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UNPUBLISHED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In re Rolston/Luna, unpublished order of the Court of Appeals, entered September 10, 2024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).
-1-
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.
-2-
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
-3-
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.
-4-
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
-5-
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
-6-
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
-7-