Opinion

In Re rolston/luna Minors

Court
Michigan Court of Appeals
Filed
May 12, 2025
Status
Unpublished
Cited by
0 cases
Authority
More cited than 35.3%

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UNPUBLISHED

May 12, 2025

10:29 AM

In re ROLSTON/LUNA, Minors.

Nos. 371731; 371733

Chippewa Circuit Court

Family Division

LC No. 23-015102-NA

Before: O’BRIEN, P.J., and K. F. KELLY and BORRELLO, JJ.

PER CURIAM.

In these consolidated appeals,1 respondents appeal by right the trial court’s orders

terminating their parental rights to the minor children, AR and AL, under MCL 712A.19b(3)(c)(i)

(failure to rectify conditions that led to adjudication) and MCL 712A.19b(3)(j) (reasonable

likelihood that child will be harmed if returned to parent). Finding no errors warranting reversal,

we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

In 2022, petitioner Department of Health and Human Services (“DHHS”) investigated

complaints that AR was often dirty, his diaper was never changed, he had bleeding diaper rash,

and he was not being fed appropriately. During the investigation, Children’s Protective Services

(“CPS”) substantiated complaints of improper supervision and substance abuse. As a

consequence, CPS opened an “ongoing” case to assist respondents with substance abuse, mental

health, housing, and parenting issues. At the time of the investigation, AR was approximately

three months old and AL had yet to be born.

After respondent-mother gave birth to AL, concerns for the children’s safety remained and

grew amidst evidence of neglect, domestic violence, physical violence, substance abuse, mental

1

In re Rolston/Luna, unpublished order of the Court of Appeals, entered September 10, 2024

(Docket Nos. 371731 and 371733).

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health concerns, and housing instability. Respondents’ home smelled of urine and was littered

with garbage, animal feces, and cigarette butts. Consequently, DHHS paid for the family to stay

in a hotel room and filed a petition requesting that the court take in-home jurisdiction over the

children. However, when circumstances became untenable, DHHS petitioned the court to take

temporary jurisdiction and remove the children from respondents’ care. Initially, the children were

placed in a tribal foster home but were subsequently moved to a licensed foster home where the

foster father was a member of the Sault Ste. Marie Tribe of Chippewa Indians (“Sault Tribe”).

Respondents entered pleas admitting that they suffered from mental health issues that

impaired their ability to care for the children, and the trial court assumed jurisdiction over the

children. During the dispositional hearing that followed, the court ordered respondents to comply

with a treatment plan designed to address their mental health issues, substance abuse concerns,

domestic violence, and poor parenting skills. Respondents were required to participate in, among

other things, substance abuse treatment, drug screens, parenting classes, parenting time, and mental

health treatment.

In April 2024, DHHS petitioned the trial court to terminate respondents’ parental rights.

The termination hearings were held in May and June 2024. At the conclusion of these hearings,

the trial court concluded that there was a statutory basis to terminate respondents’ parental rights

under MCL 712A.19b(3)(c)(i) and (j), and that termination of respondents’ parental rights was in

the best interests of the children. This appeal followed.

II. STANDARDS OF REVIEW

“In order to terminate parental rights, the trial court must find by clear and convincing

evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been

met.” In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). This Court reviews for

clear error a trial court’s findings of fact. In re McCarrick/Lamoreaux, 307 Mich App 436, 463;

861 NW2d 303 (2014). A finding is clearly erroneous if this Court is left with a definite and firm

conviction that the trial court made a mistake. Id.

“Issues involving the application and interpretation of ICWA[2] are questions of law that

are reviewed de novo.” In re Morris, 491 Mich 81, 97; 815 NW2d 62 (2012). Similarly, this

Court “review[s] de novo issues involving the interpretation and application of MIFPA.[3]” In re

Detmer/Beaudry, 321 Mich App 49, 59; 910 NW2d 318 (2017).

III. DOCKET NO. 371731: RESPONDENT-FATHER

A. ACTIVE EFFORTS

2

Indian Child Welfare Act, 25 USC 1901 et seq.

3

Michigan Indian Family Preservation Act, MCL 712B.1 et seq.

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Respondent-father first argues that the trial court erred when it determined that DHHS

satisfied its duty to make active efforts to prevent the breakup of the family and to reunify him

with his children. We disagree.

AR was enrolled—and AL was eligible to enroll—as a member of the Sault Tribe and are,

therefore, Indian children such that the additional procedural and substantive provisions of the

Indian Child Welfare Act (“ICWA”), 25 USC 1901 et seq., and the Michigan Indian Family

Preservation Act (“MIFPA”), MCL 712B.1 et seq., applied to these proceedings. See 25 USC

1903(4); MCL 712B.3(k). In proceedings involving termination of parental rights, ICWA and

MIFPA “require a dual burden of proof.” In re Payne/Pumphrey/Fortson, 311 Mich App 49, 58;

874 NW2d 205 (2015). Under this system, in addition to finding that at least one state statutory

ground for termination has been proven by clear and convincing evidence, a trial court must also

make additional findings required by ICWA and MIFPA before terminating parental rights. In re

England, 314 Mich App 245, 253; 887 NW2d 10 (2016).

The specific findings required by the ICWA and the MIFPA in termination

proceedings are: (1) proof that active efforts were made to prevent the breakup of

the family; and (2) proof beyond a reasonable doubt that the continued custody of

the child by the parent would likely result in serious emotional or physical damage

to the child. [Id. (citations omitted).]

The court must find by clear and convincing evidence that active efforts have been made

to prevent the breakup of the family before terminating parental rights. Id. at 259. The court has

defined active efforts as

actions to provide remedial services and rehabilitative programs designed to

prevent the breakup of the Indian family and to reunify the Indian child with Indian

family. . . . Active efforts require affirmative, as opposed to passive, efforts, and

active efforts require more than the standard reasonable-efforts approach. Active

efforts require more than a referral to a service without actively engaging the Indian

child and family. Active efforts entail a caseworker taking a client through the

steps of a treatment plan rather than requiring the client to perform the plan on his

or her own. [Beers/Lebeau-Beers Minors, 325 Mich App 653, 680; 926 NW2d 832

(2018) (quotation marks and citation omitted).]

DHHS also has an obligation to service the case in a way that is culturally sensitive. In re JL, 483

Mich 300, 322-323; 770 NW2d 853 (2009) (citation omitted). DHHS should use available

resources from the “extended family, the tribe, Indian social service agencies and individual Indian

care givers.” Id.

Before the children were removed from respondents’ care, DHHS worked with the family

for approximately 11 months to avoid court intervention and prevent removal of the children.

During its ongoing case, CPS offered respondents assistance through a multitude of community

and tribal agencies. In particular, ACFS, an agency providing social services to the Sault Tribe,

provided assistance through its Family Continuity Program. In addition, CPS provided bus passes,

transportation, and other financial assistance. After respondent-mother gave birth to AL in early

2023, DHHS initially petitioned the court in February 2023 for in-home jurisdiction. DHHS was

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attempting to avoid breaking up the family by keeping the children in the home. Only when the

circumstances became completely unacceptable did DHHS petition the court in March 2023 to

remove the children. After DHHS filed the removal petition, the foster-care worker held a family

team meeting that include respondents and representatives from DHHS and ACFS. During this

meeting, the agencies discussed with respondents the reunification goals. Shortly thereafter,

respondent-father was arrested and transported to Clare County.

In addition, a treatment plan was developed in an effort to address the barriers to

reunification. Respondents’ caseworkers made referrals using, among other things, tribal

resources and Indian social service agencies. When respondent-father returned in July 2023,

DHHS offered him in-person parenting time, but respondent-father did not regularly attend the

visits with his children. Subsequently in August 2023, respondents voluntarily decided to leave

Chippewa County and relocate downstate, hundreds of miles and several hours away from their

children.

In a continued effort to assist respondents, DHHS requested courtesy supervision in two

other counties.4 When respondents moved to Clinton County, for example, Samantha Salyer was

assigned to work with respondents while they were living there. However, respondents did not

cooperate with Salyer’s efforts to meet with them. Salyer expended emergency funds from her

county and went through extensive efforts to arrange respondents’ travel back to Chippewa

County; however, respondents abruptly abandoned these plans in the middle of the night and

decided to relocate to Clio, Michigan.

When respondent-father finally made the decision in late December 2023 to leave Clio and

return to Chippewa County, he was provided gas cards by DHHS. Respondent-father was arrested

shortly after he returned to Chippewa County and transported to Tuscola County to face charges

related to his failure to comply with reporting requirements of the Sexual Offender Registration

Act (“SORA”), MCL 28.721 et seq. When respondent-father returned to Chippewa County in

early 2024, DHHS again referred respondent-father for hands-on assistance from AFCS family

continuity worker, Megan Rogers.

In addition, Amanda Gil, an ICWA monitor for the Sault Tribe, testified as an expert that

DHHS had made active efforts to provide remedial services to respondent-father, but that these

efforts were unsuccessful in removing the barriers to reunification. Gil explained that extensive

services were offered to respondents that included community and tribal resources. She further

found that the services addressed respondents’ needs, including housing, employment, budgeting,

mental health treatment, and substance abuse treatment. Gil noted that a lot of hands-on assistance

was given to respondents by multiple agencies and could not identify any other services that should

have been provided but were not.

Given this evidence, the trial court did not clearly err when it found that active efforts had

been made, that respondent-father refused to participate in services, and that further efforts would

4

A courtesy worker in a third county would have been provided, but respondents refused to

disclose their address to the caseworker.

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not likely be successful in removing the barriers to reunification. The record demonstrates that

DHHS made active efforts to reunify respondent-father with his children and prevent the breakup

of the family and that the termination of his parental rights was a product of his failure to participate

in and benefit from the services, rather than the adequacy of DHHS’s efforts. Although DHHS

has the responsibility to offer the statutorily required services, “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). Indeed, “[n]ot only must respondent cooperate

and participate in the services, [respondent] must benefit from them.” In re TK, 306 Mich App

698, 711; 859 NW2d 208 (2014).

B. EMOTIONAL OR PHYSICAL DAMAGE

Respondent-father also argues that the trial court clearly erred when it found beyond a

reasonable doubt that the children would likely suffer serious emotional or physical damage if

returned to his care. We disagree.

In addition to the finding of “active efforts,” a trial court may not terminate a parent’s

rights over an Indian child unless the court finds evidence beyond a reasonable doubt, including

testimony of at least one qualified expert witness, that continued custody of the child is likely to

result in serious physical or emotional damage to the Indian child. 25 USC 1912(f); MCL

712B.15(4); MCR 3.977(G)(2). In re Beers/Lebeau-Beers Minors, 325 Mich App at 665.

Contrary to respondent-father’s contention, the trial court applied the appropriate standards and

did not clearly err when it concluded there was evidence beyond a reasonable doubt that

respondent-father’s continued custody would likely result in serious physical or emotional damage

to the children.

The trial court properly considered the fact that respondent-father had failed to comply

with and benefit from the treatment plan. The court noted that the conditions that brought the

children into care, particularly respondent-father’s mental health concerns, continued to exist.

Although respondent-father was in and out of jail during the overwhelming majority of this case,

when he was free, he did not participate in the services designed to remove the barriers to

reunification. “A parent’s failure to participate in and benefit from a service plan is evidence that

the parent will not be able to provide a child proper care and custody.” In re White, 303 Mich App

701, 710; 846 NW2d 61 (2014). “Similarly, a parent’s failure to comply with the terms and

conditions of his or her service plan is evidence that the child will be harmed if returned to the

parent’s home.” Id. at 711. In addition, at the termination hearing, respondent-father admitted

that he continued to experience severe anger management issues. Moreover, respondent-father’s

own testimony established beyond a reasonable doubt that his mental health issues would likely

result in serious emotional or physical damage to the children. When asked if he believed that his

anger issues affected his ability to safely parent his two children, respondent-father candidly

replied, “[T]o be honest, yeah.”

The trial court also considered the opinion of the qualified tribal expert witness that

termination of parental rights was in the children’s best interests and that respondents’ continued

custody would likely result in serious emotional or physical damage to the children. Gil opined

that despite the efforts of multiple agencies, the barriers to reunification had not been reduced. Gil

testified that respondents had made poor to minimal progress. She further opined that the children

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would be at imminent risk of harm if they were returned to respondents’ home because of

respondents’ general instability, mental health issues, poor parenting skills, and the inability to

meet the children’s basic needs. Gil also noted that the Sault Tribe Child Welfare Committee, the

body that speaks on behalf of the Sault Tribe, supported the termination of respondents’ parental

rights.

The record also demonstrated that respondent-father lacked suitable housing and had no

bond with his children. Respondent-father’s conduct throughout the proceedings demonstrated

that he lacked the proper parenting skills to safely parent his children. Respondent-father testified

that he was aware that if he left Chippewa County and relocated downstate that it would affect his

bond with his children. Nonetheless, even with no promise of employment and housing when he

arrived, respondent-father chose to leave the county where his children resided and resources were

available, to relocate not just once, but on multiple occasions, while this case was ongoing. There

was also evidence that respondent-father’s poor parenting had already harmed the children and

that there was an unacceptable risk that continued poor decision making would cause serious

emotional damage to the children in the future.

When viewing the record in its entirety, the evidence was sufficient to support the trial

court’s finding that the children would likely incur serious emotional or physical harm if they

remained in respondent-father’s custody. Accordingly, the trial court did not clearly err.

III. DOCKET NO. 371733: RESPONDENT-MOTHER

Similar to respondent-father, respondent-mother also contends that the trial erred when it

terminated her parental rights because DHHS failed to make “active efforts” to prevent the breakup

of her family. We disagree.

Much of the evidence discussed above relative to respondent-father is equally applicable

to respondent-mother. Similar to respondent-father, respondent-mother was offered a multitude

of preventative services for 11 months before the children were removed from her care. After the

filing of the petition, respondent-mother was present at the first family team meeting in March

2023 after the children were removed. At that time, several service providers were present to

discuss and explain the goals of the service plan. Respondent-mother was offered a treatment plan

designed to address her substance abuse issue, mental health concerns, and poor parenting skills.

Respondent-mother also received the benefit of courtesy workers when she elected to leave

Chippewa County with respondent-father.

Throughout the case, DHHS marshaled a multitude of resources to assist respondent-

mother in her search for suitable housing. Foster-care worker Christy Roberts provided housing

applications and the necessary documents that would accompany the applications, and requested

assigning a Family Continuity worker to assist respondent-mother in reaching her goals. Family

Continuity worker Rachel Chamberlin provided a wide variety of hands-on services to respondent-

mother, including establishing community network support and prioritizing her appointments.

Chamberlin coordinated temporary housing resources while respondent-mother searched for more

permanent housing and, with Chamberlin’s help, respondent-mother did secure housing by the

time of the termination hearing. Chamberlin also provided instruction regarding how to create a

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budget and stay within the parameters of that budget, and regularly drove respondent-mother to

parenting classes and other stores and offices.

From the start, respondent-mother also had hands-on parenting instruction. Therapist

Stephanie Hicks began working with respondent-mother before the court removed the children

from respondents’ care. Hicks testified that she worked with respondent-mother on her parenting

skills and tailored her services to respondent-mother’s unique needs. Hicks coached respondent-

mother through parenting time, instructing her on how to engage the children. Hicks explained

that although respondent-mother was responsive to the instruction, she still required a lot of

support during parenting time.

Respondent-mother argues that the court erred when it found clear and convincing

evidence that DHHS expended active efforts because respondent-mother was not referred for a

psychological evaluation. Respondent-mother’s assertion in this regard, however, is not supported

by the record. Despite respondent-mother’s assertions to the contrary, DHHS referred respondent-

mother for a psychological evaluation on more than one occasion. The record shows that a

psychiatric evaluation was scheduled for May 2023, but she missed this appointment because she

was incarcerated. During the review period between June and September 2023, respondent-

mother was again referred for a psychological evaluation but she did not attend this appointment.

While in Saginaw, respondent-mother was engaged in therapy through Tuscola Behavioral Health

System; however, respondent-mother left the Saginaw area in November 2023 and moved to

Fowler, Michigan, before the psychological assessment could be completed. Thus, contrary to her

position, early in the proceedings, DHHS did refer respondent-mother for a psychiatric evaluation

and a psychological assessment.

Accordingly, the trial court did not clearly err when it concluded that active efforts were

made. The record demonstrates that DHHS provided services and programs designed to prevent

the breakup of the family, and actively assisted respondent-mother to benefit from those programs.

Affirmed.

/s/ Colleen A. O’Brien

/s/ Kirsten Frank Kelly

/s/ Stephen L. Borrello

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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