The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
April 11, 2025
9:17 AM
In re T. V. MCMILLAN, Minor.
No. 372887
Oakland Circuit Court
Family Division
LC No. 2024-887312-NA
Before: GARRETT, P.J., and K. F. KELLY and SWARTZLE, JJ.
PER CURIAM.
The minor child, TVM, witnessed physical abuse that his maternal grandmother
perpetrated on two of his cousins. Petitioner, the Department of Health and Human Services
(DHHS), petitioned for temporary custody of TVM on the basis that respondent, TVM’s mother,
failed to protect TVM’s cousins from the abuse. Respondent appeals by right the trial court’s
initial order of disposition following TVM’s removal from her care. Because the trial court did
not plainly err by failing to hold a removal hearing, the court did not relieve the DHHS of its
obligation to make reasonable efforts to reunify respondent and TVM, and respondent has failed
to establish plain error with respect to the burden of proof and standard of proof applicable to
reasonable efforts, we affirm.
I. FACTUAL BACKGROUND
Respondent, TVM, TVM’s maternal grandmother, and four of TVM’s cousins1 lived
together. Respondent is the legal guardian of TVM’s cousins. After two of TVM’s cousins
appeared at school with injuries, school officials notified law enforcement and Children’s
Protective Services (CPS). Shortly thereafter, the trial court entered an ex parte interim placement
order authorizing the DHHS to take TVM into protective custody pending a preliminary hearing.
The following day, the DHHS filed a petition for temporary custody of TVM. The petition stated
1
Although this appeal is limited to the petition regarding TVM, we will discuss TVM’s cousins to
the extent that they are relevant to the issues on appeal.
-1-
that TVM was either a member of or eligible for membership in the Sisseton-Wahpeton Oyate of
the Lake Traverse Reservation (SWO). The DHHS requested that the trial court authorize the
petition, formally remove TVM from respondent’s care, and place him with the DHHS for care
and planning. The DHHS made clear from the outset of the proceedings that it intended to place
TVM with his nonrespondent father.
The trial court referee held a preliminary hearing on the same day that the DHHS filed the
petition. At the hearing, the parties addressed the petition involving TVM and a petition involving
TVM’s cousins, who are members of the SWO. Because it was believed that TVM might also
have tribal affiliations, the referee adjourned the preliminary hearing to allow the DHHS to send
notices to the concerned tribes. The referee adjourned the hearing four additional times before he
ultimately determined that TVM is not an Indian child for purposes of the Indian Child Welfare
Act (ICWA), 25 USC 1901 et seq. After the referee made that determination, he completed TVM’s
preliminary hearing and recommended that the trial court authorize the petition. The trial court
adopted the referee’s determination that TVM is not an Indian child and authorized the petition.
Thereafter, the court formally released TVM into the care of his nonrespondent father.
Notably, throughout the preliminary proceedings, the parties and the referee were uncertain
regarding TVM’s tribal membership. TVM’s father is a member of the Little Traverse Bay Bands
of Odawa Indians (LTBB), but he advised the referee that TVM is not a member of that tribe
because TVM does not meet the blood quantum to become a member. In addition, respondent
was, at different times, believed to be a member of the SWO or the Lac Courte Oreilles Band of
the Lake Superior Chippewa Indians (LCO). Because TVM’s status as an Indian child was
unclear, the referee repeatedly found that there existed good cause to adjourn the proceeding to
determine that status.
After the trial court authorized the petition, respondent waived her right to a trial regarding
jurisdiction and entered a no-contest plea. The trial court determined that statutory grounds existed
for the court to exercise jurisdiction over TVM. Thereafter, the court entered an initial order of
disposition, and this appeal followed.
II. DISCUSSION
A. FAILURE TO CONDUCT REMOVAL HEARING
Respondent argues that the referee clearly erred by failing to timely conduct a removal
hearing in accordance with MCR 3.965 and MCR 3.967 because the referee had reason to know
that TVM was an Indian child for purposes of the ICWA. She asserts that she was entitled to a
removal hearing within 14 days after TVM was removed from her care in accordance with MCR
3.967(A).
To preserve an issue for appellate review, a party must raise it in the trial court. Glasker-
Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). Because respondent failed
to raise any argument regarding the timeliness of the removal hearing below, she failed to preserve
her argument for our review. We review unpreserved claims of error in child protective
proceedings for plain error. In re Pederson, 331 Mich App 445, 463; 951 NW2d 704 (2020). “To
avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have
-2-
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011) (quotation marks and
citations omitted). “Generally, an error affects substantial rights if it caused prejudice, i.e., it
affected the outcome of the proceedings.” In re Sanborn, 337 Mich App 252, 258; 976 NW2d 44
(2021) (quotation marks and citation omitted).
“In Michigan, procedures to ensure due process to a parent facing removal of his child from
the home or termination of his parental rights are set forth by statute, court rule, [DHHS] policies
and procedures, and various federal laws . . . .” In re Rood, 483 Mich 73, 93; 763 NW2d 587
(2009). “The juvenile code, MCL 712A.1 et seq., establishes procedures by which the state can
exercise its parens patriae authority over minors. These procedures are reflected in Subchapter
3.900 of the Michigan Court Rules.” In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014).
MCR 3.963(B)(4) authorizes a referee, in certain circumstances, to issue an ex parte interim
order authorizing the DHHS to take a child into protective custody and place the child pending a
preliminary hearing. See also MCL 712A.14b(1) (providing the same authority to a judge or
referee). MCR 3.965(B)(2) sets forth certain requirements with which the trial court must comply
at the preliminary hearing. That provision states, in relevant part:
The court must inquire if the child or either parent is a member of an Indian tribe.
If the court knows or has reason to know the child is an Indian child, the court must
determine the identity of the child’s tribe and, if . . . the petition requests removal
of the child, follow the procedures set forth in MCR 3.967. If necessary, the court
may adjourn the preliminary hearing pending the conclusion of the removal
hearing.
In addition, MCR 3.965(B)(11) states, “If the court knows or has reason to know the child is an
Indian, the court may adjourn the hearing for up to 21 days to ensure proper notice to the tribe or
Secretary of the Interior as required by MCR 3.920(C)(1).” If the trial court adjourns the
preliminary hearing, it “may make temporary orders for the placement of the child when necessary
to assure the immediate safety of the child, pending the completion of the preliminary
hearing . . . .” MCR 3.965(B)(11). MCR 3.967(A) provides that the trial court must complete a
removal hearing within 14 days after an Indian child is taken into protective custody unless, in
relevant part, “the court adjourns the hearing pursuant to MCR 3.923(G).”2
2
MCR 3.923(G) provides:
Adjournments of trials or hearings in child protective proceedings should
be granted only
(1) for good cause,
(2) after taking into consideration the best interests of the child, and
(3) for as short a period of time as necessary.
-3-
In this case, the DHHS took TVM into protective custody on March 14, 2024, pursuant to
an ex parte interim placement order. In accordance with MCR 3.965(A)(1), the preliminary
hearing commenced the following day. When the referee commenced the hearing, he had reason
to believe that TVM may be a member of or eligible for membership in two tribes—the SWO,
through respondent’s purported membership in that tribe, and the LTBB, through TVM’s father’s
membership in that tribe. Although the record is unclear regarding exactly how or when, at some
point the referee became aware that respondent may be a member of the LCO rather than the SWO.
The DHHS sent notices of the proceedings to each of the three tribes and the Bureau of Indian
Affairs, but it had to send some of the notices multiple times due to its failure to include the proper
or correct information on the notices. In total, the referee adjourned the preliminary hearing five
times between March 15, 2024 and June 7, 2024. Each time, the referee determined that good
cause existed to adjourn the hearing so that proper tribal notification could occur. On July 23,
2024, the referee concluded that TVM is not an Indian child for purposes of the ICWA. The
referee’s determination was based in part on the fact that the LCO failed to respond to the DHHS’s
notice, and the time period to do so had expired. The trial court adopted the referee’s finding in
an order entered the following day.
On appeal, respondent does not challenge the determination that TVM is not an Indian
child for purposes of the ICWA. Instead, she argues that the referee erred by failing to conduct a
removal hearing within 14 days after TVM’s removal from her care as MCR 3.967(A) requires
when “an Indian child is taken into protective custody.”
We conclude that respondent has failed to establish plain error. Because the referee
determined that TVM is not an Indian child, and the trial court adopted the referee’s determination,
respondent was not entitled to a removal hearing. Notably, respondent does not challenge the
determination that TVM is not an Indian child. Respondent contends that a timely removal hearing
was nonetheless required because the court rule does not require that confirmation of tribal
affiliation from a tribe is a prerequisite to holding a removal hearing. However, MCL 712B.17
and MCR 3.967(D) require that a qualified expert witness from, or with sufficient knowledge of,
the child’s tribe testify at the removal hearing. Without knowledge of the child’s tribal affiliation,
the DHHS could not have obtained such an expert. Accordingly, determining TVM’s tribal
affiliation was necessary before the referee could have held a removal hearing, and the referee
appropriately recognized that good cause existed to adjourn the proceeding. Respondent has
therefore failed to demonstrate that plain error occurred.
B. REASONABLE EFFORTS
Respondent next argues that the trial court erred by relieving the DHHS of its obligation to
make reasonable efforts to reunify respondent and TVM after respondent entered her no-contest
plea. Because respondent failed to raise her argument in the trial court, our review is limited to
plain error that affected her substantial rights. Pederson, 331 Mich App at 463.
“Reasonable efforts to reunify the child and family must be made in all cases except those
involving aggravated circumstances under MCL 712A.19a(2).” In re Rippy, 330 Mich App 350,
355; 948 NW2d 131 (2019). The DHHS’s reasonable efforts must include the creation of “a
service plan outlining the steps that both it and the parent will take to rectify the issues that led to
court involvement and to achieve reunification.” In re Hicks/Brown, 500 Mich 79, 85-86; 893
-4-
NW2d 637 (2017). While the DHHS has a duty “to provide services to secure reunification, there
exists a commensurate responsibility on the part of respondents to participate in the services that
are offered.” In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012).
The record fails to support respondent’s claim that the trial court relieved the DHHS of its
duty to make reasonable efforts to reunify respondent and TVM following adjudication. The trial
court’s orders entered before respondent’s no-contest plea repeatedly stated that reasonable efforts
shall be made to reunify the family. Although the order of adjudication failed to mention
reasonable efforts, the order stated that “[p]rior orders remain in effect except as modified by this
order.” In addition, the referee adjourned the August 29, 2024 hearing so that the DHHS could
prepare an updated and accurate parent agency treatment plan (PATP). At the September 16, 2024
hearing, the referee adopted the new PATP as reflected in the order following that hearing. The
updated PATP required respondent to, among other requirements, complete a parenting-education
course, participate in mental-health services, and learn communication skills to effectively co-
parent with TVM’s father. Accordingly, the record shows that the trial court did not relieve the
DHHS of its obligation to make reasonable efforts to reunify respondent and TVM following
adjudication.
C. STANDARD OF PROOF AND BURDEN OF PROOF REGARDING REASONABLE
EFFORTS
Finally, respondent argues that neither MCR 3.965(C)(4) nor MCL 712A.19a(2) assigns a
burden of proof or a standard of proof for determining whether reasonable efforts were made.
Because respondent failed to raise this argument in the trial court, our review is limited to plain
error that affected her substantial rights. Pederson, 331 Mich App at 463.
Respondent has failed to demonstrate that plain error occurred. Although she contends that
the court rule and the statute fail to set forth the burden of proof and standard of proof, she does
not argue that the trial court erred by applying the wrong burden of proof or standard of proof.
Rather, she asserts that courts apply the default preponderance-of-the-evidence standard of proof
when a court rule or statute is silent in that regard and asks this Court to adopt that standard and
remand this case to the trial court to apply the proper standard. Because she does not assert that
the trial court applied the wrong standard, however, she has failed to demonstrate that any error
occurred, much less plain error that affected her substantial rights. As such, she is not entitled to
relief.
Affirmed.
/s/ Kristina Robinson Garrett
/s/ Kirsten Frank Kelly
/s/ Brock A. Swartzle
-5-