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In re BGP

Court of Appeals of Michigan

July 11, 2017

In re BGP, Minor. In re JSP, Minor.

         Oakland Circuit Court Family Division LC Nos. 2015-837535-AD, 2016-838283-AD

          Before: SAAD, P.J., and METER and MURRAY, JJ.

          SAAD, P.J.

         In these consolidated cases, nonparty[1] American Adoptions, Inc., appeals the circuit court's order that disallowed the payment of administrative and marketing fees by the adoptive parents related to the adoption of two minors in Michigan. For the reasons provided below, we reverse in part and remand.

         I. BACKGROUND

         Both cases arise from the adoption of a minor child under the Adoption Code, MCL 710.21 et seq. These cases specifically involve the fees paid by the respective adoptive parents (petitioners) for services ostensibly related to the adoption process. American Adoptions is a not-for-profit adoption agency based in Kansas, petitioners reside outside of Michigan, [2] and the adoptee children were born in Michigan.

         As required by MCL 710.54(7), the adoptive parents in each case submitted a verified accounting and a supplement to their verified accounting, which detailed the payments made purportedly in connection with their adoption of children born in Michigan. In both cases, petitioners identified American Adoptions as the payee of the administrative fee and American Family Media as the payee of the marketing fee. Petitioners attached, in addition to other documents, a letter from American Adoptions that explained its fees.[3] The letters were written by Wade Morris, the Director of Community Resources for American Adoptions, and addressed to petitioners' attorney (same attorney in each case). We infer that because American Family Media-and not American Adoptions-received the marketing fee from petitioners, Morris's letter did not reference any marketing fee. With respect to the administrative fee, Morris stated the following, in pertinent part:

This fee covers other general overhead expenses relating to various administrative functions of American Adoptions or other Adoption Professionals, including but not limited to the many and various administrative functions that American Adoptions or other Adoption Professionals undertake prior to an adoption opportunity. This fee is fully refundable if the adoption opportunity is ultimately unsuccessful.[4]

         Morris explained that American Adoptions's monthly cost for such overhead expenses totaled approximately $267, 000.

         The circuit court approved all of the requested fees and costs, with the exception of the administrative fees and marketing fees. In Docket No. 333700, the circuit court disallowed $7, 250 in administrative fees and $4, 000 in marketing fees. In Docket No. 333813, the circuit court rejected $4, 495 in administrative fees and $10, 000 in marketing fees. The circuit court in both cases did not provide any explanation for its denial of these particular fees.[5]

         II. DUE PROCESS

         American Adoptions argues on appeal that it was denied due process because it was unable to participate in a hearing related to the approval of the fees. We review this unpreserved constitutional issue for plain error affecting substantial rights.[6] Demski v Petlick, 309 Mich.App. 404, 463; 873 N.W.2d 596 (2015).

         The United States and Michigan Constitutions provide that "[n]o person may be deprived of life, liberty, or property without due process of law." Murphy-DuBay v Dep't of Licensing & Regulatory Affairs, 311 Mich.App. 539, 558; 876 N.W.2d 598 (2015), citing U.S. Const, Am V; U.S. Const, Am XIV, § 1; Const 1963, art 1, § 17. Thus, "[d]ue-process protections are only required when a life, liberty, or property interest is at stake." Id. "To have a protected property interest, one must possess more than a unilateral expectation to the claimed interest; the claimant must have a legitimate claim of entitlement." York v Civil Serv Comm, 263 Mich.App. 694, 702-703; 689 N.W.2d 533 (2004) (quotation marks and citation omitted). Here, there is no doubt that American Adoptions had a property interest in the administrative fee because the adoptive parents were contractually bound to pay this fee to it.[7]

         At its core, "[d]ue process requires the opportunity to be heard at a meaningful time and in a meaningful manner." Id. at 702 (quotation marks and citations omitted). Here, American Adoptions cannot show how any plain error affected its substantial rights. First, although American Adoptions may not have been formally invited to participate in the proceedings at the circuit court because it was not a party to the adoption, it nonetheless was able to successfully present its views regarding the administrative fees to the circuit court through the "fee explanation" letters written by Morris. Thus, the court received materials to consider petitioners' request to approve the fees, and among those materials was American Adoptions's letter outlining what the administrative fees covered. Importantly, "[a]n oral hearing is not necessary to provide a meaningful opportunity to be heard." English v Blue Cross Blue Shield of Mich, 263 Mich.App. 449, 460; 688 N.W.2d 523 (2004).[8] Consequently, American Adoptions has failed to prove any plain error by virtue of the fact that no formal hearing was held.

         III. ADMINISTRATIVE FEE

         American Adoptions claims that the circuit court erred when it denied the approval of the administrative fee. We review the circuit court's decision for an abuse of discretion. See In re KMN, 309 Mich.App. 274, 294; 870 N.W.2d 75 (2015). And we review issues of statutory interpretation de novo. Auto-Owners Ins Co v Dep't of Treasury, 313 Mich.App. 56, 68-69; 880 N.W.2d 337 (2015).

         "MCL 710.54 of the Adoption Code governs authorized charges and fees in adoption cases." In re MJG, ___ Mich.App. ___; ___ N.W.2d ___ (2017) (Docket No. 332928), slip op, p 4. The statute provides as follows:

(1) Except for charges and fees approved by the court, a person shall not pay or give, offer to pay or give, or request, receive, or accept any money or other consideration or thing of value, directly or indirectly, in connection with any of the following:
(a) The placing of a child for adoption.
(b) The registration, recording, or communication of the existence of a child available for adoption.
(c) A release.
(d) A ...

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