entered October 24, 2018 (Docket No. 345959).
In re RC Minor, unpublished order of the Court of Appeals, entered February 25, 2019 (Docket Nos. 345959, 346102).
II. DISCUSSION
In this case, two competing petitions were filed before the trial court seeking adoption of RC. Appellants' petition was filed with consent by the MCI superintendent. Appellee's petition was filed without the consent of the superintendent, but together with a motion challenging the denial of the superintendent's consent under MCL 710.45(2). After determining in a separate action that the MCI superintendent's denial of consent had been arbitrary and capricious, MCL 710.45(8), the trial court determined in this case that the best interests of the child was to be placed with appellee for adoption. Appellants contend that the trial court erred by finding that it was in RC's best interests to be adopted by appellee, and also erred by vacating the child's placement with them and transferring custody of RC to appellee.
A. STANDARD OF REVIEW
We review a trial court's decision in an adoption case for an abuse of discretion, and review any underlying legal issues de novo. In re TMK, 242 Mich App 302, 304; 617 NW2d 925 (2000). The proper application of the Michigan Adoption Code, MCL 710.21, et seq., presents a question of law that we review de novo, In re RFF, 242 Mich App 188, 195; 617 NW2d 745 (2000), meaning that we review the question with no required deference to the trial court. In re Williams, 501 Mich 289, 330; 915 NW2d 328 (2018). We review the trial court's factual findings regarding the child's best interests for clear error. In re COH, 495 Mich 184, 203; 848 NW2d 107 (2014). A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm belief that a mistake has been made. Id. at 203-204. Under the clear-error standard, we will not substitute our judgment for that of the trial court on factual determinations unless the facts clearly preponderate in the opposite direction. Id. at 204.
B. APPLICABLE LAW
Appellants first contend that the trial court erred by applying the best-interest factors stated in the Adoption Code, MCL 710.22(g), without also considering the best-interest factors set forth in the Child Custody Act at MCL 722.23. We disagree that the trial court erred by exclusively considering the provisions of the Adoption Code.
Appellants assert that at the beginning of the proceedings before the trial court, the parties stipulated to the consideration of the best-interest factors of both the Adoption Code and the Child Custody Act. We observe, as did the trial court, that parties' stipulations of law are not binding upon a court. Wolf v Mahar, 308 Mich App 120, 127; 862 NW2d 668 (2014). Specifically, the parties' stipulation to the applicability of a certain statute does not bind the court. See In re Estate of Finlay, 430 Mich 590, 592; 424 NW2d 272 (1988). Therefore, any agreement between the parties in this case regarding the application of the best-interest factors of the Child Custody Act did not bind the trial court.
Appellants argue, however, that even if the trial court were not bound by the parties' stipulation, it nonetheless should have considered the best-interest factors of the Child Custody Act because consideration of those factors was considered appropriate in In re COH, 495 Mich 184; 848 NW2d 107 (2014). We disagree. Adoption cases are governed by the Adoption Code. See MCL 710.21, et seq. Among the purposes of the Adoption Code is "[t]o provide procedures and services that will safeguard and promote the best interests of each adoptee," and "protect the rights of all parties concerned." MCL 710.21a(b). Under the Adoption Code, "the best interests of the adoptee are the overriding concern." In re ASF, 311 Mich App 420, 435; 876 NW2d 253 (2015). The Adoption Code identifies the factors that must be considered "[u]pon the filing of an adoption petition" and in the subsequent investigation of the adoption, which includes the best interests of the adoptee. MCL 710.46(1)(a). The best interests of the adoptee are defined by the Adoption Code as follows, in relevant part:
(g) "Best interests of the adoptee" or "best interests of the child" means the sum total of the following factors to be considered, evaluated, and determined by the court to be applied to give the adoptee permanence at the earliest possible date:
(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 . . . and of the adoptee.
(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).]
In some circumstances, it may be appropriate for a trial court to consider factors not specified in MCL 710.22(g) when determining the best interests of the adoptee. Subsection (g)(xi) anticipates this possibility and permits the trial court to consider any other factor deemed by the trial court to be relevant to a particular proceeding. In re COH, 495 Mich at 203 n 10. Appellants rely upon In re COH, a case involving guardianship, in which our Supreme Court found it appropriate that the trial court in that case, when comparing competing homes for the potential placement of the children, considered the best-interest factors of the Child Custody Act, MCL 722.23. This case, however, involves the determination of competing petitions filed under the Adoption Code, which specifies the factors to be considered by the trial court to determine the best interests of the adoptee. See MCL 710.22(g) and MCL 710.46(1). Further, because the Adoption Code is in derogation of common law, it must be strictly construed. In re Dawson, 232 Mich App 690, 696; 591 NW2d 433 (1998).
The Child Custody Act provides, in relevant part:
As used in this act, "best interests of the child" means the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance, and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. . . .
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular custody dispute. [MCL 722.23.]
Moreover, we observe that the main objective of appellants' argument in this regard is not the application of the best-interest factors of the Child Custody Act, which are very similar to the best interest of the adoptee factors of the Adoption Code. Rather, appellants argue that if this case were analyzed under the Child Custody Act, it would be determined that RC had an established custodial environment with them, and appellee then would be required to meet the higher standard of proof of demonstrating by clear and convincing evidence that the best interests of the child dictated placement with appellee. See MCL 722.27(1)(c). Although appellants accurately note the similarities between this case and a custody case in light of the fact that there are two competing homes vying for custody of the child, we nonetheless disagree that the Child Custody Act is applicable. The Child Custody Act empowers a trial court to initially award custody and parenting time arising out of a child custody dispute, and imposes a gatekeeping function on the trial court to ensure the stability of the child that includes assessing the best interests of the child, as defined by that act, before modifying an existing custody order. Lieberman v Orr, 319 Mich App 68, 78; 900 NW2d 130 (2017). Despite some similarities, this case does not involve a child custody dispute; it involves competing petitions under the Adoption Code, and the trial court did not err by proceeding under the Adoption Code.
C. QUANTUM OF PROOF
Appellants also suggest that the trial court failed correctly to identify the quantum of proof necessary to prevail on a petition for adoption under the Adoption Code. We agree.
The trial court determined that because the Adoption Code does not provide a standard of proof and directs only that the court determine the "best interest of the adoptee," no specific standard of proof applied and the decision to grant or deny a petition for adoption was simply "within the discretion of the trial court." Although the Adoption Code is silent as to the quantum of proof required to prevail on an adoption petition, it does not follow that no standard of proof applies. When a statute fails to state the applicable quantum, or standard, of proof required, the default standard applicable in a civil case is preponderance of the evidence. In re Portus, 325 Mich App 374, 393; 926 NW2d 33 (2018). Thus, instead of holding that no standard of proof applied here (i.e., that the trial court had unfettered discretion to rule on the best-interest issue independent of evidentiary support), the trial court should have resorted to the default quantum of proof, which is a preponderance of the evidence. By failing to apply the proper quantum of proof, the trial court erred. See Griffin v Griffin, 323 Mich App 110, 123; 916 NW2d 292 (2018). Although in some circumstances this error would warrant remand, see e.g., In re Portus, 325 Mich App at 396-397, because in this case we are nonetheless able to ascertain from the record the basis for the trial court's findings, we conclude that remand is not warranted in this case.
D. FACTUAL FINDINGS
Appellants next contend that the trial court clearly erred when determining the best-interests of RC, applying the factors under MCL 710.22(g). As noted, the Adoption Code identifies the best-interest factors that must be considered "[u]pon the filing of an adoption petition" and in the subsequent investigation of the adoption. MCL 710.46(1)(a). The best interests of the adoptee are determined by the trial court's consideration, evaluation, and determination of the factors set forth in MCL 710.22(g), and the application of those factors "to give the adoptee permanence at the earliest possible date." MCL 710.22(g).
In analyzing RC's best interests under the Adoption Code, the trial court found that appellants prevailed on factors (g)(i), (iv), and (v), that appellee prevailed on factors (g)(ii), (x), and also apparently (xi), and that the parties were tied on factors (g)(iii), (vi), (vii), (viii), and (ix). Appellants specifically challenge the trial court's findings under MCL 710.22(g)(ii), (iii), (iv), (vi), (vii), (x), and (xi). We review the trial court's factual findings regarding the child's best interests for clear error. In re COH, 495 Mich at 203.
Under subsection (g)(ii), the trial court is directed to consider the capacity and disposition of the parties 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." The trial court found the parties equal in all aspects of this factor except religion, noting that even though Christopher's father is a deacon and a missionary, appellants do not attend church regularly, whereas appellee does attend church regularly. The trial court therefore found this factor to favor appellee.
A review of the record indicates that Christopher testified that as a child he attended a Baptist church, that his father became a church deacon, and that his father was now the president of a large church in Florida, and engages in missionary work. He further testified that he and Chelse both consider themselves Christians and attend church occasionally on holidays, but are not currently members of a church and have not attended church with RC. Appellee testified that when RC was in her care, she attended a non-denominational Christian church with the child, but did not state how often they attended. She also testified that she had not attended church in the six months before the hearing. Appellee's live-together partner testified that after they began dating in October 2016, he and appellee attended his church and talked about attending in the future. He did not describe their attendance as regular, however; rather, he testified that "[w]e always said that we would attend church. We would like to when we get the chance." He also testified that he and appellee had prospectively enrolled RC in a Catholic preschool program.
Thus, the evidence indicates that the parties sometimes attend Christian churches, but that none of them is currently attending regularly. This factor, however, does not measure how active the prospective parent is in his or her own religion; rather the factor inquires into the capacity and disposition of the prospective parent to "create a milieu that fosters the religion . . . of the adoptee." At the time of the trial court's decision, RC was four years old; she had lived the first five months with her biological parents, the next thirty months with appellee, and the 18 months immediately preceding the decision with appellants. There is no indication in the record that the child had a specific religion and no indication that either party was more or less able to foster religious beliefs generally in the child. A review of the record thus indicates that this factor does not clearly favor either party, and we conclude that the trial court erred in finding that this factor favored appellee.
Under subsection (g)(iii), the trial court is directed to consider the capacity and disposition of the parties to provide the adoptee with food, clothing, education, permanence, medical care, and other material needs. The trial court found the parties to be equal on this factor. The record, however, established that appellants are financially secure while appellee, until shortly before the trial court's decision, depended almost entirely upon financial assistance from relatives and live-together partners for her housing and other basic needs, as well as for child care for RC. Both parties submitted extensive financial records and tax information to the trial court. The evidence, on the whole, suggests that appellants have long-term income stability and stable housing, and that they are more responsible and sophisticated with their finances than appellee. Indeed, when asked what she would do if she ran out of money due to unanticipated expenses after adopting RC, appellee testified that she would need to "get some help" from her boyfriend or her family. In addition, appellants hold medical and dental insurance, and clearly have a superior ability to procure medical care for RC. Because this factor clearly preponderates in appellants' favor, we conclude that the trial court erred in finding the parties equal on this factor.
Christopher testified that appellants earned $47,000 in 2017 from their business, they have health care insurance, and they do not need to pay for daycare because Chelse has chosen to stay home to care for the children. By contrast, the record indicates that appellee had virtually no income after the relationship with her live-together partner ended in August 2016, and became almost entirely dependent upon her grandfather and other family for financial support. In May 2017, appellee began new employment and testified that she now makes $31,000 annually, but also has $16,000 in student loan debt, does not have health care insurance, and would need to obtain child care if she were unable to rearrange her work schedule to accommodate RC's preschool schedule. In September 2017, appellee and her new live-together partner joined households, and she testified that they share expenses essentially evenly.
Under subsection (g)(iv), the trial court is directed to consider "the length of time the adoptee has lived in a stable, satisfactory environment, and the desirability of maintaining continuity." The trial court found this factor in appellants' favor, finding that appellants had been married for eight years and appeared to be more "home oriented" than appellee and her live-together partner. The trial court noted, however, that there was more to consider regarding this factor, and that it would do so when considering the "other" relevant evidence. Appellants argue that the trial court clearly erred by failing to find that they had "fully prevailed" on this factor. However, the trial court did, in fact, hold that subsection (g)(iv) favored appellants, and although the trial court's analysis under this subsection also cross-referenced the court's subsequent discussion of the catch-all factor, subsection (g)(xi), there is no indication that the trial court conflated the two factors. We therefore find no error.
Under subsection (g)(vi), the trial court was directed to consider the moral fitness of the parties. The trial court found the parties to be equal on this factor. Appellants argue on appeal that appellee's lack of credibility was apparent and the trial court erred by failing to weigh this factor in favor of appellants. We find the trial court's findings concerning this factor to be apt. The trial court noted appellee's lack of credibility on certain issues, but also found appellants to lack credibility in certain respects as well. The trial court nonetheless found that the parties "are basically decent individuals who have found themselves as litigants in this adoption contest as a result of the misrepresentation and poor decisions of the Fostering Futures staff and the MCI Superintendent. . . ." We agree, and find that the trial court did not clearly err in finding the parties equal in moral fitness.
Under subsection (g)(vii), the trial court was directed to consider the mental and physical health of the parties and RC. The trial court found the parties to be equal on this factor. Appellants argue that the trial court clearly erred in this finding in light of appellee's testimony that she had smoked in the recent past and had required therapy to cope with the stress of RC's removal. There was also testimony, however, that appellants also had experienced stress during the proceedings and coped with the aid of meditation, yoga, support groups, and therapy. The record supports the trial court's finding that none of parties suffers from any serious physical or mental health issue. We therefore conclude that that the trial court did not err in finding the parties equal on this factor.
Under subsection (g)(x), the trial court was directed to consider the ability and willingness of the parties to adopt the adoptee's siblings. Appellants argue that the trial court erred in finding this factor to slightly favor appellee. We agree. During the trial court proceedings, there was testimony that RC's biological mother, whose parental rights to RC had been terminated, had since given birth to another child. The trial court weighed this factor in appellee's favor because appellee testified that she would be willing to foster a relationship between RC and the new baby; by contrast, appellants apparently were not aware of the birth of RC's half-sister until it was disclosed at the hearing. However, this factor relates to the willingness of a party to adopt the siblings of the adoptee, not a parties' willingness to foster relationships with the adoptee's biological family. Here, the record indicates that the child in question had already been placed for adoption and that neither party was pursuing adoption of that child. The parties were therefore equal on this factor, and the trial court erred by weighing it in favor of appellee.
The father of the baby is not alleged to be RC's biological father, appellee's brother, who is since deceased.
Under subsection (g)(xi), the trial court was directed to consider any other factor the trial court deemed relevant to the proceedings. In considering this factor, the trial court discussed several topics, weighing against appellants that they had unofficially chosen a new name for RC even though adoption was uncertain and had shared this information with the child, and that the child was reported to be more "clingy" to appellants than she had been previously to appellee, which the trial court concluded meant that appellants were not permitting the child to socialize with others. On the other hand, the trial court weighed against appellee that she had given RC birthday gifts and then taken them back at the end of the visit, had returned RC from a visit smelling like cigarette smoke, and, when RC lived with appellee, was often absent from the home while attending school, working, and commuting, leaving RC's care to appellee's then live-together partner or with several different daycare providers. The trial court weighed in appellee's favor that she is biologically related to the child.
However, most notable in the trial court's analysis of this factor is the trial court's conclusion that appellants had failed to prioritize RC's needs because they had failed to facilitate a relationship between RC and appellee. Specifically, the trial court weighed against appellants that (1) they wrote a children's book called "The Mermaid Book" that attempted to explain to RC how she had come to live with them, but arguably cast appellee in an unfavorable light, and (2) they supported only a limited schedule of visitation between appellee and RC, which the trial court found showed "no real effort to encourage a strong relationship between [appellee] and RC." Appellants contend that the trial court erred by holding the "Mermaid Book" against them and by holding against them their reluctance to facilitate a relationship between appellee and RC.
When RC was placed with appellants on June 9, 2017, appellants were informed by Fostering Futures that RC was available for adoption. Appellants were licensed foster care providers who previously had adopted a child and who were hoping to adopt a second child. Although appellants were aware of appellee's desire to adopt RC, they were informed by the agency that RC had been removed from appellee's care "for cause" and that appellee was unlikely to receive consent to adopt the child. Appellants agreed to be foster parents for RC with the objective of adopting her. Appellants were thus candid from the beginning that their intent was to adopt RC, not simply to serve as foster parents while appellee attempted to regain custody, and apparently were encouraged by the agency to believe that their adoption of RC was likely.
The trial court found that appellants' objective to adopt RC was selfish and contrary to RC's best interests. In its opinion, the trial court stated that "[appellants'] stated goal from day one was to adopt RC, and this is an extreme example of [appellants'] putting their interest ahead of the interests of RC." The trial court further stated that on June 9, 2017, when RC was placed with appellants, "[they] also knew that [appellee] was litigating the denial of her consent to adopt RC." Although technically this is not accurate because the MCI superintendent did not deny appellee consent to adopt RC until September 7, 2017, and not until November 28, 2017, did appellee challenge the MCI superintendent's denial of consent to adopt to the trial court, we understand the trial court's point that when RC was placed in their home, appellants knew that appellee wanted to adopt the child and likely would file a competing adoption petition. Knowing that, it would have been in RC's best interests for them to consider that their petition might not be successful and to take a different approach to the relationship between RC and appellee. However, we disagree that appellants' goal of adopting RC was "an extreme example of [appellants] putting their interest ahead of the interests of RC." Both parties, from day one, wanted to adopt RC; neither party should be penalized for having adoption as their goal.
We also note that under this factor, the trial court considered appellee's biological relationship to RC as favorable to appellee, and appellants challenge this finding as erroneous. However, our Supreme Court's decision in In re COH, 495 Mich at 203 n 10, relevant to guardianship, suggests that familial ties may be considered as a factor for purposes of the best-interest inquiry under MCL 710.22(g)(xi) ("if a court concludes that familial ties are relevant to the guardianship decision under MCL 712A.19c(2), the familial relationship is only a factor that must be balanced among all the other relevant factors"). We therefore conclude that the trial court did not err in considering that fact in favor of appellee as an additional relevant fact under subsection (g)(xi).
Our review of the record thus indicates that the best-interest factors favored appellants on factors (g)(i), (iii), (iv), and (v). Appellee prevailed on factor (g)(xi) to the extent that she is biologically related to the child, but appellants should not have been penalized under this factor by the trial court to the extent that it negated the other factors. The parties were tied on factors (g)(ii), (vi), (vii), (viii), (ix), and (x). The trial court therefore erred in finding that the best-interest factors favored adoption of RC by appellee. However, we nonetheless conclude that the trial court did not abuse its discretion in determining that the child should be placed with appellee for adoption. Although appellants prevailed on many of the best-interest factors, the record indicates that both homes are suitable placements for the child, such that we cannot conclude that the trial court's decision to place the child with appellee was an abuse of discretion. See In re TMK, 242 Mich App at 304.
Moreover, public policy favors the "certainty and permanence" of adoption orders. In re MacLoughlin, 82 Mich App 301, 310; 266 NW2d 800 (1978). This policy of finality in decisions relating to adoption means that courts are, and prudentially should be, reluctant to reverse a trial court's adoption order unless the trial court clearly abused its discretion. In re Koroly, 145 Mich App 79, 87; 377 NW2d 346 (1985). Although we conclude that the trial court in this case erred in various respects, we conclude that the errors do not rise to the level of a clear abuse of discretion and reversal therefore is not required, nor is it the appropriate remedy in this case. RC lived the first five months with her biological parents, then lived the next thirty months with appellee. She was removed from appellee's care when she was almost three years old. She then lived the next 18 months with appellants, and was four years old when the trial court ordered that she be placed with appellee. While the prior appeal was pending before this Court, RC continued to live with appellants for almost five more months until, on February 25, 2019, this Court granted appellee's motion to lift the stay of transfer, facilitating the transfer of the child to appellee. Since that time, she has resided with appellee. This child, now five years old, deserves stability and a cessation of the struggle for her custody. Under the Adoption Code "the best interests of the adoptee are the overriding concern," not those of the other individuals involved. In re ASF, 311 Mich App at 435. We therefore decline at this juncture to again direct a change in RC's custody.
In re RC Minor, unpublished order of the Court of Appeals, entered February 25, 2019 (Docket Nos. 345959, 346102). --------
E. JUDICIAL DISQUALIFICATION
Appellants also contend that the trial court abused its discretion by denying their motion to disqualify the trial judge for judicial bias under MCR 2.003(C)(1)(a). We disagree.
Due process requires that a case be heard by an unbiased and impartial decision-maker. Kern v Kern-Koskela, 320 Mich App 212, 231; 905 NW2d 453 (2017). Disqualification of a trial judge is therefore warranted when the judge is biased or prejudiced for or against a party or an attorney. MCR 2.003(C)(1)(a); Cain v Mich Dep't of Corrections, 451 Mich 470, 494-496; 548 NW2d 210 (1996). Actual bias exists when a judge exhibits "a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. at 496 (quotation marks and citation omitted). A party asserting the bias of a judge must overcome a heavy presumption of judicial impartiality, id. at 497, and this presumption generally cannot be overcome solely through judicial decisions, even if the judge's decisions were vigorously expressed and later determined to have been erroneous. See In re Contempt of Henry, 282 Mich App 656, 680; 765 NW2d 44 (2009). We review a trial court's factual findings regarding a motion to disqualify for an abuse of discretion. Kern, 320 Mich App at 231.
In this case, appellants argue that the trial court displayed bias in favor of appellee throughout the case, having determined that appellee had been wronged by the decision of the MCI, and appeared to be avenging appellee following the § 45 hearing in which the trial court ruled in her favor. We conclude, however, that the trial court's opinion following the § 45 hearing did not, as a judicial ruling, display such deep-seated favoritism toward appellee or antagonism against appellants as to render fair judgment impossible. Kern, 320 Mich App at 321-322 (judicial rulings alone rarely constitute a valid basis for a motion alleging bias).
Appellants also argue that at the September 24, 2018 hearing, the trial court made comments directed against appellants' counsel that reveal the trial judge's antagonism. We disagree. Appellants point to no specific comment by the trial court judge that exhibits bias or prejudice against their counsel, and our review of the record of that hearing reveals no comment by the trial court more extreme than briefly chastising counsel for being long-winded. Generally, a trial court's remarks to counsel, though critical or hostile, do not establish disqualifying bias, id., and we perceive no such bias in the trial court's comments to counsel during the hearing in question. In light of the strong presumption of judicial impartiality, we cannot conclude that the trial court abused its discretion in denying appellants' motion for disqualification.
F. ATTORNEY FEES
We also reject appellants' contention that the trial court abused its discretion by refusing to award them attorney fees under MCL 600.2591. That statute permits a trial court to award attorney fees and costs to the prevailing party in a civil action if the trial court finds that either the action or the defense of the action was frivolous. Here, the trial court did not find appellee's action to be frivolous and indeed, appellee, and not appellants, prevailed before the trial court. We therefore hold that the trial court did not abuse its discretion by not awarding appellants attorney fees under MCL 600.2591.
Affirmed.
/s/ Michael F. Gadola
/s/ Mark T. Boonstra
/s/ Brock A. Swartzle